Final Order 1

Order Details: Order Below EX 1
Pdf Text: C. C. No. 84 SW 2022 Mrs Sunehra Vs State and ors.
CNR MHMM18-004730-2022
ORDER BELOW EXH.1
1. Perused record. Heard Ld. Advocate for the complainant.
2. This is an application under Section 156(3) of Code of Criminal
Procedure, seeking direction against police authorities to register the
offence and investigate the matter. Application is supported by affidavit.
The compliance of Section 154(3) is also done. The offences are of
cognizable nature.
3. The applicant approached this court stating that in the year 2009,
she came in contact with proposed accused Mr. Khalid Vasaiwala, and
agreed to purchase a flat from Accused No.5, company, at Bandra West,
Mumbai, for total consideration of Rs.2.75 cores, having area of proposed
flat admeasuring 1250 sq. ft. and parking area 250 sq. ft. The
memorandum of understanding was also executed and she paid out of
total amount Rs.1 core in the month of July 2009. In the month of January
2010, it is informed to her that proposed Accused No.6, company,
undertook redevelopment work of the property and after their pursuance
applicant paid additional amount of Rs.1.25 cores. The total amount of
Rs.2.25 cores was paid through cheques.
The applicant took follow up for the possession of the flat but till
date neither she received possession of the flat nor the amount was
refunded by the accused persons. In the mean time she came to know that
accused persons suppressed several material facts, as narrated in the
application from her and fraudulently obtained huge amount from her
with intention to defraud.
4. The facts prima facie constitute offences punishable under Sections
120-B, 406 and 420 r/w.34 Indian Penal Code, and Section 3 of
Maharashtra Protection of Interest of Depositors (in Financial
Establishments) Act 1999 and Sections 3 to 8 and 11 and 13 of
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C. C. No. 84 SW 2022 Mrs Sunehra Vs State and ors.
CNR MHMM18-004730-2022
Maharashtra Ownership Flats Act, for short I.P.C., M.P.I.D. and M.O.F.A.,
respectively. She also approached various authorities, but no purpose
served. She also approached Bandra P.S., Mumbai and its senior officers
for registration of offence. But till date no purpose served. Therefore,
applicant approached this court and filed this application.
5. The submissions of the Ld. Advocate are in tune with the contents
of the application/complaint. He also relied on observations made by our
parent Hight Court, in another matter wherein sensitivity has been
expected vide dealing with such complaints besides the judgment of
Supreme Court, in the case of Sudhir Tambe Vs Hemant Dhage and ors.
((2016) 6 SCC 227), and other judgments.
6. From the record it is clear that accused persons obtained huge
amount from the informant since long back and failed to, either handover
the possession of flat or return the amount. The contents of the application
and the documentary evidence it can be inferred that some accused
persons obtained said amount from her with intention to deceive her. The
other technicalities are also complied.
7. Then only question arose whether prayer sought can be granted or
not? It can be said that as all the requirements satisfied, prayer can be
allowed. But there is some legal hindrance in this regard. It is necessary to
bear upon it. The Section 6(2) of the M.P.I.D. Act, provides that,
Section 6(2) -
No court including the court constituted under the Presidency Towns
Insolvency Act, 1909 and the Provincial Insolvency Act, 1920, other than the
Designated Court shall have jurisdiction in respect of any matter to which the
provisions of this Act apply.
Further, the Section 13 of the M.P.I.D. Act, provides that,
(1) The Designated Court may take cognizance of the offence without the
accused being committed to it for trial and, in trying the accused person, shall
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C. C. No. 84 SW 2022 Mrs Sunehra Vs State and ors.
CNR MHMM18-004730-2022
follow the procedure prescribed in the Code of Criminal Procedure, 1973, for
the trial of warrant cases by Magistrates.
(2) The provision of the Code of Criminal Procedure, 1973, shall so far as may
be, apply to the proceedings before a Designated Court and for the purposes of
the said provisions a Designated Court shall be deemed to be a Magistrate.
8. The said gist of the Section 6, is that except Designated Court,
constituted under Section 6(1) of the M.P.I.D. Act, none other court have
jurisdiction in respect of any matter to which the provisions of the said act
apply. Section 13 of the said act further provide procedure and powers of
Designated Court. Section 13(1), provides for cognizance of the offence
and Section 13(2), provides that Code of Criminal Procedure, will apply
in other proceedings before Designated Court. Section 14, provides for
overriding effect of the M.P.I.D. Act, over other law for the time being in
force, etc.
9. The specific query was posed before Ld. Advocate for the
applicant/complainant. On this point he submitted that the application is
for seeking direction to register offence and not seeking taking
cognizance of matter by this court. Cognizance is a later part. The
direction sought is not have an effect of taking cognizance. These
authorities can investigate the matter and file charge sheet before
Designated Court, if any offence punishable under provisions of M.P.I.D.
Act, transpired. In this regard he also relied on judgments of Supreme
Court, wherein the line of distinction is made between taken cognizance
and issuance of directions to register offence.
10. If we go the provisions of M.P.I.D. Act, Section 6(2), specifically
provides that no other court, other than Designated Court, constituted
under said act, shall have jurisdiction in respect of any matter to which
the provisions of the said act apply. The word any matter to which
provisions of this act apply, have no ambiguity. The facts as pleaded are
covered by the said phraseology. If the said provision is read in context
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C. C. No. 84 SW 2022 Mrs Sunehra Vs State and ors.
CNR MHMM18-004730-2022
with Section 13(1) and Section 13(2) of the M.P.I.D. Act, if further
clarifies the position. Had there been any intention of legislature to draw
distinction between the matters before and after taking cognizance, there
should not be provision of Sub-Section 2, of Section 13, wherein it is led
down that Code of Criminal Procedure, will have an application to the
proceedings before Designated Court, and such court shall be deemed to
be Magistrate.
11. Thus, this court has no jurisdiction to entertain and decide the
present application. Both these citations reflecting settled position of law
and are not in aid of the applicant. Therefore, prayer sought can not be
allowed. The application needs to be returned to the applicant for its
presentation to proper court. Accordingly, following order -
ORDER
Application along with all the documents is returned to the
applicant for its presentation to proper court. Photocopy of whole record
and original copy of the main order shall be retained.
MUMBAI (KOMALSING RAJPUT)
DATE – 31.05.2023 M.M., 12TH COURT, BANDRA, MUMBAI
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