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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 acquitted.   As the appellant went back on  the  undertaking the  respondent moved the Magistrate for taking  action  for contempt of Court.  The Magistrate directed that the  papers may be sent to the High Court ’for appropriate action.   The High  Court in revision, after notice 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  appellant  and directed that the Magistrate should proceed with the trial. Dismissing the appeal to this Court, HELD  : (1) The offence under s. 13 of the  Maharashtra  Act was  not compoundable with or without the permission of  the Court.   Where an acquittal is based on compounding and  the compounding is invalid 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  compoundable  the High Court rightly set aside the acquittal of the appellant. [695E-G; 696C-E] K.   Chinnaswamy  Reddy v. Sate of Andhra Pradesh, [1963]  3 S.C.R. 412, followed. (2)  Even  though the High Court acted suo motu  in  setting aside   the  acquittal  of  the  appellant  there   was   no

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irregularity  in  the procedure adopted by the  High  Court. 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. [696E, G] State of Kerala v. Narayani Amma Kamala Devi, [1962] Supp. 3 S.C.R. 943, followed. (3)  There  is  no substance in the  contention  that  High, Court  should not have interfered with the acquittal  in  so far as it related to the offence under s. 420, I.P.C. [696H] (a)  The offence under s. 420 I.P.C. can be compounded  only with the permission of the Court and no order granting  such permission has been produced before this Court.-[697A] 692 (b)Assuming  that such permission had been granted  it  is necessary  to  know  the precise language,  because,  it  is difficult  to  predicate whether the Magistrate  would  have granted the permission to compound the offence under s. 420, I.P.C., if he was aware that the offence under s. 13 of  the Maharashtra Act was not compoundable. [697A-B] (c)moreover, the permission was one indivisible permission for  both  the  offences, and in such an event,  it  is  not permissible  to sever 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]

JUDGMENT: 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  Revi- sion 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 693

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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 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 694 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

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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               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   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

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             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.               696               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

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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. 697 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.  698