Allowed

B. Malla Reddy, Kurnool Dist. v. P.P., Hyd

Andhra Pradesh HC4 Mar 2021CRLRC/2167/2014

Case brief

AI extract

What is this about?

High Court allowed IAs to compound and quash revision petition in private chit fund embezzlement case. Court relied on Gian Singh where it held that criminal proceedings with civil flavour may be quashed upon settlement despite non-compoundability to secure ends of justice.

What did the court decide?

IA Nos. 1, 2 and 3 allowed; Conviction and sentence set aside; Accused acquitted.

B. Malla Reddy, Kurnool Dist. Vs P.P., Hyd — Cheque Dishonour | Andhra Pradesh HC (2021)

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THE HON’BLE SMT JUSTICE LALITHA KANNEGANTI

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I.A.Nos.1, 2 and 3 of 2021

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in/and

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CRIMINAL REVISION CASE No.2167 OF 2014

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COMMON ORDER:-

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The Criminal Petition is filed under Section 482 of the Code of Criminal Procedure, 1973 (for short ‘Cr.P.C.’) assailing the concurrent findings of the Courts below wherein the petitioner/ accused is convicted under Section 409 of the Indian Penal Code, 1860 (for short ‘I.P.C.’) and the accused was sentenced to go a rigorous imprisonment for a period of one year and fine of Rs.3,000/-. In default of payment of fine, the accused is sentenced to undergo imprisonment for a period of three months.

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The complainant/proposed respondent No.2 has filed I.A.No.1 of 2021 under Section 482 of Cr.P.C. praying the Court to permit him to come on record as respondent No.2 in the revision case as they have compromised the matter.

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The parties have filed I.A.Nos.2 and 3 of 2021 with a prayer to compound the offence under Section 409 I.P.C.

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The case of the prosecution is that the revision petitioner who was working as Development Manager and also recovery incharge in Sriram Raghavendra Chits (P) Ltd., Adoni branch has failed to remit the collected amounts to the account of the company. He was absconding from duties from 09.01.2009 without crediting collected amount of Rs.64,733/-. Thus, a complaint was lodged which was numbered C.C.No.297 of 2010 and charge was framed under Section 409 I.P.C. for which the accused was found

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guilty. Therefore, the trial Court had imposed conviction and sentence which was confirmed by the appellate Court.

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Heard Sri Srikanth Reddy Ambati, learned counsel for the petitioner, Sri K.Anand Kumar, learned Additional Public Prosecutor for respondent No.1-state and Sri Ramakrishna Akurthi, learned counsel for respondent No.2.

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The parties are present in person before this Court and identified themselves with the Aadhar cards.

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Learned counsel appearing on behalf of the accused submits that after filing of the revision, the petitioner has paid the amount and the matter was settled between the parties. As such the complainant has filed implead petition stating that as the parties have compromised the matter, the same may be recorded and offence may be compounded.

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Whereas learned Additional Public Prosecutor submits that as the accused is charged under the offence punishable under Section 409 I.P.C. which is a non-compoundable offence, it cannot be compromised.

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On the other hand learned counsel for the accused submits that though Section 409 I.P.C. is not compoundable offence in view of the fact that the entire amount has been paid by the petitioner and parties have entered into compromise the offence can be compounded by recording the compromise. In support of his contention he placed reliance on Gian Singh v. State of Punjab¹ wherein it is held as under:

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1 2012 (10) SCC 303

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“ 57. 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

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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.”

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Learned counsel appearing on behalf of the accused further submits that even as per allegations in the complaint, the accused is not a public servant as such the charge framed under Section 409 I.P.C. has no application. Admittedly the petitioner is not a public servant. A bare reading of Section 408 I.P.C. shows that he will fall under Section 408 I.P.C. and the offence under the said section is compoundable in nature.

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Learned Assistant Public Prosecutor submits that in this case in view of the compromise between the parties at best the quantum of sentence can be reduced but the offence cannot be compounded. In support of his contention he relied on the judgment of the hon’ble Apex Court in Rajavelu v. State Rep. by the Inspector of Police passed in Criminal Appeal No.24 of 2021 arising out of SLP (Crl.)10813 of 2019 wherein it was held as under:

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“9. There can be no doubt that Section 320 of the Criminal Procedure Code, 1973 (“CrPC”) does not encapsulate Section 324 and 307 IPC under its list of compoundable offences. Given the unequivocal language of Section 320(9) CrPC which explicitly prohibits any compounding except as permitted

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under the said provision, it would not be possible to compound the appellant’s offences.”

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The accused is alleged to have committed an offence under Section 409 I.P.C. As rightly pointed out by learned counsel for the accused and as per the allegations in the charge sheet, the petitioner is working in a private chit fund company. The amounts due by him were paid and the matter is compromised. Taking into consideration the law laid down by Three Bench of the High Court in Gian Singh’s case (referred supra) wherein the Hon’ble Apex Court has observed that the Court has to consider whether it would be unfair or contrary to the interest of justice to continue the criminal proceedings despite settlement between the parties, this Court is of the view that as the entire amount is paid, interest of justice would be met if the offence is compounded.

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In view of the above discussion the compromise between the parties is recorded.

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Accordingly I.A.Nos.1, 2 and 3 are allowed. Consequently Criminal Revision Case is disposed of setting aside the conviction and sentence passed by the learned Magistrate which has been confirmed by judgment dated 27.10.2014 passed in in Crl.A.No.24 of 2013 by II Additional Sessions Judge, Kurnool, Adoni and the accused is acquitted.

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As a sequel, pending miscellaneous petitions, if any, shall stand closed.

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____________________________________ JUSTICE LALITHA KANNEGANTI

Date: 04.03.2021 IKN

THE HON’BLE SMT JUSTICE LALITHA KANNEGANTI

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CRIMINAL REVISION CASE No.2167 of 2014