YOGI AGARWALversusRASHMIKANT SHAH AND ANR

                                                  933-APL-416-2024.DOC




          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                CRIMINAL APPELLATE JURISDICTION
              CRIMINAL APPLICATION NO.416 OF 2024


Yogi Agarwal                                        …Applicant
      Versus
Rashmikant Shah & Anr.                              …Respondents


Mr. Anil Agarwal a/w. Ms. Chhaya More, for the Applicant.
Mrs. M. R. Tidke, APP, for the Respondent-State.


                        CORAM:      MADHAV J. JAMDAR, J.
                        DATED :     23rd SEPTEMBER 2026
P. C.:


1.       Heard Mr. Agarwal, learned Counsel appearing for the

Applicant and Mrs. Tidke, learned APP appearing for the

Respondent-State. Inspite of service, none appears for Respondent

No.1.



2.       By this Criminal Application filed under Section 482 of the

Code of Criminal Procedure, 1973 (“CrPC”), the Applicant is

challenging the legality and validity of the order dated 1st March

2016 passed by the learned Additional Chief Metropolitan

Magistrate,      22nd    Court,    Andheri,   Mumbai,      in    C.C.

No.451/SW/2012 as also the legality and validity of the order




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dated 2nd December 2023 passed by the learned Additional

Sessions Judge, City Civil and Sessions Court, Borivali, Division,

Dindoshi, Mumbai, in Criminal Revision Application No.144 of

2016. By the impugned order dated 1 st March 2016, the learned

Additional Chief Metropolitan Magistrate issued process against

the accused for the offences punishable under Sections 406, 420,

465, 468 and 471 of the Indian Penal Code, 1860 (“IPC”) and by

order dated 2nd December 2023, passed by the learned Additional

Sessions Judge, the Revision Application challenging the said order

issuing process is dismissed.



3.       Mr. Agarwal, learned Counsel appearing for the Applicant

submitted that Ardy International (P) Limited, a company in which

the present Applicant is a Director has filed the Civil Suit No.2032

of 2005 on the Original Side of this Court against Shah Knitwear

Industries Private Limited, a company of which Respondent No.1 is

a Director, seeking a decree for a sum of Rs.11,91,053/- along with

further interest on Rs.9,44,254/- at the rate of 18% per annum. He

submits that the said Suit has been decreed by this Court by a

judgment and decree dated 2nd August 2010. He submits that the

execution proceedings bearing Execution Application No.1273 of




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2017 has been initiated. In the meanwhile, the Respondent No.1-

Rashmikant Shah in his capacity as a Director of M/s. Shah

Knitwear Industries Private Limited, filed a private complaint

bearing C.C. No.451/SW/2012 against the Applicant- Yogi Agarwal

in his capacity as a Director of Ardy International (P) Limited. He

submits that the said complaint has been filed for the mala fide

purpose of delaying the execution proceedings so that the

Applicant does not enjoy the fruits of the said decree dated 2 nd

August 2010 passed by this Court in Suit No.2032 of 2005.



4.       Before considering the contentions raised by the learned

Counsel appearing for the Applicant, it is required to be noted that

a learned Single Judge (Coram: R. N. Laddha, J.) passed the

following order on 12th February 2025:


            “. Heard.
            2. Issue notice to the respondents. Ms Fatima
            Lakdawala, waives service of notice on behalf of
            respondent No.1 and seeks time to file reply
            affidavit. Copy to be served on the other side
            within four weeks from today.
            3. Stand over to 16 April 2025.
            4. The learned trial Court shall defer the hearing
            of the case, till the next date.”
                                              (Emphasis added)




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5.       Learned Counsel appearing for Respondent No.1 had sought

additional time to file affidavit in reply and same was granted by

the learned Single Judge by order dated 16 th April 2025, which

reads as under:


            “. Time is extended by three weeks’ to file the
            reply affidavit.
            2. Stand over to 9 June 2025, as a last chance.”

6.       Thereafter, this Criminal Application was placed before this

Court on 27th July 2026 and the learned Counsel appearing for the

Applicant pointed out that neither the said Fatima Lakdawala,

learned Counsel has filed Vakalatnama nor reply has been filed.

Therefore, this Court passed the following order on 27th July 2026:



            “1) A Learned Single Judge, by order dated 12 th
            February, 2025 has issued notice to the
            Respondents and at that time, Ms. Fatima
            Lakdawala, learned counsel has appeared for the
            Respondent No. 1 and waived service of notice
            and sought time to file affidavit in reply.
            However, learned counsel for the Applicant states
            that no reply has been filed nor even the
            vakalatnama has been filed by Ms. Fatima
            Lakdawala, learned Advocate.

            2) Accordingly, Mr. Anil Agarwal, the learned
            counsel appearing for the Applicant is requested
            to issue communication to the Respondent No. 1-
            Rashmikant Shah about the next date of hearing.




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            3) It is clarified that as Ms. Fatima Lakdawala,
            learned advocate has already appeared in the
            matter on 12th February, 2026 and waived service
            of notice on behalf of Respondent No. 1, this is
            just an intimation to the Respondent No. 1 before
            proceeding further in the matter as the service is
            already completed.

            4) It is made clear that if none appears on behalf
            of Respondent No. 1 on the next date of hearing,
            the Court shall proceed to hear and decide the
            Criminal Application on merits.

            5) Stand over to 24th August, 2026.

            6) The learned Trial Court is requested to grant
            suitable adjournment beyond 24th August, 2026.”

                                           (Emphasis added)


7.       Learned Counsel appearing for the Applicant states that

pursuant to the said order, a communication is addressed to

Respondent No.1, however, the same has returned back with

remark that “no such person is found at the said address”. He

submits that he has personally called Ms. Fatima Lakdawala,

learned Counsel who has appeared for Respondent No.1 and

informed about the above order dated 27 th July 2026. He submits

that affidavit to that effect will be filed during the course of the

day.




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8.       Inspite of this, none appears for Respondent No.1.



9.       Perusal of the record shows that in the year 2005, Suit

No.2032 of 2005 has been filed by Ardy International (P) Limited,

of which the Applicant is a Director against Shah Knitwear

Industries Private Limited, of which Respondent No.1 is a Director

seeking the following reliefs:



            “(a) that the Defendants be ordered and decreed,
            to pay to the Plaintiff a sum of Rs.11,91,053/-
            and further interest on Rs.9,44,254/- at the rate
            of 18% p.a. or at such other rate as this Hon’ble
            Court may deem fit and proper, from the date of
            filing of the suit till payment or realisation
            thereof.

            (b) for costs of the suit and

            (c) for such further and other reliefs as the nature
            and circumstances of the case may require.”

         A learned Single Judge by judgment and decree dated 2 nd

August 2010 decreed the said Suit.



10.      Thereafter,   the   said   private   complaint   bearing   C.C.

No.451/SW/2012 has been filed. The process has been issued

under Sections 406, 420, 465, 468 and 471 of the IPC by the




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impugned order dated 1st March 2016. The said order has been

confirmed by the learned Revisional Court by the impugned order

dated 2nd December 2023.



11.      Learned Counsel appearing for the Applicant has relied on

the decision of the Supreme Court in the case of State of Haryana

v. Bhajan Lal1 and more particularly, on paragraph No.102 of the

same, which reads as under:



             “102. In the backdrop of the interpretation of the
             various relevant provisions of the Code under
             Chapter XIV and of the principles of law
             enunciated by this Court in a series of decisions
             relating to the exercise of the extraordinary
             power under Article 226 or the inherent powers
             under Section 482 of the Code which we have
             extracted and reproduced above, we have given
             the following categories of cases by way of
             illustration wherein such power could be
             exercised either to prevent abuse of the process
             of any court or otherwise to secure the ends of
             justice, though it may not be possible to lay down
             any precise, clearly defined and sufficiently
             channelised and inflexible guidelines or rigid
             formulae and to give an exhaustive list of myriad
             kinds of cases wherein such power should be
             exercised.

             (1) Where the allegations made in the first
             information report or the complaint, even if they
             are taken at their face value and accepted in their
1        1992 Supp (1) SCC 335




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         entirety do not prima facie constitute any offence
         or make out a case against the accused.

         (2) Where the allegations in the first information
         report and other materials, if any, accompanying
         the FIR do not disclose a cognizable offence,
         justifying an investigation by police officers under
         Section 156(1) of the Code except under an order
         of a Magistrate within the purview of Section
         155(2) of the Code.

         (3) Where the uncontroverted allegations made
         in the FIR or complaint and the evidence
         collected in support of the same do not disclose
         the commission of any offence and make out a
         case against the accused.

         (4) Where, the allegations in the FIR do not
         constitute a cognizable offence but constitute
         only a non-cognizable offence, no investigation is
         permitted by a police officer without an order of
         a Magistrate as contemplated under Section
         155(2) of the Code.

         (5) Where the allegations made in the FIR or
         complaint are so absurd and inherently
         improbable on the basis of which no prudent
         person can ever reach a just conclusion that there
         is sufficient ground for proceeding against the
         accused.

         (6) Where there is an express legal bar engrafted
         in any of the provisions of the Code or the
         concerned Act (under which a criminal
         proceeding is instituted) to the institution and
         continuance of the proceedings and/or where
         there is a specific provision in the Code or the




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            concerned Act, providing efficacious redress for
            the grievance of the aggrieved party.

            (7) Where a criminal proceeding is manifestly
            attended with mala fide and/or where the
            proceeding is maliciously instituted with an
            ulterior motive for wreaking vengeance on the
            accused and with a view to spite him due to
            private and personal grudge.”

                                          (Emphasis added)


12.      Thus, what the Supreme Court has held that where a

criminal proceeding is manifestly attended with mala fides or

where the proceeding is maliciously instituted with an ulterior

motive for wreaking vengeance on the accused and with a view to

spite him due to private and personal grudge, the High Court

should exercise its power under Article 227 of the Constitution of

India or its inherent power under Section 482 of the CrPC to quash

and set aside the complaint.



13.      The Respondent No.1 i.e. Complainant who has filed the

said C.C. No.451/SW/2012 was not present even before the

learned Additional Sessions Judge in said Revision Application

No.144 of 2016. In this case, the Respondent No.1 appeared

through Advocate -Fatima Lakdawala and waived the service on




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behalf of Respondent No.1 and sought time to file affidavit in reply.

Inspite of giving opportunities, said Advocate-Fatima Lakdawala

has not filed Vakalatnama and no reply has been filed. Thus, the

contentions which are raised in the Criminal Application have

remained uncontroverted.



14.      There is substance in the contention raised by learned

Counsel appearing for the Applicant that the criminal proceedings

are filed for delaying the execution of the decree.



15.      In the facts and circumstances, the guideline No.7 of

paragraph No.102 of the said decision in State of Haryana (supra)

is squarely applicable to the present case.



16.      Accordingly, the Criminal Application is allowed in terms of

prayer clauses (a) and (b).



17.      Resultantly, the order dated 1st March 2016 passed by the

learned Additional Chief Metropolitan Magistrate, 22 nd Court,

Andheri, Mumbai, in C.C. No.451/SW/2012 issuing process as also

the order dated 2nd December 2023 passed by the learned Sessions




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               Judge, City Civil and Sessions Court, Borivali, Division, Dindoshi,

               Mumbai, in Criminal Revision Application No.144 of 2016 are

               quashed and set aside.




                                                        [MADHAV J. JAMDAR, J.]




 SONALI
 MILIND
 PATIL
Digitally signed by
SONALI MILIND
PATIL
Date: 2026.09.23
19:02:58 +0530




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