NITYANAD S/O KANDASWAMI and KAMALESH S/O SHIVDAYAL v. ASHOK BABU and THE STATE OF KERALA, ADDL.R3 SANJAI

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **FRIDAY, THE 21ST DAY OF OCTOBER 2016/29TH ASWINA, 1938** **Crl.MC.No. 6621 of 2016 ()** **--------------------------CRIME NO. 1487/2016 OF PANDALAM POLICE STATION, PATHANAMTITTA DISTRICT** **--------** ## **PETITIONER(S)/ACCUSED 1 AND 2:** **-----------------------------** **1. NITYANAD,S/O. KANDASWAMI, AGED 41 YEARS, B-884, DERA GANJIKHAN PARWANA ROAD, SARASWATHI VIHAR POST MANGALUPURI, NEW DELHI.** **2. KAMALESH S/O. SHIVDAYAL, AGED 31 YEARS, N-119/42, DERAGAJI KHAN** - **PARWANA ROAD, SARASWATHI VIHAR POST MANGALPURI, NEW DELHI CENTRAL DELHI, INDIA.** **BY ADV. SRI.A.C.DEVY** ## **RESPONDENT(S)/COMPLAINANT & STATE.:** **-----------------------------------** **1. ASHOK BABU, AGED 61 YEASRS, S/O. GOPALAN, THUNDANPLAVIL HOUSE, MEZHUVELI VILLAGE, PATHANAMTHITTA DISTRICT, PIN-689 625.** **2. THE STATE OF KERALA, REPRESETNTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN- 682031.** *** ADDL.R3 IMPLEADED :** **3. SANJAI, AGED 27 YEARS, S/O.RAJA RAAM, HOUSE NO.111/59 10TH BLOCK,PAR VANA ROAD, PEETHAMPURA, NEW DELHI - 34.** **ADDL.R3 IS IMPLEADED AS PER ORDER DT 21/10/2016 IN CRL.M.A 10955/2016.** **R1 BY ADV. SRI.P.JAYAN TOMY** **R2 BY PUBLIC PROSECUTOR SRI.AMJED ALI** **ADDL R3 BY ADV. SRI.K.R.RAMISH** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 21-10-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **bp** ## **Crl.MC.No. 6621 of 2016 ()** ## **---------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **-----------------------** **ANNEXURE A: A TRUE COPY OF THE FIR OF PANDALAM DATED POLICE STATION IN CRIME. 1487/2016. ANNEXURE B: THE TRUE COPY OF THE AFFIDAVIT DATED 11.9.16 SWORN BY THE DEFACTO COMPLAINANT.** **RESPONDENT(S)' EXHIBITS : NIL.** **//TRUE COPY//** **P.S. TO JUDGE** ## **bp** ## **RAJA VIJAYARAGHAVAN.V, J ---------------------------------------Crl.M.C. No.6621 of 2016 ----------------------------------------Dated this the 21[st] day of October, 2016** ## **O R D E R** - 1.The petitioners herein are the accused Nos.1 and 2 in Crime No.1487 of 2016 of Pandalam Police Station registered for offence punishable under Section 420 read with 34 of the IPC. In this petition filed under Section 482 of the Code of Criminal Procedure, the aforesaid proceedings are sought to be quashed on the ground of amicable resolution of disputes. - 2.The prosecution allegation runs thus:- The petitioners herein and the 3[rd] accused were running a firm in the name and style as “Tirupathy Balaji Enterprises” at Delhi. They employed the 4[th] accused who in turn called the 1[st] respondent and several others over telephone and fraudulently Crl.M.C.6621/2016 2 informed them that they had been selected to the network of Samsung Mobile. They were made to believe that if they part with a sum of Rs.3,000/- on cash-on-delivery basis, they would be provided with a smart phone manufactured by Samsung worth Rs.25,000/-. It is further alleged that with intent to cheat, and after accepting a sum of Rs.3,000/-, a packet was delivered. On unpacking, it was revealed that it contained a small Aluminium Idol and also the image of a tortoise, which was of no value. The petitioners were arrested on 26.7.2016 and on interrogation it was revealed that several other unsuspecting persons had been defrauded by the same modus operandi. 3.While the matter was pending investigation, the relatives and well wishers of the petitioners and the other accused contacted the 1[st] respondent and have Crl.M.C.6621/2016 3 have arrived at a settlement. It is submitted that the petitioners have made good the loss sustained by the 1[st] respondent and all the other persons who had been defrauded. In the instant case, Annexure-B affidavit sworn to by the 1[st] respondent/de facto complainant has also been filed. In the said affidavit it is asserted that all pending disputes have been settled and that the 1[st] respondent has no subsisting grievance. It is also stated that the 1[st] respondent has no objection in allowing this petition and in quashing the proceedings. 4. Separate applications have been filed by the accused Nos.3 and 4 to get themselves impleaded in the proceedings. The said applications were allowed and they have been added as additional respondents 3 and 4. 5. The learned counsel appearing for the petitioners, the 1[st] respondent and the learned Public Prosecutor were Crl.M.C.6621/2016 4 heard. - 6.Learned counsel appearing for the petitioners submits that the petitioners are in custody and in view of the settlement arrived at, this Court will be amply justified in putting a premature end to the prosecution. It is also contended that the offence is compoundable in nature and when the de facto complainant has no grievance, no purpose will be served in continuing with the proceedings. - 7.The learned Public Prosecutor on instructions submits that the statement of the de facto complainant has been recorded by the investigating officer and he has stated that the disputes have been settled. It is also submitted that several other crimes have been registered against the petitioners and two others on identical allegations. - 8.I have considered the rival submissions. In **Gian** Crl.M.C.6621/2016 5 **Singh v. State of Punjab and Another** [2012 (10)SCC 303], the Apex Court has crystalised the position in respect of the powers vested in the High Court under S.482 of the Criminal Procedure Code, to quash criminal proceedings. It was 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 Bench in the above case, clearly expounded, that quashing of criminal proceedings under S.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 Crl.M.C.6621/2016 6 having an overwhelming and predominatingly civil flavour, particularly offences arising from commercial, financial, mercantile, civil, partnership, or such like transactions. In all such cases, the parties should have resolved their entire dispute by themselves, mutually. Further, guidelines were issued by the Apex Court in **Narinder Singh v. State of Punjab** [2014 (6) SCC 466] and recently in **Rajesh Kamath J. and Others v. Mohana Kurup and Others** [AIR 2016 SC 2452]. - 9.Various contentions justifying the acts of the petitioners and other accused are advanced by the learned counsel. Though the modus operandi adopted by the petitioners and respondents 3 and 4 to cheat unsuspecting persons cannot be accepted or condoned, taking note of the gravity of the allegation, the amount involved and the facts and circumstances, it does not appear to me that the offence alleged is grave and serious having ingredients of extreme mental depravity. It also does not appear that Crl.M.C.6621/2016 7 the offence in this case will have a serious impact on the society. More over, when the respondent No.1 has settled the matter, the possibility of conviction is remote and bleak and the continuation of the criminal case against the petitioners would be a futile exercise. It would also put the petitioners and the 1[st] respondent to great oppression and prejudice. 10.Having considered all the relevant circumstances, I am of the considered view that this Court will be well justified in invoking its extra ordinary powers under Section 482 of the Code to quash the proceedings. Though only the accused Nos. 1 and 2 have come up before this Court, in view of the fact that the whole matter has been settled, I am of the considered view that the benefits of settlement can also be extended to the accused Nos. 3 and 4 who have been arrayed as the respondents 3 and 4. In the result, this petition will stand allowed. All further proceedings as against the petitioners and additional Crl.M.C.6621/2016 8 respondents 3 and 4 in Crime No.1487 of 2016 of the Pandalam Police Station are quashed. The petitioners 1 and 2 are reported to be in prison at Thiruvananthapuram. If they are not required in connection with any other cases, they shall be released forthwith. **Sd/RAJA VIJAYARAGHAVAN.V. JUDGE** vps