Shri Niwas & Etc vs State & Anr
2014 Latest Caselaw 3484 Del

$~33
*    IN THE HIGH COURT OF DELHI AT NEW DELHI
+    CRL.M.C. 3362/2014

         SHRI NIWAS & ETC                                 ..... Petitioners
                       Through:           Mr. Ram Bir Chauhan, Advocate

                            versus

         STATE & ANR                                        ..... Respondents
                            Through:      Mr. P.K. Mishra, APP with SI Arun
                                          Verma, EOW

         CORAM:
         HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA

% SUDERSHAN KUMAR MISRA, J. (ORAL)

CRL.M.A. NO. 11657/2014

Exemption, as prayed for, is allowed, subject to all just exceptions. The application stands disposed off.

CRL.M.C. 3362/2014

1. This petition under Section 482 Cr.P.C. has been moved by the petitioner seeking quashing of FIR No. 247/2011 registered at Police Station Economic Offence Wing under Sections 420/423/467/468/471 IPC read with Section 120B IPC primarily on the ground that the parties have since arrived at a settlement in terms of a Memorandum of Understanding executed between the petitioner and the second respondent/complainant on 27.11.2012 which was thereafter followed by a settlement agreement executed before the Delhi High Court Mediation and Conciliation Centre on 05.03.2013. Both the Memorandum of Understanding and the aforesaid settlement have been annexed to this petition.

2. Counsel for the petitioner has also drawn the attention of this Court to an order passed on 01.05.2013 in Civil Suit (OS) No. 196/2010 which was instituted by the second respondent/complainant in respect of the same dispute and which was dismissed as withdrawn in the light of the amicable settlement.

3. Issue notice.

4. Counsel for the State accepts notice, and submits, on instructions from the Investigating Officer, SI Arun Verma, Economic Offence Wing, that the matter is still under investigation, and that a communication has also been received from the complainant/respondent No. 2 to the effect that the amount mentioned in the aforesaid settlement agreement dated 05.03.2013 has been duly received by the respondent. In addition, Shri Hemant Gupta, Director of the Dujania Investment Pvt. Ltd., the complainant in the matter is also present in person and is represented through counsel. He is identified by the Investigating Officer also. He also submits that he has received the entire settlement amount as mentioned in the aforesaid agreement dated 05.03.2013, and that he does not wish to proceed with the matter any further.

5. Counsel for the State also submits that looking to the overall circumstances, and since the matter has been settled between the parties, no useful purpose would be served in proceeding with the matter when the complainant is not supporting the prosecution. He, however, submits that the matter raises a number of allegations with regard to forgery of General Power of Attorney pertaining to valuable lands; and considerable time and effort has been deployed of the investigating agency in the matter.

6. Looking to the overall circumstances, and in view of the fact that the matter has been settled between the parties and keeping in mind the decision of the Supreme Court in Gian Singh v. State of Punjab, (2012) 10 SCC 303, which has referred to a number of matters for the proposition that even a non-compoundable offence can also be quashed on the ground of a settlement agreement between the offender and the victim, if the circumstances so warrant; and also Narinder Singh and Ors. v. State of Punjab and Anr. 2014(2) Crimes 27 (SC) where the Supreme Court held as follows:-

"31. In view of the aforesaid discussion, we sum up and lay down the following principles by which the High Court would be guided in giving adequate treatment to the settlement between the parties and exercising its power under Section 482 of the Code while accepting the settlement and quashing the proceedings or refusing to accept the settlement with direction to continue with the criminal proceedings:

(I) Power conferred under Section 482 of the Code is to be distinguished from the power which lies in the Court to compound the offences under Section 320 of the Code. No doubt, under Section 482 of the Code, the High Court has inherent power to quash the criminal proceedings even in those cases which are not compoundable, where the parties have settled the matter between themselves. However, this power is to be exercised sparingly and with caution. (II) When the parties have reached the settlement and on that basis petition for quashing the criminal proceedings is filed, the guiding factor in such cases would be to secure:

(i) ends of justice, or

(ii) to prevent abuse of the process of any Court.

While exercising the power the High Court is to form an opinion on either of the aforesaid two objectives.

(III) Such a power is not be exercised in those prosecutions which involve heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. Such offences are not private in nature and have a serious impact on society. Similarly, for offences alleged to have been committed under special statute like the Prevention of Corruption Act or the offences committed by Public Servants while working in that capacity are not to be quashed merely on the basis of compromise between the victim and the offender.

(IV) On the other, those criminal cases having overwhelmingly and pre-dominantly civil character, particularly those arising out of commercial transactions or arising out of matrimonial relationship or family disputes should be quashed when the parties have resolved their entire disputes among themselves.

(V) While exercising its powers, the High Court is to examine as to whether the possibility of conviction is remote and bleak and continuation of criminal cases would put the accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal cases.

(VI) Offences under Section 307 Indian Penal Code would fall in the category of heinous and serious offences and therefore is to be generally treated as crime against the society and not against the individual alone. However, the High Court would not rest its decision merely because there is

a mention of Section 307 Indian Penal Code in the FIR or the charge is framed under this provision. It would be open to the High Court to examine as to whether incorporation of Section 307Indian Penal Code is there for the sake of it or the prosecution has collected sufficient evidence, which if proved, would lead to proving the charge under Section 307 Indian Penal Code. For this purpose, it would be open to the High Court to go by the nature of injury sustained, whether such injury is inflicted on the vital/delegate parts of the body, nature of weapons used etc. Medical report in respect of injuries suffered by the victim can generally be the guiding factor. On the basis of this prima facie analysis, the High Court can examine as to whether there is a strong possibility of conviction or the chances of conviction are remote and bleak. In the former case it can refuse to accept the settlement and quash the criminal proceedings whereas in the later case it would be permissible for the High Court to accept the plea compounding the offence based on complete settlement between the parties. At this stage, the Court can also be swayed by the fact that the settlement between the parties is going to result in harmony between them which may improve their future relationship.

(VII) While deciding whether to exercise its power under Section 482 of the Code or not, timings of settlement play a crucial role. Those cases where the settlement is arrived at immediately after the alleged commission of offence and the matter is still under investigation, the High Court may be liberal in accepting the settlement to quash the criminal proceedings/investigation. It is because of the reason that at this stage the investigation is still on and even the charge sheet has not been filed. Likewise, those cases where the charge is framed but the evidence is yet to start or the evidence is still at infancy stage, the High Court can show

benevolence in exercising its powers favourably, but after prima facie assessment of the circumstances/material mentioned above. On the other hand, where the prosecution evidence is almost complete or after the conclusion of the evidence the matter is at the stage of argument, normally the High Court should refrain from exercising its power under Section 482 of the Code, as in such cases the trial court would be in a position to decide the case finally on merits and to come a conclusion as to whether the offence under Section 307 Indian Penal Code is committed or not. Similarly, in those cases where the conviction is already recorded by the trial court and the matter is at the appellate stage before the High Court, mere compromise between the parties would not be a ground to accept the same resulting in acquittal of the offender who has already been convicted by the trial court. Here charge is proved under Section 307 Indian Penal Code and conviction is already recorded of a heinous crime and, therefore, there is no question of sparing a convict found guilty of such a crime."

I am also of the view that a quietus be given to the matter since the complainant is not supporting the prosecution, and a Memorandum of Understanding has been executed between them mentioning the terms of the settlement followed by a settlement agreement. However, looking to the overall circumstances, it would be appropriate for the petitioner to also deposit a sum of Rs. 3½ Lacs payable to the Advocates Welfare Fund of the Bar Council of Delhi within four weeks from today. The petitioners also undertake to this Court to pay the said amount within the aforesaid amount.

7. This undertaking is accepted by this Court and the petitioners shall remain bound by the same. The consequence of any such breach of this Court's orders, has also been explained to the petitioners by their counsel.

8. Accordingly, the petition is allowed and the FIR No. 247/2011 registered at Police Station Economic Offence Wing under Sections 420/423/467/468/471 IPC read with Section 120B IPC, and all the proceedings emanating therefrom, are hereby quashed.

9. The petition stands disposed off in the aforesaid terms.

10. A copy of this order be sent to the Bar Council of Delhi to put up a report with regard to the aforesaid deposit within six weeks.

11. Dasti.

SUDERSHAN KUMAR MISRA, J.

AUGUST 04, 2014 rd