Madras High Court
Primo Automation System (P) Ltd vs State Rep.By on 8 September, 2021
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 08.09.2021
CORAM
THE HON'BLE Mr. JUSTICE C.V.KARTHIKEYAN
Crl.O.P.No.25123 of 2016
Primo Automation System (P) Ltd.,
Rep. By P.Rajagopalan,
Managing Director
.. Petitioner / Defacto Complainant
Vs.
1.State rep.by
The Inspector of Police,
Central Crime Branch,
Chennai – 600 116. .. Respondent-1 / Complainant
2.Sukash Chandrasekhar alais Balaji
.. Respondent-2 / Accused
Prayer: Criminal Original Petition filed under Section 439 (2) Cr.P.C, to
call for records in Crl.M.P.No.2357 of 2016 and set aside the bail granted
on 30.08.2016 in result remand the 2nd respondent / Accused and commit
him to custody.
https://www.mhc.tn.gov.in/judis/
2
For Petitioner .. Mr.K.P.Anantha Krishna
For R1 .. Mr.E.Raj Thilak,
Govt. Advocate (Criminal Side)
For R2 .. Mr.P.Shiva
for M/s.Ojas Law Firm
ORDER
This Criminal Original Petition has been filed seeking to cancel the
bail granted to the 2nd respondent who is an accused in Crime No.122 of
2013 registered by the Inspector of Police, Central Crime Branch, Chennai,
under Sections 406, 419 and 420 of IPC r/w Section 66 (d) of the
Information Technologies (Amendment) Act, 2008.
2.The grievance of the present petitioner / de-facto complainant is
that not only was the de-facto complainant the only victim of the nefarious
activities of the 2nd respondent, but the 2nd respondent is also the accused in
a string of other cases. It is also stated by Mr.K.P.Anantha Krishna, learned
counsel for the petitioner herein that bail had been granted by the learned
Principal Sessions Judge, Chengalpet, in the teeth of an order of a learned
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Single Judge of this Court, who by a detailed order, had actually directed
that the 2nd respondent herein should necessarily appear before the
Investigation Officer and should co-operate during the course of the
investigation. Grant of bail was never contemplated by the learned Single
Judge.
3.To enter into the facts, in a more detailed manner, the 2nd
respondent as aforesaid, quite apart from the various cases in which he had
been charged had also found himself in the wrong end of a complaint given
by the petitioner and registered as First Information Report in Crime No.122
of 2013 by the 1st respondent police under Sections 406, 419 and 420 of IPC
r/w Section 66 (d) of the Information Technologies (Amendment) Act,
2008.
4.The petitioner herein claims that he had been the victim of an
elaborate fraud committed by the 2nd respondent whereby, the 2nd respondent
projected himself as a Karnataka State Government Servant and extracted
money from the petitioner herein promising to obtain grant of a tender. He
had also gained the confidence of various victims by promising that he
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would be able to obtain loan from the Government in aid of their business
activities.
5.It is pointed out by Mr.K.P.Anantha Krishna, learned counsel for
the petitioner, that originally the 2nd respondent was arrested on 09.01.2014
and was however released on the very next day, 10.01.2014. Though it was
claimed by the 2nd respondent that he was not able to satisfy the conditions
of the bail owing to the fact that he felt sick, that particular explanation did
not cut ice with the learned Single Judge who cancelled the bail and
directed the 2nd respondent to report before the Investigating Officer.
Subsequently, the 2nd respondent was again arrested on 29.04.2016.
Thereafter, he moved an application seeking bail under Section 167 of
C.P.C., normally called as default bail and was also granted bail. That order
came into forceful scrutiny by the learned Single Judge of this Court who
observed that the petitioner had not been arrested during the course of
investigation, but rather his bail had been cancelled by the High Court, and
if ever any such order is to be revisited, it was the prerogative of the High
Court to examine that particular issue and that the petitioner could not have
been granted bail. Therefore, the bail was again cancelled by an elaborate
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order dated 13.07.2016 in Crl.O.P.No.11867 of 2016.
6.The 2nd respondent was then again arrested.
7.It must be kept in mind that the 2nd respondent herein had acquired
the habit of leading a very colourful life and quite apart from engaging
himself in an unlawful activities and as a result coming within the scanner
of various Investigating Authorities, complaints had also been lodged
against him by various victims. This led to his arrest once again and he was
released within a period of ten days by an order dated 30.08.2016 by the
learned Principal Sessions Judge, Chengalpattu in Crl.M.P.No2357 of 2016,
which order has necessitated filing of the present Criminal Original Petition
seeking cancellation of that order.
8.I am informed by the learned counsel for the 2nd respondent that he
could not get instructions from the 2nd respondent as on date, because the 2nd
respondent has been again arrested in yet another different case. But
however, the present petition has been pending from the year 2016 onwards
and it defies logic that the counsel can claim innocence of information from
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the 2nd respondent when the matter has been pending for the past five years.
Even though the learned counsel says that he entered appearance on change
of vakalat, a duty is cast on the counsel to obtain instructions at the time
when papers are handed over and therefore, the plea seeking indulgence is
rejected by me.
9.Yet another aspect pointed out by the learned counsel for the 2nd
respondent is that the 2nd respondent is actually willing to settle the issues
with the petitioner herein and this matter has actually been posted today
under the caption 'for reporting settlement'.
10.Entering into a settlement of non-compoundable offences have
come under the scrutiny of not only the High Courts but also of the Hon'ble
Supreme Court, wherein, guidelines have been given setting out the
parameters which the High Court should examine before acceding to such
terms of settlement.
11.In Parbatbhai Aahir Alias Parbatbhai Bhimsinhbhai Karmur
and others V. State of Gujarat and Another reported in (2017) 9 SCC 641,
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the Hon'ble Supreme Court examined the powers of any High Court to
examine a settlement put forth which is alleged to have been entered into
between the de-facto complainant and the accused and applications are filed
under Section 482 of Cr.P.C before the High Court to quash the criminal
proceedings, in view of such settlement reached between the parties. Broad
principles had been given and they had been enumerated under ten separate
categories and it would only be appropriate that they are all extracted.
“1).Section 482 Cr.P.C 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.
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 Cr.P.C. The power to quash under Section
482 is attracted even if the offence is non-compoundable.
3).In forming an opinion whether a criminal
proceeding or complaint should be quashed in exercise
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of its jurisdiction under Section 482, the High Court
must evaluate whether the ends of justice would justify
the exercise of the inherent power.
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.
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.
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 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.
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7).As distinguished from serious offences, there
may be criminal cases which have an overwhelming or
predominant element of a civil dispute. The stand on a
distinct footing insofar as the exercise of the inherent
power of quash is concerned.
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.
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
10).There is yet an exception to the principle set
out in Propositions (8) and (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 misdemeanuour. The consequences of
the act complained of upon the financial or economic
system will weigh in the balance.”
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12.In clause 6 and 7 of the above, the Hon'ble Supreme Court, had
laid down a caution that the High Court should have due regard to the
nature and gravity of the office. It is also seen that as distinguished from
serious offences, there could be criminal cases which have an overwhelming
or predominant element of a civil dispute. Those category of cases have
been set aside.
13.But here is a case were the petitioner herein has been charged
with impersonation which as a fact cannot be compromised by the parties.
May be the money which had been advanced by the de-facto complainant /
petitioner herein could be repaid by the 2nd respondent / accused, but that
cannot tide over the charge of impersonation for which the 2nd respondent
will have to face necessary trial and will have to clear himself during the
course of trial. It is not a simple issue of money being handed over and
therefore, the 2nd respondent, has purged himself the cloak which he is
alleged to have worn by impersonation. That particular fact or offence needs
to be investigated, needs to be tried and has to be put forth during the course
of trial and that particular charge will have to be either proved or disproved
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in manner known to law on the basis of the materials available with the
Court and materials produced by the Investigating Agency. It is not an issue
which can be brushed away by the petitioner herein / de-facto complainant.
The very fact that the 2nd respondent had come forward to return the money
shows that owing to the act of duplicity, the 2nd respondent had induced the
petitioner herein to pay the money to him. That establishes prima facie, the
further charge laid against the 2nd respondent. Therefore, even though both
the learned counsels have stated that there is a possibility of settlement and
that settlement can be reached, I reject such contention put forth and I hold
that the 2nd respondent has to face trial on the charges laid against him.
14.Insofar as the investigation is concerned, I am informed by
Mr.E.Raj Thilak, learned Government Advocate (Criminal Side) that
consequent to investigation being completed, final report had been filed
before the Judicial Magistrate No.1, Kancheepuram, who had taken
cognizance of the same in C.C.No.28 of 2021. It is therefore imperative that
the 2nd respondent answers the summons, appears before the Court and faces
trial.
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15.The role of the petitioner herein has also to be scanned by the
Court, primarily because he had given a complaint leading to registration of
a First Information Report. The criminal proceedings had been set in
motion. The petitioner cannot simply brush away to an end such criminal
proceedings at their whims and fancies. Therefore, the proposition put forth
by the learned counsels regarding compromise are again rejected by me.
16.The issue of compromise has also been discussed in the judgment
of the Hon'ble Supreme Court in State of Madhya Pradesh V. Dhruv
Gurjar and another along with State of Madhya Pradesh V. Tinku
Sharma and others reported in (2019) 5 SCC 570. Again the principles
have been summarized. It had been stated that quash of non-compoundable
offences can be entertained by the High Court only when they are
permissible. The Hon'ble Supreme Court had once again relied on (2017) 9
SCC 641, Parbatbhai Aahir Alias Parbatbhai Bhimsinhbhai Karmur,
referred supra and had once again reiterated the principles which had been
extracted above.
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17.I am therefore reinforced by this Judgment of the Hon'ble Supreme
Court also to reject any contention regarding possible compromise being
entered into between the petitioner herein and the 2nd respondent.
18.Now coming to the aspect whether bail granted by the learned
Principal Sessions Judge, Chengalpet, had to be cancelled or not, my
attention has been drawn to the earlier order the learned Single Judge of this
Court in Crl.O.P.No.11867 of 2016 dated 13.07.2016. The respondent
therein was also the present petitioner herein. The learned Single Judge had
examined the case as against the present 2nd respondent in detail and had
come to the conclusion that bail granted should be cancelled.
19.When the High Court had thought it necessary to cancel the bail,
and thereafter the accused had been subsequently arrested, it defies the Rule
of Law if bail is granted once again. I would give some concession to the
learned Principal Sessions Judge, Chengalpet, that he had not been made
aware of the said order passed by the learned Single Judge of this Court or
even if his attention had been drawn, he had not examined it in proper
manner. But whatever be the circumstances, the 2nd respondent, having
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impersonated a public servant and having induced the petitioner herein to
deposit more than a crore of rupees in the name of a particular individual
and promising that if that is done, a tender would be obtained from the
Karnataka Government and had misappropriated or taken away such
amount, then the offences attracted certainly are cognizable offences, which
have to be investigated. Investigation has been done and final report has
been filed and taken cognizance by the learned Judicial Magistrate No.I,
Kancheepuram.
20.I would therefore interfere with the order granting bail by the
Principal Sessions Judge, Chengalpet. The 1st respondent is directed to take
into custody the 2nd respondent forthwith. If at all the 2 nd respondent is of
the opinion that he is entitled for bail, it is entirely to the wisdom of the
learned Judicial Magistrate No.I, Kancheepuram, who has to examine all
the surrounding circumstances of the further facts and first determine
whether he/she is competent to grant bail in the face of the order in
Crl.O.P.No.11867 of 2016 dated 13.07.2016, take a considered decision on
the aspect of competency to enter into any discretion to grant bail and
thereafter exercise discretion in manner known to law. I would state that it
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is advisable to err on the side of caution in such matters.
21.With the above observations, the petition stands allowed and even
though the 2nd respondent has been arrested in yet another case, I would
direct the Investigation Officer to arrest the 2nd respondent with respect to
Crime No.122 of 2013 and inform such fact to the competent jurisdictional
Magistrate Court, namely, Judicial Magistrate No.I, Kancheepuram.
08.09.2021
Index:Yes/No
Internet:Yes/No
smv
To,
1.The Inspector of Police,
Central Crime Branch,
Chennai – 600 116.
2.The Public Prosecutor,
High Court of Madras.
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C.V.KARTHIKEYAN,J
smv
Crl.O.P.No.25123 of 2016
08.09.2021
https://www.mhc.tn.gov.in/judis/
