Bombay High Court
Nisha Samit Ambre vs The State Of Maharashtra And Anr on 7 October, 2024
Author: Neela Gokhale
Bench: A. S. Gadkari, Neela Gokhale
2024:BHC-AS:39492-DB
sns 1-apl-732-2021.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION NO. 732 OF 2021
Nisha Samit Ambre,
Age: 43 years,
Residing at-201, Dunhill Shelter,
Ceaser Road, Amboli, Andheri (W),
Mumbai-400058 .....Applicant
Vs.
1. The State Of Maharashtra,
(At the instance of -
The Sr. P. I., D N Nagar Police Station,
Mumbai ) ....Respondent No.1
2. Pandurang Soma Ambre
Age-71 years,
Permanent Address: 13/43, Triveni Building,
New Link Road, Adarsh Nagar, Near Infinity Mall,
Andheri (W), Mumbai-400053.
Present Address: Flat No.502, Shiv shakti Apartment,
Ceaser Road, Andheri (West)
Mumbai-400058 .....Respondent No.2/
Complainant
Mr. Veerdhawal Deshmukh, for the Applicant.
Mr. Ashish I. Satpute, for Respondent No.1-State.
CORAM : A. S. GADKARI AND
DR NEELA GOKHALE, JJ.
RESERVED ON : 9th SEPTEMBER, 2024.
PRONOUNCED ON : 7th OCTOBER, 2024.
JUDGMENT (Per Dr. Neela Gokhale, J) :
-
1) The Applicant seeks to quash and set aside criminal
proceedings bearing No. PW/2515/2021 pending on the file of the
sns 1-apl-732-2021.doc
Metropolitan Magistrate, 10th Court, Andheri, Mumbai arising out of C.R
No. 556/2021 dated 10th July 2021 registered with the D N Nagar Police
Station, Mumbai for offences punishable under Section 406, 420 read with
34 of the Indian Penal Code, 1860 ('IPC').
2) The Respondent No. 2 is the father-in-law of the Applicant,
who is Original Accused No. 2. Her husband and son of the Respondent No.
3) Facts of the case in brief are as under:
3.1) The Respondent No. 2 alleged in the FIR that he has 3 sons
namely Samit, Ateet and Ankit. His wife passed away on 25 th January 2015.
The Applicant is the wife of Samit and they reside at Dunhill Ceaser Road,
Amboli with their children. Ateet is a divorcee and resides with the
Respondent No.2 and the third son namely Ankit resides with his Family in
Auckland, New Zealand. The Respondent No. 2 owns a hotel, a gymnasium
and a bakery in Amboli and he lives on the income from the same.
3.2) It is alleged that the husband of Applicant, Samit is jobless and
hence the Respondent No. 2 was giving him rental income from a gym that
he owns at Andheri for the day-to-day expenses. Samit did not get along
with the Respondent No. 2 and drove him out of the house. Hence he
started residing at his farm house in Mulshi, Pune.
3.3) It is further alleged that the Respondent No. 2 and his deceased
wife kept their jewelry and ornaments in a locker in Canara bank. Since the
sns 1-apl-732-2021.doc
Respondent No. 2 was alone at home, Samit and the Applicant insisted that
he should take them to the Bank and show them the jewelry. During the
period between September and December 2018, the Respondent No.2 took
the Applicant and Samit to the Bank, Samit and the Applicant remained
outside the Bank and the Respondent No. 2 took out the jewelry from the
locker. Thereafter the Applicant and Samit took away the jewelry from the
Respondent No. 2 and has not returned the same. The value of the jewelry
so taken by Samit and the Applicant is Rs. 11,50,000/-
3.4) It is also alleged that the Respondent No. 2 had given on rent
some premises to a tenant. The security deposit of Rs. 1 lac is retained by
Samit. The tenant had also transferred last three months' rent to the tune of
Rs. 67,500/- to Samit's account. It is thus alleged by the Respondent No. 2
that Samit and the Applicant have cheated him of the jewelry and the
amount of security deposit as well as three months' rent taken by Samit
directly from the tenant. Aggrieved by this, the Respondent No. 2 filed the
FIR impugned herein.
4) By Order dated 17th July 2023, the Application was admitted.
Mr. Khwaja Shah learned counsel waived notice for the Respondent No. 2.
Notice of the Application was also served on the Respondent No. 2. Despite
service of notice, none appeared for the Respondent No.2.
5) Mr. Veerdhawal Deshmukh, learned counsel appears for the
Applicant and Mr. Ashish Satpute learned APP represents the State.
sns 1-apl-732-2021.doc
6) At the very outset Mr. Deshmukh submits that, the present
criminal proceedings is nothing but an outcome of a personal rivalry
between the family members of the Ambre Family. There is no justification
for the delay in filing the FIR in as much as that the incident as alleged took
place in 2018 and the FIR came to be filed in the year 2021. He submits
that a complaint was made by the Respondent No. 2 against Samit before
the Metropolitan Magistrate Mumbai, with similar allegations and the
learned Magistrate was pleased to dismiss the said complaint. Thereafter,
the Respondent No. 2 made repeated complaints to the Senior Police
Inspector with identical complaint resulting in registration of FIR against
Samit being CR No. 0443/2020 dated 10th September 2020. Samit sought
quashing of the same by way of Criminal Application No. 527 of 2020. By
Order dated 29th January 2021, this Court restrained the Police from filing
Charge sheet in the said matter.
7) Mr. Deshmukh also submitted that contrary to the allegations
made by the Respondent No. 2, it was he who has ill-treated Samit, his wife
i.e., the Applicant herein and their children. Two complaints against the
Respondent No. 2 are already filed by him. Respondent No. 2 had also
lodged NC against Samit which later was retracted. In these circumstances,
it is submitted that the Respondent No. 2 is seeking to use the criminal
machinery of law to satisfy a personal vendetta against the Applicant and
her family. This is an abuse of process of law and hence Mr. Deshmukh
sns 1-apl-732-2021.doc
prays that the criminal proceedings be quashed, and the Application be
allowed.
8) Mr. Satpute reiterated the allegations made in the FIR and
relied on the statement made by the Respondent No. 2 to resist the
Application.
9) We have heard both the counsels and perused the documents
on record with their assistance.
First and foremost, it is quite evident that the Respondent No.
2 has invoked the enforcement mechanism of the criminal law multiple
times. He first filed a complaint regarding the same allegations as that in
the present proceedings before the Metropolitan Magistrate, Andheri,
Mumbai only against his son Samit. The said complaint was rejected by the
learned Magistrate by recording cogent reasons. Despite this the
Respondent No. 2 repeatedly made complaints to the Police insisting
registration of FIR against the son Samit. Once again, the present Applicant
was neither named nor implicated by the Respondent No. 2. Another NC
was filed against Samit and later retracted. Samit assailed the registration
of FIR against him before a co-ordinate Bench of this Court, which has
granted him interim protection by restraining the Police from filing a charge
sheet. It is quite clear from the series of proceedings launched by the
Respondent No.2 pertaining to the same allegations that, the Respondent
No. 2 has never implicated the present Applicant. Only when he was met
sns 1-apl-732-2021.doc
with adverse Court orders that, he has now deemed it necessary to foist a
criminal case against this Applicant and once again her husband.
10) In any case, a plain reading of the FIR does not disclose
commission of any cognizable offence. The first allegation is regarding
taking away the jewelry from his custody by insisting that he should go to
the Bank and remove the same from the locker. The allegations in itselves
indicate that even if the jewelry was handed over to the Applicant and
Samit, the Respondent No. 2 handed over the same on his own. There is no
allegation of any force or violence on the part of the Applicant while taking
away the jewelry. There is no allegation of any inducement which is an
essential ingredient necessary to complete the offence of cheating.
11) The second allegation is regarding taking the security deposit
of Rs. 1 lac in the name of Samit and accepting three months' rent from the
tenant in his own name instead of the name of the Respondent No. 2. Even
if the said allegation is accepted as true, these allegations are against Samit
alone and does not implicate the Applicant herein in any manner of
whatsoever nature. The FIR does not disclose commission of any cognizable
offence least of all a serious offence of cheating.
12) In the factual matrix of the matter as discussed above, we have
no hesitation in holding that no cognizable offence is made out against this
Applicant and in fact continuance of prosecution against this Applicant is
nothing but an abuse of the process of law. We are thus inclined to quash
sns 1-apl-732-2021.doc
the criminal proceedings bearing No. PW/2515/2021 pending on the file of
the Metropolitan Magistrate, 10th Court, Andheri, Mumbai arising out of
C.R No. 556/2021 dated 10th July 2021 registered with the D N Nagar
Police Station, Mumbai qua the Applicant herein.
The Application is allowed in terms of prayer clause (a).
13) Rule is accordingly made absolute.
(DR NEELA GOKHALE, J.) (A.S. GADKARI, J.)
Digitally
signed by
SHAMBHAVI
SHAMBHAVI NILESH
NILESH SHIVGAN
SHIVGAN Date:
2024.10.07
19:33:58
+0530
