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TMI Blog2022 (6) TMI 630X X X X Extracts X X X X X X X X Extracts X X X X ..... e under Section 120B of the IPC. Further, the offence punishable under Section 409 of the IPC could not survive anymore in view of the fact that Accused No. 1, V.K. Maheshwari, has already been discharged by the Coordinate Bench of this Court. This Court is of the considered opinion that if the trial is allowed to go, it will amount to gross miscarriage of the justice, since, the petitioner Company cannot be punished/sentenced after being held guilty of committing an offence being a juristic person. Therefore, there would be no purpose to proceed with the trial against the petitioner. In such an eventuality, jurisdiction of this Court under Section 482 of the Cr.P.C. comes to rescue. Petition allowed. - CRL.M.C. 986/2013 & CRL.M.A. 3057/2013 - - - Dated:- 13-6-2022 - HON BLE MR. JUSTICE CHANDRA DHARI SINGH Petitioner Through: Ms. Shobha Gupta, Mr. Nishant Bahuguna, Mr. Vidit Agrawal, Ms. Sakshi Tiwari, Mr. Shubham Jalan and Ms. Prachi Sharma, Advocates Respondent Through: Mr. Rajesh Kumar, SPP J U D G M E N T CHANDRA DHARI SINGH, J. 1. The instant criminal miscellaneous petition under Section 482 read with Section 397 of the Code of Criminal Pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... limit, which was forwarded by him with similar recommendation to Zonal Manager, New Delhi Zone vide letter dated 24th June, 1992. The Zonal Manager, New Delhi Zone, based on the recommendation of the Regional Manager, Sh. Hari Ram Pandey and the Branch Manager, Janpath Branch Sh. M. P. Sharma sent his recommendation dated 27th June, 1992 for the enhancement of credit limits to the Head Office for scrutiny of the relevant data furnished by the company and sanction of the proposal subject to the fund position of the bank permitting so. 5. Since, petitioner's account was a 'Head Office Controlled Account', the process was initiated by the Head Office by letter dated 28th April, 1992 addressed to the Janpath Branch and copies were endorsed to the Regional Manager and Zonal Manager. The Head Office of the bank recommended enhancement of overall credit limit from existing Rs. 1672 lakhs to Rs. 4442 lakhs by way of a board note and also mentioned that in view of urgent need of fund by the company for export commitment, the management committee of Board of Directors in the meeting dated 9th October, 1992, had approved adhoc export credit limit of Rs.700 lakhs within the afo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3, when they explained the position relating to the non-payment of bills arising out of the unstable political and economic scenario in Russia and other CIS countries and their commitment to make payment of all outstanding bills by end of December, 1993. The Board note was approved by the ED and CMD, Dr. A.K. Bhattacharya. 9. This note was followed by another development report vide Office Note Bearing No. CROP11/04/437/282/93 dated 13th December, 1993 which also refers to visit of Ratan Lal Bagaria (Accused No. 2), the then Managing Director of the Company, to Head Office and meeting with Senior Officials. This was followed by another development report Office Note no. CROP-11/04/437/94 dated 17th January, 1994, again referring to visit of Ratan Lal Bagaria to the Head Office meeting senior officials to explain the developments and progress relating to payment of outstanding bills. The note was approved by General Manager (Credit). All these notes and several other letters written by the Managing Director of the petitioner Company to the CMD of the Bank. 10. Thereafter, the overdue position of the petitioner company was substantially brought down from Rs. 15.43 crores in Sep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edings were dropped, bank had given no due certificate to the petitioner Company. The petitioner Company filed an application for discharge under Section 227 of the Cr.P.C. before the learned Trial Court. The CBI has also moved an application on 24th February, 2009 before the learned Trial Court, stating therein the bank has entered into a onetime settlement with the Company and received the full and final settlement amount and hence, the investigation in respect of the foreign buyers namely M/s Continental Trading Co., Poland, M/s Arvee International PTE Ltd, Singapore and M/s Interlog Pvt. Ltd., Singapore was not necessary and required as no useful purpose would be served by making further investigation in respect of the aforesaid foreign companies. 17. The Learned Special Judge vide order dated 29th November, 2012 framed charges against the Company, however, its application under Section 227 of the Cr.P.C was not decided. Hence, the instant petition has been filed on behalf of the petitioner company. SUBMISSIONS On behalf of the Petitioner: 18. Learned counsel for the petitioner submitted that the entire process of approval for increasing the credit limit sho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prisonment and fine is the prescribed punishment, the court can impose the punishment of fine which could be enforced against the company . As regards company, the court can always impose a sentence of fine and the sentence of imprisonment can be ignored as it is impossible to be carried out in respect of a company. 22. Learned counsel for the petitioner submitted that the learned Special Judge by the impugned order has held that the offence of cheating cannot be said to be made out due to full settlement by the Company, more so when this Court has already discharged the Bank officials K. Ramakrishna (Accused No. 6) and Rajan Bagaria (Accused No. 3) and when the other hierarchy of officers including the CMD of the bank who were involved in the process of granting approvals in favour of the petitioner company have not even been implicated for any criminal offence. The learned Special Judge therefore, vide the impugned order had deleted Section 420 of the IPC. It is further submitted that Accused No. 1 has already been discharged by this Court and moreover, the offences under the Section 13(l)(d) and Section 13(2) of the Prevention of Corruption Act, 1988 (hereinafter PC Act ) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... servant Accused No. 5 at the time of the offence, who had committed the offence under Section 13 of the PC Act, therefore the proceedings cannot be quashed on this ground. 27. It is submitted that now the matter has reached its final stage and fixed for recording of the statement of the accused under Section 311 of the Cr.P.C. It is also submitted that the learned Trial Court will be appreciating the entire evidence led by the prosecution as the trial proceeds and the accused will get an opportunity to explain all the circumstances before the learned Trial Court. Therefore, the instant petition is liable to be dismissed for being devoid of any merit. ANALYSIS AND FINDINGS 28. In the present case, the petitioner company has already settled the claim of the bank by paying Rs. 8 crores as full and final payment to the satisfaction of the Bank and the Bank has issued no dues certificate by specifically stating that, as per the schedule, all the inter-se grievances, disputes, claims and complaints before any forum and/or authority shall be deemed to be fully and finally settled and compromised. In view of the aforesaid settlement of all the claims of the Bank, the Bank with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, the court can impose the punishment of fine which could be enforced against the company . As regards company, the court can always impose a sentence of fine and the sentence of imprisonment can be ignored as it is impossible to be carried out in respect of a company. 32. As per Section 357 of the Cr.P.C., the Court can impose fine to compensate the complainant for any loss or injury caused by the offence or to undo the pecuniary loss. In the present case, the Bank has already settled its liability with the petitioner company, pursuant to which, the petitioner company has paid Rs. 8 crores as full and final payment to the satisfaction of the Bank and the Bank has issued no dues certificate by specifically stating that, as per the schedule, all the claims of and all inter-se grievances, disputes, claims and complaints before any forum and/or authority shall be deemed to be fully and finally settled and compromised. Pursuant to the aforesaid settlement, the Bank withdrew its application for recovery of dues filed before the DRT and the DRT has also closed the matter in view of the compromise. 33. Moreover, a bare reading of Section 357(1)(b) of the Cr.P.C. clearly shows tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad with Section 13(l)(d) and 13(2) of the PC Act. 37. Now on face of the fact that the Accused No. 1, V.K. Maheshwari has already been discharged by the Coordinate Bench of this Court vide order dated 24th February, 2016, the offence under Section 13(l)(d) and 13(2) of the PC Act could not be made out against any private person for want of involvement of any public servant. 38. The allegation of criminal conspiracy is also between the petitioner Company and the discharged Accused No. 1, V.K. Maheshwari. The essential ingredients or pre-conditions of an offence of criminal conspiracy, as provided for under Section 120A of the IPC, is that there has to be meeting of minds of minimum of two persons to do or cause to be done (i) an illegal act or (ii) an act which is which is not illegal by illegal means. One person, all alone, cannot commit an offence as defined under Section 120A of the IPC. 39. In the case of Topandas vs The State of Bombay, AIR 1956 SC 33 , it was held as under:- 7. If authority for the above proposition were needed, it is to be found in Archbold's Criminal Pleading, Evidence and Practice, 33rd edition, page 201, paragraph 361:- Where s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the conviction of the single defendant will be invalid, and no judgment can be passed upon him . 10. The following observations made by Lord Justice Bruce are apposite in the context before us:- The point of the passage turns upon the circumstance that the defendants are included in the same indictment, and I think it logically follows from the nature of the offence of conspiracy that, where two or more persons are charged in the same indictment with conspiracy with another, and the indictment contains no charge of their conspiring with other persons not named in the indictment, then, if all but one of the persons named in the indictment are acquitted, no valid judgment can be passed upon the one remaining person, whether he has been convicted by the verdict of a jury or upon his own confession, because, as the record of conviction can only be made up in the terms of the indictment, it would be inconsistent and contradictory and so bad on its face. The gist of the crime of conspiracy is that two or more persons did combine, confederate, and agree together to carry out the object of the conspiracy . 11. This position has also been accepted in India. In Gulab Singh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... secure the ends of justice. This extraordinary power is to be exercised ex debito justitiae. However, in exercise of such powers, it is not permissible for the High Court to appreciate the evidence as it can only evaluate material documents on record to the extent of its prima facie satisfaction about the existence of sufficient ground for proceedings against the accused and the Court cannot look into the materials, the acceptability of which is essentially a matter of trial. 42. In the case of Rajiv Thapar Ors vs. Madan Lal Kapoor, (2013) 3 SCC 330 , the Hon ble Supreme Court has held as under:- 30. Based on the factors canvassed in the foregoing paragraphs, we would delineate the following steps to determine the veracity of a prayer for quashment raised by an accused by invoking the power vested in the High Court under Section 482 CrPC: 30.1. Step one: whether the material relied upon by the accused is sound, reasonable, and indubitable i.e. the material is of sterling and impeccable quality? 30.2. Step two: whether the material relied upon by the accused would rule out the assertions contained in the charges levelled against the accused i.e. the material ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. 8. Being aggrieved by the dismissal of his application and the consequential framing of charge under Section 304 Part II, the respondent preferred a criminal application under Section 482 of the Code before the Criminal Appellate Bench of the High Court of Judicature at Bombay. The High Court by the impugned order has allowed the said application and quashed the order made by the learned Sessions Judge framing a charge under Section 304 Part II IPC against the respondent herein while it maintained the other charges and directed the appropriate Magistrate's Court to frame de novo charges under various sections mentioned in the said impugned order of the High Court including one under Section 304-A IPC. **** 12. We are of the opinion that though it is open to a High Court entertaining a petition under Section 482 of the Code to quash charges framed by the trial court, same cannot be done by weighing the correctness or sufficiency of evidence. In a case praying for quashing of the charge, the principle to be adopted by the High Court should be that if the entire evidence produced by the prosecution is to be believed, would it constitute an offence or not. The tru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s also for the court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the court cannot be utilised for any oblique purpose and where in the opinion of the court chances of an ultimate conviction are bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage. 57. In Emperor v. Khwaja Nazir Ahmad [(1943-44) 71 IA 203 : AIR 1945 PC 18] and Lala Jairam Das v. King Emperor [(1944-45) 72 IA 120 : AIR 1945 PC 94] the Judicial Committee has taken the view that Section 561A of the old Code which is equivalent to Section 482 CrPC gave no new powers but only provided that powers already inherently possessed should be preserved. This view holds the field till date. 62. In State of Haryana v. Bhajan Lal [1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426] this Court in the backdrop of interpretation of various relevant provisions o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed party. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. 67. In State of A.P. v. Gourishetty Mahesh [(2010) 11 SCC 226 : (2011) 1 SCC (Cri) 142] this Court observed that the power under Section 482 of the Code of Criminal Procedure is wide and they require care and caution in its exercise. The interference must be on sound principle and the inherent power should not be exercised to stifle the legitimate prosecution. The Court further observed that if the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, it is up to the High Court to quash the same in exercise of its inherent power under Section 482 of the Code. 68. In the light of the settled legal position, in our considered opinion, the High Court was not justified in rejecting the petition filed by the appellants under Section 482 CrPC for quashing the charges under Section 306 IPC against them. The High Court ought to have quashed the proce ..... X X X X Extracts X X X X X X X X Extracts X X X X
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