1 cri.appln.5042.10 hvn IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE SIDE CRIMINAL APPLN NO. 5042 OF 2010 Omprakash Taneja ... Applicant Versus State of Maharashtra and Ors. ... Respondents Mrs. Rita Bhatia, Advocate for the applicant. Ms. Daisy Damania, respondent no. 2 present in person. Mrs. V.R. Bhosale, A.P.P. for State. CORAM : SMT. R.P. SONDURBALDOTA,J. DATED : JANUARY 27, 2011 P.C. 1. The applicant is original accused no. 1 in complaint No. 107/SW/2008 filed by respondent no. 2 and pending in the court of Additional Chief Metropolitan Magistrate, 37th Court at Esplanade, Mumbai. He is a member of Lovedale Cooperative Housing Society, Colaba, Mumbai. In the year 1995, respondent no. 2 purchased a flat in the society from one Mr. A.E.V. D'Souza for the total consideration of Rs.1,25,00,000/-. At that 2 cri.appln.5042.10 time, the applicant was the chairman of the society. Respondent no. 2 in her complaint alleges that at that time, the applicant in particular, and the other office bearers of the society demanded a sum of Rs. 3 lacs. from her as transfer charges for transferring the flat to her name and admitting her as member of the society. Having already sold her earlier flat, respondent no. 2 had no option but to succumb to the demand of the applicant and other office bearers of the society. She therefore, paid sum of Rs.1,50,000/- by a cheque dated 14th March, 1995 to the society with the balance amount being paid by the vendor Mr. D'Souza by his cheque dated 23rd March, 1995. However, respondent no. 2 had to make good the amount of Rs.1,50,000/- to Mr. D'Souza because there was no agreement between them for any joint payment of transfer charges. Respondent no. 2 further alleges in the complaint that this amount of transfer charges has been shown by the applicant and the then office bearers of the society as a donation to the society by making alterations in the accounts of the society. According to her there was no question of she giving any donation to the 3 cri.appln.5042.10 society. Respondent no. 2 had moved the Deputy Registrar of Societies, "A" Ward for refund of the amount taken from her in excess of Rs.25,000/- as transfer charges and the Deputy Registrar has directed the society to refund the sum of Rs. 1,25,000/- with interest to her which order is yet to be complied with. According to respondent no. 2 the applicant and other office bearers in connivance with the Accountant, caused alterations and falsification in the accounts of the society by altering the amount of Rs.1,50,000/- paid as transfer charges to "donation to the society" though it was not legal on the part of the society to demand or collect donation. Thereby, the applicant and other office bearers have committed offence under section 477(A) read with 34 of Indian Penal Code. The next offence alleged under section 406 read with 34 of Indian Penal Code by not refunding the amount in compliance of the order of Deputy Registrar of the societies. The third allegation is that these persons have committed offence of cheating by posing themselves as members of the society when they had ceased to be members and lastly 4 cri.appln.5042.10 under section 427 read with 34 of Indian Penal Code for falsifying the accounts and illegally recovering the sum of Rs. 1,20,608/- from her. 3. After recording verification statement of respondent no. 2, the learned Additional Chief Metropolitan Magistrate had called for report of police under section 202 of Code of Criminal Procedure. On 9th April, 2007, Colaba Police station submitted its report stating that there was no substance in the complaint and no cognizable case is made out. The learned Additional Chief Metropolitan Magistrate accepted the report and dismissed the complaint under section 203 of Code of Criminal Procedure. The order of dismissal of the complaint came to be challenged by respondent no. 2 by preferring Criminal Revision Application N. 387 of 2008 in the Sessions Court, Mumbai. The Revision Application was disposed off by the order dated 3rd September, 2010, partly confirming the order impugned in respect of the other accused persons. As regards the applicant herein, the revision application was allowed and the trial court was 5 cri.appln.5042.10 directed to issue process against him for the offence punishable under section 477(A) read with 34 of Indian Penal Code i.e. for falsifying of the accounts. The learned Sessions Court held that considering the facts and circumstances of the case though all the allegations against the other accused persons in the complaint can not be accepted, there is prima facie case against the applicant of committing offence under section 477(A) read with 34 of Indian Penal Code. This is the order which is impugned in the present application. 4. Perusal of the complaint confirms the observations of the Sessions Court. The complaint specifically alleges that there was demand of Rs.3 lacs. made towards transfer charges by the applicant. When respondent no. 2 had refused to pay that amount, "No objection certificate" from the society was refused to her. The society gave no objection certificate only after respondent no. 2 and Mr. D'Souza paid the amount by cheques. The revisional Court has observed that the amount received by the society towards transfer charges have been shown in the 6 cri.appln.5042.10 accounts as "donation". On the prima facie view, he has observed that paying donation being the voluntary concept, no incoming member is likely to voluntarily pay the substantial amount to the society. Considering the contents of the complaint, in my opinion, the learned Sessions Judge was right in concluding that there is prima facie case against the applicant of committing offence under section 477(A) read with 34 of Indian Penal Code and therefore, no interference with the impugned order is called for. 5. The applicant contends that the revisional court ought to have applied the same yardsticks to him as applied to the other accused persons. He also contends that he was only Chairman of the society and did not maintain any accounts which were handled by the Honourary Secretary and Treasurer of the society with the help of the Accountant and the accounts were regularly audited by the Auditor of the society. Therefore, according to the applicant, the allegation against the applicant is baseless. This aspect will have to be considered at the time of trial. The applicant also makes several other grievances against respondent 7 cri.appln.5042.10 no. 2 relating to the payment of maintenance charges. These grievances being completely independent of the allegations in the complaint, the same cannot be taken into consideration. Application is dismissed. [Judge]