Bombay High Court
Dinesh Mangilal Jain And Anr vs The State Of Maharashtra And Anr on 24 January, 2024
Author: A. S. Gadkari
Bench: A. S. Gadkari
2024:BHC-AS:4328-DB
Jyoti 211-Apl-464-2012.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION NO. 464 OF 2012
Dinesh Mangilal and Anr. .. Applicants
Versus
The State of Maharashtra & Anr. .. Respondents
Mr. Amol Patankar, Advocate for the Applicants.
Mr. Amit A. Palkar, APP for the Respondent-State.
CORAM : A. S. GADKARI AND
SHYAM C. CHANDAK, JJ.
RESERVED ON : 11th DECEMBER, 2023.
PRONOUNCED ON : 24th JANUARY, 2024.
JUDGMENT [PER: SHYAM C. CHANDAK, J.]
1) Present application is filed under Section 482 of the Code of
Criminal Procedure, 1908, seeking to quash the FIR bearing C.R.No.170 of
2000 registered with the Respondent No.1-N.M.Joshi Marg Police Station,
Mumbai for the offences punishable under Section 326, 457, 506 (II) r/w.
JYOTI
RAJESH
MANE Section 34 of the Indian Penal Code and now pending before the learned
RAJESH MANE Metropolitan Magistrate 29th Court at Bhoiwada, Dadar, Mumbai as C.C.No.
394/PW/2005
2) Heard Shri.Amol Patankar, learned Advocate for Applicants and
Mr. Ameet Palkar APP for the State. Perused the record.
Jyoti 211-Apl-464-2012.doc
3) The record shows that, Rule was issued on 14 June 2012. By an
Order dated 31st August 2015, an interim relief in terms of prayer clause (c)
was granted and proceedings in the said case were stayed.
3.1) As noted in the Order dated 12th December, 2012 the
Respondent No.2 is represented by Mr.Kartik S. Iyer Advocate. However,
none appeared for the Respondent No.2 when the Application was taken up
for hearing.
4) In brief, the facts giving rise to this application are as under:
4.1) That, Noble Tower, situated at Veer Santaji Lane, Ganpatrao
Kadam Marg, Mumbai was constructed by the Company of the Respondent
No.2. The first and second floor in the tower were for commercial use and
third to sixth floors were for residential purpose. The 3 rd floor was first sold
to the Applicants. Then, half of the 4th floor was also purchased by the
Applicants. Thereafter at the request of the Applicants, the Respondent No.2
gave keys of the said flats to the Applicants for doing furnishing work there.
The Applicants had also purchased half of the first floor; however, they were
informed that, giving possession of that half part was not possible due to a
matter was pending in the High Court. In the meantime, the Respondent
No.2 went abroad. However, behind his back, the Applicants started using
the 3rd and 4th floor flats for commercial purpose which was contrary to the
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terms and conditions of the relevant Agreement and the Bombay Municipal
Corporation Act. Hence, a legal notice was issued requesting the Applicants
to refrain from said illegal use of the flats and to stop storing of hazardous
material in front of the lift door. The matter was also reported to the police
and the Corporation. Thereafter, there were disputes between the parties for
one or other reason. Said disputes were related to said flats.
4.2) On 30 July 2000, the Respondent No.2 received a telephonic
message at his residence that, the Applicants with six others threatened his
watchman with severe beating and they broke the telephone line. One
security person also telephonically informed the Respondent No.2 about the
forcible entry of the Applicants and that they have put grills and some
baggage in the premises. Hence the Respondent No.2 along with his son
went to the spot. The Applicants were present there. The Applicant No.2 was
having thick stick in his hand and he tried to hit the Respondent No.2 on his
head. The Respondent No.2 warded off that blow with his left hand. As a
result, he sustained a fracture to the finger of his left hand. The Applicant
No.1 assaulted the son of the Respondent No.2 using thick object. Then the
Applicants and others fled from the spot. While running, the Applicant No.2
tripped on the stair case and sustained injury. Immediately, the police were
called. Police referred the Respondent No.2 and his injured son to K.E.M.
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hospital for treatment. Then, the Respondent No.2 lodged the report under
which the impugned F.I.R. came to be registered against the Applicants. The
investigation culminated into filing of chargesheet, which came to be
registered as CC.No./394/PW/2005.
5) Learned Advocate for the Applicants submitted that, at the
relevant time, the Applicants had also filed a counter F.I.R. bearing
Cr.No.169/2000 against the Respondent No.2 for the offences under
Sections of 506 (II), 341, 324, 504 read with 34 of the I.P.C. Around the
same time, the Applicant No.1 filed a S.C.Suit No.4533/2000 against the
Respondent No.2 and his company in the Bombay City Civil Court. One more
suit bearing S.C.Suit No. 4534/2000 was filed by the partnership firm of the
Applicants against the Respondent No.2 and his company in the same Court.
Thereafter, arraying the same parties, the suits bearing No.1479/2001 and
1480/2001 were filed by the partnership firm of the Applicants and the
Applicant No.1 respectively before this Court.
5.1) Learned Advocate for the Applicants submitted that, all the suits
pertain to the same flats. After some years, the dispute between the parties
was resolved and all the suits came to be amicably settled by filing the
Consent Terms dated 27th April 2005, to that effect. Accordingly, the Decrees
have been passed in Suit No.4533/2000 and Suit No. 4534/2000 by the
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Bombay City Civil Court and the suits filed before this Court were
withdrawn by the Applicants. The learned Advocate submitted that, as noted
in the Consent Terms placed before the Bombay City Civil Court, the
Applicants and Respondent No.2 had agreed to withdraw the complaints and
criminal cases filed against each other in respect of the suit premises.
Learned Advocate submitted that, by a letter bearing No.12830/2011, dated
11th October, 2011, under the Right to Information Act, N.M. Joshi Marg
police informed that, 'C' Summary was filed in the Crime No.169 of 2000.
The Respondent No.2, however, turned back from the settlement terms after
getting its benefit.
5.2) Learned Advocate for the Applicants submitted that, once a
party has availed certain benefits of the Consent Terms in one case, he is not
allowed to turn back and take a different stand in the connected matter
which was also a subject matter of the same Consent Terms and liable to be
disposed of in view of said Consent Terms. Hence, the impugned F.I.R. and
the consequent CC.No.394/PW/2005 are liable to be quashed. In support of
the submissions, the learned counsel relied on the following decisions :
i) Ruchi Agarwal Vs. Amit Kumar Agrawal & Ors.:2005 (3) SCC 299. In
this case, the appellant had filed a complaint alleging offence under Section
498A, 323, 506 IPC and under Sections 3 & 4 of Dowry Prohibition Act. The
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High Court quashed the criminal complaint on the ground of territorial
jurisdiction to the police station. As a result, the chargesheet and the
summoning order of the Chief Judicial Magistrate, at Nainital were quashed
and the investigation of the case was transferred to the concerned Police
Station Bilaspur, District Rampur. The said complaint was filed on 10 th0 April
2002. Thereafter the divorce petition was filed by the appellant before the
Family Court at Nanital. In the said divorce petition a compromise was
arrived at between the parties in which it was stated that the first
respondent-husband was willing for consent divorce and that the appellant/
wife had received all her Stridhan and maintenance in a lump sum. It is also
stated in the said compromise deed that the parties to the proceeding would
withdraw all civil and criminal complaints filed against each other which
includes the criminal complaint filed by the appellant which was subject
matter before the Hon'ble Supreme Court. The appellant gave her statement
that, she wanted a divorce and that there is no dispute about any amount
pending. Hence, the Family Court, Nainital granted a divorce. The appellant
also withdrawn her complaint under Section 125 of the Cr.P.C. filed before
the Family Court. However, the appellant did not take any steps to withdraw
the complaint under Section 498-A etc. Hence, the respondent husband filed
the proceeding to quash the same. However, before the Supreme Court the
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appellant-wife took a stand that though she had signed the compromise
deed, the same was obtained by the respondent husband and his family
under threat and coercion and she did not receive the lump sum
maintenance and her Stridhan properties. In the backdrop, Hon'ble Supreme
Court observed that, pursuant to the compromise deed the
Respondent/husband has given a consent divorce which the appellant
wanted. Thus, he has performed his part of the obligation of the compromise
deed. Even the appellant also performed her part of the obligation partially;
withdrawing the criminal complaint under Section 125 of Cr.P.C. Therefore,
and the appellant having received the relief she wanted without contest on
the basis of the terms of the compromise, it was observed that the conduct of
the Appellant indicates that the criminal complaint under Section 498-A etc.
was filed by the appellant against the respondent only to harass him. Hence
the complaint was quashed.
ii) Mohd. Shamim & Ors. Vs. Nahid Begum & Anr.:2005 All MR (Cri) 828
(S.C.). In this case, an amicable settlement was arrived at between the
husband and wife during the hearing of the anticipatory bail application. As
per the said settlement, the wife had agreed to accept a certain sum towards
the dowry, Mehar, past, present and future maintenance of her. An affidavit
in support of the settlement was also signed by her. Later on, the husband
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filed an application under Section 482 of the Cr.P.C. for quashing the F.I.R.
registered against him and others under Section 406, 498A r/w. 34 of the
I.P.C. The said application was opposed by the wife stating that she does not
wish to compromise the matter and wants to continue with the said F.I.R.
Therefore, the learned Single Judge of the High Court refused to interfere in
the matter and dismissed the application. However, the Hon'ble Supreme
Court noted that out of the settlement amount, Rs.2,25,000/- were paid to
the wife. The balance of Rs.50,000/- was payable at the time of the
complainant's making a statement and giving no objection for quashing the
F.I.R. Said amount was retained in the Court as per the Court's direction. No
dispute remained between the parties regarding the payment of dower
amount (Mehar), dowry Articles etc. In this background, the Hon'ble
Supreme Court noted that the settlement was arrived at the intervention of a
judicial officer of the rank of the Additional Sessions Judge and it was a
genuine settlement. Hence, the contention of the wife that she was not
aware of the contents thereof and the said agreement as also her affidavit
were signed by her due to misrepresentation of facts was rejected holding
that the denial of the execution of said deed of settlement is an afterthought
on the part of the wife.
iii) Mrs.Usha Badri Poonawala vs. K.Kurien Babu & Anr.:2005 ALL MR
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(Cri) 2728. In this case, the oral evidence on record disclosed that the
Memorandum of understanding was executed by the parties on 9 th
September 1997, under which the Respondent No.1 received a sum of
Rs.3,76,896/-. He admitted the contents of the said document on oath. The
Memorandum specifically recorded that irrespective of the claim made by
the Respondent No.1 in the Criminal Complaint, money matters involved in
the case have been settled amicably. After having agreed to settle the dispute
amicably and after having agreed to withdraw the complaint, the
Respondent No.1 wanted to prosecute the complaint only on the ground
that, he was to receive something more than what is mentioned in the
written Memorandum. This stand was taken nearly seven years after the
execution of Memorandum. Hence, and considering the conduct of the
Respondent No.1 it is held that, the continuation of the proceedings by him
will amount to abuse of process of law and therefore, the complaint deserves
to be quashed.
6) Learned APP submitted that, looking at the facts and
circumstances of the case, appropriate Order may be passed in the interest of
justice.
7) The Consent Terms filed in S.C.Suit No.4533/2000 and S.C.Suit
No.4534/2000 are at 'Exhibit-A'. The Consent Terms filed in S.C.Suit
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No.4533/2000 noted that, the Agreement dated 12th July, 1994 in respect of
flat No.101 is cancelled. In lieu of the premises No.101, the defendants
undertake to sale, transfer and convey to the plaintiff the premises No.203 in
the building known as "Noble Tower" forthwith and further defendants
undertake to handover vacant and peaceful possession of said premises
No.203 within 3 months from the date of taking possession of the said
premises No.101. Further, it was agreed between the parties that, the area to
premises No.203 is less by about 240 Sq.ft of the area of the premises
No.101. The defendants on/before execution of the Consent Terms paid to
the plaintiff a sum of Rs.4,40,750/- being the difference of the deficit area.
The part payment is made by cheque of Rs.3,50,000 dated 27 th April 2005
and as regards the balance amount of Rs.90,750/-, the Plaintiff was entitled
to withdraw the amount of Rs.90,750/- which he had deposited in this Court
in Suit No.1480/2001. The Consent Terms also noted that, the parties agree
and undertake to withdraw all police complaints and criminal cases filed
against each other in respect of the suit premises being premises No.101.
Further, it was agreed that, the parties agree and undertake to file Consent
Terms in this Court for withdrawal of the Suit No.1480/2001 with liberty to
the Plaintiff to withdraw the said amount of Rs.90,750/- from this Court.
8) The Consent Terms filed in S.C.Suit No.4534/2000 noted that,
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the Agreement dated 12th July, 1994 in respect of flat No.102 is cancelled. In
lieu of the premises No.102, the defendants undertake to sale, transfer and
convey to the plaintiff the premises No.204 in the building known as "Noble
Tower", forthwith and further the defendants undertake to handover vacant
and peaceful possession of the said premises No.204 within 3 months from
the date of taking possession of the said premises No.102. Further, it was
agreed between the parties that, the area to the premises No.204 is less by
about 240 Sq.ft of area of the premises No.102. The defendants on/before
execution of the Consent Terms paid to the plaintiff a sum of Rs.4,25,750/-
being the difference of the deficit area. The part payment is made by cheque
of Rs.3,50,000 dated 27th April 2005 and as regards the balance amount of
Rs.75,750/-, the Plaintiffs were entitled to withdraw the amount of
Rs.75,750/- which they had deposited in this Court in Suit No.1479/2001.
The Consent Terms also noted that, the parties agree and undertake to
withdraw all police complaints and criminal cases filed against each other in
respect of the suit premises being premises No.102. Further, it was agreed
that, the parties agree and undertake to file Consent Terms in this Court for
withdrawal of Suit No.1479/2001 with liberty to the Plaintiffs to withdraw
the said amount of Rs.90,750/- from this Court.
9) The Applicants have produced two separate Orders dated 13th
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July 2005 passed by this Court in S.C.Suit No.1479/2001 and S.C.Suit
No.1480/2001 respectively.
9.1) As per the Order dated 13 July 2005 passed by this Court in Suit
No.1479/2001, the parties have amicably settled the matter out of the
Court. It was agreed between the parties that the plaintiffs would withdraw
the suit and the plaintiffs were permitted to withdraw the amount deposited
by them being sum of Rs.75,750/-. Accordingly, 'Minutes of Order' signed by
the parties were taken on record at 'Exhibit-X' and the suit was disposed of
in terms of the 'Minutes of Order'.
9.2) As per the Order dated 13th July 2005 passed by this Court in
Suit No. 1480/2001, the parties have amicably settled the matter out of the
Court. It was agreed between the parties that the plaintiff would withdraw
the suit and the plaintiff was permitted to withdraw the amount deposited
by him in this Court being sum of Rs.90,750/-. Accordingly the 'Minutes of
the Order' signed by both the parties were taken on record and marked as
'Exhibit-X' and the suit was disposed of in terms of the 'Minutes of Order'.
10) The learned Advocate for the Applicants made a statement that,
in view of the Consent Terms at 'Exhibit-A', both the suits then pending
before the Bombay City Civil Court came to be disposed of. The said Consent
Terms have been duly signed by the Respondent No.2. From the statement of
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learned counsel for the Respondent No.2, as noted in the Order of this Court
dated 31st August, 2015, it can be safely inferred that, the fact of signing the
Consent Terms by the Respondent No.2 is not disputed here.
11) The said Order dated 31st August, 2015 noted that, prima facie
it appears that parties have agreed to withdraw criminal cases filed against
each other. The Respondent No.2, however, has not given consent for
quashing the subject F.I.R. on the ground that, the Consent Terms are not
acted upon. This stand taken by the Respondent No.2 is very inconsistent to
the Consent Terms produced on record (at 'Exhibit-A') and has been taken
after a long time. The above statement on behalf of the Respondent No.2
was immediately disputed by learned counsel for the Applicants. Hence, this
Court directed that, this Application will have to be argued on merit and
adjourned the case at the request of learned counsel for the Respondent
No.2. Nevertheless, the Respondent No.2 and/or his Advocate on record
neither filed reply to this Application nor availed the hearing opportunity.
The Consent Terms are duly signed by the Respondent No.2. Pursuant to the
Consent Terms, the Applicants have withdrawn all the suits. This has
benefited the Respondent No.2 as he got rid of the litigations without any
contest. Hence, at such a belated stage and without contesting this
Application, in our considered view, it is not proper on the part of the
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Respondent No.2 to take a stand that, the Consent Terms are not acted
upon. As a result, it is safe to infer that, the Consent Terms have been duly
acted upon by the Applicants. However, with an oblique intention, the
Respondent No.2 made a baseless claim that, the Consent Terms are not
acted upon. Hence, the said claim is rejected.
12) In view of the above discussion, continuation of the impugned
F.I.R. and the C.C.No. 394/PW/2005 would be abuse of process of law,
hence, the same are liable to be quashed and accordingly, are quashed and
set aside.
13) Criminal Application No.464 of 2012 is allowed in the above
terms. Rule is made absolute.
(SHYAM C. CHANDAK, J.) (A. S. GADKARI, J.)
