J. RAMESH KAMATH & ORS. versus MOHANA KURUP & ORS.

15. A perusal of the above determination, leaves no room for any doubt, that this Court crystalised the position in respect of the powers vested in the High Court under Section 482 of the Criminal Procedure Code, to quash criminal proceedings. It has now been decisively held, that the power vested in the High Court under Section 482 of the Criminal Procedure Code, is not I imited to quashing proceedings within the ambit and scope of Section 320 of the Criminal Procedure Code. The thrce- Judge Division l3ench in the above case, clearly expounded, that quashing of criminal proceedings under Section 482 of the Criminal Procedure Code, could also be based on settlements between private parties, and could also on a compromise between the offender and the victim. Only . that, the above power did not extend to crimes against the society. It is also relevant to mention, that the jurisdiction vested in the High Court under Section 482 of the Criminal Procedure Code, for quashing criminal proceedings, was held to be exercisable in criminal cases having an overwhelming and predominatingly civil flavour, particularly offences arising from commercial, financial, mercantile, civil. partnership, or such like transactions. Or even offences arising out of matrimony relating to dowry etc. Or family disputes where the wrong is basically private or personal. In all such cases, the parties should have resolved their entire dispute by themselves, mutually.

16. The question which emerges for our consideration is, whether the allegations levelled in the complaint against respondent nos. I to 3, would fall within the purview of the High Court, so as to enable it to quash the same, in exercise of its jurisdiction under Section 482 of the Criminal Procedure Code?

17. We shall now venture to determine the above issue. A perusal of the complaint on the basis of which criminal prosecution came to be initiated against respondent nos. I to 3 reveals, that the accused persons were described as office bearers of 'the Association', during the period from 2004 to 2008. During the course of hearing, it was not disputed, that at the relevant time, respondent no. I – Mohana Kurup was the President of 'the Association'; respondent no.2 — Raveendran was the Secretary of 'the Association'; and respondent no.3 – Sayed was the Treasurer of the Association. It was alleged, that during their tenure, as office bearers of the State Committee of 'the Association', they had exclusive access to the funds of'the Association'. They, at their own, managed the funds, for and on behalf of'the Association'. Consequent upon their resignation in 2008, when an ad hoc Committee took up charge of the State Committee, it discovered serious misappropriation of funds of the State Committee, which were in the name of the State Committee, and were not accounted for.

Even the account books maintained by the State Committee, made no reference to the receipt of such amounts. A specific reference was made to Mis Micro Labs Ltd., Bangalore, which paid a sum ofRs.19,00,000/- two demand drafts being D.D.No.718573 and D.D.No.718574 in the sum of Rs.9,50,000/- each, drawn on the Canara Bank, both dated 17 .04.2007. It was also asserted in the complaint, that 'the Association' issued two receipts dated 30.04.2007 and 15.05.2007 in acknowledgement of the receipt of the said amounts. It was alleged, that the said amount was never incorporated in the account c c books of 'the Association'. It was also alleged, that respondent nos. I to 3 dishonestly misappropriated the said amount to themselves, in violation of bye-laws and other regulations/directions of the State Committee, by creating false and fictitious accounts, by altering, destroying and mutilating the original accounts of the State Committee, with a willful intention to obtain illegal financial gains, and to defraud the State Committee.

It is also relevant to mention, that consequent upon completion ofinvestigation, the chargesheet dated 22.03.2009, filed against respondent nos. I to 3, stated thus:- "The accused persons being the office bearers of the State Committee, All Kerala Chemists & Druggists Association, in furtherance of their common intention to obtain illegal financial gain conspired conjointly and cheated the Association and its members by misappropriating the funds given by various drug companies to AKCDA functioning near South Railway Station, Ernakulam during the period from 17.04.2007 to 11.04.2008. The Demand Drafts and Cheques received were not credited in the account of AKCDA. The accused falsified the accounts of AKCDA and unauthorisedly opened accounts in South Malabar Gramin Bank, Palakkad Branch and ICICI Bank, Edapgally Branch and credited the amounts in the said accounts. The DD's and cheques received were encashed in the aforesaid accounts on various dates and an amount of Rs.80.00.000/- was dive1ied for their own use. The accused thereby cheated the members and the association and committed criminal breach of trust. The accused also committed the offence alleged." (emphasis is ours)

18. In the above view of the matter, we are satisfied that the allegations levelled against respondent nos. I to 3 were of a nature, which could not be treated as purely ofa personal nature. We are also astonished, that the complainants, who are arrayed in the present appeal as respondent nos.4 to 7 affinned (in the compounding petition) that "no misappropriation of the amounts of All Kerala Chemists and Druggists Association is committed by the petitioners/accused persons". We are also amazed, that respondent nos.8 and 9 herein, who were the General Secretary and the Treasurer respectively of the Association, at the time of filing of the compounding petition, confirmed the stand adopted by the complainants, in the compounding petition. The accusations levelled against respondent nos. I to 3, in our considered view, do not pertain to a dispute which can be described as purely of a personal nature. It is also not possible for us to acknowledge the position adopted by the complainants, and the then members of the Association, that no misappropriation had been committed by the accused. We cannot appreciate how such a statement could have been made after the investigation had been completed, and charges were framed, which were pending trial before a court of competent jurisdiction.

19. We are of the view, that the basis on which the impugned order was passed, was incorrectly determined as of a personal nature. Additionally, the accusations were not of a nature which can be classified by this Court, as were amenable to be quashed, under Section 482 of the Criminal Procedure Code.

20. To be fair to the learned counsel for respondent Nos. 1to3, we may also refer to Narinder Singh vs. State of Punjab, (2014) 6 SCC 466, wherein one of the offences for which the accused was proceeded against was under Section 307 of the Indian Penal Code. It was submitted, that even for such criminal offences, a Court of competent jurisdiction, under Section 482 of the Criminal Procedure Code, could quash the criminal proceedings. Reference in this behalf was made to the conclusions drawn by this Court in paragraphs 29.6 and 29.7, which are extracted hereunder: "29.6 Offences under Section 307 JPC would fall in the category of heinous and serious offences and therefore are to be generally treated as crime against the society and not against the individual alone. However, the High Court would not rest its decision merely because there is a mention of Section 307 !PC in the FIR or the charge is framed under this provision. It would be open to the High Court to examine as to whether incorporation of Section 307 IPC is there for the sake of it or the prosecution has collected sufficient evidence, which if proved, would lead to proving the charge under Section 307 JPC. For this purpose, it would be open to the High court to go by the nature of injury sustained, whether such injury is inflicted on the vital/delegate parts of the body, nature of weapons used, etc. Medical report in respect of in juries suffered by the victim can generally be the guiding factor. On the basis of this prima facie analysis, the High court can examine as c c 1-1 to whether there is a strong possibility of conviction or the chances of conviction are remote and bleak. In the former case it can refuse to accept the settlement and quash the criminal proceedings whereas in the latter case itwould be permissible for the High Court to accept the plea compounding the offence based on complete settlement between the pai1ies. At this stage, the cou11 can also be swayed by the fact that the settlement between the pa11ies is going to result in harmony between them which may improve their future relationship. 29.7 While deciding whether to exercise its Rower under Section 482 of the Code or not, timings of settlement play a crucial role. Those cases where the settlement is arrived at immediately after the alleged commission of offence and the matter is still under investigation, the High cou11 may be liberal in accepting the settlement to quash the criminal proceedings/investigation. It is because of the reason that at this stage the investigation is still on ancj_even the charge-sheet has not been filed. Likewise, those cases where the charge is framed but the evidence is yet to sta11 9r the evidency is still at infancy stage, the High court can show benevolence in exercising its powers favourably, but after prima facie assessment of the circumstances/material mentioned above. On the other hand, where the prosecution evidence is almost complete or after the conclusion of the evidence the matter is at the stage of argument, normally the High Court should refrain from exercising its power under Section 482 of the Code, as in such cases the trial court would be in a position to decide the case finally on merits and to come to a conclusion as to whether the offence under Section 307 IPC is committed or not. Similarly, in those cases where the conviction is already recorded by the trial cou11 and the matter is at the appellate stage before the High Court, mere compromise between the parties would not be a ground to accept the same resulting in acquittal of the offender who has already been convicted by the trial com1. Here charge is proved under Section 307 IPC and conviction is already recorded of a heinous crime and, therefore, there is no question of sparing a convict found guilty of such a crime." (emphasis is ours)

21. It is not possible for us to accept the submissions advanced at the hands of the learned counsel for respondent nos. I to 3, on the basis of the observations extracted hereinabove. In the above judgment, this Court was of the view, that it would be open to the High Court to examine, as to whether there was material to substantiate the charge under Section 30"/ of the Indian Penal Code, and also, to detem1ine whether the prosecution had collected sufficient evidence to substantiate the said charge. And in case sufficient evidence to sustain the charges did riot emerge, it would be open to the High Court to quash the proceedings. We are of the view, that the instant judgment had no relevance, to the facts and circumstances of this case. Herein, the investigation has been completed, and the final repo1i was filed before the Chief Judicial Magistrate, Ernakulam, on 22.03.2009. More than 6 years have gone by since then. It is not the case of the accused, that the final repo1t does not contain adequate material to substantiate the charges. J .Ramesh Kamath, appellant i10. l herein, has been cited as charge witness no.5; Giri Nair- appellant No.2 herein, has been cited as charge witness no.6; and Antony Tharian :– appellant no.3 herein, has been cited as charge witness no.18. It is their contention, that the charges are clearly made out on the basis of documentary evidence. We would say no more. But that, the inferences are those of the appellants, and not ours. The eventual outcome would emerge from the evidence produced before the. trial court.

22. For the reasons recorded hereinabove, we allow the appeal and set aside the impugned order passed by the High Court. CC No.90 of2009 is accordingly restored on the file of the Chief Judicial Magistrate, Ernakulam. We direct the trial court to proceed further with the matter, in accordance with law.

23. In the peculiar facts and circumstances of this case, we cannot endorse or appreciate the stand adopted by respondent Nos.4 to 9. We accordingly direct further investigation in this matter, pertaining to the role of respondent nos.4 to 9, and direct initiation of proceedings against them, if made out, in accordance with law. Ocvika Ciujral Appeal allowed. c Ci