Andhra HC (Pre-Telangana)
Kamal Kishore Biyani, C/O ... vs Shyam Sunder Bung, S/O Satyanarayana ... on 5 July, 2013
Author: K.G.Shankar
Bench: K.G.Shankar
HON'BLE SRI JUSTICE K.G.SHANKAR
Criminal Revision Case No.2076 of 2012
dated:05-7-2013
Kamal Kishore Biyani, C/o Satyanarayana Biyani, Aged about 48 years, Occ:
Business, R/o H.No.5-8-292/1, Mahesh Nagar Colony, Chirag Ali Lane, Hyderabad...
Petitioner/Petitioner/Accused No.1
Shyam Sunder Bung, S/o Satyanarayana Bung, Aged about 48 years, Occ: Business,
R/o H.No.5-3-828/1, Shankar Bagh, Goshamahal, Hyderabad; and 3 others...
Respondents/Complainant
Counsel for the petitioner:Sri Sharad Sanghi
Counsel for respondent No.1:Sri S.Ashok Anandkumar
Counsel for respondents 2 and 3: None
Counsel for respondent No.4: Public Prosecutor
<Gist :
>Head Note:
?Cases referred:
1. AIR 2006 SC 433
2. (2012) 10 SCC 303
3. (2012) 3 SCC 255
HON'BLE SRI JUSTICE K.G.SHANKAR
Criminal Revision Case No.2076 of 2012
Judgment:
The order dated 03-8-2012 in Crl.M.P.No.2250 of 2011 in C.C.No.614 of 2004
on the file of the II Additional Chief Metropolitan Magistrate, Hyderabad, is
assailed through the present revision. The petitioner, who is accused No.1,
laid the petition under Sections 227, 239, 245 and 258 Cr.P.C for his discharge
in C.C.No.614 of 2004. Through a detailed order, the learned II Additional
Chief Metropolitan Magistrate, Hyderabad, dismissed Crl.M.P.No.2250 of 2011.
2. A private complaint was lodged by one Shyam Sunder Bung before the IV
Metropolitan Magistrate, Hyderabad, alleging that 3 accused committed offences
under Sections 468, 471, 476, 477A, 419 and 420 IPC. Accused No.1, who is the
petitioner herein, is the authorized representative of M/s. Mantri Finstock
Limited (Accused No.2), Hyderabad Branch. He looks after the affairs of accused
No.2. It is the case of the
de facto complainant that accused No.1 is involved in the day to day transaction
on behalf of accused No.2. Accused No.2 is a Member of Mumbai Stock Exchange.
Accused No.3 is the Managing Director of accused No.2.
3. The de facto complainant is a dealer in stocks and shares. It is his
case that he purchased 5,000 shares of M/s. Goldstone Engineering Limited,
through accused No.2 in July, 1996. The shares were handed over to the de facto
complainant in August, 1996.
The total value of the shares purchased by the de facto complainant is
Rs.80,000/-. It is alleged that accused No.1 personally sold the shares to the
de facto complainant through accused No.2. The de facto complainant sold 1,200
equity shares in September, 1996 and January, 1997 through accused No.2.
He retained the balance of 3,800 equity shares with him.
4. It is the case of the de facto complainant that accused No.1, after
selling the shares through accused No.2 to him, obtained duplicate share
certificates from M/s. Goldstone Engineering Limited. The accused 1 to 3
allegedly conspired thereafter and sold duplicate shares in open market to third
parties forging the signature of the de facto complainant and thus deceived him
causing loss of lakhs of rupees to him.
5. The very complaint is surprising. From the averments, it appears that
the de facto complainant did not suffer from any loss. It is the innocent third
parties who allegedly suffered in the hands of the accused. When the accused
obtained duplicate share certificates, no loss could be caused to the de facto
complainant. When they sold the same by forging the signature of the de facto
complainant, it is the innocent purchasers who would ultimately suffer.
Perhaps, the de facto complainant has no cause of action and no locus standi to
file the present complaint.
6. Be that as it is, the case was taken on file and was numbered as
C.C.614 of 2004. Accused No.3 subsequently filed the petition before the trial
court in Crl.M.P.No.6452 of 2010 seeking for his discharge.
The petition was dismissed by the trial court on
31-12-2010. By then, C.C.No.614 of 2004 came up before the II Additional Chief
Metropolitan Magistrate, Hyderabad. When the discharge petition was dismissed,
the petitioner moved Crl.R.C.No.116 of 2011. Through
a detailed and exhaustive order, this Court found that it is not a fit case for
the discharge of accused No.3 and consequently dismissed the revision. Accused
No.1 in his turn filed a petition before the trial court for his discharge
through Crl.M.P.No.6453 of 2010. The same was dismissed by the trial court
through order dated
31-12-2010 on which date, Crl.M.P.No.6452 of 2010 filed by accused No.3 was
dismissed. Accused No.1 preferred Crl.R.C.No.117 of 2011 before this Court.
Through orders dated 25-3-2011, this Court dismissed the revision following the
decision of this Court in Crl.R.C.No.116 of 2011. Thus, the discharge petitions
of both the petitioners were dismissed. Subsequently, the accused 2 and 3 would
appear to have entered into
a compromise with the de facto complainant. Consequently, on 26-7-2011, the
trial court recorded the compounding of the case between the de facto
complainant on the one side and the accused 2 and 3 on the other side filed
through Crl.M.P.No.1961 of 2011 and acquitted the accused 2 and 3.
Subsequently, the present petitioner laid a fresh petition in Crl.M.P.No.2250 of
2011 under Sections 227, 239, 245 and 252 Cr.P.C for his discharge on the ground
that the other accused were already acquitted. The trial court dismissed the
petition.
7. Sri Sharad Sanghi, learned counsel for the petitioner, contended that when a
case is compounded, the offence is compounded as a whole since Sections 320 (1)
and 320 (2) Cr.P.C envisages that it is the offence
that is compounded and not the accused. Indeed, Section 320 (8) Cr.P.C points
out that the composition of an offence under Section 320 Cr.P.C shall have the
effect of acquittal of the accused "with whom the offence has been compounded".
However, the accused with whom the offence has been compounded cannot be read to
mean that the offence can be compounded against individual accused, so much so,
the offence remains in force as against the other accused; because what is
compounded is not an offence committed by an individual accused but the very
offence itself. When the trial court recorded compounding of the offence it
should have acquitted all the accused.
8. It is the case of the learned counsel for the petitioner-accused No.1 that as
the offence was compounded against the accused 2 and 3 by the trial court, it is
deemed to have been compounded against accused No.1 as well and that proceeding
against accused No.1 by the trial court is not permissible.
9. Sri S.Ashok Anand Kumar, learned counsel for the de facto complainant, on the
other hand, contended that there was no composition of the offence in this case
and that at any rate, where the overt acts against accused No.1 can be
segregated from the overt acts against the accused 2 and 3, mere compounding of
the offence against the accused 2 and 3 does not enure to the benefit of accused
No.1. He further pointed out that the docket order of the trial court dated 26-
7-2011 under which the accused 2 and 3 were acquitted was in
a petition filed under Section 257 Cr.P.C.
10. Section 257 Cr.P.C envisages that
a complainant, with the permission of the concerned Magistrate may withdraw the
complaint against all or some of the accused. It would appear that
Crl.M.P.No.1961 of 2011 was laid before the trial court by the de facto
complainant under Section 257 Cr.P.C. However, the docket order dated 26-7-2011
reads that the petition was filed under Section 320 Cr.P.C and that it was
endorsed on the complaint that the complainant was not pressing the case against
the accused 2
and 3 by invocation of Section 257 Cr.P.C. If the
de facto complainant had filed a petition under
Section 257 Cr.P.C., the petitioner complaining that the acquittal of the
accused 2 and 3 shall lead
to the acquittal of the petitioner would not arise as Section 257 Cr.P.C
empowers a complainant to withdraw the complaint against all or some of the
accused only. However, the docket order itself shows that the petition was laid
under Section 320 Cr.P.C and that it was for the compounding of the offences,
albeit against the accused 2 and 3.
11. Another curious factor brought to my notice by the learned counsel for the
de facto complainant is that the petition in Crl.M.P.No.2250 of 2011 was not
under Section 320 Cr.P.C or even under Section 257 Cr.P.C. The petition sought
for the discharge of the present petitioner but not for the acquittal of the
present petitioner. The learned counsel for the petitioner, however, now
contends that as the case was compounded against the accused 2 and 3, it is
liable to be compounded against accused No.1 as well.
12. In the ordinary circumstances, where the petition was for discharge and
where such a discharge is not permissible, the trial court would be justified in
dismissing the petition. A revision assailing such an order is also worthy to
be dismissed. More or less, the request to stop proceedings was sought for
through orders in Crl.M.P.No.2250 of 2011, as it was a petition laid under
Section 258 Cr.P.C apart from under Sections 227, 239 and 245 Cr.P.C. In any
event, it is evident that it was not a petition under Section 320 Cr.P.C. Where
the trial court considered that the case against the accused 2 and 3 alone was
acquitted and the case against the present petitioner-accused No.1 was pending
adjudication, the trial court perhaps was justified in dismissing the petition.
13. However, there is an important hitch in this case. When the accused 2 and 3
were acquitted on account of compounding of the case, it automatically enures in
favour of accused No.1. Accused No.1 also would stand acquitted by virtue of
the compounding of the offences against the accused 2 and 3. The learned
counsel for the de facto complainant strenuously contended that the offence
against accused No.1 is different from the offences alleged against the accused
2 and 3 and that the specific overt acts against accused No.1 are attributed in
the complaint, so much so, trial independently can proceed against accused No.1.
Indeed, specific overt acts were attributed to accused No.1 in the complaint.
Assuming that the de facto complainant withdrew the complaint against the
accused 2 and 3 under Section 257 Cr.P.C., the complaint would nevertheless be
maintainable against accused No.1. What would be the result of such withdrawal
on the case of accused No.1 is a different matter altogether.
14. However, it is not a case of withdrawal against the accused 2 and 3. The
docket order dated 26-7-2011 shows that the compounding petition was filed under
Section 320 Cr.P.C. There is nothing on record to show that such a compounding
petition was rejected by the trial court. I therefore consider that the trial
court acquitted the accused 2 and 3 in view of the compounding of the offence.
Once the offence stands compounded, no one can be prosecuted under the offence
as Section 320 Cr.P.C permits the compounding of the offence but not the
compounding of the offence against individual accused. The offence is
compounded as a whole or is not compounded. If it is the case that some of the
accused were either acquitted or discharged, the remaining accused cannot invoke
Section 320 Cr.P.C albeit Section 257 Cr.P.C may come to their rescue in certain
cases.
15. The learned counsel for the de facto complainant placed reliance upon Rajan
Rai v. State of Bihar1. In that case, question of compounding of the offence
did not arise. Four of the accused persons were acquitted in an earlier
judgment which was delivered on merits. The contesting accused in the
subsequent case raised a contention that where some of the accused were already
acquitted, the case cannot be proceeded against the contesting accused. The
Supreme Court disallowed the claim and held that the acquittal of some of the
accused on merits does not automatically lead to the acquittal of the other
accused. This decision has no bearing on the facts of the present case where
the accused 2 and 3 were acquitted not on merits but on the ground that the de
facto complainant compounded the offence. This decision of the Supreme Court,
therefore, has no relevance for the present case. In GIAN SINGH v. STATE OF
PUNJAB2, the Supreme Court considered at length the parameters of the inherent
powers
under Section 482 Cr.P.C and the powers under
Section 320 Cr.P.C. However, in the case on hand, two of the accused were
acquitted on account of the composition of the offence. Therefore, this
decision albeit the same deals with Section 320 Cr.P.C does not apply to the
facts of the present case.
16. The learned counsel for the de facto complainant also placed reliance upon
JIK INDUSTRIES LTD. v. AMARLAL V.JUMANI3. In that case, the compounding was
sought to be effected under Section 391 of the Companies Act, 1956. The Supreme
Court observed that there is no automatic compounding of the offence under
Section 138 of the Negotiable Instruments Act, 1881 merely on account of the
sanction of a scheme under Section 391 of the Companies Act, 1956.
In the present case, the offence was compounded under Section 320 Cr.P.C and not
under the provisions of any other Act. Consequently, this decision of the
Supreme Court has no bearing on the facts of the present case.
17. In the present case, the offence was indeed compounded. Consequently, the
compounding of the offence through the docket order dated 26-7-2011 enures to
the present petitioner as well. The trial court however was not justified in
dismissing the petition where the petition, inter alia, was laid under Section
258 Cr.P.C.
In view of Section 320 Cr.P.C and in view of
Section 257 Cr.P.C., I deem it appropriate to allow the revision acquitting the
petitioner-accused No.1 of the offences levelled against him.
18. Accordingly, this revision is allowed.
The impugned order is set aside. The petitioner-accused No.1 is acquitted of
the offences levelled against him in view of the composition of the offences by
the de facto complainant against the accused 2 and 3.
__________________
K.G.SHANKAR, J.
03rd July, 2013