Nishant Vijay Ghosalkar And Ors vs The State Of Maharashtra And Anr
2021 Latest Caselaw 11024 Bom

            Digitally signed
LAXMIKANT   by LAXMIKANT
            GOPAL
GOPAL       CHANDAN
CHANDAN     Date: 2021.08.17                                          (12) cri.apl-204.20.odt
            10:05:12 +0530




                               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                     CRIMINAL APPELLATE JURISDICTION

                                  CRIMINAL APPLICATION NO.204 OF 2020

            1]     Mr. Nishant Vijay Ghosalkar                       ]
                   Age 42 yrs. Occ - Service                         ]
                   Residing at - 2501/Vasudha-B, Dosti               ]
                   Vihar, Vartka Nagar, Thane (W).                   ]..... Applicant No.1
                                                                     ]
            2]     Mrs. Manda alias Neeta Vijay Ghosalkar            ]
                   Age : 65 yrs. Occ - Housewife                     ]..... Applicant No.2
                                                                     ]
            3]     Mr. Vijay Balkrishna Ghosalkar                    ]
                   Age : 70 yrs, Occ - Retired.                      ]
                   Both Residing at - 1st Floor, Usha Nagar Corner   ]
                   Post - Khopoli, Tal - Khalapur,                   ]..... Applicant No.3
                   Raigarh Maharashtra - 410203                      ] (Original Accused)

                           versus

            1]     State of Maharashtra                              ]
                   (Through Vartak Nagar Police Station)             ]..... Respondent No.1

] 2] Mrs. Neha Nishant Ghosalkar ] Age : 35 yrs. Occ : Housewife ] Residing at - 2501/Vasudha-B, Dosti ]..... Respondent No.2 Vihar, Vartak Nagar, Thane (W) ] (Orig.Complainant)

Mr. Gulestan Dubhash I/by Mr. Rahul Shelke for the Applicants. Mr. V B Konde-Deshmukh, APP for the Respondent No.1/State Mr. Aslam Khan for Respondent No.2.

Respondent No.2 and Applicant No.1 present through video conferencing.

                                       CORAM :    S. S. SHINDE,
                                                  N. J. JAMADAR, JJ

                                       DATE   :   13th August 2021




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ORAL JUDGMENT : (PER S. S. SHINDE, J)

1            Rule. Rule made returnable forthwith and heard with the consent

of learned counsel appearing for the parties.

2 This Criminal Application has been filed by the Applicants for the

following substantial relief :-

"(a) That this Hon'ble Court be pleased to be quash and set aside the C.R. No.I-218 of 2019 registered in Vartak Nagar Police Station at Thane against the Applicants herein."

3 The learned counsel appearing for the Applicants and the 2 nd

Respondent jointly submit that the parties have amicably settled the dispute

and, the Applicant No.1 and the 2nd Respondent are happily staying together.

4 The 2nd Respondent has filed the affidavit. Paragraphs 1 to 7 of the

said affidavit are reproduced herein under for ready reference.

"1 I say and submit that the matrimonial dispute between the Applicant No.1 and myself, has been amicably solved and settled and accordingly Consent Terms filed before the Hon'ble JMFC Court, Thane in PWDV Case No.PWDV/150/2019 and hence this affidavit is without going into merits of the F.I.R., PWDV case and matrimonial petition as the matter is amicably solved.

2 With reference to paragraph 1 of the Application under reply the same related to Complaint and proceedings.

With reference to paragraph 2 the same is legal submission and it is true that Applicant and myself

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amicably settled and agreed not to continue with the prosecution of the said complaint as per consent terms executed between us.

3 With reference to paras 3, 4, 5, 6, 7, and 8 of the present Application unde4r reply, I say and submit that the said paragraphs are substantially correct and it is a fact that Applicant No.1 and myself got married on 07 th May, 2006 and the matrimonial dispute is now amicably solved and the consent terms dt. 06th January, 2020 in PWDV Case 150/2019 is filed in the Hon'ble JMFC, Thane.

4 With reference to para 9 and 10 of the Application under reply I say and submit that the said paragraph relates to compliance of consent terms as agreed. I say that in the said consent terms dated 06/01/2020 inadvertently due to typing error in clause/para 8 in line 4 after the words `all the jewelry items belonging to the Applicant (respondent no.2 herein) and their son", the words, "from his mother's custody" are missing. The PWDV application is alreay withdrawn and to incorporate the said words in consent terms in the said proceeding is not possible now. The same, as orally agreed between Applicant No.1 and myself before my filing of this Affidavit in reply, to be treated as - the said missing words added and corrected in consent terms. The Applicant no.1 herein, as per said consent terms undertakes to comply the same by bringing all jewelry of mine and our minor son, from his mother's custody and keep it in safe custody of Bank Locker opened by me. In this background I have no objection and give my consent for quashing of the said complaint.

5 With reference to paras 11, 12, 13, 14, and 15 of the Application under reply, I say and submit that the said paragraphs are legal submissions.

6 I say and submit that as the Applicant no.1 has undertaken to comply with his part, in full spirit of the consent terms, hence, accordingly I have No objection to the Application under reply and also in allowing the prayers of the Applicants."

7 I hereunder to comply with my part of the consent

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terms, give my consent to this Hon'ble Court to pass the necessary order to quash the said criminal proceedings as the matter is amicably settled.

In the aforesaid facts and circumstances I, the abovenamed respondent no.2, do hereby give my consent for quashing of the said Criminal Case C R No.I- 218 of 2019 registered at Vartak Nagar Police Station, at Thane, and I pray that this Hon'ble Court may be please to pass the necessary order accordingly."

5 Applicant No.1 and the 2nd Respondent are present before this

Court through video conferencing. The parties are identified by their

respective advocates. We have interacted with the Applicant No.1 and the 2 nd

Respondent through video conferencing. The 2 nd Respondent stated that it is

her voluntary act to arrive at amicable settlement and file the affidavit before

this Court and, she has no objection for quashing the impugned FIR.

6 Since the 2nd Respondent has filed the affidavit joining the prayer

of the Petitioner for quashing the impugned FIR and, the Applicant No.1 and

the 2nd Respondent have jointly stated that in view of the amicable settlement

arrived at between the parties, the Applicant No.1 and the 2 nd Respondent are

happily staying together, no fruitful purpose would be served by continuing the

further investigation in C.R. No.I-218 of 2019 registered against the Applicants

with the Vartak Nagar police station, at Thane for the offences punishable

under Sections 498-A and 406 of the Indian Penal Code.

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7              It is crystal clear from the averments in the affidavit filed by the

2nd Respondent that, the 2nd Respondent is not going to support the allegations

in the FIR and the chances of conviction of the Applicants would be bleak and

remote.

8 The Supreme Court in the case of Giansingh v. State of Punjab

and Another1 has held that, the criminal cases having overwhelmingly and

predominatingly 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 offence 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 resolves their entire

dispute. In this category of cases, the High Court may quash the 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. It is

further held that, as 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.

1     2012 (10) SCC 303

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9           In the light of the discussion in foregoing paragraphs and keeping

in view of the exposition of law by the Supreme Court in Giansingh's case

(supra), we are of the opinion that this is a fit case wherein this Criminal

Application deserves to be allowed in view of the amicable settlement arrived

at between the parties. Hence the following order.

10 The Criminal Application is allowed in terms prayer clause (a)

which reads thus :-

"(a) That this Hon'ble Court be pleased to be quash and set aside the C.R. No.I-218 of 2019 registered in Vartak Nagar Police Station at Thane against the Applicants herein."

Rule is made absolute in the above terms. The Criminal

Application is disposed of accordingly.

11 All concerned parties to act upon an ordinary copy of this order

duly authenticated by the Court Sheristedar.

[N. J. JAMADAR, J]                                     [S. S. SHINDE , J]




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