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1981 Supreme(Bom) 320
IN THE HIGH COURT OF BOMBAY
D.M. Rege. J
Bhupal Anna Bharisheth others .... Petitioners.
Versus
State of Maharashtra others.... Respondents.
Criminal Application No. 634 of 1981, decided on 2/3-12-1981.
Advocates appeared :
V.H. Gumaste with Nirmal M. Bagawade, for petitioners.
J.A. Barday, P.P., for State.
Jawahar Thakkar, for respondent Nos. 1 4.
M.R. Kulkarni and Rashmi Tridvedi, for respondent No. 3.
The proviso to section 468 of the Code of Criminal Procedure provides that the limitation period for offenses that could be tried together should be determined with reference to the offense punishable with the more severe punishment.
Headnote:
CRIMINAL PROCEDURE CODE - SECTION 468 - LIMITATION - CONTINUING OFFENCES - PROVISO - SEVERE PUNISHMENT - OFFENCES TRIED TOGETHER - MAHARASHTRA OWNERSHIP FLATS ACT, 1963 - SECTIONS 4, 10, 11, 13 - OFFENCES UNDER THE ACT - PUNISHABLE WITH IMPRISONMENT UP TO ONE YEAR - OFFENCE UNDER SECTION 420 IPC - PUNISHABLE WITH IMPRISONMENT FOR 7 YEARS - OFFENCES COULD BE TRIED TOGETHER - OFFENCE UNDER SECTION 420 IPC NOT COVERED BY LIMITATION - OTHER OFFENCES TRIED ALONG WITH IT ALSO NOT COVERED BY LIMITATION.
Fact of the Case:
Petitioner, accused No. 1, sought to quash proceedings arising from a complaint filed against him by the 1st respondent for offenses under sections 4, 10, and 11 of the Maharashtra Ownership Flats Act, 1963, and for breach of trust under section 13 of the same Act. The complaint alleged that the petitioner had accepted advance payments for the sale of flats without entering into a written agreement and registering it, failed to form a cooperative society or company within the prescribed time, failed to convey the property to the society within the prescribed time, and used the amount deposited for a specific purpose for a different purpose. The petitioner contended that the offenses were barred by limitation under section 468 of the Code of Criminal Procedure and that the complaint did not disclose a prima facie case.
Finding of the Court:
The court held that the complaint disclosed a prima facie case against the petitioner for offenses under sections 4, 10, and 11 of the Maharashtra Ownership Flats Act, 1963, and for cheating under section 420 of the Indian Penal Code. However, the court held that the allegation of breach of trust under section 13 of the Act did not disclose a prima facie case. The court also held that the offenses were not barred by limitation under section 468 of the Code of Criminal Procedure because the proviso to that section applied, which provided that the limitation period for offenses that could be tried together should be determined with reference to the offense punishable with the more severe punishment.
Issues: 1. Whether the complaint disclosed a prima facie case against the petitioner? 2. Whether the offenses were barred by limitation under section 468 of the Code of Criminal Procedure?
Ratio Decidendi: 1. The court held that the complaint disclosed a prima facie case against the petitioner for offenses under sections 4, 10, and 11 of the Maharashtra Ownership Flats Act, 1963, and for cheating under section 420 of the Indian Penal Code. The court found that the petitioner had accepted advance payments for the sale of flats without entering into a written agreement and registering it, failed to form a cooperative society or company within the prescribed time, failed to convey the property to the society within the prescribed time, and used the amount deposited for a specific purpose for a different purpose. The court found that these facts, if uncontroverted, would make out a case against the petitioner. 2. The court held that the offenses were not barred by limitation under section 468 of the Code of Criminal Procedure because the proviso to that section applied, which provided that the limitation period for offenses that could be tried together should be determined with reference to the offense punishable with the more severe punishment. In this case, the offense under section 420 of the Indian Penal Code was punishable with imprisonment for 7 years, while the offenses under the Maharashtra Ownership Flats Act, 1963 were punishable with imprisonment for up to one year. Therefore, the court held that the offenses under the Act were not covered by the limitation period in section 468 and could be tried together with the offense under section 420 of the Indian Penal Code.
Final Decision: The court discharged the rule nisi except in respect of the alleged offense of breach of trust under section 13 of the Maharashtra Ownership Flats Act, 1963. The court quashed the proceedings and process issued by the learned Magistrate in respect of the said offense.
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
