HON'BLE SRI JUSTICE [ENTITY] CRIMINAL PETITION No.10113 OF 2017 ORDER:
The present Criminal Petition is filed under [SECTION] of the [ACT] (for short 'the Code') requesting to quash the proceedings in [CASE NUMBER] on the file of the XXIII Metropolitan Magistrate at Hyderabad.
2. Petitioners herein are arraigned as accused Nos.1 to 5 in the aforesaid Calendar Case. They alleged to have committed the offences punishable under [SECTION], [SECTION] and [SECTION] [ACT].
3. Heard Sri [ENTITY], learned counsel for the petitioners, and Sri [ENTITY], learned Special Public Prosecutor for CBI Cases appearing for respondent No.1.
4. The main submission of learned counsel for the petitioners is that initially, against petitioner No.1 alone investigation was done and only when charge sheet was filed, other petitioners were arraigned as accused Nos.2 to 5.
i) It is his submission that the entire due amount was already cleared under One Time Settlement (OTS) Scheme, and even no due certificate, dated 25.03.2009, was also issued by the Bank and, therefore, according to the learned counsel, applying the principle in 2 ASN,J [PRECEDENT], the petitioners are not liable to be prosecuted and, hence, sought to quash the proceedings in the aforesaid Calendar Case.
ii) The learned counsel also refers to a ruling of the Hon'ble Supreme Court in [ENTITY] v. Central Bureau of Investigation2.
5. Per contra, the learned Special Public Prosecutor for CBI Cases strongly resisted the request contending that the petitioners herein duly availed double finances from Canara Bank and State Bank of Hyderabad by showing the stocks of other companies owned by family members of petitioner No.1, who are, of course, arraigned as accused Nos.2 to 5, and that that accounts for forgery and fabrication as intentionally the petitioners have forged the title deeds, and thereby occasioned with a pecuniary loss to the extent of about Rs.2.50 Crores by cheating respondent No.2 bank.
i) The learned Special Public Prosecutor also would submit that the Calendar Case is a part-head matter and substantial evidence has been let in by examining as many as 18 witnesses out of LWs.1 to 25 and it is not a case where abuse of process of Court can be viewed, and the petitioners at this stage deliberately have come up with the . AIR 2017 SC 1312 . 2008 LawSuit (SC) 1292 3 ASN,J present Criminal Petition to stall the proceedings and there is no merit in and, therefore, sought to dismiss the Criminal Petition.
6. Instead of probing into the allegations in the charge sheet and other details, it would be suffice to state that what has been alleged by the CBI is that all the five accused cheated the Canara Bank to a tune of Rs.2,02,57,623/- by submitting forged documents, to which they are punishable for the offences under [SECTION], [SECTION] and [SECTION] [ACT].
7. The learned Special Public Prosecutor also placed reliance in [PRECEDENT] and another3, for the proposition that when amounts due were paid pursuant to a private settlement between parties and not under a compromise decree, and when there was no acknowledgment on the part of Bank, the Hon'ble Apex Court declined to interfere with the judgment impugned refusing to quash criminal proceedings in exercise of power under [SECTION] of the Code where the offences are punishable under [SECTION] and [SECTION] [ACT] and [SECTION] of [ACT] read with [SECTION] [ACT]
i) He also refers to the ruling in State of Tamil Nadu v. [ENTITY] Stanley and others4, for the proposition that in a grave . [PRECEDENT] . [PRECEDENT] criminal offence or serious economic offence or for that matter offence that has potentiality to create a dent in financial health of institutions, is not to be quashed on ground that there is delay in trial or principle that when the matter has been settled, it should be quashed to avoid load on the system, and that it can never be an acceptable principle or parameter or it would amount to destroying the stem cells of law and order in many a realm and further strengthen the marrows of unscrupulous litigations, and such a situation should never be conceived of.
ii) He further relied on a ruling in [PRECEDENT] and another5, for the proposition that economic offences involving the financial and economic well-being of the State have implications which lie beyond the domain of a mere dispute between private disputants, and the High Court would be justified in declining to quash where the offender is involved in an activity akin to a financial or economic fraud or misdemeanor, and the consequences of the act complained of upon the financial or economic system will weight in the balance.
8. Now, the point that arises for consideration is:
Whether the request of the petitioners to quash the proceedings in [CASE NUMBER] can be acceded to?
. 2017 LawSuit [CASE NUMBER],J
9. Now, touching merits, the ground of abuse of process of Court is totally unavailable without entering into arena of merits for the reason the trial is still pending and most of the witnesses have already been examined.
10. Now, turning to the rulings relied on by the petitioner;
i) In [ENTITY], the Hon'ble Apex Court held in paragraph No.15 thus:
"15. Having carefully considered the singular facts and circumstances of the present case, and also the law relating to the continuance of criminal cases where the complainant and the accused had settled their differences and had arrived at an amicable arrangement, we see no reason to differ with the view taken in [ENTITY]'s case ([PRECEDENT] (supra) and several decisions of this Court delivered thereafter with respect to the doctrine of judicial restraint. In concluding hereinabove, we are not unmindful of the view recorded in the decisions cited at the Bar that depending on the attendant facts, continuance of the criminal proceedings, after a compromise has been arrived at between the complainant and the accused, would amount to abuse of process of Court and an exercise in futility since the trial would be prolonged and ultimately, it may end in a decision which may be of no consequence to any of the parties."
ii) In [ENTITY], the Hon'ble Apex Court in paragraph Nos.30 and 31 held thus:
"30. In the instant case, the disputes between the Company and the Bank have been set at rest on the basis of the compromise arrived at by them whereunder the dues of the 6 ASN,J Bank have been cleared and the Bank does not appear to have any further claim against the Company. What, however, remains is the fact that certain documents were alleged to have been created by the appellant herein in order to avail of credit facilities beyond the limit to which the Company was entitled. The dispute involved herein has overtones of a civil dispute with certain criminal facets. The question which is required to be answered in this case is whether the power which independently lies with this Court to quash the criminal proceedings pursuant to the compromise arrived at, should at all be exercised?
31. On an overall view of the facts as indicated hereinabove and keeping in mind the decision of this Court in [ENTITY]'s case (supra) and the compromise arrived at between the Company and the Bank as also clause 11 of the consent terms filed in the suit filed by the Bank, we are satisfied that this is a fit case where technicality should not be allowed to stand in the way in the quashing of the criminal proceedings, since, in our view, the continuance of the same after the compromise arrived at between the parties would be a futile exercise."
iii) In [ENTITY], the Hon'ble Three-Judge Bench of Apex Court held in paragraph No.14 thus:
"14. The aforesaid principle of law may now be applied to the facts of the present case. At the very outset a detailed narration of the charges against the accused-appellant has been made. The appellant has been charged with the offence of criminal conspiracy to commit the offence under [SECTION]. He is also substantively charged under [SECTION] (compoundable with the leave of the Court) and [SECTION] (non- compoundable). A careful consideration of the facts of the case would indicate that unlike in [ENTITY] (supra) no conclusion can be reached that the substratum of the charges against the accused-appellant in the 7 ASN,J present case is one of cheating nor are the facts similar to those in [ENTITY] (supra) where the accused was charged under [SECTION] only. The offences are certainly more serious; they are not private in nature. The charge of conspiracy is to commit offences under the [ACT]. The accused has also been charged for commission of the substantive offence under [SECTION] [ACT]. Though the amounts due have been paid the same is under a private settlement between the parties unlike in [ENTITY] (supra) and [ENTITY] (supra) where the compromise was a part of the decree of the Court. There is no acknowledgement on the part of the bank of the exoneration of the criminal liability of the accused-appellant unlike the terms of compromise decree in the aforesaid two cases. In the totality of the facts stated above, if the High Court has taken the view that the exclusion spelt out in [ENTITY] (supra) (para 61) applies to the present case and on that basis had come to the conclusion that the power under [SECTION] [ACT] should not be exercised to quash the criminal case against the accused, we cannot find any justification to interfere with the said decision."
iv) In the present case, since no documentary proof at all is filed by the petitioners to find that the entire amount was cleared under OTS Scheme, it is to be stated that a bald statement is made to make out a ground for either stalling or stultifying the proceedings in the aforesaid Calendar Case. No other view can be arrived at. Even the ruling in [ENTITY], the Hon'ble Apex Court in the context of delay in criminal trial in relation to special trial while holding that the same cannot be an acceptable principle of parameter, held in paragraph Nos.13, 14 and 15 thus:
8 ASN,J "13. Testing the present controversy on the anvil of the aforesaid principles, we are disposed to think that the High Court has been erroneously guided by the ambit and sweep of power Under [SECTION] [ACT] for quashing the proceedings. It has absolutely fallaciously opined that the continuance of the proceeding will be the abuse of the process of the Court. It has been categorically held in [PRECEDENT], that the inherent power Under [SECTION] [ACT] though unrestricted and undefined should not be capriciously or arbitrarily exercised, but should be exercised in appropriate cases, ex debito justitiae to do real and substantial justice for the administration of which alone the courts exist. In [PRECEDENT], it has been emphasised that inherent powers have to be exercised sparingly, carefully and with great caution.
14. We will be failing in our duty unless we advert to the proponements propounded with regard to other aspects.
They are really matters of concern and deserve to be addressed. The submission as put forth is that the first Respondent is a lady and she was following the command of her husband and signed the documents without being aware about the transactions entered into by the husband and nature of the business. The allegation in the charge- sheet is that she has signed the pronotes. That apart, as further alleged, she is a co-applicant in two cases and guarantor in other two cases. She was an Assistant Commissioner of Commercial Taxes and after taking voluntary retirement she has joined the public life, and became a member of the 'Rajya Sabha'. Emphasis is also laid that she is a lady and there is no warrant to continue the criminal proceeding when she has paid the dues of the banks, and if anything further is due that shall be made 9 ASN,J good. The assertions as regards the ignorance are a mere pretence and sans substance given the facts. Lack of awareness, knowledge or intent is neither to be considered nor accepted in economic offences. The submission assiduously presented on gender leaves us unimpressed. An offence under the criminal law is an offence and it does not depend upon the gender of an accused. True it is, there are certain provisions in [ACT] relating to exercise of jurisdiction Under [SECTION], etc. therein but that altogether pertains to a different sphere. A person committing a murder or getting involved in a financial scam or forgery of documents, cannot claim discharge or acquittal on the ground of her gender as that is neither constitutionally nor statutorily a valid argument. The offence is gender neutral in this case. We say no more on this score.
15. As far as the load on the criminal justice dispensation system is concerned it has an insegragable nexus with speedy trial. A grave criminal offence or serious economic offence or for that matter the offence that has the potentiality to create a dent in the financial health of the institutions, is not to be quashed on the ground that there is delay in trial or the principle that when the matter has been settled it should be quashed to avoid the load on the system. That can never be an acceptable principle or parameter, for that would amount to destroying the stem cells of law and order in many a realm and further strengthen the marrows of the unscrupulous litigations. Such a situation should never be conceived of."
v) In [PRECEDENT], once again the Hon'ble Apex Court reiterates what has 10 ASN,J been declared in [ENTITY] in proposition No.(ix) of paragraph No.15 and paragraph No.16 thus:
"(ix) above Economic offences involving the financial and economic well-being of the state have implications which lie beyond the domain of a mere dispute between private disputants. The High Court would be justified in declining to quash where the offender is involved in an activity akin to a financial or economic fraud or misdemeanour. The consequences of the act complained of upon the financial or economic system will weigh in the balance.
"16 Bearing in mind the above principles which have been laid down in the decisions of this Court, we are of the view that the High Court was justified in declining to entertain the application for quashing the First Information Report in the exercise of its inherent jurisdiction. The High Court has adverted to two significant circumstances. Each of them has a bearing on whether the exercise of the jurisdiction under [SECTION] to quash the FIR would subserve or secure the ends of justice or prevent an abuse of the process of the court. The first is that the appellants were absconding and warrants had been issued against them under [SECTION] of the [ACT]. The second is that the appellants have criminal antecedents, reflected in the chart which has been extracted in the earlier part of this judgment. The High Court adverted to the modus operandi which had been followed by the appellants in grabbing valuable parcels of land and noted that in the past as well, they were alleged to have been connected with such nefarious activities by opening bogus bank accounts. It was in this view of the matter that the High Court observed that in a case involving extortion, forgery and conspiracy where all the appellants were acting as a team,
11 ASN,J it was not in the interest of society to quash the FIR on the ground that a settlement had been arrived at with the complainant. We agree with the view of the High Court. The present case, as the allegations in the FIR would demonstrate, is not merely one involving a private dispute over a land transaction between two contesting parties. The case involves allegations of extortion, forgery and fabrication of documents, utilization of fabricated documents to effectuate transfers of title before the registering authorities and the deprivation of the complainant of his interest in land on the basis of a fabricated power of attorney. If the allegations in the FIR are construed as they stand, it is evident that they implicate serious offences having a bearing on a vital societal interest in securing the probity of titles to or interest in land. Such offences cannot be construed to be merely private or civil disputes but implicate the societal interest in prosecuting serious crime. In these circumstances, the High Court was eminently justified in declining to quash the FIR which had been registered under [SECTION], [SECTION], [SECTION], [SECTION], [SECTION] and [SECTION] of the [ACT]."
11. On two grounds, the present Criminal Petition is liable to be dismissed. Firstly, it is premature to state at this stage that merely because No Due Certificate was issued, it would erase the forgery and fabrication attributed to the petitioners as could be found from the allegations mentioned in the charge sheet. Even though, the petitioners claim that No Due Certificate was issued, nothing is placed on record. Even otherwise, whether the No Due Certificate is a genuine document requires examination by the trial Court which can be gone into when the same is either confronted to witnesses 12 ASN,J examined on behalf of prosecution and marked or when it is tendered during defence evidence. Therefore, there is no merit in the present Criminal Petition and the petitioners are not successful in bringing out the case within the fold of any of the propositions laid down by the Hon'ble Apex Court to invoke the provisions of [SECTION] of the Code to exercise extra ordinary power to quash the proceedings viewing that the prosecution of the petitioners would amount to abuse of process of Court.
12. Therefore, the present Criminal Petition is dismissed. As a sequel thereto, miscellaneous petitions, if any, pending in the Criminal Petition, stand disposed of.
[ENTITY], J June 04, 2018.