Sitaram Goel and Others vs State and Others

P.N. Prakash, J.—On a complaint lodged by the 2nd respondent, the 1st respondent registered a case in Crime No. 21 of 2013 against the petitioners for offences under Section 409, 506[i] IPC and took up the investigation.

Aggrieved by the registration of the FIR, the petitioner preferred Crl.OP.No. 9250 of 2013 before this Court for quashing the FIR on various grounds. On account of the pendency of the quash petition, no substantial progress could be made by the police in the investigation of Crime No. 21 of 2013. The quash petition was ultimately dismissed by this Court on 06.02.2015 by a reasoned and detailed order.

The essence of the allegation in the FIR is that, M/s. Gimpex Ltd. [2nd respondent/ de facto complainant] is a Government of India recognised trading house and that they are engaged in imports and exports of minerals; that they entered into three High Seas Sales Agreements with M/s. Kalika Cements Ltd., under which, Gimpex supplied goods valued at Rs. 29,54,86,859/-. Under the agreement, Kalika Cements were required to have the goods discharged and cleared through customs partly at Paradeep Port and partly at Haldia Port. The High Seas Sales Agreements also states that the custom duty and Government levies should have to be paid by the petitioners. While so, Mr. Manoj Goel, Managing Director, Mr. Mukesh Goel and Mr. Sitaram Goel, Directors of Kalika Cements had induced Gimpex to pay the customs duty and wharfage charges on their behalf, on the assurance that they will repay the amounts immediately thereafter. Believing their words, Gimpex paid the customs duty and wharfage charges to a tune of Rs. 6,96,74,666/- on behalf of Kalika Cements.

It is further alleged in the complaint that the accused took delivery of the goods at the said two Ports and thereafter, they cheated Gimpex of the said sum and hence, the complaint.

As stated above, the first quash application in Crl.OP.No. 9250 of 2013 was dismissed by this Court on 06.02.2015 and instead of challenging the order before the Apex Court, the petitioner have filed the present petition for quashing the same FIR. The Registry has raised the following objection:

"How this second quash petition is maintainable in view of Section 482 of Cr.P.C."

[actually the return should read as Section 362 Cr.P.C and not Section 482 Cr.P.C]

Be that as it may, the learned counsel for the petitioner re-submitted the papers by placing reliance upon few judgments of the Hon''ble Supreme Court. Since the Registry was not convinced with the submissions made by the learned counsel, the matter was posted before this Court for maintainability.

Heard Mr.A.Ramesh, learned Senior Counsel for the petitioner. Mr.A.Ramesh, learned Senior Counsel submitted that a second quash application is maintainable and in support of this plea, he relied upon the following judgments of the Hon''ble Supreme Court.

i. Superintendent and Remembrancer of Legal Affairs, West Bengal Vs. Mohan Singh and Others, AIR 1975 SC 1002 : AIR 1974 SC 1002 : (1975) CriLJ 812 : (1975) 77 PLR 147 : (1975) 3 SCC 706

ii. S.M.S. Pharmaceuticals Ltd. Vs. Neeta Bhalla and Another, (2007) 2 BC 521 : (2007) 1 CompLJ 369 : (2007) 4 JT 230 : (2007) 3 SCALE 245 : (2007) 4 SCC 70 : (2007) 74 SCL 187 : (2007) 2 SCR 862

iii. State rep. by D.S.P., S.B.C.I.D., Chennai Vs. K.V. Rajendran and Others, AIR 2009 SC 46 : (2009) CriLJ 355 : (2008) 230 ELT 577 : (2008) 10 JT 392 : (2008) 12 SCALE 160 : (2008) 8 SCC 673

In the Superintendent and Remembrancer of Legal Affairs, West Bengal''s case, the first quash application was dismissed by the Division Bench on 12.12.1968, on the ground that they will not go into disputed questions of fact. For two years, there was no progress in the case. Therefore, the petitioner once again filed a second quash application in the year 1970, which was allowed by the Division Bench of the High Court. Under those circumstances, the Hon''ble Supreme Court said that the second quash application cannot be said to be not maintainable.

Therefore, this judgment cannot be applied to the facts and circumstances of this case.

In SMS Pharmaceuticals Ltd. case, the first quash application before the High Court was dismissed as withdrawn by the accused with liberty to avail remedies, if any, in law. Thereafter, the second quash application was filed and the High Court went into the liability of the accused under Section 141 of the Negotiable Instruments Act and quashed the proceedings. Under those circumstances, the Supreme Court held that the High Court was not denuded from exercising its inherent jurisdiction for the second time.

In this case, the first quash application was not dismissed as withdrawn, but a well considered order has been passed by this Court.

In K.V. Rajendran''s case, the High Court by order dated 01.03.2001 disposed the petition filed under Section 482 Cr.P.C refusing to transfer the investigation to CBI. 3A1/2 years later, a miscellaneous petition was filed in the dismissed petition and in that, the High Court transferred the case from SB CID to CBI. While setting aside the order passed by the High Court, the Hon''ble Supreme Court held that a miscellaneous petition cannot be filed in an already disposed matter, as that would be barred by Section 362 Cr.P.C and only a fresh application under Section 482 Cr.P.C could be filed, if there are change in circumstances.

Thus, this judgment also does not apply to the facts of this case.

In this case, the learned Single Judge has gone into the entire merits of the FIR, after hearing the accused, the State and the de facto complainant, in extenso and, by a detailed order, held that there are sufficient materials for the police to proceed with the investigation of the case. It may be recapitulated that the order in Crl.OP.No. 9250 of 2013 dismissing the quash application was passed by this Court only on 06.02.2015 and even before the ink on the paper could dry, the accused have approached this Court with this second quash application, once again pressing into disputed questions of fact.

This Court has no quarrel with the preposition laid down in the aforesaid Hon''ble Supreme Court''s judgments that a second quash application is not completely out of purview and that, in certain circumstances, this Court has the power to entertain a second quash application. In Simrikhia Vs. Dolley Mukherjee and Chhabi Mukherjee and Another, (1990) 3 JT 79 : (1990) 2 SCC 437(1) : (1990) 2 SCC 437 , the Hon''ble Supreme Court has held that the inherent jurisdiction of the High Court cannot be invoked to over ride the bar of review under Section 362 Cr.P.C.

Of course, as held by the Hon''ble Supreme Court in SMS Pharmaceuticals Ltd. case, that the Supreme Court has not laid down an inexorable rule of law in Simrikhia''s case, that a second quash application is not maintainable at all circumstances. The facts obtaining in Simrikhia''s case is similar to the facts obtaining in the case on hand.

If this Court is to entertain the second quash application on the grounds raised by the accused, it will virtually amount to review of the earlier order passed in Crl.OP.No. 9250 of 2013, which is not permissible in the teeth of Section 362 Cr.P.C. Therefore, the objection raised by the Registry is upheld and this Court holds that the present quash petition is not maintainable.