1 WP-2082-08.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION Mhi WRIT PETITION NO. 2082 OF 2008 Mr. Mahendra C. Karia .. Petitioner Vs. 1. State of Maharashtra ) 2. Mr. Sumermal Mishrimal Bafna) 3. Mr.Suresh Sumermal Bafna ). .. Respondents Mr. S.V.Marwadi i/b. Vilas B.Tapkir,Advocates, for the petitioner Mrs.V.R.Bhosale, APP, for the respondent No.1 - State. Mr. Vivek Kantawala a/w Ms. Sneha Nanankar and Ms. Bairavi Waravdkar, i/b. Vivek Kantawala & Co., Advocates for the respondent Nos. 2 & 3. CORAM: J.H.BHATIA,J. DATE : 14th March, 2011. P.C. 1. Heard the learned Counsel for the parties. 2. The petitioner is the brother of original complainant Umesh Chagpal Karia. Due to death of Umesh, the present petitioner, who is director of M/s. Konark Builders & Developers Pvt.Ltd. has filed this petition challenging the order passed by the Magistrate discharging the respondent Nos. 2 and 3 and also challenging the order passed by the Sessions Court rejecting the Revision Application. 2 WP-2082-08.sxw 3. To state in brief, the complaint was filed by Umesh Karia, who was one of the directors of Konark Builders & Developers Pvt.Ltd. According to him, accused No.1 Sunderji Mulji Shah, had approached him sometime in November, 1987 and had asked him whether he was interested in developing the property at Mulund belonging to Bafna Charitable Trust of which accused No.2 - Sumermal Mishrimal Bafna, who is respondent No.2 in this petition, was the Chief Trustee. According to accused No.1 Sunderji Shah, he had already obtained the rights of development from Bafna Charitable Trust. He offered to transfer, assign and convey the said development rights in respect of the properties to the complainant. On the request of the complainant, a meeting was arranged by accused No.1 with accused No.2 Sumermal Bafna, who confirmed the said talk. Thereafter, a memorandum of understanding was executed between the complainant and accused No.1 Sunderji Shah representing M/s. Hill View Developers. As per that memorandum, amount of Rs.1 crore was paid to the accused No. 1 by different cheques and further amount was to be paid as per the schedule in the said memorandum. On the basis of that, rights to develop certain properties mentioned in the said memorandum were assigned by accused No.1 in favour of the complainant. Later on, the Advocate for the complainant received a letter dated 4.9.1991 from M.G.Dighe, claiming to be a Chief Promoter of Navnath 3 WP-2082-08.sxw Kripa Co-op. Housing Society Ltd. informing that the said Society had a letter from Bafna Charitable Trust dated 30.8.1990, executed by accused No.2 Sumerimal Bafna, authorising the Society to enroll the members for construction of 3,50,000 sq. ft. area on the lands survey Nos. 461, 462 and 531 (part) of Village Nahur at Mulund (West). These were same properties about which the complainant had allegedly taken the development rights under the memorandum of understanding executed by accused No.1. In view of this, on 20.4.1992, the complainant filed the complaint registered as C.C. No.47/I & R/1992 against accused Nos. 1, 2 and 3. Accused no.3 - Dhimant Malvi was a Solicitor, who had given the certificate of clear title before the complainant had entered into the contract. The learned Magistrate directed the police to make investigation under Sec.156(3) Cr.P.C. and after investigation, police had filed charge sheet against six persons, including accused No.2 Sumerimal Bafna and his son accused No.3 Suresh Bafna. Acused No.2 Sumerimal Bafna and accused No.3 Suresh, filed an application for discharge contending that they had never made any representation nor they had entered into contract with the complainant nor they had received any amount and therefore, there was no material against them in the matter. The learned Magistrate, after hearing the parties, discharged respondent Nos. 2 and 3. That order was maintained by the Sessions Court in the Revision Application filed by the complainant. Hence, this petition. 4 WP-2082-08.sxw 4. On perusal of the complaint as well as the memorandum of understanding, it appears that respondent No.3 Suresh was never in picture in any representation or any contract between the parties. In fact, the complainant had not joined him as an accused in the complaint. The complaint was only against three persons. The whole contract had taken place with accused No.1 Sunderji Shah and he had executed memorandum of understanding. Accused No.2 Sumermal Bafna had confirmed the representation made by accused No.1 in a meeting , but he was also not a party to the memorandum of understanding. There is no allegation against accused No.2 Sumermal, except the statement in the complaint that a meeting was arranged by the accused No.1 between the complainant and accused No.2 Sumermal Bafna, wherein Sumermal Bafna had simply confirmed that there was no hurdle or obstacle in developing the said property and the propety was free room all enumbrances. He also confirmed the representations made by accused No.1 Sunderji Shah. Naturally, that confirmation was about the representation that the rights of development were given by Bafna Charitable Trust to accused No.1, but nowhere in the complaint is is specifically mentioned that accused No.2 Sumermal Bafna had made any representation or had received any amount from the complainant. On perusal of the memorandum of understanding, it is clear that it was entered into by accused No.1 Sunderji Shah 5 WP-2082-08.sxw for and on behalf of M/s.Hill View developers, a partnership firm and M/s. Konark Builders and developers represented by the complainant. In that memorandum, there is mention of payment of Rs.1 crore to Sunderji. That was on 15.12.1987 and there is also schedule for payment of balance amount of Rs.2.5 crore from time to time. Naturally, this payment was to be received by accused No.1. Neither accused No.2 Sumermal Bafna was a party to that contract nor he had received any amount nor there is anything on record to show that he had made a representation on the basis of which the complainant had entered into contract with accused No.1. Taking into consideration all this material, I find no fault with the impugned order passed by the Courts below discharging the respondent Nos. 2 and 3. 5. For the aforesaid reasons, the petition stands dismissed. (J.H.BHATIA,J.)