Uti Employees Sai Samrudhi Co-Operative Housing Society Ltd v. State Of Maharashtra
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 2802 OF 2024 UTI Employees Sai Samrudhi Co-operative Housing Society Ltd.
.... Petitioner Vs.
The State of Maharashtra .... Respondent Mr. Shirish Gupte, Sr. Advocate a/w. Mr. Deepak Thakare and Mr. Prakash Shah for the Petitioner.
Ms. P.N. Dabholkar, APP for the State.
CORAM : SHYAM C. CHANDAK, J.
DATED : 15th OCTOBER, 2024 P.C. :- .
At the outset, Mr. Gupte, learned Senior counsel for the Petitioner seeks leave to amend to add Section 482 of Cr.P.C, necessary pleadings and the prayer clause, accordingly. 2) In view of the grounds stated in the Petition, leave to amend. Amendment be carried out forthwith.
3) Present Petition seeks for quashing and setting aside of the impugned Order dated 06th July, 2023 passed by the learned Metropolitan Magistrate, Railway Mobile Court, Andheri, Mumbai in C.C. No.294/SW/ 2022 (Criminal Application No.294 of 2022).
4) Heard Mr. Gupte, learned senior counsel for the Petitioner and Ms. Dabholkar, learned APP for the State. Perused the Petition. 4.1) Rule. Rule made returnable forthwith. With consent of the learned counsel for respective parties, heard finally. 1/6
5) The Petitioner is a Co-operative Housing Society registered under the Maharashtra Co-operative Societies Act, 1960. A tripartite Agreement dated 15th March, 2010 was executed between the Petitioner, MHADA and M/s. Ornate Spaces Pvt. Ltd., for the purpose of development of certain plots, to meet the residential need of 152 members of the petitioner. It was followed by a Development Agreement on 18th May, 2010 with M/s. Ornate. However, in gross violation of the terms and conditions of the Development Agreement, the Directors of M/s.Ornate forged and prepared false documents like Resolutions, NOC of the Petitioner etc. and using the same as genuine, mortgaged the said plots and the interest of the Petitioner's Society therein and raised a huge loan amount from various financial institutions.
Therefore, the Petitioner filed various complaints with the jurisdictional EOW police and its higher authority seeking for registration of an F.I.R. under offences punishable under Sections 120-B, 406, 409, 420, 465, 467, 468, 471 and 474 of the Indian Penal Code against M/s.Ornate and its Directors. However, it did not yield any result, meaning thereby, no cognizance of the said complaint was taken by the police. As a result, on 25th June 2022, the Petitioner filed the C.C. No.294/SW/2022, under Section 156 (3) Cr.P.C., seeking for a direction to the police to register an F.I.R. In a Criminal Writ Petition (L) No.3926/2023 at the instance of the Petitioner, this Court vide Order dated 24th February 2023, directed the learned Magistrate to decide the prayer in C.C. No.294/SW/2022 within 'Four Weeks'.
disposed of the C.C. No.294/SW/2022 by the impugned Order. Hence, this Petition.
6) That, on 06th July, 2023 when the said Application came before the trial Court, the said Court passed the following Order :- "1. Read the complaint. Perused the documents on record. It is submitted by the complainant that document at Serial No.65 is forged and it is not given by then secretary Shri. Sanjay Kamat of the said society. Upon such requisition, it was ordered on 28/06/2023 for then secretary of the said society Shri. Sanjay Kamat to come in the Court for the said document. Today complainant Shri. Purushottam M. Bandekar absent, then secretary Sanjay Kamat absent. Complainant has simply prayed for order under Section 156(3) of Code of Criminall Procedure and he do not want any order of under Section 202 of Code of Criminal Procedure and otherwise. Therefore, the complaint is proceeded upon preliminary inquiry.
In preliminary inquiry it is seen that Shri. Sanjay Kamat then secretary, (on 11/04/2014) of the said society is absent. It is submitted by the Ld. Advocate for the complainant that they have served notice to him and he has filed affidavit of service on record. As then secretary Shri. Sanjay Kamat, who is the signatory of the said document and beneficiary does not want to come before the Court to clarify the fact. It is possible that he might have signed the same. He is the only person who can deny his signature but he do not want to come before the Court for the reason best known to him. Therefore, there is no reason before me to exercise power under Section 156 (3) of the Code of Criminal Procedure. Hence, the complaint is disposed of."
7) From bare perusal of the aforesaid Order, it can be easily gathered that, Mr. Sanjay Kamat who is a signatory to certain document and alleged beneficiary, did not show an interest to assist the trial Court and prosecute the said case. The said case was filed for seeking justice in the mater of cheating etc. committed against the 152 members of the Petitioner. Therefore only the learned Magistrate opined that,"It is possible that he ( Mr. Sanjay Kamat) might have signed the said document and that, he is the only person who can deny his signature but he does not want to come before the Court for the reason best known to him". It is apparent that, this opinion is not based on sound reasons, but unfortunately, it caused the learned Magistrate to record that, there is no reason before him to exercise the powers under Section 156 (3) of Cr. P.C. and to dispose of the complaint. Needles to mention that, reasons are hallmark of any judicial Order.
8) Considering the impugned Order, it is intelligible that, the learned Magistrate also was of the view that there is a case of some serious offence. Yet, giving undue significance to the absence of the complainant and Mr. Kamat, the learned Magistrate unnecessarily disposed of the complaint without addressing a single merit therein in the interest of justice. The offence alleged pertains to a fraud to the tune of Rs.181 Crores. It is evident that, the complaint was filed through the representatives of the Petitioner-Society. If the said representatives were not showing any interest for prosecuting the complaint to take it to the logical end, the 4/6
learned Magistrate could have summoned the Director of the PetitionerSociety or any of its office bearer and inform him the factual position before disposing the complaint for default. In that case, the Petitioner would have got an opportunity to appoint a new representative to prosecute the complaint sincerely. This also would have helped the learned Magistrate to clear his doubt, if any, about the complaint and proceed with the complaint in accordance with the law. Considering the impugned Order, it seems that as this Court directed the learned Magistrate to decide the prayer in the complaint in a time bound manner, he disposed it of just because the representatives of the Petitioner were not diligent. This is not proper looking at the magnitude of the offence and the numbers of its victim. Justice cannot be denied at the threshold, without examining merits of one's case. The Petitioner was struggling to get its complaint registered as an F.I.R., however, the impugned Order put an end to their last hope.
9) In view of the above discussion, the impugned Order is not sustainable in law and it is liable to be quashed and set-aside. Thus, the Petition succeeds. Hence, following Order :- (a) Writ Petition No.2802 of 2024 is allowed.
(b) The impugned Order dated 06th July, 2023 passed by the learned Metropolitan Magistrate, Railway Mobile Court, Andheri, Mumbai in C.C. No.294/SW/2022 (Criminal Application No.294 of 2022), is quashed and set-aside. 5/6
(c) The C.C.No.294/SW/2022 (Criminal Application No.294 of 2022) stands immediately restored on the file of the learned Metropolitan Magistrate, Railway Mobile Court, Andheri, to the stage at which it was disposed of by the impugned Order. The learned Magistrate to consider the said C.C.No.294/SW/2022 (Criminal Application No.294 of 2022) afresh, from that stage and take it to its logical end. 10) Petition stands disposed of in the above terms. Rule made absolute.
PREETI HEERO JAYANI (SHYAM C. CHANDAK, J.) PREETI HEERO JAYANI Date: 2024.10.22 10:32:20 +0530 6/6