J.RAMESH KAMATH & ORS. Vs. MOHANA KURUP & ORS.
CODE OF CRIMINAL PROCEDURE, 1973 (CrPC)
Section 482 - Saving of inherent powers of High Court
Section 320 - Compounding of offences
Section 120 B - Punishment of criminal conspiracy
Section 406 - Punishment for criminal breach of trust
Section 408 - Criminal breach of trust by clerk or servant
Section 477 A - Falsification of accounts
Section 409 - Criminal breach of trust by public servant, or by banker, merchant or agent
Supreme Court of India (Division Bench (DB)- Two Judge)
Appeal (Crl.), 445 of 2016, Judgment Date: May 04, 2016
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL No.445 OF 2016
(Arising out of SLP(Crl.)No.3821 of 2010)
J.RAMESH KAMATH & ORS. .......APPELLANTS
VERSUS
MOHANA KURUP & ORS. .......RESPONDENTS
J U D G M E N T
JAGDISH SINGH KHEHAR, J.
1. Leave granted.
2. Respondents nos.4 to 7 herein describing themselves as members
of the All Kerala Chemists and Druggists Association (hereinafter referred
to as `the Association’), filed a written complaint to the City Police
Commissioner, Ernakulam against respondent nos.1 to 3. Respondent No.1 –
Mohana Kurup was the President of the Association during the relevant
period from 2004 to 2006 and thereafter from 2006 to 2008. Respondent No.2
– Raveendran was the Secretary of the Association during the same period,
and respondent no.3 – Sayed was the Treasurer of the Association during the
relevant period. It was alleged in the complaint filed by respondent nos.4
to 7, that respondent nos.1 to 3, in furtherance of a criminal conspiracy,
and with common intention, misappropriated huge amounts of funds of `the
Association', by misusing their position as office bearers of `the
Association'. On the basis of the complaint preferred by respondent nos.4
to 7, First Information Report bearing Crime No.675/2008 was registered at
Central Police Station, Ernakulam.
3. Appellant No.2 in the present appeal – Giri Nair (also claiming
to be an active member of the Association), likewise filed a complaint
before the City Police Commissioner, Ernakulam, making similar allegations
against respondent nos.1 to 3.
4. The police filed a final report before the Chief Judicial
Magistrate, Ernakulam, on 22.03.2009, based on an affirmation during
investigation, for offences under Sections 406, 408, 409, 477A and 120B of
the Indian Penal Code. Needless to mention, that the aforesaid chargesheet
was based on the complaint addressed by respondents nos.4 to 7 on
09.04.2008, and not the complaint made by the appellants before this Court.
5. Dissatisfied with the initiation of action against them,
respondent nos.1 to 3 filed Criminal M.C.No.4154 of 2009 before the High
Court of Kerala (hereinafter referred to as `the High Court’) under Section
482 of the Criminal Procedure Code praying for quashing of the final report
(filed by the police in C.C.No.90 of 2009, on the file of the Chief
Judicial Magistrate, Ernakulam arising out of Crime No.675/2008). The case
projected by respondent nos.1 to 3 before the High Court was, that the
allegations contained in the complaint dated 09.04.2008 were in the nature
of a private dispute, and was of a purely personal nature, without any
involvement of public policy, and as such, the matter could be settled
between the parties through an amicable settlement. And that, it had been
so settled.
6. Along with the aforesaid Criminal M.C.No.4154 of 2009,
respondent nos.1 to 9 filed a joint petition seeking compounding under
Section 320 of the Criminal Procedure Code. At this juncture, it would be
relevant to mention, that respondent nos.4 to 7 were the original
complainants on whose complaint, the case came to be registered against
respondent nos.1 to 3. Respondent nos.8 and 9 herein, were the General
Secretary and Treasurer of `the Association', at the time when Criminal
M.C.No.4154/2009 was filed.
7. According to the assertions made before this Court, the High
Court was informed, that the matter had been settled between the parties,
and that, no useful purpose would be served in continuing the prosecution.
The High Court, in the above view of the matter, passed the impugned order
dated 22.12.2009, whereby, proceedings in CC No.90/2009, pending before the
Chief Judicial Magistrate, Ernakulam, were quashed. Paragraph 2 of the
impugned order is extracted herein:-
“2. A compounding petition is filed jointly by the petitioners and
respondents 1 to 6 stating that entire disputes were settled with the
petitioners, who were the former office bearers and respondents 1 to 4, the
complainants and respondents 5 and 6, the present office bearers and
respondents 1 to 4 admit that there was no misappropriation of the amounts
of AKCDA as alleged and respondents 5 and 6 agreed the same. In view of
the settlement, it is contended that they may be permitted to compound the
offences.”
(emphasis is ours)
A perusal of paragraph 2 extracted above, reveals, that the complainants
(namely, respondent nos. 4 to 7 herein) and the accused (namely, respondent
nos.1 to 3 herein) had admitted, that there was no misappropriation of the
amounts of the Association, and respondents nos.8 and 9 herein, who were
the General Secretary and Treasurer (were impleaded in the joint petition
as respondent Nos.5 and 6) endorsed the above position.
8. Paragraph 5 of the impugned order, is also being extracted
hereunder:
“5. Prosecution case as against the petitioners is that they committed the
offences as against AKCDA and its members. The allegation is that they
opened two separate accounts and converted the cheques and demand drafts
received in the name of AKCDA to their personal accounts and thereby
misappropriated the amounts. The offences alleged are purely personal in
nature as against the Association, represented by respondents 5 and 6. The
case was investigated on the complaint filed by respondents 1 to 4. When
compounding petition filed by the petitioners along with respondents 1 to 6
establishes that there has been a complete settlement of the disputes and
the offences alleged are purely personal in nature, as held by the Apex
court in Madan Mohan Abbot v. State of Punjab (2008 (3) KLT 19) it is not
in the interest of justice to continue the prosecution. In the light of the
settlement and the joint petition filed, even if petitioners are to be
tried, there is no likelihood of a successful prosecution. In such
circumstances, it is not in the interest of justice to continue the
prosecution.
Petition is allowed. C.C.No.90/2009 on the file of Chief Judicial
Magistrate’s Court, Ernakulam is quashed.”
(emphasis is ours)
A perusal of paragraph 5 of the impugned order reveals, that the
acknowledged position between the parties (the accused, the complainants,
and the office bearers of `the Association') which was projected before the
High Court was, that the offences alleged in the complaint were purely
personal in nature.
9. Premised on the acknowledged admitted position, that there was
no misappropriation, as well as, the fact that the offences alleged in the
complaint were purely personal in nature, the High Court agreed with the
settlement between the parties, and quashed the proceedings in CC
No.90/2009.
10. It is also imperative for us to notice, that in the compounding
petition, which was filed by respondent nos.1 to 3 herein (the accused), as
petitioners impleaded respondents nos.4 to 7 herein (the complainants), and
respondent nos.8 and 9 (the then General Secretary and Treasurer of `the
Association') herein. A clear and categorical stance was adopted in the
compounding petition, that there was no misappropriation of the funds of
the Association, and that, not only the complainants, but also respondent
nos.8 and 9 herein, namely, the General Secretary and the Treasurer of the
Association, confirmed the above position.
11. The first contention advanced at the hands of the learned
counsel for the appellants was, that the respondents-accused have been
charged of offences under Sections 406, 408, 409, 477A and 120B of the
Indian Penal Code. It was the pointed contention of the learned counsel for
the appellants, that most of the provisions under which the accused-
respondents had been charged, were non-compoundable under Section 320 of
the Criminal Procedure Code. And as such, the matter could not have been
compounded.
12. Whilst it is not disputed at the hands of the learned counsel
for respondent nos.1 and 2, that most of the offences under which the
accused were charged are non-compoundable, yet it was asserted, that the
jurisdiction invoked by the High Court in
quashing the criminal proceedings against respondent nos.1 to 3, was not
under Section 320 of the Criminal Procedure Code, but was under Section 482
of the Criminal Procedure Code, as interpreted by this Court.
13. Insofar as the decisions of this Court are concerned,
reference, in the first instance, was made to Madan Mohan Abbot v. State of
Punjab, (2008) 4 SCC 582, wherefrom, our attention was invited to the
following observations:
“5. It is on the basis of this compromise that the application was filed
in the High Court for quashing of proceedings which has been dismissed by
the impugned order. We notice from a reading of the FIR and the other
documents on record that the dispute was purely a personal one between two
contesting parties and that it arose out of extensive business dealings
between them and that there was absolutely no public policy involved in the
nature of the allegations made against the accused. We are, therefore, of
the opinion that no useful purpose would be served in continuing with the
proceedings in the light of the compromise and also in the light of the
fact that the complainant has on 11-1-2004, passed away and the possibility
of a conviction being recorded has thus to be ruled out.
6. We need to emphasise that it is perhaps advisable that in disputes
where the question involved is of a purely personal nature, the Court
should ordinarily accept the terms of the compromise even in criminal
proceedings as keeping the matter alive with no possibility of a result in
favour of the prosecution is a luxury which the courts, grossly
overburdened as they are, cannot afford and that the time so saved can be
utilised in deciding more effective and meaningful litigation. This is a
common sense approach to the matter based on ground of realities and bereft
of the technicalities of the law.”
(emphasis is ours)
A perusal of the conclusions extracted above, with a reading of the FIR and
the supporting documents in the above case reveal, that the dispute was
purely of a personal nature, between two contesting parties. Further that,
the dispute arose out of private business dealings between two private
parties. And furthermore, there was absolutely no public involvement, in
the allegations made against the accused. Based on the aforesaid
considerations, this Court had held, that in disputes where the question
involved was of a purely personal nature, it was appropriate for Courts to
accept the terms of compromise, even in criminal proceedings. It was
sought to be explained, that in such matters, keeping the matters alive
would not result, in favour of the prosecution. We are of the view, that
the reliance on the above judgment would have been justified, if the
inferences drawn by the High Court were correct, namely, that admittedly
there was no misappropriation of the funds of the Association, and
secondly, the offences alleged were purely personal in nature. We shall
examine that, at a later stage.
14. Having placed reliance on the judgment in the Madan Mohan Abbot
case (supra), which was determined by a two-Judge Division Bench of this
Court, learned counsel for respondent nos.1 to 3 went on to place reliance
on Gian Singh vs. State of Punajb (2012) 10 SCC 303, which was decided by a
three-Judge Division Bench. Insofar as the instant judgment is concerned,
learned counsel for respondent Nos.1 to 3, in the first instance, invited
this Court's attention to paragraph 37 thereof, wherein the earlier
decision rendered by this Court in the Madan Mohan Abbot case, was duly
noticed. Thereupon, the Bench recorded its conclusion as under:
“59. B.S. Joshi (2003) 4 SCC 675, Nikhil Merchant (2008) 9 SCC 677, Manoj
Sharma (2008) 16 SCC 1 and Shiji (2011) 10 SCC 705 do illustrate the
principle that the High Court may quash criminal proceedings or FIR or
complaint in exercise of its inherent power under Section 482 of the Code
and Section 320 does not limit or affect the powers of the High court under
Section 482. Can it be said that by quashing criminal proceedings in B. S.
Joshi, Nikhil Merchant, Manoj Sharma and Shiji this Court has compounded
the non-compoundable offences indirectly? We do not think so. There does
exist the distinction between compounding of an offence under Section 320
and quashing of a criminal case by the High Court in exercise of inherent
power under Section 482. The two powers are distinct and different
although the ultimate consequence may be the same viz. acquittal of the
accused or dismissal of indictment.
60. We find no incongruity in the above principle of law and the
decisions of this Court in Simrikhia (1990) 2 SCC 437, Dharampal (1993) 1
SCC 435, Arun Shankar Shukla (1999) 6 SCC 146, Ishwar Singh (2008) 15 SCC
667, Rumi Dhar (2009) 6 SCC 364 and Ashok Sadarangani (2012) 11 SCC 321.
The principle propounded in Simrikhia that the inherent jurisdiction of the
High Court cannot be invoked to override express bar provided in law is by
now well settled. In Dharampal the Court observed the same thing that the
inherent powers under Section 482 of the Code cannot be utilised for
exercising powers which are expressly barred by the Code. Similar
statement of law is made in Arun Shankar Shukla. In Ishwaqr Singh the
accused was alleged to have committed an offence punishable under Section
307 IPC and with reference to Section 320 of the Code, it was held that the
offence punishable under Section 307 IPC was not compoundable offence and
there was express bar in Section 320 that no offence shall be compounded if
it is not compoundable under the Code. In Rumi Dhar although the accused
had paid the entire due amount as per the settlement with the bank in the
matter of recovery before the Debts Recovery Tribunal, the accused was
being proceeded with for the commission of the offences under Sections 120-
B/420/467/468/471 IPC along with the bank officers who were being
prosecuted under Section 13(2) read with 13 (1)(d) of the Prevention of
Corruption Act. The Court refused to quash the charge against the accused
by holding that the Court would not quash a case involving a crime against
the society when a prima facie case has been made out against the accused
for framing the charge. Ashok Sadarangani was again a case where the
accused persons were charged of having committed the offences under
Sections 120-B, 465, 467, 468 and 471, IPC and the allegations were
that the accused secured the credit facilities by submitting forged
property documents as collaterals and utilised such facilities in a
dishonest and fraudulent manner by opening letters of credit in
respect of foreign supplies of goods, without actually bringing any
goods but inducing the bank to negotiate the letters of credit in favour
of foreign suppliers and also by misusing the cash-credit facility. The
Court was alive to the reference made in one of the present matters and
also the decisions in B.S.Joshi, Nikhil Merchant and Manoj Sharma and
it was held that B.S.Joshi, and Nikhil Merchant dealt with different
factual situation as the dispute involved had overtures of a civil
dispute but the case under consideration in Ashok Sadarangani was more
on the criminal intent than on a civil aspect. The decision in Ashok
Sadarangani supports the view that the criminal matters involving
overtures of a civil dispute stand on a different footing.
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 F.I.R 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 have settled the dispute. Such offences are not
private in nature and have 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 criminal proceedings
involving such offences. But the criminal cases having overwhelmingly
and pre-dominatingly 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 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 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.”
(emphasis is ours)
15. A perusal of the above determination, leaves no room for any
doubt, that this Court crystalised the position in respect of the powers
vested in the High Court under Section 482 of the Criminal Procedure Code,
to quash criminal proceedings. It has now been decisively 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 Division Bench
in the above case, clearly expounded, that quashing of criminal proceedings
under Section 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 having an overwhelming and predominatingly
civil flavour, particularly offences arising from commercial, financial,
mercantile, civil, partnership, or such like transactions. Or even offences
arising out of matrimony relating to dowry etc. Or family disputes where
the wrong is basically private or personal. In all such cases, the
parties should have resolved their entire dispute by themselves, mutually.
16. The question which emerges for our consideration is, whether
the allegations levelled in the complaint against respondent nos.1 to 3,
would fall within the purview of the High Court, so as to enable it to
quash the same, in exercise of its jurisdiction under Section 482 of the
Criminal Procedure Code?
17. We shall now venture to determine the above issue. A perusal
of the complaint on the basis of which criminal prosecution came to be
initiated against respondent nos.1 to 3 reveals, that the accused persons
were described as office bearers of `the Association', during the period
from 2004 to 2008. During the course of hearing, it was not disputed, that
at the relevant time, respondent no.1 – Mohana Kurup was the President of
`the Association'; respondent no.2 – Raveendran was the Secretary of `the
Association'; and respondent no.3 – Sayed was the Treasurer of the
Association. It was alleged, that during their tenure, as office bearers
of the State Committee of `the Association', they had exclusive access to
the funds of `the Association'. They, at their own, managed the funds, for
and on behalf of `the Association'. Consequent upon their resignation in
2008, when an ad hoc Committee took up charge of the State Committee, it
discovered serious misappropriation of funds of the State Committee, which
were in the name of the State Committee, and were not accounted for. Even
the account books maintained by the State Committee, made no reference to
the receipt of such amounts. A specific reference was made to M/s Micro
Labs Ltd., Bangalore, which paid a sum of Rs.19,00,000/- two demand drafts
being D.D.No.718573 and D.D.No.718574 in the sum of Rs.9,50,000/- each,
drawn on the Canara Bank, both dated 17.04.2007. It was also asserted in
the complaint, that `the Association' issued two receipts dated 30.04.2007
and 15.05.2007 in acknowledgement of the receipt of the said amounts. It
was alleged, that the said amount was never incorporated in the account
books of `the Association'. It was also alleged, that respondent nos.1 to
3 dishonestly misappropriated the said amount to themselves, in violation
of bye-laws and other regulations/directions of the State Committee, by
creating false and fictitious accounts, by altering, destroying and
mutilating the original accounts of the State Committee, with a willful
intention to obtain illegal financial gains, and to defraud the State
Committee. It is also relevant to mention, that consequent upon completion
of investigation, the chargesheet dated 22.03.2009, filed against
respondent nos.1 to 3, stated thus:-
“The accused persons being the office bearers of the State Committee, All
Kerala Chemists & Druggists Association, in furtherance of their common
intention to obtain illegal financial gain conspired conjointly and cheated
the Association and its members by misappropriating the funds given by
various drug companies to AKCDA functioning near South Railway Station,
Ernakulam during the period from 17.04.2007 to 11.04.2008. The Demand
Drafts and Cheques received were not credited in the account of AKCDA. The
accused falsified the accounts of AKCDA and unauthorisedly opened accounts
in South Malabar Gramin Bank, Palakkad Branch and ICICI Bank, Edappally
Branch and credited the amounts in the said accounts. The DD's and cheques
received were encashed in the aforesaid accounts on various dates and an
amount of Rs.80,00,000/- was diverted for their own use. The accused
thereby cheated the members and the association and committed criminal
breach of trust. The accused also committed the offence alleged.”
(emphasis is ours)
18. In the above view of the matter, we are satisfied that the
allegations levelled against respondent nos.1 to 3 were of a nature, which
could not be treated as purely of a personal nature. We are also
astonished, that the complainants, who are arrayed in the present appeal as
respondent nos.4 to 7 affirmed (in the compounding petition) that “no
misappropriation of the amounts of All Kerala Chemists and Druggists
Association is committed by the petitioners/accused persons”. We are also
amazed, that respondent nos.8 and 9 herein, who were the General Secretary
and the Treasurer respectively of the Association, at the time of filing of
the compounding petition, confirmed the stand adopted by the complainants,
in the compounding petition. The accusations levelled against respondent
nos.1 to 3, in our considered view, do not pertain to a dispute which can
be described as purely of a personal nature. It is also not possible for us
to acknowledge the position adopted by the complainants, and the then
members of the Association, that no misappropriation had been committed by
the accused. We cannot appreciate how such a statement could have been
made after the investigation had been completed, and charges were framed,
which were pending trial before a court of competent jurisdiction.
19. We are of the view, that the basis on which the impugned order
was passed, was incorrectly determined as of a personal nature.
Additionally, the accusations were not of a nature which can be classified
by this Court, as were amenable to be quashed, under Section 482 of the
Criminal Procedure Code.
20. To be fair to the learned counsel for respondent Nos. 1 to 3,
we may also refer to Narinder Singh vs. State of Punjab, (2014) 6 SCC 466,
wherein one of the offences for which the accused was proceeded against was
under Section 307 of the Indian Penal Code. It was submitted, that even
for such criminal offences, a Court of competent jurisdiction, under
Section 482 of the Criminal Procedure Code, could quash the criminal
proceedings. Reference in this behalf was made to the conclusions drawn by
this Court in paragraphs 29.6 and 29.7, which are extracted hereunder:
“29.6 Offences under Section 307 IPC would fall in the category of heinous
and serious offences and therefore are to be generally treated as crime
against the society and not against the individual alone. However, the
High Court would not rest its decision merely because there is a mention of
Section 307 IPC in the FIR or the charge is framed under this provision. It
would be open to the High Court to examine as to whether incorporation of
Section 307 IPC is there for the sake of it or the prosecution has
collected sufficient evidence, which if proved, would lead to proving the
charge under Section 307 IPC. For this purpose, it would be open to the
High court to go by the nature of injury sustained, whether such injury is
inflicted on the vital/delegate parts of the body, nature of weapons
used, etc. Medical report in respect of injuries suffered by the victim can
generally be the guiding factor. On the basis of this prima facie
analysis, the High court can examine as to whether there is a strong
possibility of conviction or the chances of conviction are remote and
bleak. In the former case it can refuse to accept the settlement and quash
the criminal proceedings whereas in the latter case it would be permissible
for the High Court to accept the plea compounding the offence based on
complete settlement between the parties. At this stage, the court can also
be swayed by the fact that the settlement between the parties is going to
result in harmony between them which may improve their future relationship.
29.7 While deciding whether to exercise its power under Section 482 of the
Code or not, timings of settlement play a crucial role. Those cases where
the settlement is arrived at immediately after the alleged commission of
offence and the matter is still under investigation, the High court may be
liberal in accepting the settlement to quash the criminal
proceedings/investigation. It is because of the reason that at this stage
the investigation is still on and even the charge-sheet has not been filed.
Likewise, those cases where the charge is framed but the evidence is yet to
start or the evidence is still at infancy stage, the High court can show
benevolence in exercising its powers favourably, but after prima facie
assessment of the circumstances/material mentioned above. On the other
hand, where the prosecution evidence is almost complete or after the
conclusion of the evidence the matter is at the stage of argument, normally
the High Court should refrain from exercising its power under Section 482
of the Code, as in such cases the trial court would be in a position to
decide the case finally on merits and to come to a conclusion as to whether
the offence under Section 307 IPC is committed or not. Similarly, in those
cases where the conviction is already recorded by the trial court and the
matter is at the appellate stage before the High Court, mere compromise
between the parties would not be a ground to accept the same resulting in
acquittal of the offender who has already been convicted by the trial
court. Here charge is proved under Section 307 IPC and conviction is
already recorded of a heinous crime and, therefore, there is no question of
sparing a convict found guilty of such a crime.”
(emphasis is ours)
21. It is not possible for us to accept the submissions advanced at the
hands of the learned counsel for respondent nos.1 to 3, on the basis of the
observations extracted hereinabove. In the above judgment, this Court was
of the view, that it would be open to the High Court to examine, as to
whether there was material to substantiate the charge under Section 307 of
the Indian Penal Code, and also, to determine whether the prosecution had
collected sufficient evidence to substantiate the said charge. And in case
sufficient evidence to sustain the charges did not emerge, it would be open
to the High Court to quash the proceedings. We are of the view, that the
instant judgment had no relevance, to the facts and circumstances of this
case. Herein, the investigation has been completed, and the final report
was filed before the Chief Judicial Magistrate, Ernakulam, on 22.03.2009.
More than 6 years have gone by since then. It is not the case of the
accused, that the final report does not contain adequate material to
substantiate the charges. J.Ramesh Kamath, appellant no.1 herein, has been
cited as charge witness no.5; Giri Nair- appellant No.2 herein, has been
cited as charge witness no.6; and Antony Tharian – appellant no.3 herein,
has been cited as charge witness no.18. It is their contention, that the
charges are clearly made out on the basis of documentary evidence. We
would say no more. But that, the inferences are those of the appellants,
and not ours. The eventual outcome would emerge from the evidence produced
before the trial court.
22. For the reasons recorded hereinabove, we allow the appeal and
set aside the impugned order passed by the High Court. CC No.90 of 2009 is
accordingly restored on the file of the Chief Judicial Magistrate,
Ernakulam. We direct the trial court to proceed further with the matter,
in accordance with law.
23. In the peculiar facts and circumstances of this case, we cannot
endorse or appreciate the stand adopted by respondent Nos.4 to 9. We
accordingly direct further investigation in this matter, pertaining to the
role of respondent nos.4 to 9, and direct initiation of proceedings against
them, if made out, in accordance with law.
..........................J.
(JAGDISH SINGH KHEHAR)
..........................J.
(C.NAGAPPAN)
NEW DELHI;
MAY 04, 2016.