Bombay High Court
M/S Hema Park Co-Op.Housing ... vs The State Of Maharashtra & Anr on 27 February, 2017
Bench: R.P. Sondurbaldota
ssk 1/4 WP 1476/02-27/2/17
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
WRIT PETITION NO. 1476 OF 2002
1. Hema Park Co-op. Hsg. Society
Bldg. No.4, Ground Floor, Hema Park,
Bhandup (E), Bombay-42
2. Mr. G. K. Nair,
Adult, Occupation - Business
1/B/604, Hema Park, Bhandup (E)
3. Mr. S. B. Gaddamwar
Adult, Occupation - Service
Residing at Building No.4
Hema Park Co.Op. Hsg. Soc.
Bhandup (East), Mumbai - 400 042
4. Mr. Chandrashekhar
Adult, Occupation - Service
Residing at Flat No.2A - 503
Hema Park Co-op. Hsg. Soc. Ltd.
Bhandup (East), Mmbai-400 042
5. Mr. J. N. Hirnaik
Adult, Occupation - Service
Residing at Flat No. 2 B - 602
Hema Park Co-op. Hsg. Soc. Ltd.
Bhandup (East), Mmbai-400 042
6. Mr. K. N. Patil
Adult, Occupation - Service
Residing at Flat No. 3 B -
Hema Park Co-op. Hsg. Soc. Ltd.
Bhandup (East), Mmbai-400 042
7. Mr. M. P. Parmar
Adult, Occupation - Service
Residing at Flat No. 702, Bldg. No.4
Hema Park Co-op. Hsg. Soc. Ltd.
Bhandup (East), Mmbai-400 042
8. Mr. Raju Daniel
Adult, Occupation - Service
Residing at Flat No. 1 A - 504
Hema Park Co-op. Hsg. Soc. Ltd.
Bhandup (East), Mmbai-400 042
... Petitioners
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ssk 2/4 WP 1476/02-27/2/17
vs.
1. The State of Maharashtra
2. C. Antony Louis
Adult, Residing at Flat No. 103,
Building No.2, 'A' Wing,
Hema Park Co-op. Hsg. Soc. Ltd.
Bhandup (East), Mumbai - 400 042 ... Respondents
Mr. N. V. Sawant, Advocate for the petitioners.
Ms. Pallavi Dabholkar, A.P.P. for the State/respondent no.1.
Respondent no.2 absent.
Coram : Smt. R. P. SondurBaldota, J.
Date : 27th February, 2017
JUDGMENT :
1. The petition has been appearing on the board for
hearing for several weeks. After the submissions on the petition
by Mr. Savant were heard, it was adjourned to enable
respondent no.2 to appear and advance his arguments. He has
however failed to appear before the Court. Petitioners no.2 to 8
and respondent no.2 are members of petitioner no.1 Society
Hema Park Co-op. Housing Society Ltd. At the relevant time,
petitioner no.2 was the Chairman and petitioner no.3 was the
Secretary of the Society. Petitioners no. 4 to 8 were the
members of the Managing Committee. On 13 th September, 2002
respondent no.2 filed a private complaint in the Court of 27 th
Metropolitan Magistrate, Mulund being CC No.429/S/2002
alleging offence punishable under Section 427 r/w 34 of Indian
Penal Code (I.P.C.). By the order dated 25 th September, 2002 the
Trial Court took cognizance of the complaint and issued process
against the petitioners under Section 427 r/w 34 of I.P.C. By
the present petition the petitioners seek to not only quash the
ssk 3/4 WP 1476/02-27/2/17
proceedings against them but also claim compensation in the
sum of Rs.50,000/- to each of the petitioners.
2. The brief statement of the facts alleged in the
complaint is that respondent no.2 is occupant of flat no.2/A/103
situate on the first floor of the building of the society. His flat
consists of three rooms with each room having a balcony.
Respondent no.2 had kept potted plants and also installed a
wash basin in the balcony. He alleges that on 12 th February,
2002 when he returned from his annual holiday he found that all
the balconies were covered with cement dust. The plastic pots
of the plants were damaged. The plants had died and there
were cracks in the wash basin. According to the complainant
this damage caused to his property is on account of negligence
on the part of the petitioners in protecting the property of the
members when maintenance work to the building was being
carried out. The damage to his property was allegedly caused
when petitioner no.1 was carrying out pre-mansoon
maintenance work to the terrace of the building. As per the
complaint, the total damage caused to respondent no.2 was of
the value of Rs.2,000/-. He had by his letter dated 17 th June,
2002 brought the damage to the notice of the petitioners but
they failed to take any action thereon.
3. Mr. Savant, the learned advocate for the petitioners
submits that the complaint filed by respondent no.2 is a
mischievous complaint and is filed by way of retaliation to the
proceedings initiated by the petitioners for recovery of the
arrears of monthly maintenance charges payable by respondent
no.2 since March, 2000. Petitioner no.3 being the Secretary of
the society has filed recovery proceedings under Section 101 of
Co-operative Societies Act before the Registrar of Co-operative
ssk 4/4 WP 1476/02-27/2/17
Societies 'S' Divison, Konkan Bhavan, Navi Mumbai. In the said
proceedings notice has been issued to respondent no.2 and
despite receipt of notice he has failed to appear in the
proceedings. Consequently the Registrar by his order dated 19 th
July, 2002 has directed respondent no.2 to pay the arrears to the
extent of Rs.30,329/- of monthly maintenance to petitioner no.1.
The petitioners contend that ever since the time, respondent
no.2 has filed as many as eight criminal complaints against the
petitioners.
4. Perusal of the complaint filed by respondent no.2
shows that it merely describes the damage caused to plants,
pots and the wash basins. There is nothing therein to indicate
that the petitioners are responsible for that damage. Besides
one of the main ingredients of the offence of Mischief is the
intention to cause wrongful loss or damage to a person or to the
property or knowledge that he is likely to cause wrongful loss or
damage to a person or the property. This material ingredient is
conspicuously missing from the complaint. Hence the
application is allowed in terms of prayer clause (a).
[Smt. R. P. SondurBaldota, J.]
