Head Notes:
- In the
present case, having regard to the fact that the liability to make good
the monetary loss suffered by the bank had been mutually settled between
the parties and the accused had accepted the liability in this regard, the
High Court had thought it fit to invoke its power under Section 482
Cr.P.C. We do not see how such exercise of power can be faulted or held to
be erroneous.
- Section
482 of the Code inheres in the High Court the power to make such order as may
be considered necessary to, inter alia, prevent the abuse of the process
of law or to serve the ends of justice. While it will be wholly
unnecessary to revert or refer to the settled position in law with regard
to the contours of the power available
under Section 482 Cr.P.C. it must be remembered that continuance of a
criminal proceeding which is likely to become oppressive or may partake
the character of a lame prosecution would be good ground to invoke the
extraordinary power under Section 482 Cr.P.C.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.517 OF 2014
(Arising out of Special Leave Petition (Crl)
No. 6138 OF 2006)
CBI, ACB, MUMBAI .
... APPELLANT (S)
VERSUS
NARENDRA LAL JAIN & ORS. ... RESPONDENT (S)
J
U D G M E N T: RANJAN GOGOI, J.
1.
Leave granted.
2.
The
appellant, Central Bureau of Investigation (CBI) ACB, Mumbai seeks to challenge
an order dated 28.10.2005 passed by the High Court of Bombay quashing the
criminal proceedings against the respondents Narendra Lal Jain, Jayantilal L.
Shah and Ramanlal Lalchand Jain. The aforesaid respondents had moved the High
Court under Section 482 Code of Criminal Procedure, 1973 (for short “Cr.P.C.”) challenging
the orders passed by the learned Trial Court refusing to discharge them and
also questioning the continuance of the criminal proceedings registered against
them. Of the three accused, Jayantilal L. Shah, the court is informed, has died
during the pendency of the present appeal truncating the scope thereof to an
adjudication of the correctness of the decision of the High Court in so far as accused
Narendra Lal Jain and Ramanlal Lalchand Jain are concerned.
3.
On the basis of two
FIRs dated 22.03.1993, R.C. No. 21(A) of 1993 and R.C. No.22 (A) of 1993 were
registered against the accused-respondents and several officers of the Bank of
Maharashtra. The offences alleged were duly investigated and separate
chargesheets in the two cases were filed on the basis whereof Special Case No.
15 of 1995 and Special Case No. 20 of 1995 were registered in the Court of the
Special Judge, Mumbai. In the chargesheet filed, offences under Sections
120-B/420 IPC and Sections 5(2) read with Section 5(1)(d) of the Prevention of
Corruption Act, 1947 corresponding to Sections 13(2) read with Section 13(1)(d)
of the Prevention of Corruption Act, 1988 (for short “PC Act”) were alleged
against the accused persons. In so far as the present accused-respondents are
concerned the gravamen of the charge is that they had conspired with the bank
officials and had projected inflated figures of the creditworthiness of the
companies represented by them and in this manner had secured more
advances/loans from the bank than they were entitled to.
4.
While
the criminal cases were being investigated the bank had instituted suits for
recovery of the amounts claimed to be due from the respondents. The said suits
were disposed of in terms of consent decrees dated 23.04.2001. Illustratively, the
relevant clause of the agreement on the basis of which the consent decrees were
passed reads as follows:
“10.
Agreed and declared that dispute between the parties hereto were purely and simply
of civil nature and on payment mentioned as aforesaid made by the Respondents
the Appellants have no grievance of whatsoever nature including of the CBI
Complaint against the Respondents.”
5.
Applications for discharge were filed by the
accused respondents which were rejected by the learned Trial Court by order dated
04.09.2011. The learned Trial Court, thereafter, proceeded to frame charges
against the accused. In so far as the present accused-respondents are concerned
charges were framed under Sections 120-B/420 of the Indian Penal Code whereas
against the bank officials, charges were framed under the different provisions
of the Prevention of Corruption Act, 1988 (PC Act). The challenge of the respondents
to the order of the learned Trial Court refusing discharge and the continuation
of the criminal proceedings as a whole having been upheld by the High Court and
the proceedings in question having been set aside and quashed in respect of the
respondent, the CBI has filed the present appeal challenging the common order
of the High Court dated 28.10.2005.
6.
We have
heard Mr. P.P. Malhotra, learned Additional Solicitor General appearing on
behalf of the appellant and Mr. Sushil Karanjkar, learned counsel appearing on
behalf of Respondent Nos. 1 and 4.
7.
Shri
Malhotra, learned Additional Solicitor General, has taken us through the order
passed by the High Court. He has submitted that the High Court had quashed the
criminal proceeding registered against the accused-respondents only on the
ground that the civil liability of the respondents had been settled by the
consent terms recorded in the decree passed in the suits. Shri Malhotra has
submitted that when a criminal offence is plainly disclosed, settlement of the
civil liability, though arising from the same facts, cannot be a sufficient
justification for the premature termination of the criminal case. Shri Malhotra
has also submitted that the offence under Section 120-B alleged against the
accused respondents is not compoundable under Section 320 Cr.P.C.; so also the
offences under the PC Act. Relying on the decision of a three Judges Bench of
this Court in Gian Singh vs. State of Punjab and
Another (2012) 10
SCC 303 , Shri Malhotra has submitted that though it has been held that the
power of the High Court under Section 482 Cr.P.C. is distinct and different from
the power vested in a criminal Court for compounding of offence under Section
320 of the Cr.P.C., it was made clear that the High Court must have due regard
to the nature and gravity of the offences alleged before proceeding to exercise
the power under Section 482 Cr.P.C. Specifically drawing the attention of the
Court to para 61 of the report in Gian
Singh (supra) Shri Malhotra has submitted that “any compromise
between the victim and the offender in relation to the offences under special
statutes like the Prevention of Corruption Act…. cannot provide for any basis
for quashing criminal proceeding involving such offences”. Shri Malhotra had
contended that having regard to the gravity of the offences alleged, which
offences are prima facie made out, in as much as charges have been framed for
the trial of the accused-respondents, the High Court was not justified in quashing
the criminal proceedings against the accused respondents.
8.
Per contra, the learned counsel for the
respondents (accused) have submitted that the High Court, while quashing the
criminal proceedings against the respondents (accused), had correctly relied on
the judgments of this Court in Central
Bureau of Investigation, SPE, SIU(X), New Delhi vs. Duncans
Agro Industries Ltd., Calcutta (1996) 5 SCC 591 and B.S.Joshi and Others vs. State
of Haryana and Another AIR 2003 SC 1387. Learned
counsel has submitted that though simultaneous criminal and civil action on
same set of facts would be maintainable, in Duncans Agro Industries Ltd. (supra)
it has been held that the disposal of the civil suit for recovery, on
compromise upon receipt of payments by the claimants, would amount to
compounding of offence of cheating. No error is, therefore, disclosed in the
order of the High Court insofar as the offence under Section 420 IPC is concerned.
As for the offence under Section 120-B it is submitted that this Court in B.S. Joshi (supra) has held that the
power under Section 482 Cr.P.C. to quash a criminal proceeding is not limited
by the provisions of Section 320 Cr.P.C. and even if an offence is not
compoundable under Section 320 Cr.P.C., the same would not act as a bar for the
exercise of power under Section 482 Cr.P.C. As the dispute between the parties
have been settled on the terms of the compromise decrees, it is submitted that
the High Court had correctly applied the principles laid down in B.S. Joshi (supra) to the facts of
the present case.
9.
Learned
counsel has further pointed out that the charges framed against the
accused-respondents are under Section 120-B/420 of the Indian Penal Code and
the respondents not being public servants, no substantive offence under the PC
Act can be alleged against them. The relevance of the views expressed in para
61 of the judgment of this Court in Gian
Singh (supra), noted above, to the present case is
seriously disputed by the learned counsel in view of the offences alleged
against the respondents. Learned counsel has also submitted that by the very
same impugned order of the High Court the criminal proceeding against one Nikhil
Merchant was declined to be quashed on the ground that offences under Sections
468 and 471 of the IPC had been alleged against the said accused. Aggrieved by
the order of the High Court the accused had moved this Court under Article 136
of the Constitution. In the decision reported in Nikhil Merchant vs. Central
Bureau of Investigation and Another (2008) 9
SCC 677 this Court understood the charges/allegations against the aforesaid
Nikhil Merchant in the same terms as in the case of the accused-respondents, as
already highlighted. Taking into consideration the ratio laid down in B.S. Joshi (supra) and the
compromise between the bank and the accused Nikhil Merchant (on the same terms
as in the present case) the proceeding against the said accused i.e. Nikhil
Merchant was quashed by the Court taking the view that the power and the
Section 482 Cr.P.C. and of this Court under Article 142 of the Constitution cannot
be circumscribed by the provisions of Section 320 Cr.P.C. It is further
submitted by the learned counsel that the correctness of the view in B.S. Joshi (supra) and Nikhil Merchant (supra) were
referred to the three Judges Bench in Gian
Singh (supra). As already noted, the opinion expressed
in Gian Singh (supra)
is that the power of the High Court to quash a criminal proceeding under
Section 482 Cr.P.C. is distinct and different from the power vested in a criminal
court by Section 320 Cr.P.C. to compound an offence. The conclusion in Gian Singh (supra), therefore, was
that the decisions rendered in B.S.
Joshi (supra) and Nikhil Merchant (supra) are
correct.
10.
In the present case, as
already seen, the offence with which the accused-respondents had been charged
are under Section 120-B/420 of the Indian Penal Code. The civil liability of
the respondents to pay the amount to the bank has already been settled
amicably. The terms of such settlement have been extracted above. No subsisting
grievance of the bank in this regard has been brought to the notice of the
Court. While the offence under Section 420 IPC is compoundable the offence
under Section 120-B is not. To the latter offence the ratio laid down in B.S. Joshi (supra) and Nikhil Merchant (supra) would
apply if the facts of the given case would so justify. The observation in Gian Singh (supra) (para 61) will
not be attracted in the present case in view of the offences alleged i.e. under
Sections 420/120B IPC.
11.
In the present case,
having regard to the fact that the liability to make good the monetary loss
suffered by the bank had been mutually settled between the parties and the accused
had accepted the liability in this regard, the High Court had thought it fit to
invoke its power under Section 482 Cr.P.C. We do not see how such exercise of
power can be faulted or held to be erroneous. Section 482 of the Code inheres
in the High Court the power to make such order as may be considered necessary
to, inter alia, prevent the abuse of the process of law or to serve the ends of
justice. While it will be wholly unnecessary to revert or refer to the settled
position in law with regard to the contours of the power available under Section 482 Cr.P.C. it must be
remembered that continuance of a criminal proceeding which is likely to become
oppressive or may partake the character of a lame prosecution would be good ground
to invoke the extraordinary power under Section 482 Cr.P.C.
12.
We,
therefore, decline to interfere with the impugned order dated 28.10.2005 passed
by the High Court and dismiss this appeal. We, however, make it clear that the proceedings
in Special Case No. 15/95 and 20/95 stands interfered with by the present order
only in respect of accused-respondents Narendra Lal Jain and Ramanlal Lalchand
Jain.
.…………………………CJI.
[P. SATHASIVAM]
........………………………J.
[RANJAN GOGOI]
..........……………………J.
[N.V.RAMANA]
NEW
DELHI,
FEBRUARY
28, 2014.
No comments:
Post a Comment