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Friday, May 13, 2016

In the above judgment, this Court was of the view, that it would be open to the High Court to examine, as to whether there was material to substantiate the charge under Section 307 of the Indian Penal Code, and also, to determine whether the prosecution had collected sufficient evidence to substantiate the said charge. And in case sufficient evidence to sustain the charges did not emerge, it would be open to the High Court to quash the proceedings. We are of the view, that the instant judgment had no relevance, to the facts and circumstances of this case. Herein, the investigation has been completed, and the final report was filed before the Chief Judicial Magistrate, Ernakulam, on 22.03.2009. More than 6 years have gone by since then. It is not the case of the accused, that the final report does not contain adequate material to substantiate the charges. J.Ramesh Kamath, appellant no.1 herein, has been cited as charge witness no.5; Giri Nair- appellant No.2 herein, has been cited as charge witness no.6; and Antony Tharian – appellant no.3 herein, has been cited as charge witness no.18. It is their contention, that the charges are clearly made out on the basis of documentary evidence. We would say no more. But that, the inferences are those of the appellants, and not ours. The eventual outcome would emerge from the evidence produced before the trial court. For the reasons recorded hereinabove, we allow the appeal and set aside the impugned order passed by the High Court. CC No.90 of 2009 is accordingly restored on the file of the Chief Judicial Magistrate, Ernakulam. We direct the trial court to proceed further with the matter, in accordance with law.


REPORTABLE

                       IN THE SUPREME COURT OF INDIA

                        CRIMINAL APPELLATE JURISDICTION

                        CRIMINAL APPEAL No.445 OF 2016
                  (Arising out of SLP(Crl.)No.3821 of 2010)



J.RAMESH KAMATH & ORS.                            .......APPELLANTS


                                   VERSUS



MOHANA KURUP & ORS.                              .......RESPONDENTS



                               J U D G M E N T

JAGDISH SINGH KHEHAR, J.


1.          Leave granted.

2.          Respondents nos.4 to 7 herein describing themselves  as  members
of the All Kerala Chemists and Druggists Association  (hereinafter  referred
to as `the Association’), filed a  written  complaint  to  the  City  Police
Commissioner, Ernakulam against respondent nos.1 to  3.  Respondent  No.1  –
Mohana Kurup was the  President  of  the  Association  during  the  relevant
period from 2004 to 2006 and thereafter from 2006 to 2008.  Respondent  No.2
– Raveendran was the Secretary of the Association during  the  same  period,
and respondent no.3 – Sayed was the Treasurer of the Association during  the
relevant period.  It was alleged in the complaint filed by respondent  nos.4
to 7, that respondent nos.1 to 3, in furtherance of a  criminal  conspiracy,
and with common intention, misappropriated huge amounts  of  funds  of  `the
Association',  by  misusing  their  position  as  office  bearers  of   `the
Association'. On the basis of the complaint preferred  by  respondent  nos.4
to 7, First Information Report bearing Crime No.675/2008 was  registered  at
Central Police Station, Ernakulam.
3.          Appellant No.2 in the present appeal – Giri Nair (also  claiming
to be an active member of  the  Association),  likewise  filed  a  complaint
before the City Police Commissioner, Ernakulam, making  similar  allegations
against respondent nos.1 to 3.
4.          The police filed  a  final  report  before  the  Chief  Judicial
Magistrate,  Ernakulam,  on  22.03.2009,  based  on  an  affirmation  during
investigation, for offences under Sections 406, 408, 409, 477A and  120B  of
the Indian Penal Code. Needless to mention, that the  aforesaid  chargesheet
was  based  on  the  complaint  addressed  by  respondents  nos.4  to  7  on
09.04.2008, and not the complaint made by the appellants before this  Court.

5.           Dissatisfied  with  the  initiation  of  action  against  them,
respondent nos.1 to 3 filed Criminal M.C.No.4154 of  2009  before  the  High
Court of Kerala (hereinafter referred to as `the High Court’) under  Section
482 of the Criminal Procedure Code praying for quashing of the final  report
(filed by the police in  C.C.No.90  of  2009,  on  the  file  of  the  Chief
Judicial Magistrate, Ernakulam  arising out of Crime No.675/2008). The  case
projected by respondent nos.1 to 3 before  the  High  Court  was,  that  the
allegations contained in the complaint dated 09.04.2008 were in  the  nature
of a private dispute, and was of  a  purely  personal  nature,  without  any
involvement of public policy, and as  such,  the  matter  could  be  settled
between the parties through an amicable settlement. And that,  it  had  been
so settled.
6.           Along  with  the  aforesaid  Criminal  M.C.No.4154   of   2009,
respondent nos.1 to 9 filed a  joint  petition  seeking  compounding   under
Section 320 of the Criminal Procedure Code. At this juncture,  it  would  be
relevant  to  mention,  that  respondent  nos.4  to  7  were  the   original
complainants on whose complaint, the case  came  to  be  registered  against
respondent nos.1 to 3.  Respondent nos.8 and  9  herein,  were  the  General
Secretary and Treasurer of `the Association',  at  the  time  when  Criminal
M.C.No.4154/2009 was filed.
7.          According to the assertions made before  this  Court,  the  High
Court was informed, that the matter had been settled  between  the  parties,
and that, no useful purpose would be served in continuing  the  prosecution.
The High Court, in the above view of the matter, passed the  impugned  order
dated 22.12.2009, whereby, proceedings in CC No.90/2009, pending before  the
Chief Judicial Magistrate, Ernakulam,  were  quashed.  Paragraph  2  of  the
impugned order is extracted  herein:-
“2.  A  compounding  petition  is  filed  jointly  by  the  petitioners  and
respondents 1 to 6 stating  that  entire  disputes  were  settled  with  the
petitioners, who were the former office bearers and respondents 1 to 4,  the
complainants and respondents  5  and  6,  the  present  office  bearers  and
respondents 1 to 4 admit that there was no misappropriation of  the  amounts
of AKCDA as alleged and respondents 5 and 6 agreed the  same.   In  view  of
the settlement, it is contended that they may be permitted to  compound  the
offences.”
                                      (emphasis is ours)



A perusal of paragraph 2 extracted above,  reveals,  that  the  complainants
(namely, respondent nos. 4 to 7 herein) and the accused (namely,  respondent
nos.1 to 3 herein) had admitted, that there was no misappropriation  of  the
amounts of the Association, and respondents nos.8 and  9  herein,  who  were
the General Secretary and Treasurer (were impleaded in  the  joint  petition
as respondent Nos.5 and 6) endorsed the above position.
8.          Paragraph 5 of the  impugned  order,  is  also  being  extracted
hereunder:
“5. Prosecution case as against the petitioners is that they  committed  the
offences as against AKCDA and its  members.  The  allegation  is  that  they
opened two separate accounts and converted the  cheques  and  demand  drafts
received in the name  of  AKCDA  to  their  personal  accounts  and  thereby
misappropriated the amounts. The offences alleged  are  purely  personal  in
nature as against the Association, represented by respondents 5 and 6.   The
case was investigated on the complaint filed by respondents 1  to  4.   When
compounding petition filed by the petitioners along with respondents 1 to  6
establishes that there has been a complete settlement of  the  disputes  and
the offences alleged are purely personal in nature,  as  held  by  the  Apex
court in Madan Mohan Abbot v. State of Punjab (2008 (3) KLT 19)  it  is  not
in the interest of justice to continue the prosecution. In the light of  the
settlement and the joint petition filed,  even  if  petitioners  are  to  be
tried,  there  is  no  likelihood  of  a  successful  prosecution.  In  such
circumstances, it is  not  in  the  interest  of  justice  to  continue  the
prosecution.

Petition  is  allowed.  C.C.No.90/2009  on  the  file  of   Chief   Judicial
Magistrate’s Court, Ernakulam is quashed.”
                                           (emphasis is ours)

A  perusal  of  paragraph  5  of  the  impugned  order  reveals,  that   the
acknowledged position between the parties (the  accused,  the  complainants,
and the office bearers of `the Association') which was projected before  the
High Court was, that the offences  alleged  in  the  complaint  were  purely
personal in nature.
9.          Premised on the acknowledged admitted position, that  there  was
no misappropriation, as well as, the fact that the offences alleged  in  the
complaint were purely personal in nature, the High  Court  agreed  with  the
settlement  between  the  parties,  and  quashed  the  proceedings   in   CC
No.90/2009.
10.         It is also imperative for us to notice, that in the  compounding
petition, which was filed by respondent nos.1 to 3 herein (the accused),  as
petitioners impleaded respondents nos.4 to 7 herein (the complainants),  and
respondent nos.8 and 9 (the then General Secretary  and  Treasurer  of  `the
Association') herein. A clear and categorical  stance  was  adopted  in  the
compounding petition, that there was no misappropriation  of  the  funds  of
the Association, and that, not only the complainants,  but  also  respondent
nos.8 and 9 herein, namely, the General Secretary and the Treasurer  of  the
Association, confirmed the above position.
11.         The first contention  advanced  at  the  hands  of  the  learned
counsel for the appellants  was,  that  the  respondents-accused  have  been
charged of offences under Sections 406, 408,  409,  477A  and  120B  of  the
Indian Penal Code. It was the pointed contention of the learned counsel  for
the appellants, that  most  of  the  provisions  under  which  the  accused-
respondents had been charged, were non-compoundable  under  Section  320  of
the Criminal Procedure Code. And as such, the matter  could  not  have  been
compounded.
12.         Whilst it is not disputed at the hands of  the  learned  counsel
for respondent nos.1 and 2, that  most  of  the  offences  under  which  the
accused were charged are non-compoundable, yet it was asserted,   that   the
jurisdiction  invoked  by  the  High Court in

quashing the criminal proceedings against respondent nos.1  to  3,  was  not
under Section 320 of the Criminal Procedure Code, but was under Section  482
of the Criminal Procedure Code, as interpreted by this Court.
13.          Insofar  as  the  decisions  of  this  Court   are   concerned,
reference, in the first instance, was made to Madan Mohan Abbot v. State  of
Punjab, (2008) 4 SCC 582,  wherefrom,  our  attention  was  invited  to  the
following observations:
“5.   It is on the basis of this compromise that the application  was  filed
in the High Court for quashing of proceedings which has  been  dismissed  by
the impugned order.  We notice from a reading  of  the  FIR  and  the  other
documents on record that the dispute was purely a personal one  between  two
contesting parties and that it arose  out  of  extensive  business  dealings
between them and that there was absolutely no public policy involved in  the
nature of the allegations made against the accused. We  are,  therefore,  of
the opinion that no useful purpose would be served in  continuing  with  the
proceedings in the light of the compromise and also  in  the  light  of  the
fact that the complainant has on 11-1-2004, passed away and the  possibility
of a conviction being recorded has thus to be ruled out.

6.    We need to emphasise that it is perhaps  advisable  that  in  disputes
where the question involved is  of  a  purely  personal  nature,  the  Court
should ordinarily accept the terms of  the    compromise  even  in  criminal
proceedings as keeping the matter alive with no possibility of a  result  in
favour  of  the  prosecution  is  a  luxury  which  the   courts,    grossly
overburdened as they are, cannot afford and that the time so  saved  can  be
utilised in deciding more effective and meaningful litigation.   This  is  a
common sense approach to the matter based on ground of realities and  bereft
of the technicalities of the law.”
                                          (emphasis is ours)


A perusal of the conclusions extracted above, with a reading of the FIR  and
the supporting documents in the above case  reveal,  that  the  dispute  was
purely of a personal nature, between two contesting parties.  Further  that,
the dispute arose out of  private  business  dealings  between  two  private
parties. And furthermore, there was absolutely  no  public  involvement,  in
the  allegations  made  against  the  accused.  Based   on   the   aforesaid
considerations, this Court had held, that in  disputes  where  the  question
involved was of a purely personal nature, it was appropriate for  Courts  to
accept the terms of compromise,  even  in   criminal  proceedings.   It  was
sought to be explained, that in such  matters,  keeping  the  matters  alive
would not result, in favour of the prosecution.  We are of  the  view,  that
the reliance on the  above  judgment  would  have  been  justified,  if  the
inferences drawn by the High Court were  correct,  namely,  that  admittedly
there  was  no  misappropriation  of  the  funds  of  the  Association,  and
secondly, the offences alleged were purely  personal  in  nature.  We  shall
examine that, at a later stage.
14.         Having placed reliance on the judgment in the Madan Mohan  Abbot
case (supra), which was determined by a two-Judge  Division  Bench  of  this
Court, learned counsel for respondent nos.1 to 3 went on to  place  reliance
on Gian Singh vs. State of Punajb (2012) 10 SCC 303, which was decided by  a
three-Judge Division Bench.  Insofar as the instant judgment  is  concerned,
learned counsel for respondent Nos.1 to 3, in the  first  instance,  invited
this  Court's  attention  to  paragraph  37  thereof,  wherein  the  earlier
decision rendered by this Court in the Madan  Mohan  Abbot  case,  was  duly
noticed. Thereupon, the Bench recorded its conclusion as under:
“59.  B.S. Joshi (2003) 4 SCC 675, Nikhil Merchant (2008) 9 SCC  677,  Manoj
Sharma (2008) 16 SCC 1 and  Shiji  (2011)  10  SCC  705  do  illustrate  the
principle that the High Court may  quash  criminal  proceedings  or  FIR  or
complaint in exercise of its inherent power under Section 482  of  the  Code
and Section 320 does not limit or affect the powers of the High court  under
Section 482.  Can it be said that by quashing criminal proceedings in B.  S.
Joshi, Nikhil Merchant, Manoj Sharma and Shiji  this  Court  has  compounded
the non-compoundable offences indirectly? We do not  think  so.  There  does
exist the distinction between compounding of an offence  under  Section  320
and quashing of a criminal case by the High Court in  exercise  of  inherent
power under  Section  482.   The  two  powers  are  distinct  and  different
although the ultimate consequence may be the  same  viz.  acquittal  of  the
accused or dismissal of indictment.

60.   We find  no  incongruity  in  the  above  principle  of  law  and  the
decisions of this Court in Simrikhia (1990) 2 SCC 437,  Dharampal  (1993)  1
SCC 435, Arun Shankar Shukla (1999) 6 SCC 146, Ishwar Singh  (2008)  15  SCC
667, Rumi Dhar (2009) 6 SCC 364 and Ashok Sadarangani  (2012)  11  SCC  321.
The principle propounded in Simrikhia that the inherent jurisdiction of  the
High Court cannot be invoked to override express bar provided in law  is  by
now well settled. In Dharampal the Court observed the same  thing  that  the
inherent powers under Section  482  of  the  Code  cannot  be  utilised  for
exercising  powers  which  are  expressly  barred  by  the  Code.    Similar
statement of law is made in Arun  Shankar  Shukla.   In  Ishwaqr  Singh  the
accused was alleged to have committed an offence  punishable  under  Section
307 IPC and with reference to Section 320 of the Code, it was held that  the
offence punishable under Section 307 IPC was not  compoundable  offence  and
there was express bar in Section 320 that no offence shall be compounded  if
it is not compoundable under the Code.  In Rumi Dhar  although  the  accused
had paid the entire due amount as per the settlement with the  bank  in  the
matter of recovery before the  Debts  Recovery  Tribunal,  the  accused  was
being proceeded with for the commission of the offences under Sections  120-
B/420/467/468/471  IPC  along  with  the  bank  officers  who   were   being
prosecuted under Section 13(2) read with 13  (1)(d)  of  the  Prevention  of
Corruption Act.  The Court refused to quash the charge against  the  accused
by holding that the Court would not quash a case involving a  crime  against
the  society when a prima facie case has been made out against  the  accused
for framing the charge. Ashok  Sadarangani  was  again  a  case   where  the
accused  persons  were  charged  of  having  committed  the offences   under
Sections 120-B, 465, 467, 468 and  471,  IPC  and   the   allegations   were
that the accused  secured the  credit  facilities   by   submitting   forged
property documents  as  collaterals  and  utilised  such  facilities  in   a
dishonest  and 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.  The
Court  was  alive  to  the reference made in one of the present matters  and
also the decisions in  B.S.Joshi, Nikhil Merchant  and   Manoj   Sharma  and
it  was  held  that B.S.Joshi, and  Nikhil  Merchant  dealt  with  different
factual situation  as  the dispute involved  had  overtures   of   a   civil
dispute  but  the  case  under consideration in Ashok Sadarangani  was  more
on the  criminal  intent  than on a civil aspect.   The  decision  in  Ashok
Sadarangani   supports   the  view  that  the  criminal  matters   involving
overtures of a civil dispute stand on  a different footing.

61.  The position that  emerges   from   the   above   discussion   can   be
summarised  thus:   the  power   of   the   High   Court   in   quashing   a
criminal proceeding  or  FIR  or  complaint  in  exercise  of  its  inherent
jurisdiction is distinct  and  different  from  the   power   given   to   a
criminal  court  for compounding the  offences  under  Section  320  of  the
Code.  Inherent  power is of wide plenitude  with  no  statutory  limitation
but it has  to  be  exercised in accord  with  the  guideline  engrafted  in
such power viz; (i) to secure  the ends  of  justice,  or  (ii)  to  prevent
abuse of the process of  any  Court.  In  what  cases  power  to  quash  the
criminal proceeding or complaint  or  F.I.R   may  be  exercised  where  the
offender and the victim have settled their  dispute   would  depend  on  the
facts and circumstances of each case and no  category  can   be  prescribed.
However, before exercise of such  power,  the  High  Court   must  have  due
regard to the  nature  and  gravity  of  the  crime.  Heinous  and   serious
offences of mental depravity  or  offences  like  murder,   rape,   dacoity,
etc. cannot be  fittingly  quashed  even  though  the  victim  or   victim’s
family  and the offender have settled the dispute. Such  offences  are   not
 private  in nature and  have  serious  impact  on  society. Similarly,  any
 compromise between the victim and the offender in relation to the  offences
under  special statutes like the  Prevention  of  Corruption  Act   or   the
offences  committed  by public servants  while  working  in  that  capacity,
etc; cannot provide   for   any  basis  for  quashing  criminal  proceedings
involving  such  offences.  But  the criminal cases  having   overwhelmingly
and  pre-dominatingly  civil  flavour stand on a different footing  for  the
purposes of  quashing,  particularly  the offences arising from  commercial,
financial, mercantile, civil,  partnership or such like transactions or  the
offences arising out of matrimony  relating to dowry,  etc.  or  the  family
disputes where the wrong is  basically  private or personal  in  nature  and
the parties have resolved  their   entire   dispute.  In  this  category  of
cases, the High Court may quash  criminal  proceedings   if   in  its  view,
because of the compromise  between  the  offender   and   the  victim,   the
possibility of conviction is remote and  bleak  and  continuation   of   the
criminal case would put  the accused  to  great  oppression  and   prejudice
 and  extreme injustice would be caused to him by not quashing the  criminal
 case  despite full and complete  settlement   and   compromise   with   the
victim.  In  other words, the High Court must consider whether it  would  be
unfair  or  contrary to the interest of  justice  to   continue   with   the
criminal  proceeding  or continuation of  the  criminal   proceeding   would
tantamount  to  abuse  of process of law despite settlement  and  compromise
between  the  victim  and the wrongdoer and whether to secure  the  ends  of
justice, it is appropriate  that the criminal case is put to an end  and  if
the answer to  the  above  question(s)  is  in  the  affirmative,  the  High
Court shall  be  well  within  its   jurisdiction   to  quash  the  criminal
proceeding.”

                                           (emphasis is ours)

15.         A perusal of the above determination, leaves  no  room  for  any
doubt, that this Court crystalised the position in  respect  of  the  powers
vested in the High Court under Section 482 of the Criminal  Procedure  Code,
to quash criminal proceedings. It has now been  decisively  held,  that  the
power vested in the High Court under Section 482 of the  Criminal  Procedure
Code, is not limited to quashing proceedings within the ambit and  scope  of
Section 320 of the Criminal Procedure Code. The three-Judge  Division  Bench
in the above case, clearly expounded, that quashing of criminal  proceedings
under Section 482 of the Criminal Procedure Code, could  also  be  based  on
settlements between private parties, and could also on a compromise  between
the offender and the victim. Only that, the above power did  not  extend  to
crimes against the society.  It  is  also  relevant  to  mention,  that  the
jurisdiction vested in the High Court under  Section  482  of  the  Criminal
Procedure  Code,  for  quashing  criminal  proceedings,  was  held   to   be
exercisable in criminal cases having  an  overwhelming  and  predominatingly
civil flavour, particularly offences  arising  from  commercial,  financial,
mercantile, civil, partnership, or such like transactions. Or even  offences
arising out of matrimony relating to dowry etc.  Or  family  disputes  where
the wrong is basically  private  or  personal.   In  all  such  cases,   the
parties should have resolved their entire dispute by themselves, mutually.
16.         The question which emerges for  our  consideration  is,  whether
the allegations levelled in the complaint against  respondent  nos.1  to  3,
would fall within the purview of the High Court,  so  as  to  enable  it  to
quash the same, in exercise of its jurisdiction under  Section  482  of  the
Criminal Procedure Code?
17.         We shall now venture to determine the above  issue.   A  perusal
of the complaint on the basis of  which  criminal  prosecution  came  to  be
initiated against respondent nos.1 to 3 reveals, that  the  accused  persons
were described as office bearers of `the  Association',  during  the  period
from 2004 to 2008.  During the course of hearing, it was not disputed,  that
at the relevant time, respondent no.1 – Mohana Kurup was  the  President  of
`the Association'; respondent no.2 – Raveendran was the  Secretary  of  `the
Association';  and  respondent  no.3  –  Sayed  was  the  Treasurer  of  the
Association.  It was alleged, that during their tenure,  as  office  bearers
of the State Committee of `the Association', they had  exclusive  access  to
the funds of `the Association'.  They, at their own, managed the funds,  for
and on behalf of `the Association'.  Consequent upon  their  resignation  in
2008, when an ad hoc Committee took up charge of  the  State  Committee,  it
discovered serious misappropriation of funds of the State  Committee,  which
were in the name of the State Committee, and were not  accounted  for.  Even
the account books maintained by the State Committee, made  no  reference  to
the receipt of such amounts.  A specific reference was  made  to  M/s  Micro
Labs Ltd., Bangalore, which paid a sum of Rs.19,00,000/- two  demand  drafts
being D.D.No.718573 and D.D.No.718574 in  the  sum  of  Rs.9,50,000/-  each,
drawn on the Canara Bank, both dated 17.04.2007. It  was  also  asserted  in
the complaint, that `the Association' issued two receipts  dated  30.04.2007
and 15.05.2007 in acknowledgement of the receipt of  the  said  amounts.  It
was alleged, that the said amount was  never  incorporated  in  the  account
books of `the Association'.  It was also alleged, that respondent  nos.1  to
3 dishonestly misappropriated the said amount to  themselves,  in  violation
of bye-laws and other regulations/directions  of  the  State  Committee,  by
creating  false  and  fictitious  accounts,  by  altering,  destroying   and
mutilating the original accounts of the  State  Committee,  with  a  willful
intention to obtain illegal  financial  gains,  and  to  defraud  the  State
Committee. It is also relevant to mention, that consequent  upon  completion
of  investigation,  the  chargesheet   dated   22.03.2009,   filed   against
respondent nos.1 to 3, stated thus:-
“The accused persons being the office bearers of the  State  Committee,  All
Kerala Chemists & Druggists Association,  in  furtherance  of  their  common
intention to obtain illegal financial gain conspired conjointly and  cheated
the Association and its members  by  misappropriating  the  funds  given  by
various drug companies to AKCDA  functioning  near  South  Railway  Station,
Ernakulam during the  period  from  17.04.2007  to  11.04.2008.  The  Demand
Drafts and Cheques received were not credited in the account of  AKCDA.  The
accused falsified the accounts of AKCDA and unauthorisedly  opened  accounts
in South Malabar Gramin Bank, Palakkad  Branch  and  ICICI  Bank,  Edappally
Branch and credited the amounts in the said accounts.  The DD's and  cheques
received were encashed in the aforesaid accounts on  various  dates  and  an
amount of Rs.80,00,000/- was  diverted  for  their  own  use.   The  accused
thereby cheated the members  and  the  association  and  committed  criminal
breach of trust.  The accused also committed the offence alleged.”
                                                (emphasis is ours)
18.         In the above view of the  matter,  we  are  satisfied  that  the
allegations levelled against respondent nos.1 to 3 were of a  nature,  which
could  not  be  treated  as  purely  of  a  personal  nature.  We  are  also
astonished, that the complainants, who are arrayed in the present appeal  as
respondent nos.4 to 7  affirmed  (in  the  compounding  petition)  that  “no
misappropriation of  the  amounts  of  All  Kerala  Chemists  and  Druggists
Association is committed by the petitioners/accused persons”.  We  are  also
amazed, that respondent nos.8 and 9 herein, who were the  General  Secretary
and the Treasurer respectively of the Association, at the time of filing  of
the compounding petition, confirmed the stand adopted by  the  complainants,
in the compounding petition. The  accusations  levelled  against  respondent
nos.1 to 3, in our considered view, do not pertain to a  dispute  which  can
be described as purely of a personal nature. It is also not possible for  us
to acknowledge the position  adopted  by  the  complainants,  and  the  then
members of the Association, that no misappropriation had been  committed  by
the accused.  We cannot appreciate how such  a  statement  could  have  been
made after the investigation had been completed, and  charges  were  framed,
which were pending trial before a court of competent jurisdiction.
19.         We are of the view, that the basis on which the  impugned  order
was  passed,  was  incorrectly  determined  as   of   a   personal   nature.
Additionally, the accusations were not of a nature which can  be  classified
by this Court, as were amenable to be quashed,  under  Section  482  of  the
Criminal Procedure Code.
20.         To be fair to the learned counsel for respondent Nos.  1  to  3,
we may also refer to Narinder Singh  vs. State of Punjab, (2014) 6 SCC  466,
wherein one of the offences for which the accused was proceeded against  was
under Section 307 of the Indian Penal Code.  It  was  submitted,  that  even
for such  criminal  offences,  a  Court  of  competent  jurisdiction,  under
Section 482 of  the  Criminal  Procedure  Code,  could  quash  the  criminal
proceedings.  Reference in this behalf was made to the conclusions drawn  by
this Court in paragraphs 29.6 and 29.7, which are extracted hereunder:
“29.6 Offences under Section 307 IPC would fall in the category  of  heinous
and serious offences and therefore are to  be  generally  treated  as  crime
against the society and not against  the  individual  alone.   However,  the
High Court would not rest its decision merely because there is a mention  of
Section 307 IPC in the FIR or the charge is framed under this provision.  It
would be open to the  High Court to examine as to whether  incorporation  of
Section 307 IPC is  there  for  the  sake  of  it  or  the  prosecution  has
collected sufficient evidence, which if proved, would lead  to  proving  the
charge under Section 307 IPC. For this purpose, it  would  be  open  to  the
High court to go by the nature of injury sustained, whether such  injury  is
inflicted  on the vital/delegate  parts  of  the  body,  nature  of  weapons
used, etc. Medical report in respect of injuries suffered by the victim  can
generally be  the  guiding  factor.   On  the  basis  of  this  prima  facie
analysis, the High court can  examine  as  to  whether  there  is  a  strong
possibility of conviction or  the  chances  of  conviction  are  remote  and
bleak.  In the former case it can refuse to accept the settlement and  quash
the criminal proceedings whereas in the latter case it would be  permissible
for the High Court to accept the  plea  compounding  the  offence  based  on
complete settlement between the parties.  At this stage, the court can  also
be swayed by the fact that the settlement between the parties  is  going  to
result in harmony between them which may improve their future  relationship.


29.7 While deciding whether to exercise its power under Section 482  of  the
Code or not, timings of settlement play a crucial role.  Those  cases  where
the settlement is arrived at immediately after  the  alleged  commission  of
offence and the matter is still under investigation, the High court  may  be
liberal   in   accepting   the   settlement   to    quash    the    criminal
proceedings/investigation. It is because of the reason that  at  this  stage
the investigation is still on and even the charge-sheet has not been  filed.
Likewise, those cases where the charge is framed but the evidence is yet  to
start or the evidence is still at infancy stage, the  High  court  can  show
benevolence in exercising its  powers  favourably,  but  after  prima  facie
assessment of the circumstances/material  mentioned  above.   On  the  other
hand, where the  prosecution  evidence  is  almost  complete  or  after  the
conclusion of the evidence the matter is at the stage of argument,  normally
the High Court should refrain from exercising its power  under  Section  482
of the Code, as in such cases the trial court would  be  in  a  position  to
decide the case finally on merits and to come to a conclusion as to  whether
the offence under Section 307 IPC is committed or not.  Similarly, in  those
cases where the conviction is already  recorded by the trial court  and  the
matter is at the appellate stage before  the  High  Court,  mere  compromise
between the parties would not be a ground to accept the  same  resulting  in
acquittal of the offender who has  already   been  convicted  by  the  trial
court. Here charge is  proved  under  Section  307  IPC  and  conviction  is
already recorded of a heinous crime and, therefore, there is no question  of
sparing a convict found guilty of such a crime.”
                                                   (emphasis is ours)
21.   It is not possible for us to accept the submissions  advanced  at  the
hands of the learned counsel for respondent nos.1 to 3, on the basis of  the
observations extracted hereinabove.  In the above judgment,  this Court  was
of the view, that it would be open to the  High  Court  to  examine,  as  to
whether there was material to substantiate the charge under Section  307  of
the Indian Penal Code, and also, to determine whether  the  prosecution  had
collected sufficient evidence to substantiate the said charge. And  in  case
sufficient evidence to sustain the charges did not emerge, it would be  open
to the High Court to quash the proceedings. We are of  the  view,  that  the
instant judgment had no relevance, to the facts and  circumstances  of  this
case. Herein, the investigation has been completed,  and  the  final  report
was filed before the Chief Judicial Magistrate,  Ernakulam,  on  22.03.2009.
More than 6 years have gone by since then.   It  is  not  the  case  of  the
accused, that the  final  report  does  not  contain  adequate  material  to
substantiate the charges.  J.Ramesh Kamath, appellant no.1 herein, has  been
cited as charge witness no.5; Giri Nair- appellant  No.2  herein,  has  been
cited as charge witness no.6; and Antony Tharian –  appellant  no.3  herein,
has been cited as charge witness no.18.  It is their  contention,  that  the
charges are clearly made out on  the  basis  of  documentary  evidence.   We
would say no more. But that, the inferences are  those  of  the  appellants,
and not ours.  The eventual outcome would emerge from the evidence  produced
before the trial court.
22.         For the reasons recorded hereinabove, we allow  the  appeal  and
set aside the impugned order passed by the High Court.  CC No.90 of 2009  is
accordingly  restored  on  the  file  of  the  Chief  Judicial   Magistrate,
Ernakulam.  We direct the trial court to proceed further  with  the  matter,
in accordance with law.

23.         In the peculiar facts and circumstances of this case, we  cannot
endorse or appreciate the  stand  adopted  by  respondent  Nos.4  to  9.  We
accordingly direct further investigation in this matter, pertaining  to  the
role of respondent nos.4 to 9, and direct initiation of proceedings  against
them, if made out, in accordance with law.


                                                ..........................J.
                                           (JAGDISH      SINGH       KHEHAR)





..........................J.
                                 (C.NAGAPPAN)


NEW DELHI;
MAY 04, 2016.

























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