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CASE NO.:

Appeal (crl.) 640-642 of 2001

PETITIONER:

Hindustan Construction Co. Ltd. & Anr.

RESPONDENT:

Gopal Krishna Sengupta and Ors.

DATE OF JUDGMENT: 09/04/2003

BENCH:

S. N. VARIAVA H. K. SEMA.

JUDGMENT:

J U D G M E N T

S. N. VARIAVA, J.

1) These Appeals are against Orders of the Bombay High Court

dated 19th October, 2000 in Criminal Revision Application No. 235 of

2000; 13th/22nd December, 2000 in Criminal Application No. 3643 of

2000 in Criminal Revision Application No. 235 of 2000 and 22nd

December, 2000 in Criminal Application No. 2645 of 2000 in Criminal

Revision Application No. 235 of 2000.

2) Briefly stated the facts are as follows:

The 1st Respondent was an employee of the Appellant Company. His

services were terminated. The 1st Respondents' challenge to his

termination has been dismissed both by the Industrial Tribunal and the

High Court.

3) On 5th September, 1988 the 1st Respondent purchased 50 shares

of the Appellant Company from one Mr. Ambalal Shah. On 1st

November, 1988 the 1st Respondent lodged the share certificate along

with the share transfer form with the transfer agents of the Appellant.

They were returned to the 1st Respondent on the ground that the

signature of the transferor differed. On 4th August, 1989 the 1st

Respondent again lodged a fresh share transfer form, duly signed by

Mr. Ambalal Shah, and share certificate with the transfer agents of the

Appellant. The Appellants claim that as per their internal procedure

one employee wrote down the name of the 1st Respondent and his son

on the share certificate for purposes of putting them up before the

Board of Directors. The Appellants claim that they thereafter realized

that the transfer form was not sufficiently stamped, so the

endorsement on the share certificate was cancelled without effecting a

transfer of the share certificate. The transfer form and the share

certificate were again returned to the 1st Respondent. On 19th

September, 1989 the 1st Respondent again lodged the share transfer

form and the share certificate with the transfer agents of the

Appellants. These were again returned on 10th November, 1989 on

the ground that some entries had been made in pencil instead of ink.

4) It is the 1st Respondent's case that on this occasion, all that was

received by him was the registered cover and a covering letter. It is

the 1st Respondent's case that the share certificate and the transfer

form were not returned to him. He immediately wrote to the Appellant

pointing this out.

5) On 12th September, 1990 the 1st Respondent lodged a Petition,

under Section 111 of the Companies Act, before the Company Law

Board praying for rectification of the share register on the ground that

the transfer in his name had been approved by the Board of Directors

of the Appellant and that the share should be registered in his name.

6) Whilst the above-mentioned complaint was pending before the

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Company Law Board, in August 1991, the Appellants transferred this

share certificate into the name of one Pritika Prabudesai. The

Appellants claim that they received the share certificate along with a

duly signed transfer deed. The Appellants claim that they addressed

a letter to Mr. Ambalal Shah calling upon him to disclose whether he

had any objection to such transfer. They claim that they transferred

the share into the name of Pritika Prabhudesai as they did not receive

any objection from Mr. Ambalal Shah. Admittedly the Appellants

knew, by August 1991, that 1st Respondent had claimed that the

shares were not returned to him. The Appellants knew that 1st

Respondent had lodged a Petition under Section 111 of the Companies

Act for transfer of the share to his name. The Appellants knew that

this Petition was pending. They well knew that there was a dispute in

regard to this share certificate. Yet they did not address any letter or

intimation to the 1st Respondent informing him that some other person

had lodged this share for transfer to their name.

When asked why no intimation was given to the 1st Respondent, the

answer given was that there was no requirement in law to do so. To

be remembered that there was no requirement in law to send any

notice to Mr. Ambalal Shah. Such notice was sent as Appellants were

aware that there was a dispute in respect of this share. In such cases

the most basic requirement was that a notice be given to the person

who claimed that the Appellant Company had not returned the shares

to him. Also the Appellants knew that a Petition under Section 111 of

the Companies Act was pending in respect of this share. By

transferring without notice to 1st Respondent the Appellants were in

effect frustrating the proceedings before the Company Law Board.

7) On 8th May, 1992 the Company Law Board dismissed the Petition

filed by 1st Respondent on the ground that the Appellant Company was

right in not registering the transfer of shares in the name of 1st

Respondent as the transfer forms were not properly stamped. In its

Order, the Company Law Board has recorded that they had called for

and seen the records of the Appellant Company and found that no

transfer had actually taken place into the name of 1st Respondent even

though the name was mistakenly entered on the share certificate.

8) The 1st Respondent now filed a Complaint under Section 405,

420, 424, 467 read with Sections 34 and 114 of the Indian Penal

Code. The complaint was against 7 accused persons. In this

complaint process was issued, charges were framed. The 1st

Respondent filed an application dated 9th March, 1995 to examine

Pritika Prabudesai as a witness. Even though that application was

posted for Orders on 15th March, 1995, no orders have been passed on

that application till date. An application to delete accused No. 7 was

made and granted on 7th February 1996. On 15th February, 1996 the

prosecution closed its case. Then statements of accused, under

Section 313, Cr.P.C., were recorded. Both sides argued their

respective cases and the case was posted for judgment.

9) 1st Respondent then made an application which contained many

irrelevant averments and allegations. The substance was that the

proceedings were tainted with loss of integrity, collusion, illegalities

and malafides as : (a) the discharge of Accused No. 7 was illegal and

improper, since he was one of the main accused. According to the 1st

Respondent his Advocate compelled him to consent to the deletion of

accused No. 7 on an understanding that accused No. 7 was to be

examined as a witness on his behalf. However accused No. 7 was not

examined as such; (b) that the 1st Respondent had filed before the

actual hearing of the case started, an application dated 9.3.1995

praying for issue of witness summons to Pritika S. Prabhudesai for

production of share certificate. However, the court had not passed

any order on that application till date. It was claimed that this had

resulted in the 1st Respondent not been able to produce relevant and

necessary evidence and (c) the Court had liberally granted exemption

to the accused by dispensing with their personal attendance even

though the charges made against them were of serious nature. It

was therefore prayed that the entire proceedings be quashed and a

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fresh hearing take place. That application came to be rejected on 12th

August, 1997 with the following Order:

"On going through the application, it appears that

irrelevant allegation to the charge framed against, are

made in the application. Moreover, complainant himself

conceded during the arguments that there is no provision

of law to enable this Court to hold fresh trial by quashing

the entire proceeding already taken place. Considering all

above circumstances I do not find any substance behind

this application. Hence Order Application is rejected."

10) On 1st September, 1997 the 1st Respondent filed two applications

as follows:- (1) that Accused No. 7, against whom proceedings were

dropped, be examined as a witness and (2) that Pritika Prabudesai be

examined as a witness. Both these applications were rejected on 6th

November, 1997.

11) At this stage it must be mentioned that up to this stage the

proceedings were going on in the 33rd Court, Ballard Estate, Mumbai.

The applicant made a complaint to the High Court against the

Magistrate. The High Court then transferred the proceedings to the

38th Court, Ballard Estate, Mumbai. After the transfer the 1st

Respondent moved an application again alleging illegalities and

praying that the entire proceedings be quashed and a fresh

proceedings take place. He also prayed that necessary witnesses be

examined. This application was considered by the new Presiding

Magistrate who, on 30th March, 1998, dismissed the application on the

ground that such an application had earlier been dismissed and no

revision was filed. It was held that this Court could not sit in Appeal

over the earlier Order or take a different view.

12) The 1st Respondent then filed, on 24th April, 1998, Writ Petition

No. 599 of 1998 wherein the Metropolitan Magistrate of the 33rd Court

was included as Respondent No. 10. In the Writ Petition various

prayers seeking quashing of various Orders including Order dated 7th

February, 1996 and Order granting exemption to accused from

personal hearing were sought. In this Writ Petition, a reference was

made to the Order dated 12th August, 1997 but no prayer was made

for setting aside or quashing that order. This Writ Petition came to be

disposed off on 15th September, 2000 with the following Order:

"Looking to the order passed by the learned

Magistrate at page 99 and prayer clauses at page 34, it is

obvious that the points raised therein are relating to the

developments on different dates before the trial court in a

pending cases. The case has reached conclusion.

Liberty is therefore reserved to raise all these points

in a proceedings that the petitioner may have to take if at

all the matter before the Court is decided against him.

Petition is disposed of accordingly. Rule is

discharged."

13) It appears that 1st Respondent also filed another Writ Petition

bearing No. 1507 of 1998. That Writ Petition came to be disposed off

by an Order dated 23rd November, 1998. It was held that the 1st

Respondent was at liberty to raise all points in a proceeding which he

may have to take if the matter before the trial Court is decided against

him in terms of the order passed in Writ Petition 599 of 1998.

14) On 3rd February, 1998 the 1st Respondent filed a complaint under

Sections 204 and 474. On 25th March, 1999 the 1st Respondent filed

a third Complaint. This time it was claimed that the offences under

Sections 201, 361, 265, 213, 218 read with Sections 109 and 120 (b)

of the Indian Penal Code have been committed. In this complaint, on

4th October, 1999, a search warrant came to be issued against the

Appellant to recover the concerned share certificate and transfer form.

The Appellant filed a Writ Petition 2261 of 1999 seeking quashing of

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the process issued in this complaint. That Writ Petition is still pending.

It appears that on 6th March, 2000 the 1st Respondent has filed yet

another complaint. All these complaints are pending. In all these

subsequent complaints Pritika Prabudesai has been joined as an

accused person.

15) The 1st Respondent seems to have also filed a Writ Petition

bearing No. 1381 of 2000 inter alia praying that a certified true copy of

the transfer deed be made available to him. On 7th February, 2000

the High Court noticed that the copy of the transfer instrument had

been produced by him in the Criminal Court and that it had been

marked as an Exhibit. It was observed that it would be open for the

Magistrate to call upon the Appellants to produce the original and

compare the same with what was produced by the 1st Respondent in

evidence.

16) The 1st Respondent again moved some applications before the

Metropolitan Magistrate, 30th Court, Ballard Estate, Mumbai which was

disposed off by an Order dated 5th July, 2000. This Order reads as

follows:

"1. Read all the applications referred above and perused

the entire record carefully. Before considering the merits

of the aforesaid applications, I feel that it would be proper

to mention the chequered history of the case.

2. It is seen from the record that the complainant had

filed the complaint on 15th May, 1992 against accused

Nos.1 to 6. By an order of the court, the matter was found

to have referred to the concerned Police authorities for

investigation under section 156(iii) of the Cr.P.C.

Thereafter, this Court had passed an order dated

28.2.1993 for return of the complaint to the complainant

for its proper presentation. The complainant appears to

have preferred revision against that order and could

succeed in the Revision. The then Court thereafter, issued

the process against the accused Nos. 1 to 7 under

sections 405, 418, 420, 424, 467 read with Section 34 or

114 of the I.P.C. vide order dated 12.1.1994. The

evidence of the complainant before the charge found to

have been recorded in peace meal on dated 23.5.1995 and

14.8.1995. The complainant was found to have been cross

examined on behalf of accused Nos.1 to 6 before framing

of the charge. The then court, after having considered the

evidence on record framed charge against the accused

Nos. 1 to 6 under sec.406 r/w. 114;420 r/w. 114;424 r/s.

114 and 467 read with 114 of I.P.C. The evidence of the

complainant after having framed the charge again

sufficiently was cross examined on behalf of the accused.

3. To my surprise, in fact, the complainant did not file

the purshis of closing of his evidence, still the statements

of the accused appears to have recorded on 1.10.96. The

complainant had filed his written arguments dated

18.10.1996. The most crucial point in the present case

which I could gather is that on the every day i.e. on

18.10.1996 the complainant moved an application for

cancellation of the proceedings of the accused and for

fresh hearing of the case contending some latches on the

part of the Advocate and for examination of witnesses

listed in the complaint. Unfortunately, the application of

the complainant appears to have rejected by the then

Judge vide order dated 12.8.1997. The complainant, since

then moved number of applications mostly on the same

facts quoting almost similar circumstances. But those

applications were found to have been rejected by the

Court. The complainant is still filing similar types of

applications mostly on each and every day. The present

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applications are also similar in nature, except the

application for cancellation of the bail of the accused

moved by the complainant.

4. Having considered all the aforesaid facts and

circumstances, and for just decision, I would like to

mention that it is the right of the complainant to produce

the evidence supporting to his case, even after framing of

the charge against the accused. But unfortunately, the

complainant could not exercise his valuable rights.

Complainant in fact, ought to have preferred the revision

against the order dated 12.8.1997, but instead of availing

appropriate forum, he started seeking redress before the

same court, which is not competent to pass any order on

any applications of the complainant in view of the order

dated 12.8.1997 passed by the then Court, I earnestly feel

that the complainant, in fact, by moving such applications

desires to adduce additional evidence supporting to his

case. If I allow the application referred above, that would

amount to review of the order dated 12.8.1997 passed

below application dated 18.10.1996 for want of the powers

of the Review, though I am convinced, but still I cannot

pass any order. Therefore, it is the complainant, who can

knock the doors of revisional court challenging the order

referred above and can seek the redress. Therefore, for

the simple reasons stated above I am constrained not to

allow the applications of the complainant so far as reliance

of the additional evidence allowed to be placed on record

as prayed by the complainant. However, by this order, I

direct the accused to remain present before the Court on

the dates given, failing which, their bail bonds will be

cancelled. Hence, this is the order on the application

referred above."

17) It is thus to be seen that a unique procedure appears to have

been followed by the Metropolitan Magistrate, 33rd Court. He had

allowed cross-examination of 1st Respondent before framing of

charges; then even without an application for closing evidence the

Magistrate has recorded statement of the accused under Section 313

Cr.P.C.. This Order sets out that the rejection of the 1st Respondent's

application, by Order dated 12th August, 1997, was unfortunate. This

records that this Court is convinced that additional evidence is required

but this Court correctly does not pass any order as it would amount to

review of the earlier orders.

18) Taking a clue from this order the 1st Respondent now files a

Review Application before the High Court challenging the Order dated

12th August, 1997. On this Review Application the High Court passed

the Order dated 19th October, 2000 (which is one of the impugned

orders). It was not pointed out to the Court that the Revision was

barred by limitation and/or by delay or latches. The High Court

noticed that the application filed by the 1st Respondent on 9th March,

1995 to examine Pritika Prabudesai was still pending and no order had

been passed thereon. Thus it is clear that attention of the High Court

was not drawn to the fact that subsequently on 5th September, 1997

the Respondent had moved another application to examine Pritika

Prabudesai and that that application stood rejected on 6th November,

1997. As the High Court was not aware of this fact and the High

Court felt that it was absolutely necessary that the share transfer form

and the share certificate be on record of the trial Court, the High Court

passed the following operative Order:

"6. I have heard the petitioner, but he was unable to

satisfy how his prayer is maintainable at law. He wants

the whole proceedings to be quashed and a de novo trial to

be started against all the accused. The impugned order

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shows that before the learned Magistrate the petitioner

conceded that there was no such provision of law. Which

enabled the Court to hold a fresh trial against the accused.

It is, therefore, not possible to grant the said prayer made

by the petitioner in this petition. However, having regard

to the above-mentioned facts and to secure ends of justice

I think that it would be proper to direct the learned

Magistrate to pass an appropriate order on the application

dated 9.3.1995 filed by the petitioner praying for issue of

summons to Pritika S. Prabhudesai. The learned

Magistrate should allow the said application permitting the

petitioner to lead additional evidence of Pritika S.

Prabhudesai or her guardian in whose custody the said

share certificate is after recording the additional evidence

in terms of the application dated 9.3.1995, by giving

opportunity to the accused to cross-examine the witness,

the learned Magistrate shall proceed to decide the case on

merits expeditiously and in any event not later that

31.12.2000."

19) The Appellants then moved an application being Criminal

Application No. 3643 of 2000 for recalling the Order dated 19th

October, 2000. That application stood disposed off by an Order dated

13th/22nd December, 2000 (which is also one of the impugned Orders).

In this Order it has been observed that during the hearing of the

Revision Application no objection had been raised as to maintainability

on the ground of limitation. The Court holds that Section 362 of the

Criminal Procedure Code did not permit the Court to alter or review its

earlier order which was a final order. In our view this finding is

absolutely correct. It must be mentioned that the Court was

convinced that 1st Respondent had played a fraud upon it and

therefore issued a show-cause-notice to him to show cause why action

should not be taken against him for having played such a fraud.

20) At the time when Criminal Application No. 3643 of 2000 was

being heard it came to light that the 1st Respondent had also filed an

application for condonation of delay in filing the Criminal Revision

Application No. 235 of 2000. No orders had been passed on that

application. Yet Criminal Revision Application No. 235 of 2000 had

been numbered, listed on board and disposed off by the Order dated

19th October, 2000. As this application for condonation of delay was

still pending the High Court by an Order dated 22nd December, 2000

correctly held that that application had become infructuous. This is

the third Order which has been impugned in these Appeals.

21) It must also be mentioned that the 1st Respondent wrote letter/s

to the Company Law Board complaining that Appellants had filed a

false and fabricated affidavit and seeking a review of Order dated 9th

May, 1992. As the Company Law Board took no action on that letter,

the 1st Respondent moved the High Court. The High Court directed

the Company Law Board to consider the letter. The Company Law

Board therefore considered the complaint made by the 1st Respondent.

It disposed off that complaint by an Order dated 17th May, 2002.

22) It needs to be noted that the Appellants point out that the

concerned share certificate has, in all these years, changed hands

several times and now stand in the name of some other third party.

The Appellants also point out that the Advocate General, State of

Maharashtra has filed a Petition against the 1st Respondent under the

Maharashtra Vexatious Litigation (Prevention) Act, 1971 and the 1st

Respondent had been declared a vexatious litigant.

23) In these appeals we are concerned with the 3 Orders which have

been impugned. It could not be denied before us that when the

Criminal Revision Application No. 235 of 2000 was originally argued

the contention regarding limitation was not taken. In fact in the SLP

no ground is taken that the Court has erroneously recorded that no

such contention was taken. Therefore no fault can be found with the

Court in not considering limitation. It is the Appellants themselves

who have to blame for this lapse.

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24) We find no infirmity in the Order dated 13th/22nd December,

2000 to the extent that it holds that Section 362 of the Code of

Criminal Procedure was a bar to the Court reviewing or altering its

earlier order dated 19th October, 2000 which was a final order.

Undoubtedly, the Court has concluded that the 1st Respondent had

played a fraud upon it by not disclosing that he was aware of the

Order dated 12th August, 1997 and for giving an impression that he

only came to know about this order at a later date. The High Court

has issued a show-cause-notice against the 1st Respondent which will

be considered by the High Court on its own merit. We express no

opinion on this aspect. It is also clear that the Appellants did not

point out to the High Court, before or during hearing of Criminal

Revision Application No. 235 of 2000, the various subsequent orders

passed. These were all within their knowledge at time Order dated

19th October, 2000 was passed. We thus see no infirmity in the

Order dated 13th/22nd December, 2000 in Criminal Application No.

3643 of 2000. We also see no infirmity in the Order dated 22nd

December, 2000 in Criminal Application No. 2645 of 2000 as by the

time this application was brought to the notice of the Court it had

become infructuous. Thus the Appeal against these two Orders

stands dismissed.

25) The question still remains whether, on facts of this case, the

direction given in the Order dated 19th October, 2000 can be

maintained. In the application there was no prayer to examine Pritika

Prabhudesai. The prayer was to quash the proceedings and start trail

afresh. There is no provision in law which permits this. Thus the

application could not be allowed. Undoubtedly the High Court has

proceeded on the footing that this evidence is essential and necessary.

Section 311 of the Criminal Procedure Code permits taking of evidence

at any stage. The High Court undoubtedly felt that it was in the

interest of all parties that necessary evidence be recorded at this stage

itself. But the fact remains that the application for this very relief has

been rejected on 6th November, 1997. No appeal or revision was

filed against that Order. The Order dated 6th November, 1997 has

therefore become final. Once such a relief has been refused and the

refusal has attained finality, judicial propriety requires that it not be

allowed to be reopened. The High Court was obviously not informed

of the Order dated 6th November, 1997. Thus the High Court cannot

be blamed. However as that Order has been brought to notice of this

Court we cannot ignore it. Another factor which we keep in mind are

the Order dated 15th September, 2000 in Writ Petition No. 599 of 1998

and Order dated 23rd November, 1998 in Writ Petition No. 1507 of

1998. By these Orders it has been clarified by the High Court that

the case has reached conclusion and liberty has been granted to 1st

Respondent to raise all the points in a proceeding the 1st Respondent

may have to adopt if the Criminal case is dismissed against him. The

Appellants are within their right to oppose the directions issued in the

Order dated 19th October, 2000. However in the long run this may

prove disadvantageous to the Appellants. It is possible that if the case

is decided against the 1st Respondent and the higher Court feels that

application to lead necessary evidence has been wrongly rejected, the

whole case may have to be sent back for leading this evidence. We

therefore asked the Appellants whether they wanted to still oppose the

directions issued. We were told that they did. We therefore allow the

Appeal against the Order dated 19th October, 2000 and set aside the

directions issued therein. The application filed by 1st Respondent will

stand rejected.

26) We however clarify that it will be open for the trial Court to

follow the procedure indicated by the High Court in the Order dated 7th

February, 2000 viz. to call for the originals and compare the same with

what is produced in evidence, unless of course it is admitted that the

copy in Court is correct.

27) Before we part with the Order, we must record what happened in

Court. The 1st Respondent, during his submissions in Court, refused

all reasonable offers for settlement and said, in so many words, that

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he was bent on teaching the Appellant Company a lesson. It was clear

that the 1st Respondent is acting out of vengeance. We must also

record that Mr. Sibbal made, what we considered, to be very fair

offers, including giving to 1st Respondent 50 shares in the Appellant

Company. The offers were rejected outright.

28) The Appeals stand disposed off accordingly. There will be no

order as to costs.