Final Order 1

Order Details: Order Below EX 1
Pdf Text: COMMON ORDER BELOW EXH.1, IN FOLLOWING MATTERS
1. C. C. No. 276 SW 2017 Leslie Vs John and ors., CNR – MHMM18-014548-2017
2. C. C. No. 2874 SS 2017 Leslie Vs Dr. Selwyn and ors., CNR-MHMM18-014535-2017
3. C. C. No. 92 SW 2019 Leslie Vs Clive D'Souza, CNR-MHMM18-002760-2019
4. C. C. No. 94 SW 2019 Leslie Vs Javed, CNR-MHMM18-002767-2019
5. C. C. No. 95 SW 2019 Leslie Vs Dr. Selwyn and ors., CNR-MHMM18-002770-2019
6. C. C. No. 319 SS 2019 Leslie Vs Jude, CNR-MHMM18-002775-2019
7. C. C. No. 320 SS 2019 Leslie Vs Cornel and ors., CNR-MHMM18-002776-2019
8. C. C. No. 68 SW 2018 Leslie Vs Dr. Selwyn and ors., CNR-MHMM18-004454-2018
9. C. C. No. 266 SW 2019 Leslie Vs Bandra P.S., CNR-MHMM18-008672-2019
10. C. C. No. 193 SW 2021 Leslie Vs Bandra P.S., CNR-MHMM18-007739-2021
11. C. C. No. 182 SS 2022 Leslie Vs Cristene Menezes, CNR-MHMM18-007325-2022
12. C. C. No. 107 SW 2022 Leslie Vs Priyanka, CNR-MHMM18-007329-2022
1. Perused record. Heard complainant-in person, in all the matters.
2. The summary of all the above matters, is that complainant in all
these matters, Mr. Leslie John Almeida and accused persons are residing
in the same building in different flats. They are not on cordial terms. The
complainant felt aggrieved by the various acts of the proposed accused
persons in all these matters. Therefore, he repeatedly approaching to
various authorities including police stations and this court, from time to
time. The above referred matters are some of those incidences.
3. The parties are almost same, the facts are interconnected.
Therefore, for the sake of convenience and for avoiding repetitions, the
present common order is passed, in all the matters under separate heads.
1. C. C. No. 276 SW 2017
4. The present complaint is filed, in respect of offences punishable
under Section 211, 268, 304, 306, 352 and 427 of Indian Penal Code. It is
alleged that accused persons, since year 2010 onwards breeding cats and
kittens in the building compound and terrace. For the said purpose he is
doing various acts as narrated in the complaint. So also these cats and
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kittens causing nuisance to complainant in various ways, more
particularly described in complaint.
5. Ample material, including photographs and complaints lodged to
police and other authorities produced on record, in support of the
allegations. The investigation under Section 202 of Code of Criminal
Procedure, was also ordered after recording verification of the
complainant. The report shows that though some offences not made out
the offence punishable under Section 268 of Indian Penal Code, clearly
made out. From this record and material produced it is clear that prima
facie case for offence punishable under Section 268 of Indian Penal Code,
made out against all the accused persons. Therefore, process needs to be
issued.
2. C. C. No. 2874 SS 2017
6. The present complaint is filed for offences punishable under
Sections 201, 499 r/w. 500 and 120-B of Indian Penal Code, alleging that
accused persons made imputations against complainant by affixing certain
remarks on the notice board of the society and other places.
7. The verification and other material produced supports the version
pleaded by complainant. The report of investigation filed by the
Investigating Officer also shows that accused are responsible for the
defamation of the complainant. Therefore, process needs to be issued.
8. However, after going through the record it is noticed that sufficient
material to proceed further and prosecute the matter against anybody is
available only against Accused No.2. Therefore, process can be issued
only against Accused No.2.
3. C. C. No. 92 SW 2019
9. The present complaint is filed for offences punishable under
Section 385, 387, 420 and 506 of Indian Penal Code, alleging that
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proposed accused attempted extortion, cheated the complainant and
threatened him. It is alleged that proposed accused, an advocate by
profession and on pay role one of the institution, given wrong advice. So
also he sent letter without signature of his client and asked apology and
to pay Rs.5 lacs to his client.
10. Verification and other material produced by complainant is in tune
with the allegations. The report filed by police as per investigation under
Section 202 of Code of Criminal Procedure, shows that there found
nothing against the accused and whatever done by him, is done by him in
his professional capacity. Therefore, no offence transpired.
11. From the contents of the complaint and other material produced on
record, it is clear that the mens rea is totally absent. Whatever done by
proposed accused, even if presumed to be true, it is done in his
professional capacity of lawyer. Same is the finding of investigating
agency. Therefore, no offence made out. Complaint is bound to be
dismissed.
4. C. C. No. 94 SW 2019
12. In this complaint it is alleged that proposed accused promised to
provide some bird cages and two birds to the complainant and accepted
certain amount. But he failed to provide birds, cages or return the amount
taken despite repeated contacts.
13. The verification is in tune with the contents of the complaint.
Findings of the Investigating Officer, are to the same effect.
14. Thus, there is ample material on record to show that accused
obtained money promising birds and cages. But it simply appears to be of
purely transaction of civil nature ensuing civil liability. The element of
intention to defraud is totally missing. No offence made out even if the
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whole material accepted as it is. Therefore, complaint is bound to be
dismissed.
5. C. C. No. 95 SW 2019
15. It is alleged that accused persons shaking hands with the officers of
local authorities caused mental torture and harassment to the complainant.
Proposed Accused No.3, a Public Officer, lodged false report and thus all
of them committed offences punishable under Sections 167, 191, 211, 504
and 506 r/w.34 of Indian Penal Code.
16. The contents of the verification are in tune with the contents of the
complaint.
17. The report of investigation done by police shows that no offence
transpired.
18. The allegations are vague. The cognizance of majority of the
offences are barred by Section 195 of Code of Criminal Procedure.
Further, there is also bar of Section 197 of Code of Criminal Procedure, as
the allegations made against public servants, in respect of an acts done by
them in such capacity.
19. Neither the contents of the complaint enough one to proceed further
nor the allegations are sustainable in law. Complaint is bound to be
dismissed.
6. C. C. No. 319 SS 2019
20. The present complaint is filed for offences punishable under
Sections 499 r/w. 500 of Indian Penal Code, alleging that accused made
imputations against complainant in the report of Annual General Meeting
of Managing Committee of Salsette Catholic C.H.S.L., about his
expulsion as an associate member of the said society, circulated on
20.05.2018. Complainant came to know about it on 14.11.2018.
Complainant alleged that in the booklet, under caption Expulsion of Shri
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Almeida, certain facts were narrated. Those facts are false on the basis of
which expulsion occurred and as the proceedings by way of which said
expulsion is challenged, those proceedings are still pending before
competent authorities.
21. The verification and other material produced are in tune with the
version pleaded by complainant. The report of investigation filed by the
Investigating Officer also shows that accused published said report and
circulated it.
22. After going through said booklet it is noticed that the said booklet
is in respect of publishing minutes of the proceedings of the General
Meeting of the society and resolutions passed in it. The item of expulsion
of complainant is published by committee in pursuance of the publication
of the resolutions. The fact of expulsion is not in dispute. The only
disputed fact is whether the material on the basis of resolution is passed,
is false and whether any defamation is caused. The whole resolution even
if accepted as it is, it fails this test. No prima facie case made out,
therefore, complaint needs to be dismissed.
7. C. C. No. 320 SS 2019
23. The present complaint is filed for offences punishable under
Sections 499 r/w. 500 and 506 of Indian Penal Code, alleging that he filed
private complaint for the same offences in this court. Out of proposed
accused persons, Accused No.2, press reporter working for Accused No.3,
News Paper, approached her and published news item about the said
proceeding. While reporting said proceeding in the news item dated
30.03.2018, the following incorrect/false facts were reported, as -
Gonsalves added: “The criminal case in the Magistrate's court, where only Leslie has been
heard. Nobody from the society has yet been heard under the principles of natural justice. He has a
personal fight with his brother and he is involving Managing Committee members. He is portraying
as if we are being imprisoned, which is rubbish.”
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Gonsalves claimed Almeida was facing a case from his brother. “A warrant was issued in
that case. The Leslie has to pay bail and surety amount. He has been out of bail for six months. A
warrant was issued in this case.” Gonsalves said.
24. The verification and other material produced are in tune with the
version pleaded by complainant. The report of investigation filed by the
Investigating Officer also shows that no offence transpired.
25. After going through the complaint it is noticed that the complainant
have grudge only in respect of the fact that it is mentioned in the report
that he has been released on bail for six months. It is this imputation
which tarnish his image. The police investigation report reflects that there
are several matters pending between complaint and his brother. It is also
noticed that this report is based on, on an information allegedly furnished
by some third person. It is also doubtful whether the fact disputed by the
complainant can be said to be defamation or not? Material on record is
not enough to constitute prima facie case. Complaint is bound to be
dismissed.
8. C. C. No. 68 SW 2018
26. Initially the application under Section 156(3) of Code of Criminal
Procedure, was filed, stating that certain cognizable offences were
committed by accused persons, without quoting any particular offence.
The summary of the allegations is that as per Exh.A, he lodged several
complaints with Bandra Police Station, Mumbai, but no action taken.
27. The prayer was denied and verification of the complainant was
recorded. The summary of the verification statement dated 28.05.2018,
shows that the contents of the present complaint/application, the contents
of the Exh.A and facts stated in the said verification statement are totally
different. Therefore, report of Investigating Officer as per Section 202 of
Code of Criminal Procedure, was called. The said report also reflects that
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there found no any incriminating material against proposed accused
persons and no offence transpired.
28. From the contents of the present complaint/application it is clear
that no allegations made against the accused persons and simply
investigation as per Section 156(3) of Code of Criminal Procedure was
sought to be directed. It also shows that complainant to tried to rely upon
the contents of Exh.A. After going through the said exhibit, it shows that
it is the copy of writ petition filed by proposed accused persons and
present complainant. Allegations are made against complainant himself,
in this petition.
29. Thus, there is absolutely no material on record constituting any
offence. Complaint is bound to be dismissed.
9. C. C. No. 266 SW 2019
30. The present application/complaint is filed under Section 156(3) of
Code of Criminal Procedure, against proposed accused persons who are
office bearers of the housing society, where applicant is residing. The
summary of this application is that on 04.11.2019, complainant lodged
report with Bandra Police Station, Mumbai, against the Managing
Committee Members of Housing Society, having 160 plots, for
commission of cognizable offences. The copy of which is annexed
herewith. Then the statement was recorded in Marathi and sent to Deputy
Registrar, Co-Operative Societies. Complainant recorded his objection
before Registrar, but no action taken, hence he filed this complaint.
31. The allegations are vague. Even if those presumed to be true, no
offence, moreover cognizable offence, transpired. Affidavit is also vague.
The material to proceed further against the accused persons to justify the
facing of trial by them is deficient. Therefore, application is bound to be
dismissed.
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10. C. C. No. 193 SW 2021
32. The present application/complaint is filed under Section 156(3) of
Code of Criminal Procedure, against proposed accused persons, alleging
commission of cognizable offences. The allegations are not pleaded, but it
is mentioned that those are as per Annexture, Exh.A, which reflects that
proposed accused persons contacted the complainant for obtaining his flat
on leave and license. He demanded certain details, but she avoided to do
so. Later on leave and license agreement was executed. But accused had
not paid the security deposit and other payments. Then some trivial
disputes occurred. Therefore, complainant approached police, but no
purpose served. Hence, this complaint.
33. The application supported by affidavit, but there mentioned nothing
in it. No offence transpired. Therefore, application is bound to be
dismissed.
11. C. C. No. 182 SS 2022
34. The present complaint is filed in respect of offences punishable
under Section 385, 405, 500, etc. of Indian Penal Code, against proposed
accused, a Secretary of Housing Society, where complainant is residing. It
is alleged that complainant demanded list of voters of society, but it was
not furnished and instead reply was given to him stating that complainant
leased his flat without prior approval of the society. When complainant
protested this contention certain exchange of communications occurred
and society/accused demanded charges as per rate, Rs.100/- per sq. ft. as
per its bye-laws. Again exchange of communication occurred and
complainant also approached Deputy Registrar of Co-Operative Societies.
35. The allegations are vague. Even if they are presumed to be true,
they are of civil nature. No offence transpired as element of mens rea is
absent. The material to proceed further is not enough. Complaint is bound
to be dismissed.
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12. C. C. No. 107 SW 2022
36. The present complaint is filed alleging commission of various
offences, punishable under various provisions of Indian Penal Code. The
summary of the allegations is that proposed accused persons contacted the
complainant for obtaining his flat on leave and license. He demanded
certain details, but she avoided to do so. Later on leave and license
agreement was executed. But accused had not paid the security deposit
and other payments. Then some trivial disputes occurred. The situation
intensified and again exchange of hot communication took place between
both the parties. Therefore, complainant approached police, but no
purpose served. Hence, this complaint.
37. The application supported by affidavit, but there mentioned nothing
in it. No offence transpired. Therefore, application is bound to be
dismissed.
Conclusion -
38. In view of above discussion it is clear that, except initial two
matters i.e. C. C. No.276 SW 2017, Leslie Vs John and ors. and C. C. No.
2874 SS 2017, Leslie Vs Dr. Selvin and ors., remaining matters are bound
to be dismissed. Therefore, following order -
ORDER
a. In C. C. No. 276 SW 2017 Leslie Vs John and ors., issue process
against all the accused persons for offence punishable under Section 268
of Indian Penal Code.
b. In C. C. No. 2874 SS 2017 Leslie Vs Dr. Selwyn and ors., issue
process against Accused No.2, John Patrick Pereira, for offence
punishable under Section 499 r/w.500 of Indian Penal Code.
c. In C. C. No. 2874 SS 2017 Leslie Vs Dr. Selwyn and ors., is
dismissed against other accused persons.
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d. The following matters are dismissed -
1. C. C. No. 92 SW 2019 Leslie Vs Clive D'Souza, CNR-MHMM18-002760-2019
2. C. C. No. 94 SW 2019 Leslie Vs Javed, CNR-MHMM18-002767-2019
3. C. C. No. 95 SW 2019 Leslie Vs Dr. Selwyn and ors., CNR-MHMM18-002770-2019
4. C. C. No. 319 SS 2019 Leslie Vs Jude, CNR-MHMM18-002775-2019
5. C. C. No. 320 SS 2019 Leslie Vs Cornel and ors., CNR-MHMM18-002776-2019
6. C. C. No. 68 SW 2018 Leslie Vs Dr. Selwyn and ors., CNR-MHMM18-004454-2018
7. C. C. No. 266 SW 2019 Leslie Vs Bandra P.S., CNR-MHMM18-008672-2019
8. C. C. No. 193 SW 2021 Leslie Vs Bandra P.S., CNR-MHMM18-007739-2021
9. C. C. No. 182 SS 2022 Leslie Vs Cristene Menezes, CNR-MHMM18-007325-2022
10. C. C. No. 107 SW 2022 Leslie Vs Priyanka, CNR-MHMM18-007329-2022
e. The main order copy, shall be kept in C. C. No. 276 SW 2017, and
certified copy of this order shall be kept in all the matters.
MUMBAI (KOMALSING RAJPUT)
DATE – 11.07.2023 M.M., 12TH COURT, BANDRA, MUMBAI
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