BABULAL MISHRIMAL VARDHAN Vs. SUDERSHAN WADIA

JUDGEMENT

(1.) THIS is an application under S. 482 of the Criminal Procedure Code for stay of criminal proceedings being Criminal Case No. 92/s of 1984 on the file of the Additional Chief Metropolitan Magistrate, IX Court, Bandra, Bombay. In the alternative, the petitioners are praying for quashing the said criminal proceedings.

(2.) RESPONDENT No. 1 - Sudarshan Wadia has filed a complaint case against the petitioners under Ss. 4, 5,7, 9, 10 and 13 of the Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act. 1963 (for short "the Act") and under Ss. 406 and 420 of Indian Penal Code. Petitioner No. 7 - M/s. Venus Enterprise is a partnership firm of which petitioners Nos. 1 to 6 are the partners. Petitioner No. 7 constructed a building known 'jal Darshan'. According to respondent No. 1, the petitioners sold Flat No. 503 situate on the 5th floor in the said building to his wife Neena in the year 1978 for a consideration of Rs. 1,26,000/- and was put in possession thereof in November, 1981. In the complaint, it is alleged that the accused petitioners did not enter into a written agreement as required under S. 4 of the Act. In the month of November, 1981 the petitioners surrendered front compound area to Bombay Municipal Corporation by obtaining additional F. S. I. in lieu thereof without the consent of the flat purchasers and constructed more flats. The petitioners also did not form a co-operative society of the flat-purchasers under S. 10 of the Act. The petitioners have misappropriated the gains by selling additional flats and have committed fraud and cheated the complainant's wife and other flat-owners. They constructed the building by making illegal additions to the original plan. The learned Additional Metropolitan Magistrate issued process against the petitioners. Respondent No. 1 - complainant did not attend the Court on a certain date and, therefore, the complaint came to be dismissed, but afterwards it was restored. The order of restoration was challenged by the petitioners in the Sessions Court and also in this Court. The petitioners filed an application for stay of the criminal proceedings, but the same was rejected by the Metropolitan Magistrate.

(3.) IT is not disputed that the petitioners have filed a suit being Suit No. 2480 of 1983 on the Original Side of this Court wherein the ownership of Smt. Neena Sudarshan Wadia in Flat No. 503 is under challenge. Smt. Neena Sudarshan Wadia, wife of respondent No. 1, has also filed Civil Suit No. 3224 of 1982 against the petitioners in the City Civil Court, Bombay, challenging the construction of the additional floors. Interim order of injunction made in that suit was challenged in this Court and the matter was taken to the Supreme Court which allowed the petitioners to construct additional floors on certain conditions.