JUDGMENT - A.B. PALKAR, J.:---All these three petitions have been filed by the accused in C.R. No. 44 of 1995 in respect of which Criminal Case No. 69/P of 2000 and Case No. 429 of 1994 of Thane, which have been merged in the aforesaid Case No. 69/P of 2000, pending before the learned Additional Chief Metropolitan Magistrate, 19th Court, Esplanade, Bombay, for quashing of the prosecution.

2. Pyarelal Ramkishore Prajapati is the main accused and was the only accused when complaint was filed on behalf of M/s. Arcade (I) Pvt. Ltd. by one M.G. Ramchandra, who is now joined as a party respondent to the above petitions and would hereinafter be referred to as “respondent” or “complainant” whereas petitioner would be referred to as “petitioner” or “accused” for the sake of convenience.

3. The case of the prosecution in brief is that petitioner entered into an agreement with the respondent on 11-5-1987. On record there is no detailed agreement as is normally found in case of building construction but the booking memo is treated as agreement and there is no dispute between the parties that this was entered into on 11-5-1987. The said document states that this is to confirm and record that they have agreed that Om Shanti Construction Company had agreed to sell and M/s. Aracde (India) Pvt. Ltd. had agreed to purchase office/flat/row house Nos. 9 to 33, 43 and 44 on the ground floor of building A, B C Wings for aggregate price of Rs. 35 lakhs exclusive of all other deposits, registration, legal and stamp charges and costs. The schedule of payment is stated over-leaf and it is not disputed by the accused that Rs. 7 lakhs were paid as booking amount by cheque. A plan showing the situation of these shops was also provided to the respondent. As per this plan certain shops were to be of 258 sq.ft., certain shops were of 285 sq.ft. whereas shops Nos. 43 and 44 were of 1455 sq.ft. Om Shanti Co-operative Housing Society is a registered society whereas Om Shanti Construction company is a partnership firm.

4. According to the respondent, petitioner/accused Pyarelal is the kingpin and has full control over the management of the firm as also the society and the actions on behalf of the firm and the society are taken by the accused in his capacity as an individual as well as in his capacity as the person in-charge of the affairs of the firm.

5. The City and Industrial Development Corporation of Maharashtra (CIDCO for short) is the Planning Authority for the area i.e. New Bombay, and the plot in question having an area of 14255 sq. meter situated at Airoli was leased for residential purpose. Accused No. 1 requested the CIDCO to allot some land for land for commercial purpose which was considered favourably and he was allowed to use 2400 sq. meters of land out of the larger plot for commercial purpose. According to the complainant, the plans show that the entire frontage acquired for commercial development was utilised for accommodating 28 shops as shown on the plan including shop Nos. 43 and 44 and as per the plan, three different wings A, B C were to be constructed. M/s. Relations Real Estate Consultants were the sole selling agents of the accused and a memorandum of understanding which is earlier referred to as agreement was entered into in their presence. The construction work was to be completed on 23-11-1988. Thus the contract was to sell 28 shops for Rs. 35 lakhs. The original contract showed shop No. 34, which was included in the agreement, was deleted surreptitiously by the petitioner feigning afterwards as a typing error in petitioners copy. It is specifically contended in the complaint filed before the Magistrate (C.C. No. 429/94) in July 1994 that the contract was struck with the petitioner for Rs. 35 lakhs and pursuant to that respondent paid a sum of Rs. 7,00,000/-. He had no money and therefore, he had to arrange for finance by borrowing from others. It is also his further allegation that he paid a substantial sum of Rs. 22,12,000/- in cas

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