ZULFIKAR KASIM KAZI Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) Heard Mr. Ganesh Bhujbal counsel appearing for the petitioners/accused against whom offence being Crime No.32 of 2017 punishable under Ss. 420 r/w 34 of the IPC and Sec. 13(1)(2)(3) of the MOFA Act came to be registered with Dongri Police Station.

(2.) The respondent/complainant in the aforesaid complaint alleged that a registered agreement of permanent alternate accommodate was executed between the complainant and M/s. Shah Developers of which the Petitioners are partners. It is claimed that clause (6) of the said agreement, so also, clause (8) which reads thus :-

(3.) While questioning the aforesaid FIR, Mr. Ganesh Bhujbal learned counsel appearing for the petitioners would invite attention of this Court to the fact that the partnership firm M/s. Shah Developers is not impleaded as the accused in the offence in question. According to him, the provisions of Ss. 138 and 141 of the Negotiable Instruments Act, 1881 (" NI Act " for short) are pari-materia with that of provisions of Sec. 13 of the MOFA Act. He would urge that in case if the firm is not impleaded as accused, the prosecution against the partner of the firm is not maintainable. He would try to draw support from the very language of Sec. 14 of the MOFA Act and law laid down by the Supreme Court in the matter of Aneeta Hada Vs. Godfather Travels and Tours Private Limited with connected matters reported in (2012) 5 SCC 661. His further contentions are, the liability of the petitioners can be restricted to that of the civil responsibility and not the criminal responsibility. According to him, the mens rea on the part of the petitioners cannot be inferred, particularly, when because of the financial difficulty the project in question has run into rough weather. As such, he would urge that it is always open for the complainant to take recourse to the civil remedy either by filing suit for specific performance or such other remedy as is available to her. As such, drawing support from the judgment in the matter of State of Haryana & Ors. Vs. Ch. Bhajan Lal & Ors. reported in AIR 1992 SC 604, he would urge that prosecution is liable to be quashed and set aside.