Allowed

Zeeshan Kadar and Anr. v. State of Goa, Thr. the Calangute Police Station, and 2 Ors.

Bombay HC5 Apr 2023WPCR/5/2022

Case brief

AI extract

What is this about?

This writ petition sought to quash an FIR and charge-sheet alleging cheating and criminal breach of trust. The High Court held that the complaint disclosed a civil dispute lacking the ingredients of the alleged offences. Following the reasoning in a previous decision involving similar accused, the Court granted relief and quashed the proceedings.

What did the court decide?

Rule made absolute quashing FIR No. 144/2019 and Charge-sheet No. 206/2019 qua the petitioners.

Zeeshan Kadar and Anr. Vs State of Goa, Thr. the Calangute… — Quashing and FIR | Bombay HC (2023)

¶1

25-WPCR-5-22

¶2

Santosh

¶3

IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL WRIT PETITION NO. 5 OF 2022

¶4

1. Mr. Zeeshan Kadar,
aged about 40 years, son of Mr
Alam Kardar, business presently
Residing at Flat No.4, Building No.4,
Prudential Palms, Porvorim, Goa.

¶5

2.)Mr. Randhir Thakur, aged about 38 years, son of Mr. Markandey, business, presently residing at Flat No. 2, E building, Sapna Habitat, Porvrim-Goa … Petitioners.

¶6

 Versus

¶7

1.) State of Goa, through the Calangute Police
Station, Calangute, Bardez - Goa.

¶8

2) Mrs. Kamalpreet Kaur, major in age,
business, presently residing at
HNo. 4, 5. 6, PK Palace, Bhoomi City,
Maharashtra.

¶9

3) Ld. Public Prosecutor, having its office at High Court of Bombay at Porvorim -Goa …Respondents.

¶10

Mr Nilesh Takkekar, with Mr Sairaj Bhaje, Advocates for the Petitioners. Mr S.G. Bhobe, Public Prosecutor for the StateRespondent No.1.

¶11

Mr Rohan Desai, with Ms Prachi Sawant, Advocates for Respondent No. 2.

¶12

CORAM : M. S. SONAK & VALMIKI SA MENZES, JJ. DATE : 5^th April 2023

¶13

Page 1 of 13 05-04-2023

¶14

25-WPCR-5-22

¶15

ORAL JUDGMENT : (Per M.S. Sonak, J.)

¶16

1. Heard the learned Counsel for the parties.

¶17

2. Rule. The Rule is made returnable immediately at the request of and with the consent of the learned Counsel for the parties. Even otherwise, while issuing notice to the Respondents on 29/3/2022, we had clarified that an endeavour would be made to dispose of this Petition finally at the stage of admission given the Judgment and Order dated 02/08/2021 in Criminal Writ Petition No. 17/2020.

¶18

3. This Petition is for quashing the FIR bearing No. 144/2019 and the consequent Charge-sheet bearing No. 206/2019 dated 15/4/2019 on the file of the learned Chief Judicial Magistrate at Panaji, Goa. In terms of the impugned FIR and the Chargesheet, the Petitioners have been charged with the offences under Sections 406 and 420, read with Section 34 of the Indian Penal Code (IPC).

¶19

4. Mr Takkekar, learned Counsel for the Petitioners, submits that the issue raised in this Petition is entirely covered by this Court's decision dated 02/08/2021 in Criminal Writ Petition No. 17/2020. He points out that this Petition was instituted by Rishi Gupta (Accused No.1), and this Court, after recording

¶20

Page 2 of 13 05-04-2023

¶21

25-WPCR-5-22

¶22

finding that the allegations in the impugned FIR and the
Charge-sheet, even if taken at their face value, do not spell out
the ingredients of Sections 406, 420 read with Section 34 of the
IPC. Accordingly, he submits no distinction between Rishi
Gupta and the Petitioners' position. Therefore, based upon the
reasoning in our decision dated 02/08/2021, the impugned FIR
and the Charge-sheet must be quashed.

¶23

5. Mr Takkekar submits that the impugned FIR and the Charge-sheet suggest that the matter has a predominantly civil profile. The criminal Prosecution was launched only to pressurise the Petitioners into settling the civil disputes. Mr Takkekar submits that launching such a criminal prosecution is an abuse of the process.

¶24

6. Mr Takkekar relies on State ofHaryana v/s. Bhajan Lal (1992) Supp (1) SCC 335, International Advanced Research Centre For Powder Metallurgy And New Materials (Arch) And Others v/s. Nimra Cerglass Technics Private Limited And Another (2016) 1 SCC 348 and Anand Kumar Mohatta vs. State (Govt of Nct of Delhi) (2019) 11 SCC 706 to support his contentions.

¶25

7. Mr Bhobe learned Public Prosecutor submits that the Petitioner's case does appear to be covered by this Court's

¶26

Page 3 of 13 05-04-2023

¶27

25-WPCR-5-22

¶28

decision dated 02/08/2021 and, therefore, similar orders could be
made in this Petition.

¶29

8. However, Mr Rohan Desai learned Counsel for Respondent No.2 (Complainant), submits that this Petition may not be entertained now that the Charge-sheet is already filed against the Petitioners. He offers that the Petitioners could be granted liberty to argue before framing charges. He submits that the present Petition may not be entertained on the grounds of such alternate remedy.

¶30

9. Mr Desai, without prejudice to the above contention, submits that Respondent No. 2 was induced to part with an amount of 76.50 lakhs on the promise that she would be made a ₹ partner in a restaurant business. Mr Desai submits that if read in its entirety, the complaint discloses the commission of offences under Sections 406, 420, read with Section 34 of the IPC. Therefore, he submits that no case is made out for quashing the impugned FIR or the Charge-sheet.

¶31

10. Mr Desai submits that there is a difference between the role played by the Petitioners and by Rishi Gupta. He, therefore, proposes that this Court's decision dated 02/08/2021 is distinguishable.

¶32

Page 4 of 13 05-04-2023

¶33

25-WPCR-5-22

¶34

11. For all the above reasons, Mr Desai submits that this Petition may be dismissed, with costs.

¶35

12. The rival contentions now fall for our determination.

¶36

13. The impugned FIR states that Rishi Gupta (Petitioner in Writ Petition No.17/2020), Zeeshan Kadar, Randhir Thakur (Petitioners) and Ms Shabnam Shaik, with common intention, induced Respondent No.2 to invest her money in their hotel business on the pretext of making her a partner. Still, they neither made Respondent No.2 a partner nor returned the amount of ₹ 76.50 lakhs she invested. Hence, it was alleged that all four accused persons had committed offences under Sections 406, 420 read with Section 34 of the IPC.

¶37

14. Based on the impugned FIR, the impugned Charge-sheet was filed against the four accused persons stating the following

¶38

"16. BRIEF FACTS OF THE CASE (Add separate sheet, if necessary)

¶39

MAY IT PLEASE YOUR HONOUR

¶40

In the limits of your Honourable Court and within the jurisdiction of Calangute Police Station that prior to 15.04.2019 at La Habbana Resort, Sautawado, Calangute Bardez Goa, accused mentioned at Column No.11 at Sr. No. A-1, A-2 & A-3 with their common intention induced the complainant to invest money in their hotel business on pretext of making her a partner into their hotel business, as such complainant invested sum of Rs. 76,50,000/- (Seventy Six lakhs fifty thousand only) and further the above mentioned accused failed to admit the complainant as a

¶41

Page 5 of 13 05-04-2023

¶42

25-WPCR-5-22

¶43

partner in their hotel business, thereby committed criminal breach of trust and cheated the complainant to the tune of Rs. 76,50,000/-.

¶44

Thus the accused persons mentioned at Column No. 11 at Sr. No. A-1, A-2 & A-3 have committed the offence punishable under sec 406, 420 r/w 34 IPC."

¶45

15. Since the impugned FIR and the impugned Charge-sheet are entirely based upon Respondent No. 2's complaint dated 15/06/2019, the same is transcribed below for the convenience of reference :

¶46

"To, Inspector of Police / Police Officer in Charge,

¶47

Calangute-Bardez Police Station, Goa.

¶48

 Subject: Complaint against the accused persons namely,
Rishi Gupta, Randhir Thakur, Zeeshan Shaikh, Mrs.
Shabnam Shaikh has committed an offence IPC U/section
347, 350, 352, 420, 406 R/W 34.

¶49

 Dear Sir/Madam,

¶50

1) I, Mrs. Kamalpreet Kaur Kohli, residing at the address
mention as above, having a hotel restaurant namely Patiala
Blu Fine Dine at Thane, Maharashtra. My earning and
source of income is from hotel and restaurant I am doing
the business from last many years as I also take a contract
for management of hotel and services.

¶51

2 ) So, sir these above mentioned accused had approached
me for partnership of the restaurant to run the restaurant in
the equation of ratio will be 50:50. I later on respond
positively to them and I had come to visit the said premises
which was situated in Goa for running the restaurant along
with my husband. We had discussed at Goa premises and
confirmed the same ratio only after seeing the said

¶52

Page 6 of 13 05-04-2023

¶53

25-WPCR-5-22

¶54

documents i.e 1) Registration Certificate 2) No objection
Certificate 3) Department of Excise 4) Food registration 5)
Bill of the company. Exhibit-A

¶55

3) I had started my business and brought my EDC
machine from Thane because the partners insisted me if
you want to take the additional service of food and
beverages then you have to bring your EDC machine from
your hotel in Thane, I agreed for the same. They also
informed me that we do not have the EDC machine with
our restaurant and you completely handle the restaurant of
food and beverages as I started my business from time to
time. Exhibit-B

¶56

4) Sir later I had been informed that as per your beverages
income you will invest money you will invest money for
partnership. For running rooms and maintenance in ratio
of 50:50 I also agreed for the same with the trust I had
proceeded with my EDC machine and account I had made
the payments to my partners from account of Axis Bank
Ltd. Exhibit-C

¶57

5) Sir I was added in their group and our conversation as
per the WhatsApp has been recorded with expenses,
expenditure, sales and etc. Exhibit-D

¶58

6) So sir they had also furnished me the expenditure list to
my mail which all partners has to decide. After approval of
the partners we use to rely on the same statement. We also
use to discuss about future development of sale and
proceed with the business. As we use to chat for the same
expenses as per the WhatsApp group. ExhibitE

¶59

7) So sir as per the whatsapp group they also use to inform
my husband on WhatsApp group about the bills, liabilities,
expenditure and all expenses towards the expenditure of the
hotel. These all WhatsApp chats use to come on my

¶60

Page 7 of 13 05-04-2023

¶61

25-WPCR-5-22

¶62

husband's mobile as me and my husband were jointly
working at the same premises. All WhatsApp chats, mails
of beverages my husband was handling with my and my
partners consent. Exhibit-F

¶63

8) So sir later Mrs. Shabnam informed us that she will
enter management agreement with the owner and later on
she promised that I will execute with you and on that time
I agreed for the same . Exhibit-G

¶64

9) After the execution of the Agreement I had spoken to
her to execute my management agreement to which she
also agreed. But later on she failed to do so which I had
prepared with my signature on it. But she had not come to
give her signature and she failed to do so with her malafide
intention. Exhibit-H

¶65

10) So sir my dispute had started because of the
management agreement. I demanded her my payments
after she had given me the cheque of 15 lakhs dated
15/02/2019. And at the same time she had given me
another cheque which was blank. She also informed me
that first you clear 15 lakhs cheque and later we will
continue with the business and keep the security blank
cheque till I make the Agreement. After few days she
started using filthy languages, she also tried to implicate my
husband in a false case as per the Women's Protection Act.
She also use to say me if you people act too smart then
your husband will be behind bars with my false complaint
because I am a woman and he is a man. As me and my
husband were staying at the same hotel premises I was little
shocked and I was afraid as I use to travel from Mumbai
Goa and Goa to Mumbai. I use to leave my husband alone
in the hotel as he use to manage the food and beverage
business. As I was under fear and shock as how she can
think about the same, as my duty I had informed my

¶66

Page 8 of 13 05-04-2023

¶67

25-WPCR-5-22

¶68

husband to be aware and stay away from Mrs. Shabnam
and in my absence you will not talk to Mrs. Shabnam and
my husband agreed for the same Exhibit-I

¶69

10) So sir later she and another partners use to target me
and my husband for some or the other dispute. We also use
to stay away from these partners within some days I had
informed Shabnam that I am depositing the cheque on the
date which you have given and written on the said cheque.
Then she politely requested me please deposit the said
cheque after 2-4 days. Then also I cooperated with her and
agreed for the same ExhibitJ

¶70

11) So sir as per the instructions of my partners and Mrs.
Shabnam I had deposited the said cheque after 24 days of
the said amount of Rs.15 lakhs, which the cheque was
returned with the memo of insufficient balance. When I
called her that your cheque is bounced and you had given
me a blank cheque which you had committed a fraud with
me. She told me that you wait and if you try to act then
you have to face a dire consequences. As the discussion
with her I had not gone to the Goa hotel premises. Then
we called her after 5 days and informed her that please
return our money which you have taken, she told me that
you come to Goa hotel and then we will settle and you
bring all my dues what to be paid I will comply the same.

¶71

12) So sir later on I went to hotel, first she had not spoken
to me and she had planned against us which was a dub of
doubt. I had noticed on that day but I had not raised any
objection to her. After 4-5 days she had assaulted me,
abused me with my husband along with her partners and
employees, which I was hurt very badly as my complaint
was registered on 26/03/2019 and FIR no. 74/19. The
medical was given as per the medical report. Exhibit-K

¶72

Page 9 of 13 05-04-2023

¶73

25-WPCR-5-22

¶74

 13) So sir, my husband has also given complaint of
cheating against these said accused on dated 24/03/2019.
On the same complaint the police has not taken action
stating that your wife is the partner and the victim and tell
her to give the complaint in writing. As now I had got the
evidence and collected from the bank and authorities which
I have to bring on the record of the police station so that is
why it has been delayed to give the complaint at your
police station. Exhibit-L

¶75

14) So sir I request to you and your authorities to kindly
consider my complaint under these sections which the
accused had committed offence with their mala fide
intentions. So with this I request the authorities to register
the complaint as early as possible. I am ready to cooperate
to the police station whenever I shall be called by this
department. I shall be bounded and shall ever pray in the
equity of natural justice.

¶76

Waiting for your earliest response.
Thanking you.

¶77

 Yours faithfully,
 (Kamatpreet Kaur)
 In person applicant"

¶78

16. In the complaint, a reference to Rishi Gupta and the Petitioners is found mainly in the 'subject' at the commencement of the complaint. In the main body of the complaint, the allegations particularly concern Shabnam Shaikh (A.4). There are no allegations or, at the highest, some blissfully vague allegations concerning 'another partner'. There are no allegations or, in any case, specific allegations about Rishi Gupta or the present

¶79

Page 10 of 13 05-04-2023

¶80

25-WPCR-5-22

¶81

Petitioners offering any inducement to Respondent No.2. There
are no allegations about Rishi Gupta or the present Petitioners
holding out any promises of admitting Respondent No.2 as
partner in the venture of running a hotel business. Thus, even if
all the allegations in the complaint are taken at their face value,
the ingredients of the offences under Section 406, 420 read with
Section 34 of the IPC are not even remotely made out qua the
Petitioners.

¶82

17. Based upon the above position, we quashed the impugned FIR and the main Charge-sheet qua Rishi Gupta. Since the Petitioners' position is not different from Rishi Gupta's, therefore, by adopting the reasoning in our decision dated 2/8/2021, the Rule in this Petition will have to be made absolute.

¶83

18. Mr Desai's contention about the distinction between Rishi Gupta's role and the Petitioners' role cannot be accepted. The impugned FIR and the impugned Charge-sheet show no such difference. As noted earlier, the allegations are mainly against Shabnam Shaikh. Apart from the reference to Rishi Gupta and the Petitioners in the 'subject' of the complaint, there are no allegations in the actual body of the complaint. In any case, the allegations do not spell out the ingredients of Sections 405, 420 read with Section 34 of the IPC.

¶84

Page 11 of 13 05-04-2023

¶85

25-WPCR-5-22

¶86

19. In our decision dated 02/08/2021, the learned Counsel for the parties had referred to a Settlement and Release Agreement dated 3/12/2018. Based inter alia upon this document, the Court concluded that it was inconceivable how the ingredients of Sections 406, 420 read with Section 34 of the IPC could be said to have been made qua the Petitioner Rishi Gupta. The same conclusion will have to be reached qua the present Petitioners because there is no difference in the position of Rishi Gupta and the Petitioners.

¶87

20. For the reasons recorded in our decision dated 02/08/2021, we are satisfied that continuance of criminal Prosecution against the Petitioners would amount to the abuse of process. Accordingly, the Rule will have to be made absolute in this Petition.

¶88

21. Regarding Mr Desai's contention based upon the Chargesheet filed by the Prosecution, we refer to the decision in Anand Kumar Mohattta vs. State (Govt. of Nct of Delhi) (supra). In this decision, the Hon'ble Supreme Court has held that the inherent powers of the High Court can be exercised even after the Chargesheet is filed. Further, because the Charge-sheet was filed, we inquired from the Prosecution whether statements of any witnesses or any additional material produced on record suggest the commission of the offences under Sections 406, 420 read

¶89

Page 12 of 13 05-04-2023

¶90

25-WPCR-5-22

¶91

with Section 34 of the IPC qua the Petitioners. However, no such
material was shown to us based upon which the criminal
Prosecution could legitimately continue qua the Petitioners.

¶92

22. The dispute between the Petitioners and Respondent No.2 has a predominantly civil profile. The ingredients of the offences alleged have not been made out qua the Petitioners. Therefore, considering the law laid down by the Hon'ble Supreme Court in State of Haryana vs Bhajan Lal (supra), a case is made to quash the impugned FIR and the impugned Charge-sheet qua the Petitioners.

¶93

23. Accordingly, we make the Rule in this Petition absolute by quashing the FIR bearing No. 144/2019 and the consequent criminal proceedings vide Charge-sheet bearing No. 206/2019 dated 15/04/2019 in the Court of the Chief Judicial Magistrate, at Panaji, Goa qua the Petitioners.

¶94

24. There shall be no order for costs.

¶95

VALMIKI SA MENZES, J. M. S. SONAK, J.

¶96

SANTOSH Digitally signed by SANTOSH S MHAMAL S MHAMAL Date: 2023.04.06 17:08:39 +05'30'

¶97

Page 13 of 13 05-04-2023

Zeeshan Kadar and Anr. v. State of Goa, Thr. the Calangute Police Station, and 2 Ors.

Case brief

What is this about?

What did the court decide?

Zeeshan Kadar and Anr. v. State of Goa, Thr. the Calangute Police Station, and 2 Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Annapurna Naik Vs State of Goa Thr. Its Chief Secretary and Anr.

Manohar Harischandra Naik Vs the Secretary Village Panchayat of Collem Sigao and 3 Ors.

Penha De Franca Community Complex, Thr. Its Secrtary, Nasir Ahamed and 4 Ors. Vs State of Goa, by Chief Secretary and 2 Ors.

Rajesh Verenkar Vs Mamu Hage

Browntape Technologies Private Limited Vs Assistant Commissioner of Income Tax and 3 Ors.

Browntape Technologies Private Limited Vs Assistant Commissioner of Income Tax and 3 Ors.