Bombay High Court
Abdul Ahad Khan And Ors vs The State Of Maharashtra And Anr on 23 March, 2021
Bench: S.S. Shinde, Manish Pitale
Digitally signed
Laxmikant by Laxmikant G.
G. Chandan
Date: 2021.03.23
Chandan 12:14:31 +0530
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO.1384 OF 2021
1] Abdul Ahad Khan ]
Age 38 years ]
Residing at : Room No.7, ]
Shekhavat Mansion, 3rd Floor, ]
Opp. Farooq High School ]
Jogeshwari (West), Mumbai - 400 102 ]
]
2] Fahim Yasin Khan ]
Age 57 years, ]
rd
Residing at : 3 Floor, 17, Mistry House, ]
S. V. Road, Opp. Farooq High School ]
Jogeshwari (West), Mumbai 400 102 ]
]
3] Shaikh Mohammed Irfan ]
Age 40 years, ]
Residing at : Room No.2, Hausil Chawl, ]
Sahakar Road, Opp. Kunj Niwas ]
Jogeshwari (West), Mumbai 400 102 ]
]
4] Azim Solkar ]
Age 51 years ]
Residing at Can 65, (3) - J.S.Colony ]
Taiyyabji Ali Road, Jogeshwari East ]
Mumbai 400060. ]
]
5] Mr. Mohammed Nadeem Ismail Shaikh ]
Age 33 years ]
Residing at : 606, Building No.3, ]
Andheri United CHS, Rehab Cama Road ]
Opp. Jamat Khana, Gaodevi Dongar, ]
Andheri (West), Mumbai - 400058 ]
]
6] Mohammed Murtuza Mohammed Hussain ]
Khan, Age 31 years ]
Residing at : Room No.10, Anwar Chawal ]
Scout Camp Road, Behram Baug, ]
Near Masjid Arbia Jogeshwari West ]
Mumbai 400102 ]
]
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7] Abdul Wahid Abdul Qayyum Shaikh ]
Age 47 years ]
Residing at ; 1/A Fazal Khan Chawl ]
J. Block, Janata Colony, ]
Jogeshwari (East), Mumbai 400060 ]..... Petitioners.
Versus
1] The State of Maharashtra ]
(At the instance of Oshiwara ]
Police Station ]
]
2] Swadeshkumar Swatantra Kumar Anand ]
Aged 29 years, Occ : Builder ]
Residing at 602, DLH Swakrut, ]
Sahakar Nagar, Near H. P. Petrol Pump, ]
D. N. Nagar, Andheri (W), Mumbai 400053 ]..... Respondents.
Mr. Rajendra Rathod a/w Mr. Rahul Dangle for the Petitioners.
Mr. Deepak Thakre, PP a/w Mr. S R Shinde, APP for the Respondent/State.
Mr. Ali Bubere for the Respondent No.2.
Respondent No.2 present in Court.
CORAM : S. S. SHINDE,
MANISH PITALE, JJ
Reserved on : 16th March 2021
Pronounced on: 23rd March 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 The Petitioners have filed this Writ Petition for the following
substantial relief :-
(a) This Hon'ble Court be pleased to quash the FIR bearing
No.70 of 2021 registered with Oshiwara Police Station
for offences punishable under Sections 141, 143, 145,
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147, 148, 341, 452, 504, 506, 506(2) of IPC and the
Petitioner be acquitted."
3 It is submitted that Petitioner No.1 and Respondent No.2 herein
are both in the business of real estate. The 2 nd Respondent is one of the
Directors of Gajanan Property Developers Pvt. Ltd. and the original
complainant in CR No.70 of 2021. In or around May 2018 the Complainant
and his company entered into a partnership with Petitioner No.1 herein for
redevelopment of a property situated at Oshiwara. That on 15/02/2021 one
Mr. Tushar Mehta who is the sales head of the said project got a call from one
Mr. Fahim Khan who told him that the Petitioner herein has told not to start
the site tomorrow and the Petitioner No.1 called the ground staff of the
complainant and threatened him to keep the site closed tomorrow. Thereafter
on 16/02/2021 the Petitioner No.1 and other persons on his behalf allegedly
threatened the staff of the complainant and did not let them start the
construction work and also threatened them with their life. Hence the present
FIR No.70 of 2021 came to be filed with Oshiwara Police Station under
Sections 141, 143, 145, 147, 148, 341, 452, 504, 506, 506(2) of the Indian
Penal Code.
4 It is submitted that the Petitioners and the Respondent No.2 have
agreed to settle the dispute amicably and to that effect filed consent terms
before this Court. The said consent terms have been signed by the Petitioners
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and the 2nd Respondent as also their respective advocates. The said Consent
Terms are taken on record. The terms and conditions as set set out in the said
Consent Terms read thus :-
"1 The Petitioners and the Respondent No.2 have settled
their dispute amicably and therefore the Respondent
No.2 does not have any grievance against the Petitioners
and the Respondent No.2 has agreed to withdraw the
Complaint dated 16/02/2021 bearing CR No. 70 of 2021
registered with Oshiwara Polie Station for offences
punishable u/s 141, 143, 145, 147, 148, 341, 452, 504,
506, 506(2) of the Indian Penal Code.
2 The Petitioners and the Respondent No.2 are
approaching this Hon'ble Court under its inherent
jurisdiction u/s. 482 of Cr. P. C. and the Respondent No.2
hereby gives consent and No Objectiont o this Hon'ble
Court for quashing the F.I.R. bearing No.70 of 2021
dated 16/02/2021 registered with Oshiwara Police
Station as the dispute is amicably settled between the
Petitioners and the Respondent No.2 herein.
3 The Respondent No.2 states that he has no grievance
against the Petitioners and the Respondent No.2 hereby
withdraws all the complaints against the Petitioners with
permission of this Hon'ble Court and the Petitioners
states that they do not have any grievance against the
Respondent No.2.
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4 The Respondent No.2 and the Petitioners state that they
will not pursue the said matter and the Petitioners and
the Respondent No.2 will not have any claim of
whatsoever nature against each other in respect of the
Complaint dated 16/02/2021 bearing CR No.70 of 2021
registered with Oshiwara Police Station and both the
parties will maintain pace and harmony at all times on
the construction site and as the matter is amicably settled
between the Petitioners and the Respondent No.2 as per
these Consent Terms.
5 The Petitioners and the Respondent No.2 are entering
into these Consent Terms for the purpose of filing the
same in the above-mentioned Writ Petition before this
Hon'ble Court for quashin of F.I.R. bearing No.70 of 2021
dated 16/02/2021 registered with Oshiwara Police
Station.
5 This matter was on board on 16/03/2021. The 2nd Respondent
was present. When we interacted with the 2nd Respondent, he stated that it is
his voluntary act to enter into the settlement and execute the Consent Terms
without any coercion and pressure. He further stated that he has no grievance
against the Petitioners and he does not wish to continue with the impugned
FIR. He also stated that he has no objection for quashing the impugned FIR.
6 The 2nd Respondent has filed his affidavit in this Writ Petition.
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which is taken on record. In paragraphs 1 to 6 of his affidavit, the 2 nd
Respondent has stated thus :-
"1 I say that I am the original Complainant in the F.I.R.
bearing No.70 of 2021 registered with Oshiwara Police
Station against the Petitioners for offences punishable u/
s 141, 143, 145, 147, 148, 341, 452, 504, 506, 506(2) of
the Indian Penal Code.
2 I say that the dispute between me and the Petitioners has
been settled amicably as on date and there is no
grievance against each other.
3 I say that dispute between the Petitioners and the
Respondent No.2 has been settled therefore the F.I.R.
bearing No.70 of 2021 dated 16/02/2021 registered with
Oshiwara Police Station against the Petitioners and the
same may be quashed.
4 I say that I have no objection for quashing and setting
aside of F.I.R. bearing No.70 of 2021 dated 16/02/2021
registered with Oshiwara Police Station as on date and
thus the present Petition be allowed and the said FIR
may be quashed.
5 I say that the dispute is settled between both the parties
amicably and accordingly consent term dated
___/03/2021 are being signed by both the parties.
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6 I say that I am giving this Affidavit willfully and without
any kind of force or coercion as the matter has been
amicably been settled between me and the Petitioners
above named."
7 The learned counsel for both the parties submit that, both the
parties have voluntarily agreed to settle the disputes and differences between
them, and there is no coercion, undue influence or force upon them for
arriving at the settlement.
8 In view of settlement arrived at between the parties, no fruitful
purpose will be served by continuing the further investigation in the impugned
F.I.R. bearing No.70 of 2021 dated 16/02/2021 registered with Oshiwara
Police Station.
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
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
1 2012 (10) SCC 303
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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 the light of discussion in foregoing paragraphs, it is abundantly
clear that Respondent No.2 is not going to support the allegations made
against the Petitioners in the impugned FIR. The further continuation of
proceedings of the impugned FIR would tantamount to abuse of the process of
the Court, since the 2nd Respondent by way of filing her affidavit has clearly
stated that, he is not interested to pursue the allegations made in the
impugned FIR, and the chances of conviction of the Petitioner would be bleak
and remote.
11 It is pertinent to note at this stage that though the parties herein
have resolved/settled their dispute between them and approached this Court
for quashing of the FIR lodged by the 2nd Respondent against the Petitioners,
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we deem it appropriate to impose costs of Rs.25,000/- (Rupees Twenty Five
Thousand only) on the Petitioners and costs of RRs.25,000/- (Rupees Twenty
Five Thousand only) on the 2nd Respondent. Accordingly we direct the
Petitioners to collectively deposit costs of Rs.25,000/- (Rupees Twenty Five
Thousand only) and the Respondent No.2 to deposit costs of Rs.25,000/-
(Rupees Twenty Five Thousand only) with the Children's Aid Society, Mumbai
within two weeks from today in the account number given herein below.
Name of Bank of Account : Children Aid Soc Donation
Bank Account No. :02370100005612
Bank Name : UCO Bank
Branch : Matunga Mumbai
IFS Code : UCBA0000237
In turn the Children's Aid Society, Mumbai shall transfer the said costs for
betterment of the children to the New & Additional Children's Home,
Mankhurd, Mumbai.
12 For the reasons stated herein above, and 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 the same is accordingly
allowed in terms of prayer (a), subject to Petitioners depositing the costs as
afore-stated, which read thus :-
(a) This Hon'ble Court be pleased to quash the FIR bearing
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No.70 of 2021 registered with Oshiwara Police Station
for offences punishable under Sections 141, 143, 145,
147, 148, 341, 452, 504, 506, 506(2) of IPC and the
Petitioner be acquitted."
13 The Petitioners and the Respondent No.2 shall deposit their
respective costs 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 the Petitioners and the
Respondent No.2.
14 Rule is made absolute to the above extent and the Criminal Writ
Petition stands disposed of accordingly.
15 The parties are directed to abide strictly by the mutual obligations
as per the Consent Terms.
16 List the Petition on 15/04/2021 under caption "For Compliance"
of deposit of costs.
[MANISH PITALE, J] [S. S. SHINDE , J]
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