1 WP : 1247/2009 IN THE HIGH COURT OF JUDICATUARE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 1247 OF 2009 Mr. Parasmal Daulatram Jain .... Petitioner vs. The State of Maharashtra & Anr. .... Respondents Mr. Rajesh Singh, Advocate for petitioner Mrs. V.R. Bhosale, APP for State. CORAM : Smt. R.P. SondurBaldota, J. Date : 4th February, 2011. P.C. 1. This writ petition challenges the concurrent decision of the trial Court, as well as, the Sessions Court of dismissing the complaint filed by the petitioner for the offences punishable under Sections 420 and 501, Indian Penal Code against respondent no.2 on the ground that the dispute raised in the complaint is of purely civil nature and does not give rise to criminal liability. 2. The petitioner is a Chartered Accountant by profession. Respondent no.2 at the material time was his client. It was the contention of the petitioner in his complaint being C.C. No. 21/Misc./2005 that respondent no.2 had entered into an agreement to sell his flats No.408/409 situate in ABC building, Manish Park, Mumbai for a sum of Rs.40.00 lacs. The vacant possession of flat was to be handed over on/or before 30th September 2002 and the 2 WP : 1247/2009 necessary documentation was to be made on receipt of the entire consideration. According to the petitioner, he had paid a sum of Rs.21.00 lacs to respondent no.2 for which a receipt had been executed. The learned Metropolitan Magistrate, by his order dated 3rd May 2003 forwarded the complaint to M.R.A. Marg Police Station, Mumbai for investigation and report under Section 156(3) of Cr.P.C. Pursuant to the order, M.R.A. Marg Police Station registered the M.E.C.R. No.16 of 2003 on 9th May 2003. It submitted its report on 24th March 2005 praying for dismissal of the criminal complaint by granting “C” summary under the Criminal Manual. The learned Metropolitan Magistrate, by his order dated 7th December 2005 accepted the prayer and disposed off the criminal complaint by filing the same. The petitioner then preferred criminal revision application to the Sessions Court. , that application was also dismissed by the order dated 16th January 2009. 3. Mr. Singh, the learned counsel for the petitioner submits that the facts of the case in fact show dishonest intention of respondent no. 2 right from the beginning. He seeks to refer to the statement of respondent no.2 recorded by Police during the investigation in which, respondent no.2 has denied that he had issued the receipt for Rs.21.00 lacs. as claimed by the petitioner. The Sessions Court has noted that the complaint does not make any averment about making false representation by respondent no.2. The petitioner 3 WP : 1247/2009 being a Chartered Accountant, was looking after the accounts of respondent no.2 and as such would be in the know of financial affairs of respondent no.2. The Sessions Court has held that since there is no averment about making false representation by respondent no.2, the offence punishable under Section 420 Indian Penal Code would not be attracted. It was next argued before the Sessions Court that respondent no.2 failed to deliver the possession of flat on/or before 30th September 2002 as agreed by him and this conduct of respondent no.2 amounts to cheating. The Sessions Judge rightly held that the misconduct will give rise to a civil remedy for filing a suit for specific performance of the contract or in the alternative the refund of earnest money deposited. I have perused the complaint, report of the Police, the order of learned Metropolitan Magistrate and the impugned order. On perusal, I fully satisfied that no other view could be taken in the matter. Hence, the petition is dismissed. ( SMT. R.P. SONDURBALDOTA, J)