IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 12.04.2010 CORAM: THE HON'BLE MR.JUSTICE C.T. SELVAM Crl.O.P. Nos. 24374, 29084 of 2008 and 7217 of 2009 Naveen @ L.Srinivasan .. Petitioner in Crl.OP.No.24374/08 Naveen Munjal .. Petitioner in Crl.OP.No.29284/08 Gurpreet Singh .. Petitioner in Crl.OP.No.7217/09 vs. 1. State rep. by The Assistant Commissioner of Police, Central Crime Branch, Chennai-6. .. Sole Respondent in Crl.OP.No.24374/08 and 29084/08 and 1st Respondent in Crl.OP.No.7217/09 2. Sriram Vedham 2nd Respondent in Crl.OP.7217/09 PRAYER IN ALL CRL.O.P.: These Petitions are filed under Section 482 of the Code of Criminal Procedure, praying to call for the records in C.C.No.12187 of 2008 on the file of the Additional Chief Metropolitan Magistrate Court, Egmore, Chennai-8 and quash the same. For Petitioners : Mr. P.N. Prakash, for Mr. K. Govi Ganesan in Crl.O.P.No.24374/2008 Mr. B. Kumar, Sr. Counsel for Mr. Rajinish Pathiyil in Crl.O.P.No.29084/2008 Mr. A.Ramesh, Sr. Counsel for Mr. D.Raja in Crl.O.P.No.7217/2009 For Respondents : Mr. J.C. Durairaj, GA(Crl.side) for R1 in all Crl.O.Ps Mr. S. Ashok Kumar, Sr. Counsel for Mr.C.D.Johnson for R2 in Crl.O.P.No.7217/2009 Mr.K. Srinivasan for Intervener in Crl.O.P.No.24374 of 2008 https://hcservices.ecourts.gov.in/hcservices/ Mr.S.Ashok Kumar, Senior Counsel for Mr.C.D.Johnson for Interverner in Crl.O.P.No.29084/2008. O R D E R These petitions seek to quash the proceedings pending in C.C. No.12187/2008 on the file of the Additional Chief Metropolitan Magistrate, EO-I, Egmore, Chennai. The petitioners/accused in such case,are facing prosecution for offences u/s.384 r/w. 34 IPC. The petitioner in Crl.O.P. No.7217 of 2009 is the 1st accused, while the petitioner in Crl.O.P.No.24374 of 2008 is the 4th accused and the petitioners in Crl.O.P.No.29084 of 2008 are the 2nd and 3rd accused. The substratum of the offences alleged against the petitioners is to be found in the final report filed in the case and the same readily may be reproduced. " This case was registered on a direction by the Hon'ble Additional CMM,Egmore,u/s.156(3) CrPC on a petition filed by Thiru Sri Ram Vedam, Managing Director, M/s.Tiffin Barytes Asbestos & Paints Ltd., Chennai against Tr.Arulraj, Sub Inspector of Police, CCB, Egmore and 3 others alleging that on 8th July 2007 (Sunday) he was asked to accompany Tr.Arulraj (SI, Team-2, CCB, Egmore, Chennai) and another Policemen in plain clothes at about six thirty a.m., from his residence at Balaji Avenue at T.Nagar, Chennai-17. Tr.Arulraj said that there was a complaint against his company, that is being investigated by him and that he should leave with him to the CCB Office at Egmore. He told him that he need to organize the relevant papers from his office since it was a Sunday. He was pressurizing to leave with them right then at about six thirty a.m. He called his officers and asked them to bring the relevant files to his residence and he explained the matter in detail and also showed him that it was M/s.Hero Exports who owes his company a sum of about Rs.70 lakhs. They refused to listen to him and insisted that he should leave with them and explain everything at the CCB office. Left with no other option he accompanied them at about Ten thirty a.m on 08.07.2007. Instead of taking him to the CCB office they took him to that Hotel Ashoka and asked him to wait until 1 pm. Tr.Munjal and Tr.Gurpreet Singh of M/s.Hero Exports and one Naveen of Besant Nagar appeared there and SI Tr.Arulraj said that they will have to discuss the matter amongst themselves and settle it or he will be remanded in the said criminal case. Tr.Munjal said that he had suffered losses because of his company and that his company should pay back his losses along with interest to the tune of about Rs.14,37,92,691/- and that he would settle it at Rs.9,50,00,000/-. https://hcservices.ecourts.gov.in/hcservices/ At about Two Thirty p.m on the same day Advocate Tr.Rajinish Pathiyil came to Hotel Ashoka and brought an MOU which contained all these averments and stated that his company is settling the dispute for the above mentioned amount. He asked him to furnish the cheque details to be furnished. He said that he may not be signing this MOU. Then Tr.Arulraj, SI of Police, CCB and his companion officer asked him to sign the MOU after giving the cheque details and arrange the cheques to be given to Tr.Rajinish Pathiyil Advocate. He threatened to get him remanded if he did not oblige. He also told him that he would keep the criminal case open until he clears the entire payments mentioned in the said MOU. By then it was becoming late and it was about five pm. He gave the cheque details and asked his company officials to get the cheques and without his consent he was forced to sign the said MOU. On 5th July one cheque for Rupees one crore has been wrongly encashed by the said Hero Exports, since SI Tr.Arulraj threatened to take criminal action against him of the cheques were not honoured by his company in this very complaint which according to him could land him and other Directors in Jail. Whether any offence appears to have been committed and if so by whom? A1 noted in the margin was the then SI of Police, CCB, Chennai now working as SI of Police (Crime) in N4 Fishing Harbour Police Station, Chennai City, A2 noted in the margin is the Director, Hero Exports, New Delhi, A3 noted in the margin is the Vice President, Hero Exports, New Delhi and A4 noted in the margin is the associate of A2 and A3 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.Hero Exports, New Delhi on 13.07.2004 for supply of 30,000 Tonnes Iron-Ore fines from their mines at Bellari, Karnataka State at the rate of Rs.525/- per metric tonne on ex-mines condition and the agreement was fulfilled and again on 20.09.2004 an agreement was entered for supply of 5 lakhs to 7 lakhs tonnes of iron-ore fines at the rate Rs.675/- per metric tonne on Ex-mines condition and an amount of Rs.5 crores was paid in advance by Hero Exports and further an amount of Rs.27,96,00,000/-was paid by them. M/s. Tiffin Barytes supplied 2,75,492.515 Tonnes of iron-ore fines for that amount and were doing business transactions from 2004 to 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 the course of supply of materials dispute araised between Hero Exports and Swiss Singapore Company in the shipment loads and hence, the Swiss Singapore Company fixed M/s.Hero Exports, New Delhi for the defaults noted in the supply. M/s.Hero Exports, New Delhi in turn fixed the responsibility for the defaults on M/s.Tiffin Barytes, Chennai by issuing debit notice. But M/s.Tiffin Barytes, Chennai did not accept the same. Hence, M/s.Hero Exports, New Delhi issued a legal notice through their Advocates on 05.04.2007 claiming that M/s.Tiffin Barytes, Chennai has to give them Rs.13,50,62,436/- based on the debit notice. M/s.Tiffin Barytes, Chennai sent a reply notice on 25.04.2007 through their advocate that the agrement for supply of iron ore fines are on ex-mines condition and hence they are not liable for any damages etc., thus disowning the same and informed that a detailed reply will be sent during the first week of June 2007. As a such , in the midst of the legal notice correspondence are going on 28.06.2007 M/s. Hero Exports represented by its Vice President Mr. Gurpreet Singh presented a complaint in Crl.O.P.1134/07 against M/s. Tiffin Barytes Asbestos & Paints Ltd., Chennai company and 11 others before the Court of Addl.CMM, Egmore, for the offences u/s. 406, 409, 420 and 381 IPC r/w 120(b) IPC requesting to direct the Commissioner of Police, Chennai u/s.156(3) CrPC to register a case and to investigate. Based on this endorsement a case in Central Crime Branch Cr.No.344/07 u/s.406, 409, 420 and 381 IPC r/w 120(b) IPC was registered on 06.07.2007 by the (A1) Tr.Arulraj, SI of Police, CCB and investigation taken up. During the course of investigation on 08.07.2007 Sunday at about 0630 hrs A1, Arulraj, SI and his party went to the house of the complainant Tr.Sri Ram Vedam, Managing Director, M/s.Tiffin Barytes Asbestos & Paints Ltd., Chennai at Balaji Avenue, T.Nagar and forcibly took the complainant Tr.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 complainant to enter into a MOU for an amount of Rs.9,50,00,000/- as settlement between both the company and also forced him to issue 9 cheque leaves each for Rs.1 crore and a cheque leaf for Rs.50 lakhs from Standard Chartered Bank, Chennai, as mentioned in the MOU and further to part with Rs.45 lakhs cash and a self cheque for Rs.5 lakhs. The above 10 cheque leaves for Rs.9,50,00,000/- and cash Rs.45 lakhs and a self cheque 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 the complainant part with the above, the complainant would be remanded on 08.07.2007 and further his family members will also be subsequently remanded. The complainant was released only after this settlement was made on 08.07.2007 at about 1700 hrs. The complainant who was shocked and in a dismay, recovered himself when the first cheque for Rs.1 crore issued by him was encashed by M/s.Hero Exports and gave a stop payment letter to M/s.Standard Chartered Bank, Chennai on 23.07.2007 for the cheques issued by him, for which the bank responded and further cheques presented by M/s.Hero Exports were not honoured. Thereby the accused A1 to A4 noted in the margin in furtherence of their common intention, on 08.07.2007 Sunday, A1 without conducting proper investigation, acted in excess by misusing his official capacity, brought the complainant on 08.07.2007 from his house under threat to CCB office and then took him to car parking area of Hotel Ashoka, Egmore, aided A2 to A4 in settling the dispute between M/s.Tiffin Barytes and Hero Exports in favour of A2 to A4 by way of getting the cheque leaves and cash under duress, threat and coercion. Thereby the accused A1 to A4 committed offences punishable u/s.384 r/w.34 IPC. A2 to A4 obtained anticipatory bail and were released on court bail. 2. Heard the learned senior counsel Mr.B. Kumar appearing for petitioners/ accused 2 and 3 in Crl.O.P. No.29084/2008, Senior Counsel Mr. S. Ramesh appearing for the petitioner/first accused in Crl.O.P.No.7217 of 2009, Mr.C.Prakash counsel appearing the petitioner/4th accused in Crl.O.P.No.24374 of 2008, as also the learned Government Advocate appearing for the State and Senior Counsel Mr.Ashok Kumar appearing on behalf of the defacto complainant in Crl.O.P.No.7217/2009 and also perused the materials available on record. 3. The contention of the learned senior counsel Mr.B.Kumar are as follows :- 3.i)There could be no dispute that a huge sum of over Rs.14 crores was owing to M/s.Hero Exports by the defacto complainant. The claim in respect of such amount was no moon shine. Under orders dated 15.7.2008 in OMP No. 369/2008,the Hon'ble High Court, New Delhi had thought it fit to appoint a Commissioner to make an Inventory of stocks of about 30,000 Tonnes of iron ore held ready by the respondent/ defacto complainant for export and again under orders in I.A. No. 8292/2008 dated 18.03.2008 (u/s.9 of Arbitration Act), such High Court, taking into consideration the memorandum of understanding between M/s.Hero Exports and the respondent/defacto complainant 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 the defacto complainant, in a settled sum of Rs.9.5 crores restrained it from enjoying the proceeds of the sale consideration of iron ore, remittances of which would be received by them in various bank accounts. The restraint against the respondent/ complainant under such order was in a sum of Rs.8.5 crores. 3.iii) The memorandum of understanding between the parties had been signed on 08.07.2007. Thereunder, the defacto complainant had issued cheques of various dates towards effecting payment of a sum of Rs.9.5 crores agreed to be paid by him. The first of such cheques dated 15.07.2007 was in a sum of Rs.1 crore and the defacto complainant had honoured the same. The second cheque issued by the defacto complainant was dated 22.07.2007 and in a sum of Rs.1 crore. It was only at such stage that the respondent/defacto complainant having caused dishonour of such cheque, under legal notice dated 24.04.2007, raised the claim of memorandum of understanding having been entered upon under duress and coercion. He sought to wriggle out of his commitments and at the same time informed that since the memorandum of understanding contained an arbitration clause, which should be treated as an agreement independent of the other terms of the contract invoked such clause to refer the matter for settlement through arbitration. 3.v) The complaint alleging commission of extortion, coercion and other offences on 08.07.2007 had been lodged only on 09.08.2007 and Cr.No.453/2007 had been registered thereupon for offences u/s. 384 r/w.34 IPC. The original investigating officer by name Mr.P.Rajasekaran, a Sub Inspector of Police had found no offence made out. However, he had not filed any final report. 4. On the complaint preferred on behalf of M/s.Hero Exports by the petitioner Mr.Gurpreet Singh on 06.07.2007, Cr. No.344 of 2007 had been registered by the first respondent for offences u/s.406, 409, 420, 381 IPC r/w 120(b) IPC against the respondent/ defacto complainant and his group. Under order dated 03.09.2007, the Commissioner of Police, Chennai had directed further investigation in both Cr.Nos.344/2007 i.e. the complaint filed against the defacto complainant and in Cr. No.453/2007 i.e. the complaint against the petitioners. 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 the petitioners or dealing with a single document in respect of the claim of the petitioners, the investigating officer had filed a final report 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 charge sheet against the petitioner is flawed. https://hcservices.ecourts.gov.in/hcservices/ 2. Even if the entire allegations against the complaint are taken as true, still no offence of extortion would stand made out. For an offence of extortion to be made out, the inducement to deliver any valuable security or to sign anything which may be converted into a valuable security must be dishonest. Similarly, the injury allegedly caused to the defacto complainant cannot be said to have been done with illegal intent. 5. In the instant case, under the memorandum of understanding what was sought, was a means of payment of debt which is due to M/s.Hero Exports and thus such intent cannot be termed as dishonest. Again, it is seen that the memorandum of understanding was duly entered into and the same also had been attested by the counsel of the defacto complainant and had been acted upon. The petitioner has withdrawn his complaint in Cr.No.344 of 2007, as a result thereof and the defacto complainant also had honoured one cheque in a sum of Rs.1 crore that had been issued by him. In such circumstances, the contention that the defacto complainant was put in fear of injury and forced into entering upon the memorandum of understanding does not merit any consideration. The decisions relied upon by the learned senior counsel will be discussed hereinafter. 6. Mr. S.Ramesh, learned senior counsel appearing for the petitioner would submit as follows : The complaint against M/s. Tiffins Barytes Asbestos and Paints Ltd. preferred by Mr. Gurpreet Singh, Vice-President, M/s. Hero Exports, alleged grave misdoings by Sri. Sriram Vedam and his employees in concert with an employee of M/s. Hero Exports. The complaint ran into twelve pages and was supported by as many as 50 documents, informed loss to the tune of Rs.15 crores and alleged commission 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 8.7.2007 and after discussions a compromise was entered into by both sides and both parties submitted letters to the police requesting closure of the complaint as a settlement had been arrived at. After this, one of the cheques in a sum of Rupees one crore issued by the respondent had been honoured. Towards having the twin benefit of both avoiding criminal liability and evading payment due under the memorandum of understanding, the respondent had belatedly filed a false complaint on 9.8.2007. The falsity thereof and the laxity on the part of the investigating officer can be gauged from the following : 1. The belated FIR does not make any mention that a sum of Rs.50 lakhs was extracted from the complainant in cash. In fact, neither the complaint nor the legal notice dt.24.7.07 issued by the respondent, wherein for the first time the memorandum of understanding was challenged, did so. Only by way of 161 https://hcservices.ecourts.gov.in/hcservices/ statements, was a new story put up regarding cash payment. If this were true it is highly unlikely that the facts thereof earlier would not have been mentioned. 2.The memorandum of evidence filed with the charge sheet reflects that all but one of the persons, who are to be examined as witnesses are either employees or accomplices of the respondent or police personnel. None are to be examined on the documents or on the complaint filed by the petitioner. 3. As both parties have given letters requesting that further action be dropped, the respondent avoided the necessity of moving any application for anticipatory bail. In fact there was absolutely no complaint till the FIR was registered on the basis of the belated complaint dated 9.8.2007. It was pertinent that neither in the FIR nor the notice dated 24.07.2007 nor the 161 statements, was there a whisper that the letter requesting dropping of action and informing that matters stood settled was a document obtained by force. The complicity of the investigating officer with the respondent can easily be gauged from the fact that in the final report it has been informed that the complaint was received for investigation under directions under section 156(3) CrPC. This factually was incorrect. The respondent had preferred the complaint directly with the Assistant Commissioner, CCB, Chennai who had forwarded the same for investigation. In the vacate stay petition filed on behalf of M/s. Tiffins Barytes Asbestos and Paints Ltd., the petitioner had wrongly informed that procedure under section 156(3) CrPC had been followed and this faithfully had been carried over in the 173 Cr.PC report by the investigating officer. The occurrence allegedly had taken place on 8.7.2007. The respondent had honoured the first cheque dated 15.7.2007 in a sum of Rs.1 crore. The request of the respondent not to present the second cheque was ignored, the same was presented on 21.07.2007 and returned unpaid on 23.07.2007. Thereafter, as an afterthought, a complaint has been preferred on 9.8.2007 without the non-mention therein of the extortion of Rs.50 lakhs on 8.7.2007. The memorandum of understanding dated 8.7.2007 had been attested by the advocate of the respondent. In such circumstances, it was highly unlikely that had anything untoward occurred on 8.7.2007, the same would have gone unreported until 9.8.2007. Further submissions were made on the meaning to the attached to the words 'illegal' and 'injury' and upon the import of section 43 and 44 IPC in respect of an offence u/s.383 IPC. It also was submitted that despite the superior officer requiring the new investigating officer to look into both complaints, in abject disregard and disobedience, the investigating officer had merely gone about fulfilling the aim and object of the respondent/complainant in roping in the petitioners before this court in a criminal case. The final submission was that in any event the petitioner, a police official, was entrusted with the investigation in the case against the respondent/complainant and that it was well within his powers to arrest a person if he saw that a cognizable offence stood made out. The petitioner had merely followed the instructions of his superior in carrying out https://hcservices.ecourts.gov.in/hcservices/ investigation and he could not be called upon to answer a charge of extortion. 7. Sri.C.Prakash, learned counsel appearing for the petitioner in Crl.OP No.24734/2008/ 4th accused would submit that so far as this petitioner was concerned the allegation was that he merely was present. No overt act had been attributed to him. The 161 Cr.PC statements reflected the position that he was a friend both of the complainant and the accused. In fact, the statements reveal the position that it was the defacto complainant who introduced him to the accused. He could not be a person, said to have shared any common intention with other accused. This court had quashed proceedings against the advocate of M/s.Hero Exports in Crl.O.P. No.25413/2007. Such would be an additional reason why a person such as the petitioner who is a total stranger and to whom no overt act had been attributed ought to be provided the same relief. 8. Sri. Ashok Kumar, learned senior counsel appearing on behalf of the respondent would submit that on the complaint against M/s. Tiffins Barytes Asbestos and Paints Ltd., investigation had been taken up. The circumstances would go to show that the investigating officer and the accused had all acted in tandem towards carrying out their design. The circumstances are these: Instead of examining the respondent/defacto complainant at the CCB office, the same admittedly was done at Hotel Ashoka. The second and third accused are from Delhi but on the fateful day they also were present at such Hotel. The stamp paper on which the memo of understanding had been entered had been purchased on 7.8.2007. The accused could not have had prior knowledge that the memorandum of understanding would be entered into on 8.7.2007. Therefore it was quite clear that all the accused had acted jointly and had come and knocked on the door of the defacto complainant with the dishonest intention of making wrongful gain for themselves and wrongful loss to the defacto complainant. The commission of offence under section 383 - extortion -stood well-established in the circumstances. Towards carrying out the evil design, it is made out in the memorandum of understanding as if the petitioners had given up a few crores of rupees, that is they were accepting Rs.9 crores instead of Rs.14 crores. The notice sent on behalf of the defacto complainant on 24.07.2007 informed the position that the defacto complainant had preferred a complaint against the petitioners before the Additional Commissioner of police. As regards A4, it is submitted that there would be no occasion for him to be at the Hotel if he did not share the common intention of the other accused. Learned senior counsel would submit that in any event this is not the stage to canvass evidence as such would be a matter for appreciation at the trial. 9. In reply, learned senior counsel Sri. B. Kumar would submit that for an offence under section 383 to be made out, it was necessary 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 any harm illegally caused. In the present case, it was apparent, if one keeps in mind the proceedings before the Delhi High Court, that all that the petitioners were seeking to do was to recover money due to them. The submission is that even if the complaint be true, it cannot be said that an attempt to recover monies due to oneself could be termed a threat of injury. Unless the investigating officer had looked into the several documents which had been filed along with the complaint of the petitioners such officer could not have come to the conclusion that