Sir,
In my case, a complainant in private criminal complaint has arrayed 3 employee of a company an accused No. 3, 4 & 5 with company as accused no. 1 & 2. The Judicial Magistrate issued process against all the alleged accused u/s. 3,4 & 13 of MOFA 1963.
The main contention of the complainant is that the accused No. 1 & 2 is a builder, who after receiving 100% of the amount towards the booked flat has not executed & registered agreement in his favour as per Maharashtra Ownership of Flats Act 1963.
The complainant by way of written request and legal notice called upon the alleged accused No. 1 & 2 i.e. from company to cancel the booking of flat as per terms and condition and refund the amount to complainant.
Before receiving the summons of Judicial Magistrate, the company acted on the request of the complainant to cancel the booking and refunded the amount as per terms and condition of booking application form which was agreed and signed by the complainant. The complainant encashed the amount refunded to him by company. Even after receiving the amount, continued the complaint to be prosecuted against all the accused which is abuse of process of law.
Secondly, can a employee be arrayed as an accused. They had no role with the instant alleged offence as they are just the employees and falsely arrayed as accused.
Kindly requested to provide ruling in favour of the present case
i.e. 1. after receiving amount the continuance of complaint is abuse of process of law.
2. The complainant by written request and notice asked the company to cancel the booking and refund the amount which accordingly done by the company. Hence no question arises for execution and registration of agreement.
3. The employee cannot be arrayed as an accused as they had not acted anything in their personal capacity and the entire allegations in the complaint and in legal notices are against the company.
4. The employee does not come within the definition of developer as per MOFA 1963. Hence cannot be prosecuted.
