Bombay High Court
JAYDEEP SURYAKANT GADKARI AND ANRversusTHE STATE OF MAHARASHTRA AND ANR
- Decided
- Disposal
- Dismissed
Holding
The court held that a prima facie case of cheating, forgery and related offences exists and that the High Court’s inherent power under Section 482 cannot be invoked to quash the criminal proceedings.
Summary
The petitioners, Jaideep Gadkari and Mangesh Gadkari, sought to quash FIR No.5 of 2020 filed under sections 420, 409, 34 of the IPC and various provisions of the Maharashtra Ownership Flats Act and the Maharashtra Protection of Interest of Depositors Act, alleging that the criminal proceedings were a colourable attempt to pressurise them in a civil dispute over flat sales. The State and a real‑estate broker, along with several flat‑buyer interveners, contended that the petitioners had used a false, unauthorised plan to sell penthouse flats, subsequently carving out portions of those flats and reselling them to third parties, thereby committing cheating, forgery and criminal breach of trust. The court examined whether the petitioners’ conduct attracted criminal liability, the applicability of the MPID and MOFA statutes, and the scope of the High Court’s inherent power under Section 482 CrPC (now Section 528 of the Bhartiya Nagrik Suraksha Sanhita). Relying on the Supreme Court’s pronouncements that victims have a right to be heard and that Section 482 is to be exercised only in exceptional cases, the court held that a prima facie case of cheating, forgery and related offences existed and that the petitioners were not entitled to discretionary relief. Consequently, the writ petition for quashing the criminal proceedings was dismissed.
Issues considered
- Whether the High Court can exercise its inherent power under Section 482 CrPC to quash the FIR on the ground that the dispute is essentially civil.
- Whether the petitioners’ alleged use of a false plan and double‑allocation of flats constitutes offences under the IPC (cheating, forgery, criminal breach of trust) and the Maharashtra Ownership Flats Act and MPID Act.
- Whether the victims/interveners have locus standi and a right to be heard in the quash petition.
- Whether the petitioners’ conduct falls within any of the categories enumerated in State of Haryana v. Bhajan Lal that would preclude the exercise of Section 482.
Legislation cited
- Bhartiya Nagrik Suraksha Sanhita, 2023 — s. Section 528
- Code of Criminal Procedure — s. Section 482, Section 528 (Bhartiya Nagrik Suraksha Sanhita, 2023)
- Constitution of India — s. Article 226
- Indian Penal Code — s. Section 34, Section 409, Section 420, Section 465, Section 467, Section 468, Section 471, Section 472
- Maharashtra Ownership Flats Act, 1964 — s. Section 3, Section 4, Section 5
- Maharashtra Protection of Interest of Depositors Act, 1999 — s. Section 3, Section 4, Section 5
Subjects
- Criminal Procedure Code
- Section 482
- Quash of FIR
- Cheating
- Forgery
- Criminal breach of trust
- Maharashtra Ownership Flats Act
- Maharashtra Protection of Interest of Depositors Act
- Victim's right to be heard
- Real estate fraud
- Contempt of court
- Civil vs criminal jurisdiction
Judgment
SUPRIYA
PRAMOD Supriya WP-264-2021.doc
JAWARE
Digitally signed
by SUPRIYA
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
PRAMOD
JAWARE
Date: 2026.10.07
CRIMINAL APPELLATE JURISDICTION
18:41:48 +0530
CRIMINAL WRIT PETITION NO. 264 OF 2021
1. Jaideep Suryakant Gadkari
Age 55 years, Occu.: Business
2. Mangesh Jaideep Gadkari
Age 51 years, Occu.: Housewife
Both having office at:
M/s. Gadkari Builders & Associates
1st Floor, Gadkari Complex,
Mahalaxmi Road,
Opp. Metal Box Factory,
Deonar, Mumbai 400 088.
... Petitioners
Vs.
1. The State of Maharashtra
(Vide C.R.No.5 of 2020 filed at
Govandi Police Station)
2. Samir Thakkar
Age – Adult,
Occu.: Real Estate Broker/Financer
R/o.204, A-Wing, Golfscape,
Sion-Trombay Road,
Near Diamond Garden,
Chembur (East),
Mumbai 400 071.
... Respondents
______________________
Mr. Manoj Harit i/by Manoj Harit & Co., Advocate for the Petitioners.
Mr.Amol Phoujdar a/w Mr. Prathamesh Parker, Advocate for Respondent No.2.
Mr. Sunny Punamiya i/by Adv. Kinnari Mehta for Intervener in
IA(ST)/24879/2025, IA/1364/2026 and WP/264/2021.
Mr.Abhijit P. Kulkarni a/w Mr. Gaurav Shehane, for Respondent-SRA.
Smt. Megha Bajoria, APP for Respondent-State.
______________________
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CORAM : RANJITSINHA RAJA BHONSALE , J.
RESERVED ON : 3rd JULY 2026.
PRONOUNCED ON : 1st OCTOBER 2026.
JUDGMENT: -
1. By the present petition filed under Section 482 of the Code of
Criminal Procedure (for short ‘Cr.P.C.’) (now Section 528 of the Bhartiya
Nagrik Suraksha Sanhita, 2023) and Article 226 of the Constitution of India,
the Petitioners seek to quash and set aside C.R. No. 5 of 2020 dated 7 th
January 2020, registered with the Govandi Police Station under Sections 420,
409 read with Section 34 of the Indian Penal Code, 1860 (for short ‘IPC’),
Sections 3, 4, and 5 of the Maharashtra Ownership Flats Act, 1964 (for short
‘MOFA’). Sections 3, 4, and 5 of the of Maharashtra Protection of Interest of
Depositors Act, 1999 (for short ‘MPID’) and Sections 465, 467, 468, 471, 472
of the IPC have been subsequently added.
2. Heard Mr. Manoj Harit, Advocate for the Petitioners, Mr. Abhijit P.
Kulkarni, Advocate for Respondent No. 2, and Smt. Megha Bajoria, learned
APP for the Respondent-State. Heard Mr. Sunny Punamiya for Interveners.
3. The Interveners/flat purchaser victims have filed Intervention
Applications, the details of which are as under: -
(i) Intervention Application No. 1364 of 2026 is filed by
Mrs. Pallavi Otawkar, Mr. Amit Saxena and Mrs. Asavari
Otawkar in respect of Flat Nos. 1002, 1001 and 703
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respectively. The said Interveners contend that, they were
allotted and sold Flat Nos. 1002, 1001 and 703 for a
consideration of ₹55 lakhs each for Flat Nos. 1001 and 1002
and ₹54 lakhs for Flat Nos. 703. The Interveners have paid
an amount of ₹25,51,965/- each for Flat Nos. 1001 and
1002 and ₹24,02,220/- has been paid against Flat No. 703.
(ii) Intervention Application No. 24879 of 2025 filed by
Mr. Sachin Sandbhor in respect of Flat No. 1103. The said
Intervener contends that, he was allotted and sold Flat No.
1103 for a consideration of ₹80 lakhs out of which he had
paid ₹46 lakhs.
4. It is the case of the Interveners i.e. Pallavi Otawkar and Amit
Saxena that, the Petitioners relied upon a false and fabricated plan. That,
without the knowledge and/or consent, the Petitioners reduced the terrace
area of their flats, revised plans, created new flats from the said carved-out
area and re-allotted and/or resold to the said area as flats for valuable
consideration to third parties. Part of the area (terrace) which has again been
sold to a different person, i.e., Mr. Rao.
5. It is the contention of the Intervener Mr. Sachin Sandhbor that,
the Petitioners have used false and forged document and delayed the
possession. That, as of 1st October 2012, the Petitioners had the
Commencement Certificate (CC) only till the 9 th floor, still on 9th September
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2010 allotment letter was issued to Respondent No.2 in respect of flats on the
11th floor. That, the malafide intentions of the Petitioners are clear from the
fact that, the concerned Deputy Engineer MHADA in NM(L) 844/14 in Suit
No. (L) No. 344 of 2014 has clearly stated that no detailed proposal with all
necessary requirements/documents was submitted. This Affidavit is dated 8 th
May 2014.
6. The Learned Advocate appearing for the Petitioners, raised
objections as to the locus of the Interveners to object to the present petition
and to the maintainability of the Intervention Applications. It was contended
that, the Interveners do not have locus or any right to object to the present
petition. The Interveners have filed independent proceedings before the
Regulatory Authority.
7. On the other hand the learned Advocates appearing for the
Interveners submitted that, they are victims of a well orchestrated fraud and
have been cheated of their hard earned monies. In some cases, properties sold
to them have been re-allotted or an area thereof has been carved out and re-
allotted and sold to other third parties. In some cases, innocent third parties
have been induced or mislead to purchase flats the area of which had already
been allotted to the other allottees/buyers. That, the Interveners are victims,
affected parties and required to be heard.
8. In this regard a useful reference may be made to the judgment of
the Hon’ble Supreme Court in the case of Jagjeet Singh v. Ashish Mishra,
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reported in (2022) 9 SCC 321 wherein the Hon’ble Supreme Court has
observed that :-
“A. Victim's right to be heard
15. Until recently, criminal law had been viewed on a
dimensional plane wherein the courts were required to
adjudicate between the accused and the State. The “victim”—
the de facto sufferer of a crime had no participation in the
adjudicatory process and was made to sit outside the Court as
a mute spectator. However, with the recognition that the ethos
of criminal justice dispensation to prevent and punish “crime”
had surreptitiously turned its back on the “victim”, the
jurisprudence with respect to the rights of victims to be heard
and to participate in criminal proceedings began to positively
evolve.
22. It cannot be gainsaid that the rights of a victim under the
amended CrPC are substantive, enforceable, and are another
facet of human rights. The victim's right, therefore, cannot be
termed or construed restrictively like a brutum fulmen [Ed.:
The literal translation from the Latin approximates to
“meaningless thunderbolt or lightning”, and is used to convey
the idea of an “empty threat” or something which is
ineffective]. We reiterate that these rights are totally
independent, incomparable, and are not accessory or auxiliary
to those of the State under the CrPC. The presence of “State”
in the proceedings, therefore, does not tantamount to
according a hearing to a “victim” of the crime.
23. A “victim” within the meaning of CrPC cannot be asked to
await the commencement of trial for asserting his/her right to
participate in the proceedings. He/She has a legally vested right
to be heard at every step post the occurrence of an offence. Such
a “victim” has unbridled participatory rights from the stage of
investigation till the culmination of the proceedings in an appeal
or revision. We may hasten to clarify that “victim” and
“complainant/informant” are two distinct connotations in
criminal jurisprudence. It is not always necessary that the
complainant/informant is also a “victim”, for even a stranger to
the act of crime can be an “informant”, and similarly, a “victim”
need not be the complainant or informant of a felony.”
9. I have considered the objections and the submissions of the
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parties. I am of the considered view that the Interveners in Interim
Application No. 1364 of 2026, being victims, have a right to be heard. They
are affected parties and have been wronged. The statements of the Interveners
and other victims have been recorded as witness statements.
10. As regards the Intervener in Interim Application No. 24879 of
2025, it appears that the said person is the flat purchaser of Flat No.1103
(area carved out of Penthouse Flat Nos. 1101 and 1102 on the 11 th and 12th
floor). Area carved-out of Penthouse Flat Nos. 1101 and 1102, allotted to
Respondent No.2 has been sold to him for valuable consideration. The
Petitioners have relied upon false and fabricated plans. The Intervener also
seems to be a victim of the acts of the Petitioners. Considering the facts of the
case, it would be in the interest of justice and necessary to hear the victims
and balance the competing rights of the parties. Further, it is also pertinent to
note that, a victim and/or affected party can in any event be heard through
the public prosecutor or can assist the public prosecutor. In view of the
aforenoted judgment of the Hon’ble Supreme Court in the case of Jagjeet
Singh vs. Ashish Mishra (Supra), and in the interest of justice, I am inclined to
allow the Interveners to be represented and heard. The Petitioners, in their
turn will get an opportunity to be heard, reply to, and deal with the
arguments advanced on behalf of the Interveners.
11. The case, as alleged in the FIR, is as under: -
11.1. It is alleged by the Original Complainant/Respondent No.2 that,
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in the year 2010, through his friend Mr. Vithal Otawkar, Respondent No. 2 met
the Petitioners at the Petitioners’ office at Govandi, Mumbai. That, the
Petitioners showed Respondent No. 2 redevelopment plans of the site at
Subhash Nagar, Road No. 13, Building No. 57, Chembur (East), Mumbai. A
building named ‘Srushti Enclave’ was proposed to be constructed (said
building). The said plan as allegedly shown to Respondent No.2 housed
penthouses on the 11th and 12th floor i.e. Flat Nos. 1101 and 1102. Pertinent
to note that, the plan as shown to Respondent No.2 did not have/contain any
reference to Flat No. 1103.
11.2. That, after perusal of and based on the said plan, Respondent
No.2 liked and approved the penthouse flats on the 11 th and 12th floors i.e Flat
Nos. 1101 and 1102 in the said building. That, the said penthouse flats
covered and consumed the entire floor area of the 11 th and 12th floors, which
was approximately 5,442.9 sq. ft. That, the Petitioners quoted a price for the
said two penthouse flats i.e entire 11 th and 12th floors, at ₹4,22,00,000/-.
Respondent No.2 handed over two cheques bearing Nos. 566627 and 566628,
dated 26th August 2010, for ₹11,00,000/- each, drawn in the name of Gadkari
Builders and Associates. Respondent No.2 further handed over two cheques
dated 9th September 2010, drawn on Canara Bank, bearing Nos. 568351 and
568352, each for an amount of ₹50,00,000/-, drawn in the name of Gadkari
Builders and Associates.
11.3. After making a payment of ₹1,22,00,000/- to Gadkari Builders
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and Associates, Petitioners issued an allotment letter dated 9 th September 2010
in respect of the two Penthouse Flat Nos.1101 and 1102 on the 11 th and 12th
floors. As per the allotment letter, each penthouse flat admeasured 1,365.84
sq. ft. and had an attached terrace admeasuring 1,355.61 sq. ft. As per the
allotment letter, possession of the said two penthouse flats was assured to be
given within 24 months from the date of the CC. The said plan as was shown
at the time of booking/approval was annexed to the allotment letter.
11.4. Respondent No.2 between the period from 26 th August 2010 to 8th
May 2011, paid a total amount of ₹3,77,00,000/- (out of the agreed
consideration of ₹4,22,00,000/- ) in the following manner: -
SR. Date Cheque No. Amount
No.
1 26/08/2010 566627 11,00,000
2 26/08/2010 566628 11,00,000
3 09/09/2010 568351 50,00,000
4 09/09/2010 568352 50,00,000
5 08/11/2010 568377 12,50,000
6 08/11/2010 568378 12,50,000
7 22/01/2011 599356 50,00,000
8 22/01/2011 599357 50,00,000
9 18/03/2011 599385 40,00,000
10 19/03/2011 599386 40,00,000
11 08/05/2011 599392 50,00,000
Total 3,77,00,000
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11.5. Respondent No.2, in June 2011, allegedly requested the
Petitioners to execute the sale deed, which the Petitioners at the first instance
assured would be executed shortly. The construction activities/work of the
said building was very slow and till the year 2012, had not been completed.
Respondent No.2 followed up with the Petitioners and requested for the
execution of the sale deed and completion of the work. The Petitioners neither
executed the sale deed nor completed the work. Respondent No.2 did not
receive possession of the said two penthouses till the year 2014. Respondent
No.2 filed Civil Suit No.887 of 2014 before this Court, inter alia, praying for
specific performance of the said agreement.
11.6. On making inquiries with the Assistant Sub-Registrar, Kurla,
Respondent No.2 learnt that, the Petitioners had sold Flat No.1103,
admeasuring 751.97 sq. ft., situated on the 11 th floor of the said building to
Mr. Sachin Sandbhor, the Intervener in Intervention Application No.24879 of
2025, for an amount of ₹80,00,000/- and that the agreement dated 15 th
March 2013 in respect thereof was registered.
11.7. According to the allotment letter dated 9 th September 2010 and
the plan annexed thereto, the 11 th and 12th floors, admeasuring 5,442.9 sq. ft.,
in the said Building housed only 2 penthouse flats, both of which had already
been allotted and sold to Respondent No.2, for which an amount of
₹3,77,00,000/- had already been paid to the Petitioners between the period
26th August 2010 to 8th May 2011. That, in the plan which was shown and
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based on which representations were made to Respondent No.2, there was no
Flat No.1103 in existence. The plan for the 11 th and 12th floors comprised only
of Penthouse Flat No.1101 and Penthouse Flat No.1102. The area from the
penthouse flats allotted and sold to Respondent No.2 was carved out, and
once again sold to Mr. Sachin Sandbhor. That, Flat No.1103 was carved out of
the areas of Penthouse Flat Nos. 1101 and 1102. The said flat was not on the
plan, as annexed to the allotment letter and was created without the
knowledge and/or consent of Respondent No.2. Based on these facts, the
present FIR came to be filed.
12. Mr Manoj Harit, learned Advocate appearing for the Petitioners
submitted that:-
12.1. The Respondent No.2 was an investor who had invested/financed
the construction of the building and was not a genuine flat purchaser. That, a
purely civil dispute is converted into and pursued as a criminal prosecution.
That, in substance the dispute is a money and performance dispute. That, a
Civil Suit No 887 of 2014 has already been filed by Respondent No.2 seeking
specific performance. No criminal offence is made out, much less the offences
as alleged.
12.2. The construction of the building is lawful and under duly
sanctioned plans. That, by a Development Agreement dated 28 th May 2010 the
Petitioners were permitted to redevelop the property. That, on 11 th August
2010, the Intimation of Disapproval (IOD) was issued and the plan was
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sanctioned upto the 3rd floor i.e. basement + stilt + 1 to 3 rd floor. That, on 23rd
February 2012 CC was granted upto 9 th floor (part). That, on 1st October 2012
CC was granted till the 9th floor. That, on 15th July 2024 amended plan was
sanctioned till the 16th floor. CC was granted on 25 th July 2024. That, the
entire chain of sanction is validated by the sanctioning authority. The
construction is lawful and legal.
12.3. Initially the FIR was registered under section 409, 420 read with
section 34 of the IPC and Sections 3, 4 and 5 of the MOFA. Subsequently, on
24th February 2022 section 3,4 and 5 of the MPID Act and the offence of
forgery have been erroneously added. That, Respondent No.2 has filed
multiple proceedings both civil and criminal in respect of the same
transaction. That, the malafides of Respondent No.2 are writ large. The
Petitioners case is squarely covered under categories 1,3 and 7 of the
categories laid down by the Hon’ble Supreme Court in the case of State of
Haryana vs Bhajan Lal 1992 Supp (1) SCC 335.
12.4. The parties have entered into consent terms which had been
recorded in the order dated 11th October 2024 passed in the Contempt
Petition No. 20 of 2016 initiated in the civil suit. That, the Consent Terms
could not be complied with due to circumstances beyond the control of the
Petitioners i.e the non-availability of the Occupation Certificate. That, based
on the Consent Terms, the Petitioners were granted Anticipatory Bail.
Respondent No.2 had also consented for quashing the criminal proceedings.
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12.5. That, the material on record does not disclose any of the offences
as alleged. The ingredients as required to make out the alleged offences are
clearly absent and missing. The transaction between Respondent No.2 and the
Petitioners was a commercial transaction of investment and financing the
construction project. It was not a transaction of a purchase of a flat.
Therefore, no offence of cheating or criminal breach of trust can be made out.
There is no dishonest inducement at the inception since the flats have been
constructed. That, a sum received as a contractual consideration cannot be
termed as an entrustment of property as is required under Section 409 of the
IPC.
12.6. No offence of forgery can be made out as the charge is based on a
photocopy of a plan annexed to a third party registered agreement. A building
plan is not a valuable security. The fraudulent intent is clearly absent.
12.7. No offences under the MPID Act and or MOFA are made out. The
ingredients required to invoke the provisions of the MPID are clearly absent.
That, there is no scheme involving public collection of money. Money paid by
a flat purchaser to a builder cannot be constituted as a deposit as is envisaged
under the MPID Act. The only grievance and issue is the non-receipt of the
Occupation Certificate. The Construction is completed.
12.8. The pleadings of Respondent No.2 clearly indicate that,
Respondent No.2 was aware that the sanction at the relevant time was only
till the third floor.
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13. Mr Amol Phoujdar, the learned Advocate appearing for
Respondent No.2 submitted that: -
13.1. The facts of the case clearly make out a prima facie case against
the Petitioners. The Petitioners at the inception have made misleading
representations and relied on false and fabricated plan and thereby
dishonestly induced Respondent No.2 to part with substantial amount of
monies. This was done right at the inception. That, the Petitioners have after
accepting huge amount of money from Respondent No. 2 proceeded to allot
and resell a part of the area allotted to the Petitioners to another third-party
purchaser i.e. Sachin Sandbhor. That, the offences as alleged are therefore
clearly made out.
13.2. The provisions of the MPID Act are clearly applicable to the facts
of the case and have been rightly invoked. Reliance was placed on the
judgement of this Hon’ble Court in the case of Manohar Bhimraoji Mahale &
others V/s State of Maharashtra & others reported in 2020 SCC OnLine Bom
368, to submit that the exceptions mentioned in the definition of ‘Deposit’ are
not applicable to flat purchase transactions. That, Respondent No.2 has paid
an aggregate amount of ₹3,77,00,000/- to the Petitioners towards the two
Penthouse Flat Nos. 1101 and 1102 in the said building.
13.3. The Petitioners have accepted money, knowing fully well that the
Petitioners did not have the requisite sanctions and permissions to carry on
construction of the said building till the 11 th and 12th floor when the money
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was taken. That, the plan as shown to Respondent No. 2 was a false and
fabricated plan. That, after accepting the money, the Petitioners have
unilaterally revised plans without the knowledge and/or consent of
Respondent No. 2 and re-allotted and resold a part of the area of the same
flats allotted to Respondent No. 2 to a different person.
13.4. The Petitioners have not complied with the consent terms dated
11th October 2024. The Petitioners had failed to complete construction, obtain
full Occupation Certificate and put Respondent No.2 in possession on or
before 30th November 2025 as was required by the Consent Terms. Even
though the Petitioners were aware that, the 15 th floor of the said building is
allocated for the purposes of Gymnasium and Health Center, they assured
allotment of penthouses to Respondent No.2 on the 15 th and 16th floor of the
said building. This assurance was given in contempt proceedings. The
malafide intentions and objectives of the Petitioners are clear made out. That,
the conduct of the Petitioners disentitles them from claiming any discretionary
relief of quashing. Even otherwise the offences as alleged in the FIR are
clearly made out.
13.5. By order of this Court dated 9th May 2014, the Petitioners were
restrained from creating any third party rights in respect of Flat Nos. 1101 and
1102 of the said building. The Petitioners had in fact already created 3 rd party
rights in respect of the said flats as early as 31st December 2012. The said fact
was suppressed from this Court. The Petitioners did not point out the correct
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facts and thereby misled this Court. This conduct clearly indicates the
malafide and dishonest intentions of the Petitioners. A Contempt Petition has
been initiated. This conduct also disentitles the Petitioners from seeking
discretionary relief.
13.6. Various other FIRs are registered against the Petitioners, which
indicate that the Petitioners have antecedents and are habitual offenders. The
details are as follows: I) FIR No. 64 of 2012, is registered on 20 th March 2012
with the Govandi Police Station for offence punishable under section 448,
447, 143, 146, 506, 142 of the IPC. II) FIR No. 124 of 2016, is registered on
2nd July 2016 with the Govandi Police Station for offences punishable under
section 406, 420, 467, 468, 471, 472 read with section 120(B) and section 34
of the IPC. III) FIR No. 301 of 2012 is registered on 30 th December 2017 with
the Govandi Police Station for offence punishable under section 420 of the
IPC. IV) MECR No. 07 of 2017 is registered on 16 th November 2017 with the
RCF Police Station for offence punishable under section 420, 406 read with 34
of the IPC and under section 4, 5 and 6 of the MOFA.
14. Ms. Megha Bajoria, Learned APP appearing for the State,
submitted that: -
14.1. As regards Respondent No.2, the allotment letter was issued on
9th September 2010 in respect of Penthouse Flat Nos. 1101 and 1102. That, an
area/portion was carved out of the area of the said penthouse flats and flat
Nos. 1103 and 1104 were created. Flat No. 1103 as created was sold to Mr.
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Sandbhor on 31st December, 2012. That, the same area was sold to two
different individuals, namely Respondent No. 2 and Mr. Sandbhor.
14.2. This Court has issued a Contempt Notice to the Petitioners as the
Petitioners had made a false statement on oath. The Petitioners had created
third party rights in respect of a portion of the area of Flat Nos. 1101 and
1102. This was done in the face of the order of injunction dated 9 th May 2014
wherein the Petitioners were restrained by an order of injunction from selling,
disposing, eliminating or encumbering, parting with possession and/or
creating any third party rights in respect of Flat Nos. 1101 and 1102. The
Petitioners suppressed from this court that, the Petitioners had already created
third party rights as early as 31st December 2012.
14.3. The Petitioners at the inception represented to Respondent No.2
that, the plans had been sanctioned upto the 12 th floor and that the penthouse
flats were approved. Based on the said representations, Respondent No. 2 was
induced to part with an amount of ₹3,77,00,000/-. That, as of 19 th January
2011, the Petitioners had received CC upto the third floor only. That, the
Petitioners showed the same forged plan to Respondent No. 2 and also to Mrs.
Pallavi Otawkar and Mr. Amit Saxena. That, as of 8 th May 2011 the Petitioners
received an amount of ₹3,77,00,000/- from Respondent No. 2. That, as of 23 rd
February 2012, the Petitioners had received the CC upto the 3 rd upper floor
only. The CC till the 9th floor was issued only on 18th August 2016.
14.4. In all there are 8 victims/flat purchasers as of 30 th November
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2020 and the said victims/flat purchasers have paid to the Petitioners a total
amount of ₹7,39,19,294/-. The statements of the victims have been recorded
and have formed part of the investigation papers. Based on such witness
statements the provisions of Section 3, 4 and 5 of MPID Act have been
invoked.
14.5. By letter dated 7th July 2022, the Asst. Engineer, Building
Proposal Department, Vikhroli has informed the Investigation Officer that the
plan in question (which was shown by the Petitioners to Respondent No.2)
was not issued by the Corporation, as it does not bear the signature of the
competent authority. Based on the said information on 12 th July 2022 Sections
464, 467, 468, 471 and 472 of the IPC have been added. A clear prima facie
case of forgery is made out.
14.6. A clear case for the offences as alleged has been made out. It
prima facie appears that the Petitioners have used a forged non existing plan
and induced Respondent No.2 to part with substantial amount of monies. That
same area has been sold to multiple parties. The same forged and fabricated
plan was shown to Mrs. Otawkar and Mr. Amit Saxena, whose witness
statements have been recorded. Investigation is required to be carried out to
ascertain as to how the plan came into existence.
14.7. The arguments of the Petitioners are in the nature of their
defences. The Petitioners will have an opportunity at the trial to raise all their
defences. Prima facie case as alleged against the Petitioners is clearly made
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out. Considering the facts of the present case, this Court ought not to exercise
the powers under Section 482 of the Criminal Procedure Code to quash the
proceedings.
15. Mr. Sunny Punamiya, learned Advocate for Interveners submitted
that:-
15.1. The Petitioners, on 20th April 2011 had also entered into
agreements for sale of flats with Mr. Amit Saxena and Mrs. Pallavi Otawkar.
The said agreements were about purchase of two flats (entire 10 th floor) on
the 10th floor, having number 1001 and 1002. The same plan as shown to
Respondent No. 2 was also shown to Mrs. Pallavi Otawkar and Mr. Amit
Saxena. The said plan showed Flat Nos.1001 and 1002 as terrace flats which
occupied the entire 10th Floor. The Petitioners unilaterally carved out an area
off the terraces attached to Flat Nos. 1001 and 1002 i.e. 1503.94 sq. ft. from
the said flats, created Flat Nos. 1003 and 1004, each admeasuring 751.97 sq.
ft. Out the said flats, Flat No. 1003 was sold to Mr. Rao in the year 2014. That,
the actions of the Petitioners were unilateral actions taken without taking
consent or even informing the original flat purchasers. That, monies were
taken from the said original flat purchasers. That, when the flats were sold,
the sanctioned plans in respect of the said flats were not in place. On 20 th May
2016 the agreement with Mr. Rao was cancelled.
15.2. The intervention of Interveners in this Writ Petition is necessary.
The Petitioner No. 1 is seeking to quash the criminal proceedings. Settlement
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attempts were made only with the Complainant (Respondent no. 2), i.e. one
victim. As the Interveners are also the victims of the alleged offence, they
would be left without any effective criminal remedy against the Petitioners if
the FIR is quashed, resulting in a grave miscarriage of justice. The statements
of the victims have been recorded as witnesses, and therefore, multiple FIRs
are not filed.
15.3. The Interveners have later discovered that, the Petitioners
increased the number of flats on the 10 th floor from two to four without their
consent and/or knowledge. Monies have been accepted based on
misrepresentations. That, dishonest and malafide inducements were made at
the very inception by relying on a false and fabricated plan.
15.4. The Petitioners did not have the permission to construct above
nine floors when the Petitioners approached the Otawkar family to buy three
flats, out of which two flats on the 10th floor had an open terrace attached to
each of them.
15.5. The Petitioners kept them in the dark and dishonestly constructed
Flats Nos. 1003 and 1004 on the area allotted as open terrace for Flats Nos.
1001 and 1002. Flat No. 1003 was sold to Mr. Lekhraj Rao in the year 2014.
This act of double allotment clearly establishes the Petitioners’ intent to cheat
and misappropriate the Interveners’ property and funds.
15.6. The Intervener, Mr. Sandbhor, purchased a flat measuring 751.97
sq. ft. The flat was numbered 1103. A registered agreement dated 15 th March
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2013 was signed by Mr. Sandbhor regarding flat numbers 1103. Subsequently,
he discovered that the area on which the flat number 1103 is constructed was
already sold to Respondent No. 2 in the year 2010 as part of Penthouse Flat
Nos. 1101 and 1102. That, monies were already accepted from Respondent
No.2 and also from Mr. Sachin Sandbhor.
16. Mr. Manoj Harit, the learned Advocate appearing for the
Petitioners, in rejoinder arguments submitted that:
16.1. The Interveners and their complaints are not part of the FIR. The
said intervener had filed independent proceedings before the regulatory
Authorities and, therefore, did not have any locus to oppose the present
quashing petition.
16.2. The prosecution has been initiated by misleading the police
machinery, with a purely civil dispute being converted into a criminal
prosecution. There is no case of entrustment made out. Even otherwise, none
of the offences alleged by Respondent No. 2 and/or the Interveners have been
made out against the Petitioners. It was reiterated that the case of the
Petitioners fits into Categories 1, 3 and 7 mentioned in the judgment of State
of Haryana Vs. Bhajan Lal (supra).
16.3. Relying on paragraph 22 of the judgment of C.S. Prasad Vs. C.
Satyakumar, reported in 2026 SCC OnLine SC 50, it was submitted that the
High Court cannot conduct a mini-trial or evaluate the evidence in detail
while exercising its powers under Section 482 of the CrPC.
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16.4. To sum up the arguments, it is the case of the Petitioners that a
purely commercial contract of financing/investment has been misrepresented,
converted and camouflaged into a criminal prosecution, with an objective to
pressurize the Petitioners to give into the illegal and unjust demands. That,
the construction undertaken by the Petitioners is legal and as per valid
sanctioned plans. That, as Respondent No.2 has already taken recourse to
filing civil proceedings/remedies, therefore, the criminal actions are not
maintainable and are required to be quashed and set aside. That, the Consent
Terms have been entered into, which could not be complied with by the
Petitioners as the Occupation Certificate is awaited.
16.5. On the other hand, Respondent No.2 and the learned advocates
appearing for the Interveners submitted that, the Petitioners had shown false,
fabricated and non existing plan so as to induce Respondent No.2 in agreeing
to purchase the penthouses and part with an aggregate amount of
₹3,77,00,000/-. Similar misrepresentation and false inducements were made
to other flat purchasers, i.e., Mrs. Pallavi Otawker and Mr. Amit Saxena. That,
a part of the area of the flats allotted and sold to Respondent No.2 was re-
allotted and sold for the second time to a third party without the knowledge
and consent of Respondent No.2. This was done after accepting substantial
amounts from Respondent No.2 towards the said penthouse flats. That, there
are other similarly placed flat purchasers. That, even after accepting
substantial amounts, the Petitioners have not complied with the provisions of
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the MOFA Act and thereof Sections 3, 4 and 5 of the MOFA Act have been
invoked. That, there are 8 victims from whom a total amount of
₹7,39,19,294/- has been received, and there has been a fraudulent default.
Therefore, the provisions of the MPID Act have been invoked. The offences as
alleged are serious and grave offences and are clearly made out. That, it is a
part of the record that, the concerned authority has itself informed the
Investigating Officer that, the plan as relied upon by the Petitioners is not
issued by the Competent Authority as it does not have the signature of the
Competent Authority. The Petitioner No. 1 has made false statement on oath,
mislead this Court and also failed to comply with the terms and conditions of
the Consent Terms. A prima facie case is clearly made out against the
Petitioners and therefore this Court ought not interfere with the criminal
proceedings.
17. Learned Advocate for the Petitioners placed reliance on the
following Judgments: -
17.1. The judgments of the Hon’ble Supreme Court in the case State of
Haryana Vs. Bhajan Lal (Supra), Neeharika Infrastructure (P) Ltd. Vs. State of
Maharashtra reported in (2021) 19 SCC 401, Zandu Pharmaceutical Works
Ltd. Vs. Mohd. Sharaful Haque And Anr., reported in (2005) 1 SCC 122,
Paramjeet Batra v. State of Uttarakhand., reported in (2013) 11 SCC 673 to
contend that, the inherent power under Section 482 of the Cr.P.C. ought to be
exercise according to the settled principles. The Court must exercise self
22
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restrain and follow the establish legal parameters. The power should be
exercised cautiously and sparingly only to meet the twin conditions i.e. to
prevent the abused of judicial process or to secure the ends of justice.
17.2. The Judgments in the case of G Sagar Suri Vs. State of U. P.
reported in (2000) 2 SCC 636, Mohd. Ibrahim Vs. State of Bihar reported in
(2009) 8 SCC 751 and Shailesh Kumar Singh Vs. State of U. P. reported in
2025 SCC OnLine SC 1462 to contend that purely civil disputes should not be
permitted to be converted into criminal prosecution/offences so as to harass
the citizens. The Criminal prosecution should not serve as shortcut for legal
remedies which are required to be pursued in the civil Courts.
17.3. The Judgments in the case of Hridaya Ranjan Prasad Verma Vs.
State of Bihar reported in (2000) 4 SCC 168, Vesa Holding (P) Ltd. Vs. State
of Kerala reported in (2015) 8 SCC 293, Sarabjit Kaur Vs. State of Punjab
reported in (2023) 5 SCC 360 and Thermax Ltd Vs. K. M. Johny reported in
(2011) 13 SCC 412 to draw a distinction between mere breach of contract
and offence of cheating. It was submitted that, to make out an offence of
cheating the fraudulent and dishonest intention has to be as the very
beginning. The inducement has to be at the inception.
17.4. The Judgment in the case of Velji Raghavji Patel Vs. State of
Maharashtra reported in AIR 1965 SC 1433 to submit that, to establish the
offence of criminal breach of trust it is required to be shown the property is
entrusted.
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17.5. The Judgment in the case of Sheila Sebastian Vs. R. Jawaharaj
reported in (2018) 7 SCC 581, Jupally Lakshmikantha Reddy Vs. State of
Andhra Pradesh reported in 2025 INSC 1096 to submit that, for an offence of
forgery it is necessary that, the condition of making of false document which
necessitated the conscious act of creation or signing by maker is required to be
prove. In the absence of dishonest intention, the forgery cannot be proved.
17.6. In the case of Delhi Race Club (1940) Ltd. V. State of U.P. reported
in (2024) 10 SCC 690 to submit that, the complaint cannot simultaneously
alleged criminal breach of trust and cheating.
17.7. It was submitted on behalf of the Petitioners that, the present
proceedings is a vexatious criminal complaint, camouflaging allegations which
were ex facie outrageous or pure civil claims, and held that such attempts are
not to be entertained and ought to be dismissed at the threshold.
18. Perused the entire record. In the present case the FIR, at the first
instance was filed under Section 420, 409 read with Section 34 of the IPC and
Sections 3, 4, and 5 of the MOFA Act. Sections 3,4 and 5 of the MPID Act and
Sections 465, 467, 468, 471 and 472 of the IPC have been subsequently
added. This was after and based on the letter dated 7 th July 2022 issued by the
Asst. Engineer, Building Proposal Department, Vikhroli informing the
Investigating Officer that, the plan in question which was relied upon by the
Petitioners to offer inducement to Respondent No. 2 and Mrs. Pallavi Otawkar
and Mr. Amit Saxena, was not issued by the Corporation as there was no
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signature of the competent authority.
19. Perusal of the FIR indicates that, the Petitioners agreed to sell to
Respondent No.2 two penthouse flats situated on the 11 th and 12th floors,
totally admeasuring, 5,442.9 sq. ft., in aggregate along with a terrace area
admeasuring 1655.65 sq. ft. for each of the penthouse flats. The total
consideration agreed was ₹4,22,00,000/-, out of which Respondent No.2 has
admittedly paid a sum of ₹3,77,00,000/- during the period from 26 th August
2010 to 8th May 2011. Though, the amount was paid, no agreement has been
executed. It is the contention of Respondent No. 2 that, the plan shown to
Respondent No.2 was not genuine but a false and fabricated plan. That, a
portion of the area sold to Respondent No. 2 was in fact re-allotted and sold
for the second time over to a third party i.e. Mr. Sachin Sandbhor who is also
a victim of the fraud.
20. A perusal of the allotment letter dated 9 th September 2010 issued
by the Petitioners indicates that, Respondent No.2 was allotted Penthouse
flats/Residential Unit Nos. 1101 and 1102, each comprising of a three-
bedroom, a hall and a kitchen (3 BHK) penthouse, admeasuring 1,365.84 sq.
ft. carpet area, together with a terrace admeasuring 1,355.61 sq. ft. for each
penthouse. A floor plan showing Flat Nos.1101 and 1102 as penthouse flats
was annexed to the said allotment letter. The allotment letter further provided
that, possession of the penthouse flats would be delivered to Respondent No.2
within a period of 24 calendar months from the date of grant of the
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Commencement Certificate. I have noted that, the allegations of forgery and
fabrication of false document are in respect of the same plan which was
shown to Respondent No.2 at the time of allotting the flats and which was
annexed to the allotment letter. This is the same plan, which is said to have
been shown to, the Respondent No.2 and Mr. Amit Saxena and Mrs. Pallavi
Otawkar and which, offered the inducement at the inception while booking
the flats. The Petitioners have shown the same plan i.e. plan attached to
Respondent No. 2 allotment letter dated September 2010, to Respondent No.2
and the purchasers of Flat No. 1001 and 1002 i.e. Mr. Amit Saxena and Mrs.
Pallavi Otawkar by annexing it to their agreement. In the said plan, Flat No.
1101 and 1102 are depicted to be and shown as penthouse flats. Further in
the said plan, Flat Nos. 1001 and 1002 are shown and depicted as terrace
flats. There were supposed to be only two flats on the 10th floor.
21. In this regard, it would be necessary to refer to the letter dated
12th July 2022 of the Investigating Officer wherein a reference is made to the
letter dated 7th July 2022 issued by the Asst. Engineer, Building Proposal
Department, Vikhroli, which indicates that, the said plan in question was not
issued by the Corporation, as it does not bear the signature of the competent
authority. Considering the said letter, in my opinion it therefore prima facie
appears that, the said plan is a false and fabricated document. It is on the
basis of this letter and plan; the offence of forgery came to be added in the
present case. It is the case of the prosecution that, it is on the basis of this plan
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the initial representations and inducements were made, property sold and
substantial amount of monies were accepted. The concerned floors i.e. 10, 11
and 12 floors were subsequently unilaterally redesigned, plan made and the
terrace areas used and converted into flats and resold. Prima facie the acts of
cheating and forgery are clearly made out.
22. A perusal of the record further indicates that, approximately 1/4 th
of the area originally allotted to Respondent No. 2 was subsequently allotted
and re-sold to Mr. Sachin Sandbhor in the form of Flat No.1103. This was
done by the Petitioners, without any prior notice or specific intimation being
given to Respondent No.2 at the time of such allotment. The record indicates
that, as of July 2012, the sanctioned plans did not permit construction till the
11th floor. Despite this, the Petitioners also entered into an agreement with Mr.
Sandbhor on 31st December 2012, pursuant to which a sum of ₹46,00,000/-
was received. Pertinent to note here that, as against the Allotment letter dated
9th September 2010 given to the Respondent No. 2, the Petitioners accepted
₹3,77,00,000/- in respect of Flat Nos. 1101 and 1102. The area of Flat Nos.
1103 and 1104 was carved-out of Flat Nos. 1101 and 1102 for which money
was already accepted. The record indicates that, when the Petitioners have
accepted monies for sale of flats on the 11 th and 12th floor as early as August
2009, there was no CC received yet. The first CC was received on 11 th August
2010 permitting construction till the plinth. The CC upto the 16 th floor has
been granted on 25th July 2024.
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23. The record indicates that, as on the date of the allotment letter
dated 9th September 2010, and even as on 18th August 2016, the sanctioned
plans for the said building were approved only up to the 9 th floor. The
proposed 11th and 12th floors had not even been sanctioned. From the record,
it appears that, the Petitioners implemented the same modus operandi in
respect of Flat Nos. 1001 and 1002 which were sold to Mr. Amit Saxena and
Mrs. Pallavi Otawkar. Even in this transaction the same fabricated plan is
used. The said plan is infact annexed to the agreement of Mr. Amit Saxena
and Mrs. Pallavi Otawkar. Furthermore, as of 18th August 2016 (when
sanctioned plans were only till the 9 th Floor), the Petitioners had already
created rights in respect of Flat Nos. 1001 to 1003 and 1101, 1102 and taken
substantial amount of monies from the purchasers. Further, the Petitioners
then unilaterally acting contrary to the agreements made new plans, created
flats out of allotted terrace area and resold the said area. This was done after
accepting the monies/deposits, as per the understanding/agreements. The
monies, which were entrusted to the Petitioners. The acts and conduct of the
Petitioners was contrary to the terms of the agreement or the allotment letter
or the entrustment. I have noted that the case of the prosecution is that there
are 8 victims who have fallen prey to the alleged fraud/fraudulent design. The
facts of each of the victims’ case differ to some extent. In my opinion the
offence under Section 409 of the IPC is prima facie made out.
24. The record indicates that, out of the area comprising Flat Nos.
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1101 and 1102 on the 11 th and 12th floors, which had been allotted to
Respondent No.2, the Petitioners, without informing the Respondent No.2,
carved out a portion of the area i.e. 751.97 sq. ft. originally allotted to
Respondent No.2, and re-sold/made a double sale of the area in the form of
Flat No. 1103 to Mr. Sachin Sandbhor under a registered agreement dated 31 st
December 2012, for a consideration of ₹80,00,000/- of which ₹46,00,000/-
had been received. At the time the said Flat No.1103 was sold, the approved
building plan had been sanctioned only up to the 9 th floor. Further, for the
same said carved out area which formed a part of the 2 Penthouse Flats Nos.
1101 and 1102, the Petitioners had already accepted a substantial
consideration of ₹3,77,00,000/- as of 8th May 2011. The plan relied upon by
the Respondent No.2 is alleged to be a false and fabricated document. The
said conduct of the Petitioners, prima facie makes out the dishonest intentions
of the Petitioners, at the inception itself. Considering the said conduct, it can
be said that a prima facie case for the offences as alleged in the FIR including
cheating is clearly made out.
25. A perusal of the RTI reply letter issued by the Municipal
Corporation dated 12th March 2020 indicates that, the first CC was granted on
11th August 2010, permitting construction up to the 3 rd floor. Thereafter, on
23rd February 2012, a further CC was granted from basement to 3 rd floor. By
this time, the Petitioners had accepted ₹3,77,00,000/- from the Respondent
No. 2 for Penthouse Flat Nos. 1101 and 1102. Further, agreements to sell
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dated 20th April 2011 were executed with Mr. Amit Saxena and Mrs. Pallavi
Otawkar for terrace Flats bearing Nos. 1001 and 1002. The Flat Nos. 1003
and 1004 have been carved out of the terrace flats Nos. 1001 and 1002. This
was done without informing Mr. Amit Saxena and Mrs. Pallavi Otawkar who
had already executed agreement to sell in respect of terrace Flats bearing Nos
1001 and 1002 and paid substantial amounts. Similarly, Mr. Rao was sold Flat
No. 1003 by agreement dated 8 th November 2014, when the CC was granted
only till the 9th floor. Subsequently, pursuant to the revised plans being
sanctioned on 21st July 2012, a CC was issued permitting construction from
the 1st to the 8th floors and 9th floor in part. Thereafter, under the revised plans
approved on 13th April 2016, a further CC was issued on 18 th August 2016
permitting construction from the 1st to the 13th floors.
26. The Petitioners have allotted, executed sale agreements, received
substantial amounts in respect of flats for which permission/CC had not been
revised or sanctioned. After receiving monies, the plans have been unilaterally
revised, areas carved-out of flats which had been sold/encumbered flats and
resold to third party innocent buyers. The Petitioners have by employing their
aforesaid modus/ plan to prima facie cheated innocent flat purchasers. The
intentions of the Petitioners are clearly made out.
27. For the ease of understanding the manner in which the Petitioners
have gone about selling/allotting flats and re-allotting certain areas in the said
flats, the following table may be seen: -
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Name Flat Date of C. C. Floor Amount Period of
No. Agreement Permitted paid payment
till
Samir 1101, 9th Sept 11th Upto the ₹ 3.77 26th Aug
Thakkar 1102 2010 Aug plinth crores 2010- 8th
2010 May 2011
Pallavi 1002 20th Apr 23rd Upto 3rd ₹ 25 Till 28th
Otawkar 2011 Feb floor lakhs Sept 2012
2012
Amit 1001 20th Apr 23rd Upto 3rd ₹ 25 Till 28th
Saxena 2011 Feb floor lakhs Sept 2012
2012
Asavari 703 20th Apr 23rd Upto 3rd ₹ 24 Till 28th
Otawkar 2011 Feb floor lakhs Sept 2012
2012
Sachin 1103 31st Dec 1st Oct Upto 9th ₹ 46 31st Dec
Sandbhor 2012 2012 floor lakhs 2012- 31st
Jan 2013
Lekhraj 1003 8th Nov 1st Oct Upto 9th ₹ 92 9th Aug
Rao 2014 2012 floor lakhs 18 2014- 14th
thousand March 2015
28. An argument was advanced on behalf of the Petitioners that no
offence under the MPID Act is made out as section 3 of the MPID Act as there
is no fraudulent default and the provisions of the MPID Act cannot be invoked
in the facts of present case. A useful reference can be made to the judgment of
this Court in Manohar Bhimji Mahalle and others vs. State of Maharashtra
(Supra), which is applicable to the facts of this Case. In paragraph 20, this
Court specifically held that monies advanced to builders do fall within the
ambit of the MPID Act. Considering the facts of the present case and the
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conduct of the Petitioners at this stage it is clear that a prima facie case has
been made out under the MPID Act. Paragraph 20 of the judgment in the case
of Manohar Bhimji Mahalle and others Vs. State of Maharashtra (supra) reads
as under: -
"20.The MPID Act was enacted to protect the interest of
depositors in the Financial Establishments and matters relating
thereto. The term “Deposit” as defined in Section 2(c) of the
MPID Act inter alia includes any receipt of money by any
“Financial Establishment” to be returned after a specified period
or otherwise either in cash or in kind or in the form of specified
service with or without any benefit in the form of interest, bonus,
profit or in any other form. Thus, what is contemplated is receipt
of money by the “Financial Establishment” and return of the
same in any other form. In the present case, about 514 flat
purchasers have paid substantial amounts to the “Financial
Establishment” as “Financial Establishment” agreed to hand over
to them possession of the flats to be constructed on the same
plots. Thus, it is clear that the purchase of flats by flat purchasers
from the “Financial Establishment” and for that purpose payment
of money to the “Financial Establishment” by flat purchasers is
covered under the definition of the term “Deposit” under MPID
Act. The exceptions mentioned in the definition of “Deposit” are
not applicable to such purchase of flats by flat purchasers from
“Financial Establishment”. It is also to be noted that neither the
appellants nor any of the respondents contended that money
advanced by the flat purchasers to said M/s. Rana Landmark Pvt.
Ltd. is not deposit as per MPID Act and only argument was that
the title of the property has not transferred to M/s Rana
Landmark Pvt. Ltd. and that the same is not the absolute
property of said M/s. Rana Landmark Pvt. Ltd. and therefore,
Section 4 of the MPID Act is not applicable. We have already
discussed in detail this aspect and held that the said property
comes within the purview of Section 4 of the MPID Act.”
29. Ms. Megha Bajoria, the learned Public Prosecutor, during the
course of arguments submitted that, Flat No. 404 was sold to Mr. Shrikrishna
Kulkarni (whose statement has been recorded as a witness) under an
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agreement/allotment letter dated 3 rd April 2011 for a consideration of
₹56,00,000/-. It was submitted that, possession of the said flat has not been
handed over to the allottee nor did the plans shown to the said allottee
correspond with the sanctioned plans and require verification from the record
and investigation. Similarly, Flat No. 902 was sold to Mr. D. Tambalwadkar
under an agreement dated 23 rd February 2013 for a consideration of
₹84,00,000/-, which amount has been received by the Applicant. It was
submitted that, possession of the said flat has not been handed over nor does
it correspond with the sanctioned plans and the plans shown to the purchaser
require verification with reference to the sanctioned plans and the records of
the Municipal Corporation and investigation.
30. The learned APP appearing for the State, on instructions further
submitted that, in the present case there are in all 8 victims/flat purchasers, as
of 30th November 2020, who have paid to the Petitioner a total amount of
₹7,39,19,294/-, The statement of the victims have been recorded as witness
statements in the present FIR. The record indicates that, in some cases, the
flats have been allotted/sold without there being valid permissions/sanctions
at the relevant time when money was accepted. In some cases, some area
carved out of allotted and sold flats has been re-allotted and re-sold to third
parties. In some cases, flats have been allotted/sold, monies accepted and
possession is not granted. In my considered view, upon taking into
consideration the facts and circumstances of the matter, it prima facie appears
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that the offences as alleged against the Petitioners are clearly made out. In my
opinion, what the Petitioners have raised are all their defences, which can be
effectively considered at the trial, when the Petitioners will also get an
opportunity to defend the allegations and put forth their case. Considering the
facts of the present matter, I am of the considered opinion that a prima facie
case on facts is made out against the Petitioner for the offences as alleged in
the FIR. No case is made out for quashing the criminal prosecution. I am of
the view that, the allegations made clearly make out a prima facie case and
the Petitioners case is not covered by any of the categories as mentioned in
paragraph 102 of the judgment of the Hon’ble Supreme Court in the case of
State of Haryana Vs. Bhajan Lal (supra).
31. Relief under Section 482 of CrPC and Article 226 of the
Constitution of India is a discretionary relief. It is well settled that, a person
seeking discretionary relief ought to conduct himself in a just, proper and fair
manner. The Hon’ble Supreme Court in the case of Padal Venkata Rama Reddy
v. Kovvuri Satyanarayana Reddy, reported in (2011) 12 SCC 437 has observed
that:
“11. Though the High Court has inherent power and its scope is very
wide, it is a rule of practice that it will only be exercised in exceptional
cases. Section 482 is a sort of reminder to the High Courts that they are
not merely courts of law, but also courts of justice and possess inherent
powers to remove injustice. The inherent power of the High Court is an
inalienable attribute of the position it holds with respect to the courts
subordinate to it. These powers are partly administrative and partly
judicial. They are necessarily judicial when they are exercisable with
respect to a judicial order and for securing the ends of justice. The
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jurisdiction under Section 482 is discretionary, therefore the High Court
may refuse to exercise the discretion if a party has not approached it
with clean hands.”
32. In the background of the aforenoted observations of the Hon’ble
Supreme Court, it is necessary to consider the conduct of the Petitioners. By
an order dated 9th May 2014, passed in contempt proceedings this Court had
directed the Petitioners not to create any third-party rights in respect of Flat
Nos. 1101 and 1102. The relevant portion of the said order dated 9 th May
2014 reads as under: -
“1. …...
2. The Defendants are restrained by an order of
injunction from selling, disposing off, alienating,
encumbering, parting with possession and / or creating
third party rights in respect of premises agreed to be sold
by the Defendants to the Plaintiff by an allotment letter
dated 9th September, 2010.
3 to 5. . …..”
33. Pertinent to note that, when the Order was passed the Petitioners
were represented by an advocate. The Petitioners had already created third
party rights in respect of an area (terrace) which formed part of Flat Nos.
1101 and 1102. The Petitioners had carved out an area of 751.97 sq. ft. and
created flat No. 1103, which had already been sold to Mr. Sachin Sandbhor on
31st December 2012 and the agreement in respect thereof was registered on
15th March 2013. This was all done much before the order dated 9 th May
2014. This fact, though to the knowledge of the Petitioners, has been clearly
suppressed from this Court at the time of passing the order dated 9 th May
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2014. In Contempt proceedings initiated against the Petitioners, this Court
issued notice to the Petitioners. This Court in the Order dated 31 st October
2018 has observed that the Petitioners had made a false statement on oath
before this Court.
34. I have also noted that, the Petitioners vide consent terms dated
11th October 2024 executed between Respondent No. 2 and Petitioners,
represented that, they would allot to Respondent No. 2, penthouse flats on the
15th and 16th floors of the building. On record is a brochure/advertisement of
the Petitioners which prima facie indicates that, the 15 th floor of the building
is allocated to and scheduled to house the A. C. gymnasium and Health Center
of the society, available to all the members of the society. The said conduct of
the Petitioners prima facie indicates the intentions of the Petitioners to deceive
and cheat Respondent No. 2. The Petitioners prima facie appear to have made
incorrect or misleading statements before this court. Further under the
consent terms the Petitioners were to obtain the Occupation Certificate of the
Building by December 2025. The same is not complied with. As the Petitioners
has not complied with the Consent Terms, a second contempt notice has been
issued by this Court on 28th April 2026 and the same is pending. In my
considered opinion, the conduct of the Petitioners and their intentions to say
the least, are questionable. It appears from the conduct of the Petitioners that,
the Petitioners have no regard to the law, this Court and/or the orders passed
by this Court.
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35. It was vehemently argued on the behalf of the Petitioners that, a
pure civil dispute has been given the colour of a criminal offence and has been
converted into a criminal prosecution to pressurize the Petitioners and avoid
making the balance payments. On a very serious note, an argument was
advanced that, at the highest, the allegations may constitute only a breach of
contract or breach of contractual obligations and that, the present proceedings
are a malicious prosecution initiated with a view to malign the reputation of
the Petitioners. It was submitted that, the construction is completed and the
only remaining compliance is the Occupation Certificate. The record would
indicate that, this plea that the Occupation Certificate is awaited is been taken
since a long time. Non-receipt of the Occupation Certificate or delay in
receiving the Occupation Certificates whether can be construed as a valid
defence to be raised will ultimately depend on the facts of each case, on the
compliances made and the conduct of the parties. In the present case
considering the conduct of the Petitioners, the documents and material on
record, in my considered opinion the same cannot be raised in the facts of the
present case. It raised, the same is to be rejected on an outright basis. It
cannot be permitted that a party conducts itself in a most inappropriate
manner, has serious allegations of criminal offences against it, flouts court
orders, misleads the Court, has contempt notices issued against it and raises a
defence that the Occupation Certificate is awaited. In my opinion this is one
more instance which reflects the intention of the Petitioners. The argument
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there is made only to seek time as done in the past and is to be rejected.
36. In my opinion, the aforesaid submission is made only to be
rejected. At the cost of some repetition, the record indicates that, the
Petitioners has dealt with, allotted and sold flats/units which in the first
instance when sold were not sanctioned as per the plan at the relevant time
when monies are accepted. Substantial amount of monies have been accepted
contrary to the provisions of the law. The sanctioned plans were then
unilaterally revised by the Petitioners without knowledge and or consent of
the original allottees/purchasers and the flats/areas sold to them were carved
out and sold to different parties in respect of which monies were again
accepted. The same area was sold to multiple persons. In my considered view
this conduct of the Petitioners prima facie makes out the offences as alleged
and for which prosecution is launched. Apart from alleging malafides and
vexatious prosecution, the Petitioners have not been able to point out or
demonstrate any instances which would help terming the prosecution as
malafide. In this background facts, to contend that there exist only civil
contractual disputes, or malafides or that no criminal offences are made out is
a argument of convenience made to delay the prosecution and made only to
be rejected.
37. I have also noted that, the Respondent No.2 at the first instance
invoked the available civil remedy and had reserved his rights to initiate
criminal proceedings. In the civil proceedings i.e., the Civil Suit orders dated
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9th May 2014 and 5th August 2014 came to be passed. The record further
indicates that, flat purchasers have also filed RERA proceedings to enforce
their respective rights. It prima facie appears that, only when the complete
facts emerged and came to the fore that Respondent No.2 has initiated
criminal proceedings. The contention of the Petitioners that, because civil
proceedings have been initiated and the flat purchasers have approached the
RERA authorities, the present criminal proceedings are not maintainable, in
my opinion, is nothing but an argument of convenience and liable to be
rejected. It is settled law that, on the same set of facts, a party may very well
initiate both civil and criminal proceedings simultaneously or at different
points in time. In doing so, the requirement of law is that, the proceedings,
whether civil or criminal, must be independently established, and the facts
must prima facie disclose the commission of a criminal offence or be
indicative of the criminal intents and criminalities.
38. I have also noted that, the petitioners having entered into
Consent Terms with the Respondent no. 2, but did not comply with their
obligations thereunder on the basis that, the occupation certificate is awaited.
Pertinent to note that, the consent terms are entered in contempt proceedings.
The contempt proceedings pertain to suppression of vital facts to the
knowledge of the Petitioners where the Petitioners did not point out the fact
that they had already created third party rights in respect of the property for
which injunction/protective order was passed. Even, the said Consent Terms
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have been violated and for which a second contempt proceeding is initiated.
Entering into the consent terms is a voluntary and responsible act and more so
when done in a Court proceeding. The parties entering into the consent terms
are well aware of the solemn duties, obligations and responsibilities they
undertake to fulfill under the Consent Terms. The same are statements made
by the Court, based on which statement and assertions the Court passes
certain orders and to an extent changes or alters the course of the
proceedings. The decisions are well thought through. Further, false statements
on oath have been made before this Court.
39. From the facts, it prima facie appears that Respondent No. 2,
being induced on a false and fabricated plan, paid a sum of ₹3,77,00,000/-
during the period from September 2010 to May 2011. Even after receipt of the
said amount, the plan as shown had not been approved, and the
Commencement Certificate was issued only up to the 3 rd floor as of 23 rd
February 2012. As per CC dated 1 st October 2012, construction was permitted
till the 9th floor. As per the terms of the allotment letter, possession was to be
handed over within 24 months from the date of receipt of the Commencement
Certificate. The same was not done. Instead the plan was unilaterally revised,
area sold to Respondent No. 2 was carved out and Flat No. 1103 was created
and the area was resold to Mr. Sachin Sandbhor. In my considered opinion the
offence of cheating and other offences are prima facie made out. The
argument of the Petitioners, all in the nature of his defences which can be
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considered at the trial.
40. The Petitioners have contended that an amount of ₹ 3.46 crores is
due and payable by the 8 buyers. In my opinion this contention is nothing by a
belated attempt to raise a defence and project the dispute/ issues as a civil
proceeding or a case of breach of contract. This contention is in fact contrary
to the defence raised by the Petitioners that the monies were received as a
investment/financing transaction as is contended in the case of the
Respondent No. 2. I have also noted that, at least the record does not indicate
that, the Petitioners has taken any steps to terminate the other agreements or
any agreement or call upon the respective flat purchasers to pay the amounts.
The conduct of the Petitioners clearly demonstrates the intention.
41. In the present case, considering the aforesaid facts,
circumstances, and the documents on record, I am of the view that a prima
facie case for the offences alleged is made out. The record indicates that, there
are multiple flat purchasers who booked flats, paid substantial amounts, and
have not received possession of their flats. Some flats have been created from
areas already allotted and sold and have then been re-sold to third parties for
valuable consideration. This is done, without the knowledge or consent of
original allottee/flat purchaser. Monies have been taken on multiple occasions
for flats for which there were no sanctioned plans. The record prima facie
indicates that, agreements were executed and amounts were accepted without
the requisite approvals having been obtained and based on a plan which was
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forged and/or fabricated. In the peculiar facts of the present case, the
essential ingredients required to constitute the offences alleged in the FIR are,
prima facie, available. Given the aforesaid facts and circumstances, I am of the
view that a prima facie case is made out against the Petitioners.
42. The learned advocate appearing for the Petitioners has relied
upon various judgements of the Hon’ble Supreme Court and re-emphasised
the well settled propositions of law. There can be no quarrel with the
propositions of law as referred to by the Advocate appearing for the
Petitioners. In my considered view, considering the facts of the present case,
none of the authorities would be helpful to the Petitioners’ case. I find that, in
the facts of the present case, a prima facie case for the offences as alleged has
been made. The matter pertains to the use of false and forged sanctioned
plan, allotting and selling the same area to multiple buyers. This has
happened multiple times. Most pertinently the authority itself has doubted the
genuineness of the plan in question. The offence is that of forgery. It is a
serious and grave offence.
43. The conduct of the Petitioners disentitles them from claiming any
discretionary relief. In any event, in my considered view the fraudulent or
dishonest intent of the Petitioners at the inception is prima facie made out.
The act of initiating civil proceedings or availing a Civil remedy does not
automatically bar criminal proceedings. The present FIR discloses the essential
ingredients of the criminal offence alleged to have been committed. In the
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present case the facts prima facie establishes the intent, and the dishonest
intention. The offences are prima facie made out. After considering the facts
of the present case and the arguments advanced by the parties, I am of the
considered opinion that the Petitioners has failed to make out any case, which
would fit in any of the categories as enumerated by the Hon’ble Supreme
Court in the case of Bhajan Lal (Supra). In fact, in my considered view the
acts and conduct of the Petitioners prima facie disclose and make out the
offences for which the Petitioners are charged.
44. Considering the facts and circumstances of the present case, no
case is made out for the invocation of the inherent powers of this Court under
Section 482 of the Cr.P.C. to quash the proceedings.
45. In view of the above, no case is made out. The petition is
dismissed.
( RANJITSINHA RAJA BHONSALE, J.)
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