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2014 DIGILAW 191 (AP)

Ashok J. Thakker v. State of A. P.

2014-02-07

C.PRAVEEN KUMAR

body2014
ORDER C. Praveen Kumar, J. 1. The present Criminal Petition is filed by the sole accused under Section 482 Cr. P.C., seeking quashing of investigation in Crime No. 202 of 2009 of Ramgopalpet Police Station, Secunderabad, on the ground of compromise arrived at between the parties. Initially the crime was registered for the offences punishable under Sections 406 and 420 IPC. Subsequently, the First Information Report was altered and Sections 103, 104 and 107 of the Trade Marks Act, 1999 were added. The facts in issue are as under: A private complaint was filed by the second respondent herein, who is none other than the step brother of the petitioner. The averments in the complaint would disclose that the second respondent herein was a Proprietor of a firm by name "M/s. Variety Dry Fruit Stores" situated at M.G. Road, Secunderabad. The complainant was running the business in dry fruits since several years and according to him the brand name "Variety" is a flagship brand, which is being used since 1955. Initially the said shop was run by one Jamnadas Devji, who is the father of the petitioner and second respondent. The complainant is the son of one Smt. Jaya Bhani, who is the second wife of the said Jamnadas Devji. His father had eight children through his first wife by name Smt. Vanitha Ben. During the course of business transactions the complainant's father constituted a partnership with his sons, which was dissolved in the year 1990 withholding the tenancy rights and goodwill of the trade name. On 28.05.1996 a WILL was executed and administered by their father cancelling and superseding all his WILLs more particularly those executed on 11.12.1989 and 04.04.1991. As per the latest WILL dated 28.05.1996, the goodwill and tenancy rights of M/s. "Variety" was bequeathed absolutely in favour of the complainant. Disputes arose between the family members, which lead to confusion and deception in the market by which the complainant is alleged to have suffered enormous loss and bad name. It is alleged that the accused also started using the said brand name and on several occasions the invoices and bills raised by the accused are addressed to the complainant's shop ad they are located in the same proximity. It is alleged that the accused also started using the said brand name and on several occasions the invoices and bills raised by the accused are addressed to the complainant's shop ad they are located in the same proximity. The mala fide action of the accused in running the trade with identical name is subject matter of the litigation in the present complaint, which was referred to police under Section 156(3) Cr. P.C. 2. Along with the present application, the petitioner filed Crl. P.M.F. No. 494 of 2014 seeking permission of the Court to compound the offences. 3. On 24.01.2014 the accused and the second respondent were present before the Court and they were identified by their respective counsel. When examined, the second respondent stated that he has no objection for quashing the proceedings against the petitioner as the dispute between them is settled out of Court. Since the learned Public Prosecutor took time to get instructions the matter was adjourned. Subsequently, the Public Prosecutor reported that the dispute between the parties is purely private in nature. 4. The affidavit of the second respondent filed along with the petition would disclose that at the instance of elders, well-wishers and family members, they have settled their disputes amicably and as such he has no objection for quashing the proceedings against the petitioner. A joint memo signed" by both the parties is also filed along with the Petition. 5. In Central Bureau of Investigation v. A. Ravishankar Prasad and others : 2009 (8) SCJ 390 : (2009) 6 SCC 351 the Apex Court observed in paragraphs 17 and 19 as under: 17. Undoubtedly, the High Court possesses inherent powers under Section 482 of the Code of Criminal Procedure. These inherent powers of the High Court are meant to act ex debito justitiae to do real and substantial justice, for the administration of which alone it exists, or to prevent abuse of the process of the court. 19. This Court time and again has observed that the extraordinary power under Section 482 CrPC should be exercised sparingly and with great care and caution. The Court would be justified in exercising the power when it is imperative to exercise the power in order to prevent injustice. In order to understand the nature and scope of power under Section 482 CrPC it has become necessary to recapitulate the ratio of the decided cases. 6. The Court would be justified in exercising the power when it is imperative to exercise the power in order to prevent injustice. In order to understand the nature and scope of power under Section 482 CrPC it has become necessary to recapitulate the ratio of the decided cases. 6. The question of invoking the inherent power under Section 482 Cr. P.C. for quashing the complaints pursuant to the compromise arrived at between the parties, more so in non-compoundable offences came up for consideration before the Apex Court in number of cases. It may be useful to refer few of those cases. 7. In Madan Mohan Abbot v. State of Punjab (2008) 4 SCC 582 the Apex Court while considering the application for compounding the offences wherein the High Court refused to quash F.I.R. registered for the offences under Sections 379, 406, 409, 418, 506/34 IPC, held as under: It is on the basis of this compromise that the application was filed in the High Court for quashing of proceedings which has been dismissed by the impugned order. It is noticed from a reading of the FIR and the other documents on record that the dispute was purely a personal one between two contesting parties and that it arose out of extensive business dealings between them and that there was absolutely no public policy involved in the of the allegations made against the accused. The Apex Court opined that no useful purpose would be served in continuing with the proceedings in the light of the and also in the light of the fact that the complainant has on 11-1-2004 passed away and the of a conviction being recorded has thus to be ruled out. The Apex Court emphasise that it is perhaps advisable that in disputes where the question involved is of a purely personal nature, the court should ordinarily accept the terms of the compromise even in criminal proceedings as keeping the matter alive with no possibility of a result in favour of the prosecution is a luxury which the courts, grossly overburdened as they are, cannot afford and that the time so saved can be utilised in deciding more effective and meaningful litigation. This is a common sense approach to the matter based on ground of realities and bereft of the technicalities of the law. 8. This is a common sense approach to the matter based on ground of realities and bereft of the technicalities of the law. 8. Similarly in Ishwar Singh v. State of Madhya Pradesh 2009 (i) ALT (Crl.) 406 (SC) : 2009 (3) SCJ 18 : (2008) 15 SCC 667 the Apex Court was considering a case where the accused/appellant was convicted and sentenced by the Additional Sessions Judge for an offence punishable under Section 307 IPC. The High Court dismissed the appeal. In an appeal by special leave, the injured/complainant was ordered to be joined as party as it was stated by the counsel for the appellant that mutual compromise has been arrived at between the parties, i.e. accused on the one hand and the complainant/victim on the other hand. During the pendency of the proceedings before the Court, it was prayed on behalf of the appellant that the appeal be disposed of on the basis of compromise between the parties. In para 12 of the Judgment, the Apex Court observed as follows: 12. Now, it cannot be gainsaid that an offence punishable under Section 307 IPC is not a compoundable offence. Section 320 of the Code of Criminal Procedure, 1973 expressly states that no offence shall be compounded if it is not compoundable under the Code. At the same time, however, while dealing with such matters, this Court may take into account a relevant and important consideration about compromise between the parties for the purpose of reduction of sentence. 9. In Shiji alias Pappu and others v. Radhika and another 2012 (8) SCJ 759 : (2011) 10 SCC 705 the Apex Court considered the exercise of inherent power by the High Court under Section 482 in a matter where the offence was not compoundable as the accused was already involved in commission of the offences punishable under Sections 354 and 394 IPC. The High Court rejected the prayer by holding that the offences with which appellants were charged are not personal in nature to justify quashing the criminal proceedings on the basis of a compromise arrived at between the complainant and the appellants. This Court considered earlier decisions of this Court, Sections 320 and 394 of the Code and in 17, 18 and 19 held as under: 17. This Court considered earlier decisions of this Court, Sections 320 and 394 of the Code and in 17, 18 and 19 held as under: 17. It is manifest that simply because an offence is not compoundable under Section 320 CrPC is by itself no reason for the High Court to refuse exercise of its power under 482 CrPC. 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 CrPC 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 CrPC are not for that purpose controlled by Section 320 CrPC. 18. Having said so, we must hasten to add that the plenitude of the power under Section 482 CrPC by itself, makes it obligatory for the High Court to exercise the same with care and caution. The width and the nature of the power itself demands that its exercise is sparing and only in cases where the High Court is, for reasons to be recorded, of the clear view that continuance of the prosecution would be nothing but an abuse of the process of law. It is neither necessary nor proper for us to enumerate the situations in which the of power under Section 482 may be justified. All that we need to say is that the exercise of power must be for securing the ends of justice and only in cases where refusal to exercise that power may result in the abuse of the process of law. All that we need to say is that the exercise of power must be for securing the ends of justice and only in cases where refusal to exercise that power may result in the abuse of the process of law. The High Court may be justified in declining interference if it is called upon to appreciate evidence for it cannot assume he role of an appellate court while dealing with a petition under Section 482 of the Criminal Procedure Code. Subject to the above, the High Court will have to consider the facts and circumstances of each case to determine whether it is a fit case in which the inherent powers may be invoked. 19. Coming to the case at hand, we are of the view that the incident in question had its genesis in a dispute relating to the access to the two plots which are adjacent to each other. It was not a case of broad daylight robbery for gain. It was a case which has its origin in the civil dispute between the parties, which dispute has, it appears, been resolved by them. That being so, continuance of the prosecution where the complainant is not ready to support the allegations which are now described by her as arising out of some misunderstanding and misconception will be a futile exercise that will serve no. It is noteworthy that the two alleged eyewitnesses, who are closely related to the complainant, are also no longer supportive of the prosecution version. The continuance of the proceedings is thus nothing but an empty formality. Section 482 CrPC could, in such circumstances, be justifiably invoked by the High Court to prevent abuse of the process of law and thereby preventing a wasteful exercise by the courts below. 10. Similar issue came up for consideration before the Apex Court in Gian Singh v. State of Punjab (2012) 10 SCC 303 . It was a case where the bench of two Judges doubted the correctness of the decisions of the Apex Court in B.S. Joshi and others v. State of Haryana and another (2003) 4 SCC 675 , Nikhil Merchant v. Central Bureau of Investigation and another 2009 (1) ALT (Crl.) 77 (SC) : 2009 (1) SCJ 583 : (2008) 9 SCC 677 and Manoj Sharma v. State and others (2008) 16 SCC 1 and referred the case of Gian Singh to a larger bench. A three Judge bench of the Apex Court after referring to all the judgments of the Apex Court on the subject held as under: The question is with regard to the inherent power of the High Court in quashing the criminal proceedings against an offender who has settled his dispute with the victim of the crime but the crime in which he is allegedly involved is not compoundable under Section 320 of the Code. The position that emerges from the above discussion can be summarised 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 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 predominatingly 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 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. 11. From the above it is clear that the High Court may quash Criminal Proceedings if in its view as the possibility of conviction is remote and bleak and continuation of proceedings would be put accused in great oppression and prejudice and extreme injustice would be caused to him by not quashing the proceedings despite full settlement arrived at by the parties. The Apex Court also held that Heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. cannot be fittingly quashed even if there is a settlement between the parties. As seen above, the Apex Court also held that any compromise between the offender and victim in relation to special statutes like Prevention of Corruption Act or the offences committed by public servants while working in that capacity cannot be entertained. 12. In the instant case, the dispute is between two brothers with regard to a goodwill of trade name M/s. "Variety" Dry Fruit Stores, O.S. No. 65 of 2009 was also filed by the complainant against the petitioner for infringement of trade mark and sought for the relief of perpetual injunction. In view of the settlement arrived at between the parties suitable steps were taken and the said suit was also closed. In view of the settlement arrived at between the parties suitable steps were taken and the said suit was also closed. It cannot be said that the offences with which the petitioner is charged are serious or heinous in nature. As stated above, the second respondent is no other than the step brother of the petitioner and as such this Court is of the view that no useful purpose would be served in allowing the proceedings to go on as the chances of conviction appear to be quite remote and bleak. 13. For the aforesaid reasons, Crl. P.M.P. No. 494 of 2014 is ordered by recording the compromise. Consequently, the Criminal Petition filed for quashing the investigation against the petitioner in Crime No. 202 of 2009 of Ramgopalpet Police station, Hyderabad, is allowed. As a sequel thereto, Miscellaneous Petitions, if any, pending shall stand closed.