Judgment

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.

2. 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 title 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. 28,000/- 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 Sections 3 and 4 R/W Sections 13-14, Maharashtra Ownership of Flats Act and Section 420 of the Indian Penal Code and within my cognizance."

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 agrees to the agreement and the case is compounded and accused acquitted."

3. 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.

4. 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 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 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 h