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2022 DIGILAW 1370 (BOM)

Bindu Sundeep Shah v. State Of Maharashtra

2022-05-17

ANIL L.PANSARE

body2022
JUDGMENT anil L. Pansare, J. - Leave to amend prayer clause to the extent that the case pending on the file of learned 51st Metropolitan Magistrate Court at Kurla, Mumbai be replaced by learned 30th Metropolitan Magistrate Court at Kurla, Mumbai. 2 Heard Mr. Dabke,learned Counsel for the applicants, Ms. Mhatre, learned aPP for the Respondent-State and Mr. Sorankar, learned Counsel for Respondent Nos.4 to 7. 3 Rule. Rule made returnable forthwith. Heard finally by consent of the learned Counsel for the parties. 4 The application has been circulated before the Vacation bench on the ground that, the matter has now been settled between the parties and one of the parties is likely to travel to Germany. 5 By the present application, the applicants are seeking to quash Criminal case being CC No.5100450/PW/2008 arising out of MECR No.2 of 2005 registered with Respondent No.2 Matunga Police Station. The applicants have been arraigned in Criminal Case No. 5100450/PW/2008 which is now pending before the learned 30th Metropolitan Magistrate Court at Kurla, Mumbai. The applicants have been charge sheeted for the offences punishable under Sections 406, 420, 465, 467, 471 read with 34 of Indian Penal Code. 6 according to the applicants, one Mr. Premchand Virpar Chandariya (since deceased) has filed private complaint on 13th april, april, 2005 against his relatives who are applicants before this Court. The learned 45th Metropolitan Magistrate Court at Kurla before whom the private complaint was filed under Sections 406, 420, 465, 467, 471 read with 34 of Indian Penal Code, was pleased to pass order under Section 156 (3) of Code of Criminal Procedure, directing the Matunga Police Station to investigate the matter. accordingly, MECR No.2 of 2005 came to be registered by Matunga Police Station on 13th September, 2005. 7 The route cause of the dispute is execution of power of attorney dated 19th March, 1997 by Mr. Premchand V. Chandariya (Original Complainant ) in favour of Pravin Premchand Shah (applicant No.4.). The said power of attorney was in respect of immovable properties situated in the State of Gujarat. The basic grievance of the complainant Premchand V. Chandariya was that he was in need of financial help. applicant No.4 showd willingness to extend the same. The Special Power of attorney was then executed by the complainant in favour of applicant No.4 in respect of properties situated at Jamnagar, Gujarat but towards security. The basic grievance of the complainant Premchand V. Chandariya was that he was in need of financial help. applicant No.4 showd willingness to extend the same. The Special Power of attorney was then executed by the complainant in favour of applicant No.4 in respect of properties situated at Jamnagar, Gujarat but towards security. However, applicant No.4 did not extend the financial help of Rs.1 Crores as promised but converted the Special Power of attorney into a General Power of attorney by fabricating the documents and made an attempt to grab the properties belonging to the complainant. 8 This led to multiple dispute between the parties. Civil Suits were filed during the period from the years 2001 to 2015 before different Courts in the State of Gujarat. The complainant expired on 28th July, 2011, leaving behind his legal heirs/ representatives who are Respondent Nos. 4 to 7 herein. The applicants abeing CC No.5100450/PW/2008 arising out of MECR No.2 of 2005 registered with Respondent No.2 Matunga Police Station.nd the Respondent Nos.4 to 7 have now decided to work out the matter. The disputes have been amicably settled between the parties. The necessary pursis to that effect has been filed before the learned Courts. 9 In view of the settlement arrived at between the parties and the dispute having been private in nature, not affecting the society at large, the applicants have approached this Court for quashing of Criminal Case No.5100450/PW/2005 arising out of MECR No.2 of 2005 registered with Respondent No.2, which was pending before the 51st Metropolitan Magistrate Court at Kurla (now pending before the learned 30th Metropolitan Magistrate Court at Kurla, Mumbai). 10 Heard both the sides. We have interacted with the parties present before the Court, though all were not present. They have submitted that the disputes have been amicably settled between the parties. The Civil Suits have been withdrawn. The learned Counsel for the parties would also submit that the parties have decided to put to rest the prolonged litigations and to live the peaceful life. 11 The applicants have relied upon the judgment of the apex Court in the case of (i) Gian Singh v/s. State of Punjab 2012 (10)SCC 303 , Narinder Singh v/s. State of Punjab 2014 (6) SCC 466 and Madan Mohan abbot v/s. State of Punjab (2008) 4 SCC 582 . 11 The applicants have relied upon the judgment of the apex Court in the case of (i) Gian Singh v/s. State of Punjab 2012 (10)SCC 303 , Narinder Singh v/s. State of Punjab 2014 (6) SCC 466 and Madan Mohan abbot v/s. State of Punjab (2008) 4 SCC 582 . The law on the above point has been recently summarized by the Hon'ble apex Court in the case of State of Madhya Pradesh v/s. Laxmi Narayan and Others (Criminal appeal No.349 of 2019). The Judgments referred to by the applicants have been duly considered and the Court has held in paragraph 13 as under:- i) that the power conferred under Section 482 of the Code to quash the criminal proceedings for the non-compoundable offences under Section 320 of the Code can be exercised having overwhelmingly and predominantly the civil character, particularly those arising out of commercial transactions or arising out of matrimonial relationship or family disputes and when the parties have resolved the entire dispute amongst themselves; ii) such power is not to be exercised in those prosecutions which involved heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. Such offences are not private in nature and have a serious impact on society; iii) similarly, such power is not to be exercised for the offences under the special statutes like Prevention of Corruption act or the offences committed by public servants while working in that capacity are not to be quashed merely on the basis of compromise between the victim and the offender; iv) offences under Section 307 IPC and the arms act etc. would fall in the category of heinous and serious offences and therefore are to be treated as crime against the society and not against the individual alone, and therefore, the criminal proceedings for the offence under Section 307 IPC and/or the arms act etc. which have a serious impact on the society cannot be qubeing CC No.5100450/PW/2008 arising out of MECR No.2 of 2005 registered with Respondent No.2 Matunga Police Station.ashed in exercise of powers under Section 482 of the Code, on the ground that the parties have resolved their entire dispute amongst themselves. However, the High Court would not rest its decision merely because there is a mention of Section 307 IPC in the FIR or the charge is framed under this provision. However, the High Court would not rest its decision merely because there is a mention of Section 307 IPC in the FIR or the charge is framed under this provision. It would be open to the High Court to examine as to whether incorporation of Section 307 IPC is there for the sake of it or the prosecution has collected sufficient evidence, which if proved, would lead to framing the charge under Section 307 IPC. For this purpose, it would be open to the High Court to go by the nature of injury sustained, whether such injury is inflicted on the vital/delegate parts of the body, nature of weapons used etc. However, such an exercise by the High Court would be permissible only after the evidence is collected after investigation and the charge sheet is filed/charge is framed and/or during the trial. Such exercise is not permissible when the matter is still under investigation. Therefore, the ultimate conclusion in paragraphs 29.6 and 29.7 of the decision of this Court in the case of Narinder Singh (supra) should be read harmoniously and to be read as a whole and in the circumstances stated hereinabove; v) while exercising the power under Section 482 of the Code to quash the criminal proceedings in respect of non-compoundable offences, which are private in nature and do not have a serious impart on society, on the ground that there is a settlement/ compromise between the victim and the offender, the High Court is required to consider the antecedents of the accused; the conduct of the accused, namely, whether the accused was absconding and why he was absconding, how he had managed with the complainant to enter into a compromise etc.' 12 Having considered the material placed before us in the backdrop of the above ruling and having heard both the sides, it is quiet obvious that the present dispute is within the family members. The dispute is private in nature and has no serious impact on the society though the element of cheating and forgery is involved. The parties intend to put to rest the disputes and difficulties that arose out of execution of Power of attorney and to live peaceful life henceforth. The Respondent No.1 State of Maharashtra has not placed on record any material to show that the Petitioners have any criminal antecedents. The settlement arrived at between the parties appears to be genuine. The parties intend to put to rest the disputes and difficulties that arose out of execution of Power of attorney and to live peaceful life henceforth. The Respondent No.1 State of Maharashtra has not placed on record any material to show that the Petitioners have any criminal antecedents. The settlement arrived at between the parties appears to be genuine. In the circumstances, it would be in the interest of justice that the settlement arrived at between the parties, is given effect to. 13 at the same time, cost is required to be saddled on the Petitioners and the Respondent No.2 for using the police and judicial mechanism for settling their personal disputes. 14 accordingly and taking aid of the judgment in the case of State of Madhya Pradesh (supra), we proceed to pass the following order:- (i) The Criminal Case being CC No.5100450/PW/2008 arising out of MECR No.2 of 2005 registered with Respondent No.2 Matunga Police Station for the offences punishable under Sections 406, 420, 465, 467, 471 read with 34 of Indian Penal Code, is hereby quashed and set aside, subject to cost as follows. (ii) The applicants and Respondent Nos.4 to 7 shall pay costs of Rs.50,000/- (Rupees Fifty thousand only) proportionately to Mumbai Police Welfare Fund. Receipt thereof by produced before the Court within four weeks from today. (iii) The application is disposed off in terms of above.