Laxmikant Makharia vs The State Of Maharashtra And Anr
2024 Latest Caselaw 25944 Bom

Bombay High Court

Laxmikant Makharia vs The State Of Maharashtra And Anr on 23 September, 2024

Author: Neela Gokhale

Bench: A. S. Gadkari, Neela Gokhale

2024:BHC-AS:37601-DB

             Gitalaxmi                                              1-appln-3519-2010-J.doc

                          IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                                   CRIMINAL APPELLATE JURISDICTION

                         CRIMINAL APPLICATION (APPLN) NO. 3519 OF 2010

            Laxmikant Makharia,
            Age 59 years, Occupation:Business,
            R/a Ellite Gardens Apts., A-2/22,
            6th Floor, Survey No. 166-A,
            Near Wireless Colony, Aundh,
            Pune - 411 007.                                            .....Applicant

                  Vs.

            1.    State of Maharashtra,
                  (At the instance of Malbar Hill
                  Police Station, Mumbai - 400 006).

            2.    Pramod Makharia,
                  Age 56 years, Occupation:Business,
                  R/a Sagar Kunj, 5th Floor,
                  Flat No. 27, 78, Neapensea Road,
                  Mumbai - 400 006.                                    .....Respondents


            Mr. Bhavin Jain a/w Mr. Kunjan Makwana i/b Mr. Ganesh Gole for the
            Applicant.
            Smt. Madhavi H. Mhatre, A.P.P. for the Respondent-State.
            Mr. Pramod Makharia, Respondent No. 2, Party in-person present.


                                                CORAM :   A. S. GADKARI AND
                                                          DR. NEELA GOKHALE, JJ.
                                         RESERVED ON :    27th AUGUST, 2024.
                                      PRONOUNCED ON :     23rd SEPTEMBER, 2024.


            JUDGMENT (Per Dr. Neela Gokhale, J.) :

1) The Applicant seeks to quash and set aside criminal

proceedings being C.C. No. 57/P/2001 pending before the Additional Chief

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Metropolitan Magistrate, 40th Court, Girgaon, Mumbai, arising out of C.R.

No. 3 of 1999 dated 30th July 1999 registered at Malbar Hill Police Station,

Mumbai for the offenses punishable under Sections 409, 420, 352, 506(ii)

and 385 of the Indian Penal Code (I.P.C.). The Applicant also seeks to

quash Order dated 2nd September 2009 passed by the Addl. C.M.M., 40 th

Court, Girgaon, Mumbai, whereby his application seeking direction to the

Respondent No. 2 to compound the case and withdraw the prosecution, is

rejected.

2) By order dated 8th July 2011, the application was admitted and

the proceedings before the Addl. C.M.M. were directed to be stayed.

3)               Facts of the case are as under :

3.1)             The Applicant and the Respondent No. 2 are brothers. It is

alleged in the F.I.R. that, the parties along with their other sibling namely

Mr. Druva Makharia were carrying on business of a partnership firm which

was engaged in giving cars on hire at the airport. Some disputes arose with

the Airport Authority leading to cessation of the business operations. There

was a settlement amongst the brothers. It is alleged in the F.I.R. that, the

Respondent No. 2/first informant learnt that the Applicant had without his

consent and knowledge withdrawn some amount from the fixed deposit

kept as security with the Mahanagar Co-operative Bank against a loan

availed by the partnership firm. When the loan was repaid, the Applicant

misappropriated the balance amount and thereby defrauded the first

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informant and committed the offense of breach of trust.

3.2) The Respondent No. 2/first informant namely Shri. Pramod

Makharia made a complaint before the Addl. C.M.M. praying that, the

Court take cognizance of the offenses as alleged by him.

3.3) The Addl. C.M.M. directed the Police to investigate the matter

and accordingly the subject F.I.R. was registered against the Applicant. The

Police filed their final Report in the Court of the Addl. C.M.M. and the

criminal proceedings impugned herein commenced. In the interregnum

Consent Terms were executed by and between the parties. The Consent

Terms were filed in a pending Civil Suit in this Court. However, according

to the Respondent No. 2, the Applicant failed to act in aid of the Consent

Terms. Thus, he too, refused to agree to compound the offense in the

proceedings before the Addl. C.M.M. The Applicant made an application

before the Addl. C.M.M. seeking a direction to Mr. Pramod Makharia, i.e.

the Respondent No. 2 to compound the offense, which application was

rejected. It is this Order dated 2 nd September 2009 passed by the Addl.

C.M.M., rejecting the Application of the Applicant herein, that is impugned

by way of the present proceedings along with the F.I.R. registered pursuant

to the directions of Addl. C.M.M. and criminal proceedings ensuing

therefrom.

4) Mr. Bhavin Jain learned counsel appears for the Applicant and

Mr. Pramod Makharia, the Respondent No. 2/first informant appears in-

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person. Smt. M. H. Mhatre, learned A.P.P. represents the State.

5) Mr. Jain submitted that, the Consent Terms dated 5 th December

2007 filed in Suit No. 2723 of 2007 in this Court indicate that, the disputes

between the parties are settled. The Respondent No. 2 had agreed to

withdraw the complaint but on one pretext of the other has avoided to do

so which clearly reveals his intention to commit breach of said Consent

Terms. He further submitted that, the loan amount was repaid by the

Applicant himself out of the proceeds of sale of a flat given to him by way

of family arrangement. Hence there is nothing to demonstrate any

misappropriation of amount, as alleged. He further submits that, the

Respondent No. 2 approached this Court by way of Judges Orders and

Chamber of Summons to extend liabilities under the Consent Terms after

the Applicant made an Application before the Addl. C.M.M. seeking a

direction to compound the case. Mr. Jain thus submits that, it is Mr.

Pramod Makharia, i.e. the Respondent No. 2 who has committed breach of

undertaking given in the Consent Terms and continuing with the

prosecution, is nothing but abuse of process of law. He thus urges the Court

to quash the criminal proceedings.

6) The Respondent No. 2, Mr. Pramod Makharia relying on his

Affidavits-in-Reply filed to the Application at the very outset submitted that,

it is the Applicant who failed to comply with his obligation under the

Consent Terms and has not paid an amount of Rs. 30,00,000/- in full

Gitalaxmi 1-appln-3519-2010-J.doc

settlement of the claims. He points to clause no. 10 of the Consent Terms

dated 5th December 2007 executed by and between him and other family

members including the present Applicant. The Respondent No. 2 submitted

that, it is only after his claim was settled that he was to withdraw the

criminal proceedings.

6.1) The Respondent No. 2 contends that, the Applicant is misusing

the Consent Terms and even after lapse of 12 years, only with an intention

to avoid making payment of the amount as agreed by him in the same. He

submits that, the F.I.R. discloses the commission of a cognizable offense and

hence the Application be dismissed.

7) We have heard the parties herein and perused the record with

their assistance. It appears that, there is a family arrangement arrived at by

and between the parties followed by Consent Terms executed inter se. The

Applicant herein failed to act in aid of the Consent Terms resulting in the

Respondent No. 2 refusing to compound the offense before the trial Court.

The Addl. C.M.M. is well within his jurisdiction in refusing to direct

Respondent No. 2 to compound the offense in the proceedings initiated by

him. There is no provision in law which vests authority in a Court to direct

a complainant to withdraw his complaint by compounding the offenses

alleged. Section 320(2) of the Criminal Procedure Code specifies offenses

that may be compounded by the persons mentioned in the provision with

the permission of the Court. The offense of criminal breach of trust as

Gitalaxmi 1-appln-3519-2010-J.doc

alleged in the present proceedings can be compounded only by the owner

of the property in respect of which the breach of trust has been committed

and that too with the permission of the Court. It is clear that 'permission' of

the Court cannot be construed as 'direction' by the Court. An offense as

specified in Section 320 of the Code may be compounded only with the

consent of parties. Hence there is no illegality in the order passed by the

Addl. C.M.M. that is impugned herein.

8) As regards the challenge to the F.I.R. and the ensuing criminal

proceedings are concerned, allegations made in the F.I.R. are specific. The

Consent Terms executed by and between the parties further reinforce the

allegations in the F.I.R. since the Applicant himself agreed to discharge the

claims of the N.K.G.S.B. Bank and obtain NO dues certificate in respect

thereof. Further the liability to settle the claims of Mr. Mansingka and Mr.

Gaurav Gupta and to refund the deposit of M/s. Asian Air Travels is also

undertaken by the Applicant. The Applicant has also agreed to pay an

amount of Rs. 30,00,000/- to the Respondent No. 2 which he has failed to

pay as yet. The allegations in the F.I.R. are on the same lines noting the

alleged breach of the settlement terms. Thus, the allegations made by Mr.

Pramod Makharia, i.e. the Respondent No. 2 herein in the F.I.R. inspire

confidence. Prima facie the F.I.R. discloses commission of cognizable

offenses as alleged. The argument canvassed by the Applicant simply raise

his probable defense to the proceedings, which the High Court must not

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examine in its inherent jurisdiction under Section 482 of the Code.

Furthermore, both the parties have a grievance against the other regarding

non-compliance of the Consent Terms. In these circumstances, the High

Court in its inherent jurisdiction cannot delve in evaluating evidence and

submission of the parties to project their respective case. The High Court is

not expected to conduct a mini trial at this stage.

9) The Supreme Court in its decision in the case of State

Represented by the Inspector of Police Vs. M. Maridoss and Another 1 has

held as follows :

"The scope and ambiguity of powers to be exercised under Section 482 of Cr.P.C. has been elaborately dealt with and considered by this Court in the case of M/s. Neeharika Infrastructure Pvt. Ltd. Vs. The State of Maharashtra and Others 2. In paragraph no. 13 of M/s. Neeharika Infrastructure Pvt. Ltd. (supra), it is observed and held as under :

From the aforesaid decisions of this Court, right from the decision of the Privy Council in the case of King Emperor Vs. Khawaja Nazir Ahmad3, the following principles of law emerge :

i) Police has the statutory right and duty under the relevant provisions of the Code of Criminal Procedure contained in Chapter XIV of the Code to investigate into cognizable offenses;

ii) Courts would not thwart any investigation into the cognizable offenses;

iii) However, in cases where no cognizable offense or offense of

1. (2023)4 SCC 338.

2. (2021)19 SCC 401.

3. 1944 SCC OnLine PC 29.

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any kind is disclosed in the first information report the Court will not permit an investigation to go on;

iv) The power of quashing should be exercised sparingly with circumspection, in the 'rarest of rare cases'. (The rarest of rare cases standard in its application for quashing under Section 482 of Cr.P.C. is not to be confused with the norm which has been formulated in the context of the death penalty, as explained previously by this Court);

v) While examining an F.I.R./complaint, quashing of which is sought, the court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the F.I.R./complaint;

vi) Criminal proceedings ought not to be scuttled at the initial stage;

vii) Quashing of a complaint/F.I.R. should be an exception and a rarity than an ordinary rule;

viii) Ordinarily, the courts are barred from usurping the jurisdiction of the police, since the two organs of the State operate in two specific spheres of activities. The inherent power of the court is, however, recognized to secure the ends of justice or prevent the above of the process by Section 482 of Cr.P.C.

ix) The functions of the judiciary and the police are complementary, not overlapping;

x) Save in exceptional cases where non-interference would result in miscarriage of justice, the Court and the judicial process should not interfere at the stage of investigation of offenses;

xi) Extraordinary and inherent powers of the Court do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice;

  Gitalaxmi                                                 1-appln-3519-2010-J.doc

   xii)      The first information report is not an encyclopedia which must

disclose all facts and details relating to the offense reported. Therefore, when the investigation by the police is in progress, the court should not go into the merits of the allegations in the F.I.R. Police must be permitted to complete the investigation. It would be premature to pronounce the conclusion based on hazy facts that the complaint/F.I.R. does not deserve to be investigated or that it amounts to abuse of process of law. During or after investigation, if the investigating officer finds that there is no substance in the application made by the complainant, the investigating officer may file an appropriate report/summary before the learned Magistrate which may be considered by the learned Magistrate in accordance with the known procedure;

xiii) The power under Section 482 of Cr.P.C. is very wide, but conferment of wide power requires the court to be cautious. It casts an onerous and more diligent duty on the Court;

xiv) However, at the same time, the Court, if it thinks fit, regard being had to the parameters of quashing and the self-restraint imposed by law, more particularly the parameters laid down by this Court in the cases of R. P. Kapur Vs. State of Punjab 4 and State of Haryana Vs. Bhajan Lal5, has the jurisdiction to quash the F.I.R./complaint and

xv) When a prayer for quashing the F.I.R. is made by the alleged accused, the Court when it exercises the power under Section 482 of Cr.P.C., only has to consider whether or not the allegations in the F.I.R. disclose the commission of a cognizable

4. 1960 SCC OnLine SC 21.

5. 1992 Supp(1) SCC 335.

Gitalaxmi 1-appln-3519-2010-J.doc

offense and is not required to consider on merits whether the allegations make out a cognizable offense or not and the court has to permit the investigating agency/police to investigate the allegations in the F.I.R."

9.1) Even otherwise, it is a settled position of law that while

exercising powers under Section 482 of Cr.P.C., the High Court is not

required to conduct the mini trial. What is required to be considered at that

stage is the nature of accusations and allegations in the F.I.R. and whether

the averments/allegations in the F.I.R. prima facie discloses the commission

of the cognizable offense or not.

10) Thus, the entire arguments advanced by the Applicant pertain

to his possible defense which this Court is not bound to examine while

entertaining a quashing application. The allegations in the F.I.R. prima

facie corroborate the contents of the Consent Terms executed by and

between the parties. It is also evident that the Applicant has failed to

comply with the terms and thus cannot compel Mr. Pramod Makharia, i.e.

the Respondent No. 2 herein to withdraw the complaint. In any case that

ship has sailed. The matter has proceeded and the police have filed the

Final Report as well. In these circumstances, we are not inclined to quash

either the criminal proceedings or the Order dated 2 nd September 2009

passed by the Addl. C.M.M., 40th Court, Girgaon, Mumbai, rejecting the

application filed by the Applicant seeking direction to the complainant to

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compound the case.

11) The Application is thus dismissed. Rule is accordingly

discharged. Since the Final Report is already filed before the Addl. C.M.M.,

the trial Court is requested to expedite the proceedings.

                        (DR. NEELA GOKHALE, J.)                (A. S. GADKARI, J.)



GITALAXMI   KRISHNA
KRISHNA     KOTAWADEKAR
KOTAWADEKAR Date:
            2024.09.23
            15:59:15 +0530