1. REVN 119 of 2016.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL REVISION APPLICATION NO. 119 OF 2016 1. Lavlesh Classic Developers Pvt. Ltd. Now known as Aakash Lavlesh Leisure Private Limited. 2. I. B. Bhasin No long as Director 3. Allaudin B. Javeri No long as Director 4. Rajeev Anand Managing Director 5. Dushyant C. Patel Joint Managing Director 6. Chandulal P. Patel since deceased 7. Lavlesh Bhasin No long as Director 8. Bakir B. Javeri No long as Director 9. Vinay Bhasin Executive Director 10. Arvind K. Shah No long as Director 11. D. D. Kalia (General Nanager) Seema 1/7 SEEMA KSHITIJ YELKAR Digitally signed by SEEMA KSHITIJ YELKAR Date: 2026.01.22 18:07:55 +0530 1. REVN 119 of 2016.doc Joined on 21st February 2005 as Member 12. Anjlika Chaudheri since deceased all having official address at 1st floor, Diamond Palace, Hill Road, Bandra (W), Mumbai – 400 050. ...Applicants Vs. 1. The State of Maharashtra Through the office of Government Pleader, High Court, Criminal Side, Bombay. 2. Rajesh Madhusudan Sangani having office at 34-36 Modi building Dr. M. B. Velkar Street, Kalbadevi Road Mumbai – 400 002. ...Respondents ***** Mr. R. A. Shaikh a/w A. R. Khan Advocate for the Applicants Mr. Hitendra J. Dedhia APP for the Respondent-State ***** CORAM : S. M. MODAK, J. DATE : 17th JANUARY 2026 ORAL JUDGMENT:- 1. Heard learned Advocate Shri R. A. Shaikh for the Applicants/Accused. 2. Initially, the complaint was dismissed by the learned Seema 2/7 1. REVN 119 of 2016.doc Metropolitan Magistrate. When the Complainant filed Revision Application, the Sessions Judge has remanded the matter for reconsideration as per the order dated 08th October 2008. When the matter was again placed before the learned Metropolitan Magistrate, he has issued process as per the impugned order dated 16th April 2015. The legality of the said order is under challenge. 3. No one is present on behalf of the Respondent No. 2. 4. Let the matter be kept back. Later on 5. In the morning session, the matter is kept back. At 3.00 p.m. again matter is called out, but no one is present on behalf of the Respondent No. 2-Complainant. The only issue involved in this revision application is “whether the learned Magistrate was justified in issuing process on 16th April 2015 against these Applicants for an offence punishable under Sections 406, 420 read with 120(B), 34 of the Indian Penal Code”. 6. Initially, report was called under Section 202 of the Criminal Procedure Code. The Police of L. T. Marg Police Station, Mumbai as per report dated 29.01.2015 informed the Magistrate Court that the Seema 3/7 1. REVN 119 of 2016.doc dispute in between the Complainant and the accused is in respect of not providing service at the health club and hence there is breach of agreement. That is how learned Magistrate has dismissed the complaint as per order dated 05 th February 2007. 7. No doubt the Complainant has got right to prefer the revision. In the said revision learned Additional Sessions Judge has passed the following order on 08th October 2008:- (i) The revision application is allowed. (ii) The order of the Ld. Magistrate is hereby set aside and instead of that the matter be remanded back for reconsideration. 8. I have read the said order. The accused No. 12 is General Manager of accused no. 1. Whereas Complainant is a member of the club. Accused No. 12 made certain representations of providing certain services. The complainant believed it and parted away certain money by way of cheques. The grievance of the Complainant is in spite of promises, the club was not started. 9. The learned Additional Sessions Judge observed that “police have considered the defence and cognizance on the part of the accused, Seema 4/7 1. REVN 119 of 2016.doc not belonging the project”. It is further observed that “we have not to consider the defence at the stage of issuance of process”. That is why learned Additional Sessions Judge has not accepted that “dispute is of civil nature”. 10. The learned Additional Sessions Judge has overlooked one fact and that is about calling of report under Section 202 of the Criminal Procedure Code. The said report is called only when the trial Magistrate is not satisfied about issuance of the process. Once the report is received, the trial Magistrate is having option either to accept the report or to reject it. In this case, there is a report that the dispute is of civil nature, the learned Magistrate has chosen to accept it. 11. It is settled law that the report of the Police is not binding on the Court and Court can form its own opinion, but when the trial Magistrate has to take different opinion, it has to be on the basis of new materials. It is for the reason, the materials which are placed before the Magistrate at the beginning were not sufficient to issue process and that is why there is postponement of issuance of process. The learned Additional Sessions Judge overlooked the fact that the police was asked to conduct an inquiry and in that inquiry if the Police has concluded Seema 5/7 1. REVN 119 of 2016.doc that it is case of breach of the promise and if learned Magistrate accepts it, it does not amount to accepting the defence at the time of the issuance of the process. When learned Additional Sessions Judge has remanded the matter, the learned Magistrate was expected to apply his mind with the materials. It is true no detailed order is required at the time of the issuance of process, but there has to be some reasoning by considering the materials. 12. While passing the impugned order, the learned Magistrate was possessing the complaint, annexures and the police report. I do not find any reasoning given by the learned Magistrate for differing with the opinion given by the Police. 13. On this background, when I have read the averments in the complaint, I do not find that case for issuance of process for those offences is made out. It is submitted that the Complainant has also filed summary suit for recovery of the amount and summons for judgment was dismissed. It is settled law that every breach of the promises does not give rise to the criminal action. The promises must have been made with the fraudulent intension since inception. I find it missing from the averment in the complaint. Hence, case for Seema 6/7 1. REVN 119 of 2016.doc interference is made out. Hence, the following order:- ORDER (i) The Revision Application is allowed. (ii) The order dated 16th April 2015 passed by the Court of Additional Chief Metropolitan Magistrate, 47th Court, Esplanade, Mumbai, in C.C. No. 121/I&R/2005 is quashed and set aside. (iii) The complaint stands dismissed. 14. With the above observations, the Revision application is disposed of. 15. Pending interim/criminal application, if any, also stands disposed of. (S. M. MODAK, J.) Seema 7/7