Sudhir Mallick vs The State of Bihar and Others

Ashwani Kumar Singh, J—The present application under Section 482 of the Code of Criminal Procedure has been filed for quashing the order of cognizance and issuance of processes dated 05.01.2015 passed in Kotwali P.S. Case No. 289 of 2013 by the court of Chief Judicial Magistrate, Patna whereby the petitioner has been summoned to stand trial for the offences under sections 406, 420, 467, 468 and 471 of the Indian Penal Code.

The prosecution story as per written report filed by one Tushar Tukaram Bobhate, who claims himself to be the Law Manager of Zuventus Health Care Limited, Mumbai (for short "the Company"), is that his Company has got its head office at Pune, Maharashtra and it used to appoint Carrying and Forwarding Agent (for short "C & F Agent") throughout the country and Sri Shyam Enterprises situated in Sri Ram Plaza, Station Road, Patna is one of the C & F Agent working in Bihar through which the Company used to supply its product in whole of the Bihar Region. The informant (Opposite Party No. 2) alleges that the accused persons, namely, Sudhir Malik and Amit Kumar, who were appointed as high officials in the Company have on the basis of forged orders of the Stockist M/s. Rajeev Pharma got the medicines from the C & F Agent which was received during June, 2012 to September, 2012. The Opposite Party No. 2 further alleges that when the carrier of the C & F Agent, namely, Ardendu Sikdar, who had gone to supply the orders of medicines to New Rajeev Pharma informed that M/s. New Rajeev Pharma refused to receive the medicine on the ground that he did not place any order which was informed to Amit Kumar (Regional Sales Manager) on phone, who asked the carrier to hand him over the medicines and also assured to submit the receiving to the concerned C & F Office. The carrier Ardendu Sikdar refused to hand over the medicines to Amit Kumar, then Amit Kumar facilitated the carrier to talk with the petitioner on telephone, who instructed the carrier to hand over the medicines to Amit Kumar with an assurance that the receiving by the concerned dealer shall be submitted to the C & F Office and accordingly the aforesaid medicines were given and in turn Amit Kumar submitted receiving of New Rajeev Pharma for the supplied medicines in due course. The FIR further mentions that when the Company placed the bill to the New Rajeev Pharma for payment it was refused on the ground that New Rajeev Pharma has neither placed the order nor has received the same and the alleged receiving by New Rajeev Pharma is forged one and does not bear his seal and signature. The Opposite Party No. 2 further alleges that in this way both Sudhir Kumar Mallick (Petitioner) and Amit Kumar has misappropriated the medicines of the Company worth Rs. 10,64,805.07/- (Rupees ten lakhs sixty thousand eight hundred five and seven paise) and when the matter came to light, both the persons resigned from their job through e-mail.

On the basis of the aforesaid written report submitted by the informant- Opposite Party No. 2 Tushar Tukaram Bobhate, Patna Kotwali P.S. Case No. 289 of 2013 was registered on 04.06.2013 under Sections 406, 420, 467, 468, 471 and 120-B/34 of the Indian Penal Code against the petitioner Sudhir Mallick @ Sudhir Kumar Mallick and Amit Kumar, who were working as Zonal Sales Manager in the Company at the relevant time and investigation was taken up.

After completion of investigation, the police submitted final form against co-accused Amit Kumar but the petitioner was charge-sheeted. Accordingly, cognizance was taken by the learned Chief Judicial Magistrate, Patna vide impugned order dated 05.01.2015 and the petitioner was summoned to stand trial. The aforesaid order dated 05.01.2015 is under challenge before this Court.

Mr. Ajay Kumar Sharma, learned counsel for the petitioner has submitted that the petitioner is in no way connected or concerned with the misappropriation of medicines as alleged in the FIR rather the whole allegation has been leveled against Amit Kumar. The petitioner having worked in the field of medicines for the last 21 years was appointed as Regional Manager in the Company and due to his efforts the business of the Company improved and recognizing his sincere efforts the Company promoted him to the post of Zonal Sales Manager for Bihar circle along with additional charge of three other zones whereas the petitioner was only required to look into the demand and sale of the Company products through the representatives appointed by the Company.

He has submitted that the distribution and supply of the medicines is carried by the Company directly through its C & F Agents and the petitioner had no authority to interfere with the same and he had nothing to do with the transactions between the dealer and C & F Agents. The petitioner at no point of time instructed the carrier of the C & F Agent as alleged in the FIR to hand over the medicines supplied in the name of New Rajeev Pharma to Amit Kumar, and as such the petitioner was in no way responsible for the alleged supply of medicines.

He has further submitted that the petitioner was an employee of the Opposite Party No. 2/Company and the dispute leading to institution of the present case arises out of settlement of accounts between the petitioner and the Opposite Party No. 2, which has amicably been settled between the parties and a compromise has also been made and arrived at outside the Court out of free will of the concerned parties. He has submitted that the Opposite Party No. 2 has already filed a compromise petition in the court of learned Chief Judicial Magistrate, Patna.

The Opposite Party No. 2 has appeared through lawyer. A counter affidavit on behalf of the Opposite Party No. 2 has also been filed. It has been submitted by the learned counsel for the Opposite Party No. 2 that after filing of charge sheet, an outside court settlement and compromise has been reached between both the parties according to their sweet will. Therefore, the informant Company does not have any more grievances and does not want to pursue the case any further. He concedes that a compromise petition dated 26.05.2015 has been filed by the informant- Opposite Party No. 2 in the court of learned Chief Judicial Magistrate, Patna in Kotwali P.S. Case No. 289 of 2013. A compromise petition has also been annexed as Annexure-1 to the counter affidavit filed on behalf of the Opposite Party No. 2.

Let it be noted that a joint compromise petition on behalf of the parties has also been filed before this Court by way of supplementary affidavit. Let it also be noted that the counsel for the petitioner and counsel for the Opposite Party No. 2 have contended that the in view of bona fide settlement arrived at between the parties, neither the informant nor the petitioner has any inclination to fight the dispute.

Learned counsel for the State has submitted that in view of amicable settlement arrived at between the parties, no useful purpose would be served by allowing the prosecution to continue.

I have heard respective counsel for the parties and perused the record.

It is true that certain offences under which cognizance has been taken in the present case are not compoundable under section 320 of the Code. However, in Gian Singh Vs. State of Punjab and Another, (2012) 9 JT 457 : (2012) 9 JT 426 : (2012) 9 SCALE 257 : (2012) 10 SCC 303 , explaining the difference between sections 320 and 482 of the Code, a three-Judge Bench of the Supreme Court in paragraphs 57 and 59 held as under:--

"57. Quashing of offence or criminal proceedings on the ground of settlement between an offender and victim is not the same thing as compounding of offence. They are different and not interchangeable. Strictly speaking, the power of compounding of offences given to a court under Section 320 is materially different from the quashing of criminal proceedings by the High Court in exercise of its inherent jurisdiction. In compounding of offences, power of a criminal court is circumscribed by the provisions contained in Section 320 and the court is guided solely and squarely thereby while, on the other hand, the formation of opinion by the High Court for quashing a criminal offence or criminal proceeding or criminal complaint is guided by the material on record as to whether the ends of justice would justify such exercise of power although the ultimate consequence may be acquittal or dismissal of indictment.

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B.S. Joshi and Others Vs. State of Haryana and Another, AIR 2003 SC 1386 : (2003) CriLJ 2028 : (2003) 3 CTC 54 : (2003) 1 DMC 524 : (2003) 3 JT 277 : (2003) 3 SCALE 214 : (2003) 4 SCC 675 : (2003) 2 SCR 1104 : (2003) 2 UJ 953 : (2003) AIRSCW 1824 : (2003) 3 Supreme 227 , Nikhil Merchant Vs. Central Bureau of Investigation and Another, AIR 2009 SC 428 : (2008) CLT 1226 : (2008) 9 JT 192 : (2008) 11 SCALE 379 : (2008) 9 SCC 677 , Manoj Sharma Vs. State and Others, (2008) 11 JT 674 and Shiji @ Pappu and Others Vs. Radhika and Another, AIR 2012 SC 499 : (2012) CriLJ 840 : (2012) 1 JCC 101 : (2011) 13 JT 180 : (2012) 167 PLR 108 : (2012) 1 RCR(Criminal) 9 : (2011) 12 SCALE 588 : (2012) AIRSCW 445 do illustrate the principle that High Court may quash criminal proceedings or FIR or complaint in exercise of its inherent power under Section 482 of the Code and Section 320 does not limit or affect the powers of the High Court under Section 482. Can it be said that by quashing criminal proceedings in B.S. Joshi, Nikhil Merchant, Manoj Sharma and Shiji, this Court has compounded the non-compoundable offences indirectly? We do not think so. There does exist the distinction between compounding of an offence under Section 320 and quashing of a criminal case by the High Court in exercise of inherent power under Section 482. The two powers are distinct and different although ultimate consequence may be same viz., acquittal of the accused or dismissal of indictment."

Apart from explaining the differences between the two provisions, the Court also described the extent of power under section 482 of the Code in quashing the criminal proceedings in the cases where the parties had settled the matter although the offences are not compoundable in paragraph 58, which reads as under:--

"58. Where High Court quashes a criminal proceeding having regard to the fact that dispute between the offender and victim has been settled although offences are not compoundable, it does so as in its opinion, continuation of criminal proceedings will be an exercise in futility and justice in the case demands that the dispute between the parties is put to an end and peace is restored; securing the ends of justice being the ultimate guiding factor. No doubt, crimes are acts which have harmful effect on the public and consist in wrong doing that seriously endangers and threatens well-being of society and it is not safe to leave the crime- doer only because he and the victim have settled the dispute amicably or that the victim has been paid compensation, yet certain crimes have been made compoundable in law, with or without permission of the Court. In respect of serious offences like murder, rape, dacoity, etc; or other offences of mental depravity under IPC or offences of moral turpitude under special statutes, like Prevention of Corruption Act or the offences committed by public servants while working in that capacity, the settlement between offender and victim can have no legal sanction at all. However, certain offences which overwhelmingly and predominantly bear civil flavour having arisen out of civil, mercantile, commercial, financial, partnership or such like transactions or the offences arising out of matrimony, particularly relating to dowry, etc. or the family dispute, where the wrong is basically to victim and the offender and victim have settled all disputes between them amicably, irrespective of the fact that such offences have not been made compoundable, the High Court may within the framework of its inherent power, quash the criminal proceeding or criminal complaint or F.I.R if it is satisfied that on the face of such settlement, there is hardly any likelihood of offender being convicted and by not quashing the criminal proceedings, justice shall be casualty and ends of justice shall be defeated. The above list is illustrative and not exhaustive. Each case will depend on its own facts and no hard and fast category can be prescribed."

The conclusion of the Supreme in the case of Gian Singh Supra) has been recorded in paragraphs 61 and 62, which read as under:

"61. The position that emerges from the above discussion can be summarised thus: the power of the High Court in quashing a criminal proceeding or FIR or complaint in exercise of its inherent jurisdiction is distinct and different from the power given to a criminal court for compounding the offences under Section 320 of the Code. Inherent power is of wide plenitude with no statutory limitation but it has to be exercised in accord with the guideline engrafted in such power viz.; (i) to secure the ends of justice or (ii) to prevent abuse of the process of any Court. In what cases power to quash the criminal proceeding or complaint or F.I.R may be exercised where the offender and victim have settled their dispute would depend on the facts and circumstances of each case and no category can be prescribed. However, before exercise of such power, the High Court must have due regard to the nature and gravity of the crime. Heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. cannot be fittingly quashed even though the victim or victim''s family and the offender have settled the dispute. Such offences are not private in nature and have serious impact on society. Similarly, any compromise between the victim and offender in relation to the offences under special statutes like Prevention of Corruption Act or the offences committed by public servants while working in that capacity etc; cannot provide for any basis for quashing criminal proceedings involving such offences. But the criminal cases having overwhelmingly and pre-dominatingly civil flavour stand on different footing for the purposes of quashing, particularly the offences arising from commercial, financial, mercantile, civil, partnership or such like transactions or the offences arising out of matrimony relating to dowry, etc. or the family disputes where the wrong is basically private or personal in nature and the parties have resolved their entire dispute. In this category of cases, High Court may quash criminal proceedings if in its view, because of the compromise between the offender and victim, the possibility of conviction is remote and bleak and continuation of criminal case would put accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal case despite full and complete settlement and compromise with the victim. In other words, the High Court must consider whether it would be unfair or contrary to the interest of justice to continue with the criminal proceeding or continuation of the criminal proceeding would tantamount to abuse of process of law despite settlement and compromise between the victim and wrongdoer and whether to secure the ends of justice, it is appropriate that criminal case is put to an end and if the answer to the above question(s) is in affirmative, the High Court shall be well within its jurisdiction to quash the criminal proceeding.

In view of the above, it cannot be said that B.S. Joshi and Others Vs. State of Haryana and Another, AIR 2003 SC 1386 : (2003) CriLJ 2028 : (2003) 3 CTC 54 : (2003) 1 DMC 524 : (2003) 3 JT 277 : (2003) 3 SCALE 214 : (2003) 4 SCC 675 : (2003) 2 SCR 1104 : (2003) 2 UJ 953 : (2003) AIRSCW 1824 : (2003) 3 Supreme 227 , Nikhil Merchant Vs. Central Bureau of Investigation and Another, AIR 2009 SC 428 : (2008) CLT 1226 : (2008) 9 JT 192 : (2008) 11 SCALE 379 : (2008) 9 SCC 677 and Manoj Sharma Vs. State and Others, (2008) 11 JT 674 were not correctly decided. We answer the reference accordingly. Let these matters be now listed before the concerned Bench(es) concerned."

It would be evident from the law laid down by the Supreme Court that in respect of the offences like murder, rape, dacoity, etc; or other offences of mental depravity under Penal Code or offences of moral turpitude under special statutes, like Prevention of Corruption Act or the offences committed by public servants while working in that capacity, cannot be quashed on the ground of settlement between the parties but the criminal cases having overwhelmingly and predominantly civil flavour, particularly, the offences arising from commercial, financial, mercantile, civil, partnership or such like transactions or the offences arising out of matrimony relating to dowry, etc. or the family disputes where the wrong is basically private or personal in nature and the parties have resolved their entire dispute amicably irrespective of the fact that such offences have not been compoundable, the High Court may within the framework of its inherent power, quash the criminal proceeding or criminal complaint or F.I.R if it is satisfied that on the face of such settlement, there is hardly any likelihood of offender being convicted. The Supreme Court has held that under such circumstances by not quashing the criminal proceedings, justice shall be casualty and ends of justice shall be defeated.

After considering the law laid down by the Supreme Court in the case of Gian Singh (Supra) it is obvious that even if the offences are non-compoundable, if they relate to criminal cases having overwhelming and predominantly civil flavour, and where the wrong is basically private or personal in nature and the parties have resolved their dispute, section 320 of the Code would not be a bar to the exercise of powers of quashing of the First Information Report/complaint or the subsequent criminal proceedings.

Reverting back to the facts and circumstances of the present case, it would be evident that the petitioner was an employee of the Company and the dispute leading to the institution of the present case arises out of a settlement of account between the petitioner and the Company, which has amicably been settled between the parties and a compromise has already been made and arrived at outside the Court out of free will of the concerned parties. The petitioner as well as Opposite Party No. 2 have entered into a compromise and have signed the joint compromise petition with their respective counsel. Under such circumstance, no useful purpose would be served by keeping the matter pending for trial before the court below.

Consequently, and keeping in mind the decision of the Supreme Court in Gian Singh (Supra), I am of the view that allowing the prosecution to continue may lead to insurmountable harassment, agony and pain to the parties. Accordingly, the impugned order dated 05.01.2015 passed by the learned Chief Judicial Magistrate, Patna in Kotwali P.S. Case No. 289 of 2013 and all proceedings emanating therefrom are hereby quashed.

The application stands allowed.