1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 2424 OF 2010 M/s. Bhaichand Amoluk Consultancy Services Pvt. Ltd. and Anr. ...Applicants Vs. Export Credit & Guarantee Corporation of India Ltd. and Anr. ...Respondents ----- Mr. Subhodh Desai for Applicants Ms. Priyanka Vegal i/b. M/s. Munilal Kher Ambalal & Co. for Respondent No.1 Mr.S.R. Shinde -APP for State. ------ CORAM: V.M. KANADE J. DATED: 8TH JUNE, 2010 P.C. 1. Heard the learned Counsel appearing on behalf of the Applicants, the learned APP for the State and the learned Counsel appearing on behalf of the Respondent No.1- Original Complainant. 2. The Applicants have filed this application for quashing the complaint filed by the Respondent No.1 in the Court of the learned Additional Chief Metropolitan Magistrate, 38th Court, Ballard Pier, Mumbai and 2 process issued on the said complaint which was filed for the offence punishable under sections 406, 409 and 420 of the Indian Penal Code. The Original Complainant had also filed a suit in this Court vide suit No. 1268 of 2010. 3. The learned Counsel for the Applicants submitted that the partied have resolved the dispute and have filed consent terms to the said suit and an order was passed by this court on the consent terms and suit has been disposed of in terms of the consent terms. In clause (3) of the consent terms, the Original Complainant has given an undertaking to withdraw the complaint filed by them in the Court of Metropolitan Magistrate. The learned Counsel for the Applicants submitted that though offences under sections 406 and 420 are compoundable, offence under section 409 is non-compoundable and, therefore, the Complainant is not in a position to withdraw the complaint filed by them in the Trial Court. It is further submitted that even otherwise, provisions of section 409 are not attracted since the money was not entrusted admittedly by the Complainant to the present Applicants. 4. In my view, taking into consideration the consent terms filed by the parties in this court and order passed by this court dated 15th April, 2010, the 3 process issued filed by the Respondent No.1 can be quashed. The dispute between the parties is of civil dispute regarding payment of certain amount. The Respondent No.1 does not wish to pursue the said complaint and, as such, therefore, in my view, no fruitful purpose will be served in continuing the said complaint since the dispute between the parties is based on contractual obligation arising out of the contract executed between the parties. 5. Though the provisions of section 409 are non- compoundable, the power of this Court to quash the said complaint under section 482 of Cr.P.C. is not restricted by virtue of provisions of section 320 of Cr.P.C. The Apex Court in several cases has held that the power of this Court under section 482 cannot be curtailed by virtue of provisions of section 320 of Cr.P.C. As a result, in view of the consent terms filed by the parties and civil suit filed in this Court, application is allowed and is made absolute in terms of prayer clause (b). 6. Application is disposed of. (V.M. KANADE J.)