1 (cri appln 3025 of 2010) IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 3025 OF 2010 Haresh Idandas Chugani & Ors. ...Applicants Vs. Sureshkumar N. Pai & Anr. ...Respondents *** Mr.A.P. Mundargi, Senior Counsel i/b. Mr.R.P. Ojha for Applicants Mr.I.S.Badigannavar i/b. Mr.Avinash Korgaonkar for Respondent No.1 Mr.D.R.More – APP for the State. *** CORAM: V.M. KANADE J. DATED: 25TH OCTOBER, 2010 P.C. 1. Heard the learned Counsel appearing on behalf of the Applicants and the learned counsel for the Respondent No.1. 2. This is an application for challenging the order of issuance of process passed by the Learned Magistrate for the offences punishable under sections 406,420 r/w.34 of the Indian Penal Code and also the order 2 (cri appln 3025 of 2010) passed by the Magistrate, rejecting the application for discharge filed by the Applicants under section 245 (i) of the Cr.P.C. 3. Brief facts of the case are that by Indenture of Lease executed by MHADA and the Charkop Pallavi CHS Ltd., the society was allotted plot of land at Village Kandivali, Mumbai. One of the conditions of the lease was that the society could construct a building for residential use only. The Applicants who were the office bearers of the society at the relevant time and the lease deed was signed and the conditions imposed by MHADA were accepted. Thereafter, the building was constructed. The Respondent No.1 purchased a flat in 1996 from one of the outgoing members and the flat was transferred in his name. The Respondent No.1 filed a complaint against the Applicants on 17.5.1999 for the offences under sections 406, 420 r/w. 34 of the Indian Penal Code in the Court of Metropolitan Magistrate, 43rd Court, Borivali, Mumbai. The Learned Magistrate was pleased 3 (cri appln 3025 of 2010) to direct the police to investigate the offence under section 156(3) of the Cr.P.C. The Police, however, filed a negative report. Thereafter, the verification of the Complainant was recorded. The Learned Magistrate rejected the police report and issued process. 4. Shri Mundargi, the learned Senior Counsel appearing on behalf of the Applicants submitted that no reasons were assigned by the Learned Magistrate while issuing process for not accepting the police report. He submitted that the Respondent No.1 was not concerned with the transaction which had taken place before he became the member of the society. The learned counsel also invited my attention to the verification statements which were recorded and submitted that the impugned order does not reflect any application of mind by the learned Magistrate. He also invited my attention to the order, rejecting the application for discharge. He submitted that the learned Magistrate has not taken into consideration that the complainant in his complaint has 4 (cri appln 3025 of 2010) not stated who has misappropriated the said amount. It is submitted that the Applicants were not concerned in any manner with the said transaction. 5. In my view, the submissions made by the learned Senior Counsel for the Applicants cannot be accepted. It is not necessary while issuing process, the Learned Magistrate is expected to give reasons why he feels that process should be issued. Looking at the averments made in the verification and also in the compliant, prima facie, case is made out for issuance of process and the learned Magistrate, therefore, was justified in passing the said impugned orders. Similarly, while considering the application for discharge which is filed under section 245 (i)of Cr.P.C., the Court shall consider the prima facie material on record to indicate the commission of offence and at that stage, the Court is not expected the weigh and sift the evidence in order to find out whether the material on record is sufficient to convict the accused. So far as the locus of the 5 (cri appln 3025 of 2010) Respondent No.1 is concerned, in the complaint he has claimed that he is the secretary of the society and that he would be entitled to file the complaint. The principal allegation against the accused is that though there was a specific condition in the lease - deed executed between the MHADA and the society that the building should be constructed only for the residential purposes, it is alleged that in violation of this condition, the accused constructed three flats and six shops without seeking permission of MHADA and, therefore, the Bombay Municipal Corporation did not grant occupation certificate. It is alleged that the sale proceeds of the said three flats and the six shops were misappropriated by the Applicants herein. It is further alleged that as a result of that the occupants of the society have to shell out more money for the purpose of obtaining water supply by paying 40% than the usual rates and the property tax which was paid to the Corporation was also increased by the Corporation. 6 (cri appln 3025 of 2010) 6. Hence, there is no merit in the submission made by the learned Senior Counsel for the Applicants. This is not a fit case for interfering with the impugned orders while exercising the jurisdiction under section 482 of the Code of Criminal Procedure. The criminal application is, therefore, rejected. 7. The complaint was filed in the year 1999, more than 11 years have been passed. Hence, it would be appropriate if the learned Magistrate is directed to dispose of the criminal case expeditiously, preferably within a period of six months from today. (V.M. KANADE J.)