# RAMESaCHANDRAJ. THAKKAR v. A. P. JHAVERI & ANR

- **Citation:** [1973] 2 S.C.R. 691
- **Court:** Supreme Court of India
- **Decided:** 1972-10-13
- **Case number:** Criminal Revision Application No. 9 of 1972
- **Bench:** H R. Khanna Andy. V. Chandrachud
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/ramesachandraj-thakkar-v-a-p-jhaveri-anr-5889
- **Pages:** 7

## Headnote

Code of Criminal Procedure (Act 5 of 1898) s. 439-Revisional
Powtr of lfigll Court-Trial Court allowing compo1111di11g of a 11011compotmdable offence and offence under s. 420, /.P.C. and acquitting
accused--Order one and Indivisible-Power of High Court lo set asidd
acquittal for borll offences.
, The respondent filed a complaint against the c,ppellnnt nllcging that
he .had committed offences under s. 4t0 I.P.C., e.nd s. 13 of the Maha·
rashtra Ownership of Flats (Regulation of the Promotion of O>nstruc·
tion, Sale, Management and Trtonsfer) Act, 1963,
in
thBt
he
had
contravened ss. 3(2) (a) a.nd 4 of the Act.
><fter some evidence was
recorded the Magistrate passed an order that since
the
accused
had
undert~ken to do cer!Un 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
tl!.lcing action for contempt of Court. The Magistrate directed that the
papers may be sent to the High Court 'for
appropria!e
action.
The
High Court in revision, after notic.: 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 '4'pellant and directed that the Magistrate should proceed
with the trial.
Dismissing the appeal to. this Court,
HELD: (IJ The offence under s. 13 of the Mahara.•htra Act. WM
not compoundable with or without the permission of the· Court.
Where
an acquittal is based on compounding and the compounding is inv&lid
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 compoun~able the High
Court rightly set aside the acquittal of the appellant. [695E-G; 696C-E]
K. Chinnaswamy Reddy v. Sate of Andhra Pradesh. [i963] 3 S.C.R;
412, followed.
(~) Even though the High Court acted suo 1notu in setting aside the
acquittal of the appella.nt there was no irregularity in the procedure
adopt~d by the High ~urt: All that. is ~ecessar~. to bring the High
Court~ powers of . rev1s1on into operation !S, such information as makes
the High Court thmk that an order made by a Subordinate Court i~ fit
for the exercise of its powers of revision. [696E, G]
State of Kera/av. Narayani Amma Kamala Devi, [1962] Supp. 3 S.C.R.
943, followed.
(3) ~ere is no sl!bstance in t~e ~ntention that High Court should
not have mterfered with the acqmttal m so far f!f! it related
to
the
offence under s. 420, I.P.C. [696H]
(a)
1:'11~ offence under _11. 420 l.P.C. can be compounded only with
the permission of the Court and. no order granting IUCh permission has
been produced before this Court. [697AJ
692
SUPREME COURT REPORTS
[1973) 2 s.c.R.
(b) Assuming that such permission . had been granted it. is nece$SOl'}'
A
to know the precise language, because, it is difficult to predicate whether
the Magistrate would have granted the permission
to compound
the
<Jffence under s.420, I.P.C., if he was aware that the offence under s. 13
of the Maharashtra Act was not compoundable. [697 A-Bl
(c) Moreover, the permission was on~ indivisible
pe~mission for
both the offences, and in such an event, it IS not penwssible to sever
B
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)
CRIMINAL APPELLATE
JURISDICTION ;
Criminal
Appeal
No. 88 of I 972.
Appeal by ~pecial leave from the judgment and order dated
January 24, I 972 of the Bombay High Court in Criminal Revision Application No. 9 of 1972.
M. C Blwntlare, R. Nagaratnam,
P.
H.
Parekh and S.
Bhandare, for the appellant.
c
N. H. flingorani and K. Hingdrani, for respondent No. 1.
D
B. D. Sharma, for respondent No. 2.

## Text

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691
RAMESaCHANDRAJ. THAKKAR
v.
A. P. JHAVERI & ANR.
October 13, 1972
(H R. KHANNA ANDY. V. CHANDRACHUD, JJ.]
Code of Criminal Procedure (Act 5 of 1898) s. 439-Revisional
Powtr of lfigll Court-Trial Court allowing compo1111di11g of a 11011compotmdable offence and offence under s. 420, /.P.C. and acquitting
accused--Order one and Indivisible-Power of High Court lo set asidd
acquittal for borll offences.
, The respondent filed a complaint against the c,ppellnnt nllcging that
he .had committed offences under s. 4t0 I.P.C., e.nd s. 13 of the Maha·
rashtra Ownership of Flats (Regulation of the Promotion of O>nstruc·
tion, Sale, Management and Trtonsfer) Act, 1963,
in
thBt
he
had
contravened ss. 3(2) (a) a.nd 4 of the Act.
><fter some evidence was
recorded the Magistrate passed an order that since
the
accused
had
undert~ken to do cer!Un 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
tl!.lcing action for contempt of Court. The Magistrate directed that the
papers may be sent to the High Court 'for
appropria!e
action.
The
High Court in revision, after notic.: 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 '4'pellant and directed that the Magistrate should proceed
with the trial.
Dismissing the appeal to. this Court,
HELD: (IJ The offence under s. 13 of the Mahara.•htra Act. WM
not compoundable with or without the permission of the· Court.
Where
an acquittal is based on compounding and the compounding is inv&lid
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 compoun~able the High
Court rightly set aside the acquittal of the appellant. [695E-G; 696C-E]
K. Chinnaswamy Reddy v. Sate of Andhra Pradesh. [i963] 3 S.C.R;
412, followed.
(~) Even though the High Court acted suo 1notu in setting aside the
acquittal of the appella.nt there was no irregularity in the procedure
adopt~d by the High ~urt: All that. is ~ecessar~. to bring the High
Court~ powers of . rev1s1on into operation !S, such information as makes
the High Court thmk that an order made by a Subordinate Court i~ fit
for the exercise of its powers of revision. [696E, G]
State of Kera/av. Narayani Amma Kamala Devi, [1962] Supp. 3 S.C.R.
943, followed.
(3) ~ere is no sl!bstance in t~e ~ntention that High Court should
not have mterfered with the acqmttal m so far f!f! it related
to
the
offence under s. 420, I.P.C. [696H]
(a)
1:'11~ offence under _11. 420 l.P.C. can be compounded only with
the permission of the Court and. no order granting IUCh permission has
been produced before this Court. [697AJ
692
SUPREME COURT REPORTS
[1973) 2 s.c.R.
(b) Assuming that such permission . had been granted it. is nece$SOl'}'
A
to know the precise language, because, it is difficult to predicate whether
the Magistrate would have granted the permission
to compound
the
<Jffence under s.420, I.P.C., if he was aware that the offence under s. 13
of the Maharashtra Act was not compoundable. [697 A-Bl
(c) Moreover, the permission was on~ indivisible
pe~mission for
both the offences, and in such an event, it IS not penwssible to sever
B
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)
CRIMINAL APPELLATE
JURISDICTION ;
Criminal
Appeal
No. 88 of I 972.
Appeal by ~pecial leave from the judgment and order dated
January 24, I 972 of the Bombay High Court in Criminal Revision Application No. 9 of 1972.
M. C Blwntlare, R. Nagaratnam,
P.
H.
Parekh and S.
Bhandare, for the appellant.
c
N. H. flingorani and K. Hingdrani, for respondent No. 1.
D
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
jud;;ment 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 acwrdance with law.
Parrnanand 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 pe1sons 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 f,he 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
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llbfBSHCHANDRA V, A, P. JHAVER.I (Khanna, /,)
693
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against the 'ppellant. The following charges were framed against
the appellant on April 2, 1970 :
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"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 fiats;
(2) Failed to get the written agreements in respect
of flat~ registered under the Indian Registration
Act
(3) That you induced the complainant to part with
Rs. 28000 oc false and dishonest representation
that you would construct fiats at Malad and give
him three fiats of certain area in his possession;
and thereby committed an offence
punis!J.abile
o
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 :
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"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 acqμ\tted."
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- 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 fiats by If certain date or
tc. pay back the amount in cash, the said undertaking had not been
fulfilled. Prayer was made .that action be taken against the appel- •
lant for contempt of court. The trial magistrate passed an order
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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 contei;npt 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
II 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
'
694
SUPREME COURT REPORTS
[1973] 2 s.c.R.
acquittal made against tlle appellant should be set aside. Before
that, on an earlier date of hearing, notice had been given ti'\ the :I!
appellant to show cause why the order of acquittal shoq1d not be
set aside. The High C_ourt consequently set aside the order of
acquittal and directed the trial magistrate to proceed witl1
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.
B
Hingorani on behalf of respondent No. 1 and Mr. Shar~a on
behalf of the State of Maharashtra, we have come to the conclusion that the present appeal is bereft of any merit. It wouI1' appear
from. the resume of facts given above that complaints':· ag11inst
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 420 Indian Penta! Code is concerned, it is compoundable with the permission of the court. The
offence under section 13 of the Maharashtra Act h,
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 ei:cept as
provided by . this section. The word "offence" has been \defined
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in clause ( o) of section 4 (1) of the Code 10 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 per~on who constructs or
causes to be constructed a block or bm1ding 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 pers_om, 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 Jess than three year& standing. Section 4
of the above mentioned Act reads as under :
"Notwithstanding anytlμpg contained in any other
Jaw, 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 a:cepts any sum of money as advance payment or
deposit, which shall no~ be more than 20 per cent of the
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RAMESHCHANDRA v. A. p, JHAVERI (Khanna, J.)
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 A.ct, 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 following words :
"13. Anv promoter who, without reasonable excuse,
foils 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 tenn 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, 011 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
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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 was guilty of the offence under section 13 of the Maharashtra Act because of the contravention of section 4 and subF
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section 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 becau~e {)f the. COffijlosition of the offences cannot be said
to be 'Jn accordance with law.
In the cas,e 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 HighCourt 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 has n6 jurisdiction to
try the case but has still acquitted the accused, or where
(l) [1963] 3 S. C. R. 412.
696
SUPREME COURT lll!PORTS
[1973] 2 S,C,R.
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 iμadmissible, 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 exe~ise of its revisional powers. As the acquittal of the appellant by the trial court in the pres~nt case was
based upon the compounding of an offence which was not compoundable, the High Court in our view righdy 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 fac~ 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 uf Kera/a 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 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 mac.le by a Subordinate Court is fit for the exerci~e 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 !!Ot be le_gally compounded, the High Court should
not have interfer~ with the acquittal in so far as it related to an
-offence under section 4 20 Indian Penal Code. In this respect we
(!) [1962] Supp. 3 S. C. R. 943.
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RAMESHCtIANDRA v. A. P. JHAVERI (Khanna, J.)
691
find that an offence under section 420 Indian J>enal Code can be
compounded only with the permission of the court No order granting such permission ha5 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 :.mder 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 was one indivisible per·
mission for the offences under section 420 Indian Penal Code and
section 13 of the Maharashtra Act. As no valid perl'lission 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 n~ permissible in such an event
to sever the permission iμto two parts and to uphold it so far as the
offence under section 420 Indian Penal Code is concerned and
hold i~ 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 dlsmissed.