Manoj Vrajlal Trivedi vs State Of Gujarat
2021 Latest Caselaw 15353 Guj

  R/CR.MA/10491/2020                               IA ORDER DATED: 30/09/2021




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

         CRIMINAL MISC.APPLICATION (RECALL) NO. 1 of 2021
          In R/CRIMINAL MISC.APPLICATION NO. 10491 of 2020
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PARAL HASMUKH SHAH Versus STATE OF GUJARAT ========================================================== Appearance:

for the PETITIONER(s) No. MR HARDIK H PANDIT for the PETITIONER(s) No. ARJUN R SHETH for the RESPONDENT(s) No. MS MONALI BHATT, APP for the RESPONDENT(s) No. ==========================================================

CORAM:HONOURABLE MS. JUSTICE GITA GOPI

Date : 30/09/2021

IA ORDER

1. The applicants has come before this Court with a prayer to recall the order dated 31.07.2020 and to restore the original petition on its original status. On 31.07.2020, this Court in Criminal Misc. Application No.10491 of 2020 had examined the settlement of the complainant and had observed as under:

"3. Mr. Arjun Sheth, learned advocate for the applicants, submitted that there has been settlement with the complainant - Paral Hasmukh Shah. Initially, the FIR was registered under sections 120B, 403 and 468 of the Indian Penal Code; however, at a subsequent stage, sections 467 and 471 IPC came to be added, and the issue was regarding the fact that the complainant and his wife had applied for a housing loan with Federal Bank through the applicants for a total sum of Rs.84,00,000/- in around February, 2019, for buying plot of land and building house on the same, in a housing scheme. Thereafter, bank paid Rs.46,50,000/- to the person selling the plot of land Mr. Mukesh Patel and Rs.38,50,000/- to the accused no.1-

R/CR.MA/10491/2020 IA ORDER DATED: 30/09/2021

Anilkumar Dolatbhai Nikam, who had executed some work for the complainant in relation to the house pursuant to a work agreement. The complainant came to know about work agreement in the April, 2019 and thus found that payment by the bank to Anilkumar Dolatbhai Nikam-accused no.1 was illegal and the work agreement was a forged document and hence, the present FIR. Mr. Arjun Sheth, further submitted that sections 467 and 471 of the IPC came to be added in the FIR but there is no such allegations in the FIR of any elements of sections 467 and 471 of the IPC against the present applicant. The parties have preferred to compromise and therefore, a settlement affidavit has been executed by and between the applicants and the complainant. Therefore, there remains no dispute or grievance between the parties. Learned advocate, therefore, submitted that the Court may even verify the said aspect from the complainant himself through video conferencing.

4. Considering the facts of the case, under instructions, a link was sent to learned advocate Mr. Rathin Raval, at whose Office the complainant was reported to be present. The virtual Court verified the contents of the compromise with complainant -Paral Hasmukh Shah i.e. respondent no.2 and he affirmed about the execution of said settlement affidavit before the Notary. He also admitted that he has no grievance against the applicants and has consented to the quashment of the first information report filed by him. Since the parties have settled the dispute and the complainant has also affirmed about its execution on verification, the settlement affidavit is taken on record.

9. Admittedly, the dispute is a private and personal affair. The parties have arrived at the settlement. Thus, in view of the settlement arrived at between the parties, there exists no scope for any further proceeding in the matter. The continuance of proceedings would lead to wastage of precious judicial time as there would remain no possibility of any conviction in the

R/CR.MA/10491/2020 IA ORDER DATED: 30/09/2021

case. Hence, the Court is of the opinion that this is a fit case where the inherent powers of the Court under section 482 of the Cr.P.C. Could be exercised for securing the ends of justice.

10. In the result, the petition is allowed qua present applicants being accused nos.2 and 3. The first information report bearing I-C.R. No.11191036200585 of 2020 registered with Navrangpura Police Station, Ahmedabad and the proceedings initiated in pursuance thereof are quashed and set aside. Rule is made absolute.

11. As the FIR and proceedings qua present applicants accused nos.2 and 3, has been quashed and set aside, present applicants being accused nos.2 and 3 are ordered to be released from the jail forthwith."

2. The said order is prayed to be recalled on the ground that after the lodging of the FIR, it is stated that the accused approached the applicant for settlement by way of returning the amount, which was wrongly transferred and later withdrawn by them. Applicant keeping trust on them had agreed to amicably settle and therefore it is stated that the accused approached this Court by way of a Criminal Application No.10491 of 2020 and gave assurance that the amount will be given back to the applicant, hence the applicant in good faith filed the affidavit stating that the issue is mutually settled and also recorded the settlement before this Court and has stated that after perusing affidavit and recording the settlement, the FIR came to be quashed by order dated 31.07.2020.

3. Thus, to the contentions and averments raised by the applicant, the order dated 31.07.2020 was passed only after recording his statement and verification of this Court of the mutual settlement

R/CR.MA/10491/2020 IA ORDER DATED: 30/09/2021

between the parties. Now the applicant has come up saying that in spite of several requests to the accused they have not returned the amount to the applicant and on that ground has prayed for recalling the order.

4. Mr.Sudhir Nanavati, learned senior advocate assisted by learned advocate Mr. Arjun Sheth has relied on judgment in case of Hardev Singh Vs. Harpreet Kaur and Ors. decided on 07.11.2019 in Criminal Appeal No.1331 of 2013, to contend that the High Court would have no power under Section 482 of the Criminal Procedure Code, 1973, to recall its own order. There is no quarrel of that proposition, the order dated 31.07.2020 was on the settlement between the complainant and accused, this Court had verified from the complainant and he had affirmed about the settlement between them and has stated that the dispute between them has been resolved.

5. This Court has no reason to interfere in its own order, where after following the due process the settlement of the parties was recorded and on the basis of the settlement the FIR came to be quashed.

6. This Court would have no power under Section 482 of the Criminal Procedure Code to recall its own order, thus the present application to recall is rejected.

(GITA GOPI,J) URIL RANA