Alexy Realtors Pvt. Ltd. v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE V.K.MOHANAN THURSDAY, THE 4TH DAY OF JULY 2013/13TH ASHADHA, 1935 Crl.MC.No. 3989 of 2012 --------------------------- AGAINST THECC 883/2004 of JUDICIAL FIRST CLASS MAGISTGRATE COURT-I, PETITIONERS/ACCUSED 1 TO 4: 1. M/S. ALEXY REALTORS PVT. LTD. ALEXY GARDENS, THURAVOOR P.O., ANGAMALY ERNAKULAM, REPRESENTED BY ITS MANAGING DIRECTOR SUNITHA ANIL ALEXANDER. 2. ANIL ALEXANDER S/O. ALEXANDER, GENERAL MANAGER M/S. ALEXY REALTORS PVT.LTD., ALEXY GARDENS THURAVOOR P.O., ANGAMALY, ERNAKULAM. 3. SUNITHA ANIL ALEXANDER W/O. ANIL ALEXANDER, MANAGING DIRECTOR M/S. ALEXY REALTORS PVT. LTD., ALEXY GARDENS THURAVOOR P.O., ANGAMALY, ERNAKULAM. ## 4. AMINI DAVIS W/O. DAVIS MAMPILLY, MAMPILLY HOUSE, THEVALAPARA ROAD MANJAPRA, ANGAMALY. BY ADVS.SRI.S.RAJEEV ## RESPONDENTS/STATE/COMPLAINANT : 1. STATE OF KERALA REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM-682 031. (CC NO.883/2004 ON THE FILE OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT-I KOCHI). 2. T.M.BABY PROPRIETOR, CREATIVE CONSUMER CARE COUNTER, 39/5011 THEKKENATH BUILDING, NEAR SOUTH OVERBRIDGE KOCHI-682 036. R2 BY ADV. SRI.K.P.JUSTINE (KARIPAT) R1 BY PUBLIC PROSECUTOR MR. RAJESH VIJAYAN THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 0407-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: crmc 3989/2012 ANNEXURES: PETITIONER'S ANNEXURES: ANNEXURE 1: COPY OOF COMCPLAINT IN CC NO. 883/2004 ON THE FILE FO JFCM-I, KOCHI DATED 12.2.2004. A NNEXURE-II. COPY OF THE JOINT PETITION SIGNED BY THE COMPLAINANT ACCUSED AND THEIR COUNSEL DATED 19.12.2012. ANNEXURE III AFFIDAVIT SWORN BY THE 2ND RESPONDENT WHO IS THE DE FACTO COMPLAINANT IN CC NO. 883/2004 ON THE FILE OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT-I, KOCHI. TRUE COPY P.S. TO JUDGE ks. ## **V.K.MOHANAN, J.** ## **---------------------------------------Crl.M.C. No. 3989 of 2013** ## **----------------------------------------** Dated this the 4[th] day of July, 2013 ## **ORDER** The above petition is filed under Section 482 of the Criminal Procedure Code (for short 'Cr.P.C.') at the instance of the petitioners, who are accused in C.C.No.883/2004 of the Judicial First Class Magistrate Court, Kochi which is a case instituted upon the police report for the offences punishable under Sections 420 r/w Section 34 of I.P.C., with a prayer to quash all further proceedings against the petitioner in C.C.No.883/2004 on the file of the Judicial First Class Magistrate Court-I, Kochi, as the matter is settled out of court. 2. The allegation in the above case is that during the first May, 2001 and on 22/5/2001, the accused had purchased sanitary and bathroom items from the complainant on credit and they did not pay the amount for the value of goods and thus the petitioners have committed offence punishable under Sections 420 r/w Section 34 of I.P.C., Now, the case of the petitioners is that since the disputes arose connected with the business among the parties who engaged in the business, settled the matter. The second respondent, defacto complainant has sworn into Annexure-III affidavit in the above **Crl.M.C. No. 3989 of 2013** 2 Crl.M.C. 3. Heard the learned counsel for the petitioners as well as the second respondent. I have also heard the learned Public Prosecutor. 4. The learned counsel for the petitioners 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 second respondent who on the basis of specific instruction received from the respondent submitted that the above respondent, who is the de facto complainant does not intend to proceed any further against the petitioners and he has no grievance against them. 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 **Crl.M.C. No. 3989 of 2013** 3 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 Sections 420 r/w Section 34 of I.P.C., which are more or less personal in nature and no public interest is involved. It is pertinent to 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 second respondent, it appears to me that the the de facto complainant has no further grievance against the petitioners 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 which 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_ **Crl.M.C. No. 3989 of 2013** 4 _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 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 **Crl.M.C. No. 3989 of 2013** 5 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. Thus, I am of the view that 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 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 petitioners in C.C.No.883/2004 of the Judicial First Class Magistrate Court, Kochi and all further proceedings thereto. ## **V.K.MOHANAN, JUDGE** 6 ## **Crl.M.C. No. 3989 of 2013** AS