Vishwajeet Subhash Jhavar vs The State Of Maharashtra
2021 Latest Caselaw 6527 Bom

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


                 CRI. WRIT PETITION NO. 261 OF          2021


 Vishwajeet Subhash Jhavar                              ....Petitioner

                     ...Vs...

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



 Mr. Amit A. Gharte, Advocate for the Petitioner.
 Mr. S.R.Shinde, A.P.P. for respondent No.1-State.
 Mr. Vishal Kanade, Advocate a/w Mr.Krishnan Iyer, Ms Vinasha
 Acharya i/b Ms Namrata Agashe, Advocates for respondent No.2.



                  CORAM: S.S. SHINDE & MANISH PITALE, JJ.
                  RESERVED ON :       25.03.2021.
                  PRONOUNCED ON: 20.04.2021.



 JUDGMENT (Per : Manish Pitale, J.)

1. By this petition, the petitioner seeks quashing of First

Information Report (FIR) registered against him and others for

offences punishable under sections 420, 409 and 406 read with

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section 34 of the Indian Penal Code (IPC), as also provisions of the

Maharashtra Protection of Investor Depositors Act (MPID Act) and

Maharashtra Ownership of Flats Act (MOFA).

2. The said FIR stood registered on 23.10.2019, at the

behest of respondent No.2 (original informant). The said

Respondent is Director of a private limited company, which

desired to purchase property and accordingly entered into an

agreement with Marvel Homes Sigma Private Limited, of which

the petitioner is a Director. As per the agreement between the

parties, the total consideration for the said apartment was

₹6,82,48,500/-. It is an admitted position that the respondent6,82,48,500/-. It is an admitted position that the respondent

No.2 transferred amounts in favour of the company of the

petitioner as per the agreement. The said amounts came to a total

of ₹6,82,48,500/-. It is an admitted position that the respondent3,89,36,645/-. As per the agreement, the possession was to

be handed over to respondent No.2 on 30.09.2017. It is also an

admitted position that the petitioner failed to hand over

possession despite such huge amount received from respondent

No.2 and despite the fact that respondent No.2 was repeatedly

pursuing the matter with the petitioner.

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3. The respondent No.2 had filed a proceeding before the

Maharashtra Real Estate Regulatory Authority for his grievances,

but, by order dated 16.08.2018, the said complaint was dismissed.

Aggrieved by the same, the respondent No.2 approached the

Appellate Tribunal. By order dated 17.09.2019, the Appellate

Tribunal set aside the impugned order and remanded the matter

back to the regulatory authority. The respondent No.2

approached the police station at this stage stating the aforesaid

facts and claimed that the petitioner had committed acts

amounting to cognizable offences and on the basis of the

information provided to the police, the aforesaid FIR dated

23.10.2019 stood registered against the petitioner and others.

4. In this backdrop, the petitioner stated that he wanted to

settle the matter with the respondent No.2 and accordingly, a

Memorandum of Understanding (MoU) recording consent terms

between the parties was executed on 17.12.2019. In pursuance of

the said MoU, the petitioner did pay certain amounts to the

respondent No.2. An amount of ₹6,82,48,500/-. It is an admitted position that the respondent 1,37,00,000/- was paid and

thereafter a cheque for an amount of ₹6,82,48,500/-. It is an admitted position that the respondent 63,00,000/- was issued in

favour of respondent No.2. Initially the said cheque was

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dishonoured. Thereafter, on being presented again, the said

cheque was honoured. But, thereafter the cheques issued by the

petitioner were all dishonoured and the petitioner failed to abide

by his promises made from time to time to respondent No.2.

5. In this situation, when it became evident that the

petitioner was not abiding by his own promises and huge amount

was due from him to the respondent No.2, a notice dated

01.09.2020, was issued by the respondent No.1-State through the

investigating officer under section 160 of the CrPC to the

petitioner. Aggrieved by the same, the petitioner filed the present

Writ Petition seeking quashing of the said FIR, as also the notice

issued under section 160 of the CrPC. This Court issued notice in

the present Writ Petition, in response to which reply affidavit was

placed on record by the respondent No.2. The said Respondent

opposed the prayers made in the Writ Petition.

6. Mr. Amit A. Gharte, learned counsel appearing on behalf

of the petitioner, submitted that the present Writ Petition deserved

to be allowed, because the dispute between the parties was of civil

nature and that the respondent No.2 was wrongly seeking to give

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it the colour of criminal proceeding, only in order to recover

amounts from the petitioner. It was submitted that the petitioner

had indeed paid some amounts in pursuance of the said MoU and

only because further amount was due from him, the proceedings

in pursuance of the said FIR could not be permitted to continue. It

was submitted that the respondent No.2 could avail of remedies

available under civil law for recovery of the amount and criminal

proceedings for the purposes of such recovery ought not to be

permitted.

7. On this basis, it was submitted that the ingredients of

the alleged offences under sections 420, 409 and 406 of the IPC

were not made out, particularly when the respondent No.2 had

already initiated proceedings under the provisions of the

Negotiable Instruments Act for dishonour of cheques issued by the

petitioner. The learned counsel for the petitioner relied upon

judgments of the Hon'ble Supreme Court and this Court, to

support the said contentions. The said judgments would be

referred to herein below, while considering the contentions raised

on behalf the petitioner.

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8. Mr. Vishal Kanade, learned counsel appearing for

respondent No.2, submitted that the contentions raised on behalf

of the petitioner were fallacious, for the reason that the

respondent No.2 had specifically stated in the report lodged with

the Police, specifying the manner in which the petitioner had lured

the respondent No.2 to enter into the aforesaid agreement and

how huge amounts were received by the petitioner. It was

submitted that after registration of the FIR, the petitioner had

come forward and entered into the aforesaid MoU, the terms of

which were also not honoured by him. All these activities of the

petitioner clearly demonstrated that from the initial stage, the

petitioner had acted in a manner which prima facie divulged

ingredients of the aforesaid offences under sections 420, 409 and

406 of the IPC. The counsel for respondent No.2 referred to the

report submitted to the Police leading to registration of the FIR. By

reading the contents of the same, it was emphasized that

ingredients of the said offences were prima facie made out and

that therefore, the FIR could not be quashed and the investigation

ought not to be stalled.

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9. It was further submitted that the petitioner was not

justified in claiming that the dispute in the present matter was

only of civil nature. It was also submitted that merely because the

respondent No.2 had initiated proceedings under the provisions of

the Negotiable Instruments Act, he could not be disentitled from

pursuing the proceedings initiated on the basis of the said FIR.

The investigating officer could certainly not be stopped from

carrying out investigation in the facts and circumstances of the

present case. According to the learned counsel for respondent

No.2, the judgments relied upon by the learned counsel for the

petitioner, were clearly distinguishable on facts.

10. A perusal of the material on record shows that in the

present case the petitioner had indeed received huge amounts in

pursuance of the agreement entered into with respondent No.2.

This is not disputed by the petitioner. Despite the said respondent

pursuing the matter, the petitioner and his company had failed to

hand over possession of the apartment by the agreed date of

30.09.2017 and even thereafter till date. It is relevant that

respondent No.2, in his complaint before the police stated in

detail how the petitioner lured him into executing the said

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agreement and how despite receiving huge amounts, the

petitioner failed to take any steps in the matter to satisfy the

grievances of respondent No.2. A perusal of the material on

record shows that during the course of investigation into the

matter, the petitioner gave an impression to respondent No.2 that

the amounts due would be returned along with simple interest

and accordingly the said MoU was executed. Some amounts were

indeed paid under the MoU, but thereafter admittedly no further

amounts were paid and cheques issued by the petitioner were

dishonoured.

11. The material on record therefore, prima facie indicates

that the petitioner not only induced respondent No.2 to part with

huge amounts on the promise of the apartment being constructed

and handed over to him, but even thereafter an impression was

given to respondent No.2 that the amounts due would be returned

with interest. Such amount in pursuance of the MoU was only

partly returned and cheques pertaining to substantial amounts

were dishonoured, thereby prima facie indicating that the

petitioner knew fully well that he would not be able to abide by

the conditions of the MoU and yet proceeded to issue cheques,

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which admittedly stood dishonoured. Merely because the

respondent No.2 has initiated proceedings under the provisions of

the Negotiable Instruments Act in respect of dishonour of such

cheques, it cannot be said that the proceedings in pursuance of the

aforesaid FIR deserve to be quashed.

12. It is in this backdrop that the investigating officer issued

notice to the petitioner. It cannot be said that the investigating

officer committed any error in doing so, particularly when the FIR

stood registered as the information provided to the Police prima

facie disclosed cognizable offences and as per settled law, the

registration of FIR was justified. Insofar as the contention of the

petitioner that the dispute between the parties in the present case

is purely of civil nature, suffice it to say that even if a civil

proceeding could have been initiated by respondent No.2, that in

itself would not disentitle him from placing information before the

Police which prima facie divulged cognizable offences.

13. The learned counsel for the petitioner relied upon the

judgment of the Hon'ble Supreme Court in the case of R.A. Kapur

Vs. State of Punjab, reported in AIR 1960 SC 866. But, the said

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judgment cannot be of assistance to the petitioner for the reason

that it is observed therein that if institution or continuance of

criminal proceedings amounts to abuse of the process of the Court

then such proceedings can be quashed. It is also observed that

where contents of the report or complaint at their face value and

accepted in their entirety, do not constitute the alleged offence,

the criminal proceedings can be quashed. As noted above, such is

not the case in the present matter for the reason that ingredients

of the alleged offences are found to be prima facie present in the

facts and circumstances of the case. Insofar as judgment of the

Hon'ble Supreme Court in the case of Anand Mohatta Vs. State

(NCT of Delhi), reported in 2019 (4) Mh.L.J. (Cri) 247 is

concerned, it was held therein on facts that the Appellants had not

misappropriated the amount in question and that the dispute

between the parties was found to be of civil nature. In our view,

the said judgment also does not come to the aid of the petitioner

herein.

14. The judgment of the Hon'ble Supreme Court relied upon

by the petitioner in the case of Rajeshbhai Patel Vs. State of

Gujarat, reported in (2020) 3 SCC 794, pertains to a situation

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where issues of genuineness of documents and alleged forgery

were pending before the civil Court and in that context, it was

held that criminal proceedings would not be sustainable. Such is

not the situation in the present case, because in this case huge

amounts were paid in pursuance of an admitted agreement

between the parties and the petitioner neither took any steps to

hand over possession of the apartment, nor did he return the

amount along with agreed interest. In fact, cheques were issued

ostensibly to return the promised amount and even those cheques

were dishonoured. Hence, the aforesaid judgment is also

distinguishable on facts. Learned APP is right in her submission

that the petitioners have not only cheated the informant in the

present case but other customers also.

15. Insofar as the judgment of this Court in the case of

Jitendra Joshi Vs. State of Maharashtra, reported in 2011 (3)

MhLJ (Cri) 637, is concerned, it was found on facts that there was

a pure civil dispute between the parties and therefore, the

proceedings could not be permitted to be continued. In the case of

Rohan Dukle Vs. State of Maharashtra , reported in 2020 (1)

Mh.L.J. (Cri) 345, it was found that in the MoU in that case, there

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was an arbitration clause and a mechanism was provided for

resolving the dispute, thereby indicating that criminal proceedings

ought not to continue. In the case of Nilesh Shah Vs. Officer in

Charge, reported in 2017 (4) Mh.L.J. (Cri) 340, the complaint

itself was lodged after huge delay and there was a civil suit filed in

which a counter claim was also filed by the defendant. In such

circumstances, it was found that criminal prosecution ought not to

be permitted.

16. All the aforesaid judgments Court are clearly

distinguishable on facts. As noted above, in the present case the

report launched by the respondent No.2 prima facie divulged

cognizable offences against the petitioner and others. The

petitioner further entered into the MoU, prima facie with the full

knowledge that he was not intending to abide by the terms,

thereby showing that continuance of such criminal proceedings

and issuance of notice by the investigating officer could not be

found fault with. It is submitted by the learned APP that in other

similar cases, the petitioners have cheated other customers also.

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17. In view of the above, we are not inclined to grant the

prayers in the present Writ Petition. Accordingly, it is dismissed. It

is clarified that the observations made hereinabove are confined

to the case in hand only and further such observations shall not be

construed as an impediment to the parties to explore possibility of

settlement of the dispute amicably.

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




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