Interim Order 3

Order Details: Copy of Document.
Pdf Text: 8 C.C.No.440/SS/2019
CW-1 Exh.05
24. Whatever stated by me in my evidence affidavit is true
and correct and in token thereof I have signed the affidavit.
(M. P. Saraf)
Date : 27.10.2025 Judicial Magistrate(First Class),
58th Court, Bandra, Mumbai.
Cross examination of CW-01- Samptalal B. Jain by advocate Ms. Rekha
Jaiswar for the accused :
25. I can read, write and understand English language. I am
studied upto 8th Standard. I again say that I understand English
language a little bit. It is true to say that my demand notice, complaint
and evidence affidavit is written in English language. I was read over
and explained the contents of demand notice, complaint and evidence
affidavit by my advocate in Hindi. It is true to say that my demand
notice, complaint and evidence affidavit it is not specifically mentioned
that I was explained the contents of all above documents in Hindi by
my advocate.
26. At present I am not doing any business. Earlier I was doing
business. In the year 2012-2013 that is at the time of giving token
amount against purchase of flat to the accused, I was doing business of
selling Hardware. I came in acquaintance with the accused through an
agent who approached me. I do not remember the name of said agent.
Even I do not know his address. It is true to say that I have not
mentioned the name of agent in my demand notice, compliant or
evidence affidavit. Witness volunteers that he had not met the accused
through agent and went directly to the accused. Accused belongs to my
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cast. I inquired about him at Parle and came to know about his address
from community members. I came in touch with accused only when I
went to see his flat to purchase in the year 2010. It may be in the year
2011. I do not remember exact year.
27. I submitting Income Tax Returns regularly since last 40
years. I have submitted Income Tax Returns for the year 2012-2013. I
have shown the amount of Rs.40 lakhs given to the accused by cheque
for purchasing flat in my Income Tax Returns. I can produce the
relevant Income Tax Return after consulting my Chartered Accountant.
It is true to say that in verification clause of my affidavit in lieu of
examination in chief, I have not specifically mentioned which of the
contents of my affidavit are out of my personal knowledge and which
contents are based on record particularly parawise. It is true to say that
I do not know what contentions, averments are made in my evidence
affidavit. It is not true to say that I have not filed any civil suit for
recovery of money against accused except present complaint. I have
filed civil suit for recovery before Dindoshi Court. I can not tell at what
stage said suit is pending but some attachment is ordered. The case
number of proceeding before Civil Court is 127. I do not recollect the
year of filing.
28. Now I am shown Demand Notice Exh.27 and its para 17. I
can not read the contents of para 17. I had sent notice through my
advocate to the accused for dishonor of the cheque. Now I am shown
Demand notice sent by Advocate Rahul Karnik produced at Exh.27. It
is the same. Accused has promised me to honor the cheque by asking
me to deposit the same. Amount of Rs.9 lakhs and interest was due and
payable by accused to me since 2012. Except cheque of Rs.40 lakhs
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there is no document of contract in between me and accused.
On oral request of the advocate for the accused cross
examination is deferred till next date.
R.O.A.C.
(M. P. Saraf)
Date : 27.10.2025 Judicial Magistrate(First Class),
58th Court, Bandra, Mumbai.
J.O.Code :MH01362
Date : 29.12.2025
Resumed on S.A.
Further cross examination of CW-01- Samptalal B. Jain by advocate
Ms. Rekha Jaiswar for the accused :
29. There is nothing in written communication by the side of
accused with me regarding averments made by me in paragraph No.6
of my evidence affidavit pertaining to the bank auction and possession
etc. It is not true to say that accused has never given any assurance in
writing to return the amount of Rs.40 lakhs with interest. I have not
filed any receipt in token of giving Rs.40 lakhs from the accused.
However, I have paid said amount by cheque to the accused. It is true
to say that I have not produced any document to show that I gave
Rs.40 lakhs to the accused towards purchase of flat. There was no
discussion as to the making payment with interest. It is not true to say
that there is no transaction at all in between me and complainant.
30. Now I am shown para No.6 of my demand notice Exh.27. I
have not sent any legal notice when accused refused to sell flat. It is not
true to say that I have not sent notice for specific performance as there
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was no such agreed terms in between us. It is true to say that I have
not categorically stated in my notice, complaint and evidence affidavit,
how the amount of Rs.26,42,514/- is derived or calculated. It is true to
say that I have not stated in my complaint and evidence affidavit that
how much amount towards principle is outstanding. It is true to say
that I have not mentioned in my demand notice, complaint and
evidence affidavit that as to how and what rate I have calculated the
interest on principal amount.
31. Now I am shown para No.4 of my evidence affidavit. It is
true to say that I have not got executed Agreement to Sale for
purchasing flat. I again say that I went to see the flat for purchasing in
the year 2012 and not in the year 2010 to assign any reason of giving
token amount after two years in the year 2012. It is not true to say that
it is not mentioned in my demand notice, complaint or evidence
affidavit that subject cheque was issued by accused to me. it might not
be mentioned in my demand notice, complaint, evidence affidavit that
accused filled up the contents of cheque Exh.24 in my presence in his
hand writing. I have not kept present any community member while
giving amount of Rs.40 lakhs to the accused. I have not verified the
flat property before purchasing. I have not obtained in information
from the housing society. I have not inquired with the bank regarding
the flat under auction. I am not aware what business accused is doing
and which place. At the time of transaction accused was doing Jeweler's
business. I do not remember how many cheques I have received from
the accused. Accused was not in possession of the flat when I went to
see the property. I do not possess any more cheques of accused in my
custody.
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32. Now I am shown Acknowledgment Card Exh.28. It is true
to say that address of the accused mentioned in para No.4 of evidence
affidavit and address of accused mentioned on Postal Acknowledgment
card Exh.28 are different. Now I am shown cheque return memo
Exh.25. It is true to say that there is no cheque number or name of the
payee or drawer mentioned on cheque return memo Exh.25. It is not
true to say that I have produced a false and fabricated cheque return
memo Exh.25.
33. Now I am shown notice reply given by accused produced at
Exh.30. I have received the amount mentioned in tabular form in notice
reply given by the accused. I do not remember whether I have received
Rs.34,06,633/- from the accused till upto 31st May, 2017. I can not tell
how much amount I have received from the accused till 31.05.2017. It
is not true to say that accused has no liability to pay any amount to me.
It is not true to say that I have filed false case against the accused.
Cross examination is over.
No Re-examination.
R.O.A.C.
(M. P. Saraf)
Date : 29.12.2025 Judicial Magistrate(First Class),
58th Court, Bandra, Mumbai.
J.O.Code :MH01362
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CERTIFICATE
I affirm that the contents of this P.D.F. file evidence are same, word to word as per the
original evidence.
Name of Stenographer : Mrs. Aditi Ravikiran Dalvi
Court : Judicial Magistrate(First Class), 58th Court, Bandra,
Mumbai.
Dictated in open court on : 29.12.2025
Transcribed and Typed on : 29.12.2025
Order printed and Signed on : 29.12.2025
Order Uploaded on : 29.12.2025
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