M/s. Nik Nish Retail Ltd. & Ors. vs C.B.I. & Anr.

The petitioners have sought for quashing of proceedings of G.R. Case No. 2406 of 2011 under Sections 120B read with Section 420 of Indian Penal

Code pending before the learned Metropolitan Magistrate, 21st Court, CBI Court, Calcutta arising out of CBI, BS & FC, Kolkata, Regular Case No.

RCBSK2009E0008 dated 11.09.2009 inter alia on the grounds that the continuation of the proceedings would amount to abuse of process of court

inasmuch as the dispute by and between the parties has been settled out of Court.

The evidence under Section 420 of the Indian Penal Code is compoundable in terms of Section 320 of the Code of Criminal Procedure. The offence

under Section 120B of the Indian Penal Code which defines criminal conspiracy is applied alongwith the substantive charge under Section 420 of

Indian Penal Code which is compoundable in nature. The petitioners are public servants. No substantive offence under the provisions of Prevention of

Corruption Act has been alleged against them. The civil liability of the petitioners to pay the amount to the opposite party No. 2 has been settled

amicably and no subsisting grievance of the opposite party No. 2 in this regard is alive.

The learned counsel appearing on behalf of the petitioner has relied upon a decision of the Hon'ble Supreme Court in CBI, Mumbai vs. Narendra Lal

Jain & Ors. reported in (2014) 5 SCC 364 and for quashing of the proceedings, brought my attention to paragraph 13 of the said judgment and argued

that the offence with which the accused had been charged under Sections 120B/420 of the Indian Penal Code and the civil liabilities of the accused

persons to pay the amount to the Bank as already been settled amicably. There is no subsisting grievance of the Bank in this regard as observed in the

aforesaid paragraphs. Paragraph 13 is quoted hereinbelow:

“13. In the present case, as already seen, the offence with which the respondent-accused had been charged are under Sections 120B/420 of the

Penal Code. The civil liability of the respondents to pay the amount to the Bank has already been settled amicably. The terms of such settlement have

been extracted above. No subsisting grievance of the Bank in this regard has been brought to the notice of the Court. While the offence under Section

420 IPC is compoundable the offence under Section 120B IPC is not. To the latter offence the ratio laid down in B. S. Joshi and Nikhil Merchant

would apply if the facts of the given case would so justify. The observation in Gian Singh will not be attracted in the present case in view of the

offences alleged i.e. under Sections 420/120B IPC.â€​

The learned counsel appearing on behalf of the petitioner further relied on a decision reported in Anita Maria Dias & anr. vs. State of Maharashtra &

anr. reported in (2018) 3 SCC 290 in support of the case adverting to paragraph 7(29.7) which is set out hereunder:

“7(29.7). While deciding whether to exercise its power 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 Court may

be liberal in accepting the settlement to quash the criminal proceedings/investigation. It is because of the reason that this stage the investigation is still

on and even the charge-sheet has not been filed. Likewise, those cases where the charge is framed but the evidence is yet to start or the evidence 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 court 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 court. 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.â€​

In the present case, chargesheet has been filed and charges have been framed accordingly but at the stage of consideration of charge, there was a

stay by the learned Additional Sessions Judge concerned. Against the framing of charges on 05.04.2016, being aggrieved, the petitioners filed the

revisional application under Sections 397/399 of the Code of Criminal Procedure before the Court of learned Chief Judge, City Sessions Court,

Calcutta registered as Criminal Revision No. 92/2016 wherein the learned Chief Judge, City Sessions Court, Calcutta by its order dated 05.07.2016

stayed the operation of the impugned order dated 05.04.2016 passed by the learned Metropolitan Magistrate, 21st Court, CBI Court, Calcutta in G. R.

Case No. 2406 of 2011 till next date of hearing is fixed.

My attention is invited to the joint petition filed on behalf of the Union of India & Vishi Commercial Pvt. Ltd & Ors represented by the present

petitioners before the Debt Recovery Tribunal (III), Calcutta which reflects the settlement by and between the parties. The learned counsel further

draws my attention to the order dated 27.10.2016 passed by the Presiding Officer of Debt Recovery Tribunal (III), Calcutta. It would be profitable for

appraisal of the instant case to reproduce the relevant order of the Debt Recovery Tribunal (III), Calcutta hereinbelow:

“The aggregate dues claimed in all the above three cases are Rs. 15,57,72,600.15 (Rupees fifteen crore fifty seven lac seventy two thousand six

hundred and paise fifteen). During the pendency of the proceedings there has been amicable settlement in all the three accounts between the

Applicant Bank and the Defendants (who are sister concerns/Group Companies). A composite proposal has been made by the Defendants to the

Applicant Bank. Applicant Bank has considered the same and the Management Committee of the Bank; who is authorized as competent authority to

consider this proposal, considered and approved the same in their meeting dated 12th August, 2016, stating terms and conditions therein. Accordingly,

above mentioned joint applications have been moved by the parties before this Tribunal stating the terms and conditions of settlement in paragraphs 4,

5, 6 and 8. In terms of the said paragraphs, Defendants agreed that in all the three O.A.s the Defendants shall pay a sum of Rs. 6.00 crore (Rupees

six crore) by 31st March 2017 as full and final settled amount; out of which Rs. 1,10,00,000.00 (Rupees one crore ten lac) has already been paid by

the Defendants as per the agreed terms and balance amount is to be paid upto 31st March, 2017.

It has further been agreed that in the event of default on the part of the Defendants in making payment of settled amount within stipulated time.

Recovery Certificate shall be issued for recovery of the dues in terms of para 8 of the joint petitions. The petitions have been affirmed by one Sri

Bharat Jain on behalf of the Defendants and one Sri Jagmohan, Chief Manager of the Bank by putting their signatures. The signatures have been

authenticated by the Learned Counsel for the parties. Accordingly, Defendants are allowed to pay the settled amount in satisfaction of claim made in

the O.A.s.â€​

It is further pointed out from annexure P-7 to the revisional application wherefrom it is revealed that one time settlement of the account of M/s. Nik

Nish Retails Ltd., M/s. N. B. Services E. Com and M/s. Vishi Commercial Pvt. Ltd. NPA accounts of the Branch have been arrived at with effect

that the amount is out of total settlement and an amount of Rs. 6 lacs in three accounts of the said Companies and as per the latest modified O.T.S.

approval, the Guarantor/Director of the said Companies was requested to pay Rs. 3.50 crores plus delayed payment interest, if any and the remaining

amount was payable as soon as possible.

It is contended by the Bank authorities that an amount of Rs. 2.50 crores have already been paid as on the date and Rs. 3.50 crores are yet to be paid.

By the order dated 24.07.2018, it was submitted on behalf of the Union Bank of India, that the order dated 10.12.2013 passed by the learned Judge,

CBI Court, Calcutta whereby a condition was imposed on the original title deed that may be released in favour of the Bank by the CBI Authority on

furnishing a bond of Rs. 2 lacs with an undertaking that the Bank will produce the original document before the CBI.

It is further contended by the Bank that a bond of Rs. 2 lacs has already been furnished. So the original deed is supposed to be released by the CBI in

favour of the Bank but the original deed is still with the CBI Authority as pointed out by the Bank Authorities. The petitioner further invited my

attention to the fact that as per the condition imposed by the learned Judge concerned, CBI, the Bank is not in a position to put the property under the

title deed under auction for sale in order to realization of the dues.

Having taken into consideration the one time settlement arrived at by and between the defacto-complainant, the opposite party No. 2 and the

petitioners, bearing in mind, the principles as laid down by the Hon'ble Supreme Court in the above cited decisions, I am of the view that the CBI will

handover the original title deed to the Union Bank of India to facilitate the Bank to act accordingly. Thus, considering the dispute and the civil liabilities

between the defacto-complainant, the opposite party No. 2 and the petitioners, stood compromised by one time settlement amicably, I do not find any

grievance of the Bank authorities for continuation of the proceedings under reference pending before the learned court below.

Hence, having regard to the fact that Section 420 of the Indian Penal Code read with Section 120B of the Indian Penal Code is compoundable in

nature, this Court is inclined to quash the proceedings pending against the petitioners in connection with the aforesaid G. R. Case No. 2406 of 2011

and, accordingly, the proceeding under reference pending before the learned court below is quashed. With the above observations, the instant criminal

revisional application stands disposed of. Urgent photostat certified copy of this order, if applied for, shall be given to the parties as expeditiously as

possible on compliance of all necessary formalities.