Roy Varghese, Sonu Roy, Winter Antony and William Antony v. State of Kerala and Zacharia Joseph @ Bency

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **TUESDAY, THE 18TH DAY OF FEBRUARY 2014/29TH MAGHA, 1935** ## **Crl.MC.No. 1009 of 2014 ()** **--------------------------CRIME NO. 900/2011 OF ALAPPUZHA NORTH POLICE STATION, ALAPPUZHA DISTRICT** **--------------------** ## **PETITIONERS/ACCUSED NOS. 1 TO 4 :** **--------------------------------------------------------** ## **1. ROY VARGHESE, AGED 43 YEARS** - **S/O.VARGHESE, KACHAPPALLY HOUSE, KIZHMADU ERUMATHALA P.O., ALUVA, ERNAKULAM DISTRICT.** **2. SONU ROY, AGED 38 YEARS W/O.ROY VARGHESE, KACHAPPALLY HOUSE, KIZHMADU ERUMATHALA P.O., ALUVA, ERNAKULAM DISTRICT.** **3. WINNTER ANTONY, AGED 36 YEARS S/O.VARU ANTONY, KALLAPPARAMBIL HOUSE, MAPRANAM THELAPPALLY, PANAMKULAM, KARUVANNUR P.O. IRINJALAKUDA, THRISSUR DISTRICT.** **4. WILLIAM ANTONY, AGED 33 YEARS S/O.VARU ANTONY, KALLAPPARAMBIL HOUSE, MAPRANAM THELAPPALLY, PANAMKULAM, KARUVANNUR P.O. IRINJALAKUDA, THRISSUR.** **BY ADVS. SMT.R.REJI (ATTINGAL)** ## **RESPONDENTS / RESPONDENTS :** **---------------------------------------------------** **1. STATE OF KERALA REP. BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM.** **2. ZACHARIA JOSEPH @ BENCY AGED 52 YEARS, S/O.JOSEPH ZACHARIA, ATTUKADAVIL HOUSE ALAPPUZHA HEAD POST OFFICE (NEAR YMCA) ALAPPUZHA-688 001.** **R1 BY PUBLIC PROSECUTOR SMT. SAREENA GEORGE P. R2 BY ADV. SRI.B.PRAMOD** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 18-02-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Mn** **...2/-** **Crl.MC.No. 1009 of 2014 () ------------------------------------APPENDIX PETITIONERS' ANNEXURES : -------------------------------------------ANNEXURE-I. CERTIFIED COPY OF THE CHARGE SHEET IN CRIME NO.900/2011 OF ALAPPUZHA NORTH POLICE STATION, ALAPUZHA DISTRICT. ANNEXURE-II. TRUE COPY OF THE AFFIDAVIT OF THE 2ND RESPONDENT RESPONDENT(S)' EXHIBITS : NIL ----------------------------------------------------------//TRUE COPY// P.A. TO JUDGE Mn** K. RAMAKRISHNAN, J. -----------------------------------------------------------------Crl. M. C. No.1009 of 2014 --------------------------------------------------------------------Dated this the 18[th] day of February, 2014 ## O R D E R This criminal miscellaneous case is filed by accused Nos. 1 to 4 in C.C.No.135/2013 (Crime No.900/2011 of Alappuzha North Police Station) on the file of the Chief Judicial Magistrate Court, Alappuzha, to quash the proceedings, recording the settlement arrived at between the petitioners and the defacto-complainant under Section 482 of the Code of Criminal Procedure (hereinafter called the 'Code'). 2. It is alleged in the petition that, the petitioners are relatives and on the basis of the complaint given by the 2[nd] respondent, a case was registered as Crime No.900/2011 of Alappuzha North Police Station, alleging offences under Section 120(b), 420, 465 and 468 read with Section 34 of the Indian Penal Code. The allegation was that, they obtained 1,20,000/- from the 2₹ nd respondent, Crl. M. C. No.1009 of 2014 2 promising a job in Afghanistan, thereafter they did not either secure the job as promised or re-pay the money to the 2[nd] respondent and they also sent a forged e-mail in this regard and thereby they have committed the above said offence. After investigation, the investigating officer submitted Annexure-AI final report. It was taken on the file as C.C.No.135/2013 on the file of the Chief Judicial Magistrate Court, Alappuzha, and that is pending before that court. In the meantime, the petitioners have settled the claim with the defacto-complainant and the defactocomplainant has no grievance against the petitioners now and he does not want to proceed with the prosecution of the case against the petitioners. Since certain offences are noncompoundable in nature, they could not file an application before the lower court for compounding the case. Since they were not appearing before the court, non-bailable warrants are also pending against them now. So they have no other option, except to approach this court to quash the Crl. M. C. No.1009 of 2014 3 proceedings, invoking the power under Section 482 of the 'Code'. So the petitioners filed this application, seeking the following relief: “For the grounds mentioned above and for other grounds that may be urged at the time of arguments, it is most respectfully prayed that this Hon'ble Court may be pleased to quash Annexure-I charge-sheet and all proceedings in C.C.No.135/2013 of the C.J.M. Court, Alappuzha.” 3. The 2[nd] respondent appeared though counsel and submitted that, the matter has been settled between him and the accused persons and he has no grievance against them. Learned counsel also submitted that the 2[nd] respondent has filed an affidavit to that effect as well. 4. Learned Public Prosecutor on instructions submitted that, except this case, there is no other case registered against the petitioner on the basis of similar allegations made, but opposed the application for quashing the case. 5. The counsel for the petitioners submitted that, except this case there is no other case against the Crl. M. C. No.1009 of 2014 4 petitioners and the matter has been amicably settled. The father of the first petitioner is seriously ill and on account of the pendency of the warrant, he is not able to come to India. So he prayed for allowing the application. 6. It is an admitted fact that on the basis of the statement given by CW1, who is the 2[nd] respondent herein as the defacto-complainant, Alappuzha North Police has registered a case against the petitioners as Crime No.900/2011 of that police Station and after investigation, Annexue-AI final report was filed before the court, which was taken on the file as C.C.No.135/2013 and now pending before the Chief Judicial Magistrate Court, Alappuzha. The matter has been now settled between the accused persons and the defacto-complainant/2[nd] respondent. Second respondent filed an affidavit as Annexure-II, admitting these facts and expressing his willingness to quash the proceedings, as he has no grievance against them now. Though on the basis of the allegations, it may appear that, Crl. M. C. No.1009 of 2014 5 there is a visa racket involved, but from the submission made by the learned Public Prosecutor that, it is seen that except this case no other case has been registered against the petitioners of this nature, it can only be treated as a promise to obtained visa, which has not been fulfilled and later the amount has been paid and settled the claim. 7. It appears to be a civil nature. In the decision reported in **Gian Singh v. State of Punjab [2012(4) KLT 108 (SC)],** the Hon'ble Supreme Court has held that: “The position that emerges from the above discussion can be summarised thus: the power of the High Court in quashing a criminal proceedings 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 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 victim have settled their dispute would depend on the facts and circumstances of each case an 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 offender in Crl. M. C. No.1009 of 2014 6 relation to the offences under special statutes like 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 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, 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. 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 proceedings or continuation of the criminal proceedings would tantamount to abuse of process of law despite settlement and compromise between the victim and wrongdoer and whether to secure the ends of justice, it is appropriate that criminal case is put to an end and if the answer to the above question (s) is in affirmative, the High Court shall be well within its jurisdiction to quash the criminal proceeding.” 8. Considering the fact that the matter is of civil colour and the matter has been settled between the parties and there is no possibility of any conviction being entered against the petitioners in the event of trial, in view of the fact that the defato-complainant has settled the entire claim and he will not support the case of the prosecution, I 7 Crl. M. C. No.1009 of 2014 feel that, it is a fit case where the power under Section 482 can be invoked to quash the proceedings to honour the settlement entered into between the parties. So the application is allowed and further proceedings in C.C.No.135/2013 (Crime No. 900/2011 of Alappuzha North Police Station) on the file of Chief Judicial Magistrate Court, Alappuzha, as against the petitioners is quashed. Office is directed to communicate this order to the concerned court immediately, for further necessary action. Sd/K. Ramakrishnan, Judge // True Copy // P.A. to Judge ss