Bombay High Court
Nilesh Mahadev Fulsundar And Ors vs The State Of Maharashtra And Anr on 2 February, 2021
Bench: S.S. Shinde, Manish Pitale
Digitally signed
Laxmikant by Laxmikant G.
Chandan
G. Date:
Chandan 2021.02.02
18:10:03 +0530 (12) cri.wp-286.21.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO.286 OF 2021
1] Nilesh Mahadev Fulsundar ]
Age 31 years, occupation : Business ]
Address : Behind Sainath Hotel ]
C-Chawl, Room No.14, Laxmi Udyog Nagar ]
Kanjurmarg (West) Mumbai - 400078 ]
]
2] Mahadev Umaji Fulsundar ]
Age 58 years, Occupation : Nil ]
Address : Behind Sainath Hotel, ]
C-Chawl, Room No.14, Laxmi Udyog Nagar ]
Kanjurmarg (West), Mumbai - 400078 ]
]
3] Nirmala Mahadev Fulsundar ]
Age 50 years, Occupation : Nil ]
Address : Behind Sainath Hotel, ]
C-Chawl, Room No.14, Laxmi Udyog Nagar ]
Kanjurmarg (West), Mumbai - 400078 ]
]
4] Deepak Mahadev Fulsundar ]
Age 34 years, Occupation : Nil ]
Address : Behind Sainath Hotel, ]
C-Chawl, Room No.14, Laxmi Udyog Nagar ]
Kanjurmarg (West), Mumbai - 400078 ]
]
5] Snehal Deepak Fulsundar ]
Age 32 years, Occupation : Nil ]
Address : Behind Sainath Hotel, ]
C-Chawl, Room No.14, Laxmi Udyog Nagar ]
Kanjurmarg (West), Mumbai - 400078 ]..... Petitioners.
Versus
1] State of Maharashtra ]
Mantralaya, Mumbai-01 ]
(Through Parksite Police Station, Mumbai ]
]
2] Shyamli Nilesh Fulsundar ]
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Age : 29 years, Occupation : Not Known ]
Address : Room No.6, Bhagubai Chawl, ]
Opp. Navyug Mitr Mandal, Chendani ]
Koliwada, Mithbunder Road, Thane East ]..... Respondents.
Mr. Swapnil Newaskar for the Petitioners.
Mr. S R Shinde, APP for the Respondent/State.
Ms. Aparna C Khamkar for Respondent No.2.
Mrs. Shyamli Nilesh Fulsundar - Respondent No.2 present.
CORAM : S. S. SHINDE,
MANISH PITALE, JJ
DATE : 02nd FEBRUARY 2021
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 It is jointly submitted by the learned counsel appearing for the
Petitioners and Respondent No.2 that the Petitioners and Respondent No.2
have amicably settled the dispute. It is also submitted that the Consent Terms
arrived at between the Petitioners and Respondent No.2 have been filed before
the Family Court, Bandra, Mumbai in Marriage Petition No.A-603/2019 (Nilesh
Mahadev Fulsundar v/s. Shyamali Nilesh Fulsundar).
3 The 2nd Respondent is present before this Court. She has been
identified by her advocate. When we interacted with her, she stated that it is
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her voluntary act without coercion to enter into the settlement and file the
consent terms before the Family Court at Bandra. She further stated that she
has no objection for quashing the impugned FIR. In support of her aforesaid
statements, the 2nd Respondent has filed the affidavit before this Court.
4 In paragraphs 2 to 9 of her affidavit, Respondent No.2 has stated
thus :-
"2 I say that present petition for quashing is filed with my
consent.
3 I say that during the pendency of the above criminal
proceeding, I and the Petitioner have amicably settled
our differences by way of CONSENT TERMS and
pursuant to the undertaking arrived at between us,
present petition is filed for the quashing the above
criminal proceeding by my consent.
4 I say that I and petitioner no.1 entered in the consent
terms dated 15 September 2020 to settle our all
disputes.
5 That the divorce Petition No. A 603 of 2019 at Family
Court Bandra is still pending. I and the petitioner no.1
have agreed for the mutual consent divorce and have
signed the petition for the mutual consent divorce. The
consent terms for divorce as mentioned above is already
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filed before Family Court at Bandra.
6 I say that petitioner has complied with the consent terms
and has given me Rs.2,00,000/- by DD 217753 dated
14/01/2021 and all articles, gold etc as mentioned in
para 2 of the consent terms while withdrawing the
proceeding under Protection of Women From Domestic
Violence Act at bearing No.58/2019 at JMFC Court
Thane. I further say that the said proceeding has been
successfully withdrawn by me as agreed in the consent
terms.
7 I say that the petitioner has agreed to tender me the last
installment of Rs.2,00,000/- by DD No.217786 dated
30/01/2021 before this hon'ble Court as full compliance
of the para no.1 of the consent terms.
8 I say that whatever stated in consent terms is binding on
me and I undertake to follow the same.
9 I say that irreparable loss will be caused to me if
criminal proceeding against petitioner is not quashed by
this Hon'ble Court.
5 Since the Petitioners and the 2 nd Respondent have amicably settled
the dispute and the said dispute arose out of matrimonial discord, and in view
of the fact that the parties have already arrived at the consent terms filed
before the Family Court Bandra, no fruitful purpose will be served by
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continuing the further investigation of FIR being No.54/2020, dated
31/01/2020 registered at Park Site Police Station, Vikhroli West, Mumbai for
the offences punishable under Section 498A, 323, 406, 504, 506, 34 of the
Indian Penal Code.
6 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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7 In the light of discussion in foregoing paragraphs, it is abundantly
clear that the Respondent No. 2 is not going to support the allegations made in
the FIR and further continuation of investigation in the impugned FIR would
tantamount to the abuse of the process of the Law/Court. Since the
Respondent No. 2 is not going to support the allegations in the FIR the chances
of conviction of the Petitioners would be remote and bleak. The entire dispute
arose out of matrimonial discord. In that view of the matter, the Writ Petition
deserves to be allowed. Accordingly, the Writ Petition is allowed in terms of
prayer clause (A) which reads thus:-
(A) The Impugned FIR No.54/2020, dated 31/01/2020,
registered U/s. 498A, 323, 406, 504, 506, 34 of IPC, and
registered with Park Site Police Station, Vikhroli West,
Mumbai may please be quashed and set aside."
8 Rule is made absolute to above extent and, the Writ Petition stands
disposed of accordingly.
[MANISH PITALE, J] [S. S. SHINDE , J]
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