$-7 * IN THE HIGH COURT OF DELHI AT NEW DELHI + CRL.M.C. 1879/2011 ALISHA SHARMA & ANR Petitioners Through : Mr.Puneet iviittal with Mr.H. Hadis Ansari, Advs along with petitioners in person. versus STATE & ANR Respondents Through : Ivis.Ritu Gauba, APR for the State-Respondent No.l. IVir.Sanjiv Sagar, Adv. for respondent No.2 with respondeni No.2 in person. CORAM: HON'BLE MR. JUSTICE SURESH KAIT ORDER % 26.08,2011 1. FIR No.77/2011, under Section 419/420/468/471/120B IPG was registered, against the petitioners at Police Station, Sal<et. 2. !t is alleged in the FIR that the Standard Chartered Bank credit card holder, Mr.Ajay Singh Toinar, had called the Standard Chartered Bank's helpline and informed that he had received an SMS from Standard Chartered Bank on 24.02.2011 with respect to the transaci:ion done for the Standard Chartered CRL.M.C. 1879/2011 Page 1 of 8 3> Digitally Signed By:AMULYA Certify that the digital file and physical file have been compared and the digital data is as per the physical file and no page is missing. Signature Not Verified bank Credit Card bearing No.4196074948455614. The customer claims to have not made the said transactions and also claims that the said credit card is under his possession. The credit card was blocked by the bank and as per the customer's telephonic, request. Upon customer's enquiry, it was enforced by the bank that the card was swiped at S. Oliver, Select City Mall at Saket, prior to the blocking request. The total misused •-V amount in the present case is INR ^53078.00. 3. As per the customer, he promptly visited the S. Oliver (Merchandised Store) at Select City Mall, Saket and met the salesman. The customer enquired ubout the tiansaction details wherein it was confirmed that the transactions were done by a person who came with a girl. The customer got hold of the culprits with the help of the shopkeeper/salesman and handed j them over to the security of the mall. Thereafter, the police was informed by the security officers about the incident. The police arrested both the petitioners on spot. 4. Ld.counsel for the petitioners submits that the respondent No.2, Shri Javed Chauhan,. on whose com,plaint the present FIR CRL.M.C. 1879/2011 Page 2 of 8 is lodged has amicably resolved all the issues qua the said FIR against the petitioners. 5. The respondent No.2, Shri Javed Chauhan, is present in person along with his counsel, namely Sh.Sajiv Sagar, Advocate. The ID in original has been produced by respondent No.2 issued by the Standard Chartered Bank in his favour. His Bank ID number is 1338200. The original has been returned to respondent No.2 photocopy of the same is attached at page 26. 6. The Id. APP for the State submits that the Division Bench of the Hon'ble Supreme Court in dan Singh Vs. State of Punjab & Am', dated 23"' November, 2010 in SLP (CrL) No.8989/2010 has referred che issues to the larger Bench, which were earlier decided in the case of B.S. Joshi V. State of Haryana (2003) 4 SCC 675, Nikhil Merchant v. Central Bureau of Inestigation and Anr. (2008) 9 SCC 6'77 and Manoj Sharma Vs,^ State & Ors. (2008) 16 SCC 1 and has observed that Section 320 Cr. P.C. mentions certain offences as compoundable, certain other offences as compoundable with the permission of the Court and the other offences as non- compoundable vide Section 320(7) of the Code. CRL.M.C. 1873/2011 Page 3 of 8 I 7. It was further observed that the Court cannot amend the statute and must maintain judicial restraint in this connection. The courts should not try to take over the function of the Parliament or the executive; it is the legislature which can amend Section 320 CrP.C. 8. Keeping in view the aforesaid observations, the Division Bench of the Hon'ble Supreme Court has referred the matter before the larger Bench to consider the correctness of the aforesaid three decisions. Therefore, the present case also fails in this category and as such the FIR in this case should not be quashed. 9. Ld.counsel for the petitioners has relied on the Division Bench decisibn of the Bombay High Court in Nari Motiram Hira Vs. Avinash Balkrishnan & A nr. in Crl.W.P.No.995 of 2010 decided on 03.02.2011, He submits that the Division Bench of the Bombay High Court has considered the caije of Gian Singh (supra) and further submits that the joint request of the petitionsjr and the respondents was allowed and the? offences were punishable under Section 427, 504 and 505 of Indian Penal Code, X860, and further quashed the FIR CRL.t^l.C. 1879/2011 Page 4 of 8 \ ~< No.50/2010 registered at Amboli Police Station, Andheri dated 06.02.2010, which, incidentally refers to Section 452 and 324 of Indian Penal Code, 1860 which were non-connpoundable offences, in view of the settlement arrived between the parties to secure the ends of justice, were compounded. 10. The Id. counsel for the petitioners has also relied on the judgment (2011) 1 JCC 645 decided on 10.12.2010, even after the case of Gian Singh (supra) being referred to the large Bench vide its order dated 23.11.2010. The order dated 10.12.2010 passed by this Court has not referred to the case of Gian Singh (supra). So far as the case of Nari Mot/ram Hira (supra) is concerned, in the said order, the case of Gian Singh (supra) has been referred and has observed that until the decisions of the Apex Court, which are in force as of now are to be overruled, therefore, the Bombay High Court came to the conclusion that it would be proper to follow the samii as a binding precedent. 11. Ms.Ritu Gauba, Id.APP for the State submits that the facts of the case which are dealt with in Nari i^lotiram Hira (supra) and the facts of this case are totally different. In the case of CRL.M.C. 1879/20J1 Page 5 of 8 1 It •< Nari Motiram Hira (supra), the has Court observed that there was a personal property dispute which arose in connection with business activities. It does not involve public policy and had amicably resolved all their contentious issues. 12. The question here is, whether, it is a personal issue or a public issue and the offences are compoundable or not compoundable. Adnnittedly, in Nari Motiram Hira (supra), the FIR was quashed where the offences were non- compoundable. 13. This Court has recently while referring to the case: of Gii^n Singh (supra) adjourned the matter sine die and proceedings before the Trial Court v\/ere stayed. 14. I make it clear that on that day, the judgment of the Division Bench of the Bombay High Court in Nari Motiram Hira (supra), was not referred and the Bombay High Court had quashed the FIR saying that until tlie decisions of the Apex Court are in force as of now are to be ove.Tuled, the Court would be obliged to follow the sam^e as a binding precedent. 15. Here is the case where the petitioner No.l who is a final year student of MBA and the petitioner No.2 wi'io is a qualified CRL.M.C. 1879/2011 Page 6 of 8 MBA. The father of petitioner No.l/|V|s.Alisha Sharma is worl<ing as T.T.E. in the Indian Railways and he sent petitioner No.l to pursue her MBA degree in Delhi. Both the petitioners together allegedly committed a crime at a stage, when they have not even started their career. 16. Respondent No.2/Shri Javed Chauhan, who is present in person along with his counsel submits that the Bank has already recovered the total amount of Rs.95,000/- from the petitioners and from the salesman as well. 17. If the petitioners are of this dubious attitude and have this lifestyle, definitely, it would be deterrent for the society and individual'; as well. Both the petitioners are present in Court and submit that it is their first offence and'will not repeat the same in future. 18. After hearing. Id.counsel for the parties, and in the present circumstances, I support the view taken by the Division Bench of the Bombay High Court in Nari Motsram Hira (suprc^) and in the interest of justice; I quash the FIR No.77/2011 under Section 419/420/468/471/120B Indian Penal Code, 1860 registered with Police Station Saket. CRL.M.C. 1879/2011 Page 7 of 8 19. The Id. APP for the State submits that the FIR was lodged on 24.02.2011 and the compromise was arrived at within two days i.e., 26.02.2011. Although, the petitioners have committed serious offences and have only undergone 8-9 days in judicial custody, a heavy cost should be imposed on the petitioners which can be utilized for the welfare purposes. 20. I find force in the arguments of Id. APP for the State. Therefore, I impose costs of Rs.llac each on both petitioners. They shall deposit the said amount by way of a demand draft with "Home for Old and Aged" 3t Tilak Marg, New Delhi, within two weeks. The proof the same shall be placed on record. In addition, both the petitioners shall serv? as volunteers at - the "Home for Old and Aged" at Tilak Marg for a period of 02 weeks from 10:00 AM to 5:00 PM and as a proof of their presence, a daily record be placed on record. 21. The petition stands disposed of in the aforesaid terms. 22. Order dasti under the signatures of the Court Master. SURESH KAAT, J AUGUST 26, 2011 vk CRL.M.C. 1879/2011 Page 8 of 8 $-19 * IN THE HIGH COURT OF DELHI AT NEW DELHI + CrI.M.A.No.11572/2011 in CRLM.C. 1879/2011 ALISHA SHARMA & ANR Petitioner Through : jVlr.Satvinder Singh & Mr.jvl.H.Ansari, Advs. versus STATE & ANR Respondent Through : Ms.Ritu Gauba, APR for State CORAM: HON'BLE MR. JUSTICE SURESH KAIT ORDER % 28.09.2011 1. Vide this application, the applicants have prayed as under:- "a) Also it is prayed that this l-ion'bie court may l<indly excuse the petitioners from doing volunteer work at Delhi as the petitioners are residents of Ludhiana (Punjab) and^ it would involve extreme hardship & expenditure on the petitioners if they were to stay and render services at New Delhi." 2. It is stated that vide order dated 26.08.2011, both the applicants were directed to deposit a sum of ? 1.00 lac each as costs and were further directed to be deposited in favour-of CRL.M.C. 1879/2011 Page 1 of 3 \ 'Home for Old and Aged' at Tilak Marg, New Delhi. However, despite of best efforts and inquires, could not locate the above said institution. 3. In the circumstances, 1 modify the order dated 26.08.2011 to the extent that the total costs of ^ 2.001acs as was directed vide said order shall be paid in favour of 'Delhi Child Welfare Fund', at Child Protection Unit, Department of Women and Child Development, 1, Canning Lane, K. G. Marg, New Delhi. It is further directed that the same amount shall be disbursed for the welfare of the mentally retarded children in favour of School & Home for Mentally Retarded Children, Avantika, Sector - 1, Rohini, Delhi - 85, within a period of two weeks from today. The proof thereof shall also be placed on the record. 4. It is further directed, the said amount shall be deposited in the account of the principal of abovesaid school. In case, the principal does not have any separate account, then within two days from the receipt of copy of this order, the account shall be opened and the said amount shall be deposited therein. 5. Needless to state that this amount shall be utilized for the CRL.M.C. 1879/2011 Page 2 of 3 well being of the children of the above nanned school. 6. I, further modify the order dated 26.08.2011 and the applicants are waived from doing service, as directed by the said order. 7. No further orders are required. 8. Accordingly, Criminal M.A.No.11572/2011 stands allowed and disposed of. SEPTEMBER 28, 2011 Mi SURESH KAITJ CRL.M.C. 1879/2011 Page 3 of 3