{"id":86635,"date":"2001-12-01T00:00:00","date_gmt":"2001-11-30T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/k-radhakrishnan-vs-thirumani-asphalts-and-felts-p-on-1-december-2001-2"},"modified":"2017-05-20T02:43:15","modified_gmt":"2017-05-19T21:13:15","slug":"k-radhakrishnan-vs-thirumani-asphalts-and-felts-p-on-1-december-2001-2","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/k-radhakrishnan-vs-thirumani-asphalts-and-felts-p-on-1-december-2001-2","title":{"rendered":"K. Radhakrishnan vs Thirumani Asphalts And Felts (P) … on 1 December, 2001"},"content":{"rendered":"
Madras High Court<\/div>\n
K. Radhakrishnan vs Thirumani Asphalts And Felts (P) … on 1 December, 2001<\/div>\n
Author: M Karpagavinayagam<\/div>\n
Bench: M Karpagavinayagam<\/div>\n<\/p>\n
<\/pre>\n
ORDER<\/p>\n
 M. Karpagavinayagam, J. <\/p>\n
 1. M\/s. Thirumani Asphalts and Felts (P) Limited, the respondent herein
\nfiled two complaints against K. Radhakrishnan in S.T.C.Nos.2470 and 30 11 of
\n1993 under Section 630 of the Companies Act praying for the conviction and
\nreturn of the property belonging to the Company.  After trial, in the year
\n1995, both the cases were ended in conviction.  The petitioner was sentenced
\nto  pay  fine  and  he  was  directed to return the properties to the Company.
\nChallenging the same, the petitioner preferred revisions in  C.R.P.Nos.63  and
\n64 of  1995  before the Sessions Court and the same were dismissed.  Hence, he
\nfiled petitions  under  Section  482   Cr.P.C.      before   this   Court   in
\nCrl.O.P.Nos.6150 and 9040 of 1998 and the same were dismissed on 12.5.1999.\n<\/p>\n
 2.  Again, the petitioner filed Crl.O.P.Nos.15288 and 15289 of 1999
\nunder Section 482 Cr.P.C.  before this Court.  The said applications also were
\ndismissed.  In the meantime, the respondent filed execution petitions in
\nCrl.M.P.Nos.3538 and 3539 of 1999 in both the complaints praying for the
\nexecution of the orders passed by the trial Court earlier in the year 1993 in
\nS.T.C.Nos.2470 and 3011 of 1993.  After hearing the counsel for the parties,
\nthe said petitions were allowed giving a direction to the petitioner.
\nAccordingly, in both the complaints, the Execution Court by the order dated
\n8.12.1999 directed the petitioner to hand over the motor vehicle and the
\nrecords to the complainant within one week and in default, he would undergo
\nR.I.  for six months.  Challenging the same, these two revisions have been
\nfiled.\n<\/p>\n
 3.  The counsel for the petitioner would submit that pending the
\napplications filed by the respondent for execution in Crl.M.P.Nos.353 8 and
\n3539 of 1998 before the Execution Court, the petitioner filed a memo under
\nSection 362 Cr.P.C.  to review the matter in view of the fact that the order
\npassed by the Civil Court in regard to the issue in question is in his favour <\/p>\n
and the same has been returned without consideration.  It is also submitted
\nthat in the connected matter, this Court passed an order in Crl.R.C.  No.33 of
\n1996 dated 19.6.1998 reported in 1998 Crl.L.J.3583 remanding the case after
\nsetting aside the dismissal order passed under Section 203 Cr.P.C.  directing
\nthe trial Court to allow the parties to adduce evidence and decide the issue
\nand that therefore, the petitioner need not comply with the order passed by
\nthe trial Court in S.T.C.Nos.2470 and 3011 of 1993 and consequently, the
\norders passed in the execution petitions in Crl.M.P.Nos.3538 and 3539 of 1998
\nare illegal.\n<\/p>\n
 4.  In order to substantiate his plea, the counsel for the petitioner
\nwould refer the authorities in V.M.SHAH v.  STATE OF MAHARASHTRA , UNITED INDIA INSURANCE CO.LTD.  v.  RAJENDRA SINGH  and M.M.THOMAS<\/a> v.  STATE OF KERALA  contending
\nthat the Courts have got power of review.\n<\/p>\n
 5.  On the other hand, the learned counsel for the respondent would
\npoint out that the trial Court, while passing an order of conviction after
\ntrial in the main complaints in the year 1995, considered the materials
\navailable on record and correctly passed an order of conviction and when the
\nsaid order was confirmed by the Sessions Court as well as this Court, the same
\ncannot be set aside merely on the reason that some interim orders were passed
\nby the Civil Court which are in interlocutory nature.  He would also submit
\nthat the petitioner has successfully drag on the matter from 23.8.199 5, the
\ndate of conviction till today without complying with the orders passed by the
\nSessions Court and this Court.  He would further submit that the orders passed
\nearlier by the trial Court cannot be reviewed, in view of the dictum laid down
\nby the Supreme Court in RAJAN KUMAR MACHANANDA v.  STATE OF KARNATAKA<\/a> (1990
\nS.C.C.(CrI.) 537 and HARI SINGH MANN v.  HARBHAJAN SINGH BAJWA<\/a> (2000 AIR SCW
\n3848).\n<\/p>\n
 6.  I have carefully considered the contentions on either side and
\nperused the records.\n<\/p>\n
 7.  On a careful analysis of the records, I shall state that the
\npetitioner has not come with clean hands.  He has abused the process of law,
\nthereby floated the orders of various Courts including this Court.  The above
\nconclusion has been arrived at due to the following circumstances.\n<\/p>\n
 8.  The respondent is a Company incorporated under the Companies Act.
\nIt has got five Directors of whom the petitioner held 40 per cent of the
\nsubscribed capital.  The petitioner did not attend three consecutive Board
\nMeetings and consequently, he ceased to be the Director as per the provisions
\nof Section 283(1)(g) of the Companies Act.  The petitioner was entrusted with
\nthe documents and motor vehicle in the capacity as Director.  Through the
\nBoard’s resolution, the petitioner was directed to return the documents and
\nthe vehicle.  Since they were not returned, the respondent filed two
\ncomplaints in S.T.C.Nos.2470 and 3011 of 1993 under Section 630 of the
\nCompanies Act.\n<\/p>\n
 9.  The trial Court after enquiry, by the order dated 23.8.19 95
\nconvicted the petitioner in both the complaints and sentenced to pay fine and
\ndirected the petitioner for the return of the records and motor cycle.
\nChallenging the same, the petitioner filed two revisions in C.R.P.  Nos.63 and
\n64 of 1995 before the Sessions Court.  The said revisions were dismissed by
\nthe order dated 17.3.1998 confirming the order of conviction by the trial
\nCourt.  Against these orders, the petitioner preferred petitions under Section
\n482 Cr.P.C.  in Crl.O.P.Nos.6150 and 9040 of 1998, which also resulted in
\ndismissal by this Court by the order dated 12.5.1999.\n<\/p>\n
 10.  Thereafter, the petitioner again chose to file similar petitions
\nunder Section 482 Cr.P.C.  in Crl.O.P.Nos.15288 and 15289 of 1999 before this
\nCourt praying for setting aside the orders passed by the trial Court in
\nS.T.C.Nos.2470 and 3011 of 1993 dated 23.8.1995.  After hearing the counsel
\nfor the parties, this Court dismissed the said petitions specifically
\nobserving that the applications were not only unsustainable in law but also
\nclear abuse of process of Court.  At that stage, the respondent filed
\napplications for execution before the trial Court and the same were allowed.\n<\/p>\n
 11.  It is seen from the orders passed by the trial Court in
\nS.T.C.Nos.2470 and 3011 of 1993 dated 23.8.1995 and the orders of the Sessions
\nCourt in C.R.P.Nos.63 and 64 of 1998 dated 17.3.1998 and the orders passed by
\nthis Court in Crl.O.P.Nos.6150 and 9040 of 1998 dated 12.5.1999 and the orders
\npassed by this Court again in Crl.O.P.Nos.15288 and 15289 on 26.10.19 99 would
\nclearly show that the counsel for the petitioner has argued before all the
\nforums that the matter is pending before the Civil Court and the interim
\norders have been passed in favour of the petitioner and that therefore, the
\nCriminal Court will not have jurisdiction to find the petitioner guilty.  This
\npoint has been deal with by every forum.\n<\/p>\n
 12.  At this juncture, it would be worthwhile to refer to the
\nobservation made by this Court in the applications under Sections 482 Cr.P.C.
\nfiled by the petitioner in Crl.O.P.Nos.6150 and 9040 of 1998 dated 12 .5.1999,
\nwhich is this:\n<\/p>\n
“Coming to the facts of the instant case,
\nit should be pointed out that the complaint has
\nbeen preferred against the petitioner as early
\nas 1993.  The trial court has disposed of the
\nmatter on 23.5.95 and the revisional court has
\nalso disposed of the matter on 17.3.98.  It is
\ncurious that the petitioner had filed the civil
\nsuit only during 1998.  Of course, the
\npetitioner had filed a company petition in
\nC.P.No.1\/96 before this court, which was later
\ndismissed.  Even C.P.No.1\/96 had not been filed
\nbefore the learned Judicial Magistrate disposed
\nof the criminal case pending against the
\npetitioner.  What has been stated by Their
\nLordships of the Supreme Court in ATUL MATHUR
\nv.  ATUL KALRA AND ANOTHER<\/a> (1989(4) Supreme
\nCourt Cases p.514) squarely applies to the
\nfacts of the instant case, because the
\npetitioner had filed a suit in civil court,
\nunder the given circumstances, it cannot be
\nsaid that the civil court was in seisin of the
\nmatter at the time when the learned Judicial
\nMagistrate passed order.”\n<\/p>\n
13.  In the above paragraph, the learned single Judge
\nof this Court would specifically refer about the decision of
\nthe Supreme Court in  (supra), wherein it
\nis held that merely because the accused had schemingly filed
\na suit in Civil Court, it can never be said that the Civil
\nCourt was in seisin of a bona fide dispute between the
\nparties and as such, the Criminal Court should have stayed
\nits hands when the Company filed a complaint under Section
\n630 of the Companies Act.  Thus, it is clear that the point
\nurged before this Court has already been dealt with by this
\nCourt as early as 12.5.1999.\n<\/p>\n
 14.  Instead of challenging the said order passed by
\nthis Court before the Apex Court, the petitioner chose to
\napproach this Court again by filing other applications, as
\nnoted above, in Crl.O.P.Nos.15288 and 15289 of 1999.  When a <\/p>\n
similar argument was advanced before another single Judge of
\nthis Court, he would make the following observation
\nrejecting the said contention:\n<\/p>\n
  “It is necessary to state that the learned
\nJudicial Magistrate No. VII, Coimbatore had
\nimposed a fine of Rs.200\/- against the
\npetitioner on 23.8.95.  Thereafter only, the
\npetitioner filed two revision petitions before
\nthe Sessions Court, Coimbatore and they were
\nalso dismissed.  Later, the petitioner filed
\ntwo petitions under Section 482 of the Code of
\nCriminal Procedure, raising the very same
\ngrounds and they were also dismissed.  In spite
\nof this, it is not known how the present
\npetitions have been filed under Section 482 of
\nthe Code of Criminal Procedure raising the very
\nsame ground.  If really the petitioner was
\naggrieved against the orders passed by this
\nCourt in Crl.O.Ps.6150 and 9040 of 1998, he
\nought to have moved the Apex Court after
\nobtaining special leave.  The conduct of the
\npetitioner would only indicate that these two
\npetitions are again filed reiterating the very
\nsame contentions, which have been negatived by
\nthis Court in the earlier proceedings.”\n<\/p>\n
 15.  While arguing in the said applications, the
\nlearned counsel for the petitioner would refer about the
\nconnected matter in Crl.R.C.No.33 of 1996, wherein the
\nmatter was remanded for fresh enquiry and contended that the
\norder of conviction was illegal.  While dealing with the
\nsaid contention, the learned single Judge in the said order
\nwould correctly observe that the order of remand cannot be
\nmade use of to set aside the order of conviction by the
\ntrial Court as these proceedings are different.\n<\/p>\n
 16.  In this context, I shall state that
\nCrl.R.C.No.33 of 1996 was disposed of by me by remanding the
\nmatter to conduct enquiry in regard to the averments made in
\nthe complaint filed by the petitioner.  The said order was
\npassed in the year 1998.  The said matter which arises out
\nof the complaint filed by the petitioner would not in any
\nway affect the order of the trial Court convicting the
\npetitioner for the offence under Section 630 of the
\nCompanies Act after conducting trial which was passed in the
\nyear 1995.  Therefore, the remand observation made in the
\nabove order also was correctly negatived by the learned
\nsingle Judge.  While dismissing the said applications, this
\nCourt in its order dated 26.10.1999 would observe that those
\napplications filed under Section 482 Cr.P.C.  seeking for
\nthe review of the order passed by this Court earlier are not
\nmaintainable and they are nothing but an abuse of process of
\nlaw.\n<\/p>\n
 17.  As a matter of fact, the specific finding has
\nbeen given in the said order that the Company adduced
\nevidence both oral and documentary to establish that the <\/p>\n
Board of Directors decided to get back or recover the
\nproperty belonging to the Company from the petitioner and
\nwhen once this has been established, the only course open to
\nthe petitioner is to return the property.  Despite this
\norder, no attempt has been made to comply with the order by
\nthe petitioner.\n<\/p>\n
 18.  The said order also has not been challenged
\nbefore the Apex Court.  On the other hand, the petitioner
\nchose to file a memo before the trial Court seeking for
\nreview of its own order on the basis of some observation
\nmade in  (supra), that too when the
\npetitions filed for execution in Crl.M.P.Nos.3538 and 3539
\nof 1998 were pending before the Execution Court.  As a
\nmatter of fact, the Supreme Court in  has
\nbeen referred to in the order dated 12.5.1999 passed by this
\nCourt.\n<\/p>\n
 19.  Though it is stated in some of the decisions as
\npointed out by the learned counsel for the petitioner that
\nthe Court has got power to correct any error apparent on the
\nface of record, the same cannot be done in this case, in
\nview of the bar engrafted under Section 362 Cr.P.C.  and
\nalso in view of the dictum laid down in 2000 AIR SCW
\n3848(supra).  It is held in the above judgment of the
\nSupreme Court as follows:\n<\/p>\n
  “There is no provision in the Code of
\nCriminal Procedure authorising the High Court
\nto review its judgment passed either in
\nexercise of its appellate or revisional or
\noriginal criminal jurisdiction.  Such a power
\ncannot be exercised with the aid or under the
\ncloak of S. 482, S. 362 of the Code mandates that
\nno Court, when it has signed its judgment or
\nfinal order disposing of a case shall alter or
\nreview the same except to correct a clerical or
\narithmetical error.  The section is based on an
\nacknowledged principle of law that once a
\nmatter is finally disposed of by a Court, the
\nsaid Court in the absence of a specific
\nstatutory provision becomes functus officio and
\ndisentitled to entertain a fresh prayer for the
\nsame relief unless the former order of final
\ndisposal is set aside by a Court of competent
\njurisdiction in a manner prescribed by law.\n<\/p>\n
The Court becomes functus officio the moment
\nthe official order disposing of a case is
\nsigned.  Such an order cannot be altered except
\nto the extent of correcting a clerical or
\narithmetical error.”\n<\/p>\n
 20.  In view of the above observation of the Supreme
\nCourt, it can be held that the petitioner filed application
\nafter application before this Court by abusing process of
\nlaw in order to achieve the object of the complainant not
\ngetting the fruits of the order.\n<\/p>\n
 21.  One other disturbing feature which can be
\nnoticed in this case is that the petitioner did not choose
\nto refer about the orders passed under Section 482 Cr.P.C.
\ndated 26.10.1999 either in the counter filed for the
\nexecution petitions before the trial Court or in the memo
\nwhich was subsequently returned or in the revision petitions
\nfiled before this Court.  This is nothing but suppression of
\nthe material fact.  Thus, I am clear to reiterate the
\nobservation made by the learned single Judge in
\nCrl.O.P.Nos.15288 and 15289 dated 26.10.1999 that the
\npetitioner in order to flout the orders of the Courts has
\npreferred these revisions without clean hands by suppressing
\nhe facts.\n<\/p>\n
 22.  As pointed out by the learned counsel for the
\nrespondent, the interim orders, which are in interlocutory
\nnature, passed by the Civil Court in the interim
\napplications pending suit would not automatically change the
\nfinding of the Criminal Court which was given on the basis
\nof the materials placed before it.  It is also admitted that
\nthere is no full-fledged trial and no finding has been given
\nby the civil Court after trial is over.  Therefore, both the
\nrevisions are dismissed.  Consequently, connected Crl.M.Ps.
\nare closed.\n<\/p>\n
 23.  In view of the conduct of the petitioner, who
\nhas dragged on the matter for long number of years by
\nabusing the process of law in the Courts, I deem it fit to
\nimpose costs of Rs.10,000\/- in each petition and the same
\nshall be paid directly to the respondent within one month
\nfrom today, and accordingly ordered.<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court K. Radhakrishnan vs Thirumani Asphalts And Felts (P) … on 1 December, 2001 Author: M Karpagavinayagam Bench: M Karpagavinayagam 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-86635","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nK. 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