LAXMI CORPORATION Vs. C ANTONY LOUIS

JUDGEMENT

(1.) THIS petition assails the order passed by Metropolitan Magistrate, 27th Court, Mulund, Mumbai, which has the root of the complaint filed by Respondent No.1 against the petitioners. The petitioners are builders and they constructed some constructions known as Hema Park, Bhandup (East), Mumbai where respondent no.1 is having a flat. Respondent No.1 filed Criminal complaint in the said Court invoking the jurisdiction and power of the said Court in context with the Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963 (hereinafter referred to for convenience as MOFA) and provisions of Section 420 of IPC. He complained that the agreement was not in conformity with the requirements as indicated by provisions of Section 4 of the MOFA Act. He also complained that the petitioners did commit offence punishable under the provisions of IPC. He complained that the petitioners committed the offences under Indian Penal Code, The Income-Tax Act and "others". He annexed the format of the agreement as indicated by the Act. After recording his statement on oath, the learned Metropolitan Magistrate issued the process for an offence punishable under Section 13 of MOFA, section 420 of IPC and that is the subject matter of challenge in this writ petition.

(2.) SHRI Tiwari, counsel appearing for petitioners submitted that the complaint is not properly drafted and does not make out the ingredients of the offences for which the process has been issued and, therefore, the order by which the process has been issued against them by the learned Metropolitan Magistrate needs to be quashed. In support to his argument on this point of quashing the said order of process, he submitted that the prosecution suffers from the point of limitation as the said complaint has been filed after three years after the arising of the cause of action.

(3.) SHRI Tiwari submitted that the petitioners signed on the said agreement and clause 38 provides that after completion of the entire project, the document of conveyance would be executed by the petitioners and, therefore, it is premature to take the cognizance of the complaint filed by Respondent No.1 which cannot be said to be complaint at all. Shri Tiwari submitted that process of executing the conveyance deed in favour of all the flat owners is in progress as the society has been already formed and other obligations have been performed by the petitioners.