Madhya Pradesh High Court

Nagesh Mangalkar And Anr. vs Police Thana on 28 February, 2023

Author: Anil Verma

IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE ANIL VERMA
ON THE 28th OF FEBRUARY, 2023
MISC. CRIMINAL CASE No. 1555 of 2012

BETWEEN:-
NAGESH MANGALKAR S/O RAMCHANDRA MANGALKAR,
AGED ABOUT 50 YEARS,
OCCUPATION: SERVICE
1. LAXMI VILAS BANK LTD.
SERVICE BRANCH, MUMBAI

K. AJIL ARATU S/O M. KRISHNASWAMI,
AGED ABOUT 52 YEARS,
2. OCCUPATION: SERVICE
LAXMI VILAS BANK LTD.
REGIONAL OFFICER, KARUR (TAMILNADU)
.....PETITIONERS
(BY SENIOR ADVOCATE SHRI A.S. GARG WITH SHRI
M. MANSOORI - ADVOCATE)
AND
THE STATE OF MADHYA PRADESH
THROUGH POLICE STATION TUKOGANJ, INDORE
1. (MADHYA PRADESH)

ANIL S/O NARAYAN SONI,
AGED ABOUT 43 YEARS,
2. OCCUPATION: BUSINESS
R/O: 891-A, SUDAMA NAGAR, INDORE
(MADHYA PRADESH)
Mo. ARIF S/O ABDUL KARIB
AGED ABOUT 28 YEARS,
3.
OCCUPATION: BUSINESS
R/O: 89, JUNA KASERA BAKHAL, JAANI
2

DHARMSHALA KE PAAS, INDORE
(MADHYA PRADESH)
.....RESPONDENTS
(SHRI SUDHANSHU VYAS - PANEL LAWYER FOR RESPONDENT
NO.1/STATE)
(SHRI AVINASH YADAV - ADVOCATE FOR RESPONDENTS NO.2 & 3)
-----------------------------------------------------------------------------------------------------
This application coming on for admission this day, the court passed
the following:

ORDER

1/ This petition under Section 482 of Cr.P.C. has been preferred by the petitioners for quashment of the FIR bearing Crime No.691/2011 registered at P.S. Tukoganj, Indore for the offence under Section 409, 420, 467, 468 of the Indian Penal Code, 1860 (in short "IPC") and all the consequent proceedings.

2/ Brief facts of the case are that petitioners were officers of the Laxmi Vilas Bank Ltd., R.N.T. Marg, Indore at the relevant time and one property which was mortgaged by one Smt. Shabana Kalal, R/o: Shehnai Residency, A.B. Road, Indore and guarantor Shri Mujaffar Hussain Kalal, R/o: Shehnai Residency, A.B. Road, Indore was put to auction and respondents Anil and Arif participated in the auction and the complainants being highest bidder, their bid was accepted and after deposit of sale amount, a sale certificate was issued but later on it was found that since said Shabana did not make payment of the entire sale amount to her vendor, therefore, the sale deed

executed in favour of Shabana stood cancelled automatically but concealing this fact, the property was auctioned, whereas in the advertisement it was clearly mentioned that property is being auctioned on condition "as is wherein" and "as is what is" but however, since the complaint was filed and therefore, a case was registered under Section 409, 420, 467 and 468 of IPC.

3/ Subsequently on the basis of the amicable settlement arrived at between the petitioners and the complainants/respondents No.2 & 3 Anil and Arif, a joint compromise application (IA No.5587/2018) has been filed before this Court and as per the direction issued by this Court, the factum of compromise has been verified by the Principal Registrar of this Court on 13.8.2018.

4/ It is submitted by counsel for the petitioners that considering the fact that parties have arrived at peaceful settlement and have also filed a compromise petition, which has been duly verified by the Principal Registrar of this Court, the continuance of proceeding before the Court with regard to offences under Section 409, 420, 467, 468 of IPC will amount to sheer wastage of valuable time of the Court and will also result in harassment of the parties.

5/ It is not disputed by learned counsel for the respondent / State as well as by learned counsel for the complainant that amicable settlement has been arrived at between the parties, pursuant to which compromise petition has also been filed by the parties.

6/ Heard learned counsel for the parties and perused the record.

7/ The Hon'ble apex Court in the case of Central Bureau of Investigation vs. Sadhu Ram Singh & Ors., (2017) 5 SCC 350, while considering the exercise of inherent powers under Section 482 and 320 of Cr.P.C., has upheld the quashment of non- compoundable offences, pursuant to settlement arrived at by the parties, holding that exercise of judicial restraint vis-à-vis continuance of criminal proceedings after compromise arrived at between the parties, may amount to abuse of process of Court and futile exercise. Taking into account the law laid down by Hon'ble apex Court, in the opinion of this Court, as the compromise between the parties was arrived at between the parties, thus continuation of the prosecution in such matters will be a futile exercise, which will serve no purpose. Under such a situation, Section 482 of the Cr.P.C. can be justifiably invoked to prevent abuse of process of law and wasteful exercise by the Courts below. More so, offence in question are not against the society, but merely affect the victim.

8/ Learned counsel for the petitioners has placed reliance upon a judgment delivered by the apex Court in the case of Gian Singh Vs. State of Punjab and Anr. reported in 2012 Cr.L.R. (SC) 883. Paragraph no.49, 52, 53 and 57 of the aforesaid judgments are reads as under:-

"49. Section 482 of the Code, as its very language suggests, saves the inherent power of the High Court which it has by virtue of it being a superior court to prevent abuse of the process of any court or otherwise to secure the ends of justice. It begins with the words, 'nothing in this Code' which means that the provision is an overriding provision. These words leave no manner of doubt that none of the provisions of the Code limits or restricts the inherent power. The guideline for exercise of such power is provided in Section 482 itself i.e., to prevent abuse of the process of any court or otherwise to secure the ends of justice. As has been repeatedly stated that Section 482 confers no new powers on High Court; it merely safeguards existing inherent powers possessed by High Court necessary to prevent abuse of the process of any Court or to secure the ends of justice. It is equally well settled that the power is not to be resorted to if there is specific provision in the Code for the redress of the grievance of an aggrieved party. It should be exercised very sparingly and it should not be exercised as against the express bar of law engrafted in any other provision of the Code.

52. It needs no emphasis that exercise of inherent power by the High Court would entirely depend on the facts and circumstances of each case. It is neither permissible nor proper for the court to provide a straitjacket formula regulating the exercise of inherent powers under Section 482. No precise and inflexible guidelines can also be provided.

53. Quashing of offence or criminal proceedings on the ground of settlement between an offender and victim is not the same thing as compounding of offence. They are different and not interchangeable. Strictly speaking, the power of compounding of offences given to a court under Section 320 is materially different from the quashing of criminal proceedings by the High Court in exercise of its inherent jurisdiction. In compounding of offences, power of a criminal court is circumscribed by the provisions contained in Section 320 and the court is guided solely and squarely thereby while, on the

other hand, the formation of opinion by the High Court for quashing a criminal offence or criminal proceeding or criminal complaint is guided by the material on record as to whether the ends of justice would justify such exercise of power although the ultimate consequence may be acquittal or dismissal of indictment.

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."

9/ Keeping in view the aforesaid judgments and also keeping in view the fact that parties have arrived at amicable settlement, looking to the dictum of the apex Court in the case of Sadhu Ram Singh (Supra) and Gian Singh (Supra), it would be in the interest of justice to quash the proceedings in connection with Crime No.691/2011 registered at P.S. Tukoganj, Indore 11/ Accordingly, the petition is hereby allowed and the First Information Report bearing Crime No.691/2011 registered at P.S. Tukoganj, Indore for the offence under Section 409, 420, 467, 468 of

IPC and all consequential proceedings arising out of the same are hereby quashed.

C.C. as per rules.

(ANIL VERMA) JUDGE Trilok/-