Bombay High Court
Harresh N. Mehta And Ors vs The State Of Maharashtra And Anr on 22 February, 2021
Bench: S.S. Shinde, Manish Pitale
Digitally signed
Laxmikant by Laxmikant G.
G. Chandan
Date: 2021.02.22
Chandan 15:06:31 +0530
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO.266 OF 2021
1] Harresh N. Mehta ]
Age 50, Occ. - Business ]
Having address at-112, Hira ]
Bhavan Raja Ram Mohan Rao ]
Road Prarthana Samaj Mumbai ]
]
2] Anuj Mehta ]
Age 40, Occ. - Business ]
Having address at-112, Hira ]
Bhavan Raja Ram Mohan Rao ]
Road Prarthana Samaj Mumbai ]
]
3] Rohan Mehta ]
Age 45, Occ. - Business ]
Having address at-112, Hira ]
Bhavan Raja Ram Mohan Rao ]
Road Prarthana Samaj Mumbai ]..... Petitioners.
Versus
1] The State of Maharashtra ]
(Through EOW Housing Unit No.1 ]
]
2] Mehul Jadhavji Shah ]
Aged 48 Years, occ. Business ]
Residing at 252 Montblance, ]
25th Floor, Dadiseth Hill, A.K.Marg, ]
Mumbai - 400 036. ]..... Respondents.
Mr. Girish Kulkarni a/w Mr. Ashok Kumar Dubey i/by SAV J Law Solutions for
the Petitioner.
Mrs. S D Shinde, APP for the Respondent/State.
Mr. Dinesh Kadam a/w Mr. Harsh Buch a/w Mr. Shubhankar Avhad i/by MZM
Legal for the Respondent No.2.
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CORAM : S. S. SHINDE,
MANISH PITALE, JJ
Reserved on : 10th FEBRUARY 2021
Pronounced on: 22nd FEBRUARY 2021
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 Writ Petition has been filed by the Petitioners for the
following substantial relief :-
"(b) This Hon'ble Court may be pleased to grant
appropriate writ, or order to quash and set-aside the
impugned FIR/Complaint, against the Petitioners in FIR
No.39/2020, registered in Economic Offence Wing,
Housing Unit No.1, on 26.11.2020, on any such terms
and conditions as may be deemed fit and proper by this
Hon'ble Court."
3 The learned counsel appearing for the Petitioners submitted that
the Petitioner No.1 Harresh Mehta is the authorized signatory of Sai Palace
Hotels Pvt. Ltd and Director of Rohan Developers Pvt. Ltd. It is submitted that
the Complainant Mehul along with Hemang and Sanjay had paid certain
amounts to the companies of the Petitioners viz. Sai Palace Hotels Pvt. Ltd and
Rohan Developers Pvt. Ltd. towards booking of flats in the proposed project of
the Petitioners known as Aram Guest House/Desai Mahal situated at CS
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No.1523 of Girgaon Division, D Ward, Junction of Dr. A R Rangnekar Road, 19,
Chowpatty Sea Road, Mumbai - 400007. The said project of the Petitioners
was delayed and therefore Hemang has filed two Company Petitions before the
National Company Law Tribunal against the aforesaid companies of the
Petitioners so also Respondent No.2 - Mehul has also filed a Company Petition
against Rohan Developers Pvt. Ltd. It is also submitted that Respondent No.2
Mehul has also filed a criminal complaint against the Petitioner No.1 bearing
CR No.39/2020 dated 26/11/2020 with the Economic Offence Wing, Mumbai.
By way of this Writ Petition, the Petitioners approached this Court for quashing
of the said FIR No.39 of 2020.
4 The learned counsel appearing for both the parties have submitted
that now both the parties have arrived at a settlement by virtue of Deed of
Settlement dated 04th February 2021 and in view thereof, Sai Palace Hotels Pvt.
Ltd and Rohan Developers Pvt. Ltd. have agreed and undertake to pay to
Hemang, Mehul and Sanjay an aggregate amount of Rs.26,00,00,000/-
(Rupees Twenty Six Crores only). It is submitted that the said Deed of
Settlement dated 04th February 2021 was executed by and between the
Respondent No.2, Hemang J Shah, Sanjay D Shah and Sai Palace Pvt. Ltd and
Rohan Developers Pvt. Ltd through its authorized signatory and direcotr Mr.
Harresh Mehta i.e. the Petitioner No.1 herein. The copy of the said Deed of
Settlement is placed on record.
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5 With the able assistance of the learned counsel appearing for both
the parties, we have perused the recitals of the said Deed of Settlement. The
said Deed of Settlement has been duly signed by Mr. Hemang Jadhavji Shah,
Mr. Mehul Jadhavji Shah (i.e. the Respondent No.2 herein), Mr. Sanjay Shah,
through his Constituted Attorney Mr. Mehul J Shah, Sai Palace Hotels Private
Limited through its' authorized signatory Mr. Harresh Mehta and Rohan
Developers Private Limited through its Director Mr. Harresh Mehta. Paragraphs
2 to 17 of the said Deed of Settlement are material and it would be apt to
reproduce herein under the said paragraphs for ready reference :-
"2 It is agreed, declared, confirmed and settled by and
between the Parties hereto that, upon execution of this
Deed, Sai and Rohan shall collectively pay to Hemang,
Mehul and Sanjay collectively a sum of Rs.3,00,00,000/-
(Rupees Three Crores only) towards the part payment
out of the said settlement Amount in the following
manner.
a) Cheque bearing no.000197 dated 4th February,
2021 for an amount of Rs.1,00,00,000/- (Rupees One
Crore only) drawn on Bank of Baroda, Khetwadi Branch
issued by Sai in favour of Mehul on behalf of Sanjay.
b) Cheque bearing no.000200 dated 4th February,
2021 for an amount of Rs.1,00,00,000/- (Rupees One
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Crore only) drawn on Bank of Baroda, Khetwadi Branch
issued by Sai in favour of Hemang.
c) Cheque bearing no.004717 dated 10th February,
2021 for an amount of Rs.50,00,000/- (Rupees Fifty
Lakhs only) drawn on HDFC Bank, Grant Road, Branch
issued by Rohan in favour of Hemang.
d) Cheque bearing no.004718 dated 10th February,
2021 for an amount of Rs.50,00,000/- (Rupees Fifty
Lakhs only) drawn on HDFC Bank, Grant Road, Branch
issued by Rohan in favour of Mehul.
3. It is agreed, declared, confirmed and settled by and
between the Parties hereto that, subsequent to execution
of these presents, Sai and Rohan shall jointly and
severally pay to Hemang the balance portion of the said
Settlement Amount in the manner as set out in
"Annexure-A" hereto.
4 It is agreed, declared, confirmed and settled by and
between the Parties hereto that, subsequent to execution
of these presents, Rohan shall pay to Mehul the balance
portion of the said Settlement Amount in the manner as
set out in "Annexure B" hereto.
5. It is agreed, declared, confirmed and settled by and
between the Parties hereto that, subsequent to execution
of these presents, Sai shall pay to Mehul (Constituted
Attorney) on behalf of Sanjay, being Sanjay's Share of
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the said Settlement Amount (hereinafter referred to as
"Sanjay's Share") in the manner as set out in "Annexure-
C" hereto.
6 It is agreed, declared, confirmed and settled by and
between the Parties hereto that, in the event of default
committed in the individual payment schedules of
Hemang, Mehul and Sanjay as set out in Clause 3, 4 and
5 hereinabove, then in that event, Hemang, Mehul and
Mehul on behalf of Sanjay shall intimate Sai and/or
Rohan by written communication as the case may be to
cure/rectify the default within a period of 15 days from
the date of receipt of such written communication,
failing which, Hemang, Mehul and/or Mehul on behalf
of Sanjay shall be entitled to take appropriate legal
recourse against Sai and/or Rohan in respect of such
default.
7. It is agreed, declared, confirmed and settled by and
between the Parties hereto that, upon execution of these
presents, Hemang and Mehul shall unconditionally
withdraw the following legal proceedings pending
before various Courts/Tribunals as on the date of
execution of this deed :
a) Company Petition (IB) No.4446 of 2019;
b) Company Petition (IB) No.4447 of 2019;
c) Company Petition (IB) No.4454 of 2019;
d) To consent for quashing and setting aside of the
First Information Report bearing no. C.R. No.39/2020
filed by Mehul against Harresh Mehta, (Authorized
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Signatory of Sai and Director of Rohan), Rohan Mehta
and Anuj Mehta (both being past Directors of Sai and
Rohan);
8. It is agreed, declared, confirmed and settled by and
between the Parties hereto that, all objections/legal
proceedings criminal and/or civil, if any, raised by
Hemang, Mehul and Sanjay shall stand withdrawn
unconditionally upon execution of these presents.
9 It is agreed, declared, confirmed and settled by and
between the Parties hereto that, upon Sai and/or Rohan
making full and final payment of the said Settlement
Amount nothing shall remasin due and payable by Sai
and/or Rohan to Hemang, Mehul and Sanjay and they
shall not have any claim, right, title and/or interest in
respect of the `Aram Guest House/Desai Mahal' in any
manner whatsoever now and/or in future when the
same is developed. It is further agreed, declared,
confirmed and settled by and between the Parties that,
Hemang, Mehul and Sanjay undertke to execute `No-
Due Certificate(s)' in the format annexed hereto and
marked as "Annexure-D1" to "Annexure-D3". It is further
agreed by Hemang, Mehul and Sanjay that, in the event
if any document is required by the Parties, they shall
respectively co-operate for the same.
10 It is agreed, declared, confirmed and settled by and
between the Parties hereto that, the amount of
Rs.17,84,00,000/- (Rupees Seventeen Crores Eighty
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Four Lakhs only) received by Hemang, Mehul and Mehul
on behalf of Sanjay out of the said Settlement Amount
can be considered as a delayed consideration. However,
it is agreed, declared, confirmed and settled by and
between the parties hereto that out of abundant caution,
Sai and Rohan will deduct Tax at Source (TDS) on the
aforesaid amount of Rs.17,84,00,000/- (Rupees
Seventeen Crores Eighty Four Lakhs only) at the
applicable rate prescribed under the Income Tax Act,
1961 or any other law for the time being in force and
shall furnish necessary certificate from time to time to
Hemang, Mehul and Mehul on behalf of Sanjay so as to
enable them to claim credit of the TDS. It is further
agreed, declared and confirmed by and between the
parties hereto that each Party shall bear their respective
taxes.
11. It is agreed, undertaken, declared and confirmed by
Mehul that the Power of Attorney dated 21st February
2006 given by Sanjay in favour of Mr. Damji Shah and
Mehul is valid and subsisting and has not been revoked
by Sanjay till date.
12 It is agreed, declared and confirmed by Mehul and
Mehul further undertakes that he is one of the
Constituted Attorney of Sanjay and in terms of clause 5
of the Power of Attorney dated 21st February, 2006
would be receiving the amount an/or cheque(s) as more
particularly mentioned in Annexure-C hereto on behalf
of Sanjay and in view thereof, Mehul agrees and
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unertakes that he shall not hold Sai and/or Rohan liable
and/or responsible at any time after execution of this
Deed, if in the event of any claim arises from Sanjay in
any manner whatsoever in respect of the Sanjay's Share
as more particularly mentioned in Annexure-C hereto.
13. It is agreed by Mehul that, he shall upon execution of
this Deed undertake to indemnify and keep indemnified
Sai and Rohan directly and/or indirectly from and
against all such demands, actions, disputes, claims,
costs, charges, and expenses of any nature whatsoever
now or in future in respect of Sanjay's Share, any
representations made by Mehul to receive payments on
behalf of Sanjay and/or due to any revocation of Power
of Attorney dated 21st February, 2006 or due to any
claim made or which may hereafter be made by Sanjay
and/or his legal heirs for receiving Sanjay's Share out of
the said Settlement Amount as more particularly
mentioned in Annexure-C hereto and Mehul hereby
confirms, agrees, and undertakes to reimburse Sai and
Rohan and/or its successors and/or assigns in title for
any claim, costs, charges and expenses arising in respect
of Sanjay's Share.
14. This Deed shall be governed by the laws in India and the
Courts in Mumbai alone shall have exclusive jurisdiction
over matters relating to or arising from this Deed.
15 This Deed shall be executed simultaneously in 6 (six)
numbers of counterparts, each of which shall be deemed
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to be an original, but all of which together shall
constitute one and the same instrument.
16 This Deed shall be signed by one Mr. Harresh Mehta, the
Authorized Signatory of Sai authorized vide Board
Resolution dated 20th January, 2020 "Annexure-E" hereto
and is also signing in the capacity of Director of Rohan
17 This Deed shall be signed by Mehul, the Constituted
Attorney of Sanjay authorized vide registered Power of
Attorey dated 21st February, 2006 bearing registration
no.BBE-1/490/2006 registered with the office of Sub-
Registrar of Assurance at Mumbai. A copy whereof is
annexed aqnd marked as "Annexure-F" hereto.
6 The Consent Terms duly signed by the Petitioner Nos.1 to 3,
Respondent No.2 and their respective advocates, which is duly notarized before
S M N Naqui, Notary Government of India, Mumbai and Thane Dist. bearing
Sr. No.722, P. No.75 Notary Register 296, dated 09/07/2021, has been placed
on record in support of the settlement arrived at between the parties. To the
said Consent Terms the copy of Deed of Settlement dated 4 th February 2021 is
annexed. We have perused the averments made in the said Consent Terms. It is
stated in the said Consent Terms that the Petitioners and Respondent No.2
have decided to settle the dispute elaborated in FIR No.39 of 2020 of Aram
Guest House in the following manner :-
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a) The Petitioners and Respondent No.2 (original
Complainant in the FIR No.39 of 2020 filed by the
Respondent No.1) herein have amicably arrived at a
settlement by virtue of a Deed of Settlement dated 4 th
February, 2021 executed by and between Hemang J.
Shah, the Respondent No.2, Sanjay D. Shah, Sai Palace
Hotels Private Limited and Rohan Developers Private
Limited. A copy of the Deed of Settlement dated 4 th
February, 2021 is annexed and marked as "Exhibit-1"
hereto.
Paragraph No.2 of the said Consent Terms is material and it would be
apt to reproduce the same herein under for ready reference :-
"2 The Respondent No.2 agrees and undertakes to withdraw
all such Complaints, allegations levied against Petitioners
filed before Respondent No.1 and the Petitioner No.1, the
then director and now the authorized representative of
Sai Palace Hotels Private Limited and being a Director of
Rohan Developers Private Limited undertakes to comply
with the terms of the Deed of Settlement dated 04 th
February 2021 marked as Exhibit-1 herein and in view
thereof, the Respondent No.2 shall not have any claim in
any manner whatsoever against the Petitioners now
and /or in future.
In view of the aforesaid, the Petitioners and Respondent
No.2 herein request this Hon'ble Court to take the
present Deed of Settlement dated 4 th February, 2021, on
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record and in light of this present Deed of Settlement
dated 4th February, 2021, the present petition may be
allowed in terms of prayer clause (b) and the FIR
No.39/2020 registered with Respondent No.1 (EOW
Housing Unit No.1) be quash and set aside.
7 The 2nd Respondent was present before this Court on 10/02/2021
when the matter was heard. He was identified by his advocate. He stated that
it is his voluntary act to settle the disputes and there is no coercion or undue
influence or force upon him for arriving at the said settlement.
8 The learned counsel appearing for both the parties submits that
both the parties have voluntarily agreed to settle the dispute and there is no
coercion, undue influence or force upon them for arriving at the settlement. It
is also submitted that both the parties have amicably resolved/settled the
dispute and decided to seek quashing of impugned FIR by this Writ Petition.
Both the parties have entered into the Deed of Settlement. In support of the
said settlement, they have also placed on record the Consent Terms duly signed
by the parties as well as their respective advocates.
9 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
1 2012 (10) SCC 303
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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.
10 In view of settlement arrived between the parties, no fruitful
purpose will be served by continuing the further investigation of No.39 of 2020
registered with Economic Offence Wing, Housing Unit No.1 on 26.11.2020.
Predominantly the dispute between the parties has civil flavour.
11 In the light of discussion in foregoing paragraphs, it is abundantly
clear that Respondent No.2 is not going to support the allegations made
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against the Petitioners 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 made in the FIR, the chances of the conviction of the
accused would be remote and bleak.
12 It is pertinent to note at this stage that though the parties have
resolved/settled their dispute between them and approached this Court for
quashing of the FIR lodged by the 2 nd Respondent against the Petitioners, we
deem it appropriate to impose costs of Rs.3,00,000/- (Rupees Three Lakhs
only) on the Petitioners. Accordingly we direct the Petitioners to deposit costs
of Rs.3,00,000/- (Rupees Three Lakhs only) with the Children's Aid Society,
Mumbai, who in turn transfer the said costs for betterment of the children to
the New & Additional Children's Home, Mankhurd, Mumbai.
13 During the course of arguments, the learned counsel appearing for
the 2nd Respondent states that the Respondent No.1 voluntarily and willingly
ready to deposit Rs.1,00,000/- (Rupees One Lakh only) with the Children's Aid
Society, Mumbai, who in turn transfer the said costs for betterment of the
children to the New & Additional Children's Home, Mankhurd, Mumbai.
Statement accepted.
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14 For the reasons stated herein above, the Writ Petition is allowed in
terms of prayer clause (b), subject to depositing Rs.3,00,000/- (Rupees Three
Lakhs only) by the Petitioners and Rs.1,00,000/- (Rupees One Lakh only) by
the 2nd Respondent, which reads thus :-
"(b) This Hon'ble Court may be pleased to grant
appropriate writ, or order to quash and set-aside the
impugned FIR/Complaint, against the Petitioners in FIR
No.39/2020, registered in Economic Offence Wing,
Housing Unit No.1, on 26.11.2020, on any such terms
and conditions as may be deemed fit and proper by this
Hon'ble Court."
15 The Petitioners to deposit Rs.3,00,000/- (Rupees Three Lakhs
only), and the 2nd Respondent to deposit Rs.1,00,000/- (Rupees One Lakh
only) in the Bank of Children's Aid Society, Mumbai within two weeks from
today, 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
On deposit of costs of Rs.3,00,000/- by the Petitioners and costs of
Rs.1,00,000/- by the 2nd Respondent 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.
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16 Costs to be deposited by both the parties within two weeks from
today. Payment of aforesaid costs is a condition precedence for allowing this
Writ Petition and this order will take effect after depositing the amount of costs
by both parties.
17 Rule is made absolute to the above extent and the Criminal Writ
Petition stands disposed of accordingly. List the Petition on 08/03/2021 under
caption "For Compliance" of deposit of costs.
[MANISH PITALE, J] [S. S. SHINDE , J]
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