Ranjan Gogoi, J.— Leave granted. The appellant is the second accused (hereinafter referred to as “A-2”) in CC No. 48 of 2011 [RC 27(A)/2004] in the Court of the Special Judge (SPE/CBI), Thiruvananthapuram. He is aggrieved by the refusal dated 25-6-2013 Cri MC No. 2480 of 2013 of the High Court of Kerala to quash the aforesaid criminal proceeding lodged by the respondent Central Bureau of Investigation (hereinafter for short “CBI”).
2. The allegations made against the appellant-accused in the FIR dated 30-11-2004 are to the effect that the appellant-accused along with one T.K Rajeev Kumar (A-1), Branch Manager, Indian Overseas Bank, Killippalam Branch, Trivandrum and C. Sivaramakrishna Pillai (A-3) (since deceased) had entered into a criminal conspiracy to obtain undue pecuniary advantage for themselves. Specifically, it was alleged that in furtherance of the aforesaid criminal conspiracy the appellant-accused dishonestly applied for a car loan of Rs 5 lakhs and opened a bank account bearing No. 1277 on 24-8-2002 without proper introduction. Thereafter, according to the prosecution, the appellant-accused furnished a forged agreement for purchase of a second hand Lancer car bearing No. KL 5L 7447 showing the value thereof as Rs 6.65 lakhs though the appellant-accused had purchased the said vehicle for Rs 5.15 lakhs only. It is further alleged that A-1, by abusing his official position as Branch Manager, dishonestly sanctioned Rs 5 lakhs towards car loan without prerequisite sanction inspection. It is also alleged that A-1, who did not have the authority to do so, sanctioned education loan of Rs 4 lakhs under the Vidyajyothi Scheme to the appellant-accused for undergoing a course on Digital Film Making at SAE Technology College, Thiruvananthapuram. According to the prosecution, the appellant-accused had submitted two forged receipts of the aforesaid college showing payment of Rs 1,60,000 as fees which amount was duly released in his favour though he had actually paid Rs 47,500 to the College and had attended the course only for three days.
3. It is the further case of the prosecution that A-1, without being authorised to do so, sanctioned cash credit facility of Rs 17 lakhs to one M/s Focus Infotainments of which the appellant-accused is the proprietor and in this regard had obtained inflated value of the collateral security offered by the appellant-accused from the deceased accused A-3. According to the prosecution in the valuation report submitted by A-3 the value of the property offered as a collateral security by A-2 was shown at Rs 17,34,675 though the subsequent valuation thereof by an approved valuer was for Rs 8,56,600. The prosecution had also alleged that after sanction of the said loan, A-1 wiped out the overdraft facility of Rs 13,94,000 given to the appellant-accused without any authority by transferring the said amount from the cash credit account which was not only against the banking procedure but had also caused undue pecuniary advantage to the appellant-accused to the extent of Rs 23,57,887. On the aforesaid facts, commission of offences under Section 120-B IPC read with Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act and Sections 420/471 IPC was alleged insofar as the appellant-accused is concerned.
4. Based on the aforesaid allegations RC Case No. 27(A)/2004 dated 21-7-2005 was registered wherein charge-sheet had been filed against the appellant-accused under the aforesaid sections of the Penal Code, 1860 as well as the PC Act. It is not in dispute that charges under the aforesaid provisions of law have been framed against the appellant-accused in the Court of the Special Judge (SPE/CBI), Thiruvananthapuram on 29-7-2013.
5. Shri H.P Raval, learned Senior Counsel appearing for the appellant-accused had contended that all amounts due to the Bank from the appellant-accused has been tendered in full in an out-of-court settlement between the parties. An acknowledgment dated 30-3-2009 has been issued on behalf of the Bank to the aforesaid effect wherein it is also stated that the Bank has no further claims and charges against the appellant-accused in view of the compromise reached. Placing reliance on the decisions of this Court in Nikhil Merchant v. CBI (2008) 9 SCC 677 and Gian Singh v. State of Punjab (2012) 10 SCC 303 and a recent pronouncement in CBI v. Narendra Lal Jain (2014) 5 SCC 364, (2014) 3 Scale 137, Shri Raval had contended that in view of the settlement arrived at between the Bank and the appellant-accused, the High Court ought to have exercised its power under Section 482 CrPC to quash the criminal proceedings against the appellant-accused. Shri Raval has taken the Court through the details of the allegations made and the charges framed to contend that the same are identical with those in Nikhil Merchant (2008) 9 SCC 677. The charges against the accused in both the cases are identical; the same has been quashed in Nikhil Merchant (2008) 9 SCC 677 which decision has been endorsed by a larger Bench in Gian Singh (2012) 10 SCC 303 and also in Narendra Lal Jain (2014) 5 SCC 364, (2014) 3 Scale 137. It is, therefore, contended that the criminal proceeding against the appellant-accused is liable to be quashed and the impugned order passed by the High Court set aside.
6. On the contrary, Shri Sidharth Luthra, learned Additional Solicitor General has submitted that the decision in Nikhil Merchant (2008) 9 SCC 677 turns on its own facts and what has been approved in Gian Singh (2012) 10 SCC 303 is merely the principle of law laid down in Nikhil Merchant (2008) 9 SCC 677, namely, that quashing a non-compoundable offence under Section 482 CrPC, following the settlement between the parties, does not amount to a circumvention of the provisions of Section 320 of the Code of Criminal Procedure. Notwithstanding the above, according to Shri Luthra, whether a criminal proceeding should or should not be interdicted midway would really depend on the facts of each case.
7. Shri Luthra has also drawn our attention to the observations made in para 61 of the judgment in Gian Singh (2012) 10 SCC 303 wherein this Court had carved out an exception by observing that:
“61. … 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 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 criminal proceedings involving such offences.”
(emphasis supplied)
According to Shri Luthra in view of the above and having regard to the charges framed in the present case the High Court was fully justified in declining to quash the criminal proceeding against the accused.
8. Insofar as the judgment in Narendra Lal Jain (2014) 5 SCC 364, (2014) 3 Scale 137 is concerned, Shri Luthra has pointed out that in the aforesaid case the accused was charged for the offence under Section 120-B read with Section 420 IPC whereas in the present case the charges against the appellant-accused are under Section 120-B read with Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act and Sections 420/471 of the Penal Code. It is submitted that the offences under the Prevention of Corruption Act and Section 471 of Penal Code are not compoundable.
9. We have also heard Shri P. Suresh Kumar, learned Senior Counsel for Respondent 2 Bank who had admitted the payment of the entire amount due from the appellant-accused under the transaction in question. The learned counsel has, however, submitted that in the written acknowledgment issued by the Bank there is no mention regarding any “settlement” of the criminal case against the appellant-accused insofar as the Bank is concerned.
10. The charges framed against the appellant-accused it may be repeated, are under Section 120-B IPC read with Section 13(2) read with Section 13(1)(d) of the PC Act and Sections 420/471 IPC. It is true that in Nikhil Merchant (2008) 9 SCC 677 the charges framed against the accused were also under Sections 120-B read with Sections 5(2) and 5(1)(d) of the PC Act, 1947 [Sections 13(2) read with 13(1)(d) of the PC Act, 1988] and Sections 420, 467, 468, 471 of the Penal Code. However, in para 28 of the judgment in Nikhil Merchant (2008) 9 SCC 677 on a consideration of the totality of the facts and circumstances in which the charges were brought against the accused this Court had come to the following conclusion:
“28. The basic intention of the accused in this case appears to have been to misrepresent the financial status of the Company, M/s Neemuch Emballage Ltd., Mumbai, in order to avail of the credit facilities to an extent to which the Company was not entitled. In other words, the main intention of the Company and its officers was to cheat the Bank and induce it to part with additional amounts of credit to which the Company was not otherwise entitled.”
The Court, thereafter, took into account the fact that the dispute between the parties had been settled/compromised and such compromise formed a part of the decree passed in the suit filed by the Bank. After holding that the power under Section 482 CrPC to quash a criminal proceeding was not contingent on the provisions of Section 320 of the Code of Criminal Procedure, and taking into account the conclusion recorded in para 28 of the judgment, as noticed above, the Court ultimately concluded that in the facts of the case (Nikhil Merchant (2008) 9 SCC 677) it would be justified to quash the criminal proceeding. In this regard, it is important to note that the Court in Nikhil Merchant (2008) 9 SCC 677 had come to the conclusion that “the dispute involved herein has overtones of a civil dispute with certain criminal facets”.
11. The decisions in Nikhil Merchant (2008) 9 SCC 677 as well as in some other cases, namely, B.S Joshi v. State of Haryana (2003) 4 SCC 675 and Manoj Sharma v. State (2008) 16 SCC 1 were referred to a larger Bench in Gian Singh (2012) 10 SCC 303 for an authoritative pronouncement as to whether in the said cases this Court had “indirectly permitted compounding of non-compoundable offences”. The larger Bench hearing the matter in its judgment (2012) 10 SCC 303 took the view that:
“57. Quashing of offence or criminal proceedings on the ground of settlement between an offender and victim is not the same thing as compounding of offence. … Strictly speaking, the power of compounding of offences given to a court under Section 320 is materially different from the quashing of criminal proceedings by the High Court in exercise of its inherent jurisdiction.”
Eventually, in para 61 the note of caution insofar as heinous and grave offences and offences under special laws, as already noticed, was sounded and it was held that Nikhil Merchant (2008) 9 SCC 677, B.S Joshi v. State of Haryana (2003) 4 SCC 675 and Manoj Sharma v. State (2008) 16 SCC 1 were correctly decided.
12. Reference of a case to a larger Bench necessarily has to be for a reconsideration of the principle of law on which the case has been decided and not the merits of the decision. The decision rendered by any Bench is final inter partes, subject to the power of review and the curative power. Any other view would have the effect of conferring some kind of an appellate power in a larger Bench of this Court which cannot be countenanced. However, the principle of law on which the decision based is open to reconsideration by a larger Bench in an appropriate case. It is from the aforesaid perspective that the reference in Gian Singh (2012) 10 SCC 303 has to be understood, namely, whether quashing of a non-compoundable offence on the basis of a compromise/settlement of the dispute between the parties would be permissible and would not amount to overreaching the provisions of Section 320 of the Code of Criminal Procedure. In fact, this is the question that was referred to the larger Bench in Gian Singh (2012) 10 SCC 303 and not the merits of the decision in Nikhil Merchant (2008) 9 SCC 677.
13. The decision in Gian Singh (2012) 10 SCC 303 holding the decision rendered in Nikhil Merchant (2008) 9 SCC 677 and other cases to be correct is only an approval of the principle of law enunciated in the said decisions i.e that a non-compoundable offence can also be quashed under Section 482 CrPC on the ground of a settlement between the offender and the victim. It is not an affirmation, for there can be none, that the facts in Nikhil Merchant (2008) 9 SCC 677 justified/called for the due application of the aforesaid principle of law. Also, neither Nikhil Merchant (2008) 9 SCC 677 nor Gian Singh (2012) 10 SCC 303 can be understood to mean that in a case where charges are framed for commission of non-compoundable offences or for criminal conspiracy to commit offences under the PC Act, if the disputes between the parties are settled by payment of the amounts due, the criminal proceedings should invariably be quashed. What really follows from the decision in Gian Singh (2012) 10 SCC 303 is that though quashing a non-compoundable offence under Section 482 CrPC, following a settlement between the parties, would not amount to circumvention of the provisions of Section 320 of the Code, the exercise of the power under Section 482 will always depend on the facts of each case. Furthermore, in the exercise of such power, the note of caution sounded in Gian Singh (2012) 10 SCC 303 (para 61) must be kept in mind. This, in our view, is the correct ratio of the decision in Gian Singh (2012) 10 SCC 303.
14. The aforesaid principle of law may now be applied to the facts of the present case. At the very outset a detailed narration of the charges against the appellant-accused has been made. The appellant has been charged with the offence of criminal conspiracy to commit the offence under Section 13(1)(d). He is also substantively charged under Section 420 (compoundable with the leave of the Court) and Section 471 (non-compoundable). A careful consideration of the facts of the case would indicate that unlike in Nikhil Merchant (2008) 9 SCC 677 no conclusion can be reached that the substratum of the charges against the appellant-accused in the present case is one of cheating nor are the facts similar to those in Narendra Lal Jain (2014) 5 SCC 364, (2014) 3 Scale 137 where the accused was charged under Section 120-B read with Section 420 IPC only. The offences are certainly more serious; they are not private in nature. The charge of conspiracy is to commit offences under the Prevention of Corruption Act. The accused has also been charged for commission of the substantive offence under Section 471 IPC. Though the amounts due have been paid the same is under a private settlement between the parties unlike in Nikhil Merchant (2008) 9 SCC 677 and Narendra Lal Jain (2014) 5 SCC 364, (2014) 3 Scale 137 where the compromise was a part of the decree of the Court. There is no acknowledgment on the part of the Bank of the exoneration of the criminal liability of the appellant-accused unlike the terms of compromise decree in the aforesaid two cases. In the totality of the facts stated above, if the High Court has taken the view that the exclusion spelt out in Gian Singh (2012) 10 SCC 303 (para 61) applies to the present case and on that basis had come to the conclusion that the power under Section 482 CrPC should not be exercised to quash the criminal case against the accused, we cannot find any justification to interfere with the said decision.
15. The appeal filed by the accused is, therefore, dismissed and the order dated 25-6-2013 of the High Court, is affirmed.