Post on 01-Aug-2020
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.