Shakil Mohd. Hussian Shaikh And ORS v. Shamshu Sama Usmani And ANR

ssp

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELATE JURISDICTION CRIMINAL WRIT PETITION NO.19 OF 2016 Shakil Mohd. Hussain Shaikh and others

...Petitioners

vs.

Shamshu Zama Usmani & Anr.

...Respondents

Ms Shabans Sathe i/b S.P.Associates for the Petitioners Mr.Ganesh Shikshare for the respondent No.1 Ms M.H.Mhatre, APP for respondent No.2 CORAM : A.S.OKA, & A.A.SAYED, JJ.

DATE : AUGUST 26, 2016 P.C.:

.

Not on board. Taken on board.

Heard the learned counsel for the petitioners and the learned counsel for the first petitioner. Rule. The learned APP waives service for the second respondent. The learned counsel for the first respondent waives service.

The prayer in this petition under Article 226 of the Constitution of India and section 482 of the Code of Criminal Procedure,1973 is for quashing the FIR registered at the instance of the first respondent for the offences punishable under sections 406 and 420 of the Indian Penal Code. We have perused the statement of the first

informant on the basis of which FIR was registered. The allegation is that there was an agreement between the petitioners and the first respondent under which the petitioners agreed to let out a room to the first respondent. Only allegation is that as the first respondent was not placed in possession, the petitioners have cheated him.

In the proceedings before the Small Causes Court between the parties, consent terms have been filed. A copy of the consent terms have been annexed to the petition. Even receipt of the amounts received by the first respondent is annexed. The first respondent has filed an affidavit confirming receipt of various amounts under the consent terms and has recorded his no objection for quashing the FIR. Perusal of the FIR shows that the dispute is purely a civil dispute over an immoveable property. The same has been completely settled. Therefore, in the light of law laid down by the Apex Court in the case of Gian Singh versus State of Punjab and another1, this is a fit case to exercise power of this Court for quashing the FIR.

Hence, we pass the following order:

(I) Rule is made absolute in terms of prayer clause (b) which reads thus:

(b) That this Hon'ble Court will be pleased to issue writ of Certiorari or a Writ in the nature of Certiorari or any other appropriate 1 (2012) 10 SCC page 303

writ, direction or order under Article 226 of the Constitution of India arising out of FIR No.240/14 registered on the basis of complaint dated 12.12.2014 in the records of the B.K.C. Police Station under section 406 and 420 of IPC, and after going through their validity and/or legality and/or correctness thereof quash and/or set aside the same."

(II) All concerned to act upon an authenticated copy of this order.

(A.A.SAYED,J.) (A.S.OKA,J.)