ORDER
M. Karpagavinayagam, J.
1. M/s. Thirumani Asphalts and Felts (P) Limited, the respondent herein
filed two complaints against K. Radhakrishnan in S.T.C.Nos.2470 and 30 11 of
1993 under Section 630 of the Companies Act praying for the conviction and
return of the property belonging to the Company. After trial, in the year
1995, both the cases were ended in conviction. The petitioner was sentenced
to pay fine and he was directed to return the properties to the Company.
Challenging the same, the petitioner preferred revisions in C.R.P.Nos.63 and
64 of 1995 before the Sessions Court and the same were dismissed. Hence, he
filed petitions under Section 482 Cr.P.C. before this Court in
Crl.O.P.Nos.6150 and 9040 of 1998 and the same were dismissed on 12.5.1999.
2. Again, the petitioner filed Crl.O.P.Nos.15288 and 15289 of 1999
under Section 482 Cr.P.C. before this Court. The said applications also were
dismissed. In the meantime, the respondent filed execution petitions in
Crl.M.P.Nos.3538 and 3539 of 1999 in both the complaints praying for the
execution of the orders passed by the trial Court earlier in the year 1993 in
S.T.C.Nos.2470 and 3011 of 1993. After hearing the counsel for the parties,
the said petitions were allowed giving a direction to the petitioner.
Accordingly, in both the complaints, the Execution Court by the order dated
8.12.1999 directed the petitioner to hand over the motor vehicle and the
records to the complainant within one week and in default, he would undergo
R.I. for six months. Challenging the same, these two revisions have been
filed.
3. The counsel for the petitioner would submit that pending the
applications filed by the respondent for execution in Crl.M.P.Nos.353 8 and
3539 of 1998 before the Execution Court, the petitioner filed a memo under
Section 362 Cr.P.C. to review the matter in view of the fact that the order
passed by the Civil Court in regard to the issue in question is in his favour
and the same has been returned without consideration. It is also submitted
that in the connected matter, this Court passed an order in Crl.R.C. No.33 of
1996 dated 19.6.1998 reported in 1998 Crl.L.J.3583 remanding the case after
setting aside the dismissal order passed under Section 203 Cr.P.C. directing
the trial Court to allow the parties to adduce evidence and decide the issue
and that therefore, the petitioner need not comply with the order passed by
the trial Court in S.T.C.Nos.2470 and 3011 of 1993 and consequently, the
orders passed in the execution petitions in Crl.M.P.Nos.3538 and 3539 of 1998
are illegal.
4. In order to substantiate his plea, the counsel for the petitioner
would refer the authorities in V.M.SHAH v. STATE OF MAHARASHTRA , UNITED INDIA INSURANCE CO.LTD. v. RAJENDRA SINGH and M.M.THOMAS v. STATE OF KERALA contending
that the Courts have got power of review.
5. On the other hand, the learned counsel for the respondent would
point out that the trial Court, while passing an order of conviction after
trial in the main complaints in the year 1995, considered the materials
available on record and correctly passed an order of conviction and when the
said order was confirmed by the Sessions Court as well as this Court, the same
cannot be set aside merely on the reason that some interim orders were passed
by the Civil Court which are in interlocutory nature. He would also submit
that the petitioner has successfully drag on the matter from 23.8.199 5, the
date of conviction till today without complying with the orders passed by the
Sessions Court and this Court. He would further submit that the orders passed
earlier by the trial Court cannot be reviewed, in view of the dictum laid down
by the Supreme Court in RAJAN KUMAR MACHANANDA v. STATE OF KARNATAKA (1990
S.C.C.(CrI.) 537 and HARI SINGH MANN v. HARBHAJAN SINGH BAJWA (2000 AIR SCW
3848).
6. I have carefully considered the contentions on either side and
perused the records.
7. On a careful analysis of the records, I shall state that the
petitioner has not come with clean hands. He has abused the process of law,
thereby floated the orders of various Courts including this Court. The above
conclusion has been arrived at due to the following circumstances.
8. The respondent is a Company incorporated under the Companies Act.
It has got five Directors of whom the petitioner held 40 per cent of the
subscribed capital. The petitioner did not attend three consecutive Board
Meetings and consequently, he ceased to be the Director as per the provisions
of Section 283(1)(g) of the Companies Act. The petitioner was entrusted with
the documents and motor vehicle in the capacity as Director. Through the
Board’s resolution, the petitioner was directed to return the documents and
the vehicle. Since they were not returned, the respondent filed two
complaints in S.T.C.Nos.2470 and 3011 of 1993 under Section 630 of the
Companies Act.
9. The trial Court after enquiry, by the order dated 23.8.19 95
convicted the petitioner in both the complaints and sentenced to pay fine and
directed the petitioner for the return of the records and motor cycle.
Challenging the same, the petitioner filed two revisions in C.R.P. Nos.63 and
64 of 1995 before the Sessions Court. The said revisions were dismissed by
the order dated 17.3.1998 confirming the order of conviction by the trial
Court. Against these orders, the petitioner preferred petitions under Section
482 Cr.P.C. in Crl.O.P.Nos.6150 and 9040 of 1998, which also resulted in
dismissal by this Court by the order dated 12.5.1999.
10. Thereafter, the petitioner again chose to file similar petitions
under Section 482 Cr.P.C. in Crl.O.P.Nos.15288 and 15289 of 1999 before this
Court praying for setting aside the orders passed by the trial Court in
S.T.C.Nos.2470 and 3011 of 1993 dated 23.8.1995. After hearing the counsel
for the parties, this Court dismissed the said petitions specifically
observing that the applications were not only unsustainable in law but also
clear abuse of process of Court. At that stage, the respondent filed
applications for execution before the trial Court and the same were allowed.
11. It is seen from the orders passed by the trial Court in
S.T.C.Nos.2470 and 3011 of 1993 dated 23.8.1995 and the orders of the Sessions
Court in C.R.P.Nos.63 and 64 of 1998 dated 17.3.1998 and the orders passed by
this Court in Crl.O.P.Nos.6150 and 9040 of 1998 dated 12.5.1999 and the orders
passed by this Court again in Crl.O.P.Nos.15288 and 15289 on 26.10.19 99 would
clearly show that the counsel for the petitioner has argued before all the
forums that the matter is pending before the Civil Court and the interim
orders have been passed in favour of the petitioner and that therefore, the
Criminal Court will not have jurisdiction to find the petitioner guilty. This
point has been deal with by every forum.
12. At this juncture, it would be worthwhile to refer to the
observation made by this Court in the applications under Sections 482 Cr.P.C.
filed by the petitioner in Crl.O.P.Nos.6150 and 9040 of 1998 dated 12 .5.1999,
which is this:
“Coming to the facts of the instant case,
it should be pointed out that the complaint has
been preferred against the petitioner as early
as 1993. The trial court has disposed of the
matter on 23.5.95 and the revisional court has
also disposed of the matter on 17.3.98. It is
curious that the petitioner had filed the civil
suit only during 1998. Of course, the
petitioner had filed a company petition in
C.P.No.1/96 before this court, which was later
dismissed. Even C.P.No.1/96 had not been filed
before the learned Judicial Magistrate disposed
of the criminal case pending against the
petitioner. What has been stated by Their
Lordships of the Supreme Court in ATUL MATHUR
v. ATUL KALRA AND ANOTHER (1989(4) Supreme
Court Cases p.514) squarely applies to the
facts of the instant case, because the
petitioner had filed a suit in civil court,
under the given circumstances, it cannot be
said that the civil court was in seisin of the
matter at the time when the learned Judicial
Magistrate passed order.”
13. In the above paragraph, the learned single Judge
of this Court would specifically refer about the decision of
the Supreme Court in (supra), wherein it
is held that merely because the accused had schemingly filed
a suit in Civil Court, it can never be said that the Civil
Court was in seisin of a bona fide dispute between the
parties and as such, the Criminal Court should have stayed
its hands when the Company filed a complaint under Section
630 of the Companies Act. Thus, it is clear that the point
urged before this Court has already been dealt with by this
Court as early as 12.5.1999.
14. Instead of challenging the said order passed by
this Court before the Apex Court, the petitioner chose to
approach this Court again by filing other applications, as
noted above, in Crl.O.P.Nos.15288 and 15289 of 1999. When a
similar argument was advanced before another single Judge of
this Court, he would make the following observation
rejecting the said contention:
“It is necessary to state that the learned
Judicial Magistrate No. VII, Coimbatore had
imposed a fine of Rs.200/- against the
petitioner on 23.8.95. Thereafter only, the
petitioner filed two revision petitions before
the Sessions Court, Coimbatore and they were
also dismissed. Later, the petitioner filed
two petitions under Section 482 of the Code of
Criminal Procedure, raising the very same
grounds and they were also dismissed. In spite
of this, it is not known how the present
petitions have been filed under Section 482 of
the Code of Criminal Procedure raising the very
same ground. If really the petitioner was
aggrieved against the orders passed by this
Court in Crl.O.Ps.6150 and 9040 of 1998, he
ought to have moved the Apex Court after
obtaining special leave. The conduct of the
petitioner would only indicate that these two
petitions are again filed reiterating the very
same contentions, which have been negatived by
this Court in the earlier proceedings.”
15. While arguing in the said applications, the
learned counsel for the petitioner would refer about the
connected matter in Crl.R.C.No.33 of 1996, wherein the
matter was remanded for fresh enquiry and contended that the
order of conviction was illegal. While dealing with the
said contention, the learned single Judge in the said order
would correctly observe that the order of remand cannot be
made use of to set aside the order of conviction by the
trial Court as these proceedings are different.
16. In this context, I shall state that
Crl.R.C.No.33 of 1996 was disposed of by me by remanding the
matter to conduct enquiry in regard to the averments made in
the complaint filed by the petitioner. The said order was
passed in the year 1998. The said matter which arises out
of the complaint filed by the petitioner would not in any
way affect the order of the trial Court convicting the
petitioner for the offence under Section 630 of the
Companies Act after conducting trial which was passed in the
year 1995. Therefore, the remand observation made in the
above order also was correctly negatived by the learned
single Judge. While dismissing the said applications, this
Court in its order dated 26.10.1999 would observe that those
applications filed under Section 482 Cr.P.C. seeking for
the review of the order passed by this Court earlier are not
maintainable and they are nothing but an abuse of process of
law.
17. As a matter of fact, the specific finding has
been given in the said order that the Company adduced
evidence both oral and documentary to establish that the
Board of Directors decided to get back or recover the
property belonging to the Company from the petitioner and
when once this has been established, the only course open to
the petitioner is to return the property. Despite this
order, no attempt has been made to comply with the order by
the petitioner.
18. The said order also has not been challenged
before the Apex Court. On the other hand, the petitioner
chose to file a memo before the trial Court seeking for
review of its own order on the basis of some observation
made in (supra), that too when the
petitions filed for execution in Crl.M.P.Nos.3538 and 3539
of 1998 were pending before the Execution Court. As a
matter of fact, the Supreme Court in has
been referred to in the order dated 12.5.1999 passed by this
Court.
19. Though it is stated in some of the decisions as
pointed out by the learned counsel for the petitioner that
the Court has got power to correct any error apparent on the
face of record, the same cannot be done in this case, in
view of the bar engrafted under Section 362 Cr.P.C. and
also in view of the dictum laid down in 2000 AIR SCW
3848(supra). It is held in the above judgment of the
Supreme Court as follows:
“There is no provision in the Code of
Criminal Procedure authorising the High Court
to review its judgment passed either in
exercise of its appellate or revisional or
original criminal jurisdiction. Such a power
cannot be exercised with the aid or under the
cloak of S. 482, S. 362 of the Code mandates that
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. The section is based on an
acknowledged principle of law that once a
matter is finally disposed of by a Court, the
said Court in the absence of a specific
statutory provision becomes functus officio and
disentitled to entertain a fresh prayer for the
same relief unless the former order of final
disposal is set aside by a Court of competent
jurisdiction in a manner prescribed by law.
The Court becomes functus officio the moment
the official order disposing of a case is
signed. Such an order cannot be altered except
to the extent of correcting a clerical or
arithmetical error.”
20. In view of the above observation of the Supreme
Court, it can be held that the petitioner filed application
after application before this Court by abusing process of
law in order to achieve the object of the complainant not
getting the fruits of the order.
21. One other disturbing feature which can be
noticed in this case is that the petitioner did not choose
to refer about the orders passed under Section 482 Cr.P.C.
dated 26.10.1999 either in the counter filed for the
execution petitions before the trial Court or in the memo
which was subsequently returned or in the revision petitions
filed before this Court. This is nothing but suppression of
the material fact. Thus, I am clear to reiterate the
observation made by the learned single Judge in
Crl.O.P.Nos.15288 and 15289 dated 26.10.1999 that the
petitioner in order to flout the orders of the Courts has
preferred these revisions without clean hands by suppressing
he facts.
22. As pointed out by the learned counsel for the
respondent, the interim orders, which are in interlocutory
nature, passed by the Civil Court in the interim
applications pending suit would not automatically change the
finding of the Criminal Court which was given on the basis
of the materials placed before it. It is also admitted that
there is no full-fledged trial and no finding has been given
by the civil Court after trial is over. Therefore, both the
revisions are dismissed. Consequently, connected Crl.M.Ps.
are closed.
23. In view of the conduct of the petitioner, who
has dragged on the matter for long number of years by
abusing the process of law in the Courts, I deem it fit to
impose costs of Rs.10,000/- in each petition and the same
shall be paid directly to the respondent within one month
from today, and accordingly ordered.