Teena Rosh vs Ms K.J. In

Teena Roshan Jain Vs Ms K.J. Infrastructures Pvt Ltd Etc 2

Case Details

Case Type	Cri.Rev.App.
Filing Number	104332/2013
Registration Number	100673/2013
Filing Date	11-09-2013
Registration Date	21-09-2013

First Hearing Date	21st September 2013
Decision Date	16th December 2015
Case Status	Case Disposed
Court Number and Judge	74-District Judge-21 And Addl. Sessions Judge Pune;
Nature of Disposal	Contested--Judgment;

Petitioners & Respondents

Petitioner

Teena Roshan Jain, ;

Petitioner Advocate

Shri S.T.Agarwal;

Respondent Name

Ms K.J. Infrastructures Pvt Ltd Etc , Bipin Dungarshi Shah;

Order Details

Order not found.

Final Order Judgement

Order Date

16-12-2015

1 Received on : 11-9-2013 Registered on :11-9-2013 Decided on :16-12-2015 Duration : Y. M. D. 2 3 5 IN THE SESSIONS COURT PUNE. (Presided over by Shri P. Y. Ladekar, Addl. Sessions Judge, Pune) Criminal Revision Application No. 676/2015 Exhibit No. 1] Mrs. Mamata Rajesh Jain, age about- 45 years, occupation- housewife, R/at- 585/19, Devi Aangan, Salisbury Park, Near Jain Swetambar Temple, Gultekdi, Pune-37. ....Applicant. Vs. 1] M/s K.J. Infrastructures Pvt. Ltd. Having its registered office at Through its Director & Authorized Signatory, 2 Shri Laxman D Kotwani, age about- adult, occupation- business, K. J. Infrastructure Pvt. Ltd. 7, Prospect House, 29 Raghunath Dadaji Street, Fort, Mumbai- 400 001. 2]Mr. Bipin Dungarshi Shah, age about- adult, occupation- business, R/at- Kamalkunj, 5th floor, 1117, Model Colony, Pune-16. 3]State of Maharashtra. ….Opponents. Revision against the order passed below Ex 1 in R. C. C No. 4900/2012 by Judicial Magistrate,F. C. Court No. 9,Pune on 9-5-2013. Appearances:- Shri S. T. Agarwal Advocate for the applicant. Shri P. Narayan Advocate for the opponent No. 1. Shri Datta Koklekar Advocate for the opponent No. 2. Shri. R.P. Raut APP for the State. ORAL JUDGMENT [Delivered on 16-12-2015] 1] Heard Ld. Advocates for both the parties. 3 Perused the complaint, revision and the documents produced by the parties. 2] The revisionist is accused No. 2 in Criminal Case RCC No. 4900/2012. The accused No. 1 is Bipin Shah. Based on the complaint and verification, Ld. JMFC Court No. 9, Pune as per order dt 9-5-2013 has taken cognizance of the offences under sections 403, 405, 406, 415, 418, 420 r.w 34 of the Indian Penal Code against both the accused and process has been issued against them. 3] Briefly stated, the facts leading to taking cognizance of the aforesaid offences against the accused are that the complainant M/s K. J. Infrastructures Pvt. Ltd. is a partner in H. B. KJ and Advance partnership firm wherein the accused No. 1 Bipin Shah and M/s Advance Construction Company Pvt. Ltd. are the other partners. This partnership firm has started development of residential flats under scheme known as 'Hemkunj' and it consists of one building with 13 floor and on each floor there are 4 flats. So there were total 52 flats in this project. 4] The accused No. 1 was looking after entire business and was also having dominion over these properties as he is based in Pune and the directors of 4 the complainant company are residing at Mumbai. 5] The accused Nos. 1 and 2 in furtherance of their common intention have executed false and bogus agreement of sale with a view to deceive the complainant and misappropriated its property as well as committed criminal breach of trust. Though the agreements were registered, but payment was not received by the complainant and agreements were also for much less amount than the market price of the flats. 6] The accused No. 2 has challenged the order passed by Ld. Magistrate under section 202 of the Code of Criminal Procedure mainly on the ground that the order is incorrect, illegal, without application of mind and facts alleged against this accused and therefore, a prayer for quashing and setting aside the order and dismissing the complaint against accused No. 2. 7] In the present revision a short question is to be considered is whether the order passed by Ld. Magistrate taking cognizance of aforesaid offences is sustainable against accused No. 2. 8] So far as powers of this court and law in respect of Section 202 of the Code of Criminal 5 Procedure,Ld. Advocate for the respondent/complainant has brought to the notice of this court the judgment of Supreme court in Fiona Shrikhande Vs State of Maharashtra, 2013 ALL SCR 3108 and para 11 of the judgment is self explanatory which is reproduced as below- '11] We are, in this case, concerned only with the question as to whether, on a reading of the complaint, a prima facie case has been made out or not to issue process by the Magistrate. The law as regards issuance of process in criminal cases is well settled. At the complaint stage, the Magistrate is merely concerned with the allegations made out in the complaint and has only to prima facie satisfy whether there are sufficient grounds to proceed against the accused and it is not the province of the Magistrate to inquire into a detailed discussion on the merits or demerits of the case. The scope of enquiry under section 202 is extremely limited in the sense that the Magistrate, at this stage, is expected to examine prima facie the truth or falsehood of the allegations made in the complaint. Magistrate is not expected to embark upon a detailed discussion of the merits or demerits of the case, but only consider the inherent probabilities apparent on the statement made in the complaint. In Nagawwa Vs Veeranna Shivalingappa Konjalgi and 6 others [1976] 3 SCC 736, this court held that once the Magistrate has exercised his discretion in forming an opinion that there is ground for proceeding, it is not for the Higher Courts to substitute its own discretion for that of the Magistrate. The Magistrate has to decide the question purely from the point of view of the complaint without at all adverting to any defence that the accused may have.' 9] So at this stage in this revision this court will have to consider whether the order of Ld. Magistrate was after considering inherent probabilities apparent from the statements made in the complaint. 10] Perusal of complaint in particular para 22, 23, 25, 26 and 29 indicate statements of the complainant explaining how the aforesaid offences have been committed by both the accused. These paragraphs are reproduced with a view to see whether discretionary order of Ld. Magistrate is proper or not. '[22] The complainant says and submits that on or about 18-10-2012 the accused No. 1 in furtherance of common intention along with accused No. 2 executed an agreement of sale 18-10-2012 which is registered at Sr. No. 9635 of 2012 at Haveli No. 15 and by the said agreement both the accused have shown in 7 the agreements that the partnership firm has agreed to sale a residential unit bearing B-12 in B Wing on 12th floor consisting of 157.93 sq mtr. of carpet area and equivalent to 205.31 sq mtr of gross area with attached terrace of 24.44 sq mtr and 2 parking area of 12.50 sq mtr each in Hemkunj Apartments being constructed on sub plot No. 3, sub plot No. 4/1 and sub-plot No. 4/2 out of sub plot No. 411 carved out of Survey No. 707 A Hissa No. 1+7+8+14+15+16 containing City Survey No. 21 situate at village Munjeri Nisbut known as Mukundnagar area of village Gultekdi of city Pune, Taluka-Pune, District-Pune and within the limits of Pune Municipal Corporation and within the limits of registration district of Sub-Registrar taluka- Haveli to accused No. 2. [23] The complainant says and submits in the said agreement the lump-sum consideration for the flat, terrace and parking area is mentioned as Rs 2.09,84,000/- and in the clause No. 3 of consideration column to various stages of payment linked to casting of slabs and linked to brickwork plaster finished work and possession has been mentioned. [25]The complainant further says and submits that both the accused have purposely kept all the particulars of payment blank . The complainant further says and submits that even though as on that date the market price of the flat was Rs 3,82,95,000/- but 8 inspite of that the agreement value has been shown as Rs 2,16,00,000/-. The complainant says and submits both the accused in furtherance of common intention caused wrongful loss to the partnership firm and other partners other than accused No. 1 and accused Nos. 1 and 2 have caused wrongful gain to themselves by entering into such agreement without any consideration having paid to the partnership firm. [26] The complainant says and submits the accused persons had knowledge that accused No. 1 was prohibited from entering into any agreement on behalf of partnership firm and still they executed said agreement with an intention to cause wrongful gain to themselves and wrongful loss to partnership firm and other partners. Accused No. 1 could not have created any sort of interest in the property in favour of the accused No. 2. [29]The complainant says and submits that the accused No. 1 as a partner had a dominion over the immovable property as he was in Pune and all other partners were situated at Mumbai and hence he was looking after the said whole business which amounts to a special agreement between the partners to look after the business by which accused No. 1 had a dominion over the immovable property and consideration received against sale and he has dishonestly misappropriated the proceeds and converted the use 9 of the property to himself and has dishonestly entered into agreement in violation of legal contract entered into between the parties and the accused No. 2 has abetted the accused No. 1 in committing the said crime. The accused No. 1 being a partner of the said partnership firm was acting as an agent of remaining partners as well as partnership and hence has committed a criminal breach of trust in respect of said property its proceeds and accused No. 2 in furtherance of common intention has aided and abetted accused No. 1 in committing such criminal breach of trust by not paying any money in the accounts of partnership firm and entering into under hard dealing with accused No. 1. The said illegal act has been committed by accused with an intention to cause wrongful loss to other partners of the firm and wrongful gain to themselves. ' 11] Perusal of these paragraphs prima facie indicate that there are statements made by the complainant against both the accused and their role and involvement, so also entrustment of the property, misappropriation and cheating. 12] As against this, the main thrust of arguments of Ld. Advocate for accused No. 2 was that the accused No. 2 has executed registered agreement 10 of sale and paid the amount to accused No. 1. What was the internal arrangement between the complainant and accused No. 1 cannot be known to the accused No. 2 who is an outsider and in fact for specific performance of the agreement, the accused No. 2 has already filed civil suit and actually it is an attempt on the part of the complainant and accused No. 1 to extract more money from the purchasers. 13] From the arguments of both the parties undisputedly, it comes out that in Hemkunj scheme the complainant and accused No. 1 are the partners, the accused No. 1 having base in Pune was given authority to deal with the purchasers, but then there was some problem about account and as per memorandum of understanding dt 12-5-2012 between the partners, accused No. 1 was prohibited in dealing with the buyers and in financial transactions. The agreement with accused No. 2 is after that date. Further the accused has stated that she is bonafide purchaser and made payment to the partnership firm. 14] But the record indicate that no money has been paid and no documents produced by the revisionist to show that they paid any amount to the complainant. Therefore, the agreement is without consideration. In the agreement though it ie mentioned 11 at what stage of construction which amount will be paid. But there are no details as to how , when by what cheque number or otherwise the amount as per schedule has been paid by the revisionist. As such the agreement of Rs 2,09,84,000/- is without consideration. 15] If this fact is considered along with the aforesaid statement made in the complaint then prima facie there are sufficient grounds to issue process against accused Nos. 1 and 2 for the offences of which cognizance has been taken by Ld. Magistrate. As observed by the Apex court in Fiona Shrikhande's judgment [supra] what was necessary for Ld. Magistrate was to prima facie satisfy whether there are sufficient grounds to proceed against the accused and it is not the province of the Magistrate to inquire into a detailed discussion on the merits or demerits of the case. 16] As per the agreement dt 18-10-2012 the agreed price was Rs 2,09,84,000/- and the time scheduled of payment of that money has been mentioned. But there is no document which supports payment of Rs 2,09,84,000/-. Thus, the agreement is without consideration. 17] Certainly when the scope of consideration 12 under section 202 of the Code of Criminal Procedure is limited to see whether there are prima facie sufficient grounds to proceed against the accused then in revision also this court cannot go on sifting material and decide the revision on considering the merits and demerits of the case. Certainly, the order of Ld. Magistrate is not a detailed order. But perusal of the order indicate that Ld. Magistrate has read the complaint, perused verification and documents. Heard Ld. Counsel for the complainant and then took cognizance of the aforesaid offences. Though Ld. Magistrate has not explained by giving brief reasons as to how the aforesaid offences are prima facie made out, but as discussed herein above , this court also cannot come to some other conclusion of taking cognizance of the offence against accused No. 2 than what has been done by Ld. Magistrate. Therefore, I do not find any merit in this revision and hence the following order. ORDER 1] Revision is hereby dismissed. [ P. Y. Ladekar ] Date:- 16-12-2015. Addl. Sessions Judge,Pune. 13 Received on : 11-9-2013 Registered on :11-9-2013 Decided on : 16-12-2015 Duration : Y. M. D. 2 3 5 IN THE SESSIONS COURT PUNE. (Presided over by Shri P. Y. Ladekar, Addl. Sessions Judge, Pune) Criminal Revision Application No. 675/2015 Exhibit No. 1] Mr. Akashat Mahendra Jain, age about- 22 years, occupation- housewife, R/at- 585/19, Devi Aangan, Salisbury Park, Near Jain Swetambar Temple, Gultekdi, Pune-37. ....Applicant. Vs. 1] M/s K.J. Infrastructures Pvt. Ltd. Having its registered office at Through its Director & Authorized Signatory, 14 Shri Laxman D Kotwani, age about- adult, occupation- business, K. J. Infrastructure Pvt. Ltd. 7, Prospect House, 29 Raghunath Dadaji Street, Fort, Mumbai- 400 001. 2]Mr. Bipin Dungarshi Shah, age about- adult, occupation- business, R/at- Kamalkunj, 5th floor, 1117, Model Colony, Pune-16. 3]State of Maharashtra. ….Opponents. Revision against the order passed below Ex 1 in R. C. C No. 4901/2012 by Judicial Magistrate,F. C. Court No. 9,Pune on 9-5-2013. Appearances:- Shri S. T. Agarwal Advocate for the applicant. Shri P. Narayan Advocate for the opponent No. 1. Shri Datta Koklekar Advocate for the opponent No. 2. Shri. R.P. Raut APP for the State. ORAL JUDGMENT [Delivered on 16-12-2015] 1] Heard Ld. Advocates for both the parties. 15 Perused the complaint, revision and the documents produced by the parties. 2] The revisionist is accused No. 2 in Criminal Case RCC No. 4901/2012. The accused No. 1 is Bipin Shah. Based on the complaint and verification, Ld. JMFC Court No. 9, Pune as per order dt 9-5-2013 has taken cognizance of the offences under sections 403, 405, 406, 415, 418, 420 r.w 34 of the Indian Penal Code against both the accused and process has been issued against them. 3] Briefly stated, the facts leading to taking cognizance of the aforesaid offences against the accused are that the complainant M/s K. J. Infrastructures Pvt. Ltd. is a partner in H. B. KJ and Advance partnership firm wherein the accused No. 1 Bipin Shah and M/s Advance Construction Company Pvt. Ltd. are the other partners. This partnership firm has started development of residential flats under scheme known as 'Hemkunj' and it consists of one building with 13 floor and on each floor there are 4 flats. So there were total 52 flats in this project. 4] The accused No. 1 was looking after entire business and was also having dominion over these properties as he is based in Pune and the directors of 16 the complainant company are residing at Mumbai. 5] The accused Nos. 1 and 2 in furtherance of their common intention have executed false and bogus agreement of sale with a view to deceive the complainant and misappropriated its property as well as committed criminal breach of trust. Though the agreements were registered, but payment was not received by the complainant and agreements were also for much less amount than the market price of the flats. 6] The accused No. 2 has challenged the order passed by Ld. Magistrate under section 202 of the Code of Criminal Procedure mainly on the ground that the order is incorrect, illegal, without application of mind and facts alleged against this accused and therefore, a prayer for quashing and setting aside the order and dismissing the complaint against accused No. 2. 7] In the present revision a short question is to be considered is whether the order passed by Ld. Magistrate taking cognizance of aforesaid offences is sustainable against accused No. 2. 8] So far as powers of this court and law in respect of Section 202 of the Code of Criminal 17 Procedure,Ld. Advocate for the respondent/complainant has brought to the notice of this court judgment of Supreme court in Fiona Shrikhande Vs State of Maharashtra, 2013 ALL SCR 3108 and para 11 of the judgment is self explanatory which is reproduced as below- '11] We are, in this case, concerned only with the question as to whether, on a reading of the complaint, a prima facie case has been made out or not to issue process by the Magistrate. The law as regards issuance of process in criminal cases is well settled. At the complaint stage, the Magistrate is merely concerned with the allegations made out in the complaint and has only to prima facie satisfy whether there are sufficient grounds to proceed against the accused and it is not the province of the Magistrate to inquire into a detailed discussion on the merits or demerits of the case. The scope of enquiry under section 202 is extremely limited in the sense that the Magistrate, at this stage, is expected to examine prima facie the truth or falsehood of the allegations made in the complaint. Magistrate is not expected to embark upon a detailed discussion of the merits or demerits of the case, but only consider the inherent probabilities apparent on the statement made in the complaint. In Nagawwa Vs Veeranna Shivalingappa Konjalgi and 18 others [1976] 3 SCC 736, this court held that once the Magistrate has exercised his discretion in forming an opinion that there is ground for proceeding, it is not for the Higher Courts to substitute its own discretion for that of the Magistrate. The Magistrate has to decide the question purely from the point of view of the complaint without at all adverting to any defence that the accused may have.' 9] So at this stage in this revision this court will have to consider whether the order of Ld. Magistrate was after considering inherent probabilities apparent from the statements made in the complaint. 10] Perusal of complaint in particular para 22, 23, 24, 25 and 28 indicate statements of the complainant explaining how the aforesaid offences have been committed by both the accused. These paragraphs are reproduced with a view to see whether discretionary order of Ld. Magistrate is proper or not. '[22] The complainant says and submits that the complainant came to know that on or about 8-8-2012 the accused No. 1 in furtherance of common intention along with accused No. 2 executed an agreement of sale dt 8-8-2012 which is registered at Sr. No. 7055 of 2012 at Haveli No. 15 and by the said agreement both 19 the accused have shown in the agreement that the partnership firm has agreed to sale a residential unit bearing No. C-112 on 12th floor consisting of 242 sq mtr. of built up area which is inclusive of the area of balconies if any, parking area of 12.50 sq mtr. each in Hemkunj Apartments being constructed on sub plot No. 3, sub plot No. 4/1 and sub-plot No. 4/2 out of sub plot No. 411 carved out of Survey No. 707 A Hissa No. 1+7+8+14+15+16 containing City Survey No. 21 situate at village Munjeri Nisbut known as Mukundnagar area of village Gultekdi of city Pune, Taluka-Pune, District-Pune and within the limits of Pune Municipal Corporation and within the limits of registration district of Sub-Registrar taluka-Haveli to accused No. 2. [23] The complainant says and submits in the said agreement the lump-sum consideration for the flat, terrace and parking area is mentioned as Rs 1,43,27,500/- in the clause No. 1 and 2 of the agreement. It is pertinent to note that nowhere in the said agreement the mode of payment or the stages of payment are mentioned, nor there is a mention of passing of consideration between the parties, thus the whole agreement appears to be a sham transaction executed with an intention to defraud the partnership firm and its partners. [24]The complainant further says and submits 20 that both the accused have purposely not mentioned particulars of payment. The complainant further says and submits that even though as on that date the market price of the flat was Rs 3,82,95,500/- but inspite of that the agreement value has been shown as Rs 1,43,27,500/- . The complainant says and submits both the accused in furtherance of common intention caused wrongful loss to the partnership firm and other partners other than accused No. 1 and accused Nos. 1 and 2 have caused wrongful gain to themselves by entering into such agreement without any consideration having paid to the partnership firm. [25] The complainant says and submits the accused persons had knowledge that accused No. 1 was prohibited from entering into any agreement on behalf of partnership firm and still they executed said agreement with an intention to cause wrongful gain to themselves and wrongful loss to partnership firm and other partners. Accused No. 1 could not have created any sort of interest in the property in favour of the accused No. 2. [28]The complainant says and submits that the accused No. 1 as a partner had a dominion over the immovable property as he was in Pune and all other partners were situated at Mumbai and hence he was looking after the said whole business which amounts to a special agreement between the partners to look after 21 the business by which accused No. 1 had a dominion over the immovable property and consideration received against sale and he has dishonestly misappropriated the proceeds and converted the use of the property to himself and has dishonestly entered into agreement in violation of legal contract entered into between the parties and the accused No. 2 has abetted the accused No. 1 in committing the said crime. The accused No. 1 being a partner of the said partnership firm was acting as an agent of remaining partners as well as partnership and hence has committed a criminal breach of trust in respect of said property its proceeds and accused No. 2 in furtherance of common intention has aided and abetted accused No. 1 in committing such criminal breach of trust by not paying any money in the accounts of partnership firm and entering into under hard dealing with accused No. 1. The said illegal act has been committed by accused with an intention to cause wrongful loss to other partners of the firm and wrongful gain to themselves. ' 11] Perusal of these paragraphs prima facie indicate that there are statements made by the complainant against both the accused and their role and involvement, so also entrustment of the property, misappropriation and cheating. 22 12] As against this, the main thrust of arguments of Ld. Advocate for accused No. 2 was that the accused No. 2 has executed registered agreement of sale and paid the amount to accused No. 1. What was the internal arrangement between the complainant and accused No. 1 cannot be known to the accused No. 2 who is an outsider and in fact for specific performance of the agreement, the accused No. 2 has already filed civil suit and actually it is an attempt on the part of the complainant and accused No. 1 to extract more money from the purchasers. 13] From the arguments of both the parties undisputedly, it comes out that in Hemkunj scheme the complainant and accused No. 1 are the partners, the accused No. 1 having base in Pune was given authority to deal with the purchasers, but then there was some problem about account and as per memorandum of understanding dt 12-5-2012 between the partners, accused No. 1 was prohibited in dealing with the buyers and in financial transactions. The agreement with accused No. 2 is after that date. Further the accused has stated that she is bonafide purchaser and made payment to the partnership firm. However, the payment details submitted by accused No. 2 indicate that as on 10-8-2012 the accused No. 2 has paid amount of Rs 1,43,27,500/- to H.B & Associates, 23 although the registered agreement is between the complainant and signed for and on behalf of accused No. 1 for the complainant. 14] This fact itself indicate that money has not been reached to the account of the complainant company. It has gone to one HB Associates which as submitted across the bar was the firm of accused No. 1. 15] If this fact is considered along with the aforesaid statement made in the complaint then prima facie there are sufficient grounds to issue process against accused Nos. 1 and 2 for the offences of which cognizance has been taken by Ld. Magistrate. As observed by the Apex court in Fiona Shrikhande's judgment [supra] what was necessary for Ld. Magistrate was to prima facie satisfy whether there are sufficient grounds to proceed against the accused and it is not the province of the Magistrate to inquire into a detailed discussion on the merits or demerits of the case. 16] Certainly, when the scope of consideration under section 202 of the Code of Criminal Procedure is limited to see whether there are prima facie sufficient grounds to proceed against the accused then in revision also this court cannot go on sifting material 24 and decide the revision on considering the merits and demerits of the case. Certainly, the order of Ld. Magistrate is not a detailed order. But perusal of the order indicate that Ld. Magistrate has read the complaint, perused verification and documents. Heard Ld. Counsel for the complainant and then took cognizance of the aforesaid offences. Though Ld. Magistrate has not explained by giving brief reasons as to how the aforesaid offences are prima facie made out, but as discussed herein above, this court also cannot come to some other conclusion of taking cognizance of the offence against accused No. 2 than what has been done by Ld. Magistrate. Therefore, I do not find any merit in this revision and hence the following order. ORDER 1] Revision is hereby dismissed. [ P. Y. Ladekar ] Date:- 16-12-2015. Addl. Sessions Judge,Pune. 25 Received on : 11-9-2013 Registered on :11-9-2013 Decided on : 16-12-2015 Duration : Y. M. D. 2 3 5 IN THE SESSIONS COURT PUNE. (Presided over by Shri P. Y. Ladekar, Addl. Sessions Judge, Pune) Criminal Revision Application No. 674/2015 Exhibit No. 1] Mr. Mahendra Champalal Jain, age about- 50 years, occupation- business, R/at- 585/19B, Devi Aangan, Salisbury Park, Near Jain Swetambar Temple, Gultekdi, Pune-37. ....Applicant. Vs. 1] M/s K.J. Infrastructures Pvt. Ltd. Having its registered office at Through its Director & Authorized Signatory, 26 Shri Laxman D Kotwani, age about- adult, occupation- business, K. J. Infrastructure Pvt. Ltd. 7, Prospect House, 29 Raghunath Dadaji Street, Fort, Mumbai- 400 001. 2]Mr. Bipin Dungarshi Shah, age about- adult, occupation- business, R/at- Kamalkunj, 5th floor, 1117, Model Colony, Pune-16. 3]State of Maharashtra. ….Opponents. Revision against the order passed below Ex 1 in R. C. C No. 4898/2012 by Judicial Magistrate,F. C. Court No. 9,Pune on 9-5-2013. Appearances:- Shri S. T. Agarwal Advocate for the applicant. Shri P. Narayan Advocate for the opponent No. 1. Shri Datta Koklekar Advocate for the opponent No. 2. Shri. R.P. Raut APP for the State. ORAL JUDGMENT [Delivered on 16-12-2015] 1] Heard Ld. Advocates for both the parties. 27 Perused the complaint, revision and the documents produced by the parties. 2] The revisionist is accused No. 2 in Criminal Case RCC No. 4898/2012. The accused No. 1 is Bipin Shah. Based on the complaint and verification, Ld. JMFC Court No. 9, Pune as per order dt 9-5-2013 has taken cognizance of the offences under sections 403, 405, 406, 415, 418, 420 r.w 34 of the Indian Penal Code against both the accused and process has been issued against them. 3] Briefly stated, the facts leading to taking cognizance of the aforesaid offences against the accused are that the complainant M/s K. J. Infrastructures Pvt. Ltd. is a partner in H. B. KJ and Advance partnership firm wherein the accused No. 1 Bipin Shah and M/s Advance Construction Company Pvt. Ltd. are the other partners. This partnership firm has started development of residential flats under scheme known as 'Hemkunj' and it consists of one building with 13 floor and on each floor there are 4 flats. So there were total 52 flats in this project. 4] The accused No. 1 was looking after entire business and was also having dominion over these properties as he is based in Pune and the directors of 28 the complainant company are residing at Mumbai. 5] The accused Nos. 1 and 2 in furtherance of their common intention have executed false and bogus agreement of sale with a view to deceive the complainant and misappropriated its property as well as committed criminal breach of trust. Though the agreements were registered, but payment was not received by the complainant and agreements were also for much less amount than the market price of the flats. 6] The accused No. 2 has challenged the order passed by Ld. Magistrate under section 202 of the Code of Criminal Procedure mainly on the ground that the order is incorrect, illegal, without application of mind and facts alleged against this accused and therefore, a prayer for quashing and setting aside the order and dismissing the complaint against accused No. 2. 7] In the present revision a short question is to be considered is whether the order passed by Ld. Magistrate taking cognizance of aforesaid offences is sustainable against accused No. 2. 8] So far as powers of this court and law in respect of Section 202 of the Code of Criminal 29 Procedure,Ld. Advocate for the respondent/complainant has brought to the notice of this court judgment of Supreme court in Fiona Shrikhande Vs State of Maharashtra, 2013 ALL SCR 3108 and para 11 of the judgment is self explanatory which is reproduced as below- '11] We are, in this case, concerned only with the question as to whether, on a reading of the complaint, a prima facie case has been made out or not to issue process by the Magistrate. The law as regards issuance of process in criminal cases is well settled. At the complaint stage, the Magistrate is merely concerned with the allegations made out in the complaint and has only to prima facie satisfy whether there are sufficient grounds to proceed against the accused and it is not the province of the Magistrate to inquire into a detailed discussion on the merits or demerits of the case. The scope of enquiry under section 202 is extremely limited in the sense that the Magistrate, at this stage, is expected to examine prima facie the truth or falsehood of the allegations made in the complaint. Magistrate is not expected to embark upon a detailed discussion of the merits or demerits of the case, but only consider the inherent probabilities apparent on the statement made in the complaint. In Nagawwa Vs Veeranna Shivalingappa Konjalgi and 30 others [1976] 3 SCC 736, this court held that once the Magistrate has exercised his discretion in forming an opinion that there is ground for proceeding, it is not for the Higher Courts to substitute its own discretion for that of the Magistrate. The Magistrate has to decide the question purely from the point of view of the complaint without at all adverting to any defence that the accused may have.' 9] So at this stage in this revision this court will have to consider whether the order of Ld. Magistrate was after considering inherent probabilities apparent from the statements made in the complaint. 10] Perusal of complaint in particular para 22, 23, 24, 25 and 28 indicate statements of the complainant explaining how the aforesaid offences have been committed by both the accused. These paragraphs are reproduced with a view to see whether discretionary order of Ld. Magistrate is proper or not. '[22] The complainant says and submits that the complainant came to know that on or about 9-8-2012 the accused No. 1 in furtherance of common intention along with accused No. 2 executed an agreement of sale dt 9-8-2012 which is registered at Sr. No. 7094 of 2012 at Haveli No. 15 and by the said agreement both 31 the accused have shown in the agreement that the Flat in C-113 on 13th floor consisting of 246 sq mtr. of built up area is inclusive of the areas of balconies if any, parking area of 12.50 sq mtr. in Hemkunj Apartments being constructed on sub plot No. 3, sub plot No. 4/1 and sub-plot No. 4/2 out of sub plot No. 411 carved out of Survey No. 707 A Hissa No. 1+7+8+14+15+16 containing City Survey No. 21 situate at village Munjeri Nisbut known as Mukundnagar area of village Gultekdi of city Pune, Taluka-Pune, District-Pune and within the limits of Pune Municipal Corporation and within the limits of registration district of Sub-Registrar taluka- Haveli to accused No. 2. [23] The complainant says and submits in the said agreement the lump-sum consideration for the flat, terrace and parking area is mentioned as Rs 1,45,64,000/- in the clause No. 1 and 2 of the agreement. It is pertinent to note that nowhere in the said agreement the mode of payment or the stages of payment are mentioned, nor there is a mention of passing of consideration between the parties, thus the whole agreement appears to be a sham transaction executed with an intention to defraud the partnership firm and its partners. [24]The complainant further says and submits that both the accused have purposely have not mentioned any particulars. The complainant further 32 says and submits that even though as on that date the market price of the flat was Rs 4,35,75,000/- but inspite of that the agreement value has been shown as Rs 1,45,64,000/- . The complainant says and submits both the accused in furtherance of common intention caused wrongful loss to the partnership firm and other partners other than accused No. 1 and accused Nos. 1 and 2 have caused wrongful gain to themselves by entering into such agreement without any consideration having paid to the partnership firm. [25] The complainant says and submits the accused persons had knowledge that accused No. 1 was prohibited from entering into any agreement on behalf of partnership firm and still they executed said agreement with an intention to cause wrongful gain to themselves and wrongful loss to partnership firm and other partners. Accused No. 1 could not have created any sort of interest in the property in favour of the accused No. 2. [28]The complainant says and submits that the accused No. 1 as a partner had a dominion over the immovable property as he was in Pune and all other partners were situated at Mumbai and hence he was looking after the said whole business which amounts to a special agreement between the partners to look after the business by which accused No. 1 had a dominion over the immovable property and consideration 33 received against sale and he has dishonestly misappropriated the proceeds and converted the use of the property to himself and has dishonestly entered into agreement in violation of legal contract entered into between the parties and the accused No. 2 has abetted the accused No. 1 in committing the said crime. The accused No. 1 being a partner of the said partnership firm was acting as an agent of remaining partners as well as partnership and hence has committed a criminal breach of trust in respect of said property its proceeds and accused No. 2 in furtherance of common intention has aided and abetted accused No. 1 in committing such criminal breach of trust by not paying any money in the accounts of partnership firm and entering into under hard dealing with accused No. 1. The said illegal act has been committed by accused with an intention to cause wrongful loss to other partners of the firm and wrongful gain to themselves. ' 11] Perusal of these paragraphs prima facie indicate that there are statements made by the complainant against both the accused and their role and involvement, so also entrustment of the property, misappropriation and cheating. 12] As against this, the main thrust of 34 arguments of Ld. Advocate for accused No. 2 was that the accused No. 2 has executed registered agreement of sale and paid the amount to accused No. 1. What was the internal arrangement between the complainant and accused No. 1 cannot be known to the accused No. 2 who is an outsider and in fact for specific performance of the agreement, the accused No. 2 has already filed civil suit and actually it is an attempt on the part of the complainant and accused No. 1 to extract more money from the purchasers. 13] From the arguments of both the parties undisputedly, it comes out that in Hemkunj scheme the complainant and accused No. 1 are the partners, the accused No. 1 having base in Pune was given authority to deal with the purchasers, but then there was some problem about account and as per memorandum of understanding dt 12-5-2012 between the partners, accused No. 1 was prohibited in dealing with the buyers and in financial transactions. The agreement with accused No. 2 is after that date. Further the accused has stated that she is bonafide purchaser and made payment to the partnership firm. However, the payment details submitted by accused No. 2 indicate that as on 11-8-2012 the accused No. 2 has paid amount of Rs 1,45,64,000/- to H.B & Associates, although the registered agreement is between the 35 complainant and signed for and on behalf of accused No. 1 for the complainant. 14] This fact itself indicate that money has not been reached to the account of the complainant company. It has gone to one HB Associates which as submitted across the bar was the firm of accused No. 1. 15] If this fact is considered along with the aforesaid statement made in the complaint then prima facie there are sufficient grounds to issue process against accused Nos. 1 and 2 for the offences of which cognizance has been taken by Ld. Magistrate. As observed by the Apex court in Fiona Shrikhande's judgment [supra] what was necessary for Ld. Magistrate was to prima facie satisfy whether there are sufficient grounds to proceed against the accused and it is not the province of the Magistrate to inquire into a detailed discussion on the merits or demerits of the case. 16] Certainly, when the scope of consideration under section 202 of the Code of Criminal Procedure is limited to see whether there are prima facie sufficient grounds to proceed against the accused then in revision also this court cannot go on sifting material and decide the revision on considering the merits and 36 demerits of the case. Certainly, the order of Ld. Magistrate is not a detailed order. But perusal of the order indicate that Ld. Magistrate has read the complaint, perused verification and documents. Heard Ld. Counsel for the complainant and then took cognizance of the aforesaid offences. Though Ld. Magistrate has not explained by giving brief reasons as to how the aforesaid offences are prima facie made out, but as discussed herein above, this court also cannot come to some other conclusion of taking cognizance of the offence against accused No. 2 than what has been done by Ld. Magistrate. Therefore, I do not find any merit in this revision and hence the following order. ORDER 1] Revision is hereby dismissed. [ P. Y. Ladekar ] Date:- 16-12-2015. Addl. Sessions Judge,Pune. 37 Received on : 11-9-2013 Registered on :11-9-2013 Decided on :16-12-2015 Duration : Y. M. D. 2 3 5 IN THE SESSIONS COURT PUNE. (Presided over by Shri P. Y. Ladekar, Addl. Sessions Judge, Pune) Criminal Revision Application No. 673/2015 Exhibit No. 1] Mrs. Teena Roshan Jain, age about- 37 years, occupation- housewife, R/at- 585/19, Devi Aangan, Salisbury Park, Near Jain Swetambar Temple, Gultekdi, Pune-37. ....Applicant. Vs. 1] M/s K.J. Infrastructures Pvt. Ltd. Having its registered office at Through its Director & Authorized Signatory, 38 Shri Laxman D Kotwani, age about- adult, occupation- business, K. J. Infrastructure Pvt. Ltd. 7, Prospect House, 29 Raghunath Dadaji Street, Fort, Mumbai- 400 001. 2]Mr. Bipin Dungarshi Shah, age about- adult, occupation- business, R/at- Kamalkunj, 5th floor, 1117, Model Colony, Pune-16. 3]State of Maharashtra. ….Opponents. Revision against the order passed below Ex 1 in R. C. C No. 4897/2012 by Judicial Magistrate,F. C. Court No. 9,Pune on 9-5-2013. Appearances:- Shri S. T. Agarwal Advocate for the applicant. Shri P. Narayan Advocate for the opponent No. 1. Shri Datta Koklekar Advocate for the opponent No. 2. Shri. R.P. Raut APP for the State. ORAL JUDGMENT [Delivered on 16-12-2015] 1] Heard Ld. Advocates for both the parties. 39 Perused the complaint, revision and the documents produced by the parties. 2] The revisionist is accused No. 2 in Criminal Case RCC No. 4897/2012. The accused No. 1 is Bipin Shah. Based on the complaint and verification, Ld. JMFC Court No. 9, Pune as per order dt 9-5-2013 has taken cognizance of the offences under sections 403, 405, 406, 415, 418, 420 r.w 34 of the Indian Penal Code against both the accused and process has been issued against them. 3] Briefly stated, the facts leading to taking cognizance of the aforesaid offences against the accused are that the complainant M/s K. J. Infrastructures Pvt. Ltd. is a partner in H. B. KJ and Advance partnership firm wherein the accused No. 1 Bipin Shah and M/s Advance Construction Company Pvt. Ltd. Are the other partners. This partnership firm has started development of residential flats under scheme known as 'Hemkunj' and it consists of one building with 13 floor and on each floor there are 4 flats. So there were total 52 flats in this project. 4] The accused No. 1 was looking after entire business and was also having dominion over these properties as he is based in Pune and the directors of 40 the complainant company are residing at Mumbai. 5] The accused Nos. 1 and 2 in furtherance of their common intention have executed false and bogus agreement of sale with a view to deceive the complainant and misappropriated its property as well as committed criminal breach of trust. Though the agreements were registered, but payment was not received by the complainant and agreements were also for much less amount than the market price of the flats. 6] The accused No. 2 has challenged the order passed by Ld. Magistrate under section 202 of the Code of Criminal Procedure mainly on the ground that the order is incorrect, illegal, without application of mind and facts alleged against this accused and therefore, a prayer for quashing and setting aside the order and dismissing the complaint against accused No. 2. 7] In the present revision a short question is to be considered is whether the order passed by Ld. Magistrate taking cognizance of aforesaid offences is sustainable against accused No. 2. 8] So far as power of this court and law in respect of Section 202 of the Code of Criminal 41 Procedure, Ld. Advocate for the respondent/complainant has brought to the notice of this court judgment of Supreme court in Fiona Shrikhande Vs State of Maharashtra, 2013 ALL SCR 3108 and para 11 of the judgment is self explanatory which is reproduced as below- '11] We are, in this case, concerned only with the question as to whether, on a reading of the complaint, a prima facie case has been made out or not to issue process by the Magistrate. The law as regards issuance of process in criminal cases is well settled. At the complaint stage, the Magistrate is merely concerned with the allegations made out in the complaint and has only to prima facie satisfy whether there are sufficient grounds to proceed against the accused and it is not the province of the Magistrate to inquire into a detailed discussion on the merits or demerits of the case. The scope of enquiry under section 202 is extremely limited in the sense that the Magistrate, at this stage, is expected to examine prima facie the truth or falsehood of the allegations made in the complaint. Magistrate is not expected to embark upon a detailed discussion of the merits or demerits of the case, but only consider the inherent probabilities apparent on the statement made in the complaint. In Nagawwa Vs Veeranna Shivalingappa Konjalgi and 42 others [1976] 3 SCC 736, this court held that once the Magistrate has exercised his discretion in forming an opinion that there is ground for proceeding, it is not for the Higher Courts to substitute its own discretion for that of the Magistrate. The Magistrate has to decide the question purely from the point of view of the complaint without at all adverting to any defence that the accused may have.' 9] So at this stage in this revision this court will have to consider whether the order of Ld. Magistrate was after considering inherent probabilities apparent from the statements made in the complaint. 10] Perusal of complaint in particular para 22, 23, 24, 26, 27 and 30 indicate statements of the complainant explaining how the aforesaid offences have been committed by both the accused. These paragraphs are reproduced with a view to see whether discretionary order of Ld. Magistrate is proper or not. '[22] The complainant says and submits that on or about 10-8-2012 and 18-10-2012 the accused No. 1 in furtherance of common intention along with accused No. 2 executed two agreement of sales dt 10- 8-2012 and 18-10-2012 respectively which are registered at Sr. No. 7137 of 2012 and 9634 of 2012 at 43 Haveli No. 15 respectively and by the said agreements both the accused have shown in the agreements that the partnership firm has agreed to sale a residential unit bearing No. C-111 on 11th floor consisting of 246 sq mtr. of built up area which is inclusive of the area of balconies if any, parking area of 12.50 sq mtr. each in Hemkunj Apartments in the first agreement to sale dt 10-8-2012 and a residential unit bearing No. B-11 in B Wing on 11th floor consisting of 157.93 sq mtr of carpet area and equivalent to 205.31 sq mtr. of gross area with attached terrace of 31.59 sq mtr and 2 parking area of 12.50 sq mtr each in Hemkunj Apartments being constructed on sub plot No. 3, sub plot No. 4/1 and sub-plot No. 4/2 out of sub plot No. 411 carved out of Survey No. 707 A Hissa No. 1+7+8+14+15+16 containing City Survey No. 21 situate at village Munjeri Nisbut known as Mukundnagar area of village Gultekdi of city Pune, Taluka-Pune, District-Pune and within the limits of Pune Municipal Corporation and within the limits of registration district of Sub-Registrar taluka- Haveli to accused No. 2. [23] The complainant says and submits in the first agreement dt 10-8-2012 the lump-sum consideration for the flat, terrace and parking area is mentioned as Rs 1,45,64,000/- and in the clause No. 1 and 2 of the agreement. It is pertinent to note that nowhere in the said agreement the mode of payment 44 or the stages of payment are mentioned, nor there is a mention of passing of consideration between the parties, thus the whole agreement appears to be a sham transaction executed with an intention to defraud the partnership firm and its partners. [24]The complainant says and submits in the second agreement dt 18-10-2012 the lump-sum consideration for the flat, terrace and parking area is mentioned as Rs 2,16,00,000/- and in the clause No. 3 of consideration column to various stages of payment linked to casting of slabs and linked to brickwork plaster finished work and possession has been mentioned. [26]The complainant further says and submits that both the accused have purposely kept all the particulars of payment blank in 2nd agreement and has not mentioned anything in first agreement. The complainant further says and submits that even though as on that date the market price of the flat was Rs 3,94,50,000/- and 4,35,75,000/- but inspite of that the agreement value has been shown as Rs 1,45,64,000/- and 2,16,00,000/- respectively. The complainant says and submits both the accused in furtherance of common intention caused wrongful loss to the partnership firm and other partners other than accused No. 1 and accused Nos. 1 and 2 have caused wrongful gain to themselves by entering into such agreement 45 without any consideration having paid to the partnership firm. [27] The complainant says and submits the accused persons had knowledge that accused No. 1 was prohibited from entering into any agreement on behalf of partnership firm and still they executed said agreement with an intention to cause wrongful gain to themselves and wrongful loss to partnership firm and other partners. Accused No. 1 could not have created any sort of interest in the property in favour of the accused No. 2. [30]The complainant says and submits that the accused No. 1 as a partner had a dominion over the immovable property as he was in Pune and all other partners were situated at Mumbai and hence he was looking after the said whole business which amounts to a special agreement between the partners to look after the business by which accused No. 1 had a dominion over the immovable property and consideration received against sale and he has dishonestly misappropriated the proceeds and converted the use of the property to himself and has dishonestly entered into agreement in violation of legal contract entered into between the parties and the accused No. 2 has abetted the accused No. 1 in committing the said crime. The accused No. 1 being a partner of the said partnership firm was acting as an agent of remaining 46 partners as well as partnership and hence has committed a criminal breach of trust in respect of said property its proceeds and accused No. 2 in furtherance of common intention has aided and abetted accused No. 1 in committing such criminal breach of trust by not paying any money in the accounts of partnership firm and entering into under hard dealing with accused No. 1. The said illegal act has been committed by accused with an intention to cause wrongful loss to other partners of the firm and wrongful gain to themselves. ' 11] Perusal of these paragraphs prima facie indicate that there are statements made by the complainant against both the accused and their role and involvement, so also entrustment of the property, misappropriation and cheating. 12] As against this, the main thrust of arguments of Ld. Advocate for accused No. 2 was that the accused No. 2 has executed registered agreement of sale and paid the amount to accused No. 1. What was the internal arrangement between the complainant and accused No. 1 cannot be known to the accused No. 2 who is an outsider and in fact for specific performance of the agreement, the accused No. 2 has already filed civil suit and actually it is an attempt on 47 the part of the complainant and accused No. 1 to extract more money from the purchasers. 13] From the arguments of both the parties undisputedly, it comes out that in Hemkunj scheme the complainant and accused No. 1 are the partners, the accused No. 1 having base in Pune was given authority to deal with the purchasers, but then there was some problem about account and as per memorandum of understanding dt 12-5-2012 between the partners, accused No. 1 was prohibited in dealing with the buyers and in financial transactions. The agreement with accused No. 2 is after that date. Further the accused has stated that she is bonafide purchaser and made payment to the partnership firm. However, the payment details submitted by accused No. 2 indicate that as on 11-8-2012 the accused No. 2 has paid amount of Rs 1,45,64,000/- to H.B & Associates, although the registered agreement is between the complainant and signed for and on behalf of accused No. 1 for the complainant. 14] This fact itself indicate that money has not been reached to the account of the complainant company . It has gone to one HB Associates which as submitted across the bar was the firm of accused No. 1. 48 15] If this fact is considered along with the aforesaid statement made in the complaint then prima facie there are sufficient grounds to issue process against accused Nos. 1 and 2 for the offences of which cognizance has been taken by Ld. Magistrate. As observed by the Apex court in Fiona Shrikhande's judgment [supra] what was necessary for Ld. Magistrate was to prima facie satisfy whether there are sufficient grounds to proceed against the accused and it is not the province of the Magistrate to inquire into a detailed discussion on the merits or demerits of the case. 16] As per the agreement dt 18-10-2012 the agreed price was Rs 2,16,00,000/- and the time scheduled of payment of that money has been mentioned. But there is no document which supports payment of Rs 2,16,00,000/-. Copy of bank papers as regards payment of Rs 1,45,64,000/- on 11-8-2012 to HB & Associates has been filed by Ld. Advocate for the revisionist. However, that appears to be payment in respect of some other transaction than the flat in question. Therefore, this agreement is without consideration. 17] Certainly when the scope of consideration under section 202 of the Code of Criminal Procedure is 49 limited to see whether there are prima facie sufficient grounds to proceed against the accused then in revision also this court cannot go on sifting material and decide the revision on considering the merits and demerits of the case. Certainly, the order of Ld. Magistrate is not a detailed order. But perusal of the order indicate that Ld. Magistrate has read the complaint, perused verification and documents. Heard Ld. Counsel for the complainant and then took cognizance of the aforesaid offences. Though Ld. Magistrate has not explained by giving brief reasons as to how the aforesaid offences are prima facie made out, but as discussed herein above , this court also cannot come to some other conclusion of taking cognizance of the offence against accused No. 2 than what has been done by Ld. Magistrate. Therefore, I do not find any merit in this revision and hence the following order. ORDER 1] Revision is hereby dismissed. [ P. Y. Ladekar ] Date:- 16-12-2015. Addl. Sessions Judge,Pune. 50 I affirm that the contents of this P. D.F. File judgment are same word for word as per original judgment. Name of Steno Smt. R. S. Urde, Court Name Shri P. Y. Ladekar, Addl. Sessions Judge,Pune. Date 16122015 Judgment signed by Presiding Officer on 16122015 Date of PDF 112016

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Frequently Asked Questions

The Petitioner in case Teena Roshan Jain vs Ms K.J. Infrastructures Pvt Ltd Etc 2 is Teena Roshan Jain.

The Respondent in case Teena Roshan Jain vs Ms K.J. Infrastructures Pvt Ltd Etc 2 is Ms K.J. Infrastructures Pvt Ltd Etc 2 and 2 more.

The case against Ms K.J. Infrastructures Pvt Ltd Etc 2was filed on 11-09-2013 by Teena Roshan Jain.

The status of case Teena Roshan Jain against Ms K.J. Infrastructures Pvt Ltd Etc 2 is Case Disposed.