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2020 Supreme(Mad) 2407
IN THE HIGH COURT OF JUDICATURE AT MADRAS
N. ANAND VENKATESH, J.
N. Dhanraj Kochar & Others - Appellant
Versus
State Rep. By The Inspector of Police, Central Crime Branch -I, Chennai & Another - Respondent
Crl.OP Nos. 7325, 11095, 11427 of 2018 in Crl.MP. Nos. 12460, 3774, 5705, 5940 of 2018
Decided On : 15-02-2020
Advocate Appeared:
For the Appellant : B. Kumar, R. Bharath Kumar, Adv.
For the Respondents:C. Raghavan, Government Advocate, R. Shanmugasundaram, Adv.
Headnote:
Criminal Procedure Code, 1973 - Section 482, 300, 220(1), 221(1), (2), 258 and 482 - Constitution of India, 1950 - Article 20(2) - Indian Penal Code, 1860 - Sections 408, 409 , 109, 420, 468 and 120-B - General Clauses Act, 1897 - Section 188 - Company - Funds were Diverted and Properties were Purchased - Whether allegations made in complaint given by 2nd Respondent formed part of same transaction for which earlier complaint was given by father of 2nd Respondent which ultimately culminated in conviction and sentencing of some of Petitioners - Whether 2nd Respondent can once again initiate a fresh complaint after 11 years, for misappropriation which took place in course of same transaction – Held, Contention of appellants is that prior acquittal in second case operates as a bar to conviction in present case and High Court ought to have given appellants benefit of prior acquittal - Appellant was no less entitled to rely on his acquittal insofar as it might be relevant in his defence - That it was not conclusive of his innocence on firearm charge is plain, but it undoubtedly reduced in some degree weight of case against him, for at first trial facts proved in support of one charge were clearly relevant to other having regard to circumstances in which ammunition and revolver were found and fact that they fitted each other - 2nd Respondent has virtually reignited a failed attempt of his father after 11 years and same is clearly barred by law - In view of above discussion, complaint given by 2nd Respondent against Petitioners is a clear abuse of process of law which requires interference of this Court in exercise of its jurisdiction under Section 482 of Code of Criminal Procedure, 1973 – Petition allowed.
Key Points: - The complaint by the 2nd Respondent is barred under Section 300 because the same transaction and facts were already dealt with in the earlier trial (!) (!) . - The FIR registered under Crime No. 73 of 2018 is an abuse of process and lacks legal foundation (!) (!) . - The prior acquittal of the 1st Petitioner operates as a bar to the renewed complaint under Section 482 read with Section 300 (!) (!) . - The High Court is required to interfere and quash the FIR under Section 482 in view of the abuse of process (!) (!) . - The transaction forming the subject of the complaint is the same as in the earlier case and forms part of the same criminal misappropriation (!) (!) . - The death of the father of the 2nd Respondent does not give rise to a fresh cause of action to revive the complaint (!) (!) . - The complaint filed after an unexplained delay of 11 years is not maintainable (!) . - The facts and issues involved in all petitions are common and are being disposed of together (!) . - The conviction of some accused persons in the earlier trial supports the conclusion that the transaction is the same (!) . - The FIR is quashed and the petition is allowed, closing the connected miscellaneous petitions (!) .
What is the scope of Section 300 of the Code of Criminal Procedure regarding retrial after acquittal or conviction?
What are the grounds for quashing an FIR under Section 482 of the Code of Criminal Procedure?
What constitutes a bar of res judicata or autrefois acquit in criminal proceedings?
JUDGMENT/ORDER :
Prayer: Criminal Original petition has been filed under Section 482 of Cr.PC to call for the records relating to Crime No.73 of 2018 on the file of inspector of police, Central Crime Branch – I, Chennai CCB, Vepery, Chennai.
The issues involved in all these petitions are common, and therefore, they are taken up together, heard and disposed of through this common order.
2. The FIR registered by the 1st Respondent in Crime No. 73 of 2018, is the subject matter of challenge in all these petitions.
3. The 2nd Respondent preferred a complaint before the 1stRespondent alleging that his father, along with A-1 and one Mr. Abdul Rawoof formed a company registered in the name M/s. D.R. Foundation and Estates Pvt. Ltd., and that his father had invested a sum of Rs.1.71/- crores in the said Company. The object of the Company was to purchase lands in its name at Siruseri and Chemmencheri villages, respectively. It was alleged that the funds were diverted and properties were purchased in the name of the family members of A-1 with the help of A-11. This resulted in a complaint being given by the father of the 2nd Respondent before the Crime Control Bureau, Chennai and the same was registered in Crime No. 815 of 2006. The complaint was given against 11 named accused persons, and all of them faced trial in C.C. No. 530 of 2007 before the learned Judicial Magistrate, Alandur. The learned Magistrate by judgment dated 01.11.2017 convicted A-1, A-2, A-3, A-5,A-7, A-8, A-9 and A-10 for various offences under the Indian Penal Code, 1806 and sentenced them accordingly. While so, the 2nd Respondent noticed that the accused persons had entered into an agreement of sale with M/s. Lanco Horizon Pvt. Ltd. on 23.05.2007 during the pendency of the earlier criminal proceedings, by misappropriating the amount invested by his father. Hence, according to the 2nd Respondent, the accused persons have committed an offence of cheating. Based on this complaint, the 1st Respondent has registered an FIR in Crime No. 73 of 2018.
4. Mr. B. Kumar, learned senior counsel appearing on behalf of the Petitioners/Accused 1 to 3, 5,6, 8 to 10 in Crl. O.P. Nos. 11095 and 11427 of 2018, made the following submissions:
The 2nd Respondent does not have the locus standi to file a complaint since he is not even a shareholder in the Company.
Even if the 2nd Respondent is taken to be a shareholder of the Company, he will only be entitled to claim for the dividend if so, declared by the Company and the claim for the property will arise only at the time of winding up of the Company. Therefore, the very basis of the complaint is unsustainable in law.
The properties purchased became a subject matter of challenge in O.S. No. 317 of 2007, which was filed by the father of the 2nd Respondent and on his death, the 2nd Respondent was also impleaded as a party, and this suit came to be dismissed by judgement dated 05.10.2009 and an appeal against the said judgment and decree is now pending before this Court in A.S. No. 1002 of 2009. Much after this judgement, the 2nd Respondent has given this complaint and the same amounts to misuse of criminal law.
The father of the 2nd Respondent, even during the pendency of the earlier criminal proceedings had sought for a further investigation on the very same transaction that took place with M/s. Lanco Horizon Pvt. Ltd. and the same was dismissed. This transaction also formed part of the earlier criminal proceedings which dealt with misappropriation of the amount invested by the father of the 2nd Respondent and the present complaint on the same cause of action is barred under Article 20(2) of The Constitution of India, 1950 and Section 300 of The Code of Criminal Procedure, 1973.
There was no cause of action for the 2nd Respondent to give a fresh complaint in the year 2018 and even assuming that there is one, there is an unexplained delay of near
