Ramesh Ghanshamdas Aswani And ...

vs State Of Maharashtra on 29 November, 1990

Bombay High Court

Ramesh Ghanshamdas Aswani And ... vs State Of Maharashtra on 29 November, 1990
Equivalent citations: 1991 (3) BomCR 246
Author: M Saldanha
Bench: M Saldanha
JUDGMENT M.F. Saldanha, J.

1. Questions of some importance have been raised in this writ petition which I am summarising
below :

(a) whether in a proceeding instituted on a police complaint where the accused is discharged, the
Magistrate is justified in thereafter entertaining and acting upon a charge-sheet filed in the same
proceedings in respect of a charge on the same set of facts?

(b) whether having passed an order discharging the accused, the trial Court becomes functus officio
and whether it is consequently barred from reviewing or reconsidering that order or acting further
in the said case?

2. A few of the facts that are material are being set out below :

3. The petitioner Ramesh Ghanshamdas Aswani along with his brother Bhagwan and father Tulsidas
were partners of firm doing business in the name and style of K. Tulsidas & Bros., between the
period 1-4-1972 and 31-3-1979. With effect from 31-3-1979, the complainant Bhagwan retired from
the partnership. It is his case that he was forced to retire but we are not immediately concerned with
that aspect of the matter. It appears that savings bank account No. 8324 was opened with the Indian
Overseas Bank, Marine Lines Branch on 24-4-1980 by two persons viz., the present petitioner
Ramesh and his father Tulsidas. Though the account opening form is signed by these two persons,
the account was opened in the name of Bhagwan i.e. the brother who had retired from the partners
in the year 1979 and Tulsidas, the father. Ramesh, the present petitioner had also introduced the
opening of the account in question by signing in his capacity as the partner of Tulsidas & Bros.,
which firm operated Current Account No. 347 with the same Branch. In the introducer's column,
Ramesh has signed in the capacity of R. Tulsidas.

4. On 20-7-1984, complainant Bhagwe went to the Indian Overseas Bank, Marine Lines Branch and
complained to the Branch Manager that the Account No. 8324 which had been opened in his name
and which was being operated in his name had not been opened by him and that this was done
without his authority. He requested that he should be furnished with a statement of account and a
duplicate passbook and further that appropriate action be taken in the matter. The bank authorities
contacted Ramesh, whereupon, it appears that certain talks took place between the Branch Manager
and the two brothers, who in turn, were taken to the Head Office of the Bank. It further appears that
pursuant to the discussions between the parties, that a joint letter dated 30th July, 1984 was
addressed to the bank which is signed by Ramesh and his father and is counter-signed by the
complainant Bhagwan. By this letter, the bank was required to close the account and to transfer the
credit balance to a new savings bank account, which was to be opened in the name of the father

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 Ramesh Ghanshamdas Aswani And ... vs State Of Maharashtra on 29 November, 1990

Ghanshamdas. The matter does not seem to have ended there. On 22-2-1986, complainant Bhagwan
addressed a complainant to the Assistant Commissioner of Police, General Branch C.I.D., charging
his brother Ramesh and his father Tulsidas with having impersonated him in the opening of the
bank account in question and further charged them with having forged the relevant documents,
pursuant to which, the police registered an offence under sections 467, 468, 471, 419, 420 read with
114 of the I.P.C. It appears that in the course of the investigation, the police recorded the statements
of Bhagwan and of S. Ramaswamy, the Branch Manager as also of certain other persons. The
documents in question were sent to the Assistant State Examiner of Documents, C.I.D., M.S.,
Bombay. Thereafter, on 12-1-1988, the Police put up an application to the trial Magistrate stating
that in respect of a possible offence, no evidence could be collected against the accused to put them
up on charge and, therefore, requested that the accused be discharged. On this application, the
learned Metropolitan Magistrate, 28th Court, Esplanade, passed an order dated 12-1-1988,
discharging the accused.

5. The complainant Bhagwan was dissatisfied with the manner in which the case had been
investigated as also with the result and consequently, filed applications before different police
authorities, including the Inspector General of Police setting out his grievances and insisted that the
case should be further investigated and that appropriate steps according to law be taken against the
accused. It appears that pursuant to these demands, that the police once again recorded further
statements of two witnesses and obtained a second opinion on the documents in question. It is
significant to point out that the earlier opinion dated 4-8-1987 and the subsequent one dated
24-1-1981 are both signed by J.K. Aher, Assistant State Examiner of Documents, C.I.D., M.S.
Bombay. The two opinions contradict each other and in spite of this, the police appear to have filed a
charge-sheet before the trial Court, whereupon, the trial Magistrate regardless of the fact that the
accused had earlier been discharged, entertained the proceeding and issued process against the
accused on 20th April, 1990. It is against this order that the present petition has been filed.

6. Mr. John, learned Advocate appearing on behalf of the petitioner has, in the first instance,
submitted that admittedly, the present dispute is within a narrow compass viz., that it is a dispute
between one brother and the another brother and his father in relation to a partnership business. He
further contends that the complainant has subsequently filed a suit before the Civil Court asking for
appropriate reliefs in respect of the partnership dispute and that the suit was filed sometime in the
year 1988. The basic contention of Mr. John is that an examination of the record will very clearly
indicate that the complaint which has been instituted in the year 1986 in respect of what has
transpired in the year 1984, is clearly an abuse of the process of the Criminal Court machinery and
that this has been done with anterior motive for purposes of extorting moneys from the accused
persons as is evident from the correspondence that has been exchanged. He further contended that
it is an attempt to pressures the present petitioner (his father has since expired) and that secondly,
the dispute being essentially of a civil nature, this Court should quash the proceedings on the ground
that they constitute abuse of the process of the Criminal Court. As against this, Mr. Bagwe, the
learned Advocate appearing on behalf of Bhagwan, the original complainant, has contended that the
facts of the present case disclose various offences in so far as the accused Ramesh had admittedly
impersonsted Bhagwan at the time when the account was opened and that consequently, regardless
of the point of time when the complaint was lodged, the accused will have to stand his trial on the

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said charge. He has further contended, that the learned Magistrate was wrong in having discharged
the accused and that consequently, the complainant was fully justified in insisting that there should
be a further investigation of all additional material, which, when placed before the learned
Magistrate, fully justified his having held that a prima facie case has been made out. Furthermore,
Mr. Bagwe strongly contends that where the complainant makes out a prima facie case, the High
Court ought not to interfere in exercise of the powers under section 482 of the Code of Criminal
Procedure and that consequently, the present petition is liable to be dismissed.

7. It is necessary at this stage to consider the sequence of events and to consider also the legal
position coupled with the facts on record for the purpose of resolving the questions that have earlier
been posed by me. In the first instance, there is no dispute about the fact that the learned
Magistrate, on the basis of an application made to him by the police authorities, passed an order of
discharge dated 12-1-1988. This order passed under section 239 of the Code of Criminal Procedure
has the effect of concluding the proceedings before the trial Court. In the course of the hearing, I
enquired from Mr. Bagwe, learned Advocate appearing on behalf of Bhagwan as to when his client
had knowledge of the passing of the order in question. He thereupon showed me a letter dated 23rd
January, 1988 addressed to him by the police authorities informing the complainant of the fact that
the accused had been discharged. Had the complainant harboured any genuine grievance with
regard to the discharge order, it was necessary for him to have taken appropriate steps as prescribed
by law for having the discharge order set aside. If those steps were not taken, the discharge order
passed by the learned Magistrate would become final and thereafter, it was not open, in any event,
for the trial court to have either reviewed or set aside that order.

8. The position in law with regard to this aspect of the matter is well settled. Section 362 of the code
of Criminal Procedure reads as follows :

"362. Save as otherwise provided by this Code or by any other law for the time being in force, no
Court, when it has signed its judgment or final order disposing of a case, shall alter or review the
same except to correct a clerical or arithmetical error."

A reading of section 362 very clearly indicates that the learned Magistrate was not empowered to
alter or review the order of discharge in the present case. From the record, it is not very clear as to
whether the learned Magistrate sought to review or alter his order but from the action taken by the
learned Magistrate in entertaining the chargesheet and summoning the accused, it is quite evidence
that the learned Magistrate has acted despite the earlier order of discharge dated 12-1-1988. It
would, therefore, have to be held that the subsequent order of the learned Magistrate summoning
the accused is an order without jurisdiction and that this order will have to be quashed.

9. Section 362 of the Code of Criminal Procedure deals, both with judgments and final orders. There
is no ambiguity with regard to this aspect of the law and the same principle would follow in respect
of final orders as also judgments. See (Harilal), 1889 Indian Law Reports, 22 Bombay 949 and
(Laxmanrao), Indian Law Reports 1940, Nagpur 167.

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10. What clearly emerges, therefore, is that having once discharged the accused, the learned
Magistrate could not have thereafter proceeded to pass any further orders in this case. Mr. Bagwe,
learned advocate appearing on behalf of Bhagwan has relied on the decision of the Assam and
Nagaland High Court, reported in A.I.R. 1965 Assam and Nagaland, Page 9, in the case of State v.
Ganga Ram Kalita & others. The head note of the said case reads as under :

"Where a discharge order has been validly passed, the Magistrate becomes functus officio so far as
the case is concerned, and unless there is a fresh complaint or a fresh chargesheet, no action in the
matter can be taken by the Magistrate. A fresh complainant can under law be entertained by the
Magistrate. But, in the absence of any such complaint, any attempt to go back on the order of
discharge passed by him and to revive the case, as if the accused had not been discharged, would
amount in law to are view of the judgment of the Magistrate, which is not permissible having regard
to section 369. Therefore, the order of the Magistrate suo motu reviving the case and proceeding
with the trial of the same on merits is clearly devoid of jurisdiction and illegal. The proper course to
follow is to make a reference to the Sessions Judge or the District Magistrate having jurisdiction, for
a revision of the discharge order."

Though the Court in this particular instance was dealing with the old Code of Criminal Procedure of
1898, the provisions are identical and consequently, the same position in law will emerge. In view,
of the fact that the trial Court had become functus officio, it was not competent either for the police
to have proceeded with the investigation of the case after an order of discharge had been passed,
neither was it competent for the learned Magistrate to have reopened the proceedings. This view is
very necessary as the Criminal Procedure Code prescribes a degree of finality to orders that the
passed and there can be no warrant or jurisdiction for the reopening of a case after the passing of
final orders, however strong or valid the circumstances may be.

11. On the facts of the present case, it was strenuously submitted by Mr. John, learned advocate
appearing on behalf of the petitioner that the complainant Bhagwan had willingly and voluntarily
settled whatever disputes he had with Ramesh and with his firm, that he was party to the settlement
which had finally taken place on 30-7-1984 and the fact that, he had reopened the proceedings after
a period of two years very clearly indicated that this has been done for a collateral and ulterior
purpose. As against this, Mr. Bhagwe strenuously urged that in the first instance, the so-called letter
of settlement dated 30-7-1984 had been taken from Bhagwan under duress and threats and that he
had recorded these facts in his letter to the bank on 30th July 1984 and in subsequent
correspondence shortly thereafter. It is necessary to record that the partnership had come to an end
in the year 1979. It is also necessary to note that the complainant contends that he came to know of
the existence of this particular account only in July 1984 and not before that. However, it is equally
material to note that between 1979 and 1984, and for that matter, right upto the year 1988, the
complainant Bhagwan had not taken any steps of any type to enforce the so-called rights in respect
of what he claims to be his partnership dues. It is quite inconceivable that the complainant who
retired from the partnership in 1979 and who claims that the relationship between him and the
remaining partners viz., his brother and father was bad to the extent that he was clearly jettisoned
from the partnership and forced to leave the same would, under these circumstances, not take out
any proceedings even after the year 1984, leave alone earlier for purposes of recovering the so-called

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dues.

12. It is impossible to accept this explanation, because a perusal of the documents on record will
very clearly indicate that the complainant had been making all sorts of other demands and that there
appeared to have been certain disputes between the parties in relation to those accounts. It is
evident that when the complainant was unable to recover what he was demanding from his brother
and father that he decided to complain about the bank account in the year 1984. Once again, it is
very significant to point out that in July 1984, after having complained within a period of 10 days, he
is a party to an arrangement whereby the entire balance in the account of over Rs. 55,000/- was
transferred to the account of the father and not to him. This clearly indicates that at this point of
time, there could not have been any dues owing to the complainant Bhagwan as otherwise, under
the terms of the settlement, he would have insisted that the money in question be paid over to him.
There are further references in the correspondence between the parties to a power of attorney. It is
the case of the complainant that he never gave a power of attorney to his brother Ramesh and that
Ramesh is alleged to have prepared a back-dated power of attorney, which he refused to sign. On the
other hand, the petitioner Ramesh contends that he had been given a power of attorney by Bhagwan
and that it was under the authority of this power of attorney that he had opened and operated the
account.

13. Having regard to the material on record, the credibility of both the parties is seriously in doubt.
There is no doubt that there were several transactions that have taken place but the same are not
referred to in these proceedings. We are not immediately concerned with the credibility of the
petitioner because he is in the position of an accused. However, the credibility of the complainant
Bhagwan and his conduct are extremely material because, the contention raised by the learned
Advocate is that regardless of what may be the outcome of the trial, the same must be restored,
revived and allowed to continue. In the light of the law on the subject, one of the considerations
before this Court would be the question as to whether such proceedings should be permitted to
continue and whether the chance of a conviction resulting in these proceedings is bleak or whether
the possibilities are reasonably good, I have no hesitation in concluding that on the fact of the
record, the possibility of a conviction being recorded in the case of the petitioner is not only remote
but virtually impossible. In the first instance, the opinions given by the same handwriting expert
contradict each other. Secondly, the abnormally long and unexplained delay on the part of the
complainant in having filed the complaint before the Assistant Commissioner of Police on
22-2-1986 in respect of instances which came to his knowledge in 1984 and after his having of his
own accord settled the entire dispute in 1984, raise serious doubt regarding his motives. In addition
to this, there are several other circumstances on record, viz., the evidence of the Branch Manager,
who very clearly states that the complainant Bhagwan came with him to the Head Office of the bank
and furthermore, he signed the letter dated 30-7-1984 in his presence at the Head Office, all factors
which would weight heavily against the complainant. There are also suggestions to the effect that he
had authorised Ramesh, who was his own brother, through a power of attorney to act on his behalf.
Ramesh has in the course of the proceedings explained that after the settlement of the dispute,
Bhagwan has destroyed the power of attorney in question and, therefore, he is unable to produce the
same. Regardless of the truth or otherwise of this statement, in the facts and circumstances of the
case, the possibility of a conviction is remote.

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14. The Supreme Court in the case of Madhavrao Jiwajirao Scindia v. Sambhajirao Chandrojirao
Angre & others, has observed that it is also necessary for the Court to take into consideration any
special features which appear in a particular case to consider whether it is expedient and in the
interest of justice to permit a prosecution to continue. That is so on the basis that the Court cannot
be utilised for any oblique purpose and where in the opinion of the Court, chances of an ultimate
conviction are bleak and, therefore, no useful purpose is likely to be served by allowing a criminal
prosecution to continue, the Court may while taking into consideration the special facts of a case
also quash the proceeding even though it may be at a preliminary stage. On the basis of these
observations, I am of the view that apart from the fact that the proceedings are without jurisdiction,
the additional ground on which the prosecution is liable to be quashed is that the interest of justice
so require it. The courts in this country and in particular, the subordinate Criminal courts are
virtually groaning under the immense pressures of pending case and the High Court will have to be
very selective in permitting luxury litigation of the present type to continue. Where a set of
businessmen, all of whose credibility is at an extremely low ebb, indulge in manipulative schemes
and then fall out with each other, they cannot be permitted to use the machinery of the Criminal
Courts to achieve their own ends.

15. I shall briefly deal with the decisions on which reliance was placed by the respective parties. Mr.
John has, in the first instance relied on the decision in the case of Dr. Sharda Prasad Sinha v. State
of Bihar. In this case, the Supreme Court took the view that where the allegations in a complaint or
charge-sheet do not constitute any offence, that the order taking cognizance can be quashed by the
High Court. It will have to be noted that in the present case, where the allegation is to the effect that
the account in question was opened without the authority of the complainant and it seems to have
come on record that this position is extremely doubtful, it cannot be said that the basic ingredients
of any of the offences have been made out. The second decision that has been relied on by Mr. John,
is in the case of Trilok Singh & others v. Satya Deo Tripathi. This case was of a hire purchase
arrangement, and after analysing the facts, the Supreme Court expressed the view that where the
Criminal Court machinery is being utilised for purposes of adjudicating a dispute that is purely of a
civil nature that the same constituted an abuse of the process of the Court and ought to be quashed.
In the present case, there would be no doubt whatsoever that right from the year 1979, various
disputes of a civil nature were being agitated between the parties and admittedly, even after 1984,
for a full 2 years, the complainant did not come forward with any complaint alleging offences having
been committed and it is only when he found it impossible to recover the amounts that he was
claiming or to get his other claims considered that the suddenly rushed to the police and started
using the police machinery. The fact that the present complaint was filed for an ulterior purpose
cannot be ignored and under these circumstances, it would certainly have to be adjudicated as an
abuse of the process of the Court. Mr. John has also placed reliance on a decision of the Single Judge
of this Court in Criminal, Application No. 1670 of 1985. In that case, Puranik, J., had observed that
undoubtedly, both criminal and civil remedies may be available to a party but where the dispute in
question was overwhelmingly of a civil nature that it was a fit case in which the criminal proceedings
were liable to be quashed. Next, Mr. John placed reliance on the decision of the Supreme Court in
case of Bihar State Electricity Board & another v. Nand Kishore Tamakhuwala. Apart from the fact
that the Court expressed the view that a proceeding where no case is made out is liable to be
quashed, the Court also expressed its disapproval with regard to the continuance of proceedings

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after a very long lapse of time. In the present case, it must be noted that the dispute between the
parties had commenced in the year 1979. It will have to be further noted that the complainant
himself alleged that it came to his notice about the bank account in the year 1984 and he still did not
set the law in motion until the year 1986. The accused came to be discharged in the year 1988 and
once again, applications were made for continuing with the investigation and ultimately, in the year
1989, a chargesheet came to be filed. In these circumstances, the lapse of time is an additional
circumstance on which this Court would be justified in pushing the criminal proceedings as has been
observed by the Supreme Court in the above case. Mr. John also sought to place reliance on the
decision of the Supreme Court in the case of M/s. Karamchand Ganga Pershad & another v. Union
of India & others. There is an observation in this judgment to the effect that it is a well settled
principle of law that the decisions of Civil Courts are binding on Criminal Court. The case in
question is distinguishable from the facts of the present case. This is not a case in which there is any
conflict between the decision of the Civil and a Criminal Court. The next decision on which Mr. John
placed reliance is the once reported in 1980 Bombay Cases Reporter, 503. Bomanji Kavasji Boman
Bhehram v. Mehemosh Minochar Mehta. In this case, a Division Bench of the Court took the view
that where no criminal case is made out and the dispute is essentially of a civil character, that the
invocation of the jurisdiction of the Criminal Court clearly constitutes abuse of criminal process.
Lastly, Mr. John, has relied upon a decision reported in A.I.R. 1988 (Bombay) Page 279, (sic.),
where once again, the view expressed by this Court is to the effect that where the dispute is
predominantly of a civil law that it is incorrect and impermissible to utilise the criminal machinery
for adjudicating the same.

16. Some grievance was sought to be made by Mr. Bagwe with regard to the fact that the accused
who is the petitioner before this Court has been taking inconsistent pleas before different courts.
The truth or otherwise of the pleas taken up by the accused is wholly irrelevant in so far as it is well
settled law that this Court would not look into the defence the possible defence of an accused in
criminal proceedings under section 482 Cr.P.C. It is open to the parties to those proceedings to
point out to the concerned courts of the inconsistencies, if any, and to ask for appropriate orders.

17. In view of the above discussion, there can be no dispute about the fact that the learned
Magistrate was in error in having proceeded with the trial after having passed an order of discharge
and both the subsequent investigation and the order of issuing process against the accused are
without jurisdiction. In this view of the matter, the proceeding would have to be quashed. I have also
analysed the facts pertaining to the present case and come to the conclusion that no useful purpose
whatsoever will be served even assuming that the order of discharge was not in the way of the
parties. On the facts as disclosed and having regard to the documents on record, the contradictions,
the inconsistencies, the degree of delay and the serious doubt that arise with regard to the credibility
and conduct of the complainant, the interests of justice would require that in any event, the criminal
be quashed.

18. In the result, the petition succeeds. The Criminal Case No. 536/P of 1989 pending before the
learned Additional Chief Metropolitan Magistrate, 23rd Court, Esplanade, Bombay is quashed. The
interim orders are hereby vacated. Rule is made absolute in terms of prayer (a).

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