JUDGMENT :

1. Rule. Rule made returnable forthwith. By consent, heard finally.

2. Present writ petition has been filed by the original accused for quashing the proceedings against him i.e. Regular Civil Suit No.420 of 2020 pending before the learned Judicial Magistrate First Class, Aurangabad, for the offence punishable under Section 406, 420 of the Indian Penal Code and also for setting aside the order dated 28-07- 2021 regarding issuance of process against the petitioner.

3. Respondent No.1 is the original complainant. The notice issued to respondent No.1 was received by his father and the report says that the complainant had gone out of station and then the father accepted the notice, so also the server was allowed to contact respondent No.1 on mobile and thereby the intimation has been given about the notice. Since the notice has been served on the adult male member of the family of respondent No.1, it is good service. He has not appeared.

4. Heard learned Advocate for the petitioner as well as learned APP for respondent No.2.

5. It has been vehemently submitted on behalf of the petitioner that the complainant has filed the said private complaint Regular Criminal Case No.420 of 2020 before learned Judicial Magistrate First Class, Aurangabad with ulterior motive. Even if we take the contents of the FIR as it is, yet they would give rise at the most to a civil dispute and there is no question of any criminality involved in the same. The complainant has suppressed material facts and it appears that the order of issuance of process came to be passed by the learned Magistrate in absence of those facts which are material. The learned Advocate for the petitioner has taken this Court through the contents of the complaint, agreement of development entered into between complainant and the present petitioner on 20-05-2017, the irrevocable general power of attorney and the sale deeds as well as form No.6 effecting the mutation after the sale transactions in respect of the property. It has been then submitted that in view of Clause No.9 and 14, the owner i.e. the present petitioner had the right to sale Flat No.1 to any third party and accordingly it has been sold by the petitioner. However, as regards Flat No.4 and 10 are concerned, there was a rider. The owner had received security deposit of Rs.60 lakh which was for the part of the performance of the contract, but while mutually understanding the parties agreed that the owner will get Flat No.1, 4 and 10 and then as regards Flats No.4 and 10 are concerned, it was decided that with the consent of the developer, the owner can sell those flats. However, he will have to give amount of Rs.32 lakh and 28 lakh respectively for Flats No.4 and 10 to the developer and then only there will not be any question of repayment of security deposit. However, further Clause No.14 stipulated that owner will have to repay the security deposit of Rs.60 lakh immediately after the completion of the construction and again a rider was given that if the owner fails, then the developer had the right to sell Flat No.4 and 10 to any third party to recover the deposit amount and no consent or NOC would be required from the owner. The occupancy certificate was issued on 07-10-2019, and thereafter, the developer has sold Flat No.4 on 24-06-2021 to one Dr. Vilas Wangikar and Dr. Shailaja Wangikar. Flat No.10 has been sold to one Sham Naik. The sale deed between the developer and Wangikar would show that the consideration amount was Rs.16,10,000/-. This fact has been suppressed by the complainant from the learned Magistrate. When the developer has used his right under Clause No.14 of the development agreement, he could have insisted upon the performance of the contract only as per that agreement and not by way of a complaint. There is no question of any breach of trust or cheating by the petitioner/accused. The order of issuing process against the petitioner is wrong and illegal.

6. Reliance has been placed on the de