Bombay High Court
Zulfikar Kasim Kazi And Anr vs The State Of Maharashtra And Anr on 13 June, 2023
Bench: Nitin W. Sambre, Sharmila U. Deshmukh
2023:BHC-AS:15898-DB
(902)-WP-4018-21.doc.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
WRIT PETITION NO.4018 OF 2021
Zulfikar Kasim Kazi & Anr. ..Petitioners
Versus
The State of Maharashtra & Anr. ..Respondents
Mr. Ganesh Bhujbal, for the Petitioners.
Mr. J. P. Yagnik, APP for the Respondent/State.
CORAM : NITIN W. SAMBRE &
SHARMILA U. DESHMUKH, JJ.
DATE : 13th JUNE, 2023
P.C.
1. Heard Mr. Ganesh Bhujbal counsel appearing for the
petitioners/accused against whom offence being Crime No.32 of
2017 punishable under Sections 420 r/w 34 of the IPC and Section
13(1)(2)(3) of the MOFA Act came to be registered with Dongri
Police Station.
2. The respondent/complainant in the aforesaid complaint
alleged that a registered agreement of permanent alternate
accommodate was executed between the complainant and M/s.
Shah Developers of which the Petitioners are partners. It is claimed
that clause (6) of the said agreement, so also, clause (8) which
reads thus :-
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"6. The Owners/Developers shall allot to the Tenant
Shop premises/Flat (admeasuring 6.73.2 Sq.Ft. Carpet
Area) being Shop/Flat No.1201 on the 12th Floor of the new
Building/s to be constructed on the said property in lieu of
the said tenanted premises on ownership basis and free of
the cost a plan of the said Shop premises/Flat as sanctioned
by the MCGM is Annexed hereto, the said Shop
premises/Flat are more particularly described in the Second
Schedule hereunder written. The provisions of Maharashtra
Ownership Flat Act, 1963 shall be applicable to the said
Shop Premises/Flat allotted as aforesaid to the Tenant by
way of permanent Alternate Accommodation.
7. .............
8. The Owners/Developers shall issue and deliver to
the Tenant an account payee cheque of current date, drawn
in favour of the Tenant of an amount of Rs.2,16,000/-
(Rupees Two Lakhs Sixteen Thousand only) being and
towards the 12 months advance license fees at the rate of
Rs.18,000/- per month and another post date cheque for
license fee for further 12 months in advance for the
temporary alternate accommodation to be arranged by the
Tenant pending construction and delivery of permanent
alternate accommodation to be allotted and provided by the
Owners/Developers."
provides not only for the alternate accommodation to be provided
by the firm and its partners by paying an amount of Rs.2,16,000/-
towards the rent of one year, the permanent developed premises to
the extent of 673.2 sq.ft carpet area being flat No.1201 on the 12th
floor was to be allotted to the complainant. According to the
complainant, the petitioners were in the capacity of the partners of
the said firm M/s. Shah Developers have neither honoured clause
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(6) nor clause (8) by either handing over developed flat No.1201
having 673.2 sq.ft. carpet area or the rent towards the permanent
alternate accommodation. According to complainant, as the accused
and the partnership firm have taken over their property with a
promise for handing over the developed property and such promise
being not honoured, an offence came to be registered.
3. While questioning the aforesaid FIR, Mr. Ganesh Bhujbal
learned counsel appearing for the petitioners would invite attention
of this Court to the fact that the partnership firm M/s. Shah
Developers is not impleaded as the accused in the offence in
question. According to him, the provisions of Sections 138 and 141
of the Negotiable Instruments Act, 1881 ("NI Act" for short) are
pari-materia with that of provisions of Section 13 of the MOFA Act.
He would urge that in case if the firm is not impleaded as accused,
the prosecution against the partner of the firm is not maintainable.
He would try to draw support from the very language of Section 14
of the MOFA Act and law laid down by the Supreme Court in the
matter of Aneeta Hada Vs. Godfather Travels and Tours Private
Limited with connected matters reported in (2012) 5 SCC 661. His
further contentions are, the liability of the petitioners can be
restricted to that of the civil responsibility and not the criminal
responsibility. According to him, the mens rea on the part of the
petitioners cannot be inferred, particularly, when because of the
financial difficulty the project in question has run into rough
weather. As such, he would urge that it is always open for the
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complainant to take recourse to the civil remedy either by filing suit
for specific performance or such other remedy as is available to her.
As such, drawing support from the judgment in the matter of State
of Haryana & Ors. Vs. Ch. Bhajan Lal & Ors. reported in AIR 1992
SC 604, he would urge that prosecution is liable to be quashed and
set aside.
4. Learned APP would support the act of the Investigating
Officer of registering the offence. He would draw support from the
very conduct of the petitioner as in narrated in the FIR, so also the
recitals in the agreement dated 13th December, 2011. According to
him, even if the provisions of Section 14 of the MOFA is sought to be
read in pari-materia with that of provisions of Sections 138 and 141
of the NI Act, according to him, it is not mandatory while registering
an offence under the MOFA Act to have statutory notice as required
under Section 138 of the NI Act. As such, he would urge that there
is prima-facie satisfaction of ingredients of offence punishable under
Section 420 r/w 34 of the IPC and Section 13(1)(2)(3) of the MOFA
Act.
5. We have appreciated the aforesaid submissions.
6. The admitted fact on record is about the execution of the
agreement dated 13th December, 2011 between the firm M/s. Shah
Developers of which the petitioners are admittedly partners. The
moment the aforesaid agreement is executed and registered and in
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part performance thereof the petitioners have failed to advance rent
for one year i.e. at the rate of Rs.18,000/- per month, the fact
remains that the petitioners owe their responsibility to discharge
their burden as contemplated and provided under the terms of the
said agreement. Based on the terms of the aforesaid agreement, it
cannot be disputed that provisions of MOFA Act can be held to be
applicable to the case in hand. The conduct of the petitioners as
reflected in the FIR depicts that neither they have honoured the
terms of clause (6) nor clause (8) of the recitals thereby handing
over developed property as assured or any alternate rent.
7. As such, prima-facie there appears to be satisfaction of
ingredients of offence as is alleged by the complainant.
8. Apart from above, the claim put forth that the dispute
has nature of civil proceedings cannot be accepted, particularly,
when the statute i.e. MOFA Act itself provides for a consequence of
offence being committed under Section 13 as prescribed in the FIR
for non discharge of the obligation as provided in the agreement
admittedly entered into. In this background and having regard to
the fact that in absence of the statutory provisions at par with
Section 138 of the NI Act under the provisions of the MOFA Act, it
cannot be said that for want of the partnership firm being
impleaded as accused, prosecution against the petitioners is not
maintainable. In our considered view, the prosecution against the
petitioners can be held to be as maintainable and impleadment of
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the partnership firm as an accused can be said to be a curable
defect. That being so, no case for quashing is made out.
9. The petition as such stands dismissed.
[SHARMILA U. DESHMUKH, J.] [NITIN W. SAMBRE, J.]
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