SAMTA NAIDU & ANR. versus STATE OF MADHYA PRADESH & ANR.

[2020] 2 S.C.R. 1127

SAMTA NAIDU & ANR.

STATE OF MADHYA PRADESH & ANR.

(Criminal Appeal No. 367-368 of 2020)

MARCH 02, 2020

[UDAY UMESH LALIT AND VINEET SARAN, JJ.]

Code of Criminal Procedure, 1973 – Second Complaint –Maintainability of – The first complaint contained the basicallegations that vehicle belonging to the father of the parties,was sold after the death of their father with forged signature – Itwas alleged that by the complainant that his brother and his brother’swife had forged the signatures of the father on Form 29 and 30 andthat on the basis of such forged documents the benefit of “saleconsideration of the vehicle” was derived by them – The JudicialMagistrate after considering the evidence and documents producedheld that no prima facie case was found and the complaint wasrejected – After filing the revision, the complainant sought towithdraw the revision with further liberty to file the fresh complaint– Thereafter, another complaint was filed on same allegations butwith additional material in support of the basic allegation – TheHigh court held the second complaint maintainable – On appeal,held: The earlier complaint was dismissed after the JudicialMagistrate found that no prima facie case was made out; the earliercomplaint was not disposed of on any technical ground, the materialadverted to in the second complaint was only in the nature ofsupporting material and the material relied upon in the secondcomplaint was not such which could not have been procured earlier– Pertinently, the core allegations in both the complaints wereidentical – In the circumstances, the instant matter is covered by thedecision of the Supreme Court in Taluqdar as explained in JatinderSingh and Poonam Chand Jain – The High court was thus notjustified in holding the second complaint to be maintainable – Thedecision of the High Court set aside and the second complaint isdismissed as not being maintainable.

CDEF

1128SUPREME COURT REPORTS

AAllowing the appeals, the Court

Held: 1. The application of the principles laid down inPramatha Nath Taluqdar v. Saroj Ranjan Sarkar in Jatinder Singh& Ors. v. Ranjit Kaur shows that “a second complaint ispermissible depending upon how the complaint happened to beBdismissed at the first instance”. It was further laid down that “ifthe dismissal of the complaint was not on merit but on default ofthe complainant to be present there is no bar in the complainantmoving the Magistrate again with second complaint on the samefacts. But if the dismissal of the complaint under Section 203 ofthe Code was on merits the position could be different”.C

To similar effect are the conclusions in Ranvir Singh andPoonam Chand Jain. Para 16 of the Poonam Chand Jain alsoconsidered the effect of para 50 of the majority judgment inTalukdar. These cases, therefore, show that if the earlier disposalof the complaint was on merits and in manner known to law, theDsecond complaint on “almost identical facts” which were raisedin the first complaint would not be maintainable. What has beenlaid down is that “if the core of both the complaints is same”, thesecond complaint ought not to be entertained. [Para 14][1144-E-G; 1145-A]

2. If the facts of the present matter are considered in thelight of these principles, it is clear that paragraphs 3, 4 and 5 inthe first complaint contained the basic allegations that the vehiclebelonging to the father was sold after the death of the father; thatsignatures of the father on Form 29 and 30 were forged; thatFsignatures on the affidavit annexed with Form 29 and 30 werealso forged; and that on the basis of such forged documents thebenefit of “sale consideration of the vehicle” was derived by theaccused. The order dated 5.7.2013 passed by the JudicialMagistrate First Class, shows that after considering the evidenceand documents produced on behalf of the complainant, no primaGfacie case was found and the complaint was rejected under Section203 of the Code of Criminal Procedure, 1973. The stand takenbefore the Revisional Court discloses that at that stage somenew facts were said to be in possession of the complainant and assuch liberty was sought to withdraw the Revision with further

liberty to file fresh complaint. The liberty was not given and itwas observed that if there were new facts, the complainant, inlaw would be entitled to present new complaint and as suchthere was no need of any permission from the Court. TheRevisional Court was definitely referring to the law laid down bythis Court on the basis of the principles in Taluqdar. Thereafter acomplaint with new material in the form of credit note andRegistration Certificate was filed. The core allegations, however,remained the same. The only difference was that the secondcomplaint referred to additional material in support of the basicallegations. Again, in terms of principle laid down in para 50 ofTaluqdar as amplified in para 16 in Poonam Chand Jain, nothingwas stated as to why said additional material could not be obtainedwith reasonable diligence. [Para 15][1145 A-F]

3. As against the facts in Shivshankar, the present casestands on different footing. There was no legal infirmity in thefirst complaint filed in the present matter. The complaint wasfiled more than year after the sale of the vehicle which meantthe complainant had reasonable time at his disposal. The earliercomplaint was dismissed after the Judicial Magistrate found thatno prima facie case was made out; the earlier complaint was notdisposed of on any technical ground; the material adverted to inthe second complaint was only in the nature of supportingmaterial; and the material relied upon in the second complaintwas not such which could not have been procured earlier.Pertinently, the core allegations in both the complaints wereidentical. In the circumstances, the instant matter is completelycovered by the decision of this Court in Taluqdar as explained inJatinder Singh and Poonam Chand Jain. The High Court was thusnot justified in holding the second complaint to be maintainable.[Para 17][1146 F-H; 1147 A-B]

Pramatha Nath Taluqdar v. Saroj Ranjan Sarkar [1962]Suppl. SCR 297; Jatinder Singh & Ors. v. Ranjit Kaur(2001) 2 SCC 570 : [2001] 1 SCR 707; Poonam ChandJain and Anr. v. Fazru (2010) 2 SCC 631 : [2010] 2SCR 109; Udai Shankar Awasthi v. State of UttarPradesh & Anr. (2013) 2 SCC 435 : [2013] 3 SCR 935;

ARanvir Singh v. State of Haryana & Anr. (2009) 9 SCC642; Ravinder Singh v. Sukhbir Singh & Ors. (2013) 9SCC 245 : [2013] 1 SCR 243 – relied on.

Bindeshwari Prasad Singh v. Kali Singh (1997) 1 SCC57 : [1986] 2 SCR 771; Maj. Genl. A.S. Gauraya &BAnr. v. S.N. Thakur & Anr. (1986) 2 SCC 709;Shivshankar Singh v. State of Bihar (2012) 1 SCC 130: [2011] 13 SCR 247 – referred to.

Case Law Reference

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.367-368 of 2020.

From the Judgment and Order dated 12.02.2019 of the High Courtof Madhya Pradesh, Jabalpur in Criminal Revision No. 2996 of 2015Fwith Criminal Revision No. 2556 of 2016.

Devadatt Kamat, Sr. Adv., Pai Amit and Rajesh Inamdar, Advs.for the Appellants.

Ms. Pragati Neekhra, AAAG, Ms. Meenakshi Arora, Sr. Adv.,Rahul Kaushik, Vivek Singh and Swastic Dalal, Advs. for theGRespondents.

The Judgment of the Court was delivered by

UDAY UMESH LALIT, J.

1. Leave granted.

2. These appeals arise out of the common judgment and orderdated 12.02.2019 passed by the High Court[1] in Criminal Revision No.2996 of 2015 and Criminal Revision No. 2556 of 2016.

3. One G. S. Naidu, who owned Maruti-800 vehicle of 1995make, passed away on 12.12.2001 leaving behind his widow, three sonsand daughter (who was unmarried and has since then passed away).His second son (Complainant in the present matter) filed complaintagainst his brother (the third son of G. S. Naidu) and his wife, submittingas under:-

“3. It is submitted that the father of the complainant namely LateG.S. Naidu passed away on 12.12.2001. copy of the deathcertificate in this regard is enclosed herewith as Annexure A/1with this complaint.

4. It is submitted that on 2.11.2010, the aforesaid vehicle has beensold by the respondent by putting forged signatures of thecomplainant’s father on the Form 29 and 30 and also put forgedsignature on the affidavit annexed with Form No.29 and 30knowing fully well that Late G.S. Naidu has passed away on12.12.2001. true copy of Form No.29 and 30 and the affidavit isbeing filed herewith as Annexure A/2. It is submitted that on thedate when the vehicle was sold which was being owned by G. S.Naidu, the father of the complainant was no more.

5. It is submitted that respondent Nos. 1 and 2, in order to sell thevehicle, has forged the signature of Late G.S. Naidu knowing fullywell that he has passed away. It is also submitted that thedocuments which have been forged by the respondents have beensubsequently used for getting the benefit in the form of saleconsideration of the vehicle. The act of the respondents squarelycovers the offences punishable under Sections 409, 420, 467, 468and 471 of the IPC and therefore, the respondents are liable to bepunished accordingly. Hence, the present complaint is being filedbefore this Hon’ble Court.”

1 High Court of Madhya Pradesh, Principal Bench, Jabalpur

A4. The Complaint came up before the Judicial Magistrate FirstClass, Jabalpur, who, by his order dated 05.07.2013 concluded as under:-

“On the basis of evidence and document produced on behalf ofcomplainant it appears that no prima facie case is made out againstaccused Samta Naidu and Dilip Naidu.

Hence complaint under Section 203 Criminal Procedure Code isrejected and thereby dismissed.”

5. The complainant being aggrieved, filed Revision before the VIIIAdditional Sessions Judge, Jabalpur. On 05.03.2014 the Counsel for theComplainant submitted that he wished to withdraw the Revision withCliberty to file fresh complaint on the basis of certain new facts, whichrequest was opposed. After perusing the record and considering thesubmissions, the Revisional Court observed as under:-

“This is well settled position that new complaint can be filed anytime on the basis of new facts and for which purposes there is noDneed of permission of this Court or permission of any court.Because revisionist does not wish to press instant revision anymore, hence instant revision is dismissed on this ground alone.Revision Petition is thus disposed of accordingly.”

6. Thereafter, Complaint Case No. 9226 of 2014 was preferredEby the Complainant on same allegations but relying on additional materialadverted to in paragraphs 5, 6 and 7 of said Complaint, the materialwas:-

a) The credit note in the sum of Rs.37,500/- issued upon requestof the Appellants by the representatives of Standard Auto Agency,FJabalpur after valuing the vehicle.

b) The fact that said amount of Rs.37,500/- was thereafter adjustedtowards purchase of new vehicle in the name of the firstAppellant.

c) The Registration Certificate of the new vehicle issued in theGname of first Appellant.

d) Certified copies of said documents received from the office ofRTO, Jabalpur.

Based on the aforesaid documents, it was submitted thatHcognizance be taken of the offences punishable under Sections 201,

409, 420, 467, 468 and 471 of the Indian Penal Code, 1860 (for short,“IPC”).

7. On 02.08.2014, the Judicial Magistrate First Class Jabalpurtook cognizance in respect of offence punishable under Section 420 IPCbut rejected the Complaint with respect to other offences, which orderwas challenged by the Complainant by preferring Criminal RevisionNo.288 of 2014. Said Revision was allowed by the 9[th] Additional SessionsJudge, Jabalpur, by his order dated 02.11.2015 directing the Magistrateto reconsider the documents available on record and to pass appropriateorder for taking cognizance in regard to appropriate offences. Thisorder was challenged by the Appellants by filing Criminal RevisionNo.2996 of 2015 in the High Court.

8. During the pendency of the aforesaid Revision in the HighCourt, the matter was taken up and the Judicial Magistrate First Class,Jabalpur took cognizance of all offences alleged in the complaint.Thereafter, the Additional Sessions Judge – X by his order dated20.09.2016 framed charges against the Appellants in respect of offencespunishable under Sections 120-B, 420, 467, 468 and 471 of the IPC.This order led to the filing of Criminal Revision No.2556 of 2016 by theAppellants in the High Court. Both the aforesaid Criminal Revisionswere heard together by the High Court.

9. On the question, whether the second complaint was maintainableor not, the High Court relied upon the decision of this Court in PramathaNath Taluqdar vs. Saroj Ranjan Sarkar[2 ]and observed:-

“12. However, in the context of the instant case, when we comparethe two complaints, it is obvious that at the time of filing the firstcomplaint, the complainant seems to be aware only of the factthat accused persons Dilip and Samta had unilaterally sold carbelonging to G. Shankar Naidu and which, after his death, hadbecome joint family property. The complainant seems to haveacquired the knowledge of details of the transaction later.Therefore, subsequent complaint provides the particulars of thetransaction in far greater details.”

The High Court, thus, found no infirmity warranting interferenceand dismissed both the Revision Petitions.

2 AIR 1962 SC 876 = (1962) Supp 2 SCR 297

A10. While issuing notice in the present matters this Court directedthe Appellants to deposit sum of Rs.45,000/- (Rupees Forty FiveThousand Only) in the Registry of this Court within two weeks. Saidsum stands deposited in the Registry. This direction was passed so thatif any of the heirs of G. S. Naidu felt that his share in the property leftbehind by the deceased was not being given to him, the internal disputes/Bdifference between the members of the family could be sorted out. Butsuch suggestions were not acceptable to the Complainant.11. The parties thereafter exchanged pleadings and the matterwas heard. Mr. Devadatt Kamat, learned Senior Advocate, appeared insupport of the Appeal. Relying on the decision of this Court in Taluqdar[2],Che submitted that the High Court was in error in rejecting the RevisionApplications. Ms. Meenakshi Arora, learned Senior Advocate for therespondent-complainant also relied upon the same decision and otherdecisions referred to by the High Court, to submit that as new materialwas found, the second Complaint was rightly considered and takenDcognizance of.

12. The principal decision relied upon by both sides is one renderedby Bench of three Judges of this Court in Taluqdar[2]. Para 35 of themajority decision authored by Kapur, J. discloses that Complaint underSections 467 and 471 read with Section 109 of the IPC was preferredEon the allegations that an unregistered deed of agreement purportedlyexecuted on 19.01.1948, transfer deed in respect of 1000 sharespurportedly executed on 05.02.1951 and the minutes of proceedings ofthe Board meetings purporting to bear the signature of late Sri NaliniRanjan Sarkar were stated to have been forged. The Chief PresidencyMagistrate dismissed the complaint against which Revision was preferredFbefore the High Court of Calcutta. Said Revision Petition was dismissedand the matter was carried before this Court but the Appeal was dismissedas withdrawn. Thereafter, another complaint was brought under verysame Sections. The Chief Presidency Magistrate took cognizance ofsecond Complaint against which order, Revision was preferred in theGHigh Court of Calcutta. The matter came up before the Division Benchand the additional material projected in support of the submission thatthe second Complaint was maintainable was dealt with by the DivisionBench. The matter in that behalf was adverted to this Court as under:-

“In regard to the filing of second complaint it held that freshHcomplaint could be entertained after the dismissal of previous

complaint under Section 203 Criminal Procedure Code when therewas manifest error or manifest miscarriage of justice or whenfresh evidence was forthcoming. The Bench was of the opinionthat the fact in regard to the City Telephone Exchange was newmatter and because Pramode Ranjan Sarkar was not permittedto take photostat copy of the minutes-book, it was possible thathis attention was not drawn to the City Telephone Exchange whichwas not in existence at the relevant time and that there wassufficient reason for Pramode Ranjan Sarkar for not mentioningthe matter of City Exchange in his complaint. It also held that theprevious Chief Presidency Magistrate Mr Chakraborty hadaltogether ignored the evidence of large number of witnesseswho were competent to prove the handwriting and signature ofN.R. Sarkar and he had no good reasons for not accepting theirevidence. It could not be said therefore that there was judicialenquiry of the matter before the previous Chief PresidencyMagistrate; the decision was rather arbitrary and so resulted inmanifest miscarriage of justice. The Court was of the opiniontherefore that there was no reason to differ from the finding ofthe Chief Presidency Magistrate Mr Bijoyesh Mukerjee and thatthere was prima facie case against the appellants.”

12.1 The issue was considered by the majority judgment of thisCourt as under:-

“48. Under the Code of Criminal Procedure the subject of“Complaints to Magistrates” is dealt with in Chapter 16 of theCode of Criminal Procedure. The provisions relevant for thepurpose of this case are Sections 200, 202 and 203. Section 200deals with examination of complainants and Sections 202, 203and 204 with the powers of the Magistrate in regard to the dismissalof complaint or the issuing of process. The scope and extent ofSections 202 and 203 were laid down in Vadilal Panchal v.Dattatraya Dulaji Ghadigaonker[3]. The scope of enquiry underSection 202 is limited to finding out the truth or otherwise of thecomplaint in order to determine whether process should issue ornot and Section 203 lays down what materials are to be consideredfor the purpose. Under Section 203 Criminal Procedure Code thejudgment which the Magistrate has to form must be based on the

3 AIR 1960 SC 1113

Astatements of the complainant and of his witnesses and the resultof the investigation or enquiry if any. He must apply his mind tothe materials and form his judgment whether or not there issufficient ground for proceeding. Therefore if he has notmisdirected himself as to the scope of the enquiry made underSection 202, of the Criminal Procedure Code, and has judiciallyBapplied his mind to the material before him and then proceeds tomake his order it cannot be said that he has acted erroneously. Anorder of dismissal under Section 203, of the Criminal ProcedureCode, is, however, no bar to the entertainment of second complainton the same facts but it will be entertained only in exceptionalCcircumstances, e.g., where the previous order was passed on anincomplete record or on misunderstanding of the nature of thecomplaint or it was manifestly absurd, unjust or foolish or wherenew facts which could not, with reasonable diligence, have beenbrought on the record in the previous proceedings, have beenadduced. It cannot be said to be in the interests of justice thatDafter decision has been given against the complainant upon afull consideration of his case, he or any other person should begiven another opportunity to have his complaint enquired into. AllahDitto v. Karam Baksh[4]; Ram Narain Chaubey v. PanachandJain[5]; Hansabai Sayaji Payagude v. Ananda GanujiEPayagude[6 ]Doraisami v. Subramania[7]. In regard to the adducingof new facts for the bringing of fresh complaint the SpecialBench in the judgment under appeal did not accept the view ofthe Bombay High Court or the Patna High Court in the casesabove quoted and adopted the opinion of Maclean, C.J. in QueenEmpress v. Dolegobinda Das[8] affirmed by Full Bench inFDwarka Nath Mandal v. Benimadhas Banerji[9]. It held thereforethat fresh complaint can be entertained where there is manifesterror, or manifest miscarriage of justice in the previous order orwhen fresh evidence is forthcoming.”

12.2 It was observed in para 50 as under:-

4 AIR 1930 Lah 879

5 AIR 1949 Pat 256

6 AIR 1949 Bom 384

7 AIR 1918 Mad 484

8 ILR 28 Cal 211

H9 ILR 28 Cal 652 (FB)

“50. Taking first the question of fresh evidence, the view of someof the High Courts that it should be such that it could not withreasonable diligence have been adduced is, in our opinion, correctview of the law. It cannot be the law that the complainant mayfirst place before the Magistrate some of the facts and evidencein his possession and if he fails he can then adduce some moreevidence and so on. That in our opinion, is not correct view ofthe law.”

12.3 The majority judgment thus accepted the challenge, allowedthe Appeal and dismissed the Complaint with following observations:-

“61. In these circumstances, we are of the opinion that the bringingof the fresh complaint is gross abuse of the process of the Courtand is not with the object of furthering the interests of justice.

63. For these reasons we allow the appeals, set aside the order ofthe High Court and of the learned Chief Presidency Magistrateand dismiss the complaint.”

12.4 The dissenting opinion was expressed by S.K. Das, J.

13. The law declared in Taluqdar[2]has consistently been followed,for instance, in Bindeshwari Prasad Singh vs. Kali Singh[10] it wasobserved: “It is now well settled that second complaint can lie onlyon fresh facts or even on the previous facts only if special case ismade out”. The view taken in Bindeshwari[10 ]was followed in Maj.Genl. A.S. Gauraya and another vs. S.N. Thakur and another[11].

13.1 In Jatinder Singh and Others vs. Ranjit Kaur[12 ]the issuewas whether the first complaint having been dismissed for default, couldthe second complaint be maintained. The matter was considered as under:-

“9. There is no provision in the Code or in any other statute whichdebars complainant from preferring second complaint on thesame allegations if the first complaint did not result in convictionor acquittal or even discharge. Section 300 of the Code, whichdebars second trial, has taken care to explain that “the dismissal

of complaint, or the discharge of the accused, is not an acquittal

10 (1997) 1 SCC 57

11 (1986) 2 SCC 709

12 (2001) 2 SCC 570

for the purposes of this section”. However, when Magistrateconducts an inquiry under Section 202 of the Code and dismissesthe complaint on merits, second complaint on the same factscannot be made unless there are very exceptional circumstances.Even so, second complaint is permissible depending upon howthe complaint happened to be dismissed at the first instance.

12. If the dismissal of the complaint was not on merit but on defaultof the complainant to be present there is no bar in the complainant movingthe Magistrate again with second complaint on the same facts. But ifCthe dismissal of the complaint under Section 203 of the Code was onmerits the position could be different. There appeared difference ofopinion earlier as to whether second complaint could have been filedwhen the dismissal was under Section 203. The controversy was settledby this Court in Pramatha Nath Talukdar v. Saroj Ranjan Sarkar[2]. Amajority of Judges of the three-Judge Bench held thus:D

“An order of dismissal under Section 203, Criminal ProcedureCode, is, however, no bar to the entertainment of second complainton the same facts but it will be entertained only in exceptionalcircumstances, e.g., where the previous order as passed on anincomplete record or on misunderstanding of the nature of theEcomplaint or it was manifestly absurd, unjust or foolish or wherenew facts which could not, with reasonable diligence, have beenbrought on the record in the previous proceedings, have beenadduced. It cannot be said to be in the interest of justice that aftera decision has been given against the complaint upon fullFconsideration of his case, he or any other person should be givenanother opportunity to have his complaint inquired into.”

S.K. Das, J. (as he then was) while dissenting from the saidmajority view had taken the stand that right of complainant tofile second complaint would not be inhibited even by suchGconsiderations. But at any rate the majority view is that the secondcomplaint would be maintainable if the dismissal of the firstcomplaint was not on merits.”

(Emphasis supplied)

13.2. In Ranvir Singh vs. State of Haryana and Another[13] theissue was set out in para 23 of the decision and the discussion thatfollowed thereafter was as under:-

“23. In the instant case, the question is narrowed down further asto whether such second complaint would be maintainable whenthe earlier one had not been dismissed on merits, but for the failureof the complainant to put in the process fees for effecting service.

24. The answer has been provided firstly in Pramatha NathTalukdar case[2], wherein this Court had held that even if acomplaint was dismissed under Section 203 CrPC, secondcomplaint would still lie under exceptional circumstances, indicatedhereinbefore. The said view has been consistently upheld insubsequent decisions of this Court. Of course, the question ofmaking prayer for recalling the order of dismissal would not bemaintainable before the learned Magistrate in view of Section362 CrPC, but such is not the case in these special leave petitions.

25. In the present cases, neither have the complaints been dismissedon merit nor have they been dismissed at the stage of Section 203CrPC. On the other hand, only on being satisfied of prima faciecase, the learned Magistrate had issued process on the complaint.

26. The said situation is mainly covered by the decision of thisCourt in Jatinder Singh case[12], wherein the decision in PramathaNath Talukdar case[2] was also taken into consideration and itwas categorically observed that in the absence of any provision inthe Code barring second complaint being filed on the sameallegation, there would be no bar to second complaint being filedon the same facts if the first complaint did not result in theconviction or acquittal or even discharge of the accused, and ifthe dismissal was not on merit but on account of default on thepart of the complainant.”

13.3. In Poonam Chand Jain and Another vs. Fazru[14 ]the issuewhether after the dismissal of the earlier complaint had attained finality,could second complaint be maintained on identical facts was consideredas under:-

13 (2009) 9 SCC 64214 (2010) 2 SCC 631

“14. In the background of these facts, the question which cropsup for determination by this Court is whether after an order ofdismissal of complaint attained finality, the complainant can fileanother complaint on almost identical facts without disclosing inthe second complaint the fact of either filing of the first complaintor its dismissal.

15. Almost similar questions came up for consideration beforethis Court in Pramatha Nath Talukdar v. Saroj Ranjan Sarkar[2].The majority judgment in Pramatha Nath[2] was delivered by Kapur,J. His Lordship held that an order of dismissal under Section 203of the Criminal Procedure Code (for short “the Code”) is, however,no bar to the entertainment of second complaint on the samefacts but it can be entertained only in exceptional circumstances.This Court explained the exceptional circumstances as:

(a) where the previous order was passed on incomplete record,or

(b) on misunderstanding of the nature of the complaint, or(c) the order which was passed was manifestly absurd, unjustor foolish, or

(d) where new facts which could not, with reasonable diligence,have been brought on the record in the previous proceedings.

16. This Court in Pramatha Nath2made it very clear that interestof justice cannot permit that after decision has been given on acomplaint upon full consideration of the case, the complainantshould be given another opportunity to have the complaint enquiredFinto again. In para 50 of the judgment the majority judgment ofthis Court opined that fresh evidence or fresh facts must be suchwhich could not with reasonable diligence have been brought onrecord. This Court very clearly held that it cannot be settled lawwhich permits the complainant to place some evidence before theMagistrate which are in his possession and then if the complaintGis dismissed adduce some more evidence. According to this Court,such course is not permitted on correct view of the law. (para50, p. 899)

17. This question again came up for consideration before this Courtin Jatinder Singh v. Ranjit Kaur[12]. There also this Court by

relying on the principle in Pramatha Nath[2] held that there is noprovision in the Code or in any other statute which debars acomplainant from filing second complaint on the same allegationas in the first complaint. But this Court added when Magistrateconducts an enquiry under Section 202 of the Code and dismissesa complaint on merits second complaint on the same facts couldnot be made unless there are “exceptional circumstances”. ThisCourt held in para 12, if the dismissal of the first complaint is noton merit but the dismissal is for the default of the complainantthen there is no bar in filing second complaint on the same facts.However, if the dismissal of the complaint under Section 203 ofthe Code was on merit the position will be different.

18. Saying so, the learned Judges in Ranjit Kaur[12] held that thecontroversy has been settled by this Court in Pramatha Nath[2]and quoted the observation of Kapur, J. in para 48 of PramathaNath[2]: (AIR p. 899, para 48)

“48. … An order of dismissal under Section 203 of the CriminalProcedure Code, is, however, no bar to the entertainment of asecond complaint on the same facts but it will be entertainedonly in exceptional circumstances e.g. where the previous orderwas passed on an incomplete record or on misunderstandingof the nature of the complaint or it was manifestly absurd,unjust or foolish or where new facts which could not, withreasonable diligence, have been brought on the record in theprevious proceedings, have been adduced. It cannot be said tobe in the interest of justice that after decision has been givenagainst the complainant upon full consideration of his case,he or any other person should be given another opportunity tohave his complaint enquired into.”

19. Again in Mahesh Chand v. B. Janardhan Reddy[15], three-Judge Bench of this Court considered this question in para 19 atp. 740 of the Report. The learned Judges of this Court held that asecond complaint is not completely barred nor is there any statutorybar in filing second complaint on the same facts in case wherea previous complaint was dismissed without assigning any reason.The Magistrate under Section 204 of the Code can take cognizanceof an offence and issue process if there is sufficient ground for

15 AIR 2003 SC 702

Aproceeding. In Mahesh Chand[15] this Court relied on the ratio inPramatha Nath[2] and held if the first complaint had been dismissedthe second complaint can be entertained only in exceptionalcircumstances and thereafter the exceptional circumstancespointed out in Pramatha Nath[2] were reiterated. Therefore, thisCourt holds that the ratio in Pramatha Nath[2] is still holding theBfield. The same principle has been reiterated once again by thisCourt in Hira Lal v. State of U.P.[16] In para 14 of the judgmentthis Court expressly quoted the ratio in Mahesh Chand[15]discussed hereinabove.

20. Following the aforesaid principles which are more or less settledCand are holding the field since 1962 and have been repeatedlyfollowed by this Court, we are of the view that the second complaintin this case was on almost identical facts which was raised in thefirst complaint and which was dismissed on merits. So the secondcomplaint is not maintainable. This Court finds that the core ofDboth the complaints is the same. Nothing has been disclosed in thesecond complaint which is substantially new and not disclosed infirst complaint. No case is made out that even after the exerciseof due diligence the facts alleged in the second complaint werenot within the of the first complainant. In fact, such case couldnot be made out since the facts in both the complaints are almostEidentical. Therefore, the second complaint is not covered withinexceptional circumstances explained in Pramatha Nath[2]. In thatview of the matter the second complaint in the facts of this case,cannot be entertained.”

(Emphasised supplied)

13.4. In Udai Shankar Awasthi vs. State of Uttar Pradeshand Another[17], where the earlier complaint was dismissed after theexamination of witnesses on behalf of complainant, the matter was dealtwith as under:-

G“47. The instant appeals are squarely covered by the observationsmade in Kishan Singh[18] and thus, the proceedings must be labelledas nothing more than an abuse of the process of the court,

16 (2009) 11 SCC 8917 (2013) 2 SCC 435H18 (2010) 8 SCC 775 (Kishan Singh vs. Gurpal Singh)

particularly in view of the fact that, with respect to enact thesame subject-matter, various complaint cases had already beenfiled by Respondent 2 and his brother, which were all dismissedon merits after the examination of witnesses. In such factsituation, Complaint Case No. 628 of 2011 filed on 31-5-2001 wasnot maintainable. Thus, the Magistrate concerned committed agrave error by entertaining the said case, and wrongly tookcognizance and issued summons to the appellants.”

13.5. In Ravinder Singh vs. Sukhbir Singh and Others[19] thematter was considered from the standpoint whether frustrated litigantbe permitted to give vent to his frustration and whether person bepermitted to unleash vendetta to harass any person needlessly. Thediscussion was as under:-

“26. While considering the issue at hand in Shivshankar Singhv. State of Bihar[20] this Court, after considering its earlier judgmentsin Pramatha Nath Talukdar v. Saroj Ranjan Sarkar[2], JatinderSingh v. Ranjit Kaur[12], Mahesh Chand v. B. JanardhanReddy[15] and Poonam Chand Jain v. Fazru[21] held: (ShivshankarSingh case[20], SCC p. 136, para 18)

“18. … it is evident that the law does not prohibit filing orentertaining of the second complaint even on the same factsprovided the earlier complaint has been decided on the basisof insufficient material or the order has been passed withoutunderstanding the nature of the complaint or the complete factscould not be placed before the court or where the complainantcame to know certain facts after disposal of the first complaintwhich could have tilted the balance in his favour. However,second complaint would not be maintainable wherein the earliercomplaint has been disposed of on full consideration of thecase of the complainant on merit.”27. In Chandrapal Singh v. Maharaj Singh[22] this Court hasheld that it is equally true that chagrined and frustrated litigantsshould not be permitted to give vent to their frustration by enablingthem to invoke the jurisdiction of criminal courts in cheap manner.

19 (2013) 9 SCC 24520 (2012) 1 SCC 130

21 (2004) 13 SCC 269

22 (1982) 1 SCC 466

AIn such fact situation, the court must not hesitate to quash criminalproceedings.

33. The High Court has dealt with the issue involved herein andthe matter stood closed at the instance of Respondent 1 himself.BTherefore, there can be no justification whatsoever to launchcriminal prosecution on that basis afresh. The inherent power ofthe court in dealing with an extraordinary situation is in the largerinterest of administration of justice and for preventing manifestinjustice being done. Thus, it is judicial obligation on the court toCundo wrong in course of administration of justice and to preventcontinuation of unnecessary judicial process. It may be sonecessary to curb the menace of criminal prosecution as aninstrument of operation of needless harassment. person cannotbe permitted to unleash vendetta to harass any person needlessly.Ex debito justitiae is inbuilt in the inherent power of the courtDand the whole idea is to do real, complete and substantial justicefor which the courts exist. Thus, it becomes the paramount dutyof the court to protect an apparently innocent person, not to besubjected to prosecution on the basis of wholly untenablecomplaint.”

E14. The application of the principles laid down in Taluqdar[2] inJatinder Singh[12] shows that “a second complaint is permissibledepending upon how the complaint happened to be dismissed atthe first instance”. It was further laid down that “if the dismissal ofthe complaint was not on merit but on default of the complainant toFbe present there is no bar in the complainant moving the Magistrateagain with second complaint on the same facts. But if the dismissalof the complaint under Section 203 of the Code was on merits theposition could be different”.

To similar effect are the conclusions in Ranvir Singh[13] andPoonam Chand Jain[14]. Para 16 of the Poonam Chand Jain[14] alsoGconsidered the effect of para 50 of the majority judgment in Talukdar[2].These cases, therefore, show that if the earlier disposal of the complaintwas on merits and in manner known to law, the second complaint on“almost identical facts” which were raised in the first complaint wouldnot be maintainable. What has been laid down is that “if the core of

both the complaints is same”, the second complaint ought not to beentertained.

15. If the facts of the present matter are considered in the light ofthese principles, it is clear that paragraphs 3, 4 and 5 in the first complaintcontained the basic allegations that the vehicle belonging to the fatherwas sold after the death of the father; that signatures of the father onForm 29 and 30 were forged; that signatures on the affidavit annexedwith Form 29 and 30 were also forged; and that on the basis of suchforged documents the benefit of “sale consideration of the vehicle”was derived by the accused. The order dated 5.7.2013 passed by theJudicial Magistrate First Class, shows that after considering the evidenceand documents produced on behalf of the complainant, no primafaciecase was found and the complaint was rejected under Section 203 ofthe Code of Criminal Procedure, 1973. The stand taken before theRevisional Court discloses that at that stage some new facts were saidto be in possession of the complainant and as such liberty was sought towithdraw the Revision with further liberty to file fresh complaint. Theliberty was not given and it was observed that if there were new facts,the complainant, in law would be entitled to present new complaint andas such there was no need of any permission from the Court. TheRevisional Court was definitely referring to the law laid down by thisCourt on the basis of the principles in Taluqdar[2]. Thereafter complaintwith new material in the form of credit note and Registration Certificatewas filed. The core allegations, however, remained the same. The onlydifference was that the second complaint referred to additional materialin support of the basic allegations. Again, in terms of principle laid downin para 50 of Taluqdar[2] as amplified in para 16 in Poonam ChandJain[14], nothing was stated as to why said additional material could notbe obtained with reasonable diligence.

16. Reliance was, however, placed by Ms. Meenakshi Arora,learned Senior Advocate, on para 18 of the decision of this Court inShivshankar Singh[20].In that case Protest Petition was filed by thecomplainant even before final report was filed by the police. Whilesaid Protest Petition was pending consideration, the final report wasfiled, whereafter second Protest Petition was filed. Challenge raised bythe accused that the second Protest Petition was not maintainable, wasaccepted by the High Court. In the light of these facts the matter cameto be considered by this Court as under:-

A“7. Shri Gaurav Agrawal, learned counsel appearing for theappellant has submitted that the High Court failed to appreciatethat the so-called first protest petition having been filed prior tothe filing of the final report was not maintainable and just has tobe ignored. The learned Magistrate rightly did not proceed on thebasis of the said protest petition and it remained merely documentBin the file. The second petition was the only protest petition whichcould be entertained as it had been filed subsequent to the filing ofthe final report…......

18. Thus, it is evident that the law does not prohibit filing orentertaining of the second complaint even on the same factsCprovided the earlier complaint has been decided on the basis ofinsufficient material or the order has been passed withoutunderstanding the nature of the complaint or the complete factscould not be placed before the court or where the complainantcame to know certain facts after disposal of the first complaintDwhich could have tilted the balance in his favour. However, thesecond complaint would not be maintainable wherein the earliercomplaint has been disposed of on full consideration of the caseof the complainant on merit.19. The protest petition can always be treated as complaint andEproceeded with in terms of Chapter XV CrPC. Therefore, in casethere is no bar to entertain second complaint on the same facts,in exceptional circumstances, the second protest petition can alsosimilarly be entertained only under exceptional circumstances. Incase the first protest petition has been filed without furnishing thefull facts/particulars necessary to decide the case, and prior to itsFentertainment by the court, fresh protest petition is filed givingfull details, we fail to understand as to why it should not bemaintainable.” (Emphasis supplied)

17. As against the facts in Shivshankar[20], the present case standson different footing. There was no legal infirmity in the first complaintGfiled in the present matter. The complaint was filed more than yearafter the sale of the vehicle which meant the complainant had reasonabletime at his disposal. The earlier complaint was dismissed after the JudicialMagistrate found that no prima facie case was made out; the earliercomplaint was not disposed of on any technical ground; the materialHadverted to in the second complaint was only in the nature of supporting

material; and the material relied upon in the second complaint was notsuch which could not have been procured earlier. Pertinently, the coreallegations in both the complaints were identical. In the circumstances,the instant matter is completely covered by the decision of this Court inTaluqdar[2 ]as explained in Jatinder Singh[12] and Poonam ChandJain[14]. The High Court was thus not justified in holding the secondcomplaint to be maintainable.

18. In the aforesaid premises, we allow these appeals, set asidethe decision of the High Court and dismiss Complaint Case No.9226 of2014 as not being maintainable. The amount deposited by the appellantsshall now be returned to them along with any interest accrued thereon.

Ankit Gyan

Appeals allowed