Mrs Amita Nitin Kapadia & Ors. v. Mrs Sonia K. Udhvani & Anr.

Heard learned counsel for both the parties extensively. The petitioners had a sale transaction of flat with the respondent No.1 (original complainant) who has filed prosecution vide C.R. No.441 of 2007 for an offence under sections 406, 420 r/w section 34 of I.P.C. Both the learned counsel agree that the charge-sheet is filed. However, their grievance is that it is incomplete set of compilation. vrd 2 WP2269/11

The learned counsel for petitioners submits that all the material times, the petitioners who have sold the flat were ready to perform their part of contract. The respondent complainant as purchaser in spite of availing cheque from the Bank payable to the petitioner kept with her for unreasonable period and sensing her malafides, the petitioner approached the Bank and appraised the situation. It appears that the respondent No.1 learnt that such communication was made by the petitioners.

The parties had series of correspondence. In one of the letter dated 12th September 2005, the respondent – Smt Sonia Udhvani in furtherance of her letter dated 9th May 2005 and telephonic communication dated 8th August 2005 and also in response to the petitioners' letters dated 10th august 2005, 1st September 2005 informed that she has requested the Bank to process the loan and will be paying the petitioners the balance amount of vrd 3 WP2269/11 Rs.7,00,000/- as per the agreement and in addition Rs.10,000/- making the total of Rs.7,10,000/- to settle the matter amicably. She has also informed that she will communicate the petitioners about disbursement of loan once the Bank completes its process. She has urged the petitioners to settle all outstanding pertaining to the said flat (society dues, society maintenance charges, electricity bill etc.) prior to handing over possession of the said flat.

In this scenario of the matter, the element of criminality being bleak, since the charge-sheet is filed, this Court cannot have exhaustive examination of all the documents running into 400 to 500 pages, coupled with the correspondence the petitioner is possessing in exercise of the powers under section 482 of Cr.P.C. The grievance of the petitioner is that few of her correspondence exchanged with the respondents is not part of the charge-sheet, hence she will be precluded from protesting or relying before the learned Judge. The vrd 4 WP2269/11 petitioner has remedies to exhaust about admission / denial of the documents which she may carry at appropriate stage. Without adverting to the merits of the matter, the petitioner is directed to approach the learned Metropolitan Magistrate, 26th Court, Borivali , Mumbai. All the points between the parties are kept open. The learned Magistrate, if applied for exemption, shall entertain the same. (K.U. CHANDIWAL J.)