IN THE HIGH COURT OF KARNATAKAjudgmenthck.kar.nic.in/judgments/bitstream/... · Pandari, Raipur District, Chattisgarh State, with a branch office at Panaji, Goa State, (Hereinafter

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.


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,


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,


Dream Chambers (India) Pvt.Ltd.,

Yellapur, Tal: Yellapur,

Uttar Kannada District.

Karnataka State. . . . .RESPONDENTS


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


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






A company incorporated under the





S/o Govinda Hegde,


Dream Logistics Company (India) Pvt.Ltd.,





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


‘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.


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






a company incorporated under the





S/o Govinda Hegde,


Dream Logistics Company (India) Pvt.Ltd.,


8




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


‘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.

78

Accordingly, the petitions are allowed. The proceedings

in Private Complaint No.76/2011 pending on the file of the

Court of the JMFC, Yellapur, are quashed.

Sd/-

JUDGE

Nv

Documents

IN THE HIGH COURT OF KARNATAKAjudgmenthck.kar.nic.in/judgments/bitstream/... · Pandari, Raipur District, Chattisgarh State, with a branch office at Panaji, Goa State, (Hereinafter