sat 1 cri.appln 903-2011 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 903 OF 2011 Castrol India Limited ...Applicants vs. Shyam Rochiram Godhwani & Anr. ...Respondents Mr.Subodh Desai for the Applicants. Mr.P.S. Hingorani, APP for the State. Mr.Milind Jadhav with Mr.Madhusoodananan Nair i/b. M/s.KPMC Legal for Respondent No.1. CORAM : M.L. TAHALIYANI, J. JANUARY 4, 2012 JUDGMENT :- 1 This application is filed u/s. 482 of Cr.P.C. for quashing and setting aside the order passed by the Additional Sessions, Greater Mumbai, in Criminal Revision Application No.1441/2009 on 17.6.2011. By the said Oder, the learned Additional Sessions Judge had allowed the Criminal Revision Application and had set aside the Order of learned Additional Chief Metropolitan Magistrate, 40th Court, Girgaon, Mumbai, in Criminal Case No.2/SW/2004. The learned Additional sat 2 cri.appln 903-2011 Chief Metropolitan Magistrate by the said order had rejected the application of the respondent no.1 Shyam Godhwani for discharge. 2 The applicants had filed criminal complaint vide Case No.2/SW/2004 against the respondent no.1 alleging inter-alia that the applicants had been cheated by the respondent no.1 inasmuch as the respondent no.1 had suppressed the material facts from the applicants while executing an Agreement of Leave and License of the premises being Flat No.194, 19th Floor, Tahnee Heights, Petit Hall, 66, Nepean Sea Road, Mumbai. It was alleged that the said premises were taken by the applicants on Leave and License basis from the respondent no.1 on the basis of false representations made by the respondent No.1. The respondent no.1 by making false representations had allegedly induced the applicants to part with an amount of Rs.1.25 Crores by way of deposit and Rs.50,000/- by way of monthly license fees. sat 3 cri.appln 903-2011 3 It was a case of the applicants before the learned Magistrate that the applicants were Private Limited Company and they required the premises for accommodating their employees. The respondent no.1 Mr.Godhwani along with K.D. Lakhani and V.D. Lakhani had approached the Director of the applicants and represented that respondent no.1 and said two Lakhanis were absolutely seized and possessed of or otherwise well and sufficiently entitled to the said premises. It was further represented that respondent no.1 was entitled to 50% share in the said flat and K.D. Lakhani and B.D. Lakhani were entitled to 25% share each in the said flat. On the basis of such representations, an Agreement was entered into for a period of 36 months commencing from 5th July, 1999. 4 It is alleged that later on, on 28th January, 2002, the applicants received a letter from Advocate Mr.Satish Borulkar under the instructions of Gopichand Godhwani, one of the Directors of Godhwani Brothers (India) Private Limited, informing the applicants that by Award dated 30th March, 2001 in the Arbitration Proceedings, Godhwani sat 4 cri.appln 903-2011 Brothers (India) Pvt.Ltd. had become 50% shareholders in the said flat. 5 It appears from the proceedings that evidence before charge was recorded and the learned Magistrate came to the conclusion that there was sufficient material to frame charge u/s.420 of IPC against the respondent no.1. The learned Additional Sessions Judge, however, took a contrary view and allowed the revision application. 6 During the course of arguments, it was submitted that had the respondent no.1 not made representations stated hereinabove, the applicants would not have opted for the premises and would not have parted with the huge amount. However during the course of further arguments, it is revealed that it is not in dispute that the respondent no.1 had on record 50% share in said flat. It is also not disputed that there was a family dispute over the family property. It appears that the share of the respondent no.1 in the said flat was considered to be the family property. It is admitted position that by the sat 5 cri.appln 903-2011 Award dated 30th March, 2001, the flat has gone to the share of Godhwani Brothers (India) Pvt.Ltd. It is further submitted that the said Award is also under dispute and litigation is pending. 7 The prime question which needs for consideration is that there was dishonest intention on the part of respondent no.1. It is not the case of the applicants that the respondent no. 1 was not entitled to deal with 50% of his share in the said flat in the manner he wanted. It may be noted here that it is altogether different issue that at the end of proceedings, the 50% share of the respondent no.1 in the said flat had gone to the share of Godhwani Brothers (India) Pvt.Ltd. This does not lead to the conclusion that the respondent no.1 had no right, title and interest in 50% share of the flat on the date of Agreement. There is no such averment nor there is evidence in this regard. In the circumstances, the dispute, if any, could be of civil nature. No case was made out for the offence punishable u/s.420 of IPC. In my considered opinion, the order passed by the Additional Sessions Judge cannot be interfered with. I do not find any merit in the application. sat 6 cri.appln 903-2011 8 Hence, the application is dismissed. 9 Order dated 17th June, 2011 passed by the learned Additional Sessions Judge, Greater Mumbai, in Criminal Revision Application No.1441/2009 is maintained. (M.L. TAHALIYANI, J)