Bombay High Court
Godrej Properties Ltd. And Ors vs The State Of Maharashtra And Anr on 30 January, 2020
Author: A. M. Badar
Bench: A. M. Badar
2-ia2-2019.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
INTERIM APPLICATION NO.2/2019
IN
CRIMINAL WRIT PETITION NO.1360/2006
WITH
WRIT PETITION NO.1360/2006
......
GODREJ PROPERTIES LTD.AND ORS. .... PETITIONERS.
VERSUS
THE STATE OF MAHARASHTRA AND ANR. ...RESPONDENTS.
.......
Mr. Shirish Gupte, Senior Counsel a/w Ms. Supriya Kak a/w
Vivek Vashi a/w Anusha Jegadeesh, Madhulika Murthy, Rhia
Mehta i/b Vashi and Vashi for applicants/petitioners.
Mr.K.G.Menon with Advocate Shreeram Shirsat i/b Shreeram
Shirsat for respondent no.2.
Mr.R.M.Pethe, APP for State.
CORAM : A. M. BADAR, J.
DATE : 30TH JANUARY 2020.
P.C.:
1. The writ petition is for quashing and setting aside the
order issuing process passed in the complaint by the learned
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trial Magistrate so also revisional order passed by the
revisional court, dismissing challenge to the order of issuance
of process.
2. Petition is already admitted for final hearing but while
admitting it on 13.9.2007 this court has observed that as the
learned counsel for respondent made a statement that
respondent shall not proceed with criminal compliant, due to
pendency of arbitration proceedings, there is no need to grant
interim relief at that stage of admitting petition.
3. Today the learned senior counsel appearing for
petitioners as well as applicants is seeking grant of
amendment in the petition so also, grant of stay to the
proceedings before learned trial court.
5. Learned Senior counsel for petitioners argued that,
petition is arising out of the complaint which is primarily for
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offence of breach of trust. That complaint came to be filed
by respondent no.2 herein based on the agreement of
development between the parties. Plot of land belonging to
the respondent no.2 was entrusted for development to
petitioners herein and the respondent has alleged breach of
that agreement. Learned senior counsel further argued that
this dispute has given rise to civil action as well as criminal
action. Parties have moved to the Arbitrator for settling
their dispute and the Arbitrator has passed awards which are
subject matter of challenge before this court. According to
the learned senior counsel, powers of this court u/s 482 of
the Criminal Procedure Code as well as under Article 226 and
227 of the Constitution are wide and documents of sterling
quality incontrovertible character can be looked into for
deciding the petition for quashing the process. Learned
Senior counsel placed reliance on the judgment of the Apex
Court in the matter of,
i) Rukmini Narvekar Vs. Vijaya Satardekar and others,
(2008) 14 SCC
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ii) State of Orissa Vs. Debendra Nath Padhi (2005)1 SCC
568.
iii) Nitya Dharmananda Vs. Gopal Sheelum Reddy
(2018)2 SCC 93.
4. With the aid of these judgments it is argued that, in
quashing petition this court can look into the material which
may not form the part of the complaint provided same is of
sterling quality. It is argued that what is sought to be
produced on record by effecting amendment is documents
which forms part of arbitration proceedings and deposition of
witnesses examined during the course of those proceedings.
Therefore, amendment needs to be allowed.
5. Learned senior counsel for the petitioner further argued
that as arbitration proceedings are culminated into awards,
now petitioners needs to be protected by grant of stay
pending the instant proceedings.
6. Learned senior counsel for respondent no.2 vehemently
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opposed the prayer for grant of amendment so also to that of
stay to the proceedings before the trial court by contending
that in the arbitration proceedings, criminal breach of trust by
the petitioner was not an issue. He urged that contrary to
development agreement, the petitioner herein/accused no.1
had withdrawn the amount and thus, committed criminal
breach of trust. In his submission, once revision challenging
order directing issuance of process is dismissed, then the
court can not take into consideration any extraneous material
for deciding the matter. It is further argued by the lerned
counsel for respondent no.2 that there is no question of grant
of stay at this stage, because in the interim order passed by
Deshmukh, J. several reliefs are already granted.
7. Learned senior counsel for respondent no.2 placed
reliance on the judgment of Hon'ble Supreme Court in the
matter of i) B.S.Shambhu Vs. T.S. Krishnaswamy (1983)1 Scc
11 and ii) Municipal Corporaiton of Delhi Vs. Purshotam Dass
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Jhunjunwala and Ors. (1983)1 SCC 9, to substantiate his
submission that, material other than complaint and documents
with complaint forming record of the trial court can not be
looked into in quashing proceeding.
8. I have considered the submissions so advanced and the
material placed before me. Prima facie to my mind, both the
civil and criminal action arose because of common
transaction. There was an agreement for development of a
plot of land. Respondent no.2 herein alleged breach of that
agreement and resorted to filing of criminal complaint for
offence u/s 403, 409, 477-A r/w 34 r/w 120-B of the Indian
Penal Code. Similarly, parties have resorted to the arbitration
proceedings. It is reported that in those proceedings awards
are already passed which are subject matter of challenge in
appropriate proceedings before this court.
9. Perusal of the petition makes it clear that one of
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the grounds urged by the petitioners/original accused is to the
effect that transaction in question is giving rise to the civil
action. A panel of Arbitrators was constituted which included
Former Chief Justice of India as well as former Chief Justice
and the former Judge of this Court. Parties are not disputing
the fact that now those proceedings are ultimately concluded.
What is sought to be placed on record is documents forming
part of arbitration proceedings. With passage of time,
Hon'ble Supreme Court has clarified that powers of this court
u/s 482 of the Criminal Procedure Code as well as under
Article 226 and 227 of the Constitution are unlimited and in
the interest of justice, this court can make order as may be
required to secure ends of justice and to prevent abuse of
process of any court. Material of sterling quality can be
looked into even at the stage of framing charge. In the case
in hand, the petition is for quashing criminal proceedings
mainly with the reason that it is giving rise to civil action
only. Therefore, in my considered view, ratio in the matter
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of Municipal Corporation of Delhi Vs. Purshotam Dass
Jhunjunwala and Ors. (1983)1 SCC 9, is not applicable to the
case in hand. This court can certainly looked into
proceedings held before arbitrator for deciding quashing
proceedings as according to the petitioner, transaction result
in civil liability. So far as stay to the proceedings of criminal
case before trial court is concerned, on the basis of statement
made by the learned counsel for the respondent, the
petitioners were protected for more than 12 years. Now
arbitration proceedings are over. Legality of the proceedings
before trial Magistrate is subject matter of pending petition
and therefore, I am inclined to grant stay to the further
proceedings in subject criminal case.
10. In this view of the matter, I pass following order.
ORDER
i) Application for amendment is allowed.
ii) Amendment be allowed within 14 days from today.
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iii) Interim relief in terms of prayer clause (c) till disposal of petition.
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