The court dismissed a writ petition challenging an order setting aside a criminal process. The High Court held that initiating criminal proceedings after parties reached an amicable settlement in civil court, evidenced by a consent decree, constituted an abuse of process of law.
Petition dismissed on the ground of abuse of process of law.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 524 OF 2014
Mr. Pramod Makharia ) 60 years, residing at 5/27, Sagarkunj, 78, ) Neapeansea Road, Mumbai 400 006. )..Petitioner.
vs.
| 1. | Mr. Dhruvkumar Makharia residing at 1stfloor, Firdous Building, “D” Road, Marine Drive, Mumbai 400 020. |
) ) ) ) |
|---|---|---|
| 2. | Mrs.Vandana Makharia | ) |
| 3. | Mr. Laxmikant Makharia | ) |
| 4. | Mrs. Laxmidevi Makharia | ) |
| Respondent No. 2 to 4 residing at | ) | |
| A-2/22, Elite Garden, D.P. Road, | ) | |
| Anudh Road, Pune. | ) | |
| 5. | The State of Maharashtra | ).. Respondents. |
Mr. Sandeep Velkar a/w Ms. Reshma Kurle,Advocate for the Mr. H.H.Nagi a/w Chaula Solanki i/b. H.H.Nagi & Associates for respondent No.1.
Ms. V.S.Mhaispurkar, APP, for the State.
CORAM: SMT.SADHANA S.JAHAV,J. DATE : 22nd September, 2015.
JUDGMENT:
The petitioner herein happens to be the original complainant in
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C.C. No.554/SW/2012, which was filed in the Court of Metropolitan Magistrate, 66th Court, Andheri, Mumbai. The petitioner herein was seeking a direction under Section 156(3) of Cr.P.C. against the accused. The allegation levelled by the complainant was that he happens to be the real brother of the original accused Nos. 1 to 3, who are respondent Nos. 1 to 3 in the present petition. Respondent No.4 happens to be the mother of the petitioner and also the mother of respondent Nos. 1 to 3.
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petitioner, the plot was purchased from the funds of M/s. Makson Auto Hirers and Metro Tours and Travels. In 1991, Energy Bakery & Foods was converted into a private limited firm. The petitioner and respondent Nos. 1, 2 and 4 and one Mr. Jhunjhunwala had shares in the said private firm. According to the complainant, that without holding a meeting of the partners / directors, the respondent Nos. 1 to 4 had made correspondence with various authorities on the letter-head of the company in the year 2006.
4. It is further alleged that the respondent Nos. 1 to 4 had sold the development rights of the said plot to M/s. Dilip Estate and Town Planners Pvt.Ltd. Vide agreement dated 30.11.2006, they had received payment of Rs.97,26,000/- and Rs.23,03,868/- According to the petitioner, although the respondents were fully aware that the sources for purchasing the said plot
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and for forming the company had floated from the family business, it was incumbent upon them to obtain the consent of petitioner as he had reserved his share. He had therefore, filed a complaint against the respondents in 66th Court of Metropolitan Magistrate at Andheri seeking investigation under Section 156(3) of Cr.P.C.
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material facts. Material facts were that the complainant had filed Suit No.2723 of 2007 against the respondents with Notice of Motion No.3944 of 2007 in the High Court of Judicature at Bombay. On 5.12.2007, this Court (Coram: Dr. D.Y.Chandrachud, J.) had passed an order by taking on record the consent terms signed between the parties and their Advocates. The same was marked as “X”. Both the parties had informed the Court that the parties have arrived at an amicable settlement. A draft amendment was tendered before the Court. Both the parties had agreed to the contents of the draft amendment and hence the amendment was allowed. A decree was drawn in terms of the consent terms. At the request of the respective counsel, the Court had recorded that the payment has been made in pursuance of the consent terms by the 2nd defendant to the plaintiff. The suit was settled and accordingly the Notice of Motion was disposed of.
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terms. The plaintiff had also consented and agreed to co-operate in getting the name of Energy & Bakery Foods (India) Pvt.Ltd. deleted from the official documents.
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proceeding before the Hon'ble High Court. No doubt, the complaint suffers from suppression of facts. It appears that the petitioner had a change of attitude after 5 years of decree being drawn pursuant to the consent terms and, therefore, had initiated criminal prosecution. The judgment in a civil proceeding would be a judgment in rem and a judgment in criminal proceeding would be a judgment in personam. Consent Decree was drawn. In the case of R attinavel Chettiar vs. V. Sivaraman reported in (1999) 4 SCC 89 , the Hon'ble Apex Court has held – “A decree has to have the following 3 essential elements (1) there must have been an adjudication in a suit, (2) the adjudication must have determined the rights of the parties in respect of, or any of the matters in controversy and (3) such determination must be a conclusive determination resulting in formal expression of the adjudication. Once the matter in controversy has received judicial determination, the suit results in a decree either in favour of the plaintiff or the defendant.”
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business. The continuance of the present proceedings in the criminal complaint would be an abuse of process of law. The decree-holders in civil
suit would have to go through an ordeal of criminal proceedings for no good reason.
Petition stands dismissed.
(SMT.SADHANA S.JADHAV, J.)
2 issues framed by the court
Whether initiation of criminal prosecution after a consent decree settling civil disputes amounts to abuse of process of law.
Whether proceedings should continue when there is suppression of facts regarding a judicial determination of rights.
Colour shows how this judgement treated each authority
Rattinavel Chettiar vs. V. SivaramanReferred¶31
(1999) 4 SCC 89 · Who else cites this
Mr. Pramod Makharia
Mr. Dhruvkumar Makharia
Mrs. Vandana Makharia
Mr. Laxmikant Makharia
Mrs. Laxmidevi Makharia
The State of Maharashtra
Sadhana S. Jadhav
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
