M/S SHETHIA ASSOCIATES AND ANR.versusTHE STATE OF MAHARASHTRA AND ANR.

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                                        IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                             CRIMINAL APPELLATE JURISDICTION

                                          CRIMINAL WRIT PETITION NO.4179 OF 2019

                        1.        M/s. Shethia Associates,
                                  A registered partnership firm, having its
                                  Office at Office No.3, Riddhi Siddhi
                                  Apartments, Tilak road, Ghatkopar (E)
                                  Mumbai 400 077
                        2.        Ashok Savani,
                                  Age 55 years, Occ, Business, Partner
                                  Of M/s. Shethia Associates, a registered
                                  partnership firm, having its
                                  Office at Office No.3, Riddhi Siddhi
                                  Apartments, Tilak road, Ghatkopar (E)
                                  Mumbai 400 077                                    ... Petitioners

                                  Vs.
                        1.        State of Maharashtra

                        2.        Pradip Mansukhlal Mehta,
                                  Age 54 years, Occ. Business, Indian
                                  Inhabitant of Mumbai, residing at 303,
                                  Swastik Apartment, Garden Lane,
           Digitally
                                  L.B.S. Marg, Ghatkopar (W)
           signed by

SHARADA
           SHARADA
           RANGNATH
                                  Mumbai 400 086                                    ... Respondents
RANGNATH   WAHULE
WAHULE     Date:
           2026.10.08
           13:49:22
           +0530                                          ****
                        Mr. Kapil Dave, Advocate for the Petitioner.
                        Mr. Ramesh Jadhav, Advocate for Respondent No.2.
                        Ms. Dhanalaxmi Krishnaiyar, APP for the Respondent-State,
                                                              ****
                                              CORAM :      RANJITSINHA RAJA BHONSALE, J.
                                              RESERVED ON            :   24th JULY 2026.
                                              PRONOUNCED ON :            5th OCTOBER, 2026
                        JUDGMENT.:

                        1.        By the present Petition filed under Article 227 of the Constitution




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of India and Section 482 of the Code of Criminal Procedure, 1973 (now

Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023), the

Petitioners seek to quash and set aside the order dated 27 th July 2018

passed in Case No. 147/SW/2015 by the learned Judicial Magistrate

First Class, 49th Court, Vikhroli, Mumbai, and the order dated 9 th July

2019 passed in Criminal Revision Application No. 1037 of 2018 by the

learned Sessions Court, Bombay, rejecting the Petitioner’s discharge

application.


2.        This Court, vide order dated 7th October 2019, was pleased to

issue notice to the Respondents and grant interim relief in terms of

prayer clause (d).


3.        Heard Mr. Dave, learned Advocate for the Petitioners and Mr.

Jadhav, learned Advocate for Respondent No.2. The matter is taken up

for final disposal at the admission stage. With the consent of the parties,

the matter is heard finally.


4.        The case of Respondent No. 2 the original complainant, briefly

stated, is as under:


4.1       Respondent   No.   2   filed   a   complaint   bearing   C.C.    No.

147/SW/2015 before the learned Judicial Magistrate First Class, 49 th

Court, Vikhroli, Mumbai, under Sections 418 and 420 read with Section

34 of the Indian Penal Code, 1860 (for short IPC). It is the contention of



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Respondent No. 2 that, Respondent No. 2 and his brother were tenants

in respect of Gala Nos. 1 and 2, each admeasuring 366 sq. ft. carpet

area, situated on the ground floor, Omkar/Navkar Chawl, Navroji Lane,

Ghatkopar (West), Mumbai – 400 086. That, Petitioner No. 2 submitted

a redevelopment proposal on behalf of Petitioner No. 1 for the above-

said Chawl property. That, Petitioner No. 2 dishonestly induced

Respondent No. 2 and his brother to give the said two galas for

redevelopment purposes. That, Respondent No. 2 and his brother were

promised and assured that they would be provided with two Galas of

366 sq. ft. carpet area each on the ground floor. Based on the said

assurances, Respondent No. 2 and his brother gave consent to the

Petitioners for redevelopment.


4.2       That, after signing the consents, Petitioner No. 2 prepared an

Agreement for Alternate Accommodation dated 10 th August 2008 and

Deed of Confirmation dated 11th June 2009.


4.3       That, Petitioner No. 2, on behalf of Petitioner No. 1, made a

representation and promise to Respondent No. 2 and his brother that

they would be provided with the aforesaid galas in accordance with

Clauses 7(a) and 7(b) of the Agreement for Alternative Accommodation

dated 10th August 2008. That, Respondent No. 2 and his brother were

to be provided with a gala having 11 feet frontage on the front side,

facing the main road, in the new saleable building. In the event of


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refusal by the MCGM to sanction/approve the plans, Respondent No. 2

and his brother would be provided with 2 galas admeasuring 215 sq. ft.

each, having 8 feet frontage on the front side, facing the main road.

That, the Petitioners were also to provide one garage admeasuring 280

sq. ft., which would be located behind the 2 galas. The understanding

was that the total area to be provided to Respondent No. 2 and his

brother shall not be less than 710 sq. ft. carpet area.


4.4       That, Petitioners completed the construction and handed over

possession of two galas admeasuring 215 sq. ft. each along with covered

garage admeasuring 280 sq.ft. In or about November 2014, the staff

members of the MCGM Building and Factory Department visited the

premises and informed that the rear-side covered garage was not

sanctioned as a garage, but was sanctioned as a stilt parking area.


4.5       That, Respondent No. 2 and his brother received a notice under

the Maharashtra Regional and Town Planning Act, 1966 (for short

MRTP Act ) dated 29th November 2014. Thereafter, Respondent No. 2

filed the present criminal prosecution before the learned Judicial

Magistrate First Class, 49th Court, Vikhroli, Mumbai. That, on 29th

October 2015, the learned Judicial Magistrate First Class, 49 th Court,

issued an order of process. The said order of issuance of process was

challenged by the Petitioners by filing a Criminal Revision Application

bearing No. 1037 of 2018 before the Sessions Court, Mumbai. The


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Revision Application was dismissed vide order dated 9 th July 2019. It is

these two orders that, are challenged by way of the present Writ

Petition.


5.          Mr. Kapil Dave, learned Advocate appearing on behalf of the

Petitioners, submitted that:


5.1       A perusal of the complaint would clearly indicate that, no offence

is made out against the Petitioners. Under Clause 7(a) of the Agreement

for Permanent Alternate Accommodation dated 10 th August 2008, the

Petitioners were to provide a gala with 11 feet frontage on the front

side, facing the main road, in the new saleable building. Under Clause

7(b), it was provided that, in case the MCGM refused to sanction or

approve the plans, then in that event, the Petitioners would provide to

Respondent No. 2 and his brother 2 galas admeasuring 215 sq. ft. each,

having 8 feet frontage on the front side, facing the main road. The

Petitioners were also to provide one garage admeasuring 280 sq. ft.,

which would be located behind the 2 galas. In all, the total area to be

provided to Respondent No. 2 and his brother shall not be less than 710

sq. ft. carpet area.


5.2       Respondent No. 2 and his brother have received possession of the

2 shops with a garage behind the shops and have given an undertaking

(written) wherein they have confirmed that they have seen, verified and




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approved the plans and accepted possession of the said shops and

garages. The said undertaking is dated 5 th February 2013 and the letter

is dated 6th February 2013.


5.3       Respondent No. 2 has used the garage for commercial purposes

and changed the use of the premises, which was against the approval of

the MCGM. That, MCGM issued a notice to Respondent No. 2 to restore

the garage to its original use. It is only after the issuance of the notice

by the MCGM, that Respondent No. 2 filed the present malicious

criminal complaint, alleging offences of cheating under Sections 418

and 420 of the IPC. The criminal prosecution is mala fide and is filed to

pressurize the Petitioners. It is an arm- twisting tactic.


5.4       The order of issuance of process under Section 418 of the IPC is

totally untenable. Respondent No. 2 has accepted possession of the

shops along with the garage/ stilt and executed a document which

prima facie indicates Respondent No. 2’s satisfaction with the approved

plans.


5.5       In such facts and circumstances, a complaint under Section 418 of

the IPC is totally unsustainable. That, the shops allotted to Respondent

No. 2 have already been sold by Respondent No. 2 under registered sale

deeds. That, Respondent No. 2 has not stated what false representation

was made by the Petitioners, which Respondent No. 2 and his brother




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relied upon. That, the shops were sold under registered documents,

being Sale Deeds dated 16th October 2017 and 18th January 2018. In this

background, an offence of cheating can never be made out against the

Petitioners.      The gift deed executed, clearly establishes that the

Respondent and his brother were given 2 shops and garage in

compliance with the agreement. That, it was given free of cost and on

ownership basis.


5.6       Perusal of the order of issuance of process would indicate that no

process has been issued under Section 420 of the IPC. That, being so,

the Court ought not to have issued process under Section 418 of the

IPC. That there is no basis to invoke the provisions of section 418 of

IPC. The transaction is well documented.


5.7       The premises have been handed over to Respondent No. 2 and his

brother free of cost and on an ownership basis, which is evident from

the record. That Respondent No. 2 has sold the shops which he had

received from the Petitioners. That the area handed over to Respondent

No. 2 is confirmed in the sale deed of the second shop.


5.8       The Gift Deed also indicates that, no offence of cheating can be

made out against the Petitioners. That, no offence under Section 418

has been made out against the Petitioners and that no wrongful loss has

been caused to Respondent No. 2 and his brother. That, Respondent No.




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2 ceased to be the owner of the shop by selling the same to third

parties. That, the garage was also given under the same Agreement

along with the shops. That, no wrongful loss has been caused to

Respondent No. 2 and his brother.


6.        Mr. Jadhav, learned Advocate appearing for Respondent No. 2,

submitted that:


6.1       The offence of cheating has been clearly made out, as the

Petitioners have not provided a total area of 710 sq. ft. carpet area. The

Petitioners have never put up the agreed plan of 710 sq. ft. carpet area

shop for approval before the MCGM. The Petitioners put up a plan

bearing Sr. No. 635 on 11th June 2009 through their Architect for two

stilt parking spaces on the rear side of Shop Nos. 1 and 2, which was

approved on 10th August 2009. The Petitioners executed the Agreement

for Alternate Accommodation along with the Deed of Confirmation on

the same day, i.e. 11th June 2009. This clearly shows that the Petitioners

were having an intention to cheat Respondent No. 2 and his brother.

The Petitioners handed over two stilt parking areas as garages. That,

subsequently, a notice was issued under the Maharashtra Regional and

Town Planning Act, 1966, regarding the unauthorized use of the said

areas as garages instead of stilt parking spaces.


6.2       The ingredients of the offence under Section 418 of the IPC are




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clearly made out. That, the Petitioners, with dishonest intention, made

misrepresentations to Respondent No. 2 and his brother, despite having

knowledge that they had not put up the agreed plan for the shop and

garage. The Petitioners were under a duty to protect the interests of

Respondent No. 2. That, the stilt parking space is a common parking

area available, and the developer is obliged to provide the same under

the DCR. That, it is not an additional premises/area that he is

authorized to sell. That, upon issuance of the Occupation Certificate and

registration of the Society, the building, as well as the stilt parking

spaces, open spaces, open terraces and all common amenities, become

the property of the Society. That, a stilt parking space cannot be termed

as an open or covered garage. That under the Maharashtra Ownership

Flats Act, 1963, (for short MOFA) the developer’s right is restricted to

flats/shops and/or garages, which means that any premises which is

included in the Floor Space Index (FSI) can be sold. A stilt parking

space is not included in the FSI. What was allotted to Respondent No. 2

and his brother is stilt parking.


6.3       Prima facie, an offence under Section 418 of the IPC is made out.

The defence of the Petitioners cannot be considered at this stage. The

order of issuance of process under Section 418 has been rightly passed

and confirmed by the Sessions Court in Revision.


6.4       The Petitioners knowingly represented the stilt parking spaces as


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garages, despite the understanding, thereby causing wrongful loss to

Respondent No. 2 and his brother. The present case is not a mere

contractual dispute, but a calculated act of redevelopment fraud,

whereby Respondent No. 2 was deceived into surrendering valuable

rights in exchange for an illegal and inferior premises, thereby

attracting criminal liability under Section 418 of the IPC.


6.5 Mere availability of a civil remedy does not bar criminal

prosecution. The complaint discloses deception, inducement and

wrongful loss. The compilation of documents containing the plans

shows that the Petitioners never submitted any plan for a shop

admeasuring 710 sq. ft. carpet area. It is not the case of the Petitioners

that they have handed over a shop admeasuring 710 sq. ft. carpet area

or a garage as per the terms and conditions of the Agreement for

Alternate Accommodation.


6.6       Reliance was placed on the judgment of the Hon’ble Supreme

Court in the case of Nahalchand Laloochand Private Limited v. Panchali

Co-operative Housing Society, reported in AIR 2010 Supreme Court

3607, wherein it was held that the stilt portion or stilt area of a building

is not a garage under the Act and that the builder cannot sell the same

as a flat. In view thereof, it was prayed that the Petition be dismissed.


7.        Perused the entire record. Perusal of the complaint would




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indicate that, the main grievance of Respondent No.2 is that, the

original Accused No. 2 dishonestly induced Respondent No.2 and his

brother to give their two galas for redevelopment purposes on the

promise and assurance that Respondent No.2 and his brother would be

provided with galas admeasuring 366 sq. ft. each. It is the contention of

Respondent No.2 that, based on the said assurances, the documents of

consent and the Agreement for Alternate Accommodation were signed.

A Deed of Confirmation dated 11 th June 2009 was prepared and

registered between Petitioner No. 1 and Respondent No. 2 and his

brother.


8.        A Deed of Confirmation dated 11 th June 2009 is on record, which

would indicate that Respondent No. 2 and his brother had confirmed

that they were in possession and occupation of Gala Nos. 1 and 4,

totally admeasuring 710 sq. ft. carpet area. That, as per the Agreement

for Alternate Accommodation dated 10th August 2008, the Petitioners

had agreed to allot to Respondent No. 2 and his brother permanent

alternate accommodation on an ownership basis, free of cost, in the

form of a gala admeasuring 710 sq. ft. carpet area, on the ground floor,

in exchange for the old premises.


9.        Under Clause 7(a) of the Agreement, it was provided that, the

Petitioner shall provide the tenant with a gala having an 11-foot

frontage on the front side, facing the main road, in the new saleable


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building. Under Clause 7(b), it was provided that, in the event of the

MCGM refusing to sanction/approve the plan, the Petitioner would

provide the tenant with two galas, each admeasuring 215 sq. ft. and

having an 8-foot frontage on the front side, facing the main road. The

Petitioner would also provide one garage admeasuring 280 sq. ft. It was

agreed that the said garage would be located behind the two galas. It

was understood between the parties that the total area to be provided

to the tenant would not be less than 710 sq. ft. of carpet area.


10.       The record indicates that, Respondent No. 2 and his brother gave

their consent vide a letter/document dated 12 th December 2012. Perusal

of the record indicates that, there is an undertaking dated 5 th February

2013 signed by Respondent No.2 and his brother. The said undertaking

refers to the agreement dated 10th August 2008 and the deed of

confirmation dated 11th June 2009. In clause 2 of the undertaking

Respondent No.2 and his brother have specifically stated that in

pursuance to the obligation to the Petitioner under the said agreement

the Petitioner had handed over possession of the new premises together

with the fixtures, fittings, installations. Clause 3 of the agreement is

particular important which read as under.

                 “3. We hereby put on record that, prior to taking of
                 possession of the said new premises:

                 a.   We have inspected the said new premises and tested




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                 all installations, fixtures, fittings, etc., which we confirm
                 are perfectly in good condition and further that we have
                 no complaint/s of any nature whatsoever regarding
                 workmanship and / or quality of materials used and the
                 area of the said new premises which is physically
                 measured by us and we hereby confirm are in
                 accordance with the said agreement.

                 b.   We have also inspected the general amenities and
                 facilities in the buildings such as lifts, water pumps,
                 tanks, firefighting equipment, etc., and we are fully
                 satisfied as to their quality and working conditions.

                 c.   We further confirm and record that at our request
                 you have not constructed the wall between Shop No. 1 &
                 2.

                 d.   We confirm that we have seen and verified the
                 approved plan wherein our Shop No.1 & 2 and
                 Garage/Stilt is approved and which is in accordance with
                 the said agreement and in particular the front opening of
                 the shops are more than 8 (Eight) feet in width”

11.       On record is also a letter/document dated 6 th February 2013

addressed by Respondent No. 2 and his brother to the Petitioner with

reference to Shop Nos. 1 & 2 and the garage/stilt on the ground floor of

the said building. This letter also, after referring to the Agreement dated

10th August 2008 and the Deed of Confirmation dated 11 th June 2009,

in paragraph 5 records as under:

                 “5. We have seen and verified the latest sanctioned plans
                 of the building viz. constructed by you and new wing C/



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                  building to be constructed by you duly sanctioned by the
                  Municipal Corporation of Greater Mumbai. We have no
                  objection to your having amendments to the said plans of
                  the new wing C to be constructed by you, if permitted,
                  by the Municipal Corporation of Greater Mumbai from
                  time to time and constructing accordingly hereinafter”.

12.       On record is also the letter dated 8 th August 2013 address by the

Respondent No.2 and his brother to the Petitioner which reads as under:

                   “We wish to remove Center Wall of our two stilt, and a
                   gate from our shop No.1 to stilt. We wish to cover the
                   grill by cement sheet. We wish to make flooring of
                   Vitrified Tiles in our stilt. These changes will be done at
                   our own risk and cost, you will not be held responsible
                   for the consequences of the same”.

13. This Clearly indicates that the Respondent No.2 and his brother

were prima facie aware of the plans, had verified the documents. The

said undertakings are valid and subsisting. Infact the said documents

indicate that the Respondent No.2 and his brother had accepted the

premises in accordance to and incompliance of clause 7 (b) of the

Agreement. The said document which are executed by the Respondent

No 2 and his brother has not been considered by the courts while

issuing the order of process and rejecting the discharge application.


14. In reply the Petitioner by letter dated 7 th March 2014 and also

objected to the enclosing of the stilt parking and opening of a door from

the shop to the stilt without the permission of the local authorities. It



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was specifically mentioned in the letter that, the stilt is allotted for

parking vehicles only. Respondent No. 2 and his brother were called

upon by the Petitioners to remove and restore the unauthorized work. A

notice under Section 53(1) of the Maharashtra Regional and Town

Planning Act was also issued to the Petitioner, which, after considering

the Petitioner’s reply dated 7th November 2014, was revoked, and a

fresh notice under Section 53(1) of the Maharashtra Regional and Town

Planning Act was then served on Respondent No. 2 and his brother. By a

letter dated 27th December 2014 addressed by Respondent No. 2 and his

brother in reply to the MRTP notice under Section 51(1) dated 29 th

November 2014, have specifically stated that they reinstated the stilt

portion in its original form, as required by the notice under Section

52(1).


15.       The notice dated 29th November 2014 was issued to Respondent

No. 2 and his brother under Section 53(1) of the Maharashtra Regional

and Town Planning Act, 1960. A perusal of the said notice would

indicate that, it pertained to certain development and/or change in the

user of the premises carried out by Respondent No. 2 and his brother

without permission and in contravention of the approved plans. By the

said notice Respondent No. 2 and his brother were called upon to

reinstate the stilt portion of the A and B Wing buildings to its original

state and in accordance with the approved plan dated 29 th December



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2012. Respondent No. 2 and his brother were given a period of 30 days

to comply with the said notice. It appears that it is only after receipt of

the notice dated 29th November 2014 that the complaint has been filed.


16.       Perusal of the order dated 29th October 2015 would indicate that

process has been issued against the Petitioner for an offence punishable

under Section 418 of the IPC. The process appears to have been issued

on the basis that, after the notice was received from the BMC, it was

realized that the constructed area which was to be handed over to the

complainant was a stilt parking. It is alleged that the complainant and

his brother have been cheated, including in respect of the Development

Agreement, by hiding material facts. I have noted that the complaint

noted does not refer to certain critically important and relevant

documents i.e. undertaking dated 5 th February, 2013, letter dated 6th

February 2013 and letter dated 8th august 2013.


17.       The said order dated 29th October 2015 was challenged by the

Petitioner by filing Criminal Revision Application No. 213 of 2016. By

an order dated 28th April 2017, the Criminal Revision Application was

partly allowed. The order dated 29th October 2015 was set aside, and

the matter was remanded back to the Metropolitan Magistrate.


18. The Ld. Metropolitan Magistrate, 49 th Court, Vikhroli, Mumbai, on

remand, reconsidered the matter and, by order dated 27 th July 2018,




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issued process against the Petitioner for an offence punishable under

Section 418 read with Section 34 of the IPC.


19.       The order dated 27th July 2018 was challenged by the Petitioner

by filing Criminal Revision Application No. 1037 of 2018. By order

dated 9th July 2019, the said Criminal Revision Application was

dismissed. The learned Sessions Judge mainly relied upon Clauses 7(a)

and 7(b) to observe that necessary provisions should have been made in

the plan while getting the same sanctioned by the BMC and that

sanction from the BMC was required to comply with Clause 7(a) and

7(b) of the agreement.


20. Perusal of the gift deed dated 7th December 2017 executed between

Haresh Mansukhlal Mehta the brother of thr Respondent No. 2, the fact

that Respondent No. 2 and his brother became entitled to Shop No. 1

and Shop No. 2, each admeasuring 215 sq. ft. carpet area, with 8 feet

frontage on the front side facing the main road, along with two garage

premises, each admeasuring 140 sq. ft. carpet area, thus totaling 710 sq.

ft., on an ownership basis, free of cost, has been specifically stated and

admitted.


21.       In the sale deed dated 16th October 2017 executed between

Respondent No. 2 and Haresh Mansukhlal Mehta, as parties of the first

part, and Daksha Hasmukh Patel and Preeti Jagdish Patel, as transferees




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and parties of the second part, it is specifically recorded that the

Petitioner, upon completion of the building, obtained the full

Occupation Certificate on 7th November 2016 and handed over

possession of Shop No. 1 on the ground floor, admeasuring 215 sq. ft. in

A Wing, and Shop No. 2 on the ground floor, admeasuring 215 sq. ft. in

A Wing, to the transferors, i.e., Pradip Mansukhlal Mehta and Haresh

Mansukhlal Mehta. There was also a Sale Deed dated 18 th January 2018

executed between Pradip Mansukhlal Mehta, as the transferor, and

Rasila Lalit Patel, Mrs. Preeti Jagdish Patel and Mrs. Daksha Hasmukh

Patel, as the transferees, wherein the Agreement of Alternate

Accommodation dated 10th August 2010 and the Confirmation Deed

dated 11th June 2011 were once again referred to and reconfirmed. It is

stated therein that, the transferor became entitled to Shop Nos. 1 and 2,

each on the ground floor, admeasuring 215 sq. ft. carpet area, with 8

feet frontage on the front side facing the main road, along with other

premises admeasuring 280 sq. ft. carpet area, thus totalling 710 sq. ft.

carpet area in A Wing of the building known as Navkar Kripa

Cooperative Housing Society Limited, from the Petitioner. The

Respondent No 2 accepts compliance of clause 7 (b) of the Agreement.


22.       Perusal of the material and documents on record i.e. (i) clause 3

of the undertaking dated 5th February 2013; (ii) paragraph 5 of

undertaking dated 6th February 2013; (iii) letter of the Respondent No.2



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and his brother dated 8th August 2013, (iv) Petitioner’s reply dated 7 th

March 2014; (v) sale deeds dated 16 th October 2017 and 18th January

2018 and (vi) the MRTP notice and the Respondent No.2 reply dated

29th November 2014 it is clear that the parties were aware of the exact

nature of the transaction, the plans sanctioned/revised, and had

accepted the premises being fully aware of the exact nature of the

premises. The conduct of the Respondent No.2 and brother and the

documents executed by them clearly indicate that the Respondent No.2

and his brother were at all time aware of the correct facts and had by

their conduct given a clear go by to the clause 7(a) of the agreement

and accepted and confirmed compliance of clause 7(b) of the

agreement.


23.       The learned Advocate appearing for Respondent No. 2 has relied

upon the judgment of the Hon’ble Supreme Court in Nahalchand

Laloochand Private Limited v. Panchali Co-operative Housing Society,

reported in AIR 2010 Supreme Court 3607, to submit that a stilt portion

or stilt area of a building is not a “garage” under the Act, though it may

be usable as a parking space. It was submitted that for the purposes of

the Maharashtra Ownership Flats (Regulation of the Promotion of

Construction, Sale, Management and Transfer) Act, 1963 common areas

and facilities, including open parking spaces and stilt parking spaces,

are not “flats” and cannot be sold separately by the promoter. There can



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be no issue with the proposition of law as enunciated by the judgment.

It is pertinent to note here that, in the present matter none of the

premises have been sold. The premises have been handed over in a

redevelopment project as alternate accommodation and allotted free of

cost on ownership basis. The parties have executed various documents

which are subsisting and valid.


24.       Pertinent to note that, the complaint was filed under Sections 420

and 418, read with Section 34, of the IPC. This was after the issuance of

notice under the MRTP Act. The order of issuance of process is only

under Section 418 of the IPC. This would imply that the prayer in

respect of Section 420 has been rejected. Section 420 provides for

cheating and dishonestly inducing delivery of property. The process has

been issued under Section 418 of the IPC, which provides for cheating

with knowledge that wrongful loss may ensue to a person whose

interest the offender is bound to protect. It provides that, whoever

cheats with the knowledge that he is thereby likely to cause wrongful

loss to a person whose interest in the transaction to which the cheating

relates he was bound, either by law or a legal contract, to protect, shall

be punishable with imprisonment of either description for a term which

may extend to three years, or with fine, or with both.


25.       In the present case, there are documents in the form of the

Permanent Alternate Accommodation Agreement dated 10 th August


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2008 and the Confirmation Deed dated 11th June 2009, which would

indicate that the parties had agreed to the transaction and certain terms

and conditions. Perusal of the record would indicate that the transaction

between the parties starts with the Agreement for Alternate

Accommodation dated 10th August 2008. The said agreement records

that, Respondent No.2 and his brother, who were in possession and

occupation of premises being Gala Nos. 1 to 2, totally admeasuring 710

sq. ft., on the ground floor of the structure which was proposed to be

redeveloped, and that the Petitioner agreed to give to Respondent No.2

and his brother alternative permanent accommodation in the new

building. It was agreed between the parties, that the Respondent No.2

and his brother would get, on ownership basis, one gala admeasuring

710 sq. ft. area in the proposed new building to be constructed by the

owner on the said property. As per clause 7(a) and 7(b) the said

agreement, the Petitioners were to either provide one gala of 710 sq. ft.

with 11-foot frontage, or, if the plans could not be approved or

sanctioned, the owner was to provide 2 galas admeasuring 215 sq. ft.

each, facing the main road, and one garage admeasuring 280 sq. ft.

behind the said 2 galas, thereby making the total area of 710 sq. ft.

Clearly the parties at the first instance agreed and provided for

alternative options to ensure compliance of the agreement.


26.       The parties then executed a Deed of Confirmation dated 11 th June



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2009, wherein the parties confirmed and declared the Agreement for

Alternate Accommodation dated 10th August 2008.


27.       The part occupation certificate for the building was issued by the

MCGM on 29th December 2012. On 5th February 2013, Respondent No.

2 and his brother executed an undertaking for allotment of Shop No. 1

and 2 and garage/stilt, collectively referred to as “the said new

premises.” The undertaking refers to the agreement dated 10 th August

2008 and deed of confirmation dated 11 th June 2009. In the

undertaking, the Respondent No. 2 and his brother have specifically

stated that they have received quiet, full and complete vacant

possession of the said new premises, together with the fixtures, fittings,

installations and all other amenities. In Clause 3, Respondent No. 2 and

his brother have confirmed that they have seen and verified the

approved plans wherein Shop No. 1 and 2 and the garage/stilt are

approved and which are in accordance with the said agreement, and in

particular, that the front openings of the shops are more than 8 feet in

width. The said undertaking is duly notarized before a Notary Public. By

the said undertaking the parties accepted compliance in terms of clause

(b) of the agreement and at all times were aware that stilt parking was

handed over. The same was infact accepted and referred to as

garage/stilt. The respondent No.2 and his brother by this time were

aware of all the required and sanctioned plans.



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28. The Respondent No. 2 and his brother also executed a letter dated

6th February 2013, wherein, after again referring to the agreement dated

10th August 2008 and deed of confirmation dated 11 th June 2009, they

have, in Clause 5, specifically stated that they have seen and verified the

latest sanctioned plan of the building, that is, the building already

constructed and the new Wing C which was to be constructed.

Respondent No.2, has given no objection to the Petitioner for making

amendments to the said plan of the new Wing C which was to be

constructed, in accordance with the plans, if permitted by the

Corporation from time to time.


29.       Perusal of both the letter and the undertaking would indicate that

the Petitioner, when they took possession of Shop No. 1 and Shop No. 2

and the garage/stilt, which they collectively referred to as the said “new

premises”, were aware of the agreement dated 10th August 2008 and

deed of confirmation dated 11th June 2009. They have specifically

stated that they have seen and verified the approved plans wherein

their Shop No. 1 and Shop No. 2 and garage and stilt are approved and

have, more particularly, stated that the same are in accordance with the

said agreement. They have also stated that the front opening is more

than 8 feet in width, which is in consonance with clause 7 (b) of the

Agreement. Considering the two documents, it is clear that the

Respondent No. 2 and the Petitioner had, with knowledge and



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awareness, taken possession of the premises. The parties were ad-idem

in respect of the nature of the transaction and the agreement. By

referring to the agreement dated 10th August 2008 and deed of

confirmation dated 11th June 2009, at least prima facie, it is clear that

the Petitioner, while giving the undertaking and letter dated 5th February

2013 and 6th February 2013, were clearly aware of their rights and the

documents which they were executing. In this view of the facts, the

contention contained in the complaint that they have been cheated

would not be tenable.


30. Prima facie there was no interest left which was to be protected.

The       interest and rights of Respondent No.2 and his brother were

adequately protected. I say this for one more reason, that is, by letter

dated 8th     August 2010, the Respondent No. 2 and his brother had

informed the Petitioner that they intended to remove the center wall

between the 2 Shops and cover the grill of the stilt with cement sheet

and vitrified tiles flooring in the stilt. In the said letter, the Respondent

No. 2 and his brother have again referred to the 2 shops and stilt area

and sought permission to make changes in the said premises. This is

also indicative of the fact that as of 8th August 2018, the Respondent No.

2 and his brother had no complaint or grievance against the Petitioner.

This letter has not been disputed during the course of argument. The

letters of the Respondent No.2 and brother itself indicate that the



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alleged charges are groundless and that there is no material is proceed

against the Petitioners.


31. The Respondent No 2 and his brother were aware that what was

given and accepted in fact a stilt parking. In view thereof no case of

cheating can be made out. The Petitioner, by letter dated 7 th March

2014, had informed the Respondent No. 1 and his brother of the

unauthorized work carried out in the shops. Objection was also taken in

respect of the enclosing of the stilt area and opening the door from the

shop to the stilt without the permission of the local authority. It was

specifically mentioned by the Petitioner that the stilt had been allotted

for parking of vehicles. This letter appears to have been sent by speed

post. Thus, it is clear that the Respondent No.2 and brother had agreed

and accepted the new premises. The term garages and stilt both have

been used. The contents of the undertaking are prima facie indicative of

the fact that the Respondent No.2 and his brother were at all times

aware of the all the facts and plans had been verified. The conduct of

the Respondent No.2 and his brother shows compliance of the

agreement in its entirety by giving a go by to clause 7(a) and accepting

the premises in terms of clause 7(b) of the agreement.


32.       The Petitioner also received a notice under Section 53(1) of the

MRTP Act. The notice dated 20th October 2014 under Section 53(1) of

the MRTP Act was in respect of the construction of partition walls to


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enclose the stilt portion of A Wing and B Wing. The Respondent No. 2

and his brother also received a notice under Section 53(1) of the MRTP

Act on 20th November 2024 in respect of the said same violation. It is

also on record that the Petitioner No. 1, after clarifying with the

Municipal Authority in respect of the construction of the partition walls

to enclose the stilt portion, the Municipal Corporation revoked the

notice against the Petitioners. The Section 53(1) notice under the MRTP

Act was continued/fresh notice issued to the Respondent No. 2 and his

brother.


33.       It is after the receipt of the notice under the MRTP Act that the

Respondent No. 2 filed a criminal complaint under Sections 418, 420

read with 34 of the IPC. As of the date of the filing of the complaint, the

Respondent No. 2 and his brother had executed an undertaking dated

5th February 2013 and letter dated 6th February 2013, wherein they had

accepted possession of the said new premises, which included Shop No.

1 and Shop No. 2 and garage/stilt. They had specifically admitted that

they had verified the plans and that further, they had no objection to

the new construction or amendment of the plan. By letter dated 8 th

August 2013, they had also carried out certain changes without

permission of the Corporation, that is, removing of the common wall of

Shop No. 1 and Shop No. 2 and opening a door from Shop No. 1 and 2

to the stilt portion/garage. This conduct of the Respondent No. 2, with



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other facts, prima facie indicates that they were aware of the nature of

the transaction they executed and their intention of using the

stilt/garage as part of their commercial shop was prima facie evident. It

is only after receiving the notice under the MRTP Act that the present

complaint has been filed.


34.       The said Gift Deed is of the year 2017, that is, after the filing of

the criminal complaint, which confirms that Shop No. 1 and 2, each

admeasuring 215 sq. ft., with 8 feet frontage on the front side facing the

main road, along with 2 garage premises admeasuring 140 sq. ft.

carpet, totaling 710 sq. ft. carpet, were allotted to Respondent No. 2

and his brother. There is a sale executed on 16 th October 2017 between

Pradip Mansukhlal Mehta and Haresh Mansukhlal Mehta, in their

capacity as transferors, and Mrs. Preeti Jagdish Patel, Mrs. Daksha

Hasmukh Patel and Rasila Lalit Patel, as transferees. This sale deed is in

respect of Shop No. 2. The sale deed also records the transaction

between the Petitioner and Respondent No. 2 and his brother. A sale

deed was executed on 10th January 2018 between Pradip Mansukhlal

Mehta as the transferor and Mrs. Preeti Jagdish Patel, Mrs. Daksha

Hasmukh Patel and Rasila Lalit Patel as the transferees, in respect of

Shop No. 1.


35.       Perusal of the said document would indicate that the Respondent

No. 2 and his brother have accepted the said shops along with the


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garage/stilt and acted upon them and executed further documents of

transfer of title in respect of the said shops. The record would prima

facie indicate that Respondent No. 2 and his brother have both accepted

the said “new premises” as described in the undertaking dated 5 th

February 2013. After accepting the said new premises, the parties have

sought to make alterations and renovations in respect of the garage/stilt

premises so as to attach it to the commercial premises. Prima facie, it

appears that what the parties proposed was to use the said garage or

stilt as part of the commercial premises. This is not permissible. The

conduct of the Respondent No.2 and his brother negates and neutralizes

the alleged offence under section 418 of the IPC. The Respondent No.2

by their conduct have acknowledged and accepted the change if any.

Suspicion if any in respect of allotting a stilt in place a garage has been

explained and neutralized by the conduct of Respondent No.2 himself.

The peculiar facts of the case do not even raise any suspicion much less

any strong or grave suspicion. It prima facie appears that at a highest, a

civil dispute of a breach of terms and conditions may be made out

which is being attempted to be converted into a criminal prosecution on

the case of a mere suspicion. Considering the aforesaid facts, no prima

facie, case can be made out under Section 418 of the IPC.


36.       Considering the documents on record and the conduct of the

Respondent No.2 and his brother it cannot be said that the Petitioner



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was bound to protect any interest of the Respondent No. 2 and his

brother under law or by a contract. As stated above, the Respondent No.

2 and his brother, by their conduct and the documents they executed,

have, in fact, as it appears, agreed to alter the terms of the agreement

dated 10th August 2008. In the peculiar facts of this case, it cannot be

said that any offence of cheating under section 418 of IPC against the

Petitioner is made out.


37.       In the present case, the Petitioner has accepted the stilt, the 2 stilt

parking spaces, as against garage, which is evident from their

undertaking dated 5th February 2013 and letter dated 6th                February

2013. In case the Petitioner has any grievance, the Petitioner can

approach appropriate civil proceedings for breach of contract or non-

fulfilment of the duties/liabilities which arise from the agreement, if

that is permissible in law. As far as the present proceedings are

concerned, considering the overall facts and circumstances, the conduct

of the parties and the documents which have been executed, prima

facie, it appears that no case as alleged under Section 418 has been

made out.


38. I have also noted that Respondent No 2 has not made any reference

to the following important and relevant documents executed by

Respondent No.2 and his brother. The said documents are as under:-




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(i) Undertaking dated 5th February 2013,


(ii) The letter dated 6th February 2013 and


(iii) The letter dated 8th August 2013.

    Pertinent to note that, Respondent No.2 and his brother have given

a duly executed undertaking dated 5th February 2013, wherein they

have specifically mentioned and confirmed that, they had seen and

verified the approved plan wherein their Shop No. 1 and 2 and

garage/stilt is approved and that the same is in accordance with said

agreement and in particular the front opening of the shops are more

than 8 feet in width. This statement shows a clear and unequivocal

compliance    of   clause   7(b)   of     the   Agreement   of    Alternate

accommodation. Further, in the letter dated 6th February 2013             the

Respondent No.2 and his brother , have specifically stated that they

have seen and verified the latest sanctioned plans of the building and

new wing C/building to be constructed by the Petitioners duly

sanctioned by the Municipal Corporation of Greater Mumbai and they

gave their no objection to the Petitioner having/making amendments to

the said plans of the new wing C, if the amendments are permitted by

the Corporation. The Respondent No.2 and his brother have also

confirmed of having taken possession of the said Shop No 1 and 2 and

Garage/Stilt which is termed as the “said new premises” Further, by

letter dated 13th August 2013, addressed to the Petitioners, Respondent


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No. 2 and his brother informed the Petitioners that they wished to

remove the center wall of the two stilts and remove ( make) a gate

from Shop No. 1 to the stilt. The Petitioners were further informed that

the Respondent No.2 proposes to cover the grill by cement sheet and

also make vitrified tile flooring in the stilt. By the said letter the

Petitioners were assured that the changes would be done              at the

Respondent No.2’s risk and cost. The said letter is also not disclosed in

the complaint. In my view the Respondent No.2 has not stated the full,

true and correct facts in his complaint before the Magistrates Court.

39. Pertinent to note that the order issuing process refers to the

complaint, verification and documents on record. When a process is

issued and cognizance is taken, it is the duty of the magistrate to

ascertain to truth. The same is done from a perusal of the complaint,

examining the complainant on oath/verification and on perusal of the

documents. It is this the duty of the complainant to place on record all

the relevant turs and correct facts. Issuing of process requires a judicial

application of mind to the facts. The facts therefore have to be true and

complete.

40. In this context, it would be useful to refer to the Judgement of the

Hon’ble Supreme Court in the             case of Rekha Sharad Ushir v.

Saptashrungi Mahila Nagari Sahakari Patsansta Ltd 2025 SCC OnLine




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SC 641, wherein the Hon’ble Supreme Court has in paragraphs 10 and

11 observed that,

   10. “Recording        the complainant's statement on oath under
Section 200 of the CrPC is not an empty formality. The object of
recording the complainant's statement and witnesses, if any, is to
ascertain the truth. The learned Magistrate is duty-bound to put
questions to the complainant to elicit the truth. The examination is
necessary to enable the Court to satisfy itself whether there are
sufficient grounds to proceed against the accused. After considering the
complaint, the documents produced along with the complaint, and the
statements of the complainant and witnesses, if any, the learned
Magistrate has to apply his mind to ascertain whether there is sufficient
ground for proceeding against the accused. If he is satisfied that there is
sufficient ground to proceed against the accused, then the learned
Magistrate has to issue a process in terms of sub-Section (1) of
Section 204 of the CrPC. The corresponding provision under the BNSS
is Section 227. Setting criminal law in motion is a serious matter. The
accused faces serious consequences in the sense that he has to defend
himself in the trial.”

   11. “It is settled law that a litigant who, while filing proceedings in
the court, suppresses material facts or makes a false statement, cannot
seek justice from the court. The facts suppressed must be material and
relevant to the controversy, which may have a bearing on the decision
making. Cases of those litigants who have no regard for the truth and
those who indulge in suppressing material facts need to be thrown out
of the court. In paragraph 5 of the decision of this Court in the case
of S.P. Chengalvaraya Naidu v. Jagannath1, it is held thus:”




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          “5. The High Court, in our view, fell into patent error. The short
   question before the High Court was whether in the facts and
   circumstances of this case, Jagannath obtained the preliminary
   decree by playing fraud on the court. The High Court, however, went
   haywire and made observations which are wholly perverse. We do
   not agree with the High Court that “there is no legal duty cast upon
   the plaintiff to come to court with a true case and prove it by true
   evidence”. The principle of “finality of litigation” cannot be pressed
   to the extent of such an absurdity that it becomes an engine of fraud
   in the hands of dishonest litigants. The courts of law are meant for
   imparting justice between the parties. One who comes to the court,
   must come with clean hands. We are constrained to say that more
   often than not, process of the court is being abused. Property-
   grabbers, taxevaders, bank-loan-dodgers and other unscrupulous
   persons from all walks of life find the court-process a convenient
   lever to retain the illegal gains indefinitely. We have no hesitation to
   say that a person, who's case is based on falsehood, has no right to
   approach the court. He can be summarily thrown out at any stage of
   the litigation.”

41.       In my opinion, it prima facie appears that the Respondent No.2

has suppressed material facts in the complaint. The entire facts were

not before the Court. Documents executed by the Respondent No.2 and

his brother have, purposely not been referred to in the Complaint, in an

attempt to make out a criminal offence. It is not that the documents are

that of the Petitioners or some third party. The facts and documents as

suppressed are material and relevant to the controversy in issue, and

have a direct bearing on the matter and the decision making process.


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Based on incomplete and convenient facts, the Respondent No.2 has

sought to invoke and initiate criminal prosecutions in respect of matters

which are otherwise at the highest are purely civil and contractual

disputes and issues. In my considered opinion in the present case

Respondent No 2 has suppressed the material facts of the case and

process was issued on such incomplete facts.


42.       Considering the facts of the present case, none of the ingredients

required to make out an offence of cheating under Section 418 are

available in the present case. Considering the conduct and the

documents executed, an essential ingredient to make out an offence

under Section 418 of the IPC is to cheat a person with the knowledge

that he is likely thereby to cause wrongful loss to the person whose

interest in the transaction to which the cheating relates he is bound to

protect. In the present case, it prima facie appears that there are no

such circumstances.


43.       Considering the aforenoted facts, submissions and the law as laid

down by the Hon’ble Supreme Court, I am inclined to quash the present

proceedings. This would be a fit case to invoke the inherent powers of

this court under the provisions of section 482 of the Code of Criminal

Procedure to quash and set aside the criminal proceedings in the

interest of justice and to prevent the abuse of the process of law.

Considering the entirety of the facts, in my opinion petitioner have


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clearly made out a case under the categories 1, 3 and 7 laid down by

the Hon’ble Supreme Court in the case of State of Haryana & Ors. Vs.

Bhajan Lal & Ors., reported in 1992 Supp (1) SCC 335.

44.       In view of the aforesaid facts and circumstances the following

order is passed :-


   (i) The present Criminal Writ petition is allowed in terms of prayer

   clause (c).




                                 ( RANJITSINHA RAJA BHONSALE, J.)




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