Crl.M.C.No. 2534 of 2008 ( ) & conn.cases

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.BHAVADASAN** **THURSDAY, THE 29TH DAY OF AUGUST 2013/7TH BHADRA, 1935** ## **Crl.MC.No. 2534 of 2008 ( )** **---------------------------CMP NO. 1945/2008 IN CC 480/2005 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-I, KANJIRAPPALLY** **---------------------** ## **PETITIONER / PETITIONER :** **------------------------------------------** **ZACHARIA MATHEW, S/O. MATHAI, MADAPPALLYMATTOM HOUSE ANICKADU VADAKKUMBHAGOM, AKALAKUNNAM VILLAGE.** ## **BY ADV. SRI.PIRAPPANCODE V.S.SUDHIR** ## **RESPONDENTS/RESPONDENTS & STATE :** **-------------------------------------------------------------** ## **1. SHAJI MATHEW,** **MADAPPALLYMATTOM HOUSE, MOOZHOOR P.O., KOTTAYAM.** ## **2. K.C. CHANDRASEKHARA PANICKER,** **S/O. DAMODARAN NAIR, KIZHAKKEKUTTU HOUSE KOTTAYAM, CHENGALAM EAST VILLAGE ANICKADU VADAKKUMBHAGOM KARA.** **3. JOSHI THOMAS, S/O THOMAS, CHOORAPUZHA HOUSE, AKALAKUNNAM VILLAGE MATTAKKARAKARA.** ## **4. N. RAMACHANDRAN,** **DEPUTY SUPERINTENDENT OF POLICE, ADMINISTRATION, KOTTAYAM.** **...2/-** **Crl.MC.No. 2534 of 2008 ( ) -2-** **5. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM.** **6. CENTRAL BUREAU OF INVESTIGATION, NEW DELHI, REPRESENTED BY ITS DIRECTOR.** **R1 BY SENIOR ADVOCATE SRI.M.K.DAMODARAN BY ADVS. SRI.SHAJI THOMAS PORKKATTIL SRI.BINU PAUL R2 BY ADVS. SRI.JOHN JOSEPH (ROY) SRI.JOSEPH YESUDASAN R3 BY ADVS. SRI.MOHAN PULIKKAL SMT.MANJU RAJAN** **R4 & R5 BY PUBLIC PROSECUTOR SRI. DHANESH MATHEW MANJOORAN R6 BY ADVS. SRI.P.CHANDRASEKHARA PILLAI, C.B.I. SRI.M.V.S.NAMBOOTHIRY, SC, C.B.I.** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 29-08-2013, ALONG WITH CRL.MC. 2547/2011, CRL.MC. 2548/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Mn** **...3/-** ## **Crl.MC.No. 2534 of 2008 ( )** ## **APPENDIX** ## **PETITIONER'S ANNEXURES :** **ANNEXURE I : COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN WP (C) NO. 21024/2003 DATED 21.10.2003. ANNEXURE II COPY OF ORDER OF ETTUMANOOR JMFC IN CMP 2926/2003 DT. 27-11-2003. ANNEXURE III COPY OF THE ORDER OF ETTUMANOOR JMFC IN CMP 5315/2004 DATED 31-1-2004. ANNEXURE IV COPY OF THE ORDER OF THIS HON'BLE COURT IN CRL.M.C. NO.628/2005 DT. 31/6/2005. ANNEXURE V COPY OF ORDER OF KANJIRAPPALLY JMFC IN APPLICATION DTD. 6-8-05. ANNEXURE VI COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN WP (C) NO. 31824/2004 DT. 17-6-05. ANNEXURE VII COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN WP (C) NO. 7168/2006 DT. 26-3-06. ANNEXURE VIII COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN WP (C) 24565/2006 DT. 6-12-06. ANNEXURE IX COPY OF THE ORDER OF THIS HON'BLE COURT IN R.P. 201/2007 IN WP(C) NO. 24565/2006 DT. 26-2-2007. ANNEXURE X COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN W.A. NO. 963/2007 DT. 10-4-2007. ANNEXURE XI COPY OF FINAL REPORT NO. I IN R.C.29/S/06/AZ/KER SUBMITTED BY THE CBI BEFORE THE CHIEF JUDICIAL MAGISTRATE'S COURT, ERNAKULAM. ANNEXURE XII COPY OF FINAL REPORT NO. 2 IN R.C. 29/S/06/AZ/KER SUBMITTED BY THE CBI BEFORE THE JUDICIAL MAGISTRATE'S COURT, ERNAKULAM.** **(Contd...)** ## **Crl.MC.No. 2534 of 2008 ( )** ## **ANNEXURE XIII** **COPY OF REFER REPORT IN CRIME NO. 73/2002 OF THE GANDHI NAGAR POLICE FILED ON 13-10-2007 BY THE 4TH RESPONDENT.** **ANNEXURE XIV COPY OF THE OBJECTION FILED BY THE PETITIONER AGAINST ANNEX. XIII REPORT WITH THE COPIES OF THE DOCUMENTS PRODUCED ALONG WITH IT.** **ANNEXURE XIV(a) COPY OF THE RELEVANT PARTS OF THE COMPLAINT GIVEN TO THE BANK DIRECTING THEM TO MAKE STOP PAYMENT.** **ANNEXURE XIV(b) COPY OF THE RELEVANT PARTS OF THE FAX MESSAGE GIVEN TO THE BANK DIRECTING THEM TO MAKE STOP PAYMENT.** **ANNEXURE XV COPY OF THE ORDER DATED 4.6.2008 IN CMP NO. 1945/08 IN CC NO. 490/2005 OF THE JUDICIAL FIRST CLASS MAGISTRATE'S COURT-I, KANJIRAPPALLY.** **ANNEXURE XVI COPY OF THE FIR AND THE ACCOMPANYING DOCUMENTS INCLUDING THE LETTER ADDRESSED TO THE BANK.** **ANNEXURE XVII COPY OF THE ORDER OF THE SUPREME COURT DATED 23.8.2007.** **ANNEXURE XVIII COPY OF THE ORDER OF THIS HON'BLE COURT IN RP NO. 943/07.** - **ANNEXURE XVIII(a) COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN W.A. NO. 2690/2007.** **ANNEXURE XIX COPY OF THE LETTER DATED 3.7.2009 ADDRESSED TO THE INSPECTOR, CYBER CRIME INVESTIGATION CELL, OFFICE OF THE COMMISSIONER OF POLICE, MUMBAI.** **ANNEXURE XX COPY OF THE COMPLAINT FORWARDED THROUGH E-MAIL TO THE COMMISSIONER OF POLICE, KOCHI TOGETHER WITH THEIR ACKNOWLEDGEMENT OF HAVING REGISTERED THE SAID COMPLAINT.** **(Contd...)** ## **Crl.MC.No. 2534 of 2008 ( )** **ANNEXURE XXI COPY OF THE DEFAMATORY E-MAIL RECEIVED IN THE PETITIONER'S ID.** **ANNEXURE XXII COPY OF THE LETTER DATED 8.9.2009 ADDRESSED TO THE SUPERINTENDENT OF POLICE, CBI, KOCHI.** **RESPONDENT'S EXHIBITS : NIL** **P.A. TO JUDGE** **Mn** ## **P.BHAVADASAN, J.** ## **--------------------------------------Crl.M.C.Nos.2534 OF 2008 & 2547 & 2548 OF 2011 --------------------------------------Dated this the 29[th] day of August, 2013.** ## **O R D E R** As common issue arises for consideration in these petitions, these petitions are being disposed of by a common order. 2. The main issue that arises for consideration in these petitions is whether the compromise entered into between the brothers, one of them being the de facto complainant and others accused, can be accepted and the proceedings can be directed to be closed or quashed as the case may be putting an end to the entire proceedings as against the respective accused persons. 3. It is true that on an earlier occasion, by Annexure R2 order produced in Crl.M.C.Nos.2547 and 2548 of 2011, this Court had occasion to consider the very same plea and it was found that though the proceedings arose on a private complaint, crimes alleged to have been committed were in fact against society and **Crl.M.C.No.2534/08 & conn.cases** **2** it will be a sending of wrong message to accept the compromise. Accordingly, the earlier petitions filed by the respective parties were dismissed. 4. The petitioners, drawing inspiration from the decision in _**Gian Singh** vs._ _**State of Punjab and another**_ ((2012) 10 Supreme Court Cases 303), have now filed the petitions pointing out that the disputes between the parties in the respective cases have been settled and the amounts due to the respective public institutions have been paid and the debts discharged. It is also pointed out that no more disputes survive between the parties to be settled and that the de facto complainant does not wish to prosecute the matter further. Under the above circumstances, it is pointed out that in the light of the above decision, it is only fit, proper and just that the proceedings herein be given a quietus to and the parties are relieved of the burden of facing trial and such other proceedings. It is almost certain that such an exercise will only be a futile one. 5. Learned Standing Counsel appearing for the CBI very vehemently opposed the petitions pointing out that the **Crl.M.C.No.2534/08 & conn.cases** **3** compromise is between brothers. One of them is the de facto complainant. The investigation was taken over by CBI under orders of this Court on petitions moved by the de facto complainant and considerable amount of money and time has been spent by them in the matter. Learned Standing Counsel also pointed out that it could not be said theoretically that the disputes are of private nature as the money involved is public money. The fact remains that the offences are committed against the society as such and therefore, the principles laid down in the decision relied on by the learned counsel for the petitioners cannot be accepted. Learned Standing Counsel also pointed out that in view of Annexure R2 order, a reconsideration of the present orders is necessary. 6. After having heard the learned counsel for the respective parties, it is felt that it could not strictly be said that the matter is not between brothers and it is a public or social issue. No doubt true that the funds of the public institutions were siphoned off by the process adopted by the accused persons. But, the real sufferer was one of the brothers whose signature etc. are alleged **Crl.M.C.No.2534/08 & conn.cases** **4** to have been forged. It is also true that it is on the petitions filed by the de facto complainant that investigation was taken over by CBI. It could not be disputed that much money and time were spent by the CBI to find out the so called forgery etc. which gave rise to the crime now registered against the accused persons. But the fact remains that the dispute was essentially between brothers. It is also significant to notice that may be due to the commendable investigation done by the CBI, public money was saved and the parties settled the matter and satisfied the debt due to each of the financial institutions. 7. It is pointed out that the parties namely, brothers have settled all their differences and disputes and the de facto complainant does not wish to proceed with the matter. In the light of the said stand taken by the de facto complainant, even though there may be materials against the petitioners now, the chance of a successful trial is rather weak and in all probabilities, it will be an exercise in futility especially when the de facto complainant has shown his disinterest in prosecuting the matter further. **Crl.M.C.No.2534/08 & conn.cases** **5** 8. It will be useful at this point of time to refer to the relevant portion of the decision in _**Gian Singh** vs._ _**State of Punjab and another**_ ((2012) 10 Supreme Court Cases 303) which reads as follows: “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 FIR 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 **Crl.M.C.No.2534/08 & conn.cases** **6** have settled the dispute. Such offences are not private in nature and have a 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 the criminal proceedings involving such offences. But the criminal cases having overwhelmingly and predominatingly 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 the 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 **Crl.M.C.No.2534/08 & conn.cases** **7** 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”. 9. Going by the principles laid down in the said decision, it could not strictly be said that the offences made mention of in the petitions fall within the ambit of prohibited category. True, public money is certainly involved. But, it is more in the nature of a dispute between the two brothers and there is no case as of now that due to the settlement, any loss has been caused to be financial institution from which money was borrowed on the basis of the so called objectionable documents. 10. Since the brothers have chosen to settle the matters between them, in order to give a quietus to all the issues and to put an end to the litigations, it is felt that in the light of the decision referred to above, it will be proper for this Court to **Crl.M.C.No.2534/08 & conn.cases** **8** extend reliefs to the parties to enable them to lead a harmonious and peaceful life. This is not to say that the acts are justified but only to mention that since the de facto complainant himself has come forward with showing inclination to put an end to the disputes and has stated that he is disinterested in pursuing the matter further, certainly it will be a waste of time and money to let the proceedings continue. 11. In the result, all further proceedings in C.C.Nos.36 and 71 of 2008 of the Chief Judicial Magistrate Court, Ernakulam shall stand quashed and the accused shall stand discharged. As far as Crl.M.C.No.2534/2008 is concerned which arose from C.C.No.480/2005 of Judicial First Class Magistrate Court-I, Kanjirapally, it is represented before court that the parties have agreed to settle the disputes between them and that may be recorded and it is prayed that on settlement and on filing a proper petition before the said court, the matter may be put an end to. Similar prayer is made in respect of C.C.Nos.446/2002 and 511/2005 pending before the same court. As far as Crl.M.C.No.2534/2008 and C.C.Nos.446/2002 and 511/2005 are **Crl.M.C.No.2534/08 & conn.cases** **9** concerned, on the petitioners and the de facto complainant filing petitions pointing out that the matter has been settled and the de facto complainant has no further grievance in the matter and that the de facto complainant does not wish to prosecute the matter further, accepting the petitions so filed, the proceedings may be closed and appropriate orders be passed. These Crl.M.C.s are disposed of as above. ## **Sd/-** **P.BHAVADASAN JUDGE** smp // True Copy // P.A. to Judge.