* 1 * IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 3301 OF 2006 Vilas Madhukar Tungare & anr. ....Applicants. V/s. The State of Maharashtra & Ors. ....Respondents. ======== Mr.Ranjit Pawar, Advocate for applicants. Mr.Chandan Athani i/by.Mr.Vikas Mahangare, adv.for respondent no.2. CORAM: SMT.R.P.SONDURBALDOTA, J. DATED: 9TH FEBRUARY, 2009. P.C. : 1. This application is for quashing and setting aside Criminal Case No.188/PW/2006 pending before the Learned Additional Chief Metropolitan Magistrate, 48th Court, Andheri, Mumbai filed by respondent no.2. The application as filed originally was by two applicants. However, the court is informed that during the pendency of the application, applicant no.2 (original accused no.5) has expired. The application therefore is continued only on behalf of applicant no.1 (original accused no.6). 2. On 24th October, 2005 respondent no.2 filed complaint under Section 420, 323, 504, 506(ii) IPC against * 2 * M/s.Ramkrishna Developers, a partnership firm (accused no.1) and its partners. It is alleged in the complaint that accused no.1 is a partnership firm of which accused nos.2 to 6 are partners who have been dealing with the affairs of the firm. The firm decided to develop the property of Palkar House. Respondent no.2 is one of the tenants of the premises in Palkar House. An agreement was executed on 1st October, 2002 whereby the accused had agreed to allot him Flat No.402, 4th Floor admeasuring 400 sq.ft in the newly constructed building. The complainant was to pay Rs.3,60,000/- over the agreed period of time, which has been paid. After execution of the agreement, respondent no.2 handed over possession of Room No.3 which he was occupying as a tenant for demolition of the building and he shifted to the premises at J.B.Nagar, Andheri that were taken on tenancy. Respondent no.2 complains that after the accused persons constructed the building they avoided giving possession of Flat No.402 and sold the same to one Mr.Sunil Sawant. It is further alleged in the complaint that on 31st May, 2005 accused no.2 executed a writing admitting his guilt and liability. Accused no.1 then issued a cheque in the sum of Rs.18,00,000/- and the applicant was put in possession of Flat No.105 at Sahakar Co- operative Housing Society previously known as Palkar House. * 3 * However, it was later learnt by the complainant that the accused persons had taken loan from various banks and mortgaged Flat No.105 to the banks. Therefore, respondent no.2 was constrained to file a complaint with the police that he had been cheated by the accused persons. 3. Mr.Pawar, learned counsel for the applicant, submits that, not only there is no material against applicant no.1 in the complaint filed by respondent no.2 but in a subsequent statement before the police he has in terms stated that his grievance is only against accused no.5, who has since died and that he is not concerned with anybody else. 4. I have perused the complaint and it cannot be said that there is no material whatsoever against the applicant. The complaint specifically states that applicant no.1 is one of the partners of accused no.1 firm. It has been alleged therein that all the partners of the firm have played fraud upon him by offering him a flat and then selling the same over to another person. Similarly, by offering a flat and mortgaging the same to different banks. 5. I have perused the statement of respondent no.2 which was recorded by the police after filing of the complaint. In that he has stated that his grievance is only against applicant no.2, since deceased. However, this statement * 4 * recorded by the police has been explained by respondent no.2 in his affidavit-in-reply wherein he has stated that at the time of filing of affidavit, his mental condition was not such as he could think rationally. He was in desperate need of money as he was suffering from serious ailments which require hospitalisation. He made a statement holding only applicant no.2 responsible because he had been offered a substantial amount in lieu of the Flat. This explanation is required to be considered at the appropriate time during the trial. Hence, the criminal application is rejected. [SMT.R.P.SONDURBALDOTA, J.]