Bombay High Court
Qamar Begum Abdul Rauf vs The State Of Maharashtra And ... on 13 February, 2023
Bench: V. V. Kankanwadi, Sandipkumar Chandrabhan More
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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO.1527 OF 2022 IN
CRIMINAL APPLICATION NO. 236 OF 2022
Qamar Begum Abdul Rauf Applicant
Versus
The State of Maharashtra
and another Respondents
Mr. M. R. Sonawane, advocate for the Applicant
Mr. A. M. Phule, AGP for Respondent No.1.
Mr. M. P. Tripathi, advocate for Respondent No.2.
CORAM : SMT. VIBHA KANKANWADI AND
SANDIPKUMAR C. MORE, JJ.
DATE : 13th February, 2023.
ORDER (Per Smt. Vibha Kankanwadi, J.):
Today, in pursuance to the notice, learned Counsel
for Respondent No.2 has tendered affdavit-in-reply of
Respondent No.2, which is taken on record.
2 The present application has been fled by original
Respondent No.2 in Criminal Application No. 236 of 2022 for
the following prayer:
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"B The F.I.R. bearing Crime No. 145/2021,
registered at Parli City Police Station, District
Beed, for the offence punishable U/sec. 420,
504, 506 of I.P.C. in pursuance of the complaint
lodged by respondent no.2 may kindly be
quashed and set aside."
3 Heard Mr. M. R. Sonawane, learned advocate for
the applicant and Mr. M. P. Tripathi, learned Counsel for
Respondent No.2.
4 It has been vehemently submitted on behalf of the
applicant that present Respondent No.2 had fled Criminal
Application No. 236 of 2022 for quashment of the F.I.R. vide
Cr. No. 145/2021, registered against present Respondent No.2
at the behest of the applicant with City Police Station, Parali,
District Beed, for the offences punishable under Sections 420,
504, 506 of the Indian Penal Code.
5 After hearing all the parties concerned, this Court,
by an order dated 17th March, 2022, has quashed the
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proceedings especially in terms of prayer clause "B" which
was, in fact, on the basis of consent affdavit fled by the
present applicant.
6 The learned advocate appearing for the applicant
has raised an objection that there are observations in respect
of the Will that, it was left by the husband of the applicant in
favour of Respondent No.2, in the order passed by this Court
on 17th March, 2022. However, in respect of the said Will,
prior to the institution of the FIR, there were two suits
pending in which the objections have been raised i.e. the
alleged Will was not acceptable to the present applicant.
Further, the said Will came to be registered after the date of
death of the executant, which is a glaring doubtful
circumstance. Now, the Respondent No.2 is taking
disadvantage of the observations of this Court in para 4 of the
said order in respect of the Will and, therefore, it is necessary
to delete those observations.
7 The learned advocate for Respondent No.2 has
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raised strong objection. It is stated that the said observations
in para 4 of the order of this Court are, in fact, an outcome of
the consent affdavit in para 4 fled by the applicant herself.
This Court, while taking note of the said consent or statement
in the consent affdavit, has only considered it and stated so
and it does not amount to any further observation in favour of
anybody. In other words, it is only taking note of the
statement made by the applicant herself. Therefore, there is
no necessity to delete the same. He further submits that
there is no provision in the Code of Criminal Procedure to
recall or modify the observations made in the order by any
Criminal Court. He quotes Section 362 of the Code of
Criminal Procedure and submits that it specifcally bars
alteration of the judgment except a clerical or arithmetical
error and, therefore, the present application is not
maintainable.
8 At the outset, it is to be noted that the F.I.R.,
which was fled by the present applicant, related to cheating
in respect of the cheque and thereafter misusing the same,
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withdrawal of amount of Rs.65,92,000/- from the account of
husband of the applicant. In the F.I.R., there was no mention
about the Will. However, when the notice was issued to
Respondent No.2 therein i.e. present applicant, she had fled
the consent affdavit and it had been then stated that the
issue is satisfed outside the Court due to intervention by the
village elders and she has no objection for quashing of the
F.I.R. Then it is specifcally stated in para 4 of the consent
affdavit about the Will. We do not want to repeat the same,
but said paragraph no.4 was considered by this Court while
passing the order on 17th March, 2022. The observation,
which the applicant wants to get deleted, starts with the
words, "It further appears......." , which depicts that whatever
was there in the consent affdavit, had been reproduced. That
does not amount to observation. In fact, there was no hurdle
for the applicant to make a mention about pendency of two
suits and still she has given consent for quashing of the F.I.R.
The quashing of the FIR was on a different footing and
challenge to the Will appears to be on a different footing. 9
Another fact, that has been brought on record now by
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the present Respondent No.2, is that he has deposited an
amount of Rs.65,92,000/- and then it has been withdrawn by
the applicant from this Court. We would like to say that if at
all a remedy is there to the applicant to challenge the said
Will (which, as per her contention, is already under
challenge), those proceedings would take care of the challenge
and the legal point is still open as regards how the consent
affdavit can be received in evidence. Therefore, those
statements in the order dated 17th March, 2022, which
reiterate the contents of the consent affdavit, can not be
deleted. There is no merit in the application and it deserves
to be rejected.
9 Criminal application is accordingly rejected.
[SANDIPKUMAR C. MORE] [SMT. VIBHA KANKANWADI]
JUDGE JUDGE
adb
