* 1 * IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 2706 OF 2008 Mr.Sudhir Manharlal Vora .... Applicant V/s. Mr.Mansukhlal Chimanlal Shah & Ors. .... Respondents W I T H CRIMINAL APPLICATION NO. 2707 OF 2008 Mr.Rajnikant Nagardas Parekh .... Applicant V/s. Mr.Mansukhlal Chimanlal Shah &anr. .....Respondents ======== Mr.Subodh Desai i/by. Amol Patankar, adv.for applicant (in Cri.Application No.2706 of 2008). Mr.S.V.Kotwal i/by.Mr.P.P.Runwal, adv.for applicant (in Cri.Application No.2707 of 2008). Mr.Ashok Bhatia, adv.for respondent no.1. Mrs.P.P.Shinde, APP for State. CORAM: SMT.R.P.SONDURBALDOTA, J. DATED: 4TH MARCH, 2009. P.C. : 1. Heard counsel for both sides. 2. This is a common order on the above two applications filed to challenge the order dated 21st May, 2008 passed by the Sessions * 2 * Court rejecting Criminal Revision Application No.1107 of 2006 and Criminal Revision Application No. 253 of 2007. By the two Criminal Revision Applications, original accused no.5 and original accused no.7 had challenged the order of issuing process under Section 406, 490, 506(II) read with Section 120(B) IPC and under Section 7 and 11 of the Maharashtra Ownership of Flats Act. 3. The facts of the case stated in brief are as follows : . The complainant had on 5th February, 1983 agreed to purchase a flat to be constructed by M/s.Vora Exports Pvt.Ltd. As per the agreement, he paid earnest money of Rs.10,000/- and one installment of Rs.1,03,900/-. M/s.Vora Exports, however, due to finance constraints could not carry out the construction. On 2nd June, 1998 it informed the complainant that it had arrived at agreement with M/s.Cyma Woods & Crafts Pvt.Ltd for carrying out the construction and asked the complainant to make payment as per schedule to M/s.Cyma. Thereafter, M/s.Vora Exports went on falsely assuring that M/s.Cyma Woods would complete the construction of the building. But after some time, they stopped responding to the complainant. Later, the complainant learnt that M/s.Vora Exports and M/s.Cyma had changed the building plans and sold the premises to a third persons as an office i.e. for commercial use. Thus according to the complainant, the applicants have committed an offence of cheating, criminal breach of trust in conspiracy with each other. They have also committed an offence * 3 * under Section 7 and 11 of Maharashtra Ownership and Flats Act. 4. The applicants in both the Applications are directors of M/s.Vora Exports (original accused nos.5 and 7), contend that after the agreement with M/s.Cyma for development of the property, they ceased to have anything to do with the property. Therefore, there was no responsibility whatsoever cast upon M/s.Vora Exports of constructing a building and handing over possession of the flat purchased by respondent no.1. The copy of the agreement between M/s. Vora Exports and M/s.Cyma has been annexed to both the applications. It is patent from the agreement that what was taken over by M/s.Cyma was only the task of completing the work left incomplete by M/s.Vora Exports as per the building plans got sanctioned or as may be sanctioned in future. By Clause 9 of the agreement, it was the duty and obligation of M/s.Cyma to carry out all the terms and conditions of agreements for sale of tenements. The said clause further provides that M/s.Vora Exports however will be entitled to balance of purchase price from each of the purchasers of flat/tenaments and M/s.Cyma will not hand over the possession of tenements to any purchaser unless and until M/s.Vora Exports has received all the dues under such agreement. This is sufficient to hold that M/s.Vora Exports continued to have the same control over the project and responsibility towards respondent no.1 in constructing and handing over possession of the flat purchased by * 4 * respondent no.1. Therefore, no person associated with M/s.Voras Exports can be said to be not connected with the complaint. It has been alleged against the applicants that they in connivance with the other accused persons, instead of constructing residential premises constructed the premises for commercial use and sold the same to third parties, despite receiving a sum of Rs.1,03,900/- from respondent no.1. 5. Criminal Application No.2707 of 2008 is filed by original accused no.5. Mr.Kotwal, learned counsel for him, submits that the agreement for sale of the flat between M/s.Vora Exports Pvt. Ltd and respondent no.1 was not even signed by this applicant. He was a mere witness to the agreement. Perusal of the complaint however shows the allegation that he kept on assuring that the other two accused i.e. accused nos.2 and 3 shall develop and construct the premises and hand over possession to respondent no.1. Hence, even if the agreement for sale of the flat is not signed by original accused no.5 on behalf of M/s.Vora Exports and his signature appearing as a witness would also be significant in view of the averment at para-5 of the complaint that he kept on assuring that accused nos.2 and 3 shall develop and construct the premises. Thus, on perusal of the complaint it cannot be said that there is no material whatsoever disclosed therein for issuing process against the applicants in the two applications. In the circumstances, Criminal Application * 5 * No.2706 of 2008 and Criminal Application No. 2707 of 2008 are dismissed. [SMT.R.P.SONDURBALDOTA, J]