LawDistill
Supreme Court of India

RAMESHCHANDRA J, THAKKAR vs A. P. JHAVERI & ANR on 13 October, 1972

Cites 3 provisionsCites 2 judgmentsCited by 1
Official PDFBench Hans Raj Khanna, Yeshwant Vishnu Chandrachud
PETITIONER:
RAMESHCHANDRA J, THAKKAR
Vs.
RESPONDENT:
A. P. JHAVERI & ANR.
DATE OF JUDGMENT13/10/1972
BENCH:
KHANNA, HANS RAJ
BENCH:
KHANNA, HANS RAJ
CHANDRACHUD, Y.V.
CITATION:
1973 AIR 84 1973 SCR (2) 691
1973 SCC (3) 884
CITATOR INFO :
RF 1977 SC2279 (27)
ACT:
Code of Criminal Procedure (Act 5 of 1898) s. 439-Revisional
Power of High Court-Trial Court allowing compounding of a
noncompoundable offence and offence under s. 420, I.P.C. and
acquitting accused-Order one and indivisible-Power of High
Court to set aside acquittal for both offences.
HEADNOTE:
The respondent filed a complaint against the appellant
alleging that he had committed offences under s. 420 I.P.C.,
and s. 13 of the Maharashtra Ownership of Flats (Regulation
of the Promotion of Construction, Sale, Management and
Transfer) Act, 1963, in that he had contravened ss. 3(2)(a)
and 4 of the Act. After some evidence was recorded the
Magistrate passed an order that since the accused had
undertaken to do certain 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
...............
...............
as follows
(1) Failed to make full and true disclosure
of the nature of his tide to the land on which
he intended to construct the flats;
(2) Failed to get the written agreements in
respect of flats registered under the Indian
Registration Act.
(3) That you induced the complainant to part
with Rs. 28000 on false and dishonest
representation that you would construct flats
at Malad and give him three flats of certain
area in his possession; and thereby committed
an offence punishable 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
trial magistrate passed the following order:
"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 acquitted."
On August 17, 1970 respondent No. 1 filed an application be-
fore the trial magistrate stating that though the appellant
had undertaken to deliver possession of the flats by a
certain date or to pay back the amount in cash, the said
undertaking had not been fulfilled. Prayer was made that
action be taken against the appellant for contempt of court.
The trial magistrate passed an order 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
contempt 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
judges constituting the Division Bench took the view that it
was not a fit case in which act-ion 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
acquittal made against the appellant should.be set aside.
Before that, on an earlier date of hearing, notice had been
given to the appellant to show cause why the order, of
acquittal should not be set aside. The High Court
consequently set aside; the order of acquittal and directed
the trial magistrate to proceed with 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.
Hingorani on behalf of respondent No. 1 and Mr. Sharma on
behalf of the State of Maharashtra, we have come to the
conclusion that the present appeal is bereft of any merit.
It would appear from the resume of facts, given above that
complaints against 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 Pental Code is concerned, it is compoundable with
the permission of the court. The offence under section 13
of the Maharashtra Act is, 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 except as provided
by this section. The word "offence’ has been defined in
clause (o) of section 4(1) of the Code to 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 person who constructs
or causes to be constructed a block or
building 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 persons, 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 less than three years standing. Section 4 of the above
mentioned Act reads as under:
"Notwithstanding anything contained in any
other law, 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
accepts any sum of money as advance payment
deposit, which- shall not be more than 20 per
cent of the
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 Act 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
followings words
"13. Any promoter who, without reasonable
excuse, fails to comply with or contravenes
any provision of this Act or of any rule made
thereunder shall, where no other penalty is
expressly provided for, on conviction, be
punished with imprisonment for a term 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 amount advanced or deposited with
him for the purposes mentioned in section 5
shall, on 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 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 ",as guilty of the offence under
section 13 of the- Maharashtra Act because of the
contravention of section 4 and subsection 2(a) of section 3
of the said Act. As the said offence was not compoundable
with or without the, permission of the court, the order of
the trial magistrate, in our view, in acquitting the accused
because of the composition of the offences cannot be said to
be in accordance with law.
In the case 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 High Court 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 hag no jurisdiction to
try the case but has still acquitted the
accused, or where
(1) [1963] 3 S. C. R. 412.
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 inadmissible, 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 exercise of its revisional
powers. As the acquittal of the appellant by the trial
court in the present case was based upon the compounding of
an offence which was not compoundable, the High Court in our
view rightly 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 fact
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 of Kerala 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 made by a Subordinate Court
is fit for the exercise 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 not be legally
compounded, the High Court should not have interfered with
the acquittal in so far as it related to an offence under
section 420 Indian Penal Code. In this respect we
(1) [1962] Supp. 3 S. C. R. 943.
find that an offence under section 420 Indian Penal Code can
be compounded only with the permission of the court. No
order granting such permission has 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 under
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 war, one
indivisible per. mission for the offences under section 420
Indian Penal Code and section 13 of the Maharashtra Act. As
no valid permission 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 not permissible in, such an event to sever
the permission into two parts and to uphold it so far as the
offence under section 420 Indian Penal, Code is concerned
and hold it 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 dismissed.

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 88 of 1972. Appeal by special leave from the judgment and order dated January 24, 1972 of the Bombay High Court in Criminal Revision Application No. 9 of 1972. M.C, Bhandare, R. Nagaratnam, P. H. Parekh and S. Bhandare, for the appellant. N. H. Hingorani and K. Hingorani, for respondent No. 1. 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 judgment 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 accordance with law. Parmanand 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 persons 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 the 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 against the appellant. The following charges were framed against the appellant on April 2, 1970 :

"I........ do hereby- charge you:

as follows

(1) Failed to make full and true disclosure

of the nature of his tide to the land on which

he intended to construct the flats;

(2) Failed to get the written agreements in

respect of flats registered under the Indian

Registration Act.

(3) That you induced the complainant to part

with Rs. 28000 on false and dishonest

representation that you would construct flats

at Malad and give him three flats of certain

area in his possession; and thereby committed

an offence punishable 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 trial magistrate passed the following order:

"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 acquitted." 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 flats by a certain date or to pay back the amount in cash, the said undertaking had not been fulfilled. Prayer was made that action be taken against the appellant for contempt of court. The trial magistrate passed an order 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 contempt 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 judges constituting the Division Bench took the view that it was not a fit case in which act-ion 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 acquittal made against the appellant should.be set aside. Before that, on an earlier date of hearing, notice had been given to the appellant to show cause why the order, of acquittal should not be set aside. The High Court consequently set aside; the order of acquittal and directed the trial magistrate to proceed with 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. Hingorani on behalf of respondent No. 1 and Mr. Sharma on behalf of the State of Maharashtra, we have come to the conclusion that the present appeal is bereft of any merit. It would appear from the resume of facts, given above that complaints against 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 Pental Code is concerned, it is compoundable with the permission of the court. The offence under section 13 of the Maharashtra Act is, 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 except as provided by this section. The word "offence’ has been defined in clause (o) of section 4(1) of the Code to 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 person who constructs

or causes to be constructed a block or

building 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 persons, 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 less than three years standing. Section 4 of the above mentioned Act reads as under:

"Notwithstanding anything contained in any

other law, 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

accepts any sum of money as advance payment

deposit, which- shall not be more than 20 per

cent of the

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 Act 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

followings words

"13. Any promoter who, without reasonable

excuse, fails to comply with or contravenes

any provision of this Act or of any rule made

thereunder shall, where no other penalty is

expressly provided for, on conviction, be

punished with imprisonment for a term 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 amount advanced or deposited with

him for the purposes mentioned in section 5

shall, on 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 provisions that a promoter who without reasonable excuse fails to 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 ",as guilty of the offence under section 13 of the- Maharashtra Act because of the contravention of section 4 and subsection 2(a) of section 3 of the said Act. As the said offence was not compoundable with or without the, permission of the court, the order of the trial magistrate, in our view, in acquitting the accused because of the composition of the offences cannot be said to be in accordance with law. In the case 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 High Court 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 hag no jurisdiction to

try the case but has still acquitted the

accused, or where

(1) [1963] 3 S. C. R. 412.

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 inadmissible, 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 exercise of its revisional powers. As the acquittal of the appellant by the trial court in the present case was based upon the compounding of an offence which was not compoundable, the High Court in our view rightly 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 fact 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 of Kerala 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 made by a Subordinate Court is fit for the exercise 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 not be legally compounded, the High Court should not have interfered with the acquittal in so far as it related to an offence under section 420 Indian Penal Code. In this respect we (1) [1962] Supp. 3 S. C. R. 943. find that an offence under section 420 Indian Penal Code can be compounded only with the permission of the court. No order granting such permission has 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 under 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 proceeded with so far as the latter offence was concerned. All the same it appears that the said permission war, one indivisible per. mission for the offences under section 420 Indian Penal Code and section 13 of the Maharashtra Act. As no valid permission 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 not permissible in, such an event to sever the permission into two parts and to uphold it so far as the offence under section 420 Indian Penal, Code is concerned and hold it 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 dismissed.