Madhya Pradesh High Court
Vikas Modi vs The State Of Madhya Pradesh on 30 May, 2024
Author: Sanjay Dwivedi
Bench: Sanjay Dwivedi
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SANJAY DWIVEDI
ON THE 30th OF MAY, 2024
M.CR.C. NO.28967/2023
BETWEEN:-
1. VIKAS MODI S/O SHRI BALCHAND MODI
AGED ABOUT - NOT MENTIONED,
OCCUPATION BUSINESSMAN, R/O LABOUR
CHOWK, NEAR BUNDELKHAND
FURNITURE, TEHSIL AND DISTRICT
TIKAMGARH (M.P.)
2. ARVIND JAIN, S/O SHRI CHOTELAL JAIN,
AGED ABOUT 58 YEARS, OCCUPATION
BUSINESSMAN, R/O. GOPALGANJ, TEHSIL
AND DISTRICT SAGAR (M.P.)
.....PETITIONERS
(BY SHRI ANIL KHARE - SENIOR ADVOCATE WITH SHRI AMAN
JAIN - ADVOCATE)
AND
1. STATE OF MADHYA PRADESH THROUGH
POLICE STATION TIKAMGARH DEHAT,
DISTRICT TIKAMGARH (M.P.)
2. SUNIL TAMRAKAR, S/O SHRI RAMESHWAR
PRASAD TAMRAKAR, AGED ABOUT 45
YEARS, R/O. NEAR GOL QUARTERS,
KOTWALI, TIKAMGARH (M.P.)
.....RESPONDENTS
(NO.1 BY SHRI AMIT BHURRAK - PANEL LAWYER)
(NO.2 BY SHRI VIKALP SONI - ADVOCATE)
................................................................................................................................................
2
Reserved on: 13.05.2024
Pronounced on: 30.05.2024
This petition having been heard and reserved for orders, coming on
for pronouncement this day, the Court pronounced the following:
ORDER
With the consent of the learned counsel for the parties, the
arguments were heard on 13.05.2024 and today the order is being
pronounced.
2. This petition is filed under Section 482 of Cr.P.C.
challenging the order dated 31.10.2022 passed by the trial Court taking
cognizance on the anvil of a complaint made by respondent No.2 and
also seeking for quashing of FIR registered vide Crime No.350/2022
against the petitioners and all subsequent proceedings arose pursuant to
that FIR.
3. The primary thrust of challenge is based on the ground that
respondent No.2 filed a second complaint on the same set of facts and
cause of action, which is impugned in this petition. Learned senior
counsel for the petitioners submitted that the first complaint filed by
respondent No.2 was withdrawn without seeking any liberty vide order
dated 17.09.2022, but later-on the second complaint has been made
without disclosing the facts about the first complaint and its withdrawal.
According to him, second complaint is liable to be dismissed on the
ground that it is an abuse of process of law because the complainant was
under obligation to disclose the fact before the court about
withdrawal/dismissal of first complaint, but concealment of such
material fact is an absolute indication of mala fide as has been shown by
the complainant and as such in view of the law laid down by the
Supreme Court in the cases of K.D. Sharma v. Steel Authority of
India Limited and other (2008) 12 SCC 481; Ram Dhan v. State of
Uttar Pradesh and another (2012) 5 SCC 536; Krishna Lal Chawla
and others v. State of Uttar Pradesh and another (2021) 5 SCC 435
and K. Jayaram and others v. Bangalore Development Authority
and others (2022) 12 SCC 815, the complaint and all subsequent
proceedings originated therefrom are liable to be quashed.
4. In contrast, Shri Vikalp Soni, learned counsel appearing for
respondent No.2 submitted that the first complaint was withdrawn as the
concerning Court had informed the complainant that the complaint filed
by him was not tenable before that court and as such it was withdrawn
and immediately after three days second complaint was made before the
competent court. He submitted that second complaint is no bar under the
law. To reinforce, he placed reliance on the decisions of Supreme Court
in the cases of Jatinder Singh v. Ranjit Kaur AIR 2001 SC 784 and
Mahesh Chand v. B. Janardhan Reddy and another AIR 2003 SC
702.
5. As per the submissions made on behalf of learned counsel
for the parties, the issue which crops up for adjudication is whether in
the facts and circumstances of the case, when there is perceivable
material suppression before the court by the complainant with regard to
withdrawal of first complaint, second complaint can be green-signaled
or not. At this juncture, pinpointing the proclivity of respondent No.2,
Shri Khare submitted that it is not the issue to be adjudicated whether
second complaint is maintainable or not, but the issue is whether second
complaint on the face of conduct of the complainant is tenable or not.
6. I have heard the submissions of learned counsel for the rival
parties and also ventured into the legal position.
7. Indeed, the petitioners and respondent No.2 are partners of
M/s. Vaishali Builders and Developers, Sagar, a partnership firm. A
project was initiated by the firm in the name of Vaishali Residency in
Tikamgarh and the basic agenda of the firm was to sell out the
residential duplexes and that the transactions were being carried out
smoothly but abruptly in the year 2017 respondent No.2 started creating
nuisance/obstructions in the progress of the project. The petitioners
thereafter lodged a criminal complaint against respondent No.2. On that
complaint, the trial Court took cognizance and registered the offence
punishable under Sections 427, 294 and 506-B of IPC against
respondent No.2. After registration of FIR for the aforesaid offence, a
case i.e. RCT No.405/2018 was commenced against respondent No.2. A
civil suit for declaration was also filed by other partners of the firm to
remove respondent No.2 from the partnership firm. As a counterblast to
the said civil suit, respondent No.2 filed a criminal complaint under
Section 156(3) of CrPC before the JMFC Tikamgarh which was
registered as UNCR-245-2022. Thereafter, respondent No.2 on
17.09.2022 willingly withdrew the said complaint made against the
petitioners but soon thereafter, he filed another complaint against the
petitioners on the same set of facts without disclosing anything about
first complaint and its withdrawal. This is nothing but playing fraud with
the court. As per the petitioners, it is not a case where that the second
complaint was made on the changed circumstance or some new facts
were brought before the court by way of second complaint knowing
fully well that in first complaint, the court took cognizance and
registered the offence. It is alleged by the petitioners that the second
complaint was not only based on incorrect facts, but also a counterblast
to the action taken by the petitioners for removing him from the
partnership firm. The court has not taken note of the fact and virtually
failed to appreciate that the facts which are substantially new and not
disclosed in the first complaint, as such it is claimed by the petitioners
that since the complainant (respondent No.2) did not approach the court
with clean hands and clean heart that too with mala fide intention by not
disclosing about the dismissal of first complaint, it is an abuse of
process of law.
8. At this juncture, it is expedient to go-through the legal
position. In Krishna Lal Chawla (supra), the Supreme Court has
observed as under:-
"6. Indeed, a closer look at the decision in Upkar Singh takes
us to the contrary conclusion. In regard to the question of
material improvements made in a subsequent private
complaint by the same complainant against the same accused
with regard to the same incident, it may be useful to refer to
the following excerpt from Upkar Singh, which further
clarifies the holding in T.T. Antony:
"17...In our opinion, this Court in that case 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 an investigation in this regard would have
already started and further complaint against the same
accused will amount to an improvement on the facts
mentioned in the original complaint, hence will be
prohibited under Section 162 of the Code."
(emphasis supplied)
It is the aforementioned part of the holding in Upkar Singh
that bears directly and strongly upon the present case."
10. Article 21 of the Constitution guarantees that the right to
life and liberty shall not be taken away except by due
process of law. Permitting multiple complaints by the same
party in respect of the same incident, whether it involves a
cognizable or private complaint offence, will lead to the
accused being entangled in numerous criminal proceedings.
As such, he would be forced to keep surrendering his liberty
and precious time before the police and the Courts, as and
when required in each case. As this Court has held in
Amitbhai Anilchandra Shah (supra), such an absurd and
mischievous interpretation of the provisions of the CrPC will
not stand the test of constitutional scrutiny, and therefore
cannot be adopted by us."
9. In the case of K.D.Sharma (supra), it has been observed by
the Supreme Court as under:-
"34. The jurisdiction of the Supreme Court under Article 32
and of the High Court under Article 226 of the Constitution is
extraordinary, equitable and discretionary. Prerogative writs
mentioned therein are issued for doing substantial justice. It is,
therefore, of utmost necessity that the petitioner approaching
the Writ Court must come with clean hands, put forward all
the facts before the Court without concealing or suppressing
anything and seek an appropriate relief. If there is no candid
disclosure of relevant and material facts or the petitioner is
guilty of misleading the Court, his petition may be dismissed
at the threshold without considering the merits of the claim.
36. A prerogative remedy is not a matter of course. While
exercising extraordinary power a Writ Court would certainly
bear in mind the conduct of the party who invokes the
jurisdiction of the Court. If the applicant makes a false
statement or suppresses material fact or attempts to mislead
the Court, the Court may dismiss the action on that ground
alone and may refuse to enter into the merits of the case by
stating "We will not listen to your application because of what
you have done". The rule has been evolved in larger public
interest to deter unscrupulous litigants from abusing the
process of Court by deceiving it."
10. Further, in the case of Ram Dhan (supra), the Supreme
Court has observed as under:-
"12. The petitioner is guilty of suppressing the material fact.
Admittedly, filing of successive petition before the court
amounts to abuse of the process of the court. Thus, we are not
inclined to examine the issue any further."
11. In case of K.Jayaram (supra), the Supreme Court has
observed as under:-
"10. It is well-settled that the jurisdiction exercised by the
High Court under Article 226 of the Constitution of India is
extraordinary, equitable and discretionary and it is imperative
that the petitioner approaching the writ court must come with
clean hands and put forward all facts before the Court without
concealing or suppressing anything. A litigant is bound to state
all facts which are relevant to the litigation. If he withholds
some vital or relevant material in order to gain advantage over
the other side then he would be guilty of playing fraud with
the court as well as with the opposite parties which cannot be
countenanced.
14. It is necessary for us to state here that in order to check
multiplicity of proceedings pertaining to the same subject-
matter and more importantly to stop the menace of soliciting
inconsistent orders through different judicial forums by
suppressing material facts either by remaining silent or by
making misleading statements in the pleadings in order to
escape the liability of making a false statement, we are of the
view that the parties have to disclose the details of all legal
proceedings and litigations either past or present concerning
any part of the subject-matter of dispute which is within their
knowledge. In case, according to the parties to the dispute, no
legal proceedings or court litigations was or is pending, they
have to mandatorily state so in their pleadings in order to
resolve the dispute between the parties in accordance with law.
15. In the instant case, since the appellants have not disclosed
the filing of the suit and its dismissal and also the dismissal of
the appeal against the judgment of the civil court, the
appellants have to be non-suited on the ground of suppression
of material facts. They have not come to the court with clean
hands and they have also abused the process of law. Therefore,
they are not entitled for the extraordinary, equitable and
discretionary relief. "
12. In view of the above legal position, it can be carved out that
it is the duty of the litigant to disclose each and every fact before the
court and if any material fact is suppressed, it shows the intention of the
litigant which tantamount to playing fraud with the court and as such he
is not entitled to any equitable relief and entertaining such a case is
nothing but an abuse of process of law. At this juncture, it is equally
significant to go through the law laid down by the Supreme Court,
which has been relied upon on behalf of respondent No.2 in Mahesh
Chand (supra), wherein it is held that second complaint is maintainable
as there is no bar in filing second complaint on the same facts. The
Supreme Court has observed that second complaint on the same facts is
maintainable where the previous complaint is dismissed without
assigning any reason. The Magistrate under Section 203 of CrPC may
take cognizance of offence and issue process if there is sufficient ground
for proceeding. The Supreme Court has also observed that second
complaint on the same facts could be entertained only in exceptional
circumstances viz. where the previous order was passed on an
incomplete or misunderstanding of the nature of the complaint or it was
manifestly absurd, unjust or new facts which with reasonable diligence
could not be brought on record in previous proceeding. Here in the case
at hand, since respondent No.2 did not disclose the fact regarding
dismissal of earlier complaint in which the court had already taken
cognizance and registered the offence against the accused persons, but
without any reason that has been withdrawn and nondisclosure about it
amounts to playing fraud with the court on the part of the complainant.
Moreso, in case of Jatinder Singh (supra), second complaint was held
to be maintainable if the first one was not disposed of finally and did not
result in acquittal, conviction or discharge of the accused, but here in
this case it is alleged that the complainant deliberately suppressed the
material information in the second complaint about the dismissal of first
complaint and it shows his mala fide intention that he did not approach
the Court with clean hands and clean heart. Moreover, in B.R.K.
Aathithan v. Sun Group & Anr. 2022 LiveLaw (SC) 1022, the
Supreme Court has observed that second complaint can be maintainable
in exceptional circumstances, depending upon the manner in which first
complaint came to be dismissed but here in the case at hand, this fact
was not disclosed and the court had no occasion to see under what
circumstances, the first complaint was dismissed and in absence of
placement of said material fact before the court, second complaint
deserves to be dismissed as the complainant suppressed the material fact
from the court.
13. Juxtaposing the factual and legal position on the fulcrum of
above discourse, sanguinely I find this case fit in which second
complaint can be dismissed. Accordingly, the impugned order dated
31.10.2022 passed by the trial Court taking cognizance on a complaint
made by respondent No.2 against the petitioners is hereby set aside and
all subsequent proceedings pursuant to FIR registered vide Crime
No.350/2022 against the petitioners will stand quashed.
(SANJAY DWIVEDI)
JUDGE
sudesh
SUDESH KUMAR
SHUKLA
2024.05.31
14:59:30 +05'30'
