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2017 DIGILAW 1463 (GUJ)

Nileshbhai Jitubhai Patel v. State of Gujarat

2017-09-01

A.G.URAIZEE

body2017
JUDGMENT : A.G. URAIZEE, J. Draft amendment is allowed. The same shall be carried out forthwith. 2. Rule returnable forthwith. Mr. J.K Shah, learned APP waives service of notice of rule on behalf of the respondent No. 1 and Mr. Mousam R. Yagnik, learned advocate waives service of notice of rule on behalf of the respondent No. 2. 3. In view of the fact that the applicant and the respondent No. 2 who happens to be husband and wive respectively, have settled their dispute amicably outside the Court and with the consent of learned advocates appearing for the parties, the present application is taken up for final disposal today. 4. The applicant has preferred the present application under Section 482 of the Code of Criminal Procedure, 1974 (hereinafter referred to as “the Code” for short) wherein, following prayers are made:— “(A) be pleased to call for the Record and Proceedings of FIR registered at J.P Road Police Station, Vadodara bearing CR No. I-116 of 2013 for the offences punishable under Sections 406, 420, 465, 467, 468 and 471 of Indian Penal Code at Annexures-A and B to the petition and after perusing legality and validity of the same, be pleased to quash and set aside the same; (AA) Be pleased to quash and set aside the Charge-sheet filed by the Police Inspector JP Road Police Station, Vadodara along with all further proceedings at Annexure-E to the petition and further also to quash & set aside the Criminal Case No. 26520 of 2016 pending before the Hon'ble Chief Judicial Magistrate Court, Vadodara qua offences U/s 406, 420, 465, 467, 468 & 471 of Indian Penal Code 18607. (B) pending admission and final disposal of this petition, be pleased to stay further proceedings of the FIR registered at J.P Road Police Station, Vadodara bearing CR. No. I-116 of 2013 for the offences punishable under Sections 406, 420, 465, 467, 468 and 471 of Indian Penal Code at Annexure-A and B to the petition; (BB) Pending admission and final disposal of this petition, be pleased to stay further proceedings in pursuance of the Charge-sheet filed by the Police Inspector, JP Road Police Station, Vadodara at Annexure-E to the petition. (C) be pleased to award the cost of this petition; (D) be pleased to pass such other and further orders as may be deemed fit and proper.” 5. (C) be pleased to award the cost of this petition; (D) be pleased to pass such other and further orders as may be deemed fit and proper.” 5. The hearing of the present application was differed time and again upon the joint request of learned advocate for the appellant and learned advocate for the respondent No. 2 herein to enable the parties to iron out creases and arrive at an amicable solution out side the Court. 6. The applicant - Nileshbhai Jitubhai Patel, and the respondent No. 2 - Nirikshaben, w/o Nileshbhai Jitubhai Patel, are present in person before the Court. They jointly submitted that they have threshed out their differences and have settled their dispute out side the Court. The applicant - Nileshbhai Jitubhai Patel, has tendered an affidavit-cum-undertaking, which is taken on record. It reads as under:— “1. I state that I stick to the terms and conditions of the agreement dated 15/11/2013 arrived at between myself and my former wife i.e. respondent No. 2 herein in H.M.P No. 711 of 2013 filed before the Honourable Family Court, Vadodara for minor modification here as under. 2. I submit that I was agreed to put fixed deposit of Rs. 50,00,000/- for our children i.e. Natasha and Megh each. I have initially put fixed deposit of Rs. 50,00,000/- with the HDFC Bank in the name of our children, but as on fixed deposit in the name of our children, I have to pay income tax from my personal income in addition and therefore, I have invested whatever amount was due on the date of its maturity in mutual fund which is tax free. Copy of the investment made in mutual fund is appended hereto and marked as Annexure-I Collectively to this affidavit-um-undertaking. 3. I undertake that I will never withdraw the amount/investment made in the name of Natasha and Megh in future for my personal benefit but in case of necessity of gaining some more profit on investment, I shall only transfer but in the name Natasha and Megh only. I shall inform to the respondent No. 2 by providing photocopy of that reinvestment. 4. I submit that I am ready to pay Rs. I shall inform to the respondent No. 2 by providing photocopy of that reinvestment. 4. I submit that I am ready to pay Rs. 6,30,000/- by Account Payee Cheque of State of Bank of India, Urmi Society Branch, Behind Dinesh Mill, Vadodara bearing Cheque No. 136046 towards the pending yearly maintenance from 1.12.2015 to 1.8.2017 Photo Copy of the cheque is enclosed herewith and marked as Annexure-II to this affidavit-cum-undertaking. I manifest that original cheque shall be handed over to the advocate appearing for respondent No. 2 during the course of hearing of the aforesaid matter. I also submit that regarding the method of claim by respondent No. 2 for advance payment of Rs. 3,50,000/- for the next year is not agreed in the aforesaid agreement and even otherwise, I undertake to make that agreed yearly maintenance as per the aforesaid agreement dated 15.11.2013 in HMP No. 711 of 2013 filed before the Honourable Family Court, Vadodara and I also undertake to make the aforesaid payment diligently and regularly as per agreement. I also enclose herewith the copy of the agreement arrived at between the petitioner and respondent No. 2 and marked the same as Annexure-III to this affidavit-cum-undertaking. 5. Regarding the proposed new claim by respondent No. 2 of basic school fees plus tuition fees, I submit that it is to be borne and paid from the yearly maintenance of Rs. 3,50,000/- which is to be paid by me to the respondent No. 2 and it is not the part of the terms and conditions enumerated in the aforesaid agreement dated 15.11.2013 submitted before the Honourable Family Court, Vadodara in HMP Case No. 711 of 2013 at Annexure-III to the present undertaking cum affidavit. 6. I further submit and manifest that even the additional expenses of the children including private tuition and coaching in sports, documents and other essential things are to be borne by the petitioner only without any express terms and conditions and out of 30 days of a month, 14 days both children remain with the petitioner. 7. 6. I further submit and manifest that even the additional expenses of the children including private tuition and coaching in sports, documents and other essential things are to be borne by the petitioner only without any express terms and conditions and out of 30 days of a month, 14 days both children remain with the petitioner. 7. I submit that passports of the kids shall remain in the custody of the petitioner, but the petitioner undertakes that the petitioner shall handover the passports as per our mutual agreement and oral understanding with respondent No. 2 qua Diwali Vacation and Christmas Vacation and in Summer Vacation, I shall hand over passports of both children for a period of 15 days out of 30 days of summer vacation for abroad travelling but it is in conformity of providing each other all information of abroad travel and convenient to each other. 8. Regarding another proposed condition of respondent No. 2 qua liability in the company in which respondent No. 2 was also the Director, I submit that as such there is no liability of the respondent No. 2 including Tashu Impex (P.) Ltd. and in addition I again agreed and undertake that I shall comply with the agreement at Annexure-III to the present undertaking cum affidavit in respect of any liability arising out my Company.” 7. The respondent No. 2 - Nirikshaben, w/o Nileshbhai Jitubhai Patel herein has also tendered an affidavit, which is taken on record. It reads as infra:— “I, Niriksha Nilesh Patel, Hindu, Female, Aged about 42 years, Occupation: housewife, Residing at: A/46, Mathuranagri Society, Near Muktinagar, Old Padra Road, Vadodara, the complainant herein, has filed the present complaint being FIR being C.R No. I-116 OF 2013 for the offences punishable under Section 406, 420, 465, 467, 468 and 471 of the Indian Penal Code, against the accused named in the FIR. I further state on oath and solemnly affirm as under; 1. I have field the aforesaid FIR against the applicant herein at the relevant point of time but due to intervention of the respected members of the society, friend and elder family members of both side, we both parties have mutually understand and agreement is arrived between me and applicant herein in the above said F.I.R and now I don't have any grievance with him. 2. 2. I further state that as part of settlement, the petitioner herein as filed undertaking and if any of the conditions breached by the petitioner (Nilesh Patel) than the respondent herein (Niriksha Patel) will have right to reopen the present Criminal Misc. Application No. 19402 of 2013 in connection with the FIR being C.R No. I-116 of 2013 before this Hon'ble Court as well as proceedings before the Trial Court. 3. I further states that I have lodge the F.I.R at the relevant point of time but now since the petitioner herein as well as me are entered in to settlement with above stated terms of condition due to intervention of the respected members of the society, friend and elder family members of both side, as such now I intend that I have no objection if the FIR being C.R No. I-117 of 2013 for the offences punishable under Section 406, 420, 465, 467, 468 and 471 of the Indian Penal Code, is quashed filed against present applicant herein. I further say that as we are husband and wife and as part of settlement the petitioner herein is ready and willing to abide all the conditions as stated above the said dispute is settled between the parties. Will also withdraw darkhash application from this Court.” 8. The applicant as well as the respondent No. 2 have confirmed that they have amicably settled their dispute of their own volition without any duress or coercion. They both are identified by the respective learned advocates. 9. Having heard the learned advocates appearing for the respective parties, considering the facts and circumstances arising out of the present application as well as taking into consideration the decisions rendered in the cases of Gian Singh v. State of Punjab, reported in (2012) 10 SCC 303 , Madan Mohan Abbot v. State of Punjab, reported in (2008) 4 SCC 582 , Nikhil Merchant v. Central Bureau of Investigation, reported in 2009 (1) GLH 31 , Manoj Sharma v. State, reported in 2009 (1) GLH 190 and Narinder Singh v. State of Punjab, reported in 2014 (2) Crime 67 (SC), it appears that further continuation of criminal proceedings in relation to the impugned FIR against the applicant would be unnecessary harassment to the applicant. It appears that the trial would be futile and further continuance of the proceedings pursuant to the impugned FIR would amount to abuse of process of law and hence, to secure the ends of justice, the impugned FIR is required to be quashed and set aside in exercise of powers conferred under Section 482 of the Code. 10. In view of the foregoing reasons, the present application is therefore allowed and the impugned FIR bearing C.R No. I-116 of 2013 registered at J.P Road Police Station, Vadodara against the present applicant as also all proceedings of fIr being Criminal Case No. 26520 of 2016 pending before the learned Chief Judicial Magistrate, Vadodara are quashed and set aside. Rule is made absolute, however, without costs.