Bharat Associate Bari vs State Of U.P. And 2 Others
2022 Latest Caselaw 19076 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 47
 

 
Case :- CRIMINAL MISC. WRIT PETITION No. - 17745 of 2022
 

 
Petitioner :- Bharat Associate Bari
 
Respondent :- State Of U.P. And 2 Others
 
Counsel for Petitioner :- Surya Pratap Singh Parmar
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Mahesh Chandra Tripathi,J.

Hon'ble Narendra Kumar Johari,J.

Heard Shri Surya Pratap Singh Parmar, learned counsel for the petitioner and learned AGA.

Present writ petition has been preferred for quashing the FIR dated 8.4.2022 being Case Crime No.20 of 2022 under Sections 471, 468, 467, 420, 419 IPC, P.S. GRP Mirzapur, Distt. Mirzapur and for a direction to respondents not to arrest the petitioner pursuant to aforesaid FIR.

The impugned FIR has been lodged on the ground of producing forged demand draft to the informant by the accused firms including the petitioner firm under a conspiracy.

Learned counsel for the petitioner has submitted that the petitioner firm (accused) is engaged with the supply of Gitti on demand. M/s Piosoft Informant Technology Pvt. Ltd. (co-accused) send a demand to the petitioner to supply Gitti through Railway from Billi Junction to Lar Road Junction. On 16.2.2022, the petitioner supplied 58 wagon gitti through railway from Billi Junction to Lar Road Junction to the consignee namely M/s Piosoft Informant Technology Pvt. Ltd. The petitioner told M/s Piosoft Information Technology Pvt. Ltd. to pay the freight of the consignment to Easter Central Railway (in short "ECR").The Piosoft Information Technology Pvt. Ltd. sent a demand daft no.160366 dt.21.2.2022 of Rs.23,50,000/- of ICICI Bank, Obra issued from the account of Vaishno Mining & Construction Company (co-accused). After receiving the aforesaid demand draft the ECR delivered the consignment (Gitti) in favour of Piosoft Information Technology Pvt. Ltd. Subsequently it was informed to the petitioner by the ECR that the said demand draft is forged. Hence the petitioner immediately made complaint to Sri Gaurav Kumar Singh, the Managing Director of Piosoft Information Technology Pvt. Ltd. as well as Vaishno Mining & Construction Company. Then Shri Gauram Kumar Singh immediately issued fresh demand draft bearing no.004904 dated 13.4.2022 amounting Rs.24,01,500/- including the penalty issued from HDFC Bank, which was duly received by Station Master Billi (ECR) on 13.4.2022 itself. On 3.11.2022 the petitioner firm made an application to Station Superintendent, Billi Junction, ECR, Sonbhadra to issue 'No Dues Certificate' (NOC) with regard to the freight of the consignment, which was duly received by the Station Superintendent on 3.11.2022 and endorsed 'no dues' on the application itself. The said application dated 3.11.2022 as well as 'no dues' endorsement made by Station Superintendent is annexed as Annexure No.4 to the writ petition.

Learned counsel for the petitioner has contended that present dispute relates to commercial transactions and once the alleged amount has been made good and 'no dues' has also been made by the complainant, present FIR is liable to be quashed. Learned counsel for the petitioners in support of his submissions has placed reliance on the judgment of Hon'ble the Apex Court in B.S. Joshi & Ors. v. State of Haryana & Anr., AIR 2003 Supreme Court 1386, wherein Hon'ble the Apex Court explained the ambit of the inherent powers of the High Court under Section 482 of the Cr.P.C. read with Article 226 and 227 of the Constitution to quash the criminal proceedings. In Payal Agarwal & Ors. v. State of Uttar Pradesh & Ors., 2021 0 Supreme(All) 1225, Hon'ble the Apex Court relying on various judgments has observed that an F.I.R. can be quashed on the basis of mutual compromise arrived at between the parties, even if an offence is not compoundable under Section 320 of Cr.P.C. relating to certain offences considering the facts and circumstances of the case. In the said matter the dispute between the parties related to business/corporate transactions.

In Nikhil Merchant Vs. Central Bureau of Investigation and Another (2008) 9 SCC 677, where the dispute was settled between the parties on the basis of compromise, Hon'ble the Apex Court has observed as under:-

"30. In the instant case, the disputes between the Company and the Bank have been set at rest on the basis of the compromise arrived at by them whereunder the dues of the Bank have been cleared and the Bank does not appear to have any further claim against the Company. What, however, remains is the fact that certain documents were alleged to have been created by the appellant herein in order to avail of credit facilities beyond the limit to which the Company was entitled. The dispute involved herein has overtones of a civil dispute with certain criminal facets. The question which is required to be answered in this case is whether the power which independently lies with this Court to quash the criminal proceedings pursuant to the compromise arrived at, should at all be exercised?

31. On an overall view of the facts as indicated hereinabove and keeping in mind the decision of this Court in B.S. Joshi's case and the compromise arrived at between the Company and the Bank as also clause 11 of the consent terms filed in the suit filed by the Bank, we are satisfied that this is a fit case where technicality should not be allowed to stand in the way in the quashing of the criminal proceedings, since, in our view, the continuance of the same after the compromise arrived at between the parties would be a futile exercise."

Hon'ble the Supreme Court in Manoj Sharma Vs. State of others (2008) 16 SCC 1 has held as under:-

" 27. There can be no doubt that a case under Section 302 IPC or other serious offences like those under Sections 395, 307 or 304B cannot be compounded and hence proceedings in those provisions cannot be quashed by the High Court in exercise of its power under Section 482 Cr.P.C. or in writ jurisdiction on the basis of compromise. However, in some other cases, (like those akin to a civil nature) the proceedings can be quashed by the High Court if the parties have come to an amicable settlement even though the provisions are not compoundable. Where a line is to be drawn will have to be decided in some later decisions of this Court, preferably by a larger bench (so as to make it more authoritative). Some guidelines will have to be evolved in this connection and the matter cannot be left at the sole unguided discretion of Judges, otherwise there may be conflicting decisions and judicial anarchy. A judicial discretion has to be exercised on some objective guiding principles and criteria, and not on the whims and fancies of individual Judges. Discretion, after all, cannot be the Chancellor's foot."

In Parbatbhai Aahir Alias Parbatbhai Bhimsinghbhai Karmur and others Vs. State of Gujarat and another (2017) 9 SCC 641 the three judges Bench of Hon'ble the Apex Court has observed 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 recognises 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 underSection 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."

Reliance has also been placed on the judgment of Hon'ble Apex Court in Gian Singh v. State of Punjab, 2012(10) SCC 303, wherein it is held in para 61 as under:-

"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."

Learned counsel for the petitioner, in this backdrop, has again submitted that present dispute relates to commercial transactions and once the alleged amount has been made good and 'no dues' has also been made by the complainant, present FIR is liable to be quashed in the light of the aforesaid judgments.

Learned AGA has also submitted that once in the commercial transaction the disputed amount has been paid and the same has also been acknowledged by the complainant, the Investigating Officer may be directed to proceed in accordance with law and considering the 'no dues' given by the complainant.

Considering the facts and circumstances of the case, present writ petition stands disposed of asking the Investigating Officer to proceed strictly in accordance with law and in terms of the endorsement of 'no dues' dated 3.11.2022.

For a period of two months, the petitioner shall not be arrested pursuant to impugned FIR, provided he cooperates with the investigation in question.

Order Date :- 29.11.2022

SP/