SEKAR REPORTER

Court News from Madras High Court

that view of the matter, the criminal revision is disposed of on the following terms:- The order of the learned Chief Judicial Magistrate in Cr.M.P.No.1825 of 2017 is upheld; The personal appearance of the petitioners in C.C.No.29 of 2017, before the learned Chief Judicial Magistrate, Puducherry, is dispensed with, except for such hearings as may be subsequently insisted by the Trial Court. 8.Consequently, the connected miscellaneous petition is also closed. 02.08.2022            Index : yes/no Speaking/Non-speaking order drm To The Chief Judicial Magistrate, Pondicherry. The Public Prosecutor, High Court of Madras. D.BHARATHA CHAKRAVARTHY, J. drm Crl.R.C.No.927 of 2021 in Crl.M.P.No.12729 of 2021 02.08.2022 [1] AIR 1968 SC 177 [2] AIR  1985 Supreme Court 1285 [3] AIR  1985 Supreme Court 1285 [4] AIR 1962 HP 28 [5] AIR 1932 Bom 398 [6] Crl.M.P. No.15385 of 2020, Order dated 13/10/2020 [7] 1932 Vol.25 LW page 32

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

Reserved on :  19.07.2022

Pronounced on :    02.08.2022

CORAM :

THE HON’BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY

Crl.R.C.No.927 of 2021 in

Crl.M.P.No.12729 of 2021

  1. Gurumoorthi
  2. Sangeetha @ Anbe Sangeetha .. Petitioners

Vs

Mohanasundaram Rajamany                          ..         Respondent

Prayer: Criminal Revision Case filed under Section 397 read with 401 Cr.P.C, to call for the records pertaining to the order dated 05.10.2021 in Cr.M.P.No.1825 of 2017 in C.C.No.29 of 2017 on the file of the Chief Judicial Magistrate, Pondicherry and set aside the same and discharge the petitioners from the above criminal proceedings.

For Petitioner                            : Mr.E.V.Chandru

For Respondent                           : Mr.K.Sukumaran

O R D E R A. The Revision :

Aggrieved by the order of the learned Chief Judicial Magistrate at Puducherry in Cr.M.P.No.1825 of 2017 in C.C.No.29 of 2017, in and by which the prayer of the petitioners / accused 1 and 2 to discharge them from the case, was refused by the learned Chief Judicial Magistrate, the present revision is filed.

  1. The Facts :

2.Before adverting to the contentions raised in the discharge application and submissions made before this Court, it is necessary to narrate the facts of the case as the case has got checkered history and both sides, by their own conduct, have added enough liquid to the soil and are now finding themselves sinking in the field quicksand created by them and facts are thus:-

  • On 10.09.2003, one Padma and Jaya, who had 2/5th share in the subject matter property, executed a Power of Attorney in favour of the first petitioner namely, A perusal of the said Power of Attorney, it recites that the principals  are not able to be personally present and carry out the necessary requirements and the power is given to manage the property including sale of the property and presenting documents for registration. However, the last sentence of the said Power of Attorney also reads that the Power of Attorney is irrevocable.
  • Thereafter, the said Padma and Jaya canceled the said Power of Attorney by a registered document dated 07.03.2006. It is also alleged that they have intimated the said cancellation to the first petitioner.
  • Thereafter, on 09.03.2006, the first petitioner / Gurumoorthy also filed O.S.No.349 of 2006 on the file of the learned Principal District Munsif, Puducherry, to declare the irrevocable power deed and Document No.1249 of 2003, dated 10.09.2003, is valid and for consequential permanent injunction restraining defendants 1 and 2 namely, the executors of the Power of Attorney Padma and Jaya from in any manner dispossesing the plaintiff out of the suit property except by due process of law and also for a permanent injunction restraining them from canceling the irrevocable power deed and for a further permanent injunction registering the District Registrar namely, the fourth defendant from registering the cancellation of power deed.
  • By four sale deeds executed by the daughters including the said

Jeya and Padma, on 16.10.2006, in respect of their  respective shares, the subject matter property came to be conveyed to one Abdul Kafoor, Abdullah, Sibuhathulla and the respondent/defacto complainant. More particularly, the share of the said Jeya and Padma was conveyed to the respondent/de-facto complainant.

  • On 23.06.2008, the second petitioner approached the Lok Adalat by way of pre-litigation petition, under Section 19 of the Legal Services Authority Act, 1985, as if the first petitioner executed the sale agreement on the strength of the Power of Attorney dated 10.09.2003, on 09.07.2005 and had agreed to sell the property for a total sale consideration of Rs.7,80,000/, and has already received a sum of Rs.7,50,000/- and, upon the said petition, the first petitioner being her husband, appeared before the Lok Adalat, submitted to the decree and consequentially an award was passed on 23.06.2008.
  • The learned Principal District Munsif, Puducherry was pleased to decree the suit in O.S.No.349 of 2006 on 29.10.2010.
  • On the strength of the said Lok Adalat award, a sale deed was also executed by the first petitioner in favour of the second petitioner by a sale deed dated 25.01.2011.
  • A suit for partition was filed among the sharers of the propertyincluding the above said Jaya and Padma in O.S.No.451 of 2003 and the same was dismissed for default.
  • One Ramesh, brother of the first petitioner Gurumurthy filed a suit in O.S.No.63 of 2007 for specific performance stating that when the Power of Attorney was in force on 15.12.2005, the first petitioner / Gurumoorthy, executed a sale agreement in his favour and received a sum of Rs.5,00,000/- as advance. It is stated that in the said suit, the said Ramesh has filed an affidavit whereunder, it was stated that the first petitioner had sent him an advocate notice, contending that the power of attorney has been canceled and that he has also acknowledged the cancellation as early as on 04.03.2008. The said suit was dismissed as withdrawn on 11.11.2008.
  • Yet another civil suit in O.S.No.897 of 2013 was filed by the respondent / complainant and others, praying for the declaration that the sale deed executed by the first petitioner in favour of the second petitioner, as null and void and the said suit was dismissed not pressed.
  • It is stated that the said suit was not pressed because, a petition was filed before the District Registrar to cancel the registration of the said document and the same was allowed by an order dated 04.03.2016 where under, the said sale deed was ordered to be null and void under Section 68(2) of the Registration Act.
  • The petitioners herein have filed W.P.No.11617 of 2016 challenging the said order dated 04.03.2016 and in the said writ petition, an interim order of stay of all further proceedings pursuant to the said order dated 04.03.2016 was granted. It is further seen that in spite of the interim order, further entries were made in the encumbrance certificate, as to the annulment orders and therefore, upon filing of the Contempt Petition No.1522 of 2016 by the second petitioner herein, learned Government Advocate, appearing on behalf of the District Registrar submitted that the further proceedings were immediately stopped upon receipt of the impugned order and it is now alleged by learned counsel for the petitioner that the entries relating to the order of the District Registrar in DRP.No.3 of 2016, were since removed pursuant to the undertaking given to them by the contempt petition and the matter is still pending before this Court.
  • It is pertinent to also state here that the respondent herein and the other parties also filed a complaint before the Consumer Grievance Redressal Forum under the Electricity Act and the said Tribunal by an order dated 14.07.2014 has also held that the name transfer of electricity connection in favour of the second petitioner is not valid and ordered the same to be canceled. And by the same order, it was held that the name transfer may be carried out in accordance with the Civil Court Judgment.
  • On 11.04.2012, the respondent filed a private complaint underSection 200 of the Code of Criminal Procedure alleging offences under

Sections 420, 423, 468, 471 and 474 of the Indian Penal Code r/w Section 34 of the Indian Penal Code. According to them, the first petitioner, with the full knowledge that the power of attorney is cancelled, fraudulently created an agreement of sale in favour of his own wife and then suppressing the facts that they are husband and wife, the second petitioner, without an lis whatsoever, had filed a fraudulent petition before the Lok Adalat and got a collusive award and thereafter the first petitioner executed a sale deed in favour of the second petitioner and thus, created false document to cheat the respondent/complainant who is the real owner of the property. The said complaint in Cr.M.P.No.1303 of 2012 was referred for investigation by the learned Chief Judicial Magistrate under 156(3) of the Code of Criminal Procedure, by order dated 11.04.2012.

  • Upon such referral, the Inspector of Police, Grand Bazaar Police Station, registered a case in Crime No.156 of 2012 and took up the case for investigation and filed a final report before the learned Chief Judicial Magistrate on 10.04.2014, holding that the matter was civil in nature.
  • Upon filing of the final report, notice was issued to the respondent / defacto complainant and the respondent / defacto complainant filed a protest petition in Cr.M.P.No.3065 of 2015 and by an order dated

24.08.2016, the learned Chief Judicial Magistrate by taking into account the civil matters between the parties, held that the rights of parties, that is, the title of the complainant or the case is to be duly established before the Civil

Court of law and the issue relating to the title cannot be gone into by the Criminal Court. The learned Chief Judicial Magistrate further recorded the submissions of both side learned counsel including that of the learned Assistant Public Prosecutor regarding pendency of the suit and the other proceedings and held that it was just and proper for the Court to accept the final report. It was also ordered that if the defacto complainant is aggrieved, he may proceed by way of a complaint under Section 200 of the Code of Criminal Procedure and it is useful to extract the order of learned

Magistrate, which is hereunder:-

“In this circumstances, this Court is of the opinion that it is just and proper to accept the final report. At the same time, if the defacto complainant is aggrieved by this order, he may proceed the complaint under Section 200 Cr.P.C to prove his case.  In the result, the final report is recorded as civil nature. The defacto complainant is at liberty to proceed the complaint under Section 200 Cr.P.C against the accused to prove his case.”

  • Thereafter, once again, the present complaint was filed on 19.09.2016, under Section 200 of the Code of Criminal Procedure which was taken on file as C.C.No.39 of 2017 for the offences under Sections 420, 423, 468, 471 and 474 of the Indian Penal Code r/w Section 34 of the Indian Penal Code.
  • It is at this stage, the petitioner filed an application under Section 245(2) of the Code of Criminal Procedure to discharge the petitioners on the ground that the complaint is groundless to be proceeded further against the petitioners. The said petition came to be dismissed by the order dated 05.10.2021 against which, the present revision is filed before this Court.
  1. The Contentions of the Parties:

3.1.The petitioners in the discharge application would contend  that when the respondent had filed a private complaint under Section 200 of the Code of Criminal Procedure in respect of the very same allegations in Cr.M.P.No.1303 of 2012 and when the same was referred for investigation and the jurisdictional police having registered the First Information Report in Crime No.156 of 2012 for the self same offences on 11.05.2012 and after investigation, having filed a detailed final report referring the case as civil in nature and when the respondent has also filed a protest petition in Cr.M.P.No.3065 of 2015 and when learned Chief Judicial Magistrate has considered the said protest petition on merits and had also come to the conclusion that the matter is civil in nature and that the parties to agitate their title dispute in the Civil Court, there was no ground for once again filing another complaint on the same set of allegations and therefore, the same is not maintainable on the face of it and therefore, the complaint is groundless and the petitioners should be discharged.

3.2.It is their further contention submit that the protest petition itself would amount a second complaint and wherein the complainant had agitated all the grounds and same having been decided on merits, absolutely there is no scope for filing one more complaint on the same issue and therefore, the petitioners are entitled to be discharged.

3.3.The second ground of submission is that the rights of the parties in this case are already decided by the concerned Civil Court. The petitioners’

Power of Attorney was irrevocable in nature and therefore, the Civil Court has passed a decree declaring that the said irrevocable Power of Attorney is valid and the original  execution of the said Power of Attorney has not agitated the matter further and the Civil Court decree has become final. This apart, the counter suit filed by the respondent herein also was withdrawn as not pressed and therefore, when the matter has become final in the connected civil proceedings between the parties, there is no question of once again making an allegation contrary to the Civil Court decree. Therefore, on the face of it, the complaint is not maintainable and groundless and therefore, the petitioners are entitled to be discharged.

3.4.Per contra, learned counsel appearing on behalf of the respondent would submit that firstly, as far as the Civil Court decrees are concerned, the same cannot be held to be conclusively determining the rights of parties because inasmuch as the first decree in the suit filed at the petitioners are concerned, even before the decree, the Power of Attorney was canceled and the cancellation document was registered and the sale deed was also registered further alienating the property in favour of the third party. Therefore, there was in any occasion for the respondent / complainant to take up the matter further and when the decree was passed on the face of it, without considering any of the above, the same remained only on paper as permanent injunction granted subsequent to the acts prohibited, which have been already carried into, does not have any effect whatsoever. As far as the second suit is concerned, it is contested by learned counsel for the petitioner that even pending the suit on an application, by way of proceedings before the District Registrar under the statute namely, the Registration Act, the very documents which are created by the petitioner stood annulled and therefore, in that view of the matter, the respondent did not want to proceed further with the suit and accordingly, the same was not pressed. Therefore, he would submit that the submission made by learned counsel for the petitioner that the title of the parties have already been decided by the Courts below cannot be countenanced.

3.5.As far as the other contentions regarding maintenance of the second complaint in respect of the same cause of action is concerned, learned counsel would submit that under the Code of Criminal Procedure, Section 300 bars when the accused had stood trial and has been acquitted  or discharged. In this case, earlier complaint only resulted in the report of the Investigating Officer that the matter was civil in nature and the dismissal of the protest petition was with liberty to file a fresh complaint under Section

200 of the Code of Criminal Procedure. In that view of the matter, he would submit that the law has been laid down by the Hon’ble Supreme Court of India in a series of judgments that the second complaint is maintainable but under special and exceptional circumstances. He would submit that the facts of this case, gives rise to special and exceptional circumstances for two reasons. Firstly, the learned Chief Judicial Magistrate himself, while accepting the final report, had not finally given quietus and fully disposed of the complaint but however, had given liberty to the respondent to once again file a private complaint. The second circumstance is that in this case, when the petitioner and the respondent are husband and wife, when there is no even an enabling clause in the Power of Attorney to register the document in the name of the wife, when the first petitioner had issued a reply notice that already the Power of Attorney has been canceled and that he also accepted the receipt of the notice in the suit filed by his brother, thereafter, clandestinely as set up his wife namely, the second petitioner to give a petition before the Lok Adalat and having submitted to decree and having lead the Lok Adalat to pass an award in their favour as if there is a dispute and as if they are compromising the matter and creating false documents, the said acts have not been answered in any manner whatsoever in the earlier proceeding is a special circumstance for the complainant to file the second complaint.

3.6.In support of his submission, learned counsel relied upon the judgment in Munilal Thakur and others Vs. Nawal Kishore Thakur and others1, in which, the division bench of the Patna High Court had clearly held that merely because the Magistrate had earlier refused to take cognizance of case of police report, the proposition that he cannot thereafter take cognizance of private complaint was erroneous. Paragraph No.12 of the said Judgment is  extracted hereunder:

“12. An appeal against this very judgment was taken to the Supreme court in Gopal Vijay Verma vs Bhuneshwar Prasad Sinha [(1982) 3 SCC 510] supra, which came up before a Bench presided over by Chinnappa Reddy, J., who, as noticed, was a party to the judgment in the case of H.S.Bainis [1980 Cri LJ 1308]. Categorically reversing the High Court’s order and virtually assuming the matter to be axiomatic their Lordships summarily disposed of the matter as under:

“The High Court was clearly in error in thinking that the Magistrate could not take cognizance of a case upon complaint because he had

  • 1985 Crl LJ 437

earlier refused to take cognizance of the case on a police report. the order of the High Court is set aside. The matter is remitted to the Chief Judicial Magistrate, Patna for disposal according to law. If the accused have any further objections to raise, they may do so before the Chief Judicial Magistrate.”

3.7.He would further rely upon the judgment in P.N.Bhagwant Singh vs Commissioner of Police2, morefully, relied upon paragraph 4 and 5 of the said judgment in order to press home the rights available for the defacto complainant at all stage of the proceedings and morefully, after the filing of the negative report by the Police.

3.8.Learned Counsel Mr. V. Sukumaran, further relied upon the Judgment in Jatinder Singh and others Vs Ranjit Kaur4, morefully paragraph No.9, in which, it has been categorically held by the Hon’ble Supreme Court of India that there is no provision in the Code or any other stature, which debars the complainant from preferring a second complaint on the same allegation, if the first complaint did not result in conviction or acquittal or discharge. Even when the Magistrate  had conducted enquiry

  • AIR 1985 Supreme Court 1285
  • 2001 2 Supreme Court Cases 570

under Section 202 of the Code of Criminal Procedure, dismissed the complaint on merits, in exceptional circumstances, the second complaint is permissible depending upon how the complaint happened to be dismissed at the first instance. Learned counsel also relied upon paragraph 12 of the said judgment in support of his proposition.

3.9.Learned counsel then relied upon the Judgment of the Hon’ble Supreme Court of India in Mahesh Chand vs B.Janardhan Reddy5 for the same proposition, more specifically paragraphs Nos. 11, 12 and 14 of the said Judgment, in which the special circumstances were delineated.  Learned counsel would further rely upon paragraphs Nos.16 and 19 of the same Judgment, would submit that ultimately it is only ‘full consideration’ of the complaint of the complainant which matters and when the full consideration is not there even after the consideration of the protest petition, the second complaint is maintainable.

3.10.For the same point, learned counsel also relied upon the judgment in Poonam Chand Jain and another vs Fazru7, paragraph No.14 of the Judgment. The Hon’ble Supreme Court of India also enumerated some

  • 2003 1 SCC 734
  • 2010 2 SCC 631

of the circumstances, such as,  when the previous order was passed on incomplete records or it is misunderstood as to the nature of the complaint or the order which was passed which was manifestly absurd and unjust, where new facts given were with reasonable diligence could not have been brought on record etc.,. He would submit that in view of the nonconsideration about the conduct of the petitioners in getting the award of Lok Adalat passed, execution of document after the power was cancelled there was no full consideration of his complaint.

3.11.Learned counsel also relied upon the Judgment in Sivasankar Singh vs State of Bihar and another8, morefully paragraphs Nos.18 to 25 and also the Judgment in Ravi Kumar vs State9 for the same proposition. Therefore, by relying upon all the said Judgments, learned counsel would submit that the second complaint in this case is maintainable.

3.12.Learned counsel would further rely upon the Judgment in R.S.Nayak vs A.R.Antulay3, more specifically paragraphs Nos.44 and 46 for the proposition, under what circumstances, the accused can pray for discharge and would submit that invariably, under various provisions of

  • 2012 1 SCC 130
  • 2019 14 SCC 568
  • AIR 1986 Supreme Court 2045

discharge, the prima facie material has to be looked into and would submit that in this case, there is a prima facie material to proceed further in the complaint by way of framing of charges.

3.13 In reply, Mr.E.V.Chandru, learned counsel for the petitioners would rely upon the Judgment of the Supreme Court of India in Thermax Ltd. & Ors. vs K.M.Johny & Ors.10, morefully relied upon paragraph No.29 of the said Judgment, would submit that when a case has got a checkered history, which is civil in nature and when a repeated proceedings between the parties have resulted in inordinate delay in latches, permitting the petitioners to be prosecuted at this stage is impermissible, especially when the case contains flavours which are civil in nature.

3.14.Learned counsel also relied upon the judgment of the Supreme court in Shiv Shankar Singh vs State of Bihar & Anr.8, paragraphs Nos.9 and 10, to press home the point that the entertainment of the second complaint, should be done only under exceptional circumstances and in this case, there is no such exceptional circumstances to permit the complaint to proceed against the disposal, when there are intervening decrees and

10 2011 13 SCC 412

8    2012 1 SCC 130

judgments of the Civil court and other statutory proceedings between the parties. Learned counsel would submit that the Hon’ble Supreme Court of

India has considered all the Judgments regarding issue right from

Abhinandhan Jha and Others vs Dinesh Mishra[1] up to the Judgment of Bhagwant Singh vs Commissioner of Police[2] and all the other cases and has held that it is the right of the de-facto complainant to object to the final report and such a protest petition which is filed in detail is  equivalent to the private complaint and when the same has already been dealt with on merits by the learned Chief Judicial Magistrate, there is no question of once again entertaining any fresh complaint in this regard and would amount to a Third Complaint.

  1. The Questions:
    1. Upon listening to the submissions made by both side learned counsel and perusing the material records of this case, following questions arise for consideration in this case:-
      • After acceptance of the final report and consideration and rejection of the protest petition in respect of the same set of allegations, whether a further fresh complaint is maintainable?
      • Whether the petitioners/accused are liable to be discharged, in view of the Civil Court judgments and decree claimed to be in their favour, in respect of the very same subject matter?
    2. Question No. 1 :
      1. In respect of the the maintainability of the fresh complaint, twin objections is raised by the accused. First, the protest petition itself has the status of a complaint and therefore, this is a third complaint. Second, there is no special circumstance warranting a fresh complaint in this case.

5.2.The Hon’ble Supreme Court in P.N.Bhagwant Singh vs Commissioner of Police[3], considered the provisions under Section 157(2) of the Code of Criminal Procedure, requiring the Investigating Officer to forthwith notify the informant about his refusal to investigate, and Section 173 (2)(ii) of the Code of Criminal Procedure, mandating to communicate in such a manner as may be prescribed by the State Government, the action taken by him to the informant.  It is held that it is the first informant who is vitally interested in the result of the investigation and if the learned Magistrate decides to agree with the negative report, the notice to the first informant is mandatory. The same is for the purpose of providing an opportunity for the first informant to have been heard and make his submissions when the report is considered by the learned Magistrate to decide of what action he should take on the report. It is in this context, even though it is not expressly provided under the Code of Criminal Procedure, the complainant is permitted to file a the protest petition.

5.3.Originally in Calcutta High Court, Queen-Empress vs Sham Lall12, when a petition was filed by the complainant, it was held to be a complaint within the meaning of Section 191 and it was held that it was the duty of the learned Magistrate to proceed with it in accordance with law. It is useful to extract paragraph 19 and 21 of the said judgment, which is as follows:-

“19. I think that the view taken by the District Magistrate of Sham Lall’s application or petition is erroneous. I am clearly of opinion that it was a “complaint” within the meaning of Section 191, Code of Criminal Procedure. That Section authorizes a

  • 1887 ILR 14 Cal 707

Magistrate to “take cognizance of any offence upon receiving a complaint of facts which constitute offence.” This “complaint”may be by word of mouth or in writing; no prescribed form of words is necessary; all that is required is that facts, which prima facie constitute all offence, should be brought to the notice of the Magistrate by the complaint. It is clear that the question of the time when an application or petition is made to a Magistrate, cannot be a circumstance to be taken into consideration in arriving at a conclusion as to whether it is a “complaint”or not.

  1. Sham Lall’s petition being, in my opinion, a complaint, it was the duty of the Magistrate to proceed with it according to law; and it was none the less his duty so to proceed, because the charge in respect of which the complaint was made had been returned by the police as false.”
    1. Thereafter, the protest petitions were being entertained based on the precedents, which are intially known as “Naraji Petition”.  In Tota Meah Chaudhuri vs King-Emperor13, the term “Naraji Petition” was used and it is useful to extract paragraph No.9 of the said Judgment, which is quoted hereunder:-
  • 1929 SCC Online Cal 327

“9. As regards the second objection, that has reference to what is called a naraji petition or petition of objection to a police report to the effect that Jamiruddin’s complaint was a false complaint. What is said is that this naraji petition is relied upon a good deal by the learned Judge in his charge to the jury because it is a story told on the part of the accused and in various respects the defence set up in the present trial is not exactly what was set up in that petition. The objection is that this petition was not properly proved.”

  1. 7.This Court in Karunanithi vs Sivananda Ra14, had also held that the learned Magistrate has to treat the protest petition as a complaint and follow the complaint procedure, if he finds any prima facie case and he can take cognizance of Section 190(1)(a) of the Code of Criminal Procedure. The relevant paragraph No.28 of the said judgment is extracted hereunder:-

“28. In the case before us, based  on the materials, considering the complaint and statement of witnesses, the Investigation Officer formed the opinion that it is a false case. Thus he filed his report accordingly before the learned Magistrate. It is a negative final

  • 2014 SCC Online Mad 595

report. Thereafter, the learned Magistrate disagreed with the conclusion of the Investigation Officer and took cognizance thereon. If the materials presented discloses commission of a offence, the learned Magistrate can disagree with the conclusion of the Investigation Officer and take action accordingly or if it is demands he can direct further investigation. But, if he elects to accept the report of the Investigation Officer closing the case, he must issue notice to the complaint, receive his objection, if any. Such “objection petition”is also known as “Protest Petition”. It is a protest by the defacto complainant to the conclusion arrived at by the Investigation Officer. Thereafter, the learned Magistrate has to treat the protest petition as a complaint and follow the complaint procedure and if he finds any prima facie case, he can take cognizance under Section 190(1)(a) of the Cr.P.C.”

  1. The Hon’ble Supreme Court also in the matter of B.Chandrika Vs. Santhosh15, had held that the protest petition has to satisfy the ingredients of the complaint before the Magistrate to take cognizance under Section 191(1)(a) of the Code of Criminal Procedure. In Shiv Shankar
  • 2014 13 SCC 699

Singh vs State of Bihar & Anr.8, it was held by the Hon’ble Supreme Court that even the second protest petition can be filed if the first petition is without furnishing the full facts and particulars and it is useful to extract paragraph No.19 of the said Judgment which reads as follows:-

“19. The protest petition can always be treated as a complaint and proceeded with in terms of Chapter XV Cr.P.C. Therefore, in case there is no bar to entertain a second complaint on the same facts, in exceptional circumstances, the second protest petition can also similarly be entertained only under exceptional circumstances. In case the firs protest petition has been filed wihtout furnishing the full facts / particulars necessary to decide the case, and prior to its entertainment by the court, a fresh protest petition is filed giving full details, we fail to understand as to why it should not be maintainable.”

  1. 9.Thus, on a survey of the above Rulings, it is clear that the protest petition is the means by which the first informant, brings to the notice of the learned Magistrate his objections as to the conclusion reached by the police and attempts to dissuade the learned Magistrate from accepting the final report of the police. As a matter of fact, the said position would be clear

8    2012 1 SCC 130

from the Judgment of the Hon’ble Supreme Court of India, in Vishnu Kumar Tiwari Vs. State of Uttar Pradesh16, it is held in paragraph No.18 as follows:-

“18. In Jayashankar Mund17 case, the Orissa High Court again did not have any occasion to consider the question raised herein. The court held:(Cri LJ pp.1582-83, para 6) even though a protest petition is in the nature of a complaint, it is referable to the investigation already held by the vigilance police culminating in the final report and because the informant was not examined on solemn affirmation under Section 202 of the Code, thereby no illegality or prejudice was caused to the accused. If such a view is accepted and there is no reason why such a view should not be accepted, the necessary consequence in this particular case shall be that the protest petition which is of the nature of a complaint petition filed by the petitioner shall be in continuation and in respect of the case instituted and investigated by the vigilance police.”

Thus, it can be seen that the learned Magistrate may (i) completely rely upon the protest petition and proceed as if it is a complaint by following the

  • 2019 3 SCC (Crl) 269
  • 1989 Cri LJ 1578

procedure under Sections 200 -203; (ii) the Learned Magistrate may consider the protest petition and also basing on the materials in the investigation as a continuation, can proceed to take cognisance of the offense;  or (iii) he may overrule the objection and reject the protest petition. Thus, in the second and third options, it cannot be said that the protest petition itself amounted to complaint. Therefore, the contention of learned counsel for the petitioner  that the protest petition itself amounts to the second complaint and the present complaint is the third complaint, is unsustainable.

5.10.Therefore, considering the complaint as a second complaint, one has to further consider that whether the second complaint is maintainable and if so, whether it is maintainable in the fact situation of the instant case. The law relating to the second complaint can be the discerned from the various judgments relied upon by both sides quoted supra, as follows:-

  • The bar is only under Section 300 of Code of Criminal Procedure, when the accused had already been tried and convicted/acquitted;
  • The second complaint on the same facts can be entertained, but, only in exceptional circumstances;
  • The exceptional circumstances are such as when the previous order was passed on an incomplete record, on misunderstanding of the nature of the complaint, or when it was manifestly absurd or unjust, or when new facts given with reasonable diligence have been brought on record in the previous proceedings,  or if the previous complaint is not by full consideration of the case of the complaint.

5.11.Now, applying the said position to the instant case, prima facie, for the purpose of framing of charge, the case of the petitioners, even though were husband and wife, approached the Lok Adalat, as if there is a lis between them and obtained an award of specific performance, with prior knowledge of  the cancellation of  Power of Attorney, and after taking  a plea that the Power of Attorney has been canceled in the connected suit filed by the brother of the first petitioner, amounts to creation of false document, prima facie, goes within the first category of false document as per Section 464 of the Indian Penal Code, as enunciated by the Hon’ble Supreme Court of India in Mohammed Ibrahim and others vs State of Bihar17 and it is useful to extract paragraph No.14(i) of the said Judgment:-

17 2009 8 SCC 751

“14. An analysis of Section 464 of the Indian Penal Code shows that it divides false documents into three categories:-

(i) The first is where a person dishonestly or fraudulently makes or executes a document with the intention of causing it to be believed that such document was made or executed by some other person, or by the authority of some other person, by whom or by whose authority he knows it was not made or executed.”

  1. As a matter of fact, the investigation report by the police as well as the decision of the learned Magistrate proceeds on the footing, as if, the title is disputed. Therefore, there was no full consideration of the case of the complainant on the previous occasion and prima facie it can be termed as unjust and misunderstanding of the nature of the complaint. Therefore, this case satisfies the test of exceptional circumstance. This apart, even though learned Magistrate dealt with the protest petition and decided to accept the final report, learned Magistrate expressly gave liberty to the first informant to file a private complaint under Section 200 of the Code of Criminal Procedure. Even as per the judgment of the Hon’ble Supreme Court in Vishnu Kumar Tiwari vs State of Uttar Pradesh16, the Learned Magistrate

16

can bring the curtains down or take cognizance of the offence. But, the learned Magistrate in this case has not brought the curtains down, even though did not continue the matter, has enabled the  complainant to file a complaint under Section 200 and therefore, that circumstances also enables the respondent to file a second complaint. Therefore, I am of the view that in this case, the second complaint is maintainable and the petitioners cannot be discharged on the said ground.

  1. Question No. 2 :

6.1.A declaration was granted to the effect that the irrevocable Power of Attorney dated 10.09.2003 is valid and consequential permanent injunction, not to disturb the position and also not to execute the cancellation deeds in O.S. No. 349 of 2006. A decree was passed in O.S.No.897 of 2013 whereby, the suit filed by the respondent complainant was dismissed as not pressed, wherein, the respondent / complaint had prayed that the sale deed executed by the first petitioner in respect of the second petitioner is null and void. there are also other legal proceedings between the parties which are narrated supra in the previous portion of this Judgment. The law relating to the binding nature of the Civil Court

Judgments and decrees has been laid down by the Hon’ble Supreme Court of India, in K.G. Premshanker Vs. Inspector of Police17 and which was applied by this Court  in the judgment in S.Ramu and Ors., vs Pushphavenkatavenu and Ors.18, and it is useful to extract the relevant paragraphs Nos.12 to18, which is as follows:-

“12. The question, if the Civil Court or the Criminal Court renders a verdict in respect of the same cause of action, how that could be treated by the other, the law is laid down by the Hon’ble Supreme Court of India in K.G. Premshanker v. Inspector of Police17 Paragraph 30 of the said judgment, reads as follows:-

“30. What emerges from the aforesaid discussion is — (1) the previous judgment which is final can be relied upon as provided under Sections 40 to 43 of the Evidence Act; (2) in civil suits between the same parties, principle of res judicata may  apply; (3) in a criminal case, Section 300 CrPC makes provision that once a person is convicted or acquitted, he may not be tried again for the same offence if the conditions mentioned therein are satisfied; (4) if the criminal case and the civil proceedings are for the same cause, judgment of the civil court would be relevant if conditions of any of Sections 40 to 43 are satisfied, but it cannot be said that the same would be conclusive except as provided in Section 41. Section 41 provides which judgment would be conclusive proof of

  • 2002 8 SCC 87
  • R.C.Nos.971 and 938 of 2014

17 2002 8 SCC 87

what is stated therein.”

  1. Therefore, it is clear that the Judgment of the Civil Court, will be relevant only if the conditions of Sections 40 to 43 of the Evidence Act is satisfied. The same Judgment details the about Sections 40 – 43 of Indian Evidence Act also in paragraphs 16 -22, which is reproduced hereunder :-

“16. ……. Sections 40 to 43 of the Evidence Act provide which judgments of courts of justice are relevant and to what extent. Section 40 provides for previous judgment, order or a decree which by law prevents any court while taking cognizance of a suit or holding a trial, to be a relevant fact when the question is whether such court ought to take cognizance of such suit or to hold such trial. Section 40 is as under:-

“40. Previous judgments relevant to bar a second suit or trial.—The existence of any judgment, order or decree which by law prevents any court from taking cognizance of a suit or holding a trial, is a relevant fact when the question is whether such court ought to take cognizance of such suit or to hold such trial.”

  1. Section 41 provides for relevancy of certain judgments in probate, matrimonial, admiralty or insolvency jurisdiction and makes it relevant or conclusive as provided therein.
  2. Section 41 reads thus:

“41. Relevancy of certain judgments in probate, etc., jurisdiction.—A final judgment, order or decree of a competent court, in the exercise of probate, matrimonial, admiralty or insolvency jurisdiction, which confers upon or takes away from any person any legal character, or which declares any person to be entitled to any such character, or to be entitled to any specific thing, not as against any specified person but absolutely, is relevant when the existence of any such legal character, or the title of any such person to any such thing, is relevant. Such judgment, order or decree is conclusive proof—  that any legal character which it confers accrued at the time when such judgment, order or decree came into operation; that any legal character, to which it declares any such person to be entitled, accrued to that person at the time when such judgment, order or decree declares it to have accrued to that person; that any legal character which it takes away from any such person ceased at the time from which such judgment, order or decree declared that it had ceased or should cease; and that anything to which it declares any person to be so entitled was the property of that person at the time from which such judgment, order or decree declares that it had been or should be his property.”

  1. Section 42 with illustration reads thus:

“42. Relevancy and effect of judgments, orders or decrees, other than those mentioned in Section 41.— Judgments, orders or decrees other than those mentioned in Section 41, are relevant if they relate to matters of a public nature relevant to the enquiry; but such judgments, orders or decrees are not conclusive proof of that which they state.

ILLUSTRATION

A sues B for trespass on his land. B alleges the existence of a public right of way over the land, which A denies. The existence of a decree in favour of the defendant, in a suit by A against C for a trespass on the same land, in which C alleged the existence of the same right of way, is relevant, but it is not conclusive proof that the right of way exists.”

  1. Thereafter, Section 43 in terms provides that judgments, orders or decrees, other than those mentioned in Sections 40, 41, 42 are irrelevant unless the existence of such judgment, order or decree, is a fact in issue, or is relevant under some provisions of the Act.
  2. The final judgment, order or decree of a competent court, in exercise of probate, matrimonial, admiralty or insolvency jurisdiction would be relevant if it confers upon or takes away from any person any legal character or it declares any person to be entitled to any such character or to be entitled to any specific thing, not as against any specified person but absolutely. It further specifically provides that such judgment or decree is conclusive proof of what is provided therein such as legal character etc. As against this under Section 42, the relevancy of the judgments, orders and the decrees in previous proceedings is limited if they relate to matters of public nature relevant to the enquiry and such judgments, orders or decrees are not conclusive proof of that which they state. Illustration to Section 42 makes the position clear.
  3. In the facts of the present case, Section 42 would have some bearing and the judgment and decree passed in a civil court would be relevant if it relates to a matter of public nature relevant to the enquiry but such judgment and decree is not a conclusive proof of that which it states.”
    1. Thus, it may be seen that Section 40 of Indian Evidence Act is not relevant to the issue on hand as it will be applicable only between civil suits or criminal trials, that is, Section 11 of C.P.C for the second suit, Section 300 of Cr.P.C., for the second trial. In Section 41 of Indian Evidence Act, the

Judgments of the Civil Court in Probate, Matrimonial, Admiralty and Insolvency Jurisdictions and such other declarations which are in the nature of Judgments in rem are to be conclusive proof for the declarations made therein and would be binding on the Criminal Courts. The Judgment in hand, is a dismissal of suit for defamation, which would not fall within Section 42 of Indian Evidence Act.

  1. The only question therefore, is whether it is a Judgment/Decree relating to matter of a Public Nature, so as to be relevant, though not conclusive proof, as per Section 41 of the Evidence Act. If not, as per Section 43 of Indian Evidence Act, the same is irrelevant. The phrase ‘public nature’ is not defined under the Act. The word ‘Public”, if one considers the popular dictionaries, if used as noun, shall mean people in general or a set of people sharing common interest etc., and if used as an Adjective, shall mean things relating to or done by State to its people or a place to which people shall have free access, or any activity supported by state funding or even group of persons.
  2. The meaning of the phrase “relate to matter of a public nature” came up for consideration in Tula and Others Vs. Sadh and Others[4] and a Learned Judge held in paragraph 9 that it is wide enough to mean any judgment in which large section of public is interested and held that a judgment, relating to grazing rights involving three villages, as relevant under Section 42 of the Evidence Act. In Sundarabai Kom Hanumantrao Kulkarni and Another Vs. Hanmanth Bin Gurnath Kulkarni and Another[5], an earlier judgment declaring a custom relating to marriage in a particular community is admissible under Section 42 of the Evidence Act.
  3. Recently, the Allahabad High Court in Tazeen Fathima & Others Vs. State of U.P.[6] held that a judgment in the Election Petition relating to the same matter, is relevant under Section 42 of the Evidence Act. Therefore, it is clear that while Section 41 of Indian Evidence Act enumerates the Judgments in rem, Section 42 of the Evidence Act makes relevant the judgments in matters of public nature, which would mean the other judgments though not in rem, but deal with questions which are strictly not inter parties but facts of public notoriety, impacting larger public like, whether a trust is private or public in nature, whether there was grazing rights, whether there was a custom prevailing in a particular community etc. Therefore, this Judgment inter parties, deciding whether the petitioner/accused are liable to pay compensation for defamation based on a fact finding that there was no evidence to connect the defendants with the handbill, does not in any manner deal with any larger question of public notoriety or involving larger public or public authorities/documents etc. Therefore, it cannot be relevant under Section 42 of the Act.
  4. As early as in the year 1931, a division bench of this Court, in Padmanabhani Ramanamma Vs. Golusu Appalanarasayya[7], wherein under similar circumstances, in a prosecution for robbery and defamation, where there was a Civil Court Judgment and Decree in favour of the accused, held as follows:-

“The matter, it seems to us, is governed by Sections 40 to 43 of the Evidence Act and, if a judgment is not admissible under any of those sections, it must be left out of consideration altogether. The judgment in question was not one to which Section 40 applied; for it was not a bar to the prosecution. Nor was it a judgment in rem under Sect.41. It did not relate to a matter of a public nature as required by Sect.42. Nor was its existence a fact in issue in the prosecution or relevant under any other section of the Evidence Act-Sect.43. Heaton, J., put his decision on a quite different ground – the ground of public policy. “We cannot” he said “ have Criminal Courts trying over again matters which have been thoroughly dealt with and finally decided by a Civil Court of competent jurisdiction.” It is not easy to see how such a rule is to be enforced, unless the judgment of the Civil Court is, in law, a bar to or conclusive against the prosecution. And what of cases in which the Criminal Court has decided the controversy first and convicted ? Can we not have the Civil Court trying over again a matter which has been decided by a Court of Competent jurisdiction and coming to a different conclusion ? The truth is that, although the civil suit and the prosecution may be based on exactly the same cause of action, the parties are, strictly speaking, not the same, the burden of proof is differently placed and different considerations may come in. The result may therefore be a conflict in decision.”

Therefore, I answer the question that the Judgment of the civil court, inter-parties though in the same matter of defamation, is not relevant as it does not fall either under Section 41 or 42 and therefore not relevant as per Section 43 of the Evidence Act and I answer the question accordingly.”

  1. Therefore, applying the said legal principles, in this case also these are not Judgments in rem as per Section 41 of the Evidence Act relating to matrimonial admiralty or insolvency jurisdiction and therefore are not conclusively binding before the Criminal Court. These are not judgments which related to the matter of ‘public nature’ so as to be a relevant fact as per Section 42 of the Evidence Act. Therefore, the Criminal court is neither conclusively bound nor  these judgments are relevant facts in the proceedings and therefore, the decision in this civil proceedings / connected statutory proceedings are not a bar for framing of the charges and trial of the instant case. Trial Court can proceed to frame charges which in its opinion are prima facie made out based on the available material evidences and can render its own findings de-hors the conclusion reached by the Civil Court / Tribunals in other proceedings. Therefore, I answer the question two accordingly in favour of the respondent and against the petitioner herein.
  2. The Result :

7.1.In that view of the matter, I am of the view that there are prima

facie materials pointing out a grave suspicion of the petitioners involving in the commission of cognizable offences and therefore, this cannot be held to be groundless complaint so as to discharge the petitioners under Section 245(2) of the Code of Criminal Procedure and no exception can be taken to the order of the learned Chief Judicial Magistrate in refusing to discharge the petitioner and accordingly, the said order under revision is upheld.

7.2.However, considering the efflux of time and repeated nature of the proceedings between the parties, learned counsel for the petitioners makes a request and it is a fit case to dispense with the personal appearance of the petitioners for all hearings before the Trial Court, except the material hearings as may be insisted by the Trial Court.

7.3.In that view of the matter, the criminal revision is disposed of on the following terms:-

  • The order of the learned Chief Judicial Magistrate in

Cr.M.P.No.1825 of 2017 is upheld;

  • The personal appearance of the petitioners in C.C.No.29 of 2017, before the learned Chief Judicial Magistrate, Puducherry, is dispensed with, except for such hearings as may be subsequently insisted by the Trial Court.

8.Consequently, the connected miscellaneous petition is also closed.

02.08.2022           

Index : yes/no

Speaking/Non-speaking order drm

To

  1. The Chief Judicial Magistrate, Pondicherry.
  2. The Public Prosecutor, High Court of Madras.

D.BHARATHA CHAKRAVARTHY, J.

drm

Crl.R.C.No.927 of 2021 in Crl.M.P.No.12729 of 2021

02.08.2022

[1] AIR 1968 SC 177

[2] AIR  1985 Supreme Court 1285

[3] AIR  1985 Supreme Court 1285

[4] AIR 1962 HP 28

[5] AIR 1932 Bom 398

[6] Crl.M.P. No.15385 of 2020, Order dated 13/10/2020

[7] 1932 Vol.25 LW page 32

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