IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

920 CRIMINAL WRIT PETITION NO.380 OF 2022

BABU DADASAHEB GAVHANE

VERSUS

SHAILESH GOPAL DAHAD AND ANOTHER

...

Advocate for Petitioner : Mr. Narwade Narayan B.

APP for Respondent No.2-State : Mr. B. V. Virdhe

...

CORAM : SMT.VIBHA KANKANWADI, J.

DATE : 08-06-2022

ORDER 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

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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

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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

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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