Prabhash Chand Jain vs State And Anr
2015 Latest Caselaw 5589 Del

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* IN THE HIGH COURT OF DELHI AT NEW DELHI

                 Judgment delivered on: 4th August, 2015

+       CRL.M.C. 4386/2014

PRABHASH CHAND JAIN                                    ..... Petitioner
            Represented by:                 Ms. Sangeeta Jain, Adv.

                               Versus

STATE & ANR                                              ..... Respondents
                          Represented by:   Mr. M.N. Dudeja, APP for
                                            the State along with SI
                                            Prakash Chand, P.S. Civil
                                            Lines.
                                            Mr. Khalid Abdullah, Adv.
                                            for R-2

CORAM:
HON'BLE MR. JUSTICE SURESH KAIT
SURESH KAIT, J. (Oral)

1. Vide the present petition; petitioner seeks directions thereby quashing of FIR No. 244/99 registered at PS-Civil Lines, New Delhi for the offences punishable under Sections 406/420/34 IPC and proceedings emanating thereto.

2. Ld. Counsel appearing on behalf of the petitioner submits that aforesaid case was registered on the complaint made by respondent no. 2/Punjab & Sind Bank. He further submits that the petitioner alongwith Ramesh Chand Jain, Sudesh Chand Jain,

Subhash Chand Jain and Umesh Chand Jain had taken loan of Rs.10 lacs on the property mortgaged bearing no.7-A, Rajpur Road, Civil Lines, Delhi. At the time of framing the charge, only the petitioner and Subhash Chand Jain was alive and, therefore, the learned trial court framed charge under Sections 406/120 B IPC against them. Thereafter, Subhash Chand Jain also died. Thus, only petitioner remained as accused. Qua the other accused, the FIR has already been abated.

3. Learned counsel for the petitioner further submits that the petitioner has already paid Rs.2 crores of his share and for rest of the amount the matter is pending before the DRT filed by the Bank against the legal heirs of above deceased accused. Therefore, the respondent no.2/Bank has given NOC to the petitioner and the said Bank does not want to pursue the case against the petitioner.

4. Learned counsel appearing on behalf of respondent no. 2/Bank submits that the petitioner has deposited Rs.2 crores of his share and for rest of the amount the Bank has already filed a case before the DRT against the legal heirs of deceased accused. He submits that since nothing is due against the petitioner, the Bank does not want to pursue the case against the petitioner.

5. On the other hand, ld. APP appearing on behalf of the State submits that the loan was taken in the Year 1976 for an amount of Rs.10 lacs. Rs.2 crore has been paid by the petitioner and for rest proceedings are pending before the DRT. Learned APP for the

State has verified the factum of death of the other four accused. However, keeping in view the circumstances of the case, the State has no objection, if the present petition is allowed. However, submits that since in this process, Govt. machinery came into motion and precious public time of the Court has been consumed, therefore heavy cost be imposed upon the petitioner.

6. Under the circumstances and looking to the decision of the Supreme Court in the case of Gian Singh Vs. State of Punjab and Another (2012) 10 SCC 303, wherein the Apex Court 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; by observing as under:

"58. ....However, certain offences which overwhelmingly and predominantly bear civil flavour having arisen out of civil, mercantile, commercial, financial, partnership or such like transactions or the offences arising out of matrimony, particularly relating to dowry, etc. or the family dispute, where the wrong is basically to the victim and the offender and the victim have settled all disputes between them amicably, irrespective of the fact that such offences have not been made compoundable, the High Court may within the framework of its inherent power, quash the criminal proceeding or criminal complaint or FIR if it is satisfied that on the face of such settlement, there is hardly any likelihood of the offender being convicted and by not quashing the criminal proceedings, justice shall be casualty and

ends of justice shall be defeated."

7. While recognizing the need of amicable resolution of disputes in cases like the instant one, the aforesaid dictum has been affirmed by the Apex Court in a recent judgment in Narinder Singh & Ors. Vs. State of Punjab & Anr. 2014 6 SCC 466. The pertinent observations of the Apex Court are as under:-

29. 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:

29.1 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.

29.2. 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.

29.3. Such a power is not to 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 the 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.

29.4. On the other hand, those criminal cases having overwhelmingly and predominantly 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.

29.5. 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.

29.6. Offences under Section 307 IPC would fall in the category of heinous and serious offences and therefore are 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 IPC 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 307 IPC 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 IPC. 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 latter 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.

29.7. 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 to a conclusion as to whether the offence under Section 307 IPC 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 IPC 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."

8. Keeping in view the law discussed above, settlement arrived at between the parties and statements of respondent no. 2 and ld. APP for State and the fact that the petitioner has paid the entire amount of his share and rest of the accused have died, I hereby quash FIR No. 244/99 registered at PS-Civil Lines, New Delhi for the offences punishable under Sections 406/420/34 IPC and proceedings emanating thereto, if any.

9. Before parting with the instant petition, I find force in the submission of the ld. Additional Public Prosecutor for the State on the issue of imposition of cost.

10. In view of above, petitioner is directed to pay costs of Rs.50,000/- in favour of Delhi High Court Legal Services Committee within two weeks. Proof of the same shall be placed on record with intimation to the SHO concerned.

11. Accordingly, the petition is allowed.

Crl. M.A. 15051/2014 Dismissed as infructuous.

Dasti.

SURESH KAIT, J

AUGUST 04, 2015 rb