IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 1.10.2010 CORAM THE HONOURABLE MR. JUSTICE G.M. AKBAR ALI CRL.O.P.No.8711 of 2010 and M.P.No.1 of 2010 and Crl.O.P.No.21428 of 2010 Crl.O.P.No.8711 of 2010 S.P. Velayutham .. Petitioner in both the petitions vs. 1. The Deputy Superintendent of Police CBI:EOW:Chennai Rajaji Bhavan Chennai-90 Ref:RC.No.6/E/2009-CBI/EOW/ Chennai dated 17.4.2009 ...in both the petitions 2. Rakindo Developers Private Limited rep by its authorised signatory V.K. Venkataraman No.1, Subburaya Avenue C.P. Ramaswamy Road (in Crl.OP.No.8711/10) Alwarpet, Chennai-600 018 ..Respondents in both the petitions Criminal Original Petitions filed under Section 482 Cr.P.C. for the reliefs as stated therein. Crl.OP.No.8711 of 2010: To call for the records and quash the proceedings in CC.1859/2010, pending on the file of the ADDITIONAL CHIEF METROPOLITAN MAGISTRATE, EGMORE, CHENNAI, for alleged offences under section 419, 420 and 120B r/w 420, 419 & 409 IPC. Crl.OP.No.21428/10: To direct the respondent to return the passport of the petitioner bearing NO.F2889377 seized during investigation in CC.NO.1859 OF 2010 pending on the file of the ADDITIONAL CHIEF METROPOLITAN MAGISTRATE EGMORE CHENNAI. For petitioner : Mr.A. Ramesh, Senior counsel for Mr.M. Jeeva For 1st respondent : Mr.N. Chandrasekaran Spl.P.P. For CBI For 2nd respondent : Mr.P. Amalanathan https://hcservices.ecourts.gov.in/hcservices/ C O M M O N O R D E R The petition in Crl.O.P.No.8711 of 2010 is filed seeking a direction to call for the records and quash the proceedings in C.C.No.1859 of 2010, pending on the file of the learned Additional Chief Metropolitan Magistrate, Egmore, Chennai for alleged offence punishable under Secs.419, 420 and 120-B r/w 420 and 409 IPC. 2. The petition in Crl.O.P.No.21428 of 2010 is filed seeking to return the passport of the petitioner bearing No.F2889377 seized during investigation in C.C.No.1859 of 2010 pending on the file of the learned Additional Chief Metropolitan Magistrate, Egmore, Chennai. 3. The petitioner and four others were charged for an offence punishable under Sec.120-B, 419, 409 and 420 IPC. The 2nd respondent preferred a complaint alleging that the petitioner and four others had received a sum of Rs.171,11,11,111/- ( Rupees One hundred and seventy one crores eleven lakhs, eleven thousand and hundred and eleven) towards real estate transaction with regard to properties which had defective title and failed to return the amount . The complaint was taken for investigation by the Central Crime Branch, Chennai in Cr.No.119 of 2009 on 3.4.2009 for the offence under Sec.120-B, 406, 409 and 420,45, 477 IPC. The 2nd respondent approached this Court in Crl.O.P.No.5099 of 2009 for an order directing the investigation to be handed over to the first respondent viz., Central Bureau of Investigation, E.O.W, Chennai and this Court passed an order to hand over the investigation and the first respondent registered a case in FIR No.RC.6/E/2009-CBI [EOW/Chennai dated 17.4.2009. That order was challenged before the Hon'ble Supreme Court. When the appeal was pending, the first respondent filed final report for the above said offences. On 22.3.2010, it was taken on file by the Addl.C.M.M, Egmore in CC No.1859 of 2010. 4. When the matter is pending, there were memo of understandings between the petitioner and the defacto-compalinant and the petitioner seems to have repaid the entire amount payable to the defacto-complainant and they have compromised the matter. Now the petitioner has come forward before this Court to quash the proceedings in CC No.1859 of 2010, pending on the file of the learned Additional Chief Metropolitan Magistrate, Egmore, Chennai. 5. Though various grounds viz., Prosecution has been maliciously instituted with an ulterior motive; Absence of the element of dishonesty to constitute "cheating" and No meeting of minds to bring in the theory of conspiracy were raised in the petition the main ground urged before this Court is that the matter has been compromised between the accused and the defacto-complainant and the petitioner need not undergo the ordeal of trial and the charges may be quashed. 6. Mr.A. Ramesh, learned Senior counsel for Mr. Jeeva, learned counsel for the petitioner submitted that the matter has been compromised between the parties and the memo of compromise has also been executed and the same may be taken into consideration to quash the proceedings. The learned counsel relied on the following https://hcservices.ecourts.gov.in/hcservices/ judgment of the Apex court and this Court, wherein the courts have considered the compromise arrived between the parties even in the non-compoundable offences. (a) 2008 (9) SCC 677 (Nikhil Merchant vs CBI and another) (b) 2008 (14) SCALE:44 (Manoj Sharma vs State and Others) (c) Crl.O.P.No.29815/2004 (Madras HC) dated 3.9.2008 (P.S. Shenoy vs G. Krishnamurthy) (d) Crl.O.P.No.1517/2006 (Madras HC) dated 17.2.2010 (K.K.V. Seetharaman and Ors vs State and others (e)Crl.O.P.No.25686/2009 (Madras HC) dated 3.8.2010 (K. Dhamodharan vs State and another) (f) 2009 (6) SCC 351 (CBI vs A. Ravishankar Prasad) 7. The ratio laid in Nikhil Merchants case reported in 2008 (9) SCC 677 (cited supra), is that when the dispute involved has overtones of a civil dispute with certain criminal facets and if the parties have chosen to settle their dispute technicality should not interfere. The question which was required to be answered in that case was whether the power which independently lies with the Court to quash the criminal proceedings pursuant to the compromise arrived at should at all be exercised and the Apex Court has held technicality should not be allowed to be stand in the way of quashing the criminal proceedings in view of the compromise arrived at between the parties. The Supreme Court, again and again has held that when the dispute between the parties remained one of a personal nature, once the complainant decided not to pursue the matter further the High Court could have taken a more pragmatic view and should not have refused to quash the proceedings. 8. This principle was followed in Manoj Sharma's case reported in 2008 (14) SCALE:44(cited supra), wherein the Hon'ble Supreme Court applied the ratio in a case of matrimonial dispute. 9. Following the principles laid down by the Hon'ble Supreme Court, this Court in Crl.O.Ps.No.29815/2004, 1517/2006 ,25686/ 2009 had quashed the proceedings and in all these cases, there was a compromise between the parties where the offences involved were sec.406,409 and 420 IPC. 10. In 2009 6 SCC 351, (CBI vs A. Ravishankar Prasad), the Apex Court has held as follows: "15. Undoubtedly the High Court possesses inherent powers under section 482 of the Code of Criminal Procedure. These inherent powers of the High Court are meant to act ex debito justitiae to do https://hcservices.ecourts.gov.in/hcservices/ real and substantial justice, for the administration of which alone it exists, or to prevent abuse of the process of the court. Inherent power under Section 482 Cr.P.C can be exercised in following category of cases:(1) to give effect to an order under the Code:(ii) to prevent abuse of the process of court, and (iii) to otherwise secure the ends of justice. This court time and again has observed that the extraordinary power under section 482 Cr.P.C should be exercised sparingly and with great care and caution. The court would be justified in exercising the power when it is imperative to exercise the power in order to prevent injustice. In order to understand the nature and scope of power under section 482 Cr.P.C it has become necessary to recapitulate the ratio of the decided cases". 11. The learned counsel for the petitoners also relied on an unreported judgment in crl.op No.24756 of2008 dated 23.12.2008 of this Court, wherein this Court followed the principles laid down in Nikhil Merchant's case and Manoj Sharma's case. 12. Mr.P. Amalnathan, learned counsel for the second respondent submitted that the parties have entered into a compromise and the Board of the Directors of the defacto-complainant passed a resolution authorising two persons to enter into a compromise. The learned counsel also produced the memo of compromise and the resolution dated 21.12.2008. One Mr.V.K. Venkatraman, the signatory to the compromise was also present and filed an affidavit confirming such compromise between the parties. 13. Mr.Chandrasekaran, learned Special Prosecutor for CBI submitted that on the direction of this Court the 1st respondent has registered a case and investigated the matter and laid a charge sheet which is pending trial and as far as the grounds raised in the petition is concerned, they are untenable and the proceedings cannot be quashed on those grounds. 14. I have perused the materials available on record and considered the arguments of the learned senior counsel for the petitioner and the learned counsel for the respondent. For the alleged transaction of Rs.171,11,11,111/- in a real-estate transaction a complaint has been given by the 2nd respondent company, initially to the Commissioner of Police, Chennai and on the instance of the defacto-complainant, this Court has directed the 1st respondent to register a case and investigate and on the order of this Court, the 1st respondent has investigated the matter and final report was filed. 15. Admittedly, the parties have now compromised and in fact, the defacto-complainant has received almost 170 crores of rupees from the petitioner. In a cases of this nature, the Hon'ble Supreme Court has laid down the principle that the technicality should not https://hcservices.ecourts.gov.in/hcservices/ interfere, when the compromise was arrived between the parties. Following the ratio laid down in Nikhil Merchant's case and Manoj Sharma'scase., the cases of such nature, where the dispute between the parties is of personal nature and the complainant decided not to pursue the matter, the Courts are exercising the power of Sec.482 Cr.P.C to quash the proceedings in non-compoundable offences. 16. It is well settled that if the dispute involved had overtones of civil dispute with certain criminal facets, the courts can interfere and exercise its power under Sec.482 Cr.P.C. 17. In the decision rendered in Ravi Shankar Prasad's case, reported in 2009 (6) SCC 351 (cited supra), the court had interfered the order of the High Court, wherein 92 witnesses have already been examined and the quashing of the charge would have very serious repercussions on the other pending cases. 18. Considering the various principles laid down in the various judgments, the present case would also fit in the settled principles laid down by the Apex Court. In the instant case, the petitioner and four others were charged for the offence punishable under Secs.120-B, 419, 409 and 420 IPC. The petitioner have been implicated both for compoundable and non- compoundable offences. The Memo of compromise would show that the petitioner had entered into various memorandum of compromise with the defacto-complainant for settling the entire outstanding amount. He has paid a sum of Rs.170 crores between April 2009 and September 2010. 19. It is pertinent to note that the defacto-complainant has approached this Court to register a FIR against the petitioner and this Court obliged by granting an order. The defacto-complainant again approached this Court for the transfer of the investigation to the CBI and this Court had again obliged to pass such an order. There were many proceedings between the parties before this Court between August 2009 to April 2010. Various orders have been passed by this Court in favour of both the parties. At this juncture, this Court could not avoid but wondering whether the intervention of this Court in various proceedings was only to facilitate the defcto- complainant for the recovery of the amount due and payable to him. When this Court ordered registration and investigation of the case by the Special Agency, thought fit that there was more element of criminal offence overtoning the civil dispute. It is evident from the records that the petitioner has been pressurised to repay the entire outstanding in various proceedings arising out of the pendency of a criminal case. The court issuing direction to register the case and investigate and at the same breath, exercise its power to quash the proceedings as the parties have entered into a compromise, should not be a mockery and such exercise may create doubts in the minds of a common man that the powers are misused or abused by the new creed of litigant who wish to circumvent the due process of law. The courts can not go in their aid. The parties cannot be allowed to enrich themselves to settle their score by invoking the discretionary powers of this Court. There shall be a severe warning to those new creed of litigants. At the same time this court also can not ignore the plight of the accused / petitioner. https://hcservices.ecourts.gov.in/hcservices/ 20. Therefore, I am of the considered view that the defacto- complainant, at whose instance this Court has ordered registration of a case and investigation by CBI and who has recovered the entire amount due and payable to him through a criminal proceeding shall suffer a cost which can be utilised for some philanthropic purpose. This Court has created Chief Justice Relief Fund for such purposes. It will be appropriate to direct the 2nd respondent to pay a cost Rs.50,000/- to the Chief Justice Relief Fund, High Court, Madras. 21. Crl.O.P.No.21428 of 2010 is filed by the petitioner for return of the passport seized during the investigation by the respondent. The petitioner has approached the learned Magistrate for the return of the passport and the learned Magistrate seems to have refused to pass such an order stating that the proceedings have been stayed by this Court in Crl.O.P.No.8711/2010. However, during the course of argument it is submitted that the passport was forwarded to The Regional Passport Officer for cancellation. In any event, the passport was not the property or the document seized and produced in relation to C.C No.1859 of 2010. However, the petitioner is entitled for the return of the passport. 22. For the reasons stated above, Crl.O.P.No.8711 of 2010 is allowed and the proceeding in C.C No 1859 of 2010, pending on the file of the learned Additional Chief Metropolitan Magistrate, Egmore, Chennai stands quashed and the 2nd respondent is directed to pay a sum of Rs.50,000/ to the Hon'ble Chief Justice Relief Fund, High court Madras, within a period of four weeks from the date of receipt of this order, failing which, the Registrar General, High Court, Madras is directed to initiate contempt proceedings. Consequently, connected MP is closed. 23. In Crl.O.P.No.21428 of 2010,the petition is allowed and the respondent or the Regional Passport officer, Chennai, as the case may be,is directed to return the passport No.F2889377 seized during investigation in C.C.No.1859 of 2010 pending on the file of the learned Additional Chief Metropolitan Magistrate, Egmore, Chennai. sr Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar To 1. The Deputy Superintendent of Police CBI:EOW:Chennai Rajaji Bhavan, Chennai-90 2. The Public Prosecutor, High Court, Chennai + 10 cc to M/s. M. Jeeva, Advocate SR No.72836 RV(CO) SR/5.10.2010 Common Order in Crl.O.P.Nos.8711 and.21428 of 2010 https://hcservices.ecourts.gov.in/hcservices/