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2018 Supreme(Bom) 640
IN THE HIGH COURT OF BOMBAY AT AURANGABAD
PRASANNA B. VARALE, VIBHA KANKANWADI, JJ.
Vaijnath Laxman Phad & Others – Petitioners
Versus
The State of Maharashtra & Another – Respondents
Criminal Writ Petition No. 394 of 2018
Decided On : 06-04-2018
For the Petitioners:P.N. Nagargoje, Advocate
For the Respondents:S.W. Munde, Additional Public Prosecutor, N.S. Desale, Advocate
Headnote:
Indian Penal Code,1860 - Section 384, 385, 386, 504, 506 read with 34 - Criminal Procedure Code,1973 - Section 320 (9) - Committing suicide – Quash - Respondent who is businessman resides - He has lodged report with City Police Station stating that He runs business by name Saraland Construction which is in construction business - Construction activities of apartments was going on since - He was financial constraints and therefore took hand loans from petitioner tune petitioner tune - He had also given two cherubs in name Firm towards repayment loan of petitioner - He says was giving interest on said amount - According to him he has repaid all amounts taken by him from all these petitioners – Held, But criminal cases having overwhelmingly and pre dominatingly civil flavor stand on different footing for purposes of quashing particularly offences arising from commercial financial mercantile civil partnership or such like transactions or offences arising out of matrimony relating to dowries family disputes where wrong is basically private or personal in nature and parties have resolved their entire dispute - In this category of cases High Court may quash criminal proceedings if in its view because of compromise between offender and victim possibility conviction is remote and bleak and continuation of criminal case would put accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing criminal case despite full and complete settlement and compromise with victim - In other words, High Court must consider whether it would be unfair or contrary to interest of justice to continue with criminal proceeding or continuation of criminal proceeding would tantamount to abuse of process law despite settlement and compromise between victim and wrongdoer and whether to secure ends of justice it is appropriate that criminal case is put to an end and if answer to above questions is in affirmative High Court shall be well within its jurisdiction to quash criminal proceeding - Therefore taking into consideration above ratio court find that this is fit case where inherent power this Court should be exercised in order to secure ends of justice - At cost of repetition we would like to say that exercise of power Section in this case is in interest petitioners and informant - If said power is not exercised possibility of conviction would be reduced and even judicial machinery would be required to waste its time - However while allowing petition for quashing FIR court want to impose certain conditions because petitioners as well respondent have utilized entire police machinery - Hence following order – Petition allowed
Vibha Kankanwadi, J.
1. Present petition has been filed for quashing of First Information Report (hereinafter referred to as 'FIR') by invoking the inherent powers of this Court under Section 226, 227, 14 and 21 of the Constitution of India.
2. The respondent No.2 who is a businessman resides at Ambajogai. He has lodged a report with Ambajogai City Police Station stating that, He runs business by name 'Sadanand Construction', which is in a construction business. The construction activities of apartments was going on since 2013 at Jogaiwadi. He was under financial constraints, and therefore, took hand loans from, petitioner No.4 to the tune of Rs.12,00,000/-, petitioner No.2 to the tune of Rs.6,00,000/-, petitioner No.1 to the tune of Rs.2,00,000/- and petitioner No.3 to the tune of Rs.2,00,000/-. He had also given two cheques in the name of D. G. Pokharkar Firm towards the repayment of the loan of petitioner No.4. He says that, he was giving interest on the said amount. According to him he has repaid all the amounts taken by him from all these petitioners. Thereafter, four months prior to 17-02-2018 petitioner No.4 started saying that, he has repaid only the principle amount, however the interest amount i.e. Rs.15,00,000/- plus Rs.8,00,000/- i.e. total amount of Rs.23,00,000/- is due from the informant to him. The petitioner No.4 used to get him frequent calls and demand the amount. After a month thereafter petitioner No.4 met him and told that now the interest amount has gone up to Rs.45,00,000/-. He threatened that, if the amount is not given, he would kill the informant and his family members. Due to fear informant did not disclose the fact to his family members. Similarly petitioner No.3 also started demanding interest amount. Informant gave him cheque but it did not honoured, therefore he started demanding that the informant should execute agreement for specific performance of a flat. Due to fear the informant executed earnest note on 24-05-2017 in presence of two witnesses. In spite of that, petitioner No.3 started saying that the interest amount Rs.4,00,000/- is still outstanding. He asked informant to change the earnest amount and it should be for Rs.9,00,000/-. He had also given threat to kidnap him and kill his family. He was not ready for the execution of the earnest note but he was forcibly taken by petitioner No.3 on 25-05-2017 within the premises of District Court, Ambajogai and he got executed earnest note/agreement for specific performance in respect of flat No. 306 from Sadanand Apartment. In spite of this, again petitioner No.3 started giving threats to the informant. However, petitioner No.3 had not returned the cheque which was issued from the account of the informant's wife. An SMS was received from the bank stating that a cheque has been received for encashment. All the petitioner No.1 to 4 were continuously contacting the informant and demanding him amount. Petitioner No.4 had called him on 01-02- 2018 along with flat papers. All the papers were taken away from him forcibly under threat. On the next day again petitioner No.4 gave a phone call and asked him to come out of the house. When he went out of the house, petitioner No.4 was along with petitioner No.5 and 7, they all had forcibly made the informant sit in the car and took him to the Sub-Registrar's Office. They got forcible registration of two flats done. He was threatened that, unless he returns interest amount of Rs.30,00,000/-, they will not execute any document in return of the sale deeds those were made on that day. Due to fear informant went to Manjarsumba, Tulajapur, Solapur, Satara, Sangli, Bhor, Saswad. He had also given a message to his wife that, he is committing suicide, but then he went to house of one Roshan Ratilal Kunkulol on 05-02-2018. Roshan Kunklol asked him to stay with him and return to Ambajogai on 09-02-2018, and thereafter, he has lodged the report on 17-02-2018.
3. On the basis of the report lodged by respondent No
