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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPLICATION NO. OF 2023

DISTRICT MUMBAI

In the matter of Section 482 of

Criminal Procedure Code.

And
In the matter of Complaint u/s 13
of Maharashtra Ownership Flats
Act.
And
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In the matter of
Case no. 96/SW/09
Pending in 68th M.M. Court at
Borivali, Mumbai.

Mrs. Bhanuben Ratilal Kanakia )

Aged about: 95 years, Occ: Housewife )

Indian Inhabitant, residing at )

17, 18, Vibha Vasu Co-operative Housing )

Society Ltd, 27, Tejpal Road, Vile Parle East )

Mumbai-400 057 ) .... Applicant

V/S.

1. STATE OF MAHARASHTRA )

2. Mr. Pradep Lalitchandra Kothari )

An adult, Indian inhabitant, residing at )

B/16, Arihant department, the Dahisar )

Vishweshwar Co-op. Housing Society, )

L. T. Road, Dahisar (W), Mumbai-400 068 )… Respondents

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To,

THE HON'BLE CHIEF JUSTICE,

OF BOMBAY HIGH COURT AND /
OR OTHER PUISNE JUDGES OF
THIS HON'BLE HIGH COURT

THE HUMBLE
APPLICATION OF THE
APPLICANTABOVENAMED.

MOST RESPECTFULLY SHEWETH

1. This application is filed for quashing of case no. SW/96/2009

pending before 68th Metropolitan Magistrate Court at Borivali.

The respondent no.2 has filed aforesaid complaint against the

applicant for the offence u/s 13(1) of Maharashtra Ownership

Flats Act. Hereto annexed and marked Exhibit-“A-Colly” are the

copy of aforesaid complaint together with annexures annexed

therewith.

2. The brief facts of the case are as under :

(i) The applicant’s deceased husband Mr. Ratilal Valji Kanakia,

during his lifetime, somewhere in 1975 constructed a building

known as “Arihant Apartment” on land bearing Survey no.

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267, Hissa No.4, Survey no. 267, Hissa no. 1/8 part,

corresponding to CTS no. 849 of village Dahisar, Taluka

Borivali, Mumbai suburban District- 400 068. Thereafter,

applicant’s deceased husband Mr. Ratilal Valji Kanakia sold

the flats in aforesaid building to several prospective purchasers.

(ii) The respondent no.2 claims that, his mother Mrs. Nirmalaben

L. Kothari, purchased flat no. 16, B Wing, 2nd floor, in the said

building known as “Arihant Apartment”.

(iii) The applicant states that, her husband Mr. Ratilal Valji

Kanakia died on 16.06.1999. hereto annexed and marked

Exhibit-“B” is the death certificate of her deceased husband

Mr. Ratilal Valji Kanakia.

(iv) The applicant states that, subsequently, in the year 1982, the

prospective flat purchasers of Arihant Apartment, formed a

society, known as “The Dahisar Vishweshwar Co-operative

Housing Society Ltd”.

(v) The applicant states that, thereafter in the year 2008, the

respondent no.2 filed complaint case u/s 13(1) of Maharashtra

Ownership Flats Act, 1963, before Metropolitan Magistrate

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Court at Borivali, Mumbai against the applicant, for

punishment under the above provisions.

(vi) After filing of aforesaid complaint, by respondent no.2 against

her, before Metropolitan Magistrate Court at Borivali,

applicant received notice dt. 10.10.2009 alongwith

memorandum duly signed by all the members of the said

society, from the office bearers of “Arihant Apartment” to give

conveyance of the land wherein aforesaid building is situated,

to the society and not to any individual. The said memorandum

also discloses that, the society has resolved that, society was

fraudulently handled by so called Administrator Mr. Pradeep

Lalitchandra Kothari i.e. respondent no.2. Hereto annexed and

marked Exhibit-“C-Colly” are the copy of said notice dt.

10.10.2009 along with memorandum signed by society

members dt. 07.10.2009.

(vii) The applicant states that, the said society also lodged complaint

against respondent no.2, before several co-operative Housing

authorities, such as Deputy Registrar of Co-operative Societies,

Divisional Joint Registrar, etc, informing that, the society has

not authorized respondent no.2 to take any steps on behalf of

their society and he is involved in illegal and fraudulent

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activities. Copy of said complaint dt. 14.02.2010 is annexed

herewith and marked Exhibit-“D”.

(viii) The applicant further states that, thereafter society requested

the applicant and her son, to give conveyance to the society, as

they were intended to go for redevelopment, therefore, the

applicant and her son executed deed of conveyance dt.

07.03.2012 in favour of the society. Hereto annexed and

marked Exhibit-“E” is the copy of deed of conveyance

executed in favour of the society.

(ix) The applicant states that, since the conveyance was already

given to society and nothing remains in the aforesaid

complaint, therefore, the applicant filed dismissal application,

before Metropolitan Magistrate Court at Borivali, to dismiss

the complaint filed by respondent no.2, which is pending

before it. But, the said application was dismissed. Hereto

annexed and marked Exhibit-“F-Colly” are the copy of said

dismissal application along with orders passed therein.

(x) The applicant further states that, since the conveyance is

already given to society and hence nothing survives in the

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matter and there is no cause of action at all. Hence, applicant

prefers this application on the following grounds :

GROUNDS

(i) It is submitted that the applicant has been falsely

implicated in the aforesaid complaint and there is no any

direct and / or indirect evidence to connect the applicant

in the commission of complaint ;

(ii) The Applicant states that she is innocent and has nothing
to do with the aforesaid complaint.

(iii) The Applicant states that she has been falsely implicated
in the said complaint to snatch the money by the
respondent no.2.

(iv) There is no evidence against Applicant to implicate her

in the alleged offence.

(v) The Applicant states that the complainant deliberately

concealed the facts and made complaint.

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(vi) The applicant is not the promotor or developer under the

provisions of Maharashtra Ownership Flats Act.

(vii) The building was constructed by her deceased husband,

so therefore she is not liable under the provisions of

Maharashtra Ownership Flats Act, for any acts and

omissions on his part.

(viii) The conveyance is already given to society. Hence no

cause of action survive or exist anymore.

(ix) The respondent no.2 is an individual and hence he

cannot seek a conveyance in his name in place of the

society.

(x) The applicant is 95 years old lady and no purpose would

be serve to keep the matter pending.

(xi) Not a single documentary evidence is filed by

respondent no,.2 before the trial court, despite the fact

that, the aforesaid matter is pending since 15 years

before the Metropolitan Magistrate Court at Borivali.

(xii) There is no concrete or cogent evidence to connect the

Applicant with the alleged act. There is no evidence

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even to show that the Applicant was involved in criminal

Act.

(xiii) That the applicant is innocent person and have not

committed any offence. She is falsely implicated in the

said complaint ;

(xiv) That the applicant is permanent resident of above given

addresses and have deep roots in the society ;

3. In the facts and circumstances of the case the applicants say and

submit that the applicant has become entitled for an appropriate

writ, order or direction of this Hon’ble Court thereby quashing the

said complaint case no. SW/96/ 2009.

4. The applicant further says and submit that in the facts and

circumstances of the present case it is just, proper and necessary

that the applicant be granted reliefs as prayed for in the present

application as the balance of convenience is in favor of applicant.

The applicant says and submit that if the relief as prayed if not

granted, the applicant would suffer irreparable loss, harm and

injury which cannot be compensated in terms of money. On the

other hand if the relief as prayed are granted, no loss, harm and
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injury or prejudice of any nature what so ever would be caused to

the respondents ;

5. The applicant is residing within jurisdiction of this Hon’ble Court

and the entire cause of action for aforesaid case and quashing

proceeding has arisen at Mumbai, Maharashtra and hence, this

Hon’ble Court has got jurisdiction to entertain the present

application ;

6. The applicant has not filed any other proceedings either before this

Hon’ble Court or before any other Court including Supreme Court

of India in any manner whatsoever touching the subject matter

save and except as disclosed herein above ;

7. The applicants state that the applicant is left with no other option,

but to approach this Hon’ble Court by way of present Application

invoking the inherent jurisdiction of this Hon’ble Court as no

other efficacious remedy is available to the applicant ;

8. The applicants reserved her right to add, amend or modify the

grounds of present criminal applicant as and when required and /

or necessary with the permission of this Hon'ble Court.

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9. The applicants will rely upon the documents a list whereof is

annexed herewith ;

10.The applicants have paid the Fixed Court fees to this Application ;

THE APPLICANT, THEREFORE, PRAYS AS UNDER ;

(a) That this Hon’ble Court by its, order or direction of appropriate

nature be pleased to quash and set aside the case no.

SW/96/2009 pending before 68th Metropolitan Magistrate

Court at Borivali.

(a) Such other and further relief as this Hon’ble Court may deem

fit and proper ;

Mumbai,

dated this 8th day of December 2023.

Advocate for the Applicant. Applicant

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VERIFICATION

I, Mrs. Bhanuben Ratilal Kanakia, Aged 95 years, Indian

Inhabitant, Having her address at 17, 18, Vibha Vasu Co-operative

Housing Society Ltd, 27, Tejpal Road, Vile Parle East, Mumbai- 400

057, do hereby state on solemn affirmation that whatever stated

hereinabove are true and correct to the best of my knowledge and belief

and I confirm the same to be true and correct.

Solemnly declared at Mumbai )

This 8th day of December 2023 )
Identified and Explained by me )

Before Me
Advocate for the Applicant