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.197/SW/2018
M/s. Anuradha Pal …. Complainant
V/s.
M/s.A.A. Estate Pvt. Ltd., …. Accused/Respondent
ORDER BELOW EXH.1.
(Passed on 02/01/2026)
This is a private complaint case filed under section 11 of
the Maharashtra Ownership Flat Act, 1963 therein the complainant
alleged that she purchased the flats from the respondent after paying
the requisite consideration and development charges. But she did not
receive the occupation certificate for the said flats.
2. In view of the complaint case, the learned predecessor of
this Court called the report under section 202 from the Police Station
Amboli wherein it is submitted that the dispute involved in this matter
is of civil nature.
3. Heard the learned advocate for the complainant. Perused
the record.
4. Having gone through the report filed by the concerned
Police Station under section 202 of the Code of Criminal Procedure and
the averments made in the complaint on oath, I am of the opinion that
the respondent/ accused needs to be heard. In this regard, I am guided
by the ratio laid down by the Hon’ble Karnataka High Court 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) wherein the Hon'ble
Karnataka High Court observed that -
“
A complaint is presented before the Magistrate under section 223 of
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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
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”.
5. 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 before taking the cognizance under
section 223 of the Bharatiya Nagarik Suraksha Sanhita, the accused
needs to be heard. Hence, I proceed to pass the following order:
ORDER
Issue notice to the accused.
Sd/-
(Sujitkumar C. Tayde)
Judicial Magistrate First Class,
DATE: 02/01/2026. 44th Court, Andheri, Mumbai.
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