Kirti Zaveri And Anr vs The State Of Maharashtra And Anr
2021 Latest Caselaw 6510 Bom

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           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                CRIMINAL APPELLATE JURISDICTION.

                   WRIT PETITION NO. 4124 OF           2019

 Kirti Zaveri & others                                   ....Petitioners

                     ...Vs...

 The State of Maharashtra & one anr.                     ....Respondents.


 Ms Sonal Parab, Advocate i/b Mr. Kiran N. Varma, Advocate for
 the Petitioner.
 Dr. F. R. Shaikh, AP.P. for respondent No.1.
 None for respondent No.2.


                  CORAM: S.S. SHINDE & MANISH PITALE, JJ.
                  RESERVED ON:      15.03.2021.
                  PRONOUNCED ON: 20.04.2021.


 JUDGMENT (Per : Manish Pitale, J.)

By this writ petition, the petitioners have invoked

extraordinary jurisdiction of this Court under Article 226 of the

Constitution of India and under section 482 of the Code of

Criminal procedure for quashing MECR No.4 of 2019 registered

with Juhu Police Station for alleged offences punishable under

sections 406, 420, 120-B and 504 read with section 34 of the

Indian Penal Code. The respondent No.2 is the informant, on

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whose complaint the aforesaid crime has been registered. The

respondent No.2 had filed a complaint before the Metropolitan

Magistrate under section 156(3) of the Code of Criminal

Procedure and pursuant to order dated 19/03/2019 passed by the

Magistrate, the said first information report stood registered.

2. The respondent No.2 was constrained to file the complaint

under section 156(3) of the Code of Criminal Procedure before

the Magistrate since information submitted before the Police did

not result in any action on their part. Initially, the respondent

No.2 had approached the Vile Parle Police Station, but he was in-

formed that the jurisdiction would lie with Juhu Police Station.

When no action was taken by the Juhu Police Station on the infor-

mation submitted by the respondent No.2 and Higher Authorities

also did not take any action, the respondent No.2 was constrained

to file the aforesaid complaint. After perusing the contents of the

complaint, the affidavit in support thereof and documents placed

on record by the respondent No.2, the Magistrate passed the

aforesaid order directing investigation into the matter.

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3. The grievance of the respondent No.2 in brief is that he

had been searching for residential flats for purchase when he

came in contact with the petitioners. On the basis of the represen-

tations given by the petitioners, who are into the business of real

estate and property development, the respondent No.2 booked

two flats bearing Flat No.302 and Flat No.802 in a proposed build-

ing called "Air-View Cooperative Housing Society Ltd.". The re-

spondent No.2 was told by the petitioners that the amounts to-

wards purchase of the said flats would have to be paid in the

name of a firm called as M/s. Anmol Alliance, which was a sister

concern of the petitioners. Accordingly, the respondent No.2

claimed to have paid a huge amount of Rs.3,92,00,000/- for both

the flats from April, 2016 to November, 2017. It was further

stated in the complaint that the petitioner No.1 executed an

agreement to sell in respect of the said flats with the respondent

No.2 and he stated that possession of the flats would be handed

over as soon as the occupancy certificate was obtained. According

to the respondent No.2, in order to further give assurance to him,

the petitioners executed a registered power of attorney in favour

of one Mr.Deepak Waghani, a person known to the respondent

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No.2, for appearing before the competent authority for execution

and registration of sale deed.

4. The specific grievance of the respondent No.2 was that de-

spite payment of the entire amount of consideration, when he ap-

proached the petitioners for execution of sale deed, they avoided

to do so on the pretext that the occupancy certificate was yet to be

received. They allegedly stopped taking his calls and avoided him

completely. It was in August, 2018 that the respondent No.2 be-

came aware that the aforesaid flats were mortgaged to Federal

Bank Financial Services Ltd. in the year 2017 itself, due to which

the respondent No.2 realized the fraud played upon him. He fur-

ther stated that the Police failed to take appropriate action in the

matter and therefore, he was constrained to file complaint under

section 156 (3) of the Code of Criminal Procedure. The said com-

plaint was supported by an affidavit and bank statements as well

as other documents were annexed therewith. Upon considering

such material, the Magistrate on 19/03/2019, passed an order un-

der section 156(3) of the Code of Criminal Procedure for taking

cognizance of the said complaint and directed investigation into

the matter. Consequently, the said MECR dated 25/04/2019 was

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registered at Juhu Police Station against the petitioners and oth-

ers.

5. The petitioners have filed this petition claiming that the

MECR stood registered against them at the behest of the said

Deepak Waghani, who had in fact invested certain amounts with

the petitioners. It is claimed that since there were some amounts

that were due to be paid by the petitioners to the said

Mr.Waghani, he had misused certain documents signed and exe-

cuted in good faith by the petitioners to prop up the respondent

No.2 for registration of the criminal case against them. It was

submitted that a purely civil dispute was sought to be converted

into a criminal case, which ought not to be permitted in the inter-

est of justice.

6. Ms Sonal Parab, learned counsel appearing for the peti-

tioners, submitted that in the present case, the criminal justice sys-

tem was wrongly triggered for registration of offence against the

petitioners as a purely civil dispute was sought to be converted

into a criminal case. On the basis of the statements made in the

writ petition and documents filed therewith, the learned counsel

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for the petitioners submitted that the criminal process was

wrongly being used for recovery of certain amounts from the peti-

tioners. It was submitted that the petitioners had no direct con-

tact with the respondent No.2 herein and that they had interacted

only with the said Mr. Waghani, who had now propped up the re-

spondent No.2 to initiate a false criminal case against them. Apart

from this, it was vehemently submitted that the Magistrate in the

present case had mechanically and without any application of

mind exercised power under section 156(3) of the Code of Crimi-

nal Procedure to initiate investigation and registration of the

MECR against the petitioners. It was submitted that the settled

law pertaining to the manner in which power under section

156(3) of the Code of Criminal Procedure is to be exercised, was

violated in the present case and that therefore, the present writ

petition deserved to be allowed. The learned counsel for the peti-

tioners placed reliance on judgments of the Hon'ble Supreme

Court in the case of Priyanka Srivastava and anr. v. State of U.P.

and oths., reported in (2015) 6 SCC 287, Thermax Limited &

oths. v. K.M. Johny and oths. , reported in (2011) 13 SCC 412 and

Anand Kumar Mohatta and anr. v. State (NCT of Delhi), Depart-

ment of Home and anr., reported in (2019) 11 SCC 706.

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7. Dr. F. R. Shaikh, learned APP appeared for the respondent

No.1-State and tendered copies of the investigation papers. He

submitted that the Magistrate had properly exercised power in the

present case and that, since ingredients of the offences in question

were prima facie made out, there was no error in the order passed

by the Magistrate leading to registration of the MECR.

8. The learned APP specifically brought to the notice of this

Court that there were three other criminal cases registered against

the petitioners for offences punishable under sections 406, 409

and 420 of the Indian Penal Code, where other persons were also

similarly duped by the petitioners. On this basis, the learned APP

submitted that the writ petition deserved to be dismissed.

9. A perusal of the complaint filed by the respondent No.2 in

the present case and the order passed by the learned Magistrate

under section 156(3) of the Code of Criminal Procedure, shows

that the complaint was supported by an affidavit and documents

relevant for the grievances raised in the complaint were placed on

record on behalf of respondent No.2. The contents of the com-

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plaint, as also the documents filed therewith, show that the re-

spondent No.2 had indeed transferred huge amount into the ac-

count of the sister concern in which the petitioners were partners.

It is also found that despite transfer of such huge amounts and ex-

ecution of registered agreement to sell, the flats in question were

never transferred in favour of the respondent No.2.

10. The learned Magistrate has referred to the complaint as

also the affidavit in support and the documents annexed, to hold

that prima facie the aforesaid offences stood disclosed against the

petitioners. In fact, the learned Magistrate has also referred to ac-

knowledged copy of Police complaint, placed on record by the re-

spondent No.2. It was found by the Magistrate that the material

on record was self-speaking indicating cheating and criminal

breach of trust. On this basis, the order dated 19/03/2019 was

passed by the Magistrate, leading to registration of the MECR

against the petitioners.

11. A perusal of the aforesaid material on record shows that

reliance placed by the learned counsel for the petitioners on the

judgments of the Hon'ble Supreme Court in the cases of Priyanka

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Srivastava and anr. v. State of U.P. and oths. , Thermax Limited &

oths. v. K.M. Johny and oths. and Anand Kumar Mohatta and anr.

v. State (NCT of Delhi), Department of Home and anr. (supra), can

be of no assistance. This is for the reason that the complaint was

supported by affidavit of the respondent No.2. The contents of

the complaint disclosed the manner in which the respondent No.2

claimed to have been cheated by the petitioners. The Magistrate

took note of the complaint, the affidavit and the documents on

record to come to a prima facie conclusion that ingredients of the

offences were made out and thereupon directed investigation into

the matter. Insofar as the aspect of the dispute between the par-

ties being of purely civil nature, suffice it to say that certain set of

facts may give rise to grievances of civil and criminal nature both.

As long as prima facie ingredients of the alleged offences are

made out, it cannot be said that the Magistrate committed a juris-

dictional error in passing the order dated 19/03/2019, for regis-

tration of first information report and investigation into the matter

by exercising power under section 156(3) of the Code of Criminal

Procedure.

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12. We have perused the documents on record and we feel

that at this stage, the attempt of the petitioners to push the blame

on Mr.Waghani can be of no avail because the respondent No.2

has raised specific grievances against the petitioners, placing on

record the fact that huge amounts were transferred through bank

transactions with the petitioners and admittedly, the flats in ques-

tion were not transferred in the name of the respondent No.2.

13. The investigation papers brought to the notice of this

Court by the learned APP further show that not only was the

grievance of the respondent No.2 justified that the very flats

agreed to be sold to him, were mortgaged in the year 2017 by the

petitioners with another entity, but investigation revealed that the

two flats were sold to two different individuals in the year 2019.

The statements of the individuals, who purchased those flats from

the petitioners in the year 2019, have been also recorded during

the course of investigation by the Police. This prima facie shows

serious ingredients of the said offences committed the petitioners.

14. Apart from this, another significant aspect of the matter

brought to the notice by the learned APP is that there are three

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other crimes registered against the petitioners concerning offences

punishable under sections 406, 409 and 420 of the Indian Penal

Code in Bandra, D.N. Nagar and Amboli Police Stations against

the petitioners. Therefore, it is clear that allegations have been

made by other aggrieved persons, claiming that they have also

been duped in a manner similar to the allegations levelled by the

respondent No.2 in the present case. The criminal antecedents of

the petitioners further disqualify them from claiming any relief

from this Court exercising extraordinary writ jurisdiction under

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

Code of Criminal Procedure.

15. We are of the opinion that the material on record is suffi-

cient to indicate that prima facie the ingredients of the alleged of-

fences are made out against the petitioners and that the present

case warrants full investigation into the matter, so that an appro-

priate report is submitted by the Investigating Officer before the

concerned Magistrate.

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16. In view of the above, we find no substance in the present

writ petition and accordingly, it is dismissed. The observations

made hereinabove are prima facie in nature and confined to the

adjudication of the present Writ Petition.

           (MANISH PITALE, J.)                  (S.S.SHINDE, J.)




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