Dismissed

Sam Zal Bastwaal, v. The State of Andhra Pradesh

Telangana HC4 Apr 2013CRLP/634/2009

Case brief

AI extract

What is this about?

The High Court dismissed a petition under Section 482 Cr.P.C. seeking to quash criminal proceedings for cheating. It held that the accused failed to establish a compromise or settlement, distinguishing this case from precedents where settlements were proven.

What did the court decide?

Criminal petition filed under Section 482 Cr.P.C. to quash proceedings in CC No.650/2002 is dismissed; miscellaneous petitions stand closed.

Sam Zal Bastwaal, Vs The State of Andhra Pradesh — Cheque Dishonour | Telangana HC (2013)

¶1

*** HONOURABLE SRI JUSTICE C.PRAVEEN KUMAR**

¶2

+ Crl.P. NO. 634/2009

¶3

% 4-4-2014

¶4

#1.Sarosh Sam Bastawala and another

¶5

..Petitioners Vs. $ State of A.P., represented by Asifnagar Police Station, Hyderabad through Public Prosecutor, High Court of A,.P., Hyderabad, and others.

¶6

..Respondents

¶7

! Counsel for the petitioners: Petitioner No.2 appeared in person Counsel for the first respondent: Public Prosecutor

¶8

< Gist:

¶9

>Head Note 1. (2005) 3 SCC 299 2AIR 2005 SC 757 3 (2008) 9 SCC 677 4 (2012) 10 SCC 303 5(2003) 4 SCC 675 6(2008) 16 SCC 1 7 (2012) 11 SCC 321

¶10

THE HON’BLE SRI JUSTICE C.PRAVEEN KUMAR

¶11

Crl.P.No.634/2009

¶12

ORAL ORDER:

¶13

This criminal petition is filed by A-1 and A-2 under Section 482 Cr.P.C., to quash the proceedings in CC No.650/2002 on the file of VI Additional Metropolitan Magistrate, City Criminal Courts, Hyderabad, which was taken on file for an offence punishable under Section 420 IPC. Originally, only the State represented by Public Prosecutor was made respondent. Subsequently, respondents 2 to 7 were impleaded as respondents pursuant to an order dt. 20-3-2009 passed in Crl.M.P.No.1434/2009.

¶14

2. The allegations in the charge sheet are as follows: The first petitioner, Sam Zal Bastawala, is the father of the second petitioner by name Sarosh Sam Bastawala. Both of them are alleged to have deceitfully collected lakhs of rupees under the cover of registered/unregistered agreements of sale in respect of land covered under S.Nos.218 and 220 of Lingampally near B.H.E.L. Ramachandrapuram by using forged and fabricated documents. A charge sheet was filed in respect of three crimes registered against the accused. (1) Cr.No.92/2000 was registered on 16-5-2000 on the basis of a report given by respondents 2 to 4 for an offence under Section 420 IPC. According to them, the accused collected Rs.15 lakhs by

¶15

entering into an agreement of sale dt. 15-10-1998 showing photostat copies of certain documents and land acquisition gazette of the year 1961 in respect of the land covered by S.No.218. On enquiry by respondents 2 to 4, it came to light that the accused are not the owners of land in question and the said land was sold by the accused to three other parties. (2) The second case relates to Cr.No.98/2000 registered on the basis of a report given by respondents 5 and 6 herein against the accused which was registered for an offence punishable under section 420 IPC. It is stated that the accused have collected Rs.10 lakhs under the cover of an agreement of sale in respect of Ac.1-20 in S.No.220 and 2000 sq.yards in S.No.218 of Ramachandrapuram. Their enquires revealed that the land belong to the police department and that the accused have sold the said land under a cover of registered and unregistered agreement and deeds in favour of Shravan Kumar Gupta; Surender Singh; Ram Babu; Ashok Goud and Papi Reddy. When the respondents 5 and 6 protested, the petitioners/accused issued a cheque for Rs.9 lakhs, which, when presented was dishonoured. (3) The third incident is in respect of Cr.No.102/2000 registered for an offence punishable under Section 420 IPC on the basis of a report given by Respondent No.7 herein. It is alleged that accused No.1, Sam Zal Bastawala deceitfully collected Rs.10 lakhs from him under the cover of registered/unregistered deeds dt. 5-5-99 and 6-5-99 for sale of 2100 sq.yards of land in S.No.220/A. On protest, the cheque which was given by the accused, was dishonoured. The unofficial respondents herein also came to know that the accused sold the same land to various people and thus requested to take legal action.

¶16

3. In respect of the above crimes, the police investigated into the matter and during the course of investigation, the informants and their

¶17

witnesses who are co-victims were examined and the documents issued pursuant to the said crimes were also collected. The investigation further disclosed that Town Ship Administrator of BHEL through his letter dt. 26-9-2001 furnished copies of Government (Industries Department) Gazette dt. 30-12-1961 and proceedings dt. 28-6-2001 of the Joint Collector of Medak District indicating that the land fraudulently sold by the accused actually belong to BHEL and Police Department and that the accused forged and fabricated certain documents of BHEL to obtain orders from the Mandal Revenue Officer and got entries made in the revenue records with the help of those forged and fabricated documents. Thus, the investigation done by the police establish that the accused have committed an offence punishable under Sec.420 IPC. Basing on the result of investigation, a charge sheet was filed, which was taken on file as CC No.650/2002.

¶18

4. The petitioner No.2 appeared in person. The petitioner No.2 mainly contends that even accepting the allegations made in the charge sheet to be true, no offence under Section 420 IPC is made out as the issue involved is purely civil in nature. According to him, there was no inducement by the accused as the accused purchased the land after due verification of the records. It is further contended that the charge sheet does not disclose any dishonest intention from inception. He would contend that the amount alleged to have been taken from the respondents was repaid and the same is borne out from the record. Taking shelter from the ratio laid down in RUCHI AGARWAL V. AMIT KUMAR AGARWAL^[1] , MOHD. SHAMIM V. SMT. NAHID BEGU M^[2] , NIKHIL MERCHANT v. CENTRAL BUREAU OF INVESTIGATION^[3] , and GIAN SINGH V. STATE OF

¶19

PUNJAB^[4] the petitioner No.2 strenuously contended that the proceedings cannot survive and the same have to be quashed as bank guarantee was invoked and entire amount was paid to the informants.

¶20

5. On the other hand, the learned Public Prosecutor representing the State would contend that a fair reading of the charge sheet do disclose commission of an offence punishable under Section 420 IPC. Basing on the instructions received by him, he submits that there was no settlement/compromise between the parties and that there is any amount of dispute with regard to the money paid by the accused to the respondents/informants.

¶21

5-A. In spite of service of notice on R-2, R-3, and R-7, there is no representation on their behalf. Notices sent to R-4,R-5 and R-6 were not yet returned served.

¶22

6. The material placed before the Court would indicate that the petitioners herein filed Crl.M.P.No.5773/2007 under Section 239 Cr.P.C., before the Court of VI Additional Chief Metropolitan Magistrate, Hyderabad, seeking discharge. The plea with regard to return of money to the informants and entering into an agreement with the accused was also raised before the learned Magistrate. The learned Magistrate after referring to the material available on record, while dismissing the petition, held that there is no documentary evidence to show that the accused entered into a compromise or settlement and that the accused executed registered deeds in favour of the informants. The said order was challenged by way of criminal revision vide Crl.R.P.No.207/2008 on the file of Metropolitan Sessions Judge, Hyderabad. By his judgment dt. 19-12-2008, the learned Sessions Judge dismissed the said revision.

¶23

7. A perusal of the order of the learned Sessions Judge would indicate that the cases which have been referred to above ie., RUCHI AGARWAL (1) and MOHD. SHAMIM (2 supra) were also placed before the learned Sessions Judge apart from contending that the ingredients to constitute an offence of cheating are not made out. The learned Sessions Judge while dismissing the said application held that though Xerox copies of registered sale deeds executed by A-1 and A-2 in favour of informants were produced, but the accused failed to file any sale deed in favour of informants in respect of the land in issue. In the absence of any actual proof of subsequent settlement, the learned Sessions Judge felt that these are all matters which have to be considered during trial and the accused have to impress the trial court on the aspect of subsequent settlement of the entire subject matter by producing necessary oral and documentary evidence before the court.

¶24

8. The allegation that the land belonging to BHEL and Police Department was sold by the accused to different persons and when protested the accused repaid by way of cheques, which when presented got bounced, would show that there was dishonest intention right from inception, thereby, prima facie, constituting an offence under Section 420 IPC.

¶25

9. The trial court as well the revisional court have rightly held that the allegations made in the charge sheet would prima facie constitute an offence of cheating. The said finding of both the courts needs no interference at this stage. The documents which are sought to be relied upon by the accused can be used as his defence during trial and not in an application under Section 482 Cr.P.C.,

¶26

10 The only ground urged by the petitioner No.2 is that in view

¶27

of the NIKHIL MERCHANT (3 supra) and GIAN SINGH (4 supra), the proceedings cannot be continued as the respondents have received the entire amount from the petitioners/accused.

¶28

11. Section 320 Cr.P.C., categorizes certain offences as compoundable, certain other offences as compoundable with the permission of the Court. Offences under special statutes are not covered under Section 320 Cr.p.C., Section 482 Cr.P.C., saves the inherent power of the High Court to prevent abuse of process of any court or otherwise to secure the ends of Justice. The said provision is an over riding provision as it starts with an non-obstinate clause. These words leave no manner of doubt that none of the provisions of the Code limits or restricts the inherent power. The said power cannot be resorted to if there is a specific provision in the Code for the redressal of the grievance of the affected party. As held by the Apex Court, the inherent power has to be exercised very sparingly, and cautiously and with an object to prevent abuse of process of any Court or otherwise to secure the ends of justice.

¶29

12. In B.S. JOSHI V. STATE OF HARYANA^[5] , the husband was one of the appellants while the wife was respondent no. 2 in an appeal before the Apex Court. They were married on 21.7.1999 and were living separately. At the instance of wife, a case was registered against the husband under Sections 498-A,323 and 406, IPC. Pending the case, the disputes between the husband and wife and their family members were settled. The wife filed an affidavit stating that the dispute between herself and her husband had been finally settled and they have agreed for mutual divorce. Basing on an affidavit given by the wife, an application under Section 482 Cr.P.C., was filed for quashing the said proceedings. The High Court dismissed the said

¶30

application on the ground that offences under Sections 498-A and 406 IPC were non-compoundable and the inherent powers under Section 482 of the Code could not be invoked to by-pass Section 320 Cr.P.C., While dealing with the said situation, the Apex Court in paras 14 and 15 held as under:

¶31

“14. There is no doubt that the object of introducing Chapter XX- A containing Section 498-A in the Indian Penal Code was to prevent torture to a woman by her husband or by relatives of her husband. Section 498-A was added with a view to punishing a husband and his relatives who harass or torture the wife to coerce her or her relatives to satisfy unlawful demands of dowry. The hypertechnical view would be counterproductive and would act against interests of women and against the object for which this provision was added. There is every likelihood that non-exercise of inherent power to quash the proceedings to meet the ends of justice would prevent women from settling earlier. That is not the object of Chapter XXA of the Indian Penal Code.

¶32

15. In view of the above discussion, we hold that the High Court in exercise of its inherent powers can quash criminal proceedings or FIR or complaint and Section 320 of the Code does not limit or affect the powers under Section 482 of the Code.”

¶33

13. In RUCHI AGARWAL (1 supra), the Apex Court was dealing with the situation where the petitioner therein filed a compromise petition before the Family Court admitting receipt of Stridhana and maintenance in lump sum and that she will not claim any maintenance in future. She also undertook to withdraw all proceedings, civil and criminal, filed by her against the respondents within one month of the compromise deed. In the said compromise, the husband agreed to withdraw his petition filed under Section 9 of the Hindu Marriage Act and also agreed to give a consent divorce as sought for by the petitioner therein. Based on the said compromise, the petitioner therein ie., Ruchi Agarwal obtained a divorce as desired by her and in partial compliance she withdrew the criminal case filed under Section 125 Cr.P.C., In those circumstances, a quash petition was filed before the High Court which was partly allowed on the ground of territorial jurisdiction against which the matter was carried to

¶34

the Supreme Court. The main plea taken before the Supreme Court was that the compromise deed was obtained by threat and coercion and that she did not receive lump sum amount as maintenance and also stridhana properties. Taking into consideration the events which took place after compromise deed, the Apex Court held that the criminal complaint was filed only with a view to harass the accused and held that it would be an abuse of process of court if the criminal proceedings are allowed to continue.

¶35

15. In MANOJ SHARMA V. STATE^[6] , the Apex Court was dealing with a situation as to whether the first information report which was registered for offences under Sections 420, 468, 471, 120-B r/w 34 IPC can be quashed either under Section 482 Cr.P.C., or under Art.226 of the Constitution, when the accused and the complainant had compromised and settled the matter between themselves. After referring to various authorities, the Apex Court held that the High Court’s refusal to exercise its jurisdiction under Art. 226 of the Constitution for quashing the criminal proceedings cannot be supported since the dispute between the accused and the complainant was in private nature and when once the complainant decided not to pursue the matter any further, the High Court could have taken a more pragmatic view of the matter and quash the said proceedings.

¶36

16. In NIKHIL MERCHANT (3 supra), a company by name, M/s. Neemuch Emballage Ltd., Mumbai committed default in repayment of loan granted by Andhra Bank. The bank filed a suit for recovery of the amount and also filed a complaint against the company, its Managing Director and the officials of Andhra Bank for various offences under Sections 120-B read with Sections 420, 467, 468, 471 of the IPC read with Sections 5(2) and 5(1)(d) of the Prevention of Corruption Act,

¶37

1947 and Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988. The suit filed for recovery of the amount ended in a compromise as the defendants therein agreed to pay the amount due as per the schedule mentioned in the consent terms. One of the clauses in the said agreement refers to withdrawal of claims made against each other. In view of the said clause, accused No. 3 in the said case filed an application for discharge. Rejection of the said application led to the filing of a petition before the Bombay High Court. One of the contentions raised in the said case was that in view of the settlement arrived at between the accused and the company, continuation of proceedings are unreasonable. As against the dismissal of said application the accused approached the Apex Court. Since the dispute between the company and the bank have been set at rest on the basis of the compromise arrived at between the parties, whereunder the dues of the bank have been cleared and the dispute involved has overtones of a civil dispute with certain criminal facets, the Apex Court held that it is a fit case where technicalities should not be allowed to stand in the way of quashing the criminal proceedings since the continuance of the proceedings after the compromise arrived at between the parties would be a futile exercise.

¶38

17. Disagreeing with the view taken in B.S.JOSHI (5 supra), NIKHIL MERCHANT (3 supra) and MANOJ SHARMA (6 supa), a Bench of two-Judges referred the case of GIAN SINGH (4 supra), to a Larger Bench. While affirming the view expressed in earlier cases, the Apex Court in GIAN SINGH’s case (4 supra) summarized the ratio involved as under:

¶39

“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

¶40

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.

¶41

18. Later in ASHOK SADARANGANI V. UNION OF INDIA^[7] ,

¶42

the Apex Court in exercise of its extra-ordinary jurisdiction under Art. 142 of the Constitution of India quashed the criminal proceedings when continuance after compromise would amount to abuse of process of court but held that such jurisdiction would be exercised sparingly and with circumspection having regard to the facts and circumstances of each case.

¶43

19. A close look at the above decisions would clearly indicate that in all the cases, parties to the dispute have arrived at a compromise or have settled their disputes and either made suitable applications or at least brought to the notice of the Court in some form or the other about the settlement between them, thereby seeking closure of the case. As noted above, in B. S. JOSHI’s case (5 supra), the wife filed an affidavit for quashing all the proceedings in view of the settlement arrived at between the wife and the husband. Similarly, in MANOJ SARMA (6 supra), there was a settlement between the parties and pursuant to the said settlement, application was filed before the Court for quashing of the proceedings pursuant to the compromise arrived at between them. Even in RUCHI AGARWAL (1 supra), compromise was arrived at and pursuant to the compromise, the petitioner, Ruchi Agarwal, obtained divorce by consent but however, failed to withdraw the criminal case initiated at her instance. In those circumstances, the Supreme Court quashed the criminal proceedings holding that it would amount to abuse of process of court and that the criminal complaint was filed only with a view to harass the accused therein. I n NIKHIL MERCHANT (3 supra), the Apex Court was dealing with the situation where the Bank received the amount due from the accused and after receiving the said amount, steps were being taken for getting the matter closed due to compromise arrived at between the parties. In the case on hand, no document is filed to show that the parties have either compromised or settled their dispute. The petitioners mainly argued that a sum of Rs.15 lakhs was paid by invoking bank guarantee and the said amount which was paid was only towards discharge of the amount received by them. The said fact of payment of money to the respondents and receipt of same towards purchase of land was not established. There is no iota of material to

¶44

substantiate the same. The situation could have been different had the accused along with the complainant filed a memo showing receipt of money or at least informed the investigating agencies with regard to settlement between the parties. Since the respondents did not choose to appear before this Court in spite of service of notice, the petitioners requested this court to presume that the respondents are not interested as they have received the money. I am afraid, the said request cannot be accepted for the reason that the learned Public Prosecutor who got instructions informed the Court that there was no compromise/settlement between the parties. Therefore, the situation in the cases which are referred to above is totally different to the instant case. The principles of law enunciated from B.S.JOSHI to ASHOK SADARANGANI may not apply to the facts on hand.

¶45

20. In fact, the petitioner No.2 who argued the matter in person admitted that there is no document to show that the respondents/informants had agreed for a compromise or settlement. Such being the position, the argument of the petitioner No.2 that the amount alleged to have been paid by the petitioners was towards repayment of sale consideration received by them cannot be accepted. The facts in the instant case being different from the cases referred to above, the principles of law enunciated therein will not apply to the present case. Even the orders passed by the two courts do not indicate existence of any oral or written agreement or settlement between the parties.

¶46

21. For the aforesaid reasons, the Criminal Petition filed under Section 482 Cr.P.C., to quash the proceedings in CC No.650/2002 on the file of VI Additional Metropolitan Magistrate, City Criminal Courts, Hyderabad, is hereby dismissed. The Miscellaneous Petitions, if any, shall stand closed.

¶47

C. PRAVEEN KUMAR, J.

¶48

Date: 04.04.2013.

¶49

KMR

¶50

NOTE: LR COPY TO BE MARKED

¶51