R. Mohanababu and Ors. v. State of Kerala and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE A.HARIPRASAD TUESDAY, THE 5TH DAY OF AUGUST 2014/14TH SRAVANA, 1936 Crl.MC.No. 4169 of 2011 ( ) ---------------------------CC 388/2011 of JUDICIAL FIRST CLASS MAGISTRATE COURT-II, KOLLAM PETITIONER(S)/ACCUSED 4,5 & 3: ---------------------------------------------------------- 1. R.MOHANABABU, ADVOCATE, RAJASADAN LODGE, ROOM NO.5, NEAR CIVIL STATION KOLLAM - 13. 2. BINDHU, ADVOCATE, (JUNIOR ADVOCATE OF MOHANABABU), RAJASADAN LODGE ROOM NO.5, NEAR CIVIL STATION, KOLLAM - 13. 3. G.HARISH, ADVOCATE CLERK, RAJASADAN LODGE, ROOM NO.5, NEAR CIVIL STATION KOLLAM - 13., (GIRISH BHAVAN, KALLUMTHAZHAM P.O. KILIKOLLOOR, KOLLAM. BY ADVS.SRI.BECHU KURIAN THOMAS SRI.ENOCH DAVID SIMON JOEL RESPONDENT(S)/DEFACTO COMPLAINANT AND ACCUSED 1 AND 2: -------------------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. 2. P.G.ARAVINDAKSHAN NAIR, AGED 65 YEARS, S/O.P.N.GOPALA PILLAI, 'V' NIVAS, ALUMMOODU P.O. PUNUKKANNOOR CHERRI, KOTTANKARA VILLAGE, KOLLAM TALUK-691501. 3. P.R.RAVEENDRAN PILLAI, S/O.RAMAKRISHNA PILLAI, KUMARI NIVAS, KUREEPUZHA KAVANAD P.O., KOLLAM - 691003. 4. K.G.SIVADASAN (ADOOR), Q.S.W.GRADE II, KEL, P.B.NO.8, KUNDARA P.O. KOLLAM - 691501. R2 BY ADV. SRI.PRATHEESH.P R1 BY PUBLIC PROSECUTOR SHRI JUSTIN JACOB THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 01.07.2014, THE COURT ON 05-08-2014 PASSED THE FOLLOWING: CRL.MC NO.4169/2011 APPENDIX PETITIONER(S) EXHIBITS - ANNEXURE-A1: TRUE COPY OF THE JUDGEMENT DATED 18-8-2006 IN C.C.277/2003 ON THE FILES OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT, KOLLAM. - ANNEXURE-A1(a): TRUE COPY OF THE JUDGMENT IN CRL.L.P 670/2006 DTD.13-12-2006. - ANNEXURE-A2: CERTIFIED COPY OF THE COMPLAINT DATED 24-3-2006 FILED BY THE 2ND RESPONDENT. - ANNEXURE-A3: TRUE COPY OF THE REFER REPORT NUMBERED AS RC NO. 41/2007 DATED 14-9-2007 - ANNEXURE-A4: TRUE COPY OF PROTEST COMPLAINT AS CMP 1619/2008. - ANNEXURE-A5: TRUE COPY OF THE ORDER DATED 10-11-2010 IN CMP 1619/2008. - ANNEXURE-A6: TRUE COPY OF THE SECOND COMPLAINT NUMBERED AS CMP 2885/2006. - ANNEXURE-A7: TRUE COPY OF THE ORDER TAKING COGNIZANCE DATED 4-6-2011, NUMBERED AS CMP 2885/2006 IN C.C.388/2011 ON THE FILES OF JUDICIAL FIRST CLASS MAGISTRATE COURT, KOLLAM. - ANNEXURE-A8: TRUE COPY OF THE COMPLAINT IN PLP 250/2010. - ANNEXURE-A9: TRUE COPY OF THE COMPLAINT IN CONSUMER CASE NO. 71/2011 ON THE FILES OF THE CONSUMER DISPUTES REDRESSAL FORUM. - ANNEXURE-A10: TRUE COPY OF THE LEGAL NOTICE DATED 17-3-2006 ISSUED BY THE 2ND RESPONDENT THROUGH ADVOCATE N.HARIDASAN. RESPONDENTS' EXHIBITS : NIL //TRUE COPY// ## **A.HARIPRASAD, J.** ## **-------------------------------------Crl.M.C. No.4169 of 2011 -------------------------------------Dated this the 5[th] day of August, 2014.** ## **ORDER** Petition filed under Section 482 of the Code of Criminal Procedure (in short, “Cr.P.C.”). 2. 1[st] petitioner is an advocate and the 2[nd] petitioner is his junior advocate. 3[rd] petitioner is the advocate clerk. They are accused 4, 5 and 3 respectively in C.C.No.388 of 2011 pending before the Judicial First Class Magistrate Court-II, Kollam. They have been arraigned in a complaint alleging offences punishable under Sections 120B, 196, 379, 381, 408, 420, 465 and 464 read with Section 34 of the Indian Penal Code (in short, “IPC”). The 2[nd] respondent/complainant lodged a private complaint before the learned Magistrate alleging the said offences. Learned Magistrate after conducting an enquiry under Section 200 Cr.P.C., took cognizance of the case under Sections 464 and 465 read with Section 34 IPC and process was issued under Section 204 Cr.P.C. Aggrieved by that order, the petitioners have preferred this Criminal Miscellaneous Case. 3. Annexure-A6 is the complaint sought to be quashed in this proceedings. Petitioner contended that Annexure-A6 is a second complaint alleging the same set of facts during the pendency of the first one. 2 Crl.MC No.4169/2011 Subsequently, the first complaint was dismissed. A protest complaint filed against the refer report in that matter was also dismissed. The main contention raised by the petitioners is that Annexure-A6 complaint is legally not maintainable for the said facts alone. 4. Brief allegations in Annexure-A6 are as follows: Accused 1 and 2 are enmical towards the complainant. Accused 4 and 5 were the advocates appeared for the 2[nd] accused in C.C.No.277 of 2003 filed by the complainant against him. Complainant at the material time was prosecuting a few criminal cases in the Magistrate Courts at Kollam. It is the allegation that the petitioners along with the other accused conspired together and created false documents to be produced in criminal cases to defeat his claim. It is further averred in the complaint that the skill and knowledge of the petitioners were utilised by other accused for fabrication of evidence against the complainant. Therefore, they are all guilty of the said offences. 5. Heard Shri Bechu Kurian Thomas, learned counsel for the petitioners and Shri Pratheesh P, learned counsel for the 2[nd] respondent/complainant. Shri Justin Jacob, learned Public Prosecutor was also heard. 6. Shri Bechu Kurian Thomas contended that Annexure-A6, the 3 Crl.MC No.4169/2011 second complaint, alleging the same set of facts and against the same persons, is not maintainable. This proposition is well settled by judicial precedents. The Supreme Court in **Pramatha Nath v. Saroj Ranjan (AIR 1962 SC 876)** considered the question of maintaining a second complaint on the same facts when the first complaint was dismissed under Section 203 Cr.P.C. The ratio relevant for our purpose can be found in paragraph 48 of the judgment. It reads as follows: _“............... An order of dismissal under S. 203, Criminal Procedure Code, is, however, no bar to the entertainment of a second complaint on the same facts but it will be entertained only in exceptional circumstances, e.g., where the previous order was passed on an incomplete record or on a misunderstanding of the nature of the complaint or it was manifestly absurd, unjust or foolish or where new facts which could not, with reasonable diligence, have been brought on the record in the previous proceedings, have been adduced. It cannot be said to be in the interest of justice that after a decision has been given against the complainant upon a full consideration of his case, he or any other person should be given another opportunity to have his complaint enquired into. ............”_ 4 Crl.MC No.4169/2011 This decision was subsequently followed by the Supreme Court in **Bindeshwari Prasad Singh v. Kali Singh ((1977) 1 SCC 57)** , wherein it was observed that it is now well settled that a second complaint can lie only on fresh facts or even on the previous facts only if a special case is made out. The said principle of law has been reiterated by a Bench of the Supreme Court consisting of three learned Judges in **Mahesh Chand v. B.Janardhan Reddy and another ((2003) 1 SCC 734)** in the following words: _“........... 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 Sec. 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 Taluqdar's case (supra) 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 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_ 5 Crl.MC No.4169/2011 _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. ............”._ Therefore, the question that a second complaint on the same set of allegations can be maintained only on establishing special reasons is not a matter res integra. 7. Now let us examine the facts of this case. The 2[nd] respondent/complainant initially filed a complaint on 24.03.2006 (AnnexureA2). Accused 1 to 5 in Annexure-A6 complaint were accused 4, 3, 5, 1 and 2 respectively in Annexure-A2 complaint. Therefore, the accused now arraigned figured in the previous complaint, viz., Annexure-A2, of course with a jumbled rank. On a careful perusal of Annexure-A2 complaint and the present complaint (Annexure-A6), it can be seen that they are verbatim reproduction of one another. Even the offences alleged in both the complaints are exactly the same. 8. Annexure-A2 complaint was forwarded by the court for investigation by the Police under Section 156(3) Cr.P.C. After completing the investigation, Annexure-A3 refer report was filed on 14.09.2007. On receiving notice on the refer report, the complainant approached the court below with Annexure-A4 protest complaint on 31.01.2008. As per 6 Crl.MC No.4169/2011 Annexure-A5 order dated 10.11.2010, the learned Magistrate rejected the protest complaint. Learned counsel for the petitioners submitted that the said order passed by the learned Magistrate has become final. It is interesting to note that Annexure-A6, the second complaint was filed on 17.04.2006. Stated more precisely, the second complaint was filed when the first complaint was pending investigation by the Police. It is pertinent to note that the complainant did not even wait to see the outcome of his first complaint and he filed the second complaint during the currency of the investigation proceedings in the first one. Therefore, by no stretch of reasoning, it can be stated that the second complaint is maintainable in law. 9. Learned counsel for the petitioners submitted that on facts also, the complaint is not maintainable. It is his submission that the complainant is in the habit of filing cases against the counsel of his adversary and also against his own counsel. To establish those facts, certain documents are produced in this proceedings. However, I am not inclined to go into the factual aspects of the case. A finding that in the same set of facts and with the same allegations, a second complaint is not maintainable without assigning any special reason is enough to find that Annexure-A6 complaint is not maintainable. Further fact that it was filed 7 Crl.MC No.4169/2011 during the pendency of the investigation in the first complaint is an additional reason to find that Annexure-A6 is legally unsustainable. In the result, the petition is allowed. Annexure-A6 complaint now pending in C.C.No.388 of 2011 on the file of Judicial First Class Magistrate Court-II, Kollam and all further proceedings thereunder are hereby quashed. All pending interlocutory applications will stand dismissed. ## **A. HARIPRASAD, JUDGE.** ## **cks**