IN THE HIGH COURT OF JHARKHAND AT RANCHI Criminal Miscellaneous Petition No. 1295 of 2014 --- 1.Dewsoft Overseas Pvt. Ltd., represented through its Managing Director namely Sri Rishi Sahdev son of Sri Jaggat Sahdev, Office at Shop No. 305-306, 101, Gagandeep Building, 12, Rajendra Place, P. S. Prasad Nagar, PO New Rajendra Nagar, New Delhi 2.Sri Rishi Sahdev son of Sri Jaggat Sahdev, Managing Director, Dewsoft Overseas Pvt. Ltd. Office at Shop No. 305-306, 101, Gagandeep Building, 12, Rajendra Place, P.S. Prasad Nagar, P.O. New Rajendra Nagar, New Delhi 3.Sri Anurag Awasthi @ Anurag son of Sri Bed Prakash Awasthi, Managing Administrator, Dewsoft Overseas Pvt. Ltd., Office at Shop No. 305-306, 101, Gagandeep Building, 12, Rajendra Place, PS Prasad Nagar, PO New Rajendra Nagar, New Delhi and permanent address at Gomti Nagar, PO, PS Gomti Nagar, Dist. Lucknow (UP) 4.Sri Amarendra Kumar son of Triveni Kant Sinha Independent Channel Partner Dewsoft Overseas Pvt. Ltd. At Dullighat, Patna City, PO Gulzarbagh, PS Khazekalan, District Patna (Bihar) 5.Sri Sudhanshu Shekhar Jha son of Kedar Nath Jha, Independent Channel Partner Dewsoft Overseas Pvt. Ltd. At Somkunj Apartment, Boaring Boad, East of Axis Bank, PO, PS Krishnapuri, District Patna (Bihar) … … Petitioners Versus 1.The State of Jharkhand 2.Pankaj Kumar son of Sri Saryug Prasad Pandey Ward No. 3, Rasikpur, near Old Durga Mandir, PO and PS Dumka, District Dumka permanent address Om Sai Sanjay Arpan House, N.M.C.H. Road, Dhanki More, Beside Raj Milk Factory Kumhrar, PO Bahadurpur Housing Colony, PS Agamkuan, District Patna (Bihar)… … Opposite Parties --- CORAM : HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY --- For the Petitioners : Mr. Gautam Kumar, Advocate For the Opposite Party No. 1 : Mr. S. K. Srivastava, A.P.P. For the Opposite Party No. 2 : Mr. S. K. Deo, Advocate --- 7/04.02.2015 Heard Mr. Gautam Kumar, learned counsel appearing for the petitioners, learned A.P.P. appearing for the State as well as Mr. S. K. Deo, learned counsel appearing for the opposite party no.
2. In this application, the petitioners have prayed for quashing the entire criminal proceeding in connection with P.C.R. Case No. 137 of 2014 including the order dated 23.04.2014 passed by the learned Chief Judicial Magistrate, Dumka whereby and whereunder cognizance has -2- been taken for the offences punishable under Sections 406, 420, 468, 477-A & 120-B of the Indian Penal Code.
3. The prosecution story as would appear from the complaint petition is that the complainant – opposite party no. 2 is an independent channel partner of the petitioners – Company and after his joining on 15.11.2001, 53,000 persons have been added as members by the opposite party no.
2. It was alleged that the opposite party no. 2 has got a share of 37.50% from Ashutosh Enerprises on 11.10.2004 vide an agreement and from 11.10.2004 to 09.01.2009, the opposite party no. 2 was earning commission and when he made an approach for commission, it was said that the same has been deducted from his salary against the loan taken by the opposite party no.
2. It was further alleged that the petitioners have illegally retained the commission amount of Rs. 18.05 lacs of the opposite party no.
2. 4. After the complaint petition was filed, the complainant was examined on solemn affirmation and after examination of his witnesses vide order dated 23.04.2014 cognizance was taken for the offences punishable under Sections 406, 420, 468, 477-A & 120-B of the Indian Penal Code.
5. The learned counsel for the petitioners at the outset has submitted that during the pendency of this application, good sense has prevailed between both the sides and accordingly a joint compromise has been entered into between the complainant – opposite party no. 2 and the petitioners and accordingly he has submitted that the entire criminal proceedings be quashed on account of such compromise.
6. The learned counsel for the opposite party no. 2, on the other hand, has accepted the fact that both the parties have amicably settled their disputes and since now no animosity exists between the parties and as such he does not have any objection if the entire criminal proceedings are quashed.
7. After hearing the learned counsel for the parties and after going through the records, I find that an application has been filed before the learned Chief Judicial Magistrate, Dumka with respect to the compromise entered into between both the sides and it has been stated in the compromise petition that all the disputes and claims as alleged by the complainant in his complaint petition have been amicably solved and settled. -3- 8. Since some of the offences are non-compoundable, it is to be seen in the context of the judicial pronouncements of the Hon'ble Supreme Court as to what extent, the powers under Section 482 of Cr.P.C. can be exercised. In the case of “B. S. Joshi and ors. Vs. State of Haryana and anr.” reported in (2003) 4 SCC675 it was held that, “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 dependent upon the facts and circumstances of each case whether to exercise or not such a power. Thus, the High Court in exercise of its inherent powers can quash criminal proceedings or FIR or complain and Section 320 of the Code does not limit or affect the powers under Section 482 of the Code”.
9. In the case of “Gian Singh Vs. State of Punjab and anr.” reported in (2012) 10 SCC303 it was held as follows:
58. “Where the High Court quashes a criminal proceeding having regard to the fact that the dispute between the offender and the victim has been settled although the 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 wrongdoing that seriously endangers and threatens the well-being of the 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 compoundable in law, with or without the 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 the Prevention of Corruption Act or the offences committed by public servants while working in that capacity, the settlement between the offender and the 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 the victim and the offender and the victim have settled all disputes between them amicably, irrespective of the fact that such offences have not been -4- made compoundable, the High Court may within the framework of its inherent power, quash the criminal proceeding or criminal complaint or FIR if it is satisfied that on the face of such settlement, there is hardly any likelihood of the 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.”
10. Recently in the case of “Narinder Singh and ors. Vs. State of Punjab and ors.” reported in (2014) 6 SCC466 the principles by which the High Court would be guided in giving adequate treatment to the settlement between the parties and exercising its powers under Section 482 of the Cr.P.C. has been laid down, which are as follows:
1. “Power conferred under Section 482 of the Code is to be distinguished from the power which lies in the Court to compound the offences under Section 320 of the Code. No doubt, under Section 482 of the Code, the High Court has inherent power to quash the criminal proceedings even in those cases which are not compoundable, where the parties have settled the matter between themselves. However, this power is to be exercised sparingly and with caution. 29.2. When the parties have reached the settlement and on that basis petition for quashing the criminal proceedings is filed, the guiding factor in such cases would be to secure: (i) ends of justice, or (ii) to prevent abuse of the process of any court. While exercising the power the High Court is to form an opinion on either of the aforesaid two objectives. 29.3. Such a power is not to be exercised in those prosecutions which involve heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. Such offences are not private in nature and have a serious impact on society. Similarly, for the offences alleged to have been committed under special statute like the Prevention of Corruption Act or the offences committed by public servants while working in that capacity are not to be quashed merely on the basis of compromise between the victim and the offender. 29.4. On the other hand, those criminal cases having overwhelmingly and predominantly civil character, particularly those arising out of commercial transactions or arising out of matrimonial relationship or family disputes should be quashed when the parties have resolved their entire disputes among themselves. 29.5. While exercising its powers, the High Court is to examine as to whether the possibility of conviction is remote and bleak and continuation of criminal cases -5- would put the accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal cases. 29.6. Offences under Section 307 IPC would fall in the category of heinous and serious offences and therefore are to be generally treated as crime against the society and not against the individual alone. However, the High Court would not rest its decision merely because there is a mention of Section 307 IPC in the FIR or the charge is framed under this provision. It would be open to the High Court to examine as to whether incorporation of -Section 307 IPC is there for the sake of it or the prosecution has collected sufficient evidence, which if proved, would lead to proving the charge under Section 307 IPC. For this purpose, it would be open to the High Court to go by the nature of injury sustained, whether such injury is inflicted on the vital/delegate parts of the body, nature of weapons used, etc. Medical report in respect of injuries suffered by the victim can generally be the guiding factor. On the basis of this prima facie analysis, the High Court can examine as to whether there is a strong possibility of conviction or the chances of conviction are remote and bleak. In the former case it can refuse to accept the settlement and quash the criminal proceedings whereas in the latter case it would be permissible for the High Court to accept the plea compounding the offence based on complete settlement between the parties. At this stage, the Court can also be swayed by the fact that the settlement between the parties is going to result in harmony between them which may improve their future relationship. 29.7. While deciding whether to exercise its power under Section 482 of the Code or not, timings of settlement play a crucial role. Those cases where the settlement is arrived at immediately after the alleged commission of offence and the matter is still under investigation, the High Court may be liberal in accepting the settlement to quash the criminal proceedings/investigation. It is because of the reason that at this stage the investigation is still on and even the charge-sheet has not been filed. Likewise, those cases where the charge is framed but the evidence is yet to start or the evidence is still at infancy stage, the High Court can show benevolence in exercising its powers favourably, but after prima facie assessment of the circumstances/material mentioned above. On the other hand, where the prosecution evidence is almost complete or after the conclusion of the evidence the matter is at the stage of argument, normally the High Court should refrain from exercising its power under Section 482 of the Code, as in such cases the trial court would be in a position to decide the case finally on merits and to come to a conclusion as to whether the offence under Section 307 IPC is committed or not. -6- Similarly, in those cases where the conviction is already recorded by the trial court and the matter is at the appellate stage before the High Court, mere compromise between the parties would not be a ground to accept the same resulting in acquittal of the offender who has already been convicted by the trial court. Here charge is proved under Section 307 IPC and conviction is already recorded of a heinous crime and, therefore, there is no question of sparing a convict found guilty of such a crime.”
11. After careful consideration of the judgments referred to above, the main factors while exercising the powers under Section 482 of Cr.P.C. is to secure the ends of justice and/or to prevent the abuse of the process of any court. If the compromise which has been arrived at between the parties is juxtaposed with the guidelines enumerated by the Hon'ble Supreme Court, it clearly appears that the present case squarely falls within those guidelines as the said alleged offences are entirely private in nature and if the trial is allowed to continue, apparently the chances of securing conviction is far fetched. Even otherwise, the offences alleged do not have a societal impact as the same is purely on account of business transaction and continuation of criminal proceedings will be an act in futility.
12. In such circumstances, when the matter has been settled and compromised and no animosity or ill feeling exists between both the sides as would be apparent from the joint compromise petition, I have no hesitation in holding that continuation of the criminal case in the backdrop of the compromise would be an abuse of the process of Court.
13. Accordingly, this application is allowed and the entire criminal proceedings in connection with P.C.R. Case No. 137 of 2014 including the order dated 23.04.2014 passed by the learned Chief Judicial Magistrate, Dumka is quashed. I. A. No. 3479 of 2014: In view of the order passed, in Cr.M.P. No. 1295 of 2014 this interlocutory application has become infructuous. The same is being dismissed as infructuous. (Rongon Mukhopadhyay, J) R. Shekhar Cp 3