Interim Order 1

Order Details: Order Below EX 1
Pdf Text: C. C. No. 105 SW 2021 B.S.R.C. Pvt. Ltd. Vs Sameer & Ors.
CNR - MHMM18-003944-2021
ORDER BELOW EXH.1
1. Perused record. Heard Ld. Advocate of the complainant/applicant.
2. The present complaint/application is filed under Section 156(3) of
Code of Criminal Procedure, seeking direction to register the offence and
investigate the matter through police machinery. It is the case of the
complainant that it is a private company, involved in the business of real
estate. The property i.e. plot bearing C.T.S. No.1319, B/2 Village Varsova,
Juhu Varsova Link Road, Andheri (W), Mumbai, is belonging to
M.H.A.D.A., it is a censused slum, its dwellers formed a society having
237 members. On 31st March 1993, the said society entered into lease
with M.H.A.D.A. and obtained lease. It appointed M/s. Aurora Properties
and Investments, as development of the said property vide agreement
dated 06/10/1996. The Aurora Properties completed part of construction
in pursuance of this agreement. Then later on with consent of society the
agreement for redevelopment was executed between Aurora Properties
and the complainant and agreement for sub-development was executed on
22/09/1999, thereby complainant is appointed as sub-developer. Society
also executed power of attorney in favour of complainant to carry out
various acts and deeds on its behalf. Accordingly, complainant agreed to
construct Slum Rehabilitation Component, free of charge to the society
and Aurora Properties agreed to retain 15000 Sq. Ft. built up area to be
constructed by complainant, complainant further agreed to pay additional
consideration. After deducting rehabilitation component of 237 eligible
members of the society the balance component was available for the
complainant for free sale. Complainant completed the rehabilitation
construction in the S.R.A. Scheme, by constructing two buildings for all
the members of society.
3. Then, in the year 2002-2003, the proposed Accused No.1, Sameer
Bhojwani, representing himself as a builder by profession, approached
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C. C. No. 105 SW 2021 B.S.R.C. Pvt. Ltd. Vs Sameer & Ors.
CNR - MHMM18-003944-2021
complainant and expressed willingness to construct building on free sale
component of the said project. After negotiations and deciding terms the
agreement was executed between complainant and the proposed accused,
Sameer on 10/03/2003, followed by a deed of confirmation on
03/07/2004. Thereby said Sameer, was appointed to carry out the
construction of free sale component. By agreement dated 03/10/2003,
complainant retained possession and right to development of 45% of
available area of free sale component as per F.S.I. and also entire
development. In lieu of constructing the complainant's 45% share accused
has been compensated with 55% share in F.S.I. The proposed accused,
Sameer, was near contractor for construction and as consideration of the
said work utilization of 55% of free sale area was already allowed to him.
All the necessary permissions and approvals were obtained by
complainant for construction on free sale area.
4. The proposed accused, Sameer Bhojwani, despite non performance
of his part informed that the work of construction was completed. He
started delaying the project and obstructing the further work. He refused
to handover physical possession of the flats allotted to the share of
complainant and started making false and frivolous complaints. Though,
he has got limited rights only in respect of construction as contractor, he
applied to S.R.A. for registration of society by forging documents to show
that society is formed and minutes were also recorded. He shown his
family members as office bearers of the proposed society. For registration
of the society various forged documents, such as architect certificate,
various affidavits, Form Z, etc. were prepared and false representation
also made. The said act caused great loss and prejudice to the
complainant. Despite approaching police and other authorities no action
taken. Therefore, complainant prayed for registration of offence as per
Section 156(3) of Code of Criminal Procedure and its investigation.
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C. C. No. 105 SW 2021 B.S.R.C. Pvt. Ltd. Vs Sameer & Ors.
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5. The compliance of Section 154(2) is done. The application is also
supported by affidavit. It means all the technical aspects are complied
with. The alleged offences are cognizable in nature.
6. The record shows that the allegations are purely based on facts
constituting documentary evidence. Mostly those documents are in
custody of public authorities or in custody of complainant. Ld. Advocate
for complainant submitted that direction is necessary as all the forged
documents or there originals needs to be collected through police by way
of ordering investigation. So far as forgery is concerned there arises no
question of seizure of forged documents. Because the burden of proving
the fact that transactions done with the public authorities and the
documents relied there are genuine one is on the accused persons.
Complainant/applicant or prosecution side is not supposed to enter into
that arena either during investigation or trial. In the alternative if any such
a need of any of the documents felt it those can be collected by ordering
investigation as per Section 202 of Code of Criminal Procedure.
7. The another important fact noticed is that the transactions in
question and alleged illegalities are of old nature. It is not explained by
the complainant as to why he approached this Court at such late stage and
not shown promptness in approaching for action as prayed for. The
directions sought for is having serious consequences there requires strong
case. These aspects weakens the case of the complainant to order such
investigation. Complainant failed to make out case for ordering
investigation under Section 156(3) of Code of Criminal Procedure and as
such following order -
ORDER
A. The prayer for issuance of direction under Section 156(3) of Code
of Criminal Procedure, is rejected.
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C. C. No. 105 SW 2021 B.S.R.C. Pvt. Ltd. Vs Sameer & Ors.
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B. Matter is kept for verification of the complainant.
Sd/-
MUMBAI (KOMALSING RAJPUT)
DATE – 08.09.2021 M.M., 12TH COURT, BANDRA, MUMBAI
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