Narayan Kishanchand Hemnani vs The State Of Maharashtra And Ors
2021 Latest Caselaw 1219 Bom

           Digitally
           signed by
           Vishwanath
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Vishwanath S. Sherla
S. Sherla  Date:
           2021.01.20
           10:36:11
           +0530
                          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                CRIMINAL APPELLATE JURISDICTION

                               CRIMINAL WRIT PETITION NO. 3838 OF 2019

            Narayan Kishanchand Hemnani
            Aged- 54 Years, Indian Inhabitant,
            Male, Occupation- Business,
            R/o. Daya Meher, Behind Water Tank,
            Mahatma Nagar, Nashik.                            ...PETITIONER

                     Versus

            1.       The State of Maharashtra.

            2.       Senior Police Inspector
                     Gangapur Road Police Station,
                     Gangapur Road, Nashik.

            3.       Smt. Kristan Jothanpari Pachau
                     Age- Adult, Occ- Business,
                     Mona Lisa Cottage, Nongkynrih,
                     Laitumkrah, Shilong, East Khasi Hills,
                     Meghalaya- 793 003.                      ...RESPONDENTS

                                             ALONG WITH
                       CRIMINAL WRIT PETITION STAMP NO. 3699 OF 2020
                                                   ...
            1.       Geetika Narayan Hemnani
                     Aged-53, Indian Inhabitant,
                     Female, Occupation- Business.

            2.       Kashish Narayan Hemnani
                     Aged- 29, Indian Inhabitant,
                     Male, Occupation- Business,
                     Both R/o. R/o. Daya Meher, Behind Water Tank,
                     Mahatma Nagar, Nashik.                        ...PETITIONERS

                           Versus
            1.       The State of Maharashtra.

            2.       Gangapur Road Police Station,
                     Gangapur Road, Nashik.

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3.       Smt. Kristan Jothanpari Pachau
         Age- Adult, Occ- Business,
         Mona Lisa Cottage, Nongkynrih,
         Laitumkrah, Shilong, East Khasi Hills,
         Meghalaya- 793 003.                            ...RESPONDENTS

Mr. Prashant Pandey a/w. Mr. Ashutosh Gaikwad i/b. Apex Law House for
Petitioners.
Mr. Om Prakash Dubey for Respondent No. 3.
Mr. J.P. Yagnik, APP for State.
Mrs. Kristan J. Pachau Respondent No. 3 present in the Court.
                                   ...
                             CORAM : S. S. SHINDE &
                                       MANISH PITALE, JJ.

DATE : JANUARY 19, 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. Since both the petitions takes an exception to the FIR No. I

268/2018 dated 30th October 2018 for offences punishable under Section 420,

406, 504 read with 34 of IPC and Section 3(1)(r) of the Scheduled Castes and

Scheduled Tribes (Prevention of Atrocities) Act, therefore, same are heard

together and being disposed of by this common order.

3. Pursuant to the private service by the Petitioners on Respondent

No. 3, she has caused her appearance through Advocate Mr. Om Prakash

Dubey. The parties are identified by their respective advocates.

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4. Advocate Mr. Om Prakash Dubey appearing for Respondent

No. 3 has tendered across the bar the affidavit on behalf of Respondent No. 3

in both the petitions, the same are taken on record.

5. It is common contention of the learned counsel for the

Petitioners and Respondent No. 3 that the parties have amicably settled the

dispute and in view of the said amicable settlement an amount of Rs.

45,00,000/- (in words Rupees Forty Five Lakhs only) has been given to

Respondent No. 3 through the demand drafts.

6. We have carefully perused the averments in the affidavit filed by

Respondent No. 3. In Paragraphs 'c' to 'f' it is stated thus:-

c. That I went to meet Mr. Narayan Hemnani and asked him to execute an agreement for sale but he delayed the same. Later on, it came to my knowledge that the said flat was sold to a third party.

d. That Narayan Hemnani informed me that he will not be in a position to complete the transaction and gave 9 cheques of Rs. 5 lakhs each dated 11/09/2018. However, the same were dishonored after being deposited in the bank.

e. That when I told Narayan Hemnani to return the amount, he abused me and caused atrocities and said that I will not pay the amount back to you.

f. That the police have registered a FIR on the

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complaint bearing C.R. No. I268/2018 u/s 420, 406, 504 read with 34 of IPC and u/s 3(1)(r) of the SC/ST Act.

7. In Para 7 to 10 of affidavit of Respondent No. 3 it is stated thus:-

7. I say that due to the disputes and difference the FIR No. I268/2018 came to be lodges and now we have settled the dispute amicably and I have received Rs. 5,00,000/- (Rupees Five Lacs Only), by the Demand Draft bearing D.D. No. 818992, dated 04/01/2021 from the petitioners and I have no grievance against them.

8. I say that now I have received the entire amount and I do not intent to pursue the FIR and thus I am filing this Affidavit before this Hon'ble Court that the quashing petition of the Petitioners be allowed.

9. I say that the FIR came to be lodged due to a dispute which is now settled between us and I do not intend to pursue the same and is filing this Affidavit before this Hon'ble Court that the quashing petition of the Petitioners be allowed.

10. I say that the Petitioners and myself hereby withdraw all the allegations against each other filed before the Police or any other forum and we shall not file any proceedings on this subject matter henceforth.

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8. The Respondent No. 3 is present in the Court. We have

interacted with her. She stated that it is her voluntary act to enter into such

settlement without any coercion. She has received the amount mentioned in

the affidavit filed by her. She does not want to proceed with the impugned

FIR against the petitioners. She has no objection for quashing the impugned

FIR.

9. Since the Petitioners and Respondent No. 3 have amicably

settled the dispute, further continuation of proceedings arising out of C.R.

No. I 268/2018 for the offences punishable under Section 420, 406, 504 read

with 34 of IPC and Section 3(1)(r) of the Scheduled Castes and Scheduled

Tribes (Prevention of Atrocities) Act, registered with Gangapur Road Police

Station, Nashik, would be an exercise in futility and would tantamount to the

abuse of the process of the Court. The Respondent No. 3 has settled the

dispute with the petitioners and does not wish to proceed further and as a

result she would not support the prosecution case and therefore, the chances

of conviction of petitioners would be remote and bleak.

10. It is true that one of the alleged offence is under Section 3(1)(r)

of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act.

On close scrutiny of the allegations in the FIR, it appears that the transaction

of giving money and agreement had taken place in the office of Petitioner.

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Even if the allegations in the FIR are taken as it is same allegations would

not attract ingredients of Section 3(1)(r) of the said Act. The said alleged act

appears to have been taken place in the office of the Petitioner in Writ

Petition No. 3838 of 2019 and not in a public view.

Be that as it may, since the petitioners and Respondent No. 3

have amicably settled the dispute and entire amount which was deposited by

the Respondent No. 3 with the Petitioners is returned to Respondent No. 3,

we need not enter upon the appreciation of allegations/contentions of

Respondent No. 3.

11. In the light of discussion in foregoing paragraphs and in

particular averments in the affidavit filed by Respondent No. 3, so also,

interaction with Respondent No. 3, wherein she stated that it is her voluntary

act to enter into said settlement and pray for quashing of the impugned FIR,

we are inclined to allow both the petitions, however, subject to depositing of

Rs. 50,000/- (Rupees Fifty Thousand only) by the Petitioners and in

particular Petitioner in Writ Petition No. 3838 of 2019 namely Mr. Narayan

Hemnani, in the following account:-

Name of Account Holder For J.J. Fund- DY.COMMI. (CHILD DEVELOP) AND MEM.

                       SECY. & TRY M S CHILD FUND

Account No.-                  11099464354
Name & Address of
Bank-                         State Bank of India, Pune Main Branch, Collector

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                               Office Compound, Pune.
Branch Code-                   454.
IFSC-                          SBIN0000454.
MICR-                          411002002.

12. In view of the above, we pass the following order:-

ORDER

(a) Both the writ petitions are allowed.

(b) The proceedings i.e. Atro. Spl. No. 18 of 2019 arising out of C.R. No. I 268/2018 dated 30th October 2018 for offences punishable under Section 420, 406, 504 read with 34 of IPC and Section 3(1)(r) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, are quashed and set aside, subject to depositing Rs. 50,000/- (Rupees Fifty Thousand only), by Petitioners in particular Petitioner in Writ Petition No. 3838 of 2019 namely Mr. Narayan Hemnani from his account within two weeks from today, in the account details mentioned in Paragraph No. 11 of this order.

(c) Rule made absolute to above extent. Both writ petitions stand disposed of accordingly.

(d) All parties to act upon an authenticated copy of this order.

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




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