Madras High Court
Naveen @ L.Srinivasan vs State Rep. By on 12 April, 2010
Author: C.T. Selvam
Bench: C.T. Selvam
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 12.04.2010 CORAM: THE HON'BLE MR.JUSTICE C.T. SELVAM Crl.O.P. Nos. 24374, 29084 of 2008 and 7217 of 2009 Crl.O.P.No.24374/2008: Naveen @ L.Srinivasan .. Petitioner/Accused No.4 Vs. State rep. by The Assistant Commissioner of Police Central Crime Branch Chennai-6 .. Respondent PRAYER IN CRL.O.P.24374/2008: This Petition is filed under Section 482 of the Code of Criminal Procedure, praying to call for the records in C.C.No.12187 of 2008 on the file of the Additional Chief Metropolitan Magistrate Court, Egmore, Chennai-8 and quash the same. For Petitioners : Mr. V. Prakash, for Mr. K. Govi Ganesan in Crl.O.P.No.24374/2008 Mr. B. Kumar, Sr. Counsel for Mr. Rajinish Pathiyil in Crl.O.P.No.29084/2008 Mr. S.Ramesh, Sr. Counsel for Mr. D.Raja in Crl.O.P.No.7217/2009 For Respondents : Mr. J.C. Durairaj, GA(Crl.side) for R1 in all Crl.O.Ps Mr. S. Ashok Kumar, Sr. Counsel for Mr.C.D.Johnson for R2 in Crl.O.P.No.7217/2009 Mr.K. Srinivasan for Intervener in Crl.O.P.No.24374 of 2008 O R D E R
These petitions seek to quash the proceedings pending in C.C. No.12187/2008 on the file of the Additional Chief Metropolitan Magistrate, EO-I, Egmore, Chennai. The petitioners/accused in such case,are facing prosecution for offences u/s.384 r/w. 34 IPC. The petitioner in Crl.O.P. No.7217 of 2009 is the 1st accused, while the petitioner in Crl.O.P.No.24374 of 2008 is the 4th accused and the petitioners in Crl.O.P.No.29084 of 2008 are the 2nd and 3rd accused. The substratum of the offences alleged against the petitioners is to be found in the final report filed in the case and the same readily may be reproduced.
" This case was registered on a direction by the Hon'ble Additional CMM,Egmore,u/s.156(3) CrPC on a petition filed by Thiru Sri Ram Vedam, Managing Director, M/s.Tiffin Barytes Asbestos & Paints Ltd., Chennai against Tr.Arulraj, Sub Inspector of Police, CCB, Egmore and 3 others alleging that on 8th July 2007 (Sunday) he was asked to accompany Tr.Arulraj (SI, Team-2, CCB, Egmore, Chennai) and another Policemen in plain clothes at about six thirty a.m., from his residence at Balaji Avenue at T.Nagar, Chennai-17. Tr.Arulraj said that there was a complaint against his company, that is being investigated by him and that he should leave with him to the CCB Office at Egmore. He told him that he need to organize the relevant papers from his office since it was a Sunday. He was pressurizing to leave with them right then at about six thirty a.m. He called his officers and asked them to bring the relevant files to his residence and he explained the matter in detail and also showed him that it was M/s.Hero Exports who owes his company a sum of about Rs.70 lakhs. They refused to listen to him and insisted that he should leave with them and explain everything at the CCB office.
Left with no other option he accompanied them at about Ten thirty a.m on 08.07.2007. Instead of taking him to the CCB office they took him to that Hotel Ashoka and asked him to wait until 1 pm. Tr.Munjal and Tr.Gurpreet Singh of M/s.Hero Exports and one Naveen of Besant Nagar appeared there and SI Tr.Arulraj said that they will have to discuss the matter amongst themselves and settle it or he will be remanded in the said criminal case. Tr.Munjal said that he had suffered losses because of his company and that his company should pay back his losses along with interest to the tune of about Rs.14,37,92,691/- and that he would settle it at Rs.9,50,00,000/-.
At about Two Thirty p.m on the same day Advocate Tr.Rajinish Pathiyil came to Hotel Ashoka and brought an MOU which contained all these averments and stated that his company is settling the dispute for the above mentioned amount. He asked him to furnish the cheque details to be furnished. He said that he may not be signing this MOU. Then Tr.Arulraj, SI of Police, CCB and his companion officer asked him to sign the MOU after giving the cheque details and arrange the cheques to be given to Tr.Rajinish Pathiyil Advocate. He threatened to get him remanded if he did not oblige. He also told him that he would keep the criminal case open until he clears the entire payments mentioned in the said MOU. By then it was becoming late and it was about five pm. He gave the cheque details and asked his company officials to get the cheques and without his consent he was forced to sign the said MOU.
On 5th July one cheque for Rupees one crore has been wrongly encashed by the said Hero Exports, since SI Tr.Arulraj threatened to take criminal action against him of the cheques were not honoured by his company in this very complaint which according to him could land him and other Directors in Jail.
Whether any offence appears to have been committed and if so by whom?
A1 noted in the margin was the then SI of Police, CCB, Chennai now working as SI of Police (Crime) in N4 Fishing Harbour Police Station, Chennai City, A2 noted in the margin is the Director, Hero Exports, New Delhi, A3 noted in the margin is the Vice President, Hero Exports, New Delhi and A4 noted in the margin is the associate of A2 and A3 who is attending to the business transactions in Chennai.
M/s. Tiffin Barytes Asbestos & Paints Ltd., Chennai company entered into an agreement with M/s.Hero Exports, New Delhi on 13.07.2004 for supply of 30,000 Tonnes Iron-Ore fines from their mines at Bellari, Karnataka State at the rate of Rs.525/- per metric tonne on ex-mines condition and the agreement was fulfilled and again on 20.09.2004 an agreement was entered for supply of 5 lakhs to 7 lakhs tonnes of iron-ore fines at the rate Rs.675/- per metric tonne on Ex-mines condition and an amount of Rs.5 crores was paid in advance by Hero Exports and further an amount of Rs.27,96,00,000/-was paid by them. M/s. Tiffin Barytes supplied 2,75,492.515 Tonnes of iron-ore fines for that amount and were doing business transactions from 2004 to 2006.
M/s. Hero Exports, New Delhi was exporting the Iron ore fines to M/s. Swiss Singapore Company. During the course of supply of materials dispute araised between Hero Exports and Swiss Singapore Company in the shipment loads and hence, the Swiss Singapore Company fixed M/s.Hero Exports, New Delhi for the defaults noted in the supply. M/s.Hero Exports, New Delhi in turn fixed the responsibility for the defaults on M/s.Tiffin Barytes, Chennai by issuing debit notice. But M/s.Tiffin Barytes, Chennai did not accept the same. Hence, M/s.Hero Exports, New Delhi issued a legal notice through their Advocates on 05.04.2007 claiming that M/s.Tiffin Barytes, Chennai has to give them Rs.13,50,62,436/- based on the debit notice. M/s.Tiffin Barytes, Chennai sent a reply notice on 25.04.2007 through their advocate that the agrement for supply of iron ore fines are on ex-mines condition and hence they are not liable for any damages etc., thus disowning the same and informed that a detailed reply will be sent during the first week of June 2007.
As a such , in the midst of the legal notice correspondence are going on 28.06.2007 M/s. Hero Exports represented by its Vice President Mr. Gurpreet Singh presented a complaint in Crl.O.P.1134/07 against M/s. Tiffin Barytes Asbestos & Paints Ltd., Chennai company and 11 others before the Court of Addl.CMM, Egmore, for the offences u/s. 406, 409, 420 and 381 IPC r/w 120(b) IPC requesting to direct the Commissioner of Police, Chennai u/s.156(3) CrPC to register a case and to investigate. Based on this endorsement a case in Central Crime Branch Cr.No.344/07 u/s.406, 409, 420 and 381 IPC r/w 120(b) IPC was registered on 06.07.2007 by the (A1) Tr.Arulraj, SI of Police, CCB and investigation taken up.
During the course of investigation on 08.07.2007 Sunday at about 0630 hrs A1, Arulraj, SI and his party went to the house of the complainant Tr.Sri Ram Vedam, Managing Director, M/s.Tiffin Barytes Asbestos & Paints Ltd., Chennai at Balaji Avenue, T.Nagar and forcibly took the complainant Tr.Sri Ram Vedam along with his advocate Tr.Balasubramaniyam (W-11) to CCB Office, Egmore and then to Ashoka Hotel, Egmore and there at car parking area in the presence of A1, A2 to A4 pressurized, threatened and forced the complainant to enter into a MOU for an amount of Rs.9,50,00,000/- as settlement between both the company and also forced him to issue 9 cheque leaves each for Rs.1 crore and a cheque leaf for Rs.50 lakhs from Standard Chartered Bank, Chennai, as mentioned in the MOU and further to part with Rs.45 lakhs cash and a self cheque for Rs.5 lakhs. The above 10 cheque leaves for Rs.9,50,00,000/- and cash Rs.45 lakhs and a self cheque for Rs.5 lakhs was obtained from the complainant under duress, coercion, threat by A1 to A4 that unless the complainant part with the above, the complainant would be remanded on 08.07.2007 and further his family members will also be subsequently remanded. The complainant was released only after this settlement was made on 08.07.2007 at about 1700 hrs. The complainant who was shocked and in a dismay, recovered himself when the first cheque for Rs.1 crore issued by him was encashed by M/s.Hero Exports and gave a stop payment letter to M/s.Standard Chartered Bank, Chennai on 23.07.2007 for the cheques issued by him, for which the bank responded and further cheques presented by M/s.Hero Exports were not honoured. Thereby the accused A1 to A4 noted in the margin in furtherence of their common intention, on 08.07.2007 Sunday, A1 without conducting proper investigation, acted in excess by misusing his official capacity, brought the complainant on 08.07.2007 from his house under threat to CCB office and then took him to car parking area of Hotel Ashoka, Egmore, aided A2 to A4 in settling the dispute between M/s.Tiffin Barytes and Hero Exports in favour of A2 to A4 by way of getting the cheque leaves and cash under duress, threat and coercion. Thereby the accused A1 to A4 committed offences punishable u/s.384 r/w.34 IPC. A2 to A4 obtained anticipatory bail and were released on court bail.
2. Heard the learned senior counsel Mr.B. Kumar appearing for petitioners/ accused 2 and 3 in Crl.O.P. No.29084/2008, Senior Counsel Mr. S. Ramesh appearing for the petitioner/first accused in Crl.O.P.No.7217 of 2009, Mr.C.Prakash counsel appearing the petitioner/4th accused in Crl.O.P.No.24374 of 2008, as also the learned Government Advocate appearing for the State and Senior Counsel Mr.Ashok Kumar appearing on behalf of the defacto complainant in Crl.O.P.No.7217/2009 and also perused the materials available on record.
3. The contention of the learned senior counsel Mr.B.Kumar are as follows :-
3.i)There could be no dispute that a huge sum of over Rs.14 crores was owing to M/s.Hero Exports by the defacto complainant. The claim in respect of such amount was no moon shine. Under orders dated 15.7.2008 in OMP No. 369/2008,the Hon'ble High Court, New Delhi had thought it fit to appoint a Commissioner to make an Inventory of stocks of about 30,000 Tonnes of iron ore held ready by the respondent/ defacto complainant for export and again under orders in I.A. No. 8292/2008 dated 18.03.2008 (u/s.9 of Arbitration Act), such High Court, taking into consideration the memorandum of understanding between M/s.Hero Exports and the respondent/defacto complainant dated 08.07.2007 which acknowledged the liability of M/s. Tiffins Barytes Asbestos and Paints Ltd., represented by the defacto complainant, in a settled sum of Rs.9.5 crores restrained it from enjoying the proceeds of the sale consideration of iron ore, remittances of which would be received by them in various bank accounts. The restraint against the respondent/ complainant under such order was in a sum of Rs.8.5 crores.
3.iii) The memorandum of understanding between the parties had been signed on 08.07.2007. Thereunder, the defacto complainant had issued cheques of various dates towards effecting payment of a sum of Rs.9.5 crores agreed to be paid by him. The first of such cheques dated 15.07.2007 was in a sum of Rs.1 crore and the defacto complainant had honoured the same. The second cheque issued by the defacto complainant was dated 22.07.2007 and in a sum of Rs.1 crore. It was only at such stage that the respondent/defacto complainant having caused dishonour of such cheque, under legal notice dated 24.04.2007, raised the claim of memorandum of understanding having been entered upon under duress and coercion. He sought to wriggle out of his commitments and at the same time informed that since the memorandum of understanding contained an arbitration clause, which should be treated as an agreement independent of the other terms of the contract invoked such clause to refer the matter for settlement through arbitration.
3.v) The complaint alleging commission of extortion, coercion and other offences on 08.07.2007 had been lodged only on 09.08.2007 and Cr.No.453/2007 had been registered thereupon for offences u/s. 384 r/w.34 IPC. The original investigating officer by name Mr.P.Rajasekaran, a Sub Inspector of Police had found no offence made out. However, he had not filed any final report.
4. On the complaint preferred on behalf of M/s.Hero Exports by the petitioner Mr.Gurpreet Singh on 06.07.2007, Cr. No.344 of 2007 had been registered by the first respondent for offences u/s.406, 409, 420, 381 IPC r/w 120(b) IPC against the respondent/ defacto complainant and his group. Under order dated 03.09.2007, the Commissioner of Police, Chennai had directed further investigation in both Cr.Nos.344/2007 i.e. the complaint filed against the defacto complainant and in Cr. No.453/2007 i.e. the complaint against the petitioners. The investigating officer so subsequently appointed, thus was required to look into complaints of either side. However, without so much as asking a single question of any of the petitioners or dealing with a single document in respect of the claim of the petitioners, the investigating officer had filed a final report informing commission of offence of extortion. On the above, the submission of the learned senior counsel Mr.B. Kumar is,
1.The investigation in the case leading to the filing of the charge sheet against the petitioner is flawed.
2. Even if the entire allegations against the complaint are taken as true, still no offence of extortion would stand made out. For an offence of extortion to be made out, the inducement to deliver any valuable security or to sign anything which may be converted into a valuable security must be dishonest. Similarly, the injury allegedly caused to the defacto complainant cannot be said to have been done with illegal intent.
5. In the instant case, under the memorandum of understanding what was sought, was a means of payment of debt which is due to M/s.Hero Exports and thus such intent cannot be termed as dishonest. Again, it is seen that the memorandum of understanding was duly entered into and the same also had been attested by the counsel of the defacto complainant and had been acted upon. The petitioner has withdrawn his complaint in Cr.No.344 of 2007, as a result thereof and the defacto complainant also had honoured one cheque in a sum of Rs.1 crore that had been issued by him. In such circumstances, the contention that the defacto complainant was put in fear of injury and forced into entering upon the memorandum of understanding does not merit any consideration.
The decisions relied upon by the learned senior counsel will be discussed hereinafter.
6. Mr. S.Ramesh, learned senior counsel appearing for the petitioner would submit as follows :
The complaint against M/s. Tiffins Barytes Asbestos and Paints Ltd. preferred by Mr. Gurpreet Singh, Vice-President, M/s. Hero Exports, alleged grave misdoings by Sri. Sriram Vedam and his employees in concert with an employee of M/s. Hero Exports. The complaint ran into twelve pages and was supported by as many as 50 documents, informed loss to the tune of Rs.15 crores and alleged commission of offences u/s.406, 409, 420 & 381 I.P.C. r/w.120(b) I.P.C. Sriram Vedam had been called for enquiry on 8.7.2007 and after discussions a compromise was entered into by both sides and both parties submitted letters to the police requesting closure of the complaint as a settlement had been arrived at. After this, one of the cheques in a sum of Rupees one crore issued by the respondent had been honoured. Towards having the twin benefit of both avoiding criminal liability and evading payment due under the memorandum of understanding, the respondent had belatedly filed a false complaint on 9.8.2007. The falsity thereof and the laxity on the part of the investigating officer can be gauged from the following :
1. The belated FIR does not make any mention that a sum of Rs.50 lakhs was extracted from the complainant in cash. In fact, neither the complaint nor the legal notice dt.24.7.07 issued by the respondent, wherein for the first time the memorandum of understanding was challenged, did so. Only by way of 161 statements, was a new story put up regarding cash payment. If this were true it is highly unlikely that the facts thereof earlier would not have been mentioned.
2.The memorandum of evidence filed with the charge sheet reflects that all but one of the persons, who are to be examined as witnesses are either employees or accomplices of the respondent or police personnel. None are to be examined on the documents or on the complaint filed by the petitioner.
3. As both parties have given letters requesting that further action be dropped, the respondent avoided the necessity of moving any application for anticipatory bail. In fact there was absolutely no complaint till the FIR was registered on the basis of the belated complaint dated 9.8.2007. It was pertinent that neither in the FIR nor the notice dated 24.07.2007 nor the 161 statements, was there a whisper that the letter requesting dropping of action and informing that matters stood settled was a document obtained by force. The complicity of the investigating officer with the respondent can easily be gauged from the fact that in the final report it has been informed that the complaint was received for investigation under directions under section 156(3) CrPC. This factually was incorrect. The respondent had preferred the complaint directly with the Assistant Commissioner, CCB, Chennai who had forwarded the same for investigation. In the vacate stay petition filed on behalf of M/s. Tiffins Barytes Asbestos and Paints Ltd., the petitioner had wrongly informed that procedure under section 156(3) CrPC had been followed and this faithfully had been carried over in the 173 Cr.PC report by the investigating officer. The occurrence allegedly had taken place on 8.7.2007. The respondent had honoured the first cheque dated 15.7.2007 in a sum of Rs.1 crore. The request of the respondent not to present the second cheque was ignored, the same was presented on 21.07.2007 and returned unpaid on 23.07.2007. Thereafter, as an afterthought, a complaint has been preferred on 9.8.2007 without the non-mention therein of the extortion of Rs.50 lakhs on 8.7.2007. The memorandum of understanding dated 8.7.2007 had been attested by the advocate of the respondent. In such circumstances, it was highly unlikely that had anything untoward occurred on 8.7.2007, the same would have gone unreported until 9.8.2007. Further submissions were made on the meaning to the attached to the words 'illegal' and 'injury' and upon the import of section 43 and 44 IPC in respect of an offence u/s.383 IPC. It also was submitted that despite the superior officer requiring the new investigating officer to look into both complaints, in abject disregard and disobedience, the investigating officer had merely gone about fulfilling the aim and object of the respondent/complainant in roping in the petitioners before this court in a criminal case. The final submission was that in any event the petitioner, a police official, was entrusted with the investigation in the case against the respondent/complainant and that it was well within his powers to arrest a person if he saw that a cognizable offence stood made out. The petitioner had merely followed the instructions of his superior in carrying out investigation and he could not be called upon to answer a charge of extortion.
7. Sri.C.Prakash, learned counsel appearing for the petitioner in Crl.OP No.24734/2008/ 4th accused would submit that so far as this petitioner was concerned the allegation was that he merely was present. No overt act had been attributed to him. The 161 Cr.PC statements reflected the position that he was a friend both of the complainant and the accused. In fact, the statements reveal the position that it was the defacto complainant who introduced him to the accused. He could not be a person, said to have shared any common intention with other accused. This court had quashed proceedings against the advocate of M/s.Hero Exports in Crl.O.P. No.25413/2007. Such would be an additional reason why a person such as the petitioner who is a total stranger and to whom no overt act had been attributed ought to be provided the same relief.
8. Sri. Ashok Kumar, learned senior counsel appearing on behalf of the respondent would submit that on the complaint against M/s. Tiffins Barytes Asbestos and Paints Ltd., investigation had been taken up. The circumstances would go to show that the investigating officer and the accused had all acted in tandem towards carrying out their design. The circumstances are these:
Instead of examining the respondent/defacto complainant at the CCB office, the same admittedly was done at Hotel Ashoka. The second and third accused are from Delhi but on the fateful day they also were present at such Hotel. The stamp paper on which the memo of understanding had been entered had been purchased on 7.8.2007. The accused could not have had prior knowledge that the memorandum of understanding would be entered into on 8.7.2007. Therefore it was quite clear that all the accused had acted jointly and had come and knocked on the door of the defacto complainant with the dishonest intention of making wrongful gain for themselves and wrongful loss to the defacto complainant. The commission of offence under section 383 - extortion -stood well-established in the circumstances. Towards carrying out the evil design, it is made out in the memorandum of understanding as if the petitioners had given up a few crores of rupees, that is they were accepting Rs.9 crores instead of Rs.14 crores. The notice sent on behalf of the defacto complainant on 24.07.2007 informed the position that the defacto complainant had preferred a complaint against the petitioners before the Additional Commissioner of police. As regards A4, it is submitted that there would be no occasion for him to be at the Hotel if he did not share the common intention of the other accused. Learned senior counsel would submit that in any event this is not the stage to canvass evidence as such would be a matter for appreciation at the trial.
9. In reply, learned senior counsel Sri. B. Kumar would submit that for an offence under section 383 to be made out, it was necessary that a person should have been put in fear of any injury to himself or to any other. As per Sec.44 IPC injury would denote any harm illegally caused. In the present case, it was apparent, if one keeps in mind the proceedings before the Delhi High Court, that all that the petitioners were seeking to do was to recover money due to them. The submission is that even if the complaint be true, it cannot be said that an attempt to recover monies due to oneself could be termed a threat of injury. Unless the investigating officer had looked into the several documents which had been filed along with the complaint of the petitioners such officer could not have come to the conclusion that the intention of the petitioners was dishonest or that they put the defacto complainant under threat of injury. The investigating officer had failed to take into consideration the contradictory 161 CrPC statements in the case. Without taking a totalitarian view of the facts and circumstances surrounding the case and both complaints viz; that of the defacto complainant and that of the petitioners, the investigating officer had, with the sole aim of aiding the defacto complainant in his wrongful exercise, gone about the investigation. The learned senior counsel would submit that the argument about there being no specific overt act attributed to the 4th accused also would apply with equal force to accused 2 and 3. Learned senior counsel Sri Ramesh would add that the perusal of the 161 CrPC statements of witnesses would show that it was not correct to submit that the defacto complainant had been taken away to the Hotel. The same reflect the position that initially the defacto complainant/ accused in Cr.No.344/2007 was produced at the office of the CCB and subsequently all persons concerned moved to the Hotel towards sorting out differences. Learned counsel submits that where the very fabric of the prosecution case falls, the petitioners/ accused cannot be proceeded against.
10. Learned senior counsel further would submit that the first accused having gone above his duties in the course of investigation, could not be made liable under a charge of extortion and whileso the accused 2 to 4 also could not be prosecuted on the ground that they shared a common intention with the first accused, with the aid of section 34 IPC. Memorandum of Understanding dated 8.7.2007 had been signed by the defacto complainant and attested by his counsel. The same did not provide for any revival of any criminal action upon failure thereof. Whileso, it would but have been fair that upon entering into an investigation on the complaint of the defacto complainant, a further and fuller enquiry ought to have been conducted also on the complaint against him. This was what the superior officer wanted the investigating officer to do. The failure to do so had led to the investigating officer filing a charge sheet on an one sided view of the matter, causing great prejudice to the petitioners.
11. Learned Senior Counsel Mr.B.Kumar placed reliance on the decision Laxmi Dhar v. Rex reported in AIR (38) 1951 Ajmer 64 (2), for the proposition that, where the intent behind the threat allegedly meted out to the complainant was legal i.e., towards recovering money due to the petitioners, then no injury could have been said to have been caused to the defacto complainant and consequently there could be no charge of extortion. The following would be the relevant extract from such judgment.
" He has in support of his contention relied on the ruling in Venkatappa v. Jalayya, AIR (6) 1919 Mad.954 (42 Mad.615 FB).
(2) Section 383 IPC, lays down that, 'whoever ... puts any person in fear of any injury ... & thereby ... induces the person so put in fear to deliver ... any property ... commits extortion.' Section 44 IPC., lays down that,'the word "injury" denotes any harm whatever illegally caused to any person, in ... property.' Section 43 IPC lays down that,'the word "illegal" is applicable to every thing which is an offence or which is prohibited by law, or which furnishes ground for a civil action ....' '(3) Venkatappa v. Jalayya, AIR (6) 1919 Mad.954 (42 Mad.615 FB), lays down as below:
" Accused,who was the proprietor of a certain estate, stopped complainant, a cooly, whom he suspected of smuggling Arrack from the Nizam's Dominions into British Territory, on the way ... threatened to report the matter to the police unless he paid something. He was charged with ... threat of injury to commit extortion ...& was sentenced to a ...fine...
Held: ..that the conviction under S.385 was bad, as complainant was not put in fear of any injury within the meaning of S.44, Penal Code and the accused only threatened to do what he was bound by law to do ..."
3. The finding arrived at by the two Cts. below do go to show that the appets. had not put the complainant in fear of any injury i.e.,'illegal' harm. They had according to the very findings arrived at by the two Cts. below just held out a threat that in case the complainant happened to entertain more than 25 guests in the marriage feast of his niece they would report the matter to the authority concerned unless he paid them a certain sum of money. The threat so given thus was no 'injury' within the meaning of S.44 read with S.43 IPC."
12. Reliance was also placed in Mantripragada Mattapalli Narasimha Rao In re, AIR 1919 Madras 954, which, we find, was relied upon in the decision above cited.
13. Learned counsel also relied upon In re Ganeshmal Sait & Ors., AIR (35) 1948 Madras 513, for the preposition that the intent behind the action of the petitioner should be to cause wrongful loss and in the absence thereof offence of extortion could not be made out. The relevant extract would be, " In Section 24 "dishonestly has been defined as: 'Whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person, is said to do that thing 'dishonestly'.' In this case, it cannot be said that by asking for the money which accused 1 had lost he was trying to have any wrongful gain. So, the only other portion of the section applicable is "causing wrongful loss." If accused 1's intention was to cause wrongful loss to PW-1, he would be guilty. It is not only sufficient that there should be wrongful loss caused to one individual, but the person putting that individual in fear of injury must have the intention that wrongful loss should be caused. If accused 1 honestly believed, as the learned Sessions Judge finds, that PW-1 had taken the money belonging to him (A-1) the attempt to get it back could not be said to be with the intention of causing wrongful loss to PW-1. Loss might have been caused to PW-1, but it was not wrongful loss according to accused 1. Such wrongful loss should be caused as a result of an intention. On the findings of the learned Sessions Judge, there is a thorough absence of intention on the part of accused 1 to cause wrongful loss and that being so, the offence under S.384, Penal Code, has not been made out. If accused 1 is not guilty of the offence, accused 3 to 7 who were only present to assist accused 1 with a view to intimidate PW-1, according to the learned Sessions Judge, cannot be guilty at all."
14. Reliance was also placed in Dhananjay @ Dhananjay Kumar Singh v. State of Bihar & anr., (2007) 14 SCC 768, to impress that for an offence of extortion to be made out, it merely was not sufficient that a person was put in fear of injury. The person accused must intend to put such person in fear and thereby induce him to deliver property or valuable security or anything which could be signed or sealed, which may be converted into a valuable security; under a dishonest intention.
15. Learned senior counsel Mr.S. Ramesh, placed reliance on the decision Bhai Lal Chand & Ors. v. Emperor AIR (29) 1942 Lahore 253, informing that the circumstances are apposite and relied on the following observations therein.
It is not disputed that institution of false criminal complaints would amount to putting a person in fear of injury within the meaning of the section, but it is contended that in the present cases the object being merely to realise debts which were admittedly due, the second ingredient of the offence, namely, 'dishonesty' is not established. In the cases to which the other two charge sheets refer the question is not so easy to answer. The answer depends on the correct construction of the words "legally entitled" in S.23, Penal Code. A possible construction of the phrase "property to which a person is legally entitled" is that it means property to which the legal title of ownership vests in that person at the material time. For instance if I have Rs.100 on me, which I have acquired lawfully, that is property of which I am at the time the possessor of the legal title, even though AI may owe that very sum to my creditor. Conversely it is not property to which any legal title vests in him. If this is the correct construction, it would be no answer for the accused in these cases to say that they were not seeking to get any specific piece of property, but merely to get their debts settled. It is, as I have said above, the natural presumption that the debt would be settled by the delivery of some property and perforce until that property was delivered to my creditor the legal title to it would continue to vest in me. Another construction however is clearly possible, and I think it is probably the more natural construction. It is that the words are used in their more ordinary meaning as referring to property which the person is entitled to get, or to retain the case may be. For instance a legatee is "legally entitled" to get his legacy, and an executor is not "legally entitled" to keep it. Similarly, a creditor and in particular, a decree holder, is legally entitled to the amount of the debt, or the decretal amount, and the debtor is not legally entitled to withhold it. Not only does this seem to me to be a more natural interpretation, but it is one of the canons of the construction of a penal statute that where two meanings are possible, that which is more favourable to the subject is to be taken. In this view of the case the inducement to deliver property would not be with the intention of causing wrongful gain or wrongful loss and would therefore not be dishonest within the meaning of S.383 Penal Code read with Ss.24 and 23.
In my judgment, therefore, the answer with respect to these other two cases must be that just as it is not an offence to deceive a person simpliciter, so it is no offence to put a person in fear of an injury, unless it is done with a criminal intention. As such an intention is absent in these two cases there is no act falling within the definition of extortion, or attempted extortion.
16. Reliance was also placed in Ganeshmal Sait and Ors., 1948 MLJ Reports p.418, which already stands referred to supra.
17. Learned counsel also refers to the decision of this Court in C.K.P. Hariselvan & Ors. v. State rep. by The Inspector of Police, CRA No.2/2004, MANU/TN/9258/2006. Such was a case, where there was a belated complaint and in the facts and circumstances of the case this Court held that the offences punishable u/s.384 would not stand attracted since the documents alleged to be snatched away from the complainant by the accused could not be considered either as property or as valuable securities. This court further found that such case would be an example as to how a false case could be foisted on persons against whom one has a motive or enmity.
18. Reliance also was placed on an order of this Court in M.N. Ojha & Ors. v. Alok Kumar Srivastav, C.A. No. 1582/2009, MANU/SC/1479/2009. In such case, the Apex Court found that The complaint obviously has been filed as counter blast to the proceedings already initiated by the bank including the first information report lodged by the first appellant against the complainant and the borrower for the offences of cheating and misappropriation. The sequence of events undoubtedly suggests that the criminal proceedings have been maliciously instituted with an ulterior motive of wreaking vengeance on the appellants and with a view to spite them due to personal grudge. It was clearly intended to prevent the public servants from discharging their duties.
The submission is that, also in the instant case, the defacto complainant has acted in a malafide manner and intent and towards wriggling out of his liability under Memorandum of Understanding and as a counter blast of the complaint preferred against him.
19. The other decisions relied upon by the learned Senior Counsel is on similar lines.
20. Learned counsel Mr.V. Prakash, would rely upon the decision in Mahbub Shah v. Emperor, AIR (32) 1945 Privy Council 118, which informed that, Care must be taken not to confuse same or similar intention with common intention; the partition which divides their bounds is often very thin; nevertheless, the distinction is real and substantial, and if overlooked will result in miscarriage of justice.
21. Reliance also was placed in decision of the Hon'ble Apex Court in Hardeep v. State of Haryana & anr., JT 2002 (6) SC 144, which informed that mere participation in Crime with others was not sufficient to infer common intention. Relating, as it does to a state of mind, the same objectively was to be inferred from conduct displayed in the course of commission of offence as also the prior and subsequent attendant circumstances.
22. On consideration, it is seen that the thrust of the submissions made on law by the learned counsel for the petitioners is that unless the injury was caused and the same was so caused either dishonestly or illegally, no offence of extortion could be complained of. To constitute injury, harm must be caused illegally. The action of which the petitioners are accused, even if true is not to obtain illegal gain. It would only be an action towards recovering what was legally due to them. When such was the case, then the question of the petitioners having acted with the intention of causing wrongful gain to themselves or wrongful loss to the complainant, would not arise. Thus, they could not be said to have acted dishonestly. This would be the essence of the submission, based on Section 24, 43 and 44 of IPC, which respectively defines the terms, dishonestly, illegally and injury.
23. The submissions on law made on behalf of the petitioners that even if the allegations made by the defacto complainant be true, no offence of extortion stands made out, would gain acceptance if the conclusion that what the petitioners sought to recover was only what was due to them could be arrived at. The decision on such aspect could have been arrived at only if the complaint preferred by the petitioners also had been investigated upon. The Commissioner of Police rightly had instructed the investigating officer to cause investigation into both complaints i.e. that against the petitioners and that preferred by them. It is apparent that the investigating officer has not bothered himself in any manner with the complaint preferred by the petitioners side. It is well possible that the investigating officer remaining oblivious to the complaint made by the petitioners could have clouded his vision in the course of his investigation upon the complaint preferred against the petitioners. The counter complaints have seen two investigating officers. One stands accused and the other is found woe fully wanting.
24. In the circumstances, this court is of the opinion that interests of justice would not be served by quashing the proceedings pending before the lower court but by directing a further investigation. Given the nature of allegations made on ether side, both on the facts as between themselves as also the role of the investigating officers, this Court considers it necessary that further investigation be conducted by an official not below the rank of a Deputy Superintendent of Police. This Court therefore directs as follows :-
1.The Commissioner of Police shall entrust cases both in Cr,No. 344/2007 and 437/2008 to an officer not below the rank of Deputy Superintendent of Police for carrying out further investigation. Such officer shall complete the investigation within a period of three months of the entrustment of investigation in his hands.
2.The proceedings in C.C. No,12187/2008 shall await the report of the investigating officer u/s.173(8) Cr.P.C and upon receipt thereof, the lower court shall proceed further in accordance with law.
3.It would be open to the Investigating Officer to file a separate charge sheet in respect of Cr.No.344 of 2007 i.e. The case registered upon the complaint of Mr.Gurpreet Singh, one of the petitioners and on behalf of M/s.Hero Exports, if considered appropriate.
25. The Criminal Original Petitions are ordered accordingly.
.04.2010 avr Index: Yes/No Website: Yes/No To
1. The Assistant Commissioner of Police Central Crime Branch Chennai-6
2. Additional Chief Metropolitan Magistrate Court, Egmore, Chennai-8
3. The Public Prosecutor Madras High Court.
C.T. SELVAM, J.
avr Crl.O.P. Nos. 24374, 29084 of 2008 and 7217 of 2009 .04.2010 PRE DELIVERY ORDER IN CRL OP.Nos.24979, 25044 and 25193 of 2009 TO THE HON'BLE MR.JUSTICE C.T. SELVAM.
Most respectfully submitted.
(C.R. Asha Viji Rani),PA