1 CRA-480-09.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION Mhi CRIMINAL REVISION APPLICATION NO. 480 OF 2009 Mr. Suryakant Madhavrao Shirole .. Applicant (Orig. complainant) vs. M/s. Sai Erections & Ors. .. Respondents Ms. Revati Mohite Dere, Advocate, for the applicant. Mr.M.S. Mohite, Advocate for the respondent Nos. 1 to 3. Mr. P.S.Hingorani, APP, for the respondent No.4 - State. CORAM: J.H.BHATIA,J. DATE : 5th April, 2011. P.C. 1. Heard the learned Counsel for the parties. 2. The applicant before this Court is the original complainant. According to him, he and his brothers are the owners of property bearing final Plot No.405A, Town Planning Scheme No.1, CTS No.984 admeasuring 4093.01 sq. mtrs, The said plot is situated at Senapati Bapat Road, Shivaji Nagar, Pune . The said plot was then sub-divided into four plots bearing Nos.1, 2, 3 and 4. Each of the three brothers took one plot. Plot No.4, which is in dispute, was retained as common plot among the three brothers. They decided to develop the 2 CRA-480-09.sxw plot No.4 and to construct a commercial building and accordingly got a layout plan sanctioned. On 19.5.2003, the applicant and his two brothers entered into a development agreement with respondent Nos. 1 to 3. The applicant and his brothers also executed a power of attorney in their favour. Respondents Nos. 1 to 3 were permitted to use FSI to the extent of 1937.40 sq. mtrs. for development of the commercial building on plot No.4. While making that construction, the respondents were required to keep a minimum distance of 13.46 mtrs. between the existing bunglow of the applicant and the commercial building and distance of 7.5 mtrs. from the compound wall of plot Nos. 3 and 4. According to the applicant, without his consent, the respondents approached the Municipal Corporation for revision of the sanctioned plan and used excess FSI belonging to the applicant which the respondents could not under the agreement. Not only this, they also did not keep the necessary distance between the commercial building and the existing bungalow of the applicant. The construction was completed in 2006. The applicant filed a complaint under sections 406, 420, 427, 447 read with Sections 120B and 34 of IPC. The learned Magistrate issued the process. However, that order was set aside by the Sessions Court in a revision application filed by the respondents. That order is challenged in the present revision by the original complainant. 3 CRA-480-09.sxw 3. If the contentions of the applicant are taken at face value, it appears that the respondents had committed breach of certain terms and conditions of the agreement and had got revised plan sanctioned from the Municipal Corporation by using excess FSI which they could not. There is nothing to show that the accused persons had made any construction or encroachment on the property of the applicant nor there is anything to show that the applicant was cheated and as a result of the same he parted with certain property. Similarly, there is nothing to show that certain property i.e. excess FSI was entrusted by the applicant to the respondents and in respect of that there was a breach of trust. Unless there is an entrustment, there could not be any breach of trust to invoke Sec. 406 of IPC. The learned Counsel for the parties informed that the applicant has already approached the Municipal Corporation making grievance about the misuse of the FSI in making construction of the commercial building and that so far the Municipal Corporation has not issued the completion certificate, though according to the respondents, completion certificate has been granted in respect of part of the building. The Municipal Corporation can look into all the aspects of the matter while passing final order for grant of completion certificate and if it is found that there is a violation of the sanctioned plan or FSI, which was not available, was shown to be used by the accused persons, the Municipal Corporation can take action against the respondents as well as their construction as per law. The 4 CRA-480-09.sxw learned Counsel also informed that civil suit has been filed by the applicant and that suit is pending. In that civil suit also the applicant can claim appropriate decree about declaration or damages, etc. Those remedies are available to the applicant, but in any case, prima facie, criminal case is not made out. 4. The learned Counsel for the applicant points out that on the FIR filed by the applicant in respect of fabrication of documents, forgery and fraud, the police have already filed the charge-sheet. This order will not affect that case. 5. Therefore, this Revision Application stands rejected. (J.H.BHATIA,J.)