1 abs IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 1302 OF 2009 Sundarji Mulji Shah & Anr. .. Petitioners V/s State of Maharashtra & Anr. .. Respondents Mr. R. Satyanarayanan for the petitioners. Mr. S.N. Gawade, A.P.P. for the State. CORAM : D.G. KARNIK, JJ. DATE : 5TH DECEMBER 2009 P.C. : 1. By this petition, the petitioners challenge the order dated 27th November 2008 passed by the learned Additional Chief Metropolitan Magistrate, 37th Court, Esplanade, Mumbai framing charge against the petitioners and the order dated 16th March 2009 passed by the Court of Sessions confirming the decision. 2. One Mr. U.C. Karia filed a complaint before the learned Additional Chief Metropolitan Magistrate against the petitioners and others alleging that they had committed offences of cheating and other offences punishable 2 under section 120-B read with sections 420 and 109 of the I.P.C. Learned Chief Metropolitan Magistrate at the first instance passed an order under section 156(3) of the Cr.P.C. directing police to investigate. The police carried out the investigation, recorded the statements of several witnesses and submitted a charge sheet against the petitioners and others. After examining the police report and the material produced, the learned Magistrate declined to issue process against the accused no.2 – S.M. Bafna and the accused no.5 – S.S. Bafna, who were discharged under section 239 of the Cr. P.C. but issued process against the others including the petitioners. Aggrieved by the order of issuance of process against them, the petitioners filed a revision before the Court of Sessions, Greater Mumbai. By an order dated 16th March 2009, the Principal Judge, City Civil & Sessions Court dismissed the revision application. That order is impugned by the present petition. 3. The case of the complainant is that the property in question at Mulund belongs to Bafna Charitable Trust, of which Bafnas were the trustees. The petitioner no.1 through a broker approached the complainant stating that he had acquired development rights of the said property and was interested in transfer of the development rights. After negotiations, the complainant agreed for transfer of the development rights and paid consideration of Rs.one crore to the petitioners. The development rights were however not 3 transferred and the complainant was cheated. 4. Learned counsel for the petitioners submitted that there can be no offence of cheating unless the intention to cheat the complainant existed since beginning. There was no intention to cheat since beginning and that is clear from the statements of the witnesses recorded by the police. Since there was no initial intention to cheat, the learned Magistrate erred in issuing the process against the petitioners and the learned Sessions Judge erred in confirming the order of the Magistrate. 5. It is undoubtedly true that for the purpose of making out an offence, there must be intention to cheat since beginning. In the present case, the complainant has been duped of Rs.one crore. Whether the petitioners had an intention to cheat since beginning or not is a matter of evidence. Section 239 of the Cr.P.C. says that if after consideration of the police report (under section 173) and the documents sent with it and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused. In the present case, statements of several witnesses including a solicitor, in whose presence the talks had taken place have been recorded by the police. They all show the role of the petitioners. Whether the intention 4 to cheat existed since inception or was developed subsequently can only be decided at the trial. In the circumstances, it cannot be said that there was no ground for the Magistrate to frame the charge. The allegations against the petitioners were not groundless. 6. For these reasons, the concurrent orders of courts below do not suffer from any infirmity and both the courts below have not committed any error in refusing to discharge the petitioners. The writ petition is accordingly dismissed summarily. (D.G. KARNIK, J.)