Akshay H. Gadoya v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE V.K.MOHANAN** **MONDAY, THE 15TH DAY OF JULY 2013/24TH ASHADHA, 1935** ## **Crl.MC.No. 2863 of 2013 ()** **--------------------------CC.NO. 704/2006 OF JUDICIAL FIRST CLASS MAGISTRATE COURT - I,N. PARAVUR CRIME NO. 38/2006 OF ELOOR POLICE STATION , ERNAKULAM ------------------------------** **PETITIONER/(IST ACCUSED):** **-------------------------------------------------** **AKSHAY.H.GADOYA, S/O.LATE HARIGOVIND DAS GODAYA, FLAT NO:2B, 2ND FLOOR AMARSANGAMAM FLAT, VIDHYANAGAR, KADAVANTHRA, ERNAKULAM, PRESENTLY RESIDING AT A- 107, SAI CITY CHS, SECTOR 12, KHARGAR, NAVI MUMBAI-410 210.** **BY ADVS.SRI.K.T.SHYAMKUMAR SRI.HARISH R. MENON** **RESPONDENTS/(STATE AND DE-FACTO COMPLAINANT): -----------------------------------------------------------------------------------** **1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, ADVOCATE GENERAL'S OFFICE, HIGH COURT OF KERALA.** **2. ARUN N.MENON, EXECUTIVE DIRECTOR, SERVO PACKAGING LTD., 88/1, CUDDALORE, PONDY MAIN ROAD, KATTUKUPPAM, MANAPET.P.O, PONDYCHERRY.PIN-477 861** **R1 BY PUBLIC PROSECUTOR SRI.RAJESH VIJAYAN R2 BY ADV. SRI.JAI GEORGE** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 15-07-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **sts** **Crl.MC.No. 2863 of 2013 () ---------------------------------------** ## **APPENDIX** **PETITIONER(S)' ANNEXURES: -------------------------------------------ANNEX-A1 TRUE COPY OF TRHE FIR IN CRIME NO.38/2006 OF ELOOR POLICE STATION ANNEX-A2 TRUE COPY OF THE JUDGMENT DATED 28-6-2013 IN WP(C).NO. 13567/2013. ANNEX-A3 AFFIDAVIT SWORN TO BY THE 2ND RESPONDENT** **RESPONDENT(S)' ANNEXURES: NIL** ## **/TRUE COPY/** **P.A.TO.JUDGE** **sts** ## **V.K.MOHANAN, J. ---------------------------------------Crl.M.C.No.2863 of 2013 ---------------------------------------Dated this the 15[th] day of July, 2013** ## **O R D E R** The above petition is filed under Section 482 of the Criminal Procedure Code (for short 'Cr.P.C.') at the instance of the petitioner, who is the 1[st] accused in C.C.No.704/2006 of the Judicial First Class Magistrate Court, North Paravur, which is a case instituted upon the police report [in Crime No.38/2006 of Eloor Police Station] for the offences punishable under Sections 408, 409, r/w 34 of I.P.C. with a prayer to quash all proceedings in the above calendar case, as the matter is settled out of court. 2. The allegation in the above case is that the petitioner who was working as Branch Manager of M/s.Servo Packages had committed breach of trust and amassed money belonging to the Company by falsely intimating the Company that the plastic gunny bags supplied ## **Crl.M.C.No.2863 of 2013** :-2-: by the Company to FACT, Eloor, were defective and thereafter without sending back the gunny bags to the company had sold the same to third parties and obtained money thereby causing financial loss to the complainant. Now, the case of the petitioner is that the matter is settled between himself and the de facto complainant, as evident from Annexure A3 affidavit sworn in by the de facto complainant, who is the 2[nd] respondent herein. 3. Heard the learned counsel for the petitioner as well as the 2[nd] respondent. I have also heard the learned Public Prosecutor. 4. The learned counsel for the petitioner submitted that during the pendency of the above case, the matter is settled amicably between the parties to the dispute which is the subject matter of the above case. Therefore, the continuation of the proceedings in the above case is abuse of process of law and proceedings. 5. The learned counsel for the 2[nd] respondent who ## **Crl.M.C.No.2863 of 2013** :-3-: on the basis of specific instruction received from the 2[nd] respondent submitted that the above respondent, who is the de facto complainant does not intend to proceed any further against the petitioner and he has no grievance against him. 6. I have carefully considered the above submissions of the respective counsel. I have verified the documents and materials produced along with the above petition. In the given facts and circumstances of the case and especially in the light of the settlement arrived between the parties to the dispute, the learned Public Prosecutor has also no objection in allowing the above petition. 7. Having regard to the facts and circumstances involved in the case, it can be seen that the offences involved in the above case are only under Sections 408, 409, r/w 34 of I.P.C., which are more or less personal in nature and no public interest is involved. It is pertinent to ## **Crl.M.C.No.2863 of 2013** :-4-: note that though such offences are involved, the real parties to the dispute approached this Court after having amicably settled the matter. From the submission made by the counsel for the 2[nd] respondent, it appears to me that the de facto complainant has no further grievance against the petitioner/1[st] accused in the light of the settlement arrived by them. In this juncture, it is relevant to note the decision of the Honourable Apex Court reported in **Gian Singh** v. **State of Punjab** [2012(4) KLT 108(SC)]. In Gian Singh's case, the Supreme Court has held as follows:- “57. 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 S.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 victim have settled their dispute would depend on the facts **Crl.M.C.No.2863 of 2013** :-5-: and circumstances of each case and no category can be prescribed.” ## It is further held as follows:- “......... But the criminal cases having overwhelmingly and pre-dominatingly civil flavour stand on different footing for the purposes of quashing, particularly the offences arising from commercial, financial, mercandile, 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, High Court may quash criminal proceedings if in its view, because of the compromise between the offender and victim, the possibility of conviction is remote and bleak and continuation of criminal case would put 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........” According to me, in the light of the facts and circumstances involved in the present case and particularly in view of the settlement arrived in the present case, the dictum laid in the above decision is applicable in the present case. According to me, as the parties to the dispute settled the issues amicably, it is the duty of this Court to promote and encourage such settlement, instead of compelling the ## **Crl.M.C.No.2863 of 2013** :-6-: parties to go on with the dispute. It is pertinent to note that since the matter is settled out of court, in the event of proceeding with the trial, there would not have any fruitful prosecution resulting the conviction of the accused, rather the net result would be sheer waste of judicial time and abuse of process of the court and proceedings. Thus, according to me, following the decisions cited supra, this Criminal M.C. can be allowed granting the relief as sought for. In the result, this Crl.M.C. is allowed, quashing all further proceedings pending against the petitioner in C.C.No 704/2006 of the Judicial First Class Magistrate Court, North Paravur in Crime No.38/2006 of Eloor Police Station. Sd/- **V.K.MOHANAN, Judge** ami/ //True copy// P.A. to Judge