Manish S/O Sushilkumar Modi And ... vs The State Of Maharashtra And Anr
2021 Latest Caselaw 2940 Bom

           Digitally
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Vishwanath S. Sherla
S. Sherla  Date:
           2021.02.16
           09:57:47
           +0530        IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                              CRIMINAL APPELLATE JURISDICTION

                            CRIMINAL WRIT PETITION NO. 2297 OF 2018

         1.       Shri. Manish s/o. Sushilkumar Modi
                  Aged about 38 years, adult, India.
                  Inhabitant, Occ. Business.

         2.       Smt. Sushila w/o. Sushilkumar Modi
                  Aged about 63 years, Indian Inhabitant.

         3.       Sushilkumar Mohanlal Modi
                  Aged about 65 years, adult, Indian
                  Inhabitant, All are residing at E-31,
                  Aakash Apartments, Adjacent to Chief
                  Justice Bungalow Bodakdev Judges
                  Bungalow Road, Ahmedabad- 380 054.               ...PETITIONERS

                            Versus

         1.       The State of Maharashtra
                  Through Inspector Inchage, Oshiwara
                  Police Station.

         2.     Mrs. Nidhi W/o Manish Modi
                Adult Indian Inhabitant, residing at 903/A,
                Highland Park, Lokhandwala Complex,
                Andheri (W), Mumbai- 400 053.                   ...RESPONDENTS
                                                ...
         Mr. Ashok M. Saraogi a/w. Mr. Sushil Upadhyaay for Petitioners.
         Mrs. Taubon F. Irani for Respondent No. 2.
         Mrs. Nidhi Modi Respondent No. 2 present in the Court.
         Mr. J.P. Yagnik, APP for State.
                                                ...

                                       CORAM : S. S. SHINDE &
                                               MANISH PITALE, JJ.

                                       DATE :         15th FEBRUARY 2021.



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ORAL JUDGMENT [PER S.S. SHINDE, J.]:

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

of learned counsel appearing for the parties.

2. At the outset learned counsel appearing for 2nd respondent has

tendered across the bar consent terms, the same are taken on record and

marked as 'X' for identification.

3. Learned counsel appearing for the petitioner has tendered across

the bar a photo copy of the demand draft of Rs. 2 Crore 10 Lacs which is to

be paid to Respondent No. 2 before the Family Court, Bandra. The photo

copy of the said demand draft is taken on record. Learned counsel appearing

for the petitioner further submits that one hard disk is already returned to 2 nd

respondent. Learned counsel for 2nd respondent submits that the receipt will

be given to the petitioner for return of said hard disk.

4. Learned counsel appearing for petitioners and 2nd respondent

submits that the parties have amicably settled the dispute and to that effect

consent terms are filed before the Family Court, Bandra.

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5. Learned counsel for 2nd respondent has tendered across the bar,

affidavit of 2nd respondent. The same is taken on record.

6. Learned counsel appearing for Petitioner submits that the

learned Single Judge of this Court (Coram: A.S. Gadkari, J.) on 05.04.2019

directed the petitioner herein to deposit Rs. 90 lacs in the Registry of this

Court with further undertaking that the applicant therein i.e. petitioner herein

to continue to pay Rs. 50,000/- towards maintenance of his child and for any

reason if the child requires hospitalization and other medical expenses, the

applicant No. 1 will reimburse the same, subject to production of bills from

the first informant. Paragraph 4 of the said order is reproduced hereinbelow:-

4. In the said affidavit, apart from giving an undertaking that, the applicants will deposit the said amount of Rs. 90.00 lakhs in the Registry of this Court, a further undertaking is given that, without prejudice to their rights and contentions in the present proceedings before this Court, the applicant No. 1 will continue to pay Rs. 50,000,/- towards the maintenance of his child and for any reason if the child requires hospitalization and other medical expenses, the applicant No. 1 will reimburse the same, subject to production of bills from the first informant.

Learned counsel for the petitioners submit that the said amount

along with accrued interest thereon deposited by the petitioner be adjusted in

the total amount of Rs. 3 Crore which is supposed to be paid by the Petitioner

to Respondent No. 2.

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7. The Respondent No. 2 has filed affidavit. Paragraphs 1 to 5 of

the said affidavit reads as under:-

1. I say that I am the original complainant in FIR bearing no. 152 of 2018. I say that the Petitioner and I have arrived at a compromise/settlement and have filed consent terms on 30th January, 2021 before the Hon'ble Family Court at Bandra, Mumbai, in petition bearing no. A-2571 of 2019, fled by the Petitioner seeking reliefs under the provisions of the Hindu Marriage Act, 1955.

2. I say that in lieu of clause no. (v) under the caption MISCELLANEOUS of the said consent terms, and in compliance thereof, I hereby give my consent to the quashing of the said FIR bearing no. 152 of 2018 against the accused persons.

3. I say that as per clause no. (ii) & (iii) under the caption ALIMONY/MAINTENANCE/RESIDENCE/ STRIDHAN of the said consent terms, I am entitled to withdraw the amount of Rs. 90,00,000/- (Rupees Ninety Lakhs Only), along with the interest accrued thereon. I say that the said order of depositing the amount came to be passed in Anticipatory Bail Application No. 1561 of 2018.

4. I further say that the Petitioner is required to hand over to me the hard drive of my computer as per clause no. (iv) under the caption ALIMONY/MAINTENANCE/RESIDENCE/STRID HAN of the said consent terms. I say that I have received the same today and have handed over the receipt to the Petitioner in compliance of the said clause no. iv.

5. I say that whatever stated herein above is true to my own personal knowledge and I believe the same to be true and correct.

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8. We have interacted with Respondent No. 2. She stated that it is

her voluntary act to enter into the settlement and file consent terms before the

Family Court, Bandra. She has no objection for quashing the impugned FIR.

9. Since the petitioners and Respondent No. 2 have amicably

settled the dispute and consent terms are filed before the Family Court,

Bandra, no fruitful purpose will be served by continuing the investigation

arising out of FIR No. 152/2018 registered with Oshivara Police Station for

the offences punishable under Sectios 498-A, 406, 313, 506, 500, 34 of IPC.

10. In that view of the affidavit filed by 2nd respondent before this

Court, it is certain that she is not going to support the allegations in the FIR

and consequently, chances of conviction of the petitioners are remote and

bleak.

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

1 2012 (10) SCC 303

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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.

12. In the light of submissions made across bar, keeping in view the

consent terms arrived between the parties before the Family Court, Bandra

and affidavit filed by 2nd respondent and the fact that the petitioners are ready

to give Rs. 3 Crore to Respondent No. 2, we of the opinion that the petition

deserves to be allowed. However, before allowing the petition, we direct the

Registry of this Court to transfer amount of Rs. 90.00 lakhs with accrued

interest thereupon which has been deposited by the Petitioner in Anticipatory

Bail Application No. 1561 of 2018, to Respondent No. 2 forthwith on making

formal application, to her account by way of RTGS.

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13. As already agreed between the parties, the petitioner will pay

remaining amount of Rs. 2 Crore 10 lakhs to Respondent No. 2 before the

Family Court, Bandra.

14. In the light of discussion in foregoing paragraphs, to secure the

ends of justice and prevent the abuse of the process of the law/court, the

petition deserves to be allowed. Accordingly, the writ petition is allowed in

terms of prayer clause (b). Rule made absolute to above extent. The writ

petition stands disposed of.

15. The parties shall strictly abide by the consent terms filed by

them before the Family Court, Bandra. All parties to act upon an

authenticated copy of this order.

      ( MANISH PITALE, J.)                                   (S. S. SHINDE, J.)




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