K.G. Shankar, J.@mdashThe order dated 03-8-2012 in Crl.M.P. No. 2250 of 2011 in C.C. No. 614 of 2004 on the file of the II Additional Chief Metropolitan Magistrate, Hyderabad, is assailed through the present revision. The petitioner, who is accused No. 1, laid the petition under Sections 227, 239, 245 and 258 Cr.P.C. for his discharge in C.C. No. 614 of 2004. Through a detailed order, the learned II Additional Chief Metropolitan Magistrate, Hyderabad, dismissed Crl.M.P. No. 2250 of 2011. A private complaint was lodged by one Shyam Sunder Bung before the IV Metropolitan Magistrate, Hyderabad, alleging that 3 accused committed offences under Sections 468, 471, 476, 477A, 419 and 420 IPC. Accused No. 1, who is the petitioner herein, is the authorized representative of M/s. Mantri Finstock Limited (Accused No. 2), Hyderabad Branch. He looks after the affairs of accused No. 2. It is the case of the de facto complainant that accused No. 1 is involved in the day to day transaction on behalf of accused No. 2. Accused No. 2 is a Member of Mumbai Stock Exchange. Accused No. 3 is the Managing Director of accused No. 2.
2. The de facto complainant is a dealer in stocks and shares. It is his case that he purchased 5,000 shares of M/s. Goldstone Engineering Limited, through accused No. 2 in July, 1996. The shares were handed over to the de facto complainant in August, 1996. The total value of the shares purchased by the de facto complainant is Rs. 80,000/-. It is alleged that accused No. 1 personally sold the shares to the de facto complainant through accused No. 2. The de facto complainant sold 1,200 equity shares in September, 1996 and January, 1997 through accused No. 2. He retained the balance of 3,800 equity shares with him.
3. It is the case of the de facto complainant that accused No. 1, after selling the shares through accused No. 2 to him, obtained duplicate share certificates from M/s. Goldstone Engineering Limited. The accused 1 to 3 allegedly conspired thereafter and sold duplicate shares in open market to third parties forging the signature of the de facto complainant and thus deceived him causing loss of lakhs of rupees to him.
4. The very complaint is surprising. From the averments, it appears that the de facto complainant did not suffer from any loss. It is the innocent third parties who allegedly suffered in the hands of the accused. When the accused obtained duplicate share certificates, no loss could be caused to the de facto complainant. When they sold the same by forging the signature of the de facto complainant, it is the innocent purchasers who would ultimately suffer. Perhaps, the de facto complainant has no cause of action and no locus standi to file the present complaint.
5. Be that as it is, the case was taken on file and was numbered as C.C. 614 of 2004. Accused No. 3 subsequently filed the petition before the trial court in Crl.M.P. No. 6452 of 2010 seeking for his discharge. The petition was dismissed by the trial court on 31-12-2010. By then, C.C. No. 614 of 2004 came up before the II Additional Chief Metropolitan Magistrate, Hyderabad. When the discharge petition was dismissed, the petitioner moved Crl.R.C. No. 116 of 2011. Through a detailed and exhaustive order, this Court found that it is not a fit case for the discharge of accused No. 3 and consequently dismissed the revision. Accused No. 1 in his turn filed a petition before the trial court for his discharge through Crl.M.P. No. 6453 of 2010. The same was dismissed by the trial court through order dated 31-12-2010 on which date, Crl.M.P. No. 6452 of 2010 filed by accused No. 3 was dismissed. Accused No. 1 preferred Crl.R.C. No. 117 of 2011 before this Court. Through orders dated 25-3-2011, this Court dismissed the revision following the decision of this Court in Crl.R.C. No. 116 of 2011. Thus, the discharge petitions of both the petitioners were dismissed. Subsequently, the accused 2 and 3 would appear to have entered into a compromise with the de facto complainant. Consequently, on 26-7-2011, the trial court recorded the compounding of the case between the de facto complainant on the one side and the accused 2 and 3 on the other side filed through Crl.M.P. No. 1961 of 2011 and acquitted the accused 2 and 3. Subsequently, the present petitioner laid a fresh petition in Crl.M.P. No. 2250 of 2011 under Sections 227, 239, 245 and 252 Cr.P.C. for his discharge on the ground that the other accused were already acquitted. The trial court dismissed the petition.
6. Sri Sharad Sanghi, learned counsel for the petitioner, contended that when a case is compounded, the offence is compounded as a whole since Sections 320(1) and 320(2) Cr.P.C. envisages that it is the offence that is compounded and not the accused. Indeed, Section 320(8) Cr.P.C. points out that the composition of an offence u/s 320 Cr.P.C. shall have the effect of acquittal of the accused "with whom the offence has been compounded". However, the accused with whom the offence has been compounded cannot be read to mean that the offence can be compounded against individual accused, so much so, the offence remains in force as against the other accused; because what is compounded is not an offence committed by an individual accused but the very offence itself. When the trial court recorded compounding of the offence it should have acquitted all the accused.
7. It is the case of the learned counsel for the petitioner-accused No. 1 that as the offence was compounded against the accused 2 and 3 by the trial court, it is deemed to have been compounded against accused No. 1 as well and that proceeding against accused No. 1 by the trial court is not permissible.
8. Sri S. Ashok Anand Kumar, learned counsel for the de facto complainant, on the other hand, contended that there was no composition of the offence in this case and that at any rate, where the overt acts against accused No. 1 can be segregated from the overt acts against the accused 2 and 3, mere compounding of the offence against the accused 2 and 3 does not enure to the benefit of accused No. 1. He further pointed out that the docket order of the trial court dated 26-7-2011 under which the accused 2 and 3 were acquitted was in a petition filed u/s 257 Cr.P.C.
9. Section 257 Cr.P.C. envisages that a complainant, with the permission of the concerned Magistrate may withdraw the complaint against all or some of the accused. It would appear that Crl.M.P. No. 1961 of 2011 was laid before the trial court by the de facto complainant u/s 257 Cr.P.C. However, the docket order dated 26-7-2011 reads that the petition was filed u/s 320 Cr.P.C. and that it was endorsed on the complaint that the complainant was not pressing the case against the accused 2 and 3 by invocation of Section 257 Cr.P.C. If the de facto complainant had filed a petition u/s 257 Cr.P.C., the petitioner complaining that the acquittal of the accused 2 and 3 shall lead to the acquittal of the petitioner would not arise as Section 257 Cr.P.C. empowers a complainant to withdraw the complaint against all or some of the accused only. However, the docket order itself shows that the petition was laid u/s 320 Cr.P.C. and that it was for the compounding of the offences, albeit against the accused 2 and 3.
10. Another curious factor brought to my notice by the learned counsel for the de facto complainant is that the petition in Crl.M.P. No. 2250 of 2011 was not u/s 320 Cr.P.C. or even u/s 257 Cr.P.C. The petition sought for the discharge of the present petitioner but not for the acquittal of the present petitioner. The learned counsel for the petitioner, however, now contends that as the case was compounded against the accused 2 and 3, it is liable to be compounded against accused No. 1 as well.
11. In the ordinary circumstances, where the petition was for discharge and where such a discharge is not permissible, the trial court would be justified in dismissing the petition. A revision assailing such an order is also worthy to be dismissed. More or less, the request to stop proceedings was sought for through orders in Crl.M.P. No. 2250 of 2011, as it was a petition laid u/s 258 Cr.P.C. apart from under Sections 227, 239 and 245 Cr.P.C. In any event, it is evident that it was not a petition u/s 320 Cr.P.C. Where the trial court considered that the case against the accused 2 and 3 alone was acquitted and the case against the present petitioner-accused No. 1 was pending adjudication, the trial court perhaps was justified in dismissing the petition.
12. However, there is an important hitch in this case. When the accused 2 and 3 were acquitted on account of compounding of the case, it automatically enures in favour of accused No. 1. Accused No. 1 also would stand acquitted by virtue of the compounding of the offences against the accused 2 and 3. The learned counsel for the de facto complainant strenuously contended that the offence against accused No. 1 is different from the offences alleged against the accused 2 and 3 and that the specific overt acts against accused No. 1 are attributed in the complaint, so much so, trial independently can proceed against accused No. 1. Indeed, specific overt acts were attributed to accused No. 1 in the complaint. Assuming that the de facto complainant withdrew the complaint against the accused 2 and 3 u/s 257 Cr.P.C., the complaint would nevertheless be maintainable against accused No. 1. What would be the result of such withdrawal on the case of accused No. 1 is a different matter altogether.
13. However, it is not a case of withdrawal against the accused 2 and 3. The docket order dated 26-7-2011 shows that the compounding petition was filed u/s 320 Cr.P.C. There is nothing on record to show that such a compounding petition was rejected by the trial court. I therefore consider that the trial court acquitted the accused 2 and 3 in view of the compounding of the offence. Once the offence stands compounded, no one can be prosecuted under the offence as Section 320 Cr.P.C. permits the compounding of the offence but not the compounding of the offence against individual accused. The offence is compounded as a whole or is not compounded. If it is the case that some of the accused were either acquitted or discharged, the remaining accused cannot invoke Section 320 Cr.P.C. albeit Section 257 Cr.P.C. may come to their rescue in certain cases.
14. The learned counsel for the de facto complainant placed reliance
15. The learned counsel for the de facto complainant also placed reliance upon
16. In the present case, the offence was indeed compounded. Consequently, the compounding of the offence through the docket order dated 26-7-2011 enures to the present petitioner as well. The trial court however was not justified in dismissing the petition where the petition, inter alia, was laid u/s 258 Cr.P.C. In view of Section 320 Cr.P.C. and in view of Section 257 Cr.P.C., I deem it appropriate to allow the revision acquitting the petitioner-accused No. 1 of the offences levelled against him. Accordingly, this revision is allowed. The impugned order is set aside. The petitioner-accused No. 1 is acquitted of the offences levelled against him in view of the composition of the offences by the de facto complainant against the accused 2 and 3.
