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Ou vs Central Bureau Of Investigation & … on 20 March, 2009

Bombay High Court Ou vs Central Bureau Of Investigation & … on 20 March, 2009Bench: R.P. Sondurbaldota

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY rt

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPLICATION NO. 1703 OF 2008 ou

Chattisgarh Distilleries Ltd & Ors. …..Applicants v/s.

Central Bureau of Investigation & Ors. ….Respondents C

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Mr.V.K.Thanka, Senior Counsel with Mr.S.S.Dube and Mr.Nagendra Dube, Advocate for applicants.

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Mr.V.C. Gupte, advocate for Central Bureau of Investigation- New ig

Delhi and Smt.A.S.Pai- advocate for Central Bureau of Investigation- Mumbai- for respondents no.1. H

Mr.H.J.Dedhia, APP for State-respondent no.2. Mr.O.A.A Das, advocate for respondent no.3. CORAM:

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SMT.R.P.SONDURBALDOTA, J.

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DATED: 20TH MARCH, 2009.

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JUDGMENT :

1. Heard counsel for both sides.

2. Applicant no.1 Chattisgarh Distilleries Ltd is a B

company registered under the Indian Companies Act, 1956. It was formerly known as Kedia Castle Dellion Industries Ltd (KCDIL for short). Applicants no.2 and 3 at the relevant time were directors of KCDIL as well as Kedia Distilleries Ltd (KDL for short), another company registered under the Indian Companies ::: Downloaded on – 09/06/2013 14:26:11 ::: *2 *

Act. Both KCDIL and KDL were engaged in manufacturing of rt

foreign liquor. The applicants have filed this application under Section 482 Cr.P.C. The application leaves much to be ou

desired whether in the matter of its’ contents or frame of the prayer.

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3. It can be seen that the prayer clause is absolutely vague, lacking in essentials of particulars of the proceedings desired to be quashed. One is left to gather the particulars h

of the proceedings from the title of the application. The ig

proceedings in respect of which the application is filed are H

(i) CBI Trial No.29 of 2003 arising out of CBI Case No. RC5(E) 99-BS&FC/519 at the instance of CBI, New Delhi and (ii) CBI Trial No.375/CP of 2002 arising out of CBI No.RC9 (E)/ y

2001/BS&FC/Mumbai at the instance of CBI, Bombay. Apart from ba

the applicants, there are several more persons arrayed as accused in the two cases. They are Shri.S.L.Dave, former om

Managing Director, (BOI-AME), Mumbai, Mr.Gordhar Kathuria, former Chairman, BIO-AMC,Mumbai, Mr.Pradeep Kumar Deora, Director and authorised signatory of KCDIL Mr.Sandeep Kumar B

Mansinghka, Proprietor of Braham Shakti Borewells and Mr.T.K.Sunderaraman Chief Manager-Bank of India Lease Finance Branch, Mumbai. The proceedings filed are for the offences punishable under Section 120(B), 420, 465, 467 and 471 IPC and ::: Downloaded on – 09/06/2013 14:26:11 ::: *3 *

under Section 13(2) read with Section 13(1)(c) & (d) of rt

Prevention of Corruption Act, 1988. Just as the prayer clause of the application does not contain particulars of the ou

proceedings sought to be quashed, the application is lacking in the particulars of the prosecution case. They are required to C

be gathered from the copies of the charge-sheet annexed to the application.

4. In the application, the applicants state that h

applicants no.2 and 3 on behalf of KCDIL, as well as, KDL had ig

entered into commercial transactions with Bank of India as H

disclosed in the complaint. KCDIL offered one time settlement of the dues under the commercial transactions of payment of Rs.415 lakhs in full and final discharge of the liabilities y

against all dues of the Bank. The offer was accepted by the ba

bank vide it’s letter dated 15th February, 2008. KCDIL then paid Rs.415 lakhs to the Bank which acknowledged its receipt. om

Therefore, according to the applicants they have been absolved of the liabilities in respect of Case No. RC5(E)99-BS&FC/519 and Case No.375(CP) of 2002. The applicants pray that the B

compromise be accepted and the two proceedings quashed, by applying ratio of the decision of the apex court in Jagdish V/s.State of Haryana reported in 2008 (2) SCALE page 411 and Madanmohan V/s.Puneet reported in 2008(4)SCALE page 159. They ::: Downloaded on – 09/06/2013 14:26:11 ::: *4 *

contend that the two cases arise out of the credit facilities rt

given by the bank to the applicant and as such the dispute was purely personal in nature between the two contesting parties. ou

Since the parties have arrived at settlement of the commercial transactions, no useful purpose will be served in continuing C

the proceedings. It is to be noted at this stage that only one of the offences alleged against the applicant i.e. the offence punishable under Section 420IPC is compoundable. All the other h

offences are not compoundable.

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5. Before adverting to the facts of the two cases, it will H

be convenient to understand the position in law as emerging from various decisions cited by both the sides. The first two decisions relied upon by the applicants are the two decisions y

referred to in the application itself. In the circumstance, ba

reference to these decisions will have to be made first. In the case of Jagdish Chanana & Ors. V/s.State of Haryana & Anr. om

reported in 2008(4) SCALE page 411, the apex court was considering appeal against the order rejecting prayer for quashing of the F.I.R registered under Section 419, 420, 465, B

468, 469, 471, 472, 474 read with Section 34 IPC. The application for quashing was made on the ground of compromise of the dispute which was purely personal in nature and arising out of commercial transactions. One of the terms of the ::: Downloaded on – 09/06/2013 14:26:11 ::: *5 *

compromise was that the proceedings pending in the court may be rt

withdrawn or compromised or quashed as the case may be. The apex court found that the dispute was purely personal in nature ou

and no public policy was involved in the transactions that had been entered into between the parties. Therefore, it observed C

that it was unlikely that the prosecution will succeed in the matter and hence quashed the proceedings. The judgment does not refer to the facts of the prosecution case. Nonetheless, it is h

clear from the judgment that the order of quashing of the ig

proceedings was passed in view of facts and circumstances of H

the case before the Apex Court.

6. In the second decision referred to in the application Madan Mohan Abbot v/s.State of Punjab reported in 2008(4) SCALE y

Page 159. The proceeding before the apex court was an appeal ba

against judgment whereby an application for quashing of F.I.R. registered under section 379, 406, 409, 418 and 506 read with om

Section 34 IPC was rejected. The parties in the said proceedings had filed compromise purshis contending that the dispute therein was purely personal in nature and arose out of B

commercial transactions. The parties had settled the dispute in terms of the compromise with one of the terms being ” proceedings in the court may be withdrawn or compromised or quashed as the case may be”. The High Court had rejected the ::: Downloaded on – 09/06/2013 14:26:11 ::: *6 *

application for quashing the proceedings on the basis of the rt

compromise. The Apex Court allowed the appeal and quashed the proceedings with the following observations. ou

“5……We notice from a reading of the F.I.R 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 C

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 will be served in continuing with the proceedings in the light of the compromise and also in the light of the fact that the h

complainant has, on 11th January, 2004, passed away and the possibility of a conviction being recorded has thus to be ig

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 H

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 y

effective and meaningful litigation. This is a common sense approach to the matter based on ground of realities ba

and bereft of the technicalities of law.” . In other words what had weighed with the Apex Court was om

i) the facts of the case disclosing the dispute to be purely personal one between the disputing parties (ii) dispute arising B

out of extensive business dealings (iii) the nature of allegations against the accused did not involve public policy and (iv) the litigation no more being a meaningful litigation.

7. During the course of arguments, Mr.Thanka learned counsel for the applicants relied upon one more decision of the ::: Downloaded on – 09/06/2013 14:26:11 ::: *7 *

Apex Court in the case Nikhil Merchant V/s.Central Bureau of rt

Investigation reported in 2008 (11) SCALE page 379. In this case, CBI had filed chargesheet against five persons under ou

Section 120(B) read with Section 420, 467, 468, 471A and Article 136 and 142 of the Prevention of Corruption Act, 1947 C

and Section 5(2) and 5(1)(d) of Prevention of Corruption act, 1988 and Section 13(2) and 13(1)(d.) Alongwith the applicants h

before the apex court who were a company and its former Managing Director, the other accused were three officials of ig

Andhra Bank. The company was granted financial assistance by H

Andhra Bank under various facilities. On account of default of repayment of the loans, the bank had filed civil proceedings for recovery of the amount due. Simultaneously, there were y

complaints made by the General Manager and the Chief Vigilance ba

Officer of the bank on the basis of which investigation was undertaken by CBI, which resulted into criminal proceedings om

that were sought to be quashed by the application. It was alleged in the chargesheet that the accused persons had conspired with each other in fradulently diverting the funds of B

Andhra Bank. The offences alleged included forgery. Subsequently, the civil proceedings between the company and the bank were disposed off in terms of the compromise arrived at between the parties. One of the terms of the compromise was ::: Downloaded on – 09/06/2013 14:26:11 ::: *8 *

of, the parties withdrawing all the allegations and counter rt

allegations made against each other. On the compromise of the the suit, the company and its former Managing Director, filed ou

an application for discharge from the criminal complaint. The application was rejected by the Special Judge. The said order C

was carried in revision to the High Court. Before the High Court reliance was placed upon the decisions of the apex court in the case of Central Bureau of Investigation v/s. Duncans h

Agro Industries Ltd reported in 1996(5)SCC page 591 and ig

B.S.Joshi and Ors. V/s.State of Haryana & anr. reported in 2003 H

(4) SCC page 675. The High Court had held that both the decisions of the Apex Court were not applicable to the facts of the case since the chargesheet also included offences under y

Prevention of Corruption Act which are non-compoundable and had ba

dismissed the application.

8. The arguments advanced in the appeal before the Apex om

Court were that since the disputes out of which the criminal proceedings had arisen, had been compromised between the appellant and the bank, continuing with the complaint would B

amount to misuse of the process of the court. Secondly, after filing of the chargesheet by the CBI in the year 1998, no steps including framing of charge had been taken till the year 2006. The bank had also not taken any action against its employees ::: Downloaded on – 09/06/2013 14:26:11 ::: *9 *

against whom the chargesheet had been filed. Since the matter rt

had been pending for 14 years after lodging of the complaint by the bank, it amounted to nothing but harassment of the ou

applicants. It was lastly submitted that the contents of the chargesheet and the allegations made therein, at the best made C

out a case not for forgery but for cheating which was compoundable. Therefore, the ratio in both, the Duncans Agro h

Industries case (supra) and B.S.Joshi’s case (supra) would apply. The learned Additional Solicitior General on the other ig

hand urged that the allegations contained in the chargesheet H

filed was under Section 120B, Section 420, 467, 468, 471 IPC and also under Prevention of Corruption Act. Most of the offences under Indian Penal Code and the offences under y

Prevention of Corruption Act were non-compoundable. The facts ba

of the case did make out offence of forgery. Therefore, though the matter was compromised between the parties criminal om

proceedings could not be compounded. It was further urged that in exercise of plenary powers under Article 142 of the Constitution of India the court could not ignore any B

substantial statutory provision. It is a residuary power supplementary and complimentary to the powers specifically conferred on the Supreme Court by statutes exercisable to do complete justice between the parties where it is just and ::: Downloaded on – 09/06/2013 14:26:11 ::: * 10 *

equitable to do so. The power is to be exercised sparingly and rt

only in exceptional circumstances.

9. The Apex Court after considering the facts of the case ou

and the arguments of the counsel was of the view that although technically there was force in the submissions made by the C

learned Additional Solicitor General, the facts of the case warranted interference.(emphasis supplied) It was further of h

the view that the basic intention of the accused in the case appeared to have been to misrepresent the financial status of ig

the company in order to avail of the credit facility to the H

extent of which the company was not entitled to. Subsequently, the disputes between the company and the bank were set at rest on the basis of the compromise arrived at, wherein the dues of y

the bank had been cleared and the bank did not have any further ba

claim against the company. In that circumstance, the apex court allowed the appeal with the following observations : om

“22. Despite the ingredients and the factual content of an offence of cheating punishable under Section 420 I.P.C., the same has been made compoundable under Sub- Section (2) of Section 320 Cr.P.C.with the leave of the court. Of course, forgery has not been included as one B

of the compoundable offences, but it is in such cases that the principle enunciated in B.S.Joshi’case becomes relevant.

23. In the instant case, the disputes between the company and the bank have been set at rest on the basis of the compromise arrived at by them whereunder the dues of the bnak have been cleared and the bank does not appear to have any further claim against the company. What, however, ::: Downloaded on – 09/06/2013 14:26:11 ::: * 11 *

remains is the fact that certain documents were alleged to have been created by the appellant herein in order to avail rt

of credit facilities beyond the limit to which the company was not entitled. The dispute involved herein has overtones of a civil dispute with certain criminal facets. ou

The question which is required to be answered in this case is whether the power which independently lies with this court to quash the criminal proceedings pursuant to the compromise arrived at, should at all be exercised. C

24. On on overall view of the facts as indicated hereinabove and keeping in mind the decision of this court in B.S.Joshi’s case (supra) and the compromise arrived at between the company and the bank as also Clause 11 of the consent terms filed in the suit filed by the bank, we are h

satisfied that this is a fit case where technicality should not be allowed to stand in the way in the quashing of the ig

criminal proceedings, since, in our view, the continuance of the same after the compromise arrived at between the parties should be a futile exercise.” H

. It can be seen from the above judgment that what had once again weighed with the Apex Court was the facts and y

circumstances of the case before it. ba

10. Since there is a reference made to the decision of B.S.Joshi’s case (supra), it will be necessary to consider that om

decision though the applicants have not specifically relied upon the same. In fact B.S.Joshis’ case was the first case in which what is being described as new emerging jurisprudence was B

first argued and appreciated. The question for determination of the Apex Court in the case, was about the scope and ambit of Section 482 Cr.P.C. arising out of an application for quashing proceedings under Section 498A and 406 IPC. The wife had filed ::: Downloaded on – 09/06/2013 14:26:11 ::: * 12 *

proceedings against the husband, his parents and his younger rt

brother. Later, she filed an affidavit that the FIR was registered at her instance due to temperamental differences and ou

implied imputations. She had finally settled the dispute with the family and she and her husband had agreed for mutual C

divorce. After filing the petition for divorce, the proceeding for quashing of the FIR had been filed. The application for quashing was rejected by the High Court since the offences are h

non-compoundable under Section 320 of the Code and therefore it ig

was not permissible for the Court to quash the FIR. The Apex H

Court answered the question arising before it as follows “It is, thus clear that Madhu Limaye’s case does not lay down any general proposition limiting power of quashing the criminal y

proceedings of FIR or complaint as vested in Section 482 of the ba

Code or extraordinary power under Article 226 of the Constitution of India. We are, therefore, of the view that if om

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 B

matter depending upon the facts and circumstances of each case whether to exercise or not such a power.” (emphasis supplied). It then considered the facts and circumstances of the case and quashed the proceedings with following observations “There is no ::: Downloaded on – 09/06/2013 14:26:11 ::: * 13 *

doubt that the object of introducing Chapter XX-A containing rt

Section 498A in the Indian Penal Code was to prevent the torture to a woman by her husband or by relatives of her ou

husband. Section 498A was added with a view to punishing a husband and his relatives who harass or torture the wife to C

coerce her or her relatives to satisfy unlawful demands of dowry. The hyper-technical view would be counter productive and would act against interests of women and against the object h

for which this provision was added. There is every likelihood ig

that non-exercise of inherent power to quash the proceedings to H

meet the ends of justice would prevent women from setting earlier. That is not the object of Chapter XXA of Indian Penal Code.”

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11. The next decision cited by Mr.Thanka is the latest ba

decision of the Apex Court in Manoj Sharma V/s.State and Ors.reported in Manu/SC/8122/2008 in which the F.I.R under

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Sections 420, 468, 471, 34, 120B IPC was sought to be quashed on the ground of compromise, relying upon B.S.Joshi’s case (supra). It was alleged in the complaint, that the appellant B

who was accused no.1 had forged documents in respect of a vehicle and thereafter indulged in cheating and deposited the cheques received from the complainant against financing of the vehicle in different accounts. It was also alleged in the ::: Downloaded on – 09/06/2013 14:26:11 ::: * 14 *

F.I.R that the appellant sold the vehicle of the complainant to rt

some other party by making forged signature and by playing fraud with him. This dispute was compromised and as per the ou

settlement, the complainant paid Rs.45,000/- to the appellant and also to accused no.1 and filed an affidavit stating that C

he was withdrawing all the allegations against the accused persons. The learned counsel for the State had urged that the decision rendered in B.S.Joshi’s case possibly required a h

second look. While deciding the request, the Apex Court ig

observed :

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“6…..What was decided in B.S.Joshi’s case was the power and authority of the High Court to exercise jurisdiction under Section 482 Cr.P.C. or under Article 226 of the Constitution to quash offences which are not compoundable. The law stated in the said case simply indicates the powers y

of the High Court to quash any criminal proceeding of First Information Report or complaint whether it is compoundable ba

or not. The ultimate exercise of discretion under Section 482 Cr.P.C. or under Article 226 of the Constitution is with the court which has to exercise such jurisdiction in the facts of each case. It has been explained that the said power is in no way limited by the provisions of om

Section 320 Cr.P.C. We are unable to disagree with such statement of law.”

. It was then considered that the dispute between the B

complainant and the accused was of private nature and once the complainant decided not to pursue the matter further, a greater pragmatic view of the matter could have been taken and the F.I.R quashed.

12. Justice Markandey Katju who formed part of the Bench ::: Downloaded on – 09/06/2013 14:26:11 ::: * 15 *

deciding Manoj Sharma’s case gave a separate concurring rt

judgment expressing his concern over the issue though on the facts, he was of the opinion that the proceedings deserved to ou

be quashed. After noting the provision of Section 320 Cr.P.C., various decisions of the Apex Court as regards the judicial C

restraints to be followed while exercising the inherent powers of the High Court under Section 482 Cr.P.C., the creative solution found in B.S.Joshi’s case (supra) to get over the h

limitations put by Section 320 Cr.P.C., he sounded a note of ig

caution in following words.

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“23. There can be no doubt that a case under Section 302 IPC or other serious offences like those under Sections 395, 307 or 304B cannot be compounded and hence proceedings in those provisions cannot be quashed by the High Court in exercise of its power under Section 482 Cr.P.C. Or in writ jurisdiction y

on the basis of compromise. However, in some other cases, (like those akin to a civil nature) the proceedings can be ba

quashed by the High Court if the parties have come to an amicable settlement even though the provisions are not compoundable. Where a line is to be drawn will have to be decided in some later decisions of this court, preferably by a larger bench (so as to make it more authoritative). Some om

guidelines will have to be evolved in this connection and the matter cannot be let at the sole unguided discretion of Judges, otherwise, there may be conflicting decisions and judicial anarchy. A judicial discretion has to be exercised on some objective guiding principles and criteria, and not on B

the whims and fancies of individual judges. Discretion, after all, cannot be the Chancellor’s foot.

24. I am expressing this opinion because Shri.B.B.Singh, learned counsel for the respondent has rightly expressed his concern that the decision in B.S.Joshi’s case (supra) should not be understood to have meant that Judges can quash any kind of criminal case merely because there has been a compromise between the parties. After all, a crime is an offence against society, and not merely against a private ::: Downloaded on – 09/06/2013 14:26:11 ::: * 16 *

individual.”

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13. Lastly, there is a decision of the Madras High Court cited by Mr.Thanka in A.D. Sudhindra V.s Inspector of ou

police CBI & Ors. reported in MANU/TN/1588/2008. Mr.Thanka, submits that Madras High Court has quashed proceedings filed C

concerning offences identical to those in the present case and hence the same can be safely followed. If one carefully h

peruses the facts of the case before the Madras High Court, it can be seen that the entire loan obtained by the applicant from ig

the bank had been paid along with interest much prior to the H

filing of the complaint by an anonymous person. The Bank had not suffered any financial loss. Even after repayment of the loan, the bank still had in its’ possession fixed deposits of y

the guarantor to the tune of Rs.5.25 crores as security. There ba

was no complaint from the bank, and the court found that the very registration of the FIR was contrary to the facts. Such om

were the facts that deserved quashing of the FIR.

13. The common string seen running through all the above decisions is that the decision to quash the proceedings was B

taken on the facts and circumstances of the respective case. There was no compulsion to quash the complaint or criminal proceedings merely because there was compromise between the complainant and the accused. The facts of each case indicated ::: Downloaded on – 09/06/2013 14:26:11 ::: * 17 *

that the dispute was purely personal one, between the rt

contesting parties and there was absolutely no public policy involved in the nature of the allegations made against the ou

accused. Even, if the matter were to be kept alive there was no possibility of a result in favour of the prosecution. In C

such circumstances, common sense approach was taken based on ground realities of overburdened courts and the proceedings quashed, so that time so saved could be utilised in deciding h

meaningful litigation. ig

14. The respondent-CBI in addition to its submission that H

the facts of the case on hand do not warrant quashing of proceedings, which submission will be considered later hereinafter, supports the concern about exercise of inherent y

power for quashing proceedings involving non-compoundable ba

offences on the ground of compromise. Both the counsel for C.B.I., Mr.V.C.Gupte and Mrs.A.S.Pai are in unison in their om

submission that the court should be slow and extremely careful in exercise of it’s inherent jurisdiction in such matters keeping in focus larger issue of the welfare of the Society and B

preservation of social order. They rely upon a decision of the Delhi High Court rejecting such an application, which decision the Apex Court had refused to interfere with.

15. The decision of the Delhi High Court is in the case of ::: Downloaded on – 09/06/2013 14:26:11 ::: * 18 *

J.K.Singh & Ors. V/s.Central Bureau of Investigation & Anr. in rt

Crl.M.C.6600-04/2006 and two other similar cases. After extensive discussion of the legal submissions advanced before ou

it, the Delhi High Court observes as follows : “18. The question really is where does one draw the line when it comes to quashing cases involving non-compoundable C

offences. Despite the unanimity in the decisions that a case involving the offence of rape ought not to be quashed under Section 482 Cr.P.C.,this court is very often approached by accused with petitions under Section 482 Cr.P.C.for quashing h

of cases involving such offence on the ground that the victim and the accused are happily married. In fact, the victim joins the accused as a co-petitioner in such cases. Can it ig

be said that for peace and harmony in society such cases must be quashed ? Is that then the `common sense’ approach? These are uncomfortable but relevant questions. How far can H

the court go along with the `common sense’ plea which if taken to its logical end might well include all kinds of offences. One of the purposes for prescribing punishments for crimes is that it serves to deter specifically the accused involved and generally other potential accused from y

committing similar crimes. By quashing cases like the present, this purpose may be defeated. Also, by widening the ba

scope in this manner, much will depend on the individual outlook of judges as to when to exercise the power to quash. That in turn makes such decisions vulnerable to challenge on the ground of arbitrariness. This Court while exercising its powers under Section 482 is also required to account for the om

public policy compulsions involved in continuing to treat the offences under Section 468 and 471 IPC as non-compoundable. In the mass of judicial orders where the power under Section 482 Cr.P.C. has been exercised to quash proceedings involving non-compoundable offences, the principle on which to base B

such decision remains elusive.”

. Then as regards the facts of the case before it, the learned Judge has following to say.

“20. The ultimate question in each of these cases is whether in the facts and circumstances, the proceedings should be ::: Downloaded on – 09/06/2013 14:26:11 ::: * 19 *

quashed or not. To recapitulate, one of the cases involves creating false receipts in the names of fictitious transport rt

companies and getting cheques issued by such fictitious entities, the second involves tampering with the date of the cheque and the third involves forging receipts and invoices ou

by using white fluid. These are cases involving cognizable offences. The dispute may be characterized as a `private’ one but it cannot be said that the offence is one that does not concern the society. One of the cases involves a public financial institution.’ In each there is an FSL report C

being relied upon by the prosecution in support of its plea that the offences can be proved irrespective of the evidence of the complainant who may no longer support the prosecution. In one of the cases, the accused has `settled’ the dispute with several persons apart from the complainant. h

Quashing such a case will defeat the purpose of the probable conviction and punishment acting as a deterrent either ig

specifically or generally. Finally, this Court is unable to overlook the fact that the categorization of certain kinds of offences relating to “Documents and Property Marks” H

separately in Chapter XVIII and their classification as cognizable and non-compoundable in informed by public policy as acknowledged by the legislature.”

16. It is not uncommon that over the passage of time, y

individuals against whom wrong is committed desire to put past ba

in the past, and get ahead with life. Probably for the peace and happiness of an individual it is also necessary. In such om

cases, they enter into a compromise with a wrongdoer and will want to have nothing more to do with the case. But what about the impact on social order? The fundamental reason for having B

criminal justice system is for preserving an acceptable degree of social order which is essential for well being of the society. Any kind of collective existence and living can be possible only with a certain degree of social order. For ::: Downloaded on – 09/06/2013 14:26:11 ::: * 20 *

preserving optimum social order, the criminal law declares rt

specified acts and omissions as serious breach of duty to the social order. Though, the act or omission is directed towards ou

an individual or his property, the same is separated from private dispute among citizens and is dealt with by the State. C

The criminal law system provides a framework to the State to punish the wrong doer so that an acceptable degree of social order is maintained. Salmond defines crime as an act deemed by h

law to be harmful for society as a whole though its immediate ig

victim may be an individual. In Salmond on Jurisprudence (12th H

Edition)he says a murder injures primarily a particular victim, but it’s blatant disregard of human life puts it beyond a matter of mere compensation between the murderer and the y

victims family. Even, the award of punishment is to serve the ba

same object. There are four aims of punishment, (i) deterrent (ii) preventive, (iii)retributory and (iv) reformative. The om

punishment is awarded to teach the offender a lesson so that he may not commit the crime again. It is an eyeopener to the criminals to be, that they will be dealt with similarly in case B

of indulgence in criminal activities. An appropriate punishment soothes the wounded feelings of the Society, because the commission of crime threatens the acceptable degree of social order and well being of the society. Such threats can ::: Downloaded on – 09/06/2013 14:26:11 ::: * 21 *

be very upsetting. Lastly, it is now being looked upon as a rt

process of salvaging an individual, a member of the society by reshaping him. An application for quashing of criminal ou

proceedings therefore, has to be decided with a tremendous sense of responsibility and caution, as a line is required to C

be drawn between respect for personal desires of an individual and preservation of optimum social order. That is when, the facts and circumstances of each such case become extremely h

important. Even in cases concerning the same offence, the ig

decision can be quite opposite depending upon facts of each H

case.

17. The above is the backdrop against which the present application for quashing of criminal proceedings involving non- y

compoundable offences based on the claim of compromise are ba

required to be considered. Since,what is most relevant is the facts and circumstances of the cases, the same are required to om

be narrated in sufficient details. The facts of the two cases are as follows :-

18. FACTS IN F.I.R.NO.RC 9(E)/2001 CBI/BS&FC, MUMBAI :- B

(a). This was registered by CBI, Bank Securities & Fraud Cell, Mumbai on 23rd November, 2001 on the complaint of CEO, Bank of India against (i) Shri.T.K.Sunderaraman (A-1), the then Chief Manager, Bank of India, Lease Finance Branch, Mumbai, (ii) ::: Downloaded on – 09/06/2013 14:26:11 ::: * 22 *

Shri.Kailashpati Kedia (A-2), Chairman of KCDIL and Director of rt

KDL and the Company KCDIL (A-3) under Sections 120-B read with Section 409, 420, 465, 467, 468 & 471 IPC and Section 13(2) read ou

with Section 13(1)(c) & (d) of Prevention of Corruption Act, 1988. The allegation in brief is that during the year 1995, C

KCDIL (Rs.3,03,57,648/-) and KDL (Rs.3,24,91,800/-) availed lease finance facility from Bank of India to the total extent of Rs.6,28,49,448/- for procuring Plant and Machinery for h

manufacture of all kinds of potable alcohol. However, the ig

borrower instead of acquiring the required Plant & Machinery H

dishonestly managed to misappropriate the said funds by siphoning off and diverting the funds to various other activities. y

(b). Investigation into the complaint revealed that KCDIL ba

availed lease finance facility to the tune of Rs.3.06 crores to acquire the machinery, namely, Thermax Boiler for production of om

steam for distilling alcohol, processing tanks with pumps and motors for processing Mahuva Flowers (2 Nos) and fermentation tanks (2 Nos) for its factory at District-Durg. They submitted B

Proforma Invoices for Rs.3.06 crores of M/s.Thermax Ltd, Pune and M/s.Brahma Shakti Borewells, Burhanpur (M.P.), prospective suppliers. There was lease agreement dated 9th June, 1995 executed in respect of the said machinery between the Bank and ::: Downloaded on – 09/06/2013 14:26:11 ::: * 23 *

KCDIL. It was signed by K.S.Nair & S.K.Gupta on behalf of the rt

Bank and applicant no.3 and one Punit Singhal on behalf of KCDIL. In pursuance of the same, an amount of Rs.3,03,57,648/- was ou

disbursed by the Bank. Out of this amount, Rs.1.14 crores was released to KCDIL as reimbursement of advance payment made to C

these suppliers. The remaining amount was disbursed to the suppliers namely M/s.Thermax Ltd and M/s.Brahma Shakti Borewells. During investigation, it was disclosed that though the firm h

M/s.Brahma Shakti Borewells was not doing any business since ig

1992, it issued false sale bills for purported supply of H

machinery. For receiving the money from the Bank, a Current Account No.2364 was opened in the name of M/s.Brahma Shakti Borewells at Andhra Bank, Opera House Branch, Mumbai by y

Shri.Sandeep Mansingka and immediately after receipt of the funds ba

from Bank of India, the proceeds were utilized for obtaining Pay Order in the name of KCDIL and the said Pay Order was deposited om

in the account of KCDIL at Vysya Bank, Nariman Point. Another cheque of Rs.40 lacs favouring KCDIL was also deposited in the said account of the company which had been released towards B

reimbursement of the advance paid by the company to the suppliers of the machinery. In support of the advance payment made, KCDIL produced a stamped receipt dated 27th April, 1995 purportedly issued by M/s.Brahma Shakti Borewells purported to have had ::: Downloaded on – 09/06/2013 14:26:11 ::: * 24 *

received payment vide cheque No.365646 dated 24th April, 1995 rt

drawn on SBI. This amount of Rs.40 lacs was never paid to M/s.Brahma Shakti Borewells but was fraudulently transferred to ou

the account of M/s.KDL, a sister concern of KCDIL. Investigation also disclosed that M/s.Thermax Ltd had received about Rs.2.27 C

crores but the said amount was received by the company for supply of storage silo system and not for supply of fermentation tank or processing tank. The supplier had actually supplied storage silo h

system, and the same was diverted by KCDIL to its proposed ig

factory at District-Alwar, Rajasthan instead of installing the H

same at District-Durg as was originally represented. (c). KDL had also availed lease finance facility of y

Rs.3.27 crores from Bank of India. An amount of ba

Rs.3,24,91,800/- was disbursed to the supplier through cheque No.231771 dated 12th June, 1995. This cheque was deposited in om

the Account No.2364 of the said firm M/s.Brahma Shakti Borewells at Andhra Bank. The proceeds of the aforesaid cheque was utilized for obtaining 10 Pay Orders in the name of B

different companies to clear the outstanding liabilities of the Companies viz. M/s.KDL and M/s.KCDIL. Thus the total wrongful loss caused to the public sector bank was to the extent of about Rs.6.30 crores.

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rt

19. FACTS IN F.I.R.NO. RC/5(E)/1999 BS&FC, SIG, NEW DELHI : (a). This was registered by CBI, Bank Securities & Fraud ou

Cell, New Delhi on 3rd December, 1999 on the complaint dated 26th November, 1999 of CEO, Bank of India against Shri.S.L.Dave, C

Managing Director and Smt.Sangeeta Garg, Assistant Manager, both of Bank of India-Asset Management Company, Mumbai (hereinafter called BOI-AMC) on the allegations that they entered into a h

criminal conspiracy with the Directors of KDL, Mumbai and ig

M/s.Krishna Texport & Capital Market Limited and 14 other, B- H

Group Companies during the period April 1995 to March 1996 in the matter of investment in the purchase of shares of aforesaid companies. In pursuance of the said criminal conspiracy, they y

purchased 5,10,000 shares of KDL @ Rs.130/- per share, amounting ba

to Rs.6.37 crores and 75,000 shares of M/s.Krishna Texport & Capital Market Limited @ Rs.600/- per share amounting to Rs.4.5 om

crores and shares of 14 other B-Group Companies at exorbitant rates without preparing any Research Report and knowing full well that there was no active trading of the said shares in the stock B

market at the time of purchase of the shares and the prices of these shares had been rigged by the said companies. BOI-AMC could not sell back the said shares and the present value of these shares is negligible and thus they have thereby caused ::: Downloaded on – 09/06/2013 14:26:11 ::: * 26 *

wrongful loss to BOI-AMC and wrongful pecuniary gain to the rt

Directors of the said companies and thereby committed offence under Section 120-B IPC read with Section 13(2) read with Section ou

13(1)(d) of P.C.Act and substantive offences under Section 420 IPC and Section 13(2) read with Section 13(1)(d) of P.C.Act, C

1988.

(b). During the period May 1995 to November 1995 the accused h

persons conspired to purchase 5,10,000 shares of KDL by using ig

funds of BOI-MF at an exorbitant rate on illegal buy-back basis H

with intention to grant illegal term loan to the company. There was no active trading of the said shares in the stock market and the company had rigged the price of the shares. The company y

bought back only 15,000 shares thereby causing wrongful gain to ba

KDL and corresponding loss to Bank of India to the tune of Rs.6,13,52,500/-.

om

(c). In July 1995 KCDIL approached BOI-AMC for placement of its 10,00,000 Non-Convertible Debentures (N.C.D.) of Rs.100/- B

each for working capital requirement of it’s plant at Alwar. The same were purchased by BOI-AMC at the cost of Rs.10 crores on recommendation of accused S.L.Dave and approval by accused G.Kathuria. KCDIL utilised the funds not for setting up the ::: Downloaded on – 09/06/2013 14:26:11 ::: * 27 *

plant but to meet it’s earlier liabilities. As per the rt

agreement, KCDIL neither created any pari-pasu charge on it’s fixed assets in favour of BOI-MF nor returned the principal ou

amount nor paid the interest as agreed. This caused wrongful loss of Rs.19.81 crores to BOI-MF and corresponding gain to C

KCDIL.

(d). After completion of the investigation, charge-sheet has h

been filed on 28th May, 2003 in the Court of Special Judge for CBI ig

at Mumbai against (i)Shri.S.L.Dave (A-1), (ii)Gordhan Kanthuria H

(A-2), (iii)Kailashpati Kedia (A-3), (iv)Vinay Kedia (A-4) and (v)P.K.Deora (A-5) under Section 120-B IPC read with Section 420 IPC read with Section 13(2) read with Section 13(1)(d) of y

P.C.Act, 1988 and substantive offences under Section 420 IPC ba

against all and Section 13(2) read with Section 13(1)(d) of P.C.Act, 1988 against Shri.S.L.Dave and Shri.Gordhan Kathuria. om

20. The applicant claims that KCDIL entered into one-time settlement (OTS) with the Bank of India by paying Rs.415 lakhs. B

With this amount, claim of the bank against KCDIL to the tune of Rs.3,03,57,648/- was said to be settled. During the pendency of the present proceedings when CBI pointed out that the OTS made no reference to the dues of KDL, hurriedly another ::: Downloaded on – 09/06/2013 14:26:11 ::: * 28 *

amount of Rs.30 lakhs was paid to the bank to take care of rt

outstanding of Rs.3,24,91,800/- against KDL. It is alleged by the C.B.I. that the said OTS is in fact no settlement at all, ou

since the total outstandings against the two companies of about Rs.6.30 crores is settled for Rs.445 lakhs which does not cover C

even the principal amount.

21. A question at this stage would arise whether the court can look into sufficiency or appropriateness of the settlement h

between the companies and the bank, or the same must be left ig

entirely to the parties involved and the court should accept H

the settlement with closed eye. In my considered opinion, the court can definitely look into the adequacy of settlement for limited purposes. Since the application to the Court is to y

quash criminal proceedings involving non-compoundable offences, ba

it becomes the responsibility of the court to satisfy itself that the adjustment arrived at is settlement in real sense of om

the term. The court must also be conscious of the nature of the dispute and the profile of the parties involved therein. In the instant case, the monetary settlement is completely B

lopsided. The bank has accepted it and filed an affidavit stating that it does not have anymore claim against the two companies. The bank has written off more than Rs.5 crores in the course of settlement. What is given up by the bank is the ::: Downloaded on – 09/06/2013 14:26:11 ::: * 29 *

public money. Each investor, each account holder has a stake rt

in it. Had such settlement been between the two private individuals, it would have been a completely different matter. ou

In these circumstances, the settlement cannot be said to a proper settlement. Besides, the settlement relates to only the C

loan transactions. It does not involve the dispute as regards the purchase of shares and non-convertible debentures and the loss arising therefrom. Therefore, it cannot be said to be h

complete settlement. The criminal proceedings cannot be ig

quashed based on such settlement.

H

22. Even if the so called settlement is to be treated as proper settlement, the facts of the case do not satisfy the four conditions inferred from the rulings of the Apex Court y

enumerated hereinabove. They being (i)the dispute should be ba

purely personal one between the disputing parties, (ii) dispute arising out of extensive business dealings, (iii)nature of the om

allegations do not involve public policy and (iv)the litigation no more being a meaningful litigation.

23. As already seen above, the dispute herein cannot be B

said to be purely personal to the disputing parties because it relates to public money. The nature of allegations is such that it involves public policy. The dispute does not arise out of extensive business dealings alone. The facts indicate, ::: Downloaded on – 09/06/2013 14:26:11 ::: * 30 *

prima-facie, that the applicants had dishonest intentions right rt

from the inception of the dealings. Lastly, It has been submitted on behalf of the counsel for C.B.I.that it cannot be ou

said that in view of settlement of dispute between the two companies and the bank, there is no chance of conviction of any C

of the accused persons. They pointed out that substantial portion of the evidence in the matter is documentary evidence which is already in custody of C.B.I. Even if some of the h

witnesses, particularly from the bank do not support the ig

prosecution during the course of recording of evidence, it will H

be possible for the C.B.I.to bring home charges against the accused persons on the basis of documentary evidence. I find much substance in the submission. Hence, it cannot be said that y

the litigation is no more a meaningful litigation. ba

24. There is one more hurdle in the way of the applicants as pointed out by the learned counsel for C.B.I. They submit om

that the conduct of applicant no.3 Kailashpati Kedia is mischievous and in defiance of the court orders. Since filing of the charge-sheet dated 28th May, 2003 he has not appeared B

before the trial court and has been declared a proclaimed offender. On 21st January, 2004 he had appeared before the Special Judge and applied for bail. The court granted him cash bail in the sum of Rs.1 lakhs subject to the condition that he ::: Downloaded on – 09/06/2013 14:26:11 ::: * 31 *

deposits his passport with C.B.I. within 10 days of the order rt

and does not leave India without permission of the court. Applicant no.3 flouted both the conditions. He did not deposit ou

his passport with C.B.I. within 10 days of the date of the order and within two or three days after the order, he left C

India. Later, he made an application before the Special Judge stating that he had to leave India urgently on medical grounds and sought relaxation of the bail conditions. There was another h

application filed for exemption from appearance before the ig

court. Both the applications were rejected by the Special H

Judge. Applicant no.3 challenged the order dismissing his applications by filing Criminal Application No.1202 of 2004 and Criminal Application No. 1203 of 2004 in this court. Both the y

applications were rejected by the order dated 22nd July 2004. ba

When he failed to appear in the court, the learned Judge cancelled his bail and issued non-bailable warrant for his om

arrest which remains unexecuted till date. The properties of applicant no.3 have been attached vide order dated 31st January, 2006. There is also one Red Corner Notice (Control No.1184/8- B

2004) issued by Interpol against him. With this conduct of applicant no.3 showing total disrespect to the authority of the court, there can be no quashing of the proceedings against him.

25. In all the above circumstances, the application is ::: Downloaded on – 09/06/2013 14:26:11 ::: * 32 *

dismissed.

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