Gujarat High Court
Jaiprakash Kamleshwarprasad vs State Of Gujarat & on 18 September, 2013
Author: K.M.Thaker
Bench: K.M.Thaker
JAIPRAKASH KAMLESHWARPRASAD JUYULV/SSTATE OF GUJARAT R/CR.MA/5670/2012 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE FIR/ORDER) NO. 5670 of 2012 ================================================================ JAIPRAKASH KAMLESHWARPRASAD JUYUL & 2....Applicant(s) Versus STATE OF GUJARAT & 1....Respondent(s) ================================================================ Appearance: M/S THAKKAR ASSOC., ADVOCATE for the Applicant(s) No. 1 - 3 MR PA JADEJA, ADVOCATE for the Respondent(s) No. 2 MS REETA CHANDARANA APP for the Respondent(s) No. 1 ================================================================ CORAM: HONOURABLE MR.JUSTICE K.M.THAKER Date : 18/09/2013 ORAL ORDER
In present petition, under Section 482 of the Code of Criminal Procedure, the petitioners have prayed that:-
10(A) YOUR LORDSHIPS be pleased to call for the record and proceedings of FIR registered as C.R.No.I-77/2012 with Navrangpura Police Station and after perusing the same be pleased to quash the impugned FIR, in the interest of justice;
1.1 The offence alleged in the complaint are punishable under Sections 406, 420 and 114 of IPC.
2. As regards the facts involved in the petition, the petitioners have averred that:-
1. The petitioners herein are the employees of Karvy Stock Broking Ltd. The petitioners are serving with Karvy Stock Broking Ltd. having its office at 3rd Eye Building, 2nd Floor, Panchvati Circle, Navrangpura, Ahmedabad. The petitioner no.1 is original accused in connection with FIR registered as C.R.No.I-77/2012 with Navrangpura Police Station, for the offence punishable u/s. 406, 420 and 114 of IPC. ....
2. The petitioners respectfully submit that the petitioner no.1 is an employee of Karvy Stock Broking Ltd. The petitioner no.1 was arrested by Police and has been released on bail by the Ld. City Sessions Judge, Ahmedabad in Criminal Misc. Application No.1308/2012. The petitioner no.2 and 3 are the employees of Karvy Stock Broking Ltd.
The investigating officer is harassing the petitioner no.2 and 3 that their names are also disclosed in this offence. The petitioner no.2 and 3 are pressurized in this matter. In view of this, the petitioners have approached this Hon'ble Court for quashing the impugned FIR.
4.1 The petitioners respectfully submit that the petitioner no.1 is serving as an Assistant Manager, the petitioner no.2 is serving as the Manager and the petitioner no.3 is serving Assistant General Manager with Karvy Stock Broking Ltd., a company registered under the Companies Act, 1956 and having its registered office at 46, Avenue 4, Road No.10, Banjara Hills, Hydrabad 500034 and having branch offices all over India including at Ahmedabad.
4.7 The petitioners respectfully submit that during the course of business, the complainant approached the employer-company for opening of Trading Account for the purpose of trading in securities and also executed Client Member Agreement on 16.05.2011. The complainant executed all the requisite formalities for opening of Trading Account and Demat Account, the complainant executed power of attorney in favour of the employer-company. ...
The petitioners respectfully submit that as per the procedure, the customer has to fill up a form for giving Consent for maintenance of running account . There is a specific Clause 5 in this form, which reads as under:
5. In case of any debit balance in my/our account, you can square of my/our securities held with you by me/us to the extent of my/our debit balance without any notice to me/us.
It is submitted that the complainant has filled up this form. The form bears the signature of the complainant. In view of this, it is clear that the complainant had an idea that the employer-company was entitled to square off her securities in case of any debit balance in the account without any notice to her. ...
3. After the complainant filed the said complaint, the original accused petitioners herein, filed present petition.
It appears that around the time present petition was filed, an amicable settlement was arrived at between the accused and the complainant.
It also appears that learned counsel for both sides admitted the factum of settlement.
4. In present petition, this Court passed order dated 27.8.2013, which reads thus:-
Heard learned advocate for the parties.
Learned senior counsel Mr. D. C Dave for respondent No. 2 submitted that the respondent no. 2 viz Dr. Parika Nitin Shah is present before this Court and that she has settled the matter with the petitioners.
Learned advocate has submitted that the dispute between the respondent no. 2 and the petitioners is settled. Respondent no. 2 has requested that she does not want to prosecute the complaint in view of the settlement arrived at with the petitioners. The respondent has also submitted that the dispute with the petitioners is settled outside the Court and she does not have any grievance against the petitioner. In view of the statement, she does not want to prosecute the complaint.
Mr. Dave learned senior counsel informs that with consent there is a settlement between the parties and the affidavit to that effect is to be filed by the respondent no. 2 and the same shall be filed and placed on record by the respondent no. 2. Time is granted upto 5th September 2013.
4.1 Thereafter, on 5.9.2013, this Court passed further order. The said order dated 5.9.2013 reads thus:-
1.
When the matter is called out, learned advocate for respondent No.2 is not present.
2. On earlier occasion, it was mentioned by learned advocates for the applicants and the respondent that the dispute between the complainant and the applicants is settled. The proceedings were adjourned so as to enable learned advocate for the complainant to place on record affidavit declaring that the dispute is settled and she, i.e. complainant does not want to proceed with / prosecute the complaint further. However, today when the matter is called out and taken up for hearing, it is informed that until now the complainant has not filed the affidavit stating that the dispute is amicably settled and she does not want to proceed with the complaint further.
3. Since learned advocate for the complainant is not present, it is not able to ascertain as to whether the complainant is inclined to make such affidavit or not.
4. At the request of learned advocate for the applicants, hearing is adjourned to 18.9.2013.
5. After the said two orders, the complainant has filed affidavit dated 18.9.2013. Learned counsel for respondent has stipulated that affidavit is made by his client and that the settlement and affidavit have been made by the respondent complainant voluntarily and without force or influence and the same are signed by his client.
In the affidavit, the complainant has stated and declared that:-
1. I submit that I am the Original Complainant of FIR registered as C.R.NO.I-77/2012 with Navrangpura Police Station, for the offences punishable u/s. 406, 420 and 114 of the Indian Penal Code, against the petitioners.
I state that the issue in dispute was relating to transactions from the account of the complainant, which was maintained by the petitioners on behalf of Karvy Stock Broking Ltd. The issue has been now resolved between the complainant and the company of which the petitioners are the employees.
I submit that there is now a compromise entered into between the parties and I have no grievance against thepetitioners. I further submit that the dispute has been now resolved. Thus, I have no objection if the impugned FIR is quashed.
Apropos the aforesaid I state and submit that in view of the settlement entered into between the complainant and the petitioners, no useful purpose would be served by continuing the prosecution further in the aforesaid complaint filed by me. I reiterate that the matter is settled and there is no grievance on my part against the petitioners. I state that present FIR may kindly be quashed as my grievance against the petitioners does not survive any longer.
5. I submit that the settlement arrived at between the parties is out of my free will and without any pressure from any person and without having been influenced by any one. I earnestly request this Hon'ble Court to quash the impugned FIR in the interest of justice.
6. Learned advocate for the petitioners submitted that the dispute between the complainant and the accused persons does not involve any public law element and also does not have any public law overturns. He also submitted that the dispute is settled and learned advocate for the petitioners also submitted that respondent No.2 does not want to prosecute her complaint further and has no objection if the complaint is quashed. Learned advocate for the petitioners submitted that merely because the offence is not compoundable, it may not deter or restrain the Court from quashing the complaint if the Court is satisfied that the process of prosecution would be futile in view of the settlement between the parties and would cause hardships to the parties and would also burden on Court's time, besides the costs and expenses in terms of money.
7. Learned advocate for respondent No.2 has adopted the submission by learned advocate for the petitioners and has also supported the request made by the petitioners. Learned advocate for respondent No.2 also admitted that the parties to the dispute have arrived at voluntary settlement and respondent No.2 now does not want to prosecute his complaint further and she has no objection if the complaint is quashed. Learned advocate for respondent No.2 also submitted that the complainant admits the factum of settlement as well as the fact that she has made and filed an affidavit declaring that the dispute is settled and that the settlement and the affidavit have been made voluntarily and without force and/or influence. Learned advocate for respondent No.2 submitted that respondent has no objection if the complaint is quashed.
8. Learned APP has submitted that if the complainant does not want to prosecute the complaint further, then the respondent State has no objection if the relief prayed for in application is granted.
9. In view of the said submissions by learned advocate for the petitioners and the respondents, it is appropriate to take into account the observations made in the decisions by the Hon'ble Apex Court in the case of C.G. Alias Pappu & Ors vs. Radhika & Anr. [(2012) 1 SCC (Cri.) 101; in the case of Nikhil Merchant vs. Central Bureau of Investigation & Anr. [(2008) 9 SCC 677. In the said case of Nikhil Merchant (supra), the Hon'ble Apex Court observed that:
8. This appeal has been filed against the said order of the High Court rejecting the appellant's prayer for discharge from the criminal complaint.
9.
Appearing for the appellant, Mr. R. Nariman, learned senior advocate, submitted that the appellant was not the direct beneficiary of the loans which had been granted by the complainant-Bank, but had stood guarantee for the same in his capacity as the Managing Director of the Company to whom such loans had been advanced. Mr. Nariman submitted that while the loans were said to have been advanced to the Company-Accused No. 4 between 1986 and 1989, the suit for recovery of the unpaid dues was filed by the Andhra Bank in 1992 and two years there after the complaint was lodged by the Bank on 19th September, 1994 and the charge-sheet was filed by the CBI four years later on 30th December, 1998. Thereafter, the suit filed by the Bank for the recovery of its dues was compromised by a consent decree on 12th October, 2000, and in view of clause 11 of the consent terms, apart from the said suit, all other actions, including the criminal proceedings, also stood compounded. In support of his aforesaid submissions, Mr. Nariman also relied the decision rendered by this Court in the Duncans Agro case (supra) and B. S. Joshi's case (supra) and submitted that the High Court had erred in coming to a finding that the said two decisions had no application to the case in hand.
10. It is also relevant to take into consideration the observations by the Hon'ble Apex Court in the case of Madan Mohan Abbot vs. State of Punjab [(2008) 4 SCC 582] wherein, the Hon'ble Apex Court observed that:
4. We have heard the learned counsel for the parties. Concededly a compromise deed has been executed between the parties on 25th January 2002 in which it has been inter alia recorded as under :
"Whereas for the past some time some dispute had arisen in between both the parties regarding which first party has got an FIR No. 155/2001 registered under Sections 379/406/409/418/34 of IPC in P.S. Kotwali Amritsar. After the registration of aforesaid criminal case a compromise has been arrived at in between both the parties. As a result of which both the parties have resolved their differences once for all. Now second party does not owe anything to the first party and first party has undertaken to co-operate with second party in every manner to get the aforesaid FIR cancelled/ quashed from appropriate Forum. Furthermore first party has no objection if the bail of second party be accepted. Rather first party shall co-operate with second party in every manner to secure bail for him. In view of the compromise arrived at in between the parties entire differences and tensions those had arisen in between both the parties stands resolved and both the parties have undertaken not to file any proceedings either civil or criminal or any other such like proceedings against one another in any court of law at Amritsar or any other place within or outside India. This compromise is hereby executed in between both the parties in the presence of marginal witnesses on this 25th day of January 2002 at Amritsar."
5. It is on the basis of this compromise that the application was filed in the High Court for quashing of proceedings which has been dismissed by the impugned order. We notice from a reading of the FIR and the other documents on record that the dispute was purely a personal one between two contesting parties and that it arose out of extensive business dealings between them and that there was absolutely no public policy involved in the nature of the allegations made against the accused. We are, therefore, of the opinion that no useful purpose would be served in continuing with the proceedings in the light of the compromise and also in the light of the fact that the complainant has, on 11th January 2004, passed away and the possibility of a conviction being recorded has thus to be ruled out. We need to emphasize that it is perhaps advisable that in disputes where the question involved is of a purely personal nature, the Court should ordinarily accept the terms of the compromise even in criminal proceedings as keeping the matter alive with no possibility of a result in favour of the prosecution is a luxury which the Courts, grossly overburdened as they are, cannot afford and that the time so saved can be utilized in deciding more effective and meaningful litigation. This is a common sense approach to the matter based on ground of realities and bereft of the technicalities of the law. We see from the impugned order that the learned Judge has confused a compounding of an offence with the quashing of proceedings. The outer limit of Rs.250/- which has led to the dismissal of the application is an irrelevant factor in the later case. We accordingly allow the appeal and in the peculiar facts of the case, direct that FIR No. 155 dated 17th November 2001 P.S. Kotwali, Amritsar and all proceedings connected therewith shall be deemed to be quashed.
11. Thereafter, recently in the decision in the case of Gian Singh vs. State of Punjab & Anr. [(2012) 10 SCC 303], wherein the Hon'ble Apex Court observed that:
48. The question is with regard to the inherent power of the High Court in quashing the criminal proceedings against an offender who has settled his dispute with the victim of the crime but the crime in which he is allegedly involved is not compoundable under Section 320 of the Code.
54. Where High Court quashes a criminal proceeding having regard to the fact that dispute between the offender and victim has been settled although 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 wrong doing that seriously endangers and threatens well-being of 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 compoudable in law, with or without 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 Prevention of Corruption Act or the offences committed by public servants while working in that capacity, the settlement between offender and 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 victim and the offender and 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 F.I.R if it is satisfied that on the face of such settlement, there is hardly any likelihood of 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.
55.
B.S. Joshi1, Nikhil Merchant, Manoj Sharma and Shiji alias Pappu do illustrate the principle that High Court may quash criminal proceedings or FIR or complaint in exercise of its inherent power under Section 482 of the Code and Section 320 does not limit or affect the powers of the High Court under Section 482. Can it be said that by quashing criminal proceedings in B.S. Joshi, Nikhil Merchant, Manoj Sharma and Shiji alias Pappu, this Court has compounded the noncompoundable offences indirectly? We do not think so. There does exist the distinction between compounding of an offence under Section 320 and quashing of a criminal case by the High Court in exercise of inherent power under Section 482. The two powers are distinct and different although ultimate consequence may be same viz., acquittal of the accused or dismissal of indictment.
56. We find no incongruity in the above principle of law and the decisions of this Court in Simrikhia, Dharampal, Arun Shankar Shukla, Ishwar Singh, Rumi Dhar (Smt.). and Ashok Sadarangani. The principle propounded in Simrikhia14 that the inherent jurisdiction of the High Court cannot be invoked to override express bar provided in law is by now well settled. In Dharampal15, the Court observed the same thing that the inherent powers under Section 482 of the Code cannot be utilized for exercising powers which are expressly barred by the Code. Similar statement of law is made in Arun Shankar Shukla16. In Ishwar Singh, the accused was alleged to have committed an offence punishable under Section 307, IPC and with reference to Section 320 of the Code, it was held that the offence punishable under Section 307 IPC was not compoundable offence and there was express bar in Section 320 that no offence shall be compounded if it is not compoundable under the Code. In Rumi Dhar (Smt.) although the accused had paid the entire due amount as per the settlement with the bank in the matter of recovery before the Debts Recovery Tribunal, the accused was being proceeded with for commission of offences under Section 120-B/420/467/468/471 of the IPC along with the bank officers who were being prosecuted under Section 13(2) read with 13(1)(d) of Prevention of Corruption Act. The Court refused to quash the charge against the accused by holding that the Court would not quash a case involving a crime against the society when a prima facie case has been made out against the accused for framing the charge. Ashok Sadarangani34 was again a case where the accused persons were charged of having committed offences under Sections 120-B, 465, 467, 468 and 471, IPC and the allegations were that the accused secured the credit facilities by submitting forged property documents as collaterals and utilized such facilities in a dishonest and fraudulent manner by opening letters of credit in respect of foreign supplies of goods, without actually bringing any goods but inducing the bank to negotiate the letters of credit in favour of foreign suppliers and also by misusing the cash-credit facility. The Court was alive to the reference made in one of the present matters and also the decisions in B.S. Joshi, Nikhil Merchant and Manoj Sharma and it was held that B.S. Joshi, and Nikhil Merchant dealt with different factual situation as the dispute involved had overtures of a civil dispute but the case under consideration in Ashok Sadarangani was more on the criminal intent than on a civil aspect. The decision in Ashok Sadarangani supports the view that the criminal matters involving overtures of a civil dispute stand on a different footing.
57. The position that emerges from the above discussion can be summarised thus: the power of the High Court in quashing a criminal proceeding or FIR or 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 F.I.R may be exercised where the offender and 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 serious impact on society. Similarly, any compromise between the victim and offender in relation to the offences under special statutes like 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 pre-dominatingly civil flavour stand on 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, High Court may quash criminal proceedings if in its view, because of the compromise between the offender and victim, the possibility of conviction is remote and bleak and continuation of criminal case would put 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 would tantamount to abuse of process of law despite settlement and compromise between the victim and wrongdoer and whether to secure the ends of justice, it is appropriate that criminal case is put to an end and if the answer to the above question(s) is in affirmative, the High Court shall be well within its jurisdiction to quash the criminal proceeding.
12. Having regard to the aforesaid submission by learned advocate for the petitioners and respondent and also having regard to the fact that dispute between the parties is purely a personal and private dispute and any Public Law Element is not involved and considering the fact that the complainant has declared that she has voluntarily and without any force or influence settled the dispute with the petitioners and has declared in her affidavit that she does not want to prosecute the complaint and applying the principles laid down in the aforesaid decisions to the facts of the present case, it is apparent that in view of the compromise arrived at between the parties, permitting the prosecution to continue, would be an exercise in futility. Besides in view of the affidavit filed by the respondent No.2 complainant, chances of an ultimate conviction are also bleak. In the circumstances, the interest of justice would be best served if the first information report is quashed. This is, therefore, a fit case for exercising powers under Section 482 of the Code to prevent abuse of the process of Court. The complaint deserves to be quashed.
13. Having regard to aforesaid aspects, below mentioned order is passed:-
13.1 The relief prayed for in para 10(A) is granted only qua the petitioners herein and the complaint/FIR being CR No.I-77 of 2012 registered at Navrangpura Police Station is quashed qua the petitioners herein.
Rule is made absolute to the said extent. No costs.
Direct service is permitted.
(K.M.THAKER, J.) kdc Page 14