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TMI Blog1972 (10) TMI 138X X X X Extracts X X X X X X X X Extracts X X X X ..... th 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essly 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 pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpounded 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 indivisi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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