Dahisar Saraswati Coop. Hsg. Scy. Ltd vs The State Of Maharashtra

Dahisar Saraswati Co­op. Housing Society Ltd. ... Appellant(s)

Versus

State of Maharashtra & Others ... Respondent(s)

J U D G M E N T

Abhay Manohar Sapre, J.

1. This appeal is filed against the final judgment

and order dated 27.7.2009 passed by the High

Court of Judicature at Bombay in Criminal

Application No. 241 of 2008 whereby the said Signature Not Verified Digitally signed by ANITA MALHOTRA application filed by the appellant was dismissed. Date: 2018.10.12 15:50:45 IST Reason: 1

2. Brief facts of the case lie in a narrow compass

as would be clear from its narration infra.

3. The appellant herein­a housing cooperative

society was the complainant. They filed a complaint

under the provisions of Maharashtra Ownership

Flats Act (for short called “the Act”) against

respondent nos. 2 to 6 in the Court of Metropolitan

Magistrate 26th Court Borivali Mumbai being

Complainant Case No.429/55/04 seeking

prosecution of respondent nos. 2 to 6 for allegedly

committing several violations of the provisions of

the Act in execution of one housing project and

while allotting the flats purchased by the parties in

the said housing project.

4. By order dated 01.11.2007, the Metropolitan

Magistrate dismissed the complaint and acquitted

all the respondent nos.2 to 6. The appellant felt

2 aggrieved and filed leave to appeal before the High

Court under Section 378 (4) of the Criminal

Procedure Code (for short ‘the Cr.P.C.”).

5. By impugned order, the High Court declined to

grant leave to file appeal to the complainant

(appellant herein) which has given rise to filing of

this appeal by the complainant­housing cooperative

society by way of special leave to appeal in this

Court.

6. The short question which arises for

consideration in this appeal is whether the High

Court was justified in declining to grant leave to file

appeal against the order dated 1.11.2007 passed by

the Metropolitan Magistrate.

7. Having heard the learned counsel for the

parties and on perusal of the written submissions of

the parties and the record of the case, we are

3 inclined to allow the appeal, set aside the impugned

order and grant leave to the appellant (complainant)

to file an appeal before the High Court to question

the legality and correctness of the order passed by

the Metropolitan Magistrate Borivali (Mumbai) as

contemplated under Section 378(4) of the Cr.P.C.

8. We have perused the order dated 01.11.2007

and taken note of the facts which led to the passing

of the said order, coupled with the grounds on

which leave to file appeal was prayed for.

9. Having pursued the order dated 01.11.2007,

we are of the view that the High Court ought to have

granted leave to the appellant (complainant) to file

criminal appeal. In other words, having regard to

the nature of violations complained of in the context

of relevant provisions of the Act coupled with the

material on record, a regular hearing by way of

4 appeal before the High Court was necessary to

examine the entire issue on facts and law which

ought to have been granted to the

complainant(appellant herein).

10. In light of aforesaid discussion, we allow the

appeal, set aside the impugned order, and grant

leave to the appellant (complainant) to file an appeal

in the High Court against the order dated 1.11.2007

passed by the Metropolitan Magistrate (26th Court)

Borivoli Mumbai in complaint case no 429/55/04.

11. As a consequence of grant of leave by this

Court to the complainant, the matter is now

remanded to the High Court for deciding the

complainant’s appeal on merits in accordance with

law.

12. We may observe that we have not expressed

any opinion on the merits of the case and therefore,

5 the High Court will decide the appeal filed by the

appellant (complainant) on merits strictly in

accordance with law, uninfluenced by any

observations made.

13. Liberty is granted to the parties to raise all the

issues as are available to them in the appeal

including any subsequent events in support of their

case. It is for the High Court to decide its relevancy

while deciding the appeal on merits.

14. We request the High Court to expedite the

hearing of the appeal because the case is quite old.

………...................................J. [ABHAY MANOHAR SAPRE]

…...……..................................J. [INDU MALHOTRA]

New Delhi;

October 12, 2018

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