IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :30.09.2008 CORAM THE HONOURABLE MR. JUSTICE K.N. BASHA Crl.O.P.No.29815 of 2004 & Crl.M.P.No.9365 of 2004 1. P.S.Shenoy 2. D.Rajagopalan 3. M.Ramakrishna Rao .. Petitioners 2 to 4 Vs. G.Krishnamurthy .. Respondent Criminal Original Petition filed under section 482 of Cr.P.C. to call for the records in C.C.No.6776 of 2004 on the file of the VII Metropolitan Magistrate, George Town, Chennai and quash the proceedings therein. * * * For Petitioners : Mr.K.Asokan, Senior Counsel for Mr.K.S.V.Prasad For Respondent : Mr.G.Thangavel O R D E R
The petitioners, who have been arrayed as A2 to A4, have come forward with this petition, seeking for the relief of quashing the proceedings initiated by the respondent/complainant by preferring a private complaint for the alleged offences under Sections 405, 406 and 409 of IPC pending in C.C.No.6776 of 2004 on the file of the learned VII Metropolitan Magistrate, George Town, Chennai-1.
2. Learned counsel appearing for the petitioners submitted that the impugned complaint relates to the alleged misappropriation of an amount of Rs.18,177.53/- towards the part of due payment of Provident Fund and Gratuity. It is further submitted by the learned counsel for the petitioners that the said amount was paid through a pay order to-day bearing No.000411/29.09.2008 drawn on Bank of Baroda. It is also represented by the learned counsel for the petitioners that this payment is made without prejudice to the rights and claims of the Bank. The learned counsel for the petitioners has filed an affidavit of Mr.S.Devaseelan, dated 30.9.2008, the present Assistant General Manager at the Regional Office of Bank of Baroda, Chennai in respect of the payment of Provident Fund and Gratuity amount, alleged to have been misappropriated by the petitioners, without prejudice to the rights of the respondent in W.P.No.16913 of 2003. It is also submitted that the respondent further stated in the affidavit that he is not interested in pursuing the criminal complaint, namely, the instant complaint.
3. The learned counsel for the respondent submitted that though there is no ground made out quashing the proceedings in order to arrive at an amicable settlement, the respondent without prejudice to the further claims of terminal benefits of the respondent, the respondent acknowledged the receipt of an amount of Rs.18,177.53/- towards the part payment of Provident Fund and Gratuity from the petitioners through the pay order bearing No.0004111 dated 29.09.2008.
4. I have considered the submissions made on both sides and also perused the impugned complaint.
5. The allegation in the impugned complaint is to the effect that the petitioners, who are the officials of the Bank, namely, Bank of Baroda, Chennai, said to have misappropriated of an amount of Rs.18,177.53/-, which is to be paid towards the part of due payment of Provident Fund and Gratuity to the respondent.
6. Considering the nature of allegation and the facts and circumstances of the case, this Court advised both the parties to purchase peace through Mediation and Conciliation and with the effective steps taken by the learned counsels appearing for the petitioners as well as the respondent, it is reported before this Court that the matter was amicably settled as far as the impugned complaint is concerned. The affidavit filed by the petitioners through one Mr. S.Devaseelan, present Assistant General Manager of the Regional Office of Bank of Baroda, Chennai, dated 30.09.2008 reads here under :
“Affidavit of Mr.S.Devaseelan
I, S.Devaseelan, S/o.M.Seetharaman, Hindu, aged about 54 years and residing at No.B.17, Sonex Supriya Apartments, 26, Panneer Nagar, Mogappair, Chennai-600 037 do hereby solemnly and sincerely affirm and state as follows:
1. I am the present Assistant General Manager at the Regional Office of Bank of Baroda, Chennai. The petitioners in the main criminal OP were executives of our bank, who all have retired now. I know the facts of the case from a perusal of the records. I am filing this on behalf of the petitioners.
2. I have perused the affidavit dated 25.09.2008 filed by the respondent in response to a direction of this Hon’ble Court to settle the matter. As per the suggestion of this Hon’ble Court to settle the matter and purchase peace, without prejudice to the rights and claims of the bank, we agree to pay the respondent towards full and final settlement of the entire issues under the criminal complaint filed by the complainant/respondent (i.e. C.C.6776/2004 on the file of VII Metropolitan Magistrate Court, George Town) the sum of Rs.18,177.53 which was appropriated towards the Housing Loan of the respondent by our bank from his Gratuity and Provident Fund.
3. I am delivering through our counsel, a Pay Order for the said sum of Rs.18,177.53 favouring the respondent.
4. I pray that this Hon’ble court may be pleased to pass appropriate orders and thereby render justice.
Sd/-S.Devaseelan,
Assistant General Manager”
7. The affidavit filed by the respondent/complainant, dated 30.09.2008 reads here under :
“Affidavit of respondent G.Krishnamoorthy
I, G.Krishnamoorthy, S/o.late Gopal Rao, Hindu, aged about 61 years, residing at No.2/1061, 1st Main Road, V.G.P.Gopal Nagar, Perumbakkam Medavakkam, Chennai-601 302 do hereby solemnly affirm and sincerely state as follows:
1. I am the respondent in the above said matter and I am filing this affidavit as per the direction of this Hon’ble Court as a proposal for settlement of the case.
2. I submit that I have already submitted the affidavit and prayed to direct the petitioner in Cr.O.P.No.29815 to give credit of the PF and gratuity payable up to 31.12.2007.
3. I submit that I have received the sum of Rs.18177.53 from the said petitioner’s bank towards the part of due payment of PF and Gratuity misappropriated by the petitioner under without prejudice to the interest and outcome of the result in W.P.No.16913 of 2003 pending before this Hon’ble Court. I am not interested to pursue and continue the claim in the criminal complaint.
Solemnly affirmed at Chennai on this 30th day of September, 2008 and signed his name in my presence.
Sd/-G.Krishnamoorthy”
Therefore, it is quite clear from the affidavit filed by both the parties, viz., the petitioners/accused and the respondent/complainant that the matter was amicably settled between them in respect of the disputed amount of Rs.18,177.53/- said to be the misappropriated amount in respect of part payment of Provident Fund and Gratuity to the respondent.
8. It is relevant to refer the decision of the Hon’ble Apex Court in B.S.Joshi and others v. State of Haryana and another, 2003 Supreme Court Cases (Crl) 848 and the Hon’ble Apex Court in this decision has held as follows:
“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. Thus, the High Court in exercise of its inherent powers can quash criminal proceedings or FIR or complaint and Section 320 of the Code does not limit or affect the powers under Section 482 of the Code.
It is however to be borne in mind that in the present case the appellants had not sought compounding of the offences. They had approached the Court seeking quashing of FIR.”
9. The Larger Bench of the Punjab and Haryana High Court in Kulwinder Singh and others v. State of Punjab and another, 2007(4) CTC 769 has held that the principal laid down by the Hon’ble Apex Court in B.S.Joshi and others v. State of Haryana and another (2003 SCC (Crl) 848), is not only applicable to the matrimonial offences, but also applicable to other non-compoundable offences and held as follows:
“21. The power under Section 482 of the Cr.P.C. cannot be a hostage to one class or category of cases. That would be a complete mis-construction of the intent of the Legislature, who placed its utmost faith in the inherent power of the High Court to break free the shackle of other provisions of the Code to give effect to any order under it or to prevent the abuse of the process of any Court or otherwise to secure the ends of justice. The wide amplitude of this provision of law cannot be diminished by any myopic interpretation and any straight jacket prescription. Shri R.S.Cheema, learned Senior Advocate, who assisted the Bench as Amicus Curiae, highlighted the inadequacies of the criminal justice system in order to propound and promote the principle that under Section 482 of the Cr.P.C., the High Court can effectively exercise its power in an appropriate case and intervene to quash an F.I.R. even when the case discloses a non-compoundable offence and where the parties have voluntarily entered into a compromise….
24. The compromise, in a modern society, is the sine qua non of harmony and orderly behaviour. It is the soul of justice and if the power under section 482 of the Cr.P.C. is used to enhance such a compromise which, in turn, enhances the social amity and reduces friction, then it truly is “finest hour of justice”. Disputes which have their genesis in a matrimonial discord, landlord-tenant matters, commercial transactions and other such matters can safely be dealt with by the Court by exercising its powers under Section 482 of the Cr.P.C. in the event of a compromise, but this is not to say that the power is limited to such cases. There can never be any such rigid rule to prescribe the exercise of such power, especially in the absence of any premonitions to forecast and predict eventualities which the cause of justice may throw up during the course of a litigation.
25. … Further, the same cannot be limited to matrimonial cases alone and the Court has the wide power to quash the proceedings even in non-compoundable offences notwithstanding the bar under Section 320 of the Cr.P.C. in order to prevent the abuse of law and to secure the ends of justice. The power under Section 482 of the Cr.P.C. is to be exercised ex-debito Justitiate to prevent an abuse of process of Court. There can neither be an exhaustive list nor the defined para-meters to enable a High Court to invoke or exercise inherent powers. It will always depend upon the fact and circumstances of each case. The power under Section 482 of the Cr.P.C. has no limits. However, the High Court will exercise it sparingly and with utmost care and caution. The exercise of power has to be with circumspection and restraint. The Court is a vital and an extraordinary effective instrument to maintain and control social order. The Courts play role of paramount importance in achieving peace, harmony and ever-lasting congeniality in society. Resolution of a dispute by way of compromise between two warring groups, therefore, should attract the immediate and prompt attention of a Court which should endeavour to give full effect to the same unless such compromise is abhorrent to lawful composition of the society or would promote savagery.”
10. In a latest decision in Nikhil Merchant v. Central Bureau of Investigation and Another reported in JT 2008 (9) SC 192, the Hon’ble Apex Court has held as follows :
“22. Despite the ingredients and the factual content of an offence of cheating punishable under Section 420 IPC, 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 of the compoundable offences, but it is in such cases that the principle enunciated in B.S.Joshi’s case (supra) 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 Bank have been cleared and the Bank does not appear to have any further claim against the Company. What, however, remains is the fact that certain documents were alleged to have been created by the appellant herein in order to avail of credit facilities beyond the limit to which the Company was entitled. The dispute involved herein has overtones of a civil dispute with certain criminal facets. The question which is required to be answered in this case in 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 ?
24. On an overall view of the facts as indicated herein above 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 satisfied that this is a fit case where technicality should not be allowed to stand in the way in the quashing of the criminal proceedings, since, in our view, the continuance of the same after the compromise arrived at between the parties would be a futile exercise.”
11. The Hon’ble Apex Court ultimately quashed the proceedings in respect of the alleged offences under Sections 120 B read with Sections 420, 467, 468 and 471 A of IPC read with Sections 5(2) and 5(1)(d) of the Prevention of Corruption Act 1947 and Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988.
12. As far as the instant case is concerned, the petitioners have been implicated for the alleged offences under Sections 405, 406 and 409 IPC. As far as under Section 405 IPC is concerned, it is a non-compoundable offence. Section 406 IPC is a compoundable offence and Section 409 is again a non-compoundable offence and as such, the petitioners have been implicated for both compoundable and non compoundable offences. Iin view of the above said principles laid down in B.S.Joshi’s case that Section 320 of Cr.P.C. would not be a bar to the exercise of the power under Section 482 of Cr.P.C.
K.N. BASHA, J.
13. Therefore, in view of the above well-settled principle of law laid down by the Hon’ble Apex Court as well as by the Larger Bench of the Punjab and Haryana High Court as well as in view of the affidavit filed by both the parties to the effect that the parties have settled the matter amicably through mediation and conciliation, this Court is constrained to quash the proceedings and accordingly, the proceedings pending against the petitioner in C.C.No.6776 of 2004 on the file of the VII Metropolitan Magistrate, George Town, Chennai-1, is quashed and the Criminal Original Petition stands allowed. Consequently, connected Miscellaneous Petition is closed.
14. It is also made clear that both the parties, namely, the petitioners as well as the respondent are entitled to settle their claims before the appropriate Forum and they are also entitled to raise their points in pending Writ Petition before this Court. This Court place it on record the commendable steps taken by the learned counsels for both sides for arriving at an amicable settlement through Mediation and Conciliation.
Tsi/gg
To
The VII Metropolitan Magistrate, George Town,
Chennai