Andhra HC (Pre-Telangana)
Dr. Raman Srikanth vs State Of Telangana, Rep. By Its P.P., ... on 7 November, 2014
Author: K.G.Shankar
Bench: K.G.Shankar
HONBLE Dr. JUSTICE K.G.SHANKAR
Criminal Petition No.6192 of 2014
07-11-2014
Dr. Raman Srikanth Petitioner/Accused No.3
State of Telangana, Rep. by its P.P., High Court at Hyderabad; and another
Respondents
Counsel for the Petitioner: Sri T.Niranjan Reddy,
Senior Counsel
Counsel for Respondent No.1: Public Prosecutor,
High Court, Hyderabad
Counsel for Respondent No.2:Sri D.V.Sitharam Murthy,
Senior Counsel
<Gist:
>Head Note:
? Cases referred:
1. (2010) 8 SCC 775
2. 2014(1) ALD (Crl.) 611 (AP)
3. 2012(1) ALD (Crl.) 655 (SC)
4. (2011) 7 SCC 59
5. (2000) 2 SCC 636
6. 2012 (3) ALT (Crl.) 246 (A.P.)
7. 2014 (6) SCALE 659
8. (2012) 1 SCC 476
9. (2009) 1 SCC 516
10. 2014 (1) L.S. 81 (S.C.)
11. (2014) 4 SCC 453
HONBLE Dr. JUSTICE K.G.SHANKAR
Criminal Petition No.6192 of 2014
Date: 07-11-2014
Order:
The petitioner is accused No.3 in Crime No.274 of
2014 on the file of KPHB Colony Police Station.
The 2nd respondent is the de facto complainant.
A complaint was lodged by the de facto complainant
before the XIX Metropolitan Magistrate, Cyberabad at
Miyapur against 3 persons including the petitioner
herein. The offences alleged against them are
under Section 420 IPC and Section 420 read with
Section 34 IPC. The Court referred the same under
Section 156(3) Cr.P.C to Police for investigation.
On receipt of the complaint from the Court through
reference under Section 156(3) Cr.P.C., First Information
Report (FIR) was registered as Crime No.274 of 2014.
The petitioner seeks for the quashment of the same.
2. Sri T.Niranjan Reddy, learned Senior Counsel for
the petitioner, contended that there was an abnormal
delay in invoking the jurisdiction of the Court, so much
so, the FIR deserves to be quashed. He further
submitted that the dispute is a civil dispute and that
criminal law cannot be invoked. It is also alleged that the
Arbitral Tribunal headed by Honble Sri Justice
D.P. Wadhwa, former Judge of the Supreme Court,
is seized of the dispute and that it would be unjust for
the 2nd respondent to simultaneously invoke the criminal
process. The learned Senior Counsel for the petitioner
contended that the allegations prima facie did not
constitute any offence as against the petitioner, that the
learned Magistrate mechanically referred the case to
Police under Section 156(3) Cr.P.C and that Police
violated the mandate under Section 41-A Cr.P.C by
arresting the petitioner.
3. On the other hand, Sri D.V.Sitharam Murthy,
learned Senior Counsel representing the 2nd respondent/
de facto complainant, claimed that it is the petitioner
who is the architect of the fraud and that he being the
alterego of the 1st accused, it would be appropriate to
permit Police to proceed with the investigation.
He pointed out that the petitioner was not the author or
signatory of the MoU and that his role however is quite
evident from the complaint. The learned Senior Counsel
for the 2nd respondent further submitted that it is not
appropriate to scuttle the investigation and that in the
event the petitioner is innocent of the offences levelled
against him, Police would not file a charge-sheet against
him.
4. M/s. Thiess Mauritius Private Limited and
Minecs Finvest Private Limited are foreign companies.
M/s. Thiess Minecs India Private Limited is an Indian
Company. It is a joint venture of M/s. Thiess Mauritius
Private Limited and M/s. Minecs Finvest Private Limited.
M/s. Thiess Minecs India Private Limited is the
1st accused herein. It was incorporated with its corporate
office at Kolkata. It is contended by the leaned Senior
Counsel for the petitioner that the 1st accused was
started with the intention of undertaking identified
mining and related activities in India.
5. The petitioner/accused No.3 is a non-executive
Director of the 1st accused-Company. M/s. Roshni
Developers Private Limited is the 2nd respondent/de facto
complainant. It is also a body corporate with its offices
at Hyderabad.
6. A Memorandum of Understanding (MoU) was
entered into between the 1st accused and the
2nd respondent on 02-7-2008 as a sequel of the Tender
Notification issued by National Thermal Power
Corporation Limited (NTPC) on 31-3-2006. NTPC invited
bids for undertaking mining development and operations
at Pakri Barwadhi Coal Mining Block (P.B. Block).
The 1st accused was short-listed through the Tender
process. NTPC invited the 1st accused to submit its price
bid by 03-7-2008.
7. On 30-11-2010, NTPC informed the 1st accused
that its bid for P.B. Block was accepted through letter of
acceptance. It may be pertinent to notice at this stage
that the petitioner was admitted as non-executive
Director of the 1st accused-Company on 03-12-2010.
The MoU dated 02-7-2008 between the 1st accused and
the 2nd respondent was extended till 31-01-2011 through
proceedings dated 04-12-2010. As disputes arose
between the 1st accused and the 2nd respondent, the
2nd respondent invoked the arbitration clause on
02-02-2012. It is contended on these facts by the
learned Senior Counsel for the petitioner that no case is
made out against the petitioner. He further submitted
that the original MoU dated 02-7-2008, which is the
subject matter of controversy, was in fact cancelled.
8. The 2nd respondent contended that the
2nd respondent alleged in the complaint that after
obtaining letter of acceptance from NTPC, the accused
decided to ease out the 2nd respondent and take the
whole project for themselves. It is alleged that the
2nd accused, who represented the 1st accused, made false
and dishonest representations to the 2nd respondent
promising to grant subcontract to the 2nd respondent as
agreed upon through MoU and that the petitioner became
instrumental in the 1st accused giving a goby to the MoU
and the promise of award of subcontract to the
2nd respondent. The learned Senior Counsel for the
2nd respondent contended that these acts on the part of
the 1st accused under the instigation of the petitioner
herein constitute the offences under Section 420 IPC as
well as under Section 420 read with Section 34 IPC.
It is submitted by the learned Senior Counsel for the
2nd respondent that the allegations prima facie constitute
the offences triable and that this is not a fit case to
frustrate the investigation at the threshold.
9. The learned Senior Counsel for the petitioner
submitted that the last date on which the alleged offence
occurred was 30-11-2010 whereas the petitioner joined
as non-executive Director on 03-12-2010 only.
In column No.2 of the complaint submitted by the
2nd respondent before the Court, it was stated that the
date of offence was on 06-6-2008, 02-7-2008, 16-9-2009
and 30-11-2010 and continuing. Be it noted that in
column No.2 of the complaint, it was not stated by the
2nd respondent that the last date on which the offence
occurred was on 30-11-2010. On the other hand, it was
specifically contended that the offence was a continuing
offence. Four dates indeed were mentioned in the
complaint. The four dates are suffixed with the
endorsement that the offence was continuing. I therefore
cannot accept the contention of the learned Senior
Counsel for the petitioner that the very offence occurred
on 30-11-2010 and that the complaint was lodged as late
as on 22-3-2014 or on 19-3-2014 on which date, the
complaint was signed on behalf of the 2nd respondent.
The case being barred by limitation under
Section 468 Cr.P.C prima facie does not arise. Further,
there is no limitation for the investigation or prosecution
for the offence under Section 420 IPC as the same is
punishable with imprisonment to an extent of 7 years.
10. The learned Senior Counsel for the petitioner
further contended that even if the case is not technically
barred by limitation, the delay of about 3 years in filing
a complaint should ipso facto lead to the quashment of
the FIR. Merely because the offence occurred more than
3 years prior to the filing of the complaint cannot be
a ground to quash the FIR. Further, it may be noticed
that the arbitral proceeding itself was commenced in
2013 whereas the present complaint was lodged about
a year thereafter.
(a). In KISHAN SINGH v. GURPAL SINGH ,
it was observed:
21. Prompt and early reporting of the occurrence by
the informant with all its vivid details gives
an assurance regarding truth of its version. In case
there is some delay in filing the FIR, the complainant
must give explanation for the same. Undoubtedly,
delay in lodging the FIR does not make the
complainants case improbable when such delay is
properly explained. However, deliberate delay in
lodging the complaint is always fatal. (Vide Sahib
Singh v. State of Haryana (1997) 7 SCC 231).
22. In cases where there is a delay in lodging
an FIR, the court has to look for a plausible
explanation for such delay. In the absence of such
an explanation, the delay may be fatal. The reason for
quashing such proceedings may not be merely that the
allegations were an afterthought or had given
a coloured version of events. In such cases the court
should carefully examine the facts before it for the
reason that a frustrated litigant who failed to succeed
before the civil court may initiate criminal proceedings
just to harass the other side with mala fide intentions
or the ulterior motive of wreaking vengeance on the
other party. Chagrined and frustrated litigants should
not be permitted to give vent to their frustrations by
cheaply invoking the jurisdiction of the criminal court.
The court proceedings ought not to be permitted to
degenerate into a weapon of harassment and
persecution. In such a case, where an FIR is lodged
clearly with a view to spite the other party because of
a private and personal grudge and to enmesh the other
party in long and arduous criminal proceedings, the
court may take a view that it amounts to an abuse of
the process of law in the facts and circumstances of
the case. (Vide Chandrapal Singh v. Maharaj Singh
(1982) 1 SCC 466; State of Haryana v. Bhajan Lal
1992 Supp (1) SCC 335; G.Sagar Suri v. State of U.P.
(2000) 2 SCC 636; and Gorige Pentaiah v. State of A.P.
(2008) 12 SCC 531).
Thus, mere delay cannot be a ground to set aside
a complaint, unless such delay was tantamount to abuse
of the process of law.
(b). In B.S. Neelakanta v. State of Andhra
Pradesh , there was an inordinate delay of 6 years in
filing the complaint. There was no explanation
whatsoever for filing the complaint with such
an inordinate delay. The final report was already
submitted which did not contain any explanation.
A learned Single Judge of this Court held that it was a fit
case for discharging the accused. It may be noticed that
B.S. Neelakanta (2 supra) was a case where the
investigation was completed and charge-sheet was laid.
The Trial Court took cognizance of the case and when
a discharge petition was laid, Court dismissed the same.
In the present case, the investigation itself is in progress;
it is not fair to assume that Police will not be able to give
an explanation as to the delay in lodging the complaint.
I consider that B.S. Neelakanta (2 supra) is not
an authority for quashing an FIR on the ground of
abnormal delay.
(c). In Themax Ltd. v. K.M. Johny , the Magistrate
issued a direction to Police to investigate the complaint.
There was inordinate delay and laches in filing the
complaint. The complaint also did not possess the
ingredients for the offence complained of. Further, the
offence was of a civil nature. The Court considered that
the complaint was lodged to circumvent the jurisdiction
of the Civil Court and ordered the quashment of the
same. In the present case, I am not able to conclude that
the ingredients of the offence have not been made out
more about the same later. Further, I do not consider
that the delay was not inordinate.
(d). In JOSEPH SALVARAJ A. v. STATE OF
GUJARAT , a complaint was lodged in respect of offences
under Sections 406, 420 and 506(1) IPC. The Court
considered that the offences were prima facie not made
out and also held that it was an attempt of abuse of the
process of law.
(e). Way back in G.SAGAR SURI v. STATE OF
U.P. , the Court issued a caution that jurisdiction under
Section 482 Cr.P.C needs to be exercised with great care
and caution.
(f). In Criminal Petition No.15544 of 2013, through
orders dated 24-7-2014, I have held thus:
12. It may be noticed that when a complaint is at the
stage of investigation, it would be appropriate to
permit Police to proceed with the investigation.
The interest of the accused, however, could be
protected through an order not to arrest the accused
during the pendency of the investigation and similar
circumstances. However, in the present case,
an entire reading of the complaint would show that no
overt act whatsoever was attributed against accused
2 to 5. Their complicity was on the ground that they
were the Directors of SMFA and Pantime Companies.
(g). In Criminal Petition No.7873 of 2014, through
orders dated 01-8-2014, I held on facts that no case was
made out against the accused and ordered the
quashment of the complaint. However, I have also held
in RAKESH GUPTA v. STATE OF A.P. that pendency of
a civil case was not a bar for instituting criminal
proceeding and that the dispute in controversy in that
case could be resolved through evidence only.
(h). In MOSIRUDDIN MUNSHI v. MD. SIRAJ , the
Supreme Court noticed that the examination of the case
in detail in a petition under Section 482 Cr.P.C is not
warranted and that stalling of the investigation on the
ground that the dispute was a civil transaction would not
be appropriate.
(i). Referring to R.P.Kapur v. State of Punjab (AIR
1960 SC 866) and State of Haryana v. Bhajan Lal (1992
Supp (1) SCC 335), it was noticed by Chelameswar, J.
in UNION OF INDIA v. RAMESH GANDHI that in view of the two decisions cited, it was not appropriate to interfere with the investigation at the FIR stage.
(j). In R.KALYANI v. JANAK C. MEHTA , the sentiment of the Court was reiterated that the High Court would not exercise its inherent jurisdiction to quash a criminal proceeding ordinarily and more so a First Information Report unless the allegations, even if they are deemed to have been proved, do not disclose any cognizable offence.
From the above decisions, it is evident that unless prima facie case is not made out from the complaint or unless it is found that the complaint is sheer abuse of the process of law, it would not be appropriate to interfere with the investigation.
11. Regarding the prima facie case, it is contended by the learned Senior Counsel for the petitioner that the whole case is against the 1st accused represented by the 2nd accused and that the controversy is the MoU dated 02-7-2008. He further submitted that the petitioner was admitted as a non-executive Director of the 1st accused on 03-12-2010 whereas the MoU was dated 02-7-2008. His contention is that no case is made out nor can a case be made out against the petitioner and that if there is a case at all, it is against the accused 1 and 2 and not against the petitioner.
12. In the complaint, it was stated that the 2nd respondent disclosed valuable information on specific issues like coal mining projects, pricing and bidding to enable the 1st accused to participate in the bidding. It is further alleged that the 1st accused made false representations with the dishonest intention to make the 2nd respondent bring its expertise to the benefit of the 1st accused. As rightly submitted by the learned Senior Counsel for the petitioner, these allegations relate to the conduct of the accused 1 and 2 only. Similar allegations were made against the accused 1 and 2 repeatedly. However, from para 15 of the complaint onwards, specific allegations were made against the petitioner and overt acts were attributed against the petitioner. It was alleged that the petitioner had been making attempts to circumvent the MoU on the ground of fairness of the agreement between the parties and alleged that the 2nd accused and the 3rd accused on behalf of the 1st accused Company played deception on the 2nd respondent to secure main contract from NTPC. Indeed, whether the contents of the complaint are true or otherwise cannot be considered in this petition. As rightly submitted by the learned Senior Counsel for the 2nd respondent, allegations are made against the petitioner apart from allegations against the accused 1 and 2 constituting prima facie not only an offence under Section 420 read with Section 34 IPC but also under Section 420 IPC. The learned Senior Counsel for the petitioner submitted that there was no MoU subsequent to 30-11-2010 and spending of monies by the 2nd respondent, if any, cannot prima facie constitute an offence under Section 420 IPC. As already noticed, it is the contention of the learned Senior Counsel for the 2nd respondent that on the inducement of the accused 1 to 3, the 2nd respondent indulged in monetary activity and suffered loss on account of cheating and fraud played upon it. As noticed by various cases and as observed by me in RAKESH GUPTA (6 supra), pendency of a civil suit is no bar for the institution of the criminal proceedings. Mere pendency of arbitral proceedings cannot restrain the 2nd respondent from proceeding against the accused by invoking due process of law.
13. Apart from considering the case on merits and also on the ground of delay, the learned Senior Counsel for the petitioner also submitted that mechanical making over of the case under Section 156(3) Cr.P.C by the Court to Police is not called for and that the FIR registered on the basis of such a reference under Section 156(3) Cr.P.C is liable to be quashed. I am afraid that a Magistrate need not make a detailed order while referring the case to Police under Section 156(3) Cr.P.C. It may also be noticed that the practice in the State of Andhra Pradesh is not to express any view by the Magistrate when the Magistrate referring a case under Section 156(3) Cr.P.C to Police, leaving it upon for the Police to investigate the case. Merely because the order of the learned Magistrate did not show the reasons of the Court for referring the complaint to Police under Section 156(3) Cr.P.C., I am not inclined to quash the FIR. Where the 2nd accused is in Australia and where it is alleged in the complaint that the petitioner/3rd accused is one of the persons responsible for the whole episode, I consider that it would be appropriate to permit Police to proceed with the investigation and decide the question threadbare. Inter alia, it is contended by the learned Senior Counsel for the petitioner that NTPC ultimately cancelled the contract. As rightly submitted by the learned Senior Counsel for the 2nd respondent, the cancellation of the contract by NTPC does not alter the nature of the present complaint. I therefore consider that this is a fit case where it would be appropriate to permit Police to proceed with the investigation.
14. The learned Senior Counsel for the petitioner also contended that the petitioner was arrested in violation of the provisions under Section 41-A Cr.P.C. In Arnesh Kumar Vs. State of Bihar , specific directions were issued by the Supreme Court regarding the circumstances in which Police Officer may arrest. In HEMA MISHRA v. STATE OF UTTAR PRADESH , the Supreme Court reminded Police about the right of the accused from arbitrary arrest in view of Sections 41 and 41-A Cr.P.C. However, they do not affect the result of the investigation and the result of the present petition. So far as the merits of the present petition are concerned, I had already noticed that this is not a fit case for quashment.
15. Consequently, this criminal petition is dismissed. It would appear that the petitioner/ 3rd accused has already been arrested and had been enlarged on bail. In any event, Police shall not resort to arresting the 3rd accused until the completion of the investigation. The miscellaneous petitions, if any, pending in this petition shall stand closed.
_____________________ Dr. K.G.SHANKAR, J.
7th November, 2014.