* 1 * IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 241 OF 2008 (FOR LEAVE TO FILE APPEAL) IN CRIMINAL APPEAL NO. OF 2008 Dahisar Saraswati CHS Ltd ...Applicants. Versus State of Maharashtra & Ors. ...Respondents ======= Mr.Vishal Thaker i/by.Mr.Arjun Patil, adv.for applicants. Mr.P.A.Pol, APP for State-respondent no.1. Mr.P.D.Desai a/w.Mr.Vishal Mehta i/by.M/s.Prakash & Co,adv.for respondents no.2 to 6. CORAM : SMT.R.P.SONDURBALDOTA, J. DATED : 27TH JULY, 2009. P.C. : 1. Heard counsels for both sides. 2. This application is filed for leave to file an appeal against the judgment and order dated 1st November, 2007 by which the complaint filed by the applicants was dismissed and the respondents who were arrayed as accused nos.1 to 5 were acquitted of the offences punishable under Sections 4, 5, 6, 11 read with Section 13 and 14 of Maharashtra Ownership Flats Act, (hereinafter referred to as `the MOFA Act’) 1963 and under Section 406 IPC read with Section 34 and 114 * 2 * IPC. The petitioner is a Co-operative Housing Society and the respondents are the builders and promoters. 3. The applicants filed a complaint herein alleging that the developers did not get the agreement for purchase of flats registered and thereby violated the provisions of Section 4 of MOFA. The promoters were required to maintain separate account for the amounts received from the flat purchasers from time to time and give the account of the same to the society in respect of the expenses incurred under Section 5 of MOFA which has been violated and according to the applicants no account are given of the amount to the extent of Rs. 37,20,116/- from the flat purchasers. It is thirdly alleged that after registration of the society, there are no steps taken by the promoters towards execution of conveyance which amounts to offence under Section 11 of MOFA. Lastly, promoters were duty bound to pay all out-going taxes. The promoters having failed to do so violated Section 6 of MOFA. It is also alleged that the respondents have misappropriated the funds of the society. 4. Perusal of the evidence led by the applicants show that as regards amount collected, undisputedly the respondents had opened an account in the name of the Society in Maharashtra State Co-operative Bank at Fort Branch. In the year 1995, the respondents had handed over the charge of the building and the bank account to the then Secretary and Chairman of the proposed Society, one Pramod Gami and Mahendra Shah. The learned Judge has held that the respondent had time and again called upon the members of the society for payment * 3 * towards corporation taxes and maintenance charges. For that purpose, meeting was held on 23rd April, 1995. The record and evidence further shows that several members of the society did not pay the stamp duty to enable the respondent to get their respective agreements registered and take further steps as regards the conveyance. When the witness of the applicants was put questions on these aspects in the cross- examination, he has given absolutely false answers. Some of the answers show that he is not aware of these happenings. As regards the documents signed by him, there is no categorical denial. He has vaguely answered that the signature pointed out to him is similar to his signature. In the circumstances, the court has found him not to be a trustworthy witness. It has also arrived at the conclusion that the applicants have failed to establish its case beyond reasonable doubt and hence acquitted the respondents. The reasons given by the learned Judge are cogent and based on the evidence led by the applicant and the record produced before it. Therefore, leave to file the appeal against the judgment is rejected and the criminal application is dismissed. 5. With the rejection of leave to file appeal, the appeal also stands dismissed. [SMT.R.P.SONDURBALDOTA, J]