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2025 Supreme(Online)(Bom) 6611
BOMBAY HIGH COURT
N. J. JAMADAR, J
Sushila Suresh Malge – Appellant
Versus
State of Maharashtra – Respondent
Anticipatory Bail Application No. 3218 of 2023
For the Appellants/Petitioners: Mr. Munir Merchant, Jenisha Gala, Sanjay Chaturvedi Associates
For the Respondents: Mr. A. S. Shalgaonkar, APP, Mr. Mandar Soman, Mr. Bharat Manghani, Ms. Rashmi Joshi, Mehul Thakker, Pooja Bandgar, Shaista Syed, Bhandary & Bhandary
The court held that distinct instances of deceit in property sales elevated civil disputes to potential criminal liability, thereby justifying denial of anticipatory bail.
Headnote:(A) Penal Code, 1860 - Section 420 - Anticipatory Bail - Application filed by applicant in connection with alleged cheating involving the sale of flats to multiple purchasers - The court found that the applicant, while being the Proprietress of the builder, had engaged in fraudulent activity by selling the same property to various buyers without disclosing prior commitments. The statement reveals a pattern of malfeasance, requiring further investigation into the applicant's conduct. (Paras 2, 23, 25)
(B) Criminal Acts - The distinction between civil breach of contract and criminal cheating was underscored, affirming that deceit and fraudulent intent must be demonstrated for criminal liability to apply. Here, multiple victims were involved, thus elevating the necessity for custodial investigation. (Paras 23, 25)
Facts of the case:
The applicants sought pre-arrest bail related to fraud allegations by multiple purchasers, who claimed the same flats were sold to them without disclosure of prior transactions. The court chronicled the sale history and communications between parties (Paras 4, 10, 20).
Findings of Court:
The court concluded that ample evidence indicated fraudulent conduct justifying denial of anticipatory bail pending investigation (Pages 25, 26).
Issues: The central issues revolved around the deceitful selling of properties to multiple buyers, the legitimacy of the prior buyers' claims and the applicability of criminal charges versus civil remedies.
Ratio Decidendi: The court ruled that the applicant's actions constituted potential criminal conduct, warranting denial of bail to ensure comprehensive investigation into the fraudulent schemes (Paras 23, 25).
Result: Application stands rejected.
| Table of Content |
|---|
| 1. overview of application proceedings and initial findings. (Para 1 , 3 , 8) |
| 2. bail application examined in light of fraud and deceit in property sales. (Para 2) |
| 3. multiple buyers allege deception in property sales. (Para 4 , 10) |
| 4. defense claims civil nature of dispute without criminal intent. (Para 9 , 13) |
| 5. distinction between civil breaches and criminal deceit established. (Para 23 , 25) |
CORAM: N. J. JAMADAR, J.
DATED: 27th JANUARY, 2025 ORDER:-
1. Heard the learned Counsel for the applicant, the learned Counsel for the intervener and the learned APP for the State.
2. This is an application for pre-arrest bail in connection with CR No.155 of 2023, registered with Rabale Police Station, Navi MUmbai, for an offence punishable under Section 420 read with Section 34 of Indian Penal Code , 1860 (“the Penal Code”).
3. Jaspalsingh Malhotra, the first informant’s husband, had booked a flat in a Project Green World, Digha Airoli, Navi Mumbai, being Flat No.A2/1903. The said project was developed by M/s. Mount Mary Builders, of which the applicant Sushila Suresh Malge is the Proprietress. India Bulls Distribution Services Pvt. Ltd. was appointed as a marketing agent. An allotment letter was issued to Jaspalsingh Malhotra, on 3rd September, 2016 incorporating the terms of the contract.
4. Jaspalsingh passed away on 3rd November, 2020. As the daughter of the first informant received an e-mail on the account of the deceased, the first informant learnt that the deceased had booked the flat and paid Rs.1,00,11,000/-
towards consideration. The first informant alleged the first informant and her daughter approached the applicant and offered to pay the balance consideration, if any. The applicant and her husband Suresh Malge (A1), did not execute the instrument on one or the other pretext and, eventually, it transpired that the applicant had sold the said Flat No.A2/1903 for a consideration of Rs.1,13,00,000/- to a third party. Hence, report was lodged against the applicant and her husband Suresh Malge (A1).
5. The learned Additional Sessions Judge rejected the application for pre-arrest bail. However, the interim protection, initially granted, was continued.
6. On 9th January, 2023, when the application was listed before this Court, the said interim protection came to be continued, while directing the applicant to implead the first informant as a party respondent who had appeared on that day.
7. In the intervening period, Suresh Malge (A1) passed away. The application thus survives qua Sushila Malge (A2). The parties explored possibility of a mediated settlement of the dispute. As the negotiations did not materialize, the application was heard.
8. It would be contextually relevant to note that the applicant in IA/5368/2024 and IA/162/2025 are the persons, who had also purchased the flats in very same project and it, later on, transpired that the said flats were again sold to the third parties.
9. Mr. Munir Merchant, the learned Counsel for the applicant, submitted that the entire business operations were looked after and managed by Suresh Malge (A1). The applicant was the Proprietress of M/s. Mount Mary Builders for the namesake. Neither the applicant had made the inducement nor the applicant was instrumental in the alleged subsequent sale, during the substance of the earlier contract for sale.
10. Mr. Merchant further submitted that, at any rate, the dispute is purely of civil nature. The first informant had already approached Maharashtra Real Estate Regulatory Authority (MahaRERA) and orders have been passed by MahaRERA directing the applicant to refund the entire amount paid by the first informant towards the consideration, alongwith interest.
11. Mr. Merchant further submitted that the documents on record would clearly indicate that there was no dishonest intention on the part of the applicant. In fact, the first informant was given opportunity to pay the balance consideration and get the instrument executed. Attention of the Co
