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36. Let me now examine the case in hand as per the facts and circumstances available on record. The petitioners and complainant bank reached the aforesaid settlement in accordance with the guidelines of the Reserve Bank of India (RBI) under the One Time Settlement Scheme (OTS Scheme), as stated in paragraph 2 of the Joint Application for settlement filed before the DRT. The RBI, in consultation with the Government of India, notified the said OTS Scheme (DBOD.BP.BC.65/ 21.04.117/2002-2003) on 29th January, 2003 with the view to give opportunity to the borrowers of all public sector banks to come forward for settlement of their outstanding dues.

The OTS Scheme makes it necessary upon the public sector bank to specifically exclude cases of wilful default, fraud and malfeasance. Para 3 of the said OTS Scheme is reproduced herein below for emphasis;

''The guidelines will not, however, cover cases of wilful default, fraud and malfeasance. The banks should identify cases of willful default, fraud and malfeasance and initiate prompt action against them."

The same provision is repeated in others parts of the OTS Scheme in different words. Suffice to say that the letter and spirit of the OTS Scheme and the intention of Government of India (as the owner share holder) of the complainant bank, in respect of the OTS Scheme is clear; that those accounts that are fraught with complexities of willful default, fraud and corruption (a common parlance nomenclature of the term malfeasance) cannot be brought to avail the OTS Scheme. The borrower company under OTS Scheme is certainly free to make an application for settlement thereunder, but the acceptance of such application would depend only upon the relevant public sector bank, which would be guided strictly by the norms set out therein.

43. It is stated in the settlement application before the DRT that the said settlement was made within the scheme of the OTS. By executing the settlement application within the OTS Scheme, the complainant bank has not only intended to compound the alleged offences, but also given up its criminal complaint, which was initiated by the CBI on the behest of the complainant bank. The observation in Gopakumar Nair's case, such compounding and giving up on criminal complaint on part of the complainant is relevant when examining an application under Section 482 Cr.P.C. to quash proceedings. The relevant observation of the Supreme Court in Gopakumar Nair (supra) is reproduced herein below for emphasis:

69. Relying upon the judgment of the Supreme Court in the case of Gopakumar B. Nair (supra) wherein the Supreme Court refused to quash the proceedings for the reason that the compromise entered into between the complainant and the accused was not a part of a court decree. In the present case, as in the case of N.L. Jain and Nikhil Merchant, the compromise entered into between the complainant bank and the petitioners was a subject of court proceedings and consent terms were duly entered into under the provisions of Civil Procedure Code. In such circumstances, the distinguishing aspects of the judgment only confirms the legal relevance of a compromise that is entered as consent terms in a court-driven process between the complainant and the accused. The facts in the present case are more similar with the judgments in the case of Nikhil Merchant and N.L. Jain is also a three-judge bench judgment as the petitioners and the complainant have compromised and compounded the alleged offences, and that the complainant bank has exonerated the petitioners from all claims, grievance or complaint of any nature whatsoever. By consent the parties have settled all disputes in the recovery suit, the consent decree of DRT stood to be disposed off as duly satisfied. There is hence no force in the submission of respondents that the complainant bank has not exonerated the petitioners, first being the Civil Procedure Code, and the second being the OTS Scheme of the Reserve Bank of India, which the petitioners have extensively referred to in the original petition. The provisions of OTS Scheme prevent the complainant bank from entering into any compromise or settlement under the said OTS Scheme in the cases of willful default, fraud and malfeasance. The complainant bank in choosing to enter into such consent terms under the provisions of OTS Scheme has not only exonerated the petitioners, but for all intents and purposes given up the perusal of the complaint and having no grievance against them in any other proceeding whether civil or criminal on the same set of issues.