Allowed

Jigesh Dilip Shah and Ors. v. the State of Maharashtra and Ors.

Bombay HC22 Mar 2021WP/443/2021

Case brief

AI extract

What is this about?

The High Court allowed a writ petition to quash criminal proceedings pending against the petitioners arising from a commercial dispute. The court relied on an amicable settlement and consent affidavit from the complainant, holding that further prosecution was unnecessary and would constitute an abuse of process.

What did the court decide?

The Writ Petition was allowed; the Criminal Case No.2800144/SW of 2019 arising out of C.R. No.353 of 2019 and all other proceedings were quashed.

Jigesh Dilip Shah and Ors. Vs the State of Maharashtra and… — Cheque Dishonour | Bombay HC (2021)

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Digitally signed Laxmikant by Laxmikant G. Chandan G. Date: Chandan 2021.03.22 15:20:48 +0530

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION

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CRIMINAL WRIT PETITION NO.443 OF 2021

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1]Jigesh Dilip Shah]
Aged : 49 years, Occ : Service ]
]
2]Kairav Dilip Shah]
Aged : Adult, Occ : Service, ]
]
Both residing at Flat No.8, ]
Tejkiran, First Floor, ]
2nd Dadi Shety Cross Lane]
Chowpatty Bandstand, ]
Mumbai – 400 007]….. Petitioners.
Versus
1]The State of Maharashtra ]
At the instance of Sr. Inspector of ]
Police, L T Marg Police Station]
Vide their C.R. No.353 of 2019]
(Corresponding M.E.C.R. No.6 of ]
2019)]
]
2]Abu Asim Azmi]
Aged : 64 years, Occ : Business ]
Residing at Sentinel House,]
Fourth Floor, H N Azmi Marg,]….. Respondents
Colaba, Mumbai ] (Orig.Complainant)

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Mr. Sudeep Pasbola i/by Mr. Karl P Rustomkhan for the Petitioners.

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Mr. J P Yagnik, APP for the Respondent No.1/State.

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Mr. Mubin Solkar a/w Mr. Zarak Khan a.w Mr. Saif Shah i/by Mr. Aamir
Sopariwala for Respondent N.2.
Respondent No.2 present in Court.

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CORAM :S. S. SHINDE,
MANISH PITALE, JJ
Reserved on :11th March 2021
Pronounced on :22nd March 2021

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JUDGMENT :- (PER S. S. SHINDE, J)

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1Rule. Rule made returnable forthwith and heard with the consent

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of the learned counsel for the parties.

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2By this Writ Petition the Petitioner seeks the following substantial

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relief :-

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“(b)This Hon’ble Court be pleased to quash and set
aside the Criminal Case No.2800144/SW of 2019
pending in the file of learned Metropolitan Magistrate,
28th Court, Esplanade, Mumbai, arising out of C.R.
No.353 of 2019 (Corresponding M.E.C.R. No.6 of 2019)
registered with L T Marg Police Station and all other
proceedings arising out of the said C. R.”

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3At the instance of the 2nd Respondent a complaint bearing C.R.
No.353 of 2019 (Corresponding M.E.C.R. No.6 of 2019) came to be lodged
against one Nasir shaikh at L T Marg Police Station, Mumbai on 20/11/2019
for the offences punishable under Sections 463, 464, 466, 468, 469, 470, 471,
473, 205, 209, 415, 416, 418, 420, 421, 424, 120-A and 465 of the Indian
Penal Code and during the course of investigation the present Petitioners came
to be implicated.

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4 It is the case of the Petitioners that one premises situated at Gala
No.14, Bake House, Chamber of Commerce Lane, Kalaghoda, Mumbai was
owned by Shah Constructions. The said Shah Constructions rented out the said

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premises to one Ramjibhai Nagad who was carrying on business in the same
premises in the name and style of Suhansa Art Printers. The said Ramjibhai
had given the said premises to M/s. Industrial Traders on leave on license
basis. The father of Petitioners viz. Dilip Surajmal Shah, and on Pravinchandra
Shah were the partners of M/s. Industrial Traders, and they started Service
Centre in the licensed premises. Later on certain disputes arose and the
licensor Ramjibhai Nagada filed civil proceedings against M/s. Industrial
Traders. Thereafter in the year 2002 the said Bake House Building was
purchased by one Nasir Jamal Shaikh and Respondent No.2 herein from its
original owner M/s. Shah constructions and thereby they became the landlords
of the said Bake House. In 2009 the Petitioners joined their father as the
partners of M/s. Industrial Traders. The father of the Petitioners expired in
April 2010. The brother of the Petitioner i.e. Petitioner No.2 herein is residing
in Bangkok, therefore, the business of M/s. Industrial Traders was being
carried out by Petitioner No.1. Thereafter the owners of the Bake House viz.
Nasir Jamal Shaikh and Respondent No.2 herein filed eviction proceedings
against the said Ramjibhai Nagada and M/s. Industrial Traders. Thereafter
Respondent No.2 herein lodged a complaint with L T Marg Police Station
against the said Nasir Jamal Shaikh for committing the offence of forgery,
impersonation, criminal breach of trust and cheating by making false
representation before the Small Causes Court. But the police did not take any
action on the same. Therefore Respondent No.2 approached the Court of the

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learned Metropolitan Magistrate, Esplanade, Mumbai interalia for taking
cognizance of the said offence. The said prayer came to be granted, and
consequently CR No.353 of 2019 came to be registered against Nasir Jamal
Shaikh.

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5It is alleged by the 2nd Respondent in the said FIR that Nasir
Shaikh and he were the partners. It is alleged that the said Nasir Shaikh was
not disclosing full and correct information to the 2nd Respondent, and carried
out various transactions behind his back and without his knowledge. One
restaurant by name Pandora Box in the Gala No.14 was run by the said Nasir
and he kept all the income earned from the said restaurant with him. It is also
alleged by the 2nd Respondent that the said Nasir Shaikh had in collusion with
Suresh Nagada and M/s. Industrial Traders filed proceedings before Small
Causes Court and submitted bogus documents by forging the signature of
Respondent No.2 and thereby cheated him to the tune of Rs.5 Crores.

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6It is submitted that upon registration of the aforesaid crime,
Petitioner No.1 preferred anticipatory bail application and interim protection
came to be granted to him. It is also submitted that the Nasir Shaikh and
Respondent No.2 were business partners. Due to some misunderstandings
certain disputes arose between them, and therefore, complaints and counter
complaints were lodged against each other. It is also submitted that the said

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misunderstanding is now resolved amicably to the satisfaction of the said Nasir
Shaikh and the Respondent No.2 herein. It is also submitted that the disputes
between the said Nasir Shaikh and the 2nd Respondent are now amicably
settled. They have entered into Consent Terms on 04/11/2020 in Commercial
Suit No.447 of 2019. The copy of the said Consent Terms is placed on record at
Exhibit B on page 52 of the writ paperbook. Under the said Consent Terms it
has been agreed between the parties that parties shall withdraw all the
allegations made against each other and also amicably withdrawn and/or get
quashed the present complaint and other criminal cases.

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7The learned counsel appearing for the Petitioners submits that,
without entering upon the merits of the case, this Court may allow this Petition
on the basis of the settlement arrived at between parties.

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8The learned counsel appearing for the 2nd Respondent submitted
that the parties have amicably settled their disputes and the Respondent No.2
does not intend to prosecute the Petitioners and therefore, the 2nd Respondent
is willing to give his consent for quashment of the impugned proceedings.

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9The 2nd Respondent was present before this Court on 11/03/2021
when the matter was heard. He was identified by his advocate. When we
interacted with him, he stated that both the parties have amicably settled the

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disputes and that they have filed consent terms in the Commercial Suit. He
further stated that he has filed his affidavit on his own will, without any
coercion or pressure. It is stated therein that he has no objection to the prayer
of the Petitioners being granted.

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10 The relevant paragraphs of the said consent terms are paragraphs
21 to 26 which for the purpose of ready reference are reproduced herein

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under:-

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“ Bake House Building

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21Shop No.14, Ground Floor, New Bake House,
Maharashtra Chamber of Commerce Lane, Fort, Mumbai
– 400023 admeasuring 1100 sq.ft. Carpet area. Plaintiff
No.1 agrees to release and transfer all his right, title and
interest in the said shop No.14 to Defendant No.1 upon
(I) the quashing of all criminal complaints mentioned
herein, and (ii) the withdrawal by Defendant No.1 of the
complaints made by him to the MCGM, BEST and other
authorities against the Plaintiffs and their various
businesses. Plaintiff No.1 shall arrange to hand over all
the documents and other court proceeding papers to
Defendant No.1 of Shop No.14 along with vacant &
peaceful possession thereof within 60 days from
execution of these Consent Terms.

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22 It is hereby agreed declared and confirmed that

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Defendant No.1 has no claims against the Plaintiffs with
respect to the following premises and the business
conducted therefrom, and accepts that he has no right,
title or interest in the same:

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1) The premises bearing No.22, on the ground floor of 16/22 Bake House, Fort, Mumbai – 4000023 in which there is currently a proposed restaurant by the name “Town Culture”

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2) The premises bearing No.24, on the ground fllor of 16/22 Bake House, Fort, Mumbai – 400 023 in which there is currently a bakery by the name “Pandora’s Box Bakery”.

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3) There premises bearing No.12, on the ground floor of “New Bake House”. Fort, Mumbai – 400023 in which there is currently a restaurant by the name “Carter’s Blue”.

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4) The office at the front part of the third floor of 12 and 16 Old & New Bake House, Fort, Mumbai – 400023.”

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23 It is hereby agreed, declared and confirmed that the Plaintiffs have no claims against Defendant No.1 with respect to the following premises and the business conducted therefrom, and respect accept that they have no right, title or interest in the same:

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(a) The said Shop No.14, Ground Floor, New Bake House, Maharashtra Chamber of Commerce Lane, Fort, Mumbai – 400023.

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(b) The premises bearing No. 16, on the ground floor of Old Bake House, Fort, Mumbai – 400023 in which there is currently a restaurant by the name “Colonial Palate.”

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(c) The premises bearing No.16, on the mezzanine floor of Old Bake House, Fort, Mumbai – 400023 in which there is currently a restaurant by the name “Colonial Palate”

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(d) The Office at the back part of the third floor of Old & New Bake House, Fort, Mumbai – 400023”

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Criminal Complaints :

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“24 It is hereby agreed, declared and confirmed that both parties and their respective family members shall initiate proceedings before appropriate courts/authorities for quashing/withdrawal of the following criminal complaint within 30 days from execution of these Consent Terms after due compliance of the Consent Terms by both parties and their family members shall not make any complaints in the future for the same facts.

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(e) Criminal Complaint No.2800144/SW/2019 filed by Defendant No.1 against Plaintiff No.1 before the Metropolitan Magistrate, 28^th Court, Esplanade, Mumbai

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(f) First Information Report bearing No.353/2019 filed in the LT Marg Police Station against Plaintiff No.1 upon the complaint of Defendant No.1.

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(g) First information Report bearing No.30/2020 filed in the Colaba Police Station against Ms. Samran (also known as Alifiya) Shaikh upon the complaint of Mrs. Shehwar Azmi.

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(h) First information Report bearing No.61/2020 filed in the Agripada Police Station against Ms. Samran Shaikh Upon the complaint of Ms. Bushra Mansuri.

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(i) First Information Report bearing No.28/2020 filed in the MRA Marg Police Station against Mohammed Amir Khan upon the complaint of Plaintiff No.2.

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(j) First Information Report bearing No.27/2020 filed in the Colaba Police Station against Rayan Shaikh, Yusuf Shaikh and Mohammed Amir Khan upon the complaint of Plaintiff No.1.

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25 The parties and their family members agree and undertake to co-operate in jointly filing appropriate proceedings in the Hon’ble Bombay Court for quashing and disposing of the above criminal proceedings as advised by the Advocates.

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26 Defendant No.1 and Plaintiff No.1 agrees and

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undertakes to withdraw all the police complaints made
by them against them and their family members and will
not make any complaint in future for the same facts.”

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11In paragraphs 1 to 5, the 2nd Respondent in his affidavit dated
08/12/20220 filed in this Writ Petition in support of the settlement, has stated

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thus :-

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“1 I state that I am a MLA and also the President of Maharashtra Samajwadi Part, and I along with one Nasir Jamal Shaikh were business partners, but due to various inter se disputes, our relations got severed.

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2I state that I had lodged a complaint against Nasir Jamal
Shaikh on 13.06.2019 and 29.06.2019 with the L T Marg
Police Station. I state that since the said complaints did
not evoke any favourable response, I had approached the
Court of learned Metropolitan Magistrate, 28th Court,
Esplanade, Mumbai, and inter alia prayed for an order
under Section 156(3) of Cr.P.C. which came to be
granted. I state that after conducting an enquiry C.R.
No.353 of 2019 (corresponding M.E.C.R. No.6 of 2019)
came to be registered with L T Marg Police Station
against Nasir Jamal Shaikh for commission of alleged
offences punishable under Section 205, 209, 415, 416,
418, 420, 421, 424, 463, 464, 465, 466, 468, 469, 470,
471, 473, 120-A of Indian Penal Code. I say that the said
case came to be numbered as Criminal Application
No.2800144/SW of 2019 and is at present pending

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before the Court of learned Metropolitan Magistrate, 28th
Court, Esplanade, Bombay.

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3 I say that during the course of investigation, the Petitioners Jigesh Dilip Shah and his brother Kairave Dilip Shah also came to be implicated. I state that after registration of the aforesaid complaint, our common acquaintance and mutual friends approached me and requested me to put an end the dispute with Nasir Jamal Shaikh I say that after deep introspection over the events and after due deliberations, I have realized that I acted in undue haste and, in a moment of anger, proceeded to lodge complaint against Nasir Jamal Shaikh.

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4 I say that since the registration of the aforesaid C. R. No.353 of 2019 (corresponding M,E,C,R No.6 of 2019) with L T Marg Police Station, I have realized that it is in our mutual welfare and interest that we put an end to this acrimony and settle the dispute amicably. I do not want to proceed with my complaint and do not intend to prosecute the Petitioners. I have no complaint, greivance or ill will against the Petitioners. I state that the Petitioners have not coerced me or unduly influenced me into executing this affidavit in any manner whatsoever, and the same is executed out of my own free will.

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5 In view of the same, I have no objection if this Hon’ble Court quashes the said Criminal Application No.2800144/SW of 2019 arising out of C.R. No.353 of

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2019 (corresponding M.E.C.R No.6 of 2019) to be
registered with L T Marg Police Station on the basis of
my complaint as well as all further proceedings arising
out of the sasid C.R. Hence this affidavit is filed.”

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12The learned counsel appearing for both the parties submit that the
said Jamal Shaikh and the Respondent No.2 herein have voluntarily agreed to
settle the dispute, which is basically commercial in nature. and there is no
coercion, undue influence or force upon them for arriving at the settlement. It
is also submitted that both the parties have amicably resolved/settled the
dispute and decided to seek quashing of Criminal Application
No.2800144/SW/2019 arising out CR No.353 of 2019 (corresponding
M.E.C.R. No.6 of 2019) registered with L T Marg Police Station.

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13The Supreme Court in the case ofGiansingh v. State of Punjab
and Another1 has held that, the criminal cases having overwhelmingly and
predominatingly civil flavour stand on a different footing for the purposes of
quashing, particularly the offences arising from commercial, financial,
mercantile, civil, partnership or such like transactions or the offence 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 offender and

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1 2012 (10) SCC 303

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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 guideline 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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14In view of settlement arrived at between the 2nd Respondent and
the said Nasir Shaikh and the consent terms referred to above filed in the
Commercial Suit and in view of the the affidavit filed by the 2nd Respondent
giving no objection for quashment of the Criminal Case No.2800144/SW of
2019 pending in the file of learned Metropolitan Magistrate, 28th Court,
Esplanade, Mumbai, arising out of C.R. No.353 of 2019 (Corresponding
M.E.C.R. No.6 of 2019) registered with L T Marg Police Station and all other
proceedings arising out of the said C. R. for the offences punishable under
Sections 463, 464, 466, 468, 469, 470, 471, 473, 205, 209, 415, 416, 418,
420, 421, 424, 120-A and 465 of the Indian Penal Code, no fruitful purpose
will be served by continuing the further prosecution in Criminal Case
No.2800144/SW of 2019 pending in the file of learned Metropolitan
Magistrate, 28th Court, Esplanade, Mumbai, arising out of C.R. No.353 of 2019

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(Corresponding M.E.C.R. No.6 of 2019) registered with L T Marg Police Station
and all other proceedings arising out of the said C. R.

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15In the light of discussion in foregoing paragraphs, it is abundantly
clear that Respondent No.2 is not going to prosecute the present Petitioners.
Entire dispute arose out of commercial transactions. The further continuation
of proceedings in Criminal Case No.2800144/SW of 2019 pending in the file of
learned Metropolitan Magistrate, 28th Court, Esplanade, Mumbai, arising out of
C.R. No.353 of 2019 (Corresponding M.E.C.R. No.6 of 2019) would
tantamount to abuse of the process of the Court. Since the 2nd Respondent by
way of filing his affidavit has stated that, he is not interested to pursue the
allegations made in the impugned FIR and would not participate in the
pending proceedings before the concerned Court, the chances of conviction of
the Petitioners would be bleak and remote.

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16For the reasons stated herein above, in order to secure the ends of
justice and to prevent further abuse of the process of the concerned court, the
Writ Petition deserves to be allowed and accordingly the same is allowed in
terms of prayer clause (b). Rule is made absolute to the above extent and the
Criminal Writ Petition stands disposed of accordingly.

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[MANISH PITALE, J]

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[S. S. SHINDE , J]

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Jigesh Dilip Shah and Ors. v. the State of Maharashtra and Ors.

Case brief

What is this about?

What did the court decide?

Jigesh Dilip Shah and Ors. v. the State of Maharashtra and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

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