RAMESHCHANDRA THAKKAR v. A. P. JHAVERI & ANR.

A **B** ## _c_ **D** E G ', _H_ 691 ###### RAMESaCHANDRAJ. THAKKAR _v._ A. P. JHAVERI & ANR. _October_ 13, 1972 (H R. KHANNA ANDY. V. CHANDRACHUD, JJ.] _Code_ _of_ _Criminal Procedure (Act 5_ _of_ 1898) _s._ _439-Revisional_ _Powtr of lfigll_ _Court-Trial_ _Court allowing_ _compo1111di11g_ _of_ _a_ _11011-_ _compotmdable offence and offence under s._ 420, _/.P.C. and acquitting_ _accused--Order one and Indivisible-Power_ _of_ _High Court_ _lo_ _set_ _asidd_ _acquittal for_ _borll_ _offences._ , The respondent filed a complaint against the c,ppellnnt nllcging that he .had committed offences under s. 4t0 I.P.C., e.nd s. 13 of the Maha· rashtra Ownership of Flats (Regulation of the Promotion of O>nstruc· tion, Sale, Management and Trtonsfer) Act, 1963, in thBt he had contravened ss. 3(2) (a) a.nd 4 of the Act. ><fter some evidence was recorded the Magistrate passed an order that since the accused had undert~ken to do cer!Un things within a certain period the complainant did not wish to proceed with the trial, that therefore the case was compounded, and that the accused was acquitted. As the appellant went back on the undertaking the respondent moved the Magistrate for tl!.lcing action for contempt of Court. The Magistrate directed that the papers may be sent to the High Court 'for appropria!e action. The High Court in revision, after notic.: to' the appellant held that it was not a fit case for taking action for contempt but set aside the order of acquittal of the '4'pellant and directed that the Magistrate should proceed with the trial. Dismissing the appeal to. this Court, HELD: (IJ The offence under s. 13 of the Mahara.•htra Act. WM not compoundable with or without the permission of the· Court. Where an acquittal is based on compounding and the compounding is inv&lid in law, the acquittal would be liable to be set aside. In the present case, as the acquittal of the appellant by the trial Court was based upon the compounding of an offence which was not compoun~able the High Court rightly set aside the acquittal of the appellant. [695E-G; 696C-E] _K. Chinnaswamy Reddy_ v. _Sate_ _of_ _Andhra Pradesh._ [i963] 3 S.C.R; 412, followed. (~) Even though the High Court acted _suo_ _1notu_ in setting aside the acquittal of the appella.nt there was no irregularity in the procedure adopt~d by the High ~urt: All that. is ~ecessar~. to bring the High Court~ **powers** **of .** **rev1s1on** **into operation** !S, **such** **information** **as** **makes** the High Court thmk that an order made by a Subordinate Court i~ fit for the exercise of its powers of revision. [696E, G] _State of Kera/av. Narayani_ _Amma Kamala Devi,_ [1962] Supp. 3 S.C.R. 943, followed. (3) ~ere is no sl!bstance in t~e ~ntention that High Court should not have mterfered with the acqmttal m so far f!f! it related to the offence under s. 420, I.P.C. [696H] (a) 1:'11~ offence under _11. 420 l.P.C. can be compounded only with the permission of the Court and. no order granting IUCh permission has been produced before this Court. [697AJ 692 SUPREME COURT REPORTS [1973) 2 s.c.R. (b) Assuming that such permission . had been granted it. is nece$SOl'}' A to know the precise language, because, it is difficult to predicate whether the Magistrate would have granted the permission to compound the <Jffence under s.420, I.P.C., if he was aware that the offence under s. 13 of the Maharashtra Act was not compoundable. [697 A-Bl (c) Moreover, the permission was on~ indivisible pe~mission for both the offences, and in such an event, it IS not penwssible to sever B the permission into two parts and to uphold it for the offence under s. 420, I.P.C., and hold it invalid in respect of the other offence. [697C-D) CRIMINAL APPELLATE JURISDICTION ; Criminal Appeal No. 88 of I 972. Appeal by ~pecial leave from the judgment and order dated January 24, I 972 of the Bombay High Court in Criminal Revision Application No. 9 of 1972. _M._ _C Blwntlare, R. Nagaratnam,_ _P._ _H._ _Parekh_ and _S._ _Bhandare,_ for the appellant. ### c _N._ _H._ _flingorani_ and _K. Hingdrani,_ for respondent No. 1. D _B._ _D._ _Sharma,_ for respondent No. 2. The Judgment of the Court was delivered by KHANNA, J. This appeal by special leave is directed against the jud;;ment of Bombay High Court whereby that court set aside an order of acquittal made against the· appellant in two cases and directed the trial magistrate to proceed with those cases in acwrdance with law. Parrnanand Jhaveri respondent No. 1 filed two complaints before the court of the Presidency Magistrate Girgaum against' Ramesh Chandra J. Thakkar appellant and B. K. Shah on the allegation that the two accused pe1sons had committed offences under section 420 Indian Penal Code and section 13 of the Maharashtra Ownership of Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963 (Act 45 of 1963) (hereinafter referred to as f,he Maharashtra Act). In one of the complaints it was stated that the accused had agreed to sell two flats to the complainant, while in the second complaint there was a similar allegation regarding agreement on the part of the accused to transfer a third plot. The agreement, it was stated, had been entered into on February 11, 1967 and the possession of the flats was to be delivered to the complainant on December ·31, 1967. According further to the complainant, the accused persons in spite of having received Rs. 28,000 from him had not delivered possession of the flats to the complainant. B. K. Shah accused could not be traced and the two complaint cases proceeded only E F G H llbfBSHCHANDRA _V,_ A, P. JHAVER.I _(Khanna,_ /,) 693 **A** against the 'ppellant. The following charges were framed against **the** appellant on April 2, 1970 : "I,. . . . . . . . do hereby charge you : as follows: **B** ( 1) Failed to make full and true disclosure of the nature of his title to the land on which he intended to construct the fiats; (2) Failed to get the written agreements in respect of flat~ registered under the Indian Registration #### c Act (3) That you induced the complainant to part with Rs. 28000 oc false and dishonest representation that you would construct fiats at Malad and give him three fiats of certain area in his possession; and thereby committed an offence punis!J.abile #### o under section 3 and 4 R/W. Section 13-14 Maharashtra Ownership Flats Act and section 420 of the Indian Penal Code and within my cognisance." On April 30, 1970 after some evidence had been recorded, the **B** #### **c** trial magistrate passed the following order : **E** "The parties at this stage put in an agreement whereby the accused undertakes to do certain things within a certain period and on such undertaking the complainant does not wish to proceed with the trial. The accused agreed to the agreement and the case is compounded and accused acqµ\tted." **F** - On August 17, 1970 respondent No. 1 filed an application before the trial magistrate stating that though the appellant had undertaken to deliver possession of the fiats by If certain date or tc. pay back the amount in cash, the said undertaking had not been fulfilled. Prayer was made .that action be taken against the appel- • lant for contempt of court. The trial magistrate passed an order **G** on January 25, 1971 wherein it was stated that the appellant had gone back on his undertaking given to _the court and as such was guilty of contei;npt of court. The magistrate accordingly directed that papers be sent to the High Court for appropriate action against the appellant. When the matter came up before the High Court, the learned II Judges constituting **the** Division Bench took the view that it was not a fit case in which action under the Contempt of Courts Act was called for against the appellant. At the same time, the learned _judges took the view that it was a fit case in which the order of ' 694 SUPREME COURT REPORTS [1973] 2 s.c.R. acquittal made against tlle appellant should be set aside. Before that, on an earlier date of hearing, notice had been given ti'\ the _:I!_ appellant to show cause why the order of acquittal shoq1d not be set aside. The High C_ourt consequently set aside the order of acquittal and directed the trial magistrate to proceed witl1 the trial in both the complaint cases from the stage at which respondent No. 1 had been persuaded to not press the complaints. After hearing Mr. Bhandare On behalf of the appellant,' Mr. **B** Hingorani on behalf of respondent No. 1 and Mr. Shar~a on behalf of the State of Maharashtra, we have come to the conclusion that the present appeal is bereft of any merit. It wouI1' appear from. the resume of facts given above that complaints':· ag11inst the appellant related to two kinds of offences, _viz,_ section '420 Indian Penal Code and section 13 of the Maharashtra Act. So far as the offence under section 420 Indian Penta! Code is concerned, it is compoundable with the permission of the court. The offence under section 13 of the Maharashtra Act h, however, not compoundable either with or without the permission' of the Court. According to sub-section (7) of section 345 of the Code of Criminal Procedure, no offence shall be compounded ei:cept as provided by . this section. The word "offence" has been \defined ### c **D** E **F** **G** **H** in clause ( o) of section 4 (1) of the Code 10 mean any 'act or omission made punishable by any law for the time being in force. Clause (c) of section 2 of the Maharashtra Act gives the definition of the word "promoter" as under : "(c) "promoter" means a per~on who constructs or causes to be constructed a block or bm1ding of flats for the purpose of selling some or all of them to other persons, or to a company, cooperative society or other association of pers_om, and includes his assignees; and where the person who builds and the person who sells are different persons, the term includes both;" Clause (a) of sub-section (2) of section 3 of the Maharashtra Act provides that a promoter who constructs or intends to construct a block or building of flats shall make full and true disclosure of the nature of his title to the land on which the flats are constructed, or are to be constructed; such title to the land as aforesaid having been duly certified by an Attorney-at-law, or by an Advocate of not Jess than three year& standing. Section 4 of the above mentioned Act reads as under : "Notwithstanding anytlµpg contained in any other Jaw, a promoter who intends to construct or constructs a block or building of flats, all or some of which are to be taken or are taken on ownership basis, shall, before he a:cepts any sum of money as advance payment or deposit, which shall no~ be more than 20 per cent **of** **the** _A B RAMESHCHANDRA _v._ A. p, JHAVERI _(Khanna,_ _J.)_ 695· sale price enter into a written agreement for sale with each of such persons who are to take or have taken such flats, and the agreement shall be registered under the Indian Registration A.ct, 1908 and such agreement shall contain the prescribed particulars; and to such agreement there shall be attached, such documents or copies thereof, in respect of such matters, as may be prescribed." Section 13 of the Maharashtra Act which deals with offences by promoters is in the following words : ###### c ##### ' ' # "13. Anv promoter who, without reasonable excuse, foils to comply with or contravenes any provision of this ###### c Act or of any rule made thereunder shall, where no other penalty is expressly provided for, on conviction, be punished with imprisonment for a tenn which may extend to one year or with fine which may extend two thousand rupees, or with both; and a promoter who commits criminal breach of trust of any D amount advanced or deposited with 'him for the pur poses mentioned in section 5 shall, 011 conviction, be punished with imprisonment for a term which may extend to four years, or with fine, or with both." It would follow from the perusal of the above mentioned pro.visions that a promoter who without reasonable excuse fails to E comply with or contravenes the provisions of sub-section 2 (a) of section 3 or section 4 of the Maharashtra Act would be guilty of an offence under section 13 of that Act and be liable to be punished accordingly. The allegations against the appellant were that he was guilty of the offence under section 13 of the Maharashtra Act because of the contravention of section 4 and subF section 2(a) of section 3 of the said Act. As the said offence was D section 2(a) of section 3 of the said Act. As the said offence was , not compoundable with or without the permission of the court, G H the order of the trial magistrate, in our view, in acquitting the accused becau~e {)f the. COffijlosition of the offences cannot be said to be 'Jn accordance with law. In the cas,e of _K._ _Chinnaswamy_ _Reddy_ v.· _State_ _of Andhra_ _Pradesh(_ _[1]_ _)_ this Court mentioned the circumstances under which an order of acquittal can be set aside in revision by the HighCourt and observed in this context : "We may however indicate some cases of this kind, which would in our opinion justify the High Court in interfering with a finding of acquittal in revision. These cases may be : where the trial court has n6 jurisdiction to try the case but has still acquitted the accused, or where (l) [1963] 3 S. C. R. 412. 696 SUPREME COURT lll!PORTS [1973] 2 S,C,R. the trial court has wrongly shut out evidence which the prosecution wished to produce, or where the appeal court has wrongly held evidence which was admitted by the trial court to be iµadmissible, or where material evidence has been overlooked either by the trial court or by the appeal court, or where the acquittal is based on a compounding of the offence, which is invalid under the law. These and other cases of similar nature can properly be held to be cases of exceptional nature, where the High <Court can justifiably interfere with an order of acquittal; and in such a case it is obvious that it cannot be said that the High Court was doing indirectly what it could not do directly in view of the provisions of section 439(4)." It would follow from the above that where an acquittal is based on the compounding of an offence and the compounding is invalid under the law, the acquittal would be liable to be set aside by the High Court in exe~ise of its revisional powers. As the acquittal of the appellant by the trial court in the pres~nt case was based upon the compounding of an offence which was not compoundable, the High Court in our view righdy set aside the acquittal of the appellant. It is no doubt true that the High Court acted _suo motu_ in setting aside the acquittal of the appellant, but that fac~ would not show that there was any irregularity in the procedure adopted by the High Court. The opening words of section 439 of the Code of Criminal Procedure, _viz,_ "In the case of any proceedings the record of which has been called for 'by itself or which has been reported for orders or which otherwise comes to its knowledge", as observed by this Court' in the case of _The_ _State_ _uf Kera/a_ v. _Narayani Amma Kamala Devi(_ _[1]_ _)_ produce the result that revisional jurisdiction can be exercised by the High Court by being moved either by the convicted person himself or by any other person or _suo motu_ on the basis of its own knowledge derived from any source whatsoever without being moved by any person at all. All that is necessary to bring the High Court's powers of revision into operation is such information as makes the High Court think that an order mac.le by a Subordinate Court is fit for the exerci~e of its powers of revision. Mr. Bhandare has argued that even if the acquittal of the appellant for the offence under section 13 of 'the Maharashtra Act could be set aside by the High Court on the ground that the said offence could !!Ot be le_gally compounded, the High Court should not have interfer~ with the acquittal in so far as it related to an -offence under section 4 20 Indian Penal Code. In this respect we (!) [1962] Supp. 3 S. C. R. 943. A B ###### c D E F G H A B #### c D RAMESHCtIANDRA _v._ A. P. JHAVERI _(Khanna,_ J.) 691 find that an offence under section 420 Indian J>enal Code can be compounded only with the permission of the court No order granting such permission ha5 been brought to our notice. Even· if we were to assume that such permission was granted, as submitted by Mr. Bhandare, we do not know the precise language in which the order granting permission was couched. In the absence of the copy of that order, it is difficult to predicate as to whether the magistrate would. have granted the permission to compound the offence :.mder section 420 Indian Penal Code if he was aware that the offence under section 13 of the Maharashtra Act was not compoundable and the case in any event would have to be pro· ceeded with so far as the latter offence was concerned. All the same it appears that the said permission was one indivisible per· mission for the offences under section 420 Indian Penal Code and section 13 of the Maharashtra Act. As no valid perl'lission could be granted for the compounding of an offence under section 13 of the Maharashtra Act, the permission would have to be held to be invalid in its entirety. It is n~ permissible in such an event to sever the permission iµto two parts and to uphold it so far as the offence under section 420 Indian Penal Code is concerned and hold i~ to be invalid in respect of the offence under section 13 of the Maharashtra Act. The appeal consequently fails and is dismissed. V.P.S. _Appeal dlsmissed._