SURESH MOHANLAL GORADIA Vs. HIRALAL G THAKKAR

JUDGEMENT

(1.) Even though this petition by the original accused was filed for quashing of the complaint and for setting aside the orders passed by the learned Metropolitan Magistrate, 10th Court, Andheri and also for setting aside the order passed by the Additional Sessions Judge, Greater Bombay in Criminal Revision Application No. 427 of 1979, subsequent events have confined the scope of this petition to a limited points i.e. as to whether the unsworned complaint by the complainant is fatal to the prosecution i.e. whether non-examination of the complainant on oath........merely amounts irregularity under section 465 of the Code of Criminal Procedure or whether it amounts to illegality and goes to the root of the matter. In order to appreciate the question which has arisen during the course of lengthy arguments on both sided, it may be convenient to briefly refer to the averments in the complaint as well as prosecution case presented in this criminal application in this Court.

(2.) One Hiralal G. Thakkar, the original complainant filed his complaint against the present petitioner original accused for having committed offences punishable under section 3, 4, 5, 6 and 11 read with section 13 of the Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963 (hereinafter referred to as the Maharashtra Ownership Flats Act.) It is not necessary to refer to all averments made in the complaint in detail. It is sufficient at this stage to State that according to the complainant the present petitioner the original accused was the Promotor and was carrying on business in the name and style "M/s. Ghanshyam Investment". The said M/s. Ghanshyam Investment had constructed one building known as Priti Apartments consisting of ground and 6 floors. Each floor comprising 8 flats admeasuring about 477 sq. ft. The complainant had occupied Flat No. 34 at Priti Apartments, B-1 building at Riddhi Siddhi Nagar, Veera Desai Road, Andheri (West) Bombay, 400058. He had also paid before he came to occupy this flat Rs. 28,620/- towards the flat as also a sum of Rs. 1,035/- being the amount of legal charges, share money etc. The complainant occupied the flat on 1st December, 1975. However, even though the accused had given a understanding to the members like the original complainant of this Priti Apartments that he would get the society registered and issue the share certificates to him and others as he has collected the money, he has omitted to do so. This is the only grievance against the accused in the statement in question in paragraphs 8, 9, 10 and 11 of the original complaint. The complainant had referred to several grievance such as not making full and true disclosure of the title to the land on which the building is constructed, not giving the inspection of the plan and specification of the building built by the accused. The accused has also not entered into an agreement before accepting the necessary amount from him nor has he registered the society as per the provisions of section 4 of the said Act. It was further alleged that the accused as a Promotor of the society was enjoined in law to maintain a separate account of sums taken as advance or deposit and to be trustee thereof and disburse them for the purposes for which the amounts were given to him. It was further alleged that there is a breach committed by the accused under section 5 of the Maharashtra Ownership Flats Act, 1963. It was also contended that as per the provisions of the said Act, the society was not registered and the property was not transferred in the name of the society. On these allegations a complaint came to be filed against the accused in the 10th Court Metropolitan Magistrate at Andheri on November 30, 1978. On behalf of the accused an application came to be filed on July, 12, 1979 for dismissed of the complaint as being barred under the provisions of section 468 of the Code of Criminal Procedure wherein it was stated that the offence mentioned in the complaint are punishable with imprisonment of one year and the period of limitation prescribed under section 468 of the Code of Criminal Procedure for such offences is one year. According to the application made by accused it was further contended that on the showing of the complainant himself the offences were committed in the year 1974-75 and the complaint was filed on or about 30th November, 1978, therefore, the complaint is barred under section 468 of the Code of Criminal Procedure. It was further stated in that application that no particulars were mentioned in the complaint and on that count also the complaint is bad in law. The material particulars such as when the agreement was executed, when it required to be registered, when the conveyance was to be given and when the society was required to be registered were not given. The accused has, therefore, prayed for dismissal of the complaint on that count alone. The complainant by his reply dated August 10, 1979 stated that the complaint was not time barred, the offences in question alleged by the complainant were continuous offences and, therefore, the complaint cannot be said time barred. It was further stated that the Maharashtra Ownership Flats Act, 1963 does not prescribe any time limit for complying with the provisions of the Act. The person or persons contravening the provisions can be prosecuted in the cases of continuing offences.

(3.) On these rival submissions and on the nature of offences committed by the accused, the learned trial Magistrate by his order dated October 11, 1979, came to the conclusion that these offences were continuous offences and, therefore, the complaint was not barred under the provisions of section 468 of the Code of Criminal Procedure as alleged by the accused. In view of this finding recorded by the trial Magistrate of the Metropolitan Magistrate, 10th Court, Andheri, he rejected the application of the accused. This order which was challenged by the accused in the Court of Sessions and the learned Additional Sessions Judge by his order dated February 12, 1980 upheld the view taken by the learned trial Magistrate and held after referring to various authorities that in his opinion not even one of the conditions imposed on the accused have been complied with and, therefore, the offences stated in the complaint were covered by the provisions of section 472 of the Code of Criminal Procedure and as such the provisions of section 468 of the Code of Criminal Procedure were not attracted howsoever to the facts of this case. He further observed that