1 CR.APLN.2383.2010.odt mnm IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 2383 OF 2010 Anil Dattatray Taware ...Applicant Vs. M/s. D.K. Builders & Developers ...Respondents Mrs. B.S. Phad, Advocate for the Applicant's Mr. Shriram S. Kulkarni, Advocate for Respondent No.1 Mr. S.A. Shaikh, A.P.P for the State CORAM : SMT. ROSHAN DALVI, J. DATED : 2ND MAY, 2011 P.C. : 1. The application is filed for leave to appeal against the order of acquittal essentially for offence under the Maharashtra Ownership Flats Act 1963 (MOFA). The Complainant and Respondent No.1 entered into an agreement for development of the property in which complainant had a premises as a tenant. The agreement with the tenant showed the new premises to be constructed by the Respondent No.1 for which the Complainant had to make certain payments upon handing over possession of the old premises and move into a transit accommodation. The Respondent No.1 had to construct the new accommodation. The agreement is dated 30th May 1996. The construction was not put up even until August 2003. 2 CR.APLN.2383.2010.odt 2. The defence of the accused was that he could not construct because the Complainant did not vacate. The cross examination of the Complainant recorded on 16th July 2003 shows a case put to the Complainant that the accommodation in which he was residing was made available to them by the Respondent No.1 herein. The fact that the Accused who is a builder and a businessman admittedly made available to the Complainant an accommodation shows that his accommodation was vacated. Mr. Kulkarni on his behalf relied upon, what he considers an admission of the Complainant that House No.56 was still in his possession. It is not expected of a builder to make available any accommodation to any of the tenants on the plot to be developed by him unless possession is handed over. Hence leave to appeal is granted. 3. Appeal to come up for admission on 2nd June 2011. 4. In view of the short issues the Appeal shall be taken up for final hearing at the stage of admission. Call for R & P. 5. Parties shall be provided with copies of R & P. 6. Issue notice to Respondent No.1. Hamdast allowed. Applicant to serve notice by private service. (SMT.ROSHAN DALVI, J.)