SATISH K. RAKA Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) This is an application under Section 482 of Criminal Procedure Code, 1973, seeking the relief of quashing of the order of issuance of process dated 12.6.2012 passed by the Judicial Magistrate. First Class, Pune, in C.C. No. 1585 of 2012. Respondent No. 2 herein filed a complaint in the Court of Judicial Magistrate, First Class (Court No. 4), Pune, against the present applicants alleging therein that the complainants, who are the Chairman and Secretary of Amarchaya Co-op. Housing society, which is registered under the Maharashtra Co-operative Societies Act, 1960. It is the case of the complainants that the members of the Society have purchased a plot of land admeasuring 49R bearing Survey No. 671 Hissa No. 2A/3 at Mouje Munjeri, Pune, in the year 1980. The Society had allotted plots to each member for the purpose of construction of a residential house. The said land was reserved for economically weaker section and, therefore, the Competent Authority did not approve the lay-out of the plot. The members, therefore, formulated a scheme of ownership flats on the said property. The Society had decided to develop the property through a developer-builder in order to get the flats free of cost in addition to cash consideration. The complainant has further alleged that the partners of the accused No. 1 firm approached the complainant and informed them that they are the developers. It is alleged that the partners had further informed the members that they would be able to get the necessary permissions from the concerned departments of the Government and then develop the said property. According to the complainant, the partners of accused No. 1 had further assured the members that they would pay monthly consideration to each of the member of the Society in addition to an ownership flat admeasuring 635 sq. ft, built up area. The members of the Society had, therefore, agreed to engage the services of accused No. 1 firm, Accordingly, the Society passed a resolution in the General Body Meeting of the Society held on 19.4.1998. An agreement was executed between the partners of accused No. 1 firm and the members of the Society on 14.10.1998. The Society had also executed a power of attorney in favour of the accused No. 1 firm to enable them to effectively carry out development activities and represent the Society before all authorities activities for the purpose of obtaining necessary permissions. It is farther alleged that in July, 2002, the accused No. 1 approached the complainant and requested to execute registered development agreement and the power of attorney in their favour on the ground that there has been an amendment in law and unless registered documents are tendered, the developer cannot develop the property. The complainant had executed an agreement dated 18.7.2002, which was registered in the Office of Sub-Registrar. A registered power of attorney was also executed. It is alleged that in the month of August 2004, another power of attorney was executed in favour of the partners of accused No. 1. The complainant has alleged that the work had not proceeded, but false promises were given. The complainant has further alleged that the accused had filed a caveat in the Civil Court. Therefore, the complainant had revoked the power of attorney granted in favour of the accused. The complainant had further learnt that the accused No. 1 had entered into a partnership with M/s. Raisoni Vastushilpa Associates, i.e. accused No. 2 and it was accused No. 2 who had filed the caveat against the complainant and its members. The accused No. 1 had allegedly assigned the right to develop the property in favour of accused No. 1. The complainant feigns ignorance about the said development. The accused No. 1 had allegedly executed a development agreement in favour of accused No. 2 on 3.11.2004.

(2.) The complainant has further alleged that the accused persons had developed the said property and constructed a building known as "Navakar Residency" and had sold flats and also handed over possession of 24 flats to Municipal Corporation. The complainant has further proceeded to allege that 100 families are residing in the said flats. According to the complainant, the accused had not handed over the possession to the members of the Society. The complainant had issued a notice to the accused and called upon them to discharge their obligations however, the said obligations have not been complied with. In the facts of the case, the complainant has alleged that the accused herein have committed offence punishable under Sections 406, 409 read with Section 34 of IPC and Section 8 read with Section 13 of Maharashtra Ownership Flats Act, 1963 (hereinafter referred to as the said Act)

(3.) The verification of the complainant was recorded on 19.5.2012. The learned Magistrate by an order dated 12.6.2012 issued process against the accused for the offence punishable under Section 406, 420 of IPC and Section 8 read with Section 34 of the said Act.