Bombay High Court
Nitin Natwarlal Shah And Ors vs Joseph Abraham Mallekkattu on 21 January, 2021
Bench: S.S. Shinde, Manish Pitale
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
WRIT PETITION (ST.) NO.4692 OF 2020
1 Mr.Nitin Natwarlal Shah }
Aged 70 years, Occ-Business, }
Residing at Plot No.54, Presidency }
Society, N.S.Road No.7, JVPD }
Scheme, Vile Parle (West), }
Mumbai 400 056 }
2 Mr.Dev Pramodrai Mehta }
Aged 40 years, Occ-Business, }
Residing at 38, Kumkum, }
8th Road, Presidency Society, }
Vile Parle (W), Mumbai 400056 }
3 Mr.Sanjay Multani }
Age : 60 years, Occ - Business, }
Residing at 6, Kavita Apartments, }
Minoo Desai Marg, Colaba, }
Mumbai }
4 Mr.Rajnikant Tandel }
Aged-Adult, Occ-Advocate, }
Shop No.10, A-1, Hasan Palace, }
Behind Development Credit Bank, }
Zapabar, Nani Daman, Daman } .. Petitioners
Versus
1. Mr.Joseph Abraham Mallekkattu }
Age- 63 years, Occ : Business, }
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Residing at Flat No.402-B Building, }
Great Eastern Garden, Opp.St.Xavier }
School, L.B.S. Marg, }
Kanjurmarg (W), Mumbai-400078 }
2. The State of Maharashtra }
(Through Juhu Police Station, }
Mumbai) } .. Respondents
...
Mr. A.A.Patankar for the petitioners.
Mr. K.V.Saste, A.P.P. for the State.
Ms. Farhana I. Sawant, Ms.Roshan Ansari i/b Mr. A.A.Siddiqui for
Respondent No.1.
...
CORAM : S.S. SHINDE &
MANISH PITALE, JJ.
DATED : 21ST JANUARY, 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. By this writ petition, the petitioners (original accused) have
approached this court seeking quashing of First Information Report
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("FIR") dated 02/11/2018 registered at Police Station Juhu, Mumbai for
alleged offences under Sections 420, 467, 468, 471 read with Section 34
of the Indian Penal Code ("IPC"). The said FIR was registered at the
behest of respondent No.1 (original complainant).
3. The grievance of respondent No.1 was that during the transaction
of sale of factory and property to him by the petitioners, certain
necessary documents pertaining to the title of the property have not been
supplied to him and that the electricity meter did not appear to be in the
name of the company, which is selling the property to respondent No.1.
On this basis, respondent No.1 raised a grievance that he had been
cheated and that the aforesaid offences were committed by the
petitioners. Respondent No.4 is an advocate, who was engaged by
respondent No.1 himself, in order to assist him in the process of the
aforesaid transaction.
4. Subsequent to the registration of FIR, it appears that the parties
have explored the possibility of settlement through mutual discussion. As
a consequence of the said exercise, a registered Memorandum of
Understanding dated 06/03/2020 was executed between the petitioners,
on the one hand, and respondent No.1, on the other. It was agreed
between the parties that the grievances of respondent No.1 stood
satisfied and that therefore, respondent No.1 would co-operate in putting
an end to the criminal proceedings by supporting the prayer made on
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behalf of the petitioners in the present writ petition.
5. An affidavit dated 18/01/2021 is also tendered across the bar by
learned counsel appearing for respondent No.1 to support the contents
of the aforesaid Memorandum of Understanding, as also the prayer made
on behalf of the petitioners in the present petition.
6. We have also interacted with respondent No.1, who is present in
the court and he stated that the said affidavit and the Memorandum of
Understanding were executed, on his own free will, without any
coercion.
7. We have perused the contents of the complaint leading to the
registration of FIR and other papers on record and, we are of the opinion
that, essentially the grievance raised by respondent No.1 appears to be of
personal nature. It appears that due to lack of communication between
the parties, respondent No.1 was constrained to submit the aforesaid
complaint leading to the registration of FIR.
8. Learned counsel appearing for the petitioners took us through the
complaint. A perusal of the same would show that, prima facie,
offence under Section 467 of the IPC is not supported by the contents of
the complaint. Apart from this, as noted above, the parties have now
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settled the dispute between them and a joint request was made for
quashing of the FIR and termination of proceedings.
9. The Supreme Court in the case of Giansingh v. State of Punjab
and Anr.1 has held that, the criminal cases having overwhelmingly and
predominantly 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 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.
10. Applying the ratio of the aforesaid judgment of the Hon'ble
Supreme Court in Giansingh (supra), we are of the opinion that
1 2012 (10) SCC 303
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continuing the said proceedings pursuant to the registration of FIR
would not be of any purpose and that therefore, in view of the settlement
between the parties, the prayer made on behalf of the petitioners in the
present writ petition deserves to be granted.
11. At this stage, learned counsel appearing for the petitioners informs
this court that the FIR was actually registered against five persons and
that one of the accused is not a petitioner before this court and, presently,
he is not in India. It is further pointed out that this fact is recorded in
the aforesaid Memorandum of Understanding placed on record and
respondent No.1 confirms the fact that his grievance does not survive
even against the said accused person also.
12. In this light, it would be appropriate that the said FIR is quashed as
against all the accused persons including the person, who is not a
petitioner before this court.
13. In view of the above, the writ petition is allowed in terms of prayer
clause (a), which reads as follows:
"a. This Hon'ble Court be pleased to quash and set aside
M.E.C.R. No.9 of 2018 registered with Juhu Police
Station, Mumbai against the petitioners."
14. Accordingly, the FIR is also quashed against accused - Mr. Bharat
Anumolu, who is not a petitioner in the present petition.
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15. In the facts and circumstances of the present case, we are of the
opinion that the present writ petition deserves to be allowed subject to
imposing a condition on petitioner Nos.1 to 3 that they shall deposit an
amount of Rs.50,000/-, within four weeks from today, with the Juvenile
Justice Fund, details of which are as under:
Name of Account Holder for Juvenile Justice Fund
DY. COMMISSIONER (CHILD DEVELOP) AND MEM. SECY. & TRY
M S CHILD FUND:
Account No. : 11099464354
Name and Address of Bank
State Bank of India
Pune Main Branch
Collector Office Compound, Pune.
Branch Code : 454
IFSC : SBIN0000454
MICR : 411002002
16. Rule is made absolute in the above terms.
(MANISH PITALE, J.) (S.S. SHINDE, J)
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