1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.402 OF 2004 1.Cyrus G. Mazkoori ..Petitioner Age : 55 yrs, Occu : service R/o.303 Balajidarshan Co-op. Housing Society, Fatima Nagar, Pune – 411 013 V/s. 1.Mrs.Nargis Bharucha @ Nargis ..Respondents Ganeshprasad Gupta & anr. Adult, Occu : service R/o.Shalom International school Opposite Municipal Garden Panchagani, Satara – 412 805 2.The State of Maharashtra Mr.Deepak Girme, Advocate, for petitioner Mr.Y.S.Shinde, A.P.P, for the State CORAM : A.S.OKA, J. DATE : 26TH AUGUST, 2008 JUDGMENT . The advocate for petitioner states that by earlier order he has been discharged. He states that the petitioner has again instructed him to appear and argue the petition. He states that he will file appearance within two weeks from today. 2. The submissions of the learned counsel 2 appearing for the petitioner are heard. The 1st respondent is not present though notice is duly served. 3. The petitioner filed a private complaint alleging commission of offence under Section 420 of the Indian Penal Code. Process was issued on the said complaint. Evidence before charge of the petitioner was recorded by the learned Magistrate. The learned Magistrate by Order dated 4th March, 2002 discharged the 1st respondent/accused. The said order has been confirmed in Revision Application preferred by the petitioner. 4. The case made out by the petitioner in the complaint was that he was interested in purchasing a flat at Panchagani. The 1st respondent/accused approached the petitioner after she came to know that the petitioner was intending to purchase a flat in Panchgani. The 1st respondent/accused offered her Flat No.11 to the petitioner. According to the petitioner, the 1st respondent/accused represented that her title to 3 Flat No.11 was clear. The 1st respondent/accused assured that she would hand over the documents of title within a short time. Accordingly, an agreement for sale was executed in the year July, 1992 by the 1st respondent/accused and the petitioner paid a sum of Rs.1,80,000/- to her. After a legal notice was issued, the 1st respondent/accused executed a Sale Deed in respect of the said flat in favour of the petitioner. As the document such as Sanctioned Plan was not supplied by the 1st respondent/accused, the petitioner obtained a certified copy of the Sanctioned Plan from the Municipal Counsil on 19th November, 1999. At that time the petitioner realised that the said flat was not shown on the sanctioned plan. It is case of the petitioner that the builder who had constructed the building had converted basement area into four residential flats. The Municipal Counsil instead of taking action in respect of the basement by Order dated 3rd April, 2000 ordered of demolition of the 2nd floor in which the said flat No.11 was situated. The case of the petitioner is that the 1st respondent 4 made a false representation to the complainant that the construction was carried out as per the sanctioned plan and thereby induced the petitioner to part with money. 5. The learned counsel appearing for the petitioner has taken me through the averments made in the complaint as well as through the impugned order. He submitted that the impugned orders have been passed without considering material averments in the complaint as well as the evidence of the petitioner recorded before the charge. He submitted that the impugned orders are perverse. 6. It will be necessary to refer to the averments made in the complaint in paragraphs 6 and 7 thereof. The petitioner has pointed out that there was no valid permission for construction of the second floor. Paragraph 8 of the complaint reads thus :- “It is submitted that the accused all along ever since the transaction was entered into knew about the alleged irregularity. However, she made false representation to the Complainant that the construction was as per the sanctioned plan, thereby, inducing 5 him to part with the money to acquire the said residential premises/flat.” It will be also necessary to refer to examination- in-chief of the petitioner. In the examination-in- chief the petitioner has stated thus :- “I have purchased aforesaid plot vide registered sale deed no.443 dtd.20.7.92, accused approached me for selling aforesaid flat and described the flat as mentioned in Para 1 of my complaint. Accused made false representation that title of the property is clear and it is as per the approved building plan I requested to deliver relevant documents but accused promise to deliver them with in a short period. Relying upon representation of accused I purchased aforesaid flat and parted with consideration of Rs.1,80,000/- on 21.11.91 accused was in hurry to go to her native place hence sale deed was not executed immediately.” In the examination-in-chief the petitioner further stated as under :- “I asked Chief Officer Municipal Council about irregularities of the building instead of 4 tenaments builder has constructed 12 tenaments illegally. Basement was converted into the flat. Chief Officer issued order dtd. 3.4.2000 and regularizing the conversion of basement into the ground floor and treated first floor as second floor and he further ordered to demolish first floor of the said building accused was knowing the irregularities illegalities from the very beginning. Acused made false representation that building was as per approved plan and induced me to part with the consideration mentioned in the sale deed. I wrote letters 6 to accused on several times but she has not replied them. Hence accused may be punished as per Law for cheating me. Cross examination on behalf of accused reserved till framing of Charges.” The 1st respondent did not cross examine the petitioner and reserved his cross till framing of charges. Section 415 of the Indian Penal Code reads thus :- “Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to “cheat”. The specific case of the complainant in the complaint as well as deposition is that a representation was made by the 1st respondent that the flat was constructed as per the sanctioned plan and the 1st respondent by making the said false representation induced the petitioner to part with a sum of Rs.1,80,000/-. A specific assertion has been made by the petitioner to that effect in the 7 complaint as well as in his deposition. 7. Perusal of the Order passed by the learned Magistrate shows that he has merely stated that there was no dishonest or fradulent intention which can be imported behind act of the 1st respondent selling the flat. The learned Judge has not considered what is asserted in paragraph 8 of the complaint and what is stated on oath by the petitioner in his evidence. The revisional Court was impressed by the fact that the complaint was filed ten years after the petitioner obtained possession of the flat in question. 8. Considering the averments made in the complaint and the evidence of the petitioner recorded before the charge, this was not a case of passing order of discharge. The orders of the below Court show non application of mind. 9. In the circumstances, petition must succeed and I pass the following order. (i) The impugned orders are quashed and set aside. 8 (ii) The learned Trial Judge will now proceed to frame charge against the 1st respondent. (iii) It is made clear that the observations made in this Order are only for limited purpose of deciding the legality and validity of the impugned orders and all contentions of the 1st respondent on merits are expressly kept open. (A.S.OKA, J.)