Delhi High Court
Dhanpat Bothra vs State Of Delhi Govt. Of N.C.T. Of Delhi & ... on 29 September, 2008
Author: Sudershan Kumar Misra
Bench: Sudershan Kumar Misra
* THE HIGH COURT OF DELHI AT NEW DELHI
+ Crl.M.C. No.2856/2008
Date of Decision : September 29, 2008
Dhanpat Bothra ......Petitioner
Through : Mr. R.S. Mor,
& Mr. Nitin Ahlawat,
Advocates
Versus
State of Delhi
Govt. of N.C.T. of Delhi & Anr. ......Respondents
Through : Mr. Jaideep Malik,
Advocate for the State
CORAM :
HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA
1. Whether Reporters of local papers may be
allowed to see the judgment? Yes
2. To be referred to the Reporter or not ? Yes
3. Whether the judgment should be reported
in the Digest ? Yes
SUDERSHAN KUMAR MISRA, J
1. This petitioner has moved this Court under Section 482
of the Code of Criminal Procedure. He prays that FIR
No.81/2008, u/s 406 IPC, registered at Police Station Chandni
Chowk, Delhi and the proceedings initiated therefrom, be
quashed.
2. Sh. Hansraj Kochar, who is arrayed as respondent No. 2,
is a businessman. He deals in jewellery at Vaidwara, Chandni
Chowk, Delhi. The petitioner, Mr. Dhanpat Bothra, was
Crl.M.C. No.2856/2008 Page 1 of 14
working for him. He used to sell Mr. Kochar‟s diamond
jewellery on his behalf. For this, he was paid a commission by
Mr. Kochar. Since the nature of business as well as the
arrangement between the two required a high degree of trust,
the petitioner always remained in touch with and available to
Mr. Kochar. However, on the last occasion, after the
petitioner was entrusted with jewellery to sell, he failed to
contact Mr. Kochar for nearly 20/25 days, and Mr. Kochar was
unable to trace him. Consequently, on 6.6.2008 on the
petitioner‟s complaint, the police registered the impugned FIR
No.81/2008 at Police Station Chandni Chowk/ Town Hall. The
said FIR which has been recorded in Hindi and English states,
inter alia, that, it appears to the complainant that Mr. Dhanpat
Bothra has misappropriated his goods worth Rs.13,00,000/-
with a mala fide intention.
3. Ultimately, on 17.6.2008, the petitioner, Dhanpat Bothra
was arrested by the police. He was produced before the court
and was sent to judicial custody. It is claimed that thereafter
by a compromise deed dated 16.7.2008 the petitioner,
Dhanpat Bothra and the complainant, Mr. Hansraj Kochar,
second respondent herein, have resolved their disputes
amicably. Mr. Bothra therefore wants the aforesaid FIR
registered against him to be quashed by this Court.
4. The Counsel for the petitioner contends that the said FIR
was registered due to, "certain misunderstandings", between
the petitioner and the second respondent, which have now
Crl.M.C. No.2856/2008 Page 2 of 14
been sorted out and as the second respondent does not want
to pursue the impugned FIR any more and has also filed his
affidavit to that effect, the impugned FIR be quashed as in fact
no offence at all has been committed. It is also contended that
although the matter cannot be compounded under Section 320
Cr.PC because value of the subject matter in question exceeds
Rs.2,000/-, however, since the parties have compromised the
matter, the impugned FIR should be quashed by this Court. It
is contended by counsel that the effect of the decisions of the
Supreme Court and this Court is that the Court ought to quash
proceedings in all such cases for the asking.
5. On the other hand, counsel for the State has handed over
a copy of one more FIR bearing No.138/2008 which was
registered at Police Station Sarai Rohilla on 30th May, 2008
against the petitioner. This FIR has been registered on the
complaint of one Ms. Kavita Lunia. This also records a
complaint regarding misappropriation of jewellery by the
petitioner in collusion with one Sh. Sunil Singhvi. The
allegations there are substantially similar to those in the
impugned FIR. It states, inter alia, that the petitioner had
introduced the said Sunil Singhvi to the complainant and the
complainant had entrusted the jewellery worth Rs.17,86,900/-
to Mr. Sunil Singhvi because of the petitioner‟s reference. It
further states that Mr. Singhvi has been absconding ever since
27th May, 2008 with the property entrusted to him, and that
the address furnished by Mr. Singhvi was found to be
Crl.M.C. No.2856/2008 Page 3 of 14
incorrect. It also states that both Mr. Sunil Singhvi and the
petitioner are absconding since 27th May, 2008, and that all
the complainant‟s jewellery is in their possession.
6. Mr. Malik, who appears for the State, points out that the
allegations in the instant FIR, which has been lodged by a
different dealer in jewellery, are similar. He states that both
these FIRs are under investigation and, under the
circumstances, this is not a case where the impugned FIR
deserves to be quashed. On the other hand, the petitioner‟s
counsel states that since the second FIR is registered against
his client at Police Station Sarai Rohilla, the same is a
separate FIR and has no connection with the impugned FIR.
He says that these two FIRs are, "that way independent".
Presumably, he means that the existence of the second FIR
can have no bearing on the decision of this Court to quash the
impugned FIR since the complainant in this FIR has settled
the matter with the accused petitioner. In addition, counsel
for the petitioner has contended that the impugned FIR came
to be lodged by the complainant on what was, according to
him, "merely a misapprehension" and to that extent, it was not
really a complaint of misappropriation, therefore also, once
the complainant has executed a compromise deed on
16.7.2008 acknowledging that the said FIR was registered,
"due to certain misunderstanding", which has now been
resolved "with the intervention of respectable persons of the
society and common friends of both sides", the said FIR
Crl.M.C. No.2856/2008 Page 4 of 14
deserves to be quashed.
7. I do not agree with the contentions of learned counsel for
the petitioner. To my mind, the proposition that even in cases
where the offence is not compoundable under Section 320 of
the Cr.PC, once the complainant and accused had arrived at a
settlement, the Court ought to quash the FIR for the asking, is
not sustainable in law for a number of reasons. Section 320,
Cr.PC, which deals with compounding of offences, envisages
three types of offences - the first are those which are
compoundable by the person mentioned in column 3 of Section
320(1); the second are those that are compoundable by the
person mentioned in column 3 of Section 320(2) with the
permission of the Court; the third category consists of the
remaining offences which do not fall either under Section
320(1) or Section 320(2) of the Cr.PC. This third category is
the subject matter of clause (9) of Section 320 Cr.PC which
states that, "No offence shall be compounded except as
provided by this section." An offence under Section 406 of the
IPC, as in the instant case, has been made compoundable with
the permission of the Court under Section 320(1), Cr.PC,
provided the amount involved is less than Rs.2000/-. In this
case, since the amount is Rs.13,00,000/-, which is far greater,
it falls under the third category mentioned above and
therefore the same is not compoundable under Section 320
even with the permission of the Court. To thereafter hold that
merely because both the complainant and the accused have
Crl.M.C. No.2856/2008 Page 5 of 14
settled the matter amongst themselves, the Court must, in all
such cases, quash the FIR or other proceedings for the asking,
amounts to placing all such cases, as an additional group, in
the first category under Section 320(1). Looking to the
unambiguous language of Section 320(9) of the Cr.PC, this
could never have been intended by the Legislature. In fact
such an approach, as contended by counsel for the petitioner,
would be clearly contrary to the legislature intent, and must
therefore be rejected. I might add that no decision has been
cited by counsel at the bar in support of his proposition.
Indeed I think there is none.
8. Over the years, courts in India have been exercising their
inherent powers to quash proceedings in some non-
compoundable matters, provided they are satisfied that it is
necessary to do so in the interest of justice where they feel
that to permit proceedings to continue would be an abuse of
the process of the Court and a travesty of justice. This has
long been recognized as an exceptional power to be exercised
sparingly and with great caution and circumspection. In this
context, the scope and amplitude of this Court‟s power of
quashing under Section 482, Cr.PC has been enunciated by
this Court in the case of Satnam Kaur & Ors Vs. State 2006
(135) DLT 84 held that:
"7..... Section 320(1) of the Cr.P.C.
provides that offences mentioned in the
table there under can be compounded by
the persons mentioned in the Column
No. 2 of the table. Further, Sub-section
(2) provides that offences mentioned in
Crl.M.C. No.2856/2008 Page 6 of 14
the table could be compounded by victim
with the permission of the Court. No
doubt, even in respect of non-
compoundable offences, the High Court
can exercise the power and quash
criminal proceedings if for the purpose
of securing ends of justice, quashing of
those proceedings becomes necessary.
Judgment of the Hon'ble Supreme Court
in the case of B.S. Joshi and Ors. v. State
of Haryana and Anr. (2003) 4 SCC 675,
acts as guide for the High Court to
determine whether to exercise the
powers under Section 482, Cr.P.C. in a
given case or not. The Court held in that
matter that there was no general
proposition limiting power of quashing
the criminal proceedings or FIR or
complaint as vested in Section 482 or
extraordinary power under Article 226 of
the Constitution of India. Therefore, if
for the purpose of securing the ends of
justice, quashing of FIR becomes
necessary section 320 would not be a
bar to the exercise of power of quashing.
It is, however, a different matter
depending upon the facts and
circumstances of each case whether to
exercise or not such a power.
8. Thus, it is clear that while exercising
the inherent power for quashing under
Section 482, Cr.P.C, it is for this Court to
consider whether it is expedient and in
the interest of justice to permit the
prosecution to continue.
9. The edifice of criminal law is based on
the principle that crime committed
against the particular person is the
crime against the society as well.
Though in that particular case, the
immediate victim may be the person who
is affected by the said crime. This is the
genesis beyond Section 320, Cr.P.C.
which makes only trivial crimes as
compoundable treating those offences as
the ones which can be settled between
the parties. But other offences, which
are non-compoundable, are treated as
crimes against society and, therefore,
normally the consent of the victim to
compound those offences may not be of
Crl.M.C. No.2856/2008 Page 7 of 14
any use. Balance is sought to be
maintained by the judgment of the
Supreme Court in B.S. Joshi and Ors. v.
State of Haryana and Anr. (supra) by
giving the power to the High Court even
in such cases but with rider that there
are special features which may be
present in a particular case and may
warrant in the interest of justice and as a
rule of expediency to give quietus to
those proceedings. Therefore, in the
facts and circumstances of a given case,
High Court has to come to a conclusion
that whether it is expedient or in the
interest of justice to quash the
proceedings in view of the settlement
between the parties, notwithstanding, a
general rule that it is an offence against
the society."
9. Similarly the Kerala High Court in the case of Rajan Vs.
Little House Marketing Pvt. Ltd. 2005 (4) KLT 595 held
that:
"9. I must, at the outset, state that this
argument does not at all appeal to me.
The dictum in B.S. Joshi v. State of
Haryana or in Ittoop v. Kunhikannan
cannot lead a court to the perverse
conclusion that distinction between
compoundable and noncompoundable
offences is obliterated now and every
request for composition of
noncompoundable offences can straight-
away be accepted by this Court while
exercising powers under Section 482
Cr.P.C. That according to me is not the
law at all. The law zealously recognises
the distinction between compoundable
and non compoundable offences. One
has to look at the fundamentals.
Criminal offences are at least fictionally,
assumed to be not merely offences
against personally aggrieved persons.
Crimes are offences against the Society
at large. The mere fact that private
individuals are willing to compound the
offences will not persuade the courts to
discontinue the proceedings initiated on
the basis of the complaints emanating
Crl.M.C. No.2856/2008 Page 8 of 14
from such victims. It is true that in B.S.
Joshi and Ittoop, courts have chosen to
quash proceedings when report of such
composition is made. But that is done,
not merely because the parties have
compounded the offences but because
the courts perceived that in the interests
of justice, powers under Section 482
Cr.P.C. deserve to be invoked in those
cases. Composition by aggrieved
individuals is not the be all and end all
while considering invocation of powers
under Section 482 Cr.P.C. The
distinction between compoundable and
non-compoundable offences does very
much exist even when invocation of
powers under Section 482 Cr.P.C. to
quash criminal proceedings are
requested. The primary and paramount
consideration is and can only be whether
the interests of justice demand the
invocation of the powers."
10. In Madhavrao Jiwajirao Scindia Vs. Sambhajirao
Chandrojirao Angre (1988) 1 SCC 692 the Supreme Court
held that while exercising inherent power of quashing under
Section 482, it is for the High Court to take into consideration
any special features which appear in a particular case to
consider whether it is expedient and in the interest of justice
to permit a prosecution to continue.
11. In the case of Bankat and Anr. Vs. State of
Maharashtra (2005) 1 SCC 343, the Supreme Court held
that;
"In our view, the submission of the
learned Counsel for the respondent
requires to be accepted. For compounding
of the offences punishable under IPC, a
complete scheme is provided under
Section 320 of the Code. Sub-section (1)
of Section 320 provides that the offences
mentioned in the table provided there
under can be compounded by the persons
Crl.M.C. No.2856/2008 Page 9 of 14
mentioned in column 3 of the said table.
Further, Sub-section (2) provides that the
offences mentioned in the table could be
compounded by the victim with the
permission of the court. As against this,
Sub-section (9) specifically provides that
'no offence shall be compounded except
as provided by this section'. In view of the
aforesaid legislative mandate, only the
offences which are covered by Table 1 or
Table 2 as stated above can be
compounded and the rest of the offences
punishable under IPC could not be
compounded."
12. Recently in the case of Devender Singh Vs. State &
Anr. CRL.M.C. No.1304/2004 decided on 23.5.2008, this
Court discussed the scope of Section 482 and after analyzing a
number of cases held that:
"6.5 There can be no doubt therefore
that the scope of the power of the High
Court under Section 482 Cr.PC is wide
enough to pass orders which would
subserve the ends of justice. However, it
has been repeatedly urged that this
power must be exercised sparingly. The
question in each case where such
powers are invoked is whether on the
facts and in the circumstances of the
case, such power such be exercised to
quash the criminal proceedings."
13. Quite clearly therefore, what is to be determined is
whether in the instant case, the impugned FIR deserved to be
quashed in the exercise of this Court‟s inherent power under
Section 482 of the Code. In this case, two FIRs have been
lodged against the petitioner. The impugned FIR in the
instant case was lodged on 6.6.2008 and the other FIR, a copy
of which has been placed on the record by the counsel for the
State, was lodged earlier on, 30.05.2008. It is apparent that
Crl.M.C. No.2856/2008 Page 10 of 14
within a period of seven days, two FIRs came to be lodged
against the petitioner, with similar allegations, by different
complainants, with whom the petitioner was working on a
commission basis. This raises more than a suspicion against
the conduct of the petitioner. Also, both the FIRs are under
investigation. Furthermore, although the dispute can be
termed as, „private‟ in nature but as held in Satnam Kaur &
Ors. (supra) offences, which are non-compoundable, are
treated as crimes against society and, therefore, normally the
consent of the victim to compound those offences may not be
of any use.
14. In the case of Shyam Babu Gupta & Anr. Vs. State
(Govt. of NCT) & Another reported as 2008 CriLJ 951,
while dealing with a petition filed under Section 482 Cr. P.C.
for quashing of an FIR under Section 406 IPC, this Court
negated the contention of the petitioners that since the parties
have reached a settlement and money has been paid to the
complainant, the compromise should be accepted and the FIR
should be quashed. In that case, this court relied on the
decision of Inspector of Police, CBI Vs. B. Raja Gopal &
Ors., (2002) 9 SCC 533 where it was held that merely
because a compromise has been reached between the bank
officials and the accused and the accused paid the disputed
amount found due to the bank, the High Court was not
justified in quashing the trial. This court also relied on the
Crl.M.C. No.2856/2008 Page 11 of 14
decision in Satnam Kaur & Ors. (supra) and dismissed the
petition in the following terms :
"9. Keeping in view the principles of law
laid down in the above two decisions
with regard to quashing of the F.I.R. and
the fact that in the case at hand, the act
of the petitioner in illegally taking the
possession of the three-wheeler was
nothing but sheer display of muscle
power which cannot be tolerated in any
civilized society and thus, it is an offence
against the society. Accordingly, no
ground is made out for quashing of F.I.R.
in question and the present petition is,
hereby, dismissed."
15. In the case of C. Nagarju & Anr. Vs. The State NCT &
Ors., 2007 (4) JCC 3160, this Court examined a similar
contention that since the matter has been amicably settled,
permission to compound the offence should be granted. In that
case also, the FIR was also lodged under Section 406 IPC.
There also, it was contended by the counsel for the State that
since two other cases are also pending against the petitioners,
permission to compound should not be granted. There, this
Court relied on the decision in Satnam Kaur & Ors. (supra).
It also referred to the decision of the Supreme Court in
Bankat and Anr. Vs. State of Maharashtra (2005)1 SCC
343 (supra). Taking into consideration the peculiar facts of
the case, this Court held that:
"11. So keeping in view the peculiar
facts and circumstances of the case, as
the petitioners No.2 and 3, who are the
accused, are involved in other criminal
cases, I do not find any ground to grant
permission to compound the offence
under Section 406 IPC and as such the
Crl.M.C. No.2856/2008 Page 12 of 14
present petition is not maintainable and
the same is hereby dismissed."
16. Finally, the contention of the petitioner that the
statement, which according to the translation of the petitioner
means, "We apprehend that he had grab our articles with mala
fide intention" in the impugned FIR, indicates that there was
merely a misapprehension against the petitioner and nothing
more, and so no offence at all has been committed, cannot also
not be countenanced at this stage. Whether it was in fact
merely a misapprehension or something more, ultimately the
trial will show. It is not for this Court to accept this fact at
this stage when the investigation into the matter is at a
preliminary stage. In this connection, I might notice that even
in the compromise deed dated 16th July, 2008 filed by the
petitioner, it is stated that the so-called "misunderstanding"
has been resolved with the intervention of, "respectable
persons of the society and common friends of both sides". The
dispute is stated to be resolved on certain conditions, the first
of which is the petitioner, Dhanpat Bothra, "has already
reimbursed the losses suffered by the first party as stated by
him in his complaint", and that in view of the above said
reimbursement, the complainant does not want to pursue his
complaint. By this it is obvious that reimbursements and
payments have been made to the complainant by the
petitioner/accused after the filing of the FIR in question.
Merely because the accused has made good the complainant‟s
loss after he was caught, does not automatically wipe out the
Crl.M.C. No.2856/2008 Page 13 of 14
offence committed. Looking to the fact that there is yet
another FIR filed by an independent complainant, alleging that
jewellery worth more than Rs.17.5 lakhs has been
misappropriated by the complainant along with another
person introduced by him to that complainant, does not, in my
view, render this a fit case for the exercise of this Court‟s
power under Section 482, Code of Criminal Procedure. In this
context, the observations of the Supreme Court in State of
Haryana Vs. Bhajan Lal 1992 Supp (1) SCC 335 are
noteworthy;
"106. We also give a note of caution to
the effect that the power of quashing a
criminal proceeding should be exercised
very sparingly and with circumspection
and that too in the rarest of rare cases;
that the Court will not be justified in
embarking upon an enquiry as to the
reliability or genuineness or otherwise of
the allegations made in the F.I.R. or the
complaint and that the extraordinary or
inherent powers do not confer an
arbitrary jurisdiction on the Court to act
according to its whim or caprice."
17. Under the circumstances, and in light of the aforesaid
decisions, I do not find any merit in the petition. The same is
dismissed.
Sudershan Kumar Misra, J.
September 29, 2008 mb/skw Crl.M.C. No.2856/2008 Page 14 of 14