COMMON ORDER

The issues involved in all these petitions are common, and therefore, they are taken up together, heard and disposed of through this common order.

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2. The FIR registered by the 1 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 st

1 Respondent 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 nd

2 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 nd sentenced them accordingly. While so, the 2 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:

nd · The 2 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 nd the father of the 2 Respondent and on his death, the nd

2 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.

nd · The father of the 2 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 nd invested by the father of the 2 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 nearly 11 years in giving the complaint and the same is fatal to the maintainability of the present FIR.

· The learned senior counsel in order to substantiate his submissions, relied upon the following judgments: (a) Prem Kumar v. the State of Rajasthan reported in 2016 SCC OnLine SC 923 (b) Kishan Singh v. Gurpal Singh