Mumbai: A sessions court in Dindoshi refused to set aside a magistrate’s order directing criminal proceedings against two partners of Kabra & Associates for cheating an Overseas Citizen of India (OCI) couple from Australia while selling flats to them in 2015.
The court held that sufficient material on record showed a prima facie case of cheating and that the magistrate’s decision to issue process against the accused did not require interference at this stage.
Additional sessions judge Rajendra V. Lokhande passed the order while dismissing a criminal revision application filed by Dilip Satyanarayan Soni, Mahendra Satyanarayan Soni and the partnership firm Kabra & Associates. The revision challenged a September 2022 order of a Borivali magistrate issuing a process against them.
The dispute arises from a 2015 real estate transaction involving two flats in a residential building named Vihang in Mumbai. The complainants, Rekha Rajkumar Hemdev and Rajkumar Bhajanlal Hemdev, Australian citizens holding OCI status, alleged that they were induced to buy the combined flats based on representations made by the accused.
According to the complaint, the couple agreed to purchase the flats for ₹2.56 crore after being told that the combined property would measure around 1,800 sq ft and would include a fitness centre. However, after the payment was made, the registered agreement of sale reflected a significantly smaller area of about 1,050 sq ft. The complainants also alleged that the promised fitness centre portion was not handed over.
They claimed that they had paid the amount, believing they would receive the larger combined area mentioned in the booking confirmation.
The accused, however, argued that the transaction was governed by the registered agreement of sale and that any dispute arising from it was purely civil in nature. They contended that there was no dishonest intention at the beginning of the transaction, which is necessary to establish the offence of cheating under Section 420 of the Indian Penal Code.
The sessions court noted that the booking receipt placed on record mentioned a proposed area of 1,800 sq ft for the agreed consideration, and that the price appeared to have been calculated based on that representation. The court also referred to a police verification report prepared during the inquiry under Section 202 of the Code of Criminal Procedure, which included WhatsApp chats suggesting that the accused had agreed to sell the larger combined area, including the fitness centre.
During the hearing on Friday, observing that these circumstances supported the complainants’ allegation that they were induced to enter into the transaction based on the promise of a larger area, the court said the magistrate was justified in issuing process against the accused.
The judge further noted that at the stage of issuing process, the court only needs to determine whether the material on record shows a prima facie case requiring trial.
Holding that the magistrate’s order was “legal, proper and correct”, the sessions court dismissed the revision application, allowing the criminal case to proceed before the magistrate’s court.