Allowed

Omprakash L. Changoiwala and Ors. v. State of Maharashtra and Anr.

Bombay HC16 Feb 2023WP/526/2023

Case brief

AI extract

What is this about?

Petitioners sought quashing of an FIR under Section 482 Cr.P.C. alleging forgery and cheating related to property and will matters. The High Court allowed the petition, quashing the FIR, noting that the parties had amicably settled the underlying civil dispute.

What did the court decide?

The First Information Report (C.R. No.321 of 2018) and related investigation (C.R. No.120 of 2018) are quashed and set aside.

Omprakash L. Changoiwala and Ors. Vs State of Maharashtra… — Quashing and FIR | Bombay HC (2023)

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Shailaja

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.526 OF 2023

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`1. Omprakash L. Changoiwala`	`]`
`2. Arun Omprakash Changoiwala`	`]`
`3. Mangesh Omprakash Changoiwala`	`]`
`4. Mahesh S. Sawalka`	`]`
`5. Naveneet K. Agrawal`	`]`
`6. Kanchan Lal Agrawal`	`]`
`7. Neruvisseri Variath Appu Warrier`	`]`	`Petitioners`
`Vs.`
`1. The State of Maharashtra`	`]`
`2. Vishal Usha Kejriwal`	`]`	`Respondents`
`…..` `Ms. Swati Sagvekar, for Petitioners.`

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Ms. S.S. Kaushik, A.P.P, for Respondent No.1 -State.

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Mr. Rajesh Singh a/w Mr. Karan Mehta and Mr. Harshad Joshi, for
Respondent No.2.

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Mr. Bangar, P.I., EOW, Unit-3.

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CORAM : REVATI MOHITE DERE &
 PRITHVIRAJ K. CHAVAN, J.J.

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 DATE : 16th February, 2023.

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SHAILAJASHRIKANT Digitally signed by SHAILAJASHRIKANT HALKUDEDate: 2023.03.01 10:49:08 HALKUDE +0530

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ORDER: [Per Prithviraj K. Chavan, J.]

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1. Heard.

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2. Rule.

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3. Rule is made returnable forthwith. With the consent of the parties, the petition is taken up for final disposal.

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4. Learned A.P.P waives notice on behalf of respondent No.1State and Mr. Singh, learned Counsel waives notice on behalf of respondent No.2 (Original Complainant).

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5.By this petition under Article 226 of the Constitution of India
and under section 482 of the Code of Criminal Procedure, 1973
(for short "Cr. P.C"), the petitioners seek quashing of the First
Information Report (for short "F.I.R") registered vide C.R. No.321
of 2018 with Azad Maidan Police Station, Mumbai, for the alleged
offences punishable under sections 420, 465, 467, 468, 471 r/w
120-B of the Indian Penal Code (for short "I.P.C") and subsequently
investigated by EOW, Unit - III, Mumbai under C.R. No.120 of

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2018. Quashing is sought on the premise that the parties have
amicably settled their dispute.

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6. Briefly stated, facts are as follows.

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7.Deceased Ratnidevi Babulal Kejriwal was the real sister of the
petitioner No.1. She was issueless. Deceased Ratnidevi and her
husband - deceased Babulal Kejriwal had, therefore, adopted
Vinodkumar (deceased) who was the son of the petitioner No.1,
during their lifetime vide an Adoption Deed dated 20th April, 1971.
The said Adoption Deed has been duly registered with the Sub
Registrar of Assurances Bombay on 30th June, 1971.

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8.Babulal Mahadeo Kejriwal died on 3rd September, 1973
leaving behind a Will which was un-probated. His adopted son
deceased Vinodkumar got married with one Usha Bedia on 24th
May, 1983. From the said wedlock, the respondent No.2 was born
on 8th May, 1984. Dispute and differences arose between
Vinodkumar and Usha Bedia, which has ultimately resulted into
filing a divorce proceeding before the Family Court, Bandra.
Deceased Vinodkumar and Usha Bedia, thereafter, entered into the

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consent terms, mutually, by which their marriage stood dissolved.
An order to that effect came to be passed by the Family Court on
4th December, 1997. The marriage was dissolved in view of the
consent terms. By virtue of the said consent terms, Usha Bedia was
paid an amount of Rs.12,50,000/- towards full and final settlement
and custody of the respondent No.2 was taken by Usha Bedia.

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9.Deceased Ratnidevi Babulal Kejriwal died on 10th December,
2004 leaving behind her last Will and Testament dated 14th March,
2001. Petitioner No.2 is the executor and petitioner Nos. 4 and 5
are the signatories to the said Will. The petitioner Nos. 6 and 7 are
the signatories of the Will of deceased Vinodkumar Kejriwal.
Petitioner No.3 is not concerned with the Will at all.

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10.Post death of the deceased Ratnidevi Kejriwal, deceased
Vinodkumar used to keep unwell. Deceased Vinodkumar expired
on 4th April, 2007. Since the whereabouts of the respondent No.2
and his mother were not known to the petitioners, a paper
publication informing the people at large about the death of
deceased Vinodkumar Kejriwal was given in the newspaper.

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11.On 6th February, 2009, the petitioners filed Testamentary
Petition bearing No.196 of 2009 for the grant of Probate of the last
Will and Testament of Late Ratnidevi Kejriwal. However, due to
inadvertence, the Advocate representing the petitioners did not
mention about the respondent No.2 and his mother in the said
petition and since the respondent No.2's mother and deceased
Vinodkumar were divorced in the year 1997, their whereabouts
were not known to the petitioner No.1 and 2.

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12.At the time, when the adoption of deceased Vinodkumar
Kejriwal had to be proved before this Court, Advocate of the
petitioners were directed to add names of the respondent No.2 and
his mother as next of kin. Pursuant to the amendment, a citation
dated 3rd May, 2010 came to be issued by this Court and was
s Notice Board and on the Collector's
affixed on the High Court'
Notice Board on 7th May, 2010, inter alia, Prothonotary and Senior
Master had also directed to publish the original citation in "Free
Press Journal" (English Newspaper) and "Hamara Mahanagar"
(Hindi Newspaper) on 22nd June, 2010 as the whereabouts of the
respondent No.2 and his mother were not known to the petitioners.

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13. A clerk of the Advocate appearing for the petitioners filed his
Affidavit of Service on 9th July, 2010 proving service, which has
been accepted by this Court and pursuant thereto, the said
Testamentary Petition was allowed and Probate was granted on 24th
December, 2010.

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14.Subsequently, petitioner No.1, pursuant to the grant of
Probate, agreed to sell the property purchased by deceased
Ratnidevi Babulal Keriwal situate at Lonavala to M/s Infina
Ashapura Homes LLP vide agreement of sale dated 5th December,
2012, pursuant thereto, a sale deed dated 27th January, 2013 was
executed between the petitioner No.1 and M/s. Infina Ashapura
Homes LLP.

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15.Subsequently, the respondent No.2 filed a Miscellaneous
Petition No.49 of 2016 for revocation of probate granted in favour
of the petitioners. The respondent No.2 also filed a Suit bearing
No.582 of 2016 for declaration and decree in respect of properties
mentioned in the Will of Late Ratnidevi Babulal Kejriwal. The
respondent No.2, inter alia, lodged a complaint against the
petitioners and others, pursuant to which, C.R. No.321 of 2018

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dated 25th December, 2018 came to be registered against the
petitioners for the offences punishable under sections 420, 465,
467, 468, 471 r/w 120-B of the I.P.C at Azad Maidan Police Station
and subsequently the matter was investigated by EOW, Unit - III,
Mumbai under C.R. No.120 of 2018.

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16. It is submitted by the learned Counsel for the respective
parties that the petitioners and the respondent No.2 have settled
their dispute and entered into the consent terms dated 6th October,
2022, copy of which is annexed at 'Exhibit B'. In view of the said
consent terms, this Court disposed of Miscellaneous Petition No.49
of 2016 as well as Suit No.582 of 2016 vide order dated 6th
October, 2022, copy of which is annexed at 'Exhibit C'. Paragraph
23 of the consent terms filed in Suit No.582 of 2016 is relevant for
the purpose of quashing of the F.I.R, which reads thus;

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"23.The Plaintiff undertakes to aid and assist
the Defendant Nos. 1 to 4 and other accused
in quashing of FIR/C.R No.120/2018 pending
with the Economic Offence Wing, Mumbai or
any other authority. However, the Defendant
Nos. 1 to 4 undertakes to file the appropriate
proceeding before the competent court of law
for quashing of the aforesaid FIR/C.R, within
30 days from the date of filing of this Consent
Terms. Further, the cost of quashing of the

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aforesaid FIR/C.R. registered with Economic
offences wing shall be solely borne by
Defendant Nos. 1 and 3 alone. However, for
the quashing of the aforesaid FIR/C.R, the
Parties concerned shall individually bear the
legal expenses for their respective Lawyers".

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17.Learned Counsel for the respondent No.2 has tendered
consent affidavit of the respondent No.2 dated 13th February, 2023
duly notarized before the Notary. A photostat copy of the Aadhar
Card of the respondent No.2 duly attested by him is annexed with
the said affidavit. The same are taken on record. In the said consent
affidavit, the respondent No.2 has stated that he has given his
consent for quashing of the aforesaid F.I.R, in view of the consent
terms, arrived at between him and the petitioners. He has further
stated that he has given consent out of his free will and volition
without any undue influence and/or coercion.

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18.Respondent No.2 is present in the Court. On being
questioned, he reiterates what is stated by him in his affidavit.
Learned Counsel appearing for the respondent No.2 has identified
him. Learned A.P.P has verified his original Aadhar Card.

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19.Considering nature of the dispute, amicable settlement
between the parties, consent affidavit of the respondent No.2 and
having regard to the judicial pronouncements of the Apex Court in
the cases of Gian Singh Vs. State of Punjab and another1 and
Narinder Singh and others Vs. State of Punjab and another2, there is
no impediment in allowing the petition.

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20.The petition is accordingly allowed. First Information Report
registered vide C.R. No.321 of 2018 with Azad Maidan Police
Station, Mumbai and subsequently investigated by EOW, Unit - III,
Mumbai under C.R. No.120 of 2018, against the petitioners, is
quashed and set aside.

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21.The petitioners to deposit costs of Rs.1,00,000/ each with

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"Anand Parivaar Charitable Trust, Satara". Bank details of which are
as under:

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`Bank Name`	`Central Bank of India`
`Account Number`	`1919815017`
`IFSC CODE`	`CBIN0281516`

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The said costs to be deposited within four weeks from today.

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1 (2012) 10 SCC 303

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2 (2014) 6 SCC 466

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22.Rule is made absolute in the aforesaid terms subject to the
petitioners depositing costs, as stated above. Petition is disposed of
accordingly.

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23.Matter be listed for recording compliance regarding deposit
of costs, on 23rd March, 2023.

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24.All concerned to act upon the authenticated copy of this
order.

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[PRITHVIRAJ K. CHAVAN, J.]

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 [REVATI MOHITE DERE, J.]

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Omprakash L. Changoiwala and Ors. v. State of Maharashtra and Anr.

Case brief

What is this about?

What did the court decide?

Omprakash L. Changoiwala and Ors. v. State of Maharashtra and Anr.

Case brief

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What the court decided

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