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.146/SW/2018
Evertop Apartments C.H.S.Ltd., …. Complainant
V/s.
M/s. Lotus Logistics & Developers
Pvt. Ltd., and Ors., …. Accused
ORDER BELOW EXH.NO.1.
(Passed on 18/02/2026)
The complainant is the registered Co-operative Housing
Society. The flats/rooms in the said housing society were in dilapidated
conditions in the year of 2007 and therefore, the complainant’s society
invited offers for the development of the society. Accordingly, accused
no.1 was appointed as a developer and the terms and conditions were
agreed between them. However, accused no.1 to 5 committed cheating.
Therefore, the case was registered against the accused persons under
the provisions of MOFA Act.
2. The learned Predecessor of this Court directed the
complainant to examine. On behalf of the complainant its
representative Mr. Pawan Sood filed the affidavit.
3. Having gone through the averments made on oath and the
relevant documents, I heard the learned advocate for the complainant.
The alleged offence appears to be cognizable.
4. 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
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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 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
Issue notices to the accused no.1 to 16 as shown in this complaint.
Sd/-
(Sujitkumar C. Tayde)
Judicial Magistrate First Class,
DATE: 18/02/2026. 44th Court, Andheri, Mumbai.
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