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Wednesday, March 14, 2012

the dispute between the petitioners and the Banks having been compromised, we have to examine whether the continuance of the criminal proceeding could turn out to be an exercise in futility without anything positive being ultimately achieved. 19. As was indicated in Harbhajan Singh's case (supra), the pendency of a reference to a larger Bench, does not mean that all other proceedings involving the same issue would remain stayed till a decision was rendered in the reference. The reference made in Gian Singh's case (supra) need not, therefore, detain us. Till such time as the decisions cited at the Bar are not modified or altered in any way, they continue to hold the field. 20. In the present case, the fact situation is different from that in Nikhil Merchant's case (supra). While in Nikhil 20 Merchant's case the accused had misrepresented the financial status of the company in question in order to avail of credit facilities to an extent to which the company was not entitled, in the instant case, the allegation is that as part of a larger conspiracy, property acquired on lease from a person who had no title to the leased properties, was offered as collateral security for loans obtained. Apart from the above, the actual owner of the property has filed a criminal complaint against Shri Kersi V. Mehta who had held himself out as the Attorney of the owner and his family members. The ratio of the decisions in B.S. Joshi's case and in Nikhil Merchant's case or for that matter, even in Manoj Sharma's case, does not help the case of the writ petitioners. In Nikhil Merchant's case, this Court had in the facts of the case observed that the dispute involved had overtures of a civil dispute with criminal facets. This is not so in the instant case, where the emphasis is more on the criminal intent of the Petitioners than on the civil aspect involving the dues of the Bank in respect of which a compromise was worked out. 21 21. In the different fact situation of this case and those in B.S. Joshi's case or in Nikhil Merchant's case (supra), we are not inclined to grant the reliefs prayed for in the writ petition and the same is accordingly dismissed. 22. There will, however, be no order as to costs.


                                                                     1


                                                REPORTABLE




                    IN THE SUPREME COURT OF INDIA



                   CRIMINAL ORIGINAL JURISDICTION



                WRIT PETITION (CRL.) No.26 OF 2011





ASHOK SADARANGANI  & ANR.                  ...    PETITIONERS





                        VS.





UNION OF INDIA & ORS.                    ...       RESPONDENTS





                          J U D G M E N T





ALTAMAS KABIR, J.




1.    The issue which has been raised in this writ petition is



whether   an   offence   which   is   not   compoundable   under   the



provisions of the Criminal Procedure Code, 1973, hereinafter



referred   to   as   the   "Cr.P.C.",   can   be   quashed   in   the   facts



and circumstances of the case.  


                                                                      2




2.    The   writ   petitioner   No.1,   Ashok   Sadarangani,   opened   a



Current   Account   No.314   in   the   name   of   his   proprietary



concern,   M/s.   Internat   Impex,   Mumbai,   with   the   Bank   of



Maharashtra,   Overseas   Branch,   Mumbai.   The   said   account   was



subsequently   converted   by   the   Bank   into   Cash   Credit   Account



No.3   and   Cash   Credit   facility   of   Rs.125   lacs,   Import   Letter



of   Credit   facility   of   Rs.100   lacs,   Bank   Guarantee   facility



of   Rs.20   lacs   and   Forward   Contracts   upto   a   limit   of   Rs.300



lacs,   were   sanctioned   and   such   decision   was   conveyed   to   the



Petitioner   No.1   by   the   Bank   by   its   letter   dated   7th  July,



1999.     On   16th  October,   1999,   the   Bank   sought   additional



collateral   security   of   Rs.56   lacs   from   the   Petitioner   No.1,



who, on 29th December, 1999, submitted a Lease Deed dated 29th



December,   1999,   in   respect   of   an   immovable   property   leased



to   M/s.  Nitesh   Amusements  Pvt.   Ltd.  by   Shri  Homi   D.  Sanjana



and   his   family   members,   through   their   Constituted   Attorney,



Shri   Kersi   V.   Mehta.     The   Petitioners   herein   were   Directors



of the aforesaid company.


                                                                        3


3.    In   December,   2000,   six   irrevocable   Import   Letters   of



Credit for a total sum of Rs.188.01 lacs were opened by the



Bank   of   Maharashtra   on   behalf   of   M/s.   Internat   Impex,



Mumbai,   for   import   of   "houseware   items   &   rechargeable



lanterns"   and   "velvet   four-way   and   upholstery   materials".



The   documents   relating   to   the   said   Letters   of   Credit,



including   Bills   of   Lading,   Invoice   and   Bills   of   Exchange,



were accepted and collected by the Petitioner No.1 on behalf



of   the   firm   from   the   Bank   and   he   undertook   to   make   payment



on   the   due   date.     However,   the   Petitioners   defaulted   in



payment   of   their   liability   of   about   188   lacs   towards   the



Bank.     On   10th  April,   2003,   R.C.No.3/E/2003/CBI/EOW/MUM   in



Case No.3/CPW/2004, was registered at the behest of the Bank



of Maharashtra.   On 30th  June, 2003, on the complaint of the



Union Bank of India, Special Case No.3 of 2004, in CBI Case



R.C.No.8/E.2003/MUM, was registered by the Central Bureau of



Investigation, hereinafter referred to as "CBI", against the



Petitioners   alleging   that   they   had   secured   the   credit



facilities   by   submitting   forged   property   documents   as



collaterals   and   utilized   such   facilities   in   a   dishonest   and


                                                                        4


fraudulent manner by opening Letters of Credit in respect of



foreign   supplies   of   goods,   without   actually   bringing   any



goods   but   inducing   the   Bank   to   negotiate   the   Letters   of



Credit   in   favour   of   foreign   suppliers   and   also   by   misusing



the Cash Credit facility.





4.   Charge-sheet  was filed  in the  said Special  Case No.3  of



2004   on   14th  January,   2004.     At   about   the   same   time,   a



criminal   case,   being   No.236   of   2001,   was   registered   against



Shri   Kersi   Mehta   and   others   under   Section   120-B,   r/w   465,



467,   468   and   471   of   the   Indian   Penal   Code,   hereinafter



referred   to   as   the   "IPC".     The   said   case   was   registered



primarily   on   the   accusation   that   Shri   Kersi   Mehta,   in



connivance   with   the   Petitioner   No.1,   had   sought   to   sell   or



dispose   of   the   property   belonging   to   Shri   Homi   D.   Sanjana,



situated   at   Kandivli   and   Aksha   and   that   the   Powers   of



Attorney   dated   11.1.1996   and   24.1.1999,   which   had   been   used



by Shri Kersi Mehta in the transactions, were not genuine.





5.    In   2000   a   Civil   Suit,   being   S.C.   Suit   No.4849   of   2000,



was   filed   by   Shri   Homi   D.   Sanjana,   in   the   City   Civil   Court


                                                                      5


at   Bombay,   against   Shri   Kersi   Mehta   and   various   Government



authorities,   in   which   the   relief   sought   for   was   for   a



direction   upon   Shri   Kersi   Mehta   to   deliver   up   to   the   Court



the   said   two   Powers   of   Attorney   for   cancellation   of   the



same.





6.    It  is a  matter of  record that,  although, the  Petitioner



No.1   has   surrendered   and   is   on   bail   and   facing   trial,   the



Petitioner No.2 is yet to be arrested in connection with the



case.





7.    While   the   criminal   case   against   the   Petitioners   was



proceeding,   the   Union   Bank   of   India   wrote   to   the   Petitioner



No.1   on   27th  September,   2010,   offering   a   One-Time   Settlement



of   the   disputes   relating   to   the   transactions   in   question.



Subsequently,   on   27th  September,   2010,   a   compromise   proposal



relating   to   the   transaction   between   the   Petitioners   and   the



Bank   was  also   mooted  by   the  Asset   Recovery  Branch   at  Mumbai



of the Bank of Maharashtra and a communication was addressed



to   the   Petitioner   No.1,   which,   however,   made   it   clear   that



such   compromise   should   not   be   construed   as   settlement   of


                                                                     6


criminal   complaints/investigations/   proceedings   pending   in



the   court   against   the   borrowers/guarantors.     As   has   been



submitted during the course of hearing of the writ petition,



pursuant   to   such   offer   of   One-Time   Settlement,   dues   of   both



the   Banks   have   been   cleared   by   the   Petitioners   and   they



have,   therefore,   entered   into   a   compromise   with   the



Petitioners   indicating   that   they   had   no   further   claim



against the Petitioners.





8.    It is in this background that a separate application was



made   in   the   writ   petition,   being   Criminal   Misc.   Petition



No.1110   of   2012,   for   stay   of   further   proceedings   in



R.C.No.3/E/2003/CBI/EOW/   MUM   filed   by   the   CBI   and   pending



before   the   Additional   Metropolitan   Magistrate,   19th  Court,



Esplanade, Mumbai, and also Special Case No.3 of 2004 in CBI



Case   RC   No.8/E/2003/MUM   filed   by   the   CBI   before   the   Special



Judge at Mumbai, together with Criminal Case No.236 of 2001,



registered   with   Kherwadi   Police   Station,   Bandra   (East),



Mumbai.     The   same   has   also   been   taken   up   for   consideration



along with the writ petition for final disposal.


                                                                        7




9.     Appearing   in   support   of   the   writ   petition,   Shri   Mukul



Rohatgi,   learned   Senior   Advocate,   submitted   that   the   issue,



which has fallen for consideration in the writ petition, has



been considered in great detail in several decisions of this



Court.     Learned   counsel   submitted   that   in   some   cases   this



Court   had   exercised   its   powers   under   Article   142   of   the



Constitution   of   India   to   quash   proceedings   which   were   not



compoundable,   but   the   common   thread   which   runs   through



almost all the judgments is that the power to interfere with



even   non-compoundable   cases   was   not   doubted,   but   the   same



was   required   to   be   used   very   sparingly   and   only   in   special



circumstances.





10.    Shri   Rohatgi   submitted   that   the   facts   of   this   case   are



almost identical to the facts of the case in Nikhil Merchant



Vs.  Central   Bureau   of   Investigation   &   Anr.  [(2008)   9   SCC



677],   which   was   decided   on   20th  August,   2008.     Shri   Rohatgi



submitted   that   as   far   back   as   in   1996,   a   similar   issue   had



come   for   consideration   before   this   Court   in  Central   Bureau



of   Investigation,   SPE,   SIU(X),   New   Delhi  Vs.  Duncans   Agro


                                                                        8


Industries   Ltd.,   Calcutta  [(1996)   5   SCC   591],   in   which   the



provisions   of   Section   320   Cr.P.C.   were   considered   in   regard



to offences which constituted both civil and criminal wrong,



including   the   offence   of   cheating.     In   the   said   case,   this



Court   while   considering   the   aforesaid   issue   held   that



compromise   in   a   civil   suit   for   all   intents   and   purposes



amounted   to   compounding   of   the   offence   of   cheating.



Furthermore,   in   the   said   case,   the   investigations   had   not



been   completed   even   till   1991,   even   though   there   was   no



impediment   to   complete   the   same.     Having   further   regard   to



the   fact   that   the   claim   of   the   Bank   had   been   satisfied   and



the   suit   instituted   by   the   Banks   had   been   compromised   on



receiving   their   dues,   this   Court   was   of   the   view   that   the



complaint   and   the   criminal   action   initiated   thereupon,



should not be pursued any further.





11.    Shri Rohatgi then referred to the decision of this Court



in  Nikhil   Merchant's   case   (supra),   to   which   one   of   us



(Kabir,   J.)   was   a   party.     In   the   said   case,   what   was   urged



was   that   though   an   offence   may   not   be   compoundable,   it   did


                                                                         9


not   take   away   the   powers   of   this   Court   to   quash   such



proceedings   in   exercise   of   its   inherent   jurisdiction     under



Article   142   of   the   Constitution,   and   even   Section   320



Cr.P.C.   could   not   fetter   such   powers,   as   had   been   earlier



held in  B.S. Joshi  Vs.  State of Haryana  [(2003) 4 SCC 675].



It   had   also   been   contended   on   behalf   of   the   Union   of   India



that   the  power   under  Article   142  of   the  Constitution   was  to



be   exercised   sparingly   and   only   in   rare   cases   and   not



otherwise.  The fact that such a power vested in the Supreme



Court   under   Article   142   of   the   Constitution   or   the   High



Court under Section 482 Cr.P.C. was never in doubt, only the



manner of its application was in issue and it was held that



such power was to be used sparingly in order to prevent any



obstruction   to   the   spring   of   justice.   Taking   an   over   all



view   of   the   facts   in   the   said   case   and   keeping   in   mind   the



decision   in  B.S.   Joshi's   case   and   the   compromise   arrived   at



between the company and the Bank and the consent terms, this



Court   took   the   view   that   technicality   should   not   be   allowed



to   stand   in   the   way   of            quashing   of   the   criminal



proceedings,   since   the   continuance   of   the   same   after   the


                                                                    10


compromise had been arrived at between the parties, would be



a   futile   exercise.     Reference   was   also   made   to   another



decision   of   this   Court   in  Manoj   Sharma  Vs.  State   &   Ors.



[(2008) 16 SCC 1], where following the decisions rendered in



B.S.   Joshi's   case   and   in  Nikhil   Merchant's   case   (supra)   and



after   referring   to   various   other   decisions,   this   Court



ultimately   came   to   the   conclusion   that   continuance   of   the



criminal   proceedings   before   the   trial   court   would   be   an



exercise in futility and, accordingly, quashed the same.  





12.    To   buttress   his   aforesaid   submissions,   Mr.   Rohatgi   then



referred to and relied upon the decision in  Shiji @ Pappu &



Ors.  Vs.  Radhika & Anr.  [(2011) 10 SCC 705], where also the



question   of   quashing   of   proceedings   relating   to   non-



compoundable offences after a compromise had been arrived at



between   the   rival   parties,   was   under   consideration.   After



examining   the   powers   of   the   High   Court   under   Section   482



Cr.P.C.,   the   learned   Judges   came   to   the   conclusion   that   in



the   facts   and   circumstances   of   the   case,   the   continuance   of



proceedings would be nothing but an empty formality and that


                                                                    11


Section   482   Cr.P.C.   in   such   circumstances   could   be



justifiably   invoked   by   the   High   Court   to   prevent   the   abuse



of the process of law.   The learned judges, who decided the



said case, took into consideration the decisions rendered by



this   Court   in  B.S.   Joshi's   case,  Nikhil   Merchant's   case   and



also      Manoj   Sharma's   case   (supra)   in   arriving   at   the



aforesaid decision.





13.     Mr.   Rohatgi   submitted   that   application   of   the   law   as



laid   down   in   the     Duncans   Agro   Industries's   case,   and,



thereafter,   in       B.S.   Joshi's   case,   followed   in       Nikhil



Merchant's   case,   as   also   in  Manoj   Sharma's   case   (supra),



gave sufficient indication that the powers under Article 142



of   the   Constitution,   as   far   as   the   Supreme   Court   is



concerned,   and   Section   482   Cr.P.C.,   as   far   as   the   High



Courts are concerned, could not be fettered by reason of the



fact   that   an   offence   might   not   be   compoundable   but   in   its



own facts was capable of being quashed.





14.     On the other hand, learned Additional Solicitor General,



Shri   Mohan   Jain,   urged   that   even   if   the   Banks   and   the


                                                                     12


Petitioners   had   settled   their   disputes   and   had   also   entered



into   a   compromise   settlement,   that   did   not   absolve   the



Petitioners of the offence, which they had already committed



under   the   criminal   laws,   which   was   explicitly   indicated   in



the settlement itself.   Shri Jain submitted that the gravity



of   the   offence   would   be   revealed   from   the   various



transactions   which   were   effected   by   the   writ   petitioners   in



order   to   camouflage   their   intention   of   offering   as   security



a   property   in   respect   of   which   they   had   no   title.     As



innocent as it may seem to be, it is more than a coincidence



that   the   Petitioners   offered   as   security   a   leasehold



property   which   had   been   acquired   from   one   Shri   Kersi   Mehta,



who   had   used   a   Power   of   Attorney   alleged   to   have   been



executed   by  Shri   Homi  D.   Sanjana  and   his  family   members  and



in   respect   whereof   a   criminal   case   had   been   filed   by   Shri



Homi   against   the   said   Kersi   Mehta   and   the   writ   petitioners.



Shri Jain contended that the entire transaction was based on



a   fraud   perpetrated   on   Shri   Homi   D.   Sanjana   and   his   family



members   and,   in   fact,   no   title   to   the   property   in   question



had ever passed to the Petitioners.


                                                                       13




15.    Shri   Jain   submitted   that   in  Rumi   Dhar   (Smt.)  Vs.  State



of   West   Bengal   &   Anr.   [(2009)   6   SCC   364],   a   Bench   of   two



Judges   while   considering   the   maintainability   of   criminal



action   where   the   liability   was   both   civil   and   criminal,   had



occasion   to   consider   the   effect   of   a   judgment   in   civil



proceedings in respect of a loan obtained by fraud.    As an



off-shoot of the aforesaid question, another question raised



was   regarding   the   continuance   of   the   criminal   proceedings



after   settlement   and   repayment   of   a   loan,   wherein   it   was



held   that  where   settlement  is   arrived  at   by  and   between  the



creditor   bank   and   debtor,   the   offence   committed   as   such,



does   not   come   to   an   end.     The   judgment   of   a   tribunal   in



civil   proceedings  and,   that  too,   when  it   is  rendered   on  the



basis   of   the   settlement   entered   into   between   the   parties,



would   not   be   of   much   relevance   in   a   criminal   proceeding   in



view   of  the   provisions  of   Section  43   of  the   Indian  Evidence



Act,   1872,   which   provides   that   judgments   in   civil



proceedings   will   be   admissible   in   evidence   only   for   limited



purposes.   However,   in   deciding   the   said   matter,   the   Bench


                                                                     14


took note of the decision in  Nikhil Merchant's case (supra),



as   also   the   judgment   rendered   in  Duncans   Agro   Industries



case   (supra).     While   considering   the   said   judgments,   the



learned   Judges   ultimately   observed   that   the   jurisdiction   of



the   Court  under   Article  142   of  the   Constitution  of   India  is



not in dispute, but that exercise of such power would depend



on   the   facts   and   circumstances   of   each   case.             After



referring to the decision in  Nikhil Merchant's case (supra),



this Court also held that the High Court, in exercise of its



jurisdiction under Section 482 Cr.P.C. and the Supreme Court



in   terms   of   Article   142   of   the   Constitution,   would



ordinarily direct the quashing of a charge involving a crime



against society, particularly, when both quashing of a case,



continuance   whereof   after   the   settlement   is   arrived   at



between   the   parties,   would   be   a   futile   exercise.     Reference



was   then   made   to   another   decision   of   this   Court   in  Sushil



Suri  Vs.  Central   Bureau   of   Investigation   &   Anr.  [(2011)   5



SCC   708],   in   which   the   Bench   was   called   upon   to   deliberate



upon the very same issue, as has been raised in the present



writ   petition.   In   the   said   case,   after   discussing   earlier


                                                                   15


decisions,   including   those   rendered   in  B.S.   Joshi's   case



(supra)   and   in  Nikhil   Merchant's   case   (supra),   the   Court,



while   placing   reliance   on   the   decision   in  Rumi   Dhar's   case



(supra),   observed   that   while   the   jurisdiction   of   the   Court



under   Article   142   of   the   Constitution   was   not   in   dispute,



the   exercise   of   such   power   would,   however,   depend   on   the



facts and circumstances of each case.





16.    The   learned   Additional   Solicitor   General   contended   that



having   regard   to   the   divergent   views   expressed   by   different



Benches   of  this   Court,  when   the  same   issue  surfaced   in  Gian



Singh  Vs.  State   of   Punjab   &   Anr.,   SLP   (Crl.)   No.   8989   of



2010,   wherein   the   decisions   in  B.S.   Joshi's   case,  Nikhil



Merchant's   case   and  Manoj   Sharma's   case   (supra)   came   to   be



considered,   the   Bench   comprised   of   two   Judges,   was   of   the



view   that   the   said   decisions   required   reconsideration   and



directed   that  the   matter  be   placed  before   a  larger   Bench  to



consider   the   correctness   of   the   said   three   decisions.     Shri



Jain urged that as the same issue which was involved in the



present case was also the subject matter of the reference to


                                                                    16


a   larger   Bench,   this   Court   should   abstain   from   pronouncing



judgment   on   the   issue   which   was   the   subject   matter   in   the



said   reference.   Shri   Jain   urged   that   in   the   circumstances



mentioned   hereinabove,   no   relief   could   be   given   to   the



Petitioners   on  the   writ  petition   and  the   same  was   liable  to



be dismissed.





17.    Having   carefully   considered   the   facts   and   circumstances



of the case, as also the law relating to the continuance of



criminal   cases   where   the   complainant   and   the   accused   had



settled   their   differences   and   had   arrived   at   an   amicable



arrangement,   we  see   no  reason   to  differ   with  the   views  that



had   been   taken   in  Nikhil   Merchant's   case   or  Manoj   Sharma's



case   (supra)   or   the   several   decisions   that   have   come



thereafter.   It   is,   however,   no   coincidence   that   the   golden



thread which runs through all the decisions cited, indicates



that continuance of a criminal proceeding after a compromise



has been arrived at between the complainant and the accused,



would   amount   to   abuse   of   the   process   of   court   and   an



exercise in futility, since the trial could be prolonged and


                                                                     17


ultimately,   may   conclude   in   a   decision   which   may   be   of   any



consequence   to   any   of   the   other   parties.     Even   in  Sushil



Suri's   case   on   which   the   learned   Additional   Solicitor



General   had   relied,   the   learned   Judges   who   decided   the   said



case,   took   note   of   the   decisions   in   various   other   cases,



where   it   had   been   reiterated   that   the   exercise   of   inherent



powers   would   depend   entirely   on   the   facts   and   circumstances



of   each   case.     In   other   words,   not   that   there   is   any



restriction   on   the   power   or   authority   vested   in   the   Supreme



Court   in   exercising   powers   under   Article   142   of   the



Constitution,   but   that   in   exercising   such   powers   the   Court



has   to   be   circumspect,   and   has   to   exercise   such   power



sparingly   in   the   facts   of   each   case.     Furthermore,   the



issue,   which   has   been   referred   to   a   larger   Bench   in  Gian



Singh's   case   (supra)   in   relation   to   the   decisions   of   this



Court   in  B.S.   Joshi's   case,  Nikhil   Merchant's   case,   as   also



Manoj   Sharma's   case,   deal   with   a   situation   which   is



different from that of the present case.  While in the cases



referred   to   hereinabove,   the   main   question   was   whether



offences   which   were   not   compoundable,   under   Section   320


                                                                    18


Cr.P.C.   could   be   quashed   under   Section   482   Cr.P.C.,   in  Gian



Singh's   case   the   Court   was   of   the   view   that   a   non-



compoundable   offence   could   not   be   compounded   and   that   the



Courts   should   not   try   to   take   over   the   function   of   the



Parliament   or   executive.     In   fact,   in   none   of   the   cases



referred   to   in  Gian   Singh's   case,   did   this   Court   permit



compounding   of   non-compoundable   offences.     On   the   other



hand,   upon   taking   various   factors   into   consideration,



including   the   futility   of   continuing   with   the   criminal



proceedings, this Court ultimately quashed the same.  





18.    In   addition   to   the   above,   even   with   regard   to   the



decision   of   this   Court   in  Central   Bureau   of   Investigation



Vs.  Ravi   Shankar   Prasad   &   Ors.  [(2009)   6   SCC   351],   this



Court   observed   that   the   High   Court   can   exercise   power   under



Section   482   Cr.P.C.   to   do   real   and   substantial   justice   and



to   prevent   abuse   of   the   process   of   Court   when   exceptional



circumstances   warranted   the   exercise   of   such   power.     Once



the circumstances in a given case were held to be such as to



attract the provisions of Article 142 or Articles 32 and 226


                                                                     19


of   the   Constitution,   it   would   be   open   to   the   Supreme   Court



to   exercise   its   extraordinary   powers   under   Article   142   of



the   Constitution   to   quash   the   proceedings,   the   continuance



whereof   would  only   amount  to   abuse  of   the  process   of  Court.



In   the   instant   case   the   dispute   between   the   petitioners   and



the   Banks   having   been   compromised,   we   have   to   examine



whether   the   continuance   of   the   criminal   proceeding   could



turn   out   to   be   an   exercise   in   futility   without   anything



positive being ultimately achieved.





19.    As   was   indicated   in  Harbhajan   Singh's   case   (supra),   the



pendency   of   a   reference   to   a   larger   Bench,   does   not   mean



that   all   other   proceedings   involving   the   same   issue   would



remain stayed till a decision was rendered in the reference.



The   reference   made   in  Gian   Singh's   case   (supra)   need   not,



therefore, detain us.  Till such time as the decisions cited



at   the   Bar   are   not   modified   or   altered   in   any   way,   they



continue to hold the field.





20.     In   the   present   case,   the   fact   situation   is   different



from that in  Nikhil Merchant's case (supra). While in  Nikhil


                                                                      20


Merchant's case the accused had misrepresented the financial



status   of   the   company   in   question   in   order   to   avail   of



credit   facilities  to   an  extent   to  which   the  company   was  not



entitled,   in   the   instant   case,   the   allegation   is   that   as



part of a larger conspiracy, property acquired on lease from



a   person   who   had   no   title   to   the   leased   properties,   was



offered   as   collateral   security   for   loans   obtained.     Apart



from the above, the actual owner of the property has filed a



criminal   complaint   against   Shri   Kersi   V.   Mehta   who   had   held



himself   out   as   the   Attorney   of   the   owner   and   his   family



members.     The   ratio   of   the   decisions   in  B.S.   Joshi's   case



and   in  Nikhil   Merchant's   case   or   for   that   matter,   even   in



Manoj   Sharma's   case,   does   not   help   the   case   of   the   writ



petitioners.     In  Nikhil   Merchant's   case,   this   Court   had   in



the facts of the case observed that the dispute involved had



overtures   of   a   civil   dispute   with   criminal   facets.   This   is



not   so   in   the   instant   case,   where   the   emphasis   is   more   on



the   criminal   intent   of   the   Petitioners   than   on   the   civil



aspect involving the dues of the Bank in respect of which a



compromise was worked out.


                                                                       21




21.    In   the   different   fact   situation   of   this   case   and   those



in  B.S.   Joshi's   case   or   in  Nikhil   Merchant's   case   (supra),



we   are   not   inclined   to   grant   the   reliefs   prayed   for   in   the



writ petition and the same is accordingly dismissed.





22.    There will, however, be no order as to costs.





                                                 ...............................................................J.

                                                (ALTAMAS KABIR)





                                                 ...............................................................J.

                                           (J. CHELAMESWAR)

New Delhi

Dated: 14.03.2012