Delhi High Court
Inderpal Thukral & Anr vs State & Anr. on 9 January, 2013
Author: G.P. Mittal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 9th January, 2013
+ CRL. M.C. 4370/2012
INDERPAL THUKRAL & ANR ..... Petitioners
Through: Mr. Rajat Aneja with Mr. Viabhav Jairaj,
Advocates
versus
STATE & ANR. ..... Respondents
Through: Ms. Jasbir Kaur, APP for the
State/Respondent No.1.
Mr. Bipin Kumar Sharma, Advocate for
the Respondent No.2 along with
Mr. Pradeep K. Srivastava, Sr. Manager,
Kotak Mahindra Bank.
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J. (ORAL)
1. This is a Petition under Section 482 of the Code of Criminal Procedure,
1973 (Cr.P.C.) preferred by the Petitioners for quashing of FIR
No.362/2005, under Section 420/406/120-B/34 IPC, Police Station
Ambedkar Nagar and consequential proceedings arising out of the same.
2. FIR No.362/2005 was recorded in Police Station Ambedkar Nagar with
the allegations that the Petitioners along with one Smt. Nirmala Thukral
(since expired) approached Citifinancial Consumer Finance (India) Ltd.
for grant of loan of `33 lakhs. The said loan having been granted to the
Petitioners was repayable in certain instalments as mentioned in the FIR.
Subsequently, it came to the notice of Citifinancial Consumer Finance
(India) Ltd. that the property which was mortgaged by the Petitioner as
collateral security was already mortgaged with the Indian Bank, Chandni
Chowk branch, Delhi. The Petitioners defaulted in payment of the
instalments. At this stage, the Respondent No.2 came to know that the
Petitioners in collusion with Smt. Seema Thukral had cheated
Citifinancial Consumer Finance (India) Ltd. Thus, apart from getting a
criminal case registered, Citifinancial Consumer Finance (India) Ltd. also
initiated arbitration proceedings. In the execution petition Ex.P.
No.210/2005 vide a deed of settlement dated 31.05.2006, the Citifinancial
Consumer Finance (India) Ltd. assigned the loan amount and all the
rights and obligations with regard to the loan in favour of the Respondent
No.2 (Kotak Mahindra Bank Ltd.) including the pending litigation. In
Ex.P.210/2005, the dispute between the Petitioners and Citifinancial
Consumer Finance (India) Ltd. was settled. By virtue of the settlement, a
sum of `8 lakhs was payable by the Petitioners in full and final settlement
of the claim of Citifinancial Consumer Finance (India) Ltd. A sum of
`2.5 lakhs was paid at the time of the settlement. Rest of the amount was
payable in 12 equal monthly instalments beginning from 01.01.2011. It is
admitted by the learned counsel for the Respondent No.2 that all 12
instalments stand paid. An affidavit to this effect is also placed on record
by the Respondent No.2.
3. The learned APP has pointed out that there was an earlier loan transaction
between the Petitioner No.1 and Indian Bank and that the Indian Bank is
yet to recover a sum of `40 lakhs from the Petitioner No.1. A letter from
Indian Bank has also been presented to show that no settlement has been
reached by Petitioner No.1/ M/s. Thukral Enterprises with Indian Bank.
4. It is stated by the learned counsel for the Petitioners that the mortgaged
property, subject matter of the loan transaction between the Petitioner
No.1 and Indian Bank, has already been sold by Indian Bank for a sum of
`55 lakhs and Indian Bank can have its remedy against its debtor. I am
in agreement with the learned counsel in this regard.
5. It goes without saying that the offence punishable under Section 406 IPC
is a non compoundable. In the case of Gian Singh v State of Punjab &
Anr. 2012 (9) SCALE 257, the three Judges Bench of the Supreme Court
dealt with the issue of quashing of FIR in non compoundable offences.
Para 57 of the report is extracted hereunder:-
"57. 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 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. 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."
6. In view of the settlement between the Petitioners and the Respondent
No.2, the successor of Citifinancial Consumer Finance (India) Ltd., it
would be an exercise in futility to proceed further with the prosecution on
the basis of FIR No.362/2005 recorded in Police Station Ambedkar
Nagar.
7. The FIR No.362/2005, under Section 420/406/120-B/34 IPC of IPC,
Police Station Ambedkar Nagar and the proceedings emanating from the
FIR against the Petitioners are quashed, subject to payment of `50,000/-
as costs to the Blind Relief Society, Lodhi Road(Near Oberoi Hotel),
New Delhi within four weeks. Receipt of the deposit be submitted with
the Registrar of this Court within six weeks.
8. The original documents seized by the police pursuant to the registration
of the criminal case shall be returned to the Petitioner.
9. The Petition is accordingly allowed.
10. Dasti.
(G.P. MITTAL)
JUDGE
JANUARY 09, 2013
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