Final Order 1

Order Details: Order Below EX 1
Pdf Text: C. C. No. 155 SW 2022 Ms Ultra Spaces Vs Praful and ors.
CNR No.MHMM18-012430-2022
ORDER BELOW EXH.1
1. Perused record. Heard Ld. Advocate for the applicant/complainant.
2. This is an application filed under Section 156(3) of Code of
Criminal Procedure, seeking direction to register the offence against the
respondents and carry out investigation in the alleged acts.
3. The application is supported by affidavit. Compliance of Section
154(2) done. Offences are cognizable in nature. Thus, the basic
requirements are satisfied.
4. It is the case of the applicant that complainant is company, on
08.08.2019, its predecessor company named as M/s. Satra Buildcon,
entered into compromise with another company named as M/s. Satra
Properties (India) Limited, in a suit pending before Bombay High Court,
bearing Commercial Suit No.859/2019 and Commercial Notice of Motion
No.1492/2019. Proposed accused persons/Respondent Nos.1 and 2, are its
directors. As per the said compromise, parties agreed to consent terms,
annexed herewith in respect of property known as 81 Aureate (formerly
known as LE-88), situated at C.T.S. No.791A, (P.T.), Jamat E Jamooria
C.H.S. Limited, near Telephone Exchange, Bandra West, Mumbai.
As per consent terms and order passed by High Court, 51% of the
share of Satra Properties, and its subsidiary M/s. Satra Buildcon Pvt. Ltd.,
came to be transferred in the name of M/s. M. J. Shah Group and thus, it
became 100% shareholder of M/s. Satra Buildcon Pvt. Ltd., which is now
known as Ultra Life Spaces Pvt. Ltd., i.e. applicant company.
As per consent terms the directors of M/s. Satra Group, handed
over all the documents related to M/s. Satra Buildcon, to M/s. M. J. Shah
Group, on 08.08.2019, as per list prepared and handed over by
respondents and other directors. Thus, complainant became entitled to
have to hold the project known as LE-88, now 81 Aureate.
1/6
-- 1 of 6 --
C. C. No. 155 SW 2022 Ms Ultra Spaces Vs Praful and ors.
CNR No.MHMM18-012430-2022
In view of this settlement the complainant called upon all the flat
purchasers and investors, which included Respondent Nos.3 to 5, in
respect of Flat Nos.1701, 1702 and 1704, as they had agreed to purchase
these flats. As per said agreements these respondents had paid only 10%
of the consideration value and remaining 90% was due along with interest
accruing thereon and payable to complainant/applicant company.
The respondents called upon to pay the outstanding along with
interest. But they neither paid balance nor replied to demands and
reminders of the said notices. On 22.01.2020, final reminder was sent, but
these respondents not replied. Hence, complainant sent a termination
letter on 13.03.2020, in respect of agreement to sell for non-payment of
dues and arrears.
On receiving said termination notice these respondents sent reply
dated 13.03.2020, and denied the payment of balance amount and stated
that they are liable to make balance payment only after expiry of six
months from the date of issuance of Occupation Certificate by
B.M.C./S.R.A., in respect of the said building. In support of it he relied on
two letters allegedly executed by Respondent Nos.1 and 2, the erstwhile
directors of M/s. Satra Buildcon.
Applicant contended that these two letters, are creation of after
thought, per-mediated malicious, forged and fabricated. These letters do
not find in consent terms and are prepared with ulterior motive to cause
loss to the applicant. The letters are signed by Respondent No.6, Mrs.
Anushree Malekar, who was not concerned with M/s. Satra Buildcon, at
relevant time. They are prepared with intention to defraud the applicant.
5. It is contended that the act of the accused persons caused serious
loss and hardship to the applicant, in crores of rupees. Therefore, they
approached Bandra Police Station, Mumbai, and lodged complaint. But
without doing proper inquiry it is informed that the matter is of civil
2/6
-- 2 of 6 --
C. C. No. 155 SW 2022 Ms Ultra Spaces Vs Praful and ors.
CNR No.MHMM18-012430-2022
nature and no action can be taken. The conduct is illegal. The thorough
investigation through police machinery is necessary as custodial
interrogation of the accused persons is necessary.
6. During arguments Ld. Advocate for the applicant made
submissions in tune with contents of the applicant. He submitted that
allegations are serious and constituting cognizable offence. The proposed
loss caused to be applicant are in crores. The record clearly reflects that
the documents relied are forged and with intention to defraud the
applicant. Regarding need of investigation through police, he submitted
that besides seizure of those documents custodial interrogation is
necessary for collection of other evidence relating to them as the alleged
forgery is premeditated and all the evidence can not be collected by court.
He also relied on judgments of Supreme Court, passed in Mohd. Yusuf Vs.
Smt. Asfaq Jahan (AIR 2006 SC 705), Lalita Kumari Vs. Government of U.P. (2013
All M.R. (Criminal) 4444 SC), Sureshchand Jain Vs. State of M.P. (2001 DGLS 38),
etc.
7. Admittedly, as observed above the application is supported by
affidavit. Compliance of Section 154(2) of Code of Criminal Procedure, is
also done. Offences are cognizable in nature. Thus, the basic requirements
are satisfied.
8. The summary of the allegations is that proposed Respondent Nos.1
and 2, entered into settlement with the complainant/applicant. By way of
this settlement the applicant company became 100% stakeholders of the
company owned by them. Out of its property, three flats were agreed to be
purchased by Respondent Nos.3 to 5. In pursuance of settlement applicant
called upon these persons for payment of remaining amount and other
dues. They evaded payment. Applicant terminated the agreement. On that
these respondents claimed certain concessions in payment on the basis of
3/6
-- 3 of 6 --
C. C. No. 155 SW 2022 Ms Ultra Spaces Vs Praful and ors.
CNR No.MHMM18-012430-2022
forged documents i.e. three letters allegedly issued by previous owners
i.e. Respondent Nos.1 and 2, and signed by Respondent No.6. It is
claimed that those letters were forged with intention to defraud the
applicant.
9. All these contents are supported by documentary evidence. The
copy of consent terms and order of High Court, shows that there occurred
settlement between the parties and applicant held the 100% stake in the
properties owned by respondents. These properties include the Flat
Nos.1701, 1702 and 1704, agreed to be purchased by the Respondent
Nos.3 to 5, and remaining rights including receiving payment were also
transferred to the applicant company. It clearly reflects that there is no
mention of any concession to the Respondent Nos.3 to 5. There is no
mention of any letters executed in favour of these respondents by the
Respondent Nos.1 and 2. Thus, it can be said at the relevant time there
existed no such letters.
10. Further, from the record the conduct of the respondents reflect that
they remained silent about existence of any such letters for considerable
time despite repeatedly called upon by the applicant to settle the dues.
Those disputed letters suddenly came to fore after termination letter
issued by the applicant. These aspects also support the applicant's case.
11. The letters are signed by Respondent No.6. As submitted and
transpired from the record, at relevant time she was not in any way
associated with the company of the Respondent Nos.1 and 2, on whose
behalf the letters are issued. The terms and conditions mentioned in the
application are also somewhat unconscionable. By way of the terms
mentioned in these letters respondents had paid only 10% of the total
amount of consideration and they were given concession to pay remaining
90% after receiving of occupation certificate by local authority. These
4/6
-- 4 of 6 --
C. C. No. 155 SW 2022 Ms Ultra Spaces Vs Praful and ors.
CNR No.MHMM18-012430-2022
conditions are against the settled practice. The value of the flats is very
high and time span elapsed in between is also quite long. Such an
agreement is not appealing to the prudence. All these aspects also create
doubt about the genuineness of those three letters.
12. Then if we go to the aspect whether investigation as sought for is
necessary or not? As stated above, all the basic legal requirements are
satisfied. The stake involved is very high. It is also submitted that seizure
of original letters for ascertaining their genuineness and interrogation in
that regard about the circumstances leading to preparation of those letters
is necessary, which acts are not possible before court. There is substance
in it.
13. The citations particularly, directions given by Supreme Court, in
the case of Lalita Kumari Vs. State of U.P. ((All MR) 4444 SC), are squarely
applicable to the present matter as basic legal requirements are satisfied,
besides other case laws. On this count also, there remains no scope to
follow other way and investigation as sought for appears mandatory as
there is enough material to proceed against accused persons.
14. Lastly, it is also necessary to take into consideration the fact that
the settlement was entered before High Court. From the allegations it
appears that the disputed terms pertaining to payment of flat prices had
been concealed from court during that settlement, indirectly it can be said
respondents attempted fraud on the court. This aspect also deserves
consideration and it can be said that thorough investigation necessary,
which is possible only through police machinery.
15. Considering the nature of the allegations, stake involved in it and
possibility of widening of ambit of investigation and the above
observations I am of the opinion that it is necessary to issue directions as
prayed for. Therefore, following order- 5/6
-- 5 of 6 --
C. C. No. 155 SW 2022 Ms Ultra Spaces Vs Praful and ors.
CNR No.MHMM18-012430-2022
ORDER
A. Application is allowed.
B. The P.S.O. Bandra, Mumbai, is herewith directed to register the
offence under Sections 406, 420, 465, 467 and 471 r/w. 34 of Indian Penal
Code, and investigate the matter as per Section 156(3) of Code of
Criminal Procedure.
C. The certified copy of the application Exh.1 along with all the
documents produced shall be sent to concerned police station.
D. Application is disposed off.
MUMBAI (KOMALSING RAJPUT)
DATE – 23.12.2022 M.M., 12TH COURT, BANDRA, MUMBAI
6/6
-- 6 of 6 --