Observing that fraud was played upon a senior citizen, the Bombay High Court has rejected anticipatory bail pleas of two persons who duped a 75-year-old widow of her two flats in suburban Juhu.
Justice PD Naik recently rejected bail applications filed by Shikha Sharma and Sumit Khanna observing, “From the FIR, documents on record and investigation papers, the fraud played upon the complainant is writ large.”
The duo had approached the HC after the sessions court rejected their pre-arrest bail in August.
Kamal Mirchandani, who resides alone as her two daughters have settled abroad, filed a First Information Report (FIR) with the Santacruz Police Station in November 2020 against the duo for criminal breach of trust and cheating.
According to Sujay Kantawala, Mirchandani’s counsel, she owns two flats in Juhu. Sharma met Mirchandani sometime in 2018 and developed acquaintance. Later, in March 2018, Sharma told Mirchandani that she could sell one of her flats and buy two flats in a project called Himalayan Habitat at Kuloo. Sharma even said that she required the other flat on rent for her daughter.
Sharma introduced Mirchandani to Khanna, who claimed to be the proprietor of Unimexx Builders & Developers and Himalayan Habitat Project. Khanna said that his friend’s daughter would buy one of the flats for Rs 1.9 crore and he would prepare all the necessary documents.
In November 2018, Mirchandani visited Kuloo with her daughter where they signed agreement for purported purchase of flats and sale of her flat. However, she did not receive any agreement. Khanna, further went ahead and sold Mirchandani’s flat to a third party.
Sharma gave the second flat to her daughter, purportedly on rent. But Mirchandani never received any money, either from sale of her flat or the rent of the other flat. She did not receive any flats in Kuloo, said Kantawala.
Opposing the plea, Kantawala argued that the duo had played fraud on Mirchandani. “She has been deprived of her valuable property. She was misleading in the transaction. The promise of providing the premises at Kuloo was not fulfilled. Consideration towards sale of flat was not parted,” argued Kantawala.
Vaibhav Krishna, advocate for Sharma and Khanna, argued that the duo had given a receipt to Mirchandani for the sale of her flat.
To this, Kantawala pointed out the agreement executed on April 18, 2018, wherein the sale consideration of the flat is shown as Rs 1.3 crore. It mentions the manner in which the entire money would be paid. However, two paragraphs are left blank, there is nothing written in it as to when and how said amount will be paid to Mirchandani. This shows that the amount was not paid to Mirchandani.
Another receipt was attached to the Sale Deed which said that entire amount was paid in cash. This receipt has been signed by two different witnesses.
Dismissing with the argument, the court observed that the applicants had failed to establish that they have paid consideration to Mirchandani.
“There are three receipts on record. One of the receipts mentioned that consideration was paid by cash. The receipts clause in the agreement and sale and the third receipts speaks volumes of doubt about its genuineness,” noted justice Naik.
Additional Public Prosecutor RM Pethe opposed Sharma’s plea stating that she cannot absolve by saying that her role is only limited to the extent of introducing Mirchandani to Khanna. There was dishonest intention right from inception.
The court also noted that Sharma’s daughter did not pay the rent for the time that she resided in Mirchandani’s flat. Besides, she had even refused to vacate the property. It was only after Mirchandani initiated eviction proceedings before the competent authority, the premises were vacated.
Agreeing with the sessions judge rejecting their anticipatory bail plea, the HC observed, “There is no proof of paying consideration to the complainant. She is being deprived of the flat premises. Neither consideration was paid to her towards sale of flat nor the premises at Kuloo were provided to her. Both the accused had taken undue advantage of the age of the complainant.”
The judge further noted, “The claim of the duo about the payment of consideration is based on three different receipts. This is a serious offence, for which custodial interrogation of the applicants is necessary.”
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