Sharad Manohar, J.
1. After hearing both the learned Counsel. I was fully satisfied that the complaint filed by respondent No. 4 (hereinafter the complainant) was wholly devoid of any substance and it amounted to nothing but abuse of the process of the Court. I have, therefore, already passed an order making the Rule absolute and have quashed and set aside the entire proceedings arising out of Summary Case No. 4307 of 1982.
2. It is unnecessary for me to mention the reasons for the order elaborately. It is enough to state the circumstances in which the complaint was filed by the complainant and the petition filed by the petitioners and the nature of the material brought on record by the petitioners in the petition which reveals the untenable character of the complaint.
3. The petitioners carry on business of building construction and financing companies. As such builders they constructed a building called 'Madhuban' at Thane and the various flats of the said building were sold to various persons who formed the Co-operative Society which was duly registered under the relevant Co-operative Societies Act. Before forming the society, at the time of purchase of the flat every flat-owner including the complainant entered into an agreement with the builders. The agreement between the complainant and the builders is dated 27th May, 1978. As per one of the conditions of the agreement a sum of Rs. 1751/- was deposited by the complainant with the petitioners. Out of the said sum, a sum of Rs. 251/- was deposited as the share money for purchase of shares of the Co-operative Society to be formed in future. The balance of the amount of Rs. 1500/- was deposited for payment of the electricity charges, water charges and various other expenses mentioned in Clauses 10, 11 and 26 of the agreement. Under Clause 30 of the agreement the complainant was also required to deposit a sum of Rs. 100/- per month with the petitioners from the date when possession of the flat was taken by the complainant from the builders. This amount was to be paid for the purpose of payment of taxes and other expenses. It is nobody's case that after the payment of Rs. 1,751/- any further amount was paid by the complainant either to the society or to the petitioners. The possession was taken by him on 16-7-1979. The society was registered on 3-7-82. It is thus, clear that the complainant was liable to pay the various taxes and other charges from 16-7-79. He had no doubt paid a sum of Rs. 1500/- to the petitioners for making payment towards these expenses. But it the amount deposited by the complainant with the petitioners fell short of the total amount of taxes and expenses, it could hardly be disputed that he will have to pay the sum either to the petitioners builders or to the society. Admittedly, he did not pay any such amount and it appears to be his convenient belief that once he deposits the amount of Rs. 1500/- with the petitioners he could live happily ever after without bothering as to whether he was under a liability, incurred subsequently or not to pay anything towards the taxes and other expenses in addition to the amount of Rs. 1500/- or not.
It appears that the society was of the opinion that the complainant was a recalcitrant member and was avoiding the payment of all the taxes and charges. The society, therefore, requested the petitioners to demand the amount of taxes and charges from the complainant. On 9th January, 1982 therefore, the petitioners wrote a letter to the complainant. By the letter, the complainant was informed that he was not paying taxes payable in connection with the flat purchased by him. It was further stated that the complainant was giving no co-operation to the other members of the society, who were trying to collect the property tax in respect of the building for the purposes of payment to the Municipal Council. By the letter, the complainant was informed that if the amount payable by the complainant was not paid by him within one week, a suitable legal action would be taken against him. Finally he was requested to co-operate with the matter and to avoid an unpleasant situation.
Immediately upon receipt of this letter, the complainant rushed to the Criminal Court and filed a complaint contending that the amount of Rs. 1500/- paid by him (included in the payment Rs. 1751) was for the purpose of taxes and other charges payable by the complainant and that the said amount was misappropriated by the petitioners and that the demand for payment of the taxes and other charges was the evidence of such misappropriation.
On this complaint, the process was ordered by the learned Magistrate to issue and it is against this order of issuance of process that the present petition is filed by the petitioners.
4. In para 14 of the petition, the petitioners have set out the various liabilities which the complainant had already incurred before the complaint was filed. A total sum of Rs. 2560.16 ps. has been shown to be the amount of expenses legitimately attributable to the complainant. Out of the details of expenses given in the said statement, only Item No. 10 relating to property tax from 15-6-79 to 13-3-82 at the rate of Rs. 35/- per month may not be acceptable. But the point is that only a sum of Rs. 35/- from out of the same can be deducted. This is also because the complainant took possession of the flat on 16-7-79, whereas the property tax is payable at thereto of Rs. 35 per month for his flat only from 15-6-79. This means that property tax for the period between 15-6-1-79 and 16-7-79 was not payable by him. This is just a paltry amount of Rs. 35/-. My attention was not invited to anything disputable about the other items. All the items put together, therefore, make out a bill of Rs. 2525/- (approx.) being payable by the complainant jointly to the petitioners or to the Society. Out of the same, only a sum of Rs. 1500/- has been paid by him.
5. This apart, the point to be noted is that this entire dispute, if at all it can be considered to be a legitimate dispute, is a dispute of a purely civil character. It may be that after taking accounts, the complainant may not be found liable to pay either to the petitioners or to the society the entire amount of Rs. 2560.16. It is possible even that the amount payable by the complainant to the petitioners and to the society till the date of the complaint was something less than Rs. 1500/-. If that was so, there may be liability upon the complainant to pay anything either to the petitioners or to the society until his dues exceeded the said amount of Rs. 1500/- already paid by him to the petitioners. The entire question will have to be gone into by the appropriate Court. All that the petitioners informed the complainant by their letter dated 5th January, 1982 was that appropriate proceedings will be instituted by the petitioners to enforce the liability of the complainant. It defines understanding as to how a letter disclosing intention to resort to civil proceedings amounts to misappropriation of the amount paid by the complainant to the petitioners. It is nobody's case that the payment of Rs. 1500/- paid by the complainant to the petitioners had been denied by them. It is perfectly clear open for the petitioners to contend that the complainant is under a liability to pay the amount for taxes and other expenses which the petitioners or the society have paid or incurred for him or on his behalf. It is equally open for the complainant to contend that he has incurred no such liability that the total liability that he has incurred has not reached the limit of Rs. 1500/- which he has already deposited with the petitioners and that until his liability exceeded the said amount of Rs. 1500/- he is not liable to pay either to the petitioners or to the society any amount. But this entire question is a matter of taking accounts. No element of criminality is involved in this case, far less any question of criminal misappropriation on the part of the petitioners particularly when the petitioners have not at all denied the receipt of original payment of Rs. 1500/-.
To my mind the complaint was very much misconceived. The order issuing process on such a complaint is, therefore, illegal.
For the reasons stated above, the impugned order passed by the learned magistrate dated 25th June, 1982 and confirmed by the Sessions Court in Criminal Revision Application No. 92 of 1982 is hereby quashed and set aside. The entire proceedings arising out of Summary Case No. 4307 of 1982 are also hereby quashed and set aside.