Naveen @ L. Srinivasan v. State

Mr.S.Ashok Kumar, Senior Counsel for Mr.C.D.Johnson for Interverner in Crl.O.P.No.29084/2008.

O R D E RThese petitions seek to quash the proceedings pending inC.C. No.12187/2008 on the file of the Additional Chief MetropolitanMagistrate, EO-I, Egmore, Chennai. The petitioners/accused in suchcase, are facing prosecution for offences u/s.384 r/w. 34 IPC. Thepetitioner in Crl.O.P. No.7217 of 2009 is the 1st accused, while thepetitioner in Crl.O.P.No.24374 of 2008 is the 4th accused and thepetitioners in Crl.O.P.No.29084 of 2008 are the 2nd and 3rd accused. The substratum of the offences alleged against the petitioners is tobe found in the final report filed in the case and the same readilymay be reproduced. " This case was registered on a direction by the Hon'bleAdditional CMM,Egmore,u/s.156(3) CrPC on a petition filedby Thiru Sri Ram Vedam, Managing Director, M/s.TiffinBarytes Asbestos & Paints Ltd., Chennai against Tr.Arulraj, Sub Inspector of Police, CCB, Egmore and 3 others allegingthat on 8th July 2007 (Sunday) he was asked to accompanyTr.Arulraj (SI, Team-2, CCB, Egmore, Chennai) and anotherPolicemen in plain clothes at about six thirty a.m., fromhis residence at Balaji Avenue at T.Nagar, Chennai-17.Tr.Arulraj said that there was a complaint against hiscompany, that is being investigated by him and that heshould leave with him to the CCB Office at Egmore.

He toldhim that he need to organize the relevant papers from hisoffice since it was a Sunday. He was pressurizing to leavewith them right then at about six thirty a.m. He calledhis officers and asked them to bring the relevant files tohis residence and he explained the matter in detail andalso showed him that it was M/s.Hero Exports who owes hiscompany a sum of about Rs.70 lakhs. They refused to listento him and insisted that he should leave with them andexplain everything at the CCB office. Left with no other option he accompanied them atabout Ten thirty a.m on 08.07.2007. Instead of taking himto the CCB office they took him to that Hotel Ashoka andasked him to wait until 1 pm. Tr.Munjal and Tr.GurpreetSingh of M/s.Hero Exports and one Naveen of Besant Nagarappeared there and SI Tr.Arulraj said that they will have todiscuss the matter amongst themselves and settle it or hewill be remanded in the said criminal case.

Tr.Munjal saidthat he had suffered losses because of his company and thathis company should pay back his losses along with interestto the tune of about Rs.14,37,92,691/- and that he wouldsettle it at Rs.9,50,00,000/-. https://hcservices.ecourts.gov.in/hcservices/ At about Two Thirty p.m on the same day AdvocateTr.Rajinish Pathiyil came to Hotel Ashoka and brought an MOUwhich contained all these averments and stated that hiscompany is settling the dispute for the above mentionedamount. He asked him to furnish the cheque details to befurnished. He said that he may not be signing this MOU.Then Tr.Arulraj, SI of Police, CCB and his companion officerasked him to sign the MOU after giving the cheque detailsand arrange the cheques to be given to Tr.Rajinish PathiyilAdvocate. He threatened to get him remanded if he did notoblige. He also told him that he would keep the criminalcase open until he clears the entire payments mentioned inthe said MOU. By then it was becoming late and it was aboutfive pm.

He gave the cheque details and asked his companyofficials to get the cheques and without his consent he wasforced to sign the said MOU.On 5th July one cheque for Rupees one crore hasbeen wrongly encashed by the said Hero Exports, since SITr.Arulraj threatened to take criminal action against him ofthe cheques were not honoured by his company in this verycomplaint which according to him could land him and otherDirectors in Jail. Whether any offence appears to have been committed and if soby whom?A1 noted in the margin was the then SI of Police, CCB, Chennai now working as SI of Police (Crime) in N4Fishing Harbour Police Station, Chennai City, A2 noted inthe margin is the Director, Hero Exports, New Delhi, A3noted in the margin is the Vice President, Hero Exports, NewDelhi and A4 noted in the margin is the associate of A2 andA3 who is attending to the business transactions in Chennai.M/s. Tiffin Barytes Asbestos & Paints Ltd.,Chennai company entered into an agreement with M/s.HeroExports, New Delhi on 13.07.2004 for supply of 30,000 TonnesIron-Ore fines from their mines at Bellari, Karnataka Stateat the rate of Rs.525/- per metric tonne on ex-minescondition and the agreement was fulfilled and again on20.09.2004 an agreement was entered for supply of 5 lakhs to7 lakhs tonnes of iron-ore fines at the rate Rs.675/- permetric tonne on Ex-mines condition and an amount of Rs.5crores was paid in advance by Hero Exports and further anamount of Rs.27,96,00,000/-was paid by them.

M/s. TiffinBarytes supplied 2,75,492.515 Tonnes of iron-ore fines forthat amount and were doing business transactions from 2004to 2006. https://hcservices.ecourts.gov.in/hcservices/ M/s. Hero Exports, New Delhi was exporting the Iron ore fines to M/s. Swiss Singapore Company. During thecourse of supply of materials dispute araised between HeroExports and Swiss Singapore Company in the shipment loadsand hence, the Swiss Singapore Company fixed M/s.HeroExports, New Delhi for the defaults noted in the supply.M/s.Hero Exports, New Delhi in turn fixed the responsibilityfor the defaults on M/s.Tiffin Barytes, Chennai by issuingdebit notice. But M/s.Tiffin Barytes, Chennai did not acceptthe same. Hence, M/s.Hero Exports, New Delhi issued a legalnotice through their Advocates on 05.04.2007 claiming thatM/s.Tiffin Barytes, Chennai has to give themRs.13,50,62,436/- based on the debit notice. M/s.TiffinBarytes, Chennai sent a reply notice on 25.04.2007 throughtheir advocate that the agrement for supply of iron orefines are on ex-mines condition and hence they are notliable for any damages etc., thus disowning the same andinformed that a detailed reply will be sent during the firstweek of June 2007.As a such , in the midst of the legal noticecorrespondence are going on 28.06.2007 M/s.

Hero Exportsrepresented by its Vice President Mr. Gurpreet Singhpresented a complaint in Crl.O.P.1134/07 against M/s. TiffinBarytes Asbestos & Paints Ltd., Chennai company and 11others before the Court of Addl.CMM, Egmore, for theoffences u/s. 406, 409, 420 and 381 IPC r/w 120(b) IPCrequesting to direct the Commissioner of Police, Chennaiu/s.156(3) CrPC to register a case and to investigate. Based on this endorsement a case in Central Crime BranchCr.No.344/07 u/s.406, 409, 420 and 381 IPC r/w 120(b) IPCwas registered on 06.07.2007 by the (A1) Tr.Arulraj, SI of Police, CCB and investigation taken up. During the course of investigation on 08.07.2007Sunday at about 0630 hrs A1, Arulraj, SI and his party wentto the house of the complainant Tr.Sri Ram Vedam, ManagingDirector, M/s.Tiffin Barytes Asbestos & Paints Ltd., Chennaiat Balaji Avenue, T.Nagar and forcibly took the complainantTr.Sri Ram Vedam along with his advocate Tr.Balasubramaniyam(W-11) to CCB Office, Egmore and then to Ashoka Hotel, Egmore and there at car parking area in the presence of A1,A2 to A4 pressurized, threatened and forced the complainantto enter into a MOU for an amount of Rs.9,50,00,000/- assettlement between both the company and also forced him toissue 9 cheque leaves each for Rs.1 crore and a cheque leaffor Rs.50 lakhs from Standard Chartered Bank, Chennai, asmentioned in the MOU and further to part with Rs.45 lakhscash and a self cheque for Rs.5 lakhs.

The above 10 chequeleaves for Rs.9,50,00,000/- and cash Rs.45 lakhs and a selfcheque for Rs.5 lakhs was obtained from the complainant https://hcservices.ecourts.gov.in/hcservices/ under duress, coercion, threat by A1 to A4 that unless thecomplainant part with the above, the complainant would beremanded on 08.07.2007 and further his family members willalso be subsequently remanded. The complainant was releasedonly after this settlement was made on 08.07.2007 at about1700 hrs. The complainant who was shocked and in a dismay, recovered himself when the first cheque for Rs.1 croreissued by him was encashed by M/s.Hero Exports and gave astop payment letter to M/s.Standard Chartered Bank, Chennaion 23.07.2007 for the cheques issued by him, for which thebank responded and further cheques presented by M/s.HeroExports were not honoured. Thereby the accused A1 to A4noted in the margin in furtherence of their commonintention, on 08.07.2007 Sunday, A1 without conductingproper investigation, acted in excess by misusing hisofficial capacity, brought the complainant on 08.07.2007from his house under threat to CCB office and then took himto car parking area of Hotel Ashoka, Egmore, aided A2 to A4in settling the dispute between M/s.Tiffin Barytes and HeroExports in favour of A2 to A4 by way of getting the chequeleaves and cash under duress, threat and coercion. Therebythe accused A1 to A4 committed offences punishable u/s.384r/w.34 IPC. A2 to A4 obtained anticipatory bail and werereleased on court bail.

Heard the learned senior counsel Mr.B. Kumar appearing forpetitioners/ accused 2 and 3 in Crl.O.P. No.29084/2008, SeniorCounsel Mr. S. Ramesh appearing for the petitioner/first accused in Crl.O.P.No.7217 of 2009, Mr.C.Prakash counsel appearing thepetitioner/4th accused in Crl.O.P.No.24374 of 2008, as also thelearned Government Advocate appearing for the State and SeniorCounsel Mr.Ashok Kumar appearing on behalf of the defacto complainantin Crl.O.P.No.7217/2009 and also perused the materials available onrecord.

The contention of the learned senior counsel Mr.B.Kumar areas follows :-3.i)There could be no dispute that a huge sum of over Rs.14 croreswas owing to M/s.Hero Exports by the defacto complainant. Theclaim in respect of such amount was no moon shine. Under ordersdated 15.7.2008 in OMP No. 369/2008,the Hon'ble High Court, NewDelhi had thought it fit to appoint a Commissioner to make an Inventory of stocks of about 30,000 Tonnes of iron ore held readyby the respondent/ defacto complainant for export and again underorders in I.A. No. 8292/2008 dated 18.03.2008 (u/s.9 of ArbitrationAct), such High Court, taking into consideration the memorandum ofunderstanding between M/s.Hero Exports and the respondent/defactocomplainant dated 08.07.2007 which acknowledged the liability of https://hcservices.ecourts.gov.in/hcservices/ M/s. Tiffins Barytes Asbestos and Paints Ltd., represented by thedefacto complainant, in a settled sum of Rs.9.5 crores restrainedit from enjoying the proceeds of the sale consideration of ironore, remittances of which would be received by them in variousbank accounts.

On the complaint preferred on behalf of M/s.Hero Exports bythe petitioner Mr.Gurpreet Singh on 06.07.2007, Cr. No.344 of 2007had been registered by the first respondent for offences u/s.406,409, 420, 381 IPC r/w 120(b) IPC against the respondent/ defactocomplainant and his group. Under order dated 03.09.2007, the Commissioner of Police, Chennai had directed further investigation inboth Cr.Nos.344/2007 i.e. the complaint filed against the defactocomplainant and in Cr. No.453/2007 i.e. the complaint against thepetitioners. The investigating officer so subsequently appointed, thus was required to look into complaints of either side. However, without so much as asking a single question of any of thepetitioners or dealing with a single document in respect of the claimof the petitioners, the investigating officer had filed a finalreport informing commission of offence of extortion. On the above, the submission of the learned senior counsel Mr.B. Kumar is, 1. The investigation in the case leading to the filing of the chargesheet against the petitioner is flawed. https://hcservices.ecourts.gov.in/hcservices/

2. Even if the entire allegations against the complaint are taken astrue, still no offence of extortion would stand made out. For anoffence of extortion to be made out, the inducement to deliver anyvaluable security or to sign anything which may be converted into avaluable security must be dishonest. Similarly, the injuryallegedly caused to the defacto complainant cannot be said to havebeen done with illegal intent.

In the instant case, under the memorandum of understandingwhat was sought, was a means of payment of debt which is due toM/s.Hero Exports and thus such intent cannot be termed as dishonest. Again, it is seen that the memorandum of understanding was dulyentered into and the same also had been attested by the counsel ofthe defacto complainant and had been acted upon. The petitioner haswithdrawn his complaint in Cr.No.344 of 2007, as a result thereof andthe defacto complainant also had honoured one cheque in a sum of Rs.1crore that had been issued by him. In such circumstances, thecontention that the defacto complainant was put in fear of injury andforced into entering upon the memorandum of understanding does notmerit any consideration. The decisions relied upon by the learned senior counsel will bediscussed hereinafter.

Mr. S.Ramesh, learned senior counsel appearing for thepetitioner would submit as follows : The complaint against M/s. Tiffins Barytes Asbestos and PaintsLtd. preferred by Mr. Gurpreet Singh, Vice-President, M/s. HeroExports, alleged grave misdoings by Sri. Sriram Vedam and hisemployees in concert with an employee of M/s. Hero Exports. Thecomplaint ran into twelve pages and was supported by as many as 50documents, informed loss to the tune of Rs.15 crores and allegedcommission of offences u/s.406, 409, 420 & 381 I.P.C. r/w.120(b)I.P.C. Sriram Vedam had been called for enquiry on 8.7.2007and after discussions a compromise was entered into by both sides andboth parties submitted letters to the police requesting closure ofthe complaint as a settlement had been arrived at. After this, oneof the cheques in a sum of Rupees one crore issued by the respondenthad been honoured. Towards having the twin benefit of both avoiding criminal liability and evading payment due under the memorandum ofunderstanding, the respondent had belatedly filed a false complainton 9.8.2007.

Sri.C.Prakash, learned counsel appearing for the petitionerin Crl.OP No.24734/2008/ 4th accused would submit that so far as thispetitioner was concerned the allegation was that he merely waspresent. No overt act had been attributed to him. The 161 Cr.PCstatements reflected the position that he was a friend both of thecomplainant and the accused. In fact, the statements reveal theposition that it was the defacto complainant who introduced him tothe accused. He could not be a person, said to have shared anycommon intention with other accused. This court had quashedproceedings against the advocate of M/s.Hero Exports in Crl.O.P.No.25413/2007. Such would be an additional reason why a person suchas the petitioner who is a total stranger and to whom no overt acthad been attributed ought to be provided the same relief.

Sri. Ashok Kumar, learned senior counsel appearing on behalfof the respondent would submit that on the complaint against M/s.Tiffins Barytes Asbestos and Paints Ltd., investigation had beentaken up. The circumstances would go to show that the investigatingofficer and the accused had all acted in tandem towards carrying outtheir design. The circumstances are these: Instead of examining the respondent/defacto complainant at theCCB office, the same admittedly was done at Hotel Ashoka. The secondand third accused are from Delhi but on the fateful day they alsowere present at such Hotel. The stamp paper on which the memo ofunderstanding had been entered had been purchased on 7.8.2007. Theaccused could not have had prior knowledge that the memorandum ofunderstanding would be entered into on 8.7.2007. Therefore it wasquite clear that all the accused had acted jointly and had come andknocked on the door of the defacto complainant with the dishonestintention of making wrongful gain for themselves and wrongful loss tothe defacto complainant. The commission of offence under section383 - extortion -stood well-established in the circumstances. Towards carrying out the evil design, it is made out in thememorandum of understanding as if the petitioners had given up a fewcrores of rupees, that is they were accepting Rs.9 crores instead ofRs.14 crores. The notice sent on behalf of the defacto complainanton 24.07.2007 informed the position that the defacto complainant hadpreferred a complaint against the petitioners before the AdditionalCommissioner of police. As regards A4, it is submitted that therewould be no occasion for him to be at the Hotel if he did not sharethe common intention of the other accused. Learned senior counselwould submit that in any event this is not the stage to canvassevidence as such would be a matter for appreciation at the trial.

In reply, learned senior counsel Sri. B. Kumar would submitthat for an offence under section 383 to be made out, it wasnecessary that a person should have been put in fear of any injury to https://hcservices.ecourts.gov.in/hcservices/ himself or to any other. As per Sec.44 IPC injury would denote anyharm illegally caused. In the present case, it was apparent, if onekeeps in mind the proceedings before the Delhi High Court, that allthat the petitioners were seeking to do was to recover money due tothem. The submission is that even if the complaint be true, it cannotbe said that an attempt to recover monies due to oneself could betermed a threat of injury. Unless the investigating officer hadlooked into the several documents which had been filed along with thecomplaint of the petitioners such officer could not have come to theconclusion that the intention of the petitioners was dishonest orthat they put the defacto complainant under threat of injury. Theinvestigating officer had failed to take into consideration thecontradictory 161 CrPC statements in the case. Without taking atotalitarian view of the facts and circumstances surrounding the caseand both complaints viz; that of the defacto complainant and that ofthe petitioners, the investigating officer had, with the sole aim ofaiding the defacto complainant in his wrongful exercise, gone aboutthe investigation. The learned senior counsel would submit that theargument about there being no specific overt act attributed to the 4thaccused also would apply with equal force to accused 2 and 3. Learned senior counsel Sri Ramesh would add that the perusal of the161 CrPC statements of witnesses would show that it was not correctto submit that the defacto complainant had been taken away to the Hotel. The same reflect the position that initially the defactocomplainant/ accused in Cr.No.344/2007 was produced at the office ofthe CCB and subsequently all persons concerned moved to the Hoteltowards sorting out differences. Learned counsel submits that wherethe very fabric of the prosecution case falls, the petitioners/accused cannot be proceeded against.

Learned senior counsel further would submit that the firstaccused having gone above his duties in the course of investigation, could not be made liable under a charge of extortion and whileso theaccused 2 to 4 also could not be prosecuted on the ground that theyshared a common intention with the first accused, with the aid ofsection 34 IPC. Memorandum of Understanding dated 8.7.2007 had beensigned by the defacto complainant and attested by his counsel. Thesame did not provide for any revival of any criminal action uponfailure thereof. Whileso, it would but have been fair that uponentering into an investigation on the complaint of the defactocomplainant, a further and fuller enquiry ought to have beenconducted also on the complaint against him. This was what thesuperior officer wanted the investigating officer to do. The failureto do so had led to the investigating officer filing a charge sheeton an one sided view of the matter, causing great prejudice to thepetitioners. https://hcservices.ecourts.gov.in/hcservices/

Learned Senior Counsel Mr.B.Kumar placed reliance on thedecision Laxmi Dhar v. Rex reported in AIR (38) 1951 Ajmer 64 (2),for the proposition that, where the intent behind the threatallegedly meted out to the complainant was legal i.e., towardsrecovering money due to the petitioners, then no injury could havebeen said to have been caused to the defacto complainant andconsequently there could be no charge of extortion. The followingwould be the relevant extract from such judgment. " He has in support of his contentionrelied on the ruling in Venkatappa v. Jalayya, AIR (6) 1919 Mad.954 (42 Mad.615 FB).(2) Section 383 IPC, lays down that,'whoever ... puts any person in fear of any injury ... &thereby ... induces the person so put in fear to deliver ...any property ... commits extortion.'Section 44 IPC., lays down that,'the word "injury" denotesany harm whatever illegally caused to any person, in ...property.' Section 43 IPC lays down that,'the word "illegal"is applicable to every thing which is an offence or which isprohibited by law, or which furnishes ground for a civilaction ....''(3) Venkatappa v. Jalayya, AIR (6) 1919 Mad.954 (42 Mad.615FB), lays down as below: " Accused, who was the proprietor of a certain estate, stopped complainant, a cooly, whom he suspected of smugglingArrack from the Nizam's Dominions into British Territory, onthe way ... threatened to report the matter to the policeunless he paid something. He was charged with ... threat ofinjury to commit extortion ...& was sentenced to a ...fine... Held: ..that the conviction under S.385 was bad, ascomplainant was not put in fear of any injury within themeaning of S.44, Penal Code and the accused only threatenedto do what he was bound by law to do ..."3. The finding arrived at by the two Cts. below do goto show that the appets. had not put the complainant in fearof any injury i.e.,'illegal' harm. They had according tothe very findings arrived at by the two Cts. below just heldout a threat that in case the complainant happened toentertain more than 25 guests in the marriage feast of hisniece they would report the matter to the authorityconcerned unless he paid them a certain sum of money. Thethreat so given thus was no 'injury' within the meaning ofS.44 read with S.43 IPC." https://hcservices.ecourts.gov.in/hcservices/

Reliance was also placed in Mantripragada MattapalliNarasimha Rao In re, AIR 1919 Madras 954, which, we find, was reliedupon in the decision above cited.

Learned counsel also relied upon In re Ganeshmal Sait &Ors., AIR (35) 1948 Madras 513, for the preposition that the intentbehind the action of the petitioner should be to cause wrongful lossand in the absence thereof offence of extortion could not be madeout. The relevant extract would be, " In Section 24 "dishonestly has been defined as: 'Whoeverdoes anything with the intention of causing wrongful gain toone person or wrongful loss to another person, is said to dothat thing 'dishonestly'.' In this case, it cannot be saidthat by asking for the money which accused 1 had lost he wastrying to have any wrongful gain. So, the only otherportion of the section applicable is "causing wrongfulloss. " If accused 1's intention was to cause wrongful lossto PW-1, he would be guilty. It is not only sufficient thatthere should be wrongful loss caused to one individual, butthe person putting that individual in fear of injury musthave the intention that wrongful loss should be caused. Ifaccused 1 honestly believed, as the learned Sessions Judgefinds, that PW-1 had taken the money belonging to him (A-1)the attempt to get it back could not be said to be with theintention of causing wrongful loss to PW-1. Loss might havebeen caused to PW-1, but it was not wrongful loss accordingto accused 1. Such wrongful loss should be caused as aresult of an intention. On the findings of the learnedSessions Judge, there is a thorough absence of intention onthe part of accused 1 to cause wrongful loss and that beingso, the offence under S.384, Penal Code, has not been madeout. If accused 1 is not guilty of the offence, accused 3to 7 who were only present to assist accused 1 with a viewto intimidate PW-1, according to the learned Sessions Judge, cannot be guilty at all. "

Reliance was also placed in Dhananjay @ Dhananjay KumarSingh v. State of Bihar & anr., (2007) 14 SCC 768, to impress thatfor an offence of extortion to be made out, it merely was notsufficient that a person was put in fear of injury. The personaccused must intend to put such person in fear and thereby induce himto deliver property or valuable security or anything which could besigned or sealed, which may be converted into a valuable security; under a dishonest intention. https://hcservices.ecourts.gov.in/hcservices/

Learned senior counsel Mr.S. Ramesh, placed reliance on thedecision Bhai Lal Chand & Ors. v. Emperor AIR (29) 1942 Lahore 253,informing that the circumstances are apposite and relied on thefollowing observations therein.

It is not disputed that institution offalse criminal complaints would amount to putting a personin fear of injury within the meaning of the section, but itis contended that in the present cases the object beingmerely to realise debts which were admittedly due, thesecond ingredient of the offence, namely, 'dishonesty' isnot established.

“ In the cases to which the other two chargesheets refer the question is not so easy to answer. Theanswer depends on the correct construction of the words"legally entitled" in S.23, Penal Code. A possibleconstruction of the phrase "property to which a person islegally entitled" is that it means property to which thelegal title of ownership vests in that person at thematerial time.

Reliance was also placed in Ganeshmal Sait and Ors.,1948 MLJ Reports p.418, which already stands referred to supra.

Learned counsel also refers to the decision of this Court in C.K.P. Hariselvan & Ors. v. State rep. by The Inspector of Police, CRA No.2/2004, MANU/TN/9258/2006. Such was a case, wherethere was a belated complaint and in the facts and circumstances ofthe case this Court held that the offences punishable u/s.384 wouldnot stand attracted since the documents alleged to be snatched awayfrom the complainant by the accused could not be considered either as“property” or as “valuable securities”. This court further foundthat such case would be an example as to how a false case could befoisted on persons against whom one has a motive or enmity.

Reliance also was placed on an order of this Court inM.N. Ojha & Ors. v. Alok Kumar Srivastav, C.A. No. 1582/2009,MANU/SC/1479/2009. In such case, the Apex Court found that “ The complaint obviously has been filed ascounter blast to the proceedings already initiated by thebank including the first information report lodged by thefirst appellant against the complainant and the borrower forthe offences of cheating and misappropriation. The sequenceof events undoubtedly suggests that the criminal proceedingshave been maliciously instituted with an ulterior motive ofwreaking vengeance on the appellants and with a view tospite them due to personal grudge. It was clearly intendedto prevent the public servants from discharging theirduties. The submission is that, also in the instant case, the defactocomplainant has acted in a malafide manner and intent and towardswriggling out of his liability under Memorandum of Understanding andas a counter blast of the complaint preferred against him. https://hcservices.ecourts.gov.in/hcservices/

The other decisions relied upon by the learned SeniorCounsel is on similar lines.

Learned counsel Mr.V. Prakash, would rely upon thedecision in Mahbub Shah v. Emperor, AIR (32) 1945 Privy Council 118,which informed that,“ Care must be taken not to confuse same or similarintention with common intention; the partition whichdivides “their bounds” is often very thin; nevertheless, the distinction is real and substantial, and if overlookedwill result in miscarriage of justice.”

Reliance also was placed in decision of the Hon'bleApex Court in Hardeep v. State of Haryana & anr., JT 2002 (6) SC 144,which informed that mere participation in Crime with others was notsufficient to infer common intention. Relating, as it does to astate of mind, the same objectively was to be inferred from conductdisplayed in the course of commission of offence as also the priorand subsequent attendant circumstances.

On consideration, it is seen that the thrust of thesubmissions made on law by the learned counsel for the petitioners isthat unless the injury was caused and the same was so caused eitherdishonestly or illegally, no offence of extortion could be complainedof. To constitute injury, harm must be caused illegally. The actionof which the petitioners are accused, even if true is not to obtainillegal gain. It would only be an action towards recovering what waslegally due to them. When such was the case, then the question ofthe petitioners having acted with the intention of causing wrongfulgain to themselves or wrongful loss to the complainant, would notarise. Thus, they could not be said to have acted dishonestly. Thiswould be the essence of the submission, based on Section 24, 43 and44 of IPC, which respectively defines the terms, dishonestly, illegally and injury.

The submissions on law made on behalf of thepetitioners that even if the allegations made by the defactocomplainant be true, no offence of extortion stands made out, wouldgain acceptance if the conclusion that what the petitioners sought torecover was only what was due to them could be arrived at. Thedecision on such aspect could have been arrived at only if thecomplaint preferred by the petitioners also had been investigatedupon. The Commissioner of Police rightly had instructed the https://hcservices.ecourts.gov.in/hcservices/ investigating officer to cause investigation into both complaintsi.e. that against the petitioners and that preferred by them. It isapparent that the investigating officer has not bothered himself inany manner with the complaint preferred by the petitioners’ side. Itis well possible that the investigating officer remaining obliviousto the complaint made by the petitioners could have clouded hisvision in the course of his investigation upon the complaintpreferred against the petitioners. The counter complaints have seentwo investigating officers. One stands accused and the other is foundwoe fully wanting.

In the circumstances, this court is of the opinion thatinterests of justice would not be served by quashing the proceedingspending before the lower court but by directing a furtherinvestigation. Given the nature of allegations made on ether side, both on the facts as between themselves as also the role of theinvestigating officers, this Court considers it necessary thatfurther investigation be conducted by an official not below the rankof a Deputy Superintendent of Police. This Court therefore directs asfollows :-1.The Commissioner of Police shall entrust cases both inCr,No. 344/2007 and 437/2008 to an officer not below therank of Deputy Superintendent of Police for carrying outfurther investigation. Such officer shall complete theinvestigation within a period of three months of theentrustment of investigation in his hands. 2. The proceedings in C.C. No,12187/2008 shall await the reportof the investigating officer u/s.173(8) Cr.P.C and uponreceipt thereof, the lower court shall proceed further inaccordance with law. 3. It would be open to the Investigating Officer to file aseparate charge sheet in respect of Cr.No.344 of 2007 i.e.The case registered upon the complaint of Mr.Gurpreet Singh, one of the petitioners and on behalf of M/s.Hero Exports, ifconsidered appropriate.

The Criminal Original Petitions are ordered accordingly. Sd/Asst. Registrar/true copy/Sub Asst. Registraravr https://hcservices.ecourts.gov.in/hcservices/ To1. Additional Chief Metropolitan Magistrate Egmore, Chennai-8.2. The Assistant Commissioner of Police Central Crime Branch, Chennai-6.3. The Public ProsecutorMadras High Court.1 cc To Mr.K.Govi Ganesan, Advocate, SR.24208.1 cc To Mr.C.D.Johnson, Advocate, SR.23636. Crl.O.P. Nos. 24374,29084 of 2008 and 7217 of 2009 KU(CO)RVL 19.04.2010