IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL CRIMINAL CRIMINAL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION CRIMINAL APPLICATION NO.2046 OF 2008 M/s.N.M.Joshi and Associates, Through its proprietor, Sharadchandra Narayan Joshi .. Applicant Vs. Oswald Nikolas Fernandis & Ors. .. Respondents Mr.Sugand B. Deshmukh for the applicant. Mr.Y.S.Shinde, A.P.P for the State. CORAM CORAM CORAM : ABHAY S.OKA, J. : ABHAY S.OKA, J. : ABHAY S.OKA, J. DATE DATE DATE : 16th September 2008. : 16th September 2008. : 16th September 2008. JUDGMENT: JUDGMENT: JUDGMENT: . By this application under section 482 of the Code of Criminal Procedure, 1973, the applicant who has been arraigned as an accused in a private complaint filed by the 1st respondent has challenged an order of rejection of the application for discharge passed by the learned Magistrate which has been confirmed in a revision application. 2. Before considering the submissions, the factual matrix of the case will have to be considered. The applicant is carrying on business of construction of buildings and as a developer and builder. the 1st respondent complainant met the applicant in connection with a leading project of the applicant at village Warje, Pune as he was interested in acquiring a flat. : 2 : 2 : 2 : Various representations were made by the applicant to the 1st respondent. According to the 1st respondent the applicant represented that possession of the flat will be handed over to the respondent after obtaining completion certificate. A specific assurance was given by the applicant to the 1st respondent that possession of the flat will be handed over only after obtaining occupation certificate. According to the case of the 1st respondent, relying upon representations made by the applicant, the 1st respondent was induced to book a flat on 02nd January 1997 in the building by the name "Sai Corner Apartments" for the total price of Rs.02,85,000/-. The 1st respondent paid amounts of Rs.60,000/-, Rs.15,000/-, Rs.5,000/- and Rs.20,000/- by cheques to the applicant towards consideration. The applicant delayed the registration of the sale agreement. The 1st respondent paid different amounts to the applicant from time to time totally amounting to Rs.01,45,500/-. The 1st respondent also paid a sum of Rs.7,500/- towards the charges of the electricity meter. According to the case of the 1st respondent, in August 1998, the applicant informed him that the flat was ready for possession. But the 1st respondent found that the occupation certificate/completion certificate was not obtained from the municipal corporation. At that time, the applicant assured the 1st respondent that he was bound to comply with condition of obtaining completion : 3 : 3 : 3 : certificate from the municipal corporation. Thereafter, from time to time the 1st respondent demanded the completion certificate. Due to pressure exerted by the applicant, the 1st respondent paid balance amount of Rs.45,000/- to the applicant. After paying the said amount, he received a letter dated 09th December 2001 from the applicant informing that the said flat has been sold to a third party. The case of the 1st respondent is that the applicant dishonestly induced him to deliver an amount of Rs.02,40,000/-. The learned Magistrate issued process against the applicant for offence punishable under section 420 of the Indian Penal Code. Evidence of the 1st respondent was recorded before framing charge. The applicant applied for discharge. The said application was rejected and the order of learned Magistrate has been confirmed in revision. 3. The learned counsel appearing for the applicant placed reliance on the decisions of the Apex Court in the case of Indian Oil Corporation Vs. NEPC India Limited and others [(2006) 6 Supreme Court Cases 736] as well as S.W.Palnitkar Vs. State of Bihar and another [(2002) 1 Supreme Court Cases 241]. He submitted that on plain reading of the complaint as well as the evidence adduced by the 1st respondent, no case was made out for proceeding against the applicant. He submitted that essentially the dispute was a civil dispute and : 4 : 4 : 4 : therefore none of the ingredients of section 420 of the Indian Penal Code were attracted. He submitted that the learned trial Judge has himself observed that the applicant has committed a breach of contract. He submitted that at the relevant time the property on which building was constructed was not situated within the limits of municipal corporation and therefore there was no question of obtaining completion certificate from the municipal corporation. He submitted that a gunthewari certificate was produced by the applicant before the Sessions Court which is equivalent to a completion certificate. He, therefore, submitted that there was no case made out to proceed against the applicant. The 1st respondent appeared in person and has filed an affidavit for oppossing admission of this application. 4. It will be necessary to refer to the relevant averments made in the complaint. Paragraphs 14 and 15 of the complaint read thus: "14. The complaint submits that he was deceived by the accused and dishonestly induced to deliver the amount of Rs.2,40,000/- (Rs.Two Lakh Forty Thousand only) towards the consideration of the flat to the accused believing in the representation made by the : 5 : 5 : 5 : accused and relying upon the statement made in the agreement by the accused, the complainant, believing in representations, assurances and promises made by the accused was inducted to part the amount in favour of the accused, which the complainant would not have done had he known that the accused would deceive. 15. The complainant states that the accused right at the inception had dishonest intention to deceive, cheat and cause wrongful loss to the complainant and wrongful gain to the accused and cheated the complainant. By all these various acts and omissions mentioned above the accused have cheated the complainant and thereby committed an offence under section 420 of the Indian Penal Code." 5. Admittedly, there is a clause in the agreement for sale executed by the applicant that a completion certificate will be obtained by the applicant. Evidence before the charge was recorded. The 1st respondent has set out the details of the amounts paid by him from time to time to the applicant. In the examination in chief, the 1st respondent stated that the area of village panchayat Warje was amalgamated in the jurisdiction of : 6 : 6 : 6 : the Pune Municipal Corporation from September 1997. A letter written by the applicant was produced and proved by the 1st respondent. The said letter is dated 05th May 1999 in which the applicant had stated that he had forwarded the papers to Pune Municipal Corporation for obtaining occupation certificate. The 1st respondent has set out in detail the representations made by the applicant at the time of booking of the flat. Paragraph 8 of the deposition reads thus: "8. Believing the assurances, promises and representation by the accused and relying on the statements made in the agreement I was induced to part with huge amount of Rs.2,40,000/-. I was induced to part with huge amount which I would not have otherwise. Right from the inception the accused had intention to deceive and cheat me." 6. At the stage of framing charge it is not permissible to make a very detailed scrutiny of the evidence. The Court has to consider the evidence on record and ascertain whether a case is made out for proceeding against the accused. Weighing and sifting of the evidence is not permissible at this stage. If the averments made in the complaint and what is deposed on : 7 : 7 : 7 : oath is perused, it is apparent that a specific case was made out by the 1st respondent that the intention to deceive or fraudulent intention existed at the inception. The case made out by the 1st respondent is not merely a case of failure to keep promise or purely a breach of contract. 7. In the circumstances, no case was made out for considering the prayer of discharge and the Courts below have rightly rejected the said prayer. Hence, application is rejected. 8. It is made clear that the observations made in this order are for limited purposes of considering the prayer for discharge and all contentions of the applicant in the pending case are kept open. Nothing observed in this order shall be construed as any finding as regards rights of the applicant. (A.S. Oka, J)