MALINI S KALE Vs. KAMLABAI S SHIRODKAR

JUDGEMENT

(1.) BY means of this revision application, the applicants assail the judgment and order dated 7-3-1991, passed by the Additional Sessions Judge, Greater Bombay, in Criminal Revision Application No. 77 of 1990, whereby the order dated 3-1-1990 passed by the Metropolitan Magistrate, 13th Court, Dadar, Bombay, discharging them for an offence under section 420, r/w. 114 I. P. C. , has been reversed.

(2.) THE present revision application, arises out of a complaint dated 15-4-1988 filed by the respondent No. 1 for an offence under section 420 I. P. C. r/w 114 I. P. C. , against the applicants. In short, case of the respondent No. 1 is that she was landlady of a building called Matru Smruti situated at 26, Vincent Square Street, No. 2, Dadar, Bombay-14. On or about January, 1979, the applicant No. 1- Smt Malini Kale approached her for giving her and the applicant Nos. 2 and 3, who were her husband and son respectively, some accommodation in the building. Initially, she did not accede to the request of the applicant Malini but, yielded as a consequence of the frequent visits of the applicants and basically because, applicant Malini stated that applicant No. 3 was selected as a Flight Purser in Air India and his appointment was dependent on his having a residential accommodation in Bombay. It has also been averred in the complaint that the applicant No. 3 beseeched her to treat her as her own son and the applicants promised that they would find alternate accommodation for their residence in a short time, and would then vacate the premises and would give back the peaceful possession thereof to her. It is alleged in the complaint that the applicants gave a sum of Rs. 10,000/- as security deposit. "the complainant has stated that on the said representations made by the applicants and being moved by their plight, she gave them two rooms on the second floor of her building with effect from 30-1-1979 and the applicants came to reside in them. It is stated in the complaint that representations made by the applicants were placed on record by the applicant No. 1 through her letter dated 16-10-1981 which was counter-signed by the other two applicants. The said letter is Exh A, and is a part of the record. It is stated in the complaint that in order to make her believe that they would shift in alternate accommodation, as early as possible, the applicants booked a flat, being Flat No. 603, on 6th floor, in Radha Kunj at Mahim, Bombay. It is also alleged in the complaint that as the applicants were short of money for purchasing their flat at Mahim, they sought refund of Rs. 10,000/- which was given as security money, and the complainant returned the money on their executing a promissory Note. It is also alleged that the applicants borrowed Rs. 45,000/- from the complainant in order to make payments towards the flat which they had booked at Mahim, Bombay. She gave the money to the applicant Nos. 1 and 2 executing a Promissory Note which was destroyed after the money was repaid. Allegations in the complaint further is that the complainant came to know later on that the applicants did not occupy the said flat, but had sold the same at the market price making a big capital gain. She has stated in the complaint that her suspicion was aroused when on 9-12-1986, the applicant No. 3 along with his wife left her premises along with baggage. She then questioned the applicant Nos. 1 and 2 as to why they had not left and on that they kept on giving evasive replies. Averment in the complaint is, that the said allegations which are contained in the complaint, make out a prima facie case against the applicants for an offence under section 420 r/w 114 I. P. C.

(3.) AFTER filing of the complaint and the usual verification, the learned Metropolitan Magistrate was pleased to call for a police report and thereafter, issued process against the applicants for an offence under section 420 r/w 114 I. P. C. Thereafter, it appears that statements of the complainant and one witness Narayan Gogte, were recorded under section 244 Cr. P. C. They were not cross-examined by Counsel for the applicants.