Bombay High Court
Buildtech Shelter And Anr vs The State Of Maharashtra And Anr on 23 September, 2021
Bench: S.S. Shinde, N. J. Jamadar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
WRIT PETITION NO.2762 OF 2021
Buildtech Shelter and Others ...Petitioners
vs.
VISHAL The State of Maharashtra and Ors. ...Respondents
SUBHASH Mr. Anmol Bartaria, for the Petitioners
PAREKAR Ms. Lakshmi Bossa a/w. Mr. Rakesh Singh i/b. M.V. Kini & Co., for
Digitally signed by Respondent No. 2.
VISHAL SUBHASH
PAREKAR Ms. M.H. Mhatre, APP for the Respondent-State.
Date: 2021.09.25 Mr. Mohammed Tufail Ansari, the Respondent No. 2 present.
15:05:00 +0530
CORAM : S. S. SHINDE &
N. J. JAMADAR, JJ.
DATE : SEPTEMBER 23, 2021
-----------
ORAL JUDGMENT (Per N.J.Jamadar, J.)
1. Rule. Rule made returnable forthwith and, with the consent
of the counsels for the parties, heard fnalll.
2. This petition under Article 226 of the Constitution of India
and section 482 of the Code of Criminal Procedure, 1979 (the Code)
is fled to quash and set aside the frst information report bearing
C.R. No. 348 of 2021 registered with Oshiwara police station,
Mumbai for the offences punishable under sections 406, 420 read
with 34 of Indian Penal Code, 1860 (the Penal Code).
3. The indictment against the petitioners is that the respondent
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No. 2 - frst informant was induced to part with the sum of Rs. 40
lakhs by making a false representation that Flat No. A-1303 will be
sold to the frst informant.
4. Mr. Anmol Bartaria, learned counsel for the petitioners and
Ms. Lakshmi Bossa, learned counsel for respondent No. 2 make a
joint statement that in the intervening period the petitioners and
respondent No. 2 have amicably resolved the dispute. The parties
have entered into a Deed of Settlement on 7 th July, 2021; a copy of
which is annexed to the petition (Exh.B). Pursuant to the terms of
settlement, the respondent No. 2 does not desire to prosecute the
petitioners any further. The respondent No. 2 has sworn an affdavit
giving consent to quash the frst information report.
5. Respondent No. 2 appeared before this Court. We have
interacted with him. He submitted that he has decided to resolve
the dispute with the petitioners voluntarily. He has sworn the
affdavit out of his own volition and there is no coercion or duress.
6. Clause (1) of the Deed of Settlement read as under:
(1) The party of the First Part and the party of the Second Part
hereby mutually agreed to settle the issue of refund of amount
of Rs. 40 lakhs paid by the party of the First Part to the party of
the second part against booking of Flat No. A-1303 with regards
to an under construction building known as Bhavya Enclave
situated at Nehru Road, Vakola Bridge, Santacruz (East).
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(2) The party of the second part herein have agreed to repay
the amount of Rs. 40 lakhs to the party of the First part as full
and fnal refund of the amount paid towards booking of Flat
No.A-1303. The party of the First part hereby agrees to accept a
full and fnal consideration amount paid towards booking of Flat
No.A-1303 and hereafter the party of the frst part will have no
claims or rights of whatsoever nature against the said Flat No.A-
1303, subject to realization of entire amount of settlement
which is Rs. 40 lakhs only.
(3) The party of the second part hereby agrees and undertakes
to refund the part amount of RS. 20 lakhs vide Pay order
bearing No. 017320 dated 07-05-2021 drawn on ICICI bank,
Jogeshwari Branch and Rs. 10 lakhs vide Pay order bearing No.
017318 dated 07-05-2021 drawn on ICICI Bank, Jogeshwari
Branch. On the date of signing of this Deed of Settlement.
(4) The party of the second part hereby agrees to refund the
balanced part amount of Rs. 10 lakhs by way of valid pay order
for realization bearing No. 017319 dated 07-05-2021 drawn on
ICICI Bank, Jogeshwari branch to the party of the frst part.
Such pay order will be handed over to the party of the frst part
on the day of recording statement before the High Court
confrming about such amicable settlement. The party of the
frst part will co-operate with the party of the second part till
the quashing of FIR No. 348 of 2021 or till the fnal disposal of
case before the High Court of Mumbai and also before any other
Court whenever necessary with respect to the subject case. The
party of the second part shall immediately try to fle the
petition before the High Court . However, due to prevailing
pandemic covid situation and Court vacation the petition should
be fled within 4 weeks from the present executing or the
earliest possible time available.
7. Paragraph Nos. 2 to 6 of the affdavit of respondent No. 2 read
as under:
2] I say that I had booked Flat No. A-1303 in the under
construction building known as Bhavya Enclave situated at
Nehru Road, Vakola Bride, Santacruz (E) being developed by
the petitioner No. 1. I say that I had made payment of Rs. 40
lakhs towards aforesaid booking and had sought refund of the
said fat.
3] I say that the petitioner No. 1 and others had issued cheque
for Rs. 10 lakhs and Rs. 30 lakhs which was dishonour. Upon
such dishonored, respondent No. 2 has fled case No.
SS/4404341/2019 under section 138 read with 141 of the
Negotiable Instruments Act, 1881 which is pending before the
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Metropolitan Magistrate Court, Andheri, Mumbai. Also,
respondent No. 2 fled complaint with Oshiwara police station
which has been registered as F.I.R No. 348 of 2021 under
section 420 and 406 read with 34 of I.P.C.
4] I say during the pendency of the above proceedings the
parties have decided to put an end to the dispute. The parties
have entered into a Deed of Settlement dated 7th August,
2021, which is already on records and marked as Exhibit B to
the Petition. Under the Deed of Settlement this respondent
No. 2 has agreed that on receipt of total amount of Rs. 40
lakhs this respondent No. 2 shall have no claim and/or
liability towards and/or against the petitioners.
5] I say that in view of this understanding the petitioners No.
1 has paid an amount of Rs. 30 lakhs and balance of Rs. 10
lakhs is pending. The petitioners in accordance with the Deed
of Settlement dated 7th August, 2021 has promised/assured
the respondent No. 2 of giving entire payment of Demand
Draft. On receipt the balance amount the respondent No. 2
shall make statement before the Court of for No Objection and
shall also withdraw all the pending case against the
petitioners. The details of Demand Draft to be handed over
are Demand Draft No. 17319 dated 7th May, 2021 re-validated
on 9th August, 2021 drawn on bank ICICI Bank Jogeshwari
Bank.
6] I say that present Petition is fled for quashing of F.I.R No.
348 of 2021 under section 420, 406 read with 34 of IPC.
Pursuant to the execution of Deed of Settlement and upon
receiving the balance amount of RS. 10 lakhs in the form of
DD due from petitioners this respondent No. 2 has no
objection if the FIR No. 348 of 2021 is quashed by this Court.
8. Respondent No. 2 submitted before the Court that in
accordance with the understanding between the parties as referred
to in paragraph No. 5 of the affdavit, the petitioners have delivered
today a Demand Draft for the sum of Rs. 10 lakhs. We record the
statement of the respondent No. 2.
9. It seems that the genesis of the dispute is in a commercial
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transaction between the parties. The dispute is predominantly of a
civil nature. The parties have decided to resolve the dispute in its
entirety. In such circumstances, the continuation of the prosecution
would not serve any fruitful purpose. It is very unlikely that the
respondent No. 2 would support the prosecution and it would end in
a conviction. Continuation of the prosecution, on the contrary,
would cause grave prejudice not only to the petitioner but
respondent No. 2 as well. It would also amount to abuse of the
process of the Court.
10. In the case of Gian Singh vs. State of Punjab 1, the Three Judge
Bench of Supreme Court, inter alia, exposited the power of the High
Court to quash the FIR or prosecution in exercise of its inherent
jurisdiction, as under:
"61. ........... But the criminal cases having overwhelmingly and
predominatingly civil favour stand on a different footing for the
purposes of quashing, particularly the offences arising from
commercial, fnancial, 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, High Court may quash
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 criminal case would put
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. In other words, the High Court must consider whether it
would be unfair or contrary to the interest of justice to continue
with the criminal proceeding or continuation of the criminal
1 (2012) 10 Supreme Court Cases 303.
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proceeding would tantamount to abuse of process of law despite
settlement and compromise between the victim and wrongdoer
and whether to secure the ends of justice, it is appropriate that
criminal case is put to an end and if the answer to the above
question(s) is in the affrmative, the High Court shall be well
within its jurisdiction to quash the criminal proceeding."
(emphasis supplied)
11. The aforesaid proportions apply with full force to the facts of
the case at hand. Thus, in order to secure the ends of justice and to
prevent the abuse of the process of the Court, we are persuaded to
allow the petition and quash the frst information report No. 348 of
2021 and all consequent proceedings arising out of the said frst
information report, subject to payment of the costs by the
petitioners.
12. The learned counsel for the petitioners submits that the
petitioners would pay costs of Rs. 25,000/-
13. The petition thus deserves to be allowed subject to payment of
costs
of Rs. 25,000/- in the following account:
Name of Bank of Account: Children Aid Society Donation
Bank Account No.: 02370100005612
Bank Name: UCO Bank
Branch: Matunga (Mumbai),
IFSC Code: UCBA0000237
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Hence, the following order:-
ORDER
1] The petition stands allowed in terms of prayer clauses (a)
subject to depositing costs of Rs. 25,000/-, in the
account mentioned herein above, within three weeks from today.
Prayer clause (a) reads as under:
(a) This Court be pleased to call for records
of 2021 under section 420, 406 read with 34
of IPC registered on 06/05/2021 at Oshiwara
police station at the behest of the respondent
No. 2 and after examining the same, this Court
be pleased to quash and set aside the same.
2] Rule made absolute in aforesaid terms.
3] Parties to act on an authenticated copy of this order.
(N. J. JAMADAR, J.) (S. S. SHINDE, J.)
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