Karnataka High Court
Sri Prasanna Vasudev Ghatage vs The State Of Karnataka on 2 August, 2012
Author: Anand Byrareddy
Bench: Anand Byrareddy
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 2nd DAY OF AUGUST 2012
BEFORE
THE HON'BLE MR. JUSTICE ANAND BYRAREDDY
CRIMINAL PETITION No.2353/2012
CONNECTED WITH
CRIMINAL PETITION No. 10512/2012,
CRIMINAL PETITION No.10513/2012 AND
CRIMINAL PETITION No. 10777/2012
IN CRIMINALPETITION No.2353/2012
BETWEEN:
Sri Prasanna Vasudev Ghatage,
Age : 50 Years, Occ : Business,
R/o: 1088/B, Prerna Homes, Ranade Colony,
Hindwadi,
Dist: Belgaum. .. PETITIONER
(By Sri Anoop Chaudhari, Sri.June Chaudhari, Senior
Advocates for Santosh B.Malagoudar, Adv.)
AND:
1. The State of Karnataka
Through P S I,
2
Yellapur Police Station,
Represented by the State Public
Prosecutor,
SPP Office
Circuit Bench, Dharwad.
2. Dream Logistics Company (India) Private Ltd.
Represented by its Authorised Officer
Sri Mahabaleshwar S/o Govinda Hegde,
Age: 34 Years, Occ: General Manger,
R/o: Dream Chambers Near Bus Stand,
Yellapur Town,
Tal: Yellapur,
Dist: Uttar Kannada. . . . .RESPONDENTS
(By Sri P.H.Gotkhindi, Government Pleader for R1,
Sri Ravi B.Naik, Senior Advocate for R2)
Criminal Petition No.2353/2012 is filed under Section
482 of the Criminal Procedure Code, 1973 by the advocate for
the petitioner praying that this Hon'ble Court may be pleased to
quash the FIR No. 20/12 in private complaint No.76/11 pending
on the file of JMFC, Yellapur, U.K. in so far as the present
petitioner is concerned.
IN CRIMINALPETITION No.10512/2012
BETWEEN:
1. Mr.Anil Kumar,
S/o Sh.Jai Dev Kumar,
Aged 58 Years,
R/o 21, Amrita Shergill Marg,
New Delhi - 110003.
3
2. Mr.Rajesh Saigal,
S/o Sh.O.P.Saigal,
Aged : 45 Years,
R/o.A-203, Bhagyawan Apartment,
Mayur Vihar, Phase-I,
New Delhi-110 091.
3. Mr.Dilip Nichaldas Gianchandani,
Aged 52 Years,
R/o. 16, Aradhana Enclave,
Sector 13 RK Puram,
New Delhi 110 066.
4.Mr.Swami Prasad Sarougi,
S/o Sh.Pyare Lal Sarougi,
Aged 63 Years,
R/o Flat No.705-706,
Building No.9, Millennium Park,
Hariom Park, Mulund East,
Mumbai - 400081.
Maharashtra.
5. Mr.Omar Kayaam Mohamed Hashim,
S/o Aboobaker Lebbe Mohmed Hashim,
Aged 55 Years,
R/o B-43, DLF, The Summit Com1plex,
Gurgaon-122009,
Haryana. .... PETITIONERS
(By Sri. Pinaki Misra, Senior Advocate for Sri.Prabhakar
A.Kulkarni, Advocate)
AND:
1. The State of Karnataka, through
Senior Inspector of Police,
Yellapur Police Station,
4
Uttar Kannada District,
Yellapur, Karnataka.
2. Dream Logistics Company (India) Pvt Ltd.,
A company incorporated under the
Companies Act, 1956 having its registered
office at Dream Chambers, Near Bus Stand,
Yellapur-581 359. Represented by its
Authorised Officer Sri. Mahabaleshwar
S/o Govinda Hegde,
Age: 34 Years, Occ: General Manger,
Dream Chambers (India) Pvt.Ltd.,
Yellapur, Tal: Yellapur,
Uttar Kannada District.
Karnataka State. . . . .RESPONDENTS
(By Sri P.H.Gotkhindi, Government Pleader for R1,
Sri.Ravi B.Naik,Senior Advocate for Sri J.Basavaraj,
Sri.B.C.Jnanayya, Advocate for R2)
Criminal Petition No.10512/2012 filed under Section 482
of the Criminal Procedure Code, 1973 is seeking that the
Private Complaint No.76/2011 dated 27.12.2011 (Annexure
'Q') filed by M/s.Dream Logistics (India) Pvt.Limited pending
on the files of the Ld.Judicial Magistrate First Class at
Yellapur, Uttar Kannada District,Yellapur, Karnataka and the
Order dated 06.02.2012 (Annexure Q), passed by the
Ld.Judicial Magistrate First Class at Uttar Kannada District,
Yellapur,Karnataka in Private Complaint No.76/2011 and as
noted in the Private Complaint No.76/2011 directing the
Yellapur Police to investigate the said private complaint the
FIR No.20/2012 (Annexure 'R') as registered by the Yellapur
Police, Uttar Kannada Disrict, Yellapur, U/Sec 406, 467, 468,
471, 120-B and 420 be quashed.
5
IN CRIMINALPETITION No.10513/2012
BETWEEN:
1. Intertek India Private Limited,
a company incorporated under the
Companies Act,1956, having its office
at E-20, Block B1 Mohan Cooperative
Industrial Area, Mathura Road,
New Delhi -110 044 through
Mr.Rajesh Saigal, Director.
2. Mr.Rupert Crasto, S/o Denis Crasto,
Aged 43 Years,
R/o St.Sebastian Chawl,
Room No.3, Kevni Pada,
Jogeshwari (W), Mumbai.
3. Tapas Kumar Datta,
S/o Nishakar Datta,
Aged 46 Years,
R/o A 10, Sukashanti Housing
Society Ltd., Road,
No.19, Room No.412,
MIDC Andhri,
Mumbai-400 093, Maharashtra.
4. Ashis Baran Mallick,
S/o Kalachand Mallick,
Aged 51 Years,
R/o 23/3 PK Roy Choudhari Lane
Howrath-711 103. West Bengal. .... PETITIONERS
(By Sri. Pinaki Misra, Senior Advocate for Sri Prabhakar
A.Kulkarni, Advocate)
6
AND:
1. State of Karnataka, through
Senior Inspector of Police,
Yellapur Police Station,
Uttar Kannada District,
Yellapur, Karnataka.
2. Dream Logistics Company (India) Pvt Ltd.,
A company incorporated under the
Companies Act, 1956 having its registered
office at Dream Chambers, Near Bus Stand,
Yellapur-581 359. Represented by its
Authorised Officer Sri. Mahabaleshwar
S/o Govinda Hegde,
Age: 34 Years, Occ: General Manger,
Dream Logistics Company (India) Pvt.Ltd.,
Yellapur, Tal: Yellapur,
Uttar Kannada District.
Karnataka State. . . . .RESPONDENTS
(By Sri P.H.Gotkhindi, Government Pleader for R1,
Sri.Ravi B.Naik, Sr.Adv. for Sri J.Basavaraj,
Sri.B.C.Jnanayya, Adv. for R2)
Criminal Petition No.10513/2012 filed under Section
482 of the Criminal Procedure Code, 1973 is seeking that the
Private Complaint No.76/2011 dated 27.12.2011 (Annexure
'Q') filed by M/s.Dream Logistics (India) Pvt.Limited pending
on the files of the Ld.Judicial Magistrate First Class at
Yellapur, Uttar Kannada District,Yellapur, Karnataka and the
Order dated 06.02.2012 (Annexure Q), passed by the
Ld.Judicial Magistrate First Class at Uttar Kannada District,
Yellapur,Karnataka in Private Complaint No.76/2011 and as
noted in the Private Complaint No.76/2011 directing the
Yellapur Police to investigate the said private complaint the
FIR No.20/2012 (Annexure 'R') as registered by the Yellapur
7
Police, Uttar Kannada Disrict, Yellapur, U/Sec 406, 467, 468,
471, 120-B and 420 be quashed.
IN CRIMINALPETITION No.10777/2012
BETWEEN:
1. Shri. Sanjeev K.Naik,
S/o Shri Krishna Naik,
Aged 41 Years,
R/o Vijayanagar Kurswad,
Kajubag, Karwar,
Uttar Kannada, Karnataka. .... PETITIONER
(By Sri. Pinaki Misra, Senior Advocate
for Sri.Prabhakar A.Kulkarni, Adv.)
AND:
1. State of Karnataka, through
Senior Inspector of Police,
Yellapur Police Station,
Uttar Kannada District,
Yellapur, Karnataka.
2. Dream Logistics Company (India) Pvt Ltd.,
a company incorporated under the
Companies Act, 1956 having its registered
office at Dream Chambers, Near Bus Stand,
Yellapur-581 359. Represented by its
Authorised Officer Sri. Mahabaleshwar
S/o Govinda Hegde,
Age: 34 Years, Occ: General Manger,
Dream Logistics Company (India) Pvt.Ltd.,
Yellapur, Tal: Yellapur,
8
Uttar Kannada District.
Karnataka State. . . . .RESPONDENTS
(By Sri P.H.Gotkhindi, Government Pleader for R1,
Sri.Ravi B.Naik, Senior Advocate for Sri J.Basavaraj, Adv. for
R2)
Criminal Petition No.10777/2012 filed under Section 482
of the Criminal Procedure Code, 1973 is seeking to quash the
Private Complaint No.76/2011 dated 27.12.2011 (Annexure
'Q') filed by M/s.Dream Logistics (India) Pvt.Ltd pending on
the files of the Ld.Judicial Magistrate First Class at Yellapur,
Uttar Kannada District,Yellapur, Karnataka so far as petitioner
concerned and to set aside the Order dated 06.02.2012
(Annexure 'R'), passed by the Ld.Judicial Magistrate First
Class at Uttar Kannada District, Yellapur,Karnataka in P.C
No.76/2011 and as noted in the Private Complaint No.76/2011
directing the Yellapur Police to investigate the said P.C. and to
quash the FIR No.20/2012 (Annexure 'S') as registered by the
Yellapur Police, Uttar Kannada Disrict, Yellapur, U/Sec 406,
467, 468, 471, 120-B and 420 be quashed.
These petitions having been heard and reserved on
20.7.2012 and coming on for Pronouncement of Orders this
day, the Court delivered the following:
ORDER
These petitions are disposed of by this common order having regard to the fact that there are common issues that arise for consideration.
9
2. The facts briefly stated are as follows :
M/s Dream Logistics Company ( India ) Private Limited , a Company incorporated under the Companies Act, 1956, and having its registered office at Dream Chambers, Yellapur, Uttara Kannada District, Karnataka State (Hereinafter referred to as 'DLC' , for brevity) represented by its Managing Director, Vivek Hebbar , is said to have entered into an agreement to sell, dated 2.6.2011, with M/s Shivnath Minerals and Chemicals, a partnership firm, having its Head office at G -16, Hira Arcade, Pandari, Raipur District, Chattisgarh State, with a branch office at Panaji, Goa State, (Hereinafter referred to as 'SMC', for brevity). Under the agreement, DLC was to supply 56450 Dry Metric Tonnes ( DMT ) of Iron Ore fines to SMC. The Ore was to be loaded on board a designated ship, M.V. Sagarjeet at Marmagao Port, Goa, India. It was specified that the Fe content of the ore should be a minimum of 52% .
One, Prasanna Vasudev Ghotage of Hindwadi, Belgaum District , Karnataka State, is said to have initiated the transaction as his own firm had not been able to go it alone in 10 lifting ready stocks available. It is claimed by DLC that there was a Tri-partite agreement as between the three parties, namely, DLC, SMC and Ghotage. However, there is no such agreement available on record.
M/s Intertek India Private Limited, Goa, India (Hereinafter referred to as 'Intertek', for brevity ) was identified and nominated as the agency to collect samples of the ore to be loaded for shipment as above, to carry out laboratory analysis and to certify the specification of the entire shipment. Accordingly, a certificate had been issued, dated 8.6.2011, indicating the Fe content, or the iron content of the ore at 53.6%.
The said shipment was destined to reach the Main Port, China - as SMC had, in turn, agreed to sell the same to a Chinese party.
On 29.8.2011, SMC is said to have lodged a report with the Raipur Police in FIR 283 /2011 against DLC and its officials and Intertek and its officials, including its officers at its 11 Mumbai office, alleging offences punishable under Sections 420, 467, 468 and 471 read with Section 120- B of the Indian Penal Code, 1860 (Hereinafter referred to as 'IPC' , for brevity) It was the case of SMC that the goods had been shipped under the certification by Intertek, to the effect that the Fe content was 53.6% , whereas the Chinese buyer had complained that the actual Fe content, as certified by unimpeachable local analysis by independent bodies, that it was only 42.02%. It was therefore alleged that DLC and Intertek, through their respective personnel, had engineered the fake certification knowing fully well that the goods were not according to specification, while DLC had received the contract price on the footing that the goods were as per contract.
On 14.9.2011, DLC had lodged a private complaint, numbered as 45/ 2011, with the Court of the JMFC, Yellapur, against SMC, its two partners and Prasanna Vasudev Ghotage, arraigned as accused nos. 1 to 4. It was alleged that the complaint lodged by SMC was false. It was asserted that 12 Intertek was the Indian arm of a reputed international entity and had been mutually appointed by SMC and DLC, as the certifying agency. DLC had provided all the documents as required under the contract of sale to be entitled to receive the sale price. SMC and its two partners had released the price in DLC's favour only after satisfying itself of the cargo conforming to specifications. On the other hand, it was claimed that the contract provided if the Fe content exceeded 52% , DLC was entitled to an additional price -pro rata - corresponding to the excess percentage over and above the stipulated 52% and since the Fe content of the shipment was 53.6 %, DLC was due to be paid, as per its calculations, a sum exceeding Rs.1. 28 crore. It was in order to deprive DLC of its legitimate due, that accused 1 to 4 in its complaint 45/2011 had concocted the false complaint in FIR 283/2011 before the Raipur police, and hence alleged offences punishable under 120-B, 420 etc. ,IPC.
On 18.9.2011, Intertek, in turn, had lodged a report with the Vasco-da-gama Police Station, Goa, numbered as FIR 13 27/2011, that one Ravi Kumar was their branch manager of the Goa branch, since 23.7.2010. He was said to be responsible for receiving sample analysis report of grading of iron ore from its laboratory and preparing final data based on analysis done by the Chemists and was issuing certificates of the grade of the iron ore.
That Intertek had been called upon by the CID, Crime Branch, Dona Paula requesting information under Section 91 of the Code of Criminal Procedure (Hereinafter referred to as the 'Cr.P.C', for brevity) in response to the complaint lodged by SMC in Raipur, in view of the allegation of a false certificate having been issued by Intertek. Apart from further enquiries relating to the same shipment to which the certificate related. It was stated that the said Ravi Kumar had abruptly resigned from employment with Intertek on 13.6.2011 and that he was the person who had issued the certificate in question , certifying the ore loaded on M.V.Sagarjeet as being of 53.6 grade. In the course of internal investigation, pursuant to the embarrassing enquiries by the police, it was found on cross checking the 14 samples in question, that the Ore was actually of 46 grade. It was hence alleged that the said Ravi Kumar had, for his personal benefit, in apparent conspiracy with DLC, had not only committed breach of trust, but had also exposed the company to criminal proceedings and have hence requested for appropriate action against him. It is also sought that action be taken against DLC through its Directors, as that entity was the direct beneficiary of the mischief perpetrated.
By a further private complaint dated 27.12.2011, numbered as 76 /2011 before the Court of the JMFC, Yellapur, DLC claimed that its earlier private complaint in 45/2011 was incomplete as it proceeded on a misunderstanding of the true facts and circumstances, hence the second complaint.
Incidentally, the Court had taken cognizance of the complaint in 45/2011 and had referred the matter for investigation by the police. A final report had been filed before the trial court on 26.11.2011, it was opined by the police that after a thorough investigation, it was found that the matter was 15 clearly a civil dispute. DLC, in turn, had filed a memo dated 26.11.2011 ,stating :
" That the investigating officer in this case has submitted B Final report in the matter. The matter in dispute is settled out of Court.
Therefore the complainant herein is not interested to file objection to the B Final report filed by the Investigating Officer in this case.
Therefore the B Final report may kindly be accepted in the ends of justice. "
The trial court had made the following order dated 28.11.2011 :
" Heard Shri DKB & BVP satisfied with report submitted by I. O. & same is accepted .
Accordingly considering the B/A∗ does not arise & case is closed "
In the second complaint in 76/2011, it was alleged that Ghotage (A-4 in the earlier complaint) along with his two associates ( A-1 to A-3 ) had approached the Managing Director of DLC, Vivek Hebbar, and claimed that they had ready access ∗ (bail application) 16 to at least 55000 MT of Iron ore fines of good quality but were cash strapped to take delivery for further sale to a foreign buyer, M/s Nordbell Commercial Limited and sought his willingness to participate as the principal in the proposed transaction. But since the said foreign buyer defaulted in raising a timely letter of credit, the said accused A1 to A3 had immediately identified SMC as an alternative buyer. Thus DLC had entered into an agreement with SMC, as stated in the earlier complaint in 45/2011. It is the case of DLC that A1 to A3 were required to ensure the supply and quality of the shipment as per the contractual terms. It is claimed that there was a Tri-partite agreement between DLC, SMC and A1 in that regard. Under that agreement A-1 was to bear all losses on account of any inferior quality of the shipment. It is further alleged that A-1 had insisted on the engagement of Intertek as the certifying agency for the shipment.
The cargo having been shipped on the strength of the certificate issued by Intertek - to a Chinese buyer , by SMC, 17 and the Ore on analysis having been found to be with an Fe content at 42.02 % as endorsed by a Chinese Government Agency and a Singapore based company, TCRC. It was in that background that SMC, on being placed on notice by its Chinese buyer, of the alleged poor quality, SMC had in turn taken DLC and Ghotage - A-1 to task and lodged the report in 283/2011 at Raipur. It is further stated that DLC had promptly approached SMC and had made good the loss suffered by it, by paying SMC a sum of Rs.13 crore apart from other costs and expenses. It is for that reason that the case as against DLC was treated as closed at the instance of SMC and the case is pending in Raipur only as against the other accused in that case.
It is further alleged that A-4, Intertek and A-5 to 12 (in 76/2011), who are its Directors and other employees, are directly responsible for the fraud played in the false certification of the shipment and that there was an active conspiracy between all the accused in having induced DLC and SMC to transact in respect of the shipment to their prejudice. DLC claims to have suffered losses exceeding Rs.40 crore . 18
Hence the complaint is lodged against A-1 to A-12 alleging offences punishable under Sections 406, 467,468,471,120-B & 420 read with Section 34 IPC.
The complainant, DLC, has named the managing partner and a partner of SMC as witnesses, they were earlier arraigned as A-2 and A-3 in DLC's complaint 45/2011. One other witness is the former employee, Ravi Kumar of Intertek who was the signatory to the alleged false Certificate issued by Intertek in respect of the shipment.
The trial court has ordered investigation by the police in respect of the complaint.
There is yet another report filed by DLC numbered as 20/2012 before the Yellapur Police, against Ghotage, A-1, in Complaint 76/2011 and 11 others, alleging that the complainant and the accused were engaged in the export of iron, steel (sic) that Ghotage had received Rs. 25 crore from the complainant and thereafter they had negotiated with SMC to supply Ore of 52 grade. However, the iron ore supplied was of substandard quality - though the complainant had been mislead to believe 19 that the shipment was as per contract on the basis of false and forged documents and hence had suffered a monetary loss.
In the above background, Criminal Petition No.2353/2012 is filed by accused no.1 in respect of Complaint No.76/2011. The petition coming on for admission in the first instance, notice was ordered regarding admission and an ad- interim stay was granted, which was continued from time to time. The second respondent - DLC having filed an application for vacating the order of stay granted, the petition itself was considered for final hearing along with other connected petitions.
3. The learned Senior Advocate, Shri Anoop Chowdhary, appearing for the Counsel for the petitioner, contends that the glaring circumstance, which requires to be noticed is that the complainant had earlier filed the private complaint in 45/2011 wherein the present petitioner was arraigned as accused no.4 and the witnesses cited in the present complaint in 76/2011, namely, Shri Jagadish Aggarwal and Alok Aggarwal, who were 20 arraigned as accused nos.1 and 2 in that earlier complaint wherein certain allegations had been made against them. It is apparent from the record that though cognizance had been taken of that private complaint, investigation was ordered. The Police having filed a Final Report, indicating that there was no criminal offence made out and that the dispute was purely of a civil nature, the present respondent no.2 - DLC had simultaneously filed a memo, to indicate that the matter had been settled out of court and therefore, the complainant was not pursuing the complaint and no objections are sought to be filed in respect of the 'B' Final Report. It is pertinent to note that the said respondent had not given any indication that complaint in 45/2011 was brought on any misconception or without all the particulars being available. It is inexplicable, therefore, that the present complaint in 76/2011 is brought against the present petitioner on the very same allegations, insofar as the petitioner is concerned, in respect of the very same transaction. It is pointed out that the complainant has not made out any new ground nor has made out any additional ground insofar as the 21 present petitioner is concerned. The only difference is that in Complaint no.45/2011, the broad allegations were that there was a conspiracy between the petitioner herein and SMC and its partners in having filed a false complaint before the Raipur Police, in order to deprive the petitioner of his legitimate claim to the additional price, to which he was entitled by virtue of the iron ore fines that were shipped by SMC, after purchasing the same from DLC, to its Chinese buyer with a Fe content exceeding the contractual specifications and that the additional price payable in respect of that excess percentage of Fe content was sought to be withheld on the false complaint that the shipment was sub-standard and was with an Fe content of only 42%. Whereas in the complaint in 76/2011, it is alleged that the present petitioner, along with two of his associates, had conspired with Intertek and its management apart from its other employees, in engineering a false Analysis Certificate for illegal gain and had exposed the complainant to criminal proceedings as well as payment of penalties. This is in the backdrop of the complainant having entered into an 22 arrangement with the SMC and its partners of alleged payment of certain penalties and other losses occasioned to SMC and as a bargain, to have ensured that he(the Managing Director of DLC) was dropped from the proceedings initiated by SMC before the Raipur Police in FIR No.283/2011 and the complaint in 45/2011 having been unconditionally withdrawn. One other curious aspect is that the complainant has named a third witness in the complaint, who is none other than the signatory to the false certificate that was in question and an ex-employee of Intertek. Ironically, he is not an accused in complaint 76/2011 even though the entire management and other employees of Intertek have been held guilty of a conspiracy in producing the said certificate.
The learned Senior Advocate places reliance on a large number of decisions to contend that a second complaint containing more or less the same allegations could be entertained only in exceptional circumstances and those circumstances would depend on the particular factual matrix. Generally, the exceptional circumstances may be classified under three categories :
23
(a) a manifest error in the earlier proceedings
(b) a resultant miscarriage of justice
(c) new facts which the complainant had no knowledge of or could not, with reasonable diligence, have brought forward in the previous proceedings.
It is contended that on the earlier complaint having been filed on the very same subject matter, the second complaint is clearly an abuse of process of court. Given the diametrically opposite allegations having been made, whereby the complainant has chosen to absolve SMC and its partners, of all blame, of his own accord, and has initiated the second complaint, without reference to any additional material, which prima facie would support the justification of the complainant in resorting to such a volte-face, while maintaining the primary allegation against the petitioner of an earlier conspiracy in association with SMC and it partners and now of a conspiracy with Intertek, its management and its employees. There is no indication of any illegal benefit having been derived by the 24 petitioner, since admittedly the sale was by the complainant in favour of the SMC and SMC, in turn, having sold to a third- party Chinese buyer of the shipment and therefore, seeks that the proceedings, whereby an investigation has been directed by the trial court even though insofar as the present petitioner was concerned, he was absolved of any foul play or mischief in the earlier complaint in 45/2011, where a final report has been filed by the Police and even accepted by DLC.
3. The learned Senior Advocate Shri Pinaki Mishra, appearing for the learned Counsel for the petitioners in Crl.P.10512/2012, Crl.P.10513/2012 and Crl.P 10777/2012 would point out that the petition in Crl.P 10512/2012 is filed by the accused directors of Intertek in Complaint 76/2011 filed by DLC. It is pointed out that there are four cases pending in respect of the very same transaction, namely, in FIR 283/2011 at Raipur, in FIR 27/2011 at Goa filed by Intertek, Complaint 76/2011 at Yellapur filed by DLC and FIR 20/2012 filed again at Yellapur by DLC.
25
Insofar as the first complaint filed by SMC at Yellapur is concerned, the Police have filed a charge sheet after investigation without attributing any role to the petitioners. Therefore, the continuance of the investigation in respect of the present complaint is firstly an abuse of process of law and therefore, warrants interference of this court. So also the complaint in 45/2011, which was initially filed by DLC on the very same facts. There was significantly no allegation made against Intertek or the present petitioners. Therefore, it is inexplicable that after the said complaint was closed, on a report being filed by the police, the present complaint in 76/2011, without any foundation as to the allegations against the present petitioners, clearly demonstrates the mala fides on the part of the complainant. The court below having mechanically directed an investigation in terms of Section 156(3) of the Cr.P.C, results in serious consequences insofar as the present petitioners are concerned, especially in the circumstance that the complainant has vaguely even referred to the earlier complaint in 45/2011 in the present complaint. More 26 importantly, the learned Senior Advocate would draw attention to a glaring circumstance that insofar the transaction is concerned, the iron ore fines, which were the subject matter of the shipment had originated in the Goa State, had been delivered at a port in Goa and had been shipped from Goa. Intertek, the company of which, the present petitioners are directors had issued the Analysis Certificate at Goa. If the entire gravamen of the charge or allegations against the petitioners is that the alleged false certificate was indeed the primary ingredient of the offence committed in misleading the complainant or SMC, the place of commission of the offence would necessarily have to be treated as Goa. Except the fact that the complainant is based at Yellapur, there is no other material produced nor facts stated, as to how the Yellapur court would have jurisdiction to entertain the complaint, as there is no indication that there has been commission of any offence at Yellapur in order for the court to get jurisdiction. This also takes on significance when Intertek itself has initiated proceedings against its former employee, who was a signatory 27 to the false certificate, alleging that he has acted intentionally with an illegal motive, on his own, and has exposed Intertek to criminal action by virtue of the same and since he had abruptly resigned from the company immediately after the issuance of such a certificate, certainly pointed to the guilt of the said employee and since that complaint has named DLC and its directors as the accused, the present complaint is nothing but a malicious counter-blast to the said complaint, while there is no allegation against Ravi Kumar, an erring employee and who was signatory to the certificate in question and curiously, the very ex-employee is named as a witness in the complaint . The learned Senior Advocate would submit that investigation into the complaint lodged at Goa would have to be duplicated in the present complaint 76/2011 in respect of the alleged commission of an offence by Intertek at Goa. The law would not permit such duplication of proceedings, especially, since the present complaint in 76/2011 has come after the complaint by Intertek at Goa. Therefore, there is a clear abuse of process. When the very same transaction has already been investigated 28 by the Yellapur Police, who have declared that the matter is of a civil nature, insofar as the supply of iron ore fines are concerned. It is further pointed out that SMC, on discovering the iron ore supplied was of inferior quality and that the certificate issued by Intertek was to the contrary, DLC had in the complaint of September 14, 2011, namely, 45/2011 which was filed against SMC, its partners and one other, did not name Intertek as an accused nor were there any allegations against Intertek. It is only after Intertek preferred its complaint at Goa, that the complainant has now chosen to file the present complaint while withdrawing all allegations against SMC and taking on board the partners of SMC as its witnesses apart from Ravi Kumar, the author of the disputed certificate.
4. In Criminal Petition No.10513/2012, which is again filed by Intertek and other officials of the said company, who were named as accused in Complaint No.76/2011, the learned Senior Advocate, Shri Mishra would reiterate that the registration of the complaint at Yellapur, at the instance of 29 DLC is nothing but an attempt to harass the petitioners and pursuant to the complaint, the Raipur Police having commenced investigations on the direction of the Court of the Magistrate, has completely overlooked the mischievous conduct of the complainant and it is entirely inexplicable to expect the top officials of Intertek to risk their entire business only to defraud the complainant by colluding and conspiring in issuing a false certificate. Ironically, the complainant had admitted that in the past, he has had good business relations with Intertek and that it had certified over 20 export shipments spread over a period of four years totalling upto about 2 Million Tonnes of iron ore. It is therefore emphasized that the subject matter of the complaint at Yellapur being against the alleged falsification of the certificate, issued by Ravi Kumar, an ex-employee of Intertek and that having been issued at Goa, whether there was any justification for any Police other than the Goa Police, to proceed with the investigation. Especially, in view of the fact that the very same police station, at the behest of the very same complainant, had earlier submitted a 'B' Final Report in respect 30 of the same transaction and had concluded that the dispute, if any, was of a civil nature and there was no cause for criminal investigation. The petitioners were not named as the accused in that earlier complaint, namely, 45/2011. The learned Senior Advocate would reiterate that the complaint in 76/2011, by which the petitioners are aggrieved, would indicate that one Ghotage had supplied iron ore fines to the complainant representing that the iron ore content of the fines was around 53%. Based on such a representation, the complainant sold iron ore fines to SMC and that the Goa Branch office of Intertek had issued the disputed certificate, which recorded the iron ore content to be around 53%. The iron ore content was lower than what was represented by the said certificate, due to which, the complainant had suffered losses and therefore, the accused had cheated the complainant to gain illegal benefit to themselves. Therefore, insofar as the cause of action for the alleged offence can be said to arise within the jurisdiction of the courts at Goa and not at Yellapur in Karnataka State. The main factor to be considered with reference to a criminal offence insofar as the 31 question of territorial jurisdiction is concerned, would be the place where the alleged offence is committed. Since there is already a complaint filed by Intertek, against Ravi Kumar and DLC in Goa, the present complaint by DLC, which has followed subsequently, is nothing but a counter blast and would amount to an abuse of process of law. Even if it could be called a counter case, whether the same can be instituted at a place other than where the alleged offence is said to have been committed, is a question that would arise for consideration before this court. The learned counsel would place reliance on a large number of decisions in support of his contentions.
5. Criminal Petition No.10777/2012 is also filed by one of the accused in the complaint filed by DLC in 76/2012. The petitioner is an erstwhile employee of Intertek, who left its services on 14.1.2012. Shri Mishra, Senior Advocate, also appearing for the Counsel for the petitioner, would submit that the petition urges more or less the same contentions on merits 32 as would other officials and employees of the Intertek insofar as the entertainment of the complaint in 76/2012 is concerned.
6. The learned Senior Advocate Shri Ravi B Naik, opposing these petitions represents the Counsel appearing for DLC. He would assert that it is no doubt true that the DLC had earlier filed a complaint in 45/2011 against SMC and against Ghatge. That complaint however was not complete, in that, other particulars and circumstances had not come to the attention of DLC. It is in that background that DLC was constrained to withdraw the said complaint and after having addressed the actual conduct of the several parties involved. It is also reiterated that prior to December 2010, Ghatge had approached the complainant and represented that he and his business concern were suffering a financial crunch and that several lakh metric tonnes of iron ore were readily available for purchase and hence, sought the assistance of DLC for the purchase of the iron ore for mutual benefit and that DLC could act as the principal exporter in the said transaction. It is 33 in this background that the complainant - DLC claims to have paid an amount of Rs.25 Core and a further sum of Rs.11 Crore to Ghatge, under a Memorandum of Understanding and during May 2011, Ghatge along with two others had represented that there was a shipment of 55000 Metric Tonnes with an Fe content of 54% to 55%, plus or minus 10%, was available and that they had also identified a buyer to sell the iron ore while further assuring the complainant that they could guarantee the quality and the quantity of the ore. Though they had initially identified one M/s Nordbell Commercial Limited, since that company had defaulted in opening a letter of credit, Ghatge found another buyer, namely, SMC and it is acting on the representations of Ghatge that the DLC had entered into an agreement with SMC to supply the ore to be loaded on board M.V.Sagarjeet. It is further stated that DLC had entered into a tri-partite agreement dated 2.6.2011 with Ghatge as well as SMC. However, a copy of the contract was never provided to the complainant by Ghatge, who had dodged several requests made in that regard. It is stated that on 16.5.2011, Ghatge had 34 issued a sales letter in favour of DLC on behalf of M/s Coastal Mines and Minerals said to be owned by Ghatge in respect of 41596 Metric Tonnes of iron ore with an Fe content of 54% to 55% to be supplied to DLC. He had also advised DLC to appoint Intertek as the sampler and accordingly, the ore which was supplied and certified by Intertek was sold to SMC, who in turn, exported the material to a Chinese buyer and when it was inspected at the China port by an agency, it was found to be of an inferior quality. SMC, on being placed on notice of the sub- standard goods, had immediately issued a notice to the complainant as well as Ghatge. Subsequently, a complaint was filed against Intertek, Ghotage and DLC. During the pendency of that complaint, the Managing Director of DLC had paid Rs.13 Crore apart from other costs and expenses to SMC and the case as against DLC was thus compounded and closed. In the complaint by SMC, a charge sheet having been filed against Ghatge and two others, the case was pending in Raipur. It is therefore contended that the mischief lies in Intertek having issued a fraudulent certificate, as to the Fe content of the iron 35 ore being 53.60% and DLC having acted upon the same in having supplied the goods as such, the clear admission now made by Intertek that on an internal investigation to the effect that the samples, which were earlier certified, the Fe content of the iron ore as being in excess of 53% was in effect less than 46%, would only amplify the fraud played by Intertek and its personnel. Therefore, it was evident that it was all along a conspiracy between Ghatge and Intertek and its officials and employees to cheat the complainant - company, which had ultimately invested a sum of Rs.36 Crore just on the shipment, apart from other substantial expenditure incurred by it. The Memorandum of Understanding dated 2.6.2011 between DLC and SMC was entered into at Yellapur. This would afford the jurisdiction to the Court of the Magistrate at Yellapur, as it was to satisfy that contract, that certification was issued. He would further reiterate that the filing of the earlier complaint and withdrawal of the same and in filing of the second complaint, there is no irregularity since the facts available and on the basis of which, a second complaint is filed is substantially different 36 from the earlier complaint. It is also pointed out that all payments made to Ghatge were made from the Yellapur office from banks situated in Yellapur, Hospet etc. and Intertek has also been appointed from Yellapur and therefore, the court of the Magistrate at Yellapur would certainly have jurisdiction. It is further alleged that there are criminal antecedents against Ghatge, the petitioner in Criminal Petition 2353/2012, the particulars of which are furnished and therefore, it is contended that the petitions be dismissed as the stage of the complaint is nascent and the court is yet to take cognizance of the case and since the matter is under investigation by the Police, who, as already pointed out by the petitioners, are very much aware of the earlier proceedings and if it is to be accepted that the second complaint is a duplication of the earlier one, the report would certainly fail in that regard, in which event, it is for the Magistrate to decide the further course of action. The petitions are therefore premature and notwithstanding the so-called preliminary objections raised as to the maintainability of the same, the procedure prescribed adequately provides for 37 addressing any such threshold bar. Hence, there is no warrant for considering the present petitions.
The learned Senior Advocate places reliance on several authorities in support of his contentions.
7. In the light of the above rival contentions and the facts and circumstances, the short point that would arise for consideration is whether the private complaint filed by DLC in 76/2011 before the Court of the JMFC, Yellapur is maintainable, having regard to the two primary objections, namely, that the said private complaint being a second complaint by the same company after its earlier complaint in 45/2011 having been closed on the submission of a final report by the jurisdictional Police after investigation and the same having been accepted by the complainant itself, as evident from a memo filed by the complainant, as stated hereinabove.
The second objection is as regards the glaring circumstance that the complainant has not indicated the ground on which such a complaint was maintainable before the 38 Yellapur Court, if from an entire reading of the complaint, there is no indication of the commission of the offence or offences by any of the accused within the jurisdiction of the Yellapur Court.
To address these two aspects, the following authorities from amongst the several cited by the learned Counsel for the parties, may be usefully referred to.
In the case of Navinchandra N Majithia vs. State of Maharashtra and others, (2000)7 SCC 640, the facts were that the appellant was the Managing Director of a company which had its registered office at Mumbai. A company called CEL had entered into an agreement with the appellant for the purchase of entire shares of IFPL, for which it paid an advance price. CEL failed to fulfil its commitment to pay the balance purchase price within the specified time. Therefore, the agreement was terminated. CEL filed a suit in the High Court of Bombay against the appellant for specific performance of the agreement. Two shareholders of CEL took over management of the company and they formed another company 39 JBHL at Shillong in the State of Meghalaya. Later, the suit was withdrawn. When the appellant returned the amount paid by CEL which was earlier forfeited by him, this was duly recorded in the suit. Thereafter, JBHL made payments towards the purchase of shares of IFPL. The appellant, however, contended that JBHL committed default in making the balance payment and therefore, committed breach of the agreement. The agreement stood terminated and the earnest money against it was forfeited. JBHL filed a complaint against the appellant at Shillong. The appellant contended that it was a false complaint and was filed only to exert pressure on the appellant and since the transaction had taken place at Mumbai, no cause of action arose at Shillong and the jurisdiction to investigate into the contents of the complaint could, at best, be with the courts and the Police at Mumbai and the action that was subsequently taken by the CID, Shillong in taking up an investigation was illegal and the appellant filed a writ petition before the Bombay High Court, inter alia, seeking quashing of the complaint lodged by JBHL at Shillong, and in the 40 alternative, to direct the State of Meghalaya to transfer the investigation to the competent investigating authority at Mumbai. The High Court dismissed the writ petition holding that it could not entertain the writ petition since the petitioner had prayed for quashing the complaint, which was lodged by the complainant at Shillong. The appellant, therefore, approached the Supreme Court. The question before the Supreme Court was whether the High Court was right in passing an order rejecting the writ petition. The Supreme Court held that the maintainability or otherwise of the writ petition before the High Court depends on whether the cause of action for filing the same arose, wholly or in part, within the territorial jurisdiction of that court and that insofar as the question of territorial jurisdiction with reference to a criminal offence is concerned, the main factor to be considered is the place where the alleged offence was committed. The apex court found that remitting the matter to the High Court for fresh disposal, would cause further delay and it was found apt to direct that further investigation, relating to the complaint 41 filed by JBHL, should be made by the Mumbai Police. In a concurring judgment, a companion Judge also held that the mere fact that the First Information Report was registered in a particular State is not the sole criterion, to decide that no cause of action has arisen even partly within the territorial limits of jurisdiction of another State. Nor can it be said that any person can create a fake cause of action or even concoct one by simply jutting into the territorial limits of jurisdiction of another State or by making a sojourn or even a permanent residence therein. The place of residence of the person moving a High Court is not the criterion to determine the contours of the cause of action in that particular writ petition and since the major portion of the facts which lead to the registering of the First Information Report had taken place at Mumbai, it was emphasized that the cause of action cannot escape from the territorial limits of the Bombay High Court.
In Y.Abraham Ajit vs. Inspector of Police, (2004)8 SCC 100, the complainant had approached the Court of the Magistrate alleging commission of offences punishable under 42 Section 498A and 406 of the IPC and Section 4 of the Dowry Prohibition Act, 1961. The Magistrate had directed the Police to investigate and after investigation, a charge sheet was filed by the police. At that stage, the Police filed an application under Section 482 of the Cr.PC, before the High Court alleging that the Magistrate concerned had no jurisdiction even to entertain a complaint, even if all the allegations contained therein are accepted. It was contended that no part of the cause of action arose within the jurisdiction of the court concerned. The High Court had dismissed the petition. The Supreme Court reasoned thus:-
"7. Section 177 of the Code deals with the ordinary place of inquiry and trial and reads as follows:
"177. Ordinary place of inquiry and trial .
- Every offence shall ordinarily be inquired into and tried by a court within whose local jurisdiction it was committed."
8. Sections 177 to 186 deal with venue and place of trial. Section 177 reiterates the well-established common- law rule referred to in Halsbury's Laws of England (Vol.9 Para 83) that the proper and ordinary venue for the trial of a crime is the area of jurisdiction in which, on the evidence, the facts occur and which are alleged to 43 constitute the crime. There are several exceptions to this general rule and some of them are, so far as the present case is concerned, indicated in Section 178 of the Code which reads as follows:
"178. Place of inquiry or trial - (a) When it is uncertain in which of several local areas an offence was committed, or
(b) where an offence is commited aprtly in one local area and partly in another, or
(c) where an offence is continuing one, and continues to be committed in more local areas than one, or
(d) Where it consists of several acts done in different local areas, It may be inquired into or tried by a Court having jurisdiction over any of such local areas."
9. "All crime is local, the jurisdiction over the crime belongs to the country where the crime is committed", as observed by Blackstone. A significant word used in Section 177 of the Code is "ordinarily". Use of the word indicates that the provision is a general one and must be read subject to the special provisions contained in the Code. As observed by the Court in Purushottamdas Dalmia vs. Union of India and Mohan Baitha vs. State of Bihar exception implied by the word "ordinarily' need not be limited to those specially provided for by the law and exceptions may be provided by law on consideration or may be implied from the provisions of law permitting joint 44 trial of offences by the same court. No such exception is applicable to the case at hand."
Further, insofar as the phrase 'cause of action' is concerned, the meaning of the phrase and the use of the expression in civil and criminal cases was addressed in the following terms:-
"12. The crucial question is whether any part of the cause of action arose within the jurisdiction of the concerned Court. In terms of Section 177 of the Code it is the place where the offence was committed. In essence it is the cause of action for initiation of the proceedings against the accused.
13. While in civil cases, normally the expression "cause of action" is used, in criminal cases as stated in Section 177 of the Code, reference is to the local jurisdiction where the offence is committed. These variations in etymological expression do not really make the position different.
The expression "cause of action" is therefore not
a stranger to criminal cases.
14. It is settled law that cause of action consists of bundle of facts, which give cause to enforce the legal inquiry for redress in a court of law. In other words, it is a bundle of facts, which taken with the law applicable to them, gives 45 the allegedly affected party a right to claim relief against the opponent. It must include some act done by the latter since in the absence of such an act no cause of action would possibly accrue or would arise.
15. The expression "cause of action" has acquired a judicially settled meaning. In the restricted sense cause of action means the circumstances forming the infraction of the right or the immediate occasion for the action. In the wider sense, it means the necessary conditions for the maintenance of the proceeding including not only the alleged infraction, but also the infraction coupled with the right itself. Compendiously the expression means every fact, which it would be necessary for the complainant to prove, if traversed, in order to support his right or grievance to the judgment of the Court. Every fact, which is necessary to be proved, as distinguished from every piece of evidence, which is necessary to prove such fact, comprises in "cause of action".
16. The expression "cause of action" has sometimes been employed to convey the restricted idea of facts or circumstances which constitute either the infringement or the basis of a right and no more. In a wider and more comprehensive sense, it has been used to denote the whole bundle of material facts.
17. The expression "cause of action" is generally understood to mean a situation or state of facts that entitles 46 a party to maintain an action in a court or a tribunal; a group of operative facts giving rise to one or more bases for sitting; a factual situation that entitles one person to obtain a remedy in court from another person. (Black's Law Dictionary a "cause of action" is stated to be the entire set of facts that gives rise to an enforceable claim; the phrase comprises every fact, which, if traversed, the plaintiff must prove in order to obtain judgment. In "Words and Phrases" (4th Edn.) the meaning attributed to the phrase "cause of action" in common legal parlance is existence of those facts, which give a party a right to judicial interference on his behalf.
18. In Halsbury Laws of England (Fourth Edition) it has been stated as follows:
"Cause of action" has been defined as meaning simply a factual situation the existence of which entitles one person to obtain from the Court a remedy against another person. The phrase has been held from earliest time to include every fact which is material to be proved to entitle the plaintiff to succeed, and every fact which a defendant would have a right to traverse. "Cause of action" has also been taken to mean that particular act on the part of the defendant which gives the plaintiff his cause of complaint, or the subject matter of grievance founding the action, not merely the technical cause of action".
When the aforesaid legal principles are applied, to the factual scenario disclosed by the complainant in the 47 complaint petition, the inevitable conclusion is that no part of cause of action arose in Chennai and, therefore, the concerned magistrate had no jurisdiction to deal with the matter. The proceedings are quashed. The complaint be returned to respondent No.2 who, if she so chooses, may file the same in the appropriate Court to be dealt with in accordance with law. The appeal is accordingly allowed. "
In T.T.Anthony vs. State of Kerala, (2001)6 SCC 181, the facts were that two incidents had occurred on the very same day consequent to a decision by a Minister to inaugurate an evening branch of a Co-operative Bank, which was opposed by the members of a political group and in that process, the first incident took place in the proximity of the Town Hall at a place near Kuthuparamba in Kerala and the second incident took place in the vicinity of a police station at the same place. During the said two incidents, on the orders of the Executive Magistrate and the Deputy Superintendent of Police, the Police opened fire, as a result of which, five persons died and six persons were injured amongst the demonstrators. In regard to the incident, which took place near the Town Hall, the Police 48 registered a case in Crime No.353/1994 under Sections 143,147,148,332,353,324 and 307 read with Section 149 of the IPC, along with some other offences. While in regard to the incident which took place near the Police Station, another case in Crime No.354/1994 was registered under Sections 143, 147, 148, 307 and 427 read with Section 149 of the IPC. Both the cases were registered on the date of the incident itself. During the pendency of the said cases, the Political Government of the State changed and the new Government appointed a Commission of Inquiry and on the report of the Commission, investigation was directed to be conducted by the Deputy Inspector of Police concerned, who after urgent personal investigation, registered a case in Crime No.268/1997 under Section 302 of the IPC against the minister, who was present at the time of the incident, the Deputy Superintendent of Police, and the Executive Magistrate, who ordered firing and certain Police Constables. The registration of the said case came to be challenged before the High Court by way of a writ petition and the learned Single Judge of the High Court directed that the 49 case be reinvestigated by the CBI. In writ appeals, a Division Bench quashed Crime No.268/1997 as against the Additional Superintendent of Police, but it directed a fresh investigation by the State Police headed by one of the three senior officers named in the judgment instead of a fresh investigation by the CBI, as directed by the learned Single Judge. It is the above directions of the Division bench which came to be challenged by way of different appeals before the apex court in T.T.Anthony. The apex court concluded that the subsequent First Information Report on the same set of facts is not in conformity with the scheme of the Cr.PC for reasons stated therein.
In Upkar Singh vs. Ved Prakash and others, (2004) 13 SCC 292, the correctness of the judgment in T.T.Anthony was doubted and the same was referred to a three-Judge bench by the Chief Justice of India. The three-Judge bench concluded that the view expressed in T.T.Anthony did not preclude an aggrieved person from filing a counter case and drew attention to Para 27 of the judgment in T.T.Anthony, 50 wherein while discussing the scope of Section 154, 156 and 173(2) of the Cr.PC, the following was expressed :-
"In our view a case of fresh investigation based on the second or successive FIRs, not being a counter-case, filed in connection with the same or connected cognizable offence alleged to have been committed in the course of the same transaction and in respect of which pursuant to the first FIR either investigation is under way or final report under section 173(2) has been forwarded to the Magistrate, may be a fit case for exercise of power under Section 482 Cr.PC or under Articles 226/227 of the Constitution."
And the three-Judge Bench further observed that it was therefore clear that in T.T.Anthony's case, it has not been expressed that the registration of a complaint in the nature of a counter case is excluded from the purview of the Cr.PC. It was only held that any further complaint by the same complainant or others against the same accused subsequent to the registration of a case is prohibited under the Code, because 51 the investigation in this regard would have already started and a further complaint against the same accused will amount to an improvement on the facts mentioned in the original complaint and hence will be prohibited under Section 162 of the Code and this prohibition which has been noticed in T.T.Anthony did not apply to a counter complaint by the accused in the first complaint or on his behalf alleging a different version of the said incident. The apex court also drew attention to the observation in Kari Choudhary vs. Sita Devi, (2002)1 SCC 714, to the following effect:-
" 11. Learned counsel adopted an alternative contention that once the proceedings initiated under FIR No.135 ended in a final report the police had no authority to register a second FIR and number it as FIR No.208. Of course the legal position is that there cannot be two FIRs against the same accused in respect of the same case. But when there are rival versions in respect of the same episode, they would normally take the shape of two different FIRs and investigation can be carried on under both of them by the same investigating agency. Even that apart, the report submitted to the court styling it as FIR No.208 of 1998 need be considered as an information submitted to the court regarding the new discovery made 52 by the police during investigation that persons not named in FIR No.135 are the real culprits. To quash the said proceedings merely on the ground that final report had been laid in FIR No.135 is, to say the least, too technical. The ultimate object of every investigation is to find out whether the offences alleged have been committed and, if so, who have committed it."
Further, the apex court drew attention to the observation of the apex court in State of Bihar vs. J.A.C.Saldanha, (1980) 1 SCC 554, thus:-
19. The power of the Magistrate under Section 156(3) to direct further investigation is clearly an independent power and does not stand in conflict with the power of the State Government as spelt out hereinbefore. The power confirmed upon the Magistrate under Section 156(3) can be exercised by the Magistrate even after submission of a report by the investigating officer which would mean that it would be open to the Magistrate not to accept the conclusion of the investigating officer and direct further investigation. This provision does not in any way affect the power of the investigating officer to further investigate the case even after submission of the report as provided in Section 173(8). Therefore, the High Court was in error in holding that the State Government in exercise of the power of 53 superintendence under Section 3 of the Act lacked the power to direct further investigation into the case. In reaching this conclusion we have kept out of consideration the provision contained in Section 156(2) that an investigation by an officer in charge of a police station, which expression includes police officer superior in rank to such officer, cannot be questioned on the ground that such investigating officer had no jurisdiction to carry on the investigation; otherwise that provision would have been a short answer to the contention raised on behalf of Respondent 1."
The apex court held that if the Police concerned refused to register a counter complaint, it was open to the Magistrate, at any stage, to direct the Police to register a complaint brought to his notice and investigate the same. And further that even in regard to a complaint arising out of a complaint on further investigation, if it was found that there was a larger conspiracy than the one referred to in the previous complaint, then a further investigation under the Court culminating in another complaint was permissible.
54
The apex Court also drew attention to the observation in Ram Lal Narang vs. State, 1979(2) SCC 322, wherein it was held that even in cases where a prior complaint is already registered, a counter complaint is permissible and it went further and held that even in cases where a first complaint is registered and investigation initiated, it is possible to file a further complaint by the same complainant based on the material gathered during the course of the investigation and expressed the opinion that the case in T.T.Anthony did not consider the legal right of an aggrieved person to file a counter claim, but on the contrary, from the observations in the said judgment, it clearly indicated that filing a counter case was permissible and expressed, to hold otherwise, namely, that a second complaint in regard to the same incident filed as a counter complaint is prohibited under the Code, it would lead to serious consequences. The Court has given a hypothetical example namely, that if in regard to a crime committed by the real ac cused, he takes the first opportunity to lodge a false complaint and the same is registered by the jurisdictional 55 Police, then the aggrieved victim of such crime will be precluded from lodging a complaint, giving his version of the incident in question and secondly, he would be deprived of his legitimate right to bring the real accused to book and this was certainly not the purport of the Cr.PC.
In Bhura Ram and Others vs. State of Rajasthan and another, (2008)11 SCC 103 the complainant Rajeshwari had filed a complaint before the Additional Chief Judicial Magistrate, Sri Ganganagar, The court had referred the matter for investigation by the jurisdictional Police and a First Information Report was registered against the appellant for offences under Section 498A, 406 and 147 of the IPC. That a challan was filed against the appellants in the Court of the Additional Chief Judicial Magistrate, Sri Ganganagar. Charges were framed against the appellants for offences punishable under Sections 498A and 406 of the IPC. The appellants contended that the Court of the Additional Chief Judicial Magistrate did not have jurisdiction, as the cause of action accrued, even according to the complaint, elsewhere. That 56 application was rejected. A revision petition before the Sessions Judge was also rejected. A Miscellaneous Petition before the High Court contending that the marriage was solemnised at a village called Ramsara in Punjab and the complainant along with her husband all along had lived in Punjab and her husband having died, the complainant had moved to Rajasthan to her maternal home. But an offence under Section 498A being a continuing one, the complaint could not be dismissed. It was held that the Additional Chief Judicial Magistrate, Sri Ganganagar had jurisdiction to try the case. It was urged before the apex court that the case was fully covered by Abraham Ajit, supra, wherein the apex court had held that cause of action having arisen within the jurisdiction of the court where the offence was committed, could not be tried by a court where no part of the offence was committed. The apex court held that the complainant had left the place where she was residing with her husband and in-laws and had moved to the State of Punjab and therefore it was held that the Court at Rajasthan would not have jurisdiction to deal with the matter 57 and the proceedings before the Additional Chief Judicial Magistrate, Sri Ganganagar were quashed. The complaint was directed to be returned to the complainant with a direction that if she so wishes, she may file the same in an appropriate court.
In Poonam Chand Jain and another vs. Fazru, (2010)2 SCC 631, the facts were that a complaint was filed by the respondent in the Court of the Judicial Magistrate, First Class, Nuh on 10.6.1992, alleging that the appellants, who own a house at Faridabad, had come into contact with the respondent and won his confidence. It was alleged that the respondent was an illiterate man with a village background. He was induced to purchase the land in Mohammedpur village for and on behalf of the appellants. The respondent had entered into an agreement to sell a different plots of land of about 60 acres at Mohammedpur village. It was further alleged that various sale deeds were executed and registered and the respondent was given the impression that those deeds were registered in the names of the appellants and the respondent jointly. It is further alleged that the respondent was asked to put his thumb 58 impression on the sale deeds and he was further assured that the land situated in Mohammedpur village would be transferred in the joint names of the appellants and the respondent. It was therefore alleged that fraud was played on the respondent by the appellants. When he realised the same, a complaint was filed at Chittaranjan Park Police Station on 28.6.1991, but that police station did not take any action on the ground that the events had taken place beyond their territorial jurisdiction. It was the further case in the complaint that the respondent wanted to file a complaint before the local police station, but as they failed to take any steps, the complaint was filed before the Magistrate, who in turn, took up the matter and after a detailed analysis, came to the conclusion that the complainant's allegations were a bundle of falsehood and was required to be discarded without any further investigation and dismissed the complaint as against qua accused no.1. Challenging the order, a revision petition was filed in the High Court of Punjab and Haryana by the respondent, which was also dismissed. That finding attained finality. The respondent had 59 also filed a civil suit on the same allegations. It was dismissed for default. That order of dismissal also became final. In the meanwhile, the Police filed several suits against the respondent for permanent injunction and other reliefs. All the suits which were filed were clubbed, as common questions were involved and there was a common hearing. The suits were decreed in favour of the plaintiffs, and the defendants, including the respondent, were prevented from dispossessing the plaintiffs from the lands. The Civil Court concluded that from the oral and documentary evidence of the plaintiffs, it was proved that they had purchased the suit land from the original owners and were cultivating the same. The decree was not challenged and had became final. After the suits were decreed, a month later, another complaint was filed by the respondent in the Court of the Judicial Magistrate virtually on the same facts. The Magistrate had issued summons to the appellants. The order by the Magistrate summoning the appellants was challenged before the Court of the Additional Sessions Judge. The revision petition was allowed and the summons was set aside, against 60 which the respondent had filed a criminal revision petition before the High Court. The High Court reversed the order passed by the Sessions Court and directed the appellants to appear before the trial court, which was in turn, challenged by way of a special leave petition before the apex court. Leave was granted and the case was categorised as an appeal. The apex court remanded the matter to the High Court for recording the positive findings on relevant issues. Upon such remand, the High Court held that the order of the Magistrate summoning the accused was in order and directed the appellants to face the trial. That having been challenged before the apex court, the question framed by the apex court was, whether after an order of dismissal of a complaint had attained finality, the complainant can file another complaint on almost identical facts, without disclosing in the second complaint the fact of either filing of the first complaint or its dismissal. The court referred to Pramatha Nath Talukdar vs. Saroj Ranjan Sarkar, AIR 1962 SC 876, and later judgments, which have followed the same consistently and held that the second 61 complaint was on almost identical facts which was raised in the first complaint and which was dismissed on merits. So the second complaint was not maintainable. The court observed that the core of both the complaints was the same and allowed the appeal.
In Babubhai vs. State of Gujarat and others, (2010)12 SCC 254, the facts were that as on 7.7.2008, there was an altercation between the members of the Bharwad and the Koli Patel communities over the plying of rickshaws in the area surrounding Dhedhal village of Ahmedabad district, Gujarat. The Bharwad community had been preventing the Koli Patels from running the rickshaws. On the next day, a case was registered in Bavla Police Station under Sections 147, 148,149, 302 and other provisions of the IPC read with Section 135 of the Bombay Police Act as well as Sections 3 and 7 of the Prevention of Damage to Public Property Act, 1984, for an incident which occurred at Dhedhal village, wherein the Sub-Inspector of Police, Bavla Police Station, had stated that while he was patrolling the Bavla town, he had received a 62 message from a Police Station Officer at 10 a.m., that there was an incident between the two communities at Dhedhal cross roads. On receiving such information, he along with other police personnel, rushed to the place of incident. However, the crowd had dispersed by then. Thereafter, he received information that a clash was going on between two communities in Dhedhal village. He sought for further police support and rushed to the spot where he found that about 2000 to 3000 persons from two communities, all of whom, were armed with sticks, dhariyas, swords etc., attacking each other. The Police resorted to tear gas shells as well as to lathi charge to disperse the crowd. Several rounds of firing were resorted to in order to disperse the mob. In the incident, more than 20 persons were injured and three houses of the members of the Barwad community were set on fire. One person also died. Several Police personnel were injured. No person was named in the First Information Report. Yet another First Information Report was registered at Bavla Police Station on the same day, wherein it was alleged that the incident took place on the same 63 day at 9.15 a.m. near Dhedhal village, in which, he named 18 persons as accused. As per the second First Information Report, the incident had occurred on 7.7.2008 in the evening at about 6.30p.m. The complainant's cousin told him that when Budhabhai of their village and two rickshaw-walas were taking passengers at Dhedhal Chokdi, the Bharwads of Dhedhal village who were also plying rickshaws, chhakdas, etc., told the Koli Patels not to take passengers from there and they took away the keys of the jeep, beat up the Koli Patel boys, abused and threatened them and told them not to bring jeeps and rickshaws to Dhedhal Chokdi. Babubhai Popatbhai Koli Patel met Budhabhai Laljibhai Koli Patel and his brother and inquired about the incident. The complainant informant stated that the persons standing nearby told him to stop and threats were made by the Bharwads. On the date of the incident, when the informant was coming towards Dhedhal village from Vasna, his cousin Vadibhai Pakhabhai's tractor and one Chhakda rickshaw were passing through the road. When they reached Dhedhal village, the rickshaw and the tractor were 64 halted. His car was also stopped and he saw that about 10 to 12 persons belonging to the Bharwad community were assaulting his cousin with stones. They were also assaulting the Chhakda rickshaw-walas. He saw Ganesh Jaksi of the Bharwad community instigating other persons to indulge in violence. He also named other persons preventing others from moving along the road. The complainant had rushed to the rescue of his cousin. In the melee that occurred, three persons were killed and others were injured. The accused in both the cases filed criminal applications praying for investigation by an independent agency and also filed other applications to quash and set aside the proceedings undertaken by the Sessions Court during the pendency of the applications filed earlier. Many arrests were made and on completion of the investigation, a charge-sheet was filed and the matter was committed to the Sessions Court. The High Court, by an order quashed the First Information Report and clubbed the investigation of the First Information Report along with the investigation of other First Information Report to the extent that it was feasible. The court 65 transferred the investigation to the State CID Crime Branch. It was challenged before the apex Court on the ground that the High Court had quashed the First Information Report without appreciating that there were no common factors in both the First Information Reports, so as to indicate that both the First Information Reports had arisen out of the same transaction. Thus, the First Information Reports could not be clubbed. The first incident having occurred at prior in point of time and the facts recorded in both the First Information Reports made it clear that there had been two separate incidents at two different places and for distinct offences. The apex court, after referring to Ramlal Narang, supra, and T.T.Anthony, supra as well as Upkar Singh, supra, and other judgements, held thus:
"20. Thus, in view of the above, the law on the subject emerges to the effect that an FIR under Section 154 CrPC is a very important document. It is the first information of a cognizable offence recorded by the officer in charge of the police station. It sets the machinery of criminal law in motion and marks the commencement of the investigation which ends 66 with the formation of an opinion under Section 169 or 170 Cr.PC as the case may be, and forwarding of a police report under Section 173 Cr.PC. Thus, it is quite possible that more than one piece of information be given to the police officer in charge of the police station in respect of the same incident involving one or more than one cognizable offences. In such a case, he need not enter such piece of information in the diary. All other information given orally or in writing after the commencement of the investigation into the facts mentioned in the first information report will be statements falling under Section 163 Cr.PC.
21. In such a case the court ahs to examine the facts and circumstances giving rise to both the FIRs and the test of sameness is to be applied to find out whether both the FIRs relate to the same incident in respect of the same occurrence or are in regard to the incidents which are two or more parts of the same transaction. IF the answer is in the affirmative, the second FIR is liable to be quashed. However, in case, the contrary is proved, where the version in the second FIR is different and they are in respect of the two different incidents/crimes, the second FIR is permissible. In case in respect of the same incident the accused in the first FIR comes forward with a different version or counterclaim, investigation on both the FIRs has to be conducted."67
In Shiv Shankar Singh vs. State of Bihar and another, 2012 AIAR (Criminal)13, the facts were as follows:
A dacoity was committed in the house of the appellant and his brother wherein his nephew was killed by the dacoits and valuable properties were looted. The Police had reached the place of occurrence two hours after the incident. A First Information Report was lodged on the same day by the appellant naming 2 along with 15 other persons, for offences punishable under Sections 396 and 398 of the IPC. However, the appellant's brother and the father of the deceased had approached the court under Section 156(3) of the Cr.PC in respect of the same incident. Pursuant to the orders of the court, a First Information Report was lodged on 29.12.2004, wherein it was alleged that the appellant along with the son of the second complainant and his maternal uncle, had killed Gopal Singh, as they were after certain immovable property. Investigation in pursuance of both the reports ensued. When the investigation was pending, the appellant filed a protest petition, but did not pursue the matter further. After completion of the 68 investigation, the Police filed a final report under Section 173 of the Cr.PC on 9.4.2005, to the effect that the case was totally false and Gopal Singh had been killed for property disputes. After investigation, the other First Information Report was filed by the father of Gopal Singh, the deceased and a charge-sheet was filed against the appellant and others. The trial was concluded in favour of the accused persons therein. Five months later, a second protest petition was filed in respect of the final report filed earlier. The Magistrate after examining a number of witnesses, took cognizance and issued summons to the respondent and others. Being aggrieved, the accused had approached the High Court contending that a second protest petition was not maintainable. The same having been allowed, the complainant filed an appeal before the Supreme Court. After referring to the case-law, it was held that the law does not prohibit filing or entertaining of the second complaint even on the same facts, provided the earlier complaint has been decided on the basis of insufficient material or the order has been passed without understanding the nature of the complaint or the 69 complete facts could not be placed before the court or where the complainant came to know certain facts after disposal of the first complaint which could have tilted the balance in his favour. However, a second complaint would not be maintainable wherein the earlier complaint has been disposed of on a full consideration of the case of the complainant on merits.
In the light of the above, the undisputed facts are that SMC had filed the earliest case in FIR 283/2011 at Raipur. It is pursuant to that, a private complaint in 45/2011 was filed by DLC at Yellapur. As already stated, SMC had arraigned the Managing Director of DLC and Prasanna Ghotage, who is said to have entered into a Tri-partite agreement with DLC and SMC in respect of the transaction and the representatives of Intertek, the certifying agency. This had lead to investigations by the Raipur Police both at Goa, where the Branch Office of Intertek, which had issued the disputed certificate, was situated and at Yellapur where DLC had its registered office. Vivek Hebbar, the Managing Director is said to have been 70 arrested at Bangalore in connection with that case and he was said to have been in custody for three months. There has been a settlement between DLC and SMC, even though serious allegations had been made by SMC against Vivek Hebbar, representing DLC. There was a detailed final report filed by the Yellapur Police to state the particulars of transaction with reference to the pending case at Raipur as well as the proceedings initiated by Intertek at Goa in FIR 27/2011. DLC, in its private complaint in 45/2011, also having made serious allegations against SMC, of having conspired with Prasanna Ghotage in making a false claim, it apparently arrived at a settlement where monies seem to have been paid by Vivek Hebbar to SMC and the terms on which such settlement was arrived or that it was after taking the court into confidence is not made clear, except it is indicated that Vivek Hebbar was dropped from the proceedings in FIR 283/2011 at Raipur and the case is said to be pending only against Prasanna Ghotage and others.71
Incidentally, Intertek is said to have carried out an internal investigation pursuant to the allegations made against the company of fraud in issuing the disputed certificates and it is stated that Intertek, in the usual course of business, preserves samples, in respect of which, certificates are issued by it and accordingly, it was in a position to cross-check the very samples, in respect of which, the disputed certificate was issued. It is candidly admitted by Intertek that the certificate issued in the transaction was inaccurate and was apparently the mischief, which has also been identified by Intertek, as being the handiwork of one of its employees namely, Ravi Kumar, who had incidentally resigned from the company, abruptly, a few days after he had issued the disputed certificate and that has prompted Intertek to initiate criminal proceedings against Ravi Kumar as well as against the immediate beneficiary of such false certificate, namely, DLC and its management. Insofar as the private complaint in 45/2011 is concerned, as already stated, there was a detailed final report filed by the Yellapur Police to state the particulars of transaction, with reference to the pending 72 case at Raipur as well as the proceedings initiated by Intertek at Goa in FIR 27/2011 and therefore had opined that in the light of those two cases being in relation to the very same transaction and the very same parties involved, the present complaint could at best be treated as a civil dispute. Further insofar as Prasanna Ghotage is concerned, there were no adverse findings in the final report. DLC, however, having chosen to file a memo pursuant to the final report filed by the Police, which has been extracted hereinabove, to state that the matter has been settled out of court, and that the complainant is not interested to file objections to the 'B' Final Report and without any further reservation, or an indication that it has learnt that the actual accused are others and that it would reserve its right to file a fresh complaint, would imply that not only was DLC giving up its allegations against SMC and its two partners, accused nos.1 to 3, in the said complaint, it would also include Prasanna Ghotage, accused no.4 in that complaint. Incidentally, there were no allegations against Intertek in the said complaint. It is only after Intertek has initiated proceedings that a fresh 73 complaint in 76/2011 is initiated by DLC. Here again, though the final report filed by the Police in 45/2011 had clearly referred to the proceedings initiated by Intertek and its disclosure that one of its employees was responsible for the entire mischief having been stated, the complaint in 76/2011 has included the top management of Intertek and its other officials, but has curiously excluded Ravi Kumar, the named signatory to the disputed certificate in the complaint, but was listed as a witness for the complainant in 76/2011.
The case-law does not prohibit a second complaint, if the second complaint is lodged with an intention to disclose a larger picture of an incident, on discovery of latent facts and circumstances, which at first blush, may have mislead the complainant, or on discovery of material which has been brought to light subsequently. Nor is a counter complaint prohibited by one of the parties, who may have been arraigned as the accused. That 74 however, is subject to limitations, as spelt out in the several authorities cited hereinabove.
Insofar as the present case on hand is concerned, though it is canvassed that DLC believed that SMC was making a mischievous claim, to forestall DLC from claiming a higher price for the iron ore, which was found with iron content exceeding the contractual specifications, in respect of which, it was entitled to the additional amount, corresponding to the percentage of increase in the iron content beyond the contractual specifications. But it had then discovered that the real accused were Intertek and Prasanna Ghotage, who had together conspired to defraud not only DLC, but also SMC in the transaction. This argument is a plausible argument, except that the manner in which DLC has conducted itself in this course of events, would not enable it to claim such a smooth transition insofar as the present allegations are concerned. As already pointed out, the understanding on the basis of which, DLC has been dropped from the proceedings in a case instituted by SMC 75 is not disclosed, except the vague statements made that huge sums of money have been paid by DLC, through its Managing Director to SMC. The alleged tri-partite agreement, which is a pre-cursor to the entire episode between Prasanna Ghotage, DLC and SMC is admittedly not available on record. The terms of the same are only vaguely indicated. There is hence no material on record to demonstrate that Prasanna Ghotage has made illegal gain on account of any conspiracy entered into with Intertek. More importantly, Intertek is a certifying agency and not a commission agent. It would be expected that the Intertek would charge its professional fees for issuing the certificates. There is no indication that there has been any illegal arrangement between Intertek and Prasanna Ghotage. In any event, the entire supply and delivery of the material and issuance of a disputed certificate has been at Goa, namely, Marmagao port. There is no material on record nor is there any assertion by the complainant that there has been commission of any offence or other act within the jurisdiction of the Court of the JMFC, at Yellapur, for the complaint to be entertained at 76 Yellapur. The argument that cheque payments have been made from Yellapur and further that the complaint has been instituted and that the court is yet to take cognizance of the same and since the court has merely directed investigation into the allegations in the complaint by the Police, there is no injustice or prejudice caused to the petitioners, if the process is allowed to be completed whereby the court would be in a position to even summarily reject the complaint, if the argument of the petitioners is to be accepted, is again a contention, which was tenable if the complaint was a fresh complaint, whereby the Court and the Police had no inkling of the allegations. On the other hand, a detailed investigation having been conducted even in respect of the part played by Intertek and Prasanna Ghotage and also with reference to the pending proceedings at Goa and Raipur in the earlier complaint, it would certainly result in an abuse of process in permitting the present complaint in 76/2011 to be pursued to the prejudice of the petitioners. Since the courts at Goa and at Raipur are already seized of the transaction and the 77 version sought to be given by the complainant in respect of the same transaction and to urge that it is in the nature of a counter case and cannot be shut out, is possibly on a strict application of the legal provisions and on a narrow view of the procedure, also requiring a certain amount of naivity of this court to ignore the intention on the part of DLC in seeking to avail of the process of the court, only in order to get back at the complainants in the pending proceedings. Added to this, DLC is said to have initiated yet another First Information Report at Yellapur against Prasanna Ghotage and eleven others in February 2012, which is pending. These multiple proceedings sought to be initiated by DLC in the face of investigations having been carried out by the Raipur Police, the Goa Police and the Yellapur Police seeking to make out different versions of basically the. same allegations is certainly apparent. Therefore, this court is of the firm opinion that the proceedings initiated by the respondent in Private Complaint No.76/2011 is mischievous and an abuse of process of law.78
Accordingly, the petitions are allowed. The proceedings in Private Complaint No.76/2011 pending on the file of the Court of the JMFC, Yellapur, are quashed.
Sd/-
JUDGE Nv