Khalid Mustafa Vasaiwala And ORS v. The State Of Maharashtra And ANR

1 APL 439-18.doc-906

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.439 OF 2018 Khalid Mustafa Vasaiwala & Ors.

] ... Applicants

Versus

The State of Maharashtra & Anr.

] ... Respondents Mr. Vivek Tambe i/b MST Legal for Applicants. Mr. Rajan Salvi, APP for State - Respondent No.1. Mr. Bastivi Mohammad Akram Abdul Hai for Respondent No.2. CORAM :- R. M. SAVANT & SARANG V. KOTWAL, JJ.

DATE :- 27 APRIL, 2018 P. C. :- 1.

The above Criminal Application has been filed for quashing the proceedings being C.C.No.2852/PW/2015. The said case has arisen out of the FIR being C.R.No.450 of 2014 registered with the Khar Police Station, Mumbai, on 07/11/2014, for the offences punishable under Section 420 read with Section 34 of the IPC and Sections 4, 8 and 13 of the Maharashtra Ownership of Flats (Regulations of Construction, Sale, Management and Transfer) Act, 1963. The said FIR has arisen out of the business transaction in

2 APL 439-18.doc-906 respect of sale of a flat between the Respondent No.2 i.e. the first informant and the company of the Applicants M/s. Hicons Developers Pvt. Ltd. It is not necessary to dilate further on facts. 2.

It seems that the parties were also before this Court in a Civil Suit which was filed by the Respondent No.2 herein for specific performance of contract being Suit No.723 of 2015. The learned Counsel for the parties state that the said Suit has been withdrawn yesterday i.e. 26/04/2018 before a learned Single Judge of this Court (S. J. Kathawalla, J.). The Respondent No.2 herein who, as indicated above, is the first informant, has filed an Affidavit affirmed before Mr.G. K. Upadhyay, Advocate, Notary Public, having his office at Jaipur. The said Affidavit bears the Notarial Registration No.115/18 and is dated 02/04/2018. In the context of the relief sought in the present Petition, para 3 of the said Affidavit is material and is reproduced hereinunder.

"3.

In the premise, I have no objection and do hereby give my fee consent for quashing of the F.I.R. bearing C.R no.450 of 2014 dated 7-11-2014 lodged with Khar Police Station, Khar, Mumbai, Charge Sheet dated 29-9-2015 filed on the said F.I.R.

and criminal matter bearing no.PW/2852/2015 pending before the Ld. the Addl.

3 APL 439-18.doc-906 Chief Metropolitan Magistrate, 9th Court, Bandra, Mumbai."

However, prior to the said para 3, in para 2, it has been stated by the Affiant that the Applicants (wrongly referred as 'Appellants') have agreed to refund to her the amount paid by her in respect of the flat, together with interest thereon. It is further stated that the Applicants have deposited the Pay Order for the said amount with her Advocate to be handed over to her on quashing of the criminal proceedings. 3.

The husband of the Respondent No.2 Mr.Arvind Kumar Bajoria is personally present in Court. He is identified by the learned Counsel Mr. Bastivi Mohammad Akram Abdul Hai. He is also identified by his Aadhar Card bearing no.4729 6814 6229. His Aadhar Card bears the address C-3A, 1-B, Sawai Jai Singh Highway, Banpark, Jaipur, Shastri Nagar, Jaipur, Rajasthan - 302016. He has also produced a Power of Attorney dated 21/02/2018 executed by his wife in his favour. When put in the box and queried, he states that both he and his wife have read the Affidavit dated 02/04/2018. He further states that the contents of the said Affidavit are acceptable to him and his wife and that his wife has signed the said Affidavit of her

4 APL 439-18.doc-906 own free will and volition. He lastly states that both of them are of the opinion that the case in question should not be proceeded with. 4.

The Applicant No.1 Mr. Khalid Mustafa Vasaiwala who is one of the Directors of M/s. Hicons Developers Pvt. Ltd., is also personally present in Court. He is identified by the learned Counsel Mr.Vivek Tambe instructed by MST Legal. He is also identified by his Aadhar Card bearing no.4706 1474 1238. When put in the box and queried, he states that a settlement has been arrived at between the parties as a consequence of which the company of the Applicants has deposited the amount paid by the Respondent No.2 along with the interest with the learned Counsel Mr. Bastivi Mohammad Akram Abdul Hai and would be payable to the Respondent No.2 after the proceedings are quashed.

5.

The Applicant No.4 Mr. Nadeem Abdul Sattar Lakdawala who is also a Director, is also personally present in Court. He is also identified by learned Counsel Mr. Vivek Tambe instructed by MST Legal. He is also identified by his PAN Card bearing no.AAAPL4893N. He states likewise as the Applicant No.1 Mr. Vasaiwala.

5 APL 439-18.doc-906 6.

In view of the fact that the statements of two Directors of M/s. Hicons Developers Pvt. Ltd. have been recorded, it is not necessary to record the statements of the other Directors, who are also personally present in Court.

7.

Having regard to the Affidavit filed by the Respondent No.2 and the contents thereof, as also having regard to the statement made by the Power of Attorney of the Respondent No.2 who is her husband, as also the statements made by the Applicant No.1 Mr. Khalid Mustafa Vasaiwala and the Applicant No.4 Mr. Nadeem Abdul Sattar Lakdawala, the same unequivocally disclose that the parties have settled the dispute as a result of which the Respondent No.2 does not desire to proceed with the case in question. 8.

Having regard to the Judgments of the Apex Court in the cases of Gian Singh Vs. State of Punjab & Anr. reported in (2012) 10 SCC 303 and Narinder Singh & Ors. Vs. State of Punjab & Anr. reported in 2014 AIR SCW 2065, there is no impediment in allowing the above Criminal Application. No useful purpose would be served in

6 APL 439-18.doc-906 keeping the Criminal Application pending. The Criminal Application is required to be allowed and is accordingly allowed in terms of prayer clause (c).

9.

In In view of the fact that the machinery of this Court is utilized for settling the matter, the Applicants to deposit costs of Rs.25,000/- with the National Association for Blind, Worli within six weeks from date. Receipt to be obtained and filed in the Registry. (SARANG V. KOTWAL, J.) (R. M. SAVANT, J.)