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.320/SW/2018
Chandrakala Harakchand …. Complainant
V/s.
M/s. A.H.Constructions and Ors., ….Accused
ORDER BELOW EXH.NO.1
(Passed on 02/09/2025)
The present complaint case on hand was filed on 24/07/2018
before the Court of Metropolitan Magistrate, 66th Court, Andheri, Mumbai
wherein the complainant alleged that she had booked Flat No.504 on 5th Floor
admeasuring area 1080 sq.ft. in A.H. Shallon Tower which was supposed to be
constructed by accused no.1 who is Partnership Firm engaged in the business
of construction and development of various properties in Mumbai. The
accused no.2 and 3 are partners of the accused no.1 Partnership Firm.
2. According to the complainant, the accused no.1 to 3 had agreed
to hand over the possession of the said flat after its construction and
accordingly, she paid the earnest amount of Rs.8,52,000/- by way of cheque
on 06.04.2010 to the accused no.1 Partnership Firm out of the total
consideration amount of Rs.42,00,000/- in this regard. It is further contended
by the complainant that the accused no.1 issued her the allotment letter in
this regard on 05/04/2010. But since then the accused no.1 to 3 did not
intimate her about the further progress of the said construction. Hence, she
sent notice to accused no.1 to 3 through her advocate. But the said notice
was also not replied.
3. The complainant further submits that after having made inquiry,
she came to know that the accused no.1 to 3 transferred the development of
the said building to accused no.4 and 5 with ulterior motive to cheat her
without seeking her permission. It is further alleged by the complainant that
the accused no.1 to 3 did not intimate her about the transfer of the said
development work. It is further alleged that when she tried to contact the
accused no.4 and 5 in this regard, they did not respond her.
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4. Thus, in short, according to the complainant, the accused No.1
to 5 committed the offence punishable under section 405, 406, 415, 416,
417, 418, 419, 420 463, 465, 468 r/w Section 34 of Indian Penal Code.
Therefore, she lodged the complaint against the accused persons in the Police
Station Amboli, Mumbai. But the police did not take the cognizance. Hence,
she knocked the door of the Court by way of filing this complaint.
5. In view of the complaint and documents filed along with it, the
learned Presiding Officer of Metropolitan Magistrate, 66th Court, Andheri,
Mumbai examined the complainant on oath on 02/03/2019. Then the said
Court was pleased to pass the order under section 202 of the Code of Criminal
Procedure on 06/03/2019 and accordingly, the report of the Police Station
Amboli, Mumbai was called under section 202 of the Code of Criminal
Procedure before taking cognizance of the alleged offence.
6. The concerned investigating officer filed the report under
section 202 of the Code of Criminal Procedure before the Court of
Metropolitan Magistrate, 66th Court, Andheri, Mumbai on 06/10/2021.
7. On 10/02/2022, the learned Presiding Officer of the Court of
Metropolitan Magistrate, 66th Court, Andheri, Mumbai transferred the present
case on hand to this Court vide office order bearing no.Estt.16/2067/2021
dated 21/12/2021 passed by Hon’ble Chief Metropolitan Magistrate,
Esplanade, Mumbai. Thus, this case came to be transferred to this Court on
10/02/2022.
8. On behalf of the complainant, M/s. Solicis Lex, Advocates and
Solicitors filed their vakalatnama on record on 10/06/2025. The learned
advocate for the complainant argued that the accused no.1 to 5 in furtherance
of their common intention committed breach of trust and cheating by
deceiving the complainant and thereby they deprived the complainant from
getting her legal rights and thus, committed the offence punishable under
section 405, 406, 415, 416, 417, 418, 419, 420 463, 465, 468 r/w Section
34 of Indian Penal Code. The learned advocate for the complainant filed the
xerox copy of the judgment passed by the Hon’ble Maharashtra Real Estate,
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Appellate Tribunal Mumbai in Appeal No.AT 006000000031791 dated 08,
July, 2024 to support his argument.
9. The present case on hand came to be filed on 24/07/2018
wherein the complainant alleged that the accused no.1 to 5 committed the
offence punishable under section 405, 406, 415, 416, 417, 418, 419, 420
463, 465, 468 r/w Section 34 of Indian Penal Code. The learned advocate for
the accused argued this matter on 24/07/2025. In such circumstances, now
the question arises whether this case should be dealt with as per the
provisions of the Code of Criminal Procedure or as per the provisions of the
Bharatiya Nagarik Suraksha Sanhita. In this regard, I am guided by the ratio
laid down by the Hon’ble Punjab and Haryana High Court in the case of
Sikandar Singh Vs ED reported in 2025 Live Law (PH) 318 wherein 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.
10. Heard the learned advocate for the complainant. Perused the
record.
11. Since this complaint is dealt with the provisions as contemplated
under chapter XVI of the Bharatiya Nagarik Suraksha Sanhita, it is necessary
to give the accused no.1 to 5 an opportunity of being heard as per the
provision of Section 223 of the Bharatiya Nagarik Suraksha Sanhita. I am
fortified with my opinion in view of 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 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
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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”.
12. In fact, the learned Predecessor of this Court examined the
complainant on oath in this matter. Hence, 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 hearing the accused. Hence, I proceed to pass the following order:
ORDER
Issue notice to the accused no.1 to 5.
Sd/-
(Sujitkumar C. Tayde)
Judicial Magistrate First Class,
DATE: 02/09/2025. 44th Court, Andheri, Mumbai.
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