Madras High Court
K. Radhakrishnan vs Thirumani Asphalts & Felts (P.) Ltd. on 1 December, 2001
Equivalent citations: [2004]120COMPCAS493(MAD)
Author: M. Karpagavinayagam
Bench: M. Karpagavinayagam
ORDER M. Karpagavinayagam, J.
1. Thirumani Asphalts & Felts (P.) Ltd., the respondent herein filed two complaints against K. Radhakrishnan in S.T.C. Nos. 2470 and 3011 of 1993 under Section 630 of the Companies Act, 1956 ('the Act') praying for the conviction and return of the property belonging to the company. After trial, in the year 1995, both the cases were ended in conviction. The petitioner was sentenced to pay fine and he was directed to return the properties to the company. Challenging the same, the petitioner preferred revisions in C.R.P. Nos. 63 and 64 of 1995 before the sessions court and the same were dismissed. Hence, he filed petitions under Section 482 of the Code of Criminal Procedure, 1973 before this Court in Crl. O.P. Nos. 6150 and 9040 of 1998 and the same were dismissed on 12-5-1999.
2. Again, the petitioner filed Crl. O.P. Nos. 15288 and 15289 of 1999 under Section 482 before this Court. The said applications also were dismissed. In the meantime, the respondent filed execution petitions in Crl. M.P. Nos. 3538 and 3539 of 1999 in both the complaints praying for the execution of the orders passed by the trial court earlier in the year 1993 in S.T.C. Nos. 2470 and 3011 of 1993. After hearing the counsel for the parties, the said petitions were allowed giving a direction to the petitioner.
Accordingly, in both the complaints, the execution court by the order dated 8-12-1999 directed the petitioner to hand over the motor vehicle and the records to the complainant within one week and in default, he would undergo R.I. for six months. Challenging the same, these two revisions have been filed.
3. The counsel for the petitioner would submit that pending the applications filed by the respondent for execution in Crl. M.P. Nos. 3538 and 3539 of 1998 before the Execution Court, the petitioner filed a memo under Section 362 of the Code of Criminal Procedure to review the matter in view of the fact that the order passed by the Civil Court in regard to the issue in question is in his favour and the same has been returned without consideration. It is also submitted that in the connected matter, this court passed an order in Crl. R.C. No. 33 of 1996 dated 19-6-1998 in not available 1998 Crl. L.J. 3583 remanding the case after setting aside the dismissal order passed under Section 203 Code of Criminal Procedure directing the trial court to allow the parties to adduce evidence and decide the issue and that therefore, the petitioner need not comply with the order passed by the trial court in S.T.C. Nos. 2470 and 3011 of 1993 and consequently, the orders passed in the execution petitions in Crl. M.P. Nos. 3538 and 3539 of 1998 are illegal.
4. In order to substantiate his plea, the counsel for the petitioner would refer the authorities in V.M. Shah v. State of Maharasthra , United India Insurance Co. Ltd. v. Rajendra Singh and MM. Thomas v. State of Kerala contending that the Courts have got power of review.
5. On the other hand, the learned counsel for the respondent would point out that the trial Court, while passing an order of conviction after trial in the main complaints in the year 1995, considered the materials available on record and correctly passed an order of conviction and when the said order was confirmed by the sessions court as well as this Court, the same cannot be set aside merely on the reason that some interim orders were passed by the Civil Court which are in interlocutory nature. He would also submit that the petitioner has successfully drag on the matter from 23-8-1995, the date of conviction till today without complying with the orders passed by the Sessions Court and this Court. He would further submit that the orders passed earlier by the trial Court cannot be reviewed, in view of the dictum laid down by the Supreme Court in Rajan Kumar Machananda v. State of Karnataka [l990] S.C.C. (Crl.)537 and Hari Singh Mann v. Harbhajan Singh Bajwa [2000] AIR SCW 3848.
6. I have carefully considered the contentions on either side and perused the records.
7. On a careful analysis of the records, I shall state that the petitioner has not come with clean hands. He has abused the process of law, thereby floated the orders of various Courts including this Court. The above conclusion has been arrived at due to the following circumstances.
8. The respondent is a company incorporated under the Act. It has got five directors of whom the petitioner held 40 per cent of the subscribed capital. The petitioner did not attend three consecutive Board Meetings and, consequently, he ceased to be the director as per the provisions of Section 283(1)(g) of the Companies Act. The petitioner was entrusted with the documents and motor vehicle in the capacity as the director. Through the board's resolution, the petitioner was directed to return the documents and the vehicle. Since they were not returned, the respondent filed two complaints in S.T.C. Nos. 2470 and 3011 of 1993 under Section 630.
9. The trial Court after enquiry, by the order dated 23-8-1995 convicted the petitioner in both the complaints and sentenced to pay fine and directed the petitioner for the return of the records and motor cycle.
Challenging the same, the petitioner filed two revisions in C.R.P. Nos. 63 and 64 of 1995 before the Sessions Court. The said revisions were dismissed by the order dated 17-3-1998 confirming the order of conviction by the trial Court. Against these orders, the petitioner preferred petitions under Section 482 in Crl. O.P. Nos. 6150 and 9040 of 1998, which also resulted in dismissal by this Court by the order dated 12-5-1999.
10. Thereafter, the petitioner again chose to file similar petitions under Section 482 in Crl. O.P. Nos. 15288 and 15289 of 1999 before this Court praying for setting aside the orders passed by the trial Court in S.T.C. Nos. 2470 and 3011 of 1993 dated 23-8-1995. After hearing the counsel for the parties, this court dismissed the said petitions specifically observing that the applications were not only unsustainable in law but also clear abuse of process of the Court. At that stage, the respondent filed applications for execution before the trial court and the same were allowed.
11. It is seen from the orders passed by the trial Court in S.T.C. Nos. 2470 and 3011 of 1993 dated 23-8-1995 and the orders of the Sessions Court in C.R.P. Nos. 63 and 64 of 1998 dated 17-3-1998 and the orders passed by this Court in Crl. O.P. Nos. 6150 and 9040 of 1998 dated 12-5-1999 and the orders passed by this Court again in Crl. O.P. Nos. 15288 and 15289 on 26-10-1999 would clearly show that the counsel for the petitioner has argued before all the forums that the matter is pending before the Civil Court and the interim orders have been passed in favour of the petitioner and that, therefore, the criminal court will not have jurisdiction to find the petitioner guilty. This point has been deal with by every forum.
12. At this juncture, it would be worthwhile to refer to the observation made by this Court in the applications under Section 482 filed by the petitioner in Crl. O.P. Nos. 6150 and 9040 of 1998 dated 12-5-1999, which is this:
"Coming to the facts of the instant case, it should be pointed out that the complaint has been preferred against the petitioner as early as 1993. The trial Court has disposed of the matter on 23-5-1995 and the revisional court has also disposed of the matter on 17-3-1998. It is curious that the petitioner had filed the civil suit only during 1998. Of course, the petitioner had filed a company petition in C.P. No. 1/96 before this court, which was later dismissed. Even C.P. No. 1/96 had not been filed before the learned Judicial Magistrate disposed of the criminal case pending against the petitioner. What has been stated by Their Lordships of the Supreme Court in Atul Mathur v. Atul Kalra [1989] (4) Supreme Court Cases p. 514 squarely applies to the facts of the instant case, because the petitioner had filed a suit in civil court, under the given circumstances, it cannot be said that the civil court was in seisin of the matter at the time when the learned Judicial Magistrate passed order."
13. In the above paragraph, the learned single Judge of this Court would specifically refer about the decision of the Supreme Court in Atul Mathur v. Atul Kalra , wherein it is held that merely because the accused had schemingly filed a suit in civil court, it can never be said that the civil court was in seisin of a bona fide dispute between the parties and as such, the Criminal Court should have stayed its hands when the Company filed a complaint under Section 630 of the Companies Act. Thus, it is clear that the point urged before this Court has already been dealt with by this Court as early as 12-5-1999.
14. Instead of challenging the said orders passed by this Court before the Apex Court, the petitioner chose to approach this Court again by filing other applications, as noted above, in Crl. O.P. Nos. 15288 and 15289 of 1999. When a similar argument was advanced before another single Judge of this Court, he would make the following observation rejecting the said contention:
"It is necessary to state that the learned Judicial Magistrate No. VII, Coimbatore had imposed a fine of Rs. 200 against the petitioner on 23-8-1995. Thereafter only, the petitioner filed two revision petitions before the Sessions Court, Coimbatore and they were also dismissed. Later, the petitioner filed two petitions under Section 482 of the Code of Criminal Procedure, raising the very same grounds and they were also dismissed. In spite of this, it is not known how the present petitions have been filed under Section 482 of the Code of Criminal Procedure raising the very same ground. If really the petitioner was aggrieved against the orders passed by this Court in Crl. O. Ps. 6150 and 9040 of 1998, he ought to have moved the Apex Court after obtaining special leave. The conduct of the petitioner would only indicate that these two petitions are again filed reiterating the very same contentions, which have been negatived by this Court in the earlier proceedings."
15. While arguing in the said applications, the learned counsel for the petitioner would refer about the connected matter in Crl. R.C. No. 33 of 1996, wherein the matter was remanded for fresh enquiry and contended that the order of conviction was illegal. While dealing with the said contention, the learned single Judge in the said order would correctly observe that the order of remand cannot be made use of to set aside the order of conviction by the trial court as these proceedings are different.
16. In this context, I shall state that Crl. R.C. No. 33 of 1996 was disposed of by me by remanding the matter to conduct enquiry in regard to the averments made in the complaint filed by the petitioner. The said order was passed in the year 1998. The said matter which arises out of the complaint filed by the petitioner would not in any way affect the order of the trial Court convicting the petitioner for the offence under Section 630 after conducting trial which was passed in the year 1995. Therefore, the remand observation made in the above order also was correctly negatived by the learned single Judge. While dismissing the said applications, this Court in its order dated 26-10-1999 would observe that those applications filed under Section 482 seeking for the review of the order passed by this Court earlier are not maintainable and they are nothing but an abuse of process of law.
17. As a matter of fact, the specific finding has been given in the said order that the company adduced evidence both oral and documentary to establish that the Board of Directors decided to get back or recover the property belonging to the company from the petitioner and when once this has been established, the only course open to the petitioner is to return the property. Despite this order, no attempt has been made to comply with the order by the petitioner.
18. The said order also has not been challenged before the Apex Court. On the other hand, the petitioner chose to file a memo before the trial Court seeking for review of its own order on the basis of some observation made in V.M. Shah's case (supra), that too when the petitions filed for execution in Crl. M.P. Nos. 3538 and 3539 of 1998 were pending before the execution court. As a matter of fact, the Supreme Court in V.M. Shah's case (supra) has been referred to in the order dated 12-5-1999 passed by this Court.
19. Though it is stated in some of the decisions as pointed out by the learned counsel for the petitioner that the Court has got power to correct any error apparent on the face of record, the same cannot be done in this case, in view of the bar engrafted under Section 362 and also in view of the dictum laid down in Hari Singh Mann's case (supra). It is held in the above judgment of the Supreme Court as follows :
"There is no provision in the Code of Criminal Procedure authorising the High Court to review its judgment passed either in exercise of its appellate or revisional or original criminal jurisdiction. Such a power cannot be exercised with the aid or under the cloak of Section 482, Section 362 of the Code mandates that no Court, when it has signed its judgment or final order disposing of a case shall alter or review the same except to correct a clerical or arithmetical error. The section is based on an acknowledged principle of law that once a matter is finally disposed of by a Court, the said Court in the absence of a specific statutory provision becomes functus officio and disentitled to entertain a fresh prayer for the same relief unless the former order of final disposal is set aside by a Court of competent jurisdiction in a manner prescribed by law. The Court becomes functus officio the moment the official order disposing of a case is signed. Such an order cannot be altered except to the extent to correcting a clerical or arithmetical error."
20. In view of the above observation of the Supreme Court, it can be held that the petitioner filed application after application before this Court by abusing process of law in order to achieve the object of the complainant not getting the fruits of the order.
21. One other disturbing feature which can be noticed in this case is that the petitioner did not choose to refer about the orders passed under Section 482 dated 26-10-1999 either in the counter filed for the execution petitions before the trial Court or in the memo which was subsequently returned or in the revision petitions filed before this Court. This is nothing but suppression of the material fact. Thus, I am clear to reiterate the observation made by the learned single Judge in Crl. O.P. Nos. 15288 and 15289 dated 26-10-1999 that the petitioner in order to flout the orders of the Courts has preferred these revisions without clean hands by suppressing the facts.
22. As pointed out by the learned counsel for the respondent, the interim orders, which are in interlocutory nature, passed by the civil court in the interim applications pending suit would not automatically change the finding of the Criminal Court which was given on the basis of the materials placed before it. It is also admitted that there is no full-fledged trial and ho finding has been given by the civil court after trial is Over. Therefore, both the revisions are dismissed. Consequently, connected Crl. M.Ps. are closed.
23. In view of the conduct of the petitioner, who has dragged on the matter for long number of years by abusing the process of law in the Courts, I deem it fit to impose costs of Rs. 10,000 in each petition and the same shall be paid directly to the respondent within one month from today, and accordingly ordered.