Bombay High Court

Rahul S/O Sharad Kocheri And ... vs Harun Beg Rahemat Beg And Another on 15 November, 2017

Bench: A.S. Chandurkar

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                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                           NAGPUR BENCH, NAGPUR.

                  CRIMINAL APPLICATION (APL) NO.841 OF 2015
                                             

     1. Rahul s/o Sharad Kocheri, 
         Aged about 38 years, 
         Occ. Service Manager, 
         HDFC, ERGO General Insurance Co.Ltd., 
         6th Floor, Leela Business Park, 
         Andheri-Kurla Road, 
         Andheri (East) Mumbai. 

     2. Sandeep s/o Annasaheb Kharnar,
         Aged about 36 years, 
         Occ. Service Manager, 
         HDFC, ERGO General Insurance Co.Ltd., 
         6th Floor, Leela Business Park, 
         Andheri-Kurla Road, 
         Andheri (East) Mumbai.                                       ... Applicants.  

         -vs-

     1.  Harun Beg Rehmat Beg
          Aged about 46 years, Occ. Business, 
          R/o Behind KK Tyes, Baidpura, 
          Tq. & District, Akola.   

     2.  State of Maharashtra,
          Through PSO City Kotwali, 
          Tq. & District : Akola                                      ...  Non-
     applicants


     Shri S. V. Sirpurkar, Advocate for applicants. 
     Ms Geeta Tiwari, Addl. PP for non-applicant No.2. 

                                           CORAM  : A.S.CHANDURKAR, J.

                                            DATE     : November 15, 2017

          Oral Judgment :

The applicants have filed this criminal application under

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Section 482 of the Criminal Procedure Code, 1973 (for short, the Code) raising a challenge to the order passed by the Sessions Court on 07/10/2015 thereby dismissing the revision applications preferred by the applicants and maintaining the order passed by the learned Magistrate directing reinvestigation in the complaint filed by the non-applicant No.1.

2. Facts in brief are that the non-applicant No.1 on 10/08/2009 purchased a truck for a consideration of Rs.8,50,000/-. Rs.5,25,000/- was paid in cash and it was agreed that the balance amount would be paid subsequently. The non-applicant No.1 had obtained finance from the HDFC ERGO General Insurance Company Ltd. to the extent of Rs.6,55,000/-. The aforesaid truck was however stolen on 02/01/2010. The non-applicant No.1 had therefore lodged a claim for receiving the amount of insurance. It is the case of non-applicant No.1 that in that process he was cheated by the accused and he was also abused. Though the report was lodged with the police authority, no offence was registered. Hence on 11/08/2011 a private complaint came to be filed. In those proceedings it was also prayed that further inquiry under Section 156(3) of the Code be conducted. On 21/09/2011 the learned Magistrate found that as per the complaint, the incident giving rise to the complaint occurred beyond the jurisdiction of Akola and therefore the Court of learned Judicial Magistrate, First Class had no jurisdiction. The complaint was accordingly directed to be returned.

3. On 19/10/2011, the non-applicant No.1 filed Summary Criminal Case No.1122/2011 on the basis of the earlier incident. In

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this complaint the accused Nos.1 and 2 who were discharging duties within the jurisdiction of learned Magistrate at Akola were added. On 21/11/2011 the learned Magistrate rejected the request made for inquiry under Section 156(3) of the Code. It was found that the previous complaint has been returned back and merely by adding two accused persons, the jurisdiction was sought to be given to the Court at Akola. The complaint thus stood dismissed on 21/11/2011.

4. Thereafter on 10/02/2012 the non-applicant No.1 filed Misc. Criminal Case No.188/2012 based on the same incident as the earlier complaint. It was not stated in that complaint that the earlier proceedings had been rejected. On 18/02/2012 the learned Magistrate rejected the prayer made for further investigation under Section 156(3) of the Code. Subsequently on 26/07/2012 the learned Magistrate issued directions to the police authorities to investigate the complaint and submit a report. On 02/04/2013 the learned Magistrate passed an order to re-investigate the complaint and submit a report. This order was challenged by the applicants herein by filing revision petition. By the impugned order the same came to be dismissed. Being aggrieved the present application has been filed under Section 482 of the Code.

5. Shri S. V. Sirpurkar, learned counsel for the applicant submitted that the present proceedings in which the impugned orders were passed were not sustainable in law. The earlier complaint being Summary Criminal Case No.1122/2011 which was identical to the present complaint had been rejected and that order has attained finality. Without making out any exceptional case and on the basis of the same cause of action, the subsequent complaint

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had been filed. It was also not stated in the subsequent complaint that the earlier proceedings had been dismissed. Relying upon the judgment in Hiralal & ors. v. State of U.P. & ors. AIR 2009 SC 2380, it was submitted that the learned Magistrate could not have taken cognizance of the case nor could any process have been issued by him. The Sessions Court without considering these aspects dismissed the revision application. It was therefore submitted that the impugned order deserves to be set aside and the proceedings deserve to be quashed.

6. There was no appearance on behalf of the non-applicant No.1 on 06/11/2017, 13/11/2017 and 14/11/2017. Today also there is no appearance on behalf of the non-applicant No.1.

Ms Geeta Tiwari, learned Additional Public Prosecutor has appeared for the non-applicant No.2.

7. With the assistance of learned counsel, I have perused the documents placed on record and I have given due consideration to the submissions as urged. Perusal of the impugned complaint being Misc. Criminal Case No.862/2011 indicates that it was the grievance of the non-applicant that in the matter of grant of insurance claim, he had been defrauded resulting in commission of the offence. These proceedings came to be returned to the complainant as the Court lacked jurisdiction. The subsequent complaint being Misc. Criminal Case No.1122/2011 based on the same allegations came to be rejected on 21/11/2011. This rejection was not challenged. A fresh complaint was filed on the basis of same allegations without disclosing the fate of the earlier complaint and without making out any exceptional case.

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8. In Hiralal & Ors. (supra) while considering the question as regards filing of second complaint after rejection of earlier one, it was held that it was only in exceptional circumstances that the subsequent complaint would be maintainable. In paragraphs 14 and 15 thereof it has been observed thus :

" 14. The order of learned ACJM in his order dated 02/04/2003 is not a cryptic one. Reasons have been assigned in support thereof. In a situation of this nature, in our opinion a second complaint petition could not have been filed.

Strong reliance has been placed by Mr. Singh on a decision of this Court in Mahesh Chand v. B. Janardhan Reddy & Anr. (2003) 1 SCC 734, wherein it was opined that second complaint was not completely barred in law. This Court, however, in that decision itself held that the second complaint can lie only on fresh facts and/or if a special case is made out therefor, stating :

" 19. Keeping in view the settled legal principles, we are of the opinion that the High Court was not correct in holding that the second complaint was completely barred. It is settled law that there is no statutory bar in filing a second complaint on the same facts. In a case where a previous complaint is dismissed without assigning any reasons, the Magistrate under Section 204 Cr.P.C. may take cognizance of an offence and issue process if there is sufficient ground for proceeding. As held in Pramatha Nath Talukdar case second complaint could be dismissed after a decision has been given against the complainant in previous matter upon a full consideration of his case.

Further, second complaint on the same facts could be

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entertained only in exceptional circumstances, namely, where the previous order was passed on an incomplete record or on a misunderstanding of the nature of complaint or it was manifestly absurd, unjust or where new facts which could not, with reasonable diligence, have been brought on record in the previous proceedings, have been adduced. In the facts and circumstances of this case, the matter, therefore, should have been remitted back to the learned Magistrate for the purpose of arriving at a finding as to whether any case for cognizance of the alleged offence had been made out or not."

15. The second complaint petition filed by the third respondent does not disclose any such exceptional case. It reiterated the same allegations as were made in the first complaint petition. No fresh fact was brought to the notice of the court. The core contention raised in both the complaint petitions was alleged execution of a forged Will by Tika Ram Tyagi."

9. On examination of averments made in the earlier proceedings i.e. Criminal Case No.1122/2011 and the present proceedings i.e. Misc. Criminal Case No. 188/2012, it is clear that both the complaints are identical in nature. Subsequent complaint neither makes out any exceptional case not are there any additional facts. There is complete similarity of allegations. The fact of rejection of the earlier complaint has also not been stated. The subsequent complaint was thus not maintainable. On that count its cognizance could not have been taken. Thus considering the aforesaid law I am

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satisfied that continuation of the present proceedings before the learned Magistrate would be an abuse of process of law.

10. In the result the following order is passed :