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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
R.M. SAVANT, SARANG V. KOTWAL, JJ.
Hasmukh Tarachand Sheth & Others – Petitioners
Versus
State of Maharashtra & Another – Respondents
Criminal Writ Petition No. 2906 of 2017
Decided On : 03-04-2018
Indian Penal Code,1860 - Section 120B – Criminal Procedure Code,1973 - Section 482 - Negotiable Instrument Act - Section 141 FIR - Quash - Petitioners have filed this Petition for quashing FIR being registered with Economic Offences Wing for short EOW Sections of IPC - said FIR was lodged by Respondent Shah in his capacity as Head of Operations - Partnership firm - First informants father and two uncles are partners of said firm - Petitioner are brothers - Petitioner son subject matter FIR is transaction between first informants firm entities namely - Sharp Industries Polyester - It is Petitioners case that Petitioner resigned from Directorship Sharp Industries Petitioner resigned from being Directors of Sharp Industries Ltd - From respectively - Petitioner was Director - Polyester - Petitioner Director Petrochem - Since – Held, Ni Act provides for procedure for filing complaint Section NI Act - Object behind such proceedings is to bring relief to litigants in summary manner if complainant is able to establish his case - Furthermore such prosecution is maintainable only against persons referred to in Sections Act - Act also provides for period of limitation for complainant to complete procedural formalities and to approach Court - Whereas if transaction is attended by other serious offences IPC in given case investigation is necessary particularly when many accused are involved and evidence can be collected only by an investigating agency - In such cases it would not be proper to relegate complainant only to remedy prosecution NI Act which he can take recourse to by way of filing private complaint - In such cases complainants right to approach police and get offences investigated by them cannot be scuttled - It has to be noted that Petitioner had entered into Consent Terms with Respondent firm accepting their liability and making commitment of fulfilling same - There is considerable force in submission that Petitioners have dishonestly resoled from their commitment - It cannot be lost sight of fact that some Petitioners were granted bail by Magistrate based on submission made by parties that matter was settled on basis of Consent Terms - Such bail orders were not passed based on consideration of merits of case - After considering allegations in FIR court are view that right from inception Petitioners had induced Respondent in parting with huge quantity of Chromo Paper - Petitioners conduct right from beginning till their default in payment and till executing Consent Terms shows that they never intended to make full payment - Looking at allegations in FIR court are unable to hold that no cognizable offence is made out against Petitioners - Therefore it is not possible to quash said FIR – Petition dismissed
Sarang V. Kotwal, J.
1. Rule, having regard to the relief sought, made returnable forthwith and heard by the consent of the learned Counsel for the parties.
2. The Petitioners have filed this Petition for quashing of the FIR being C.R.No.58 of 2016 registered with the Economic Offences Wing (for short, 'EOW') under Sections 406, 409, 418, 420, 465, 467, 468, 471 and 474 read with Section 120B of the IPC. The said FIR was lodged by the Respondent No.2 Sumit Nikunj Shah in his capacity as the Head of Operations of M/s. Shambhulal A. Shah & Co., which is a partnership firm. The first informant's father and two uncles are the partners of the said firm.
3. The Petitioner Nos.1 to 4 are brothers. The Petitioner No.5 is the son of the Petitioner No.2 and the Petitioner No.6 is the son of the Petitioner No.1. The subjectmatter of the FIR is the transaction between the first informant's firm and the 3 entities namely M/s. Sharp Industries Ltd., M/s. Lalit Polyester Pvt. Ltd. and M/s. Ridhi Petrochem Pvt. Ltd. It is the Petitioners' case that the Petitioner Nos.1 and 2 resigned from the Directorship of Sharp Industries Ltd. from 06/12/2010. The Petitioner Nos.3 and 4 similarly resigned from being Directors of Sharp Industries Ltd. from 21/03/2015 and 24/12/2013 respectively. The Petitioner No.5 was a Director of M/s. Lalit Polyester Pvt. Ltd. and resigned on 27/01/2014. The Petitioner No.6 is the Director of M/s. Ridhi Petrochem Pvt. Ltd. since 20/03/2010.
4. According to the Petitioners, the aforementioned 3 companies purchased Chromo Paper from the first informant's firm worth Rs.17,01,73,377/-during the period from March 2012 up to July 2012 and that the total amount of Rs.11,47,04,308/-was paid and the balance amount of Rs.5,54,69,069/-remained to be paid. According to the Petitioners, 9 cheques were given to the Respondent No.2 in the year 2011 towards security deposit; which were used by the Respondent No.2 to launch false proceedings under Section 138 read with Section 141 of the Negotiable Instrument Act (for short, 'NI Act').
5. In the Petition, the Petitioners have enumerated the litigation which is pending between the parties. These proceedings are initiated either by the firm of the Respondent No.2 or the partners of the firm against the aforementioned entities connected with the Petitioners and the Petitioners themselves, though different proceedings are filed against different Petitioners. These proceedings are as follows :
(i) CC No.4780/SS/2015,
(ii) CC No.4784/SS/2015,
(iii) CC No.1087/SS/2015,
(iv) CC No.1088/SS/2015,
(v) CC No.37/MISE/2016,
All these cases are pending before the learned Metropolitan Magistrate, 33rd Court, Ballard Pier, Mumbai and in all these cases different Petitioners are made accused.
Apart from these Court proceedings, Summary Suit No.867 of 2015, Summary Suit No.872 of 2015 and Company Petition No.1059 of 2015 are pending before this Court on the Original Side.
6. The main contention of the Petitioners is that, this being a transaction which is purely civil in nature, the Respondent No.2 could not have lodged the FIR. In the FIR, there is no mention of any of the pending proceedings.
7. We have heard Mr. Mahesh Jethmalani, learned Senior Advocate instructed by Ms. Gunjan Mangla for the Petitioners, Mrs. M. M. Deshmukh, learned Addl. P. P. for State Respondent No.1 and Mr.Aabad Ponda instructed by Mr. Niranjan Mundargi for the Respondent No.2.
8. Before referring to the submissions made by the parties, it is necessary to advert to the contents of the FIR. The FIR was initially registered on 15/06/2016 with Marine Drive Police Station vide C.R.No.195 of 2015 for the offences punishable under Sections 406, 418 and 420 read with Section 120B of the IPC and thereafter was transferred to EOW where it was registered as C.R.No.58 of 2016 under Sections 406, 409, 418, 420, 465, 467, 468, 471 and 474 read with Section 120B of the IPC. The Respondent No.2, in his FIR, has stated that their firm was a distributo
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