(Criminal Original Petition filed under Section 482, Cr.P.C. seeking to call for the records and quash the First Information Report in Cr.No.169/2016 pending investigation on the file of the Inspector of Police, Central Crime Branch, Team I, Vepery, Chennai 600 007 for offences under Sections 420 and 120-B IPC and Section 66-D of the Information Technology Act, 2000)
1. This Criminal Original Petition has been filed seeking to call for the records and quash the First Information Report in Cr. No.169/2016 pending investigation on the file of the Inspector of Police, Central Crime Branch, Team I, Vepery, Chennai 600 007 for offences under Sections 420 and 120-B IPC and Section 66-D of the Information Technology Act, 2000.
2. For the sake of convenience, the parties will be referred to by their name.
3. On the complaint dated 04.02.2015 given by one Chandramouli (de facto complainant/second respondent herein), the first respondent police registered a case on 24.06.2016 in Cr. No.169 of 2016 under Sections 420 and 120-B IPC and Section 66(1) of the Information Technology Act, 2000 against Krishnasamy (A1), A.V.M. Sundaram (A2) and Sundar Iyer (A3), for quashing which, Sundar Iyer (A3) is before this Court.
4. Shorn of the minute details, the facts germane and necessary for deciding this case are as under:
4.1 Twenty First Century Realty Limited (for brevity the company ) is a company incorporated under the Companies Act in which Chandramouli is one of the Directors. The main object of the company is to invest by selling and dealing with properties and the company was not carrying on any business activity. Yet, the company purchased immovable property on 15.02.1996 by way of three registered sale deeds, in Hyderabad, which is of a huge value and therefore, is a cause of internecine warfare between Chandramouli, on the one side and Krishnasamy (A1), A.V.M. Sundaram (A2) and Sundar Iyer (A3/petitioner), on the other side.
4.2 It is the allegation of Chandramouli that the accused had manipulated records to increase their shareholding in the company for usurping the property. In the complaint, Chandramouli has specifically alleged that Krishnasamy (A1) had fraudulently applied for a digital signature in the name of Chandramouli without his approval on 05.08.2013. For applying the digital signature, Krishnasamy (A1) and A.V.M. Sundaram (A2) fraudulently created a new email id for Chandramouli as [email protected], whereas, Chandramouli's actual email id is [email protected] Thereafter, Krishnasamy (A1) and A.V.M.Sundaram (A2) appointed themselves as Directors of the company. On coming to know of this, the Board of Directors of the company removed Krishnasamy (A1) and A.V.M. Sundaram (A2) from the Board by passing a resolution in the Extraordinary General Meeting on 29.08.2013. Thereafter, Krishnasamy (A1) and A.V.M. Sundaram (A2) downloaded documents pertaining to the company from the website of the Registrar of Companies and took photographs of the construction site at Hyderabad in December 2013 and they set up Sundar Iyer (A3/petitioner) and his wife Vanaja Sundar to file a complaint to the Registrar of Companies against the Directors alleging various illegal acts. Chandramouli and other Directors submitted their explanation to the Registrar of Companies, explaining the illegal acts that were committed by Krishnasamy (A1) and A.V.M. Sundaram (A2). Notwithstanding that, Sundar Iyer (A3/petitioner) and his wife Vanaja Sundar filed a petition in C.P. No.21 of 2014 before the Company Law Board, Chennai against the company and its Directors, including Chandramouli, making various allegations. When Chandramouli received the notice, he was shocked to learn from the averments in the petition that Krishnasamy (A1) and A.V.M. Sundaram (A2) have been shown as Directors of the company.
4.3 The sum and substance of the allegation in the complaint is that Krishnasamy (A1), A.V.M. Sundaram (A2) and Sundar Iyer (A3/petitioner) are creating false records for grabbing the property of the company. Hence, the FIR.
5 Heard Mr. A. Ramesh, learned Senior Counsel appearing for Sundar Iyer (A3/petitioner) and Mr. C. Emalias, learned Additional Public Prosecutor appearing for the first respondent State.
6 Mr. A. Ramesh, learned Senior Counsel appearing for Sundar Iyer (A3/petitioner) submitted that Chandramouli had earlier given a complaint dated 12.09.2013 against Krishnasamy (A1) and had subsequently withdrawn the same on 14.12.2013. Thereafter, when Sundar Iyer (A3/petitioner) and his wife Vanaja Sundar initiated legal proceedings before the Company Law Board under Sections 397, 398, 402 and 403 of the Companies Act, a fresh complaint was given to the police, which is clearly an abuse of process of law. He further submitted that though the complaint was given on 04.02.2015, the FIR was registered by the police only on 24.06.2016, which clearly shows that the police machinery has been galvanised in order to torpedo the lawful steps that are being taken by Sundar Iyer (A3/petitioner) to vindicate his rights. It is his further submission that a learned Single Judge of this Court in M.P. No.1 of 2015 in Company Appeal No.13 of 2015, has, by order dated 24.07.2015, injuncted Chandramouli from dealing in any way, with the property, which only goes to show that the present FIR is clearly an abuse of process of law. He further submitted that Sundar Iyer (A3/petitioner) is one of the promoters of the company and therefore, he is interested in the affairs of the company. Lastly, the learned Senior Counsel submitted that a reading of the FIR does not disclose commission of a cognizable offence and merely, using the expressions fraud, cheating and conspiracy , would not, by itself, attract various penal provisions. In support of his contention, he placed reliance upon the following judgments:
i International Advanced Research Centre for Powder Metallurgy and New Materials (ARCI) and others vs. Nimra Cerglass Technics Private Ltd. and another [(2016) 1 SCC 348];
ii Unreported judgment dated 21.07.2015 of the Supreme Court in Mr. Robert John D'Souza and others vs. Mr.Stephen V. Gomes and another [Criminal Appeal No.953 of 2015];
iii State of Uttar Pradesh and others v. Ravi Prakash Srivastava and another [2016 SCC OnLine SC 797];
iv Neelu Chopra and another vs. Bharti [(2009) 10 SCC 184];
v K.S. Narayanan and others vs. S. Gopinathan [1981 SCC OnLine Mad 289] judgment of Madras High Court;
vi M.N. Ojha and others vs. Alok Kumar Srivastav and another [(2009) 9 SCC 682]; and vii Sunder Babu and others vs. State of Tamil Nadu [(2009) 14 SCC 244];
7. Per contra, the learned Additional Public Prosecutor submitted that the investigation conducted by the police reveals that all the three accused had colluded to create fabricated records for usurping the property of the company unlawfully and when the investigation is at the threshold, it is too premature to stifle the same by quashing the FIR.
8. This Court gave its anxious consideration to the rival submissions and perused the materials available on record.
9. At the first blush, the argument of the learned Senior Counsel appearing for the petitioner, placing reliance upon certain passages of the aforesaid judgments, did sound very appealing. It is true that the Supreme Court has clearly held that police machinery should not be and cannot be misused for settling personal scores, especially in civil matters.
10. It is true that Chandramouli lodged a complaint dated 12.09.2013 with the Commissioner of Police and had withdrawn the same on 14.12.2013. It may be pertinent to state here that no FIR was registered on the complaint dated 12.09.2013.
11. Sundar Iyer (A3/petitioner) has enclosed a copy of the letter dated 14.12.2013, purported to have been given by Chandramouli to the police withdrawing his complaint dated 12.09.2013, the authenticity of which, cannot be decided in a quash application. In his complaint dated 12.09.2013, Chandramouli has levelled allegations only against Krishnasamy (A1) and not against Sundar Iyer (A3/petitioner). That apart, the reasons given by Chandramouli for withdrawal of the complaint makes an interesting reading and the same is extracted hereunder:
I request you not to proceed with the case and drop the charges and close the file for the following reasons:
a. Other than me, all the Directors are in Hyderabad and unable to devote time to proceed with the case.
b. One of the Director's husband and advisor to the company met with a medical emergency and now recuperating.
c. I am also in the process of identifying new business opportunity for the benefit of myself and my family and because of that, I have a paucity of time to attend to the investigation and legal proceedings.
d. Mr. Krishnaswamy being a close relative, there is tremendous amount of pressure from the relatives and close common friends not to proceed with the case.
12. From a reading of the above, it appears that the complaint was not withdrawn by Chandramouli on the ground that Krishnasamy (A1) had not committed any act of misfeasance, but, was withdrawn essentially, because, terrible pressure appears to have been brought upon Chandramouli by his relatives.
13. It is obvious that after withdrawal of the earlier complaint, the travails of Chandramouli did not come to an end. Krishnasamy (A1) appointed himself and A.V.M. Sundar (A2) as Directors and set up Sundar Iyer (A3/petitioner herein) to create further chaos in the affairs of the company. Chandramouli has not suppressed the factum of withdrawal of the earlier complaint on 14.12.2013 in the present complaint dated 04.02.2015 and has truthfully and honestly revealed it to the police.
14. The contention of the learned Senior Counsel appearing for the petitioner that though the complaint was filed on 04.02.2015, yet, it was registered by the police only on 24.06.2016 and therefore, the FIR should be quashed, cannot be a good reason for quashment of the FIR, because, for the failure of the police to register an FIR immediately as mandated by law and the judgment of the Supreme Court in Lalita Kumari vs. Government of Uttar Pradesh and Others-IV [(2014) 2 SCC 1], Chandramouli cannot be penalised.
15. The learned Additional Public Prosecutor submitted that the FIR was registered on 24.06.2015 after the Company Law Board passed final orders on 22.06.2015 in C.P. No.21 of 2014 dismissing the petition filed by Sundar Iyer (A3/petitioner). He read out paragraph nos.19 and 20 of the order passed by the Company Law Board, which are worth quoting:
19 In the present case, the ingredients as required under Section 397/398 have not been satisfied by the petitioners. The petitioners have miserably failed to establish the acts of oppression and mismanagement.
20. Even it is not the case of the petitioners that they have invested huge money in the company and they are concerned about their investments. From the perusal of records there is no documentary evidence to prove that the petitioners have invested any money in the company nor made any contributions to the company. On the other hand, it is the case of the respondents that they have spent substantial amount through the R1 company to make the property valuable and the value of the property substantially increased in the recent past. I am of the view that appreciation of the value of the property is led the petitioners to file the present petition with a mala fide intention and for collateral purpose. Accordingly, the issue No.(ii) is answered against the petitioners.
16. Conveniently, Sundar Iyer (A3/petitioner) has not enclosed this order of dismissal in the typed set of papers, but, has been clever enough to enclose the interim order granted by this Court in M.P. No.1 of 2015 in Company Appeal No.13 of 2015 that has been filed by him and his wife Vanaja Sundar, challenging the final order passed by the Company Law Board.
17. The learned Senior Counsel read various passages from the aforesaid judgments of the Supreme Court to buttress his submission and this Court can have no quarrel with the proposition of law laid down by the Supreme Court in those cases. Those passages were rendered by the Supreme Court on the facts obtaining in those cases. The Supreme Court has been consistently following the law laid down in State of Haryana and others vs. Bhajan Lal and others [1992 Supp (1) SCC 335] in all its pronouncements relating to quashment of FIRs. Unfortunately, for Sundar Iyer (A3/petitioner), the facts obtaining in this case do not pass muster the law laid down in Bhajan Lal (supra), inasmuch as there are specific allegations in the FIR that Krishnasamy (A1) has created a false email id of Chandramouli to get digital signature and had set up A.V.M. Sundaram (A2) as Director and has further connived with Sundar Iyer (A3/petitioner) to usurp the company's property.
18. It is trite that the FIR is not an encyclopedia of the prosecution case. On a perusal of the case diary, it is manifest that the police have done substantial progress in the investigation by collecting specimen signatures of various persons. One cannot, at the threshold, presume that the FIR will, for certain, end in a charge sheet being filed against the accused, for, it is too premature for this surmise. The police may even drop the charges against Sundar Iyer (A3/petitioner) after completing the investigation.
19. In view of the aforesaid discussion, this Court is of the considered opinion that this Criminal Original Petition is bereft of any merit and is liable to be dismissed.
Accordingly, this Criminal Original Petition stands dismissed. However, the Assistant Commissioner of Police, Central Crime Branch, is directed to monitor the investigation in X Crime No.169 of 2016 and if, during the course of investigation, it is found that Sundar Iyer (A3/petitioner) had not colluded with Krishnasamy (A1) and A.V.M.Sundaram (A2) for usurping the property of the company, it is needless to state that further action against Sundar Iyer (A3/petitioner) should be dropped. Connected Crl.M.P. is closed.