High Court cannot quash complaint u/s 482 CrPC accepting factual defence which are disputed one.

Ordinarily, a defence of an accused although appears to be plausible should not be taken into consideration for exercise of the said jurisdiction. Yet again, the High Court at that stage would not ordinarily enter into a disputed question of fact. It, however, does not mean that documents of  unimpeachable character should not be taken into consideration at any cost for the purpose of  finding out as to whether continuance of the criminal proceedings would amount to an abuse of  process of court or that the complaint petition is filed for causing mere harassment to the accused. While we are not oblivious of the fact that although a large number of disputes should ordinarily be determined only by the civil courts, but criminal cases are filed only for achieving the ultimate goal, namely, to force the accused to pay the amount due to the complainant immediately. The courts on the one hand should not encourage such a practice; but, on the other, cannot also travel beyond its jurisdiction to interfere with the proceeding which is otherwise genuine. The courts cannot also lose sight of the fact that in certain matters, both civil proceedings and criminal proceedings would be maintainable.’

                                                                                                    (Para 11)

Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 471 OF 2015

(Arising out of SLP (Crl) No. 5295 OF 2014)

HMT Watches Ltd.                                                                                 ... Appellant

Versus

M.A. Abida & Anr.                                                                            … Respondents

WITH

CRIMINAL APPEAL NO. 472 OF 2015

(Arising out of SLP(Crl) No. 5800 OF 2014)

J U D G M E N T: PRAFULLA C. PANT, J.

1.     These appeals are directed against judgment and order dated 25.2.2014 passed by the High Court of Kerala in Criminal M.C. No 2366 of 2008 and Criminal M.C. No. 2367 of 2008, whereby the said Court has allowed the petitions and quashed the proceedings of criminal complaint case Nos. 1790, 1791, 1792, 1793, 1794, 1795, 1796, 1824, 1825, 1826, 1827, 1828, 1829, 1830 and 1831 of 2007 pending in the Court of Judicial First Class Magistrate (Court No. IV), Kochi; and C.C. Nos. 1208, 1209, 1210,1211 and 1212 of 2007, pending in the Court of Judicial First Class Magistrate (Court No. III), Kochi. All these criminal complaint cases were pertaining to offence punishable under Section 138 of  the Negotiable  instruments Act, 1881 (hereinafter referred to as “the N.I. Act”).

2.      We have heard learned counsel for the parties and perused the papers on record.

3.      Succinctly stated, the appellant filed criminal complaint cases against respondent – M.A. Abida stating that as many as 57 cheques dated 28.09.2006 were issued by her in discharge of outstanding liability towards the complainant/appellant (HMT Watches Ltd.). When the cheques were presented for collection the same were received back, dishonored by bankers with the endorsement – “payment stopped by the drawer”. Notice of demand dated 9.10.2006 was issued by the complainant to the respondent no.1 but she failed to make the payment of  the amount mentioned in the cheques, i.e., total Rs.1,79,86,357/-. Instead, she sent reply to the notice disputing liability to pay. On this, complainant filed twenty criminal complaints mentioned above, against the respondent no.1 with regard to the offence punishable under Section 138 of the N.I. Act.

4.      The accused – M.A. Abida filed Criminal M.C. No. 2366 of 2008 and Criminal M.C. No. 2367 of 2008 challenging the proceedings initiated by the complainant on the ground that she was Re-Distribution Stockist (RD) of watches manufactured by the appellant. The business with the appellant was done till September, 2003 on “cash and carry” basis. The accused further pleaded in the petitions filed before the High Court under Section 482 of the Code of  Criminal Procedure, that after 2003 the appellant company used to collect cheques towards the amount covered by distinct invoices with respect to various consignments for securing payment of amount covered by the invoices.

5.      The High Court accepted the plea of the accused (respondent no.1) and quashed the criminal complaint cases. Hence, these appeals through special leave.

6.      On behalf of the appellant, it is argued before us that the High Court committed a grave error of law in quashing the proceedings of the criminal complaint cases on the factual pleas taken by the respondent no.1. On the other hand, learned counsel for the respondent no.1 contended that since the cheques were given as security, as such there was no liability to make the payment, and the ingredients of  the offence punishable under Section 138 of the N.I Act were not made out.

7.      Section 138 of the Negotiable Instruments Act, 1881 reads as under:

“138. Dishonour of cheque for insufficiency, etc., of funds in the accounts. - Where any cheque drawn by a person on an account maintained by him with a banker for payment of  any amount of money to another person from out  of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of  money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for “a term which may extend to two year”, or with fine which may extend to twice the amount of the cheque, or with both:

Provided that nothing contained in this section shall apply unless-

(a) The cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier.

(b) The payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice, in writing, to the drawer, of the cheque, “within thirty days” of the receipt of  information by him from the bank regarding the return of the cheques as unpaid, and

(c) The drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.

Explanation: For the purpose of this section, “debt or other liability” means a legally enforceable debt or other liability.”

8.      Section 139 of the Negotiable Instruments Act, 1881provides that there shall be a presumption in favor of holder of a cheque as to the debt or liability. It reads as under:

“139. Presumption in favour of holder. - It shall be presumed, unless the Contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, or any debt or other liability.”

9.      Section 140 of the Negotiable Instruments Act, 1881 prohibits what cannot be a defence in a prosecution in respect of offence punishable under Section 138 of the N.I. Act. It reads as under:

“140. Defence which may not be allowed in any prosecution under section 138. – Defence which may not be allowed in any prosecution under section 138 It shall not be a defence in a prosecution of an offence under section 138 that the drawer had no reason to believe when he issued the cheque that the cheque may be dishonoured on presentment for the reasons stated in that section.”

10.              Having heard learned counsel for the parties, we are of  the view that the accused (respondent no.1) challenged the proceedings of criminal complaint cases before the High Court, taking factual defences. Whether the cheques were given as security or not, or whether there was outstanding liability or not is a question of fact which could have been determined only by the trial court after recording evidence of the parties. In our opinion, the High Court should not have expressed its view on the disputed questions of fact in a petition under Section 482 of the Code of Criminal Procedure, to come to a conclusion that the offence is not made out. The High Court has erred in law in going into the factual aspects of the matter which were not admitted between the parties. The High Court further erred in observing that Section 138(b) of N.I. Act stood un complied, even though the respondent no.1 (accused) had admitted that he replied the notice issued by the complainant. Also, the fact, as to whether the signatory of demand notice was authorized by the complainant company or not, could not have been examined by the High Court in its jurisdiction under Section 482 of the Code of Criminal Procedure when such plea was controverted by the complainant before it.

11.              In Suryalakshmi Cotton Mills Limited v. Rajvir Industries Limited and others  (2008) 13 SCC 678  , this Court has made following observations explaining the parameters of  jurisdiction of the High Court in exercising its jurisdiction under Section 482 of the Code of Criminal Procedure: -

“17. The parameters of jurisdiction of the High Court in exercising its jurisdiction under Section 482 of the Code of Criminal Procedure is now well settled. Although it is of wide amplitude, a great deal of caution is also required in its exercise. What is required is application of the well-known legal principles involved in the matter.

xxx                                xxx                                                  xxx

22. Ordinarily, a defence of an accused although appears to be plausible should not be taken into consideration for exercise of the said jurisdiction. Yet again, the High Court at that stage would not ordinarily enter into a disputed question of fact. It, however, does not mean that documents of  unimpeachable character should not be taken into consideration at any cost for the purpose of  finding out as to whether continuance of the criminal proceedings would amount to an abuse of  process of court or that the complaint petition is filed for causing mere harassment to the accused. While we are not oblivious of the fact that although a large number of disputes should ordinarily be determined only by the civil courts, but criminal cases are filed only for achieving the ultimate goal, namely, to force the accused to pay the amount due to the complainant immediately. The courts on the one hand should not encourage such a practice; but, on the other, cannot also travel beyond its jurisdiction to interfere with the proceeding which is otherwise genuine. The courts cannot also lose sight of the fact that in certain matters, both civil proceedings and criminal proceedings would be maintainable.’

12.               In Rallis India Limited v. Poduru Vidya Bhushan and others (2011) 13 SCC 88 , this Court expressed its views on this point as under:-

“12. At the threshold, the High Court should not have interfered with the cognizance of the complaints having been taken by the trial court. The High Court could not have discharged the respondents of the said liability at the threshold. Unless the parties are given opportunity to lead evidence, it is not possible to come to a definite conclusion as to what was the date when the earlier partnership was dissolved and since what date the respondents ceased to be the partners of the firm.”

In view of the law laid down by this Court as above, in the present case High Court exceeded its jurisdiction by giving its opinion on disputed questions of fact, before the trial court.

13.               Lastly, it is contended on behalf of the respondent no.1 that it was not a case of insufficiency of fund, as such, ingredients of offence punishable under Section 138 of the N.I. Act are not made out. We are not inclined to accept the contention of learned counsel for respondent no.1. In this connection, it is sufficient to mention that in the case of  Pulsive Technologies P. Ltd. vs. State of Gujarat (2014) 9 SCALE 437 , this Court has already held that instruction of “stop payment” issued to the banker could be sufficient to make the accused liable for an offence punishable under Section 138 of the N.I. Act. Earlier also in Modi Cements Ltd. vs. Kuchil Kumar Nandi (1998) 3 SCC 249 , this Court has clarified that if a cheque is dishonoured because of stop payment instruction even then offence punishable under Section 138 of N.I. Act gets attracted.

14.                 For the reasons as discussed above, we find that the High Court has committed grave error of law in quashing the criminal complaints filed by the appellant in respect of  offence punishable under Section 138 of the N.I. Act, in exercise of powers under Section 482 of the Code of Criminal Procedure by accepting factual defences of the accused which were disputed ones. Such defences, if taken before trial court, after recording of the evidence, can be better appreciated.

15.                Therefore, for the reasons, as discussed above, these appeals deserve to be allowed. Accordingly, the appeals are allowed. The impugned order dated 25.2.2004 passed by High Court of Kerala in Criminal M.C. Nos. 2366 of 2008 and  2367 of 2008 is hereby quashed. The trial court shall proceed with the trial in the criminal complaint cases. It is clarified that we have not expressed our opinion as to correctness of the defence pleas taken by the respondent no.1. No order as to costs.

………………….....…………J.

[Dipak Misra]

.………………….……………J.

[Prafulla C. Pant]

New Delhi;

March 19, 2015

Practice and procedure – Quashing of FIR – Corruption – Bribe demanded by government doctor – Practice of reliance on affidavits submitted by witnesses in support of accused – Whether Proper?

Held:- It is risky to encourage the practice of filing affidavits by the witnesses at the stage of investigation or during the court proceedings in serious offences such as offences under the PC Act. If such practice is sanctioned by this Court, it would be easy for any influential accused to procure affidavits of witnesses during investigation or during court proceedings and get the FIR and the proceedings quashed. 

Criminal Procedure Code, 1973 - Section 482 - Inherent powers of High Court - Principles. 

Held:- The plentitude of the power under Section 482 of the Code by itself makes it obligatory for the High Court to exercise the same with utmost care and caution. The width and the nature of the power itself demands that its exercise is sparing and only in cases where the High Court is, for reasons to be recorded, of the clear view that continuance of the prosecution would be nothing but an abuse of the process of law. 

Prevention of Corruption  Act, 1988 – Section 7 and 13 - Plea of Mercy -Respondent is on the verge of retirement - He has suffered the agony of investigation since 2007 – Held, Rampant corruption is seen in every walk of our life. People, particularly those holding high office, are frequently seen accepting illegal gratification. In such serious cases showing mercy at this stage may send wrong signals. 

Prevention of Corruption Act, 1988 -Sections 7 & 13(1)(d)(2) - Criminal Procedure Code, 1973 - Section 482 -Practice and procedure - Quashing of FIR – Corruption - Bribe demanded by government doctor - Whether the exercise of powers under Section 482 of the Code by the High Court to quash the complaint was warranted in the facts of this case? 

Held:- By the impugned judgment, a learned Single Judge of the High Court has quashed the complaint filed against respondent 1 by one Sohan Lal (the complainant) alleging that respondent 1 demanded Rs.5,000/- as illegal gratification for  performing the operation of Smt. Sita Devi, whom he treated as his aunt. The conversation of respondent 1 and the complainant was heard on the tape recorder. Thereafter, the raiding party, two independent witnesses and the complainant went inside the house of respondent 1. Upon being questioned, respondent 1 stated that he had kept the money in the drawer of his table. The money was recovered and hand wash of respondent 1 was taken which turned pink. After following the necessary formalities, FIR came to be registered the PC Act at Police Station, ACB Chowki, Sriganganagar, against respondent 1. Sanction for prosecution was obtained from the competent authority on 23/6/2009. How far the evidence collected by the investigating agency is credible can be decided only when the evidence is tested by cross examination during the trial. But, in our opinion, in view of the contents of the FIR and nature of evidence collected by the investigating agency, this is certainly not a case where the FIR can be quashed. If we examine the instant FIR in light of the principles laid down by this Court in Bhajan Lal it is not possible to concur with the High Court that the allegations made in the FIR and the evidence collected in support of the same do not disclose the commission of any offence.

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1222 OF 2012

[Arising out of Special Leave Petition (Crl.) No.4845 of 2010]

AFTAB ALAM AND RANJANA PRAKASH DESAI, JJ. On AUGUST 17, 2012

STATE OF RAJASTHAN                       … APPELLANT

Vs.

DR. RAJKUMAR AGARWAL & ANR            . … RESPONDENTS

JUDGMENT : (SMT. ) RANJANA PRAKASH DESAI , J .

1. Leave granted.

2. This appeal, by special leave, filed by the State of Rajasthan is directed against judgment and order dated 10/9/2009 delivered by the High Court of Rajasthan in Cri. Misc. Petition No.307 of 2009 filed by respondent 1 herein – Dr. Rajkumar Agarwal under Section 482 of the Code of Criminal Procedure, 1973 (for short, “the Code”). By the impugned judgment, a learned Single Judge of the High Court has quashed the complaint filed against respondent 1 by one Sohan Lal (the complainant) alleging that respondent 1 demanded Rs.5,000/- as illegal gratification for performing the operation of Smt. Sita Devi, whom he treated as his aunt. The question before this court is whether the exercise of powers under Section 482 of the Code by the High Court to quash the complaint was warranted in the facts of this case.

3. The facts, briefly stated, are as follows:Respondent 1 was working as Junior Specialist (Surgery), Government Hospital, Suratgarh, District Sriganganagar, Rajasthan. On 11/12/2007, the Complainant submitted a written complaint to the Police Station, Anti Corruption Bureau (for short, “the ACB”) Chowki, Sriganganagar stating that on 7/12/2007, respondent 1 performed the operation of uterus of his aunt - Smt. Sita Devi w/o. Navranglal in a Government Hospital at Suratgarh. According to the complainant, respondent 1 demanded Rs.5,000/- as bribe for the operation and for better treatment. The complainant gavea sum of Rs.2,500/- at the time of operation. The complainant stated that his aunt was still in the hospital and respondent 1 was demanding the remaining sum of Rs.2,500/-. According to the complainant, he did not want to give the money but he apprehended that respondent 1 may cause harm to his aunt, if he does not pay the amount.

4. It is the case of the petitioner that on the same day at about 11.00 a.m., a blank cassette “A” was inserted in a small tape-recorder and handed over to the complainant at the ACB Office. The complainant was explained about its functioning. Mr. Jagdish Rai, Ct.No.179 was sent along with the complainant to Suratgarh for verification of the demand of bribe. At 5.00 p.m., both the complainant and Mr. Jagdish Rai returned to the ACB office. The tape-recorder was played and the demand was found corroborated. Its memo was prepared and the cassette was sealed and labelled. It is the case of the appellant that preparation for trap was made. Two independent witnesses i.e. Mr. Darshan Singh, Assistant Engineer and Mr. Kripal Singh, Assistant Project(Samanvayak) Office, Sarva Shiksha Abhiyan, Sriganganagar were introduced to the complainant. Currency notes of Rs.1,500/- produced by the complainant which were to be handed over to the appellant were smeared with phenolphthalein powder. The necessary procedure was followed. A new blank cassette was inserted in the tape recorder and it was handed over to the complainant. On 12/12/2007, the Additional Superintendent of Police along with the complainant, the two independent witnesses and others left for Suratgarh. The complainant was given necessary direction for contacting respondent 1. The trap party waited there. The complainant came out of the residence of respondent 1 and gave fixed signal to the Additional Superintendent of Police. The raiding party along with the independent witnesses went to the complainant, who stated that respondent 1 had kept the bribe money of the complainant in the drawer of his table. The conversation of respondent 1 and the complainant was heard on the tape recorder. Thereafter, the raiding party, two independent witnesses and the complainant went inside the house ofrespondent 1. Upon being questioned, respondent 1 stated that he had kept the money in the drawer of his table. The money was recovered and hand wash of respondent 1 was taken which turned pink. After following the necessary formalities, FIR came to be registered under Sections 7 and 13(1)(d)(2) of the Prevention of Corruption Act, 1988 (for short, “the PC Act”) at Police Station, ACB Chowki, Sriganganagar, against respondent 1. Sanction for prosecution was obtained from the competent authority on 23/6/2009.

5. As stated above, respondent 1 filed petition under Section 482 of the Code for quashing of the said FIR. The High Court has quashed the said FIR. The State of Rajasthan is in appeal before us.

6. Mr. Manish Singhvi, Addl. Advocate General for the appellant submitted that the High Court has fallen into a grave error in quashing the FIR. Counsel submitted that the High Court misinterpreted the ratio of the judgment of this court in State of Haryana v. Bhajan Lal, 1992 Supp. (1)335. Counsel submitted that the FIR and the other material collected by the prosecution prima facie make out a strong case against respondent 1.

7. Mr. Pallav Shishodia, learned senior advocate for respondent 1, on the other hand, submitted that the High Court has rightly quashed the complaint. He pointed out that Smt. Sita Devi was not related to the complainant. Therefore, the complainant’s case that he went to respondent 1 in connection with the uterus operation of Smt. Sita Devi and the amount was demanded by respondent 1 from him is inherently improbable. Counsel submitted that the complainant owns a Chemist shop near the hospital in which respondent 1 is working. The complainant does not have the necessary licence to run the Chemist shop. The illegalities committed by the complainant were known to respondent 1 and, therefore, the complainant has falsely implicated respondent 1 in this case. Counsel pointed out that in their statements recorded under Section 161 of the Code, Smt. Sita Devi as well as her husband have stated that they were notaware whether the appellant demanded any money from respondent 1. In fact, Smt. Sita Devi and her husband have filed affidavits stating that respondent 1 never asked for money and his behaviour towards Smt. Sita Devi was good and the allegations made by the complainant are false. In support of his submission, counsel relied on the judgments of this court in V.P. Shrivastava v. Indian Explosives Limited & Ors. (2010) 10 SCC 361 andShiji alias Pappu & Ors. V. Radhika & Anr. (2011) 10 SCC 705. Counsel submitted that since Smt. Sita Devi and her husband have not supported the prosecution case, the prosecution has become a lame prosecution and in all probability the case will end in acquittal. Therefore, the High Court has rightly quashed the complaint because if the proceedings are allowed to continue, that will be an abuse of the process of court. Counsel submitted that in any case, even if this court comes to a conclusion that the complaint discloses a prima facie cognizable offence, considering the fact that the offence is of the year 2007; that respondent 1 is on the verge of retirement and that he has suffered the agony of investigationand possibility of a criminal trial from 2007 onwards till today, this court may take a kindly view of the matter. Counsel submitted that in the facts of this case, ends of justice would be met if the High Court’s order is confirmed.

8. We find no substance in Mr. Shishodia’s submissions. It is true that the complainant is not related to Smt. Sita Devi but nothing has been brought on record to even prima facie establish that the complainant holds any grudge against respondent 1 because respondent 1 had knowledge about the alleged irregularities in respect of his Chemist shop. Since Mr Shishodia has referred to statements of Smt. Sita Devi and Navrang Lal recorded under Section 161 of the Code, we have perused them. In these statements, Smt. Sita Devi and Navrang Lal have stated that the complainant was treating Smt. Sita Devi as his aunt and he had admitted her to the hospital. Navrang Lal has stated that because of his work he had to leave Suratgarh and therefore, the complainant admitted Smt. Sita Devi in the hospital. So far as the alleged demand for money made by respondent 1 is concerned, theyhave stated that respondent 1 did not demand any money from them and they were not aware whether respondent 1 demanded any money from the complainant. Thus, these statements support the complainant’s case that he was treating Smt. Sita Devi as his aunt; that he had admitted her to the hospital and that he had dealt with respondent 1. Respondent 1 is relying on three affidavits. Affidavits have been filed by Smt. Sita Devi, Navrang Lal and another patient by name Devcharan Bhagat. Surprisingly, in these affidavits, Smt. Sita Devi and Navrang Lal have given a totally contrary version. They have gone on to say that the complainant has lodged a false complaint against respondent 1. In his affidavit Devharan Bhagat, another patient of respondent 1, has given a certificate to respondent 1 that he is an expert doctor and he had never taken any money from him for treatment. At this stage, we do not want to give any final opinion on these affidavits but we find it difficult to quash the complaint on the basis of these affidavits. As we have already noted, Smt. Sita Devi and her husband have in their statements recorded under Section 161 of the Code partly supported the complainant. Apart from these statements there is another prima facie clinching circumstance against the appellant. The police claim that they have taped the conversation between respondent 1 and the complainant. We have read the transcript of this tape recorded conversation. It is not possible for us to agree with the High Court that the transcription does not corroborate the FIR. Prima facie, we feel that if it is read against the background of the other facts, it is apparent that it relates to the operation of Smt. Sita Devi and the demand pertains to the said operation. Besides, according to the prosecution, the trap was successful. Money smeared with phenolphthalein powder was found with respondent 1. The notes recovered from the respondent 1 tallied with the notes given by the complainant to the police for the purpose of trap and respondent 1’s hand wash turned pink. It is also pertinent to note that when the complaint was lodged, Smt. Sita Devi was still in hospital, probably because after the money was handed over, she was to be discharged, and in fact, her discharge card was found on the table of respondent 1. It is also the case of the appellant that respondent 1refused to give his voice sample for the purpose of investigation. How far the evidence collected by the investigating agency is credible can be decided only when the evidence is tested by cross examination during the trial. But, in our opinion, in view of the contents of the FIR and nature of evidence collected by the investigating agency, this is certainly not a case where the FIR can be quashed. If we examine the instant FIR in light of the principles laid down by this Court in Bhajan Lalit is not possible to concur with the High Court that the allegations made in the FIR and the evidence collected in support of the same do not disclose the commission of any offence.

9. There is yet another and a very sound reason why we are unable to quash the instant FIR. It is risky to encourage the practice of filing affidavits by the witnesses at the stage of investigation or during the court proceedings in serious offences such as offences under the PC Act. If such practice is sanctioned by this Court, it would be easy for any influential accused to procure affidavits of witnesses during investigationor during court proceedings and get the FIR and the proceedings quashed. Such a practice would lead to frustrating prosecution of serious cases. We are therefore, wary of relying on such affidavits. So far as the judgment cited by Mr. Shishodia in V.P. Shrivastava is concerned, it is purely on facts and can have no application to this case. Shiji @ Pappu also does not help respondent 1. That case involved a civil dispute. Parties had settled their civil dispute and therefore, the complainant was not ready to proceed with the proceedings. It is against this background that in Shiji @ Pappu, this Court held that exercise of power under Section 482 of the Code was justifiable. However, this court added that the plentitude of the power under Section 482 of the Code by itself makes it obligatory for the High Court to exercise the same with utmost care and caution. The width and the nature of the power itself demands that its exercise is sparing and only in cases where the High Court is, for reasons to be recorded, of the clear view that continuance of the prosecution would be nothing but an abuse of the process of law. We feel that in the instant case, the High Court failed to appreciate that the wholesome power vested in it under Section 482 of the Code has to be exercised with circumspection and very sparingly. It is not possible for us, on the facts of this case, to come to a conclusion that no offence is made out at all against respondent 1 and continuance of proceedings would be abuse of the process of court.

10. Mr. Shishodia submitted that respondent 1 is on the verge of retirement. He has suffered the agony of investigation since 2007 and therefore, this court may take a kindly view of the matter. Rampant corruption is seen in every walk of our life. People, particularly those holding high office, are frequently seen accepting illegal gratification. In such serious cases showing mercy at this stage may send wrong signals. We are, therefore, unable to accede to Mr. Shishodia’s request.

11. In the circumstances, we set aside the impugned judgment and order. It is not necessary for us to say the obvious that all observations made by us are prima facie observations and the court which may be seized of this mattershall deal with it strictly on merits and in accordance with law.

12. The appeal is disposed of in the afore-stated terms.