Allahabad High Court
Amarjeet Singh Taneja vs State Of U.P. And Anr. on 21 May, 2018
Equivalent citations: AIRONLINE 2018 ALL 2210, (2018) 2 ALLCRIR 1507, 2018 (7) ADJ 4 NOC, 2019 (109) ACC (SOC) 63 (ALL)
Author: Saumitra Dayal Singh
Bench: Saumitra Dayal Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Order Reserved on 17.05.2018 Order Delivered on 21.05.2018 Court No. - 49 Case :- APPLICATION U/S 482 No. - 6925 of 2018 Applicant :- Amarjeet Singh Taneja Opposite Party :- State Of U.P. And Anr. Counsel for Applicant :- Siddhartha Srivastava Counsel for Opposite Party :- G.A.,Sudeep Harkauli Hon'ble Saumitra Dayal Singh,J.
Heard Sri Navin Sinha, learned Senior Advocate assisted by Sri Siddhartha Srivastava (in application U/S 482 Cr.P.C. No. 6925 of 2018) and Sri Subodh Kumar alongwith Sri Udit Chandra, learned counsel for the applicant (in Application U/S 482 Cr.P.C. No. 42523 of 2018 and in the recall application in Application U/S 482 Cr.P.C. No. 12855 of 2018); Sri Sudeep Harkauli, learned counsel for the opposite party/informant and; Sri Arunendra Kumar Singh, learned AGA for the State. All applications are being decided by this common order.
Application U/S 482 No. - 6925 of 2018 has been filed by Amarjeet Singh Taneja for the following relief:
"to quash the charge sheet dated 30.05.2016 as well as the entire proceedings of Criminal Case No. 1681 of 2016 (State Vs. Amarjeet Singh & Others), arising out of Case Crime No. 109 of 2016, under Sections- 406, 420, 467, 468 & 471 I.P.C. in connection with the FIR dated 18.02.2016, Police Station- Surajpur, District- G.B. Nagar, pending in the Court of learned A.C.J.M.-II, Gautam Buddha Nagar."
The other accused Aman Deep Singh Bindra has filed Application U/S 482 Cr.P.C. No. 42523 of 2017 for the following relief:
"to quash the charge sheet dated 31.5.2016 as well as the proceedings of Criminal Case No. 1681 of 2016 (State Vs. Amar Jeet Singh & others) pending before the ACJM-II, Gautam Buddha Nagar, under Sections 406, 420, 467, 468 and 471 IPC, in connection with the FIR dated 18.2.2016, registered as Case Crime No.109 of 2016, Police Station Surajpur, G.B., Nagar."
Also, a recall application has been filed by the aforesaid two persons, Amarjeet Singh Taneja and Aman Bindra in Cr. Misc. Application No. 12855 of 2018, to recall the order dated 17.04.2018.
Since the facts giving rise all the three proceedings are common, they are being noted here, for the sake of convenience.
There exists a company M/s Krasa International Pvt. Ltd. of which Arvind Singh (hereinafter referred to as the informant) is the director. Also, there exists another company NCR Sky Build Pvt. Ltd. of which Amarjeet Singh Taneja and Aman Deep Singh Bindra (hereinafter referred to as accused) are directors.
Admittedly, a written agreement was entered into between M/s Krasa International Pvt. Ltd. and M/s NCR Sky Build Pvt. Ltd. on 08.09.2014 where under M/s Krasa International Pvt. Ltd. had appointed M/s NCR Sky Build Pvt. Ltd. as it selling agents in respect of certain properties being built by it.
Disputes had arisen between the aforesaid corporations, that have given rise, amongst others, to the present criminal proceedings.
The accused lodged a complaint against the informant before the Economic Offences Wing at Delhi, whereupon an FIR in Case Crime No. 30 of 2016 came to be registered against the informant and others under Sections 406, 420, 120-B IPC. Also, an FIR in Case Crime No. 109 of 2016 came to be registered against the accused on 08.02.2016, at the instance of the informant.
It is not in dispute that on 31.05.2016 the accused were charge sheeted in the aforesaid case under Sections 406, 420, 467, 468, 471 IPC. At that stage the accused Aman Deep Singh Bindra filed application U/s 482 Cr.P.C. No. 28200 of 2016 and Amarjeet Singh Teneja also filed an application U/s 482 Cr.P.C. No. 28207 of 2016, before this Court. Both applications came to be decided by separate but identical orders dated 16.09.2016. For ready reference the order passed in 482 Cr.P.C. Application No. 28207 of 2016 is quoted hereunder:
"The instant petition has been filed on behalf of the accused appellant for quashing the charge sheet No.21 of 2016 dated 31.5.2016 as well as the entire proceeding of criminial case no. 1681 of 2016 (State Vs. Amar Jeet and others) pending before the court of Civil Judge (JD) Gautam Budh Nagar on the grounds, inter alia dispute is of civil nature and as a counter blast to the proceedings initiated by the applicant under Arbitration Act before the Delhi High Court.
Sri M.C. Chaturvedi, learned Senior Counsel assisted by Sri S.C. Dwivedi, learned counsel has submitted this is a clear case of abuse of the process of the court where in a dispute of civil nature, help of criminal law has been invoked by lodging a false FIR. He further submits that in the FIR the contents regarding commercial transactions are arbitrable between the parties, according to the agreement arrived at between them. He further submits that second part of the FIR reflecting criminal acts on the part of the applicant have not been found substantiated by the investigating officer and charge sheet has also only been submitted under sections 406, 420, 467, 468 and 471 IPC. On the strength of these he submits that inherent powers of the Court be invoked.
On behalf of opposite party no.2 Sri Viresh Mishra, learned Senior Counsel assisted by Sri Sudeep Harkauli has submitted that opposite party no.2 was the developer and applicant's concer agreed to become underwriter. Applicant's concern was authorised to sell the flats, space, commercial complexes developed by opposite party no.2. He further submits that while doing so the applicant and his associates had retained money paid by the customers to be paid to opposite party no.2, thus, thereby cheated the customers, committed criminal breach of trust towards opposite party no.2 and prepared forged letters heads etc. to use them as genuine showing them Director of the Firm belonging to opposite party no.2.
From the arguments mentioned hereinabove and after going through the paper book, I find that during investigation facts have been discovered to prima facie substantiate the arguments advanced on behalf of opposite party no.2, therefore, on the grounds taken in the petition inherent power to quash the charge sheet as well as the entire proceeding of the criminal case arising therefrom cannot be invoked, however, in order to ensure speedy trial petition is disposed of with the observation that if applicant appears before the court concerned below within 30 days from today and apply for bail, his bail application shall be considered and decided by the court below expeditiously, if possible on the same day, in accordance with the settled law laid down by the Seven Judges' decision of this Court in the case of Amarawati and another Vs. State of U.P. reported in 2004 (57) ALR-290 as well as judgment passed by Hon'ble Apex Court reported in 2009 (3) ADJ 322 (322) (SC) Lal Kamlendra Pratap Singh Vs. State of U.P. after hearing the Public Prosecutor in the aforesaid case number for the aforesaid offence.
For the period of 30 days, no coercive action shall be taken against the applicant for his personal appearance.
The applicant is also give liberty to move discharge application through counsel after getting himself bailed out.
While considering the discharge application, the observation made in this order will have no bearing."
The accused did not surrender before the learned court below within the time granted by the aforesaid order, but sought extension of time. It was granted by this Court by order dated 05.11.2016, passed on separate applications. Thus time granted to the accused was extended till 11.11.2016 on the following terms:
"Ref:- Extension Application No.332673 of 2016 Heard Sri Manish Tiwary, learned counsel for the applicant, Sri Sudeep Harkauli, learned counsel for opposite party No.2 and perused the record.
By the instant application the accused-applicant seeks extension of time to surrender before the court below in compliance with the order dated 16.9.2016. In the supporting affidavit the prayer has been substantiated by submitting that from the second week of October,2016 proximately around 11-12.10.2016, the applicant was not well when he had under gone medical check up, he was found suffering from typhoid. He had been advised two weeks bed rest and treatment. By way of annexure 2, photocopies of the medical prescription and memo of medicines have been brought on record.
On behalf of contesting opposite party No.2 Sri Harkauli has stated that the application for extension of time is not maintainable, as he has been informed that the applicant has preferred S.L.P challenging the correctness of the Court's order dated 16.9.2016, under which he seeks here extension of time to get the benefit of protection from arrest.
Filing of S.L.P is a remedy made available by Article 136 of the Constitution of India. Availing of such remedy cannot be taken by way of an exception to deprive the benefit of protection granted by this Court vide order dated 16.9.2016. When the order was passed it was on the belief that the ends of justice would be served by providing the protection and followed by surrender. Non-compliance with the said Court's order in reference to surrender within stipulated time has been sufficiently explained with the supporting material.
The extension application is allowed.
The applicant is permitted to surrender before the court below on or before 11.11.2016 failing which the learned Magistrate shall take coercive action against the applicant.
Certified copy of this order be given to the learned counsel for the applicant today on usual charges."
It has come on record, the accused still did not appear before the learned court below but sought further extension of time. It was rejected by this court, vide order dated 06.12.2016.
Thereafter, on 06.12.2016 further investigation was also called for under Sections 173 (8) Cr.P.C. In pursuance thereof another report is claimed to have been submitted alleging that there was no forgery was committed by the accused.
The proceedings before the learned court below have thus remained pending at the stage of framing of charge.
While the aforesaid criminal proceedings had been initiated by the informant and the accused in the manner described above and both the informant and the accused had been charge sheeted upon separate investigation conducted in the respective cases registered against them, subsequently, civil/arbitration proceedings were initiated before the Delhi High Court, wherein the dispute between the parties (arising out of agreement dated 08.09.2014), was referred to the Mediation Centre attached to that Court. Also, on 06.03.2017 an arbitrator appears to have been appointed under the arbitration clause contained in the above noted agreement between the parties. However, the arbitrator's hands were stayed during pendency of the proceedings before the Mediation Centre of the Delhi High Court, till 15.05.2017.
On 26.04.2017, a written settlement is stated to have been reached between the parties in the mediation proceedings. It is on the strength of that settlement and further subsequent facts, the accused now claim to have earned a right to approach this Court again, by means of present/second applications filed under Section 482 Cr.P.C.
A reference to the deed of settlement is necessary for the purpose of appreciating the argument and the issue canvassed before this Court, at present. Clause 5, 6, 7, 11, 18 and 19 of the deed of settlement, insofar as they are relevant for the present purpose are quoted herein below:
"Clause
5. The following civil and criminal litigations and FIR's have been filed/lodged and are pending between the parties:-
Civil Litigation
(i) That a petition under Section 11 of the Arbitration Act was filed by NCR Skybuild, being Arbitration case No. 800/2016 before the vide order dated 6.3.2016, the Hon'ble High Court of Delhi has appointed the Sole Arbitrator, Hon'ble Mr. Justice Vikramji Sen, former Judge of Supreme Court to adjudicate the disputes between the parties.
However, since the parties were attempting to resolve the disputes before the Delhi High Court Mediation Conciliation , DHCMC and therefore, it is directed that the leaned Arbitrator shall not enter into reference till 15.5.2017.
Criminal Proceedings
(i) FIR Bearing No. 109/2016 dated 18.2.2016 of Surajpur Thana at Noida, wherein, Arvind Singh registered complaint against Amarjit Singh Taneja and Amandeep Singh Bindra, under Sections 406, 420, 467, 468, 471 of IPC, the charge sheet has been filed and the criminal proceedings are pending before the court of Judicial Magistrate Mr. Vikas Singh, Court No.14 of Gautam Budh Nagar at Noida (U.P.).
FIR Pending Investigation
(iii) FIR No. 30/2-16 dated 16.3.2016 under Sections 420, 406, 120B, before the Economic Offience Wing, EOW, Delhi against Shri Arvind Singh S/o Shri Babu Singh S/o Shri Shankar Singh, Kajal Singh w/o Arvind Singh, all residents of G-6/35, Sector-11, Rohini, New Delhi-110085. This complaint is at the investigation stage.
(iv) FIR No. 87 dated 9.11.2016, Police Station, Mansa City, against Arvind Singh S/o Babu Singh, Babu Singh S/o Shankar Singh, Kajal Singh W/o Arvind Singh. This FIR is at the investigation state.
(v) There is also a demand by one Mr. Balwinder Singh Bakshi of M/s Delhi Bus Branding Company on account of Bus Branding agreement which was to be paid by Krasad International Pvt. Ltd. to Mr. Balwinder Singh Bakshi of M/s Delhi Bus Branding Company. M/s Delhi Bus Branding Company (a partnership firm) has filed a case under Section 138 of N.I. Act pending in the court of Ms. Upasna Satija MM Dwarka Court Delhi at Dwarka New Delhi. The case number is CC5005423/2016. All the claims of the said Mr. Balwinder Singh Bakshi of M/s Delhi Bus Branding Company and its firm shall stand settled by the payment of Rs. 35 lakh (Rupees Thirty Five Lakh Only) as full and final settlement and nothing shall remain due towards the said firm and Shri Balwinder Singh Bakshi. The said amount of Rs. 35 lakh (Rupees Thirty Five Lakh Only) shall be paid to Sh. Amandeep Singh Bindra towards the adjustment of amount against the flat offered to Sh. Amandeep Singh Bindra. And hence Amandeep Singh Bindra would be entitled to gets a total sum of (Rs. 2,98,23,330/- + Rs. 35,00,000/-) = 3,33,23,330/- (Rupees Three Crore Thirty Three Lakh Twenty Three Thousand Three Hundred Thirty Only) in lieu of Mr. Balwinder Singh Bakshi of M/s Delhi Bus Branding Company shall withdraw this complaint/complaints filed by Mr. Balwinder Singh Bakshi of M/s Delhi Bus Branding Company against Sh. Arvind Singh or Krasa International Pvt. Ltd and they will not take any civil or criminal action in lien of the said Bus Branding agreement which was executed for the sales promotion agreement.
6. That the parties have settled their disputes before the Ld. Mediator, in the DHCMCC. Under the said settlement, it has been agreed that Krasa International Pvt.Ltd. shall pay a total sum of Rs. 8,94,70,000/- (Rupees Eight Crore Ninety four Lakhs and Seventy Thousand Only) as full and final settlement against all the claims of each parties i.e. Krasa International Pvt. Ltd and NCR Skybuild Pvt. Ltd, its firms subsidiary Group Company and of all the Directors, Sole Proprietor and/or of any persons claiming through then whatsoever, and also direct or indirect claims including third party claims arising out of the bookings made through NCR Skybuild Pvt. Ltd or claims of any sort against any service rendered by any party to NCR Skybuild Pvt. Ltd in respect of the Project "Centrade Business Park", if any, of Shri Amarjeet Singh Taneja, Shri Amandeep Singh Bindra, there proprietorship firms as M/s Krasa Developers Company of Shri Amarjeet Singh Taneja, and M/s Common keys of Mr. Amandeep Singh Bindra respectively. All claims of each parties are settled and are covered under this settlement for a total sum of Rs. 8,94,70,000/- (Rupees Eight Crores Ninety Four Lakhs and Seventy Thousand Only.
7. Since Krasa International Pvt. Limited doe not have funds to pay aforesaid amount immediately and therefore, offered and mutually agreed between both the parties that-
(a) .....
(b) .....
11. It is agreed that the total agreed amount of R. 8,94,70,000/-(Rupees Eight Crores Ninety Four Lakhs & Seventy Thousand Only) Plus Thirty Five Lakh as mentioned in para 5 (v) herein will be fully adjusted in these three flats as Rs. 5,96,36,670/- (Rupees Five Crores Ninety Six Lakhs Thirty Six Thousand Six Hundred & Seventy Only) against two flats (as detailed above) of Mr. Amarjeet Singh Taneja and Rs. 2,98,23,330/- (Rupees Two Crores Ninety Eight Lakhs Twenty Three Thousand Three Hundred & Thirty Only) plus Thirty Five Lakh (i.e. 3,33,23,330) against Mr. Amandeep Singh Bindra flat. Mr. Arvind Singh assured that the total amount of Rs. 8,94,70,000/- (Rupees Eight Crores Ninety Four Lakhs & Seventy Thousand Only) plus Rs. 35,00,000/- (Rupees Thirty Five Lakh only) shall be paid to the concerned/related builder- M3M, Golf Estate, Fairway West, Sector-65, Gurgaon (Haryana) in all respects on or before 15.07.2017.
12. .....
13. .....
14. .....
15. .....
16. .....
17. .....
18. That upon execution of this agreement and upon transfer of these flats, the parties agree to cooperate and undertake to appear before all the courts seeking quashing/compounding of the offences. However, since the parties have lodged criminal FIRs against each others, both the parties have to file petition under Section 482 of a Criminal Procedure Code before the High Court at Allahabad, Hon'ble High Court of Punjab & Haryana at Chandigarh and as as well as Hon'ble Delhi High Court seeking quashing of three respective FIRs after the execution and implementation of this agreement within a period of 21 days after the execution of the present settlement and request the Hon'ble High Court once the agreement is completed and the formalities of transfer of documents/title of all the above mention three flats are completed in all respects.
19. Both the parties have agreed not to pursue or prosecute the pending criminal cases filed against each other nor shall lodge any case henceforth directly or indirectly through their other companies and firms which they are associated against each other in respect of agreement dated 08.09.2014 or any claim arising out of the said agreement or in relation thereto in future as well. "
(emphasis supplied) Upon such deed of settlement being reached, the informant filed an application U/s 482 Cr.P.C. before the Delhi High Court being Cr. M. C. No. 3512 of 2017. A copy of that application has been annexed with the first supplementary affidavit filed in Cr. Misc. Application No. 6925 of 2018. A perusal of the same does reveal that the same was based on the aforesaid deed of settlement executed between the parties.
In paragraph 14 of that application, it has been stated as below:
"That as the disputes which are subject matter of the FIR which is impugned in the present petition have been settled amicably between the petitioner and respondent no. 3, it would not serve any purpose to keep the said FIR's alive. Even otherwise, as per settled law, the disputes were more of a civil nature and the criminal machinery should not have been invoked for settlement of the civil dispute. Moreover, in view of the subsequent settlement of the disputes and undertaking given by respondent no. 3 for getting the FIR's quashed, it is fit case where the Hon'ble Court should invoke its inherent jurisdiction and quash the impugned FIR's."
(emphasis supplied) However, since the payments contemplated under Clause 11 of the aforesaid deed of settlement were not made by the informant, the aforesaid 482 Cr.P.C. application filed before the Delhi High Court came to be dismissed as withdrawn by the order dated 26.10.2017. In that order, it was recorded as a fact that the terms of the settlement had yet not been complied with.
It is then submitted that a second undertaking/settlement was reached between the parties on 30.01.2018. A copy of the same has also been annexed with the affidavit in support of the 482 Cr.P.C. application filed by the accused. The said deed was also executed by the informant on behalf of the M/s Krasa International Pvt. Ltd. and by the accused on behalf of M/s NCR Sky Build Pvt. Ltd.
After reiterating the liability of M/s Krasa International Pvt. Ltd. to pay M/s NCR Sky Build Pvt. Ltd. Rs. 8,94,70,000/- (as provided in the settlement deed dated 26.04.2017), it was further recorded that the aforesaid liability could not be discharged by M/s Krasa International Pvt. Ltd.
Thereafter, under Clause 11 it was provided that M/s Krasa International Pvt. Ltd. would pay to the accused Amandeep Singh Bindra and Amarjeet Singh Taneja certain specified sums, towards settlement of all existing claims between the parties.
It was further agreed that the informant and the accused would not pursue litigation against the other till the aforesaid terms of the settlement are complied with and will cooperate with quashing/compounding of proceedings pending against each other in view of such settlement.
It is then submitted that the informant who had been arrested in the criminal case lodged by the accused before the Economic Offence Wing, Delhi applied for interim bail. During consideration of that bail application, the aforesaid subsequent fact of the settlement reached between the parties was brought on record and the following order dated 31.1.2018 was passed by the CMM (West), Delhi.
"Learned counsels for both the parties submit that matter has been settled between the parties the parties as per terms mentions in the agreement/MOU executed between both the complainants and accused Arvind. Original agreement/MOU is kept on record.
Statements of both the complainants and accused Arvind in respect of settlement reached between them recorded separately.
Considering the settlement reached between the parties, MOU executed between both the complainants and accused and their respective statements, accused Arvind Singh is admitted on interim bail till 28.4.2018, subject to the following conditions:-
(i) that accused shall furnish personal bond to the tune of Rs. 50,000/- with 2 sureties of like amount and further subject to the condition of encashment of the cheques in his statement.
(ii) that accused shall make himself available for interrogation by a police officer as and when required;
(iii) that accused shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court to any police officer;
(iv) that accused will not leave India without the previous permission of the court.
Put up for report of encashment of above said cheques on 28.4.2018."
While, passing of the aforesaid order, the CMM (West), Delhi had also recorded the statement of the informant Arvind Singh, wherein he confirmed the fact of certain cheques having been issued to the accused and he also gave his personal undertaking that the said cheques would be honoured.
It has then come on record that the cheques issued in pursuance of the second undertaking/settlements were dishonoured and therefore, the present accused applied for cancellation of the interim bail granted to the informant. In view of the default noted above, bail granted to the informant was cancelled.
In the aforesaid factual background, the present application came to be filed by the accused claiming, notwithstanding the default committed by the informant in making compliance with the terms of the settlement (and the IInd Settlement/Undertaking), the accused are entitled to get the criminal prosecution launched against them, quashed.
Sri Navin Sinha, learned Senior Counsel and Sri Subodh Kumar, learned counsel appearing for the applicant-accused submit that the subsequent events (noted above) have material and decisive bearing on the pending criminal proceedings against the accused. These facts and circumstances were not existing when this Court decided the first 482 Cr.P.C. applications filed by the accused, by order dated 16.09.2016. Therefore, the accused are entitled to maintain the present application and there is no bar to such second application being filed or being entertained.
Next, it has been submitted that in view of the facts noted above, it clearly stands resolved between the informant and the accused (in terms of deed of settlement dated 26.04.2017 as modified by the second undertaking/deed of settlement dated 30.01.2018) that no money is due from the accused. Thus all allegations of cheating with respect to money collected by the accused on behalf of the informant and of forgery committed by the accused, stand dropped as no amount was found payable by the accused and no obligation was required to be discharged by the accused. Only a net amount was found payable by the informant to the accused. Therefore, the accused cannot be blamed for their conduct in not appearing before the learned court below and not obtaining bail as directed by orders dated 16.09.2016 and 05.11.2016.
Elaborating his submission, learned Senior Counsel submitted, once the informant had entered into the aforesaid deed of settlement dated 26.4.2017 read with the second undertaking/deed of settlement dated 30.01.2018, the allegations made against the accused of cheating and forgery, stood completely washed out inasmuch as not only it stands agreed between the parties that the disputes are purely civil but that the liability to pay any sum rests solely on the informant and no liability whatsoever had been either been found existing nor it was created, on the accused.
Then, in that light, it has been further submitted that the informant concealed the facts of such settlements having been reached between the parties and also the fact of the present 482 Cr.P.C. (second) applications being pending before this Court when it applied for directions by filing 482 Cr.P.C. application No. 12855 of 2018. On that application, the following order was passed on 17.04.2018:
"Heard learned counsel for the applicant and learned A.G.A. for the State as also perused the record.
The present 482 Cr.P.C. application has been filed seeking direction to the court below to ensure complete compliance of the order dated 20.03.2018, directing the office concerned to take step in the compliance of the said order passed in case crime no. 109 of 2016, under section 420, 467, 468 and 471 IPC, Police Station Surajpur, District Gautam Buddha Nagar. Further, the applicant seeking direction to the court below to take coercive action against the opposite parties no. 2 and 3 in compliance of the aforesaid order.
Earlier, the opposite parties, who are accused had approached this Court by filing Applications U/s 482 Cr.P.C.No.28200 of 2016, (Amandeep Singh Bindra @ Aman Bindra Vs. State of U.P. & another) and 28207 of 2016 (Amar Jeet Singh Taneja Vs. State of U.P. & another). The aforesaid applications were disposed of vide order dated 16.09.2016, providing interim protection for 30 days to appear before the court below and apply for bail.
It is then stated that said opposite parties did not appear before the court below, but they again approached this Court by filing application for extension of time. The time was extended by this court vide orders dated 5.11.2016. Instead of appearing before the learned court below, the said opposite parties have apparently not complied with those orders passed by this Court.
Strangely, while appearance of the opposite parties could not be secured before the learned court below and it was being reported that said persons are not reside at the address as disclosed, one of the accused namely Amar Jeet Singh filed an application (seeking time from the learned court below), disclosing the same address.
The matter appears serious.Learned AGA may obtain instructions with regard to action taken by the police authorities and to ensure the attendance of the opposite parties. Such instruction may be placed on record by filing personal affidavit of Senior Superintendent of Police, Gautam Budh Nagar, duly supported with documentary evidence.
As prayed, list on 03.05.2018 at the top of the list.
Let a copy of this order be also communicated to the learned Magistrate for necessary compliance and action to be taken in the matter."
In view of alleged concealment of facts noted above, it has therefore been prayed, that the above order may be recalled.
On merits, it has been submitted that the present applications are based on subsequent facts that stand admitted between the parties. The entire dispute between the parties has thus been settled where under, upon agreement reached with open eyes, money became payable only by the informant to the accused without any corresponding obligation being either found existing or being created on the accused towards the informant.
Elaborating this submission, the learned Senior counsel submits that both under the settlement deed dated 26.4.2017 as also the undertaking/second deed of settlement dated 30.1.2018 the amounts payable to the accused remained the same against all the claims of the parties namely, M/s N.C.R. Sky Build Pvt. Ltd., its firm, subsidiary company and all the directors, sole proprietor and or any person claiming through them or any claim of M/s Krasa International Pvt. Ltd or any claim against M/s N.C.R. Sky Build Pvt. Ltd and its directors.
Only the mode of payment or discharge of liability recognized under the 'Deed of Settlement' dated 26.4.2017 was altered under the Undertaking/Second Deed dated 30.1.2018. It has then been submitted that the informant also specifically acknowledged the aforesaid terms of the settlement in his statement recorded before the CMM (West), Delhi. After recording such statement and undertaking, the said Court granted the interim bail.
It is thus submitted that the informant cannot deny the fact that in view of such subsequent facts, it is only the informant who is liable to pay any sum to the accused and there is no amount payable and corresponding obligation cast upon accused towards the informant. This itself is clear evidence of the fact that no offence as alleged had ever been committed by the accused. Thus the allegations made in the FIR of cheating and forgery stand completely washed out and, therefore, the prosecution deserves to be quashed at this stage.
Learned senior counsel has further submitted, merely because the informant had defaulted in complying with the terms of the settlement (undoubtedly reached between the parties), it can never be asserted with any success that there is no admission of the exclusive liability by the informant. In so far as the informant has unambiguously admitted the entire liability to the exclusion of any liability or obligation on the accused, the fact that the informant has not discharged such liability cannot be cited as a reason or circumstance to continue, any further, with the prosecution launched against the accused.
Once, the execution of the settlement stands established and admitted between the parties, the accused who are the applicants herein are entitled to the benefit of the same and the prosecution against them must necessarily fall especially in view of the express terms of settlement wherein it is clearly contemplated that the present prosecution would fall.
According to him, the only consequence of non-payment by the informant is that the informant cannot get the criminal proceeding pending against him quashed till he discharges his admitted liabilities. In fact, it has been submitted that the interim bail granted to the informant by the Delhi High Court was cancelled on account of such non-payment.
Reliance has been placed on precedent to submit, both, that the second application under Section 482 Cr.P.C. is maintainable and that in view of the subsequent facts being relied upon by the accused, such applications deserve to be allowed. Thus, reliance has been placed on the judgment of the Supreme Court in the case of Superintendent and Remembrancer Vs. Mohan Singh and others reported in 1975 (3) SCC 706 to submit that the present applications which are second applications are maintainable.
Then, reliance has been placed on another judgment of the Supreme Court in the cases of Devendra Vs. State of U.P. reported in 2009 (7) SCC 495 to submit that the Supreme Court had itself quashed the prosecution upon a second section 482 Cr.P.C. application filed by the accused. In that case it had been held that the High Court erred in not entertaining such second application.
Reliance has also been placed on another judgment of the Supreme Court in the case of Parbatbhai Aahir @ Parbatbhai Bhimsinh Bhai Karmur and Ors Vs. State of Gujarat and Another reported in 2017 (9) SCC 641 to submit that even though the offence is not compoundable, same deserves to be quashed in view of the settlement that had been undoubtedly reached between the parties, especially keeping in mind the nature of transaction between the parties being commercial.
Further, reliance has been placed on the judgment of Jharkhand High court in the case of Naresh Kumar Vs. State of Jharkhand through S.P Vigilance, Ranchi reported in 2013 (129) AIC 753 and of the Bombay High Court in the case of Usha Badri Poonawalia Vs. K. Kurien Babu reported in 2006 Cri.L.R. 649.
Sri Sudeep Harkauli, learned counsel appearing on behalf of the informant, has vehemently and with great perseverance, opposed the present application.
It has been first submitted that the second 482 Cr.P.C. applications are not maintainable at the same stage. Reliance has been placed on the judgment of the Supreme Court in the case of Vineet Handa Vs. State of Haryana and others SLP (Crl) No. 3428 of 2012 decided on 1.5.2012.
Then it has been submitted, in any case the accused are not entitled to any relief in exercise of inherent powers of this Court under section 482 Cr.P.C. in view of their proven and repeated default in complying with earlier directions issued by this Court. He thus submits that the accused had approached this Court earlier whereupon this Court had after examining the matter at length reached a conclusion that prima facie offence is made out against them. That conclusion had been drawn after considering the argument advanced on either side as had been noted in the order dated 16.9.2016. Thereafter, this Court had refused to exercise its inherent power to quash the prosecution on a prima facie satisfaction that offence stood made out against the accused.
However, the Court allowed the accused an indulgence to apply for bail within 30 days for which duration coercive measures had been restrained. Further indulgence was granted to the applicant by the order dated 5.11.2016 when the Court extended the time to the accused to apply for bail up to 11.11.2016. In that order itself, the Court categorically provided that in the event of failure on part of the accused to apply for bail by 11.11.2016, all coercive measure be adopted against them. The accused did not apply for bail till 11.11. 2016 but again approached this Court for further extension of time. That prayer was specifically rejected, by order dated 6.12.2016. In these circumstances, it has been submitted the accused have avoided their appearance before the learned court below for more than one and half year since 11.11.2016. Therefore, owing to such conduct offered by the accused, they are not entitled to claim any relief under Section 482 Cr.P.C.
It has further been submitted that the order dated 17.4.2018 passed by this Court in 482 Cr.P.C. Application No. 12855 of 2018 (filed by the informant), does not suffer from any error as may require recall of the same as it only provides for that which is already contained in the order dated 5.11.2016 passed by this Court on the first 482 Cr.P.C. application filed by the accused.
The Court had at that stage on 05.11.2016 itself made it clear that in the event of accused not seeking bail by 11.11.2016, all coercive measure be adopted against them. However, for reasons best known to the accused, they have been able to evade coercive measures for more than a year. In that view of the matter, it has been submitted that the order dated 17.4.2018 only seeks enforcement of the earlier order dated 5.11.2016. Since further modification of the order dated 5.11.2016 had been specifically rejected by this Court by order dated 6.12.2016, there is no error in the order dated 17.4.2018.
In view of an objection raised by the accused that the order dated 17.4.2018 had been passed on concealment of fact by the informant, Sri Ajay Sengar, learned counsel appearing for the informant in 482 Cr.P.C. Application No. 12855 of 2018 has clarified that there was no concealment of facts inasmuch as specific pleadings had been made in paragraphs 18 and 25 of the affidavit in support of that application disclosing the fact of pendency of the present proceeding and of no stay order having been passed therein.
On merits, it has been submitted that there can be no argument against existence of a prima face offence committed by the accused under Sections 406, 420, 467, 468 and 471 IPC being made out against the accused. It is so because in the same case, on the same set of allegation and evidence as is available on the prosecution file, this Court had already recorded its conclusion in the order dated 16.9.2016 passed on first set of applications filed under 482 Cr.P.C., by both the accused.
It has therefore been submitted that to examine whether any offence is made out against the accused, in the present (second) applications, would amount to review the earlier decision made by this Court. It is clearly impermissible under Section 362 Cr.P.C.
Then, with regard to the submission advanced by learned Senior counsel that the ingredient of the charge stood washed out in view of the subsequent fact of the settlement deed dated 26.4.2017 and second undertaking/settlement deed dated 30.1.2018 read with the statement of the informant recorded by the Delhi Court while granting interim bail to him, it has been submitted that the same may be material evidence in civil proceedings between the parties. However, per-se, such fact would not have the automatic effect of absolving the accused of the charges that otherwise stand made out against them, at this stage.
It has thus been submitted that the criminal proceedings though find mention in the settlement deeds relied upon by the accused, the same cannot be quashed purely on the strength of such agreement having been entered between the parties, since the criminal proceedings are neither a claim against the accused nor there is any recital in the settlement deeds relied upon by the accused to absolve the accused of the charges.
Sri Arunendra Kumar, learned A.G.A. submits that the offence as alleged being not compoundable and prima facie, having been found to have been committed, it does not stand to reason that the accused claim the prosecution be quashed, at present.
According to him, in such cases it is only when the parties are both in agreement and the informant/person who may have suffered the injury specifically states before the Court that he does not wish to press charges against the accused - for whatever reasons, that the Court then exercises its discretion and first examines whether the injury was basically civil and whether in the context of the offence alleged and the compromise reached between the parties, it would be in the interest of justice to allow such a prosecution to proceed any further.
However, in the present case that stage has yet not reached. At present, on one hand upon investigation made by the police, charge sheet had been submitted against the accused and that material had also been considered by this court whereupon the first 482 Cr.P.C. application filed by the accused came to be practically dismissed by the order dated 16.9.2016. That order has attained finality. The documents being relied upon are not part of prosecution file. Thus, it cannot be argued that on prima facie basis, no offence stands made out against the accused.
Then, as to the settlement deeds claimed between the parties, though it may not be denied that such deeds had been executed and in terms of such settlement, the accused is not required to pay any sum to the informant and he is not required to discharge any obligation towards the informant, yet, such fact is extraneous to the question whether the accused are guilty of the offence as alleged.
To test whether the accused are guilty of the offence as alleged, their intention and the conduct on the date of the alleged offence alone is to be examined and not their subsequent conduct, when, for whatever reasons that may exist and for whatever compulsions or understandings or reason that they may agree to, subsequent to commission of the offence, the informant may agree to not press charges against the accused. It cannot undo the past acts that give rise to the allegation of commission of offence.
Having considered the arguments so advanced by learned counsel for the parties, it appears that in the first place, the objection raised by learned counsel for the informant that the second 482 Cr.P.C. applications filed by the accused are not maintainable must be rejected.
In the case of Vineet Handa (supra) that has been relied upon by the learned counsel for the informant, the facts were very different. The first 482 Cr.P.C. application was filed by the accused who was the Managing Director of a company. It had been withdrawn with liberty to avail alternative remedy available under the law. The Managing Director of the company having thus withdrawn his 482 Cr.P.C. application, the other accused being directors of the same company filed separate set of petitions, without disclosing the above fact. Those petitions were initially entertained and interim protection was also granted.
Later, upon the earlier order (dismissing the application filed by the Managing Director of the company), being placed before the High Court, the petitions filed by the other Directors were dismissed by the High Court on the opinion that the subsequent petitions filed by the Directors could not be entertained as they were deemed to have knowledge of the earlier order. It was in such circumstance, that special leave petition filed by the Directors against the order of the High Court, the second 482 Cr.P.C. application, was also dismissed.
In the instant case, the earlier petition was not dismissed as withdrawn but it had been decided on the strength of arguments advanced at that stage. The present petitions have been filed on new set of facts, after making disclosure of the earlier petitions filed by the accused. Therefore, the judgment in the case of Vineet Handa (supra) has no application to the present case.
On the other hand the Supreme Court in the case of Simrikhia v. Dolley Mukherjee, (1990) 2 SCC 437, in the context of second petition filed under section 482 Cr.P.C. observed as under:
"3. The learned counsel for the appellant contended before us that the second application under Section 482 CrPC was not entertainable, the exercise of power under Section 482, on a second application by the same party on the same ground virtually amounts to the review of the earlier order and is contrary to the spirit of Section 362 of the CrPC and the High Court was, therefore, clearly in error in having quashed the proceedings by adopting that course. We find considerable force in the contention of the learned counsel. The inherent power under Section 482 is intended to prevent the abuse of the process of the court and to secure ends of justice. Such power cannot be exercised to do something which is expressly barred under the Code. If any consideration of the facts by way of review is not permissible under the Code and is expressly barred, it is not for the court to exercise its inherent power to reconsider the matter and record a conflicting decision. If there had been change in the circumstances of the case, it would be in order for the High Court to exercise its inherent powers in the prevailing circumstances and pass appropriate orders to secure the ends of justice or to prevent the abuse of the process of the court. Where there is no such changed circumstances and the decision has to be arrived at on the facts that existed as on the date of the earlier order, the exercise of the power to reconsider the same materials to arrive at different conclusion is in effect a review, which is expressly barred under Section 362.
(emphasis supplied) Then, as also observed by the Supreme Court in the case of Superintendent & Remembrancer (supra) that the second 482 Cr.P.C. petition may be entertained looking into the facts and circumstance at the time of the subsequent petition. Thus, maintainability of a second petition cannot be doubted.
However, it would remain a matter to be examined, whether in the present case, there exists any subsequent fact as may justify interference under Section 482 Cr.P.C. at present. That issue would be examined a little later.
Then as to conduct of the accused, it is undisputed that the accused have not sought bail for more than one and a half year since they were required to, by the earlier order passed by this Court. That fact itself, may however, not be sufficient to repulse the challenge to criminal prosecution. In given facts of a case, it may still remain open to the Court to exercise its discretion, if the prosecution otherwise deserves to be quashed for reason of bar of law or because no offence may be made out or because no legal evidence may exist or otherwise in the interest of justice or to prevent abuse of process of Court.
I am not inclined to attach fetters to the exercise of jurisdiction under Section 482 Cr.P.C. such as may prevent the Court to quash an otherwise wholly unsustainable criminal prosecution, solely on account of laches or conduct of the accused. Personal liberty of a citizen is paramount. In many ways, personal liberty of a citizen is the first and certainly the most cherished and valuable of all freedoms. It is that freedom that runs the risk of being curtailed upon an offence being alleged and a citizen being tried for the same.
Unless the High Court reserves to itself the right to intervene, at any stage, in appropriate circumstances, on well settled principles, to preserve an innocent citizen's personal liberty, the Court may, in a given set of facts, become a hapless spectator to violation of this most sacrosanct of all freedoms that our constitution guarantees and find itself unable to secure the ends of justice or to prevent abuse of process of Court.
True as it is, the accused have not appeared and have not applied for bail, still, it being a matter of criminal prosecution, a challenge to the prosecution may remain to be examined independent of the conduct of the accused (post allegation of offence being leveled).
If, in a given case, the accused is able to establish that no offence is made out, it may remain open to the Court to examine whether despite his conduct (of having not applied for bail or despite observations made by the Court on earlier occasions or other such circumstances), interference be warranted. However, it cannot be cited as a reason to prevent the Court from examining the merits of the objection raised by the accused, to the prosecution pending against them.
Thus, in the instant case, if it appears that because of the subsequent facts cited by the accused, the prosecution deserves to be quashed, only thereafter, it may remain to be seen whether in view of the conduct of the accused (as asserted by the informant), they are entitled to the relief prayed for and not the other way round.
Coming to the core issue of the subsequent fact that gives rise to the present application, it is seen that undisputedly, there is a settlement entered into between the parties. It is also undisputed that the said agreements make reference, both to the civil and as also criminal proceedings between the parties including the present prosecution. Again, it cannot be denied that under the said settlement it is only the informant who had to discharge a liability towards the accused and there is no corresponding or other obligation created on the accused.
That having been noted, it is seen that neither the settlement deed dated 26.04.2017 nor the second settlement dated 30.01.2018 nor the order passed by the Delhi court granting interim bail or any other document contains any recital to the effect that the allegations made against the accused in the F.I.R. giving rise to the prosecution under challenge were wrong or false or that there was no cheating or forgery committed by the applicant, as has been alleged by the prosecution in the present cases.
The recital in the aforesaid settlement deed or second settlement deed is only to the effect that the parties had agreed to withdraw from the pending prosecution initiated against each other. Apparently, the accused have not withdrawn from the prosecution against the informant (which is pending at Delhi) because the informant has yet not discharged his liability under the aforesaid settlement. Clearly because of the aforesaid circumstance, the informant is not withdrawing from the prosecution, in the present case.
Thus, there is no evidence or document that may be relied as evidence upon a perusal whereof, it may be said that no offence is made out against the accused. All that those settlement deeds and other documents appear to suggest is that the parties may withdraw from the prosecution initiated against each other on certain terms and conditions, in future.
The Supreme Court in Narinder Singh v. State of Punjab, (2014) 6 SCC 466 first referred to the principle laid down in Gian Singh V. State of Punjab, (2012) 10 SCC 303 and had observed :
"11. As to under what circumstances the criminal proceedings in a non-compoundable case be quashed when there is a settlement between the parties, the Court provided the following guidelines: (Gian Singh case [Gian Singh v. State of Punjab, (2012) 10 SCC 303 : (2012) 4 SCC (Civ) 1188 : (2013) 1 SCC (Cri) 160 : (2012) 2 SCC (L&S) 988] , SCC pp. 340-41, para 58) "58. Where the High Court quashes a criminal proceeding having regard to the facts that the dispute between the offender and the victim has been settled although the offences are not compoundable, it does so as in its opinion, continuation of criminal proceedings will be an exercise in futility and justice in the case demands that the dispute between the parties is put to an end and peace is restored; securing the ends of justice being the ultimate guiding factor. No doubt, crimes are acts which have harmful effect on the public and consist in wrongdoing that seriously endangers and threatens the well-being of the society and it is not safe to leave the crime-doer only because he and the victim have settled the dispute amicably or that the victim has been paid compensation, yet certain crimes have been made compoundable in law, with or without the permission of the court. In respect of serious offences like murder, rape, dacoity, etc. or other offences of mental depravity under IPC or offences of moral turpitude under special statutes, like the Prevention of Corruption Act or the offences committed by public servants while working in that capacity, the settlement between the offender and the victim can have no legal sanction at all. However, certain offences which overwhelmingly and predominantly bear civil flavour having arisen out of civil, mercantile, commercial, financial, partnership or such like transactions or the offences arising out of matrimony, particularly relating to dowry, etc. or the family dispute, where the wrong is basically to the victim and the offender and the victim have settled all disputes between them amicably, irrespective of the fact that such offences have not been made compoundable, the High Court may within the framework of its inherent power, quash the criminal proceeding or criminal complaint or FIR if it is satisfied that on the face of such settlement, there is hardly any likelihood of the offender being convicted and by not quashing the criminal proceedings, justice shall be casualty and ends of justice shall be defeated. The above list is illustrative and not exhaustive. Each case will depend on its own facts and no hard-and-fast category can be prescribed."
12. Thereafter, the Court summed up the legal position in the following words: (Gian Singh case [Gian Singh v. State of Punjab, (2012) 10 SCC 303 : (2012) 4 SCC (Civ) 1188 : (2013) 1 SCC (Cri) 160 : (2012) 2 SCC (L&S) 988] , SCC pp. 342-43, para 61) "61. The position that emerges from the above discussion can be summarised thus: the power of the High Court in quashing a criminal proceeding or an FIR or a complaint in exercise of its inherent jurisdiction is distinct and different from the power given to a criminal court for compounding the offences under Section 320 of the Code. Inherent power is of wide plenitude with no statutory limitation but it has to be exercised in accord with the guideline engrafted in such power viz.: (i) to secure the ends of justice, or (ii) to prevent abuse of the process of any court. In what cases power to quash the criminal proceeding or complaint or FIR may be exercised where the offender and the victim have settled their dispute, would depend on the facts and circumstances of each case and no category can be prescribed. However, before exercise of such power, the High Court must have due regard to the nature and gravity of the crime. Heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. cannot be fittingly quashed even though the victim or victim's family and the offender have settled the dispute. Such offences are not private in nature and have a serious impact on society. Similarly, any compromise between the victim and the offender in relation to the offences under special statutes like the Prevention of Corruption Act, or the offences committed by public servants while working in that capacity, etc., cannot provide for any basis for quashing criminal proceedings involving such offences. But the criminal cases having overwhelmingly and predominatingly civil flavour stand on a different footing for the purposes of quashing, particularly the offences arising from commercial, financial, mercantile, civil, partnership or such like transactions or the offences arising out of matrimony relating to dowry, etc. or the family disputes where the wrong is basically private or personal in nature and the parties have resolved their entire dispute. In this category of cases, the High Court may quash the criminal proceedings if in its view, because of the compromise between the offender and the victim, the possibility of conviction is remote and bleak and continuation of the criminal case would put the accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal case despite full and complete settlement and compromise with the victim. In other words, the High Court must consider whether it would be unfair or contrary to the interest of justice to continue with the criminal proceeding or continuation of the criminal proceeding or continuation of the criminal proceeding would tantamount to abuse of process of law despite settlement and compromise between the victim and the wrongdoer and whether to secure the ends of justice, it is appropriate that the criminal case is put to an end and if the answer to the above question(s) is in the affirmative, the High Court shall be well within its jurisdiction to quash the criminal proceeding."
The Court in Gian Singh case [Gian Singh v. State of Punjab, (2012) 10 SCC 303 : (2012) 4 SCC (Civ) 1188 : (2013) 1 SCC (Cri) 160 : (2012) 2 SCC (L&S) 988] was categorical that in respect of serious offences or other offences of mental depravity or offence of merely dacoity under special statute, like the Prevention of Corruption Act or the offences committed by public servant while working in that capacity. The mere settlement between the parties would not be a ground to quash the proceedings by the High Court and inasmuch as settlement of such heinous crime cannot have imprimatur of the Court".
Then, the Supreme Court summed up the principles laid down by it in following terms:
"29. In view of the aforesaid discussion, we sum up and lay down the following principles by which the High Court would be guided in giving adequate treatment to the settlement between the parties and exercising its power under Section 482 of the Code while accepting the settlement and quashing the proceedings or refusing to accept the settlement with direction to continue with the criminal proceedings:
29.1. Power conferred under Section 482 of the Code is to be distinguished from the power which lies in the Court to compound the offences under Section 320 of the Code. No doubt, under Section 482 of the Code, the High Court has inherent power to quash the criminal proceedings even in those cases which are not compoundable, where the parties have settled the matter between themselves. However, this power is to be exercised sparingly and with caution.
29.2. When the parties have reached the settlement and on that basis petition for quashing the criminal proceedings is filed, the guiding factor in such cases would be to secure:
(i) ends of justice, or
(ii) to prevent abuse of the process of any court.
While exercising the power the High Court is to form an opinion on either of the aforesaid two objectives.
29.3. Such a power is not to be exercised in those prosecutions which involve heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. Such offences are not private in nature and have a serious impact on society. Similarly, for the offences alleged to have been committed under special statute like the Prevention of Corruption Act or the offences committed by public servants while working in that capacity are not to be quashed merely on the basis of compromise between the victim and the offender.
29.4. On the other hand, those criminal cases having overwhelmingly and predominantly civil character, particularly those arising out of commercial transactions or arising out of matrimonial relationship or family disputes should be quashed when the parties have resolved their entire disputes among themselves.
29.5. While exercising its powers, the High Court is to examine as to whether the possibility of conviction is remote and bleak and continuation of criminal cases would put the accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal cases.
29.6. Offences under Section 307 IPC would fall in the category of heinous and serious offences and therefore are to be generally treated as crime against the society and not against the individual alone. However, the High Court would not rest its decision merely because there is a mention of Section 307 IPC in the FIR or the charge is framed under this provision. It would be open to the High Court to examine as to whether incorporation of Section 307 IPC is there for the sake of it or the prosecution has collected sufficient evidence, which if proved, would lead to proving the charge under Section 307 IPC. For this purpose, it would be open to the High Court to go by the nature of injury sustained, whether such injury is inflicted on the vital/delegate parts of the body, nature of weapons used, etc. Medical report in respect of injuries suffered by the victim can generally be the guiding factor. On the basis of this prima facie analysis, the High Court can examine as to whether there is a strong possibility of conviction or the chances of conviction are remote and bleak. In the former case it can refuse to accept the settlement and quash the criminal proceedings whereas in the latter case it would be permissible for the High Court to accept the plea compounding the offence based on complete settlement between the parties. At this stage, the Court can also be swayed by the fact that the settlement between the parties is going to result in harmony between them which may improve their future relationship.
29.7. While deciding whether to exercise its power under Section 482 of the Code or not, timings of settlement play a crucial role. Those cases where the settlement is arrived at immediately after the alleged commission of offence and the matter is still under investigation, the High Court may be liberal in accepting the settlement to quash the criminal proceedings/investigation. It is because of the reason that at this stage the investigation is still on and even the charge-sheet has not been filed. Likewise, those cases where the charge is framed but the evidence is yet to start or the evidence is still at infancy stage, the High Court can show benevolence in exercising its powers favourably, but after prima facie assessment of the circumstances/material mentioned above. On the other hand, where the prosecution evidence is almost complete or after the conclusion of the evidence the matter is at the stage of argument, normally the High Court should refrain from exercising its power under Section 482 of the Code, as in such cases the trial court would be in a position to decide the case finally on merits and to come to a conclusion as to whether the offence under Section 307 IPC is committed or not. Similarly, in those cases where the conviction is already recorded by the trial court and the matter is at the appellate stage before the High Court, mere compromise between the parties would not be a ground to accept the same resulting in acquittal of the offender who has already been convicted by the trial court. Here charge is proved under Section 307 IPC and conviction is already recorded of a heinous crime and, therefore, there is no question of sparing a convict found guilty of such a crime".
Recently, another three judge bench of the Supreme Court has, in Parbatbhai Aahir v. State of Gujarat, (2017) 9 SCC 641, after considering the entire gamut of law on the subject, laid down:
"16. The broad principles which emerge from the precedents on the subject, may be summarised in the following propositions:
16.1. Section 482 preserves the inherent powers of the High Court to prevent an abuse of the process of any court or to secure the ends of justice. The provision does not confer new powers. It only recognises and preserves powers which inhere in the High Court.
16.2. The invocation of the jurisdiction of the High Court to quash a first information report or a criminal proceeding on the ground that a settlement has been arrived at between the offender and the victim is not the same as the invocation of jurisdiction for the purpose of compounding an offence. While compounding an offence, the power of the court is governed by the provisions of Section 320 of the Code of Criminal Procedure, 1973. The power to quash under Section 482 is attracted even if the offence is non-compoundable.
16.3. In forming an opinion whether a criminal proceeding or complaint should be quashed in exercise of its jurisdiction under Section 482, the High Court must evaluate whether the ends of justice would justify the exercise of the inherent power.
16.4. While the inherent power of the High Court has a wide ambit and plenitude it has to be exercised (i) to secure the ends of justice, or (ii) to prevent an abuse of the process of any court.
16.5. The decision as to whether a complaint or first information report should be quashed on the ground that the offender and victim have settled the dispute, revolves ultimately on the facts and circumstances of each case and no exhaustive elaboration of principles can be formulated.
16.6. In the exercise of the power under Section 482 and while dealing with a plea that the dispute has been settled, the High Court must have due regard to the nature and gravity of the offence. Heinous and serious offences involving mental depravity or offences such as murder, rape and dacoity cannot appropriately be quashed though the victim or the family of the victim have settled the dispute. Such offences are, truly speaking, not private in nature but have a serious impact upon society. The decision to continue with the trial in such cases is founded on the overriding element of public interest in punishing persons for serious offences.
16.7. As distinguished from serious offences, there may be criminal cases which have an overwhelming or predominant element of a civil dispute. They stand on a distinct footing insofar as the exercise of the inherent power to quash is concerned.
16.8. Criminal cases involving offences which arise from commercial, financial, mercantile, partnership or similar transactions with an essentially civil flavour may in appropriate situations fall for quashing where parties have settled the dispute.
16.9. In such a case, the High Court may quash the criminal proceeding if in view of the compromise between the disputants, the possibility of a conviction is remote and the continuation of a criminal proceeding would cause oppression and prejudice; and 16.10. There is yet an exception to the principle set out in propositions 16.8. and 16.9. above. Economic offences involving the financial and economic well-being of the State have implications which lie beyond the domain of a mere dispute between private disputants. The High Court would be justified in declining to quash where the offender is involved in an activity akin to a financial or economic fraud or misdemeanour. The consequences of the act complained of upon the financial or economic system will weigh in the balance.
Thus, while such agreement (as is claimed to have been reached in the present case) may not even be permissible or be read in evidence in cases involving heinous crime etc., however, in certain circumstances, under above noted decisions of the Supreme Court, some prosecutions may quashed by the High Courts in exercise of their inherent powers under Section 482 Cr.P.C. to prevent abuse of process of court and / or to secure the ends of justice.
Once the parties to a dispute approach this Court under section 482 Cr. P.C. and submit that the dispute between them was really civil in nature and that they have resolved the same and further, in such circumstances, the informant/injured party comes before this Court and unequivocally states that he as key witness of the prosecution does not wish to press charges against the accused, the Court must examine whether the wrong was personal to the injured or to the society at large and also the Court has to keep in mind the nature and extent of injury. In those facts, the Court has to then also be mindful of the likely course the trial may take, in view of key witness having clearly disclosed his intent to not lead evidence against the accused.
Admittedly, in the instant case, informant/prosecution witnesses have yet not expressed their intent to withdraw the prosecution. In fact, in view of submissions advanced by learned counsel for the informant, it is appears, at present, at the trial, the informant is likely to lead evidence consistent with the material including his statement recorded under section 161 Cr.P.C., during investigation. Those statements and material had been examined by this Court in the earlier proceedings instituted by the accused under section 482 Cr.P.C. The deeds being relied upon by the accused would only be evidence in defence that may have to be proved and their consequence examined by the trial court at appropriate stage. Suffice it to note, at this stage those documents do not appear to be evidence that the accused had not committed any offence.
Thus, in entirety of the facts and circumstances noted above, it is not for this Court to examine, at this stage, whether the prosecution deserves to be quashed. In absence of any recital in the settlement deed or the second settlement deed and there being absence of any other evidence to establish that the informant now believes that no offence as had been alleged was ever committed, the prosecution cannot be quashed at this stage, merely because a conditional agreement exists between the parties to mutually withdraw from criminal prosecution lodged against each other, upon fulfillment of certain conditions.
The mere fact that the said settlement deed or the second settlement deed arises from the same contract between the parties and merely because under those deeds civil liability appears to have been determined in favour of the accused, at present, it does not indicate, to any extent that the offence as alleged never occurred.
The said deeds are silent as to culpability or otherwise of the accused in the offence as alleged. Then, there is no recital in the said deeds expressing an unconditional promise by the informant to withdraw from the prosecution under consideration. Only conditional and mutual promise made in that regard exist. Even otherwise, if that promise were to be held existing, it cannot be enforced against the informant against his wishes, that too in a proceeding under section 482 Cr.P.C. At best, it may be evidence that may be relied in defence during trial.
In view of the above, there does not appear any merit in the present set of applications filed by the accused, at this stage.
Though there is no doubt that it was wholly desirable and essential that the facts stated in paragraphs 18 and 25 of the affidavit now placed before the Court should have been brought to the knowledge of the Court before the order dated 17.4.2018 came to be passed, however, in view of the argument advanced by Sri Sudeep Harkauli, as noted above, non-disclosure of such facts, though undesirable, it does not make any difference, since, in effect the order dated 17.4.2018 only sought to enforce the earlier order dated 5.11.2016 and it is further undisputed that there was no interim order passed in the present (second) section 482 Cr.P.C. applications filed by the accused.
Thus insofar as the recall application no. 12855 of 2018 has been filed by the informant, neither the order dated 17.04.2018 deserves to be recalled as that has been passed to give effect to the earlier order passed by this Court nor any further directions are required to be issued in that application. It is expected that the learned court below shall take all steps required to give effect to the earlier order passed by this Court.
Consequently the applications U/s 482 Cr.P.C. Nos. 6925 of 2018 and 42523 of 2017 are dismissed, at this stage.
The application U/s 482 Cr.P.C. 12855 of 2018 is disposed of, leaving it open to the learned court below to give effect to the earlier order passed by this Court dated 05.11.2016.
Order Date :- 21.5.2018 Lbm/-