JUDGMENT
P.N. Sinha, J.
1. The point involved in this revisional application is whether during pendency of the magisterial action over a complaint filed by the opposite party as complainant praying for direction for sending the petition of complaint to Officer-in-Charge of a police station for causing investigation under Section 156(3) of Cr. PC; a second complaint over same set of facts and allegations filed by same complainant is maintainable.
2. The facts giving rise to the revisional application as it appears from the revisional application and its annexures is that, the opposite party filed a petition of complaint in the Court of the learned Chief Metropolitan Magistrate (in short CMM), Calcutta which was registered as Case No. C/4941/01 and the opposite party complainant prayed for sending the complaint to the Deputy Commissioner of Police, Detective Department, Lalbazar, Calcutta for causing investigation under Section 156(3) of Cr. PC treating the complaint as FIR. It appears that in the said complaint which is annexure P-4 the opposite party complainant mentioned that previously on 27.8.01 she lodged written complaint before the Deputy Commissioner of Police, Detective Department, Lalbazar, Calcutta but the police did not take any action and did not register any FIR. It is evident that the learned CMM by his order dated 26.9.01 after perusing the complaint called for a report from the D.C.(D.D.), Lalbazar as to steps, if any, taken on the complaint lodged by the petitioner which was received in his office on 27.8.01. It is clear that the learned CMM on that date did not pass any direction for sending the complaint to the concerned police station for investigation under Section 156(3) of Cr. PC. Learned Magistrate fixed 21.11.01 for the report. The order of the learned Magistrate dated 21.11.01 which is annexure P-6 reveals that the learned Magistrate received the report of Investigating Officer (I.O.). I.O. in the report which is annexure P-5 mentioned that the said matter is related to company affair regulated under Companies Act, 1956. It is a civil issue and, therefore, no police action is possible on the basis of the application filed by the complainant before the office of the Deputy Commissioner, Detective Department on 27.8.01. The learned Magistrate by order dated 21.11.01 directed the I.O. to appear before him on 6.12.01. The order of the learned Magistrate dated 6.12.01 reveals that as the police did not take any step for investigation considering the matter relating to company affairs and civil issue, he passed order for informing the de facto complainant as to whether the de facto complainant wants direction under Section 156(3) of Cr. PC or wants to initiate complaint, as defined under Section 2(d) of Cr. PC and fixed 22.1.02 for order. By order dated 22.1.02 learned Magistrate directed issue of fresh notice upon the informant. Next date was 12.2.02 and on that date a petition was filed for the complainant praying for time and the learned Magistrate granted time till 19.3.02. Thereafter, it appears that the learned Magistrate fixed 10.4.02 for further order as the de facto complainant was found absent. It is evident that, in the meantime on 5.12.01 the same opposite party as complainant filed another complaint in same tune like the previous one and again prayed for direction upon Deputy Commissioner of Police, Detective Department for causing investigation in terms of Section 156(3) of Cr. PC treating the complaint as FIR. The said complaint was registered as Case No. C-5890/01. The order of learned CMM dated 5.12.01 over the said subsequent complaint reveals that the learned Magistrate after perusing complaint took cognizance and transferred the case to learned Metropolitan Magistrate, 14th Court for disposal. The leaned Metropolitan Magistrate, 14th Court by order dated 21.2.02 issued process under Section 418 read with section 120B of the Indian Penal Code (in short IPC) against the petitioners. Challenging the said order the petitioners have preferred the instant revisional application and have prayed for quashing the second complaint being Case No. C-5890/01.
3. Mr. Sekhar Basu, learned Senior Advocate appearing for the petitioners contended that on the basis of first complaint of opposite party in connection with Case No. C/4941/01 the learned CMM by order dated 26.9.01 called for a report from the police authorities and the police authorities submitted that as the matter is concerning company affair and civil in nature they did not think it fit to investigate into the case particularly on the complaint lodged by the de facto complainant at the office of the Deputy Commissioner (Detective Department), Lalbazar on 27.8.01. He contended that provisions of Section 157(l)(b) and provisions of Section 159 of Cr. PC are important. Section 157 deals with procedure for investigation and Sub-section Kb) reveals that if it appears to the Officer-in-Charge of a police station that there is no sufficient ground for entering on an investigation, he shall not investigate the case. Section 159 prescribes that a Magistrate on receiving such report may direct an investigation or, if he thinks fit at once proceed or depute any Magistrate subordinate to him to proceed, to hold a preliminary enquiry into or otherwise to dispose of the case in the manner provided in the Code.
4. Mr. Basu contended that after receiving the said police report the Magistrate could have directed investigation or could have taken cognizance over that complaint and could have proceeded further from Section 200 of Cr.PC onwards. Filing of second complaint over self-same matter when magisterial action or jurisdiction was not yet over is bad in law. Over the first complaint i.e. Case No. C/4941/01 the learned Magistrate could have directed for investigation or enquiry or after accepting the report could have asked the complainant to file a ‘naraji’, and thereafter, on the basis of such ‘naraji’ he could have proceeded into the matter in accordance with law treating the ‘naraji’ as a complaint. Law does not permit filing of second complaint and action of Magistrate on second complaint when action of Magistrate over first complaint in respect of self-same facts and allegations was pending in the same Court. In the second complaint the opposite party complainant totally suppressed the fact that previously on 26.9.01 she filed a previous complaint being Case No. C/ 4941/01 against the same accused persons over same set of facts and allegations. Accordingly filing of the second complaint suppressing fact of filing earlier complaint over self same facts and allegations during pendency of magisterial action on the first complaint is a sufficient ground for quashing the second complaint.
5. Mr. Basu further contended that in this case general exceptions as provided in Sections 77, 78 and 79 of IPC is available to the accused petitioners as nothing is an offence if anything is done in accordance with an order of Court. In terms of direction of this Court in company jurisdiction in connection with company petition No. 239 of 1997 and company application No. 177 of 1997 and in terms of order of this Court dated 17.3.97 there was direction for sale of the property of the company at Haryana and the Court passed a direction for publication of the matter in newspapers like ‘Pratidin’, ‘Sanmarg’ and ‘Financial Express’. The complainant opposite party was fully aware about the direction of this Court passed under company application. The petitioners acted in terms of direction of this Court passed in company petition No. 239 of 1997 connected with company application No. 177 of 1997 and accordingly they are protected under the General Clauses Act under Sections 78 and 79 of IPC. Moreover, there was no ingredient of cheating and nowhere in the complaint any element of cheating has been disclosed. Use of simple word ‘cheating’ and bald allegation in the complaint is not sufficient. There was no foundation for taking cognizance under Sections 418 and 120B of IPC. It is a fit case for quashing the second complaint as it was filed during pendency of the magisterial action over the first complaint. In support of his contention he cited the decisions reported in 1960 Cr. LJ 1499 (Vadilal Panchal v. Dattatraya Duiaji Ghadigaonkar), (S. N. Sharma v. Bipen Kumar Tiwari), (Raj Kapoor v. Laxman), 1990 C Cr. LR (Cal) 174 (Ashutosh Sarkar v. Naturam Das @Rajak), AIR (36) 1949 Lahore 204 (Crown v. Mohammad Sadiq Niaz), 1961(2) Cr. LJ 71 (Sarju v. State of West Bengal) (Pancham Singh v. State) and (Harendra Nath Saha v. Emperor).
6. Mr Dilip Dutta, learned Senior Advocate for the opposite party complainant contended that provisions of Section 157(2) of Cr. PC is very important and this provision was not complied with and the Officer-in-Charge did not inform the informant that police will not investigate the case or cause it to be investigated. In such a situation the action open to the Magistrate are as follows :
“(a) To direct further investigation, under Sub-section (8) of Section 173 of Cr. PC.
(b) To take cognizance on the report irrespective of the recommendation of the Investigating Officer, and issue process.
(c) Otherwise the Magistrate is required to give notice and opportunity of hearing to the informant before accepting the final report and closing the case. This notice is not a substitute for the notice which is required to be given by the investigating agency. No such notice was given by the investigating agency.”
7. The value of the petitioner’s share was Rs. 30 crores. Due to change of company without intimation to the complainant there was no notification regarding shares in the market. As a result of which the value of shares came down in the market to Rs. 2 crores only and the complainant suffered huge loss. The notice of general meeting or board meeting was not circulated to the complainant. There was no publication of notice of general meeting and board meeting in All India Newspapers and the publication, if any, was done with mala fide intention. The directors are agents of a company and are liable to be prosecuted. The language of Sections 409 and 418 of IPC are important and without trial it cannot be ascertained at this stage whether there are elements of alleged offence of cheating or not. The directors are representatives of shareholders and the directors intentionally caused damage to company and property of company. The language of Sections 397 and 398 of the Companies Act are important and these sections are not applicable in this case.
8. Mr. Dutta further contended that if the opposite party complainant challenged the report of the police by filing a ‘naraji’ petition, the learned Magistrate would have treated the same as a petition of complaint and called upon the complainant to examine himself and her witnesses under Section 200 of Cr. PC, and thereafter, the learned Magistrate would have decided either to proceed further by issuing process or not. The informant was advised to file a petition of complaint and the learned Magistrate took cognizance and after examining the complainant issued process. The identical procedure would have been followed if the complainant filed a ‘naraji’ petition. Accordingly, there was no illegality in the impugned order of the learned Magistrate taking cognizance on the basis of second complaint and continuation of second complaint is not bad in law. The first complaint in its usual way died a natural death after magisterial action over second complaint was taken. The petitioners cannot claim general exception in view of provisions of Sections 78 and 79 of IPC at this stage and without trial it cannot be ascertained whether the action of the accused petitioners in terms of order of this Court was done in good faith believing that the Court had such jurisdiction. Accordingly, there is no merit in the revisional application and the revisional application should be dismissed.
9. Considering the submissions made by the learned Advocates of the parties and going through the revisional application and the annexures, I am of opinion that, question of committing no offence in view of Sections 78 and 79 of the IPC by the petitioners do not arise at all at this stage. This point can only be decided on the basis of evidence in the trial, if there be any. Without trial and without evidence it is not possible to determine whether the petitioners acted on the basis of judgment and order of this Court passed in company petition No. 239 of 1997 connected with company application No. 177 of 1997 during course of such judgment doing the acts in good faith believing that the Court had such jurisdiction to pass such an order. Similarly, without evidence it cannot be ascertained whether the action of the petitioners on the basis of such direction of Company Court is justified by law and the petitioners in good faith believe themselves justified by law by doing the act complained of.
10. It is quite evident that the complainant opposite party No. 2 filed a complaint before the learned CMM on 26.9.01 praying for direction for investigation under Section 156(3) of Cr.PC treating the complaint as FIR. In the said complaint in paragraph 17 it was mentioned by the complainant that she has already lodged written complaint against the accused persons before the Deputy Commissioner of Police, Detective Department, Lalbazar, Calcutta which was received in the said office on 27.8.01, but police did not take any action. The complaint filed by the opposite party before the learned CMM was registered as Case No. C/4941/01 and the learned CMM by order dated 26.9.01 did not send the complaint to the concerned police station for investigation under Section 156(3) of Cr.PC treating the complaint as FIR. It transpires that the learned CMM on the other hand, called for a report from D.C.(D.D.), Lalbazar as to steps, if any, taken on the complaint lodged by the complainant petitioner which was received in his office on 27.8.01 and fixed 21.11.01 for the report. On 21.11.01 the learned Magistrate received a report from I.O. and learned Magistrate fixed 6.12.01 for appearance of the I.O. The order of the learned CMM dated 26.9.01 makes it clear that he did not send the petition of complaint to Officer-in-Charge of concerned police station for investigation under Section 156(3) of Cr. PC treating the complaint as FIR. On 6.12.01 learned Magistrate received another report which was forwarded by Officer-in-Charge, Special Cell, Detective Department, Lalbazar and the said report reveals that as the matter is related to company affair it is a civil issue and no police action is possible on the basis of application filed by the complainant Neelam Lamboria on 27.8.01.
11. Section 157(1)(b) indicates that if it appears to the Officer-in-Charge of a police station there is no sufficient ground for entering on an investigation, he shall not investigate the case. The report submitted before the learned CMM by the police officer on 6.12.01 was, therefore, a report under Section 157(1)(b) and the Officer-in-Charge concerned decided that there is no sufficient ground for entering into investigation. The grounds for not entering into investigation has been stated above. Under Section 157(2) it was the duty of the Officer-in-Charge to inform forthwith the informant that he will not investigate the case or cause it to be investigated. The submission of Mr. Dutta, learned Advocate for the complainant reveals that the police officer did not inform the complainant that they will not investigate the case. Failure of the Officer-in-Charge regarding not sending any information to the informant that they will not cause investigation is not vital in this matter as the informant-cum-complainant already lodged complaint before the learned CMM praying for direction for investigation under Section 156(3) of Cr.PC and the said complaint was registered as Case No. C/4941/01.
12. The above report of the police officer indicates that the police decided not to investigate the case on the basis of complaint filed by the complainant before the office of D.C.(D.D.) on 27.8.01. It is evident that after receiving such report the learned CMM did not pass any direction for sending the petition of complaint registered as Case No. C/4941/01 to concerned police station or to D.C.(D.D.), Lalbazar giving direction for investigation under Section 156(3) of Cr. PC. The learned Magistrate observed that as the police has decided not to take any step towards investigation the complainant may be informed of the situation to ascertain whether he wants a direction under Section 156(3) of Cr. PC or wants to initiate complaint as defined under Section 2(d) of Cr. PC. It is further evident from subsequent orders dated 22.1.02,12.2.02 and 14.3.02 that the magisterial action over the complaint bearing No. C/4941/01 was not complete. In such a situation the courses open to the complainant was either to submit before the learned Magistrate for sending the complaint for investigation or to take cognizance on the complaint and to proceed from the stage of Section 200 Cr. PC. It is crystal clear that the complainant did not take any step in the matter and her complaint being the first complaint bearing No. C/4941/01 remained pending for final action to be taken by the Magistrate. Action of learned Magistrate under Section 159 of Cr.PC was not complete relating to complaint bearing No. C/4941/01.
13. It transpires that during pendency of the magisterial action over that complaint, the complainant suppressing the fact of filing a previous complaint lodged the second complaint over self-same facts and allegations against the same accused persons on 5.12.01 and the said complaint was registered as case No. C/5890/01. Order of learned CMM dated 12.2.02 reveals that on that date concerning the first complaint this complainant prayed for time, and on that date also, she did not inform the learned CMM that already in the meantime on 5.12.01 she has filed the second complaint being Case No. C/5890/01 and on the basis of said complaint learned CMM took cognizance and by order dated 21.2.02 learned Metropolitan Magistrate, 14th Court issued process against the accused petitioners under Section 418 read with section 120B of IPC. Certified copy of order sheet of the Court of learned CMM which is annexure P-6 annexed with the revisional application make it clear that the learned CMM by order dated 14.3.02 fixed the next date as 10.4.02. It shows that first complaint being Case No. C/4941/01 remained pending and magisterial action over that complaint was not complete. During pendency of the magisterial action over the first complaint the complainant is not entitled to lodge second complaint, that too, suppressing the fact in the second complaint that her earlier complaint remained pending and magisterial action was not yet over. Considering the present legal position, the second complaint filed by the complainant giving rise to Case No. C/5890/01 is not maintainable in law.
14. Whether the petitioners had the intention of cheating right from beginning are mutters of fact to be decided on the basis of evidence in trial. That question is not relevant at all in the present proceeding when it is manifestly clear that filing of the second complaint being Case No. C/5890/01 during pendency of the first complaint over same facts and circumstances was bad in law particularly when action of the learned CMM over the first complaint being Case No. C/4941/01 was not completed and action of learned CMM over the previous complaint still remained pending in view of provisions of Section 159 of Cr. PC. The complainant cannot opt to file second complaint during pendency of her first complaint when in the previous complaint the learned Magistrate asked her to appear before the Court and to submit whether the complainant wants to file a ‘naraji’ or wants sending of complaint for investigation. Accordingly whether there was element of cheating or not as alleged is not at all relevant in the instant proceeding.
15. If it was within the knowledge of the learned CMM in the second complaint being Case No. C/5890/01 that the previous complaint filed by the complainant being Case No. C/4941/01 was still pending in his Court for his action, the learned CMM would not have taken cognizance over the second complaint and would not have transferred the said complaint to learned Metropolitan Magistrate, 14th Court for disposal. If the learned Metropolitan Magistrate, 14th Court after perusing the second complaint found that first complaint remained pending for magisterial action, he would not have issued process against the accused persons i.e. the present petitioners. Suppressing the fact of filing a previous complaint against the accused persons over same set of facts and allegations, the complainant filed the instant complaint being Case No. C/5890/01. Had the complainant disclosed in the present complaint, i.e. the second complaint, the learned Magistrate would not have issued process against the petitioners. Considering all aspects it is manifestly clear that the complaint bearing Case No. C/5890/01 is the second complaint during pendency of the first complaint bearing Case No. C/4941/01. The second complaint is accordingly not maintainable in law as it was filed suppressing the fact that over same set of fact a previous complaint was filed, and that remained pending and for the reasons also that magisterial action over the first complaint was still incomplete. When the magisterial action over the first complaint was still incomplete, the complainant had no right to file the second complaint and accordingly the second complaint is not maintainable. Continuance of the present proceeding accordingly amounts to abuse of the process of the Court and it amounts to causing harassment to the accused petitioners.
16. In view of the discussions made above the continuance of the proceeding being Case No. C/5890/01 pending before the learned Metropolitan Magistrate, 14th Court, Calcutta is an abuse of the process of Court and it is a fit case where this Court can invoke its inherent powers under Section 482 of Cr.PC for quashing the said proceeding. In the result, the revisional application succeeds and is allowed. The impugned proceeding being Case No. C/5890/01 now pending in the Court of the learned Metropolitan Magistrate, 14th Court, Calcutta is hereby quashed.
17. Send a copy of order to the learned Metropolitan Magistrate, 14th Court, Calcutta for information and necessary action.
18. Urgent xerox certified copy be given to the parties, if applied for, expeditiously.