1 cri.wp no. 1059 of 2010 hvn IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE SIDE CRIMINAL WRIT PETITION NO. 1059 OF 2010 Mr. Dilip Dattatray Mohite and Ors. ... Petitioners Versus State of Maharashtra and Ors. ... Respondents Mr. Shaunak Mehta, Advocate for the petitioners. Mr. P.S. Hingorani, A.P.P. for State. Mr. Pungaliya with Mr. Pratap Patil for respondent no. 2. CORAM : SMT. R.P. SONDURBALDOTA,J. DATED : FEBRUARY 28, 2011 P.C. 1. After completion of submissions in the writ petition, Mr. Mehta the learned counsel on instructions from the petitioner had sought to withdraw the petition. Accordingly the order permitting withdrawal of the petition was passed. But immediately thereafter Mr. Mehta returned to state that the petitioner has changed his mind and desires that the petition is disposed off by the order of the court. Hence, this order. 2 cri.wp no. 1059 of 2010 2. The petitioners who are builders by profession, and accused in R.C.C. No. 2886 of 2006 pending in the court of Judicial Magistrate First Class, Pune, seek quashing of the said proceedings. 3. Respondent no. 2 is the original complainant who filed the complaint on 25th September, 2006 against the petitioners and other accused persons under sections, 5, 6, 8, 10, 11 and 13 of Maharashtra Ownership Flat Act as also for the offence punishable under section 409 and 420 read with 34 of Indian Penal Code against petitioners and four other persons. The learned Magistrate by his order dated 30th September, 2006 directed investigation by police under section 156(3) Code of Criminal Procedure into the complaint. The police from Samarth Police Station then registered FIR on 16th November, 2006 and submitted their report dated 29th January, 2008 stating that there was no material available to substantiate the offences. However, the learned Magistrate by his order dated 26th June, 2008 issued process against all accused persons for the offences 3 cri.wp no. 1059 of 2010 punishable under section 409 and 420 of Indian Penal Code and section 3(2)(f) and 8 read with 13 of Maharashtra Ownership Flat Act after considering the contents of the entire complaint. He did not issue process in respect of the offences punishable under section 5, 6, 8 and 11 of the Maharashtra Ownership Flat Act as he was of the opinion that the complaint prima facie does not disclose necessary ingredients of those offences. 4. The facts of the complaint stated in brief are that the accused persons i.e. the partnership firm and its partners entered into an agreement with respondent no. 2, one of the tenants on the property, for providing him with one flat admeasuring 410 sq. ft. carpet area on the first floor on the front abutting the road in lieu of the rented premises on payment of Rs. 5,000/-. Under the agreement respondent no. 2 was to pay further amount of Rs.15,000/- towards formation of the society and other allied expenses. Despite making payment. petitioners and other accused persons not only failed to hand over possession of the flat as agreed to respondent no. 2 but constructed a building in which today there is no flat having an 4 cri.wp no. 1059 of 2010 area of 410 sq. ft. carpet in existence. According to complaint, the building plan submitted by the petitioners at no point of time contained a flat admeasuring 410 sq. ft. carpet. What is sought to be argued on behalf of the petitioners is that subsequently there was an oral request made by the respondent no. 2 for a flat of larger area and therefore, a flat admeasuring 615 sq. ft. has been kept reserved for him. The other argument of the petitioners is that the agreement relied upon by respondent no. 2 is not the final agreement because it is unbelievable that a flat admeasuring 410 sq. ft. carpet area would be sold to respondent no. 2 for a ridiculous amount of Rs.5,000/-. Mr. Pungalia rightly pointed out that the agreement between the parties is not for sale of a new flat but for giving accommodation in lieu of the tenanted premises. In the circumstances, it cannot be said that the complaint does not disclose the ingredients of the offences alleged against the petitioners. As such there is no question of quashing the proceedings. Hence, petition is dismissed. [Judge]