- 1 - 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 CRIMINAL CRIMINAL WRIT PETITION NO.603 OF 2008 WRIT PETITION NO.603 OF 2008 WRIT PETITION NO.603 OF 2008 Hitesh N. Ajmera ...Petitioner vs. State of Maharashtra & Ors. ...Respondents Mr.A.M.Saraogi for the Petitioner Mr.J.P.Yagnik A.P.P. for State Mr.M.U.Pandey & Shri Rakesh Pandey for Respondent Nos.3 & 4. CORAM: CORAM: CORAM: A.S.OKA,J. A.S.OKA,J. A.S.OKA,J. DATE DATE DATE : JULY 21,2008 : JULY 21,2008 : JULY 21,2008 P.C.: P.C.: P.C.: 1. Heard the learned Counsel for the Petitioner. The Petitioner is the complainant in a private complaint filed against the second to fourth respondents alleging commission of offence under sections 406, 420 read with section 34 of the Indian Penal Code. 2. On the private complaint filed by the Petitioner, initially the learned Magistrate passed an order under section 202 of the Code of Criminal Procedure,1973 (hereinafter referred to as the said Code) calling for the report from Malad Police Station. After considering the report of the police, the learned Additional Chief Metropolitan Magistrate dismissed the complaint by exercising the power under section 203 of the said Code. A revision application made by the Petitioner has been dismissed by the Sessions Court. - 2 - 3. The learned Counsel for the Petitioner submitted that there were documents on record in the form of photographs showing display of the name board of the petitioner on the premises of the accused persons. He pointed out a letter dated 28th February 2005 written by the fourth respondent (fourth accused) to the Mahanagar Telephone Nigam Ltd. He submitted that this letter itself shows that the Petitioner was appointed as a sole selling agent of the premises in the building constructed by the second to fourth respondents. He submitted that in the police report as well as in the order passed by the learned Magistrate, the defence of the accused has been considered rather than documents produced by the Petitioner along with the complaint. He submitted that on plain reading of the averments made in the complaint, a case was made out for issuing process against the second to fourth respondents. He submitted that the averments made in the complaint disclosed that right from the inception there was an intention on the part of the second to fourth respondents to deceive the petitioner. 4. I have given careful consideration to the submissions.I have perused the complaint as well as the documents filed along with the complaint. The second to fourth respondents are developers who constructed the building. According to the case of the Petitioner,as the said developers were not at all known in the area, the petitioner was appointed as a sole - 3 - selling agent. Reliance has been placed on an advertisement published at the instance of the petitioner in a newspaper disclosing the status of the Petitioner as the sole selling agent. It will be necessary to refer the notice dated 8th July 2005 sent by the Advocate for the Petitioner to the second to fourth Respondents in which a demand for payment of specified amount representing the commission allegedly payable to the Petitioner was made. A reply was sent to the said notice by the second to fourth respondents through their Advocate on 13th July 2005. In the said reply, the said respondents denied to have appointed the Petitioner as a sole selling agent. In the said reply, a specific case was made out that in the year 2003, the petitioner offered his services to act as a service provider for payment of stamp duty and for helping the purchasers in assessing or in payment of stamp duty and getting the agreements registered. It is stated that from time to time, the service charges were paid to the Petitioner by the said respondents. There is an explanation offered in the said reply to the fact that a telephone connection was obtained by the Petitioner from the Mahanagar Telephone Nigam Ltd. 5. In so far as the advertisement in newspaper is concerned, it is published by the Petitioner and not on behalf of the second to fourth respondents. The courts below and especially the Revisional Court is right in coming to the conclusion that - 4 - the dispute between the parties is essentially a civil dispute. No offence was made out. I find no error in the dismissal of the complaint filed by the petitioner. Hence, Writ Petition is rejected. 6. It is, however, made clear that the observations made in the impugned order as well as this order are for limited purposes of considering the question of issuing process on the complaint filed by the Petitioner and none of the observations shall be construed as any finding on the rights claimed by the parties. 7. Parties to act upon an authenticated copy of this order. JUDGE JUDGE JUDGE