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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

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


                                       17
Supriya                                                             WP-264-2021.doc


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


                                       18
Supriya                                                                WP-264-2021.doc


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


                                         19
Supriya                                                          WP-264-2021.doc


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.


                                      20
Supriya                                                           WP-264-2021.doc


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


                                       21
Supriya                                                          WP-264-2021.doc


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
Supriya                                                             WP-264-2021.doc


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.


                                       23
Supriya                                                             WP-264-2021.doc


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


                                      24
Supriya                                                             WP-264-2021.doc


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


                                        25
Supriya                                                                WP-264-2021.doc


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


                                         26
Supriya                                                             WP-264-2021.doc


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.


                                       27
Supriya                                                            WP-264-2021.doc


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.


                                      28
Supriya                                                             WP-264-2021.doc


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


                                       29
Supriya                                                               WP-264-2021.doc


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: -


                                        30
Supriya                                                              WP-264-2021.doc


      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


                                        31
Supriya                                                              WP-264-2021.doc


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


                                       32
Supriya                                                             WP-264-2021.doc


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


                                       33
Supriya                                                                 WP-264-2021.doc


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

                                           34
Supriya                                                               WP-264-2021.doc


          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


                                       37
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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


                                         41
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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.)




                                      43


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