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2012 DIGILAW 253 (JHR)

Bharat Bhushan Agarwal v. State of Bihar

2012-02-17

H.C.MISHRA

body2012
Judgment H.C. MISHRA Heard learned counsel for the petitioner and the learned counsel for the respondent State, as also learned counsel appearing on behalf of the respondent Bihar State Financial Corporation. 2. This writ petition has been filed for quashing the F.I.R. and investigation in Giridih (M) P. S. Case No. 373 of 1999 registered under Sections 406, 120B of the Indian Penal Code against the petitioner. 3. The petitioner, being the Director of M/s. Triveni Polytex Ltd. Danidih, Tundi Road, Giridih had taken loan from the Bihar State Financial Corporation (hereinafter referred as 'the Corporation') to the tune of Rs. 21.78 lakhs. The loan was availed by the petitioner, which could not be repaid and ultimately, on 11.08.1997 the officers of the Corporation took over the possession of the said factory in presence of Executive Magistrate and Police under the provisions of 29 and 30 of the State Financial Corporation Act 1951. While making the inventory, it was found that about 92 motors and almost all electrical equipments had been removed from the factory and as such, the F.I.R. was lodged by the Branch Manager, Bihar State Financial Corporation, Giridih, on the basis of which Giridih (M) P. S. Case No. 373 of 1999 was instituted and the investigation was taken up. The petitioner has challenged lodging of the said F.I.R. and has prayed for quashing the same. 4. Learned counsel for the petitioner has pointed out that the petitioner has repaid all the dues to the Corporation and the balance amount was waived by the Corporation and, accordingly, No Dues Certificate was also issued by the Corporation, as contained in memo No. 74/07-08 dated 14.05.2007, which has been brought on record by way of Annexure – 9 to the supplementary affidavit. The Corporation has filed the reply to the supplementary affidavit, in which it is admitted by the Corporation that under One Time Settlement Scheme of 2006 the entire dues against the Corporation has been settled by the petitioner. It is also stated in the reply that since the entire dues have been paid by the petitioner under the said scheme, now there is no dues and there is no dispute between the parties and hence and appropriate order to that effect may be passed. 5. Placing reliance upon the decision of the Supreme Court of India in SHIJI @ PAPPU & Ors, Vs. 5. Placing reliance upon the decision of the Supreme Court of India in SHIJI @ PAPPU & Ors, Vs. RADHIKA & Anr, reported in (2011) 10 SCC 705 , learned counsel for the petitioner has submitted that in appropriate cases were no useful purpose is likely to be served by continuation of a criminal proceeding the Apex Court has allowed the proceeding to be quashed, even though the offence is not compoundable. Learned counsel for the petitioner has submitted that since the settlement was made between the parties, no unseful perpose is going to be served by continuation of the criminal proceeding and it is fit case, in which, the criminal proceeding be quashed. 6. Learned counsel appearing for the Corporation has also no objection in the same. 7. In the case of SHIJI @ PAPPU (supra), the Apex Court has laid down the law as follows:- "17. It is manifest that simply because an offence is not compoundable under section 320 Cr.P.C. is by itself no reason for the High Court to refuse exercise of its power under Section 482 Cr.P.C. That power can in our opinion be exercised in cases where there is no chance of recording a conviction against the accused and the entire exercise of a trial is destined to be an exercise in futility. There is a subtle distinction between compounding of offences by the parties before the trial court or in appeal on the one hand and the exercise of power by the High Court to quash the prosecution under section 482 Cr.P.C. on the other. While a court trying an accused or hearing an appeal against conviction, may not be competent to permit compounding of an offence based on a settlement arrived at between the parties in cases where the offences are not compoundable under Section 320, the High Court may quash the prosecution even in cases where the offences with which the accused stand charged are non-compoundable. The inherent powers of the High Court under Section 482 Cr.P.C. are not for that purpose controlled by Section 320 Cr.P.C." (Emphasis supplied). 8. The inherent powers of the High Court under Section 482 Cr.P.C. are not for that purpose controlled by Section 320 Cr.P.C." (Emphasis supplied). 8. In view of the fact that the petitioner has repaid and cleared the dues of the Corporation and the Corporation has also acknowledged the same stating that the entire dues against the corporation has been settled by the petitioner, and now there is no dues and no dispute between the parties, in my considered view, no useful purpose is going to be served by continuation of the criminal proceeding against the petitioner and it is a fit case in which the FIR lodged against the petitioner be quashed. The law laid down in SHIJI @ PAPPU (supra) by the Apex Court fully applies to the facts of this case. 9. In the facts and circumstances of the case, the F.I.R. and investigation in Giridih (M) P. S. Case No. 373 of 1999 is, hereby, quashed. This writ petition is, accordingly, allowed.