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SCR.A/341/2005 4/ 7 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CRIMINAL APPLICATION No. 341 of 2005
For
Approval and Signature:
HONOURABLE
MR.JUSTICE K.A.PUJ
==============================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
==============================================================
SHITALBEN
SANJAYBHAI SHAH & 3 - Applicant(s)
Versus
STATE
OF GUJARAT & 1 - Respondent(s)
==============================================================
Appearance
:
MR
PR NANAVATI for
Applicant(s) : 1 - 4.
MR HL JANI, APP for Respondent(s) : 1,
MR
MITESH R AMIN for Respondent(s) :
2,
==================================================================
CORAM
:
HONOURABLE
MR.JUSTICE K.A.PUJ
Date
: 25/10/2005
ORAL
JUDGMENT
Rule.
Mr.H.L.Jani, learned APP waives service of rune on behalf of
respondent No.1. Mr.Mitesh Amin, learned advocate appearing for
respondent No.2 waives service of rule on behalf of respondent No.2.
The
present petitioners have filed this petition under Article -227 of
Constitution of India, praying for quashing and setting aside the
FIR registered with the Satellite Police Station, being CR No.I-346
of 2004 qua the petitioners.
It
is the case of the petitioners that the petitioner
No.1 is a wife of the main accused No.1, namely, Shri Sanjay
Rameshbhai Shah. She is a Non Executive Director of the Company
known as Swar Silp Properties Limited, which was engaged in the
business of construction of residential as well as commercial
building. The said Company has been managed and run by the accused
No.1. The petitioners Nos.2 to 4 were the
paid employees of the Company and were not Executive Directors of
the Company and, therefore, were not personally responsible for any
act committed by the Company or its Managing Director and/or
Chairman of the Company. It is further stated that because of so
many factors like unprecedented earthquake many of the co-operative
Banks having gone into liquidation and because of the unprecedented
happening of events the construction business of the Company
suffered financial crises. On 20.4.2004, when the respondent No.2
original complainant visited his flat, it was found that the
utensils kept in the said flat appeared to have been stolen. The
respondent No.2 from the market sources heard that the builder was
indulging into selling the flat twice over and, therefore, the
respondent No.2 under the apprehension
that the flats in respect of which the possession
was given to the respondent No.2 must have been given to some other
persons. The complainant, therefore, filed complaint before the
Satellite Police Station, implicating the present petitions as
accused.
Being
aggrieved by the said complaint, present petition is filed before
this Court.
This
Court has passed an order on 25.3.2005, whereby the Court has issued
notice for final disposal and the Court has also observed that the
petitioners shall cooperate with the investigation and appear before
the Investigating Agency as and when called for. The Court has
further observed that petitioners have compounded the matter by
entering into a written compromise. The Court, therefore, directed
Investigating Officer not to inflict any formal arrest to the
petitioners and if the Investigating Officer reaches to a conclusion
after investigation that the petitioners are to be arrested, he will
intimate the petitioners in writing before
10 days, so that they can approach appropriate forum for
anticipatory bail or regular bail.
The
Court has passed further order on 7.4.2005 observing that in view of
the talk of compromise between the parties, the complainant is not
interested in respect of arrest of accused and hence time was grated
to the petitioners.
During
the pendency of this petition, Memorandum of Understanding was
entered into between the original complainant and accused No.1 on
23.9.2005 and 18.10.2005. It is stated in the said Memorandum of
Understanding that as per the order passed by this Court in Misc.
Criminal Application No.8907/2004, the accused No.1 has given
Rs.27,00,000/- along with interest at the rate of 6% p.a.,
aggregating to Rs.30,00,000/- to the respondent No.2. It is further
stated in the Memorandum of Understanding that the said amount by
way of Demand Draft, Cheque or in the form of Flat No.96 was given
to the complainant and it was made clear in the Memorandum of
Understanding that no grievance against any of the accused survived
and no single amount remained due and payable by the accused to the
complainant. It is also mentioned therein that the complainant has
received Rs.45,000/- as well as Rs.1,90,000/- by way of Demand
Draft. A copy of this Memorandums of understanding is placed on
record.
While
considering the Memorandum of Understanding the Court is of the view
that the matter is settled between the parties and no amount is due
and payable by the accused to the complainant. The original
complainant is present before the Court and he is identified by his
advocate, Shri Mitesh Amin. He has admitted that the matter is
completely settled between the parties and hence he has no objection
if the complaint is set aside.
Mr.P.R.Nanavati,
learned advocate appearing for the petitioners requested the Court
to pass appropriate order considering the settled legal position on
this issue. The Court should have considered that the dispute is
settled between the parties and the said dispute is of civil nature
and hence parties should not be dragged to face criminal litigation.
Considering
the facts and circumstances of the case and in view of the
Memorandum of Understanding arrived at between the parties and
dispute having been already settled between them, the Court is
inclined to entertain and allow this petition. The Court is,
therefore, of the view that there is no necessity to send the
parties to face the trial and to keep the criminal proceedings
pending. The complaint being CR No.I-346/2004
is, therefore, quashed and set aside. Rule is made absolute without
any order as to costs.
kks
(K. A. PUJ, J.)
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