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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 that the shipment was as per contract on the basis of false and forged documents and hence had suffered a monetary loss.

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 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 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 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.

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 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 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 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.

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 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 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.