Bombay High Court
Mahesh Jeevatram Pariyani vs Gopal Amar Thakur And Ors on 24 July, 2024
Author: Bharati Dangre
Bench: Bharati Dangre
2024:BHC-AS:30606-DB
CP-133-2022.doc
rajshree
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CONTEMPT PETITION NO.133 OF 2022
Mahesh Jivatram Pariani & Ors. ] .. Petitioners
vs.
Gopal Thakur & Ors. ] .. Respondents
ALONGWITH INTERIM APPLICATION NO.3709 of 2022 IN CRIMINAL APPLICATION NO.520 OF 2015 Mahesh Jivatram Pariani ] .. Applicant vs. Gopal Thakur & Ors. ] .. Respondents Dr.Abhinav Chandrachud a/w Saurish Shetye, Saket R. Ketkar, Premkumar Pandey, Sneha Mishra for the petitioner. Ms.Priyanka Dubey a/w Megha Gupta, Shirish Desai i/b Hedgehog & Fox LLP for Respondent Nos.1 and 2.
Mr.Sachin Chandan for Respondent No.3.
Mr.D.J. Haldankar, APP for the State.
CORAM : BHARATI DANGRE &
MANJUSHA DESHPANDE, J
DATE : 24th JULY, 2024.
P.C.
Digitally
signed by
RAJSHREE
RAJSHREE KISHOR
KISHOR MORE
1] The two proceedings arise out of the order dated 02.05.2016,
MORE Date:
2024.08.02
14:24:54
+0530
passed by this Court in Criminal Application No.520/2015, filed by one Gopal Thakur and Others.
1/14 ::: Uploaded on - 02/08/2024 ::: Downloaded on - 03/08/2024 00:59:25 :::CP-133-2022.doc The Application filed under Section 482 of the Criminal Procedure Code prayed for quashing and setting the FIR bearing CR No.149/2015, registered with Santacruz Police Station, Mumbai, which was renumbered as CR No.17/2015, on it being transferred to EOW, Unit II at Yellow Gate Police Station, Mumbai, being filed at the instance of Respondent No.2, invoking the offence under Section 406 and 420 read with 34 of the Indian Penal Code.
The FIR came to be registered against four persons, which included three Applicants in the Application.
2] Pending the investigation of the subject CR, the parties settled their disputes amicably and in the wake of the understanding arrived between them, an Application was moved for quashing of the FIR. Respondent No.2/complainant filed an Affidavit dated 29.04.2016 and in Para 2, thereof and even in the Joint Affidavit filed by the aggrieved persons, it was stated that they have no objection of any nature whatsoever in quashing and setting aside CR No.17/2015.
3] Recording the presence of Respondent No.2 and the aggrieved persons, a statement was made before the Court on 02.05.2016 that they have fully understood the contents of the Affidavit and they have no objection if CR No.17/2015 is quashed and set aside and they had accorded their no objection for quashing the subject CR, out of free will and without there being any pressure or coercion.
Referring to the decision of the Apex Court in case of Narinder Singh & Others vs. State of Punjab & Anr., (2014) 6 SCC 466, recording that the allegations in the complaint were totally personal in nature and no purpose would be served by putting the criminal proceedings pending except burdening the criminal courts, subject to 2/14 ::: Uploaded on - 02/08/2024 ::: Downloaded on - 03/08/2024 00:59:25 ::: CP-133-2022.doc payment of cost of Rs.50,000/- to be paid by the Applicants in favour of "Naam Foundation", the Criminal Application was disposed off on 02.05.2016.
4] Turning to the present proceedings before us, the Contempt Petition is filed by the complainants alleging disobedience of the Consent Terms and specifically pleading that the Contemnors/Respondent Nos.1 to 3 have jointly and severally disobeyed and violated the order dated 02.05.2016 passed by the High Court in Cr. Application No.520/2015 and for a declaration that they are jointly and severally liable for contempt of this Court and they be punished accordingly.
In addition, a direction is sought to the Respondent Nos. 1 to 3 , to jointly and severally pay a sum of Rs.13,51,87,000/- alongwith interest at the rate of Rs.18% p.a. till passing of the final order in favour of the Petitioners.
5] Alongwith the said Petition, IA No.3709/2022 is filed on 03.10.2022 by Mahesh Pariani, the Complainant, the application being filed under Section 482 of the Code of Criminal PRocedure, for recall of the order/Judgment dated 02.05.2016 by pleading that a fraud has been played by Respondent Nos.1 to 3, upon the Applicant as well as this Court and it is also disclosed that Civil Contempt Petition in the facts and circumstances is already filed alleging disobedience of the order.
The Application seek the following reliefs :-
"A. This Hon'ble High Court be pleased to call for the record and proceedings of Criminal Application u/s. 482 of the Cr.P.C. bearing no.520 of 2015; and after perusal of the same.3/14 ::: Uploaded on - 02/08/2024 ::: Downloaded on - 03/08/2024 00:59:25 :::
CP-133-2022.doc B. This Hon'ble High Court be pleased to recall the Order/ Judgment dated 02nd May, 2016 passed by this Hon'ble High Court in Criminal Application No.520 of 2015.
C. This Hon'ble High Court further be pleased to restore/ revive the F.I.R. bearing no.149 of 2015 registered by the Santacruz Police Station for the offences u/s. 420, 406 r/w 34 of the Indian Penal Code and which was re-numbered as 17 of 2015 by E.O.W. Mumbai, pursuant to the transfer of investigation by Santacaruz Police Station to E.O.W. and further be pleased to direct the Economic Offences Wing to proceed with further investigation in the said C.R. E. Pending the hearing of the present Application, this Hon'ble High Court be pleased to direct the Respondent No.1 to 3 to deposit the balance amount of Rs.13,51,87,500/- (Rupees Thirteen Crores Fifty-One Lakhs Eighty-Seven Thousand Fifty Hundred) with this Hon'ble High Court."
6] We have heard Dr.Abhinav Chandrachud for the Contempt Petitioner and the Applicant in IA No.3709/2022, whereas, the Respondents are represented by Advocate Ms.Priyanka Dubey, representing Respondent Nos.1 and 2, and Advocate Sachin Chandan, represent Respondent No.3, whereas, and Mr.D.J. Haldankar, APP represent the State.
7] We have perused the proceedings in form of Contempt Petition and taken note of the various orders passed by this Court. It is noted by us that by order dated 11.10.2022 both the proceedings were directed to be clubbed.
On 18.11.2022, this Court directed Respondent Nos.2 and 3 to remain present before the Court on 30.11.2022 and though it was informed that Respondent No.1 is presently lodged in Arthur Road Jail, Mumbai, he was permitted to file an Affidavit being affirmed before the Superintendent, Arthur Road Jail.
On 30.11.2022, it was directed that, Respondent Nos.2 and 3 shall remain present before the Court, on each and every date.
4/14 ::: Uploaded on - 02/08/2024 ::: Downloaded on - 03/08/2024 00:59:25 :::CP-133-2022.doc On 21.07.2023, IA No.3709/2022 was listed alongwith the Contempt Petition and a statement made that reply to the Contempt Petition be treated as reply to the present Application, was accepted. Affidavit in Reply was also permitted to be filed, to the Interim Application, within a period of three weeks.
8] We have noted that both the proceedings were moving together hand in hand and reply affidavit came to be filed in the Contempt Petition as well in the Interim Application and the same are placed on record.
Today, Dr.Chandrachud representing the Contempt Petitioner, however, made a statement that he is not desirous of pursuing the Contempt Petition and insisted for prosecuting the Criminal Application, which seek recall of the order passed by this Court and restoration of the subject FIR, which was quashed by exercising the power under Section 482 of the Code, on the statement of the accused persons.
Considering the said request, we have disposed off the Contempt Petition as being not pressed and we proceed to hear the Interim Application.
9] The learned counsel representing the Respondents in the Application, Ms.Priyanka Dubey has raised a preliminary objection about entertaining any such application by the Court, once the proceedings are disposed off, by specifically inviting our attention to Section 362 of the Code of Criminal Procedure, which creates fetters upon the Court, as it becomes functus officio on passing any order.
On merits, it is her submission that the order dated 02.05.2016 only make a reference to the Affidavit filed by Respondent No.2, whereas, the Consent Terms which were reached between the Parties, 5/14 ::: Uploaded on - 02/08/2024 ::: Downloaded on - 03/08/2024 00:59:25 ::: CP-133-2022.doc as out of Court settlement on 28.04.2016, were never placed before the Court.
In addition, she would submit that perusal to the Consent Terms would reveal that the remedy was left open to the complainant by recording that in the event of default in realisation of cheque/s given by the accused to the complainant as per the schedule, he will be at liberty to initiate appropriate civil or criminal proceedings in the Court of law. Hence, it is her submission that it is open for the Applicant (complainant) to initiate appropriate civil proceedings. Further, it is her specific submission that the Court should consider the impossibility of performance and she would invite our attention to the orders passed by the learned Single Judge, which are annexed alongwith the reply affidavit to the Contempt Petition as well as to the Interim Application.
Ms. Dubey has also invited our attention to the order dated 09.09.2015, wherein, a prima facie opinion was expressed by the Court that the transaction in question is a loan transaction and it is her submission that on the very first day on hearing of the Application, by observing to the above effect, the Court had directed that till next date no coercive action shall be taken against the Applicants in respect of the subject crime.
10] Contesting her contentions, Dr.Chandrachud has placed reliance upon the following decisions to submit that the power under Section 482 of the Code of Criminal Procedure, which is saved is an exception :-
1 S. Ramesh & Ors. vs. State (2019) 5 SCC 715 2 State of Punjab vs. Davinder Bhullar (2011) 14 SCC 770 3 New India Assurance Co. Ltd. vs. Krishna Kumar Pandey (2021) 14 SCC 683.
4 Bindeshwari Singh vs. Kali Singh (1977) 1 SCC 57.6/14 ::: Uploaded on - 02/08/2024 ::: Downloaded on - 03/08/2024 00:59:25 :::
CP-133-2022.doc According to him, there are exceptions to general proposition in form of bar to review/alter the Judgment and if an order is obtained by abuse of process of Court, the bar created in form of Section 362 of the Code shall not operate.
Dr. Chandrachud would submit that the accused (respondents to the present application) have defaulted in living upto their commitment and, therefore, he had filed the Contempt Proceedings, but having chosen to drop them, he would seek restoration of the subject CR for being investigated, as it was only on account of the compromise reached between the parties, it was quashed.
11] On hearing the respective counsel, we have noted the scenario which prevails as on date. It is to be noted that, Respondent No.2 is dead, whereas, Respondent No.1 is presently incarcerated.
Criminal Application No.520/2015 was filed by three Applicants, Gopal Thakur, Hasmukh Thakur and Roshan Sheth by invoking power under Section 482, for quashing and setting aside the subject FIR registered against them at the instance of Mahesh Pariani, invoking Section 406, 420 read with 34 of the IPC.
Pending the investigation, the Court was informed that the dispute was amicably settled in pursuance of the understanding arrived between them and, therefore, the Application was filed for quashing of the subject FIR.
12] The Complainant i.e. Respondent No.2 had filed an Affidavit in the Application, where he deposed as under :-
" I, Mr.Mahesh Jeevatram Pariani, Age : 54 years, Occ.: business, R/at 405, Pralhad Apartment, 17th Linking Road, Opp. Arya Samaj Temple, Santacruz (W), Mumbai 400 054, the Respondent No.2 abovenamed do hereby state on solemn affirmation as under :
I say that I have filed FIR on behalf of myself and on behalf of my wife and son 7/14 ::: Uploaded on - 02/08/2024 ::: Downloaded on - 03/08/2024 00:59:25 ::: CP-133-2022.doc bearing C.R. No.I-149/2015, which came to be registered with Santacruz Police Station on 20.3.2015 for the offences punishable u/s.406, 402 a/w 34 of IPC against 1) Mr.Kiran Peswani, (2) Mr.Gopal Thakur, (3) Mr.Hasmukh Thakur and 4) Mr.Roshan S. Sheth, which came to be transferred to Economic Offences Wing, Unit II at Yellow Gate Police Station, Mumbai, for further investigation and was renumbered as CR.17/2015. On 23.10.2015 offences under Sections 465, 467, 468 and 471 of IPC came to be added. I say that I have entered into Consent Terms dated 28th April, 2016 with the Accused Persons; therefore, I have no objection of any nature whatsoever to quash and set aside the above CR No.17/2015 by this Hon'ble Court against all the four accused persons, 1) Mr.Kiran Peswani, (2) Mr.Gopal Thakur, (3) Mr.Hasmukh Thakur and 4) Mr.Roshan S. Sheth."
13] Though the learned counsel Ms. Dubey has assertively stated before us that the Consent Terms are not part of the proceedings, the Affidavit filed by Mahesh Pariani, the complainant, specifically make reference to the Consent Terms dated 28.04.2016, entered with the accused persons and the Affidavit is filed by him on 29.04.2016. The Consent Terms are annexed alongwith the Application and even though it may not be placed before the Court while deciding Criminal Application No.520/2015, it is evident that it is in the wake of the Consent Terms, the complainant accorded his no objection for quashing of the FIR.
14] The Consent Terms dated 28.04.2016 give the background of the registration of the FIR by the complainant on behalf of three others i.e. Mahesh Pariani, Bina Pariani and Amit Pariani, against four accused persons i.e. Kiran Peswani, Gopal Thakur, Hasmukh Thakur and Roshan Sheth being the partners and Directors of M/s. Monarch Imperial and M/s.Monarch Universal Lifescapes Pvt. Ltd. After the investigation of the subject CR was transferred to EOW, attitional offence under Section 465, 467, 468 and 471 of the IPC came to be added against the accused persons, in addition to Section 406, 420 read with 34 of the IPC.
8/14 ::: Uploaded on - 02/08/2024 ::: Downloaded on - 03/08/2024 00:59:25 :::CP-133-2022.doc Para 2 of the Consent Terms record that the complainant and accused persons have mutually agreed that they will make payment to the complainant and his family, during the period commencing from 30.04.2016 to 31.03.2019 as per the schedule set out, through post dated cheques and the complainant agreed to accept the amount towards full and final settlement of his claim. The Consent Terms recorded that after receipt of the above amount, there shall be no claim of whatsoever nature against the accused persons and the MOU executed shall come to an end and the same shall be treated as null and void and the cheques issued by the accused persons in pursuance of the MOU shall be handed over to the accused immediately on execution of Consent Terms.
Para 8 to 10 of the consent Terms, recorded thus :
"8. That the Complainant and the said Accused persons agree to execute necessary deeds and documents, if required, in future in pursuance of this Consent Terms. That the Complainant and the Accused persons or either of them may modify the Consent Terms in writing by mutual understanding without resorting to the legal proceedings.
9. That the said Complainant and his family agree to withdraw Complaints, if any, made against the said Accused persons in terms of the above Consent Terms. The Consent Terms have been entered into without any undue influence, force, coercion or collusion of any nature whatsoever.
10. That the said Complainant consents for quashing of the said CR :I- 17/2015 investigated by Economic Offeces Wing-II, CID in terms of the above Consent Terms as against the said Accused persons."
15] It is worth to note that the Affidavit filed by the complainant on 29.04.2016, that is on the very next date on execution of the Consent Terms on 28.04.2016, specifically make a reference to the same, as the complainant has stated that he had entered into Consent Terms with the accused persons and ,therefore, he has no objection to quash the subject CR, against the four accused persons.
It is in the light of this Affidavit, this Court on 02.05.2016 by exercising its power under Section 482 of the Cr.P.C. was pleased to 9/14 ::: Uploaded on - 02/08/2024 ::: Downloaded on - 03/08/2024 00:59:25 ::: CP-133-2022.doc quash and set aside the subject CR.
16] Reliance is placed upon Section 362 of the Code by the learned counsel for the Respondent and the question for consideration that arises is whether this bar is absolute.
Section 362 of the Code, reads thus :-
"362. Court not to alter judgment.
Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error."
In light of the aforesaid provision, which clearly indicate that the High Court has no power to recall or review its own order, but the scope of this provision will have to be tested against the inherent power in the High Court which is saved under Section 482 of the Code, which clearly provide that nothing in the Code shall be deemed to limit or affect the inherent powers of the High Court, to make such orders as may be necessary to give effect to any order under the Code or to prevent abuse of the process of any Court or otherwise to secure ends of justice.
The object of the Criminal Court undisputedly is to ascertain the truth and since it is inherent power of the High Court to do substantial justice, though it is a well position that this power shall be exercised sparingly to prevent abuse of process any Court and the Court must be careful to exercise its discretion while it exercise this power, based on sound principles.
17] In the case of State of Punjab vs. Davinder Pal Singh Bhullar (supra), the Apex Court clearly held that there is no power of review with the Criminal Court after the Judgment has been rendered and the 10/14 ::: Uploaded on - 02/08/2024 ::: Downloaded on - 03/08/2024 00:59:25 ::: CP-133-2022.doc High Court can only alter or review the same before it is signed.
Recording that Section 362 of the Code is based on an acknowledged principle of law, that once the matter is finally disposed of by a Court, the said Court becomes 'functus officio' and is not entitled to entertain the fresh prayer for any relief unless the former order of final disposal is set aside by a Court of competent jurisdiction in the manner prescribed in law. Admittedly, there is no provision for modification of the Judgment and this prohibition contained in Section 362 has been recognized as absolute.
However, an exception is carved out to this general proposition in the following words :
" If a judgment has been pronounced without jurisdiction or in violation of principles of natural justice or where the order has been pronounced without giving an opportunity of being heard to a party affected by it or where an order was obtained by abuse of the process of court, which would really amount to its being without jurisdiction, inherent powers can be exercised to recall such order for the reason that in such an eventuality the order becomes a nullity and the provisions of Section 362 CrPC would not operate. In such an eventuality, the judgment is manifestly contrary to the audi alteram partem rule of natural justice. The power of recall is different from the power of altering/reviewing the judgment."
The pertinent observation in Para 48 deals with this provision, as against the inherent power of the High Court in the following words :-
"In Sooraj Devi v. Pyare Lal this Court held that the prohibition in Section 362 CrPC against the Court altering or reviewing its judgment, is subject to what is "otherwise provided by this Code or by any other law for the time being in force". Those words, however, refer to those provisions only where the Court has been expressly authorised by the Code or other law to alter or review its judgment. The inherent power of the Court is not contemplated by the saving provision contained in Section 362 CrPC and, therefore, the attempt to invoke that power can be of no avail."
18] The inherent power of the Court under Section 482 of the Code is same where an order has been passed by the Criminal Court, which is 11/14 ::: Uploaded on - 02/08/2024 ::: Downloaded on - 03/08/2024 00:59:25 ::: CP-133-2022.doc required to be set aside to secure ends of justice or where the proceedings pending before a Court, amounts to abuse of process of Court and such power can be exercised in relation to a matter pending before a Criminal Court or where the power can be exercised by the court under the Code of Criminal Procedure. Definitely the power available under Section 482 of the Code, is to be exercised to secure the ends of justice and to prevent the abuse of process of the Court and the exercise of such powers, is necessary to do the right and to undo a wrong, in the course of administration of justice.
The exception which permit the Court to exercise its power, despite it having been rendered "functus officio" as expressed above by the Apex Court, is where an order was obtained by abuse of process of Court, which would really amount to it being without jurisdiction. It is in these circumstances the inherent power can be exercised to recall such order and in such situation an embargo under Section 362 of the Code would not operate.
19] In the present case, but for the Consent Terms entered between the Parties and and the Affidavit filed by the complainant, this Court would not have entertained the Criminal Application filed under Section 482 of the Code, for quashing and setting aside of the subject FIR.
The Affidavit of the Complainant, was based upon the Consent Terms entered between the Parties on 28.04.2016, which were signed by the three Applicants i.e. Gopal Thakur, Hasmukh Thakur and Roshan Sheth, who in unequivocal terms agreed to make the payment to the complainant and his family members during the specified period as per the schedule mentioned therein by post dated cheques. It was also agreed that after receipt of the amount by the complainant, there shall be no claim of any nature against the accused persons and upon 12/14 ::: Uploaded on - 02/08/2024 ::: Downloaded on - 03/08/2024 00:59:25 ::: CP-133-2022.doc receipt of the full amount subject to realisation of cheques, the complainant agreed to hand over all the original documents, agreements, power of attornies executed during the course of Memorandum of Understanding by and between them and thereafter as urged the complainant and/or his family members, shall have no right, title or interest over the said properties mentioned in the MOU.
It is in terms of the aforesaid, the complainant and his family agreed to withdraw the complaint, made the accused persons and had agreed to accord consent for quashing of the subject FIR, being investigated by EOW.
20] While passing the order on the Affidavit of the Complainant, this Court was convinced to quash the FIR only in light of understanding reached in the Consent terms, which in fact settled the discord between the Parties.
Recording that the Consent Terms, were signed without any undue influence or coercion and since the matter was amicably settled between the Parties and apart, the allegations were totally personal in nature, the Court reached a conclusion that no purpose would be served by keeping the criminal proceedings pending except burdening the Criminal Courts which were already over burdened.
The basis of the order dated 02.05.2016 passed on Criminal Application No.520/2015, which quashed the subject FIR, was the Consent Terms, to which Respondent No.2 made a specific reference in his Affidavit.
This Court is not powerless or cannot be a mute spectator, when the accused persons gave a go bye to the terms of settlement and attempt to justify the non-compliance by stating that the eventualities created at a subsequent point of time did not permit them 13/14 ::: Uploaded on - 02/08/2024 ::: Downloaded on - 03/08/2024 00:59:25 ::: CP-133-2022.doc to abide by its terms and conditions, nor can an excuse, that it is open to the complainant to initiate civil proceedings for its non compliance, would deserve any consideration as this Court exercised the inherent powers, only to do complete justice between the Parties, when the dispute amongst themselves was settled amicably and the terms of settlement were specifically put into writing, though we are not very sure whether they were placed before the Court, but definitely the consent Affidavit was based on the Consent Terms.
In any case, there is no denial by the accused persons/Respondents that they have not signed the Consent Terms or they signed the same under some pressure or coercion. But the only excuse which is offered, is on account of impossibility of performance in the wake of subsequent events, which include orders passed by this Court, the payment could not be effected.
Since the order permitting quashing of the subject FIR was obtained by abusing process of Court, but for the settlement, the Court would not have quashed the FIR, we deem it appropriate to recall the order dated 02.05.2016 passed in Criminal Application No.520/2015, as a result of which CR No.149/2015 registered with Santacruz Police Station, (re-numbered as CR no.17/2015), with EOW, Unit II at Yellow Gate Police Station, Mumbai, is restored to is file.
Economic Offences Wing is at liberty to proceed with investigation of the said CR against Accused Nos.1 and 3, as it is informed that Accused No.2 is no more alive.
Interim Application is allowed in the aforesaid terms.
[MANJUSHA DESHPANDE, J ] [BHARATI DANGRE, J] 14/14 ::: Uploaded on - 02/08/2024 ::: Downloaded on - 03/08/2024 00:59:25 :::