2015 ALL MR (Cri) 2395
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
V. M. KANADE AND SMT. ANUJA PRABHUDESSAI, JJ.
Mr. Deepak Vallabhji Dedhia & Anr. Vs. The State of Maharashtra & Ors.
Writ Petition No.423 of 2013
9th March, 2015.
Petitioner Counsel: Mr. SAURABH BUTALA, HARSHAD BHADBHADE
Respondent Counsel: Mr. MAHESH JETHMALANI, PRANAV RADHEKA, PRASHANT PAWAR, Mrs. M.M. DESHMUKH
Criminal P.C. (1973), S.482 - Penal Code (1860), Ss.406, 420, 380, 467, 120B - Quashing of FIR - FIR lodged against petitioners u/Ss.406, 420, 380, 467 and 120B of Penal Code alleging that they without knowledge of other partners transferred sum of Rs.2.40 crores to personal account and misappropriated the same - Allegations in complaint prima facie discloses commission of cognizable offence - Investigation, still at initial stage, cannot be scuttle on premise that dispute is of civil nature - Respondent pursuant to execution of undertaking and deeds of guarantee though gave no objection to release accused on bail, did not give his no objection for quashing of FIR - In absence of such consent, mere fact that petitioners have allegedly paid amount as undertaken - Would not absolve them from criminal liability - FIR cannot be quashed. (Paras 9, 10, 12, 13)
SMT. ANUJA PRABHUDESSAI, J. :- This is a petition for quashing of C.R. No.59 of 2012 registered against the present petitioners by the Economic Offence Wing, under Sections 406, 420, 380, 467 and 120-B of the IPC. The petitioners have also claimed compensation of Rs.25 lakhs each towards arrest and illegal detention in the aforesaid crime.
2. The petitioners are the partners of the firm M/s. Ketki Developers having its office on the ground floor of the buiilding Anamika, Veer Savarkar Marg, Navpada, Thane. The said partnership firm is engaged in the business of buying and selling of land as well as development of real estate.
3. The respondent no.3 is the partner of M/s. Satyam Builders, which is in the business of construction. Mr. Meghaji Chedda and his son Mr. Ashok Chedda are also the partners of M/s. Satyam Builders. Mr. Ashok Chedda is the brother-in-law of the petitioner no.1 Deepak Dedia.
4. M/s. Satyam Builders had lodged a complaint dated 12.04.2012 before the Matunga Police Station alleging that Mr. Ashok Chedda had, without consent and knowledge of the other partners transferred sum of Rs.2.40 crores from the account of M/s. Satyam builders to his personal account and in the name of his wife Tila Chedda. The respondent no.3 had also lodged a similar complaint before the respondent no.2 based on which, the Economic Offence Wing, Crime Branch, registered Crime No.176 of 2012 for the offence punishable under Sections 406, 420, 380, 120-B of the IPC against the petitioners Mr. Ashok Chedda and his wife Tila Chedda and others.
5. Mr. Butala, learned Counsel for the petitioners has argued that the dispute is predominantly a civil dispute. It is further submitted that the complaint does not disclose offence under Sections 406 and 420 of the IPC and that respondent no.3 has given colour of criminal character to the civil dispute with an intention of extracting money from the petitioners.
6. Mr. Butala, learned Counsel for the petitioners has further submitted that the petitioner no.2 is not concerned with the transaction and that has been roped in merely because he is the brother of the petitioner no.1. Learned Counsel for the petitioners urged before us that the petitioners were arrested outside the Sessions Court, immediately after rejection of their anticipatory bail application. While they were in custody, the petitioners under pressure of arrest and with an intention to buy mental peace, agreed to settle their dispute and accordingly singed an undertaking dated 17th September, 2012. Learned Counsel for the petitioners has urged that the dispute has already been settled and that respondent no.3 has already received the money. The learned Counsel for the petitioner has urged that the respondent no.3 is refusing to give consent for quashing the criminal proceedings with an intention of extracting more money. It is urged that continuance of the criminal proceedings is nothing but sheer abuse of process of law.
7. Mr. Jethmalani, learned Senior Counsel for the respondents has submitted that the FIR lodged by the respondents, primafacie discloses offence under Sections 406, 420, 380, 120-B of the IPC. He has disputed that the respondents had given no objection for quashing the criminal proceedings. He further disputed that the petitioners have complied with the terms of the undertaking.
8. We have perused the records and considered the arguments advanced by the learned Counsel for the respective parties. At the outset, it must be mentioned that in the case of Mosiruddin Munshi Vs. Mohd. Siraj & Anr., 2014 Cri. L.J. SC 4180 : [2014 ALL SCR 2264], the Apex Court has held that :-
"5. The legal position with regard to exercise of jurisdiction by the High Court for quashing the First Information Report is now well settled. It is not necessary for us to delve deep thereinto as the propositions of law have been stated by this Court in R. Kalyani Vs. Janak C. Mehta (2009) 1 SCC 516: (2009 AIR SCW 1836) in the following terms:
"15. Propositions of law which emerge from the said decisions are :
(1) The High Court ordinarily would not exercise its inherent jurisdiction to quash a criminal proceeding and, in particular, a first information report unless the allegations contained therein, even if given face value and taken to be correct in their entirety, disclosed no cognizable offence.
(2) For the said purpose the Court, save and except in very exceptional circumstances, would not look to any document relied upon by the defence.
(3) Such a power should be exercised very sparingly. If the allegations made in the FIR disclose commission of an offence, the Court shall not go beyond the same and pass an order in favour of the accused to hold absence of any mens rea or actus renus.
(4) If the allegation discloses a civil dispute, the same by itself may not be a ground to hold that the criminal proceedings should not be allowed to continue.
6. Yet again in Mahesh Chaudhary Vs. State of Rajasthan (200) 4 SCC 443, this Court stated the law thus :
"11. The principle providing for exercise of the power by a High Court under Section 482 of the Code of Criminal Procedure to quash a criminal proceeding is well known. The Court shall ordinarily exercise the said jurisdiction, inter alia, in the event the allegations contained in the FIR or the complaint petition even if on face value are taken to be correct in their entirety, does not disclose commission of an offence."
9. In the instant case, the records prima facie indicate that the respondent no.3 had lodged the complaint against Mr. Ashok Chedda and others alleging that he had without the knowledge and consent of the partners of M/s. Satyam Builders transferred the amount of Rs.2.40 crores to the personal account in his name and in the name of his wife Tila. It is alleged that subsequently the petitioner no.1 had transferred an amount of Rs.1.40 crores from the said personal accounts to the account of M/s. Ketki Developers, of which the petitioner no.1 who is the brotherinlaw of Mr. Ashok Chedda is one of the partners. It is the case of the complainant that Mr. Ashok Chedda and his wife Tila Chedda as well as others, including the petitioner no.1 had misappropriated the said amount.
10. The allegations made in the complaint prima facie discloses commission of cognizable offence and makes out a case for investigation by the authority. At this stage, it is not permissible to test the veracity of the FIR or to consider the defence of the petitioners. The question whether the amount of Rs. 1.50 crores was transferred to M/s. Ketkar Developers account for the purpose of the alleged purchase of the land as per purported MOU dated The investigation, which is still at the initial stage, cannot be scuttled on the premise that the dispute is of civil nature.
11. The records further indicate that the petitioner no.1 had filed an application for anticipatory bail and upon dismissal fo the said application, the petitioners were arrested. The petitioners had signed the undertaking dated 17th September, 2012, wherein they had undertaken to compensate the damages and loses caused to the firm and its partners, including Mr. Ashok Chedda and they had return to the firm its books and records, which have been removed from the office of the firm. Mr. Ashok Chedda and both the petitioners herein had undertaken to jointly and severely return an amount of Rs.2.40 crores to the firm M/s. Satyam Developers within a period of grant of appeal.
12. The petitioners and the other accused had also executed 3 deeds of guarantee, dated 20th September, 2012, whereby they had undertaken to comply with their respective obligations specified in the undertaking dated 20th September, 2012. Pursuant to the execution of the said undertaking and the deeds of guarantee, the respondent no.3 filed an affidavit wherein he gave his no objection to release of the accused on bail. In the said affidavit, respondent no.3 has not given his no objection for quashing the FIR and in the absence of such specific term, it is not open for this Court to draw an inference that the respondent no.3 had consented for quashing of the FIR. In the absence of such consent, the mere fact that the petitioners have allegedly paid the amount as undertaken, would not absolve them from the criminal liability.