Mehtab Khan vs State & Anr on 8 August, 2017

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Misc(Pet.) No. 3192 / 2015

1. Mehtab Khan s/o Sh.Bhure Khan

2. Moinudeen Khan s/o Sh.Bhure Khan

3. Shakoor Khan s/o Sh.Bhure Khan
All petitioners are b/c Sindhi Musalman and r/o Sindhiyon Ka Bas,
Siwanchi Gate, Jodhpur (Raj.).

—-Petitioner
Versus

1. State of Rajasthan

2. Kaleem Ansari s/o Sh. Ramjanji, b/c Musalman, r/o
Saudagaran, Behind Oswal Nyati Nohra, Jodhpur (Raj.).

—-Respondent
__
For Petitioner(s) : Mr.Vineet Jain
For Respondent(s) : Mr.V.S.Rajpurohit PP for the State.

Mr.Rajesh Shah, Mr.Pankaj Gupta
__
HON’BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Order
Reserved on 04/08/2017

Pronounced on 08/08/2017

1. This criminal misc. petition under Section 482 Cr.P.C.

has been preferred for quashing FIR No.456/2012 dated

12.12.2012 registered at Police Station, Udaimandir, Jodhpur and

all consequential proceedings pursuant to the FIR for the offences

under Sections 420, 406, 467, 468, 471 and 120B IPC.

2. A complaint was filed by respondent No.2, which was

forwarded under Section 156(3) Cr.P.C., whereupon FIR

No.456/2012 was registered at Police Station, Udaimandir,
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Jodhpur. The allegations were that the complainant’s Firm,

namely, ‘M/s.Darpan Engineers’ was allotted an industrial plot in

Boranada Industrial Area on 21.08.1993. The complainant raised

some construction and started operating his Firm after installing

some machinery. However, since he was not doing well in the

business, he took help of one Shaukat Khan and rented him the

said plot. The rent was to be paid to Rajasthan Financial

Corporation in lieu of the loan taken on account of installation of

the machinery. After Shaukat Khan expired in the year 2010, the

complainant came to know that the name of the Firm has been

changed to ‘Nasrani Steel’, and the land had been usurped by

means of a forged partnership deed dated 28.02.1996, in which

the accused persons have posed themselves as partners, and vide

another agreement dated 30.04.1996, the retirement deed of the

complainant dated 22.05.1996 was also signed.

3. Initially, a negative final report was filed by the

concerned investigating authority. During investigation, a

compromise was arrived at between both the parties, which is on

record as Annexure-1. On account of the said compromise,

anticipatory bail was granted to the present accused by a

coordinate Bench of this Court on 07.10.2015 in S.B.Criminal Misc.

Bail Application No.8259/2015, relevant portion of which reads as

under:-

“i{kdkjku ds fo}ku vf/koDrkx.k dk dFku gS fd i{kdkjku ds
e/; jkthukek gks x;k gS rFkk mUgksaus vkilh fookn lqyk fy;k gSA
lquk x;kA i{kdkjku ds fo}ku vf/koDrkx.k ds dFkuksa ij fopkj
fd;k x;kA ekeys ds rF;ksa ,oa ifjfLFkfr;ksa ij fopkj fd;k x;kA
i{kdkjku ds e/; vkilh jkthukek gks tkus ds rF; dks ns[krs gq,] bl
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U;k;ky; dh jk; esa izkFkhZ dh vksj ls izLrqr vfxze tekur izkFkZuk i
Lohdkj fd;s tkus ds mfpr vk/kkj miyC/k gSA ”

4. Learned counsel for the petitioner drew the attention of

this Court towards para No.2 of the compromise, in which it was

written that complete loan has been discharged by the accused

and the complainant shall not pursue the FIR in question and the

complainant shall make all necessary efforts to close the FIR, in

accordance with the said compromise arrived at between the

parties. It was also stated in the compromise that for such

compromise, an amount of Rs.15,00,000/- had been paid to the

complainant, out of which Rs.13,00,000/- was paid through

Demand Draft No.018069 dated 08.09.2015 of Central Bank of

India, Jalori Gate Branch, Jodhpur and Rs.2,00,000/- in cash. The

reference of the said compromise also finds place in the

aforementioned order.

5. Learned counsel for the petitioner has relied upon the

judgment rendered by this Court in Siddarth Mogra Vs. State of

Rajasthan Anr., (S.B.Criminal Misc. Petition

No.3144/2014 decided on 25.07.2017), which reads as

under:-

“1. Petitioner has preferred this misc.
petition under Section 482 of Cr.P.C. for quashing
of proceedings pertaining to Regular Criminal
Case No.89/2011 pending trial before the learned
Additional Chief Judicial Magistrate No.2, Udaipur
for offence punishable under Sections 498A, 406
IPC arisen out of FIR No.79/2010 of police Station
Mahila Thana, Udaipur.

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2. The brief facts of the case are that the
petitioner and respondent No.2 were married on
13.02.2005. The present FIR was registered on
25.08.2010. The disputes between the parties
were resolved by an agreement dated
12.04.2012. The agreement dated 12.04.2012
culminated into payment of permanent alimony of
Rs.10,00,000/- and a decree of divorce by mutual
consent under Section 13 (B) on 18.12.2012.

3. Counsel for the petitioner states that
thus, the parties had entered into a compromise
and the chain of events clearly indicate that
criminal complaint surviving against the present
petitioner is abuse of process of law. Counsel for
the petitioner has further pointed out from the
agreement in which condition No.8 clearly
stipulate the withdrawal of the present criminal
proceedings.

4. Learned counsel for the petitioner has
relied upon the judgment of Ruchi Agarwal Vs.
Amit Kumar Agrawal Ors. Reported in
2005 Supreme Court Cases (Cri) 719, the
relevant portion of this judgment which is as
follows :-

” (5) In the compromise petition, referred to
herein above, both the parties had agreed to
withdraw all the civil and criminal cases filed by
each against the other. It is pursuant to this
compromise, the above divorce as sought for by
the appellant was granted by the husband and
pursuant to the said compromise deed the
appellant also withdrew Criminal Case No.63 of
2002 on the file of the Family Court, Nainital
which was a complaint filed under Section 125 of
the Criminal Procedure Code for maintenance. It
is on the basis of the submission made on behalf
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of the appellant and on the basis of the terms of
the compromise, said case came to be dismissed.
However, so far as the complaint under Sections
498A, 323 and 506IPC and under Sections
3 and 4 of the Dowry Prohibition Act is concerned,
which is the subject matter of this appeal, the
appellant did not take any steps to withdraw the
same. It is in those circumstances, a quashing
petition was filed before the High Court which
came to be partially allowed on the ground of the
territorial jurisdiction, against the said order the
appellant has preferred this appeal.

(6) From the above narrated facts, it is clear
that in the compromise petition filed before the
Family Court, the appellant admitted that she has
received Stridhan and maintenance in lump sum
and that she will not be entitled to maintenance
of any kind in future. She also undertook to
withdraw all proceedings civil and criminal filed
and initiated by her against the respondents
within one month of the compromise deed which
included the complaint under Sections
498A, 323 and 506 IPC and under Sections
3 and 4 of Dowry Prohibition Act from which
complaint this appeal arises. In the said
compromise, the respondent- husband agreed to
withdraw his petition filed under Section 9 of the
Hindu Marriage Act pending before the Senior
Judge, Civil Division, Rampur and also agreed to
give a consent divorce as sought for by the
appellant.

(7) It is based on the said compromise the
appellant obtained a divorce as desired by her
underSection 13(B) of the Hindu Marriage Act and
in partial compliance of the terms of the
compromise she withdrew the criminal case filed
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under Section 125 of the Criminal Procedure Code
but for reasons better known to her she did not
withdraw that complaint from which this appeal
arises. That apart after the order of the High
Court quashing the said complaint on the ground
of territorial jurisdiction, she has chosen to file
this appeal. It is in this background, we will have
to appreciate the merits of this appeal.

(8) Learned counsel appearing for the
appellant, however, contended that though the
appellant had signed the compromise deed with
the above-mentioned terms in it, the same was
obtained by the respondent-husband and his
family under threat and coercion and in fact she
did not receive lump sum maintenance and her
Stridhan properties, we find it extremely difficult
to accept this argument in the background of the
fact that pursuant to the compromise deed the
respondent-husband has given her a consent
divorce which she wanted thus had performed his
part of the obligation under the compromise
deed. Even the appellant partially performed her
part of the obligations by withdrawing her
criminal complaint filed under Section 125. It is
true that she had made a complaint in writing to
the Family Court where Section 125 Cr.P.C.
proceedings were pending that the compromise
deed was filed under coercion but she withdrew
the same and gave a statement before the said
court affirming the terms of the compromise
which statement was recorded by the Family
Court and the proceedings were dropped and a
divorce was obtained. Therefore, we are of the
opinion that the appellant having received the
relief she wanted without contest on the basis of
the terms of the compromise, we cannot now
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accept the argument of the learned counsel for
the appellant. In our opinion, the conduct of the
appellant indicates that the criminal complaint
from which this appeal arises was filed by the
wife only to harass the respondents.

(9) In view of the above said subsequent
events and the conduct of the appellant, it would
be an abuse of the process of the court if the
criminal proceedings from which this appeal
arises is allowed to continue. Therefore, we are of
the considered opinion to do complete justice, we
should while dismissing this appeal also quash
proceedings arising from the Criminal Case
No.Cr.No.224/2003 registered in Police Station,
Bilaspur, (Distt.Rampur) filed underSections
498A, 323 and 506 IPC and under Sections
3 and 4 of the Dowry Prohibition Act against the
respondents herein.”

5. Learned counsel for the respondents has
stated that certain aspects of the matter were not
complied by the petitioner himself as he has not
withdrawn a case which was mentioned on page 6
of the agreement i.e. a protest petition against an
FR pending before Additional Chief Judicial
Magistrate No.2, Udaipur. Counsel for the
petitioner has further argued that complainant is
a lady and was persuaded and dragged into the
compromise and therefore, the present
proceedings ought not to be interfered with.

6. After hearing counsel for the parties and
perusing the record of the case, this Court is of
the opinion that once a compromise has been
arrived between the parties on 12.04.2012 and
the terms of the compromise include bringing an
end to proceeding of the present Regular Criminal
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Case No.89/2011 pending before the learned
Additional Chief Judicial Magistrate No.2, Udaipur
and that compromise was acted upon the
between the parties which resulted into payment
of Rs.10,00,000/- as permanent alimony and also
the divorce petition by mutual consent in which
the decree was granted on 18.12.2012 then it
was not open for the respondent to step back and
say that she was dragged into the compromise.
The complainant is an educated lady who has
with open eyes accepted the terms of
compromise so as to bring the present
proceedings to an end and the petition seeking
divorce by mutual consent remained pending for
about six months and later on was decreed which
shows that the application of mind was there by
both the parties for parting ways by mutual
consent.

7. In light of the discussion and precedent
law cited at this Court, the present misc. petition
is allowed and entire proceedings pertaining to
Regular Cr. Case No.89/2011 (State Vs. Siddarth)
pending trial before the learned Additional Chief
Judicial Magistrate No.2 Udaipur are quashed and
set aside.

8. It is however made clear that in case any
proceeding is being persuaded by the petitioner
against the respondent contrary to the terms of
the agreement dated 12.04.2012 then the
petitioner shall be required to bring those
proceedings to an end. We record undertaking of
the counsel for the petitioner to abide by the
same.”

6. Learned counsel for the respondent has stated that

since the compromise is not agreeable to the respondent,
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therefore, the same cannot be acted upon. Learned counsel for

the respondent further stated that the petitioner has committed a

fraud upon the complainant, and thus, there is no question of

entering into any kind of compromise.

7. Learned counsel for the respondent however, could not

deny the aforementioned order passed by a coordinate Bench of

this Court passed in the aforesaid anticipatory bail application,

wherein the fact of compromise between the parties was

mentioned, while granting indulgence to the present petitioner.

Learned counsel for the respondent also candidly admitted the fact

of receiving a total amount of Rs.15,00,000/- by the respondent

through the aforementioned demand draft and in cash, but he has

stated that the amount was not received for entering into the

compromise. The said amount of Rs.13,00,000/- has been paid

through Demand Draft No.018069 dated 08.09.2015 on account of

due rent.

8. Learned counsel for the respondent has placed reliance

on the precedent law laid down by the Hon’ble Apex Court in

Yogendra Yadav Ors. Vs. State of Jharkhand Anr.,

(2014) 9 SCC 653, whereby the Hon’ble Apex Court has held

that the High Court can quash the criminal proceedings under

Section 482 Cr.P.C. even though the offence alleged is non-

compoundable, if parties have amicably settled their disputes, and

victim has no objection. Whereas, in the present case, the victim

has all the objections to the compromise, and therefore, does not

want to bring an end to the present proceedings.

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9. After hearing the learned counsel for the parties as well

as perusing the record of the case alongwith the precedent law

cited at the Bar, this Court is of the opinion that once the

compromise has been acted upon between the parties, as the

complainant has admitted receiving of the amount of

Rs.13,00,000/- by the same demand draft, as aforementioned,

and Rs.2,00,000/- in cash, as mentioned in the compromise, then

it was incumbent upon the respondent to abide by the terms

thereof. The terms of the compromise also included taking of

recourse to bring an end to the present proceedings arising out of

the impugned FIR.

10. Once the compromise has been arrived at between the

parties so as to bring an end to the present proceedings pursuant

to the impugned FIR and the compromise has also been acted

upon between the parties, which resulted into payment of

Rs.15,00,000/-, as agreed between the parties, then it was not

open for the respondent to step back and say that he is not

agreeable to the compromise. The complainant is an astute

businessman, who with open eyes has accepted the terms of the

compromise, so as to bring an end to the present proceedings,

and in lieu of that, loan amount of Rajasthan Financial Corporation

was discharged by the present petitioner as well as an amount of

Rs.15,00,000/- was also paid.

11. This Court is thus of the opinion that after the

aforementioned compromise, if the present proceedings are

allowed to continue, then it would amount to an abuse of the

process of law at the hands of the complainant.

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12. In light of the aforesaid discussion and the precedent

laws cited by learned counsel for the petitioner, the present misc.

petition is allowed and FIR No.456/2012 dated 12.12.2012

registered at Police Station, Udaimandir, Jodhpur and the entire

proceedings pursuant thereto are quashed and set aside. The stay

application also stands disposed of.

(DR. PUSHPENDRA SINGH BHATI)J.

Skant/-

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