Bombay High Court
Ibrahim Ahmed Taja vs The State Of Maharashtra And Anr on 30 August, 2021
Bench: S.S. Shinde, N. J. Jamadar
Digitally signed by
LAXMIKANT LAXMIKANT
GOPAL GOPAL CHANDAN
Date: 2021.08.30
CHANDAN 11:19:06 +0530 cri.wp-1594.21.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO.1594 OF 2021
Ibrahim Ahmed Taja ]
Aged 48 years, Occ : Business ]
Residing at B Wing, Flat No.203 ]
Shivdas Champsi Marg, Mazgaon, ]
Mumbai - 400010 ]..... Petitioner.
Versus
1] The State of Maharashtra ]
(At the instance of L. T. Marg Police Station, ]
Mumbai vide M.E.C.R.no.5 of 2019 ]
(CR No.213 of 2019) ]
]
2] Mohd. Ali Abdul Kadar Patel ]
Aged 45 years, Occ : Business ]
23, Amina Mansion, 12-A, 3rd Floor, ]
Kolsa Street, Pydhonie, Mumbai-4000003 ]..... Respondents.
Mr. Mithilesh Mishra i/by Mr. Pradeep Dube for the Petitioner.
Mrs. S D Shinde, APP for the Respondent No.1/State.
Mr. Karan Mehta i/by Karan Mehta & Associates for Respondent No.2.
Respondent No.2 present in Court.
CORAM : S. S. SHINDE,
N. J. JAMADAR, JJ
Reserved on : 23rd August 2021
Pronounced on : 30th August 2021
JUDGMENT : (PER S. S. SHINDE, J)
1 Rule. Rule made returnable forthwith and heard finally with the
consent of learned counsel appearing for the parties.
2 The Criminal Writ Petition has been filed by the Petitioner for the
following substantial relief :-
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(b) That this Hon'ble Court be pleased to issue appropriate
writ, order and direction for quashing of the MECR No.5
of 2019 (FIR No.213/2019) for the commission of
offences punishable U/s. 420, 465, 467, 468, 471 r/w
120(b) of I.P.C. registered with L.T. Police Station at the
behest of the Respondent No.2 on such terms and
conditions as this Hon'ble Court may deem fit and
proper."
3 It is the case of the Petitioner that, the Respondent
No.2/Complainant and his wife Mrs. Sabina M Patel had purchased a building
known as Patel Mansion situated at 49/55, Sheriff Devji Street, Chakla,
Mumbai - 400 003 bearing City Survey No.781 of the Mandvi Division by a
registered Deed of Conveyance dated 27/01/2012 from the then owner. It is
also the case of the Petitioner that there are 37 tenants in the said building.
One Mrs. Zulekha Gulzarali Sayed was one of the tenants in the said building.
She was monthly tenant in respect of Room No.28 which is at third floor of the
said building since 21/05/2004. The said Zulekha Gulzarilal Sayed was in
arrears of monthly rent since 01/04/2005 to 30/04/2012 which comes
approximately to Rs.38,296/-. The complainant came to know that the said
Zulekha Sayed was no longer in occupation and possession of the said
tenement and that she had without the permission or consent of the
complainant, sublet the said tenement to the Petitioner. The Respondent
N.2/Complainant therefore filed Eviction Suit in the small causes Court against
the Petitioner and the said Zulekha Sayed. It is the case of the Petitioner that
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various false, forged and fabricated documents purportedly signed by Mrs.
Zulekha Sayed were filed in the said Suit. Respondent No.2 therefore filed a
private complaint before the learned Metropolitan Magistrate, 28 th Court,
Esplanade vide No.65/2019 for commission of offences punishable u/s. 420,
465, 467, 468, 471 r/w 120-B of the Indian Penal Code and, the learned
Metropolitan Magistrate passed an order of investigation under Section 156(3)
of the Criminal Procedure Code. On the basis of the aforesaid allegations, the
Respondent No.2 lodged a MECR No.5/2019 (FIR No.213/2019) dated
16/07/2019 against the Petitioner and others for commission of offences
punishable under Sections 420, 465, 468, 471 of the Indian Penal Code.
4 The learned counsel appearing for the Petitioner submitted that
the Petitioner and the 2nd Respondent have amicably settled their dispute and
agreed to jointly pray for quashing the impugned FIR in view of filing of
consent terms dated 17/03/2020 in RAE Suit No.970/2012 which is pending
before the Small Causes Court, Mumbai. It is also submitted that the Petitioner
has handed over peaceful and vacant possession of the disputed premises to
the Respondent No.2. It is also submitted that after filing of the said consent
terms the Respondent No.2 has assured that he would withdraw all the civil
and criminal litigations filed by the Respondent No.2 against the petitioner.
5 The learned counsel appearing for the Petitioner and Respondent
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No.2 jointly submit that the parties have settled the dispute amicably and have
arrived at out of court settlement and entered into Consent Terms dated
17/03/2020. It is further submitted that in view of the said Consent Terms,
the 2nd Respondent does not wish to pursue any civil and/or criminal
proceedings and the 2nd Respondent has no more grievances against the
Petitioner. It is submitted that the Petitioner has filed the present Writ Petition
for quashing the impugned FIR registered against the Petitioner at the behest
of the 2nd Respondent.
6 This matter was on board on 23/08/2021. The 2nd Respondent
was present. When we interacted with the 2nd Respondent, he stated that it is
his voluntary act to enter into the settlement and execute the Consent Terms
without any coercion and pressure. He further stated that he does not wish to
continue with the proceedings filed against the Petitioner and has no objection
to quash and set aside the impugned FIR.
7 The 2nd Respondent has filed his affidavit dated 16/03/2021 which
is annexed to the Paper Book. In paragraphs 1 to 10 of the said Affidavit, the
2nd Respondent has stated thus :-
"1 That on my complaint M.E.C.R. No.05 of 2019 (FIR
No.213/2019) dated 16/07/2019 registered at L. T. Marg
Police Station for commission of offences punishable U/s.
420, 465, 467, 468 and 471 r/w 120(b) of the IPC
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against the Petitioner herein and others.
2 That I had filed RAE Suit No.970 of 2012 before the ld.
Small Causes Court, Dhobi Talao, Mumbai against the
Petitioner and another. It is significant to note that
during the pendency of said RAE Suit No.970 of 2012
before the Ld. Small Causes Court No.17, joint consent
terms dated 17/03/2020 came to be filed by myself and
the Petitioner herein, whereby the Petitioner has resolved
the issues concerning the said Suit in accordance with
the terms and conditions as mentioned in the said
consent terms. Pursuant to which said RAE Suit No.970
of 2012 was disposed off on 17/03/2020. The copy of
the aid consent terms dated 17/03/2020 is annexed
herewith and marked as Exhibit "A". Hence, the
issues/disputes concerning said RAE Suit have been
amicably settled between myself and the Petitioner
voluntarily, equitably amicably.
3 That as in 2017, when I came to know that the
documents which are purportedly filed by one Mrs.
Zulekha G Sayed Defendant No.1 in said suit inspite of
the fact she never appeared in the matter. That Petitioner
or any fictitious person have signed the said documents,
hence I filed police complaint dated 14/08/2018.
Thereafter, on 12/04/2019 I had filed private complaint
before Ld. M. M. 28th Court vide No.65/2019 for
commission of offences punishable u/s. 420, 465, 467,
468, 471 and 120-B wherein the Ld. Magistrate passed
an order of invetigation U/s. 156(3). Pursuant to which,
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on 16/07/2019 the L. T. Marg Police station has
registered MECR No.5/2019 (FIR No.213/2019) against
the Petitioner and others.
4 That said MECR No.5/2019 (FIR No.213/2019)
registered by L. T. Marg police Station, Mumbai is
concerning subject matter of said RAE Suit No.970 of
2012, which was amicably settled. Hence, I am
withdrawing all allegations against the Petitioner
concerning MECR No.5/2019 (FIR No.213/2019) and
have no grievances of whatsoever nature against the
Petitioner.
5 That I am no longer interested in continuing with the
criminal prosecution against the Accused named in
aforesaid M.E.C.R. No.05 of 2019 which was initiated at
my behest.
6 That in view of aforesaid settlement and filing of consent
term before the Ld. Small Causes Court, all the
allegations against the Petitioner shall stand as
withdrawn and I have no grievances of whatsoever
nature against Petitioner.
7 That it is agreed between myself and Petitioner that we
shall not file any other proceedings against each other
before nay Court of law or any other authority in future
relating to subject matter of disputes which was amicably
settled. It is further agreed that we are bound by said
Consent Terms which was presented before the Ld. Small
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Causes Court, Dhobi Talao, Mumbai.
8 That neither party/s will file any frivolous & mischievous
complaints/allegations against each other before any
Court of law or any other authority in future relating to
subject matter of disputes as settled. That neither parties
will in any manner harass, annoy or interfere with the
each other and will not file any case/s of any nature
including civil or criminal nature in future against each
other touching the subject matter as stated herein.
9 In the above facts and circumstances, I pray that the Writ
Petition be allowed and the criminal proceedings being
MECR No.05 of 2019 (FIR No.213/2019) fro commission
of offences punishable U/s. 420, 465, 467, 468 and 471
r/w 120(b) of IPC against the Accused lodged at L. T.
Marg Police Station, Mumbai may be quashed and set
aside.
10 Thus in the light of aforesaid I am filing present Affidavit
putting on true and correct fact of amicable settlement
on record and dispose of the aforesaid Writ petition (St.)
No.1534 of 2021 by allowing the same."
8 The learned counsel for both the parties submit that both the
parties have voluntarily agreed to settle the disputes and differences between
them, and there is no coercion, undue influence or force upon them for
arriving at the settlement.
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9 In view of settlement arrived at between the parties, no fruitful
purpose will be served by continuing the further investigation in the impugned
FIR filed by Respondent No.2 against the Petitioner.
10 We have carefully perused the material placed on record including
the consent terms arrived at between the parties as also the affidavit filed by
the 2nd Respondent giving his consent to quash and set aside the impugned FIR
registered by him against the Petitioner.
11 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
1 2012 (10) SCC 303
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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.
12 In the light of discussion in foregoing paragraphs, it is abundantly
clear that Respondent No.2 is not going to support the allegations made
against the Petitioner in the impugned FIR, and further continuation of
investigation in impugned FIR would tantamount to the abuse of the process of
the Law/Court. Since the first informant i.e. the 2 nd Respondent is not going to
support the allegations in the FIR, the chances of conviction of the accused
would be remote and bleak. On overall consideration, we found that the
impugned FIR is the outcome of a personal dispute between the Petitioner and
the 2nd Respondent.
13 It is pertinent to note at this stage that though the parties have
resolved/settled their disputes between them and approached this Court for
quashing of the FIR lodged by the 2 nd Respondent against the Petitioner, we
deem it appropriate to impose costs of Rs.10,000/- (Rupees Ten Thousand
only) each on the Petitioner and the 2nd Respondent. Accordingly we direct the
Petitioner and Respondent No.2 each to deposit costs of Rs.10,000/- (Rupees
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Ten Thousand only) within two weeks from today with the Children's Aid
Society, Mumbai, who in turn shall transfer the said costs, for betterment of the
children, to the New & Additional Children's Home, Mankhurd, Mumbai.
14 For the reasons stated herein above, the Writ Petition is allowed in
terms of prayer clause (b) which reads thus :-
(b) That this Hon'ble Court be pleased to issue appropriate
writ, order and direction for quashing of the MECR No.5
of 2019 (FIR No.213/2019) for the commission of
offences punishable U/s. 420, 465, 467, 468, 471 r/w
120(b) of I.P.C. registered with L.T. Police Station at the
behest of the Respondent No.2 on such terms and
conditions as this Hon'ble Court may deem fit and
proper."
15 As directed herein above, within two weeks from today, both the
Petitioner and Respondent No.2 shall deposit their respective costs in the Bank
of Children's Aid Society, Mumbai details of which are as under:-
Name of Bank of Account : Children Aid Soc Donation
Bank Account No. :02370100005612
Bank Name : UCO Bank
Branch : Matunga Mumbai
IFS Code : UCBA0000237
16 On deposit of aforesaid costs by the Petitioner and the Respondent
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No.2 in the aforesaid bank account, the Children Aid Society, Mumbai shall
immediately transfer the said amount of costs for betterment of the children to
the New and Additional Children's Home, Mankhurd, Mumbai. Payment of
aforesaid costs is a condition precedent for allowing this Criminal Writ Petition
and this order will take effect after depositing the costs amount by both
parties.
17 We make it clear that, the proceedings are strictly restricted to
quashing of the impugned FIR/chargesheet, and nothing to do with the dispute
of title, ownership and possession, if any, pending in the court or any other
forum.
18 Rule is made absolute to the above extent and the Criminal Writ
Petition stands disposed of accordingly. List the Petition under caption "For
Compliance" of deposit of costs on 21st September 2021.
[N. J. JAMADAR, J] [S. S. SHINDE , J]
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