Jigesh Dilip Shah And Ors vs The State Of Maharashtra And Ors
2021 Latest Caselaw 5073 Bom

            Digitally signed
Laxmikant   by Laxmikant G.
            Chandan
G.          Date:
Chandan     2021.03.22
            15:20:48 +0530                                                        cri.wp-443.21.odt

                                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                      CRIMINAL APPELLATE JURISDICTION

                                   CRIMINAL WRIT PETITION NO.443 OF 2021

               1]       Jigesh Dilip Shah                         ]
                        Aged : 49 years, Occ : Service            ]
                                                                  ]
               2]       Kairav Dilip Shah                         ]
                        Aged : Adult, Occ : Service,              ]
                                                                  ]
                        Both residing at Flat No.8,               ]
                        Tejkiran, First Floor,                    ]
                        2nd Dadi Shety Cross Lane                 ]
                        Chowpatty Bandstand,                      ]
                        Mumbai - 400 007                          ]..... Petitioners.

                               Versus

               1]       The State of Maharashtra                  ]
                        At the instance of Sr. Inspector of       ]
                        Police, L T Marg Police Station           ]
                        Vide their C.R. No.353 of 2019            ]
                        (Corresponding M.E.C.R. No.6 of           ]
                        2019)                                     ]
                                                                  ]
               2]       Abu Asim Azmi                             ]
                        Aged : 64 years, Occ : Business           ]
                        Residing at Sentinel House,               ]
                        Fourth Floor, H N Azmi Marg,              ]..... Respondents

Colaba, Mumbai ] (Orig.Complainant)

Mr. Sudeep Pasbola i/by Mr. Karl P Rustomkhan for the Petitioners. Mr. J P Yagnik, APP for the Respondent No.1/State. Mr. Mubin Solkar a/w Mr. Zarak Khan a.w Mr. Saif Shah i/by Mr. Aamir Sopariwala for Respondent N.2.

Respondent No.2 present in Court.

                                           CORAM :     S. S. SHINDE,
                                                       MANISH PITALE, JJ
                                           Reserved on :      11th March 2021
                                           Pronounced on : 22nd March 2021

               JUDGMENT :- (PER S. S. SHINDE, J)

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

of the learned counsel for the parties.



2            By this Writ Petition the Petitioner seeks the following substantial

relief :-

"(b) This Hon'ble Court be pleased to quash and set aside the Criminal Case No.2800144/SW of 2019 pending in the file of learned Metropolitan Magistrate, 28th Court, Esplanade, Mumbai, arising out of C.R. No.353 of 2019 (Corresponding M.E.C.R. No.6 of 2019) registered with L T Marg Police Station and all other proceedings arising out of the said C. R."

3 At the instance of the 2nd Respondent a complaint bearing C.R.

No.353 of 2019 (Corresponding M.E.C.R. No.6 of 2019) came to be lodged

against one Nasir shaikh at L T Marg Police Station, Mumbai on 20/11/2019

for the offences punishable under Sections 463, 464, 466, 468, 469, 470, 471,

473, 205, 209, 415, 416, 418, 420, 421, 424, 120-A and 465 of the Indian

Penal Code and during the course of investigation the present Petitioners came

to be implicated.

4 It is the case of the Petitioners that one premises situated at Gala

No.14, Bake House, Chamber of Commerce Lane, Kalaghoda, Mumbai was

owned by Shah Constructions. The said Shah Constructions rented out the said

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premises to one Ramjibhai Nagad who was carrying on business in the same

premises in the name and style of Suhansa Art Printers. The said Ramjibhai

had given the said premises to M/s. Industrial Traders on leave on license

basis. The father of Petitioners viz. Dilip Surajmal Shah, and on Pravinchandra

Shah were the partners of M/s. Industrial Traders, and they started Service

Centre in the licensed premises. Later on certain disputes arose and the

licensor Ramjibhai Nagada filed civil proceedings against M/s. Industrial

Traders. Thereafter in the year 2002 the said Bake House Building was

purchased by one Nasir Jamal Shaikh and Respondent No.2 herein from its

original owner M/s. Shah constructions and thereby they became the landlords

of the said Bake House. In 2009 the Petitioners joined their father as the

partners of M/s. Industrial Traders. The father of the Petitioners expired in

April 2010. The brother of the Petitioner i.e. Petitioner No.2 herein is residing

in Bangkok, therefore, the business of M/s. Industrial Traders was being

carried out by Petitioner No.1. Thereafter the owners of the Bake House viz.

Nasir Jamal Shaikh and Respondent No.2 herein filed eviction proceedings

against the said Ramjibhai Nagada and M/s. Industrial Traders. Thereafter

Respondent No.2 herein lodged a complaint with L T Marg Police Station

against the said Nasir Jamal Shaikh for committing the offence of forgery,

impersonation, criminal breach of trust and cheating by making false

representation before the Small Causes Court. But the police did not take any

action on the same. Therefore Respondent No.2 approached the Court of the

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learned Metropolitan Magistrate, Esplanade, Mumbai interalia for taking

cognizance of the said offence. The said prayer came to be granted, and

consequently CR No.353 of 2019 came to be registered against Nasir Jamal

Shaikh.

5 It is alleged by the 2nd Respondent in the said FIR that Nasir

Shaikh and he were the partners. It is alleged that the said Nasir Shaikh was

not disclosing full and correct information to the 2 nd Respondent, and carried

out various transactions behind his back and without his knowledge. One

restaurant by name Pandora Box in the Gala No.14 was run by the said Nasir

and he kept all the income earned from the said restaurant with him. It is also

alleged by the 2nd Respondent that the said Nasir Shaikh had in collusion with

Suresh Nagada and M/s. Industrial Traders filed proceedings before Small

Causes Court and submitted bogus documents by forging the signature of

Respondent No.2 and thereby cheated him to the tune of Rs.5 Crores.

6 It is submitted that upon registration of the aforesaid crime,

Petitioner No.1 preferred anticipatory bail application and interim protection

came to be granted to him. It is also submitted that the Nasir Shaikh and

Respondent No.2 were business partners. Due to some misunderstandings

certain disputes arose between them, and therefore, complaints and counter

complaints were lodged against each other. It is also submitted that the said

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misunderstanding is now resolved amicably to the satisfaction of the said Nasir

Shaikh and the Respondent No.2 herein. It is also submitted that the disputes

between the said Nasir Shaikh and the 2nd Respondent are now amicably

settled. They have entered into Consent Terms on 04/11/2020 in Commercial

Suit No.447 of 2019. The copy of the said Consent Terms is placed on record at

Exhibit B on page 52 of the writ paperbook. Under the said Consent Terms it

has been agreed between the parties that parties shall withdraw all the

allegations made against each other and also amicably withdrawn and/or get

quashed the present complaint and other criminal cases.

7 The learned counsel appearing for the Petitioners submits that,

without entering upon the merits of the case, this Court may allow this Petition

on the basis of the settlement arrived at between parties.

8 The learned counsel appearing for the 2nd Respondent submitted

that the parties have amicably settled their disputes and the Respondent No.2

does not intend to prosecute the Petitioners and therefore, the 2 nd Respondent

is willing to give his consent for quashment of the impugned proceedings.

9 The 2nd Respondent was present before this Court on 11/03/2021

when the matter was heard. He was identified by his advocate. When we

interacted with him, he stated that both the parties have amicably settled the

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disputes and that they have filed consent terms in the Commercial Suit. He

further stated that he has filed his affidavit on his own will, without any

coercion or pressure. It is stated therein that he has no objection to the prayer

of the Petitioners being granted.

10 The relevant paragraphs of the said consent terms are paragraphs

21 to 26 which for the purpose of ready reference are reproduced herein

under:-

"Bake House Building

Maharashtra Chamber of Commerce Lane, Fort, Mumbai

- 400023 admeasuring 1100 sq.ft. Carpet area. Plaintiff No.1 agrees to release and transfer all his right, title and interest in the said shop No.14 to Defendant No.1 upon (I) the quashing of all criminal complaints mentioned herein, and (ii) the withdrawal by Defendant No.1 of the complaints made by him to the MCGM, BEST and other authorities against the Plaintiffs and their various businesses. Plaintiff No.1 shall arrange to hand over all the documents and other court proceeding papers to Defendant No.1 of Shop No.14 along with vacant & peaceful possession thereof within 60 days from execution of these Consent Terms.

22 It is hereby agreed declared and confirmed that

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Defendant No.1 has no claims against the Plaintiffs with respect to the following premises and the business conducted therefrom, and accepts that he has no right, title or interest in the same:

1) The premises bearing No.22, on the ground floor of 16/22 Bake House, Fort, Mumbai - 4000023 in which there is currently a proposed restaurant by the name "Town Culture"

2) The premises bearing No.24, on the ground fllor of 16/22 Bake House, Fort, Mumbai - 400 023 in which there is currently a bakery by the name "Pandora's Box Bakery".

3) There premises bearing No.12, on the ground floor of "New Bake House". Fort, Mumbai - 400023 in which there is currently a restaurant by the name "Carter's Blue".

4) The office at the front part of the third floor of 12 and 16 Old & New Bake House, Fort, Mumbai - 400023."

23 It is hereby agreed, declared and confirmed that the Plaintiffs have no claims against Defendant No.1 with respect to the following premises and the business conducted therefrom, and respect accept that they have no right, title or interest in the same:

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(a) The said Shop No.14, Ground Floor, New Bake House, Maharashtra Chamber of Commerce Lane, Fort, Mumbai

- 400023.

(b) The premises bearing No. 16, on the ground floor of Old Bake House, Fort, Mumbai - 400023 in which there is currently a restaurant by the name "Colonial Palate."

(c) The premises bearing No.16, on the mezzanine floor of Old Bake House, Fort, Mumbai - 400023 in which there is currently a restaurant by the name "Colonial Palate"

(d) The Office at the back part of the third floor of Old & New Bake House, Fort, Mumbai - 400023"

Criminal Complaints :

"24 It is hereby agreed, declared and confirmed that both parties and their respective family members shall initiate proceedings before appropriate courts/authorities for quashing/withdrawal of the following criminal complaint within 30 days from execution of these Consent Terms after due compliance of the Consent Terms by both parties and their family members shall not make any complaints in the future for the same facts.

(e) Criminal Complaint No.2800144/SW/2019 filed by Defendant No.1 against Plaintiff No.1 before the Metropolitan Magistrate, 28th Court, Esplanade, Mumbai

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(f) First Information Report bearing No.353/2019 filed in the LT Marg Police Station against Plaintiff No.1 upon the complaint of Defendant No.1.

(g) First information Report bearing No.30/2020 filed in the Colaba Police Station against Ms. Samran (also known as Alifiya) Shaikh upon the complaint of Mrs. Shehwar Azmi.

(h) First information Report bearing No.61/2020 filed in the Agripada Police Station against Ms. Samran Shaikh Upon the complaint of Ms. Bushra Mansuri.

(i) First Information Report bearing No.28/2020 filed in the MRA Marg Police Station against Mohammed Amir Khan upon the complaint of Plaintiff No.2.

(j) First Information Report bearing No.27/2020 filed in the Colaba Police Station against Rayan Shaikh, Yusuf Shaikh and Mohammed Amir Khan upon the complaint of Plaintiff No.1.

25 The parties and their family members agree and undertake to co-operate in jointly filing appropriate proceedings in the Hon'ble Bombay Court for quashing and disposing of the above criminal proceedings as advised by the Advocates.

      26    Defendant     No.1   and    Plaintiff   No.1   agrees   and

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undertakes to withdraw all the police complaints made by them against them and their family members and will not make any complaint in future for the same facts."

11 In paragraphs 1 to 5, the 2nd Respondent in his affidavit dated

08/12/20220 filed in this Writ Petition in support of the settlement, has stated

thus :-

"1 I state that I am a MLA and also the President of Maharashtra Samajwadi Part, and I along with one Nasir Jamal Shaikh were business partners, but due to various inter se disputes, our relations got severed.

2 I state that I had lodged a complaint against Nasir Jamal Shaikh on 13.06.2019 and 29.06.2019 with the L T Marg Police Station. I state that since the said complaints did not evoke any favourable response, I had approached the Court of learned Metropolitan Magistrate, 28th Court, Esplanade, Mumbai, and inter alia prayed for an order under Section 156(3) of Cr.P.C. which came to be granted. I state that after conducting an enquiry C.R.

No.353 of 2019 (corresponding M.E.C.R. No.6 of 2019) came to be registered with L T Marg Police Station against Nasir Jamal Shaikh for commission of alleged offences punishable under Section 205, 209, 415, 416, 418, 420, 421, 424, 463, 464, 465, 466, 468, 469, 470, 471, 473, 120-A of Indian Penal Code. I say that the said case came to be numbered as Criminal Application No.2800144/SW of 2019 and is at present pending

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before the Court of learned Metropolitan Magistrate, 28 th Court, Esplanade, Bombay.

3 I say that during the course of investigation, the Petitioners Jigesh Dilip Shah and his brother Kairave Dilip Shah also came to be implicated. I state that after registration of the aforesaid complaint, our common acquaintance and mutual friends approached me and requested me to put an end the dispute with Nasir Jamal Shaikh I say that after deep introspection over the events and after due deliberations, I have realized that I acted in undue haste and, in a moment of anger, proceeded to lodge complaint against Nasir Jamal Shaikh.

4 I say that since the registration of the aforesaid C. R. No.353 of 2019 (corresponding M,E,C,R No.6 of 2019) with L T Marg Police Station, I have realized that it is in our mutual welfare and interest that we put an end to this acrimony and settle the dispute amicably. I do not want to proceed with my complaint and do not intend to prosecute the Petitioners. I have no complaint, greivance or ill will against the Petitioners. I state that the Petitioners have not coerced me or unduly influenced me into executing this affidavit in any manner whatsoever, and the same is executed out of my own free will.

5 In view of the same, I have no objection if this Hon'ble Court quashes the said Criminal Application No.2800144/SW of 2019 arising out of C.R. No.353 of

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2019 (corresponding M.E.C.R No.6 of 2019) to be registered with L T Marg Police Station on the basis of my complaint as well as all further proceedings arising out of the sasid C.R. Hence this affidavit is filed."

12 The learned counsel appearing for both the parties submit that the

said Jamal Shaikh and the Respondent No.2 herein have voluntarily agreed to

settle the dispute, which is basically commercial in nature. 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 Criminal Application

No.2800144/SW/2019 arising out CR No.353 of 2019 (corresponding

M.E.C.R. No.6 of 2019) registered with L T Marg Police Station.

13 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 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

1 2012 (10) SCC 303

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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.

14 In view of settlement arrived at between the 2 nd Respondent and

the said Nasir Shaikh and the consent terms referred to above filed in the

Commercial Suit and in view of the the affidavit filed by the 2 nd Respondent

giving no objection for quashment of the Criminal Case No.2800144/SW of

2019 pending in the file of learned Metropolitan Magistrate, 28 th Court,

Esplanade, Mumbai, arising out of C.R. No.353 of 2019 (Corresponding

M.E.C.R. No.6 of 2019) registered with L T Marg Police Station and all other

proceedings arising out of the said C. R. for the offences punishable under

Sections 463, 464, 466, 468, 469, 470, 471, 473, 205, 209, 415, 416, 418,

420, 421, 424, 120-A and 465 of the Indian Penal Code, no fruitful purpose

will be served by continuing the further prosecution in Criminal Case

No.2800144/SW of 2019 pending in the file of learned Metropolitan

Magistrate, 28th Court, Esplanade, Mumbai, arising out of C.R. No.353 of 2019

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(Corresponding M.E.C.R. No.6 of 2019) registered with L T Marg Police Station

and all other proceedings arising out of the said C. R.

15 In the light of discussion in foregoing paragraphs, it is abundantly

clear that Respondent No.2 is not going to prosecute the present Petitioners.

Entire dispute arose out of commercial transactions. The further continuation

of proceedings in Criminal Case No.2800144/SW of 2019 pending in the file of

learned Metropolitan Magistrate, 28th Court, Esplanade, Mumbai, arising out of

C.R. No.353 of 2019 (Corresponding M.E.C.R. No.6 of 2019) would

tantamount to abuse of the process of the Court. Since the 2 nd Respondent by

way of filing his affidavit has stated that, he is not interested to pursue the

allegations made in the impugned FIR and would not participate in the

pending proceedings before the concerned Court, the chances of conviction of

the Petitioners would be bleak and remote.

16 For the reasons stated herein above, in order to secure the ends of

justice and to prevent further abuse of the process of the concerned court, the

Writ Petition deserves to be allowed and accordingly the same is allowed in

terms of prayer clause (b). Rule is made absolute to the above extent and the

Criminal Writ Petition stands disposed of accordingly.

[MANISH PITALE, J]                                        [S. S. SHINDE , J]


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