Allowed

Kumar Urban Development Pvt. Ltd. Formaly Known as Kumar Builders Mumbai Realty Pvt. Ltd., and Ors. v. the State of Maharashtra and Ors.

Bombay HC17 Feb 2022WP/3416/2021

Case brief

AI extract

What is this about?

The High Court of Bombay quashed an FIR alleging cheating and breach of trust regarding a real estate project. The court held that since the property was delivered to the majority of victims, including the petitioner, no fruitful purpose would be served by continuing the proceedings.

What did the court decide?

The FIR and subsequent proceedings were quashed and treated as non-est, subject to the deposit of costs by Petitioner Nos. 2 and 3.

Kumar Urban Development Pvt. Ltd. Formaly Known as Kumar… — Cheating and Forgery | Bombay HC (2022)

¶1

10.WP.3416.2021.doc

¶2

IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION

¶3

WRIT PETITION NO. 3416 OF 2021

¶4

UMESH SHRINIWAS MALANI

¶5

Digitally signed by UMESH SHRINIWAS MALANI Date: 2022.02.21 09:52:16 +0530

¶6

Kumar Urban Development Pvt Ltd
Formerly Known As Kumar Builders
Mumbai Realty Pvt. Ltd., And Ors.

¶7

...Petitioners

¶8

Versus

¶9

The State of Maharashtra & Ors...Respondents

¶10

***

¶11

Dr. Abhinav Chandrachud a/w Mr. Lokesh Zade a/w

¶12

Murlidhar Kumar for Petitioners.

¶13

 Mr. Amit P. Ghag for Respondent No. 2.

¶14

 Mr. J.P. Yagnik, APP, for the Respondent – State.

¶15

***

¶16

 CORAM : PRASANNA B. VARALE &

¶17

 S.P. TAVADE, JJ.
 DATE : FEBRUARY 17, 2022.

¶18

PER COURT :

¶19

1.Heard learned Counsel appearing for respective

¶20

parties.

¶21

2.Learned Counsel for Respondent No. 2 submits

¶22

that on the earlier date the Respondent No. 2 was

¶23

personally present in the Court. Today, as the
Respondent No. 2 is under medical treatment and subject
to surgery as such, he could not remain present before
this Court.

¶24

3.The Counsel for Petitioners submitted that the

Page 1 of 9

Umesh Malani

10.WP.3416.2021.doc

affidavit of Respondent No. 2 is placed on record at
Exhibit ‘C’ page 61. Petitioners are before this Court
for quashing the first information report bearing CR
NO. 225/2017 initially lodged at Vakola Police Station
for commission of offences punishable under Sections
406, 409, 420, 120(B), 34 of IPC as well as 3, 5, 8 and
13 of the Maharashtra Ownership of Flats Act, 1963 and
subsequently the crime was transferred to Economic
Offences Wing for further investigation. On the entry
of EOW on the scene, the crime was re-registered as
Crime No. 50/2017.

¶29

4.The perusal of the complaint dated 11.05.2017
show that the Respondent is the resident of Kalina,
Santacruz area carrying out the transport business
since 10 years. As the Respondent No. 2 was in need of
a bigger accommodation, he was introduced to one estate
agent Shri. Nandu Bhai thorough his brother. Nandu Bhai
in turn provided certain details of the project which
was undertaken by the Petitioners. It may not be
necessary for us to refer to other details suffice it
to say that the Respondent No. 2 expressed his
willingness to purchase flat in the scheme of

Page 2 of 9

Umesh Malani

10.WP.3416.2021.doc

Petitioners. The Respondent No. 2 also paid booking
amount initially and subsequently paid a balance amount
by issuing various cheques. The details of the amount
and cheques are stated in the complaint/report.

¶34

5.The Respondent No. 2 also received an
allotment letter dated 01.09.2011 in joint name of the
Respondent No. 2 and his wife. The Respondent No. 2 was
expecting the delivery of his flat and to his surprise
when he approached the Petitioners he found that there

¶35

was no progress in the project. Initially it was
informed to Respondent No. 2 that certain permissions
are awaited and subsequently the Petitioners and the
representative of the Petitioners even avoided to
respond to calls and queries of Respondent No. 2. It is
further stated that on inquiry the Respondent No. 2
found that apart from him there were other 12 victims
suffers at the hands of the Petitioners. Thus, all
these three similarly circumstances victims approached
the developers and made request to speed up the work

¶36

and delivery flats. In spite of waiting for

¶37

considerable period, when there was no delivery of the
property flats to Respondent No. 2 and other similarly

Page 3 of 9

Umesh Malani

10.WP.3416.2021.doc

circumstances purchasers, the Respondent No. 2 lodged
the report to the police station submitting that the

¶42

Petitioners have accepted an amount of Rs.

¶43

1,59,07,688/- from him and certain amount from other 12
flat purchaser. The total sum amount received by
Petitioner was Rs. 22,00,00,000/- and in spite of
accepting such large sum amount the Petitioners filed
to maintain their terms of delivery of the property
flats. The specialized agency of investigation namely,
EOW considering the large sum amount involved in the
matter and the scope of deceit and breach of trust,
collected material evidence in the form of statement of
witnesses and victims, various documents from
Government offices, deeds of transactions arrived at
between victim and Petitioners and also recorded
statement of authorized architect.

¶44

6.Learned APP made available report submitted to
the office of the Public Prosecutor on 16th February,
2021 through the Senior Police Inspector attached to
Wing 2 (Housing 2). Certain details about the

¶45

investigation carrying out by the economic offences
wing are stated in the report. It is stated that as per

Page 4 of 9

Umesh Malani

10.WP.3416.2021.doc

the material collected by the economic offenes wing,
the Petitioners have received total sum of Rs.
32,00,00,000/-.

¶50

7.The Counsel for Petitioners submitted that
though there was some delay in delivering the property
but during the passage of time Petitioners have taken
necessary steps speedily. Learned Counsel further
submits that as there was delay the Petitioners on
their own gave certain discounts to the flat
purchasers. The Counsel for Petitioners, on
instructions from the Petitioners who are present in
this Court personally, submitted that out of 20 flat
purchasers occupation certificates are delivered to 18
purchasers including the Respondent No. 2 and

¶51

occupation certificate in respect of remaining two flat
purchasers, the Petitioners are taking steps and are
expecting handing over of occupation certificates to
those two purchasers within a short span of three
months from today.

¶52

8. The perusal of documents placed on record under caption affidavit cum undertaking filed at the instance of Respondent No. 2 dated 16^th December, 2019 Umesh Malani Page 5 of 9 of 9

¶53

Page 5 of 9 of 9

¶54

10.WP.3416.2021.doc

¶55

show that the Respondent No. 2 has taken possession of

¶56

its bearing A-901. It is stated in the said document
that the building and project Kul Court has been duly
completed by the developer under the provisions of
Bombay High Court appointed Court receiver and
developer had obtained occupation certificate. The said
documents concluded with the statement of Respondent
No. 2 and same reads thus:

¶57

6.I hereby unconditionally withdraw
my complaint no. 225 of 2017 forming the
basis of FIR no. 50/2017.

¶58

9.Our attention was also invited to the

¶59

compilation placed on record under caption additional
affidavit of the Petitioners. It is stated in the said
affidavit in paragraph 3 that the Petitioners have sold
22 flats to various flat purchasers. One of the said

¶60

flat purchasers is the first informant/Respondent No. 2
in the present petition who is already tendered his
consent affidavit to this Hon’ble Court. Apart from
Respondent No. 2, six other flat purchasers have been
listed as witnesses in the subject Chargesheet.
However, the said six flat purchasers have issued

¶61

letters in favour of the Petitioners communicating

Page 6 of 9

Umesh Malani

10.WP.3416.2021.doc

their consent for quashing the proceedings pending
before the Ld. 47th Metropolitan Magistrate Court at
Esplnanade, Mumbai being C.C. No. 868/PW/2019 and the
charge sheet submitted in the Court. The copy of the
affidavits filed on behalf of Smt. Veena Wadkar dated
19.07.2021, Vinod Agrahari dated 25th June, 2021, Mrs.
Smita Kapoor dated 25th June, 2021, Ram Khetan dated 25th
June, 2021, are annexed to the said affidavit in reply.

¶66

10.Petitioners submits that the statement that

¶67

the occupation certificate in respect of two flat
purchasers would be handed over to them within three
months to be accepted as an undertaking to this Court.
Accordingly, the said statement is accepted as an
undertaking to this Court.

¶68

11.In view of the above referred facts, the

¶69

Counsel for Petitioners submit that the grievance of
Respondent No. 2 no more survives and he is having no
objection for quashing of the FIR.

¶70

12.Learned APP submitted that though he cannot
make any comments on the affidavit as it refers to the

¶71

will of the parties but fact remains that the

Page 7 of 9

Umesh Malani

10.WP.3416.2021.doc

Petitioners have collected large sum amount by giving
an assurance to deliver property flats and though as
per the terms between the parties themselves, the
Petitioners ought to have delivered the possession of
the property to the purchasers within stipulated
period. The Petitioners initially denied to maintain
their promise and subsequently, after long time
completed the promise.

¶76

13.There is some merit in the submissions of

¶77

learned APP but the fact of the matter is, the
Respondent and as many as 15 other flat owners have
received the OC and the property is delivered to them
and the affidavits of those flat purchasers are filed
in this Court, in our opinion, no fruitful purpose
would be served by continuing the subject FIR and
subsequent proceedings.

¶78

14.In the light of the principles laid down by
the Apex Court in the case ofNarinder Singh vs. State
of Punjab [2014 AIR SCW 2065],we are of the considered
view that there is no impediment in quashing the FIR in
question and subsequent proceedings arising out of said
FIR.

Page 8 of 9

Umesh Malani

10.WP.3416.2021.doc

15.Accordingly, Writ Petition is allowed in

¶83

terms of prayer clause ‘a’.

¶84

16.However, we also find it would be appropriate
to saddle the Petitioner Nos. 2 and 3 each with the
cost of Rs. 2,50,000/- (Rs. Two Lacs fifty thousand
only), which shall be paid to “National Association for
the Blind, India”. The details of the said association
are given as under:

¶85

Name: National Association for the Blind,

¶86

 India.

¶87

Bank: Punjab National Bank.
A/c No. 3740000100008551.

¶88

IFSC Code: PUNB0374000.

¶89

17.For the quashment to take effect, the

¶90

Petitioner nos. 2 and 3 shall pay the said cost and
produce the receipt thereof on the file of this Court
within the period of six weeks from today. Failing to
pay cost and produce receipt within stipulated time,
petition shall stand dismissed automaticallywithout
further reference to the Court and order quashing the
proceedings / FIR shall be treated as non-est.

¶91

(S.P. TAVADE, J.) (PRASANNA B. VARALE, J.)

¶92

Page 9 of 9

¶93

Umesh Malani

Kumar Urban Development Pvt. Ltd. Formaly Known as Kumar Builders Mumbai Realty Pvt. Ltd., and Ors. v. the State of Maharashtra and Ors.

Case brief

What is this about?

What did the court decide?

Kumar Urban Development Pvt. Ltd. Formaly Known as Kumar Builders Mumbai Realty Pvt. Ltd., and Ors. v. the State of Maharashtra and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Pranav Ashok Thaker and Anr. Vs State of Maharashtra and Anr.

Douglas Saldanha and Anr. Vs the State of Maharashtra and Ors.

Riaz Asgar Patel Vs the State of Maharashtra and Ors.

Sayyed Sabir Usman Vs the State of Maharashtra

Sharad Waman Desale and Ors. Vs the State of Maharashtra and Anr.

Ishtiyak Adalat Shah and Ors. Vs the State of Maharashtra and Anr.