Keyur Kiritkumar Modi; Jugal Bhupendralal Modi; Bhimesh Narendra Mehta v. The State of Maharashtra; Ramesh Kashinath Bhosale

1. Rule. Rule made returnable forthwith. Learned APP waives service for Respondent No.1/State. Respondent No.2 Ramesh Kashinath Bhosale appearing in person as power of Attorney holder of his son – Respondent No. 2 - Shri Gaurav Ramesh Bhosale is present and waives service.

2. Record shows that this matter was heard by us on 3rd April, 2023. On that day, when some queries were put to Respondent No. 2 appearing in person, he struggled to answer the queries and therefore, time was granted at his request to prepare himself and argue. The matter was then adjourned to 12th April, 2023 when the matter has finally heard. It is material to place on record that when we asked Respondent No. 2 appearing in person through his constituted Attorney, whether he wants to engage services of a lawyer, he declined and insisted to proceed with the matter himself. In this situation matter is taken up for final disposal by consent of parties.

3. This is an application under Section 482 of the Code of Criminal Procedure 1973, (“CrPC” for short) filed by Applicants praying to quash and set aside the impugned complaint bearing R.C.S. No. 580 of 2017 and consequent FIR No. 37 of 2018 registered with Kamothe Police Station, New Mumbai, for offences punishable under Section 420,468,406 read with Section 34 of Indian Penal Code (for short “IPC”)

4. Learned Senior Counsel Mr. Sawant submits that this is a case where the allegations in the Complaint and the FIR show that this is a dispute purely of civil nature arising out of sale of residential flat by the Applicants builder (who are Partners of the M/s. Megapolis Landmark LLP - Greenwood Estate) to Respondent No. 2 Shri. Gaurav Ramesh Bhosale of one residential flat bearing No.1, Wing-3 “Greenwood Estate” Near Taloja MIDC Panvel District Raigad. He submitted that all the allegations are arising out of the rights and liabilities arising out of a registered agreement for sale dated 12th October, 2012 and there is absolutely no criminal aspect to the matter. He took us through the complaint filed by Respondent No. 2 alleging cheating, forgery and criminal breach of trust. He submitted that if dispute like this, raised by a flat purchaser against the builder is allowed to result in criminal prosecution of the builder, it will be not only abuse of process of law but would be travesty of justice.

5. Mr. Yagnik, learned APP for the State has pointed out relevant record and has fairly submitted to the order of the Court.

6. Heard Mr. Ramesh Kashinath Bhosale appearing in person as power of Attorney holder of Respondent No. 2 - Gaurav Ramesh Bhosale (the Complainant) patiently at length. He vehemently opposed the application. He invited our attention to affidavit-in-replies filed by him opposing the prayer of quashing. He submitted that the Applicant builders have demanded certain amounts arising out of the agreement for sale of residential flat, with an intention to cheat. He repeatedly submitted that if the Petitioner builder had informed him at the time booking of the flat that such amount will be demanded, he would not have booked / purchased the flat at all. He also repeatedly argued that he was required to file a consumer case to bring the builder in line with his legal obligations. He submitted that there is variance in some of the terms of agreement executed between the builder and himself if compared with the model agreement as contemplated under Maharashtra Ownership Flats Regulation of the Promotion of Construction, Sale, Management and Transfer Act, 1963 (“MOFA” for short) and submitted that this variance amounts to forgery. He further contended that in demand of interest by the builder (which according to Applicants, was for delay in making payment by Respondent No. 2) there is intention to cheat. He further submitted that the very fact that Respondent No. 2 was required to come to Consumer Court and it is only after orders from the Consumer Court that the Applicant builder has given possession of the subject matter flat, amounts to criminal breach of trust. Mr. Bhosale submitted many other things, which we do not find necessary to reproduce here, for the simple reason that they are utterly irrelevant. However, we hasten to add that after Mr. Bhosale finished his narration, we specifically asked him, if he wants to submit anything else, when he relied upon the Apex Court Judgment dt. 31.07.19 in Crim. Appeal No. 1082 of 2019 Chilakamarthi Venkateswarlu Vs. State of Andhra Pradesh downloaded from indiankanoon website.

7. We find it necessary to mention here that we repeatedly pointed to the Respondent No. 2 that in an application under Section 482 of the CrPC, we have to consider the complaint as well as material collected during investigation at its face value and cannot go into evidentiary value of the documents. However, Respondent No. 2 insisted on the appreciation of evidence and considering evidentiary value of various documents and aspects of legality in demanding the interest under the agreement for sale. Be that as it may, we are left with the material on record which we have to consider within the four corners of law including the real purport of the powers as contemplated under Section 482 of the CrPC.

8. Perusal of the FIR shows that admittedly Respondent No.2 has executed an Agreement for sale with the Applicants builder on 12th October, 2012. The Complaint himself states that Respondent No. 2 has received possession of subject matter flat though, after proceedings in the Consumer Court. It is common ground before us that the dispute started after the subject matter Agreement for sale is executed and demands were raised by the Applicants-builder for stage-wise payment from the Respondent No. 2. It also appears from the FIR that there was certain demand of interest amount by the Applicants.

9. Taking all these allegations at their face value, we fail to understand how the rights arising out of Agreement for sale of flat admittedly executed by Respondent No. 2, can constitute cheating and criminal breach of trust. The intention to deceive or fraudulent or dishonest inducement is totally lacking when the Respondent NO. 2 has admittedly executed the document for sale of flat, voluntarily. It is not the case of the Respondent No. 2 that he was deceived or fraudulently induced to execute the agreement for sale. The aspect of demand of interest can not amount to cheating for the simple reason that if payment schedule is agreed under the Agreement for Sale and if the payment is not made (rightly or wrongly), its demand and its legality is a matter of pure civil dispute. In that view of the matter, necessary ingredients of cheating as contemplated under section 415 of the IPC are totally lacking and therefore section 420 of IPC can not be applied.

10. In the facts of the case we also fail to understand how and in what manner there is entrustment of property by Respondent No. 2 which was within the dominion of the Applicants who have dishonestly misappropriated or converted the same for their own use or dishonestly disposed of the same in violation of any direction of law. An Agreement for sale means sale and it can hardly be termed as an entrustment of property as contemplated under Section 405 of the IPC. In that view of the matter, necessary ingredients of criminal breach of trust are totally lacking and therefore section 406 of IPC can not be applied.

11. The allegations that changing certain clauses of the agreement as compared to model agreement given under MOFA amounts to forgery is an argument which is stated only to be rejected. Basic ingredient of forgery as contemplated under Section 463 of the IPC is making of false document with an intention to cause damage and injury to a person or to support any claim for title or to cause any person to part with property or to enter into any express or implied contact or with intention to commit fraud, is completely lacking in the present case. The Respondent No. 2 has willingly executed the Agreement for Sale of flat with Applicants. There is no case of false document. Assuming that there is some variance in some clauses vis-a-vis model agreement under MOFA, Respondent No. 2 has agreed to such changed clauses. It is not alleged that any signatures were forged. Therefore necessary ingredients of forgery are totally lacking as contemplated under section 463 of the IPC and therefore section 468 of IPC also can not be applied.

12. In the aforesaid facts and circumstances we find it a fit case to exercise our jurisdiction under Section 482 of the CrPC, as in our considered view, the present dispute is of purely civil nature. We are also of the considered view that with the allegations in the FIR taken at thier face value and other material available on record do not constitute any offence and if the Applicants are made to face trial, it will be abuse of process of Court. We are well fortified in taking such view, since this case squarely falls in more than one of the categories illustrated by the Apex Court in the case of State of Haryana Vs. Bhajan Lal & Ors. AIR 1992 SC 604

13. Before parting, it is our duty to consider case law relied upon by the Respondent No. 2. Careful reading of the case of Chilakamarthi (supra) shows that offences involved there were under section 307, 323, 447 and 506(2) of the IPC and while dealing with such totally different and grave type of offences, Hon’ble Apex Court had confirmed non-interference by High Court under section 482 of the IPC. These facts being totally distinguishable, the said case law does not advance the case of the Respondent No. 2.

14. In the net result, the Application succeeds and the impugned charge-sheet and proceedings arising out of complaint bearing R.C.S. No. 580 of 2017 and the consequent FIR No. 37 of 2018 registered with Kamothe Police Station New Mumbai, for offences punishable under Section 420,468,406 read with Section 34 of the IPC are quashed and set aside. No order as to cost. (M.M.SATHAYE, J.) (SUNIL B. SHUKRE, J.)