Case :- CRIMINAL MISC. WRIT PETITION No. - 6849 of 2021
Petitioner :- Moitra Duggal Sahay And Associates And 4 Others
Respondent :- State Of U.P. And 3 Others
Counsel for Petitioner :- Mahtab Alam,Rohit Yadav
Counsel for Respondent :- G.A.,Chandan Sharma
Hon'ble Mahesh Chandra Tripathi,J. Hon'ble Subhash Vidyarthi,J.
Heard Shri Mahtab Alam, learned counsel for the petitioners, learned A.G.A. for the State and Shri Chandan Sharma, learned counsel for the respondent no.4.
The present writ petition has been filed with the prayer to quash the impugned First Information Report dated 08.12.2018 registered as Case Crime No.1924 of 2018, under Sections 403, 406, 408, 417, 418, 420, 465, 471, 477-A, 34, 120, 120-B I.P.C., Police Station- Noida Section-20, District - Gautam Budh Nagar, and for a direction to the respondents not to arrest the petitioners in pursuance of impugned First Information Report.
The matter was taken up on 01.09.2021 and the Court has passed following order:-
"Heard learned counsel for the petitioners and learned AGA. Shri Chandan Sharma appears for complainant.
It has been informed that out of Court settlement has been arrived at between the parties.
Shri Chandan Sharma, learned counsel for the complainant prays for and is accorded two weeks time to file objection, if any.
Put up this matter as fresh on 20.09.2021."
In response to the aforesaid order, the short counter affidavit has already been filed.
The first and second petitioner is the Society registered under the provisions of Societies Registration Act 1860. It appears that there is a Trust in the name and style of Arun Shungloo Trust duly registered under Societies Registration Act 1860. The petitioner no.3 is a Trusty of the said trust. The aim and object of the Trust is to sail and purchase of the land for housing as well as commercial center. The complainant (fourth respondent) approached to the trust for purchase of land and there was some dispute between the parties. The complainant institute a case for recovery of money against Arun Shungloo in the Court of District Judge, Commercial Court-II, South-East District, Saket Delhi, which was registered as C.S.D.J. No.234/2019 (Society For Health Information System Programmes vs. Arun Shungloo Trust) and C.S.J.D. no.235/2019 (M/s HISP India Info. System Private Limited vs. Arun Shungloo Trust). Since the parties have shown their intention to settle the matter through mediation, the learned Mediation. In the said process, the affidavits have been exchanged and finally the parties have agreed to sum up with the dispute and an agreement also took place with certain terms and conditions. The relevant terms and conditions are reproduced as under:-
"1. It is agreed between the parties, that as a full and final settlement the second party shall make a total payment of Rs.15,25,000/- (Fifteen Lac Twenty Five Thousand Only) which shall be payable in two trances which are as follows:-
a. An amount of Rs.10,00,000/- shall be payable on the next date of hearing before the Court concerned on 10.03.2021.
b. The balance amount of Rs.5.25.000/- shall be payable on the date when the plaintiff will withdraw the present suit after the defendants have made the quashing of the FIR in which the plaintiff shall cooperate by giving their no objection to any such prayer of quashing of the above mentioned FIR before the appropriate Hon'ble High Court which will be preferably within 3 months starting from 10.3.2021.
2. The above payments shall be made by way of demand draft/Banker's cheque for the like amount as stated above. The demand draft with respect to the balance amount of Rs.5,25,000/- shall be kept validated by the defendant no.2 in case the same is required to be re-validate.
3. The plaintiff shall on receipt of first tranche of Rs.10 lacs shall withdraw the complaint before the ICAI immediately preferably on 10.3.2021 and a copy of the request for withdrawal of the complaint shall be handed over to the defendant no.2 or his counsel.
4. The parties shall cooperate with each other in getting the above mentioned FIR quashed. However, all expenses towards the same shall be exclusively met by the defendants and no amount shall be claimed in that respect from the plaintiff. The defendants shall make an endeavour to get the quashing petition signed on the next date of hearing before the concerned court or any other date as per their convenience by informing the plaintiff or their counsel.
5. It is agreed between the parties that after the withdrawal of the suit in terms of the present settlement no claim shall survive between the parties against each other and they undertake not to proceed against each other in any manner in respect of the disputes which have been settled today. The parties shall be bound by their present settlement terms and they undertake to abide by all the terms of the present settlement arrived today before the Mediation Centre.
6. The benefit of the Court Fee Act be given to the plaintiff."
Learned counsel for the respondent no.4, on the basis of averment contained in the short counter affidavit, fairly states that in terms of the settlement arrived between the parties, the payment has also been ensured and as such, there is no dispute. He has no objection in case the first information report is quashed.
Learned A.G.A. has also given nod to the said situation. It is jointly submitted that the dispute has come to be amicably resolved and as such the pending proceedings would serve no purpose and the same are liable to be quashed in the light of the judgements of the Hon'ble Apex Court in the case of B.S. Joshi v. State of Haryana and others, 2003(4) SCC 675, and Gian Singh v. State of Punjab, 2012(10) SCC 303.
The Hon'ble Apex Court in the case of B.S Joshi (Supra) has held that in case the dispute has come to an end, under a compromise/settlement, between the parties, then notwithstanding anything contained under Section 320 IPC, there is no legal impediment for this court to quash the proceedings under its inherent in the case of Gian Singh (supra) has held in para-61 that;
"the power of the High Court in quashing a criminal proceeding or FIR or complaint in exercise of its inherent jurisdiction is distinct and different from the power given to a criminal court for compounding the offences Under Section 320 of the Code. Inherent power is of wide plenitude with no statutory limitation but it has to be exercised in accord with the guideline engrafted in such power viz; (i) to secure the ends of justice or (ii) to prevent abuse of the process of any Court. In what cases power to quash the criminal proceeding or complaint or F.I.R may be exercised where the offender and victim have settled their dispute would depend on the facts and circumstances of each case and no category can be prescribed. However, before exercise of such power, the High Court must have due regard to the nature and gravity of the crime. Heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. cannot be fittingly quashed even though the victim or victim's family and the offender have settled the dispute. Such offences are not private in nature and have serious impact on society. Similarly, any compromise between the victim and offender in relation to the offences under special statutes like Prevention of Corruption Act or the offences committed by public servants while working in that capacity etc; cannot provide for any basis for quashing criminal proceedings involving such offences. But the criminal cases having overwhelmingly and pre-dominatingly civil favour stand on different footing for the purposes of quashing, particularly the offences arising from commercial, financial, mercantile, civil, partnership or such like transactions or the offences arising out of matrimony relating to dowry, etc. or the family disputes where the wrong is basically private or personal in nature and the parties have resolved their entire dispute. In this category of cases, High Court may quash criminal proceedings if in its view, because of the compromise between the offender and victim, the 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 him by not quashing the criminal case despite full and complete settlement and compromise with the victim. In other words, the High Court must consider whether it would be unfair or contrary to the interest of justice to continue with the criminal proceeding or continuation of the criminal proceeding would tantamount to abuse of process of law despite settlement and compromise between the victim and wrongdoer and whether to secure the ends of justice, it is appropriate that criminal case is put to an end and if the answer to the above question(s) is in affirmative, the High Court shall be well within its jurisdiction to quash the criminal proceeding."
Recently, Hon'ble the Apex Court in Ramgopal and another vs. The State of Madhya Pradesh (Criminal Appeal no.1489/2012) dated 29.09.2021 has considered Section 320 Cr.P.C. and sum- up the conclusion in paragraphs 19, 20 and 21 with following observations:-
"19. We thus sumup 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 extraordinary 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 exercised 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 the 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.
20. Having appraised the aforestated parameters and weighing upon the peculiar facts and circumstances of the two appeals before us, we are inclined to invoke powers under Article 142 and quash the criminal proceedings and consequently set aside the conviction in both the appeals. We say so for the reasons that:
Firstly, the occurrence(s) involved in these appeals can be categorized as purely personal or having overtones of criminal proceedings of private nature;
Secondly, the nature of injuries incurred, for which the Appellants have been convicted, do not appear to exhibit their mental depravity or commission of an offence of such a serious nature that quashing of which would override public interest;
Thirdly, given the nature of the offence and injuries, it is immaterial that the trial against the Appellants had been concluded or their appeal(s) against conviction stand dismissed;
Fourthly, the parties on their own volition, without any coercion or compulsion, willingly and voluntarily have buried their differences and wish to accord a quietus to their dispute(s);
Fifthly, the occurrence(s) in both the cases took place way back in the years 2000 and 1995, respectively. There is nothing on record to evince that either before or after the purported compromise, any untoward incident transpired between the parties;
Sixthly, since the Appellants and the complainant(s) are residents of the same village(s) and/or work in close vicinity, the quashing of criminal proceedings will advance peace, harmony, and fellowship amongst the parties who have decided to forget and forgive any illwill and have no vengeance against each other; and Seventhly, the cause of administration of criminal justice system would remain uneffected on acceptance of the amicable settlement between the parties and/or resultant acquittal of the Appellants; more so looking at their present age.
CONCLUSION:
CRIMINAL APPEAL NO.1489 OF 2012
21. Consequently, and for the reasons stated above, read with the settlement dated 13th September 2006, we find it appropriate to invoke our powers under Article 142 of the Constitution and quash the criminal proceedings in the aforesaid case. As a sequel thereto, all offences emanating out of the FIR leading to Criminal Appeal No. 1489 of 2012 stand annulled, and the judgment and orders passed by the trial court, appellate court and the High Court are set aside. Resultantly, the Appellants shall be deemed to have been acquitted of the charged offences for all intents and purposes."
The present dispute is a civil dispute. Neither it is involving any moral turpitude nor is heinous in nature, which has come to an end under an amicable settlement.
The writ petition is allowed and the proceedings of Case Crime No.1924 of 2018, under Sections 403, 406, 408, 417, 418, 420, 465, 471, 477-A, 34, 120, 120-B I.P.C., Police Station- Noida Section-20, District - Gautam Budh Nagar are quashed.
Order Date :- 28.10.2021
A. Pandey