Madras High Court
Chandran Ratnaswami vs The State on 17 September, 2014
Author: K.B.K.Vasuki
Bench: K.B.K.Vasuki
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 17.09.2014 CORAM: THE HON'BLE Ms.JUSTICE K.B.K.VASUKI Crl.O.P.No.14827 of 2013 and M.P.No.1 of 2013 Chandran Ratnaswami .. Petitioner Vs. 1.The State rep. by the Inspector of Police, Central Crime Branch Team I, O/o. Commissioner of Police, Egmore, Chennai -8. 2.K.C.Palanisamy .. Respondents Criminal Original Petition is filed under Section 482 of the Code of Criminal Procedure, praying to call for the records culminating in FIR in Cr.No.160 of 2013 on the file of the first respondent and quash the same. For Petitioner : Mr.J.Sivanandaraj for Mr.V.Sankaranarayanan For Respondents : Mr.C.Emalias, APP (R1) Mr.R.Ashraf Khan (R2) O R D E R
The present petition is filed by A1 to quash the FIR in Cr.No.160/2013 registered on 6.5.2013 for the offences under sections 465, 466, 471, 474 and 120(b) IPC, on the basis of the complaint given by the second respondent defacto complainant.
2.The allegations raised in the complaint are that the accused 1 to 3 have conspired together and committed an act of forgery and falsification of records by altering the power of attorney purportedly executed by A1 in favour of A2 Ravichandran and the same was used and misrepresented to register the false complaint in Cr.No.776/2007 culminated as CC No.3813 of 2010 against the complainant, at the instigation of A3, based on which, the complainant was, in the course of investigation into the same, arrested and detained in judicial custody for a period 87 days and the same resulted in loss of his reputation, thereby, the accused committed the offences as referred to above.
3.According to the petitioner herein, neither the complaint nor the counter filed by the second respondent herein does reveal the manner in which the alleged act of forgery is committed by the accused and the same is sought to be explained only in the written submission. The written submission filed by the second respondent proceeds to say that the accused persons executed two separate power of attorneys, by using two separate stamp papers bearing similar number, one of which was produced in Cr.No.776/2007 and other one was produced in Crl.OP.No.3141/2013 and the accused have been continuing to use the forged documents for carrying out various unlawful acts and the same is to be construed as serious offence against the State and the same is likely to seriously affect the general public at large.
4.Whereas, A1 has come forward with the present quash petition by stoutly denying the allegations raised in the FIR. According to the petitioner, the second respondent is stranger to the deed of power of attorney and the deed of power of attorney, which is the subject matter of the present complaint, was executed by A1 Chandran Ratnaswami in favour of A2 Ravichandran in his own individual capacity and thereafter, the same power of attorney was altered as one on behalf of the company by name O.R.E. Holdings Private Limited and as the correction was made in respect of their own document, which is admitted and accepted by the principal and power of attorney holder and as the document was unregistered document and was used only for lodging the complaint on behalf of the principal, no act of forgery or cheating is involved.
5.It is also the case of the petitioner that the second respondent has already agitated the same issue by way of more than one complaint with identical allegations regarding the act of forgery of power of attorney. The first complaint dated 13.2.2013 was refused to be registered as FIR by the police and the second respondent approached this court by way of Crl.OP.No.3883/2013 for registering the complaint. Pending the same, the second complaint with the same allegations was laid before the Commissioner of Police, Egmore, Chennai on 20.2.2013 against A1 Chandran Ratnaswami, A2 Ravichandran and M/s.ORE Holdings Limited, Mauritius represented by Chandran Ratnaswami as its Director, Prem Watsa and Paul Rivett as its Advisors and the same was received vide reference No.2972/COP/Visitors/2013 and the same was enquired into by the Inspector of Police, Team II, CCB, Egmore, Chennai, who after enquiry filed final report on 3.4.2013 to the effect that the power of attorney dated 17.5.2006 is the document of the accused and the accused have every right to make necessary alteration in their own document and no prejudice is caused to the defacto complainant, as such, no case is made out and no further action is warranted. Suppressing the earlier complaints, the second respondent has filed the present complaint in Crl.M.P.No.2484/2013 under section 156(3) Cr.P.C for direction to the Central Crime Branch to register the complaint and the same was thereafter, forwarded to CCB Team II and registered as FIR in Cr.No.160/2013 and the same is hence not maintainable.
6.The learned counsel for the petitioner has also relied on the following judgments in support of the relief sought for in this petition: (i)AIR 1963 SC 1572 (Dr.Vimla v. Delhi Administration); (ii)(2002) 1 SCC 234 (M.M.T.C Ltd and another v. Medchil Chemicals and Pharma (P) Ltd and another); (iii)AIR 2003 SC 702 (Mahesh Chand v. B.Janardhan Reddy and another); (iv)AIR 2005 SC 38 (Poonam Chand Jain and another v. Fazru); (v)(2009) 8 SCC 751 (Mohammed Ibrahim and others v. State of Bihar and another); (vi)AIR 2009 SC 2380 (Hira Lal and others v. State of UP and others); (vii)(2010) 1 SCC 322 (Parminder Kaur v. State of Uttar Pradesh and another); (viii)(2012) 1 SCC 130 (Shiv Shankar Singh v. State of Bihar and another); (ix)AIR 2013 SC 1048 (Ravinder Singh v. Sukhbir Singh and others) and (x)1998 Crl.LJ 3700 (Thanchand and others v. State of Rajasthan and another) (High Court of Rajasthan).
7.Per contra, the learned Additional Public Prosecutor representing the first respondent and the learned counsel for the second respondent defacto complainant would seriously oppose the relief sought for herein. According to them, the inherent power of the High Courts under Section 482 Cr.P.C though wide, has to be exercised sparingly, carefully and with great caution.
8.Heard the rival submissions made on both sides.
9.As already stated above, the allegations raised in the complaint are in respect of the alleged act of forgery by creating two power of attorneys of same dates by making use of the forged non judicial stamp papers bearing same serial numbers. Whereas, the power of attorneys enclosed at pages 59 and 62 of the petitioner's typed set dated 10.6.2013 would reveal that the power of attorneys filed herein were executed by A1 Chandran Ratnaswami as one in the individual capacity and another in the capacity of Director of the company by name, ORE Holdings Limited in favour of A2 Ravichandran. While the first document executed in the individual capacity was used for registering the complaint in Cr.No.776/2007 culminated as CC.No.3813 of 2010 pending on the file of the Chief Metropolitan Magistrate, Egmore, Chennai against the second respondent herein by A2 on behalf of A1, the same was altered as one on behalf of the company and the altered power of attorney was used in filing Crl.OP.No.3141/2013 by A1 through A2 as his attorney. In short, the same power of attorney originally executed in individual capacity by A1 in favour of A2, after having been used, for filing complaint was thereafter altered as if executed by A1 company in favour of A2 and has been used in Crl.OP.No.3141/2013.
10.As rightly argued by the learned counsel for the petitioner, the act committed by the accused in merely altering their own document, which is unregistered one and to make use of the same for different purpose, that too with the knowledge of the Principal and the power of attorney and the same is also accepted by Principal and power of attorney. If that is so, it cannot be said that it was a false document and was prepared in the manner as defined under section 464 IPC so as to constitute an act of forgery and thereafter to attract the offences punishable under sections 465, 466, 471 and 474 IPC.
11.The learned counsel for the petitioner, in support of his contention that the alteration of their own document with the knowledge of every persons associated with the document, would not attract the ingredients of Section 464 for making a false document and involve an act of forgery, relied on the judgment reported in (2009) 8 SCC 751 (Mohammed Ibrahim and others v. State of Bihar and another), wherein, the Hon'ble Apex Court has in para 13 observed that the condition precedent for an offence under sections 467 and 471 is forgery and the condition precedent for forgery is making a false document or false electronic record or part thereof. The Apex Court in para 14 analysed Section 464 of the Penal Code, which divides the false documents into three categories, as per which, a person is said to have made a false document, if (i)he made or executed a document claiming to be someone else or authorised by someone else; or (ii)he altered or tampered a document; or (iii)he obtained a document by practising deception, or from a person not in control of his senses. In the present case, the act of alteration of document is concerned, the same, as rightly argued by the learned counsel for the petitioner, does not fall under any of the categories as above referred to. It is the case of alteration by simplicitor by the same principal in respect of same power of attorney, but for different purpose. There is absolutely no fraudulent or dishonest intention to cause damage or injury to the public or to any person or to support any claim or title or to cause any person to part with property or to enter into any express or implied contract or with intent to commit any fraud.
12.As a matter of fact, this is what the conclusion arrived at by the Investigating Officer in the course of enquiry in the earlier complaint with identical allegations and in his earlier report submitted to CCB, Chennai. The earlier complaint was closed on the ground that no case is made out and no further action is warranted. This is the second complaint filed in respect of the same allegations and the same does not whisper anything about the earlier complaint and closure of the same. The complaint simply proceeds as if no action has been taken in the earlier complaint and his attempts did not yield any fruitful effect. The second respondent has not mentioned anything about the first complaint lodged on 13.2.2013 and pendency of Crl.OP.No.3883/2013 pending before the High Court for directing registration of the FIR. When the first complaint is pending for registration, the second complaint is filed by suppressing the first complaint. The third complaint registered as FIR in Cr.No.160/2013 is lodged by suppressing the earlier complaints and the same would disclose the malafide on the part of the second respondent and ulterior motive with which successive complaints came to be filed to harass the petitioner/accused.
13.The learned counsel for the petitioner has also drawn the attention of this Court to the conduct of the second respondent in instituting other proceedings by invoking company jurisdiction and criminal jurisdiction and the same, according to the learned counsel for the petitioner, is one of the attempts to take vengeance against the petitioner herein. It is now brought to the notice of this court that the second respondent defacto complainant has already approached the company Law Board by way of CP.No.65 of 2005 for various reliefs against M/s.Cheran Enterprises Private Limited (CEPL) on account of certain purported acts of oppression and mismanagement in the affairs of CEPL, by breach of a joint venture Agreement dated 3.1.2004 on the part of (i)CEPL (ii)ORE Holdings Limited (iii)Ramaswamy Athappan (iv)Chandran Ratnasamy (v)Nandakumar Athappan and (vi)M/s.Odyssey America Re-insurance Corporation. M/s.ORE Holdings Limited also filed CP.No.76/2005 regarding the alleged acts of oppression and mismanagement indulged by the second respondent defacto complainant in the affairs of CEPL. Both the company petitions were disposed of by issuing consolidated order, with a view to bringing to an end the grievances of CG Holdings, KCP, ORE and Athappan and the same was challenged by way of OSA Nos.2 to 5 and 258 of 2009 and Company Appeal Nos.21, 25 to 27 and 29 of 2009 and the company appeals filed by ORE and Athappan were allowed.
14.In the mean while, the second respondent filed a complaint before the Economic Offences Wing, Chennai, alleging that the petitioner and other parties cheated the second respondent of the funds due to CEPL. However the complaint was not registered by the police and the second respondent filed the petition under Section 482 Cr.P.C for registration of the complaint, which was subsequently withdrawn by the second respondent herein. Thereafter, the second respondent filed Crl.MP.No.6096 of 2006 before the District Munsif cum, Judicial Magistrate, Perundurai for the same offences of cheating etc. against the petitioner herein and the same was after enquiry dismissed as not believable and to wreck vengeance against other parties. The second respondent filed third complaint on 19.3.2007 for the same issue and the same was registered as FIR in Cr.No.7 of 2007 by the Economic Offences Wing, Chennai. Challenging the same, Crl.OP was filed before this court to quash the proceedings and pending Crl.OP.Nos.12695 and 19384 of 2007, the police closed the case in Cr.No.7/2007 as mistake of fact and based on the same, the Crl.OPs were also closed. However, the case in Cr.No.7/2007 was again reopened, as per the order made in CMP.No.1338/2012 by the Judicial Magistrate No.III, Erode and was taken on file as CC.No.162/2012 and the Crl.OP. was filed for quashing the same and the same was gone to Supreme Court and the Supreme court quashed the proceedings in CC No.162/2012 by way of SLP (Crime) No.13120/2013 culminated as CA.No.4540 of 2013 etc batch. The Supreme Court, while doing so, has in para 52 referred to various proceedings instituted by the second respondent and has referred to the observations of the High Court made in the writ petitions that the modus operandi of the second respondent herein, was to defraud the person or entity and thereafter approached the courts with multiple proceedings in order to distract attention from his own misdeeds. It is also observed in para 53 that neither the High court nor the Magisterial Court have ever applied their mind and considered the conduct of the respondent and continuance of the criminal proceedings in respect of the disputes, which are Civil in nature and finally adjudicated by the Competent Authority i.e., the Company Law Board and High Court in Appeal. The Hon'ble Supreme Court in para 54 expressed its definite opinion that the complainant has manipulated and misused the process of court so as to deprive the appellants therein from their basic right to move free anywhere inside or outside the country and moreover, it would be unfair if the appellants therein are to be tried in such criminal proceedings arising out of alleged breach of a Joint Venture Agreement specially when such disputes have been finally resolved by the Court of competent jurisdiction and hence allowing the criminal proceedings arising out of FIR No.7/2007 to continue would be an abuse of process of the court and therefore for the ends of justice, such proceedings ought to be quashed.
15.The learned counsel for the petitioner by relying on the observations of the Hon'ble Supreme Court as stated above, has drawn the attention of this court to the malicious intention and ulterior motive with which the present complaint came to be filed in respect of alteration of their own document, to which the second respondent defacto complainant is third party. The learned counsel for the petitioner has in this regard sought to argue that the present complaint which is third in nature, is not maintainable by reason of pendency of Crl.OP.3883/2013 filed under section 482 for direction to register the first complaint dated 13.2.2013 for the same cause of action. The learned counsel for the petitioner has also cited the following authorities in support of his contention that the present complaint, which is third in nature, on the same set of facts, is not maintainable: (i)AIR 2003 SC 702 (Mahesh Chand v. B.Janardhan Reddy and another); (ii)AIR 2005 SC 38 (Poonam Chand Jain and another v. Fazru); (iii)AIR 2009 SC 2380 (Hira Lal and others v. State of UP and others);(iv)(2012) 1 SCC 130 (Shiv Shankar Singh v. State of Bihar and another); and (v)AIR 2013 SC 1048 (Ravinder Singh v. Sukhbir Singh and others). In all these cases, the Hon'ble Apex Court has laid down the principle that the second complaint is maintainable only on fresh facts and the second complaint on the same facts is not maintainable.
16.The learned counsel for the petitioner has further cited the authority reported in AIR 1963 SC 1572 (Dr.Vimla v. Delhi Administration) to show as to how the act of alteration does not amount to fraud. The Hon'ble Apex Court in the said judgment, is of the definite view that a person is said to do a thing fraudulently if he does that thing with intent to defraud but not otherwise and the word defraud includes an element of deceit and it involves two elements namely, deceit and injury to the person deceived. In the present case, as rightly pointed out by the learned counsel for the petitioner, both the elements are missing.
17.Further, the observation of the Hon'ble Supreme Court in the decision reported in (2010) 1 SCC 322 (Parminder Kaur v. State of Uttar Pradesh and another) cited on the side of the petitioner is squarely applicable to the facts of the present case. In the case dealt with by the Supreme Court, the appellant was an old lady and was prosecuted for tampering with certified copy of revenue records, wherein dates 6.5.2002 and 7.5.2002 were alleged to have been altered as 16.5.2002, 17.5.2002 and 27.5.2002 and tampered copy was made use of in the civil suits. The Apex Court, on appreciation of facts, found that the appellant was not to gain anything in the civil suits by tampering with the dates and the facts also did not disclose the commission of offences under sections 420, 467, 468 and 471 IPC. The Supreme Court is of the further view that such changes were therefore innocuous and did not give rise to any offences. The same observation is squarely applicable to the act and nature of the alteration involved in the present case.
18.That being the legal and factual aspects, the same would in my considered view, support the stand taken by the petitioner herein that the allegations do not make out any offence for the act of forgery and the successive complaints came to be filed only to harass the petitioner. In that event, there is no jurisdiction for this Court to allow the criminal proceedings to go on, not only against the petitioner herein, but also against other accused, who are the non-petitioners and the continuance of the criminal proceedings is but abuse of process of law and to secure the ends of justice, the FIR in Cr.No.160 of 2013 is hence liable to be quashed in its entirety.
19.In the result, this criminal original petition is allowed and the FIR in Cr.No.160 of 2013 stands quashed in entirety. Consequently, connected miscellaneous petition is closed.
Index :Yes/No 17.09.2014
Internet:Yes/No
rk
To
1.The Inspector of Police,
Central Crime Branch Team I,
O/o. Commissioner of Police,
Egmore, Chennai -8.
2.The Public Prosecutor, High Court, Madras-104.
K.B.K.VASUKI, J
rk
Crl.OP.No.14827 of 2013
17.09.2014