IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL CRIMINAL CRIMINAL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.409 OF 2008 J.R.Mulchandani & Anr. .. Petitioner Vs. The State of Maharashtra & Anr. .. Respondents Mr.Satish L. Maneshinde with Ms.Renuka Laxmeshwar, Satyawrat P. Joshi & Mr.Snehal Khairnar for the petitioner. Mr.J.P.Yagnik, A.P.P for the State. ALONGWITH CRIMINAL WRIT PETITION NO.1257 OF 2008 Mr.Kamlesh Sidhnath Mishra .. Petitioner Vs. The State of Maharashtra & Anr. .. Respondents Mr.I.B.Singh for the petitioner. Mr.J.P.Yagnik, A.P.P for the State. Mr.Satish L. Maneshinde with Ms.Renuka Laxmashwar, Satyawrat P. Joshi and Ms.Snehal Khairnar for Respondent No.2. ALONGWITH CRIMINAL WRIT PETITION NO.1063 OF 2008 Mr.Kamlesh Sidhnath Mishra .. Petitioner Vs. The State of Maharashtra & Anr. .. Respondents Mr.Kuldeep S. Patil for the petitioner. Mr.J.P.Yagnik, A.P.P for the State. CORAM CORAM CORAM : ABHAY S.OKA, J. : ABHAY S.OKA, J. : ABHAY S.OKA, J. DATE DATE DATE : 09th September 2008. : 09th September 2008. : 09th September 2008. ORAL ORAL ORAL JUDGMENT: JUDGMENT: JUDGMENT: . Submissions of the learned counsel appearing for the parties were heard on the last date. The prayer : 2 : 2 : 2 : made in Criminal Writ Petition No.409 of 2008 is for quashing the proceedings of Criminal Case No.283/SW/05 pending before the learned Metropolitan Magistrate, 40th Court, Girgaum. A private complaint was filed by the 2nd respondent before the learned Magistrate alleging commission of offence under section 500, 506 read with section 114, 342 and 120-B of the Indian Penal Code. The petitioners in these petitions have been arraigned as accused Nos.2 and 3 in the said complaint. It must be stated here that an application was made by the complainant i.e the 2nd respondent before the learned Magistrate for deleting the names of the petitioners on the ground of settlement. 2. Criminal Writ Petition No.1257 of 2008 has been filed by the petitioner who is the 2nd respondent in Criminal Writ Petition No.409 of 2008. The prayer in the said petition is for quashing and setting aside the Criminal Case No.1833/P/2000 pending before the learned Metropolitan Magistrate, 19th Court, Esplanade, Mumbai. One Sanjay Dayaram Chimnani an officer of M/s.Baron Electronics Pvt Ltd lodged the F.I.R alleging commission of offences under section 381, 408, 409, 465, 467, 468, 471 read with section 120-B of the Indian Penal Code. M/s. Baron Electronics Pvt Ltd has been impleaded as the 2nd respondent in the said petition. An affidavit has been filed by one Kabir Mulchandani, the Managing : 3 : 3 : 3 : Director of the 2nd respondent company stating that in view of mutual settlement between the 2nd respondent company and the petitioner, the 2nd respondent is no longer interested in prosecuting or pressing for prosecution of the said case as against the petitioner. A reply has been filed to this petition by one Shri Suhas S. Raikar, Inspector of Police attached to Andheri police station who is the Investigating Officer who investigated into the offence on the basis of first information report lodged on behalf of the 2nd respondent. A contention has been raised in the said reply that a chargesheet is already filed after completion of investigation and discharge application filed by the petitioner has been rejected by the learned trial Judge on 04th February 2006. It is submitted in the affidavit that the petitioner has been made accused not only on the basis of first information report lodged by the 2nd respondent but on the basis of independent evidence collected during the course of investigation. 3. Writ Petition No.1063 of 2008 has been filed by the petitioner in Writ Petition No.1257 of 2008 for impugning the order passed by the learned trial Judge by which the application for discharge made by the petitioner has been rejected. 4. I have heard the learned counsel appearing for : 4 : 4 : 4 : the parties. The learned counsel appearing for the petitioners in Criminal Writ Petition No.409 of 2008 represents the 2nd respondent company in Writ Petition No.1257 of 2008. He submitted that there is a complete settlement between the company and the 2nd respondent in Criminal Writ Petition No.409 of 2008. The learned counsel appearing for the 2nd respondent in Writ Petition No.409 of 2008 stated that he has no objection for quashing the complaint in view of settlement between the parties. 5. In Criminal Writ Petition No.1257 of 2008, it is submitted that though chargesheet is already filed and application for discharge is rejected, this Court can always exercise powers under section 482 of the Code of Criminal Procedure, 1973. Reliance was placed on a decision of the Apex Court in the case of Madan Mohan Vs. State of Punjab [(2008) 4 Supreme Court Cases Page 582]. It is submitted that there is no specific role ascribed to the petitioner in Criminal Writ Petition No.1257 of 2008. It is submitted that in view of the settlement, no purpose will be served by proceeding against the petitioner in Criminal Writ Petition No.1257 of 2008. The learned A.P.P opposed the prayer made in Criminal Writ Petition No.1257 of 2008 by contending that the incriminating material was found against the petitioner and accordingly a chargesheet is filed. It : 5 : 5 : 5 : was submitted that application for discharge made by the petitioner has been rejected on merits and the said order has been confirmed by the Sessions Court. In so far as Criminal Writ Petition No.409 of 2008 is concerned, the learned A.P.P has left it to the Court. 6. In so far as Criminal Writ Petition No.409 of 2008 is concerned, the 2nd respondent is a complainant in a private complaint where offences alleged are under section 500, 506 read with section 114, 342 and 120-B of the Indian Penal Code. Considering the nature of allegations made therein, in view of settlement between the parties, no purpose will be served by continuing the prosecution and this is a case where the power under section 482 of the said Code will have to be exercised. 7. In so far as Writ Petition No.1257 of 2007 is concerned, the F.I.R was lodged by one Sanjay on behalf of the 2nd respondent company. The allegation in short is that the 2nd respondent as well as another company M/s.Baron Electronics Ltd are distributing the television sets and audio systems produced in the brand name of ‘AIWA and HITACHI’. It is stated in the F.I.R that there were 3700 dealers appointed by the said companies all over India. The officers of the said companies in the offices of the companies all over India and the dealers forward the sale proceeds of the goods : 6 : 6 : 6 : sold by demand drafts to head office of the said companies. The demand drafts were received by one of the accused by the name Pradeep Dabholkar. It is alleged that on 23rd March 1999 demand drafts forwarded by Pune office of the said companies were received by the said Pradeep. The said demand drafts totally amounting to Rs.3,00,000/- disappeared from the office of the company. Later on it was realised that the said demand drafts were encashed. After making enquiries with the Janakalyan Sahakari Bank Ltd, Girgaum, Mumbai it was learnt that an account was opened by Ramprakash Hanuman Jaiswal and Madhukar Bhargav Shinde in the name of company M/s.Baron Electronics Pvt Ltd and total 16 demand drafts amounting to Rs.35,33,000/- were encashed through the said account. After making further enquires it was revealed that there was misappropriation of demand drafts totally amounting to Rs.90,00,000/-. 8. The petitionerin Writ Petition No.1257 of 2008 has been named as accused No.6. The charge against the petitioner accused No.6 is that he was working as financial broker and in furtherence of common intention with accused No.4, the demand drafts received from the accused Nos.7 and 8 were discounted. The relevant part of the charge framed reads thus: "THIRDLY, That the accused No.6, Kamlesh : 7 : 7 : 7 : Siddhanath Mishra, financial broker, on the aforesaid date, time and place, in furtherence of their common intention with accused No.4, Dinesh Kanojia discounted the demand drafts received from accused No.8,7 and when they received the said drafts for discounting, they were having knowledge or were having reason to believe that the said demand drafts were stolen one and siponed off and cheated and douped the complainant to the tune of Rs.90 lacs and thereby they committed an offence punishable under section 420 read with section 34 of the Indian Penal Code." It must be stated here that there is no allegation against the petitioner that he received any amount payable under any of the demand drafts. 9. The Managing Director of the 2nd respondent company has filed an affidavit in which it is stated thus: "i) That, I and above named petitioner have mutually settled our issues and have apologized to each other. : 8 : 8 : 8 : ii) That, I am now no more interested in prosecuting or pressing for prosecution for above named petitioner in Criminal Case No.1833/P/2000 pending before 19th Court, Esplanade, Mumbai. I further state the petitioner has no complaint against me and is no more interested in prosecuting me in the cross case filed by me. Hence it is agreed that the Criminal Case No.1833/P/2000 and the Cross Case No.283/W/2005 pending before the learned Additional Chief Metropolitan Magistrate, 40th Court, Girgaum, Mumbai, be compounded as neither I nor the petitioner are interested in proceeding with the prosecution against each other." 10. In view of the stand taken on oath by Managing Director of the company, it is obvious that the chances of ultimate conviction of the petitioner are very bleak. Even according to the case made out by the first informant it is not the case made out that the petitioner has received any amount. No such material is placed alongwith the chargesheet. Considering these peculiar facts, no purpose will be served by compelling the petitioner to face the prosecution and therefore, a case is made out for exercising power under section 482 : 9 : 9 : 9 : of the said Code of 1973. 11. Hence, I pass the following order: (i) Writ Petition No.409 of 2008 is allowed in terms of prayer clause (a). (ii) Writ Petition No.1257 of 2008 is disposed of by directing that Criminal Case No.1833/P/2000 pending before the Metropolitan Magistrate, 19th Court, Esplanade stands quashed and set aside as against the petitioner. (iii) Writ Petition No.1063 of 2008 does not survive and the same is disposed of. (A.S. Oka, J)