INDRU BHAGWANDAS HINGORANI Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) After hearing both the learned Counsel. I was fully satisfied that the complaint filed by respondent No. 4 (hereinafter the complainant) was wholly devoid of any substance and it amounted to nothing but abuse of the process of the Court. I have, therefore, already passed an order making the Rule absolute and have quashed and set aside the entire proceedings arising out of Summary Case No. 4307 of 1982.

(2.) It is unnecessary for me to mention the reasons for the order elaborately. It is enough to state the circumstances in which the complaint was filed by the complainant and the petition filed by the petitioners and the nature of the material brought on record by the petitioners in the petition which reveals the untenable character of the complaint.

(3.) The petitioners carry on business of building construction and financing companies. As such builders they constructed a building called Madhuban at Thane and the various flats of the said building were sold to various persons who formed the Co-operative Society which was duly registered under the relevant Co-operative Societies Act. Before forming the society, at the time of purchase of the flat every flat-owner including the complainant entered into an agreement with the builders. The agreement between the complainant and the builders is dated 27th May, 1978. As per one of the conditions of the agreement a sum of Rs. 1751/- was deposited by the complainant with the petitioners. Out of the said sum, a sum of Rs. 251/- was deposited as the share money for purchase of shares of the Co-operative Society to be formed in future. The balance of the amount of Rs. 1500/- was deposited for payment of the electricity charges, water charges and various other expenses mentioned in Clauses 10, 11 and 26 of the agreement. Under Clause 30 of the agreement the complainant was also required to deposit a sum of Rs. 100/- per month with the petitioners from the date when possession of the flat was taken by the complainant from the builders. This amount was to be paid for the purpose of payment of taxes and other expenses. It is nobodys case that after the payment of Rs. 1,751/- any further amount was paid by the complainant either to the society or to the petitioners. The possession was taken by him on 16-7-1979. The society was registered on 3-7-82. It is thus, clear that the complainant was liable to pay the various taxes and other charges from 16-7-79. He had no doubt paid a sum of Rs. 1500/- to the petitioners for making payment towards these expenses. But it the amount deposited by the complainant with the petitioners fell short of the total amount of taxes and expenses, it could hardly be disputed that he will have to pay the sum either to the petitioners builders or to the society. Admittedly, he did not pay any such amount and it appears to be his convenient belief that once he deposits the amount of Rs. 1500/- with the petitioners he could live happily ever after without bothering as to whether he was under a liability, incurred subsequently or not to pay anything towards the taxes and other expenses in addition to the amount of Rs. 1500/- or not. It appears that the society was of the opinion that the complainant was a recalcitrant member and was avoiding the payment of all the taxes and charges. The society, therefore, requested the petitioners to demand the amount of taxes and charges from the complainant. On 9th January, 1982 therefore, the petitioners wrote a letter to the complainant. By the letter, the complainant was informed that he was not paying taxes payable in connection with the flat purchased by him. It was further stated that the complainant was giving no co-operation to the other members of the society, who were trying to collect the property tax in respect of the building for the purposes of payment to the Municipal Council. By the letter, the complainant was informed that if the amount payable by the complainant was not paid by him within one week, a suitable legal action would be taken against him. Finally he was requested to co-operate with the matter and to avoid an unpleasant situation. Immediately upon receipt of this letter, the complainant rushed to the Criminal Court and filed a complaint contending that the amount of Rs. 1500/- paid by him (included in the payment Rs. 1751) was for the purpose of taxes and other charges payable by the complainant and that the said amount was misappropriated by the petitioners and that the demand for payment of the taxes and other charges was the evidence of such misappropriation. On this complaint, the process was ordered by the learned Magistrate to issue and it is against this order of issuance of process that the present petition is filed by the petitioners.