Calcutta High Court (Appellete Side)
(M/S. Nik Nish Retail Ltd. & Ors vs C.B.I. & Anr.) on 2 August, 2018
Author: Shivakant Prasad
Bench: Shivakant Prasad
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9 02.08.2018 CRR 1682 of 2018
an Court No. 33
(M/s. Nik Nish Retail Ltd. & Ors. vs. C.B.I. & anr.)
Mr. Sandipan Ganguly, Sr. Adv.
Mr. Ayan Bhattacharya
Mr. Anand Keshari
Ms. Shivangi Thad
Mr. Sekhar Mukherjee
............. for the Petitioner
Mr. Ranajit Chowdhury
Ms. Sabori Saha
............. for the opposite party No. 2
Mr. Debasish Basu
Ms. Debjani Roy
.............. for the C.B.I.
The petitioners have sought for quashing of proceedings of G.R. Case No.
2406 of 2011 under Sections 120B read with Section 420 of Indian Penal Code
pending before the learned Metropolitan Magistrate, 21st Court, CBI Court, Calcutta
arising out of CBI, BS & FC, Kolkata, Regular Case No. RCBSK2009E0008 dated
11.09.2009 inter alia on the grounds that the continuation of the proceedings would
amount to abuse of process of court inasmuch as the dispute by and between the
parties has been settled out of Court.
The evidence under Section 420 of the Indian Penal Code is
compoundable in terms of Section 320 of the Code of Criminal Procedure. The
offence under Section 120B of the Indian Penal Code which defines criminal
conspiracy is applied alongwith the substantive charge under Section 420 of Indian
Penal Code which is compoundable in nature.
The petitioners are public servants. No substantive offence under the
provisions of Prevention of Corruption Act has been alleged against them. The civil
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liability of the petitioners to pay the amount to the opposite party No. 2 has been
settled amicably and no subsisting grievance of the opposite party No. 2 in this
regard is alive.
The learned counsel appearing on behalf of the petitioner has relied
upon a decision of the Hon'ble Supreme Court in CBI, Mumbai vs. Narendra Lal Jain
& Ors. reported in (2014) 5 SCC 364 and for quashing of the proceedings, brought
my attention to paragraph 13 of the said judgment and argued that the offence with
which the accused had been charged under Sections 120B/420 of the Indian Penal
Code and the civil liabilities of the accused persons to pay the amount to the Bank
as already been settled amicably. There is no subsisting grievance of the Bank in
this regard as observed in the aforesaid paragraphs. Paragraph 13 is quoted
hereinbelow:
"13. In the present case, as already seen, the offence with
which the respondent-accused had been charged are under
Sections 120B/420 of the Penal Code. The civil liability of the respondents to pay the amount to the Bank has already been settled amicably. The terms of such settlement have been extracted above. No subsisting grievance of the Bank in this regard has been brought to the notice of the Court. While the offence under Section 420 IPC is compoundable the offence under Section 120B IPC is not. To the latter offence the ratio laid down in B. S. Joshi and Nikhil Merchant would apply if the facts of the given case would so justify. The observation in Gian Singh will not be attracted in the present case in view of the offences alleged i.e. under Sections 420/120B IPC." The learned counsel appearing on behalf of the petitioner further relied on a decision reported in Anita Maria Dias & anr. vs. State of Maharashtra & anr. reported in (2018) 3 SCC 290 in support of the case adverting to paragraph 7(29.7) which is set out hereunder:
"7(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 3 in accepting the settlement to quash the criminal proceedings/investigation. It is because of the reason that 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."
In the present case, chargesheet has been filed and charges have been framed accordingly but at the stage of consideration of charge, there was a stay by the learned Additional Sessions Judge concerned.
Against the framing of charges on 05.04.2016, being aggrieved, the petitioners filed the revisional application under Sections 397/399 of the Code of Criminal Procedure before the Court of learned Chief Judge, City Sessions Court, Calcutta registered as Criminal Revision No. 92/2016 wherein the learned Chief Judge, City Sessions Court, Calcutta by its order dated 05.07.2016 stayed the operation of the impugned order dated 05.04.2016 passed by the learned Metropolitan Magistrate, 21st Court, CBI Court, Calcutta in G. R. Case No. 2406 of 2011 till next date of hearing is fixed.
My attention is invited to the joint petition filed on behalf of the Union of India & Vishi Commercial Pvt. Ltd & Ors represented by the present petitioners before the Debt Recovery Tribunal (III), Calcutta which reflects the settlement by and between the parties.
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The learned counsel further draws my attention to the order dated 27.10.2016 passed by the Presiding Officer of Debt Recovery Tribunal (III), Calcutta. It would be profitable for appraisal of the instant case to reproduce the relevant order of the Debt Recovery Tribunal (III), Calcutta hereinbelow:
"The aggregate dues claimed in all the above three cases are Rs. 15,57,72,600.15 (Rupees fifteen crore fifty seven lac seventy two thousand six hundred and paise fifteen). During the pendency of the proceedings there has been amicable settlement in all the three accounts between the Applicant Bank and the Defendants (who are sister concerns/Group Companies). A composite proposal has been made by the Defendants to the Applicant Bank. Applicant Bank has considered the same and the Management Committee of the Bank; who is authorized as competent authority to consider this proposal, considered and approved the same in their meeting dated 12th August, 2016, stating terms and conditions therein. Accordingly, above mentioned joint applications have been moved by the parties before this Tribunal stating the terms and conditions of settlement in paragraphs 4, 5, 6 and 8. In terms of the said paragraphs, Defendants agreed that in all the three O.A.s the Defendants shall pay a sum of Rs. 6.00 crore (Rupees six crore) by 31st March 2017 as full and final settled amount; out of which Rs. 1,10,00,000.00 (Rupees one crore ten lac) has already been paid by the Defendants as per the agreed terms and balance amount is to be paid upto 31st March, 2017.
It has further been agreed that in the event of default on the part of the Defendants in making payment of settled amount within stipulated time. Recovery Certificate shall be issued for recovery of the dues in terms of para 8 of the joint petitions. The petitions have been affirmed by one Sri Bharat Jain on behalf of the Defendants and one Sri Jagmohan, Chief Manager of the Bank by putting their signatures. The signatures have been authenticated by the Learned Counsel for the parties. Accordingly, Defendants are allowed to pay the settled amount in satisfaction of claim made in the O.A.s."
It is further pointed out from annexure P-7 to the revisional application wherefrom it is revealed that one time settlement of the account of M/s. Nik Nish Retails Ltd., M/s. N. B. Services E. Com and M/s. Vishi Commercial Pvt. Ltd. NPA accounts of the Branch have been arrived at with effect that the amount is out of total settlement and an amount of Rs. 6 lacs in three accounts of the said Companies and as per the latest modified O.T.S. approval, the Guarantor/Director of the said Companies was requested to pay Rs. 3.50 crores plus delayed 5 payment interest, if any and the remaining amount was payable as soon as possible.
It is contended by the Bank authorities that an amount of Rs. 2.50 crores have already been paid as on the date and Rs. 3.50 crores are yet to be paid.
By the order dated 24.07.2018, it was submitted on behalf of the Union Bank of India, that the order dated 10.12.2013 passed by the learned Judge, CBI Court, Calcutta whereby a condition was imposed on the original title deed that may be released in favour of the Bank by the CBI Authority on furnishing a bond of Rs. 2 lacs with an undertaking that the Bank will produce the original document before the CBI.
It is further contended by the Bank that a bond of Rs. 2 lacs has already been furnished. So the original deed is supposed to be released by the CBI in favour of the Bank but the original deed is still with the CBI Authority as pointed out by the Bank Authorities.
The petitioner further invited my attention to the fact that as per the condition imposed by the learned Judge concerned, CBI, the Bank is not in a position to put the property under the title deed under auction for sale in order to realization of the dues.
Having taken into consideration the one time settlement arrived at by and between the defacto-complainant, the opposite party No. 2 and the petitioners, bearing in mind, the principles as laid down by the Hon'ble Supreme Court in the above cited decisions, I am of the view that the CBI will handover the original title deed to the Union Bank of India to facilitate the Bank to act accordingly.
Thus, considering the dispute and the civil liabilities between the defacto-complainant, the opposite party No. 2 and the petitioners, stood compromised by one time settlement amicably, I do not find any grievance of the Bank authorities for continuation of the proceedings under reference pending before 6 the learned court below.
Hence, having regard to the fact that Section 420 of the Indian Penal Code read with Section 120B of the Indian Penal Code is compoundable in nature, this Court is inclined to quash the proceedings pending against the petitioners in connection with the aforesaid G. R. Case No. 2406 of 2011 and, accordingly, the proceeding under reference pending before the learned court below is quashed.
With the above observations, the instant criminal revisional application stands disposed of.
Urgent photostat certified copy of this order, if applied for, shall be given to the parties as expeditiously as possible on compliance of all necessary formalities.
(Shivakant Prasad, J.)