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IN THE HIGH COURT OF BOMBAY
N. J. Jamadar, J.
Sunil Pandurang Mantri - Appellant
Versus
The State of Maharashtra & Ors. - Respondents
Criminal Writ Petition No.3607 of 2017
Decided On : 10-06-2024
AMENDMENT - Criminal Procedure - Article 226, Article 227, Section 319, Section 482 of CrPC - The court discussed the powers under Section 319 of the Code of Criminal Procedure, emphasizing that it allows the court to summon a person not initially accused if evidence suggests their involvement in the crime. The court highlighted the necessity for a higher degree of satisfaction based on evidence, rather than mere assertions, to justify such a summons. The court ultimately found that the learned Magistrate had erred in summoning the petitioner without sufficient evidence of complicity in the alleged cheating.
Fact of the Case:
The petitioner challenged the legality of an order summoning him as an accused in a cheating case involving the sale of two flats. The first informant alleged that the co-owners of the flats had executed agreements to sell but failed to complete the construction, leading to a series of transactions that ultimately resulted in a forfeiture of payments. The petitioner, as a director of a company involved in the transactions, was implicated based on the first informant's testimony.
Finding of the Court:
The court found that the learned Magistrate had not properly applied the standards required for invoking Section 319 of the CrPC. It concluded that the evidence presented did not sufficiently establish the petitioner's complicity in the alleged cheating, as the first informant had already repudiated the contract and forfeited the payment, negating the claim of deceit.
Issues: Whether the learned Magistrate correctly invoked Section 319 of the CrPC to summon the petitioner as an accused based on the evidence presented during the trial.
Ratio Decidendi: The court reiterated that the power under Section 319 of the CrPC is extraordinary and should be exercised sparingly, requiring a higher standard of evidence than mere prima facie case. The court emphasized that mere failure to perform a promise does not equate to cheating unless there is evidence of dishonest intention from the outset.
Final Decision: The court allowed the petition, quashed the impugned order summoning the petitioner, and directed the learned Magistrate to expedite the trial of the remaining accused.
JUDGMENT
N. J. Jamadar, J. - Leave to amend so as to implead Khimchand Prithviraj Kothari, as party Respondent No.2. Necessary amendment be carried out forthwith.
2. Rule. Rule made returnable forthwith. With the consent of the learned Counsel for the parties, heard finally.
3. This Petition under Article 226 and 227 of the Constitution of India and Section 482 of Code of Criminal Procedure, 1973 (The Code) calls in question the legality, propriety and correctness of an order dated 5 th August 2017, passed by the learned Additional Sessions Judge, Greater Bombay in Criminal Revision Application No. 137 of 2017 whereby the Revision Application came to be dismissed affirming the order passed by the learned Additional Chief Metropolitan Magistrate (A.C.M.M.) 40th Court, Mumbai on 10th August 2016 in C.C. No. 445/PW/2014 summoning the petitioner as an accused in the said case by invoking the powers under Section 319 of the Code.
4. The background facts leading to this petition can be stated in brief as under:
(ii) The first informant alleged that the accused Nos. 2 to 4 had executed transfer forms in favour of, and delivered the share certificates to, the first informant. The accused Nos. 2 to 4, however, did not complete the construction of the said building, as promised. Eventually, the development of the building came to be entrusted to M/s. Mantri Reality Ltd., of which the petitioner is the Director.
(iii) It is alleged that Mantri Reality Ltd. agreed to purchase flat No.12A and 12B for a consideration of Rs.1.85,00,000/-each and a sum of Rs.12,50,000/- was paid to the first informant by way of part consideration for each of the flats. The balance amount was to be paid within 90 days. M/s. Mantri Reality Ltd., however, committed default in payment of the balance consideration and, eventually, the said transactions stood cancelled and the said amount came to be forfeited.
(iv) The first informant alleges, title search was taken in the year 2011. It transpired that Shyamsundar Bhangar (A2) and Uma Bhangar (A4), the co-owners of flat No.12A, had executed a gift deed in favour of Mohanlal Bhangar (A3) on 6th September 2010. On the very day Mohanlal Bhangar (A3) had executed a deed of transfer of the said flat in favour of M/s. Venkatesh Properties Pvt. Ltd., a company registered under the Companies Act, 1956. Likewise, Chandulal Shantilal Bhangar HUF through Satishkumar Bhangar (A1) and Mohanlal Shamsundar Bhangar (A3) executed a deed of transfer in favour of M/s.Venkatesh Development Services Pvt. Ltd. another company registered under the Companies Act, 1956, in respect of flat No.12B.
(v) The first informant thus lodged a report with the allegations that the accused Nos.1 to 4 had executed the instruments despite having agreed to sell flat No.12A and 12B and accepted consideration of Rs.62 lakhs each. Thereupon, First Information Report No.58 of 2012 came be to registered against the accused Nos.1 to 4 for an offence punishable under Section 420 read with Section 34 of the Indian Penal Code, 1860. Post completion of investigation, charge-sheet came to be lodged against the accused Nos.1 to 4 on 7th April 2015. The learned Metropolitan Magistrate framed charge against accused Nos.1 to 4 for an offence punishable under Section 420 read with Section 34 of the Indian Penal Code.
(vi) Evidence of the first informant Khimchand Kothari (PW-1) was recorded. In the said evidence, Khimchand Kothari (PW
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