Dismissed

Kumar @ Appaso Kallappa Kumasage v. the State of Maharashtra and Anr.

Bombay HC8 Mar 2017WP/335/2017

Case brief

AI extract

What is this about?

The court dismissed the petition seeking quashing of an FIR on grounds of settlement, holding that the court cannot exercise inherent jurisdiction when the first informant's affidavit entirely contradicts the police statement, rendering no lawful settlement established.

What did the court decide?

Petition for quashing of the FIR under Article 226 read with Section 482 CrPC dismissed.

Kumar @ Appaso Kallappa Kumasage Vs the State of Maharashtra… — Quashing and FIR | Bombay HC (2017)

crwp335

ssp

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELATE JURISDICTION

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WRIT PETITION NO.335 OF 2017

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Kumar @ Appaso Kallappa Kumasage
vs.

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The State of Maharashtra & Anr.

¶8

...Petitioner

¶9

...Respondents

¶10

Mr.Kuldeep Nikam for the Petitioner
Dr.F.R.Shaikh, APP for the respondent No.1
Mr.Shriram S. Chaudhari a/w Mr.Vaibhav Gaikwad for
respondent No.2

¶11

CORAM : A.S.OKA, &
 SMT.ANUJA PRABHUDESSAI, JJ.
 DATE : MARCH 8, 2017

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ORAL JUDGMENT: (PER A.S.OKA,J.)

¶13

1The submissions of the learned counsel

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appearing for the parties were heard on the earlier
date. The prayer in this petition under Article 226
of the Constitution of India read with section 482
of the Code of Criminal Procedure,1973 (for short
Cr.P.C.) is for quashing the FIR registered at the
instance of the second respondent for the offence
punishable under sections 392, 323, 324, 506 read
with section 34 of the Indian Penal Code as well as
sections 33 and 34 of the Maharashtra Money Lenders
Act,2014 and section 3 read with section 25 of the
Arms Act.

¶15

2In the statement of the second respondent who
is the first informant, it is stated that on 12th
August 2014 he had borrowed a sum of Rs.3,00,000/-
from the petitioner (who is shown as accused) for
his hotel business. It is alleged that while paying

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the sum of Rs.3,00,000/-, the second respondent
deducted a sum of Rs.15,000/- and paid him a sum of
Rs.2,85,000/-. It is alleged that the signatures of
the second respondent were obtained by the
petitioner on two blank cheques and two blank
receipts. It is alleged that towards principle
amount and interest, the second respondent paid a
sum of Rs.6,85,000/- to the petitioner. It is
alleged that the petitioner was demanding a sum of
Rs.5,00,000/- in addition to aforesaid amount.

¶18

3The alleged incident occurred at 11.00 p.m on
30th November 2016. It is stated that at that time,
the petitioner and two unknown persons visited the
house of the second respondent. The second
respondent was asked to accompany them. He was made
to sit in white coloured safari car. It is alleged
that the petitioner started asking the second
respondent as to when the amount will be paid by
him. He started assaulting the second respondent.
The vehicle was stopped near Ratna Hotel and the
petitioner took the second respondent to open space
behind the said hotel. It is alleged that the
petitioner assaulted him by his hand and by a stick
when he fell down. The allegation is that the
petitioner took a gun and at the gunpoint, he
threatened the second respondent that he would be
killed if the money was not paid. The allegation of
the second respondent is that cash in the sum of
Rs.10,000/- carried by him and a gold chain
weighing 15 gms was snatched by the petitioner.
Thereafter, the second respondent was taken to his

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home and in presence of his wife, the petitioner
gave a threat to him that if a sum of Rs.5,00,000/-
was not paid to him by Sunday, he would kill the
second respondent, his wife and his son. FIR about
the alleged incident was lodged on the very next day
on (1st December 2016).

¶21

4The prayer in this petition is for quashing the
FIR on the ground of settlement. It will be
necessary to make a reference to affidavit dated
2nd February 2017 filed by the second respondent
recording his no objection for quashing the FIR.
Paragraphs 4 to 6 of the said affidavit read thus:

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“4I say that the said FIR was filed by me
against the Petitioner solely due to my
misunderstanding against the Petitioner. I
say that due to the financial crunches and
due to the repeated request for repayment
from the Petitioner, I was mentally
disturbed and in such circumstances, and in a
complete misunderstanding I filed the said
FIR against the Petitioner. I say that I had
paid the amount of Rs.2,85,000/- (which is
mentioned in the present FIR) to the
Petitioner prior to filing of the FIR and the
Petitioner in-turn had accordingly returned
the cheques, stamp paper and receipts (as
mentioned in the said FIR) to me. I say that
I have recently realised that apart from the
said Rs.2,85,000/-, I also owed an
approximate amount of Rs.2 lakhs which I had

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borrowed from the petitioner from time to
time, prior to the said friendly loan of
Rs.2,85,000/-, during my financial crunches
and I have also realised that the Petitioner
was frequently requesting for the said
outstanding amount and not in respect of the
aforesaid Rs.2,85,000/- which is mentioned in
the FIR.

¶26

5I say that in fact the amount of
Rs.10,000/- and the gold chain as mentioned
in the present FIR was found immediately on
the next day of filing the present complaint
at my own residence. I say that as stated
above due to the friendly relations of the
Petitioner and myself after realizing the
said misunderstanding, the Petitioner has
decided to exempt me from paying the said
amount to him with an intention to regain and
re-live the friendly relations between us.
In such circumstances, all the financial
transactions between the Petitioner and
myself are mutually settled and closed.

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6I say that during the investigation my
statement u/s 164 of the Cr.P.C was also
recorded by the concerned Magistrate wherein
also I have duly stated that the said FIR is
lodged purely because of my misunderstanding
against the petitioner.”

¶28

5On plain reading of the statements made in

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paragraphs 4 and 5, it is apparent that the second
respondent has taken a somersault and has come out
with a case which is totally contrary to the
statement recorded by the police on the basis of
which the impugned FIR was registered. Now, he
claims that the blank cheques and blank receipts
were returned to him prior to filing of the FIR.
Now, the second respondent claims that in addition
to Rs.2,85,000/-, he has borrowed a sum of
Rs.2,00,000/- from the petitioner, and in fact, a
demand was made by the petitioner in respect of the
said amount.

¶32

6Accepting the statements made in the affidavit
as it is, it is apparent that the second respondent
has not come out with a case of any settlement.
Now, he wants to come before the Court and state
that the FIR was registered by him solely due to
misunderstanding with the petitioner.

¶33

7The Apex Court has repeatedly held that under
section 482 of the Cr.P.C, this Court has a power to
quash FIR in a non compoundable case on the ground
of settlement. Leading decision of the Apex Court
on the said aspect is in the case Gian Singh vs.
State of Punjab and another1. In the said decision,
the Apex Court has considered all its earlier
decisions on the point. It will be necessary to
make a reference to paragraphs 57 and 58 of the said
decision which read thus:

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1 (2012) 10 SCC 303

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“57Quashing 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 offence 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 proceedings 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.

¶38

58 Where the High Court quashes a criminal
proceeding having regard to the fact that the
dispute between the offender and the victim
has been settled although the 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

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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 wrongdoing that
seriously endangers and threatens the well-
being of the 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 the
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 the Prevention
of Corruption Act or the offences committed
by public servants while working in that
capacity, the settlement between the offender
and the 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
offencesarisingoutofmatrimony,
particularly relating to dowry, etc or the
family dispute, where the wrong is basically
to the victim and the offender and the victim
have settled all disputes between them
amicably, irrespective of the fact that such
offences have not been made compoundable, the

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High Court may within the framework of its
inherent power, quash the criminal proceeding
or criminal complaint or FIR if it is
satisfied that on the face of such
settlement, there is hardly any likelihood of
the 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.”

¶44

(underline supplied)

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8Paragraph 58 deals with the power of this Court
of quashing the proceedings on the ground that the
dispute between the offender and the victim has been
settled though the offence is not compoundable. The
Apex Court observed that in case of crimes which
have harmful effect on the public and consists of
wrong doing that seriously endangers and threatens
the well being of the society, 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. In paragraph 59, the
Apex Court held that powers under section 320 and
section 482 are separate and distinct. In paragraph
61, the Apex Court held thus:

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“61The position that emerges from the above
discussion can be summarised thus: the power

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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 planitude 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 FIR may be
exercised where the offender and the 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, decoity, 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 a serious impact on
society. Similarly, any compromise between
the victim and the offender in relation to
the offences under special statutes like the
Prevention of Corruption Act or the offences
committed by public servants while working in
that capacity, etc.; cannot provide for any

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basis for quashing criminal proceedings
involving such offences. But the criminal
quashing criminal proceedings involving such
offences. But the criminal cases having
overwhelmingly and predominatingly civil
flavour stand on a 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 whee the wrong is basically
private or personal in nature and the parties
have resolved their entire dispute. In this
category of cases, the High Court may quash
the criminal proceedings if in its
view,because of the compromise between the
offender and the victim, the possibility of
conviction is remote and bleak and
continuation of the criminal case would put
the 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 the wrongdoer and whether to secure the

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ends of justice, it is appropriate that the
criminal case is put to an end and if the
answer to the above question (s) is in the
affirmative, the High Court shall be well
within its jurisdiction to quash the
criminal proceeding.

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(underline supplied)

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9Paragraph 61 deals with the case where there is
compromise between the offender of the victim.

¶57

10We may also make a useful reference to another
decision of the Apex Court in case of State of
Rajasthan vs. Shambhu Kewat and another2. This
was a case where the Sessions Court had convicted
accused for an offence punishable under section 307
read with section 34 of the Indian Penal Code. They
were sentenced to undergo R.I for 10 years. In an
appeal against the order of conviction, it was
pointed out that the accused have entered into
compromise with the complainant. On the basis of
the compromise, appeal was allowed. The
observations made by the Apex Court are in the
context of the factual scenario before it.
Ultimately, the Apex Court by setting aside the
order in the Appeal passed by the High Court
remanded the appeal for reconsideration. What is
material is paragraph 15 of the said decision which
reads thus:

¶58

2 (2014) 4 SCC page 149

¶59

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“15We are not prepared to say that the
crime alleged to have been committed by the
accused persons was a crime against an
individual, on the other hand it was a crime
against the society at large. Criminal law
is designed as a mechanism for achieving
social control and its purpose is the
regulation of conduct and activities within
the society. Why section 307 IPC is held to
be non-compoundable, is because the Code has
identified which conduct should be brought
within the ambit of non-compoundable
offences. Such provisions are not meant
just to protect the individual but the
society as a whole. The High Court was not
right in thinking that it was only an injury
to the person and since the accused persons
(sic victims) had received the monetary
compensation and settled the matter, the
crime as against them was wiped off.
Criminal justice system has a larger
objective to achieve, that is safety and
protection of the people at large and it
would be a lesson not only to the offender,
but to the individuals at large so that such
crimes would not be committed by any one and
money would not be a substitute for the
crime committed against the society. Taking
a lenient view on the serious offence like
the present, will leave a wrong impression
about the criminal justice system and will

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encourage further criminal acts, which will
endanger the peaceful co-existence and
welfare of the society at large.”

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(underline supplied)

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11The Apex Court specifically observed that the
High Court was not right in thinking that it was
only an injury to the person and since the victims
have received monetary compensation, crime against
them is wiped out. The Apex Court observed that
money would not be a substitute for crime against
the society.

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12Thus, when jurisdiction of this Court is
invoked under section 482 of the Cr.P.C for quashing
the FIR on the ground of settlement, firstly, this
Court must be satisfied that there is a settlement
between the alleged wrong doer and the victims of
the alleged offence. It goes without saying that the
settlement must be of a dispute which is the root
cause of the alleged crime. Needless to add that
the settlement must be a lawful settlement within
the four corners of law. Only if the Court is
satisfied that there is such a settlement, the Court
will have to consider whether the case satisfies the
tests laid down in paragraph 61 of the decision of
Apex Court in the case of Gian Singh.

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13In case of a serious crime which can be said to
be a crime against the society at large or in case
of a heinous crime, the power under section 482 of

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the Cr.P.C cannot be exercised, even in case of a
settlement between the victims and the offenders, in
view of what is held in paragraph 61 of the
decision of the Apex Court in the case of Gian
Singh.

¶72

14By no stretch of imagination, the power under
section 482 can be exercised in a case when the
first informant comes out with a case which is
completely contrary to the case made out in the FIR.
When the first informant comes out with a case that
due to misunderstanding or due to fact that he or
she was under a mental tension that he registered
FIR, the power of this Court under section 482
cannot be exercised. The reasons are twofold. The
first is that the power of this Court under section
482 cannot be exercised to encourage the first
informant to back out from his or her version. The
second reason is that exercising the power of
quashing on the basis of such a stand taken by the
first informant will be completely contrary to the
legislative intent of conferring an inherent power
in this Court. In the present case, it is not the
case of the second respondent that his statement on
the basis of which the impugned FIR was registered
was incorrectly recorded. He is saying that he
filed FIR due to “misunderstanding”. He has made
statement in the affidavit filed in Court which are
completely contrary to his version in the statement
recorded by the police. The act of taking such
stand on oath is dishonest and is itself an abuse of
process of law.

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15Merely because the first informant has changed
his mind and merely because the first informant
states that he is no longer interested in
continuation of proceedings, it cannot be inferred
that there is lawful settlement between the accused
and the first informant as well as the victims of
the offence. In this case settlement is neither
pleaded not placed on record. In such circumstances,
the power under section 482 cannot be exercised.
The law is very well settled. The power under
section 482 has to be exercised very sparingly to
secure ends of justice or to prevent abuse of
process of law.

¶76

16The present case falls in this category where
the first informant by filing an affidavit has taken
a somersault and has come out with a case which is
completely different from his statement recorded by
police. The affidavit of the second respondent does
not spell out any lawful settlement.

¶77

17Hence, no case is made out for exercising
jurisdiction of this Court under section 482 of the
Cr.P.C.

¶78

(ANUJA PRABHUDESSAI,J.)(A.S.OKA,J.)

Kumar @ Appaso Kallappa Kumasage v. the State of Maharashtra and Anr.

Case brief

What is this about?

What did the court decide?

Kumar @ Appaso Kallappa Kumasage v. the State of Maharashtra and Anr.

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