Bombay High Court
Dhirajlal P. Desai vs The State Of Maharashtra And Ors on 3 September, 2015
Bench: A.M. Thipsay
Tilak 1/17 WP-830-14(J)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO.830 OF 2014
Dhirajlal P. Desai .. Petitioner
Versus
The State of Maharashtra & ors .. Respondents
---
Mr.Yashpal Thakur i/b PKA Advocates for the petitioner.
Mr.Subodh Desai with Mr.Hrishikesh Chavan for respondent nos.2
to 6.
Mrs.M.R.Tidke, APP for the Respondent State.
---
CORAM : ABHAY M. THIPSAY, J.
ORDER RESERVED : 3rd JULY, 2015
ORDER PRONOUNCED : 3rd SEPTEMBER, 2015
---
ORAL JUDGMENT :-
1 The petitioner is the original complainant. He has
filed a complaint alleging commission of an offence punishable
under section 13 of the Maharashtra Ownership Flats Act, 1963
(hereinafter referred to as 'MOFA' for the sake of convenience)
read with section 406 IPC and 420 of the IPC against the
respondent nos.2 to 6 herein. The respondent no.2 is a
partnership firm doing business as builders, developers and
promoters, and the respondent nos.3, 4, 5 and 6 are the partners
of the respondent no.2. The learned Addl. Chief Metropolitan
Magistrate, 47th Court, Esplanade, Mumbai, after examining the
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petitioner on oath, formed an opinion that there were sufficient
grounds for proceeding against the respondents in respect of an
offence punishable under section 13 of the MOFA read with
section 14 thereof. Accordingly, by an order dated 9 th March 2012,
he issued process against the respondent nos.2 to 6, requiring
them to appear and answer to the accusation of an offence
punishable under section 13 of the MOFA read with section 14
thereof. Being aggrieved thereby, the respondent nos.2 to 6
moved the Court of Sessions for Greater Mumbai by filing an
application for revision, praying that the order issuing process as
passed by the learned Addl. Chief Metropolitan Magistrate, 47 th
Court, Esplanade, be quashed and set aside. The learned Addl.
Sessions Judge for Greater Mumbai, by an order dated 3rd
February 2014, allowed the revision application and set aside the
order issuing process as passed by the Magistrate. The Addl.
Sessions Judge came to the conclusion that the learned Magistrate
had no territorial jurisdiction to entertain the complaint and try
the alleged offences. Consistently with this view, the learned Addl.
Sessions Judge directed the Magistrate to pass an order for return
of the complaint for presentation before the proper Court. Being
aggrieved thereby, the petitioner has approached this Court by
filing the present petition invoking the inherent powers of this
Court saved by section 482 of the Code of Criminal Procedure, and
the jurisdiction conferred upon it by Article 227 of the
Constitution of India.
2 By consent of the learned counsel for the parties, it
was decided to decide the petition finally at the admission stage
itself.
Tilak 3/17 WP-830-14(J)
3 Accordingly, Rule was issued, by consent of the
respondent, was made returnable forthwith, and on the
respondents waiving the service thereof, the petition was heard
finally.
4 For the sake of convenience and clarity, the petitioner
shall, hereinafter, be referred to as 'the complainant' and the
respondent nos.2 to 6 as 'the accused'.
5 I have heard Mr.Yashpal Thakur, learned counsel for
the complainant. I have heard Mr.A.P. Mundargi, Senior Advocate
with Mr.Subodh Desai, learned counsel for the accused. I have
carefully gone through the complaint, the record of the
examination of the complainant under the provisions of section
200 of the Code of Criminal Procedure, the order issuing process
as passed by the Magistrate, and the order passed by the Addl.
Sessions Judge in revision.
6 Though a number of points were raised before the
Court of Sessions in the revision proceedings, the real challenge
was to the territorial jurisdiction of the Addl. Chief Metropolitan
Magistrate, 47th Court to entertain the complaint and to deal with
the alleged offences. In fact, the Revision Application has also
been decided only on that basis i.e. that the learned Magistrate had
no territorial jurisdiction to entertain the complaint and try the
alleged offences. During the course of hearing of the petition,
Mr.Mundargi, the learned Senior Advocate submitted that the
accused persons would not mind if the order issuing process, as
passed by the learned Magistrate is maintained, and the complaint
Tilak 4/17 WP-830-14(J)
is returned to the complainant for filing it before a proper Court
having territorial jurisdiction. He submitted that the accused
persons will appear before the Court of the Magistrate to whom
the complaint would be presented on a date which may be fixed
by this Court or which may be directed to be fixed by the Addl.
Chief Metropolitan Magistrate, 47th Court, while returning the
complaint. He, however, submitted that the complaint, however,
needs to be returned to the complainant for filing before a proper
Court inasmuch as the Addl. Chief Metropolitan Magistrate, 47 th
Court clearly lacked territorial jurisdiction to try the alleged
offences.
7 The limited issue that arises is, therefore, whether the
th
Addl. Chief Metropolitan Magistrate, 47
Court, Esplanade had
territorial jurisdiction to entertain the complaint and try the
alleged offences.
8 I have carefully gone through the complaint. In the
complaint, it is mentioned that the complainant negotiated and
bargained with the accused for purchase of shops in some
buildings which were to be constructed on a plot of land situate at
village Mira in Taluka Thane, District Thane within the limits of
Mira-Bhayendar Municipal Council in the Registrar, Sub-Division
of District Thane. After bargaining, the complainant booked 14
shops and 52 flats in two buildings which were to be constructed,
as aforesaid. Fourteen different agreements, as required under
section 4 of the MOFA, were entered into between the complainant
and the accused regarding the allotment of the said shops, out of
which five were registered on 28-08-2007. The complaint
Tilak 5/17 WP-830-14(J)
specifically mentions that it is confined only to the four shops in
respect of which the agreements are registered all in the name of
the complainant; and that the complainant shall be filing a
separate complaint regarding the other shops and flats. (two
other complaints have also been filed by the complainant against
the respondents which are the subject matter of APL 504/14 and
APL 505/14 pending before me). The basic grievance of the
complainant is that the accused were purposely delaying the
completion of the buildings and though the shops are ready, and
though the entire/substantial payment towards the price of the
said shops has been made; the accused are still not handing over
the possession thereof to the complainant.
9 It is not in dispute that the shops in respect of which
the complainant has entered into agreements with the accused
persons are not situate within the territorial jurisdiction of the
Addl. Chief Metropolitan Magistrate, 47th Court, Esplanade. It is
not in dispute that some other Magistrate in Thane District would
have territorial jurisdiction over the place where the flats are
situate.
10 There is a jurisdiction clause - so to say - in the
complaint. It reads as under :-
"The complainant carrying on business at 11,
Bhangwadi Shopping Centre, 1st floor,
Bhangwadi, Kalbadevi Road, Mumbai - 400002
and accused having their registered office 811,
Embassy Centre, Nariman Point, Mumbai 400
021 hence this Hon'ble Court have jurisdiction to
Tilak 6/17 WP-830-14(J)
try and entertain the above complaint. (Para 22
(Emphasis supplied)
Thus, it is clear that as per the complaint, the existence of
jurisdiction in the Addl. Chief Metropolitan Magistrate is claimed
on the basis that 'the complainant carries on his business at
Kalbadevi Road, Mumbai' and 'the registered office of the accused
is at Nariman Point, Mumbai'. Thus, it is on the basis of the place
where complainant carries on business and the place where the
accused have their registered office, that the claim that the Addl.
Chief Metropolitan Magistrate has territorial jurisdiction to
entertain the complaint and try the offences, has been made.
11 Mr.Mundargi, the learned counsel for the accused
submitted that the place where the complainant or the accused
have their respective offices, or the place where either of them
carries on business, would not be matters conferring territorial
jurisdiction. He submitted that the territorial jurisdiction of a
criminal court would be decided by the provisions of Code of
Criminal Procedure. He submitted that the property is situate in
Thane district, the agreements in that regard have been registered
at the office of the Sub-Registrar at Thane, which obviously is not
within the territorial jurisdiction of the Addl. Chief Metropolitan
Magistrate 47th Court. Mr.Mundargi submitted that the failure to
give possession would also take place where the possession was to
be given i.e. where the property is situate. He therefore,
submitted that there was absolutely no case for holding that a
Magistrate in Mumbai could have had jurisdiction to entertain the
complaint.
Tilak 7/17 WP-830-14(J)
12 During the course of arguments, Mr.Yashpal Thakur
conceded that neither the place where the complainant was
carrying on the business, nor the place where the accused have
their registered office would be relevant, in itself, for deciding the
question of territorial jurisdiction. What he, however, submitted
is that some of the acts constituting the offences, had taken place
within the jurisdiction of the Addl. Chief Metropolitan Magistrate,
47th Court. He submitted that apart from the offices of both the
parties being situate within the jurisdiction of the Addl. Chief
Metropolitan Magistrate, 47th Court, the publication with respect
to the proposal of constructing the buildings was given by the
accused from their registered office situate at Nariman Point,
Mumbai. According to him, pursuant to the said publications,
several meetings and negotiations had taken place between the
parties at the registered office of the accused. It is submitted that
four agreements in respect of the shops in question, were executed
by and between the parties at the registered office of the accused
no.1. It is also contended that the payments were made to the
accused no.1 by cheques which were got delivered by the
complainant at the registered office of the accused no.1, and that
against the payments, the accused no.1 has issued various receipts
from the registered office in favour of the complainant. He,
therefore, submitted that the Addl. Chief Metropolitan Magistrate,
47th Court had also territorial jurisdiction to entertain the
complaint and try the alleged offences.
13 Mr.Mundargi, the learned Senior Advocate in reply,
contended that the facts constituting jurisdiction would necessarily
be required to be spelt out from the averments in the complaint,
Tilak 8/17 WP-830-14(J)
and when the complaint claims the existence of territorial
jurisdiction on the basis of a certain fact, it would not be open for
the complainant to now try to show that the Addl. Chief
Metropolitan Magistrate, 47th Court had the necessary territorial
jurisdiction on the basis of different facts and totally different
grounds.
14 Though Mr.Thakur conceded that these facts have not
been mentioned in the complaint, he submitted that there were a
number of annexures to the complaint which were sufficient to
spell out the facts giving jurisdiction to the Addl. Chief
Metropolitan Magistrate, 47th Court.
15 I have carefully considered the matter.
16 There are no special rules of pleading with respect to
the complaints. A complaint can even be oral. Therefore, a very
technical view of the matter need not be taken. What is, however,
necessary is that the complaint must show the facts which would
indicate that the particular Magistrate before whom the complaint
is lodged, has territorial jurisdiction to entertain the same. If this
is spelt out from the complaint and the annexures thereto or any
other material which was shown to the Magistrate at the time of
filing of the complaint and/or issuance of process, it would be
open for the Magistrate to entertain the complaint and try the
alleged offences, notwithstanding that the complainant's assertion
as to how and why the Magistrate has territorial jurisdiction, is
wrong. I am of the opinion that though the 'jurisdiction clause' in
the complaint is not sufficient to show that the Addl. Chief
Tilak 9/17 WP-830-14(J)
Metropolitan Magistrate, 47th Court had territorial jurisdiction to
entertain the complaint, still, whether he had, or had not, such
jurisdiction would need to be examined on the basis of the
averments in the complaint and the annexures thereto.
17 Chapter XIII of the Code deals with jurisdiction of
Criminal Courts in inquiries in trials. Section 177 lays down the
basic and general rule that every offence shall ordinarily be
inquired into and tried by a Court within whose local jurisdiction it
was committed. Section 178, inter alia, provides that where an
offence is committed partly in local area and partly in another, or
consists of several acts done in different local areas, it may be
inquired into, or tried by a Court having jurisdiction over any of
such local areas. Section 179 lays down that when an act is an
offence by reason of anything which has been done and of a
consequence which has ensued, the offence may be inquired into
or tried by a Court within whose local jurisdiction such thing has
been done or such consequence has ensued.
18 The question that arises is whether the offence in this
case i.e. the offence punishable under section 13 of the MOFA read
with section 14 thereof, or any of the acts constituting the same,
has or have taken place in the local jurisdiction of the Addl. Chief
Metropolitan Magistrate, 47th Court. For deciding this, what the
offence punishable u/s.13 of the MOFA constitutes of, needs
consideration.
Tilak 10/17 WP-830-14(J)
19 Section 13 of the MOFA deals with offences by
promoters. It provides for punishment to a promoter who without
reasonable excuse fails to comply with or contravenes the
provisions of section 3, 4, 5, 10 or 11 thereof. A perusal of the
complaint shows that the basic grievance of the complainant is
that the accused have accepted substantial sums towards the
purchase price of the flats/shops, but have still not given the
possession thereof. The grievance is that the accused are
purposely delaying the completion of the building, and though the
shops are ready, the possession thereof is not being handed over to
the complainant for which the accused persons are giving false
excuses. The complaint, inter alia, alleges violation also of section
4 of the MOFA, and claims that though the agreements in respect
of the shops which are the subject matter of the complaint, have
been entered into, they are not in the prescribed form. It is also
alleged that for the remaining flats and shops in respect of which
the complainant, though has entered into agreements with the
accused, these agreements are not got registered. There is also an
allegation of contravention of the provisions of section 8 of the
MOFA which says that if the promoter fails to give possession in
accordance with the terms of the agreement by the date specified,
then the promoter shall be liable, on demand, to refund the
amounts already received by him with Simple Interest. The claim
is that inspite of the demands of the complainant, the accused
have neither given the possession of the flats nor have offered to
refund the amounts.
Tilak 11/17 WP-830-14(J)
20 Since a contravention of the provisions of section 4, 5,
and 8 of the MOFA has been alleged in the complaint, and since
that constitutes the offence punishable under section 13 of MOFA,
it would be necessary to see where those contraventions have
taken place. Section 4 of the MOFA enjoins upon a promoter to
enter into a written agreement for sale, and stipulates that such
agreement shall be in the prescribed form. Now, if the agreement
is not in the prescribed form, the provisions of section 4 would
stand contravened, but where would such contravention can be
said to have taken place ? Section 5 enjoins upon the promoter to
maintain separate account of sums taken as advance or deposit.
The questions is 'if such separate account is not maintained, where
can the said contravention be said to have taken place ?' Section 8
of MOFA enjoins upon a promoter to refund the amount paid with
interest for failure to give possession within the specified time.
Now, if the promoter fails to pay the amount, and contravenes the
provisions of section 8, where can such contravention be said to
have taken place ?
21 Mr.Yashpal Thakur has relied upon a number of
judgments delivered by this court in support of his contention
that the Additional Chief Metropolitan Magistrate, 47 th Court
did have territorial jurisdiction to enquire into and try the
offences as alleged in the complaint. He has also placed
reliance on a decision of the Supreme Court of India. I have
gone through all these decisions and I find that none of them is
relevant in the context of the controversy that arises in the
present case. Certain judgments dealing with the question of
Tilak 12/17 WP-830-14(J)
territorial jurisdiction on which reliance has been placed by
Mr.Thakur relate to the offences punishable under Sections 420
and/or 406 of the Indian Penal Code. The reasoning adopted in
those decisions would not be applicable while considering the
territorial jurisdiction of a Court in respect of an offence
punishable under Section 13 of the MOFA. Some of the
decisions relied upon by Mr.Thakur relate to the provisions of
MOFA, but they do not relate to the question of territorial
jurisdiction, which is the only point needing determination in
this case.
Mr.Mundargi, the learned counsel for the accused
has also placed reliance on a decision rendered by this Court
and some decisions rendered by the Supreme Court of India.
The decisions rendered by the Supreme Court of India on which
reliance has been placed relate to the territorial jurisdiction in
respect of an offence punishable under Section 138 of the
Negotiable Instruments Act and the observations made therein
do not provide sufficient guidelines in the matter of resolving
the issue that needs determination in this Petition. The decision
of this court on which reliance has been placed also is not
relevant for determining the local jurisdiction in respect of an
offence punishable under Section 13 of the MOFA. Not much
assistance, therefore, can be derived from the authoritative
pronouncements cited by the learned counsel for the parties.
23 Deciding the place where the offence punishable
under section 13 of the MOFA has taken place, would not be
always easy. It would depend on the type of contravention which
Tilak 13/17 WP-830-14(J)
forms the basis of the said offence. In this case, the contravention
alleged is of the provisions of sections 3, 4, and 5. {Contravention
of section 8 is not specifically covered by the penal provisions of
section 13 of the MOFA}. Section 3 lays down the general
liabilities of a promoter. So far as the violation of section 4 is
concerned, the registration of the agreement would necessarily be
required to be done in the local jurisdiction of a Magistrate at
Thane, and a Magistrate in Mumbai would have no jurisdiction
over that place. The agreement is required to be in the prescribed
form, and if the same is not in the prescribed form, that also
contravenes the provisions of section 4. Such contravention would
naturally be taken as having occurred at a place where such
agreement has been entered into. In the instant case, there is a
specific allegation to the effect that the agreement in question has
not been in the prescribed form. If that is so, this contravention
has taken place where the agreement between the parties has
been entered into.
24 It is not in dispute that the agreement between the
complainant and the accused no.1 has been entered into at
Mumbai. The agreement specifically states so and also refers to
the address of the office of the accused no.1. Though I am not
impressed by the other contentions advanced by Mr.Thakur viz. of
meetings having taken place in the registered office of accused
no.1, receipts of payments having been delivered into registered
office etc, the fact that the agreements between the parties were
entered into and executed at Mumbai, is a significant aspect of the
matter for determination as to the place whether the alleged
offence, or any part thereof has taken place.
Tilak 14/17 WP-830-14(J)
25 MOFA is a social legislation. It has been enacted,
inter alia, to curb the malpractices in the construction and sale of
flats taken on ownership basis, and is aimed at regulating of the
promotion of the construction, sale, management and transfer of
flats taken on ownership basis. It casts several liabilities on a
promoter which arise upon execution of a written agreement of
the purchase of a flat between the promoter and the purchaser.
The execution of an agreement between the promoter and the
purchaser is the very basis of the liabilities and responsibilities that
are cast upon a promoter by MOFA. In such a situation, when a
particular violation/s or contravention/s of the provisions of MOFA
which cannot be satisfactorily determined as having taken place 'in
a particular legal area' takes place, such contraventions must be
treated as having taken place in the area where the agreement
between the promoter and the purchaser has been entered into
and executed.
26 Having regard to the aims and objects of the Act
and the fact that execution of an agreement between the
promoter and the purchaser is the very basis of the liabilities of
the promoter, the place where the agreement is entered into
becomes extremely important. The execution of agreement being
an intricate and inseparable part of the offence punishable under
section 13, when violation of the agreement, which also
contravenes the provisions of MOFA, takes place, it cannot be said
that no part of the offence punishable under section 13 has taken
place where the agreement is entered into. A promoter, who
enters into and executes an agreement with a purchaser in
Tilak 15/17 WP-830-14(J)
Mumbai, cannot drive the purchaser out of Mumbai for
prosecuting the promoter on the allegation of contravention of
the provisions of MOFA - which include violations of the terms
of the agreement - on the ground that the property sought to be
purchased by the purchaser is situated outside Mumbai.
27 It is undoubtedly true that the place where the
property is situate would be relevant in determining the territorial
jurisdiction. That the Magistrate in Thane has territorial
jurisdiction to entertain the complaint can be more obviously seen,
and the facts conferring territorial jurisdiction upon the Magistrate
in Mumbai, may not be so obvious and need greater
contemplation. However, that would not mean that the
complainant should be forced to select a forum, which may not be
convenient to him. Territorial Jurisdiction is actually a matter of
convenience. The law does not treat the lack of territorial
jurisdiction on par with lack of jurisdiction arising on account of
other factors such as incompetency of the Court with respect to the
subject matter of the dispute etc. Section 462 of the Code is
indicative of this principle. Under section 407 of the Code, cases
can be transferred even to the Courts which lack territorial
jurisdiction provided such transferee Courts are in other respect
competent to inquire into or try the offences in question. Thus,
the territorial jurisdiction is a matter of convenience, and where
expedient, convenient or necessary, a case can be transferred to a
Court not having territorial jurisdiction. Certainly, this will not
justify the proceeding with a complaint by a Magistrate who lacks
territorial jurisdiction, but the relevant provisions have been
mentioned to emphasize that lack of territorial jurisdiction is not
Tilak 16/17 WP-830-14(J)
such a vital factor as the lack of jurisdiction arising out of some
other factor such as inability or incompetency of the Court to deal
with the subject matter of the dispute. In the instant case, the
parties are from Mumbai. Their registered offices are at Mumbai.
It is not that it would be more convenient for any of the parties to
have the case tried before a Magistrate in Thane - atleast it has
not been suggested.
28 When in this background, the fact that the agreement
between the parties was entered into at Mumbai is taken into
consideration, it is not possible to hold that the Magistrate at
Mumbai would have no jurisdiction to entertain the complaint and
try the alleged offences. At the cost of repetition, it may be
observed that executing an agreement is the very basis of the
promoter - purchaser relationship and is an intricate and
inseparable part of the general liabilities of a promoter. When the
violation of such general liabilities is alleged, which violations are
alleged to be amounting to an offence punishable under section 13
of MOFA, it cannot be said that the act of executing the agreement
is not an integral part of the alleged offence. Therefore, the Court
within whose local jurisdiction the agreement was entered into,
would have territorial jurisdiction to try an offence punishable
under section 13 of MOFA, irrespective of the place where the
property is situate.
29 The learned Addl. Sessions Judge was, therefore, not
right in coming to the conclusion that the Addl. Chief Metropolitan
Magistrate, 47th Court, did not have territorial jurisdiction. He
ought not to have set aside the order issuing process on the basis
Tilak 17/17 WP-830-14(J)
of this conclusion. The impugned order suffers from an error in
comprehending the nature of the acts made punishable under
section 13 of the MOFA, and the difficulty - if not inability - to
determine the precise area/places where some of the alleged
contraventions of the provisions of MOFA can be said to have
taken place. The same, unnecessarily drives the complainant out
of a Court of his choice, which Court also had territorial
jurisdiction to entertain the complaint, and try the alleged
offences. It, therefore, needs to be interfered with.
Petition is allowed.
31 The impugned order is set aside.
32 Interim stay stands vacated.
33 The learned Magistrate shall proceed further with the
case in accordance with law.
34 Rule is made absolute in the aforesaid terms.
(ABHAY M.THIPSAY, J)
