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TMI Blog2006 (11) TMI 705X X X X Extracts X X X X X X X X Extracts X X X X ..... tled the matter amongst themselves. An affidavit of one of the petitioners, namely, G. Udayan Dravid dated 16.11.2006 has been filed in this court as per the draft provided by the complainant bank. It is also clear that the complainant bank has now no grievance left insofar as the present matter is concerned. 3. It is in these circumstances that the learned Counsel appearing on behalf of the petitioners submitted that it was a fit case for quashing of the FIR and all proceedings pursuant thereto. The learned Counsel appearing on behalf of the complainant bank has not opposed this prayer in view of the settlement / compromise arrived at between the complainant bank and the petitioners. 4. However, the learned Counsel appearing on behalf of the State has taken an objection to the quashing of the FIR, whether on compromise or on merits. According to the learned Counsel for the State, the charge-sheet has been filed under Section 406/120B IPC against the petitioners. It is his contention that since the said offence is not compoundable in terms of Section 320 of the Code, this court ought not to exercise its jurisdiction under Section 482, CrPC and quash the FIR. He further submit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der Section 420 IPC. The said offence, according to Mr Malhotra, being a compoundable offence can easily be compounded because the complainant bank has already settled and compromised the matter with the petitioners. 7. Therefore, according to Mr Malhotra, the learned senior counsel, appearing on behalf of the petitioners, whichever way one looks at the matter, it is either a case of compounding of the offence or a case for quashing. If the offence is treated as one punishable under Section 420, then the same may be compounded. However, if the court is of the view that Section 406 IPC is to be maintained, then it may be quashed under Section 482 of the Code. 8. The learned Counsel for the State placed reliance on a Constitution Bench decision in the case of Union Carbide v. Union of India as well as the Supreme Court decision in the case of State of Madhya Pradesh v. Awadh Kishore Gupta and Ors. to submit that offences which are not compoundable ought not to be quashed in exercise of the powers under Section 482 of the Code. Mr Sharma also relied on the decision of the Supreme Court in the case of R.P. Kapur v. State of Punjab to demonstrate the scope of the powers to be exer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e order of taking cognizance, the aggrieved party had approached the High Court under Section 482 of the Code praying for the quashing of cognizance taken by the Magistrate. The High Court of Patna had not allowed the application for quashing and being aggrieved by that order, the Supreme Court was approached. He submitted that the Supreme Court examined the facts of the case and came to the conclusion that no guilty intention could be attributed to the accused nor could there be any intention on their part to deceive the complainant even if all the material placed on record was accepted to be true and correct. The court came to the conclusion that essentially the dispute between the parties therein was a dispute amounting to a civil liability inter se the parties. Explaining the decision in Trisuns Chemical Industry v. Rajesh Aggarwal , the Supreme Court in Ram Biraji (supra) allowed the appeal and directed the quashing of the order whereby the Magistrate had taken cognizance against the accused for offences under Section 406/419/420 and 120B IPC. 12. Based on these decisions and the decisions cited earlier by Mr Malhotra, it was contended by him that in the present case, the l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vate parties not involving any public transaction. He submitted that all these cases where quashing has been permitted have been connected with private transactions or matrimonial matters or disputes between the neighbours not involving any public transactions. According to him, the ratio of B.S. Joshi (supra) should be limited to this genre of cases and should not be extended to cover all the cases. 15. Mr Sharma referred to a decision in the case of Bankat and Anr. v. State of Maharashtra 2004 IV AD (Cr.) S.C. 593 wherein the Supreme Court was categorical in observing that the scheme of compounding of offences was clearly set out in Section 320 of the Code. It was also categorically pointed out in the said judgment that in view of the provisions of Section 320(9) of the Code, no court could compound an offence which was not specifically made compoundable as per the table contained in the said provision. He referred to this judgment in the context that Section 406, being a non-compoundable offence, could not be compounded by the court in view of the statutory provisions and the aforesaid decision of the Supreme Court. This decision does not apply to the present case as compound ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in a petition under Section 482 of the Code and quash the proceedings. The learned Counsel for the State referred to the Supreme Court decision in Union Carbide (supra) and Awadh Kishore Gupta (supra) to submit that offences which are not compoundable ought not to be quashed under Section 482 of the Code. But, do these decisions say so ? In Union Carbide (supra), as would be apparent from contention D set out in paragraph 55 thereof, the orders terminating criminal proceedings were challenged on three grounds that: (i) if the orders were to be construed as permitting compounding of offences, they ran in the teeth of the statutory prohibition contained in Section 320(9) of the Code; (ii) if the orders were construed as permitting a withdrawal of the prosecution under section 321 of the Code, they would, again, be bad as being violative of settled principles guiding withdrawal of prosecutions; and (iii) if the orders amounted to a quashing of the proceedings under section 482 of the Code, grounds for such quashing did not obtain in the case. With regard to the first ground, there is no manner of doubt that, in view of the prohibition contained in Section 320(9) of the Code, no court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hard and fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceeding at any stage.... 19. Thus, the powers exercised by the High Court are very wide. It is true that in exercising such powers the High Court has to be cautious and circumspect. There is no gainsaying that the degree of power varies proportionately with the degree of caution and care that is needed for its exercise. It is one thing to suggest that care must be taken in exercise of a power and it is quite another to say that the court has no power. None of the decisions sought to be relied upon by the learned Counsel for the State lay down the proposition that a criminal proceeding involving a non-compoundable offence cannot, under any circumstance, be quashed by the High Court in exercise of the powers saved by Section 482 of the Code. 20. In the present case, there are two reasons why ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed on behalf the prosecution is taken to be true and correct. This aspect has been elaborated above that unless there is entrustment, there cannot be an offence punishable under Section 406 IPC as held by the Supreme Court in the case of Indian Oil (supra). Therefore, if that view is taken, at best, the only offence that can be allegedly made out is the one punishable under Section 420 IPC, which is a compoundable offence and the bank is ready and willing to compound the same and has compromised / settled the dispute with the petitioners. So, whether the case is looked at from the standpoint of compromise or compromise coupled with merits, the ultimate effect would be the same. In the former case, treating the offence as one under Section 406 IPC, it would amount to quashing of the criminal complaint whereas in the latter case, considering the offence to be one under Section 420 IPC, it would amount to compounding. The effect would be the same?the criminal proceedings shall end. 22. Considering the fact that Section 406 IPC has been invoked by the investigating agency in the charge-sheet, I think it would be appropriate if the former route is taken and the FIR and all the procee ..... X X X X Extracts X X X X X X X X Extracts X X X X
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