On the question, whether the second complaint was maintainable or not ?
The Hon’ble Supreme Court cited several judgments passed by the other benches of Supreme Court and also discussed in the matter of Samta Naidu vs The State Of Madhya Pradesh
The principal decision relied upon by both sides is one rendered by a Bench of three Judges of this Court in Taluqdar2. Para 35 of the majority decision authored by Kapur, J. discloses that a Complaint under Sections 467 and 471 read with Section 109 of the IPC was preferred on the allegations that an unregistered deed of agreement purportedly executed on 19.01.1948, a transfer deed in respect of 1000 shares purportedly executed on 05.02.1951 and the minutes of proceedings of the Board meetings purporting to bear the signature of late Sri Nalini Ranjan Sarkar were stated to have been forged. The Chief Presidency Magistrate dismissed the complaint against which Revision was preferred before the High Court of Calcutta. Said Revision Petition was dismissed and the matter was carried before this Court but the Appeal was dismissed as withdrawn. Thereafter, another complaint was brought under very same Sections. The Chief Presidency Magistrate took cognizance of second Complaint against which order, Revision was preferred in the High Court of Calcutta. The matter came up before the Division Bench and the additional material projected in support of the submission that the second
Complaint was maintainable was dealt with by the Division Bench. The matter in that behalf was adverted to this Court as under:-
“In regard to the filing of a second complaint it held that a fresh complaint could be entertained after the dismissal of previous complaint under Section 203 Criminal Procedure Code when there was manifest error or manifest miscarriage of justice or when fresh evidence was forthcoming. The Bench was of the opinion that the fact in regard to the City Telephone Exchange was a new matter and because Pramode Ranjan Sarkar was not permitted to take a photostat copy of the minutes-book, it was possible that his attention was not drawn to the City Telephone Exchange which was not in existence at the relevant time and that there was sufficient reason for Pramode Ranjan Sarkar for not mentioning the matter of City Exchange in his complaint. It also held that the previous Chief Presidency Magistrate Mr Chakraborty had altogether ignored the evidence of a large number of witnesses who were competent to prove the handwriting and signature of N.R. Sarkar and he had no good reasons for not accepting their evidence. It could not be said therefore that there was a judicial enquiry of the matter before the previous Chief Presidency Magistrate; the decision was rather arbitrary and so resulted in manifest miscarriage of justice. The Court was of the opinion therefore that there was no reason to differ from the finding of the Chief Presidency Magistrate Mr Bijoyesh Mukerjee and that there was a prima facie case against the appellants.” 12.1 The issue was considered by the majority judgment of this Court as under:-
“48. Under the Code of Criminal Procedure the subject of “Complaints to Magistrates” is dealt with in Chapter 16 of the Code of Criminal Procedure.
The provisions relevant for the purpose of this case are Sections 200, 202 and 203. Section 200 deals
with examination of complainants and Sections 202, 203 and 204 with the powers of the Magistrate in regard to the dismissal of complaint or the issuing of process. The scope and extent of Sections 202 and 203 were laid down in Vadilal Panchal v. Dattatraya Dulaji Ghadigaonker3.
The scope of enquiry under Section 202 is limited to finding out the truth or otherwise of the complaint in order to determine whether process should issue or not and Section 203 lays down what materials are to be considered for the purpose. Under Section 203 Criminal Procedure Code the judgment which the Magistrate has to form must be based on the statements of the complainant and of his witnesses and the result of the investigation or enquiry if any. He must apply his mind to the materials and form his judgment whether or not there is sufficient ground for proceeding. Therefore if he has not misdirected himself as to the scope of the enquiry made under Section 202, of the Criminal Procedure Code, and has judicially applied his mind to the material before him and then proceeds to make his order it cannot be said that he has acted erroneously. An order of dismissal under Section 203, of the Criminal Procedure Code, is, however, no bar to the entertainment of a second complaint on the same facts but it will be entertained only in exceptional circumstances, e.g., where the previous order was passed on an incomplete record or on a misunderstanding of the nature of the complaint or it was manifestly absurd, unjust or foolish or where new facts which could not, with reasonable diligence, have been brought on the record in the previous proceedings, have been adduced. It cannot be said to be in the interests of justice that after a decision has been given against the complainant upon a full consideration of his case, he or any other person should be given another opportunity to have his complaint enquired into. Allah Ditto v. Karam Baksh4; Ram Narain Chaubey v. Panachand Jain5;
Hansabai Sayaji Payagude v. Ananda Ganuji AIR 1960 SC 1113 AIR 1930 Lah 879 AIR 1949 Pat 256
Criminal Appeal Nos.367-368 of 2020 @ SLP(Crl.)Nos.4418-4419 of 2020 Samta Naidu & Anr. Vs. State of Madhya Pradesh and Anr.
Payagude6 Doraisami v. Subramania7. In regard to the adducing of new facts for the bringing of a fresh complaint the Special Bench in the judgment under appeal did not accept the view of the Bombay High Court or the Patna High Court in the cases above quoted and adopted the opinion of Maclean, C.J. in Queen Empress v. Dolegobinda Das8 affirmed by a Full Bench in Dwarka Nath Mandal v. Benimadhas Banerji9. It held therefore that a fresh complaint can be entertained where there is manifest error, or manifest miscarriage of justice in the previous order or when fresh evidence is forthcoming.” 12.2 It was observed in para 50 as under:-
“50. Taking first the question of fresh evidence, the view of some of the High Courts that it should be such that it could not with reasonable diligence have been adduced is, in our opinion, a correct view of the law. It cannot be the law that the complainant may first place before the Magistrate some of the facts and evidence in his possession and if he fails he can then adduce some more evidence and so on.
That in our opinion, is not a correct view of the law.” 12.3 The majority judgment thus accepted the challenge, allowed the Appeal and dismissed the Complaint with following observations:-
“61. In these circumstances, we are of the opinion that the bringing of the fresh complaint is a gross abuse of the process of the Court and is not with the object of furthering the interests of justice.
… … …
In the Samta Naidu & Anr. Vs. State of Madhya Pradesh and Anr.
19. The protest petition can always be treated as a complaint and proceeded with in terms of Chapter XV CrPC. Therefore, in case there is no bar to entertain a second complaint on the same facts, in exceptional circumstances, the second protest petition can also similarly be entertained only under exceptional circumstances. In case the first protest petition has been filed without furnishing the full facts/particulars necessary to decide the case, and prior to its entertainment by the court, a fresh protest petition is filed giving full details, we fail to understand as to why it should not be maintainable.” (Emphasis supplied)
17. As against the facts in Shivshankar20, the present case stands on a different footing. There was no legal infirmity in the first complaint filed in the present matter. The complaint was filed more than a year after the sale of the vehicle which meant the complainant had reasonable time at his disposal. The earlier complaint was dismissed after the Judicial Magistrate found that no prima facie case was made out; the earlier complaint was not disposed of on any technical ground; the material adverted to in the second complaint was only in the nature of supporting material; and the material relied upon in the second complaint was not such which could not have been procured earlier. Pertinently, the core allegations in both the complaints were identical. In the circumstances, the instant matter is completely covered by the decision of this Court in Taluqdar2 as explained
in Jatinder Singh12 and Poonam Chand Jain14. The High Court was thus not justified in holding the second complaint to be maintainable.
18. In the aforesaid premises, we allow these appeals, set aside the decision of the High Court and dismiss Complaint Case No.9226 of 2014 as not being maintainable. The amount deposited by the appellants shall now be returned to them along with any interest accrued thereon.