Allowed

Cyrus G.Mazkoori v. Nagir Bharucha @ Nargis Ganeshprasad Gupta and Anr.

Bombay HC26 Aug 2008WP/402/2004

Case brief

AI extract

What is this about?

In a criminal writ petition against a discharge order in a cheating case, the High Court held that the trial court failed to consider the petitioner's evidence. The writ court quashed the discharge and directed framing of charges against the accused.

What did the court decide?

The impugned order of discharge is quashed and set aside; the trial court is directed to frame charges against the 1st respondent.

Cyrus G.Mazkoori Vs Nagir Bharucha @ Nargis Ganeshprasad… — Cheating and Forgery | Bombay HC (2008)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION

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CRIMINAL WRIT PETITION NO.402 OF 2004

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1.Cyrus G. Mazkoori..Petitioner
 Age : 55 yrs, Occu : service
 R/o.303 Balajidarshan Co-op.
 Housing Society, Fatima Nagar,
 Pune – 411 013

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 V/s.

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1.Mrs.Nargis Bharucha @ Nargis ..Respondents
 Ganeshprasad Gupta & anr.
 Adult, Occu : service
 R/o.Shalom International school
 Opposite Municipal Garden Panchagani,
 Satara – 412 805

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2.The State of Maharashtra

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Mr.Deepak Girme, Advocate, for petitioner
Mr.Y.S.Shinde, A.P.P, for the State

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CORAM : A.S.OKA, J.

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DATE : 26TH AUGUST, 2008

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JUDGMENT

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.The advocate for petitioner states that by
earlier order he has been discharged. He states
that the petitioner has again instructed him to
appear and argue the petition. He states that he
will file appearance within two weeks from today.

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2.The submissions of the learned counsel

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2

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appearing for the petitioner are heard. The 1st
respondent is not present though notice is duly
served.

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3.The petitioner filed a private complaint
alleging commission of offence under Section 420 of
the Indian Penal Code. Process was issued on the
said complaint. Evidence before charge of the
petitioner was recorded by the learned Magistrate.
The learned Magistrate by Order dated 4th March,
2002 discharged the 1st respondent/accused. The
said order has been confirmed in Revision
Application preferred by the petitioner.

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4.The case made out by the petitioner in the
complaint was that he was interested in purchasing
a flat at Panchagani. The 1st respondent/accused
approached the petitioner after she came to know
that the petitioner was intending to purchase a
flat in Panchgani. The 1st respondent/accused
offered her Flat No.11 to the petitioner.
Accordingtothepetitioner,the1st

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respondent/accused represented that her title to

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Flat No.11 was clear. The 1st respondent/accused

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assured that she would hand over the documents of
title within a short time. Accordingly, an
agreement for sale was executed in the year July,
1992 by the 1strespondent/accused and the
petitioner paid a sum of Rs.1,80,000/- to her.
After a legal notice was issued, the 1st

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respondent/accused executed a Sale Deed in respect
of the said flat in favour of the petitioner. As

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the document such as Sanctioned Plan was not

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supplied by the 1strespondent/accused, the
petitioner obtained a certified copy of the
Sanctioned Plan from the Municipal Counsil on 19th
November, 1999. At that time the petitioner
realised that the said flat was not shown on the
sanctioned plan. It is case of the petitioner that
the builder who had constructed the building had
converted basement area into four residential
flats. The Municipal Counsil instead of taking
action in respect of the basement by Order dated 3rd
April, 2000 ordered of demolition of the 2nd floor
in which the said flat No.11 was situated. The
case of the petitioner is that the 1st respondent

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made a false representation to the complainant that
the construction was carried out as per the
sanctioned plan and thereby induced the petitioner
to part with money.

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5.The learned counsel appearing for the
petitioner has taken me through the averments made
in the complaint as well as through the impugned
order. He submitted that the impugned orders have
been passed without considering material averments
in the complaint as well as the evidence of the
petitioner recorded before the charge. He
submitted that the impugned orders are perverse.

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6.It will be necessary to refer to the
averments made in the complaint in paragraphs 6 and
7 thereof. The petitioner has pointed out that
there was no valid permission for construction of
the second floor. Paragraph 8 of the complaint
reads thus :-

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“It is submitted that the accused all along
ever since the transaction was entered into
knew about the alleged irregularity.
However, she made false representation to
the Complainant that the construction was as
per the sanctioned plan, thereby, inducing

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him to part with the money to acquire the
said residential premises/flat.”

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It will be also necessary to refer to examination-

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in-chief of the petitioner. In the examination-in-
chief the petitioner has stated thus :-

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“I have purchased aforesaid plot vide
registered sale deed no.443 dtd.20.7.92,
accused approached me for selling aforesaid
flat and described the flat as mentioned in
Para 1 of my complaint. Accused made false
representation that title of the property is
clear and it is as per the approved building
plan I requested to deliver relevant

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documents but accused promise to deliver them
with in a short period. Relying upon
representation of accused I purchased

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aforesaid flat and parted with consideration
of Rs.1,80,000/- on 21.11.91 accused was in
hurry to go to her native place hence sale
deed was not executed immediately.”

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In the examination-in-chief the petitioner further
stated as under :-

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“I asked Chief Officer Municipal Council
about irregularities of the building instead
of 4 tenaments builder has constructed 12
tenaments illegally. Basement was converted
into the flat. Chief Officer issued order
dtd. 3.4.2000 and regularizing the

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conversion of basement into the ground floor
and treated first floor as second floor and
he further ordered to demolish first floor
of the said building accused was knowing the
irregularities illegalities from the very
beginning. Acused made false representation
that building was as per approved plan and
induced me to part with the consideration
mentioned in the sale deed. I wrote letters

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to accused on several times but she has not
replied them. Hence accused may be
punished as per Law for cheating me. Cross
examination on behalf of accused reserved till
framing of Charges.”

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The 1st respondent did not cross examine the
petitioner and reserved his cross till framing of
charges.

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Section 415 of the Indian Penal Code reads thus :-

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“Whoever, by deceiving any person,
fraudulently or dishonestly induces the person
so deceived to deliver any property to any person,
or to consent that any person shall retain
any property, or intentionally inducesthe
person so deceived to do or omit to do anything
which he would not do or omit if he were not
so deceived, and which act or omission
causes or is likely to cause damage or harm to
that person in body, mind, reputationor
property, is said to “cheat”.

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The specific case of the complainant in the
complaint as well as deposition is that a
representation was made by the 1st respondent that
the flat was constructed as per the sanctioned plan
and the 1st respondent by making the said false
representation induced the petitioner to part with
a sum of Rs.1,80,000/-. A specific assertion has
been made by the petitioner to that effect in the

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complaint as well as in his deposition.

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7.Perusal of the Order passed by the learned
Magistrate shows that he has merely stated that
there was no dishonest or fradulent intention which
can be imported behind act of the 1st respondent
selling the flat. The learned Judge has not
considered what is asserted in paragraph 8 of the
complaint and what is stated on oath by the
petitioner in his evidence. The revisional Court
was impressed by the fact that the complaint was
filed ten years after the petitioner obtained
possession of the flat in question.

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8.Considering the averments made in the
complaint and the evidence of the petitioner
recorded before the charge, this was not a case of
passing order of discharge. The orders of the
below Court show non application of mind.

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9.In the circumstances, petition must succeed

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and I pass the following order.

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(i)The impugned orders are quashed and set
aside.

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(ii) The learned Trial Judge will now proceed to frame charge against the 1^st respondent.

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(iii) It is made clear that the observations made in this Order are only for limited purpose of deciding the legality and validity of the impugned orders and all contentions of the 1^st respondent on merits are expressly kept open.

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(A.S.OKA, J.)

Cyrus G.Mazkoori v. Nagir Bharucha @ Nargis Ganeshprasad Gupta and Anr.

Case brief

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Cyrus G.Mazkoori v. Nagir Bharucha @ Nargis Ganeshprasad Gupta and Anr.

Case brief

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