DEVENDER SINGH V/S STATE AND ANR. [ALONGWITH CRL….on 23 May, 2008]

DEVENDER SINGH V/S STATE AND ANR. [ALONGWITH CRL….on 23 May, 2008]

Three case laws:

1. DEVENDER SINGH V. STATE OF NCT DELHI

CITATION: D.NO. 16039 OF 2011

Date of Judgment: 12, April, 2013

Court: Supreme Court of India 

Case Type: Criminal Miscellaneous Petition

Petitioner: Devender Pal Singh Pullar

Respondent: State of N.C.T. of Delhi

Bench: G.S. Singhvi, Sudhansu Jyotimukhopadhya

FACTS OF THE CASE

 The facts relevant for this petition are that an FIR No. 376 of 2000 was registered at Police Station Azad Nagar pursuant to a complaint dated 29th May, 2000 by one Mr. K.D. Tandon who was running the business in the name and style of Krishna Motors at Sanjay Gandhi Transport Nagar, Delhi. Mr. Tandon stated that he got introduced to the Petitioner Mr. Devender Singh @ Babboo during his visit to the Azadpur Mandi for work. The petitioner assured Mr. Tandon said that if money were invested with him, the petitioner would pay interest well above the normal rate. He also assured Mr.Tandon of the safety of the money by representing that his father and he himself were in the business of financing transporters who had their own trucks and enjoying a good reputation. Mr. Tandon was shown post-dated cheques issued by certain transport companies as well as invoices and transport documents. On the basis of this assurance, Mr. Tandon and his relatives invested a large sum with the petitioner for which they were issued receipts by the petitioner.

 After Rs. 16 lakhs invested by Mr. Tandon and his relatives was unable to be realized, they realized that they had been cheated. When Mr. Tandon went to the address given in the receipt purportedly issued by one of the transport companies, he found that no such company was in existence. It also transpired that the cheques issued in favour of the complainant by the transport companies were fake since no such companies were in existence. The petitioner had opened accounts in his own name, in the name of his friends, and in the names of the fictitious companies and deposited the moneys collected from the complainants and others. During the course of investigation, an FSL report was obtained which confirmed that the receipts and cheques issued were forged by the petitioner. A large number of investors were thus cheated and accordingly a charge sheet was filed. 

 During the pendency of the proceedings, the petitioner settled the disputes with each of the complainants and paid them the amounts pursuant thereto. Enclosed with the petition are the affidavits of each investor or complainant acknowledging receipt of the amount and stating that the complainant is not interested in pursuing the criminal proceedings. A copy of a letter dated 9th September, 2000 written by Mr. Tandon to the police seeking the dropping of the criminal proceedings in FIR No. 376 of 2000 against the petitioner has been produced. The petitioner has also filed an additional affidavit dated 9th October, 2006 giving the details of the settlements between him and the complainants.

2. RAJESH DWIVEDI V. STATE AND OTHERS

CITATION: WRIT PETITION NO. 7429/2013 

DATE OF JUDGMENT: 25 JULY, 2013

COURT: RAJASTHAN HIGH COURT- JODHPUR

CASE TYPE: CRIMINAL MISCELLANEOUS PETITION

PETITIONER: RAJESH DWIVEDI

RESPONDENT: STATE OF RAJASTHAN AND OTHERS

BENCH: HON’BLE MR. JUSTICE GOPAL KRISHNA VYAS

FACTS OF THE CASE

The facts relevant for this petition are that a consultancy and advisory service agreement was entered into on 1st August, 1999 between Ashok Kumar Gautam, the complainant/Respondent No. 2 with M/s Darpan Engineering Services, a consultancy firm of the Petitioner/accused Rajesh Trivedi. Two post-dated cheques, No. 131122 in the sum of Rs. 6 lakhs and No. 131124 in the sum of Rs. 7 lakhs, both dated 15th February 2000, issued by the complainant in favour of the accused were given as advance payment pursuant to the agreement.

Since M/s Darpan Engineering Services rendered no services, it was agreed between the parties that the post-dated cheques would not be encashed. Accordingly, stop payment instructions were given to the Bank of Maharashtra. Telephonically, Mr. Tandon was also informed that he should not present the cheques. It is alleged that Mr. Tandon forged the date on cheque No. 131122 by changing the date from “15.2.2000” to “15.12.2000”, by inserting the figure ‘1’ before a figure ‘2’ in the date of the cheque. It is stated that although the cheque was in the name of M/s Darpan Engineers Services and not in the name of M/s Darpan Engineering Services, Mr. Tandon, in connivance with the officials of ABN Amro Bank, Barakhamba Road, New Delhi, presented the said cheque No. 131122 and had the amount credited to the account No. 257608 in the name of M/s Darpan Engineering Services. The very next day Mr. Tandon withdrew the entire amount of Rs. 6 lakhs.

Mr. Gautam lodged a complaint on 13th March, 2001 which led to the registration of the FIR No. 132 of 2001. This led to the filing of a charge sheet after investigations were completed. The charge sheet indicates that the police seized the original account opening form bearing specimen signatures of the accused and the Cheque No. 131122 both of which were sent to the FSL, Malviya Nagar, and New Delhi for expert opinion. The FSL report confirmed that the figure ‘1’ was indeed inserted before the figure ‘2’ to make it appear as it was of the date 15.12.2000.

During the pendency of the proceedings, Mr. Tandon repaid Mr. Gautam the sum of Rs. 6 lakhs. Mr. Gautam issued a receipt dated 24th March, 2001 to that effect. Mr. Gautam filed an affidavit dated 28th September, 2006 in support of the present petition stating that he has no objection to the quashing of the FIR. Mr. Gautam also appeared in this Court on 3rd October, 2006 and confirmed the above statement.

3. J.K.SINGH and Others V. State

 The facts in the third set of petitions are that Mideast Integrated Steels Ltd. (‘MISL’) approached the Indus Ind Bank Ltd. (earlier Ashok Leyland Finance Ltd.) sometime in March 1996 for availing a lease finance facility to the extent of Rs. 2 crores. MISL was engaged in the construction of a steel plant at Orissa and was also carrying on other businesses as part of the Mesco Group of Companies. The Petitioner No. 1 Mr. Jitender Kumar Singh was its Managing Director and the Petitioners No. 2 and Mrs. Reeta Singh and Mrs. Natasha Singh Sinha were the Directors. Mr. Deepak Singh, the Petitioner No. 4 was the Financial Controller of Petitioner No. 5 MISL.

 The case of the prosecution is M/s Kesoram Refractories of which the proprietor was Ms/ Kesoram Industries Ltd., located at Kulti Distt. Burdwan, West Bengal had been supplying refractory materials to MISL for their steel plants in Orissa from 6th March 1995 through various invoices. One such invoice dated 12.9.95 was issued to M/s Mideast Steels Ltd., “to Costs of Refractories” for a value of Rs.2,84,97,092/- under the signatures of Mr. K.R. Haldia, a former Vice President of M/s Kesoram Refractories. A receipt dated 18th December 1995 was issued by Mr. M.P.V. Raghvan, Resident Executive of M/s Kesoram Refractories of Calcutta for sale of refractory materials to MISL in the course of normal business transactions. 4.3 It is stated that the Petitioners and one other co-accused in criminal conspiracy forged the aforementioned invoice and receipt “by applying white fluid” and replacing the words “To Costs of Refractories” with “Air Pre-heaters” and the figure “Rs.2,84,79,092” with “Rs. 1,80,79,092”. The receipt dated 18th December 1995 for Rs. 21, 76,965 was also forged by applying white fluid; the date was forged to read as ‘Jan 31, 1996’, and the words “Refractory materials” were forged to read as “Air Preheaters”. It is stated that on the strength of aforementioned forged documents submitted by MISL to M/s Ashok Leyland Finance Ltd, the latter was induced into sanctioning a lease finance in the sum of Rs. 1,90,18,501/- after adjusting an amount of Rs. 21,76,954. It is stated that M/s Ashok Leyland Finance Ltd. were made to part with the sum of Rs. 1, 68, 41,547/- in the name of M/s Kesoram Refractories by Cheque No. 805479 dated 29th March 1996 drawn on Hongkong and Shanghai Banking Corporation Ltd., New Delhi.

It is stated that this cheque was delivered to an employee of the Mesco Group of Companies and encashed on 4th April 1996 by crediting it to a fake current account of ‘M/s Kesoram Refractories’ at Vijaya Bank, Defence Colony, showing its proprietor as Mr. Deepak Singh, accused No. 4 and by giving the fictitious address. The account opening form was filled in by accused No. 5, introduced by accused No. 6, a former General Manager (Finance) of MISL who also had an account in the same Bank. Thereafter on various dates the amounts were withdrawn transferring almost Rs. 76-77 lakhs through cash and demand drafts to the account of MISL or its Group Companies.

After the charge sheet was filed and the FSL report confirmed the aforementioned forgery, a settlement was purportedly arrived at between MISL and IndusInd Bank Ltd. by entering into a Memorandum of Understanding (‘MOU’) whereby the settled amount of Rs. 92,00,000/- was paid by MISL to IndusInd Bank Ltd. The MOU dated 11th February, 2006 and the receipt for the aforementioned payment have been annexed to the petition. An affidavit has been sworn to by the Authorised Representative of the IndusInd Bank Ltd. in this Court confirming the payment having been made and stating that the Respondent No. 2 will have no objection to the quashing of the FIR.

It is pointed out that the repayment took place pursuant to a scheme of arrangement arrived at in the Company Court of this Court. It is submitted that as far as the present case is concerned, there was no complaint as such, since these facts came to be unearthed when the CBI undertook a general investigation into the affairs of the Mesco Group of Companies. A statement was made by Mr. Deepak Kochhar, the General Manager of IndusInd Bank Ltd. before this Court on 10th October 2006 confirming that Respondent No. 2 did not wish to pursue the criminal proceedings any further. An affidavit of Mr.Kochhar dated 19th October 2006 has been filed to this effect:

That I state that all disputes and claims have been settled between the parties, as stated in detail in the accompanying petition, which may be kindly read as a part of this affidavit as the contents thereof have not been reproduced herein for the sake of brevity.

That I have arrived at the settlement with the Petitioners after due deliberations and without any pressure or force on anyone and it is a fair, free and voluntary settlement.

ARGUMENTS

Counsel for the petitioners have referred to a number of judgments of the High Courts and the Supreme Court which are discussed below. While in all these cases, proceedings involving non-compoundable offences have been quashed, they can be broadly categorized into cases where the offences under Sections 467, 468 and 471 IPC are involved and those that involve other types of non-compoundable offences. According to the counsel for the petitioners, there are categories of cases where in the larger interest of the society, in order to ensure peace and harmony, powers under Section 482 CrPC will have been exercised for the ends of justice notwithstanding the fact that offence itself may be non-compoundable.

 These include family disputes and commercial transactions between private persons not involving any loss to any public finance institutions like banks.  It is urged that in each of the present cases, the facts are such that the power should be exercised by this Court to quash the criminal proceedings.

On behalf of the Respondents, it is submitted that the powers under Section 482CrPC are not unlimited and have to be sparingly used. There is a statutory scheme of compoundable and non-compoundable offences. The High Court should not by the device of Section 482 CrPC bring about indirectly a result which would convert the non-compoundable offences into compoundable ones. The offences of forgery and use of the forged documents are serious and Parliament has despite numerous amendments to the IPC persisted with their classification as non-compoundable offences. In the instant cases, the complainant may have settled the dispute with the accused. However, in each of the cases there was scientific evidence in the form of an FSL report which was sufficient to prove the guilt of the accused. In the circumstances, the power under Section 482CrPc ought not to be used to quash the proceedings. The counsel for the prosecution have also referred to judgments of this Court, other High Courts and the Supreme Court in support of their plea. These will also be discussed hereafter.

 In R.P. Kapur v. State of Punjab while explaining the scope and ambit of Section 561 A of the Code of Criminal Procedure 1898 [in pari materia with Section 482 CrPC] the Court said (AIRp.869):

It is well-established that the inherent jurisdiction of the High Court can be exercised to quash proceedings in a proper case either to prevent the abuse of the process of any court or otherwise to secure the ends of justice. Ordinarily criminal proceedings instituted against an accused person must be tried under the provisions of the Code, and the High Court would be reluctant to interfere with the said proceedings at an interlocutory stage.

 Later in State of Haryana v. Bhajan Lal 1992 Supp (1) SCC 335 the Supreme Court reiterated the settled position and gave illustrative examples of when the power under Section 482 could be exercised. It however struck a note of caution in the following words (SCC, p.379) We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice.

 There can be no doubt therefore that the scope of the power of the High Court under Section 482 CrPC is wide enough to pass orders which would sub serve the ends of justice. However, it has been repeatedly urged that this power must be exercised sparingly. The question in each case where such powers are invoked is whether on the facts and in the circumstances of the case, such power should be exercised to quash the criminal proceedings.

Quashing of criminal cases involving non-compoundable offences:

 In the present cases the common thread of the submission by the accused is that the complainants do not wish to pursue the criminal proceedings since they have settled their disputes with the accused. Therefore, according to them, there is no purpose in continuing the proceedings. The presumption underlying this submission is that the dispute is essentially only between the accused and the complainant. This presumption is questionable since in the criminal justice system as presently ordered, in cases involving cognizable offences like that of forgery and use of forged documents (which is common to all three cases here), there are essentially two parties to the case: the State and the accused. The complainant or the victim figures only as a witness. It is possible to argue that in the context of plea bargaining, recently introduced in the CrPC for a certain category of offences, a limited role is assigned to the complainant. Otherwise the role of the complainant is in triggering the prosecution and later appearing as its witness. Later, in the event the accused is convicted, the complainant may be compensated in terms of Section 357 CrPC. The State as a party to the dispute has in the present cases expressed its opposition to the prayer for quashing. Therefore the mere fact that the accused and the complainant have settled their disputes may not by itself be justification to say that the ‘parties’ to the case have settled their disputes and therefore the criminal proceedings involving cognizable offences should be dropped.

 The non-compoundable offences involved in the present case include Section 468 and 471 of the IPC. Section 468 prescribes punishment for the offence of forgery of a document for the purpose of cheating defined under Section 463 of the IPC and the punishment can extend to imprisonment for a period of seven years and is also inclusive of fine. Under Section 471, the use of a forged document would be punishable in the same manner as forgery of a document under Section 465 is punishable The definition of forgery in terms of Section 463 And 464 IPC is wide enough to include the making of a false document by altering it dishonestly. Some of the illustrations under Section 464 IPC as well as those under Explanations 1 and 2 thereof are similar to the present three cases. However, that in any event would be the subject matter of trial and no definite opinion can be expressed at this stage. What is relevant however is that these offences feature in Chapter XVIII of the IPC titled “Offences relating to documents and property marks”.The fact that these offences have been separately classified and have been made cognizable indicates the intent of the legislature. Significantly, offences relating to the counterfeiting of bank notes and currency notes are included in this Chapter. The very nature of these offences indicates that the legislature intended to treat them as a separate class. These offences cannot be viewed as offences relating only to individuals but as having an impact on society as well. There are therefore good public policy considerations in retaining these offences as cognizable and non-compoundable. These public policy considerations have to be kept in mind when considering a prayer for quashing of proceedings involving such offences.

A further expansion of the power to quash proceedings was recently witnessed in Madan Mohan Abbot v. State of Punjab a decision that has been heavily relied upon by the Petitioners. A reading of the said judgment of the Supreme Court would show that the offences were under Section 406/409/418/379and 506 read with 34 IPC. It did not involve the offence of forgery. It was in that context that the Court, in para 5, observed that “the dispute was purely a personal one between two contesting parties and that it arose out of extensive business dealings between them and that there was absolutely no public policy involved in the nature of the allegations made against the accused.” It was in the above context that it was stated “where the question involved is of a purely personal nature, the Court should ordinarily accept the terms of the compromise even in criminal proceedings as keeping the matter alive with no possibility of a result in favour of the prosecution is a luxury which the Courts, grossly overburdened as they are, cannot afford and that the time so saved can be utilized in deciding more effective and meaningful litigation. This is a common sense approach to the matter based on ground realities and bereft of the technicalities of the law.” Clearly therefore the ‘common sense’ approach requires the Court to ask if there is any possibility of the offence being at all proved if the matter goes to trial.

Judgement

 The ultimate question in each of these cases is whether in the facts and circumstances, the proceedings should be quashed or not. To recapitulate, one of the cases involves creating false receipts in the names of fictitious transport companies and getting cheques issued by such fictitious entities, the second involves tampering with the date of the cheque and the third involves forging receipts and invoices by using white fluid. These are cases involving cognizable offences. The dispute may be characterised as a ‘private’ one but it cannot be said that the offence is one that does not concern the society. One of the cases involves a ‘public financial institution.’ In each there is an FSL report being relied upon by the prosecution in support of its plea that the offences can be proved irrespective of the evidence of the complainant who may no longer support the prosecution. In one of the cases, the accused has `settled’ the dispute with several persons apart from the complainant. Quashing such a case will defeat the purpose of the probable conviction and punishment acting as a deterrent either specifically or generally. Finally, this Court is unable to overlook the fact that the categorization of certain kinds of offences relating to “Documents and Property Marks” separately in Chapter XVIII and their classification as cognizable and non-compoundable is informed by public policy as acknowledged by the legislature.

 It was submitted by counsel for the petitioners that the evidence that emerges during the trial may well falsify the FSL report; or it may show that the accused was in any event not the person who committed the forgery. That may well be, but equally, it may not. It is not possible to anticipate at this stage which way the trial will go. The question at this stage is whether it can be said that going to trial in these cases is a waste of time and an exercise in futility. In the considered view of this Court it is not possible to come to such a conclusion at this stage in any of the three cases.

 This Court is therefore unable to accept the plea in each of these cases for quashing the proceedings on the basis of the settlement arrived at between the accused and the complainant. It is clarified that any observation made hereinabove touching upon the merits of the cases is not intended to influence the decision to be arrived at by any other court at any stage of the proceedings hereafter.

The petitions are accordingly dismissed and the interim orders stand vacated. The applications are also dismissed.

Simrah khan, University of Kashmir, Intern under legal Vidiya.