Court No. - 83
Case :- APPLICATION U/S 482 No. - 39208 of 2018 Applicant :- Smt. Ashma Opposite Party :- State Of U.P. And Anr Counsel for Applicant :- Karan Singh Yadav,Surendra Narayan Mishra Counsel for Opposite Party :- G.A.,Ashutosh Pandey,Rajeev Kumar Connected with Case :- APPLICATION U/S 482 No. - 10099 of 2021 Applicant :- Asha Clothing And Garments Company Proprietor Shahnawaz Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Karan Singh Yadav Counsel for Opposite Party :- G.A.
Hon'ble Rajeev Misra,J.
Heard Mr. Karan Singh Yadav, learned counsel for applicant, learned A.G.A. for State and Mr. Rajiv Kumar, learned counsel representing first informant opposite party 2.
Aforesaid applications are connected with each other and therefore they are being decided by a common order.
Criminal Misc. application under Section 482 Cr.P.C. No. 39208 of 2018 has been filed by accused applicant challenging order dated 12.07.2018 passed by Chief Judicial Magistrate, Jhansi, in Case No. 2494 of 2017 (State Vs. Shahnawaz and others), arsing out of Case Crime No. 205 of 2017, under Sections 420, 467, 468, 471, 406 IPC, P.S Kotwali, District Jhansi, whereby process under Section 83 Cr. P. C. had been issued against applicant.
Record shows that first informant/opposite party 2 Ashis Gupta gave Cheque No. 1513 dated 08.02.2017 valued at Rs. 5 lacs and cheque No. 1514 dated 09.03.2017 valued at Rs. 50,000/- to applicant Smt. Ashma. Subsequently, applicant gave cheque No. 9804 dated 08.02.2017 valued at Rs. 5 lacs and drawn at Central Bank of India, Chamanganj, Sipari Bazar, Jhansi. First informant/opposite party 2 presented aforesaid cheque in his bank on 27.04.2017, which was dishonoured on account of insufficient funds in the bank account of applicant Smt. Ashma.
In view of above, First informant/opposite party 2 lodged an F.I.R. dated 15.05.2017 which was registered as Case Crime No. 205 of 2017, under Sections 420, 467, 468, 471, 406 IPC, P.S Kotwali, District Jhansi. In the aforesaid F.I.R., applicant Smt. Ashma and her husband Shahnawaz have been nominated as named accused.
Subsequent to aforesaid F.I.R., Investigating Officer proceeded with statutory investigation of aforementioned case crime number. On the basis of material gathered by Investigating Officer during course of investigation, Investigating Officer opined to submit a charge sheet as complicity of named accused was found established in the crime in question. Accordingly, Investigating Officer submitted charge sheet dated 09.02.2017 whereby named accused i.e. Smt. Ashma and Shahnawaz were charge sheeted under Sections 420, 467, 469, 471, 406 IPC.
After submission of aforesaid charge sheet, cognizance was taken upon same, vide Cognizance Taking Order dated 21.7.2017 passed by Chief Judicial Magistrate, Jhansi. Resultantly, Criminal Case No. 2494 of 2017 (State Vs. Shahzawaz and others), under Sections 420, 467, 468, 471, 406 IPC, P.S. Kotwali Jhansi, District Jhansi, came to be registered. Charge sheeted accused were summoned in above mentioned case. However, they failed to honour the same. Consequently, Court below, vide order dated 10.5.2018 issued non-bailable warrants as well as coercive process under Section 82 Cr. P. C. against applicant and other accused. In spite of above, accused failed to appear before Court below. Ultimately, Court below by means of order dated 12.7.2018, issued process under Section 83 Cr. P. C.against accused.
Feeling aggrieved by order dated 12.7.2018, one of the accused namely Smt. Ashma approached this Court by means of present application under Section 482 Cr. P. C.
Present application came up for admission on 31.10.2018 and this Court passed following order:-
"Heard learned counsel for the applicant and learned A.G.A. for the State.
Learned counsel for the parties have submitted that the dispute is purely civil in nature and the said matter can be well considered by Mediation Centre of this Court.
It is directed that applicant shall deposit a sum of Rs.20,000/- within two weeks from today with the Mediation Centre of which 50% shall be paid to the opposite party no.2 for appearance before the Mediation Centre.
The matter is remitted to the Mediation Centre with the direction that same may be decided after giving notices to both the parties.
It is directed that Mediation Centre shall decide the matter expeditiously preferably within a period of three months. Thereafter the case shall be listed before appropriate Bench in the fourth week of January, 2019.
Till the next date of listing, arrest of the applicant in Case No.2494 of 2017, arising out of Case Crime No.205 of 2017, under Sections 420, 467, 468, 471, 406, IPC, P.S. Kotwali, District Jhansi, pending before the Chief Judicial Magistrate, Jhansi shall be kept in abeyance.
After depositing the amount, aforesaid, notice shall be issued to the parties and in the case the aforesaid amount is not deposited within the aforesaid period, the interim protection granted above shall automatically be vacated."
Subsequently, Time Extension Application No. 1 of 2018 was filed, which was allowed.
Pursuant to above orders, parties went to mediation. In the mediation proceedings parties arrived at an interim settlement and consequently, the Mediation and Conciliation Centre, High Court, Allahabad, prepared the interim settlement agreement dated 20.05.2019. For ready reference same is reproduced herein under:-
This INTERIM SETTLEMENT AGREEMENT entered into on 20.05.2019, between Smt. Ashma (Applicant) and Sri Ashish Gupta (O.P. No. 2).
WHEREAS
1. Dispute and differences had arisen between the Parties hereto and Application U/S. 482 No. 39208 of 2018 was filed in the High Court.
2. The matter was referred to mediation/conciliation vide order dated 31.10.2018 passed by Hon'ble Sidharth, J.
3. The parties agreed that Mr. V.P. Mathur and Mr. Subodh Rai, Advocate would act as their Conciliator/Mediator, in the Mediation Case No. 0409/2019.
4. Joint and separate meetings were held during the process of Conciliation/Mediation on 11.02.2019, 25.02.2019, 25.03.2019, 08.04.2019 and 20.05.2019 and the parties have with the assistance of Mediator/Conciliator voluntarily arrived at an amicable solution resolving the above-mentioned disputes and differences.
5. The parties hereto confirm and declare that they have voluntarily and of their own free will arrived at this Settlement Agreement in the presence of the Mediator/Conciliator.
6. The following settlement has been arrived at between the parties hereto:-
a) That the instant dispute is a commercial dispute between Smt. Ashma (Applicant) and Sri Ashish Gupta (O.P. No. 2) u/s 420, 467, 468, 471, 406 IPC.
b) That today i.e. 20.05.2019 Smt. Ashma (Applicant) and Sri Ashish Gupta (O.P. No. 2) are present for execution of Settlement Agreement.
c) That both the parties Smt. Ashma (Applicant) and Sri Ashish Gupta (O.P. No. 2) have decided to resolve the dispute on the condition that Smt. Smt. Ashma (Applicant) shall pay a sum of Rs. 06 Lakhs (Rs. six lakhs only) to Sri Ashish Gupta (O.P. No. 2).
d) That on 08.04.2019 Smt. Ashma (Applicant) has produced a demand draft of Rs. 01 Lakh bearing No. 682565 dated 08.04.2019 issued by S.B.I. and today i.e. 20.05.2019 Smt. Ashma (Applicant) has produced another demand draft of Rs. 01 Lakh bearing No. 683287 dated 20.05.2019 issued by SBI drawn in favour of Sri Ashish Gupta (O.P. No. 2) which are being kept in the Mediation file and shall be handed over to him at the time of Final Settlement Agreement or decided on the next date of Mediation.
e) That it has been agreed between the parties that on the next date of Mediation i.e. 01.07.2019 Smt. Ashma (Applicant) shall produce a demand draft of Rs. 03 Lakhs (Rs. three lakhs only) duly drawn in the name of Sri Ashish Gupta (O.P. No. 2).
f) That on the next date of Mediation on production of aforementioned demand draft further formalities for final Settlement shall be decided.
Put up this case again on 01.07.2019
Unfortunately, applicant failed to honour the terms of interim settlement agreement. Consequently, Mediation and Conciliation Centre, High Court, Allahabad submitted it's report dated 09.09.2019, whereby Mediation and Conciliation Centre, High Court, Allahabad, concluded that parties could not arrive at any agreement. As a result of above, matter was listed before this Court. Ultimately, on 19.09.2021, learned counsel for applicant submitted a cheque of Rs. 1 lakh which was received by counsel representing opposite party 2. Same is recorded in order order dated 19.01.2021. Order dated 19.01.2021 is, accordingly, reproduced herein under:-
"Sri Karan Singh Yadav, learned counsel for the applicant, Sri Rajeev Kumar, learned counsel for the informant and Sri G.P. Singh, learned A.G.A. for the State are present.
Learned counsel for the informant had admitted to the proposal extended from the side of learned counsel for the applicant that the remaining amount i.e. Rs. 4,00,000/- would be paid in four equal installments within four upcoming months to the learned counsel for the informant.
Today cheque of Rs. 1,00,000/- ( rupees one lakh only ) is provided by learned counsel for the applicant through Cheque No. 34103600000200000049216 to the learned counsel for the informant.
Put up this matter after four months when the entire payment is finally made i.e. on 20.05.2021 as unlisted for final arguments.
Let a photo-copy of the cheque is taken on record."
While aforesaid proceedings were pending, first informant/opposite party 2 filed a complaint dated 09.06.2017, under Section 138 N.I. Act, which came to be registered as Complaint No. 1138 of 2017 (Ashish Gupta Vs. Asha Clothing and Garment Company, through its proprietor Shahnawaz. Judicial Magistrate, IInd, Jhansi proceeded with the complaint and after undertaking the necessary exercise, ultimately, summoned applicant Shahnawaz who is proprietor of Asha Clothing and Garment Company, vide summoning order dated 22.07.2017.
Feeling aggrieved by summoning order dated 22.07.2017, passed by Additional Chief Judicial Magistrate/Additional Civil Judge (Senior Division)/Court No. 01, Jhansi, application under Section 482 Cr. P. C. No. 10099 of 2021 (Asha Clothing and Garments Company, through its proprietor Shahnawaz Vs. State of U.P. and another) came to be filed before this Court. Vide order dated 27.7.2021, passed by this Corut, it was directed that this application be listed along with Criminal Misc. Application No. 39208 of 2018 on the next date of listing. Pursuant to aforesaid order, present criminal Misc. Applications have been connected and are, therefore, listed together.
During pendency of present applications parties amicably settled their dispute outside the Court. According to the terms of settlement arrived at between parties, it was agreed that a sum of Rs. 6 lakhs shall be paid by applicant to complainant opposite party towards full and final satisfaction of disputed cheqyes. A sum of Rs. 1 lakh was paid vide cheque No. 683287 000002000: 00470 dated 20.05.2019. On 19.1.2021 a cheque of Rs. 1 lakh was provided by learned counsel for applicant vide cheque No. 34103600000200000049216 to learned counsel for the informant. Today, applicant has produced a bank draft of Rs.
4 lakhs which has been accepted by learned counsel for opposite party 2. Receipt of the same has also been endorsed on order sheet.
On the aforesaid premise, learned counsel for applicants contends that since dispute between parties is a purely civil dispute. Parties have already settled their dispute outside the Court. According to the terms of settlement, applicants are required to pay a sum of Rs. 6 lakhs towards full and final settlement of the disputed cheques. Opposite party 2 has already been paid aforesaid amount. As such, no dispute exists between parties. He, therefore, submits that in view of above, interest of justice shall be served, in case entire criminal proceedings referred to above are quashed by this Court in exercise of it's jurisdiction under Section 482 Cr. P. C., instead of relegating the parties to Court below.
Per contra, learned A.G.A. representing State as well as Mr. Rajiv Kumar, learned counsel representing opposite party 2 in both the applications do not dispute submissions urged by learned counsel for applicant.
This Court is not unmindful of the following judgements of Apex Court:
1. B.S. Joshi and others Vs. State of Haryana and another (2003) 4 SCC 675
2. Nikhil Merchant Vs. Central Bureau of Investigation[2008)9 SCC 677]
3. Manoj Sharma Vs. State and others ( 2008) 16 SCC 1
4. Shiji @ Pappu and Others VS. Radhika and Another, (2011) 10 SCC 705
5. Gian Singh Vs. State of Punjab (2012) 10 SCC 303
6. K. Srinivas Rao Vs. D.A Deepa, (2013) 5 SCC 226
7. Dimpey Gujral and others Vs. Union Territory through Administrator, U.T. Chandigarh and others, (2013) 11 SCC 497
8. Narindra Singh and others Vs. State of Punjab ( 2014) 6 SCC 466
9. Yogendra Yadav and Ors. Vs. State of Jharkhand and another (2014) 9 SCC 653
10. C.B.I. Vs. Maninder Singh (2016) 1 SCC 389
11. C.B.I. Vs. Sadhu Ram Singla and Others, (2017) 5 SCC 350
12. Parbatbhai Aahir @ Parbatbhai Bhimsinhbhai Karmur and Others Vs. State of Gujarat and another, (2017) 9 SCC 641
13. Anita Maria Dias and Ors. Vs. State of Maharashtra and Others, (2018) 3 SCC 290
14. Social Action Forum For Manav Adhikar and Another Vs. Union of India and others, (2018) 10 SCC, 443 (Constitution Bench)
15. State of M.P. VS. Dhruv Gurjar and Another, (2019) 5 SCC 570
16. State of M.P. V/s Laxmi Narayan & Ors., (2019) 5 SCC 688
17. Rampal Vs. State of Haryana, AIR online 2019 SC 1716
18. Arun Singh and Others VS. State of U.P. and Another (2020) 3 SCC 736
19. Criminal Appeal No. 1489 of 2012 (Ramgopal and Another Vs. The State of M.P.), 2021 SCC OnLine SC 834.
wherein the Apex Court has categorically held that compromise can be made between the parties even in respect of certain cognizable and non compoundable offences. In Dimpey Gujral (supra), it was held that heinous and serious offences of mental depravity, or offences like murder, rape, dacoity etc. cannot be quashed on the basis of compromise as same fall in the category of crime against society. It was however observed that court should bear in mind that if because of compromise between the parties, possibility of conviction is remote and bleak and continuation of criminal case would put accused to great oppression and prejudice and extreme injustice would be caused to accused by not quashing the criminal proceedings, then in that eventuality High Court should quash the proceedings on the ground of compromise. Constitution Bench in Social Action Forum For Manav Adhikar and Another (supra) in paragraph 38 of the judgement approved the law laid down by three Judges Bench judgement in Gian Singh (supra) Court then approved the view that criminal proceedings can be quashed on the basis of compromise. However, another 3 Judges Bench of Apex Court in State of M.P. Vs. Laxmi Narayan (Supra) has observed that no compromise can be made in respect of offences against society as they are not private in nature. It was, however, held that proceedings under Section 307 IPC can be quashed in view of compromise entered into by the parties, provided injured has not sustained grievous and fatal injury nor he should have sustained injury on vital part of the body. Similarly in Ram Pal Vs. State of Haryana (Supra) it has been held that no compromise can be made in cases relating to rape and sexual assault. Reference may also be made to the decision given by this Court in Shaifullah and others Vs. State of U.P. And another [2013 (83) ACC 278] in which the law expounded by Apex court in some of the aforesaid cases has been explained in detail.
Apex court in Parbatbhai Aahir @ Parbatbhai Bhimsinhbhai Karmur (Supra) has laid down the following guidelines with regard to quashing of criminal proceedings as well compromise in criminal proceedings in paragraphs 16 to 16.10 of the judgement, which read as under:
"16. The broad principles which emerge from the precedents on the subject, may be summarised in the following propositions
16.1. Section 482 preserves the inherent powers of the High Court to prevent an abuse of the process of any court or to secure the ends of justice. The provision does not confer new powers. It only recognizes and preserves powers which inhere in the High Court;
16.2. The invocation of the jurisdiction of the High Court to quash a First Information Report or a criminal proceeding on the ground that a settlement has been arrived at between the offender and the victim is not the same as the invocation of jurisdiction for the purpose of compounding an offence. While compounding an offence, the power of the court is governed by the provisions of Section 320 of the Code of Criminal Procedure, 1973. The power to quash under Section 482 is attracted even if the offence is non-compoundable.
16.3. In forming an opinion whether a criminal proceeding or complaint should be quashed in exercise of its jurisdiction under Section 482, the High Court must evaluate whether the ends of justice would justify the exercise of the inherent power;
16.4. While the inherent power of the High Court has a wide ambit and plenitude it has to be exercised; (i) to secure the ends of justice or (ii) to prevent an abuse of the process of any court;
16.5. The decision as to whether a complaint or First Information Report should be quashed on the ground that the offender and victim have settled the dispute, revolves ultimately on the facts and circumstances of each case and no exhaustive elaboration of principles can be formulated;
16.6. In the exercise of the power under Section 482 and while dealing with a plea that the dispute has been settled, the High Court must have due regard to the nature and gravity of the offence. Heinous and serious offences involving mental depravity or offences such as murder, rape and dacoity cannot appropriately be quashed though the victim or the family of the victim have settled the dispute. Such offences are, truly speaking, not private in nature but have a serious impact upon society. The decision to continue with the trial in such cases is founded on the overriding element of public interest in punishing persons for serious offences;
16.7. As distinguished from serious offences, there may be criminal cases which have an overwhelming or predominant element of a civil dispute. They stand on a distinct footing in so far as the exercise of the inherent power to quash is concerned;
16.8. Criminal cases involving offences which arise from commercial, financial, mercantile, partnership or similar transactions with an essentially civil flavour may in appropriate situations fall for quashing where parties have settled the dispute;
16.9. In such a case, the High Court may quash the criminal proceeding if in view of the compromise between the disputants, the possibility of a conviction is remote and the continuation of a criminal proceeding would cause oppression and prejudice; and
16.10. There is yet an exception to the principle set out in propositions 16.8 and 16.9 above. Economic offences involving the financial and economic well-being of the state have implications which lie beyond the domain of a mere dispute between private disputants. The High Court would be justified in declining to quash where the offender is involved in an activity akin to a financial or economic fraud or misdemeanour. The consequences of the act complained of upon the financial or economic system will weigh in the balance."
Recently in Ramgopal and another (supra), Court has again reiterated the guidelines regarding quashing of criminal proceedings in view of compromise. Following has been observed in paragraph 18-19:-
"18. It is now a well crystalized axiom that plenary jurisdiction of this Court to impart complete justice under Article 142 cannot ipso facto be limited or restricted by ordinary statutory provisions. It is also noteworthy that even in the absence of an express provision akin to Section 482 Cr.P.C. conferring powers on the Supreme Court to abrogate and set aside criminal proceedings, the jurisdiction exercisable under Article 142 of the Constitution embraces this Court with scopious powers to quash criminal proceedings also, so as to secure complete justice. In doing so, due regard must be given to the overarching objective of sentencing in the criminal justice system, which is grounded on the sub-lime philosophy of maintenance of peace of the collective and that the rationale of placing an individual behind bars is aimed at his reformation.
19. We thus sum-up and hold that as opposed to Section 320 Cr.P.C. where the Court is squarely guided by the compromise between the parties in respect of offences 'compoundable' within the statutory framework, the extra-ordinary power enjoined upon a High Court under Section 482 Cr.P.C. or vested in this Court under Article 142 of the Constitution, can be invoked beyond the metes and bounds of Section 320 Cr.P.C. Nonetheless, we reiterate that such powers of wide amplitude ought to be exercise carefully in the context of quashing criminal proceedings, bearing in mind: (i) Nature and effect of the offence on the conscious of the society; (ii) Seriousness of the injury, if any; (iii) Voluntary nature of compromise between accused and the victim; & (iv) Conduct of the accused persons, prior to and after the occurrence of the purported offence and/or other relevant considerations."
Considering the facts and circumstances of case, submissions made by counsel for parties, this court is of considered opinion that dispute between parties is a purely private dispute and not a crime against society. Moreover, parties have already compromised their dispute. Consequently, no useful purpose shall be served by prolonging the proceedings of above mentioned cases. In view of compromise entered into by the parties, chances of conviction of applicants who are either charge sheeted accused or and an accused in a complaint case are remote and bleak. As such continuation of proceedings would itself cause injustice to parties. The trial would only entail loss of judicial time in a futile pursuit particularly when torrents of litigation drown the courts with an unimaginable flood of dockets.
In view of above, both the applications succeed and are liable to be allowed. Consequently, proceedings of Case No. 2494 of 2017 (State Vs. Shahnawaz and others), arsing out of Case Crime No. 205 of 2017, under Sections 420, 467, 468, 471, 406 IPC, P.S Kotwali, District Jhansi, now pending in the Court of Chief Judicial Magistrate, Jhansi as well as entire proceedings of Complaint Case No. 1138 of 2017 (Ashish Gupta Vs. Asha Clothing), unddr Section 138 N.I. Act, and now pending in the Court of Judicial Magistrate 2nd, Jhansi, are, hereby, quashed.
Both the Applications are, accordingly, allowed. There shall be no order as to costs.
Order Date :- 22.9.2021 HSM