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Bhupal Anna Bharisheth and ors. Vs. State of Maharashtra and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai High Court
Decided On
Case NumberCriminal Application No. 634 of 1981
Judge
Reported in1982(1)BomCR340
ActsCode of Criminal Procedure (CrPC) , 1973 - Sections 468; Maharashtra Ownership Flats (Regulation of the Promotion Construction, Sales Management and Transfer) Act, 1963 - Sections 4, 10 and 11; Indian Penal Code (IPC), 1860 - Sections 420; Maharashtra Ownership Flats (Regulation of the Promotion of Construction, etc.) Rules, 1964 - Rules 8 and 9; Indian Registration Act
AppellantBhupal Anna Bharisheth and ors.
RespondentState of Maharashtra and ors.
Appellant AdvocateV.H. Gumaste and ;Nirmal M. Bagawade, Advs.
Respondent AdvocateJ.A. Barday, P.P., ;Jawahar Thakkar, Adv. for respondent Nos. 1 and 4, ;M.R. Kulkarni and ;Rashmi Tridvedi, Advs. for respondent No. 3
Excerpt:
.....1964 - petition for quashing of proceedings - allegation that complaint was not maintainable as offences alleged in complaint were barred under section 468 - complaint as well as police report disclosed prima facie against accused offences regarding contravention of sections 4, 10 and 11 as punishable under section 13 and also offence under section 420 - allegation in complaint fail to disclose prima facie offence of breach of trust under section 13 - offences alleged which could be prima facie sustained at least for purpose of issuing process were under sections 4, 10 and 11 barred by limitation under section 468 - offence under section 420 not covered by section 468 to be barred by limitation - offences alleged arose out of same transaction to be tried together - since offence under..........against him by one kantilal parekh, 1st respondent herein, being case no. 91/w of 1979 before the learned magistrate, 29th court, dadar and for setting aside the order for issue of process made therein by the learned magistrate and also for setting aside the orders of the sessions judge and magistrate holding that the offences mentioned in the said complaint were not bared by law of limitation.2. at the outset, it may be pointed out that although the magistrate has issued process only against petitioner no. 1 i.e. accused no. 1 viz. bhupal anna bhairsheth his two sons ajit and suresh who were accused nos. 2 and 3 have also joined in this petition as petitioners. obviously, they cannot have any grievance against the said order of process and can have no locus standi in the matter. so far.....
Judgment:

D.M. Rege, J.

1. This is a petition under Article 27 of the Constitution of India by the accused No. 1 for quashing of proceeding, arising out of a complaint filed against him by one Kantilal Parekh, 1st respondent herein, being Case No. 91/W of 1979 before the learned Magistrate, 29th Court, Dadar and for setting aside the order for issue of process made therein by the learned Magistrate and also for setting aside the orders of the Sessions Judge and Magistrate holding that the offences mentioned in the said complaint were not bared by law of limitation.

2. At the outset, it may be pointed out that although the Magistrate has issued process only against petitioner No. 1 i.e. accused No. 1 viz. Bhupal Anna Bhairsheth his two sons Ajit and Suresh who were accused Nos. 2 and 3 have also joined in this petition as petitioners. Obviously, they cannot have any grievance against the said order of process and can have no locus standi in the matter. So far as they are concerned, therefore, the rule granted in their favour would stand discharged.

3. The petitioners have apart from respondent No. 1 made other persons parties viz. M/s. Naigaum, Co-operative Housing Society Ltd., the Municipal Corporation for Greater Bombay, M/s. Naigaum Bhupal Co-operative Society Ltd. Party respondents to the petitioners. It is very difficult to see how in this petition for quashing of proceedings they could ever be made parties. The petition against them is clearly misconceived and must be rejected in lamine.

4. The petitioners for the first time, have annexed to this petition various documents being annexures 1 to 22 and mentioned therein various facts, most of which are not in any manner relevant for the purpose of the issues involved in this case and basically vacant to appreciate the defence of the petitioner a accused to the case on merits. The learned Counsel for the petitioners taken me through all the said documents and the fact averred in the petition. However, for the purposes of determining the only question involved in the case viz. quashing of the proceedings, the question of appreciating the defence of the accused on merits based on the said documents and facts averred in the petition, would arise only at the hearing of the complaint. That will be done by the learned Magistrate at the final hearing of the complaint. It would be, therefore, unnecessary for me at this stage to refer to all these document sand facts except some of them, which are necessary for the determination of the question involved in this case.

5. A few facts necessary to deal with the petition may be first stated.

On 5th August, 1943 the Municipal Corporation for Greater Bombay had passed a resolution agreeing to lease out Plot Nos. 60 and 61 to one D.V. Sant and H.M. Karnadikar on representation that they would construct thereof a co-operative society for middle class members who desired to construct a building for their own residential accommodation. However, the resolution cold not be implemented as the society was not formed to execute the necessary agreement between the society and the municipal corporation. Subsequently, it appears that for the sake of convenience the said two plots came to be divided into 11 plots. One of them was plot No. 60-H. The said plot was allotted to Bhupal Anna Bhairsheth and Suresh Bhupal Bhairsheth, petitioner Nos. 1 and 3. On the said plot subsequently in 1976 a firm of builders called Bhupal Construction Company of which the petitioners are partners, constructed a building called 'Shivdarshan' and sold to various persons flats in the same. Two of such flats being Block Nos. 5 and 6 on the first floor admeasuring 828 sq.ft. in the said building, with which we are concerned in this case, were agreed to be sold to the complainant and the first respondent herein by the said M/s. Bhupal Construction Company. It is not disputed that in respect of the sale of the said block the first respondent paid to the said firm the amounts aggregating Rs. 78,860/- as under, for which the firm passed in favour of the complainant receipts on their respective dates.

i) an amount of Rs. 60,090 on 2-11-1976 towards the part sale price of the said blocks;

ii) Rs. 2000/- in cash (Rs. 1000/- for each flat, towards the deposit for legal fees and forming society etc.

iii) Rs. 10,000/- by cheque on 3-12-1976 against part payment of the price of the said blocks and

iv) Rs. 6,500/- cheque on 29-4-1977 towards (SIC)h full and final payment for the said blocks.

Admittedly the complainant was delivered possession of the said block on 4-4-1977. As against the said receipts an agreement for sale of the said blocks was signed on 6-6-1977 by the first petitioner on behalf of the company in the presence of his son Suresh, the third petitioner and by K.H. Parekh on behalf of the complainant also in presence of the said Suresh.

6. It appears that thereafter some time in 1978 the purchasers or occupants of the flats in the said building themselves formed a co-operative society named Naigaum Bhupal Co-operative Housing Society and the same was registered under No. BOM/HSG/5491 of 1978. There is also no dispute that factually for whatever reason the said Plot No. 60-H on which the said construction company constructed the said building was at no time owned by either of the petitioners nor the lease in respect thereof executed in there favour.

7. On the aforesaid undisputed facts the first respondent filed a complaint alleging the petitioners having committed offences under sections 4, 10 and 11 of the Maharashtra Ownership Flats Act, 1963 punishable under section 13 of the said Act and for breach of trust of the amount deposited by him for a particular purpose being used by the petitioner for another purpose also punishable under section 13 of the said Act.

8. Section 4 of the said Act provided, inter alia that the promoter intending to construct or constructing a building shall, before accepting money in advance, which shall not be more than 20 % of the sale price, enter into a written agreement for sale with each flat owner and that such agreement shall be registered under the Indian Registration Act within the prescribed time.

9. Section 10 required the promoter to make an application for registration of a society or a company within the prescribed time, which was fixed by Rule 8 of the Rules made under the Act, at 4 months from the date on which the minimum number of persons required to form such an organization have taken flats.

10. Section 11 of the Act required the promoter to complete his title and convey to the society his right title and interest in the land and building etc. within 4 months as prescribed under Rule 9 from the date on which the co-operative society or company is registered.

11. Section 13 provided that contravention of the said sections without reasonable cause, was an offence punishable with sentences mentioned therein. It also provides for punishment for an offence of breach of trust committed by the promoter of any amount deposited for a particular purpose by using it for, different purpose.

12. After the complaint was filed, the learned Magistrate get the contents of the complaint again verified by the complainant which the Magistrate did in his own hand writing. Thereafter the learned Magistrate as is permissible under the Code of Criminal Procedure felt it desirable to refer the complaint to the police for their report. The police in the course of investigation and before making report, recorded the statements both of the complainant and the first petitioner Bhupa Anna Bahirsheth. In his statement the complainant over and above reiterating the averments and allegations in the complaint, further alleged that Bhupal Construction Company had suppressed from the flat purchasers that none of the partners of the said company was either the owner or the lessee of the said Plot No. 60-H and by suppressing the said material fact and representing that they would convey the property to the society, they had inducted the flat purchasers, including the complainant to part with thousand of rupees and there by the flat purchasers along with the complainant were cheated by the partners of M/s Bhupal Construction Company and committed offences under section 420 of I.P.C.

13. The first petitioner in his statement did not deny the said payments made by the complainant and the receipts issued by the company for the same. However he stated that before they could get the society registered is required under the said Ownership Flats Act the owners of the flats had approached the Bombay Municipal Corporation with a view to get the land leased in the name. The first petitioner denied that he did not intend to form a Co-operative Housing Society of the flat owners. On the contrary he claimed that he had applied to the Registrar of Companies, Maharashtra, Bombay, on 14th March, 1978 requesting him to form the company giving all as information to him and requesting him to register it in the name of Bhupal Apartments Pvt. Ltd. for which he had paid an amount of Rs. 28/- as registration fees. The petitioners have also denied that they have failed to convey the property in the name of Naigaum Bhupal Co-operative Housing Society but contended that they were trying to convey the property in the name of the society through Solicitors and Advocates, but in the mean time the respondents had approached the Municipal Authorities and had got the lease transferred in the name for the said society.

14. As regards the charge of use of the said amount of Rs. 16,000/- (Rupees 1000/- per flat) being used for the purposes other than one mentioned in the receipts, the petitioners have denied having used the said amount for the purposes other than those mention in the receipts. According to the first petitioner they had utilised the said amount towards the deposit to Bombay Municipal Corporation for water charges, deposit to B.E.S.T., salaries to sweepers and watchman and legal fees to Advocate to prepare agreement registration fees and other expenses.

15. The police in its report while mentioning the allegations made by the complainant in the complaint had sustained the prima facie existence of the charge under section 420.

16. After the receipt of the report the learned Magistrate issued process against the first petitioner only on 7-9-1979 and the complaint was registered as Case No. 91/W of 1979.

17. Thereafter the petitioners accused made an application to the learned Magistrate raising a preliminary objection on the ground that the offences alleged in the complaint were barred under section 468 of the Code of Criminal Procedure. According to them the offences under sections 4, 10 and 11 of the said Act alleged to have been committed in 1976-1977, being punishable with imprisonment for a term not exceeding one year, the complaint ought to have been filed within one year thereafter i.e. in 1978, as provided in section 468 of Cri.P.C. and since the present complaint was filed more than one year after the alleged offences, the same was not maintainable.

18. The learned Magistrate trying the said question as a preliminary issue by his order dated 18-4-1980 held that since the said offences were continuing offences the complaint was not barred by limitation under section 468 of Cri.P.C.

19. Against the said order of the learned Magistrate the accused preferred a revision to the Sessions Court being Criminal Revision Application No. 177 of 1980. The learned Special Judge by his order date 8-1-1981 dismissed the same confirming the order of the learned Magistrate.

20. Thereafter the petitioners have filed this application under Article 227 of the Constitution of India for setting aside the orders issuing process and quashing the proceedings before the learned Magistrate as also challenging the order of the learned Sessions Judge and learned Magistrate on the point of limitation.

21. The nature of the inherent jurisdiction of the High Court in the matter of quashing of the proceedings in the lower Court was considered by the Supreme Court in the case of R.P. Kapur v. State of Punjab, reported in : 1960CriLJ1239 . There the Court was concerned with section 561-A at the Old Criminal Procedure Code (section 482 of the present Code). Dealing with the said inherent powers of the Court, the Supreme Court there and down at page 868 as under :---

'It is well established that the inherent jurisdiction of the High Court can be exercised to quash proceedings in a proper case either to prevent the abuse of the process of any Court or otherwise to secure the ends of justice. Ordinarily criminal proceedings instituted against an accused person must be tried under the provisions of the Code and High Court would be reluctant to interfere with the said proceedings at an interlocutory stage. It is not possible, desirable or expedient to lay down and inflexible rule which would govern the exercise of this inherent jurisdiction.'

(Underlining supplied)

The Court then proceeded to point out certain instances in which the High Court would exercise its inherent jurisdiction for quashing proceedings at an interlocutory stage. The instances, relevant for our purpose in this case, where:

i) Where the allegation in the first information report or the complaint even if they were taken at their face value and accepted in their entirely do not constitute an offence alleged, in such cases no question of appreciating evidence arise, it is a matter merely of looking at the complaint or the first information report to decide whether the offence alleged is disclosed or not.

ii) Where the allegations made against the accused person do constitute an offence alleged but there is either no legal evidence adduced I support of the case or the evidence adduced clearly or manifestly fails to prove the charge. In dealing with this class of cases, it is important to bear in mind the distinction between a case where there is evidence, which is manifestly and clearly inconsistent with accusation made and case where citation mayor may not support the accusation in question. In exercising its jurisdiction under section 561-A the High Court would not embark upon an enquiry as to whether the evidence in question is reliable or not. That is the function of the trial Magistrate and ordinarily it would not be open to any part to invoke the High Court's inherent jurisdiction and contend that on a reasonable appreciation of the evidence the accusation made against the accused would not be sustained.'

22. The main thing that the Court will have to see in this case would be, whether the complaint disclose prima facie facts showing ingredients of the offence alleged so that if uncontroverted the accused would be liable for the offence.

23. In the light of the above observations, it would now be convenient to first find out whether the averments in the complaint and the police report would, if uncontroverted, taken at their face value make out a case against the accused.

24. The first allegation is as regards an offence under section 4 of the said Maharashtra Flats Ownerships Act. It is not disputed that the petitioners had accepted from the first respondent towards the sale price of the said flat Rs. 62,090/- on 2-11-1976 and Rs. 10,000/- on 3-12-1976 and Rs. 6,500/- on 29-4-1977 while the agreement was executed on 6-6-1977 and the said agreement was never registered under the Indian Registration Act. The said disputed facts, therefore, disclose that the petitioner had accepted the said amounts which were more than 20% of the sale price long time before the execution of the agreement and the said agreement was not registered by the petitioners before the prescribed time. Therefore, prima facie the said undisputed fact would prima facie disclose an offence under section 4 of the said Act.

25. The learned Counsel for the petitioner has firstly contended that the said section does not cast the obligation of the registration of the agreement on the petitioners i.e. the promoters alone but it was a mutual obligation since the section only speaks about the agreement being registered under the Registration Act. In my view on the proper reading of the section as a whole the said contention cannot be accepted. The said section speaks about the obligations of the promoter requiring him to enter into an agreement before accepting amounts towards sale price of the flat and then registering the said agreement under the Registration Act.

26. The learned Counsel for the petitioners has further contended that since section 13 of the Act which provides for penalty for contravention of section 4 of the Act makes the promoter liable if he was guilty of contravention of the provisions of the Act without any reasonable cause, the complaint ought to have pleaded that the petitioners had contravened the provisions of the Act without any reasonable cause. There being no averments in the complaint, to that effect the complaint cannot be said to have disclosed by offence against the petitioner.

27. The said contention of the learned Counsel for the petitioners which is common to this and other contraventions alleged in the complaint, in my view, cannot be sustained. The want of reasonable cause for contravention mentioned in section 13 was not an ingredient of the offence under the Act as was required to be pleaded by the complainant to prove the charge. It was mentioned only by way of defence to the person contravening provisions of the Act to be relieved of penalty.

28. The other allegations as regards the offence of contravening section 10 of the said Act being failure by the petitioners to take steps within the prescribed time for registration of society or a company. It is alleged in the complaint that the accused did not take any action to form a co-operative society as required under the said Act. Therefore, occupants of the society were compelled to form a society themselves under the name of Naigaum Bhupal Co-operative Housing Society and get it registered under No. BOM/HSG/5491 of 1978.

29. Section 10 of the said Ownership Flats Act and Rule 8 of the rules made thereunder, inter alia, required a promoter as soon as minimum number of persons required to form a co-operative society or a company have taken flat, within four months thereafter to submit an application to the Register for registration of the organisation. Admittedly in this case the promoters i.e. the petitioners had not within the said prescribed time, when there were sufficient number of persons who had taken the flats to form a society or company applied to the Register for the registration of either a society or a company. The learned Counsel for the petitioners argues that the petitioners were to form a company and not a society and pointed out various circumstances for being not able to do so. The said circumstance might constitute for the accused a valid defence of reasonable cause as envisaged under section 13 of the Act to get over the contravention. However, the facts, as stated in the complaint, prima facie disclosed against the petitioner an offence under section 10 of the said Act.

30. The next allegation is as regards an offence for contravening section 11 of the Act. The said section requires the promoter to take all the necessary steps to complete his title and convey to the society or company of persons who had taken the flats, his right title and interest in the building and execute all relevant documents in pursuance of the agreement under section 4 and execute a conveyance within the prescribed time. The time prescribed under Rule 9 of the rules made under the said Act, for this purpose was four months from the date of the registration of the society.

31. Admittedly in this case even today the lease of the land was not made in the name of the petitioners and although the first respondents co-operative society was formed in 1978 no conveyance is executed as yet in favour of the said society nor any title in land and building conveyed to it. The undisputed facts, therefore, disclose at least prima facie an offence under section 11 of the said Act.

32. The learned Counsel for the petitioners in that connection referred me to various documents annexed to his petition to show how by reason of various circumstances and conduct of the members of the society in approaching the Municipality the Bombay Municipal Corporation had not as yet granted a lease of the said plot 60-H in favour of the third petitioner. The consideration of those circumstances which according to the learned Counsel for the petitioner was a reasonable cause for the petitioner in not complying with the provisions of the said section 11 of the Act, and constituted his defence, was really not necessary to be dealt with by me at this stage. It would be for the learned Magistrate to deal with the same on merits at hearing of the complaint.

33. The allegation in the complaint was of breach of trust under section 13 of the said Act in petitioners utilising the amounts taken from the complainant for a specific purpose, for altogether different purpose. The complainant in his complaint had alleged that the petitioners had taken from him Rs. 2000/- (Rs. 1000/- for each flat) so also from other flat owners, for formation of a co-operative society as undertaken by the petitioners, but had used the said amount for other purposes and thereby committed a breach of trust. The petitioner No. 1 in his statement has stated that he utilised the said amount for deposit to the Bombay Municipal Corporation for water charges, deposit to B.E.S.T., salaries to sweepers and watchman, legal fees to the Advocate to prepare agreement and registration fees and other expenses. The learned Counsel for the petitioner produced in the Court the relevant receipts for the said payments.

34. In my view, on the wording of receipts for the said amounts of Rs. 20,000/ issued by the petitioners company, produced at the hearing would not even prima facie disclose an offence alleged.

35. The said receipt for Rs. 2,000/- dated 2-11-1976 shows that the said amount was paid against deposit for legal expenses and forming society etc. The receipts clearly show that the said amount was not only for expenses towards formation of a co-operative society but was for legal fees and other incidental things as indicated by the words 'etc'. The purposes for which the payment were made, out of the said amounts as stated by the petitioners and supported by the receipts were for purposes which ultimately would be the liability of the flat owners. In my view, therefore, so far as the allegation as to the offence of breach of trust under section 13 of the Act in the complaint was concerned, the same even prima facie cannot be sustained.

36. The last allegation that emerges from the police report was as regards the offence of cheating under section 420 of the Indian penal Code. The allegation in the police report was that the said Bhupal Construction Company of the petitioners suppressed from the flat owners that none of the partners was either the owner or a lesses of the said plot 60-H on which the building was constructed and by suppressing the said material fact and representing that they would convey the property to the society they inducted the complainant and the other flat purchasers to part with monies and thereby cheated them.

37. Clauses 1 and 4-B of the agreement of sale in favour of the respondent-complainant clearly brings out such a representation mentioned above. The fact remains that the allegation was that on the basis of such representation the complainant and others had purchased flats and ultimately after the complainant having parted with the large amounts it turned out that the petitioners had no title to the said land, even today either as the owner or a lessee from Bombay Municipal Corporation, which they could transfer to the complainant and others. The said allegation would, therefore, prima facie disclose offence of cheating against the petitioners.

38. In my view, therefore, the complaint as well as the police report disclosed prima facie against the accused offences regarding contravention of sections 4, 10 & 11 as punishable under section 13 of the said Act and so also an offence under section 420 of Indian Penal Code. However in my view the allegation in the complaint that fail to disclose even prima facie an offence of breach of trust as contemplated under section 13 of the said Act.

39. With that I will now deal with the question of limitation raised before me. As I have pointed out earlier on the receipt of the police report an application was made by the first petitioner herein contending that the offence mentioned in complaint and police report were barred by limitation prescribed under section 468 of the Criminal Procedure Code. It was alleged a in reply by the complainant that they were continuing offences. The learned Magistrate held that the said offences alleged being continuing offences, limitation under section 468 of Criminal Procedure Code was not attracted and rejected the said application. The said view of the learned Magistrate was confirmed by the learned Sessions Judge in revision. In the application the petitioners have also sought to challenge the validity of the said order.

40. As I will presently point out in view of the proviso to section 468 of Criminal Procedure Code which was in existence when the complaint was filed, in this case the question as to whether the offences alleged under the said Act were continuous or not was not relevant. Section 468 after prescribing the limitation in case of certain offences, for the Court to take cognizance has in its proviso as under :---

'For the purposes of this section, the period of limitation in relation to offences which may be tried together, shall be determined with reference to the offence which is punishable with more severe punishment, as the case may be, the most severe punishment.'

In this case the offences alleged which could be prima facie sustained at least for the purpose of issuing process were under sections 4, 10 and 11 of the said Act and section 420 of Indian Penal Code. Offences under the said Act were punishable with imprisonment extending to one year, while offence under section 420 Indian Penal Code was punishable with imprisonment for 7 years. Therefore, the offences under the said Act though coming under the provisions of section 468 of the Criminal Procedure Code as being barred by limitation, offence under section 420 being punishable with imprisonment for more than three years would not be covered by section 468 to be barred by limitation.

41. However the proviso to section 468 quoted above would have application in this case only if the offences under the said Act and also offence under section 420 of Indian Penal Code could be tried together. In my view in this case since the offences alleged arose out of one and the same transaction regarding purchase of a flat, they could be tried together. In that case since the offence under section 420 being not covered by limitation under the said section 468 of Criminal Procedure Code, all the other offences tried along with the said offence under section 420 of Indian Penal Code would also not be covered by the said section 468 of Criminal Procedure Code. In that view of the matter the order of the learned Metropolitan Magistrate and learned Sessions Judge rejecting the petitioner's application on the ground of limitation would be confirmed though for different reasons.

42. In the result the rule is discharge save and except in respect of the alleged offence of breach of trust under section 13 of the said Act. Only in respect of the said offence of breach of trust under later part of section 13 of the said Maharashtra Flat Ownership Act, however, the proceedings and the process issued by the learned Magistrate would be quashed.


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