The High Court of Bombay quashed a criminal process under Section 420 IPC. The court held that allegations of misleading the complainant about transfer charges and donations did not amount to deception or dishonest intention as required by the statute.
The questioned criminal process and the complaint petition were quashed and set aside.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION NO.249 OF 2013
Mr Nozer Wadia and others ...Applicants
v/s
Mrs Rubina Ramesh Thadani and anr....Respondents
Mr Sandeep Karnik for Applicants.
Mr Sujit Shelar with Mr Mahek Chheda i/b Mr Dhiren
H. Shah for Respondent No.1.
Mr S.S. Pednekar, APP for Respondent No.2.
CORAM : K.U. CHANDIWAL J.
DATED : 18TH JULY 2013.
P.C.:-
1.Heard finally. The accused applicants
(original accused Nos.1, 2, 8 and 9) have
questioned process for offence under section 420
r/w section 34 IPC issued by the learned
Metropolitan Magistrate, 40th Court, Girgaum, Mumbai
dated 25th July 2011, confirmed in criminal revision
application No.913 of 2011 by the learned
Additional Sessions Judge, Greater Mumbai dated 15th
January 2013.
vrd 2 APL249/13
2.The respondent No.1 – original complainant
prosecuted the applicants on the accusation that
she desired transfer of flat which she had
purchased from the company on 27th August 2009, a
deed of transfer was executed in her name and her
son. At the time of transfer of said flat, she
went to the Office of the society to enquire about
the formalities wherein the Estate Manager
(original accused No.8) impressed upon her that the
transfer charges were only Rs.25,000/- but an
additional amount in the form of donation of
Rs.10,50,000/- was necessary to be paid to the
Society if the complainant expected to have the
said flat transferred in the name of herself and
her son in the record of the Society. She asserts,
proforma regarding transfer was filled in and it
was handed over to the complainant by accused
No.8.
3.Alongwith the complaint petition, receipt
audited accounts of the society, copy of notice
dated 18th October 2010, receipt dated 29th November
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2010 were annexed.
4.It is a matter of record, the amount of
Rs.10,50,000/- was released by the complainant by
way of pay order in favour of Housing society. It
has been credited to the account of the Housing
Society. It has not been misused or appropriated
by any of the accused applicant for personal
benefits.
5.For invoking provisions of section 420 of
IPC, law contemplate pre-requisites as mandated in
section 415 of IPC. The complainant, seeking
process has to satisfy at least primarily that
there was a dishonest intention and dishonest
retention of complainant's property i.e. money by
the accused applicants for personal benefits.
Section 415 IPC indicates, 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 induces the person so
deceived to do or omit to do anything which he
vrd 4 APL249/13
would not do or omit if he were not so deceived. A
dishonest concealment of facts is a deception
within the meaning of this section.
6.The canvass tried to be projected
deception, cheating in the complaint petition, is
not in tune with the requirement of statute.
Paragraph 5 of complaint indicates, accused No.8
impressed upon her. In creating an impression and
deception travel in altogether different area. An
affidavit in the format was tendered to the
complainant, if it is correct, there was no force
against the complainant to have agitated for the
same. She could have sought recourse in competent
forum i.e. before the Co-operation Department. Her
decision to release donation was mentally mature
without coersion. It was not that the complainant
was forced under dotted lines to sign affidavit.
She was naturally present before the Notary or
swearing officer while executing the affidavit.
After her affidavit only, formalities of transfer
were completed.
vrd 5 APL249/13
7.Reading complaint petition and accusations
as a whole it does not generate to have caused
cheating to her. The complaint petition and the
process questioned in this application are quashed
and set aside. Application is allowed to the
extent as above.
( K.U. CHANDIWAL J.)
1 issue framed by the court
Whether the impugned criminal process under Section 420 read with Section 34 IPC maintained against the applicants was legally maintainable based on the allegations of illegal donation.
3 provisions across 1 enactments
Mr Nozer Wadia and others
Mrs Rubina Ramesh Thadani
K.U. CHANDIWAL
As recorded by the court registry
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