Deven Jitendra Mehta vs The State Of Maharashtra And Anr
2017 Latest Caselaw 5888 Bom

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              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      CRIMINAL APPELLATE JURISDICTION
                      WRIT PETITION NO. 2211 OF 2017
 1.       Shri. Deven Jitendra Mehta           ]
          aged about 46 years, Occ. Business   ]
          residing at D3/D4, Amlafi Building,  ]
          Hanging Garden, L. D. Ruparel Marg,  ]
          Malbar Hill, Mumbai - 400006         ] ..Petitioner.
                 Versus
 1.       State of Maharashtra                          ]
          Through Azad Maidan Police Station.           ]
                                                        ]
 2.       Sumit N. Daga                                 ]
          Aged 30 years,                                ]
          Occupation : Jewellery trading,               ]
          Residing at Ramlal Mannilal Daga              ]
          Ramdevji ka mandur, Sardar Shahr              ]
          Churu Raj, Rajasthan                          ] ..Respondents.

Mr. P. K. Dhakephalkar, Senior Advocate with Mr. Pranav Badheka i/b
Ms. Gunjan Mangla for the Petitioner.
Mrs. A. S. Pai, APP for the State.
Mr. Shirish Gupte, Senior Advocate with Karansingh Rajput i/b Jay
Kishore Bhatia for Respondent No. 2.

                 Coram : Ranjit More & A. S. Gadkari, JJ.

Date on which Arguments were heard : August 2, 2017. Date on which Judgment pronounced : August 14, 2017.

Judgment [Per Ranjit More, J. ] :

1. Heard Mr. Dhakephalkar, the learned Senior Counsel

for the Petitioner, Mr. Gupte, the learned Senior Counsel for

Respondent No. 2, and the learned APP for the State.

2. The petition is filed invoking the jurisdiction of this Court

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under Article 226 of the Constitution of India and section 482 of the

Code of Criminal Procedure, 1973 to quash and set aside the

proceedings of criminal case bearing No. 846/PW/2016 pending on the

file of Additional Chief Metropolitan Magistrate, 64 th Court, Esplanade,

Mumbai. The said case arises out of registration of FIR bearing CR No.

127 of 2014 with Azad Maidan Police Station at the instance of

Respondent No. 2 for the offence punishable under sections 420, 465,

467, 468 and 471 read with 34 of the Indian Penal Code, 1860.

3. Initially, the said FIR was registered against Hiren

Maheshkumar Soni, notary S.M.N. Naqvi and advocate P.S.Deb. The

allegations made in the FIR as are follows :

That Respondent No.2 (complainant), a resident of

Rajasthan, residing alone at Dubai since 2009. Respondent No. 2 owns

companies SCG Jewellers LLC in Dubai and he is doing jewellery

business through these companies. That flat No. 7904 and car parking

situated in Torch Tower, Marina in Marsa city, Dubai [for short "the

said flat"] is standing in the name of Complainant. The Complainant

wanted to give this flat on rent and therefore approached estate agent

SPF Reality, estate broker. At that time, he was told that the said flat

was already sold to Epsilon Limited. On this information, the

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Complainant made further enquiry and came to know that the said flat

is sold by Hiren Maheshkumar Soni to Epsilon Limited. He also came

to know that the said flat is sold by using his forged power of attorney

dated 15th July 2013. The FIR further alleges that the said power of

attorney is notarised by notary S.M.N.Naqvi and one Mr. P.S.Deo,

advocate has signed as a witness. It is also alleged that when such

power of attorney was prepared in Mumbai, the Complainant was at

Dubai. In short, it is the case of Complainant that above-said three

persons on the basis of said forged power of attorney sold the said flat

to Epsilon Limited and thereby cheated the Complainant.

4. The case of the Petitioner is as follows :

That the Petitioner is doing business of share trading.

He was also doing business in Dubai and therefore contemplated

purchasing a residential property in Dubai. Accordingly, he informed

his friends, acquaintances about his intention to purchase a property

in Dubai. Pursuant to the same, the Petitioner received a brochure

from Abdul Wahab of SPF Reality. The Petitioner was also told by the

property agent that 30% of the price of the flat will have to be made by

him and the remaining 70% will have to be taken loan from bank in

Dubai. The Petitioner thereafter approached various banks, namely,

Standard Chartered Bank, HSBC Bank and Marine Bank for availing the

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loan. He was informed by the said banks that home loan is given only

to individuals either working in Dubai for more than 6 months or

having permanent residency in Dubai.

. The Petitioner thereafter enquired with his acquaintance

Mr. Sumeetchand Gavthi, who was doing jewellery business in Dubai.

Mr. Gavthi informed the Petitioner that the Complainant was working

for ACC Jewellers LLC in Dubai. Through Mr. Gavthi the Petitioner

came in contact with the Complainant. Thereafter they had a detailed

discussion and the Complainant agreed to availing the loan in his

name and getting property registered in his name. That though the

property stood in the name of Complainant, the monies were paid by

the Petitioner as per the mutual understanding between himself and

the Complainant.

. That Abdul Wahab (of SPF Realty) and Mr. Jonathan (of

Select Property) were aware that the said flat was purchased by the

Petitioner and for convenience for availing bank loan, it stood in the

name of Complainant. That there are various emails and other

correspondence available with him which will demonstrate his case as

stated above.

. That due to financial crunch, the Petitioner was

constrained to sell the said flat and the Complainant was consistently

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delaying the same on one or the other pretext, the Petitioner

requested the Complainant to execute a power of attorney in favour of

Mr. Hiren Soni, who was an employee of Yogesh Shah, family friend of

the Petitioner. The Complainant accordingly executed power of

attorney in favour of Hiren Soni, which was notarised by notary Mr.

Naqvi and witnessed by advocate Deb and on the basis of this power

of attorney, the said flat was sold to Epsillon Limited.

5. Mr. Dhakephalkar, the learned Senior Counsel for the

Petitioner took us through the charge-sheet and various documents

annexed thereto and submitted that the same discloses that the said

flat was purchased by the Petitioner but for convenience, namely, for

obtaining loan, flat was shown in the name of Complainant. Learned

counsel asserted that the Petitioner is owner and disputed 2 nd

respondent's ownership to the said flat. He submitted that since the

Petitioner is owner of the said flat, no offence can be said to have

been committed by him as alleged in the FIR. At any rate, Mr.

Dhakephalkar submitted that the dispute raised in the complaint is of

civil nature and therefore the proceedings of the subject criminal case

deserve to be quashed and set aside.

. Learned counsel then invited our attention to the

Complainant's signature on the disputed power of attorney and his

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admitted signature on the passport and submitted that the verification

of the same would show that the signatures are of the one and the

same person. In this regard he also invited our attention to the order

passed by the learned Single Judge of this Court in bail application

filed by Hiren Soni.

Mr. Dhakephalkar submitted that original power of

attorney is not produced before the investigating agency. He

submitted that in the absence of the same, the offence of forgery

cannot be alleged.

. Mr. Dhakephalkar also submitted that what is important

is that though voluminous correspondence is placed on record

showing the Petitioner's interest in the said flat, the FIR is absolutely

silent regarding the Petitioner's role. The FIR deliberately suppressed

the fact that the Petitioner is owner of the said flat.

6. Mr. Gupte, the learned Senior Counsel for Respondent

No.2 opposed the petition very vehemently. At the outset, he

submitted that after completion of investigation into the subject FIR,

since charge-sheet is filed in the Court, the Petitioner has alternative

and efficacious remedy to file discharge application before the trial

Court and therefore this Court in exercise of powers under Article 226

of the Constitution of India and section 482 of the Code of Criminal

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Procedure, 1973 should not interfere with the writ petition. He

submitted that on the date on which power of attorney was notarised,

the Complainant was not in India and he was in Dubai and as such

clear cut case of forgery is made out. He submitted that during

investigation, it was found that the Petitioner has used Mr. Hiren Soni

to sell the said flat belonging to the Complainant and since Hiren Soni

as well as notary Mr. Naqvi and advocate Deb did not get any

advantage, they were made witnesses and the charge-sheet is filed

only against the Petitioner. He submitted that this is not the stage to

form an opinion about the genuineness or otherwise of the signatures

of the Complainant on the disputed power of attorney.

7. The learned APP for the State adopted the arguments

advanced by Mr. Gupte and submitted that petition is devoid of any

merit the same be dismissed.

8. We have gone through the petition, copy of the charge-

sheet with its enclosures and affidavit-in-reply filed by Respondent No.

2, i.e., original complainant.

9. At the outset and before entering into merits of the

claims of the respective parties, we would like to deal with the

preliminary objection of Mr. Gupte regarding the maintainability of the

petition on the ground of alternative remedy. Mr. Gupte in this regard

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relied upon the decision of the Apex Court in Vinod Raghuvanshi v.

Ajay Arora [(2013) 10 SCC 581] . In this case, the Apex Court examined

the scope of powers of the High Court under section 482 of the Code

of Criminal Procedure, 1973. The Apex Court laid down principles to

be kept in mind by the High Court while exercising such powers. The

Apex Court held that if prima facie case to proceed against the

accused exists, then, the complaint cannot be quashed. In this case,

Respondent No.1 initially filed criminal complaint against 9 partners

alleging against them that they had replaced deed of partnership

dated 5th March 2002 in the bank and forged partnership deed dated

6th March 2003 was implanted in Excise Office in its place to deprive

him of the profits of the firm. The Chief Judicial Magistrate after

recording the statement of the Respondent and after considering the

pre-charge evidence, registered case against the Appellant and two

others for the offence punishable under section 420 and 120B of IPC.

Appellant thereafter filed application under section 482 of the Code.

The High Court dismissed such application and thereafter Appellant

approached the Apex Court. The Apex Court on being satisfied that

some material is available on record to proceed against the Appellant

and others, dismissed the appeal. This decision shows that the Apex

Court entered into merits of the matter and having found that there is

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material against the Appellant dismissed the appeal. This decision,

therefore, is not on the point of maintainability of the petition under

section 482 of the Code of Criminal Procedure, 1973.

10. Mr. Dhakephalkar, the learned Senior Counsel in support

of maintainability of the petition relied upon the decision of the Apex

Court in Umesh Kumar vs. State of Andhra Pradesh [(2013) 10 SCC

591]. In this decision, the Apex Court examined the scope of powers

of the High Court under section 482 of the Code of Criminal

Procedure, 1973. The observations of the Apex Court in paragraph 20

are relevant for our purpose, which read thus :

"The scope of Section 482 Cr.P.C. is well defined and inherent powers could be exercised by the High Court to give effect to an order under the Cr.P.C.; to prevent abuse of the process of court; and to otherwise secure the ends of justice. This extraordinary power is to be exercised ex debito justitiae. However, in exercise of such powers, it is not permissible for the High Court to appreciate the evidence as it can only evaluate material documents on record to the extent of its prima facie satisfaction about the existence of sufficient ground for proceedings against the accused and the court cannot look into materials, the acceptability of which is essentially a matter for trial. Any document filed alongwith the petition labelled as evidence without being tested and proved, cannot be examined. Law does not prohibit entertaining the petition under Section 482 Cr.P.C. for quashing the charge sheet even before the charges are framed or before the application of discharge is filed or even during its pendency of such application before the court concerned. The High Court cannot reject the application merely on the ground that the accused can

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argue legal and factual issues at the time of the framing of the charge. However, the inherent power of the court should not be exercised to stifle the legitimate prosecution but can be exercised to save the accused to undergo the agony of a criminal trial.

. Perusal of the above observations makes it abundantly

clear that High Court can entertain petition under section 482 of the

Code for quashing the charge-sheet even before charges are framed

or the application for discharge is filed. This decision is squarely

applicable to the case in hand. We accordingly hold that the petition is

maintainable.

. Having upheld the maintainability of petition, we would

like to consider the case of the respective parties on merit. At the

same time, we make it clear that we are conscious of the fact that High

Court in exercise of powers under Article 226 of the Constitution of

India and section 482 of the Code of Criminal Procedure, 1973 may

interfere with the criminal proceedings to prevent abuse of the

process of the Court or otherwise to secure the ends of justice,

however, those powers should be exercised sparingly and that too in

rare cases.

11. It is the bold stand of the Petitioner that he is the owner

of the said flat and the Complainant's name was shown in the record

for convenience. The Complainant on the contrary alleges that the

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said flat belongs to him and the said flat was sold by Mr. Hiren Soni

with the help of bogus power of attorney. The FIR does not at all refer

the name of the Petitioner. In the light of above stands taken by the

respective parties, let us examine the documents annexed to the

charge-sheet and heavily relied upon by the Petitioner.

. Document at page 209 of charge-sheet is Agency Fees

Agreement dated 24th May 2012. This agreement is executed between

the Petitioner and SPF Realty Real Estate Broker LLC relating to

apartment No. 7903, a 3 bedroom Pent House in Torch Tower

developed by Select Property Group. By this agreement, the

purcahser has confirmed that upon successful transfer of the property

in the name of the buyer for AED 4,740,000/-, the purchaser will pay

an amount of AED 84,800/- to SPF Realty Real Estate Broker LLC being

the agency fees for the subject mentioned property.

. On 25th July 2012 another document executed between

the Petitioner and SPF Realty Real Estate Broker LLC in respect of Unit

No. 7904, a 3 bedroom Duplex Pent House measuring 4032 square

feet in Torch tower, located in Dubai Marina developed by Select

Property. Under this agreement, purchaser confirmed that upon

successful transfer of property in the name of buyer for AED

5,200,000, the purchaser will pay an amount of AED 94,000/-, being

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the agency fees to SPF Realty Real Estate Brokers LLC, copy of which is

annexed at page No. 210.

. Document at page No. 238 is copy of the email dated

26th May 2012 from Abdul Wahab of SPF Realty to the Petitioner

regarding Torch Pent House Pictures. The Petitioner was informed by

this email that as requested by him, Abdul Wahab is sending pictures

of the pent house along with this email.

At page No. 260, there are copies of three emails. The

first email is dated 30th May 2012 by Abdul Wahab to the Petitioner

regading the deposit of Unit No. 7903. By this email, the Petitioner

was informed that deposit cheque is to be payable to Select

Developments Limited. The Petitioner was also asked when cheque

would be ready and from where the same would have to be collected.

On 2nd June 2012 there is another email from Abdul Wahab of SPF

Realty to the Petitioner regarding collection of the deposit cheque. On

the very same day, the Petitioner sent an email to Abdul Wahab and

told him that he could collect the cheque of 3,00,000 dirhams from

Anil Bhasin.

On page No. 261 there is copy of the email from Simon

Quinton of Select Property to the Petitioner. Copy of this email is also

marked to Abdul Wahab of SPF Realty. In this email Mr. Simon

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Quinton has stated that Abdul Wahab has given cheque and copy of

the same as well as acknowledgement receipt was annexed to the

email. The understanding was expressed by said Simon Quinton that

the balance of the reservation deposit will be sent shortly.

Page No. 264 is copy of the email dated 3 rd June 2012

from Simon Quinton to the Petitioner, copy of which was also marked

to Abdul Wahab. Along with this email, Simon Quinton had sent

official receipt from Select Group for initial deposit of 3,00,000 AED for

Torch 7903.

At page No. 266 are the copies of emails exchanged

between Kalpesh Sampat and the Petitioner regarding details required

for getting visa for resident status of Dubai and to get lower interest

rate.

At page 267 is the email dated 21 st June 2012 sent by

Simon Quinton to the Petitioner. By this email, Simon Quinton has

sent initial reservation contracts to the Petitioner which are signed by

Select Property. Page No. 270 is the copy of the email dated 27 th June

2012 sent by Simon Quinton to Abdul Wahab and copy of which is

marked to the Petitioner. By this email, Simon Quinton has informed

that the Sales Purchase Agreement is ready and is in his office ready

for when the Petitioner is available. Page No. 268 is the copy of the

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Reservation agreement between the Petitioner and Select Property.

At page 271 is the copy of the email dated 4 th July 2012

sent by Abdul Wahab to the Petitioner requesting him to come to

Dubai as seeller is asking when is he comoing to Dubai for transfer. By

this emial, Abdul Wahab has also informed the Petitioner that all the

furniture is shifted to his apartment by Select Property and they are

waiting for the Petitioner to come and finalise the interior work.

. At page 272 is the copy of the email from the Petitioner

to Simon Quinton stating that he will be in Dubai on 25 th July 2012 only

to close the issue of sale. By his another email dated 24 th July 2012

copy of which is at page 274, Simon Quinton has sent to the Petitioner

statement of account for the unit. On page No. 275 there is statement

of accounts which shows that the Petitioner has paid an amount of

AED 5,20,000/-.

By the email dated 31st July 2012 copy of which is at

page 276, Abdul Wahab has written to Jonathan Vaughan of Select

Property that the Petitioner is buying this property for himself and he

need to do some interior work in the apartment, to make the drawings

contractor needs some drawings and layouts of the apartment and has

requested to send the same.

On page No. 278, there are copies of three emails.

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Firstly, on 5th August 2012 Abdul Wahab has written to the Petitioner to

update for the cheques as Jonathan is expecting the cheque. To this,

the Petitioner replied on the same day stating that he will sms him the

address and place for picking up the cheque that day itself. In

response, Abdul Wahab writes back to the Petitioner informng him

that he would be out of office whole day and therefore requested to

sms the name and no from where he has to pick up the cheque. In

pursuant of this email, cheque for an amount of AED 2,20,000/- was

given to the Select Property towards the price of the said flat, copy of

which is annexed at page No. 279.

On page No. 280 there are copies of emails exchanged

between the Petitioner and Jonathan Vaughan of Select Property. On

12th August 2012 the Petitioner has written to Jonathan that he is very

shocked and surprised at delays as he has appointed an interior

designer whose retainer is on. To this, Jonathan writes back to the

Petitioner on the same day tendering apologies for the time it has

taken to obtain these files.

On page No. 283 is the copy of the email from Abdul

Wahab to the Petitioner dated 2nd September 2012 informing him

about various documents required by Tamweel for the finance. By the

email dated 6th September 2012 Abdul Wahab informed the Petitioner

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that he has received some documents and waiting for documents from

Mr. Gavthi. Abdul also asked the Petitioner to send AED 10,000/- as

early as possible because he has to give AED 1,000/- to each bank

along with these documents.

On page No. 284 is the copy of the email by Abdul

Wahab to the Petitioner dated 8 th September 2012 informing the

Petitioner that he will be out all day and requesting to sms the no of

the person from where he has to collect the payment of AED 10,000/-.

He further requested the Petitioner to try to send the payment that

day itself so he can give his and Mr. Gavthi's documents to all the

banks.

On page No. 285 is the copy of the email written by

Amrat, the interior designer to the Petitioner dated 13 th September

2012. By this email, Amrat expressed desire that the Petitioner should

also arrange for 50% of his fees, which would be Dhs.30,000.

On page No. 286 is the copy of the email dated 17 th

September 2012 sent by Jonathan Vaughan of Select Property to the

Petitioner, copy of which is marked to Abdul Wahab and Simon

Quinton. Along with this email Jonathan sent a 7 day termination

notice for the reservation of unit No. 7904. Copy of the termination

notice addressed to the Petitioner for reservation of the said flat is

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annexed at page No. 287. Notice categorically calls upon the

Petitioner for further payment of AED 46,80,000/- as per the terms of

the reservation agreement.

On page No. 288, is the copy of the email dated 25 th

September 2012 sent by Jonathan Vaughan of Select Property to the

Petitioner, copy of which was marked to Abdul Wahab and Simon

Quinton. By this email, Jonathan informed the Petitioner that

extension has been granted to the termination notice period and that

the Petitioner has been given time until close of business on 27 th

September.

On page No. 290 is the copy of the email dated 27 th

September 2012 send by Jonathan Vaughan to the Petitioner, copy of

which is marked to Abdul Wahab. By this email, Jonathan informed

the Petitioner that maximum approved finance to value ratio is 60%

and therefore the Petitioner has to pay cheques totalling AED

1,681,918/- before the close of business day. Jonathan further

informed the Petitioner that in addition, they also require the new

reservation form signed by Sumit Daga, the new purchaser.

On page No. 291 is the copy of the email dated 27 th

September 2012 sent by Amrat (Interior designer) to the Petitioner. By

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the said email, Amrat gave detailed break up of the money given to

her for the interior work of the apartment.

On page No. 293 is the email dated 30 th September 2012

send by Abdul Wahab to Jonathan Vaughan, copy of which is marked

to the Petitioner. By this email, Abdul Wahab askede Jonathan

Vaughan to email him the signed new reservation form of 7904 as

early as possible as he need it to forward it to Tamweel (Financer). In

this new form name of the purchaser is shown as Sumit Daga and

seller is Select Property.

On page No. 298 is the email from Jonathan asking the

Petitioner whether he has planned to increase the LTV for 60-70%. In

response, the Petitioner emailed that the bank has agreed to do so.

On page No. 299 is the copy of the email dated 2 nd

October 2012 sent by Simon Quinton to the Petitioner, copy of which

is marked to Jonathan and Abdul Wahab. By this email, Simon

informed the Petitioner that Abdul delivered the cheque to him that

afternoon and requested the Petitioner to provide the telephone

number and email contact of Sumit Daga.

On page No. 301 is the copy of the email dated 4 th

October 2012 send by Simon Quinton to Abdul Wahab, copy of which

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is marked to the Petitioner, asking Sumit Daga's telephone Nos. and

email address for the reservation form. Also informed Abdul Wahab

that Sumit has to sign again the document, i.e., reservation form, as

the amount was incorrectly mentioned in the earlier form.

On page No. 302 is the email dated 11 th October 2012

written by Abdul Wahab to the Petitioner requsting him to ask Sumit

to provide all those documents as early as possible.

On page No. 303 is the email dated 11 th October 2012

from Simon Quinton to Abdul Wahab, copy of which is marked to the

Petitioner. With this email, Simon sent statement of accounts as

requested. Extract of statement of accounts is at page No. 304. The

amount of AED 5,20,000/- earlier paid under two cheques by the

Petitioner is accounted in this statement of account of Sumit Daga.

On page No. 313 is the email dated 14 th October 2012

from Jonathan Vaughan to Kazim Mustafa of Tamweel, copy of which is

marked to the Petitioner. In this email, Jonthan states that they have

been told to hold the final 10% cheque as the LTV would be increased

from 60-70% of the property purchase price and asking for updated

official letter.

On page No. 315 is the email dated 24 th October 2012

sent by Abdul Wahab to the Petitioner informing that Sumit Daga was

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sent to Tamweel a day before but he did not bring the required

documents along with him. Abdul Wahab requsted the Petitioner to

speak to him and ask him to submit all the documents mentioned in

the email. Further on the same page, is the email dated 28 th October

2012 sent by Abdul Wahab to the Petitioner. In the said emial, Abdul

Wahab expressed that balance amount of 10% would be paid by next

day morning. He further requested the Petitioner to kindly call Sumit

and make sure that he submits all the documents mentioned in the

emial with cheques to Tamweel.

. On page No. 321 is the email from Jonathan Vaughan to

the Petitioner dated 8th November 2012 stating that he has to pay late

payment charges of AED 50,475.89 charged by Select Group due to

delay in the transaction and also asking the Petitioner to request Mr.

Sumit Daga to sign and return the letter of indemnity.

On page No. 327 is the email dated 10 th November 2012

from Jonathan Vaughan to the Petitioner, copy of which is marked to

Abdul Wahab and Simon Quinton. By this email, Jonathan informed

the Petitioner that he has not received a reply regarding the letter of

indemnity for the late payment penalty. At page No. 328 is the

indemnity letter given by Sumit Daga.

On page No. 329 is the email dated 13 th November 2012

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from Jonathan Vaughan to the Petitioner asking him whether he has

moved into his apartment and whether he is happy with his purchase.

Jonathan also says in his email that the Petitioner should enjoy a good

family vacation in his new house.

On page Nos. 330 to 333 are the trail of emails from

Abdul Wahab and Kalpesh Sampat dated 6 th January 2013 to 27th

February 2013 addressed to the Petitioner requesting for payment of

their commission of AED 94,000 against the sale of Unit 7904 Torch

Tower Dubai. Mr. Abdul also mentions in his email that the Petitioner

had to pay the late payment fee to Select Properties because the

Petitioner had changed his apartment and the buyer's name.

12. The above referred correspondence through email

exchanged between the Petitioner, Abdul Wahab of SPF Reality, Simon

Quinton, Jonathan Vaughan of Select Property, Amrat (interior

designer) and Tamweel (Financer) makes following things clear :

That the Petitioner wanted to purchase a flat in Dubai,

therefore he made enquiries with SPF Reality, Estate Broker.

That the Petitioner initially agreed to purchase unit No. 7903 of

Torch Tower of Select Properties for the consideration of AED

42,00,000/-. That the Petitioner agreed to pay to SPF Reality an

amount equivalent to 2% of the purchase price towards their

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commission, totalling to AED 94,000/-. That towards 10% of the

purchase price, the Petitioner deposited an amount of AED

5,20,000/- with Select Property by two cheques of AED 3,00,000/-

and AED 2,20,000/-. That the Petitioner was told that he has to

take loan for 60% of the purchase price and thereafter he made

enquires with various banks. However banks showed their

willingness to extend loan facility to a person who is resident of

Dubai or who is working in Dubai for six months. That, through

Mr. Gavthi (the Petitioner's friend), the Complainant was chosen

to avail loan facility and to register the said flat in his name.

Fresh reservation agreement was executed by Select Property in

the name of Sumit Daga. The earlier amount of AED 5,20,000/-

paid by the Petitioner was shown in the statement of account of

the Complainant Sumit Daga. There was delay in arranging the

balance of purchase price including the loan amount. Hence,

Select Property gave termination notice. However, time of

termination notice was subsequently extended. Since there was

delay in payment of the consideration amount, the Petitioner was

asked to give indemnity for late payment and the Petitioner was

asked to get signatures of Sumit Daga. That, loan documents in

respect of Sumit Daga was asked from the Petitioner. The

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Petitioner was put in possession of the said flat and the

Petitioner spent vacation in the said flat.

13 From the above, we find great substance in the

Petitioner's contention that he is owner of the said flat and for

convenience, namely for obtaining the loan, the same stood in the

name of Complainant - Sumit Daga. Had Sumit Daga been owner of

the said flat, there would not have been correspondence in the name

of the Petitioner by Abdul Wahab, Tamweel, Jonathan Vaughan and

Simon Quinton or Amrat (Interior Designer) and the Petitioner would

not have deposited the part of consideration money.

14. At this stage it is also interesting to note that even the

investigating agency came to the conclusion that the Petitioner is

owner of the said flat and same was purchased in the name of

Complainant - Sumit Daga through his employer - Mr. Gavthi, who

happens to be friend of the Petitioner. This conclusion is recorded in

paragraph 9 of the charge-sheet and the same is arrived at on the

basis of email correspondence for the period between 2 nd June 2012 to

14th March 2014 exchanged between the Petitioner, Abdul Wahab,

Simon Quinton and Jonathan Vaughan. However, charge-sheet is filed

as the earnest amount towards the purchase of the said flat was

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deposited through the bank accounts of Complainant - Sumit Daga.

15. The police machinery and the investigating officers under

the Code of Criminal Procedure, 1973 enjoy wide powers for the

purposes of investigation. However, with wide powers, comes higher

responsibility and the police officers investigating into a crime are

expected to act in impartial, fair and efficient manner. The

investigation into an offence is not a mechanical process. The

Investigating Officer has to apply his mind at every stage of the

investigation and is expected to make an effort to find out the truth.

The investigation does not mean merely recording of statements and

carrying out different panchnamas, but there has to be a definite

direction in which the investigation should proceed. The investigating

agency has to explore all the facets of the case. If the accused has any

circumstances in his favour, the Investigating Officer is not only

expected to find out the veracity of the version given by the accused,

but it is his duty to investigate the case from all angles. That does not

mean that the Investigating Officer has to accept blindly whatever is

stated either by the accused or even by the witnesses. The

Investigating Officer has to form his own opinion before filing report

under section 173 of the Code of Criminal Procedure, 1973. In our

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opinion, having come to the conclusion that the Petitioner is the

owner of the said flat, investigating agency was not justified in filing

charge-sheet against the Petitioner for the offence of cheating and

forgery inasmuch as essence of the offence of cheating and forgery is

dishonest and fraudulent intention as defined under IPC and if the

Petitioner is owner of the said flat he cannot be said to have done

things dishonestly or fraudulently.

16. In any case, on the basis of charge-sheet, we find that the

Petitioner is not surely the stranger to the said flat. Non disclosure of

the Petitioner's name in the FIR also speaks volume. To say the least,

the facts as unfolded in the charge-sheet and the correspondence

through email unequivocally shows that the Petitioner has interest in

the said flat. Even for the sake of argument it is accepted that the

Complainant has contributed some amount towards the purchase

price ignoring the contention of the Petitioner that the said amount is

paid by him through Sumit Daga, in that case also, the dispute raised

in the FIR is of civil nature. By now it is settled position in law that if

the dispute has flavour of civil nature, the same cannot be agitated in

the form of criminal proceedings. Reference can be made to the

decision of the Apex Court in Thermax Limited vs K. M. Johny [(2011)

13 SCC 412] and Devendra v. State of UP [(2009) SCC 495]

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17. Be that as it may in the light of the Petitioner's stand that

the disputed power of attorney is signed by the Complainant himself,

we compared the Complainant's signature on the said power of

attorney with the Complainant's admitted signature on the passport.

Copy of the power attorney is annexed at page No. 536. The

Complainant is shown to have signed as executor of the power of

attorney. The same is notarised by Notary Naqvi and witnessed by

Advocate Deb. Document at page No. 349 is the Complainant's

passport bearing his signature. Having compared the Complainant's

signature on the said power of attorney and his signature on the

passport, we find the same are by one and the same person. At this

stage, it is also relevant to mention that similar prima facie findings

are recorded by the learned Single Judge of this Court in her order

dated 9th October 2014 passed in Criminal Bail Application No. 2119 of

2014 filed by Hiren Soni, copy of which is annexed at page 22 of the

petition.

18. This takes us to consider the submission of Mr.

Dhakephalkar that in the absence of original power of attorney, the

offence of cheating or forgery cannot be made out. The charge-sheet

reveals that the Complainant filed FIR after obtaining xerox copy of the

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disputed power of attorney from Dubai Land Department. The said

xerox copy of the power of attorney is placed on record. The record

further reveals that the investigating agency has sent the

Complainant's signature on this disputed document for examination

and comparison with his admitted signatures to Additional Chief State

Examiner of Documents, CID, Maharashtra State, Mumbai. However,

by its letter dated 29th July 2016, the said Examiner of Documents has

requested the Joint Commissioner of Police, Crime to obtain original of

the disputed document for verification. Thus, it is clear that the

opinion about the genuineness or otherwise of the disputed power of

attorney could not be given for want of availability of the original. The

prosecution case itself shows that the original power of attorney is

submitted to Dubai Land Department at the time of transfer of the

said flat. Thus, we find that in the absence of expert opinion for want

of original, the fate of the criminal trial in the present case is apparent.

19. Taking totality and peculiarity of the facts and

circumstances of the present case into consideration, we find that

there is substance in the Petitioner's case, that he is owner of the said

flat and in any case, the Petitioner cannot be said to be stranger to the

said flat. At the same time, we also find that the Complainant has

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suppressed many of the material and relevant facts and dispute raised

in the FIR is of civil nature. In the circumstances, the continuation of

the criminal proceedings against the Petitioner will be abuse of the

process of law. We accordingly quash and set aside the proceedings of

criminal case bearing No. 846/PW/2016 pending on the file of

Additional Chief Metropolitan Magistrate, 64th Court, Esplanade,

Mumbai. Petition is accordingly allowed in aforesaid terms.

          [A. S. GADKARI, J.]              [RANJIT MORE, J.]




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