IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V FRIDAY, THE 21ST DAY OF OCTOBER 2016/29TH ASWINA, 1938 [CASE NUMBER] [CASE NUMBER] OF NARAKKAL POLICE STATION, INITIATED AT THE INSTANCE OF [CASE NUMBER] OF PANDALAM POLICE STATION PETITIONER(S)/ACCUSED 1 AND 2 : 1. NITYANAND, S/O. KANDASWAMI, AGED 41 YEARS, B-884, DERA GANJIKHAN, PARWANA ROAD, SARASWATHI VIHAR POST, MANGALPURI, NEW DELHI. 2. KAMALESH, S/O. SHIVDAYAL, AGED 31 YEARS, N-119/42, DERAGAJI KHAN, PARWANA ROAD, SARASWATHI VIHAR POST, MANGALPURI, NEW DELHI CENTRAL DELHI, INDIA. BY ADV. SRI.A.C.DEVY RESPONDENT(S)/COMPLAINANT & STATE : 1. MANOJ, AGED 26 YEARS, S/O. MURALI, PARATTY HOUSE, NAYARAMBALAM POST, ERNAKULAM DISTRICT, PIN 682 509. 2. THE STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM 682 031. * ADDITIONAL R3 IMPLEADED 3. SANJAI, AGED 27 YEARS, S/O. RAJA RAAM, HOUSE NO. 111/59, 10TH BLOCK, PARVANA ROAD, PEETHAMPURA, NEW DELHI- 34. * ADDITIONAL R3 IS IMPLEADED AS PER ORDER DATED 21.10.2016. IN [CASE NUMBER]. 2/- 2 [CASE NUMBER] * ADDITIONAL R4 IMPLEADED 4. [ENTITY], AGED 32 YEARS, S/O. EAPEN THOMAS, THOTTATHIL MALAYIL HOUSE, PERUMBRAMAVU, KEEZHVAIPPOOR, MALLAPPALLY VILLAGE, PATHANAMTHITTA DISTRICT, NOW RESIDING AT V-A, 3RD FLOOR, GALI NO.VI, KAROL BAG, NEW DELHI- 110 003. * ADDITIONAL R4 IS IMPLEADED AS PER ORDER DATED IN 21.10.2016 IN [CASE NUMBER]. R1 BY ADV. [ENTITY] R2 BY PUBLIC PROSECUTOR SRI. [ENTITY] ADDL.R4 BY ADV. [ENTITY] ADDL.R3 BY ADV. [ENTITY] THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 21-10-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Msd. [CASE NUMBER] APPENDIX PETITIONER(S)' ANNEXURES : ANNEXURE A A TRUE COPY OF THE FIR OF NARAKKAL POLICE STATION IN [CASE NUMBER]. ANNEXURE B A TRUE COPY OF THE FIR OF PANDALAM POLICE STATION IN [CASE NUMBER]. ANNEXURE C THE TRUE COPY OF THE AFFIDAVIT DATED 17-09-2016 SWORN BY THE DEFACTO COMPLAINANT. RESPONDENT(S)' ANNEXURES : NIL TRUE COPY P.S.TOJUDGE Msd. [ENTITY] J [CASE NUMBER] Dated this the 21st day of October, 2016 O R D E R
1.The petitioners herein are the accused Nos.1 and 2 in [CASE NUMBER] of Njarackal Police Station. The aforesaid crime was originally registered as [CASE NUMBER] of the Pandalam Police Station alleging offence punishable under [SECTION] of the [ACT]. Since the incident had taken place within the territorial limits of the Njarackal Police Station, the case was transferred and the crime was re-registered.
2.The prosecution allegation runs thus:-
The petitioners herein and the 3rd accused were running a firm in the name and style as "Tirupathy Balaji Enterprises" at Delhi. They employed the 4th accused who in turn called the 1st respondent and several others over telephone and fraudulently informed them that they had been selected to the network of Samsung Mobile. They were made to believe that if they part with a sum of Rs.3,000/- on cash-on-delivery basis, they would be provided with a smart phone manufactured by Samsung worth Rs.25,000/-. It is further alleged that with intent to cheat, and after accepting a sum of Rs.3,000/-, a packet was delivered. On unpacking, it was revealed that it contained a small Aluminium Idol and also the image of a tortoise, which was of no value. Based on the information, a crime was registered as [CASE NUMBER] of Pandalam Police Station. The petitioners were arrested on 26.7.2016 and on interrogation it was revealed that several other unsuspecting persons had been defrauded by the same modus operandi. On its basis, several crimes were later registered and the same was forwarded to the respective Police Station.
3.The petitioners are still in custody. While so, the relatives and well wishers of the petitioners and the other accused contacted the 1st respondent and have have arrived at a settlement. It is submitted that the petitioners have made good the loss sustained by the 1st respondent and all the other persons who had been defrauded. In the instant case, Annexure-C affidavit sworn to by the 1st respondent/de facto complainant has also been filed. In the said affidavit it is asserted that all pending disputes have been settled and that the 1st respondent has no subsisting grievance. It is also stated that the 1st respondent has no objection in allowing this petition and in quashing the proceedings.
4. Separate applications have been filed by the accused Nos.3 and 4 to get themselves impleaded in the proceedings. The said applications were allowed and they have been added as additional respondents 3 and
5. The learned counsel appearing for the petitioners, the 1st respondent and the learned Public Prosecutor were heard.
6.Learned counsel appearing for the petitioners submits that the petitioners are in custody and in view of the settlement arrived at, this Court will be amply justified in putting a premature end to the prosecution. It is also contended that the offence is compoundable in nature and when the de facto complainant has no grievance, no purpose will be served in continuing with the proceedings.
7.The learned Public Prosecutor on instructions submits that the statement of the de facto complainant has been recorded by the investigating officer and he has stated that the disputes have been settled. It is also submitted that several other crimes have been registered against the petitioners and two others on identical allegations.
8.I have considered the rival submissions. In [PRECEDENT], the Apex Court has crystalised the position in respect of the powers vested in the High Court under [SECTION] of the [ACT], to quash criminal proceedings. It was held that the power vested in the High Court under [SECTION] of the [ACT], is not limited to quashing proceedings within the ambit and scope of [SECTION] of the [ACT]. The three - Judge Bench in the above case, clearly expounded, that quashing of criminal proceedings under [SECTION] of the [ACT], 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] of the [ACT], 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. In all such cases, the parties should have resolved their entire dispute by themselves, mutually. Further, guidelines were issued by the Apex Court in [PRECEDENT] and recently in [PRECEDENT].
9.Various contentions justifying the acts of the petitioners and other accused are advanced by the learned counsel. Though the modus operandi adopted by the petitioners and respondents 3 and 4 to cheat unsuspecting persons cannot be accepted or condoned, taking note of the gravity of the allegation, the amount involved and the facts and circumstances, it does not appear to me that the offence alleged is grave and serious having ingredients of extreme mental depravity. It also does not appear that the offence in this case will have a serious impact on the society. More over, when the respondent No.1 has settled the matter, the possibility of conviction is remote and bleak and the continuation of the criminal case against the petitioners would be a futile exercise. It would also put the petitioners and the 1st respondent to great oppression and prejudice.
10.Having considered all the relevant circumstances, I am of the considered view that this Court will be well justified in invoking its extra ordinary powers under [SECTION] of the Code to quash the proceedings. Though only the accused Nos. 1 and 2 have come up before this Court, in view of the fact that the whole matter has been settled, I am of the considered view that the benefits of settlement can also be extended to the accused Nos. 3 and 4 who have been arrayed as the respondents 3 and 4. In the result, this petition will stand allowed. All further proceedings as against the petitioners and additional respondents 3 and 4 in [CASE NUMBER] of Njarackal Police Station are quashed. The petitioners 1 and 2 are reported to be in prison at Thiruvananthapuram. If they are not required in connection with any other cases, they shall be released forthwith.
[ENTITY] JUDGE vps