Interim Order 1

Order Details: Order below Ex-1
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IN THE COURT OF JUDICIAL MAGISTRATE FIRST CLASS,
44TH COURT, ANDHERI, MUMBAI.
C.C.No.67/SW/2018
Kiran Shankar Sagarkar …. Complainant
V/s.
Uttam Jhavar and Ors. ….Accused
ORDER BELOW EXH.NO.1
(Passed on 10/10/2025)
The complainant filed the complaint case inter-alia alleging
that the accused persons entered into an agreement to sell the flat in
the proposed building. But thereafter, the complainant came to know
that the accused persons did not pay the due tax amount raised by the
M.C.G.M. and thus, according to the complainant the accused persons
collected the amount from the unit owners of the society and did not
clear the outstanding bill. Hence, it is alleged that the accused no.1 to 5
in collusion with their common intention cheated the complainant and
the other unit owners of the society for wrongful gain and they
committed criminal breach of trust. Therefore, the complainant filed
the complaint against the accused persons for taking cognizance of the
offence punishable under section 406, 420, 120 (B) r/w 34 of Indian
Penal Code.
2. In view of this complaint case, the learned Predecessor
called the report of the Police Station Amboli under section 202 of the
Code of Criminal Procedure. The report was filed on 23/12/2020.
According to the report, the dispute mentioned in this case is civil
dispute.
3. Having perused the report and the case papers, it appears
that there is dispute regarding the payment of the tax amount. The
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report shows that the complainant and the other unit owners of the said
society had deposited the maintenance and tax amount with the
accused persons who have direct nexus with the subject matter of this
case. Thus, I find substance in this case.
4. This case was filed in the year of 2018. The report under
section 202 of the Code of Criminal Procedure came to be filed on
23/12/2020. The matter was heard on 26/08/2025.
5. The present case on hand came to be filed on 14/02/2018
wherein the complainant alleged that the accused persons committed
the offence punishable under section 420, 406, 120 (B) r/w 34 of
Indian Penal Code. In the case of Sikandar Singh Vs ED reported in
2025 Live Law (PH) 318 the Hon’ble Punjab and Haryana High Court
held that Section 223 of the Bharatiya Nagarik Suraksha Sanhita which
gives right of hearing to accused before cognizance, can apply to
complaint filed before July 01, 2024.
6. Since this complaint is made under chapter XVI of the
Bharatiya Nagarik Suraksha Sanhita, it is necessary to give the accused
an opportunity of being heard as per the provision of Section 223 of the
Bharatiya Nagarik Suraksha Sanhita.
7. In the case of Sri Basanagauda R. Patil (Yatnal) Vs Sri
Shivananda S. Patil (Criminal Petition No.7526 of 2024 decided on
27/09/2024) the Hon'ble Karnataka High Court observed that
“A complaint is presented before the Magistrate under section 223 of
the Bharatiya Nagarik Suraksha Sanhita; on presentation of the
complaint, it would be a duty of the Magistrate, concerned Court to
examine the complainant on oath, which would be his sworn statement
and examine the witness present if any, and the substance of such
examination should be reduced into writing. The question of taking of
cognizance would not arise at this juncture. The Magistrate has to, in
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terms of the proviso, issue a notice to the accused who is given an
opportunity of being heard. Therefore, notice shall be issued to the
accused at that stage and after hearing the accused, take cognizance
and regulate its procedure thereafter”.
8. In view of the ratio laid down in the citation
supra and the
provisions of section 223 of the Bharatiya Nagarik Suraksha Sanhita,
this Court is of humble opinion that taking of cognizance under section
223 of the Bharatiya Nagarik Suraksha Sanhita would come after
recording the sworn statement of the complainant and the witness if
any. Hence, I proceed to pass the following order:
ORDER
1 The complainant shall file sworn statement and examine
witness if any.
2 Call the say of the officer in-charge of Police Station
Amboli, Mumbai.
Sd/-
(Sujitkumar C. Tayde)
Judicial Magistrate First Class,
DATE: 10/10/2025. 44th Court, Andheri, Mumbai.
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