CRL.M.C./2056/2016 of DHARMESH SHAH Vs THE STATE ( NCT OF DELHI) & ANR

*IN THE HIGH COURT OF DELHI AT NEW DELHI

+CRL.M.C. 2056/2016 & Crl.M.A. No. 8696/2016

Date of Decision: July 25[th], 2016

DHARMESH SHAH..... Petitioner

ThroughMr.Rohit Singh, Adv.

versus

THE STATE ( NCT OF DELHI) & ANR.... RespondentsThroughMr.Izhar Ahmad, APP for the State.SI Kuldeep Sharma, PS BarakhambaRoad.

Mr.Vivek Agarwal, Adv. for R-2 withrespondent no.2 in person.

CORAM:HON'BLE MR. JUSTICE P.S.TEJI

P.S.TEJI, J.

1.The present petition under Section 482 Cr.P.C. has been filed bythe petitioner, namely, Sh. Dharmesh Shah for quashing of FIRNo.55/2010 dated 08.04.2010, under Section 408 IPC registered atPolice Station Barakhamba Road on the basis of the Memorandum ofunderstanding executed in view of the settlement arrived at betweenthe petitioner and respondent no.2, namely, Sh. J.K. Budhraja,Managing Director, Jetways Travel Private Limited, having itsregistered office at Flat No. 5, UGF, Indra Prakash Building, 21Barakhamba Road, New Delhi-01 on 22.04.2016.

2.Learned Additional Public Prosecutor for respondent-Statesubmitted that the respondent no.2, present in the Court has beenidentified to be the complainant/first informant in the FIR in questionby his counsel.

3.The factual matrix of the present case is that the FIR in questionwas lodged by the complainant on the allegation that the accusedperson/Petitioner committed criminal offences of misappropriation ofproperty; criminal breach of trust, cheating, falsification of accountsetc. Mr. Debashish Sen is an ex-employee of the complainantcompanyandwasappointedasVice-President(BusinessDevelopment) on 01.02.2008 due to which, he became vested withwhole sole charge for all air bookings, visas, passports and other travelservices and recovery of payment for the above said services on behalfof Complainant Company for such clients. Amdocs India Pvt. Ltd.,one of the clients of the complainant company, had an agreement withthe complainant company as per the rules of which the complainantcompany was required to depute and post an employee as “implant” inthe office of Amdocs India for providing services as per the agreementon behalf of the Complainant Company. The billing information of acompleted service was sent to Delhi office of the complainantcompany and the bills were raised accordingly on the basis of the saidinformation. Mr. Debashish Sen proposed the name of the petitionersince he was known to him and he got appointed as branch manager atthe Pune office by the complainant company. Mr. Debashish sen usedto obtain/draw from Complainant Company for rendering visa servicesto Amdocs India against his imprest account with the complainantcompany under the agreement. The complainant company also used toraise cash vouchers debiting imprest account of Mr. Sen throughemails on receiving requisition of cash from him. Several bills of thecomplainant company, amounting to Rs. 24,97,500 towards which Mr.

Sen had withdrawn cash of Rs. 23,60,000, which remained unpaid byAmdocs India. Mr. Debashish Sen and the Petitioner verbally assuredthe complainant company that the bills have been raised upon AmdocsIndia shortly and showed payment of Rs. 1,90,000/- made by AmdocsIndia towards the outstanding bills. When the complainant companyapproached Amdocs India, they were informed that no bill wasoutstanding. Upon reconciliation of accounts by Amdocs India, it wasfound that Mr. Sen had raised fake bills from the complainantcompany without submitting the same to Amdocs India.

The complaint was lodged following which, the FIR in questionwas registered against the accused person. During the pendency of thetrial, the parties entered into settlement.

4.Respondent No.2 present in the Court submitted that the disputebetween the parties has been amicably resolved. As per the MOU, it isagreed between the parties that the petitioner shall pay an amount ofRs. 2.3 Lacs as full and final settlement to the respondent no.2. It isalso agreed that the at the time of signing of the said settlement, thepetitioner shall pay an amount of Rs. 50,000/- to respondent no.2 videDD no. 451999 drawn on Shamrao Vitthal Cooperative Bank Ltd. andthe rest of the amount shall be paid to the respondent no.2 at the timequashing of the FIR in question before the concerned Court. It is alsoagreed that respondent no.2, upon receiving the said settlementamount, shall have no objection if the FIR in question is quashed bythe concerned Court and also that respondent no.2 shall cooperate forthe same. It is also agreed that respondent no.2 shall not raise anyfurther claims or any criminal or civil litigations against the petitioner

after this settlement. Upon breach of the terms of the MOU, it shall beopen to the aggrieved parties to take any legal action and other partyshall be solely responsible for the cost and consequences thereof.Respondent no. 2 affirmed the contents of the aforesaid settlement andof his affidavit dated 18.05.2016 supporting this petition. In theaffidavit, the respondent no.2 has stated that he has no objection if theFIR in question is quashed. All the disputes and differences have beenresolved through mutual consent. Now no dispute with petitionersurvives and so, the proceedings arising out of the FIR in question bebrought to an end. Statement of the respondent no.2 has been recordedin this regard in which he stated that he has entered into compromisewith the petitioner and has settled all the disputes with him. He furtherstated that he has no objection if the FIR in question is quashed.

5.In Gian Singh v. State of Punjab (2012) 10 SCC 303 ApexCourt has recognized the need of amicable resolution of disputes incases like the instant one, by observing as under:-

“61.In other words, the High Court must considerwhether it would be unfair or contrary to the interestof justice to continue with the criminal proceedingsorcontinuationofcriminalproceedingswouldtantamount to abuse of process of law despitesettlement and compromise between the victim andthe wrongdoer and whether to secure the ends ofjustice, it is appropriate that criminal case is put to anend and if the answer to the above question(s) is in theaffirmative, the High Court shall be well within itsjurisdiction to quash the criminal proceedings.”

6.The aforesaid dictum stands reiterated by the Apex Court in arecent judgment in Narinder Singh v. State of Punjab (2014) 6 SCC466. The relevant observations of the Apex Court in Narinder Singh

(Supra) are as under:-

“29. In view of the aforesaid discussion, we sum upand lay down the following principles by which theHigh Court would be guided in giving adequatetreatment to the settlement between the parties andexercising its power under Section 482 of the Codewhile accepting the settlement and quashing theproceedings or refusing to accept the settlement withdirection to continue with the criminal proceedings:

29.1 Power conferred under Section 482 of the Codeis to be distinguished from the power which lies in theCourt to compound the offences under Section 320 ofthe Code. No doubt, under Section 482 of the Code,the High Court has inherent power to quash thecriminal proceedings even in those cases which arenot compoundable, where the parties have settled thematter between themselves. However, this power is tobe exercised sparingly and with caution.

29.2. When the parties have reached the settlementand on that basis petition for quashing the criminalproceedings is filed, the guiding factor in such caseswould 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 forman opinion on either of the aforesaid two objectives.

29.3. Such power is not to be exercised in thoseprosecutionswhich involveheinous and seriousoffences of mental depravity or offences like murder,rape, dacoity, etc. Such offences are not private innature and have serious impact on society. Similarly,for the offences alleged to have been committed underspecial statute like the Prevention of Corruption Actor the offences committed by public servants whileworking in that capacity are not to be quashed merelyon the basis of compromise between the victim andthe offender.

29.4. On the other hand, those criminal cases havingoverwhelmingly and predominantly civil character,

particularlythosearisingoutofcommercialtransactions or arising out of matrimonial relationshipor family disputes should be quashed when the partieshave resolved their entire disputes among themselves.

7.The inherent powers of the High Court ought to be exercised toprevent the abuse of process of law and to secure the ends of justice.The respondent no.2 agreed to the quashing of the FIR in question andstated that the matter has been settled out of his own free will. As thematter has been settled and compromised amicably, so, there would bean extraordinary delay in the process of law if the legal proceedingsbetween the parties are carried on. So, this Court is of the consideredopinion that this is fit case to invoke the jurisdiction under Section482 Cr.P.C. to prevent the abuse of process of law and to secure theends of justice.

8.The incorporation of inherent power under Section 482 Cr.P.C.is meant to deal with the situation in the absence of express provisionof law to secure the ends of justice such as, where the process isabused or misused; where the ends of justice cannot be secured; wherethe process of law is used for unjust or unlawful object; to avoid thecausing of harassment to any person by using the provision of Cr.P.C.or to avoid the delay of the legal process in the delivery of justice.Whereas, the inherent power is not to be exercised to circumvent theexpress provisions of law.

9.It is settled law that the inherent power of the High Court underSection 482 Cr.P.C. should be used sparingly. The Hon’ble ApexCourt in the case of State of Maharashtra through CBI v. Vikram

Anatrai Doshi and Ors. MANU/SC/0842/2014 and in the case ofInder Singh Goswami v. State of Uttaranchal MANU/SC/0808/2009has observed that powers under Section 482 Cr.P.C. must be exercisedsparingly, carefully and with great caution. Only when the Courtcomes to the conclusion that there would be manifest injustice or therewould be abuse of the process of the Court if such power is notexercised, Court would quash the proceedings.10.It is well settled law that where the High Court is convincedthat the offences are entirely personal in nature and therefore do notaffect public peace or tranquillity and where it feels that quashing ofsuch proceedings on account of compromise would bring about peaceand would secure ends of justice, it should not hesitate to quash them.In such cases, pursuing prosecution would be waste of time andenergy. Non-compoundable offences are basically an obstruction inentering into compromise.In certain cases, the main offence iscompoundable but the connected offences are not. In the case of B.S.Joshi and others v. State of Haryana and another 2003 (4) SCC 675the Hon’ble Apex Court observed that even though the provisions ofSection 320 Cr.P.C. would not apply to such offences which are notcompoundable, it did not limit or affect the powers under Section 482Cr.P.C. The Hon’ble Apex Court laid down that if for the purpose ofsecuring the ends of justice, quashing of FIR becomes necessary,section 320 Cr.P.C. would not be bar to the exercise of power ofquashing.In the nutshell, the Hon’ble Apex Court justified theexerciseofpowersunderSection482Cr.P.C.toquashtheproceedings to secure the ends of justice in view of the special facts

and circumstances of the case, even where the offences were non-compoundable.

In the light of the aforesaid, this Court is of the view thatnotwithstanding the fact that the offence under Section 408 IPC is anon-compoundable offence, there should be no impediment inquashing the FIR under this section, if the Court is otherwise satisfiedthat the facts and circumstances of the case so warrant.

11.In the facts and circumstances of this case and in view ofstatement made by the respondent no.2, the FIR in question warrantsto be put to an end and proceedings emanating thereupon need to bequashed.

12.Accordingly, this petition is allowed and FIR No.55/2010 dated08.04.2010, under Section 408 IPC registered at Police StationBarakhamba Road and the proceedings emanating therefrom arequashed against the petitioner.

13.This petition is accordingly disposed of.

14.Application Crl.M.A. No. 8696/2016 is also disposed of.

(P.S.TEJI)

JUDGE

JULY 25, 2016/dd