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Judgment
D.K. Sinha, J.—Both the Cr. Revision No. 450 of 2006 and Cr. M.P. No. 845 of 2006 are taken together for the common cause.
Heard Mr. Jai Prakash, learned Sr. Counsel appearing on behalf of the petitioners and the learned A.P.P.
None appeared on behalf of the Opposite Party No. 2 in either of the petitions aforesaid though the O.P. No. 2 executed Vakalatnama in favour of Mr. P.K. Banerjee, Advocate.
In Criminal Revision No. 450 of 2006 the petitioners have requested for setting aside the impugned order dated 08.06.2006 passed in Complaint Case No. 266 of 2003 pending before the Judicial Magistrate, 1st Class, Ranchi by which the petition filed on behalf of the petitioners u/s 205 of the Code of Criminal Procedure was dismissed and the petitioners were directed to appear before the Court in person. It was further requested that during pendency of the Criminal Revision no coercive step should be taken against any of them pending before the court concerned which was allowed.
In Cr. Misc. No. 845 of 2006 similar set of petitioners requested for the quashment of the entire criminal proceeding initiated against them in the said Complaint Case No 266 of 2003 including the cognizance of the offence taken against them under Sections 420/467/468 r/w Section 120B of the Indian Penal Code and also for quashment of the order impugned dated 27.05.2005 by which the processes under Sections 82/83 of the Code of Criminal Procedure were issued against the petitioners.
With reference to the Criminal Misc. Petition No. 845 of 2006, learned Counsel submitted that the petitioner No. 1 M/s Shalimar Packaging Pvt. Ltd. situated at Andheri (East) Mumbai represented through one of its Directors Shri Bharat Vagaria is the company incorporated under the Companies Act, 1956, engaged in manufacturing process of P.V.C. Duro Turf/Mats under the brand name of "Shalimar Lifestyle". The petitioner No. 2 is also a Company incorporated under the Act engaged in manufacturing process of P.V.C. wares under the brand name of "Supermaid" whereas the petitioner Nos. 3 to 7 were the persons in-charge of the Companies referred to as the petitioner Nos. 1 & 2 hereinbefore. The Opposite Party No. 2 in both the petitions is the proprietor of a Proprietorship Firm having its office at Baralal Street, Upper Bazar, Ranchi being run under the name and style "M/s Jainco Marketing". The Opposite Party No. 2 filed a Complaint Case No. 266 of 2003 against the petitioners narrating, inter alia, that on and about March, 1999 Memorandum of Understanding (in short M.O.U.) was signed at Ranchi in the office of the Opposite Party No. 2 by which the latter was appointed as the distributor of Petitioner No. 2 for the various districts of the then South Bihar. Pursuant to such M.O.U. the Opposite Party No. 2 continued on regular transactions with the Petitioner No. 2 till 22.12.2002 when the distributorship was discontinued. It was stated in the complaint that the complainant-Opposite Party No. 2 herein was carrying on the distributorship of merchandise, manufactured and supplied by Petitioner No. 1 also and that such agreement was also entered at Ranchi. It was narrated further in the complaint that after termination of the distributorship of the complainant at the instance of the Petitioner No. 2, the complainant-Opposite Party No. 2 on his own initiative terminated the distributorship relation with the Petitioner No. 1 and after termination of both the agreements the material came before the parties for the settlement of the accounts.
Learned Counsel submitted that the complainant-Opposite Party No. 2 alleged that the petitioner No. 1 had not credited certain payments made by him and certain goods that were returned were also not accounted for and that at the time of agreement the complainant-Opposite Party No. 2 had deposited a sum of Rs. 25,000/- with the Petitioner No. 1 as the security deposit. It was further alleged that in the month of September, 2002, the petitioner No. 7 had contacted the complainant-Opposite Party No. 2 for the enhancement of the security deposit and for that a blank and undated cheque was issued by him to be encashed by the petitioner No. 1 only after determining the enhanced security deposit and the Cheque No. 417372 was issued by the complainant to the petitioner No. 1 in good faith However, it was contented that before presenting the cheque the amount of enhanced security deposit was to be disclosed and communicated to the complainant and even before presentation of the cheque for encashment, it was agreed that the complainant could be informed. It was further alleged that in spite of long persuasion when the complainant-Opposite Party No. 2 could not get any information about the enhanced security deposit, he suspected some mischief and then wrote a letter to his banker the Oriental Bank of Commerce, Ranchi asking him to stop payment of Cheque No. 417372 a copy of such letter was sent to the Petitioner No. 1 also demanding the statement of account however by extending request to continue with the sum of Rs. 25,000/- as the amount of security deposit.
After having received the letter, it was stated that the Petitioner No. 1 communicated the Complainant-Opposite Party No. 2 that a sum of Rs. 1,93,000/- was found to be due after settlement of the account with the endorsement that any dispute in accounting should be made within 7 days. The complainant immediately sent a demand draft of Rs. 25,000/- in favour of Petitioner No. 1 which was duly encashed but undated cheque which was earlier given was not returned to him with mala fide intention.
The letter dated 27.12.2002 was communicated to the petitioner No. 1 asking for the return of the goods but due to nonavailability of form 31, the complainant expressed that he was feeling difficulty in returning the goods to Sahibabad Unit of the Company Subsequently, the complainant-opposite party No. 2 received letter from the petitioner No. 5 with the statement of account demanding a sum of Rs. 64,803.87/- towards outstanding balance payable to the petitioner No. 1. The complainant- O.P. No. 2 challenged the said amount and communicated that only a sum of Rs. 30,272.53/- was outstanding as per his account and only that amount was payable. The complainant emphatically alleged that the petitioners encashed the blank cheque No. 417372 which was made to the petitioner No. 1 on 06.02.2003 by inserting the figure of Rs. 8,93,985.00/- and the same was presented with the bank with mala fide intention knowing it well that the complainant had asked for stop payment to his banker. The complainant- O.P. No. 2 learnt about such bouncing of cheque through Shri Nitin Vadake, Advocate which prompted the complainant- O.P. No. 2 to file a Complaint Case No. 266 of 2003 for the alleged offence under Sections 420/467/468/120B of the Indian Penal Code.
Learned Counsel submitted that the Complainant- O.P. No. 2 filed the Complaint Petition aforesaid maliciously with the intention to usurp the outstanding dues of the petitioner No. 1 & 2 i.e. the Companies referred to here-in-before. As a matter of fact, pursuant to the order placed by the complainant- O.P. No. 2, the petitioner No. 1 (Company) sold and delivered the goods viz. Duro Turf/Mats and raised invoices total sum of Rs. 869933/- being the cost of the goods supplied to him.
Learned Counsel for the petitioner explained that it was the general practice and policy of the petitioners Companies to accept the cheque in advance and deposit the said cheque as and when some amount becomes due and the similar arrangement was made with the Complainant- O.P. No. 2 also. When the long outstanding dues to the tune of Rs. 893985/- could not be cleared, the petitioners-Companies presented the cheque which was issued in favour of company for clearance before Corporation Bank, Caps Branch, Mumbai which was returned unpaid with the endorsement "insufficient funds" dated 11.02.2003. Subsequently, a notice of the Advocate was sent which was returned by Postal Department with the remarks unclaimed and as such a case u/s 138 of the Negotiable Instrument Act, 1881 was made out against the complainant-Opposite Party No. 2. It would be relevant to mention that the complainant- O.P. No. 2 having been apprehensive of the intention of the petitioners-companies that a case u/s 138 of the Negotiable Instrument Act may be filed against him, filed the Complaint Case No. 266 of 2003 against the petitioners taking the lead in the entire episode maliciously with the mala fide intention. When the Advocate''s notice issued at the instance of the petitioners- companies could not be responded which was sent under the mandatory provision of law within the limitation period, the Company No. 1 & 2 initiated a criminal proceeding by filing a Complaint Case No. 173/Misc./2003 corresponding to C.C. No. 267/S/2003 against the complainant- O.P. No. 2 wherein the Metropolitan Magistrate 22nd Court at Andheri, Mumbai issued arrest warrant against the complainant- O.P. No. 2 after taking cognizance.
With reference to the Criminal Revision No. 450/2006 and the request made therein for relief, the Counsel for the petitioner submitted that at no point of time any summon or notice was served upon any of the petitioners but the learned Court issued processes under Sections 82 & 83 of the Code of Criminal Procedure without waiting for the service report of the summons. A petition was filed u/s 205 of the Code of Criminal Procedure before the Court of Shri Anand Prakash, Judicial Magistrate, 1st Class, Ranchi for dispensing with the personal appearance of some of the petitioners and also for being permitted to appear through their lawyer, which was dismissed by the order dated 08.06.2006 with the direction to appear in person. The learned court below failed to appreciate that the initiation of the instant complaint case at Ranchi at the instance of the complainant- O.P. No. 2 was an outburst of the legal notice dated 28.02.2003 which was sent by the petitioners-companies informing the bouncing of the cheque. The complaint case otherwise was also not maintainable as the cause of action had actually arisen within the jurisdiction of Mumbai. The learned Judicial Magistrate while rejecting the petition of the petitioners filed u/s 205 made uncalled for remarks that offence alleged under Sections 420/467/468 read with Section 120B of the Indian Penal Code against the petitioners was of serious nature involving morale turpitude and punishable by sentence of long imprisonment and therefore, the provision u/s 205 of the Code of Criminal Procedure cannot be attracted. Alleged offence cannot be said to be an offence related to moral turpitude, the Counsel added.
With reference to the Criminal Misc. Petition No. 845 of 2006 the petitioners had requested for quashment of the entire criminal proceeding initiated as against them in connection with Complaint Case No. 266 of 2003 by which the cognizance of the offence was taken under Sections 420/467/468 and 120B of the Indian Penal Code as also for quashment of the process issued under Sections 82/83 of the Code of Criminal Procedure.
The learned Counsel further contended that the complaint case was not at all maintainable since the dispute between the parties was of civil nature and it did not entail any offence of criminal nature. Admittedly, the complainant- O.P. No. 2 had given instructions to its banker for stop payment of cheque bearing No. 417372 then how and under what circumstances the said cheque was returned by the banker of the Opposite Party No. 2 with remarks "insufficient fund". The O.P. No. 2 was highly apprehensive that the cheque that had been issued by him could be bounced, as such, he filed the complaint case in self defence with mala fide intention which the learned court below failed to consider that the complaint was brought about with oblique purpose. The complainant- O.P. No. 2 further failed to explain as to how he came to learn about the demand of Rs. 893983/- when the legal notice dated 28.02.2003 addressed to the complainant- O.P. No. 2 returned without service with the endorsement of the Postal Department as "unclaimed".
The complainant- O.P. No. 2 has already entered appearance by executing Vakalatnama in both the petitions.
It is relevant to mention that during the pendency of the Cr. Revision No. 450 of 2006 and Cr. M.P. No. 845 of 2006 aforesaid I.A. No. 638 of 2009 was filed in Cr. M.P. No. 845 of 2006 seeking adjournment in the case for six weeks for settlement of disputes between the parties, which was allowed. Thereafter, different Interlocutory Application (I.A.(Cr.) No. 1210 of 2009) was filed in Cr. M.P. No. 845 of 2006 supported by an affidavit, which was sworn by one Niklank Jain stating, inter alia, that both the parties amicably settled their disputes amongst themselves and it was mutually decided that the petitioners would withdraw the case bearing C.C. Case No. 1423/S.S./05 related to the offence u/s 138 of the Negotiable Instrument Act pending before 44th Metropolitan Magistrate Court, Andheri, Mumbai. Similarly, it was agreed by the complainant-O.P. No. 2 that he would withdraw the complaint case No. 266 of 2003 which was pending before the Court at Ranchi against the petitioners herein. It was requested therein to post the matter after vacation.
Finally, I.A. No. 2170 of 2009 was preferred on behalf of both the parties in Cr. M.P. No. 845 of 2006 u/s 320 read with Section 482 of the Code of Criminal Procedure seeking permission for compounding of offence for the reason that the parties have already resolved the disputes amicably. This Interlocutory Application was filed by way of a joint petition by all the contesting parties duly signed by each one of them at page 4 & 5 supported by an affidavit at page 6: It was contended in the said Interlocutory Application that on account of settlement of dispute between the parties the members of the parties decided not to proceed in their respective cases filed by them separately In terms of the compromise petition which was filed by way of I.A. (Cr.) No. 1210 of 2009 and in terms of the settlement made therein the petitioners herein have already withdrawn the criminal case filed by them being C.C. Case No. 1423/S.S./2005 for the alleged offence u/s 138 of the Negotiable Instrument Act against the complainant- O.P. No. 2 The complainant- O.P. No. 2 also filed application for withdrawal in the Court of Shri D. Pandey, Judicial Magistrate, Ranchi whose petition was rejected vide order dated 17.07.2009. Learned Counsel for the petitioner submitted that in view of the fact that the parties have settled their disputes outside the Court, the complainant- O.P. No. 2 may be permitted to withdraw his complaint case No 266 of 2003 on the basis of compromise.
To substantiate the contention a supplementary counter-affidavit has been filed on behalf of the Opposite-Party No. 2 in Cr. M.P. No. 845 of 2006 admitting the compromise between the parties certifying that the signature has made in the joint compromise petition were of the persons whose names have been mentioned in page 5 of the said petition, The complainant- O.P. No. 2: reiterated that no dispute whatsoever against the petitioners of the petitions existed and it would be in the interest of justice that the joint application for compromise between the parties may be allowed.
However, by clarifying the position, learned Counsel appearing for the petitioners submitted that of course the cognizance of the offence was taken under Sections 420/467/468 read with Section 120B of the Indian Penal Code against the accused persons out of which 467 and 468 are not compoundable even with the permission of the Court. But the offence, as alleged against the accused persons were not in the nature of moral turpitude rather exclusively in the nature of civil disputes in relation to settlement of outstanding account between the parties in their business transaction. In such situation parties should be permitted to settle their dispute by allowing them to enter into compromise in terms of Section 320 of the Code of Criminal Procedure. Learned Counsel submitted and pointed out that in similar situation the Apex Court in Madan Mohan Abbot Vs. State of Punjab, observed.
It is on the basis of this compromise that the application was filed in the High Court for quashing of proceedings which has been dismissed by the impugned order. We notice from a reading of the F.I.R. and the other documents on record that the dispute was purely a personal one between two contesting parties and that it arose out of extensive business dealings between them and that there was absolutely no public policy involved in the nature of the allegations made against the accused. We are, therefore, of the opinion that no useful purpose would be served in continuing with the proceedings in the light of the compromise and also in the light of the fact that the complainant has on 11.01.2004 passed away and the possibility of a conviction being recorded has thus to be ruled out.
We need to emphasize that it is perhaps advisable that in disputes where the question involved is of a purely personal nature, the court should ordinarily accept the terms of the compromise even in criminal proceedings as keeping the matter alive with no possibility of a result in favour of the prosecution is a luxury which the courts, grossly overburdened as they are, cannot afford and that the time so saved can be utilized in deciding more effective and meaningful litigation. This is a common sense approach to the matter based on ground of realities and bereft of the technicalities of the law.
We see from the impugned order that the learned Judge has confused compounding of an offence with the quashing of proceedings. The outer limit of Rs. 250/-which has led to the dismissal of the application is an irrelevant factor in the later case. We, accordingly, allow the appeal and in the peculiar facts of the case direct that F.I.R. No. 155 dated 17.11.2001 PS Kotwali, Amritsar and all proceedings connected therewith shall be deemed to be quashed.
The Counsel appearing on behalf of the complainant-O.P. No. 2 very fairly conceded that appropriate order may be passed in view of the proposition of law as relied by the parties herein in the interest of justice and also in the backdrop that they have already settled their disputes amicably.
In the facts and circumstances and relying upon the proposition of law as laid down by the Apex Court of India referred to hereinbefore this Cr. M.P. No. 845 of 2006 is allowed. Accordingly, the complaint case No. 266 of 2003 pending before the Judicial Magistrate, Ranchi against the petitioners is quashed Consequently, Criminal Revision No. 450 of 2006 is disposed of In the light of the disposal of Cr. M.P. No. 845 of 2006. Accordingly, Interlocutory Application Nos. 576 of 2009, 638 of 2009, 1210 of 2009 & 2170 of 2009 are also disposed of.