Allowed

Nazer v. Ashokkumar

Kerala HC5 Jul 2013Crl.MC/1125/2013

Case brief

AI extract

What is this about?

The High Court allowed a petition under Section 482 Cr.P.C. to quash criminal proceedings. Relying on Gian Singh, the court held that given the out-of-court settlement amicable between parties in a commercial dispute involving Sections 406, 408, and 420 IPC, continuation would be an abuse of process and conviction remote.

What did the court decide?

Quashing of all further proceedings pending against the petitioner in C.C. No. 48/2011 of the Judicial First Class Magistrate Court-II, Punalur.

Nazer Vs Ashokkumar — Cheque Dishonour | Kerala HC (2013)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT:

¶3

THE HONOURABLE MR.JUSTICE V.K.MOHANAN

¶4

FRIDAY, THE 5TH DAY OF JULY 2013/14TH ASHADHA, 1935

¶5

Crl.MC.No. 1125 of 2013 ()

¶6

CR. NO. 213/1997 OF KOLLAM WEST POLICE STATION, KOLLAM DISTRICT.

¶7

PETITIONER/ACCUSED:

¶8

A.K. NAZER, S/O.MUHAMMED, AMBALAVAN HOUSE, KOOTTILANGADI, MALAPPURAM DISTRICT.

¶9

BY ADVS.SRI.P.SAMSUDIN, SMT.NIMA JACOB.

¶10

RESPONDENTS/DEFACTO COMPLAINANT & STATE:

¶11

1. ASHOK KUMAR K., S/O.KEVAL CHAND, NO. 18, SS, DEVAR, 3RD STREET, AYANAVARAM P OST, CHENNAI- 23, TAMILNADU.

¶12

2. SUSEELA KANWAR, CHANDRAPPA MUTHALI STREET , SOWKARPETT, CHENNAI 79, TAMILNADU.

¶13

3. STATE OF KERALA,

¶14

REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031. (IN CRIME NO.213/1997 OF KOLLAM WEST POLICE STATION, KOLLAM).

¶15

R1 & R2 BY ADV. SRI.A.M.BABU. R3 BY PUBLIC PROSECUTOR MR.RAJESH VIJAYAN.

¶16

THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 05-07-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

¶17

rs.

¶18

Crl.MC.No. 1125 of 2013

¶19

APPENDIX

¶20

PETITIONER'S ANNEXURES:-

¶21

ANNEX.A1:TRUE COPY OF THE FIR CRIME NO. 213/1997 OF KOLLAM WEST POLICE STATION.

¶22

ANNEX.A2:TRUE COPY OF THE CHARGE IN CRIME NO. 213/1997 OF KOLLAM WEST POLICE STATION.

¶23

ANNEX.A3:TRUE COPY OF THE EXTRACT OF THE PROCEEDINGS OF THE BOARD OF DIRECTORS OF THE 2ND RESPONDENT HELD OF 26-05-2012.

¶24

ANNEX.A4:TRUE COPY OF THE DISABILITY CERTIFICATE ISSUED BY THE DISTRICT MEDICAL BOARD,MANJERI DTD. 20/06/1995.

¶25

ANNEX.A5:THE TRUE COPY OF THE COMPOUNDING PETITION FILED BY THE 1ST RESPONDENT AND THE PETITIONER IN CC. 48/2011 OF THE FILES OF JUDICIAL FIRST CLASS MAGISTRATE COURT -II, PUNALUR

¶26

ANNEX.A6:THE TRUE COPY OF THE DEPOSITION GIVEN BY THE 1ST RESPONDENT BEFORE THE COURT.

¶27

RESPONDENT'S ANNEXURES:- NIL.

//TRUE COPY//

P.S. TO JUDGE.

rs.

V.K.MOHANAN, J.

Crl.M.C.No.1125 of 2013

¶33

Dated this the 5^th day of July, 2013.

¶34

O R D E R

¶35

The above petition is filed under Section 482 of the Criminal Procedure Code (for short 'Cr.P.C.') at the instance of the petitioner, who is 1^st accused in C.C.No.48/2011 of the Judicial First Class Magistrate Court-II, Punalur, which is a case instituted upon the police report [in Crime No. 213/1997 of Kollam West Police Station] for the offences punishable under Sections 406, 408, 420 r/w 34 of I.P.C. with a prayer to quash all further proceedings in the above calender case, as the matter is settled out of court.

¶36

Heard the learned counsel for the petitioner as well as the 1^st and 2^nd respondents. I have also heard the learned Public Prosecutor.

¶37

The prosecution allegation against the

¶38

¶39

Crl.M.C.No.1125 of 2013

¶40

petitioner/1^st accused as well as the other accused is that they availed a hire purchase facility of 1,10,000/- from the 2<sup>nd</sup> respondent for purchasing a Mini lorry bearing registration No.KL-10-6690 but the petitioner repaid only 48,400/- and thereafter failed to remit the equal monthly instalments and violating the terms of the hire purchase agreement, the petitioner transferred the vehicle to the 2^nd accused and thereby deceived the de facto complainant and caused a loss to the tune of `1,22,100/- and thus they committed the offences punishable under sections 406, 408, 420 r/w 34 of IPC. Now the case of the petitioner is that the matter is settled out of court between the petitioner and the 1^st and 2^nd respondents as evident from Annexure A5 compounding petition, which was filed before the court below, but the same has not been acted upon by the learned Magistrate. But the learned Magistrate is proceeding with the trial of the case in C.C.No.48/11. The 2^nd respondent in the above M.C. entered appearance through Adv.A.M.Babu and the learned counsel submitted

¶41

¶42

Crl.M.C.No.1125 of 2013

¶43

that as the case is settled out of court, the 2^nd respondent has no objection in dropping the proceedings pending against the petitioner. The above submission of the counsel for the 2^nd respondent is recorded.

¶44

The learned counsel for the petitioner submitted that during the pendency of the above case, the matter is settled amicably between the parties to the dispute which is the subject matter of the above case. Therefore, the continuation of the proceedings in the above case is abuse of process of law and proceedings.

¶45

The learned counsel for the 1^st and 2^nd respondents, who on the basis of specific instruction received from the respondents submitted that the above respondents, who are the de facto complainants do not intends to proceed any further against the petitioner and they have no grievance against the accused.

¶46

I have carefully considered the above submissions of the respective counsel. I have verified the documents and materials produced along with the above

¶47

¶48

Crl.M.C.No.1125 of 2013

¶49

petition. In the given facts and circumstances of the case and especially in the light of the settlement arrived between the parties to the dispute, the learned Public Prosecutor has also no objection in allowing the above petition.

¶50

Having regard to the facts and circumstances involved in the case, it can be seen that the offences involved in the above case are only under sections 406, 408, 420 r/w 34 of I.P.C. which are more or less personal in nature and no public interest is involved. It is pertinent to note that though such offences are involved, the real parties to the dispute approached this Court after having amicably settled the matter. From the submission made by the counsel for the 1^st and 2^nd respondents, it appears to me that the de facto complainants have no further grievance against the petitioner/accused in the light of the settlement arrived by them. In this juncture, it is relevant to note the decision of the Honourable Apex Court reported in Gian Singh v. State of Punjab [2012(4) KLT

¶51

¶52

Crl.M.C.No.1125 of 2013

¶53

108(SC)]. In Gian Singh's case, the Supreme Court has held as follows:-

¶54

“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 S.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.”

¶55

It is further held as follows:-

¶56

“......... 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, mercandile, 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

¶57

¶58

Crl.M.C.No.1125 of 2013

¶59

criminal case despite full and complete settlement and compromise with the victim........”

¶60

According to me, in the light of the facts and circumstances involved in the present case and particularly in view of the settlement arrived in the present case, the dictum laid in the above decision is applicable in the present case. According to me, as the parties to the dispute settled the issues amicably, it is the duty of this Court to promote and encourage such settlement, instead of compelling the parties to go on with the dispute. It is pertinent to note that since the matter is settled out of court, in the event of proceeding with the trial, there would not have any fruitful prosecution resulting the conviction of the accused, rather the net result would be sheer waste of judicial time and abuse of process of the court and proceedings. Thus, according to me, following the decisions cited supra, this Criminal M.C. can be allowed granting the relief as sought for.

¶61

In the result, this Crl.M.C. is allowed, quashing all

¶62

¶63

Crl.M.C.No.1125 of 2013

¶64

further proceedings pending against the petitioner in C.C.No.48/2011 of the Judicial First Class Magistrate

¶65

Court-II, Punalur.

¶66

Sd/- V.K.MOHANAN, Judge

¶67

ami/

¶68

//True copy//

¶69

P.A. to Judge

Nazer v. Ashokkumar

Case brief

What is this about?

What did the court decide?

Nazer v. Ashokkumar

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Ibrahim Vs State of Kerala

Libi Vs Jayan

Usha George Vs State of Kerala

Shajahan Vs State of Kerala

P.Rahim Vs E.P.Jayarajan

Sandeep Vs State of Kerala