Bombay High Court
M/S. BHAGWANDAS KHUSHALDAS THROUGH ITS AUTHORISED REPRESENTATIVE, MAHENDRA RATILAL PATELversusM/S. HAKIMI CONSTRUCTION AND ORS
- Decided
- Disposal
- Disposed Off
Holding
The application for leave to appeal is dismissed; the acquittal of the accused stands.
Summary
M/s Bhagwandas Khushaldas, a partnership firm, complained that the accused construction firm and its partners executed a 'Samzota Karar' for the sale of a portion of a building, received payment but failed to execute a registered agreement, allegedly violating Section 4 read with Section 13 of the Maharashtra Ownership Flats Act, 1963. The trial magistrate acquitted the accused, finding doubts about the complainant's standing, the variance in the name on the document, lack of a partnership deed, and absence of evidence that the money was credited to the accused. The complainant filed an application for leave to appeal the acquittal. The High Court examined the same evidentiary gaps, noted that the document was in the name of an entity different from the partnership, and that the bank certificate did not show credit to the accused. It held that the magistrate’s reasoning was sound and that no miscarriage of justice occurred. Consequently, the Court rejected the application for leave to appeal, leaving the acquittal undisturbed.
Issues considered
- Whether the evidence establishes the offence under Section 4 read with Section 13 of the Maharashtra Ownership Flats Act, 1963.
- Whether the variance in the name on the 'Samzota Karar' and the absence of a partnership deed create sufficient doubt to sustain the acquittal.
- Whether leave to appeal the magistrate’s order of acquittal should be granted.
Legislation cited
Subjects
- criminal law
- acquittal
- leave to appeal
- Maharashtra Ownership Flats Act
- partnership
- evidence
- registration
- civil suit pending
Judgment
Digitally
signed by
VINA
VINA ARVIND 24.cri.alp.2168.2023 @1.docx
ARVIND KHADPE
KHADPE Date:
2026.10.05
18:13:39
+0530
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION (ALP) NO.2168 OF 2023
(Application for Leave to Appeal)
M/s. Bhagwandas Khushaldas
through its authorised representative,
Mahendra Ratilal Patel … Applicant
Versus
M/s. Hakimi Construction and ors. … Respondents
***
Mr. Gaurav Parkar a/w Mr. Pratik Bhitale for Applicant.
Mr. Bhushan Walimbe a/w Mr. Mayank Tripathi & Mr. Varad
Sherlekar for Respondents.
Ms. Sharmila Kaushik, APP for the Respondent-State.
***
CORAM : M.M. SATHAYE, J.
DATE : 01 OCTOBER, 2026
P.C. :
1. Physical copy of the Application is taken on record. Heard
learned Counsel for the parties. Perused the record.
2. The Applicant is the original complainant and the Respondent
Nos.1 to 3 are original accused nos. 1, 4 & 5.
3. By this Application, the Complainant is seeking leave to file
appeal challenging the Judgment and Order of acquittal dated
16.8.2023 passed in Summary Criminal Case No. 313 of 2009,
passed by Judicial Magistrate, First Class at Palghar. By the said
order, the Respondent nos. 1 to 3 are acquitted from the offence
punishable under Section 4 read with Section 13 of the
Maharashtra Ownership Flats (Regulation of the Promotion of
Construction, Sale, Management and Transfer) Act, 1963.
Vina Khadpe 1
24.cri.alp.2168.2023 @1.docx
4. The Applicant filed complaint contending inter alia as under.
That it is a registered partnership firm. That Respondent /
Accused No.1 is construction firm and original accused Nos.2 to
5 are its partners. That grand father of partner of the complaint
firm, was a tenant on the ground floor of building known as
‘Hakimi Manzil’ since 1920. That in the month of February
2006, Respondents - accused entered into an agreement with
partner of the complainant to sell 548 sq. ft. carpet area on the
ground floor of the new building for consideration of
Rs.4,01,000/-. That instead of an agreement, a document titled
as ‘Samzota Karar’ was executed whereunder the complainant
has paid Rs.52,000/- in cash and the balance amount of
Rs.4,11,000/- by cheques towards consideration and
registration charges. However, registered agreement was not
executed. Hence, legal notice was issued, but the demand was
not complied. Therefore, the complaint is filed.
5. The statement of Respondents – accused was recorded under
Section 313 of the Code of Criminal Procedure, 1973 (for short,
‘Cr.P.C.’). The defence of the accused is that of denial and false
implication.
6. The complainant examined himself as CW1 and one more
witness as CW2 who claims to be co-tenant knowing the
complainant.
7. Learned Magistrate who heard and tried the said case and was
pleased to acquit the Respondents– accused as stated above.
8. Learned Counsel for the Applicant submitted that the variance
in the name appearing in Samzota Karar and name of the
Vina Khadpe 2
24.cri.alp.2168.2023 @1.docx
partnership firm of which he is partner could not have been
held to be fatal to the complaint itself. He submitted that what
ought to have been seen is that money was paid, which was
beyond the statutory limit of 20% and therefore, registered
agreement ought to have been executed, which having not been
done, the ingredients of the offence are made out. He further
submitted that the evidence of CW1 namely Mr. Mahendra
Ratilal Patel who is partner of complainant-firm, ought to have
been held sufficient to convict the accused.
9. On the other hand, learned Counsel for the Respondents-
accused supported the impugned order contending inter alia
that CW1 has utterly failed to established nexus or any
authority on behalf of the entity whose name appears in the
Samzota Karar, and therefore, there is serious doubt about the
locus of CW1 or the complainant itself. He further submitted
that in the statement under Section 313 of CrPC, the receipt of
money is clearly denied and therefore, the ingredients have not
been fulfilled. Therefore, the Respondents are rightly acquitted.
10. I have considered the rival submissions and perused the record.
11. It is not disputed that the document produced on record by
CW1 titled as ‘Samzota Karar’ is executed in favour of an entity
called 'M/s. Bhagwandas Khushaldas Patel', through its
partners; however, the names of the partners are not
mentioned in the said document. The name of the complainant
is 'Bhagwandas Khushaldas'. CW1, who claims to be partner of
'M/s. Bhagwandas Khushaldas Partnership firm' has admitted in
the cross-examination that the partnership deed of 'M/s.
Vina Khadpe 3
24.cri.alp.2168.2023 @1.docx
Bhagwandas Khushaldas and Co.' is not filed on record. He has
also admitted that the firm has not passed any resolution giving
rights to him. In the cross-examination, he has stated that
since he is an elder person he has the right. In the teeth of such
variance in the name of the entity appearing in the ‘Samzota
Karar’ and the name of the complainant, coupled with the said
admissions, the learned Magistrate has rightly held that doubt
is created whether the complainant was the proposed
purchased as alleged.
12. Learned Magistrate, in paragraph no. 15 of the impugned order,
has considered the certificate produced by the complainant
issued by State of Bank (Exhibit 98), and has held that though
it showed the debit entry from the account of M/s. Bhagwandas
Khushaldas and Co. but it did not show that the amount was
credited in favour of the accused. In short, learned Magistrate
noted that there was no evidence showing credit in the account
of the accused of the amount alleged to have been paid.
13. It is not disputed that the Civil Suit filed on behalf of M/s.
Bhagwandas Khushaldas (firm) against the accused is dismissed
on 17.12.2015 and the said dispute is stated to be pending in
Appeal.
14. In the aforesaid facts and circumstances, and for the reasons
indicated above, considering the nature of offence involved, the
doubt expressed in the impugned order and the reasons stated
for acquittal, cannot be faulted with. The impugned order has
not resulted in any miscarriage of justice and it does not require
reconsideration in Appeal.
Vina Khadpe 4
24.cri.alp.2168.2023 @1.docx
15. No case for leave is made out.Application is rejected. It is
clarified that the observations made in this order will not
prejudice the parties in pending civil litigation.
(M.M. SATHAYE, J.)
Vina Khadpe 5
Checking your session…
Lawyer court records for this case
Associated through the court’s case reference.