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Bombay High Court

LAVLESH CLASSIC DEVELOPERS PVT. LTD.versusTHE STATE OF MAHARASHTRA

Decided
Disposal
Disposed Off

Holding

The magistrate was not justified to issue process; the revision is allowed and the order issuing process is quashed.

Summary

The applicants, a company and its directors, were accused by a club member of breaching service promises, leading the complainant to file a criminal complaint alleging offences under Sections 406, 420, 120(B) and 34 of the Indian Penal Code. The Metropolitan Magistrate initially dismissed the complaint, but on revision the magistrate issued process in 2015. The Additional Sessions Judge remanded the matter for reconsideration, noting that the police report indicated a civil dispute. On appeal, the High Court held that the magistrate had no sufficient material or reasoning to depart from the police report and that a mere breach of promise without fraudulent intent does not constitute a criminal offence. Consequently, the revision application was allowed, the order issuing process was quashed, and the complaint was dismissed.

Issues considered

  • Whether the Metropolitan Magistrate was justified in issuing process for offences under IPC Sections 406, 420, 120(B) and 34 when the dispute is essentially civil.
  • Whether a police report indicating a civil nature of the dispute is binding on the magistrate.
  • Whether a breach of promise without fraudulent intent can give rise to criminal liability under the cited IPC sections.

Legislation cited

Subjects

  • breach of contract
  • criminal revision
  • IPC 406
  • IPC 420
  • civil dispute
  • police report
  • issuance of process
  • Criminal Procedure Code

Judgment

                                                                      1. REVN 119 of 2016.doc




                               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                    CRIMINAL APPELLATE JURISDICTION

                               CRIMINAL REVISION APPLICATION NO. 119 OF 2016

                       1. Lavlesh Classic Developers Pvt. Ltd.
                       Now known as Aakash Lavlesh Leisure
                       Private Limited.

                       2. I. B. Bhasin
                       No long as Director

                       3. Allaudin B. Javeri
                       No long as Director

                       4. Rajeev Anand
                       Managing Director

                       5. Dushyant C. Patel
                       Joint Managing Director

                       6. Chandulal P. Patel
                       since deceased

                       7. Lavlesh Bhasin
                       No long as Director

                       8. Bakir B. Javeri
                       No long as Director

                       9. Vinay Bhasin
                       Executive Director

                       10. Arvind K. Shah
                       No long as Director
          Digitally
          signed by
SEEMA
KSHITIJ
          SEEMA
          KSHITIJ
          YELKAR
                       11. D. D. Kalia (General Nanager)
          Date:
YELKAR    2026.01.22
          18:07:55
          +0530



                       Seema                                                            1/7
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Joined on 21st February 2005 as Member

12. Anjlika Chaudheri
since deceased
all having official address at 1st floor,
Diamond Palace, Hill Road,
Bandra (W), Mumbai – 400 050.                                ...Applicants

         Vs.

1. The State of Maharashtra
Through the office of Government Pleader,
High Court, Criminal Side, Bombay.

2. Rajesh Madhusudan Sangani
having office at 34-36 Modi building
Dr. M. B. Velkar Street,
Kalbadevi Road
Mumbai – 400 002.                                            ...Respondents
                                *****

     Mr. R. A. Shaikh a/w A. R.     Advocate for the Applicants
     Khan
     Mr. Hitendra J. Dedhia         APP for the Respondent-State

                                *****
                     CORAM : S. M. MODAK, J.

                     DATE      : 17th JANUARY 2026

ORAL JUDGMENT:-

1.       Heard   learned    Advocate        Shri   R.   A.   Shaikh    for      the

Applicants/Accused.

2.       Initially, the complaint was dismissed by the learned
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Metropolitan Magistrate. When the Complainant filed Revision

Application, the Sessions Judge has remanded the matter for

reconsideration as per the order dated 08th October 2008. When the

matter was again placed before the learned Metropolitan Magistrate, he

has issued process as per the impugned order dated 16 th April 2015.

The legality of the said order is under challenge.

3.      No one is present on behalf of the Respondent No. 2.

4.      Let the matter be kept back.

Later on

5.      In the morning session, the matter is kept back. At 3.00 p.m.

again matter is called out, but no one is present on behalf of the

Respondent No. 2-Complainant. The only issue involved in this

revision application is “whether the learned Magistrate was justified in

issuing process on 16th April 2015 against these Applicants for an

offence punishable under Sections 406, 420 read with 120(B), 34 of

the Indian Penal Code”.

6.      Initially, report was called under Section 202 of the Criminal

Procedure Code. The Police of L. T. Marg Police Station, Mumbai as

per report dated 29.01.2015 informed the Magistrate Court that the

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dispute in between the Complainant and the accused is in respect of

not providing service at the health club and hence there is breach of

agreement. That is how learned Magistrate has dismissed the complaint

as per order dated 05th February 2007.

7.      No doubt the Complainant has got right to prefer the revision.

In the said revision learned Additional Sessions Judge has passed the

following order on 08th October 2008:-

        (i) The revision application is allowed.

        (ii) The order of the Ld. Magistrate is hereby set aside and

           instead of that the matter be remanded back for

           reconsideration.

8.      I have read the said order. The accused No. 12 is General

Manager of accused no. 1. Whereas Complainant is a member of the

club. Accused No. 12 made certain representations of providing certain

services. The complainant believed it and parted away certain money

by way of cheques. The grievance of the Complainant is in spite of

promises, the club was not started.

9.      The learned Additional Sessions Judge observed that “ police

have considered the defence and cognizance on the part of the accused,

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not belonging the project”. It is further observed that “we have not to

consider the defence at the stage of issuance of process ”. That is why

learned Additional Sessions Judge has not accepted that “ dispute is of

civil nature”.

10.     The learned Additional Sessions Judge has overlooked one fact

and that is about calling of report under Section 202 of the Criminal

Procedure Code. The said report is called only when the trial

Magistrate is not satisfied about issuance of the process. Once the

report is received, the trial Magistrate is having option either to accept

the report or to reject it. In this case, there is a report that the dispute is

of civil nature, the learned Magistrate has chosen to accept it.

11.     It is settled law that the report of the Police is not binding on the

Court and Court can form its own opinion, but when the trial

Magistrate has to take different opinion, it has to be on the basis of new

materials. It is for the reason, the materials which are placed before the

Magistrate at the beginning were not sufficient to issue process and

that is why there is postponement of issuance of process. The learned

Additional Sessions Judge overlooked the fact that the police was asked

to conduct an inquiry and in that inquiry if the Police has concluded

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that it is case of breach of the promise and if learned Magistrate accepts

it, it does not amount to accepting the defence at the time of the

issuance of the process. When learned Additional Sessions Judge has

remanded the matter, the learned Magistrate was expected to apply his

mind with the materials. It is true no detailed order is required at the

time of the issuance of process, but there has to be some reasoning by

considering the materials.

12.     While passing the impugned order, the learned Magistrate was

possessing the complaint, annexures and the police report. I do not

find any reasoning given by the learned Magistrate for differing with

the opinion given by the Police.

13.     On this background, when I have read the averments in the

complaint, I do not find that case for issuance of process for those

offences is made out. It is submitted that the Complainant has also

filed summary suit for recovery of the amount and summons for

judgment was dismissed. It is settled law that every breach of the

promises does not give rise to the criminal action. The promises must

have been made with the fraudulent intension since inception. I find it

missing from the averment in the complaint. Hence, case for

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interference is made out. Hence, the following order:-

                                       ORDER

      (i)     The Revision Application is allowed.

      (ii) The order dated 16th April 2015 passed by the Court of

              Additional Chief Metropolitan Magistrate, 47 th Court,

              Esplanade, Mumbai, in C.C. No. 121/I&R/2005 is

              quashed and set aside.

      (iii) The complaint stands dismissed.

14.         With the above observations, the Revision application is

disposed of.

15.         Pending interim/criminal application, if any, also stands disposed

of.



                                               (S. M. MODAK, J.)




Seema                                                                             7/7


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