IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED 19.04.2010 CORAM THE HONOURABLE MR.JUSTICE C.T.SELVAM Crl.O.P.No.15572 of 2006 & M.P.No.1 of 2006 1.K.S.Elangovan 2.K.S.Ashokan .. Petitioners Vs 1.State represented by the The Inspector of Police Central Crime Branch IV Egmore, Chennai 2.Mrs.Vasantha Elangovan .. Respondents Criminal Original Petition filed under section 482 of Criminal Procedure Code praying to call for the records in C.C.No.7070 of 2005 on the file of learned XI Metropolitan Magistrate, Saidapet, Chennai. For Petitioners : Mr.S.Thirunavukarasu For Respondent 1 : Mr.J.C.Durairaj Govt.Advocate(Crl.Side) For Respondent 2 : Mr.T.P.Prabakaran O R D E R This petition seeks to quash proceedings in C.C.No.7070 of 2005 pending on the file of learned XI Metropolitan Magistrate, Saidapet, Chennai. 2.The complaint had been preferred by the 2nd respondent against the petitioners herein. In substance, the complaint is that she along with her husband viz., the 1st petitioner herein had started a business in the name of M/s.Vasantham Enterprises, https://hcservices.ecourts.gov.in/hcservices/ wherein she and her husband held 45% shares and their two sons each held 5%. There was marital discord between the 2nd respondent and the 1st petitioner. The 1st petitioner was ill-advised by the 2nd petitioner, who was the brother of the 1st petitioner. The 2nd respondent did not agree to the request of the 1st petitioner to include his brother as a partner. 3.There are several cases against the petitioners, but what is relevant for the purpose of the instant case is the allegation that the petitioners had forged her signature on Form V application and submitted the same before the Registrar of Firms on 31.01.2000 for the purpose of removing her from the partnership of M/s.Vasantham Enterprises. Her signature was forged in order to inform that she was an outgoing partner. She was thereby removed from the partnership. The date of the forged signature is 29.12.1999 as per Form V and during such relevant period, the 2nd respondent was in Singapore as could be ascertained from a perusal of her passport. The movable and immovable assets of M/s.Vasantham Enterprises had been transferred to another business concern by name M/s.K.S.Maniam Spices. Her holding value in M/s.Vasantham Enterprises was about Rs.30,00,000/- and by this act of forgery, the petitioners, sharing a common intention, had committed criminal breach of trust and cheating. 4.The case was registered in Crime No.451 of 2005 for offences under Sections 419, 420, 468, 471 r/w. 120B IPC by the 1st respondent, who, after investigation have filed a charge sheet against the 1st petitioner herein for offences under Sections 420, 471, 468 r/w. 34 IPC and against the 2nd petitioner for offences under Section 468, 420 r/w. 34 IPC. The petitioners have approached this Court by way of the present petition before commencement of trial in the case which is now pending in C.C.No.7070 of 2005 on the file of learned XI Metropolitan Magistrate, Saidapet, Chennai. 5.I have heard the learned counsel for the petitioners, the learned counsel for the 2nd respondent and the learned Government Advocate (Crl.Side) and also perused the materials available on record. 6.On the facts above stated, this is not a case for quash. The petitioners would have to establish their innocence in the course of trial. However, what is submitted on behalf of the petitioners is that though the case has certain criminal facets, the dispute between the parties is primarily civil in nature. The parties are closely related and they had agitated their causes before the Arbitrator. The learned Arbitrator had framed several issues and proceeded with the trial by examination of witnesses on either side. Both sides have marked documents and their arguments were also heard. https://hcservices.ecourts.gov.in/hcservices/ 7.The learned Arbitrator had issued necessary notice for passing of award. At that stage, the contesting parties represented that they had arrived at a settlement and they jointly file a memorandum of compromise towards giving a quietus to entire dispute. The following in the order of the Arbitrator is relevant and reproduced hereunder: "65.On 30.04.2006 a sitting was held to enable the parties to file a joint memorandum of compromise. At the inception, the claimant and the contesting respondent placed a draft memorandum of compromise before the Arbitral Tribunal. One of the sons of the claimant and the first respondent, namely, the second respondent who had neither filed a claim nor reply administered a warning to his mother, the claimant and walked out of the proceedings. The contesting claimant and first respondent filed a joint memorandum of compromise and requested that an award may be passed in terms of the Joint Memorandum. The minutes recorded on 30.04.2006 reads thus "..... The claimant and the First Respondent represented that after discussions, they arrived at a settlement to which the second respondent is not ready subscribe. The Second Respondent stated that he has not made any claim in the present Arbitral proceedings and hence he is walking out. The counsel for third respondent filed a memo to the effect that the third respondent is agreeable to record the memo of compromise entered between the claimant and the First respondent, this is taken on file. Though the compromise relates to many matters, which is beyond the scope of the present Arbitral Proceedings, parties were apprised that only in respect of the dispute pending before this Arbitral Tribunal, an award could be passed. The Arbitral Tribunal suggested that in respect of the claim and matters which are outside Arbitration, the compromise memo will be just taken on file as a record of understanding between the parties. On that both parties subscribed to a fresh joint memorandum before this Arbitral Tribunal along with their counsel and the same is taken on file. On the basis of the Joint memorandum, this Arbitral Tribunal will pass an award. ....." 66.Considered the terms of the compromise duly signed by the contesting parties namely claimant and first respondent, the other parties have neither filed a claim nor reply. The third respondent filed vakalath through counsel and he has neither objected to the recording nor had made any claim https://hcservices.ecourts.gov.in/hcservices/ whatsoever. The memo filed on behalf of the third respondent to such an effect is taken on file. 67.The joint memorandum of compromise signed by the claimant and the contesting first respondent reads thus: "The claimant and the first respondent agree to the following terms of settlement among themselves: 1.In lieu of the claimant giving up all her claims in the present Arbitral Proceedings, the first respondent agree to induct the claimant as a 40% partner in M/s.S.M.Elangovan Spices, hitherto a sole proprietary concern of the First Respondent. 2.Both the parties agree that on and from today, the Claimant and the First Respondent shall be partners in M/s.S.M.Elangovan Spices and their share shall be at the ratio of 60:40 both in profit and loss. 3.Both the parties agree that a formal instrument of partnership will be executed converting the sole proprietary concern of the said S.M.Elangovan Spices as a partnership within three weeks from the date of passing of the award in this Arbitral Proceedings. 4.The Claimant and the First Respondent agree that the proposed partnership shall take over the assets and bear the liabilities of S.M.Elangovan Spices and share the profits, as per books of accounts, as of this date which is the date of induction of the claimant into the partnership. 5.The Claimant and First Respondent have signed this memorandum before this Arbitral Tribunal along with their respective counsel. 6.Both the parties jointly pray that in the above terms an award may be passed in this Arbitral Case." Dated at Chennai this 30th day of April 2006 Sd/- Sd/- Claimant First Respondent Sd/- Sd/- Counsel for Claimant Counsel for First Respondent 68.The claimant and the first respondent being the wife and husband represented that they are reunited and settled all the differences among themselves. The Arbitral Tribunal questioned both the wife and the husband and satisfied itself with respect to the genuineness and bonafides of the settlement arrived at. It is obvious that the husband and wife between whom differences arose and who have been litigating before various forums, after realizing the futility of litigation, they have entered the compromise in the best interest of both of them and their unmarried son, the third respondent. Their first son who is the second respondent walked out of the proceedings after https://hcservices.ecourts.gov.in/hcservices/ expressing dissent with his mother. His stand and conduct will in no way alter the compromise as he is neither a claimant nor has made any claim in the present proceedings. 69.While considering the relationship between the parties, the utmost desire between the husband and wife to re unit and lead a normal life, there will be an award in terms of the compromise memorandum. The compromise give quietus to the entire dispute between the parties. 70.There will be an award in the following terms: A.The first respondent shall induct the claimant as a 40% partner in M/s.S.M.Elangovan Spices, hitherto a sole proprietary concern of the First Respondent in lieu of the claimant giving up all her claims against the first respondent. B.The first respondent and the claimant shall be partners in M/s.S.M.Elangovan Spices on and from today and their share shall be at the ratio of 60:40 both in profit and loss. C.A formal instrument of partnership shall be executed converting the sole proprietary concern of the said S.M.Elangovan Spices as a partnership within three weeks from this date. D.The newly created partnership firm shall take over the assets and bear the liabilities of S.M.Elangovan Spices – the sole proprietary concern of the first respondent and share the profits, as per books of accounts, as of 30.04.2006 which is the date of induction of the claimant into the partnership. E.There shall be no order as to costs." 8.The memorandum of compromise filed before the Arbitral Tribunal reads as follows: "1.The 1st Respondent is the sole proprietor of M/s.S.M.Elangovan Spices. The 1st Respondent is now agreeing to convert the same into a Partnership Firm and agreed to induct the claimant as a Partner in respect of the same. The 1st Respondent and the Claimant shall share the profit and losses in the ratio of 60:40. 2.The 1st Respondent agree to execute the Partnership Deed within three weeks from the date of passing of the award. 3.On execution of the Partnership Deed between the 1st Respondent and the Claimant, the Claimant undertakes to withdraw the civil case instituted by the Claimant and the criminal case filed against K.S.Elangovan & S.Ashokan. The Claimant also agrees to sign the necessary consent affidavit https://hcservices.ecourts.gov.in/hcservices/ for withdrawal of the criminal cases. 4.The 1st Respondent states that the assets and liabilities of M/s.K.S.Maniam Spices has been taken over by M/s.S.M.Elangovan Spices. The 1st Respondent and the Claimant agree to bear the liabilities of M/s.S.M.Elangovan Spices as per the books of accounts." The same has been signed both by the 1st petitioner herein as also the 2nd respondent and their respective counsels. 9.The contention on behalf of the petitioners is in keeping with this memorandum of compromise, the 2nd respondent had been inducted into the company as a Director formed in the name of M/s.S.M.Elangovan Spices. This is, reflected in the memorandum of association of such company, which had been signed both by the 1st petitioner as also the 2nd respondent. Having had the advantage of a huge share holding in the company that had been formed, the 2nd respondent had gone back on the compromise as contained in the memorandum of compromise entered into between the parties and had not filed any affidavit as undertaken therein or done anything further, towards withdrawal of the criminal case. The action of the 2nd respondent is most unfair in her conduct. In circumstances, where she had derived the benefit of compromise arrived at between the parties, the proceedings before the lower Court as against the petitioners herein could be quashed on equitable considerations. 10.The 2nd respondent has filed an affidavit informing that the share allotted to her was in respect of other claims that she had raised in the course of arbitration and as compensation for loss suffered, of 45% share in M/s.Vasantham Enterprises and other related matters. The 40% share in the new company was not given to her towards signing the compromise memo. She had been forced to sign the memorandum of compromise by the petitioners and was willing to give evidence before the trial Court to such effect. 11.A reading of the proceedings of the Arbitrator shows that one of the issues framed was 'whether the Form V filed before the Registrar of Firms had been signed or forged as pleaded by the claimant(2nd respondent)'. It is quite clear that the compromise had been entered into and no demur had been made thereagainst by the 2nd respondent. The Arbitrator who has taken care to record that the son of the 1st petitioner and 2nd respondent expressed his dissatisfaction and walked out of the arbitration proceedings, certainly would have recorded the protest, if any, regarding the memorandum of compromise. It is apparent that the claim of the 2nd respondent of having been forced to entered into the compromise is an afterthought. The Honourable Apex Court in Rajneesh Aggarwal v. Amit J.Bhalla AIR 2001 S.C. 518 has observed as follows: https://hcservices.ecourts.gov.in/hcservices/ "7.So far as the question of deposit of the money during the pendency of these appeals is concerned, we may state that in course of hearing the parties wanted to settle the matter in Court and it is in that connection, to prove the bona fide, the respondent deposited the amount covered under all the three cheques in the Court, but the complainant's counsel insisted that if there is going to be a settlement, then all the pending cases between the parties should be settled, which was, however not agreed to by the respondent and, therefore, the matter could not be settled. So far as the criminal complaint is concerned, once the offence is committed, any payment made subsequent thereto will not absolve the accused of the liability of criminal offence, though in the matter of awarding of sentence, it may have some effect on the court trying the offence. But by no stretch of imagination, a criminal proceeding could be quashed on account of deposit of money in the court or that an order of quashing of criminal proceeding, which is otherwise unsustainable in law, could be sustained because of the deposit of money in this Court. In this view of the matter, the so-called deposit of money by the respondent in this Court is of no consequence. 8.In the aforesaid premises, we set aside the impugned orders of the High Court and allow these appeals and direct that the criminal proceedings would be continued. The money which had been deposited by the accused in this Court, may be refunded to the accused though his counsel. The Magistrate is directed to dispose of the proceedings at an early date." 12.Thus, though on a prima facie consideration, this Court would consider the case before the trial court, not one, which would be amenable to exercise of power under Section 482 Cr.P.C. towards quash of proceedings therein, from the reading of the judgment of the Honourable Apex Court cited supra, it can be deduced that when a party had entered into a memorandum of compromise and subsequently, goes back thereupon, such party should not be permitted to hold on to benefit that it had obtained by virtue of compromise. 13.This Court would state that while it will be open to the 2nd respondent to establish her claims as against the petitioners by way of separate proceedings and by recourse to all avenues open to her in law, she cannot, as of right, claim the interest of 40% share holding in the company by name M/s.S.M.Elangovan Spices. This is so, because, it is abundantly clear that such share holding had been afforded to her solely on the basis of compromise arrived at. 14.With the above observations, this Criminal Original https://hcservices.ecourts.gov.in/hcservices/ Petition shall stand dismissed. Consequently, the connected miscellaneous petition is closed. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. gm To 1.The XI Metropolitan Magistrate, Saidapet. 2. do thro the Chief Metropolitan Magistrate Egmore, Chennai-8 3.The Public Prosecutor, High Court, Madras. 4. The Inspector of Police Central Crime Branch IV Egmore, Chennai 1 cc to Mr.T.P. Prabakaran, Advocate, SR. 25524 1 cc to Mr.S. Thirunavukkarasu, Advocate, SR. 25554 Crl.O.P.No.15572 of 2006 & M.P.No.1 of 2006 RSI (CO) kk 3/5 https://hcservices.ecourts.gov.in/hcservices/