Smt Surbhi Kothari vs The State Of Madhya Pradesh
2021 Latest Caselaw 6768 MP

                                                   HIGH COURT OF MADHYA PRADESH
                                            1                                                      MCRC No.45847/2020

                                                                MCRC No.45847/2020
                                                       (Smt. Surbhi Kothari Vs. State of M.P. & Anr.)
                                            Indore, Dated : 25.10.2021
                                                   Shri Jagdish Baheti, learned counsel for the petitioner.

                                                   Shri Sameer Verma, learned PL for the respondent/State.

Submissions were made on petition filed under Section 482 of Cr.P.C. seeking to quash Crime No.718 registered in Police Station - Tukoganj, Indore on 28.12.2019 against the petitioner and all subsequent criminal proceedings against her.

The aforesaid case has been registered under the provisions of Section 420, 448, 386, 387, 506, 34, 120-B of IPC.

The prosecution story was that the complainant Anamika Rajore had purchased an apartment in Horizon Project Indore Pvt. Ltd. on 9.12.2019 from the petitioner Surbhi Kothari through Nikhil Kothari, who was the power of attorney holder and Director of Horizon Project, Indore, for a sum of Rs.24 Lakhs. Complainant Anamika had paid the entire amount to the petitioner, whose husband Nikhil Kothari offered to rent out the aforesaid apartment which was stated by him to be part of M/s Horizon Leisure Hotel Pvt. Ltd. Subsequently this apartment was rented out by the petitioner and her husband to co-accused Amit Soni and his father Jitu @ Jitendra Soni and the complainant was given an assurance that she would be paid the flat rental every month but this promise was breached and illegal possession of the apartment was acquired by the accused. On raising objection, they pressurized the complainant to sell the flat to father and son duo at a price quoted by them. The complainant and her husband were threatened that they would be implicated in false cases through call girls operating from their another building namely 'My Home' and, therefore, report could not be lodged immediately.

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However, complainant later on, has mustered courage to lodge report.

Learned counsel for the petitioner submits that there is no mention of the petitioner either in the FIR or in the 164 Cr.P.C. statements and that the complainant Anamika has already entered into compromise with the petitioner, who as such was a sleeping partner only in the enterprise of her husband Nikhil Kothari. Learned counsel has referred to a judgment of Ramgopal & Anr. Vs. The State of Madhya Pradesh [Criminal Appeal No.1489/2012] decided on 29.9.2021, in which it has been laid down that if parties have entered into compromise and the offence is not of such nature as to impinge upon the interest of public in general, then such compromise ought to be given effect to by quashing the FIR. Another judgment is that of The State of M.P. Vs. Laxmi Narayan and others [Criminal Appeal No.349/2019] decided on 5.3.2019.

Per contra, learned counsel for the State has submitted that the petitioner has remained to be an absconder and has not appeared even once before the investigating officer, that this matter involves conspiracy hatched by petitioner alongwith other co-accused persons and in case of a conspiracy, permission ought not to be granted to the complainant to withdraw against one of the conspirators because an important link in the conspiracy would not be available to the investigator, if the accusation against one of the conspirators is dropped. It has further been stated that the FIR is barely a mechanism to initiate criminal proceedings and is not an encyclopedia, that in the statements under Section 161 of Cr.P.C. of the complainant and other witnesses, the role of petitioner has been delineated showing her to be an equal participant in the conspiracy hatched by petitioner and other co-accused persons. It is submitted that the conduct of petitioner as an absconder

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rendering no assistance to the prosecution also makes her ineligible for any relief.

Considered.

The case diary and other material available on record was perused.

The matter actually involves accusations of conspiracy hatched by the petitioner and other co-accused persons. There is substance in the submission of learned counsel for the State that an offence which is based on conspiracy, giving relief to one of the accused persons, would have cascading effect on the investigation in respect of other co-accused persons. The vehicle of conspiracy would be rendered disfunctional if one of the wheels is withdrawn. It would be pertinent to draw from the order passed in the case of Ramgopal & Another (supra), specifically Para-19 which runs as under:-

"19. We thus sum-up and hold that as opposed to Section 320 Cr.P.C. where the Court is squarely guided by the compromise between the parties in respect of offences 'compoundable' within the statutory framework, the extra-ordinary power enjoined upon a High Court under Section 482 Cr.P.C. or vested in this Court under Article 142 of the Constitution, can be invoked beyond the metes and bounds of Section 320 Cr.P.C. Nonetheless, we reiterate that such powers of wide amplitude ought to be exercised carefully in the context of quashing criminal proceedings, bearing in mind: (i) Nature and effect of the offence on the conscious of the society; (ii) Seriousness of the injury, if any; (iii) Voluntary nature of compromise between the accused and the victim; & (iv) Conduct of the accused persons, prior to and after the occurrence of the purported offence and/or other relevant considerations."

The conduct of the accused persons must be considered while granting any such relief of quashment of FIR. The petitioner in this case along with her husband Nikhil Kothari have been absconding while other two co-accused persons are still in jail. This apart, there are 11 cases registered against the Signature Not VerifiedDigitally signed by SAN TRILOK SINGH SAVNER Date: 2021.10.26 10:36:24 IST HIGH COURT OF MADHYA PRADESH

petitioner along with the present case and offences registered in those cases are of equally serious nature, as the present case. Thus, the background and conduct of petitioner cannot be looked over. As per the case diary, the petitioner has been absconding since 2015 onwards.

There is substance in the submission of learned counsel for the petitioner that although the FIR and 164 Cr.P.C. statements do not contain the name of the petitioner but after recording of their FIR, in statements under Section 161 Cr.P.C. involvement of petitioner along with her husband has been very specifically narrated. The petitioner has been shown to be a Director of Horizon Leisure Hotels Pvt. Ltd. and an MOU has been executed between the petitioner and Nikhil Kothari on one hand and Amit Soni on the other hand. Against the husband of petitioner also 16 cases have been registered and husband- wife duo are at large since 2015.

In such circumstances the bonafides of petitioner are not established and for appropriate investigation of the whole conspiracy, the role of petitioner as one of the conspirators would have to be investigated, otherwise the whole prosecution case may fall flat on face in respect of other co-accused persons as well.

In view of the aforesaid, the petition under Section 482 of Cr.P.C. is not liable to be allowed. The same stands rejected.

C.C. as per rules.

(Shailendra Shukla) Judge trilok/-

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  SAN                  TRILOK SINGH
                       SAVNER
                       Date: 2021.10.26
                       10:36:24 IST