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TMI Blog2019 (8) TMI 665X X X X Extracts X X X X X X X X Extracts X X X X ..... a complaint before the court below against the petitioners and other persons alleging offence under section 138 of the Negotiable Instruments Act, 1881 (for short "the N. I. Act"). The petitioners are the trustees of a trust, namely, Indira Gandhi Memorial Trust, Nellikuzhy. The trust is arraigned as the first accused in the above said complaint. 2. The above Crl. MCs. have been filed praying for quashing the complaint and further proceedings against the petitioners in the above said case. 3. Considering the nature and importance of the question of law involved in these Crl. MCs., this court appointed advocate Sri Jamshed Hafees as Amicus Curiae. 4. Heard learned counsel for the petitioners, learned counsel for the second respondent, the learned public prosecutor and the learned Amicus Curiae. 5. Learned counsel for the petitioners advocate Sri Shaji Chirayath has argued that since "trust" is not an "association of individuals", no successful prosecution against the petitioners, invoking the provisions under section 141 of the N. I. Act, can be sustained. Per contra, the learned standing counsel for the second respondent advocate Sri Salil Narayanan K. A. has argued that the "t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ciation of individuals for the purpose of section 141 of the N. I. Act. 8. There is no dispute that "trust" is not a firm. Now, the question to be considered is as to whether the "trust" is a body corporate or not. For that purpose, it is necessary to go through the relevant provisions of the Indian Trust Act, 1881 (for short "the Act") to ascertain as to whether the "trust" is a juristic person or not. 9. A juristic person is also known as a legal person or a legal entity. A juristic person is one to which law attributes legal personality. The legal personality is an artificial creation of law, conferred upon entities other than individual human beings. A juristic person is capable of suing and being sued in a court of law. A body corporate is undoubtedly a juristic person identified by a particular name. Body corporate is also called corporation, corporate body or corporate entity. There can be no dispute that a "company" is a body corporate. The "corporate veil" is a legal concept which separates the identity of the company from its members/shareholders. 10. Section 3 of the Act provides that a "trust" is an obligation annexed to the ownership of property, and arising out of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s it appears that a "trust" is not like a body corporate, which has a legal existence of its own and therefore can appoint an agent. The above discussion would make it clear that a "trust" is not a body corporate. 16. The next question to be considered is as to whether the "trust" is an "association of individuals" or not. The three judge Bench of the apex court in CIT v. Indira Balkrishna [1960] 39 ITR 546 (SC) ; AIR 1960 SC 1172 construed the meaning of the expression "association of persons" in the context of the Income-tax Act and held that an "association of persons" must be one in which two or more persons join in a common purpose or common action. 17. The apex court in Ramanlal Bhailal Patel v. State of Gujarat [2008] 5 SCC 449 held that an "association of persons/body of individuals" is one in which two or more persons join in a common purpose and common action to achieve some common benefit. 18. The apex court in Ramanlal Bhailal Patel v. State of Gujarat [2008] 5 SCC 449, 464 observed in paragraph 28 thus : "The terms 'association of persons' and 'body of individuals' (which are inter-changeable) have a legal connotation and refer to an entity having ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heir own volition. Since the common purpose of the "trust" is not to achieve benefit to the trustees, the "trust" cannot be said to be an "association of persons/body of individuals". 22. The proposition that a "trust" is not an "association of persons" gains support from the decision of the apex court in Pratibha Pratisthan v. Manager, Canara Bank [2017] 2 KHC 420 ; AIR 2017 SC 1303. The apex court held in Pratibha Pratisthan v. Manager, Canara Bank [2017] 2 KHC 420 ; AIR 2017 SC 1303 that a "trust" is not a person as defined in the Consumer Protection Act, 1986. Section 2(m) of the Consumer Protection Act defines a person as follows : "(m) 'person' includes,- (i) a firm whether registered or not ; (ii) a Hindu undivided family ; (iii) a co-operative society ; (iv) every other association of persons whether registered under the Societies Registration Act, 1860 (21 of 1860) or not." 23. The apex court, after considering the definition of the term "person" in section 2(m) of the Consumer Protection Act, held that the "trust" is not a person, which means that the "trust" is not an "association of persons". It is thus clear from the ratio of the apex court in Prati ..... X X X X Extracts X X X X X X X X Extracts X X X X
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