Madras High Court
S.Periyasamy vs State Of Tamil Nadu Rep. By on 18 April, 2012
Author: C.S.Karnan
Bench: C.S.Karnan
IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 18 / 04 / 2012 Coram THE HON'BLE MR.JUSTICE C.S.KARNAN Crl.R.C.No.1191 of 2010 & M.P.No.1 of 2010 S.Periyasamy .. Petitioner Vs. 1.State of Tamil Nadu rep. by Inspector of Police, Crime Branch CID, Namakkal. 2.T.T.Paranthaman .. Respondent Prayer :- Criminal Revision is filed under Section 397 r/w 401 of Cr.P.C., to set-aside the order dated 20.04.2010 made in C.M.P.No.1024 of 2010 passed by the learned Judicial Magistrate, Tiruchengode and allow the revision petition. For Petitioner : Mr.R.Gandhi, Senior Counsel for Mr.S.Vadivel Murugan For Respondent : Mr.Mohammed Riyaz Govt. Advocate (Crl. Side) for R-1 Mr.A.Natarajn, Senior Counsel for M/s.A.Madhumathi for R-2 - - - ORDER
The second respondent herein / defacto complainant had levelled a case against the revision petitioner herein / accused and three others before the Director General of Police, Mylapore, Chennai. The said case was forwarded to the C.B.C.I.D. for enquiry. The C.B.C.I.D. Wing had registered a Criminal Case in Crime No.1 of 2008 for the offence alleged under Section 120(B), 420, 406, 409, 468, 471 and 506(1) IPC. On the basis of the F.I.R., investigation was conducted by the Inspector of Police and he had come to the conclusion that the case was unproven, therefore, the complaint was closed as "MISTAKE OF FACT". The said report was sent to the learned Judicial Magistrate, Tiruchengode, wherein the defacto complainant, viz., T.T.Paranthaman had filed a Criminal Miscellaneous Petition No.1024 of 2010 and he had stated in his petition that he is the Managing Partner of "M/s.Paranthaman Exporters" and his father, his wife are partners in the said Export firm. At this juncture, the accused viz., S.Periyasamy had approached the defacto complainant's Export firm to start a business at Gulf of Oman. As per the offer of the accused, the defacto complainant had condescended to start such a business, accordingly, the business was started in the name and style of "M/s.Paranthaman Overseas Drillers Pvt. Ltd. India". In the said firm 50% of the share was allotted to the defacto complainant and the other 50% of the share was allotted to the revision petitioner herein / accused viz., Periyasamy and three others. Further, the firm had decided to start a Drilling contract works at the Gulf of Oman and the same got started in the year 2004 in which, the defacto complainant / Mr.Paranthaman and his father had invested a sum of Rs.1 Crore and started the operations in the name and style of "M/s.Power Engineering Services Company, L.L.C. Oman". In the said company, 70% of the share was allotted to the M/s.Paranthaman firm and 30% of the share had been allotted to the revision petitioner herein/accused, as per the Gulf of Oman Trading Rules and Regulations and in this way, the business progressed with the revision petitioner in overall charge. In the said Company, two persons were appointed as Senior Manager, viz., Mr.V.Rajendran and Mr.V.Vinayagam. In the process of business transactions, the revision petitioner herein had purchased materials for a sum of Rs.5 Crores and 86 Lakhs and operated the business, however, the said expenditure as mentioned above was not paid to the defacto complainant, in this manner, the defacto complainant had been cheated by the revision petitioner - Mr.Periyasamy.
2. Thereafter, the revision petitioner has started a new organization viz., "M/s.Power Tech Engineering Services Company, L.L.C" on 30.07.2006. The revision petitioner had created a document and impersonated by signing for the defacto complainant's father viz., Mr.Thangaraj and obtained attestation from the Officers at Muscat on 03.11.2008. Further, on 19.02.2007, "M/s.Power Engineering Services Company, L.L.C." firm had agreed to sell off all materials to "M/s.Power Tech Engineering Services Company, L.L.C" and accordingly, passed a resolution, in this manner, the revision petitioner/accused had created a forged document with the intent to cheat a sum of Rs.5,86,00,000/- (Rupees Five Crores and Eighty Six Lakhs only) and invested an amount a sum of Rs.3,25,00,000/- (Rupees Three Crores and Twenty Five Lakhs only). Further, the revision petitioner had created forged documents in the name of the defacto complainant's father-Thangaraj on 30.07.2006, 19.02.2007, 10.08.2007 and 04.09.2007 respectively. On the strength of such created forged documents, he transfered the firm of "Power Engineering Services Company, L.L.C.," to the firm of "Power Tech Engineering Services Company L.L.C."
3. This type of forgery had not been determined by the Investigation Officers besides not verifying the said forged documents. Actually, the revision petitioner had changed the nomenclature i.e., from "Power Engineering Services, Company L.L.C.," to "Power Tech Engineering Services Company, L.L.C.," and transferred the share capital to his name and had purchased from this capital amount valued properties in Tamil Nadu, in his name and also in his wife's name. So, this is the true factual position of the case, due to not being properly investigated and determined. Therefore, the defacto complainant has filed a petition in Crl.M.P.No.1024 of 2010 for re-enquiry and ascertaining the veracity of the case.
4. The said petition had been resisted by the respondent / Inspector of Police, attached to the District Crime Branch, CID, Namakkal. The respondent Police stated that on the basis of complaint, the investigation officer had verified all the documents and had come to the conclusion that as per the consent of Mr.Thangaraj, who had signed in all the documents, the firm namely, "Ms.Power Engineering Services Company, L.LC." had been transferred to "Power Tech Engineering Services Company, L.L.C". Therefore, the allegation made by the defacto complainant that the forged documents had been created and impersonated the signature of the defacto complainant's father-Thangaraj, hence, it is not bona fide, therefore on the basis of false information made by the defacto complainant, a re-enquiry is not at all required.
5. On the said averments of both parties, the learned Judicial Magistrate, Tiruchengode had framed an issue, i.e., "Whether the Crime No.1 of 2008 on the file of CBCID, Namakkal could be sent for re-enquiry or not?"
In this case, the investigation officer had conducted an enquiry after verifying the records of "M/s.Paranthaman Overseas Drillers Private Limited" and also collected statement from the witnesses under Section 161 (3) of Cr.P.C. As per the complaint, the verification of signatures had not been adhered to in a through manner. The learned Judicial Magistrate had further observed that on the basis of the statement collected from the witnesses under Section 161 (3) of Cr.P.C., the Investigation Officer had closed the complaint as a "MISTAKE OF FACT". This enquiry is short of efficiency. The learned Judicial Magistrate further observed that the Investigation Officer had not received some documents and minutes book in order to find out the transfer of the firm and a verification of the signatures of the defacto complainant's father, besides the disputed signature should be sent to the Forensic Department for expert opinion, this was not adhered to, hence, the learned Judicial Magistrate ordered for re-enquiry in order to determine the signatures of the father of the defacto complainant in connection with the relevant documents via the competent examination by the Forensic Department. The learned Judicial Magistrate further directed to conduct an enquiry with the witnesses by the Deputy Superintendent of Police, C.B.C.I.D. within a period of two months. Accordingly, it was ordered.
6. Aggrieved by the said order, the revision petitioner has filed the above revision.
7.The learned senior counsel for the revision petitioner argued that the nature of case is of a civil nature, therefore, the first respondent has closed the case as a "MISTAKE OF FACT" and filed a final report. This has to be accepted by the learned Magistrate. The learned senior counsel submitted that "M/s.Power Engineering Service Company, LLC" was carrying out business at the Gulf of Oman, therefore, the entire jurisdiction arises at the Gulf of Oman and not in India, but the learned Magistrate had erred that the original jurisdiction had occurred within the jurisdiction of the 1st respondent Police. Therefore, the learned Magistrate ought to have accepted the final report and rejected the protest petition. The defacto complainant's father-Thangaraj had admitted his signature in his statement, which was recorded by the Investigation Officer under Section 161(3) of Cr.P.C. Knowing the fact, the defacto complainant in raising objection over his father's signature as an after thought. The learned counsel further stated that the entire business transaction on the basis of written agreement, so if any breach of the terms and conditions of the agreement, the aggrieved party is at liberty to approach the Civil forum, which is the sole authority to decide the civil dispute including any pecuniary loss caused to the respondent. The learned Magistrate failed to consider that the defacto complainant deliberately excluded the Managing Director of "M/s.Power Engineering Services, Company L.L.C.," Gulf of Oman, T.P.Thangaraj, who is none other than his father who was representing 70% share in the Company and even assuming that any forgery was committed at the Gulf of Oman, the defacto complainant's father is the competent person to file a complaint against the Directors of "M/s.Power Engineering Services, L.L.C.," including the revision petitioner to the Gulf of Oman Judiciary. The learned Magistrate had wrongly concluded that the Managing Directors, who placed the order for rig material from his family Company viz., "M/s.Parantham Exporters" and the said materials were defective and of low quality, hence, "M/s.Power Engineering Services Company, L.L.C" was unable to run properly. The learned senior counsel further contended that due to the heavy loss to the Company, the defacto complainant's father-T.P.Thangaraj had instructed the petitioner and other directors to attend the Directors meeting and subsequently, the Board of Directors approved the winding up of the Company and informed the same to the Ministry of Commerce, Gulf of Oman. The learned senior counsel further argued that the entire business transaction had occurred at the Gulf of Oman. Subsequent winding up of the company was done as per the Rules and Regulations of the Gulf of Oman, with the consent of approval of Board of Directors of "Power Engineering Services Company, L.L.C," including the defacto complainant's father-T.P.Thangaraj.
8. Learned senior counsel for the revision petitioner has furnished the list of date and events which are as follows:-
"
DATE LIST OF DATES AND EVENTS 1980 M/s.Paranthaman Exporters Partnership Firm started by the Defacto Complainant's father 24.09.2003 Considering the vast work experience of this petitioner in the Sultanate of Oman in the Field of Electrical Engineering the Defacto Complainant's father wanted this petitioner to do business with him and therefore M/s.Paranthaman Overseas Drillers Pvt. Ltd., was incorporated in India before the Registrar of Companies, Coimbatore. (With 50% share by the defacto complainant and his father equally and another fifty percent by this petitioner and other accused in the present complaint) 15.09.2004 M/s.Power Engineering Services, L.L.C. Was incorporated in Sultanate of Oman (70% of the share is held by M/s.Paranthaman Overseas Drillers Pvt. Ltd., and 30% of the share by the Local Omanis) Capital of the Company is Rs.1.8 Crores. Defacto complainant's father is the Managing Director of M/s.Power Engineering Services, L.L.C. and the petitioner worked as the General manager as he is having vast experience in the work in Oman.
M/s.Power Engineering Services L.L.C. Placed orders for supply of equipments with M/s.Paranthaman Exporters.
M/s.Paranthaman Exporters supplied equipments worth Rs.5.86 Crores to M/s.Power Engineering Services L.L.C. and payment not made to the same.(Complainant's allegation) The complainant for the above project has availed credit facilities from Punjab National Bank, Erode to the tune of Rs.5.86 Crores (complainant's allegation).
The Power Engineering Services suffered huge loss due to the non-supply of materials in time and inferior quality materials and non availability of spare parts.
30.07.2006 Partners of M/s.Power Engineering Services conducted a meeting and consented for doing work separately.
15.11.2006 M/s.Power Tech Engineering Services L.L.C. was registered with Ministry of Commerce and Industry. The petitioner also started working and assigned the position of Director.
19.02.2007 Partners of M/s.Power Engineering Services L.L.C. decided to sell the company (Defacto complainant's father signed in the Minutes) 10/8/2007 Partners of M/s.Power Engineering Services L.L.C. decided to sell their company to M/s.Power Tech Engineering. (Minutes signed by the defacto complainant's father) 4/9/2007 M/s.Power Engineering Services L.L.C. was sold to M/s.Power Tech Engineering L.L.C. 6/10/2008 Complaint registered as F.I.R.No.1 of 2008 30.12.2009 After completion of investigation the FIR was closed as mistake of fact as the dispute is of civil nature. RCS served on the defacto complainant and the Court of the Judicial Magistrate, Tiruchengode.
9/2/2010 Protest petition was filed by the defacto complainant under Section 173(8) of Cr.P.C.
20.04.2010 The Court of the Judicial Magistrate, Tiruchengode has ordered for re-investigation on the petition filed by the defacto complainant and directed Deputy Superintendent of Police C.B.C.I.D, Salem to re-investigate and submit the report within two months.
Aggrieved by the said order, present revision has been filed.
COMPLAINT IN FIR FINAL REPORT FILED BY THE INVESTIGATION OFFICER Complainant Name:
T.T.Paranthaman, son of T.P.Thangaraj Occupation: Business Address Director M/s.Power Engineering Services L.L.C. Oman.
06.10.2008 received the complaint of Thiru.T.T.Paranthaman, M/s.Paranthaman Rock Drills-Partnership Firm comprising of the partners of T.T.Paranthaman, his father and wife.
FM/s.Paranthaman Overseas Drillers Ltd., 50% by T.P.Thangaraj and T.T.Paranthaman, 50% by this petitioner and other persons who are accused in the F.I.R.
Date of complaint 06.10.2008 given to D.G.P. forwarded to Addl.DGP C.B.C.I.D., Chennai through the S.P. Of Police Crime Branch C.I.D., North Zone, Chennai.
During Investigation 7 witnesses and three documents were examined.
Connected documents obtained and verified.
Complainant Documents Invoices, consignment orders statements.
Accused Documents Minutes, Periodically passed by Board of Directors of M/s.Power Engineering Services attested by Ministry of Foreign affairs Sultanate of Oman as well as by the Indian Embassy at Muscat.
Allegation in the FIR:
M/s.Paranthaman & T.P.Thangaraj are Director and holding 70% of stakes in the Company by name M/s.Power Engineering Services, L.L.C. In Power Engineering Company, L.L.C., 70% of the shares held by M/s.Paranthaman Overseas Drillers 30% of the shares held by Mr.Suiman Musallam Omanian, Orders placed by Power Engineering Services L.L.C. to M/s.Paranthaman Exporters to the tune of Rs.5,86,00,000/- and goods supplied.
After receiving goods amount not paid by Power Engineering Services L.L.C., to M/s.Paranthaman Exporters to the tune of Rs.5,86,00,000/-.
Availed credit facility to the tune of six crores from Punjab National Bank to finance the Project.
CONCLUSIVE OF THE INVESTIGATION OFFICER Defacto Complainant did not hold any position in M/s.Power Engineering Services, L.L.C, Oman (Therefore his claim in FIR that he is the Director of M/s.Power Engineering Services, L.L.C., Oman is false.) The signature of T.P.Thangaraj available in all the Minutes of M/s.Power Engineering, this was also admitted by him as his signature (Therefore, there is no question of forgery) Mr.T.P.Thangaraj knows entire transaction.
Supply of goods between 2004-2006 prior to M/s.Power Tech Engineering Services, L.L.C. started.
30.07.2006-Minute passed by the Board of Directors of M/s.Power Engineering Services, L.L.C, by which the Employees and Directors were permitted to join in any other Company or to Act with similar work.
15.11.2006-Power Tech Engineering Services, L.L.C was started.
Periyasamy and three others formed another Company by name M/s.Power Tech Engineering Services, L.L.C. Diverted orders of M/s.Power Engineering Services L.L.C., to M/s.Power Tech Engineering Services L.L.C, Utilized funds and Man Power of M/s.Power Engineering Services Paranthaman Exporters is entitled to get Rs.5.86 Crores from M/s.Power Engineering Services, L.L.C. Paranthaman Exporters had to pay Rs.7.22 Crores (Principle of Rs.5.86 Crores with penal interest) to the Punjab National Bank as they have obtained the said project cost.
Offences under Section 120-B, 420, 406, 409, 468, 471 and 506(ii) registered.
19.02.2007-Board of Directors of M/s.Power Engineering Services L.L.C. consented to sell the Company.
Passport of T.P.Thangaraj verified, the entries made in the passport authenticated the visit to Oman on 30.07.2006 and 19.02.2007.
Punjab National Bank, Erode to finance the project was ascertained to be incorrect and false.
Indian Embassy certified the documents.
19.02.2007-gave their consent to sell the M/s.Power Engineering, L.L.C. Father of the complainant who is the Managing Director of M/s.Power Engineering Services, L.L.C., has not preferred any complaint making any allegation.
Therefore, the case registered is referred as a mistake of fact as the issue involved is civil in nature.
"
9. The learned senior counsel for the revision petitioner cited the following citations in support of the revision case:-
(a) Roopchand Lal and another Vs. State of Bihar and another reported in AIR 1968 SCC 117 "There is no power, expressly or impliedly conferred, under the Code, on a Magistrate to call upon the police to submit a charge-sheet, when they haven sent a report under Section 169 of the Code, that there is no case made out for sending up an accused for trial. The functions of the Magistracy and the police are entirely different, and through, the Magistrate may or may not accept the report, and take suitable action, according to law, he cannot impinge upon the jurisdiction of the police, by compelling them to change their opinion, so as to accord with his view: AIR 1945 PC 18 and AIR 1955 SC 196 and AIR 1963 SC 447, Foll; AIR 1932 Mad 673 and AIR 1953 Assam 112 and AIR 1960 Madh Pra 12, Approved.
The investigation under the Code, takes in several aspects, and stages, ending ultimately with the formation of an opinion by the police as to whether, on the material covered and collected, a case is made out to place the accused before the Magistrate for trial, and the submission of either a charge-sheet, or a final report is dependant on the nature of the opinion, so formed. The formation of the said opinion, by the police, is the final step in the investigation, and that the final step is to be taken only by the police and by no other authority."
(b) KAMLAPATI TRIVEDI v. STATE OF W.B. reported in (1980) SCC 91 "15.In Abhirandan Jha v. Dines Mishra, this Court has pointed out the difference between the report by the Police filed under Section 170 of the Criminal Procedure Code which is referred to as a charge sheet and a report sent under Section 169 which is termed variously in different States as either 'referred charge', 'final report' or 'summary''. This Court observed that when the police submitted a report that no case has been made out for sending up accused for trial it is not open to the Magistrate to direct the police officer to file a charge sheet. In such circumstances, the Magistrate is not powerless as it is open to him to take cognizance of an offence on the report submitted by the Police under Section 190(1)(c) of the Criminal Procedure Code. Dealing with the position of the Magistrate when a report is submitted by the Police that no case is made out for sending a case for trial the Court observed that it is open to the Magistrate to agree with the report and close the proceedings. Equally it will be open to the Magistrate if he takes a different view to give directions to the police under Section 163(1) to make further investigations. After receiving a report from the police on further investigation if the Magistrate forms an opinion on the fact that it constitutes an offence he may take cognizance of an offence under Section 190(1)(c) notwithstanding the opinion of the police expressed in final report. This Court held in conclusion that there is no power expressly or impliedly conferred on the Magistrate under the Code to call upon the Police to submit a charge-sheet when they have sent a report under Section 169 of the Code that there is no case made out for sending the case for trial. The same view is expressed in the decision in Kamala Prasad Singh Vs. Hari Nath Singh. In R.N.Chatterji V. Havildar Kuer Sing, A.N.Ray, J, as he then was, followed the decision in Abhinandan Jha v. Dinesh Mishra (supra) and held that the provisions of the Criminal Procedure Code do not empower the Magistrate to direct the police officer to submit a charge-sheet but if he is of the opinion that the report submitted by the police requires further investigation, the Magistrate may order investigation, under Section 163 of the Criminal Procedure Code. It was held that directing further enquiry is entirely different from asking police to submit a charge-sheet. The only cource open for the Magistrate if he is not satisfied with the police report under Section 169 is to take cognizance of an offence under Section 190(1)(c) of the Criminal Procedure Code. It may be noted that in M.L.Sethi v. R.P.Kapur, it was held that if the Magistrate disagrees with the opinion of the Police he may proceed to take cognizance on the facts stated in the police report under Section 190(1)(b)."
(c) SARALA v. T.S.VELU reported in (2004) 4 SCC 459 "14.Following the above, a two-Judge Bench of this Court has stated in Abhinandan Jha v.Dinesh Mishra as follows:-
"We have already pointed out that the investigation, under the Code, takes in several aspects, and staged ending ultimately with the formation of an opinion by the police as to whether, on the material covered and collected a case is made out to place the accused before the Magistrate for trial, and the submission of either a charge-sheet, or a final report is dependant on the nature of the opinion, so formed. The formation of the said opinion, by the police, as pointed out earlier, is the final step in the investigation, and that final step is to be taken only by the police and by no other enquiry."
(d) MINU KUMARI v. STATE OF BIHAR reported in (2006) 4 SCC 359 "10.In Abhinandan Jha v. Dinesh Mishra, this Court while considering the provisions of Sections 156(3), 169, 178 and 190 of the Code held that there is no power, expressly or impliedly conferred, under the Code, on a Magistrate to call upon the police to submit a charge-sheet, when they have sent a report under Section 69 of the Code that there is no case made out for sending up an accused for trial. The functions of the Magistrate and the police are entirely different, and the Magistrate cannot impinge upon the jurisdiction of the Police, by compelling them to change their opinion so as to accord with his view. However, he is not deprived of the power to proceed with the matter. There is no obligation on the Magistrate to accept the report if he does not agree with the opinion formed by the Police. The Power to take cognizance notwithstanding formation of the opinion by the police which is the final stage in the investigation has been provided for in Section 190(1)(c)."
(e) HEMANT DHASMANA v. CBI reported in (2001) 7 SCC 536 "20.When the Special Judge has opted to order for a further reinvestigation the High Court should have stated to CBI to comply with that direction. Nonetheless, we are in agreement with the observation of the learned Single Judge of the High Court that the special Judge or the Magistrate could not direct that a particular police officer or even an officer of a particular rank should conduct such further investigation. It is not within the province of the Magistrate while exercising the power under Section 173(3) to specify any particular officer to conduct such investigation, not even to suggest the rank of the officer who should conduct such investigation."
(f) Shariff Ahmed & Others vs. State (NCT of Delhi), Crimminal Appeal No. of 2009 (arising out of SLP (Crl.)No.4543 of 2008, decided on 24.04.2009.
"Investigation of an offence is the field exclusively reserved by the executive through the police department, the superintendent over which vests in the State Government. It is the bounden duty of the executive to investigate, if an offence is alleged, and bring the offender to book. Once it investigates and finds an offence having been committed, it is its duty to collect evidence for the purpose of proving the offence. Once that is completed and the investigating officer submits report to the Court requesting the Court to take cognizance of the offence under Section 190 of the Code of Criminal Procedure, its duty comes to an end. On a cognizance of the offence being taken by the Court, the police function of investigation comes to an end subject to the provision contained in Section 173(8), then commences the adjudicatory function of the judiciary to determine whether an offence has been committed and if so, whether by the person or persons charged with the crime. In the circumstances, the judgment and order of the High Court was set-aside by this Court. In the instant case the investigation is in progress. It is not necessary for us to comment on the tentative view of the investigating agency. It is the statutory duty of the investigating agency to fully investigate the matter and then submit a report to the concerned Magistrate. The Magistrate will thereafter proceed to pass appropriate order in accordance with law. It was not appropriate for the High Court in these circumstances to issue a direction that the case should not only be investigated but a charge sheet must be submitted. In our view the High Court exceeded its jurisdiction in making this direction which deserves to be set-aside. While it is open to the High Court, in appropriate cases, to give directions for prompt investigation etc., the High Court cannot direct the investigating agency to submit a report that is in accord with its views as that would amount to unwarranted interference with the investigation of the case by inhibiting the exercise of statutory power by the investigating agency."
(g) K.CHANDRA SEKAR v. STATE OF KERALA reported in (1998) 5 SCC 233 "From Section 173 Cr.P.C. It is evident that even after submission of Police report under sub-section (2) on completion of investigation, the police has a right of "further" investigation under sub-section (8) but not "fresh investigation" or "reinvestigation". The dictionary meaning of "further" (when used as an adjective) is "additional; more; supplemental". "Further' investigation therefore is the continuation of the earlier investigation and not a fresh investigation or reinvestigation to be started ab initio wiping out the earlier investigation altogether. This conclusion is supported also by the fact that sub-section (8) clearly envisages that on completion of further investigation the investigating agency has to forward to the Magistrate a "further" report or reports and not fresh report or reports regarding the "further" evidence obtained during such investigation. Once it is accepted that an investigation undertaken by CBI pursuant to a consent granted under Section 6 of the Act is to be completed, notwithstanding withdrawal of the consent, and that "further investigation" is a continuation of such investigation which culminates in a further police report under Section 173(8), it necessarily means that withdrawal of consent in the instant case would not entitle the State Police, to further investigate into the case. To put it differently, if any further investigation is to be made it is the CBI alone which can do so, for it was entrusted to investigate into the case by the State Government. Resultantly, notification issued withdrawing the consent to enable the State Police to further investigate into the case is patently invalid and unsustainable in law."
(h) RAMCHANDRAN v. R.UDHAYA KUMAR reported in (2008) 5 SCC 413 "8.In view of the position of law as indicated above, the directions of the High Court for reinvestigation or fresh investigation are clearly indefensible. We, therefore, direct that instead of fresh investigation there can be further investigation if required under Section 173(8) of the Code. The same can be done by CB CID as directed by this Court."
(i) Rama Chaudhary v. State of Bihar, Crl.Appl.No. of 2009 (arising out of S.L.P.No.(Crl.)No.370 of 2009, decided on 02.04.2009 "9.The above said provision also makes it clear that further investigation is permissible, however, reinvestigation is prohibited. The law does not mandate taking of prior permission from the Magistrate for further investigation. Carrying out a further investigation even after filling of the charge-sheet is a statutory right of the Police. Reinvestigation without prior permission is prohibited. On the other hand, further investigation is permissible.
10. From a plain reading of sub-section (2) and sub-section (8) of Section 173, it is evident that even after submission of police report under sub-section (2) on completion of investigation, the police has a right to further investigation under sub-section (8) of Section 173 but no fresh investigation or reinvestigation. The meaning of Further is additional: more; or supplemental. Further investigation, therefore, is the continuation of the earlier investigation and not a fresh investigation or reinvestigation to be started ab initio wiping out the earlier investigation altogether. Sub-section (8) of Section 173 clearly envisages that on completion of further investigation, the investigating agency has to forward to the Magistrate a further report and not fresh report regarding the further evidence obtained during such investigation."
(j) KISHAN LAL v. DHARMENDRA BAFNA reported in (2009) 7 SCC 685 "13. It, is however, beyond any cavil that 'further investigation' and 'reinvestigation' stand on different footing. It may be that in a given situation a superior Court in exercise of its constitutional power, namely, under Article 226 and 32 of the Constitution of India could direct a "State" to get an offence investigated and/or further investigated by a different agency. Direction of a reinvestigation, however, being forbidden in law, no superior Court would ordinarily issue such a direction. Pasayat, J, in Ramachandran V. R. Udhayakumar, opined as under:(SCC p.415), "7. At this juncture it would be necessary to take note of Section 173 of the Code. From a plain reading of the above section it is evident that even after completion of investigation under Sub-section (2) of Section 173 of the Code, the police has right to further investigate under sub-section (8), but not fresh investigation or reinvestigation."
(k) REETA NAG v. STATE OF W.B. reported in (2009) 9 SCC 129 "Criminal Procedure code, 1973-Ss.173(2) & (8), 167(2) and 319-reinvestigation or further investigation under Section 173(8) at behest of defacto complainant Permissibility of, after filling of charge-sheet under Section 173(2), and framing of charges against some accused, other accused having been discharged Proper course to be followed by Magistrate-Held, having passed a final order framing charges against six accused and discharging remains ten accused, it was no longer within Magistrate's jurisdiction to direct investigation into the case Besides, investigating authorities had not applied for further investigation not only was Magistrate wrong in directing investigation on application made by the defacto complainant, but he also exceeded his jurisdiction in entertaining said application filed by the defacto complainant since no application had been made by the investigating authorities for conducting further investigation under Section 173(8) Cr.P.C., the other course of action open to Magistrate was to take recourse to provisions of Section 319 at stage of trial if any material is disclosed during examination of the witnesses during the trial Hence, no reason to interfere with order of High Court quashing order of Magistrate."
(l) REETA NAG v. STATE OF W.B. reported in (2009) 9 SCC 129 "26.In the instant case, the investigating authorities did not apply for further investigation and it was only upon the application filed by the defacto complainant under Section 173(8) was a direction given by the learned Magistrate to re investigate the matter. As we have already indicated above, such a course of action was beyond the jurisdictional competence of the Magistrate. Not only was the Magistrate wrong in directing a reinvestigation on the application made by the defacto complainant, but he also exceeded his jurisdiction in entertaining the said application filed by the defacto complainant"
The learned senior counsel after narrating the entire facts of the case by way of index and cited the case laws and entreats to set-aside the learned Magistrate's impugned order.
10. Learned counsel for the first respondent /State argued that the learned Magistrate has no power for ordering reinvestigation or further investigations. The Investigation Officer had duly conducted an enquiry and also recorded the statements of concerned parties and had come to the conclusion that there was no prima facie case against the accused, hence the compliant was closed as "MISTAKE OF FACT". The final report has also been filed before the learned Magistrate. The learned Magistrate had ordered a reinvestigation / further investigation in order to determine the veracity pertaining to the signature of Thangaraj. Once the said Thangaraj had admitted his signature at an enquiry, therefore, expert opinion ordered by the learned Magistrate is not warranted. The petition filed under Section 173(8) of Cr.P.C. is not maintainable. In support of this argument, the learned counsel for the State had cited the following judgments:-
(a) GANGADHAR JANARDAN MHATRE v. STATE OF MAHARASHTRA reported in (2004) 7 SCC 768 "8. In Abhinandan Jha v. Dinesh Kishra this Court while considering the provisions of Sections 156(3), 169, 178 and 190 of the Code held that there is no power, expressly or impliedly conferred, under the Code, on a Magistrate to call upon the police to submit a charge-sheet, when they have sent a report under Section 169 of the Code, that there is no case made out for sending up an accused for trial. The functions of the magistracy and the police are entirely different, and the Magistrate cannot impinge upon the jurisdiction of the police, by compelling them to change their opinion so as to accord with his view. However, he is not deprived of the power to proceed with the matter. There is no obligation on the Magistrate to accept the report if he does not agree with the opinion formed by the Police. The power to take cognizance notwithstanding formation of opinion by the police which is the final stage in the investigation has been provided for in Section 190(1)(c)."
(b) RAMA CHAUDHARY v. STATE OF BIHAR reported in (2009) 6 SCC 346 "15. Among the other sub-sections, we are very much concerned about sub-section (8) of Section 173 which read as under:-"
"173 (8) Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under sub-section (2) has been forwarded to the Magistrate and, where upon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of sub-section (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under sub-section (2)."
A mere reading of the above provision makes it clear that irrespective of the report under sub-section (2) forwarded to the Magistrate, if the officer in charge of the police station obtains further evidence, it is incumbent on his part to forward the same to the Magistrate with a further report with regard to such evidence in the form prescribed. The abovesaid provision also makes it clear that further investigation is permissible, however, reinvestigation is prohibited.
16. The law does not mandate taking of prior permission from the Magistrate for further investigation. Carrying out a further investigation even after filing of the charge-sheet is a statutory right of the police. Reinvestigation without prior permission is prohibited. On the other hand, further investigation is permissible."
(c) MITHABHAI PASHABHAI PATEL v. STATE OF GUJARAT reported in (2009) 6 SCC 332 "12. This Court while passing the order in exercise of its jurisdiction under Article 32 of the Constitution of India did not direct reinvestigation. This Court exercised its jurisdiction which was within the realm of the Code. Indisputably the investigating agency in terms of sub-section (8) of Section 173 of the Code can pray before the Court and may be granted permission to investigate into the matter further. There are, however, certain situations, where such a formal request may not be insisted upon.
13. It is, however, beyond any cavil that "further investigation" and "reinvestigation"stand on different footing. It may be that in a given situation superior court in exercise of its constitutional power, namely, under Articles 226 and 32 of the Constitution of India could direct a "State" to get an offence investigated and/or further investigated by a different agency. Direction of a reinvestigation, however, being forbidden in law, no superior court would ordinarily issue such a direction."
The learned counsel for the State further argued that the learned Magistrate had encroached on the first respondent's jurisdiction, which is a blatant error, hence, the learned counsel is entreating to cancel the impugned order of the learned Magistrate.
11. Learned senior counsel for the second respondent / defacto complainant argued that initially the agreement was entered into within the jurisdiction of the first respondent police. The criminal complaint levelled against the revision petitioner herein and few others viz., Mr.V.Vinayagam, Mr.V.Rajendran and Mr.V.Suresh and others before the Director General of Police, Chennai stating that the business of bore-well drilling started in and around 1980 in the name and style of M/s.Paranthaman Rock Drills, which is a partnership firm and thereafter forayed into other areas of business. This firm also manufacture erect and commission drilling rigs etc., also carrying out various contracts for clients in India and abroad. The business was booming and the firm was contemplating expansion abroad by the father of the second respondent, viz., Mr.Thangaraj, who was approached by the revision petitioner, who claimed that he possessed 15 years experience at the Gulf of Oman, in the field of maintenance and erection of electrical equipments for the oil and gas fields and similar areas of expertise, initially claiming that the revision petitioner wanted to purchase a drilling right and later as an acquaintance developed and came up with a business voucher, ideas and proposals. Therefore, the firm took him on as a General Manager and since the foraying into foreign countries require local expertise and also in compliance with the laws of the said country, so the second respondent's firm had to join hands with the local partners. Since the Sultanate of Oman possessed a colossal protection in terms of sub contracts and contracts for oil rigs and refineries, the country being a major O.P.E.C. (Oil and Petroleum Exporting Company). Hence, they contemplated starting business at the Sultanate of Oman as per the local laws of Oman, the Company was formulated called "M/s.Power Engineering Services Company, L.L.C.," with address as Post Box No.487, Pin Code No.112, Ruwi, Sultanate of Oman. In the said company, 70% of the shares are owned by M/s.Paranthaman Overseas Drillers Private Ltd., a sister concern of second respondent Company group in which the second respondent and his father Mr.T.P.Thangaraj are the Directors holding 70% of the shares, the balance shares of 30% is owned by the local J.V.Partner (Join Venture Partner) at Muscat, Sultanate of Oman, Mr.Sulaiman Musallam Said Al Tamimi and this was formed some time on 15.09.2004. The capital of the Company was R.O. 1,50,000/- at about Rs.1,80,00,000/- (Rupees One Crore and Eighty Lakhs only) as such, the company got established. Therefore, the original cause of action under the jurisdiction of the first respondent/Inspector of Police.
12. The learned senior counsel further submitted that "M/s.Paranthaman Overseas Drillers Private Limited" was incorporated before the Registrar of companies, Coimbatore, in which, the second respondent, his father, the revision petitioner herein, Mr.V.Vinayagam, Mr.V.Rajendran and Mr.V.Suresh are share holders as well as Directors. Therefore, the original jurisdiction and pecuniary jurisdiction are covered under the learned Judicial Magistrate, Tiruchengode as well as the first respondent Police.
13. The learned senior counsel further argued that the firm had availed credit facilities from Punjab National Bank, Erode to the tune of Rs.6,00,00,000/- (Rupees Six Crores only). Therefore, the second respondent herein can very well approach the first respondent Police to look into the complaint. The respondent Police had also registered a Criminal Case in Crime No.1 of 2008 on 06.10.2008 for the offence under Sections 120(B), 420, 406, 409, 468, 471 and 506(1) IPC. Aggrieved by the said Criminal Complaint, the revision petitioner had moved an anticipatory bail before this Court in Crl.O.P.No.17228 of 2010. This Court was pleased to grant bail to the revision petitioner, when the revision petitioner had not raised any objections regarding jurisdiction in his bail petition. The learned senior counsel further submitted that originally the case was registered in Crime No.1 of 2008 on the file of Inspector of Police, Crime Branch, subsequently, the case was transferred to C.B.C.I.D, Coimbatore, after the order of this Court, dated 20.06.2010 in Crl.O.P.No.10190 of 2010. At the time of transferring this case, the revision petitioner had not raised the point regarding the original jurisdiction. On the same cause of action, the second respondent had filed a Writ Petition in W.P.No.24639 of 2010 against the revision petitioner and two others, the same was entertained by this Court and disposed the writ petition, as such, the original jurisdiction arises in India i.e., under the first respondent's commanding area.
14. The learned senior counsel further submitted that the second respondent had posted two letters on 16.02.2007 addressed to the revision petitioner and demanded the outstanding dues. The revision petitioner after receipt of the said letters had sent a reply to his two letters, dated 18.02.2007 stating that after the completion of the project, he will get R.O.50,000/- and R.O.1,70,000/-. After receipt of the said amount, the revision petitioner had not settled the dues to the second respondent, as such, the revision petitioner had committed forgery, misappropriation of funds and cheating with conspiracy, therefore, the revision petitioner had committed offence under Section 420, 120(B). The learned senior counsel further submitted that there is a prima facie case, therefore, the Inspector of Police, C.B.C.I.D., Namakkal, registered a case against the revision petitioner, but the first respondent had not properly conducted an enquiry and also had not verified the entire records. Without a proper enquiry, the respondent Police had come to the conclusion that the case was closed as a "MISTAKE OF FACT" and final report filed before the learned Judicial Magistrate, Tiruchengode. In the said final report, there is a lacuna that arises, hence, the learned Magistrate had ordered for the further investigation of the case. Further, the learned Magistrate directed the first respondent to verify the entire records and also conduct further enquiry with the relevant witnesses and also directed the respondent to send relevant documents to the Forensic Department to determine the veracity of the signature pertaining to the father of the second respondent herein. On the basis of the learned Judicial Magistrate order, if the first respondent conduct further enquiry, the revision petitioner will not be prejudiced and the character of the complaint will not be altered. At the same time, if the further enquiry is not conducted, the second respondent will be prejudiced and placed in hardship with irreparable loss. The learned senior counsel further argued that there is a prima facie, case made out, hence the first respondent had proceeded on the case after registering the F.I.R. The learned Judicial Magistrate order is a valid one, after applying his judicial mind, the order was passed. The judicial Court is to apply a judicial mind and thereafter pass orders, the Court should not pass an order as per first respondent's expectation and in a mechanical fashion by way of mere endorsement.
15. Learned senior counsel further argued that there is no difference of opinion in the money configuration, but the revision petitioner had brazenly cheated the second respondent by way of creating false documents in the name of second respondent's father and impersonation.
16. The learned senior counsel had submitted the following citations in support of his case:-
(a) Kamlapati Trivedi v. State of West Bengal reported in 1980 SCC (Cri) 347 "Criminal Procedure Code, 1898-Section 173(3)-Courses open before Magistrate under - Except where Magistrate orders further investigation having not agreed with the police, he generally acts in the capacity of a Court."
(b) BHAGWANT SING v. COMMISSIONER OF POLICE reported in (1985) 2 SCC 267 "In a case where the Magistrate to whom a report is forwarded under Section 173(2)(i) decides not to take cognizance of the offence and to drop the proceedings or takes the view that there is no sufficient ground for proceeding against some of the persons mentioned in the First Information Report, the Magistrate must give notice to the informant and provide him an opportunity to be heard at the time of consideration of the report. Unnecessary delay on account of the difficulty or effecting service of the notice on the informant cannot be a valid objection against this view because in any case the action taken by the police on the First Information Report has to be communicated to the informant and a copy of the report has to be supplied to him under Section 173(2)(i). Moreover, the difficulty of service of notice of the informant cannot provide any justification for depriving the informant of the opportunity of being heard at the time when the report is considered by the Magistrate."
(c) UNION PUBLIC SERVICE COMMISSION v. S.PAPAIAH reported in 1997 SCC (CRI) 1112 "C.Criminal Procedure Code, 1973-S.173(8)-Power of Magistrate to direct further investigation after acceptance of final report and closure of the case-Shortcomings necessitating reinvestigation brought to the notice of the Magistrate by the informant but he refused to direct reinvestigation holding that he had no power to review the earlier order - Held, the Magistrate failed to exercise jurisdiction vested in him by law - He was not required to review the order but to order further investigation into the case which he was competent to do under Section 173(8)."
(d) SRI BHAGWAN SAMARDHA SREEPADA VALLABHA VENKATA VISHWANANDHA MAHARAJ v. STATE OF A.P reported in 199 SCC (CRI) 1047 "Criminal Procedure Code, 1973-S.173(8)-Power of Court to direct the police to conduct further investigation-Court not obliged to hear the accused before making such direction"
(e) STATE OF ORISSA v. MAHIMA reported in (2010)3 SCC (CRI) 611, (2007) 15 SCC 580 "Criminal Procedure Code,1973-S.173(8)-Further investigation-Long after submission of final form-Held, valid-Order for further investigation cannot be interfered with by High Court in exercise of its revisional power on ground that examining the witnesses who were examined at the time of the earlier investigation, recording their statements 5 1/2 years after submission of the final form and further investigation on the basis of such statement would amount to abuse of process of Court - Power under sub-section (8) is of widest amplitude and is not of such restrictive nature."
(f) Prabir Kumar Chatterjee v. State of W.B. and Ors. reported in 2008 CRI.L.J.841 "In the instant case the learned Magistrate assigned reasons as to why he was directing 'reinvestigation' of the case. It has been submitted by the learned State Advocate that although the word 'reinvestigation' has been used which has been used in the decision of the Supreme Court in Popular Muthiah (supra), to all intents and purposes it is actually a direction for 'further investigation' and I do not think that the order of the learned Magistrate is bade in law. The revisional application dwelt with some facts of the case which are not necessary to traverse here because the facts of the prosecution case can be traversed only."
(g) RAMA CHAUDHARY v. STATE OF BIHAR reported in (2009) 2 SCC (CRI) 1059 "Criminal Procedure Code, 1973-Ss.173(8) & (2) and 319 - "Further investigation"-scope of -"Further investigation" distinguished from "fresh investigation" or "reinvestigation" Summoning of witnesses named in supplementary charge-sheet-Permissibility-Held, even after submission of the police report under S.173(2) on completion of the investigation, the police has a right to "further" investigation under S.173(8) but not "fresh investigation" or "reinvestigation"-Meaning of "further" is additional, more, or supplemental - It is the continuation of the earlier investigation and not a fresh investigation or reinvestigation to be started into wiping out the earlier investigation and not a fresh investigation or investigation to be started ab initio wiping out the earlier investigation altogether - Further, held S.178(8) clearly envisages that on completion of further investigation, the investigating agency has to forward to the Magistrate a "further" report regarding the "further" evidence obtained during such investigation - Hence, order of the trial Court summoning the witnesses named in the supplementary charge-sheet cannot be faulted with - Further, law does not mandate taking prior permission from the Magistrate for further investigation and carrying out further investigation even after filing of the charge-sheet which is a statutory right of the police - Furthermore, material collected in further investigation cannot be rejected only because it has been filed at the stage of the trial-Hence, impugned judgment rejecting revision application filed against the order of trial Court summoning the witnesses based on supplementary charge-sheet calls for no interference. "
(h) KISHAN LAL v. DHARMENDRA BAFNA reported in (2009) 3 SCC (Cri) 611 "Criminal Procedure Code, 1973 - Ss.173(8) and 482 - Further investigation - Nature and scope - Instances when S.173(8) may be invoked-Interference by Courts - When permissible - Held, S.173(8) can be invoked (1) when new facts come to light or (2) when superior Courts find that the investigation is tainted and/or unfair or (3) when superior Courts find that it is required in the ends of justice - Practice and Procedure - Equity - Ends of justice - Further investigation"
"C.Criminal Procedure Code-1973-Ss.173(2), (8) and 200-Complainant's right and options against accused in criminal trial, stated viz., (1) the right to be given notice on filling of police report, (2) the right to file a protest petition, which may be treated as a complaint by Magistrate, and (3) the right to question th fairness of investigation and demand further investigation"
(i) REETA NAG v. STATE OF WEST BENGAL reported in (2009) 3 SCC (CRI) 1051 "Criminal Procedure Code, 1973-Ss.173(2) & (8), 167(2) and 319-Reinvestigation or further investigation under Section 173(8) at behest of defacto complainant - Permissibility of, after filing of charge sheet under Section 173(2), and framing of charges against some accused, other accused having been discharged - Proper course to be followed by Magistrate - Held, having passed a final order framing charges against six accused and discharging remaining ten accused, it was no longer within Magistrate's jurisdiction to direct reinvestigation into the case - Besides, investigation authorities had not applied for further investigation - Not only was Magistrate wrong in directing reinvestigation on application made by the defacto complainant, but he also exceeded his jurisdiction in entertaining said application filed by de facto complainant - Since no application had been made by investigating authorities for conducting further investigation under S.173(8) Cr.P.C., the other course of action open to Magistrate was to take records to provisions of S.319 at stage of trial if any material is disclosed during examination of the witnesses during the trial - Hence, no reason to interfere with the order of the High Court quashing order of Magistrate."
(j) SIVANMOORTHY v. STATE reported in (2011)1 SCC (CRI) 295, (2010) 12 SCC 29 "Criminal Procedure Code, 1973 - Ss.173(8) and (2) Scope and applicability of S.173(8) refers to the term "further investigation", however, the term has not been defined in Cr.P.C.-It must therefore depend on the facts of each case as culled from record - Nevertheless, reiterated, further investigation and not a reinvestigation can be made - Nature of investigation whether amounts to a further investigation or a reinvestigation has to be seen from nature of investigation conducted - On facts, investigation conducted by P.W.27 (SP, CB CID), on directions of High Court, was in the nature of further investigation - Hence, conviction of appellant-accused, by looking into evidence collected by PW 27 based on such investigation, held, proper - Penal Code, 1860, Ss.302, 148 and 341."
(k) S.Kandasamy & Ors. Vs. K.Kalimuthu and State by the Inspector of Police, Namakkal , Crl.R.C.No.1450 of 2007, dated 17.08.2011 "6. On receipt of a final report, a Magistrate has three options:-
(a) He may accept the report;
(b) He may reject the same, take cognizance / refuse to take cognizance for an offence mentioned / not mentioned in the final report; and
(c) He may, in a fit case, direct further investigation"
Some of the judgments which recognize the right of the Magistrate to direct further investigation are:-
"(i) (1980) 2 SCC 91 (Kamlapati Trivedi v. State of West Bengal)
(ii) (1999) 5 SCC 740 (Sri Bhagwan Samrdha Sreepada Vallabha Venkatavishwanandha Maharaj v. State of A.P. and others);
(iii)(2001) 7 SCC 536 (Hemant Dhasmana v.Central Bureau of Investigation and another); and
(iv) (2009) 7 SCC 685 (Kishan Lal v. Dharmendra Bafna and another) It may not be out of place to inform that the decision in Kamalpati Trivedi's case is that of a three judge Bench of the Hon'ble Apex Court.
7. The above list merely is illustrative. Against a catena of judgments which inform / suggest that further investigation may be directed by the Magistrate acting suo motu, the judgment in (2009) 9 SCC (Reeta Nag v. State of West Bengal & Ors., stands alone. In 1997 (7) SCC (Union Public Service Commission v. S.Papaiah), the Hon'ble Apex Court found improper the action of the Magistrate in accepting the final report and closing the case despite the informant having brought to the notice of the Magistrate the shortcomings necessitating further investigation. It has for long been settled law that before acceptance of a final report seeking closure of a case it is necessary to put the informant / defacto complainant on notice (see 1985 (2) SCC 537 (Bhagwant Sing v. Commissioner of Police). If the Magistrate upon issuing such mandatory notice and hearing the informant / defacto complainant cannot direct further investigation in an appropriate case then the very purpose of issue of notice before acceptance of the final report would stand lost. It may also require mention that in the Reeta Nag's case it has been observed that the Magistrate cannot suo motu direct further investigation under Section 173(8) Cr.P.C., or direct re-investigation in the case on account of the bar of Section 16792) of the Code. Section 167(2) Cr.P.C. relates to remand of the accused.
Thus, it would be appropriate to follow traditional wisdom and inform that power do lie with the Magistrate to order further investigation in an appropriate case.
(l)THOTA VENKATESWARLU V. STATE OF ANDHRA RADESH reported in (2011) 3 SCC (CRI) 772, (2011) 9 SCC 527 "Criminal Procedure Code, 1973, S.188 proviso and S.157 - Applicability of S.188 proviso - Offences committed outside India by Indian citizen - Requirement of previous sanction of Central Government for inquiring into or trying such offences in India - Situation where accused committing some offences outside India and some within India, considered - Held, S.188 proviso regarding sanction, is a fetter on powers of investigating authority - However, such fetters are imposed only when stage of trial is reached, which clearly indicates that no sanction is required till commencement of trial - Accordingly, up to stage of taking cognizance, no previous sanction would be required from Central Government in terms of S.188 proviso - However, trial cannot proceed beyond cognizance stage without such previous sanction - Therefore, Magistrate is free to proceed against accused in respect of offences committed in India and to complete trial and pass judgment therein, without being inhibited by other offences committed outside India, for which sanction would be required before trial can commence.
Penal Code, 1860 - S. 4 - Extension of Provisions of I.P.C. to extr-territorial offences committed by Indian Citizen - Limitation regarding - Held, offences committed outside India by Indian Citizen would also be amendable to provisions of I.P.C., but it would be subject to limitation imposed under S.188 proviso Cr.P.C. - Criminal Procedure Code, 1973 - S.188 proviso."
17. Per contra, the learned senior counsel for the revision petitioner further argued that as per the statement of second respondent's father-Thangaraj, he has not denied the attestation of signature in the minute statement of meetings dated 30.07.2006 and 19.02.2007. Further, the said Thangaraj had categorically admitted that he and his partners had signed in the two resolutions. Therefore, the expert opinion from the Forensic Department is not necessary as observed by the learned Magistrate.
18. In reply, the learned senior counsel for the second respondent argued that the attestation of signatures was in a separate sheet, therefore, a strong suspicion arises in this case in order to sort out this type of problem which shows inconsistency, therefore, the expert opinion from the Forensic Department to determine the genuinety of Mr.Thangaraj's signature is absolutely necessary, hence the observation of the learned Magistrate in his order. Therefore, the impugned order is not warranted.
19. On verifying the facts and circumstances of the case and on hearing the arguments of the learned senior counsels and also the learned counsel for the state, the view of this Court:-
(i) The accused had moved an anticipatory bail on 30.07.2010, the same was ordered. On that day, the respondent police had not given any instructions stating that the criminal case was closed as a "MISTAKE OF FACT" and the final report was filed on 20.04.2010, the learned Magistrate has ordered an enquiry for further investigation.
(ii) The defacto complainant had filed a Crl.O.P.No.10190 of 2010 for seeking direction for transferring the investigation of the case in Crime No.1 of 2008 from the office of the Deputy Superintendent of Police, Crime Branch, C.I.D., to any other C.B.C.I.D. office. The same was ordered and the case was transferred to the file of C.B.C.I.D. of Coimbatore for proper investigation. The said order passed on 28.06.2010, which is in force. The learned Magistrate's order dated 20.04.2010 made in Crl.M.P.No.1024 of 2010 wherein, the Inspector of Police attached to the District Crime Branch, C.I.D., Namakkal was a party as respondent. Thereafter, this Court has transferred the case for investigation. So, this Court's order passed in Crl.O.P.No.10190 of 2010, dated 28.06.2010 is in force and become final. Therefore, the revision petitioner is in the clutches of the C.B.C.I.D., Coimbatore, as such, the revision is not maintainable.
(iii) The defacto complainant had filed a writ petition in W.P.No.24639 of 2010 directing the Regional Passport Officer, Shastri Bhavan and the Inspector of Police, Crime Branch, CID, Coimbatore, to impound the passport bearing old No.A4341923 and New No.Z1753515 of the accused viz., S.Periyasamy. In this writ petition, this Court had granted interim direction to the said officers to prohibit the departure of the accused from India. This interim order shows that the defacto complainant is having a prima facie case. Subsequently, this Court had disposed the writ petition on condition that the accused has to file an affidavit of undertaking before the Inspector of Police, Crime Branch, C.I.D., Coimbatore with regard to the date of his leaving India to the Gulf of Oman and with regard to his return from Gulf of Oman to India with two securities, who own immovable properties worth of Rs.1 crore or more in Coimbatore. This conditional judicial order passed only after the prima facie case was made.
(iv) The revision petitioner's firm viz., "Power Engineering Services Company, L.L.C" have written two letters to "M/s.Paranthan Exporters" on 18.02.2007. The first letter contains the following portion:-
"(1) We are in receipt of your letter dated 16th February 2007 and would like to inform you the reason for not making the payment in time. As already known to you, we had completed the drilling job under the Mukhaizna project. However, due to the non-availability of the materials to be supplied by the client which is a part of the contract to complete our job, we are unable to raise any invoice as per the milestone payment schedule. Once we receive the entire materials and complete the project, we will be able to claim the money against the drilling activity. The expected value is RO.50,000/-."
Another letter of the contents are as follows:-
"Due to the non-availability of the materials from our clients, we are unable to complete the projects as per our construction schedule. Hence, one of the major projects from M/s.AI Hassan Engineering is not fully completed. We could complete 75% of the project and the balance is expected to be completed on receipt of the materials. Moreover, our client has held 20% of the payment as retention for the job already completed. We expect the total value of realization during completion of the project to be RO.1,70,000/-."
Regarding the communications of the two letters of the revision petitioner, there is no answer in this charge sheet. Therefore, this remains the crucial issue and in order to find out the issues further enquiry is necessary.
(v) As per the F.I.R., one of the allegations that the accused had created a false document and received the attestation from four persons from Gulf of Oman (Muscat) for which, no statement has been collected from the attestors.
(vi) The second respondent, defacto complainant has filed the protest petition under Section 173 (8) of Cr.P.C., which is not appropriate, since the facts of the case is the main issue between the parties in order to sort out the disputes.
20. On verifying the facts and circumstances of the case and arguments advanced by the learned senior counsels on either side and on perusing the connected records, citations and scrutinizing the impugned order of the learned Magistrate, the Court's view as mentioned from Clause 1 to 6, this Court does not find any infirmity in the impugned order passed in C.M.P.No.1024 of 2010 by the learned Judicial Magistrate, Tiruchengode, dated 20.04.2010, hence this Court is not warranted to interfere, therefore, the above revision is to be dismissed and accordingly adhered to. Consequently, the impugned order is confirmed.
21. Resultantly, the above Criminal Revision No.1191 of 2010 is dismissed. As a consequence the order passed in C.M.P.No.1024 of 2010, on the file of the Judicial Magistrate, Tiruchengode, dated 20.04.2010 is confirmed. The connected miscellaneous petition is closed.
r n s To
1. The Inspector of Police, Government of Tamil Nadu, Crime Branch CID, Namakkal.
2. The Judicial Magistrate, Tiruchengode