Bombay High Court
Hasmukh Tarachand Sheth And Ors vs The State Of Maharashtra And Anr on 8 February, 2021
Bench: S.S. Shinde, Manish Pitale
1/7 Judgment WP-140-21.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO.140 OF 2021
1. Hasmukh Tarachand Sheth, ]
Aged 64 years, Occupation : Business, ]
residing at Lalita Kunj, Plot No.6, ]
Nutan Laxmi Society, Rd.No.10, ]
Vile Parle (W), Mumbai 440 049. ]
]
2. Vinod Tarachand Sheth, ]
Aged 70 years, Occupation : Business, ]
residing at Lalita Kunj, Plot No.6, ]
Nutan Laxmi Society, Rd.No.10, ]
Vile Parle (W), Mumbai 440 049 ]
]
3. Rajesh Tarachand Sheth, ]
Aged 58 years, Occupation : Business, ]
76, Sayadri Apartments, Navrangpura, ]
Ahmedabad 380 009 ]
]
4. Ashwin Tatachand Sheth (since ]
deceased) ]
Aged 57 years, Occupation : Business, ]
Sayadri Apartments, Navrangpura, ]
Ahmedabad 380009 ]
]
5. Dhumil Vinod Sheth, ]
Aged 38 years, residing at Lalita Kunj, ]
Plot No.6, Nutan Laxmi Society, ]
Rd.No.10, Vile Parle (W), Mumbai - ]
440 049 ]
]
6. Vishal Hasmukh Sheth ]
Aged 30 Years, Occupation : Business, ]
residing at Lalita Kunj, Plot No.6, ]
Nutan Laxmi Society, Rd.No.10, Vile ]
Parle (W), Mumbai - 440 049 ] .. Petitioners
M.M.Salgaonkar
::: Uploaded on - 08/02/2021 ::: Downloaded on - 08/02/2021 22:57:58 :::
2/7 Judgment WP-140-21.doc
VERSUS
1. State of Maharashtra ]
Through Public Prosecutor, ]
]
2. Sumit Nikunj Shah, ]
Authorised Representative of ]
Shambhulal A. Shah & Co., having ]
office at :- 42, Podar Chambers, 109, ]
S.A.Brevi Road, Fort, Mumbai - 400001 ] .. Respondents
Mr.Dinesh Kumar Dubey for the Petitioners.
Mr.Vikram Sutaria for Respondent No.2.
Mr.J.P.Yagnik, APP for the State.
CORAM : S.S.SHINDE &
MANISH PITALE, JJ.
RESERVED ON : 02ND FEBRUARY, 2021
PRONOUNCED ON : 08TH FEBRUARY, 2021
JUDGMENT (PER MANISH PITALE, J.)
1. Rule. Rule made returnable forthwith. With the consent of
learned counsel appearing for the parties, heard finally.
2. The petitioners have approached this Court seeking quashing
of the FIR registered by the Economic Offences Wing (EOW) against
them under Sections 406, 409, 418, 420, 465, 467, 468, 471, 474
r/w 120-B of the Indian Penal Code (hereinafter referred to as, "the
IPC"). Respondent No.2 is the complainant at whose behest, the FIR
stood registered
M.M.Salgaonkar
3/7 Judgment WP-140-21.doc
3. Respondent No.2 submitted a complaint on 15 th June, 2016,
leading to registration of an FIR, claiming that he had entered into a
transaction with the company of the petitioners for supply of paper
and the company of the petitioners manufactures packing material
for Gutka products. It was the case of respondent No.2 that while
some payments were made for supply of papers, an amount of
Rs.7,17,09,029/- remained unpaid. Cheques were issued on behalf
of the company, but the same were bounced. When the cases were
filed under the provisions of the Negotiable Instruments Act, 1881
(hereinafter referred to as, "the NI Act"), the stand taken by the
petitioners was that they were not directors of the company.
According to respondent No.2, by indulging in aforesaid activities,
the petitioners had cheated him and indulged in criminal breach of
trust.
4. Some of the accused were arrested and others were granted
anticipatory bail and thereafter, the accused and respondent No.2
entered into negotiations to amicably settle the dispute.
5. It is in pursuance of the settlement of dispute between the
parties that on 27th July, 2020, respondent No.2 submitted a letter
before the Deputy Commissioner of Police, EOW, Mumbai stating
that he desires to withdraw the complaint against the accused
persons, including the petitioners herein. Upon this Court issuing
notice in the present writ petition, respondent No.2 entered
appearance through counsel and filed an affidavit reiterating that
the dispute between him and the petitioners had been settled and
that he had no objection for quashing of the FIR.
M.M.Salgaonkar
4/7 Judgment WP-140-21.doc
6. Mr.Dubey, learned counsel appearing for the petitioners,
submitted that since the dispute between the parties had been
amicably settled and the affidavit of respondent No.2 was on record,
the present writ petition deserved to be allowed. Mr.Sutaria, learned
counsel appearing for respondent No.2, supported the prayers made
in the writ petition on the basis of the settlement between the
parties. Mr.Yagnik, learned APP, appeared for respondent
No.1/State.
7. Respondent No.2 was personally present in Court and we
interacted with him. He submitted that since the dispute had been
settled and he did not have any grievance against the petitioners, the
writ petition could be allowed in terms of the prayers made therein.
It was submitted that he had settled the dispute and filed affidavit
before this Court on his own free will and without coercion.
8. The Supreme Court in the case of Gian Singh 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 offences 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
resolved 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
1 2012 (10) SCC 303
M.M.Salgaonkar
5/7 Judgment WP-140-21.doc
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 has also held that 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.
9. In view of the fact that now respondent No.2 does not wish to
proceed against the petitioners and even if further proceedings are
undertaken in pursuance of the aforesaid FIR, there are remote
chances of the petitioners being held guilty. Therefore, no purpose
would be served by allowing the proceedings to continue. Even
otherwise, we have perused the complaint, leading to registration of
the FIR and we find that essentially the grievance of respondent
No.2 is of personal nature on the basis that he was duped by the
petitioners to the aforesaid huge amount. The stand taken in the
proceedings initiated under the NI Act, that the signatories to the
cheques were not directors is relatable to an allegation pertaining to
cheating and prima facie, we do not find that the allegations
pertaining to offences under Sections 465, 467, 468 and 471 of the
IPC can be said to be made out.
10. At the same time, the present petitioners need to be put to
terms before the prayers made in the writ petition can be granted.
Accordingly, we deem it fit to impose costs upon the petitioners,
which would be utilised towards a noble cause. In view of the
above, the writ petition is allowed in the following terms :
M.M.Salgaonkar
6/7 Judgment WP-140-21.doc
:ORDER:
(a) In view of the settlement between the parties and the
affidavit filed before this Court by respondent No.2, who was
personally present in Court to reiterate the stand taken in the
affidavit, as also our findings in the order above, the writ
petition is allowed in terms of prayer clause (a), which reads
thus:
"a) Quash and set aside FIR bearing No.58/2016 registered
by the EOW under sections 406, 409, 418, 420, 465, 467,
468, 471, 474 r/w 120(b) of IPC and all the consequential
investigations/actions/ proceedings thereto."
(b) The petitioners shall deposit an amount of Rs.8,00,000/-
as a pre-condition for clause (a) of the order above to operate
in their favour. Out of the said amount, the petitioners shall
deposit an amount of Rs.5,00,000/- in the account of KEM
Hospital, the detail of which are as follows :
Name : Poor Box Charity Fund,
K.E.M.Hospital
Account No. : 99350100000877
Bank : Bank of Baroda, Parel Branch
IFSC : BARB0DBPARE (5th letter is Zero)
MICR : 400012246
PAN : AAATK3087D
and the amount of Rs.3,00,000/- in the account of Juvenile
Justice Fund, the details of which are as under :
M.M.Salgaonkar
7/7 Judgment WP-140-21.doc
Name : DY.COMMI(CHILD DEVELOP) AND
MEM.SECY & TRY MS CHILD
FUND.
Account No. : 11099464354
Bank : State Bank of India, Pune Main
Branch, Collector Office Compound,
Pune.
Branch Code : 454
IFSC : SBIN0000454
MICR : 411002002
(c) The petitioners shall deposit the aforesaid amounts within
a period of four weeks from today.
11. Rule is made absolute in above terms.
(MANISH PITALE, J.) (S.S.SHINDE, J.)
M.M.Salgaonkar
