1

IN THE HIGH COURT OF JUDICATURE AT

BOMBAY

CRIMINAL APPELLATE JURISDICTION

CRIMINAL WRIT PETITION NO. ______ OF 2022

DISTRICT: Mumbai

In the matter of Article

226 of the Constitution

of India r/w Section 482

 2
of the Code of Criminal

Procedure, 1973;

And;

In the matter of FIR No.

542 of 2022 dated 10th

July 2022 corresponding

to General Diary

Reference Entry No. 030

registered with the Park

Site Police Station for

offences committed

under sections 406 &

420 r/w 34 of the Indian

Penal Code, 1860.

Ashok Mangal Gawand, )

Adult, Aged about 57 years, )

Occ. – Business, Residing at: )

206, Shivam Apartments, )

Mahajanwadi, Behind Thakur Mall, )

Mira Road (East), Thane. ) …

Petitioner
 3
Versus

1. The State of Maharashtra )

(Through Park Site Police Station )

Vikhroli(W). )

2. Mr. Pravin Bhalubhai Wagh, )

Adult, Aged about 46 years, )

Occ. – Real Estate, Residing at: )

7, Jagdushanagar, Shrivalli Society, )

Rifle Range, Ghatkopar (West), )

Park Site, Mumbai – 400 086. ) …First

Informant/

…Respondents

TO:

THE HON’BLE CHIEF JUSTICE AND

OTHER HON’BLE PUISNE JUDGES OF THE

HIGH COURT OF JUDICATURE AT BOMBAY

THE HUMBLE PETITION OF THE

PETITIONERS ABOVENAMED:

MAY IT PLEASE YOUR LORDSHIP:

 4
1. The Petitioner has approached this Hon’ble Court by

way of this present Writ Petition in order to quash the

FIR No. 542 of 2022 dated 10th July 2022,

corresponding to General Diary Reference Entry No.

030, registered with the Park Site Police Station,

Vikhroli (West), Mumbai registered against the

Petitioner for offences committed under sections 406

& 420 r/w section 34 of the Indian Penal Code, 1860.

(“FIR”). Hereto annexed and marked as Exhibit – “A”

is a copy of the said FIR along with its English

translation.

2. The Petitioner is a businessman who regularly pays his

income tax and has deep roots in the society. The said

Petitioner is a law-abiding citizen and has no criminal

antecedents of any nature. The Respondent No. 1 is

the State of Maharashtra under whose jurisdiction the

said FIR has been registered by the officials of the

Park Site Police Station, and Respondent No. 2 is the

First Informant at whose instance the said FIR was

lodged.

3. The Petitioner states that the present Petition is filed

for quashing the said FIR on the ground that the

 5
Petitioner and the Respondent No. 2 have mutually

settled all the subsisting disputes between themselves

and the same has been drawn into a deed of

Settlement Agreement, duly signed and notarized on

_______ 2022. It is to note that the said Consent Terms

categorically define the terms and conditions, upon

which the aforementioned disputes have been

resolved. Hereto annexed and marked as Exhibit –

“B” is the copy of the Settlement Agreement dated

_______ 2022.

4. In this backdrop, the Petitioner states that the

following is the case of the prosecution:

i. It is the case of the prosecution that the

Respondent No. 2 owns a business of Real Estate

and as is the nature of his business, he is in contact

with many people. In or around the year 2019, one

of the contacts of the Respondent No. 2, Mr.

Rambhai, had introduced the Respondent No. 2 to

the Petitioner.

ii. Mr. Rambhai informed the Respondent No. 2 that

the Petitioner is engaged in the business of

housekeeping and other licensing work. It is case

 6
of the prosecution that the Respondent No. 2

visited the office of the Petitioner on multiple

occasions. During the said visits it is alleged that

the Petitioner informed the Respondent No. 2 that

he is in the process of getting work in respect of

parking at Mumbai Airport but the same could only

be taken by the high-profile company.

iii. During the said period, one of the friends of the

Respondent No. 2 was running a company by the

name and style of Midas Parking SDN DSD in

Malaysia. The Respondent No. 2 accordingly spoke

to his friend in Malaysia and informed him of the

parking business at the Mumbai Airport.

iv. Thereafter, it is the case of the prosecution that in

or around August 2020, during the advent of the

COVID-19 pandemic, it is alleged that the

Petitioner informed the Respondent No. 2 about

one Mr. Mantu Prasad, who could assist them in

getting the tender approved for the parking at the

Mumbai Airport. The Petitioner accordingly shared

the contact details of said Mr. Mantu Prasad with

the Respondent No. 2. It is also alleged that the

 7
Petitioner informed the Respondent No. 2 that due

to the ongoing COVID-19 pandemic no tender was

being issued but the Petitioner assured the

Respondent No. 2 that they will surely get tender

with the help of Mr. Mantu Prasad.

v. Thereafter, it is alleged that the Petitioner and Mr.

Mantu Prasad travelled to Delhi and telephonically

informed the Respondent No. 2 that they had met

the Secretary, IAS Officer with regards to the

Airport work. However, the Respondent No. 2

categorically informed them that he will pay for the

expenses once he sees the progress of the work

and not prior to that.

vi. Further, it is alleged that upon the Petitioner’s

return to Mumbai, he informed the Respondent No.

2 that profile of the Respondent No. 2’s friend’s

company i.e. Midas Parking SDS DSD has been

approved for the parking work at the Mumbai

Airport. However, a substantial expense needs to

be incurred with regards to the same. It is the case

of the prosecution that the Petitioner allegedly

demanded a sum of ₹10,00,000/- (Rupees Ten Lacs

 8
Only) from the Respondent No. 2 towards

travelling and other expenses. Pursuant thereto,

the Respondent No. 2 attempted to pay ₹5,00,000/-

into the bank account of Mr. Mantu Prasad but the

same could not be made.

vii. Since the payment could not be made into Mr.

Mantu Prasad’s bank account, he provided details

of other bank accounts where the said ₹5,00,000/-

could be transferred. The following are the details

of the bank accounts where the amount was

transferred:

 ₹99,500/- & ₹97,500/- were transferred on 18 th

September 2020 into ICICI Bank account no.

33470100183 of Mr. Mukesh Kumar Mahatao by

way of cash deposit;

 ₹3,03,000/- were transferred on 19th September

2020 into HDFC Bank account no.

50100364664465 of Mr. Abhishek Kumar

Mandal through RTGS.

viii. It is further alleged by the prosecution that in

September 2020, the Respondent No. 2 visited

Ahmedabad along with the Petitioner for the

 9
parking related work and Mr. Mantu Prasad had

also come. During the said visit Mr. Mantu Prasad

informed the Respondent No. 2 that he had taken a

gold bracelet worth ₹1,00,000/- from one of the

Respondent No. 2 acquaintances, Mr. Pankaj Boliya

who is jeweler at Vashi, Navi Mumbai. It is alleged

that the said gold bracelet was given by Mr. Mantu

Prasad to the Petitioner and then the Petitioner

gave the same to Mr. Mantu Prasad in front of the

Respondent No. 2.

ix. Thereafter, it is alleged that the Mr. Mantu Prasad

left for Delhi from Gujarat and informed the

Respondent No. 2 that he would take up their work

for parking at Mumbai Airport. However, since two

to three days had passed and no progress was seen

in the work, it was thus decided to hold a video

conference between the Petitioner, Respondent No.

2 and Mr. Mantu Prasad. During the said

conference, an argument took place between the

Petitioner and Mr. Mantu Prasad and, Mr. Mantu

Prasad thereafter refused to take up their work.

 10
x. Thereafter, it is the case of the prosecution that the

Petitioner then contacted his sister, one Mrs. Disha

Thakkar (Disha Soras) and she informed that she

would get their work done through one of his

friend Mr. Tejas Patel (son of Mill owner

Chhaganlal Patel). Mr. Tejas Patel informed the

Respondent No.2 that he has good contacts with

the GVK owner’s relative – Mr. Hemant Reddy and

that he has already spoken to him about their work.

xi. Pursuant to the aforesaid, it is the case of the

prosecution, that Mrs. Soras came to Mumbai and

a meeting was held between Mr. Tejas Patel, Mr.

Hemant Reddy and one Mr. Kasim at the office of

the Respondent No. 2 at Ghatkopar. During the

said meeting, the Respondent No. 2 shared

information about his company and they had

assured that they will complete the work and the

Respondent No. 2 may have to travel to Hyderabad

maybe once or twice for the same.

xii. Thereafter, it is alleged that the Petitioner took Mr.

Tejas Patel and the Respondent No. 2 on a

conference call. On the said call, Mr. Tejas Patel

 11
informed the Respondent No. 2 that he would

charge ₹25,00,000/- for getting their wok done.

The Respondent No. 2 informed Mr. Tejas Patel

that he cannot pay such a huge amount. After

negotiations, it was decided that Respondent No. 2

would pay ₹20,00,000/-.

xiii. Since, the Respondent No. 2 did not have the

aforesaid amount, the same was paid by the

relatives of the Respondent No. 2. The details of

the transfer are as follows:

 ₹5,00,000/- was wired on 1st February 2021 by

Mrs. Bhanuben Vaja – Bank Name: SBI; Branch

– Mahuja Gujrat; Account No. –

560121336681);

 ₹15,00,000/- was wired on 2nd February 2021

by Mr. Jitendra Kumar Vaja – Bank Name: SBI;

Branch – Mahuja Gujrat; Account No. –

56011216126).

The aforesaid amount of ₹20,00,000/- was

transferred into the bank account of Mr. Tejas

Patel in his Indusland Bank Account No.

159867132132; Branch – Jamnagar, Gujarat.

 12
During the said period, Mr. Tejas Patel had also

signed an MOU with the Respondent No. 2 and

issued a cheque bearing no. 021697 for

₹20,00,000/- in favour of the Respondent No.2.

xiv. It is further alleged that after the aforesaid

payment was made to Mr. Tejas Patel, the

Respondent No. 2 used to call Mr. Tejas Patel to

inquire about the progress of the work done.

However, Mr. Tejas Patel on false pretext would

give one reason or other for non-completion of the

same.

xv. Pursuant to the aforesaid, the Respondent No. 2

approached the officials of Park Site police station

and the said FIR came to be registered against the

Petitioner, Mr. Tejas Patel, Mrs. Disha Soras and

Mr. Mantu Prasad for offences committed u/s 406

& 420 r/w 34 of the IPC.

xvi. It is brought to the attention of this Hon’ble Court

that the Petitioner thereafter preferred an

Anticipatory Bail Application No. 2305 of 2022

 13
before this Hon’ble Court and the same was

allowed on 25th August 2022 (“ABA”).

xvii. Whilst allowing the said ABA, it was specifically

recorded therein in para 6, that the Respondent

No. 2 herein has no grievance against the present

Petitioner and he shall give his no objection to

quash the said FIR if at all the Petitioner makes

any such application. Hereto annexed and marked

as Exhibit – “C” is the copy of the said

Anticipatory Bail Application No. 2305 of 2022

dated 25th August 2022.

xviii. Vide the aforesaid ABA this Hon’ble Court had also

directed the Petitioner herein to pay a sum of ₹

50,000/- to the Respondent No. 2 as and by way of

compensation in addition to the ₹6,00,000/- which

was paid to the Respondent No. 2 during the

course of hearing of the said ABA in order to settle

the matter amicably. In compliance thereof, the

Petitioner accordingly paid ₹50,000/- to the

Respondent No. 2 on _______ in the presence of the

Investigating Officer of Park Site Police Station.

Hereto and annexed and marked as Exhibit – “D”

 14
is the acknowledged copy of the Demand Draft No.

011247 dated 26th September 2022 for ₹50,000/-

drawn on Bank of Baroda in favor of the

Respondent No. 2.

xix. The Petitioner since the registration of the FIR has

been co-operating with the Investigating Officer of

the Park Site Police Station and has diligently

appeared before the said Investigating Officer as

and when called.

GROUNDS

5. The Petitioner states that pursuant to the settlement

between the parties vide the said Consent Terms, the

Petitioner is filing the present Petition, on various

amongst the following grounds which are without

prejudice to one another:

i. The Petitioner submits that the parties have

mutually settled the disputes and neither the

Petitioner nor the Respondent No.2 have any

grievance against each other. Hence, the

Petitioner humbly submits that in the interest of

justice the proceedings arising out of the said FIR

No. 542 of 2022 ought be quashed and set aside.

 15
ii. The Petitioner submits that the dispute between

the Petitioners and the Respondent No.2 is a

private dispute, which has now been amicably

settled. The Petitioner states that no purpose will

be achieved if the said FIR is not quashed and kept

pending considering the mutual settlement

between the parties. Further, in a case where the

parties have mutually settled all their disputes,

chances of conviction are bleak. Therefore, it will

be futile exercise to not quash and set aside the

said FIR and to condemn the Petitioner to face the

trial.

iii. The Petitioner humbly submits that the Hon'ble

Supreme Court of India in the case of

Narinder Singh & Ors. vs State Of Punjab &

Anr., reported in [(2014) 6 SCC 466] has held

that even in cases where Section 307 of IPC is

involved, the High Court can quash the FIR

considering the settlement between the parties.

The Hon'ble Supreme Court further held that, if

the parties have settled the disputes immediately

after the commission of the offence, when the

 16
matter is still under investigation and the injuries

suffered are not serious, then in such cases the

High Court may exercise its power to quash the

FIR.

iv. The Hon'ble Supreme Court further held that

another factor which need to be considered is

whether it would be unfair or contrary to the

interest of justice to continue with the criminal

proceedings and whether possibility of conviction

is remote and bleak. If the Court finds the answer

to this question in affirmative, then also such a

case would be a fit case for the High Court to give

its stamp of approval to the compromise arrived at

between the parties, inasmuch as in such cases no

useful purpose would be served in carrying out the

criminal proceedings which in all likelihood would

end in acquittal, in any case.

v. The Petitioner submits that the Hon'ble Supreme

Court in the above referred case was pleased to

quash and set aside the FIR, wherein, offence

alleged was Section 307 of IPC. Whereas, in the

present case, sections 406 & 420 r/w 34 of the IPC

 17
are added which are not as grave as offence under

Section 307 of IPC. It is submitted that that the

facts of the present case satisfy the test laid down

in Narinder Sighs case (supra). Therefore, by

virtue of the settlement between the parties, it is

perfectly legal to quash the present FIR.

vi. The Petitioner states that the dispute between the

parties is of personal nature and no prejudice will

be caused to the society at large or the State, if

the present Petition is allowed and the

proceedings arising out of the said FIR are

quashed by this Hon’ble Court. Further, no

question of public policy is involved in the present

dispute between the parties and hence in the

interest of justice the proceedings arising out of

the said FIR may be quashed considering the

amicable settlement arrived at between the

parties.

vii. Further, it is submitted that the Hon’ble

Supreme Court in Lovely Salhotra and Anr.

vs. State, NCT of Delhi (2017 SCC Online SC

636), observed and held that “We have taken into

 18
account the fact of the matter in question as it

appears to us that no cognizable offence is made

out against the appellant-herein. The High Court

was wrong in holding that the F.I.R. cannot

be quashed in part and it ought to have

appreciated the fact that the appellants-

herein cannot be allowed to suffer on the

basis of the complaint filed by Respondent

No.2— herein only on the ground that the

investigation against co-accused is still

pending. It is pertinent to note that the learned

Magistrate has opined that no offence is made out

against co- accused Nos.2, 3, 4 and 6 prima facie.

Accordingly, we set aside the order of the High

Court and quash the FIR qua the appellants-

herein.”

(Emphasis
Supplied)

viii. Also, recently the Hon’ble Delhi High Court in

the case of Sunil Tomar v. The State of NCT

of Delhi & Anr – 2022 LiveLaw (Del) 309, has

observed that partial quashing or part quashing of

 19
FIR only qua the accused with whom the

complainant has compromised or settled the

matter can be allowed. It was held that “Partial

quashing or part quashing of FIR only qua

the petitioner/ accused with whom the

complainant has compromised or settled the

matter can be allowed and while quashing, it

must be appreciated that the petitioner/accused

cannot be allowed to suffer based on a complaint

filed by the respondent, when subsequently, all

disputes have been settled between the parties".

(Emphasis
Supplied)

6. The Petitioner craves leave of this Hon’ble Court to

add, alter and amend the grounds of the present

Petition.

7. No other Petition/ Application has been filed in this

Hon’ble Court or any other Hon’ble Court for quashing

and setting aside the said FIR.

8. The entire cause of action has arisen within the

jurisdiction of this Hon'ble Court and thus this Hon'ble

Court has jurisdiction to entertain the present Petition.

 20

9. The Court fees of Rs. _______/- is affixed with the

present Petition.

10. The Petitioners therefore prays:

a) This Hon'ble Court be pleased to quash and set

aside the FIR No. 542 of 2022 dated 10th July 2022

corresponding to General Diary Reference Entry

No. 030 registered with the Park Site Police Station

qua the Petitioner for offences committed under

sections 406 & 420 r/w 34 of the Indian Penal Code,

1860;

b) Pending the hearing and final disposal of this

Petition, this Hon'ble Court be pleased to stay

further proceedings arising out of the FIR No. 542

of 2022 dated 10th July 2022 corresponding to

General Diary Reference Entry No. 030 registered

with the Park Site Police Station qua the Petitioner

for offences committed under sections 406 & 420

r/w 34 of the Indian Penal Code, 1860;

 21
c) For interim and ad-interim reliefs in terms of prayer

clauses (b) & (c) above;

d) For such other and further reliefs as this Hon’ble

Court may deem fit and proper in the nature of the

case.

Place: Mumbai Ashok Mangal

Gawand
Date: ___ September 2022
Petitioner

Hamdan Weldon
Advocate for Petitioner
 22

VERIFICATION

I, Ashok Mangal Gawand, aged about 57 years, Indian

Inhabitant, Occ. – Business, residing at 206, Shivam

Apartments, Mahajanwadi, Behind Thakur Mall, Mira

Road (East), Thane, the Petitioner abovenamed, do

hereby solemnly affirm and declare that what is stated in

paragraph nos. 1 to 4 of this Writ Petition is true and

correct to the best my own knowledge and belief and

nothing has been concealed therein and what is stated in

paragraph nos. 5 to 10 is based on the information and

legal advice, which I believe to be true and correct.

Solemnly affirmed at Mumbai )

Deponent
Dated ___day of September 2022 )

Identified by me;
Before me;
 23

Hamdan Weldon
Advocate for the Petitioner