Karnataka High Court
Sri R Jayavelu vs State Of Karnataka on 21 May, 2013
Author: Anand Byrareddy
Bench: Anand Byrareddy
1
IN THE HIGH COURT OF KARNATAKA AT
BANGALORE
DATED THIS THE 21ST DAY OF MAY, 2013
BEFORE
THE HON'BLE MR. JUSTICE ANAND BYRAREDDY
CRIMINAL PETITION No.842 of 2013
BETWEEN:
1. Sri. R. Jayavelu,
Aged about 52 years,
Son of Sri. Ramamurthy,
Managing Director,
M/s. Shashi Distilleries Private Limited,
and resident of No.1140/127,
20th Main, 5th Block,
Rajajinagar,
Bangalore - 560 010.
2. Sri. Thanigaimalai,
Aged about 50 years,
Son of Sri. Ramamurthy,
Director,
M/s. Shashi Distilleries Private Limited,
No.501/A/4, 9th Mile Stone,
Bannerghatta Road,
Bangalore - 560 076. ...PETITIONERS
(By Shri. C.V. Nagesh, Senior Advocate)
2
AND:
1. State of Karnataka,
by the Station House Officer,
Magadi Road Police Station,
Bangalore - 560 023.
2. Sri. P.L.G. Manu,
Aged about 59 years,
Son of Sri. P.P.Luke,
Resident of Betgalon N-6,
Reliance Park,
Per-Serauilm,
Salcate,
GOA - 403 708. ...RESPONDENTS
(By Shri. P.M. Nawaz, Additional State Public Prosecutor for
Respondent No.1
Shri. Mahendra Gowda C.R. Advocate for Shri. S.R.
Shivaprakash, Advocate for Respondent No.2)
*****
This Criminal Petition is filed under Section 482 code of
Criminal Procedure, 1973, praying to quash the First
Information Report dated 12.08.2012 in Crime No.213/2012 of
Magadi Road Police Station, Bangalore City, pending before
the IV Additional Chief Metropolitan Magistrate, Bangalore,
for the offence punishable under Section 403, 468, 465, 471,
408, 420, 109, 120B read with Section 34 of IPC.
This petition having been heard and reserved on
15.04.2013 and coming on for pronouncement of orders this
day, the Court delivered the following:-
3
ORDER
Heard the learned Senior Advocate, Shri C.V.Nagesh and the learned counsel for the respondent.
2. The facts of the case are as follows:
The first petitioner is said to be engaged in the business of liquor and transport. The said businesses are run under the name and style of M/s Shashi Distilleries Private Limited (SDPL) and M/s Rajeshwari Transports, respectively. The second petitioner is the brother of the first petitioner.
It is stated that during the year 1992, the petitioners had met one Joseph Tharakkan through their cousin, Ganeshan. Tharakkan is said to have taken on lease a certain premises owned and possessed by the wife of the first petitioner, at Bannerghatta Road, Bangalore, for business purposes. Tharakkan was also associated with M/s Shashi Distilleries, (Hereinafter referred to as the 'SD', for brevity) a partnership firm, as a partner along with the second respondent, PLG Manu 4 and was also a Director of SDPL. The partnership business, SD, had an excise license , while the company, SDPL, did not have one. But it is claimed that the firm could not effectively carry on its business activities and was in financial difficulties. It is claimed that at that juncture the petitioners and their cousin Ganeshan were inducted into the firm as partners. Tharakkan and Manu are said to have retired from the firm thereafter, on receiving a sum of Rs.50 lakh from the petitioners as consideration in that regard. Ganeshan was said to be a dormant partner. This change in guard was duly recorded with the Excise Department as well as with the Registrar of Firms. It is also stated that Tharakkan was being represented in these transactions at times through his power of attorney holder, Manu.
SDPL was said to be defunct and it was in order to revive the same that the petitioners and their cousin claim to have inducted themselves as partners in SD, as a first step. It is claimed that the first petitioner was keen on operating through 5 the medium of a company and consequently the petitioners, on their simultaneously being named as Directors in SDPL as well, Tharakkan and Manu are said to have relinquished their respective directorships in the said company. This is said to have been duly endorsed by the Registrar of Companies.
3. The first petitioner was promptly named the Managing Director of SDPL. The bank account standing in the name of SD was transferred to that of SDPL. The petitioners then made an application seeking transfer of the excise licence issued in the name of SD to that of SDPL, with the Excise Department. However, Tharakkan is said to have raised objection and appeared before the Excise commissioner through his counsel - B.K.Sampathkumar. It transpires that the matter was amicably settled and Tharakkan had made a statement before the said authority that he was withdrawing his objection to the transfer of the excise licence in favour of SDPL.
It is claimed that the petitioners thereafter infused substantial funds in the business of SDPL and the authorized 6 capital of the company was raised. The company commenced its business in right earnest. It however, transpires that Ganeshan developed a hostile attitude against the petitioners with their increasing prosperity and joined hands with Tharakkan and Manu, who were said to be 'watching from the wings' the growing prospects of the company. It is alleged that Ganeshan and certain others stealthily removed various documents of the company - such as share certificates, registers, books of accounts and other important documents and are said to have placed them in the custody of Tharakkan and Manu - it is on the basis of the same that the said persons had raised a dispute before the Company Law Board (CLB), disputing their retirement from the company and the induction of the petitioners as directors thereof. It was claimed that the petitioners were not even share holders of the company. The petitioners resisted the claim. The CLB ultimately dismissed the petition. There was a finding that Tharakkan and Manu had ceased to be share holders and directors of SDPL. Their claim 7 that they had inducted eight others as Directors and allotted shares as on 14.12.2006, was negated. The said order of the CLB was challenged in appeal before the Company Court and the same also came to be dismissed by a judgment dated 3.2.2010. This was carried by way of a Special Leave Petition before the Supreme court of India, which again was rejected by an order dated 16.12.2011.
Taking cue from an observation made by the Company Court at the hearing of the appeal as aforesaid, Manu and Tharakkan had then filed a civil suit in OS 25582/2012 before the City Civil Court, Bangalore. Declaratory and injunctory reliefs are claimed therein. An application for temporary injunction restraining the petitioners from carrying on the business of SDPL was not granted.
Having failed to stall the functioning of the company under the management of the petitioners, Manu and Tharakkan had set up Ganeshan to file a complaint against the petitioners before the Hulimavu Police, Bangalore. It was alleged therein 8 that the petitioners were guilty of forgery, cheating and other illegalities in connection with the taking over of the management of the company, SDPL. This was registered as Crime no. 3/2007. The petitioners had questioned the proceedings by way of a Criminal Petition in 2613/ 2008 before this court. Curiously, in the said petition, Ganeshan had entered appearance and declared by way of an affidavit that his complaint against the petitioners was misconceived and was in error of judgement. On the basis of which, the complaint was quashed by this court, by its order dated 7.12.2009.
4. It is stated that on the basis of a complaint filed by the first petitioner on 12.1.2007 against the second respondent and Tharakkan and others, the Hulimavu Police had registered a case in Crime no.12/2007, for offences punishable under Sections 380, 406, 420, 468, 471 and 120-B of the Indian Penal Code, 1860 (Hereinafter referred to as the 'IPC', for brevity). In the course of investigation the various documents disputed by Manu and Tharakkan, as regards the transfer of management 9 of the company, were subjected to forensic examination by the Forensic Science Laboratory, Hyderabad. The Laboratory, in its report has affirmed the authorship of all relevant documents by Manu and Tharakkan. The case is said to be pending trial in case no. CC 13613/2009 on the file of the IV Additional Chief Metropolitan Magistrate, Bangalore.
In this background it is claimed that the second respondent who is said to carry influence with the Magadi Road Police has instituted proceedings against the petitioners alleging offences of forgery, falsification of documents etc., in relation to the very controversy raised as to the exit of the second respondent and Tharakkan from the affairs of the Company. It transpires that the Magadi Police while ignoring the several proceedings that have taken place and are pending ,in relation to the self same affair have registered a case against the petitioners in Crime no.213/2012 and have taken up investigation. The petitioners having placed before the Hulimavu Police the complete particulars of the long drawn out 10 affair as between the parties- the officer in charge is said to have threatened the petitioners to settle the matter amicably with the second respondent and his accomplices or face severe consequences. It is in this back ground that the petitioners are before this court seeking the quashing of the pending proceedings initiated by the second respondent.
Per contra, the learned counsel for the respondent no.2 would contend that the crux of the matter involves the illegal acts of fabrication of share certificates and resignation letters of the second respondent and Tharakkan by the petitioners. And the illegal manner in which they claim to have taken over the affairs of SDPL.
5. It is claimed that as early as in the year 2006 complaints had been filed in respect of such illegal acts of the petitioners by Tharakkan and Ganeshan. However, Ganeshan had resiled from the complaint on the purported footing that there was an alleged error of judgment when in fact he had received a sum of Rs.42.50 lakh from the petitioners to do so. 11 The complaint by Tharakkan is claimed to be pending investigation.
It is admitted that there were proceedings against the petitioners initiated by the second respondent and Tharakkan before the CLB and the subsequent proceedings detailed hereinabove.
It is also admitted that in addition to the civil suit filed by the second respondent, a criminal case is also initiated It is the case of the second respondent that the petitioners have fabricated share transfer forms and forged the signature of the second respondent and Joseph Tharakan and got the shares in the Company transferred to themselves. As per the records of the Company as shown to the Commissioner appointed by the Company Law Board these acts were done in the year 1999. During this time, Joseph Tharakan was out of the country. It is pertinent to mention here that there is not even an oiota of evidence to evince transfer of shares or payment of consideration for the same. The petitioners have filed 12 resignation letters and Form-32s before the Registrar of Companies (ROC) wherein the signatures of the second respondent and Joseph Tharakan have been forged. The fabricated share transfer forms and resignation letters are not available with the Registrar of Companies and an endorsement that they have been destroyed has been given by the ROC. However, other records of the company much prior to 1999 have still been retained. Therefore, the alleged destruction of recoreds is an act done to prevent the uncovering of truth. The company or the petitioners do not have the original share transfer forms. They have filed a complaint that one Ganeshan has stolen them on instructions from the second respondent and Joseph Tharakan. The Police have registered a criminal case regarding the same and filed the charge sheet. In the criminal case filed by the petitioners, the investigation officer referred documents received from ROC as well as the petitioner to State Forensic Laboratory and Central Forensic Laboratory for verification of signatures and both of whom have held that the 13 signatures on some of the documents do not belong to Joseph Tharakan or the second respondent.
6. In the light of these facts, it is the submission of the second respondent that the attempt of the petitioner is to hide the truth and ensure that investigation does not take place. If investigation were to take place, the criminal acts committed by the petitioners would be uncovered. It is further submitted that in view of the Company Law Board passing an order stating that the Company Law Board cannot go into allegations of forgery and fraud. It is submitted that the charge sheet in the criminal case filed by the petitioner alleges that the second respondent and Joseph Tharakan have committed theft, forgery and falsified documents and the contention of the second respondent is that the petitioner has committed the acts forgery and fabrication to illegally usurp the company. Both complaints are pending and unless investigation is not done in the complaint of the second respondent, the truth will not be 14 uncovered. Hence, for all these reasons, this petition is totally mala fide and ought to be rejected.
It is further contended that as the matter is under investigation it would result in gross miscarriage of justice if the same is set at naught .
7. Given the above broad sequence of events albeit the petitioners accusing the respondent no.2 and Tharakkan of having voluntarily transferred their interest in SDPL and SD in their favour and seeking to set up contrary claims. And the second respondent alleging fraud and forgery against the petitioners. The question for consideration is whether the prayer of the petitioners that, notwithstanding the stand of the second respondent on the basis of the counter allegations as detailed above, the proceedings initiated by the second respondent in the matter now pending consideration in Crime no.213/2012 before the court below ought to be quashed. 15
It is not in dispute that according to the petitioners they were inducted into the firm SD in the year 1997. It is claimed that the second respondent and Tharakkan retired from the firm on receiving Rs.25 lakh each, from the petitioners in the year 2004. The transfer of the excise licence held by the firm SD was transferred in favour of SDPL in the year 2005 by virtue of an order passed by the Commissioner of Excise. The continuing partners of SD, namely, the petitioners being shown as the Directors of SDPL and the same being endorsed by the Registrar of Companies. And the transfer of the bank account held by SD in favour of SDPL, have taken place in the year 2005.
It is in the year 2007 that Ganeshan, a cousin of the petitioners had filed a complaint before the Hulimavu Police, enclosing a complaint said to have been filed by Tharakkan before the Joint Commissioner of Police, dated 20.12.006. The same having been challenged by the petitioners before this 16 court - Ganeshan had appeared therein and conceded that the proceedings initiated by him be set at naught.
The second respondent had initiated the proceedings referred to herein above, before the CLB- in the year 2006, but did not choose to initiate any criminal proceedings till after the proceedings initiated before the CLB attained finality before the apex court in the year 2011.
8. The first petitioner had initiated proceedings against the second respondent and Tharakkan in respect of the very affairs that were the subject matter of controversy by a complaint dated 12.1.2007 and registered as Crime no.12/2007. A charge sheet had been filed in the said proceedings after investigation against six persons including the second respondent.
The second respondent, on the other hand, has chosen to initiate a civil suit in OS 25582/2012 in March 2012. An application for temporary injunction was not granted by the civil court. It is thereafter in August 2012 that the second 17 respondent had chosen to initiate the criminal case in respect of the very same affairs of the firm SD and the company SDPL.
Given the above circumstances it is necessary to take stock of the legal position in such circumstances, in considering the petition on hand.
9. In the case of Babubhai v. State of Gujarat, (2010) 12 SCC 254, the apex court after a review of the case law on the point has held thus :
"13. In Ram Lal Narang v. State (Delhi Admn.) this Court considered a case wherein two FIRs had been lodged. The first one formed part of a subsequent larger conspiracy which came to the light on receipt of fresh information. Some of the conspirators were common in both the FIRs and the object of conspiracy in both the cases was not the same. This Court while considering the question as to whether investigation and further proceedings on the basis of both the FIRs was permissible held that no straitjacket formula can be laid down in this regard. The only test whether two FIRs can be permitted to exist was whether the two conspiracies were identical or not. After considering the facts of the said case, the Court came to the conclusion that both conspiracies were not 18 identical. Therefore, lodging of two FIRs was held to be permissible.
14. In T.T. Antony Vs. State of Kerala, this Court dealt with a case wherein in respect of the same cognizable offence and same occurrence two FIRs had been lodged and the Court held that: (SCC p.181d-3) "There can be no second FIR and no fresh investigation on receipt of every subsequent information in respect of the same cognizable offence or same occurrence giving rise to one or more cognizable offences."
(emphasis supplied) The investigating agency has to proceed only on the information about commission of a cognizable offence which is first entered in the Police Station diary by the Officer In-charge under Section 158 of the Code of Criminal Procedure, 1973 (hereinafter called the Cr.P.C.) and all other subsequent information would be covered by Section 162 Cr.P.C. for the reason that it is the duty of the Investigating Officer not merely to investigate the cognizable offence report in the FIR but also other connected offences found to have been committed in the course of the same transaction or the same occurrence and the Investigating Officer has to file one or more reports under Section 173 Cr.P.C. Even after submission of the report under Section 173(2) Cr.P.C., if the Investigating Officer comes across any further information pertaining to 19 the same incident, he can make further investigation, but it is desirable that he must take the leave of the court and forward the further evidence, if any, with further report or reports under Section 173(8) Cr.P.C. In case the officer receives more than one piece of information in respect of the same incident involving one or more than one cognizable offences such information cannot properly be treated as an FIR as it would, in effect, be a second FIR and the same is not in conformity with the scheme of the Cr.P.C.
15. The Court further observed as under: (T.T. Antony case, SCC p.200, para 27) "27. A just balance between the fundamental rights of the citizens under Articles 19 and 21 of the Constitution and the expansive power of the police to investigate a cognizable offence has to be struck by the court. There cannot be any controversy that sub-section (8) of Section 173 CrPC empowers the police to make further investigation, obtain further evidence (both oral and documentary) and forward a further report or reports to the Magistrate....... However, the sweeping power of investigation does not warrant subjecting a citizen each time to fresh investigation by the police in respect of the same incident, giving rise to one or more cognizable offences, consequent upon filing of successive FIRs whether before or after filing the final report under Section 173(2) CrPC. It would clearly be beyond the purview of Sections 20 154 and 156 CrPC, nay, a case of abuse of the statutory power of investigation in a given case. In our view a case of fresh investigation based on the second or successive FIRs, not being a counter-case, filed in connection with the same or connected cognizable offence alleged to have been committed in the course of the same transaction and in respect of which pursuant to the first FIR either investigation is under way or final report under Section 173(2) has been forwarded to the Magistrate, may be a fit case for exercise of power under Section 482 CrPC or under Articles 226/227 of the Constitution."
16. In Upkar Singh Vs. Ved Prakash, this Court considered the judgment in T.T. Antony (supra) and explained that the judgment in the said case does not exclude the registration of a complaint in the nature of counter claim from the purview of the court. What had been laid down by this Court in the aforesaid case is that any further complaint by the same complainant against the same accused, subsequent to the registration of a case, is prohibited under the Cr.P.C. because an investigation in this regard would have already started and further the complaint against the same accused will amount to an improvement on the facts mentioned in the original complaint, hence, will be prohibited under section 162 Cr.P.C. However, this rule will not apply to a counter claim by the accused in the first complaint or on his behalf alleging a different version of the said incident. Thus, in 21 case, there are rival versions in respect of the same episode, the Investigating Agency would take the same on two different FIRs and investigation can be carried under both of them by the same investigating agency and thus, filing an FIR pertaining to a counter claim in respect of the same incident having a different version of events, is permissible.
17. In Rameshchandra Nandlal Parikh Vs. State of Gujarat, this Court reconsidered the earlier judgment including T.T. Antony (supra) and held that in case the FIRs are not in respect of the same cognizable offence or the same occurrence giving rise to one or more cognizable offences nor are they alleged to have been committed in the course of the same transaction or the same occurrence as the one alleged in the First FIR, there is no prohibition in accepting the second FIR.
18. In Nirmal Singh Kahlon Vs. State of Punjab, this Court considered a case where an FIR had already been lodged on 14.6.2002 in respect of the offences committed by individuals. Subsequently, the matter was handed over to the Central Bureau of Investigation (CBI), which during investigation collected huge amount of material and also recorded statements of large number of persons and the CBI came to the conclusion that a scam was involved in the selection process of Panchayat Secretaries. The second FIR was lodged by the CBI. This Court after appreciating the evidence, came to the 22 conclusion that matter investigated by the CBI dealt with a larger conspiracy. Therefore, this investigation has been on a much wider canvass and held that second FIR was permissible and required to be investigated.
19. The Court held as under: (Nirmal Singh Kahlon case, SCC pp. 466-67, para 67) "67. The second FIR, in our opinion, would be maintainable not only because there were different versions but when new discovery is made on factual foundations. Discoveries may be made by the police authorities at a subsequent stage. Discovery about a larger conspiracy can also surface in another proceeding, as for example, in a case of this nature. If the police authorities did not make a fair investigation and left out conspiracy aspect of the matter from the purview of its investigation, in our opinion, as and when the same surfaced, it was open to the State and/or the High Court to direct investigation in respect of an offence which is distinct and separate from the one for which the FIR had already been lodged."
(Emphasis added).
20. Thus, in view of the above, the law on the subject emerges to the effect that an FIR under Section 154 Cr.P.C. is a very important document. It is the first information of a cognizable offence recorded by the Officer In-Charge of the Police Station. It sets the machinery of criminal law in motion and marks the commencement of the 23 investigation which ends with the formation of an opinion under Section 169 or 170 Cr.P.C., as the case may be, and forwarding of a police report under Section 173 Cr.P.C. Thus, it is quite possible that more than one piece of information be given to the Police Officer In- charge of the Police Station in respect of the same incident involving one or more than one cognizable offences. In such a case, he need not enter each piece of information in the Diary. All other information given orally or in writing after the commencement of the investigation into the facts mentioned in the First Information Report will be statements falling under Section 162 Cr.P.C.
21. In such a case the court has to examine the facts and circumstances giving rise to both the FIRs and the test of sameness is to be applied to find out whether both the FIRs relate to the same incident in respect of the same occurrence or are in regard to the incidents which are two or more parts of the same transaction. If the answer is affirmative, the second FIR is liable to be quashed. However, in case, the contrary is proved, where the version in the second FIR is different and they are in respect of the two different incidents/crimes, the second FIR is permissible. In case in respect of the same incident the accused in the first FIR comes forward with a different version or counter claim, investigation on both the FIRs has to be conducted."
24
10. If the instant case is examined in the light of the above settled legal propositions, it is clear that the complaint brought by the second respondent is a belated counter to the complaint filed by the first petitioner in the year 2007 itself in respect of the affairs of the firm and company referred to hereinabove. Those proceedings having proceeded further on the basis of investigation duly carried out, it would certainly result in duplication of the exercise at the instance of the second respondent.
Therefore, the proceedings initiated by the second respondent cannot be sustained. Accordingly, the petition is allowed and the proceedings in Crime no.213/2012 on the file of the IV Additional Chief Metropolitan Magistrate, Bangalore, are hereby quashed.
Sd/-
JUDGE nv*