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2013 DIGILAW 807 (UTT)

Gopal Food Products v. State of Uttarakhand

2013-12-18

U.C.DHYANI

body2013
Judgment (Oral) : 1. The applicant, by means of present Application under Section 482 Cr.P.C., seeks to quash the charge-sheet and summoning order dated 11.08.2003 passed by the Chief Judicial Magistrate, Udham Singh Nagar in Criminal Case No.408/2010, titled as State vs. M/s Gopal Food Products under Section 420, 467 & 468 IPC. The applicant also seeks to quash the proceedings of the aforementioned criminal case pending before the said court. 2. An FIR was lodged by the Oriental Bank of Commerce (respondent no.2 herein) on 14.09.2002 against the accused-applicant for the offences punishable under Section 420, 467 & 468 IPC. After the investigation, a chargesheet was submitted against the accused-applicant for the selfsame offences. The cognizance was taken by the Chief Judicial Magistrate, Udham Singh Nagar, vide order dated 11.08.2003 and accused-applicant was summoned to face the trial. Aggrieved against the same, present application under Section 482 Cr.P.C. was filed by the accused-applicant. 3. None is present for the complainant (respondent no.2 herein), despite personal service of notice upon him. No counter affidavit was filed on behalf of respondent bank either. 4. Learned counsel for the applicant drew attention of this Court towards the Annexure-11 of the present petition to indicate that a compromise took place between the accused-applicant and the respondent bank. The respondent bank, vide letter dated 07.03.2006 sent a settlement proposal under One Time Settlement (OTS) of the Reserve Bank of India, in which the amount of settlement, mode of repayment, etc., were mentioned. Thereafter, the respondent bank informed the applicant to deposit 25 percent of the settlement amount. Subsequent thereto, an undertaking deed was executed between the applicant and the respondent no.2 (bank) on 18.05.2006. On the basis of such compromise, respondent no.2 withdrew the proceedings against the applicant pending before the Debt Recovery Tribunal (DRT), Lucknow. Certified copy of the order dated 25.05.2006 passed by the D.R.T. is enclosed as Annexure-12 to the petition. 5. Learned counsel for the applicant further stated that the entire amount due to the respondent no.2 was deposited by the applicant in terms of O.T.S. deed. Certified copy of the order dated 25.05.2006 passed by the D.R.T. is enclosed as Annexure-12 to the petition. 5. Learned counsel for the applicant further stated that the entire amount due to the respondent no.2 was deposited by the applicant in terms of O.T.S. deed. ‘No dues certificate’ is also submitted as Annexure-15 to the petition, which speaks as under:- “This is certified that the account of working capital limits availed by M/s Gopal Food Products, have been adjusted under settlement scheme of the Bank and as per the settlement terms the obligants had to repay a sum of Rs.1,47,72,000/- (Rupees one crore forty seven lac seventy two thousand) which they have repaid as per stipulated time schedule of settlement policy. The Bank has nothing to recover from them regarding the above credit facilities.” 6. Thus, according to ‘no objection certificate’, the applicant deposited the entire dues of the respondent bank under the settlement scheme of the bank. The bank has received full and final amount and there are no dues outstanding in the name of applicant. Offences complained of against the accused-applicant are under Sections 420, 467 & 468 IPC. Offence punishable under Section 420 IPC is compoundable within the scheme of Section 320 Cr.P.C. The question is – whether the respondent bank should be permitted to compound the offences complained of against the accused-applicant or not? Reliance was placed upon the pronouncements of the Hon’ble Apex Court in Nikhil Merchant vs. Central Bureau of Investigation and another, (2008) 9 SCC 667 and Gian Singh vs. State of Punjab and another, (2013) 1 SCC (Cri) 160. In Nikhil Merchant's case (supra), the Hon’ble Apex Court quashed the criminal proceedings against the petitioner on the ground that petitioner had discharged all liabilities towards the bank and “no dues certificate” was issued to the petitioner and bank was no more aggrieved against the petitioner. Learned counsel for the applicant, thus, submitted that since the case of present applicant is squarely covered by Nikhil Merchant's case (supra), therefore criminal proceedings against the present applicants may be quashed. 7. Learned counsel for the applicant, thus, submitted that since the case of present applicant is squarely covered by Nikhil Merchant's case (supra), therefore criminal proceedings against the present applicants may be quashed. 7. In Gian Singh’s case (supra), the Hon’ble Apex Court has observed as follows:- “The position that emerges from the above discussion can be summarized thus: 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 of 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 statues 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 flavour 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. 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 proceedings 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.” 8. Although, no permission is sought on behalf of the respondent bank to compound such offence, the fact remains that the bank has already compounded such offences against the applicant under the settlement scheme, which is permissible under the law. It will be futile exercise to keep the criminal case pending in the Court below when both the parties have settled their dispute amicably outside the Court under O.T.S. scheme of the respondent bank. 9. In view of the aforesaid, this Court is of the view that since the present applicant has discharged all liabilities towards bank and the bank issued a ‘no objection certificate’ to the applicant that the bank has received the due amount, the matter should come to an end once and for all, in view of One Time Settlement (OTS) arrived at between the applicant and the respondent no.2. The charge-sheet dated 07.05.2003, summoning order dated 11.08.2003, as well as the proceedings of Criminal Case No.408 of 2010, under Sections 420, 467 & 468 IPC pending in the court of Chief Judicial Magistrate, Udham Singh Nagar are hereby quashed in respect of the present applicant. 10. The charge-sheet dated 07.05.2003, summoning order dated 11.08.2003, as well as the proceedings of Criminal Case No.408 of 2010, under Sections 420, 467 & 468 IPC pending in the court of Chief Judicial Magistrate, Udham Singh Nagar are hereby quashed in respect of the present applicant. 10. With the observation as above, the application under Section 482 Cr.P.C. is disposed of finally in terms of One Time Settlement (OTS) arrived at between the parties.