appln5177-10.sxw jpc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICTION 5177 OF 2010 1. Chetan Devidas Thakkar 2. Shailesh Devidas thakkar 3. Vijay Shamji Shah 4. Shailesh R.Shrivastava 5. Pamela Salvacad D'souza .. Applicants Versus 1. The State of Maharashtra 2. Fausta Justina Philomena D'souza .. Respondents Mr. H. S. Shreepad Murthy i/by Ms. Pinty Bhansali for the applicants Mr. V. B. Konde, Deshmukh, APP for Respondent State Mr. Ashish Gaikwad i/by Mr. Rajesh Singh for Respondent No.1 CORAM : J.H. BHATIA, J. DATE : 21st April, 2011. P.C.: 1. Rule. Rule made returnable forthwith. 2. Heard learned counsel for both the parties. 3. Certain undisputed facts may be stated thus: The respondent no.2, who is original complainant and applicant no. 5 Pamela are sisters and they have one more sister. These three sisters were co-owners of Plot No. 74 bearing CTS No. 524 at Borivali. Adjoining Plot No. 73 belongs to original accused No.1. M/s Devleela Developers, a partnership firm, of which Applicant Nos. 1 and 2 are the partners. In the year 2004, 1 appln5177-10.sxw a development agreement had took place between M/s Devleela Developers on one hand and the complainant and her two sisters on the other. As per the development plan right to develop the plot no. 74 were given to Ms.Devleela Developers in consideration of three flats to be given to the sisters owners from the buildings to be constructed on the said plot and an amount of Rs,90 lacs. Thus, three flats in the buildings to be constructed and an amount of Rs.90 lacs formed consideration for the assignment of right to develop the said plot. As per the agreement, the complainant and her two sisters also executed power of attorney in favour of M/s.Devleela Developers. On the basis of the agreement and power of attorney M/s. Devleela Developers submitted a joint plan for development of the plot nos. 73 and 74, instead of submitting separate plans for the plot no. 73, belonging to M/s Devleela Developers and plot No. 74 belonging to complainant and her sisters. That plan was sanctioned by the Municipal Corporation and the developer made construction. 4. Admittedly the complainant and her two sisters have received amount of Rs.90 lacs and also three flats in the new building constructed, on the same floor. It appears that when the construction was going on, the complainant approached Police and the Municipal Corporation complaining illegal joint development of plot nos. 73 and 74. However the the concerned authorities did not take any action on the said complaint. 2 appln5177-10.sxw Thereafter, the complainant filed a Civil Suit No. 4688/2006. In that civil suit, no interim relief was granted. An appeal filed by the Complainant challenging the said order was subsequently withdrawn. The complainant then filed second civil suit (Suit no. 5005/2006) for the same relief. In the second civil suit also, the complainant could not get any relief. Against refusal of relief, an Appeal From Order No. 272 of 2007 of was filed. That appeal was also dismissed. It appears that Civil Application No. 399 of 2007 was filed for speaking to the minutes of the order in the said appeal from order. That was also rejected by this Court observing that there was nothing objectionable in the construction. 5. It appears that after losing in two suits, the complainant filed a complaint on 28/9/2010 (CC No.498/SW/2010) against Accused No.1-M/s Devleela Developers and its partners, Accused no.2- her sister Pamela, and Accused No.3 Shailesh Shrivastava- Advocate and accused Nos.4 and 5 Executive Engineer and Assistant Engineer of the Municipal Corporation, respectively. According to the complainant offence under sections 420, 465, 467, 468 and 471 read with section 34 of the Indian Penal Code, have been committed by the accused. Learned Magistrate, by order dated 9/11/2010, directed the police to investigate under section 156(3) of Cr.P.C. Investigation is stayed by this Court by order dated 23/10/2010 3 appln5177-10.sxw 6. Taking into consideration facts and circumstances above, the Complainant could have no grievance about the development of plot no. 74. The learned counsel for the complainant only contended that there was no agreement for joint development of Plot Nos. 73 and 74 and the offences were committed by submitting a joint development plan of the two plots. Admittedly the complainant and her two sisters are not concerned with Plot No. 73. They are concerned only with Plot No.74. If the developer would have made development without complying certain terms and conditions of development contract and if he would have failed to comply with the terms of contract particularly, about consideration, the complaint could make a grievance that she and her sisters are cheated. The complainant and her two sisters have admittedly accepted and received Rs. 90 lacks and three flats in full consideration. Therefore, it appears that the complaint is just for the purpose of exploitation and nothing more and, therefore, it is necessary for this Court to interfere and quash such proceedings. 7. In the result, the application is allowed in terms of prayer clause (a) and the Proceedings, being C.C. No. 2600498/SW/2010 , stand quashed. 8. Rule is made absolute accordingly. ( J.H. BHATIA, J. ) 4