Research › Search › Judgment

Bombay High Court · body

2014 DIGILAW 1309 (BOM)

Satish K. Raka v. State of Maharashtra

2014-06-20

SADHANA S.JADHAV

body2014
JUDGMENT :- This is an application under Section 482 of Criminal Procedure Code, 1973, seeking the relief of quashing of the order of issuance of process dated 12.6.2012 passed by the Judicial Magistrate, First Class, Pune, in C.C. No.1585 of 2012. 2. Respondent No.2 herein filed a complaint in the Court of Judicial Magistrate, First Class (Court No.4), Pune, against the present applicants alleging therein that the complainants, who are the Chairman and Secretary of Amarchaya Co-op. Housing society, which is registered under the Maharashtra Co-operative Societies Act, 1960. It is the case of the complainants that the members of the Society have purchased a plot of land admeasuring 49R bearing Survey No.671 Hissa No.2A/3 at Mouje Munjeri, Pune, in the year 1980. The Society had allotted plots to each member for the purpose of construction of a residential house. The said land was reserved for economically weaker section and, therefore, the Competent Authority did not approve the lay-out of the plot. The members, therefore, formulated a scheme of ownership flats on the said property. The Society had decided to develop the property through a developer-builder in order to get the flats free of cost in addition to cash consideration. The complainant has further alleged that the partners of the accused No.1 firm approached the complainant and informed them that they are the developers. It is alleged that the partners had further informed the members that they would be able to get the necessary permissions from the concerned departments of the Government and then develop the said property. According to the complainant, the partners of accused No.1 had further assured the members that they would pay monthly consideration to each of the member of the Society in addition to an ownership flat admeasuring 635 sq. ft. built up area. The members of the Society had, therefore, agreed to engage the services of accused No.1 firm. Accordingly, the Society passed a resolution in the General Body Meeting of the Society held on 19.4.1998. An agreement was executed between the partners of accused No. 1 firm and the members of the Society on 14.10.1998. The Society had also executed a power of attorney in favour of the accused No.1 firm to enable them to effectively carry out development activities and represent the Society before all authorities for the purpose of obtaining necessary permissions. An agreement was executed between the partners of accused No. 1 firm and the members of the Society on 14.10.1998. The Society had also executed a power of attorney in favour of the accused No.1 firm to enable them to effectively carry out development activities and represent the Society before all authorities for the purpose of obtaining necessary permissions. It is further alleged that in July, 2002, the accused No.1 approached the complainant and requested to execute registered development agreement and the power of attorney in their favour on the ground that there has been an amendment in law and unless registered documents are tendered, the developer cannot develop the property. The complainant had executed an agreement dated 18.7.2002, which was registered in the Office of Sub-Registrar. A registered power of attorney was also executed. It is alleged that in the month of August 2004, another power of attorney was executed in favour of the partners of accused No.1. The complainant has alleged that the work had not proceeded, but false promises were given. The complainant has further alleged that the accused had filed a caveat in the Civil Court. Therefore, the complainant had revoked the power of attorney granted in favour of the accused. The complainant had further learnt that the accused No.1 had entered into a partnership with M/s. Raisoni Vastushilpa Associates, i.e. accused No.2 and it was accused No.2 who had filed the caveat against the complainant and its members. The accused No.1 had allegedly assigned the right to develop the property in favour of accused No.1. The complainant feigns ignorance about the said development. The accused No.1 had allegedly executed a development agreement in favour of accused No.2 on 3.11.2004. 3. The complainant has further alleged that the accused persons had developed the said property and constructed a building known as "Navakar Residency" and had sold flats and also handed over possession of 24 flats to Municipal Corporation. The complainant has further proceeded to allege that 100 families are residing in the said flats. According to the complainant, the accused had not handed over the possession to the members of the Society. The complainant had issued a notice to the accused and called upon them to discharge their obligations however, the said obligations have not been complied with. The complainant has further proceeded to allege that 100 families are residing in the said flats. According to the complainant, the accused had not handed over the possession to the members of the Society. The complainant had issued a notice to the accused and called upon them to discharge their obligations however, the said obligations have not been complied with. In the facts of the case, the complainant has alleged that the accused herein have committed offence punishable under Sections 406, 409 read with Section 34 of IPC and Section 8 read with Section 13 of Maharashtra Ownership Flats Act, 1963 (hereinafter referred to as the said Act) 4. The verification of the complainant was recorded on 19.5.2012. The learned Magistrate by an order dated 12.6.2012 issued process against the accused for the offence punishable under Section 406, 420 of IPC and Section 8 read with Section 34 of the said Act. 5. Being aggrieved by the said order of issuance of process, the accused had filed Criminal Revision Application No.327 of 2012 in the Court of District Judge at Pune. The learned Addl. Sessions Judge, Pune, by an order dated 20.2.2013 has been pleased to dismiss the Revision Application and hence the present Application under Section 482 of Cr.P.C. 6. The learned Senior Counsel appearing for the applicants has placed on record several documents to show that the present applicants have not committed any offence as alleged. It is the case of the applicants that in fact, the property as reserved by the Pune Municipal Corporation for the purpose of housing for the economically weaker sections of the society. An award was passed and the total consideration was fixed at Rs.97,000/- payable to the members of the society. The land was acquired by the Government. That the members of the society had initially entered into an agreement with one Shaligram Bendale, proprietor of M/s. Samarth Udyog vide agreement dated 14.3.1992. A power of attorney was executed in favour of Mr. Bendale. The said agreement was terminated by a notice dated 18.6.1995. The members of the Society had filed Regular Civil Suit No.1708 of 2000 against Mr. Shaligram Bendale and an injunction was sought. An injunction was granted against Mr. Bendale which continued till 29.11.2004 and an Administrator was appointed on the said Society and the managing committee was suspended. Bendale. The said agreement was terminated by a notice dated 18.6.1995. The members of the Society had filed Regular Civil Suit No.1708 of 2000 against Mr. Shaligram Bendale and an injunction was sought. An injunction was granted against Mr. Bendale which continued till 29.11.2004 and an Administrator was appointed on the said Society and the managing committee was suspended. Hence, the office-bearers were not entitled to represent the members of the society. The said suit was withdrawn with liberty to file afresh suit on the same cause of action. The said liberty was granted by the Civil Judge, J.D., & JMFC, Pune. The society had then filed a fresh suit against Mr. Bendale bearing RCC No.247 of 2005. 7. The development agreement between the members of the society and the accused was to the extent that – (1) The members of the society would bear the expenses for getting an access toad to the property. (2) The expenses for obtaining ULC permissions; (3) the arrears of taxes till the date of execution of development agreement; (4) A clear title at the cost of the Society; (5) Charges towards MSEB deposit, common facility, expenses such as lifts and other incidental expenses; (6) common maintenance charges. The said conditions were not complied with and the developer had to bear the entire expenses for carrying out the aforesaid works. The applicants further submit that they had to incur heavy expenditure to get the award cancelled and had to pay a substantial amount to the Pune Municipal Corporation. There was no access road to the property. The applicants had to bear the expenditure towards getting clearance from the P.W.D. Department and other departments. There was a police chowki which was on the access road and the accused had to construct a police chowki at their own cost for getting the access road. The applicants further submit that RC S No.247 of2005 filed against Shri Bendale is still pending. The applicants had to bear the expenditure incurred towards prosecuting the said suit. The flats are ready. There have been enhanced specifications. The necessary documents are submitted to the Pune Municipal Corporation for obtaining completion certificate. A General Body Meeting of the society was held on 20.9.2009 at the residence of the Secretary of the Society – M/s. Rekha Ketakar for the purpose of allotment of flats. A list as prepared and submitted to the applicants. There have been enhanced specifications. The necessary documents are submitted to the Pune Municipal Corporation for obtaining completion certificate. A General Body Meeting of the society was held on 20.9.2009 at the residence of the Secretary of the Society – M/s. Rekha Ketakar for the purpose of allotment of flats. A list as prepared and submitted to the applicants. According to the applicants, the members of the society had visited the site and inspected their respective allotted flats. 8. In the minutes of the meeting dated 28.9.2009, it reflects that the present applicants were present in the said meeting. They had given the detailed information to the office-bearers and the members of the society. There was a discussion amongst the members and Vastushilpa Constructions and it was resolved that although there was a demand of Rs.5,42,780/- from the builder-developer, the present applicant No.1 had suggested that there should be some concession given to the members and accordingly the applicant No.1 had expressed that he would give a concession of Rs.25,000/-. The members had indicated that they would not be able to pay the entire amount in one stroke and, therefore, they were given time. There was also discussion in respect of the civil suit pending between the Society and Shri Bendale. It was decided that the hearing of the suit should be expedited and they should get it disposed. 9. The applicants have also placed on record the electricity bills and have demonstrated that they had purchased the electricity meters in the name of the members of the Society and, therefore, it cannot be said that they had no intention of giving the possession of the Society. The assessment receipt in the name of Shri Rokade, Shri Belim and other members is also placed on record which clearly indicate that the applicants are willing to hand over the possession of the said flats to the members of the Society. In the course of withdrawing the award passed in respect of the said plot it has been agreed that the developer would give 24 flats to Pune Municipal Corporation. 10. In the course of withdrawing the award passed in respect of the said plot it has been agreed that the developer would give 24 flats to Pune Municipal Corporation. 10. The learned Counsel appearing for the respondent submits that the applicants herein cannot place reliance upon the minutes of the meeting dated 28.9.2009 as these documents were not placed before the Court in the Revision Application and therefore, according to the learned Counsel for the respondents, this Court cannot consider the said documents for the first time. 11. The Court cannot be oblivious of the fact that this is an application under Section 482 of Cr.P.C. and that the Court can consider all relevant documents, more so because it appears that the complainant has suppressed all the material facts in the complaint. The fact that the Society had filed a suit against the erstwhile developer has also been suppressed and instead the complainant has proceeded to allege that the applicants had filed a caveat against the Society and, according to the complainant, the filing of caveat smacks an evil intention to violate the terms of the agreement. The allegation that the 24 flats have been handed over to Pune Municipal Corporation is also unfounded as the flats have not been handed over to Pune Municipal Corporation due to pendency of the present proceedings as well as the civil suit. On the other hand, Rekha Ketkar and Smt. Latke have paid the amount as agreed and have taken possession of the flats. The learned Counsel for the respondent submits that the very fact that the applicants are not willing to hand over the possession of the flats to the members of the Society smacks of an allegation of cheating and illegal intention. 12. Reliance is placed upon the Judgment of the Hon'ble Apex Court in the case of Rajiv Thapar and others vs. Madan Lal Kapoor reported in (2013) 3 SCC (Cri) 158 : [2013 ALL MR (Cri) 1107 (S.C.)]. 12. Reliance is placed upon the Judgment of the Hon'ble Apex Court in the case of Rajiv Thapar and others vs. Madan Lal Kapoor reported in (2013) 3 SCC (Cri) 158 : [2013 ALL MR (Cri) 1107 (S.C.)]. The Hon'ble Apex Court has held thus :- "to invoke its inherent jurisdiction to quash proceedings on basis of defence material High Court has to be fully satisfied that material produced to relied on by accused (a) leads to conclusion that his/heir defence is based on sound, reasonable, and indubitable facts; (b) rules out and displaces assertions contained in charges levelled against accused without necessity of recording any evidence; (c) should not have been refuted, or alternatively, cannot be justifiably refuted, being of sterling and impeccable quality i.e. a reasonable man should be persuaded to dismiss and condemn actual basis of accusations as false; and (d) whether proceeding with the trial would result in an abuse of process of the court, and would not serve the ends of justice." 13. The learned Counsel for the respondent has placed reliance upon the Judgment of the Hon'ble Apex Court in the case of Inder Mohan Goswami and another vs. State of Uttaranchal and others (2007) 12 SCC 1 : [2007 ALL MR (Cri) 3302 (S.C.)]. The Hon'ble Apex Court observed thus :- "Inherent power under Section 482 Cr.PC can be exercised : (i) to give effect to an order under the Code; (ii) to prevent abuse of the process of court, and (iii) to otherwise secure the ends of justice. Every High Court has inherent power to act ex debito justitiae to do real and substantial justice, for the administration of which alone it exists, or to prevent abuse of the process of the court. Inherent jurisdiction of the High Courts under Section 482 Cr.PC though wide has to be exercised sparingly, carefully and with great caution and only when such exercise is justified by the tests specifically laid down in the section itself. Authority of the court exists for the advancement of justice. If any abuse of the process leading to injustice is brought to the notice of the court, then the court would be justified in preventing injustice by invoking inherent powers in absence of specific provisions in the statute. Authority of the court exists for the advancement of justice. If any abuse of the process leading to injustice is brought to the notice of the court, then the court would be justified in preventing injustice by invoking inherent powers in absence of specific provisions in the statute. The court must ensure that criminal prosecution is not used as an instrument of harassment or for seeking private vendetta or with an ulterior motive to pressurise the accused." She specifically has laid stress on the observations of the Apex Court :- "Court should refrain from giving a prima facie decision in a case where entire facts are incomplete and hazy - More so, when the evidence has not been collected and produced before the court and the issues involved are of such magnitude that they cannot be seen in their true perspective without sufficient material." 14. This Court cannot be oblivious of the fact that the Hon'ble Apex Court in the Judgment in Inder Mohan case, [2007 ALL MR (Cri) 3302 (S.C.)] (cited supra) has held that "The veracity of the facts alleged by the appellants and the respondents can only be ascertained on the basis of evidence and documents by a civil court of competent jurisdiction. The dispute in question is purely of civil nature and Respondent No.3 has already instituted a civil suit in the Court of Civil Judge." Hence, initiation of criminal proceedings by the respondent against the applicants is clearly an abuse of process of the Court. The Hon'ble Apex Court had further observed "To prevent abuse of the process of the court and to secure the ends of justice, it becomes imperative to quash the FIR and any further proceedings emanating therefrom." 15. The learned Counsel for the respondent has also relied upon the Judgment of the Apex Court in the case of U.P. Pollution Control Board vs. Mohan Meakins Ltd. & Ors. (2000) 3 SCC 745 : [2000 ALL MR (Cri) 1046 (S.C.)]. However, the said judgment would not be relevant in the present case. The learned Counsel for the respondent has also relied upon the Judgment of the Apex Court in the case of U.P. Pollution Control Board vs. Mohan Meakins Ltd. & Ors. (2000) 3 SCC 745 : [2000 ALL MR (Cri) 1046 (S.C.)]. However, the said judgment would not be relevant in the present case. It is pertinent to note that Sections 406 and 420 read with Sec. 34 of IPC would not be attracted in the present case since there has to be material to show that the beneficial interest in the property in respect of which the offence is alleged to have been committed was vested in some person other than the accused and that the accused held that property on behalf of that person. In the present case, when the agreement was executed between the parties, the complainant and the members of the society did not have a title over the said property. In fact, an award was passed and the responsibility of releasing the property from the award was given to the present applicants. After clearance of the title of the property, it was further the responsibility of the applicants to develop the said property and give possession to the members of the Society. It is seen from the record that the present applicants have developed the property. The applicants have installed the electric meter in the name of the members of the society and has requested them to take possession on payment of Rs.3 lakhs. In fact, the civil suit was pending between Mr. Bendale and the present members. The said aspect is not reflected in the complaint. There has been suppression of facts by the complainant. The ingredients contemplated in Section 415 of IPC have to be proved or that there has to be material to show that the alleged act is covered under Section 415 of IPC. In fact, in the present case, the applicants have not induced the members of the society. The members of the society and the applicants are bound by an agreement which is still in force. The dispute appears to be of a civil nature and, therefore, this Court is of the opinion that the allegations made in the complaint are unfounded. 16. The members of the society and the applicants are bound by an agreement which is still in force. The dispute appears to be of a civil nature and, therefore, this Court is of the opinion that the allegations made in the complaint are unfounded. 16. The learned counsel for the respondent has also placed reliance on the judgment of the Hon'ble Apex Court in the case of Alpic Finance Ltd. vs. P. Sadasivan and another (2001)3 SCC 513 : [2001 ALL MR (Cri) 446 (S.C.)]. The learned Counsel submits that the Hon'ble Apex Court has held that merely because the remedy by way of civil suit is available is not an impediment in maintaining the criminal complaint provided the complaint discloses the ingredients of the offence alleged. The Hon'ble Apex Court has placed a specific rider in the said decision (cited supra) and that is "provided the complaint discloses the ingredients of the offence alleged". 17. The complainant has also alleged offence under Section 8 read with Section 13 of the Maharashtra Ownership Flats Act, 1963. Section 8(a) and (b) reads as under:- "8. Refund of amount paid with interest for failure to give possession within specified time or further time allowed. (a) the promoter fails to give possession in accordance with the terms of his agreement of a flat duly completed by the date specified, or any further date or dates agreed to by the parties, or (b) the promoter, for reasons beyond his control and of his agents, is unable to give possession of the flat by the date specified, or the further agreed date and a period of three months thereafter, or a further period of three months if those reasons still exist, then, in any such case, the promoter shall be liable on demand (but without prejudice to any other remedies to which he may be liable) to refund the amounts already received by him in respect of the flat (with simple interest at nine per cent per annum from the date he received the sums till the date the amounts and interest therein is refunded), and the amounts and the interest shall be a charge on the land and the construction if any thereon in which the flat is or was to be constructed, to the extent of the amount due, but subject to any prior encumbrances. In the present case, the applicants are willing to give possession in accordance with the terms of the agreement dated 28.9.2009. In fact, it was agreed in the said meeting that the promoter had demanded Rs.5,42,720/-. However, they had agreed to give concession and as per the said concession two members of the society have taken the possession of the flats. The minutes of the meeting are signed by all the members and the Chairman of the society. Hence, it is clear that the applicants are willing to abide by the agreement and, therefore, it cannot be said that the applicants have failed to give possession. The crux of Section 8(a) of the said Act is the terms of the agreement between the parties. Hence, this Court is of the opinion that Section 8 of the said Act is also not attracted. 18. This Court had made an endeavour to amicably settle the matter between the parties. The applicants were ready and willing to give further concession. However, the complainant is present in the Court and is not willing to amicably settle the matter. Due to the pendency of the present application, the entire scheme is stalled and the applicants are unable to hand over the peaceful possession of the 24 flats to the Pune Municipal Corporation. 19. The learned Senior Counsel appearing for the applicants submit that the applicants would face stringent action from the Pune Municipal Corporation for failure to hand over possession of the said flats. 20. The learned Counsel appearing for the respondent submits that it is not a case where the order of issuance of process should be quashed by the High Court under Section 482 of Cr.P.C. According to the learned Counsel for the respondent, the complainant would lead evidence to substantiate his allegations and, therefore, the applicants are not entitled to the relief as claimed for. However, this Court has observed that the parties are bound by an agreement. The dispute is of a civil nature and the criminal prosecution has been initiated to coerce and pressurize the applicants to agree to the terms and conditions unilaterally laid down by the complainant in contravention of the agreement dated 28.9.2009. However, this Court has observed that the parties are bound by an agreement. The dispute is of a civil nature and the criminal prosecution has been initiated to coerce and pressurize the applicants to agree to the terms and conditions unilaterally laid down by the complainant in contravention of the agreement dated 28.9.2009. the learned Counsel submits that the minutes of the meeting dated 20.9.2009, copies of the installation of electric meter and payment of taxes to the Corporation in the name of members of the society were not placed before the revisional Court and therefore, the same cannot be considered. There is no bar to consider the documents which are in the form of an agreement between the two parties and the other public documents while considering an application under Section 482 of Cr.P.C. Upon perusal of the complaint, it is clear that the complainant has not stated about the meeting dated 20.9.2009. However, the member of the society, who is present in the Court, does not deny that the meeting was held or the minutes were signed by both the complainants. 21. As discussed above, it is clear that the complainant has suppressed several facts in the complaint and has attempted to mislead the Court. The complaint does not disclose the alleged offence. There is nothing on record to indicate that the applicants had failed to discharge their contractual obligations. In the complaint, there is no allegation that there was fraud or dishonesty, inducement on the part of the applicants and thereby the respondents parted with the property. The Hon'ble Apex Court had dismissed the petition filed by the complainant and the Karnataka High Court had quashed the proceedings and the same was upheld by the Hon'ble Apex Court. 22. In respect of Application No.400 of 2013, perusal of the minutes of the meeting dated 20.9.2009 would show that the meeting was convened to decide about payment for Rs.5,42,720/- to be paid to Vastushilpa Constructions. The members of the society had demanded a concession and the applicants had agreed to give the said concession and stand by their word as on today. In respect of Criminal Application No.405 of 2013, the applicants are the partners of Vastushilpa Constructions and they would also be entitled to the same relief. 23. For the abovementioned reasons, the Applications are allowed in terms of prayer clause (b) to the applications. Application allowed.