APPP. 130-11 - 1 - VPH IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION No. 130 OF 2011 IN CRIMINAL APPLICATION No. 2390 OF 2010 WITH CRIMINAL APPLICATION No. 4309 OF 2009 Sharad Cocasse ...Applicant Vs. The State of Maharashtra & Anr. ...Respondents *** Mr. Prabhajit Jauhar i/b Vasant Dhawan, for the Applicant. Mr. P. S. Hingorani, AGP, for Respondent No.1-State. Mr. N. P. Deshpande, for Respondent No.2. *** CORAM: V. M. KANADE J. DATE : APRIL 11, 2011 P.C. 1. An applicant has filed this criminal application, seeking modification of the order dated 21st February, 2011 passed by this Court in Criminal Application No. 2390 of 2010 and 4309 of 2009. The said two applications were filed for quashing the criminal case filed by respondent No.2 for the offences punishable under Section 498-A, 406 read with Section 34 of the I.P. Code of the Indian Penal Code vide C.R. APPP. 130-11 - 2 - No. 83 of 2009. 2. The brief facts are as under- . The respondent No.2 and applicant herein got married in the year 2001. The applicant is residing in Minnesota (U.S.A.). The respondent No.2 was staying with the applicant and there are two issues born out of this marriage. According to the applicant, respondent No. 2 came to India along with two children, and according to respondent No. 2, the applicant deserted her & her two children, as a result she has to come to India. The applicant thereafter filed a writ petition in this Court seeking a writ of habeas corpus against respondent No.2. When the said writ petition came up for hearing before the Division Bench of this Court on 26th April, 2001 (Coram : D. B. Bhosle & A. R. Joshi, JJ), a suggestion was made by the Court. Pursuant to the said suggestion, there was negotiation between the parties and as a result ‘Consent Terms’ were filed. In terms of said ‘Consent Terms’ it was agreed by the parties that applicant shall deposit an amount of Rs. 50 lakh by demand drafts in the name of respondent/wife and the minor children and a petition for divorce by mutual consent would be filed in the Family Court at Pune within 15 days. So far as ‘Streedhan’ which was claimed by respondent No.2 is concerned, it was agreed that the APPP. 130-11 - 3 - jewelery which was kept in the locker in the joint name of the mother-in- law and daughter-in-law, would be given to the respondent No.2. It was clarified that if it was found that the locker is operated before 23-8-2005, in that event, respondent No.2 shall file an appropriate proceedings. An undertaking was also directed to be given by the mother-in-law to the Court that she has not operated the said account, prior to the said date. One of the conditions in the ‘Consent Terms’ was that within 15 days from the date of filing the ‘Consent Terms’, an application would be made for quashing the criminal complaint, filed by respondent No.2/wife. Accordingly, Criminal Application Nos. 2390 of 2010 with 4309 of 2009 were filed for quashing the complaint. Thereafter an officer of this Court was appointed for the purpose of taking inventory of the locker and the locker was accordingly opened in presence of the said Officer, appointed by this Court. There was some dispute after the inventory was made and two orders were passed by this Court dated 28th July, 2010 and 2nd August, 2010. In the mean time, however, demand drafts which were tendered by the applicant herein, since the period of validity was over, were rendered invalid since more than six month were passed. 3. Respondent No.2 did not agree to file the petition for APPP. 130-11 - 4 - divorce by mutual consent, and therefore, ‘Contempt Petition’ was filed by the applicant. Number of lawyers appeared before this Court and the matter was argued on umpteen number of times. A suggestion was given by this Court from time to time to resolve the stalemate which had occurred due to lapse of time. The apprehension expressed by the wife was that if the application for quashing was allowed, the respondent/wife would not be in a position to recover the said amount of Rs.50 lakhs from the applicant, since he was staying in U.S.A., as the demand drafts which were deposited by the applicant had become invalid, and therefore, a submission was made that the applicant should be directed to deposit the said amount of Rs.50 lakhs in this Court again. 4. On the other hand, the apprehension of the applicant was that the respondent/wife would not file a petition for divorce by mutual consent. Unfortunately, though the matter was on board on number of dates, suggestion made by this Court could not be accepted by both the parties. I had suggested to the applicant that since the demand draft had become invalid after expiry of six months, he should re-deposit said amount in this Court and I had asked the learned counsel appearing on behalf of respondent No.2 to approve the draft ‘Consent Terms’ and file a petition for divorce by mutual consent in the Family Court. APPP. 130-11 - 5 - Unfortunately, till today the said amount of Rs. 50 lakhs has not been deposited by the applicant in this Court, though each counsel and senior counsel who had appeared before me on the earlier dates, had agreed that applicant was willing to deposit this amount. 5. At the same time it was strenuously urged that in view of the consent terms which are filed, this Court was duty bound to quash the criminal complaint which was filed by the wife by exercising its inherent jurisdiction under Section 482 Cr. P. C. and under Art. 227 of the Constitution of India. On 21st February, 2011 Mr. S. R. Chitnis, the learned senior counsel appearing on behalf of applicant submitted that “since validity of the bank draft which was deposited by the applicant had come to an end, the applicant will re-deposit the agreed amount in the Court within one week from today”. The respondent was also permitted to withdraw the ornaments which were kept in the locker, as per the inventory made by the officer of the Court and under these circumstances, it was observed that the said Criminal Applications which were filed for quashing the complaint would be kept pending till disposal of the divorce petition, which was pending in the Family Court and thereafter the application for quashing would be finally disposed of, in view of the ‘Consent Terms’. It was necessary to pass the aforesaid order APPP. 130-11 - 6 - in order to ensure that the respondent/wife gets agreed amount of Rs.50 lakhs, as agreed between the parties. Since the amount was not deposited by the applicant, it had become necessary to protect the interest of the respondent/wife, her two children, particularly since the applicant was residing outside the jurisdiction of this Court viz. U.S.A. It is an admitted position that though a solemn statement made by the learned senior counsel Mr. S. R. Chitnis, appearing on behalf of the applicant that the applicant would deposit the agreed amount in this Court within a week, till today that statement has not been complied with, though in the application which is filed by the applicant, it is stated that the applicants are willing to deposit that amount. After this order was passed, SLP was filed in the Apex Court, challenging the direction given by this Court that application would remain pending till disposal of the petition for divorce by mutual consent of the parties, in the Family Court. The Apex Court passed the following order on 15-3-2011. . “Learned counsel appearing for the petitioner seeks permission to withdraw the special leave petitions with liberty to move the High Court for appropriate relief and for modification of the impugned order. Permission is granted. The special leave petitions are dismissed as withdrawn.” 6. And thereafter present application has been filed for APPP. 130-11 - 7 - modification of the order and more particularly the observations made in the said order as under- “These criminal applications shall be kept pending till the disposal of the divorce by mutual consent in the Family Court and thereafter, the applications shall be finally disposed of in view of the consent terms.” 7. In my view, in view of the facts and circumstances mentioned hereinabove, it will not be possible to modify the said observation made in the order dated 21st February, 2011, firstly, since the solemn statement made by the learned senior counsel Mr. S. R. Chitnis has not been complied with and the amount, as agreed, has not been deposited in this Court. It is, however, very vehemently urged that in the ‘Consent Terms’ , the parties had agreed that within15 days from the date of filing of the ‘Consent Terms’ after the bank drafts are deposited in this Court, the Criminal complaints shall be quashed, it is, therefore, urged that the said observations should be set aside. It is not possible to accept this submission. It is a settled position in law that merely because ‘Consent Terms’ are filed in a non-compoundable case, this Court is not bound to quash the criminal complaint, merely because the complainant and the accused have agreed to settle the dispute while exercising the APPP. 130-11 - 8 - inherent power of this Court under Section 482 Cr. P.C. And under Art. 227 of the Constitution of India, unless this Court has satisfied that interest of both parties are protected. In the present case, if the criminal complaint is quashed, at this stage there is every possibility that after quashing of the criminal complaint, the applicant may not deposit said amount of Rs.50 lakhs, as was agreed and respondent No.2 and her minor children would be deprived of that amount. The application was heard on number of occasions and the arguments have been advanced by various counsel who have appeared on behalf of the applicant and yet the amount of Rs.50 lakh which was agreed, has not been deposited. An apprehension expressed by applicant is, therefore, without any substance. Hence, in my view, it is not possible to modify the said order. The Criminal Application for modification of the order dated 21st February, 2011 is, therefore, dismissed. [ V. M. KANADE J.]