1 wp 2219 of 2010 vks IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 2219 OF 2010. 1. Irfan Abdul Rahim Shaikh, age. 29 2. Abdul Rahim Shaikh, age. 53 3. Noorjahan Abdul Rahim Shaikh age: 27, 4. Irshad Abdul Rahim Shaikh, 5. Rehana Abdul Rahim Shaikh, age: 30 all residing at :Hari Om Apartment G/1, Phase-1, A Wing, 100 ft road, Diwanman, Vasai (W) Thane. .. 6. Rukhasana Nisar Shaikh, age: 31 7. Nisar Shaikh, age: 32, Nos 6 and 7 residing at Vadaka Dawari Nagar, Gatge No.1, Hirabai Chawl, Davosi Nagar, room No.90, Santacruz (E) Mumbai. 8. Kanij Shaikh, age: 50 years, 9. Farzana Shaikh, age: 27 years Nos 7 and 8 residing at : G-1, Man Mandir, Complex Diwanman, Vasi (W) Thane. .. Petitioners. Original accused. -versus 1. Reshama Irfan Shaikh, age: 24 residence at: 103/A, Ankur Building, Ganga Complex, 2 wp 2219 of 2010 Naya Nagar, Meera Road (E), Thane. 2. The State of Maharashtra. .. Respondents. Respondent No.1 is the original complainant. Mr. S. P. Bharti, for the Petitioners. Mr. P. H. Kantharia, APP for the Respondent State. Mr. Shyam Mehta, for respondent No.1. CORAM: R.C. CHAVAN, J. DATED: 6th January, 2011 P.C. 1. This writ petition is directed for quashing the proceeding in Criminal Case No.368 of 2007 and Misc. Application NO.96 of 2009 filed by the respondent No.1. Respondent No.1 had filed Civil suit No.146 of 2008, before the Civil Judge S.D. for dissolution of her marriage with the petitioner No.1 herein. 2. In that civil suit consent terms were filed at Exh.11. These consent terms recite that the respondent No.1 wife had agreed to withdraw the allegations and criminal case no.368 of 2007; as also criminal MIsc. Application No.96 of 2009. The consent terms recite that the husband had agreed to pay a sum of Rs. 5,786/- towards Meher and a sum of Rs.24,000/- as Iddat and rent of four months after criminal case No.368 of 2008 was withdrawn. These consent terms were recorded before the Civil Court on 2lst 3 wp 2219 of 2010 July,2010. The learned Judge has endorsed on the consent terms that “plaintiff, her advocate, defendant alongwith his advocate present. They deposed that the contents of this consent terms are true and correct. Plaintiff and Defendant also admitted their signatures. Hence R & R”. Thereafter the learned Judge proceeded to dispose of the suit on the same day by endorsing below exh.1 that “In view of consent terms filed at Exh.11, matter stands compromised and hence disposed of accordingly”. 3. After this, respondent No.1 wife refused to withdraw the criminal case as well as Misc. Application. This is how, the petitioners are before this Court. 4. Respondent No.1 wife first filed Application on 25th August, 2010 in this Court stating that she had agreed to accept the sum of Rs.24,000/- as Iddat amount and to settle the dispute. She states that the before making payment of iddat amount petitioner No.1, taken her signature on one papers and thereafter refused to pay Iddat amount. She also stated that her husband petitioner No.1 torn the paper on which he had taken her signature and threatened her to do whatever she liked. Thereafter by order of this Court dated 25th August,2010, Advocate Mr. Shyam Mehta ,was appointed to represent the respondent No.1 wife and he has drafted and filed an affidavit of the respondent wife, sworn by her on 11th October,2010. It is stated in the affidavit that her 4 wp 2219 of 2010 advocate informed her that consent terms had been prepared and that she should remain present in the Court on 21st July,2010 for the purpose of signing and filing the same. She was told that she would be given copy of consent terms in the Court on 21st July, 2010. She alleged that her advocate hurriedly made her to sign some documents without permitting her to read the same. She claims that she signed the same in good faith and under the bonafide belief that the same contained the terms as agreed between the parties. After the consent terms were recorded the advocate did not give her copy. She has a grievance that Iddat amount of Rs.24,000/- was not paid to her. In view of this, she has been pursuing her remedies in the Criminal Court. 5. Learned counsel for the petitioners submits that after having agreed to settle the dispute and to withdraw criminal case as well as maintenance application, it was not open to the respondent wife to go back. He submitted that the word of respondent that she had not consented to the terms which the learned Trial Court recorded, should not be believed, since the learned Civil Judge has duly endorsed on the consent terms that the parties had agreed to it. This would be a matter to be considered by the learned trial Court since on the face of statement of Respondent No.1 that the terms were not explained to her, it would be difficult to conclude that the consent terms had been read 5 wp 2219 of 2010 over to her or were accepted by her word by word, particularly since the civil suit pertained to divorce and not about allegations which are subject matter of the criminal case. 6. Learned counsel for the petitioners relied on two judgments of this court. In case of Mrs. Usha Badri Poonawalla -vs- K.Kurien Babu and anr 2005 (11) LJSOFT (URC) 24, The question was of memorandum in relation to liability arising out of dishonour of cheque. In that case the memorandum had been tendered in evidence before framing charge in the same case and respondent had admitted the correctness of the contents of memorandum and execution thereof. Since the evidence about the memorandum was tendered before the Court in the same trial, the powers u/s 482 of the Criminal procedure Code were invoked to quash the proceeding holding it to be abuse of process of law. 7. In case of Hemakute Industrial Investment & ors - vs- Central Bureau of Investigation & ors, 2006 (10), LJSOFT (URC) 18, this Court was considering quashing of criminal proceeding filed on the allegations that bogus and fictitious invoices and lorry receipts were submitted by the borrower. The bank had also filed a suit in the year 1992 and in that suit the same lorry receipts had been relied. On an application for interim relief, Court receiver was appointed. Court receiver took possession of those lorry receipts and on the basis of those lorry receipts took 6 wp 2219 of 2010 possession of the goods. The Court receiver issued sale notice and the goods were then sold and purchased by third parties. Had the lorry receipts been bogus, there would have been no question of the Court receiver being able to complete the sale on the basis of those receipts and therefore, this Court held that the charge on the basis of allegations that lorry receipts were bogus and fictitious and therefore quashed those proceedings. 8. Such are not facts of the present case. Here the respondents categorically states that she had not been explained the consent terms and was hurriedly made to sign the same. The consent terms were filed in a proceeding where obviously the cause was altogether different, unlike case of dishonour of negotiable instrument where memorandum was in respect of the same instrument, or the case filed on the basis of bogus and fictitious lorry receipts, where the civil suit was on the basis of same receipts. The criminal case proceeded on the foundation of allegation of cruelty for the offence punishable under Section 498-A of the Indian Penal Code. Therefore, unless evidence is taken, it would not be possible to outright reject the claim of respondent No.1 that she had not consented to such terms which had been filed before the Civil Judge Sr.Dn. Therefore, it can not be said that continuation of the proceeding by her before Magistrate amount to abuse of process of Court inviting action under Section 482 of the 7 wp 2219 of 2010 Criminal Procedure Code, from this Court. In view of this, the present writ petition is rejected. 9. The learned counsel for the applicant states that applicant propose to take the matter to a higher forum. The proceeding before the Magistrate shall continue to be stayed for a further period of 8 weeks. (R. C. CHAVAN, J.)