IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL CRIMINAL CRIMINAL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION CRIMINAL CRIMINAL CRIMINAL WRIT PETITION NO.980 OF 2008. WRIT PETITION NO.980 OF 2008. WRIT PETITION NO.980 OF 2008. Shri Kamlakar Ratnakar Shenoy .. Petitioner Vs. Shri Ramakant Jadhav & Ors. .. Respondents Mr.Prakash Naik for the Petitioner. Mr.A.P.Mundargi with Mr.Niranjan Mundargi i/by Mr.I.A.Bagaria for the Respondent Nos.1 to 13. Mr.D.P.Adsule, A.P.P for the State. CORAM CORAM CORAM : ABHAY S.OKA, J. : ABHAY S.OKA, J. : ABHAY S.OKA, J. DATED DATED DATED : 06th August 2008. : 06th August 2008. : 06th August 2008. ORAL ORAL ORAL JUDGMENT: JUDGMENT: JUDGMENT: . Heard the learned counsel appearing for the petitioner. The petitioner filed a complaint in the Court of the learned Metropolitan Magistrate at Bombay alleging commission of offences punishable under section 197, 198, 217, 218, 406, 420, 465, 467, 468, 471, 120-B read with section 34 of the Indian Penal Code. The case of the petitioner in short is that one Mr.N.D.Patil (since deceased) was known to him. Through the said Mr.N.D.Patil, he came in contact with the accused (the 1st to 13th respondents) in the complaint. According to : 2 : 2 : 2 : the petitioner the accused had floated various companies for the purpose of carrying on construction of residential and commercial premises in Nalasopara. 2. According to the petitioner, in the year 1993-94 he came to know that the 1st respondent and other accused were carrying on construction activities in violation of development rules and that they have committed forgery of valuable documents such as occupation certificates. According to him he realised that most of the buildings constructed by the accused persons were not permitted by the City and Industrial Development Corporation of Maharashtra Limited (hereinafter referred to as "the CIDCO") and the completion certificates were obtained from Municipal Council though the planning authority for that area was the CIDCO. It is alleged that the accused persons committed offences of cheating and forgery of occupation certificates to ensure that the flat purchasers are granted loan from instutions like HDFC, LIC etc. It is alleged that the petitioner approached Lokayukta with various grievances and Lokayukta directed the planning authority to file criminal proceedings. However, criminal proceedings were filed by the CIDCO only for : 3 : 3 : 3 : offences punishable under the Maharashtra Regional and Town Planning Act, 1966. 3. Therefore, the petitioner filed the aforesaid criminal complaint. On the said complaint filed by the petitioner, an order was passed under section 156(3) of the Code of Criminal Procedure, 1973. In a detailed report submitted by the Investigating Officer, a conclusion was recorded that in the investigation no evidence could be found in support of allegations of commission of offences made by the petitioner. It as stated that it is not possible to determine whether the allegations of commission of offence were true or false. Therefore, the Investigating Officer prayed for grant of "C" summary. After a copy of the report was served to the petitioner, he filed objection petition before the learned Magistrate. By order dated 15th March 2008 passed by the learned Metropolitan Magistrate, Bombay, "C" summary was granted and the case was closed. The challenge in this petition filed under Article 227 of Constitution of India is to the said order dated 15th March 2008 passed by the learned Magistrate. 4. The learned counsel appearing for the petitioner : 4 : 4 : 4 : has taken me through the final report submitted by the police. He has also taken me through the relevant part of the objection petition and the documents which were placed on record by the petitioner alongwith objection petition. He pointed out from the report of the police that the authorities such as the Navghar Municipal Council have not co-operated with the police for investigation. He pointed out that the police could not collect requisite documents from the Municipal Council, CIDCO and other authorities. He submitted that instead of making further investigation and procuring the relevant documents, the concerned Investigating Officer has chosen to submit the report of "C" summary. He pointed out that there was material on record to show that wrongful loss was caused to the CIDCO as the accused persons collected development charges from the flat purchasers but did not pay the same. He submitted that the subsequent action of payment of development charges and obtaining post-facto occupation certificate is an afterthought. He pointed out that the report discloses that the other agencies were carrying on investigation and the same have not submitted the relevant documents to the Investigating Officer. He submitted that there was documentary evidence on record : 5 : 5 : 5 : to show that the accused persons purported to obtain occupation certificate in respect of buildings which were not in existence. He pointed out huge amounts were collected from the flat purchasers towards development charges. He pointed out that there was material on record to show that the accused persons purported to obtain occupation certificates from the Municipal Council which had no authority to issue occupation certificates and occupation certificates were obtained from the Municipal Council only to avoid payment of development charges collected from the purchasers and to grab the said amount. He pointed out that though the report of the police shows that the Union Bank of India informed the police that the accused have not cheated the said Bank, necessary documents regarding the cheating by accused persons was available with C.B.I and the said documents were not procured by the police. He pointed out the complaint made by the flat owners to Economic Offences Wing regarding collection of amount of development charges. He also pointed out representation made by certain persons to the Chief Officer of the Nalasopara Municipal Council. He invited my attention to the certificate of completion issued by an architect (7th respondent) in the year 1992. He submitted that : 6 : 6 : 6 : the said certificate records that a building was under construction. However an occupation certificate has been purportedly granted even prior to issuance of the said certificate by the architect. He pointed out that notwithstanding the directions issued by the Hon’ble Lokayukta, prosecution was filed against the concerned accused persons only for the offences under the Maharashtra Regional and Town Planning Act, 1966. Inviting my attention to various observations made by the learned Judge in the impugned order, he submitted that a clear prima facie case was made out of commission of various offences alleged by the petitioner. He submitted that even the report of the Investigating Officer shows that some of the authorities have not co-operated and therefore, relevant documents could not be procured. He submitted that the learned Magistrate ought not have accepted the prayer for grant of "C" summary. 5. I have carefully considered the submissions. I have also perused the final report which runs into several pages. The perusal of the final report shows that there is a detailed investigation carried out by the Investigating Officer. In so far as allegation : 7 : 7 : 7 : against the accused that they had cheated the banks and financial institutions is concerned, the Investigating Officer found that no such grievance was made by the institutions including Union Bank of India. 6. As far as occupation certificates procured by the accused persons are concerned, the Investigating Officer found that there was no material on record to show that the said certificates were fabricated by the accused persons. The Investigating Officer after recording the statements of the concerned officers of Municipal Council noted that the certificates have been issued by the concerned authorities and there is no fabrication of the said occupation certificates. It was pointed out in the report that the Nalasopara Municipal Council came into existence in the year 1990 and from the year 1990 onwards the said Municipal Council had issued occupation certificates to other buildings apart from the buildings constructed by the accused persons. It was found that till the CIDCO informed local authority that power to show occupation certificate was not available with the Municipal Council, the Municipal Council was regularly issuing occupation certificates. : 8 : 8 : 8 : 7. A specific allegation was made by the petitioner that occupation certificate was granted in respect of building by the name "Nad Brahma" though the building was not in existance. On the basis of a statement of an officer of the Nalasopara Municipal Council it was found that "Nad Brahma" was not only one building but it was the name of the complex of several buildings. Though the allegation of the petitioner was that the accused have constructed 150 buildings, the Investigating Officer found that the accused had constructed 25 buildings and 56 bungalows. The Investigating Officer recorded statements of the occupants/flat purchasers of the buildings constructed by the accused and none of them complained about cheating by the accused persons. He stated that statement of one Mr.Mankar, an officer of the CIDCO was recorded in which he stated that the accused have not deceived the CIDCO. 8. During the course of investigation it was found that to the flat purchasers of flats in the buildings of the residential complex, the accused had charged development charges at the rate of Rs.16/- per sq.ft. It is stated that a part of the said amount was deposited with the Bombay Metropolitan Regional : 9 : 9 : 9 : Development Authority. The Investigating Officer recorded that the residents of the said complex have not made any grievance. 9. As regards the role played by the 7th respondent (architect), the investigating Officer found that the said architect has regularly made applications for grant of occupation certificates. 10. Lastly, it was found that the CIDCO has granted ex-post facto occupation certificates and no grievance has been made by the CIDCO as regards grant of earlier occupation certificates by the Municipal Council. It was found that the CIDCO had subsequently regularised the building projects of the accused persons. As far as loan taken by the accused from Union Bank of India of Rs.40,00,000/- and Rs.55,00,000/- respectively was concerned, on inquiry being made with the bank it was revealed that the loan amounts were repaid by the accused and there was no grievance made by the bank. The police also investigated into the allegations made against one Smt.Snehlata Jadhav who was arraigned as an accused. The police found that none of the residents of the residential complex constructed by the accused had : 10 : 10 : 10 : any grievance about Smt.Jadhav. The police also investigated into the allegations made against the Chartered Accountant appointed by the respondent and found no substances in the same. 11. After considering the material collected during the investigation, the Investigating Officer prayed for grant of "C" summary by recording a conclusion that it is not possible to come to a conclusion whether allegations of commission of offence were true or false. By the impugned order, the request for grant of "C" summary has been accepted. The basis for grant of "C" summary is the conclusion of the Investigating Officer that it is not possible to conclude whether the allegations made by the complainant are true or false. 12. After having perused the report of the investigation, the objection petition and observations made in the impugned order, I find no fault with the order of the learned Magistrate accepting "C" summary. It must be noted here that the Investigating Officer did not find the allegations made by the petitioner to be false but the conclusion drawn by the Investigating Officer was it is not possible to state whether the : 11 : 11 : 11 : allegations were true or false. The Investigating Officer found that there was no grievance made against the accused by the flat purchasers, financial institutions and banks. There was no grievance made by the CIDCO and infact CIDCO granted approval to the buildings constructed by the accused. Thus, there was no case made out for proceeding against the accused for any of the offences alleged. 13. Considering the nature of the allegations made by the petitioner and the material on record it is not possible to interfere with the impugned order in extra ordinary jurisdiction under Article 227 of the Constitution of India. 14. Hence, there is no merit in the petition and the same is accordingly dismissed. (A.S.Oka,J) (A.S.Oka,J) (A.S.Oka,J)