TMI Blog2012 (3) TMI 587X X X X Extracts X X X X X X X X Extracts X X X X ..... of ₹ 100 lacs, Bank Guarantee facility of ₹ 20 lacs and Forward Contracts upto a limit of ₹ 300 lacs, were sanctioned and such decision was conveyed to the Petitioner No.1 by the Bank by its letter dated 7th July, 1999. On 16th October, 1999, the Bank sought additional collateral security of ₹ 56 lacs from the Petitioner No.1, who, on 29th December, 1999, submitted a Lease Deed dated 29th December, 1999, in respect of an immovable property leased to M/s. Nitesh Amusements Pvt. Ltd. by Shri Homi D. Sanjana and his family members, through their Constituted Attorney, Shri Kersi V. Mehta. The Petitioners herein were Directors of the aforesaid company. 3. In December, 2000, six irrevocable Import Letters of Credit for a total sum of ₹ 188.01 lacs were opened by the Bank of Maharashtra on behalf of M/s. Internat Impex, Mumbai, for import of houseware items rechargeable lanterns and velvet four-way and upholstery materials . The documents relating to the said Letters of Credit, including Bills of Lading, Invoice and Bills of Exchange, were accepted and collected by the Petitioner No.1 on behalf of the firm from the Bank and he undertook to make payme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, 2010, a compromise proposal relating to the transaction between the Petitioners and the Bank was also mooted by the Asset Recovery Branch at Mumbai of the Bank of Maharashtra and a communication was addressed to the Petitioner No.1, which, however, made it clear that such compromise should not be construed as settlement of criminal complaints/investigations/proceedings pending in the court against the borrowers/guarantors. As has been submitted during the course of hearing of the writ petition, pursuant to such offer of One-Time Settlement, dues of both the Banks have been cleared by the Petitioners and they have, therefore, entered into a compromise with the Petitioners indicating that they had no further claim against the Petitioners. 8. It is in this background that a separate application was made in the writ petition, being Criminal Misc. Petition No.1110 of 2012, for stay of further proceedings in R.C.No.3/E/2003/CBI/EOW/MUM filed by the CBI and pending before the Additional Metropolitan Magistrate, 19th Court, Esplanade, Mumbai, and also Special Case No.3 of 2004 in CBI Case RC No.8/E/2003/MUM filed by the CBI before the Special Judge at Mumbai, together with Criminal C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n exercise of its inherent jurisdiction under Article 142 of the Constitution, and even Section 320 Cr.P.C. could not fetter such powers, as had been earlier held in B.S. Joshi Vs. State of Haryana [(2003) 4 SCC 675]. It had also been contended on behalf of the Union of India that the power under Article 142 of the Constitution was to be exercised sparingly and only in rare cases and not otherwise. The fact that such a power vested in the Supreme Court under Article 142 of the Constitution or the High Court under Section 482 Cr.P.C. was never in doubt, only the manner of its application was in issue and it was held that such power was to be used sparingly in order to prevent any obstruction to the spring of justice. Taking an over all view of the facts in the said case and keeping in mind the decision in B.S. Joshi's case and the compromise arrived at between the company and the Bank and the consent terms, this Court took the view that technicality should not be allowed to stand in the way of quashing of the criminal proceedings, since the continuance of the same after the compromise had been arrived at between the parties, would be a futile exercise. Reference was also made to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om the various transactions which were effected by the writ petitioners in order to camouflage their intention of offering as security a property in respect of which they had no title. As innocent as it may seem to be, it is more than a coincidence that the Petitioners offered as security a leasehold property which had been acquired from one Shri Kersi Mehta, who had used a Power of Attorney alleged to have been executed by Shri Homi D. Sanjana and his family members and in respect whereof a criminal case had been filed by Shri Homi against the said Kersi Mehta and the writ petitioners. Shri Jain contended that the entire transaction was based on a fraud perpetrated on Shri Homi D. Sanjana and his family members and, in fact, no title to the property in question had ever passed to the Petitioners. 15. Shri Jain submitted that in Rumi Dhar (Smt.) Vs. State of West Bengal Anr. [(2009) 6 SCC 364], a Bench of two Judges while considering the maintainability of criminal action where the liability was both civil and criminal, had occasion to consider the effect of a judgment in civil proceedings in respect of a loan obtained by fraud. As an off-shoot of the aforesaid question, anoth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ifferent Benches of this Court, when the same issue surfaced in Gian Singh Vs. State of Punjab Anr., SLP (Crl.) No. 8989 of 2010, wherein the decisions in B.S. Joshi's case, Nikhil Merchant's case and Manoj Sharma's case (supra) came to be considered, the Bench comprised of two Judges, was of the view that the said decisions required reconsideration and directed that the matter be placed before a larger Bench to consider the correctness of the said three decisions. Shri Jain urged that as the same issue which was involved in the present case was also the subject matter of the reference to a larger Bench, this Court should abstain from pronouncing judgment on the issue which was the subject matter in the said reference. Shri Jain urged that in the circumstances mentioned hereinabove, no relief could be given to the Petitioners on the writ petition and the same was liable to be dismissed. 17. Having carefully considered the facts and circumstances of the case, as also the law relating to the continuance of criminal cases where the complainant and the accused had settled their differences and had arrived at an amicable arrangement, we see no reason to differ with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court can exercise power under Section 482 Cr.P.C. to do real and substantial justice and to prevent abuse of the process of Court when exceptional circumstances warranted the exercise of such power. Once the circumstances in a given case were held to be such as to attract the provisions of Article 142 or Articles 32 and 226 of the Constitution, it would be open to the Supreme Court to exercise its extraordinary powers under Article 142 of the Constitution to quash the proceedings, the continuance whereof would only amount to abuse of the process of Court. In the instant case the dispute between the petitioners and the Banks having been compromised, we have to examine whether the continuance of the criminal proceeding could turn out to be an exercise in futility without anything positive being ultimately achieved. 19. As was indicated in Harbhajan Singh's case (supra), the pendency of a reference to a larger Bench, does not mean that all other proceedings involving the same issue would remain stayed till a decision was rendered in the reference. The reference made in Gian Singh's case (supra) need not, therefore, detain us. Till such time as the decisions cited at the Ba ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
