Allowed

Ajay Fakirchand Gandhi and Anr. v. the State of Maharashtra and Anr.

Bombay HC15 Jun 2021WP/212/2021

Case brief

AI extract

What is this about?

This order quashes an FIR and criminal proceeding involving cheating and criminal breach of trust arising from commercial diamond transactions due to an amicable settlement between the parties. The court relied on Supreme Court precedent to find that continuation of proceedings would be an exercise in futility.

What did the court decide?

The rule was made returnable forthwith, absolute, quashing the FIR C.R.No.106/2019 and the proceedings arising therefrom.

Ajay Fakirchand Gandhi and Anr. Vs the State… — Contract and Commercial Disputes | Bombay HC (2021)

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3.WP.212.2021.doc

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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CRIMINAL APPELLATE JURISDICTION

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CRIMINAL WRIT PETITION NO.212 OF 2021

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1.	Ajay Fakirchand Gandhi	}
	Age 67 Years, Occ : Business	}
	Residing at Khatau House, 5^thFloor 15/1, Jamanadas Mehta Road,	} }
	Near Shripal Nagar, Malabar Hill, Mumbai – 400 006.	} }
2.	Anshul Ajay Gandhi	}
	Hindu, adult, Occ : Business	}
	having C/o. Address as Khatau House, 5^thFloor, 15/1, Jamanadas Mehta Road,	} }
	Near Shripal Nagar, Malabar Hill, Mumbai – 400 006.	} } ….Petitioners
	Vs.
1.	The State of Maharashtra	}
	(At the instance of EOW)	}
2.	Sunil Sudhir Kothari	}
	Age : adult, Occ : Business,	}
	R/o.21, Spring Field, 19,	}
	Vaccha Gandhi Road, Gamdevi, Mumbai – 400 004.	} } ….Respondents

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Mr. Subodh Desai i/by Mr. Rohan R. Sonawane for the Petitioners.

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Mr. Niranjan Mundargi i/by Ms. Kshitija Wadatkar-Wankhede for Respondent No.2.

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Dr.F.R. Shaikh, APP for the Respondent-State.

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Aarti Palkar 1/6

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3.WP.212.2021.doc

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CORAM : PRASANNA B. VARALE & SURENDRA P. TAVADE, JJ.

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DATE : 15^th JUNE, 2021

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JUDGMENT (PER SURENDRA P. TAVADE, J.) :

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Rule. Rule made returnable forthwith with consent of the learned counsel for the parties.

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The Petitioners are facing charge u/s.409, 420 r/w.34 of IPC at the behest of Respondent No.2/Complainant in C.R.No.243/2019 registered with D.B. Marg Police Station and subsequently renumbered as C.R.No.106/2019 with Economic Ofences Wing, General Cheating – 3 Mumbai. Respondent No.2 is a Partner of Pooja Exports. The said frm is engaged in the business of manufacturing, export and imports of diamonds and other precious stones. In the month of July 2017, the Petitioners who are the erstwhile Directors of Antrix Diamond Exports Private Limited approached Respondent No.2/Complainant to buy diamonds from his frm on the credit basis.

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As per the request of Petitioners, Respondent No.2/Complainant supplied diamonds worth over Rs.33 Crores on 30 days credit to the Petitioners. However, after credit period was over the Petitioners with malafde intention willfully failed to make payment of the consideration. Hence, Respondent

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Aarti Palkar 2/6

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3.WP.212.2021.doc

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No.2/Complainant lodged FIR with D.B. Marg Police Station which was subsequently investigated by Economic Ofences Wing, General Cheating – 3 Mumbai.

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After lodging of FIR, the senior members from the diamond market and community intervened to amicably settle the disputes and diferences between the Petitioners and Respondent No.2. The Petitioners and Respondent No.2 have accordingly decided to put an end to the litigation and thus have approached this Court with prayers of quashing of the FIR by consent.

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Pursuant to the notices issued to the Respondents, Respondent No.2 appeared and fled his afdavit (Exh.B).

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It is submitted by the learned Counsel for the Petitioners and Respondent No.2 that parties have amicably settled their dispute and to that efect an afdavit has been fled by Respondent No.2.

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We have interacted with Petitioners and the learned Counsel for Respondent No.2 to ascertain whether the averments in the afdavit fled by Respondent No.2 are with his free will and without any coercion or otherwise. Learned counsel for Respondent No.2 submitted that it is voluntary act of Respondent No.2 to enter in to compromise and settle the dispute. He also submitted that Respondent No.2 has no objection to quash the FIR since Respondent No.2 have amicably settled the dispute.

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Aarti Palkar 3/6

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3.WP.212.2021.doc

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Since the dispute arose out of the business transactions and now the parties have settled their dispute, hence, there is no reason to continue the proceedings arising out of C.R.No.243/2019 registered with D.B. Marg Police Station and renumbered as C.R.No.106/2019 with Economic Ofences Wing, General Cheating – 3 Mumbai.

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In the afdavit of Respondent No.2 it is stated in paragraphs 2 & 3 thus :-

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“2. I state that subsequent to the registration of the complaint and during the pendency of the anticipatory bail application of the Petitioner No.1, certain mutual connections, elders members of the community and friends intervened into the dispute between the parties to explore a possibility of an amicable settlement. Pursuant to the mediation by mutual parties, the disputes between the Petitioners and Respondent No.2 were settled amicably.

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I state that as a frst informant I do not have any complaints or grievances against the Petitioners anymore. I further state that the disputes between myself and Petitioners have been fully and fnally settled and I have no further claims against the Petitioners of any nature whatsoever. I state that in view of the amicable settlement of disputes I further have no objection if the C.R.No.106/2019 investigated by EOW, General Cheating 3 and originally registered as C.R.No.243/2019 with D.B.Marg Police Station is quashed against the Petitioners. I state that I grant consent for quashing of the FIR being C.R.No.106/2019 investigated by EOW, General Cheating 3 and originally registered as C.R.No.243/2019 with D.B. Marg Police Station by the Orders of this Hon’ble Court.”

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It is abundantly clear that it is voluntary act of Respondent No.2 and

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Petitioners to enter into the settlement and settle the dispute. In that view of the matter, the chances of conviction would be very bleak and further

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Aarti Palkar 4/6

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3.WP.212.2021.doc

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continuation of the proceedings arising out of C.R.No.243/2019 registered with D.B. Marg Police Station and renumbered as C.R.No.106/2019 with Economic Ofences Wing, Mumbai would be an exercise in futility and wastage of valuable time of the Court.

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The Supreme Court in the case of Giansingh v. State of Punjab and Another 1 has held that, the criminal cases having overwhelmingly and predominatingly civil favour stand on a diferent footing for the purposes of quashing, particularly the ofences arising from commercial, fnancial, mercantile, civil, partnership or such like transactions or the ofence arising out of matrimony relating to dowry, etc. or the family disputes where the wrong is basically private or personal in nature and the parties have resolves their entire dispute. In this category of cases, the High Court may quash the criminal proceedings if in its view, because of the compromise between the ofender and the victim, the possibility of conviction is remote and bleak and continuation of the criminal case would put the accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal case despite full and complete settlement and compromise with the victim. It is further held that, as inherent power is of wide plenitude with no statutory limitation but it has to be exercised in accord with the guidance engrafted in such power viz.: (I) to secure the ends of justice, or (ii) to prevent abuse of the process of any court.

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1 2012 (10) SCC 303

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Aarti Palkar 5/6

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3.WP.212.2021.doc

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Keeping in view the aforesaid observations of the Supreme Court in the case of Giansingh (cited supra) to secure ends of justice and to prevent abuse of the process of any Court, we are inclined to allow this Petition in terms of prayer clause (a) & (b) of the Petition. Rule made absolute in terms of prayer clause (a) and (b).

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Accordingly, the Petition stands disposed of.

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[SURENDRA P. TAVADE, J.] [PRASANNA B. VARALE, J.]

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Aarti Palkar 6/6

Ajay Fakirchand Gandhi and Anr. v. the State of Maharashtra and Anr.

Case brief

What is this about?

What did the court decide?

Ajay Fakirchand Gandhi and Anr. v. the State of Maharashtra and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

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