IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 22ND SEPTEMBER 2008 / 31ST BHADRA 1930 Crl.MC.No. 1420 of 2008() ------------------------- (C.C.NO: 292/2002 OF CHIEF JUDICIAL MAGISTRATE'S COURT, ERNAKULAM) ------------------ PETITIONER(S): ACCUSED ---------------------- G.GOPALAKRISHNA PILLAI, AGED 58 YEARS, S/O.LATE G.BHASKARA PILLAI, PROPRIETOR, M/S.DIVYA EXPORT ENTERPRISES, SMITHALAYAM, DECENT JUNCTION, KOLLAM. BY ADV. SRI.GEORGE JACOB (JOSE) SMT.MEREENA JOSEPH RESPONDENT(S): COMPLAINANTS --------------------------- 1. CENTRAL BUREAU OF INVESTIGATION, COCHIN REPRESENTED BY IT'S STANDING COUNSEL, HIGH COURT OF KERALA, ERNAKULAM. 2. THE BANK OF BARODA REPRESENTED BY IT'S SENIOR MANAGER, KOLLAM BRANCH, KOLLAM. ADV. SRI.M.V.S.NAMBOOTHIRY,SC, C.B.I. FOR R1 SRI.DEVAN RAMACHANDRAN FOR R2 SRI.K.M.ANEESH FOR R2 THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 22/9/2008 , THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. ------------------------------- CRL.M.C. No.1420 OF 2008 ------------------------------- Dated this the 22nd September, 2008. O R D E R The petitioner herein is the sole accused in C.C.292/2002 on the file of the Chief Judicial Magistrate's Court, Ernakulam for an offence punishable under Section 406 of the Indian Penal Code. Now his prayer in this Crl. M.C. Is to call for the records relating to Annexures A to G and quash Annexure G charge sheet and all the proceedings in C.C.No:292/2002 pending before the Chief Judicial Magistrate's Court, Ernakulam. 2. The allegations against the petitioner are that the second respondent herein had entrusted 6510 bags of raw cashew nuts imported by the petitioner for his own purposes under trust receipt with a direction to process and export the same and to submit export bills to the bank upon shipment of the consignment or in the case of no export, to pay the value in cash or to re-pledge it and the further allegation is that a part of the same had been misappropriated or converted for his own use by the petitioner in violation of the terms of entrustment. It is also the allegation that Crl.M.C.1420/2008 2 the petitioner had dishonestly misappropriated/converted into his own use the cashew nuts worth Rs,2,48,91,500/- during March to October 1998 which was entrusted with him under cash credit hypothication agreement for processing and exporting and making payments after shipment. Thus according to the first respondent the petitioner had committed the offences punishable under Section 406 IPC. On the basis of the said allegation the CBI had suo motu initiated enquiry and an FIR was registered. 3. It is also the case of the petitioner that he had approached this Court in an earlier occasion by filing Crl. M.C.1946/2006 which was disposed of by this Court by Annexure A judgment dated 27/7/2006 directing the court below to defer trial for two months to enable the parties to work out a settlement after considering the factum of settlement talks which were going on between the parties and that the offence itself was compoundable. After completion of the investigation, the first respondent has filed a final report in which all the bank officials had been exonerated and the petitioner alone was charge sheeted for the offence under Section 406 of IPC. It is the case of the petitioner that though initially the first respondent had registered case for several persons including bank Crl.M.C.1420/2008 3 officials in the official charge sheet the bank officials have been deleted from the party array and the CBI is now proceeding only against the petitioner. It is the further case of the petitioner that on considering the dispute it can be seen that there is only civil dispute which arose out of a commercial contract and if so, the civil loss if any can be realised by other means and for that purpose the criminal case need not be continued and the same can be compounded. Therefore it is prayed that the Annexure G charge against the petitioner and all proceedings in C.C.292/2002 of the Court of Chief Judicial Magistrate, Ernakulam may be quashed. 4. I have heard counsel for the petitioner as well as the standing counsel for the first respondent and also counsel for the second respondent. 5. During the course of argument, the learned counsel for the petitioner invited my attention to Annexure D petition and the terms and conditions of the same and it is pointed out that on the basis of Annexure D settlement the Debts Recovery Tribunal, Ernakulam decreed the suit and from Annexure F order it can be seen that the Tribunal has granted time till 11.9.2008 under Section 27(1) of the RDDBI Act to pay the liability under the Recovery Certificate and I.A Crl.M.C.1420/2008 4 is disposed of accordingly. The learned counsel for the second respondent submitted that balance amount is still due to bank and the entire amount has paid off. No doubt, they can proceed the matter before the Tribunaland the amount can be realized. 6. The learned counsel for the petitioner on the strength of the Apex Court decision in Nikhil Merchant v. Central Bureau of Investigation {2008(3)KLT 769 (SC)} submitted that as the civil dispute has already been settled in terms of compromise between the rival parties, criminal proceedings can be quashed under Section 482 on the basis of compromise. In paragraphs 23 and 24 of the above decision the Apex Court has held as follows:- “23. In the instant case, the disputes between the Company and the Bank have been set at rest on the basis of the compromise arrived at by them whereunder the dues of the Bank have been cleared and the Bank does not appear to have any further claim against the Company. What, however, remains is the fact that certain documents were alleged to have been created by the appellant herein in order to avail of credit facilities beyond the limit to which the Company was entitled. The dispute involved herein has overtones of a civil dispute with certain criminal facets. The question which is required to be answered in this case is whether the power which independently lies with this Court to quash the criminal proceedings pursuant to the compromise arrived at, should at all be exercised? 24. On an overall view of the facts as Crl.M.C.1420/2008 5 indicated hereinabove and keeping in mind the decision of this Court in B.S.Joshi's case (supra) and the compromise arrived at between the Company and the Bank as also clause 11 of the consent terms filed in the suit filed by the Bank, we are satisfied that this is a fit case where technicality should not be allowed to stand in the way in the quashing of the criminal proceedings, since, in our view, the continuance of the same after the compromise arrived at between the parties would be a futile exercise.” 7. The standing counsel for the CBI fairly conceded that he has no objection applying the principle laid down by the Apex Court in the present case. 8. In the light of the above finding and the dictum laid down by the Apex Court, I am of the view that the benefit of the above decision can be extended in favour of the petitioner in the present case. It is beyond dispute that the matter has been amicably settled between the rival parties and the Debt Recovery Tribunal and has passed a decree and the execution proceedings is pending and substantial amount of Rs.68.75 lakhs has already been paid in favour of the second respondent and the second respondent can proceed further in the Tribunal for the realisation of the remaining balance amount. However, disposal of this Crl.M.C., quashing of proceedings pending against the petitioner will not adversely affect Crl.M.C.1420/2008 6 the second respondent from realising remaining amount and the second respondent can continue the proceedings pending before the Chief Judicial Magistrate for the realisation of the balance amount. In the result this Crl. M.C. Is allowed quashing Annexure G charge sheet and all proceedings in C.C.292/02 of the Court of Chief Judicial Magistrate, Ernakulam. There will be no order as to costs. V.K.MOHANAN JUDGE jj