Filing Criminal Case against Builder by Housing Society
By Vinod Sampat, Advocate
Step-1 :: Issue legal notice to Builder calling upon him to comply with all the statutory obligations as are stipulated in MOFA Act and complaint to Police station.
Step-2 :: File Complaint with the Metropolitan Magistrate Court.
Step-3 :: Process is issued.
Step-4 :: After process, plea is recorded.
Step-5 :: Evidence.
Step-6 :: Arguments
Step-7 :: Order.
Alternative available to the aggrieved party against the order of the Metropolitan Magistrate Court.
Approach the Sessions Court challenging the order of the Metropolitan Magistrate.
Alternative available to the aggrieved party against the order of the Sessions Court.
Approach the High Court challenging the order of the Sessions Court.
Alternative available to the aggrieved party against the order of the High Court.
Approach the Supreme Court challenging the order of the High Court.
Approximate time frame after filing of complaint:
Process stage (Complaint) :: 3 months
Plea recording (Accused) :: 6 months
Evidence (Both parties) :: 3 to 4 months
Arguments :: 2 months
Order :: 1 month
Normal Time Limit :: 2 to 3 years.
Ref : Sys 9 D : Books 2004 Co-op Soc Ready Reckoner\ Criminal Case against Builder-devesan 10.4.04
CRIMINAL CASE AGAINST THE BUILDER :
Many times Builders give false promises to the flat purchasers. It is observed that normally the Builders do not give copies of Building Plan, Statement of Account, Copies of Original Documents of Title to the property. The Builders do not comply with their statutory obligations as are stipulated in the MOFA (The Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer), Act 1963. In such circumstances the options available to the flat purchasers / society include filing a complaint in the Consumer Court as well as initiating criminal action before the Criminal Court against the Builder.
The first question that comes to the mind of the individual is what is the period of limitation as regards the filing of criminal complaint against the builder. If the offences that are stipulated in the IPC are continuing offences, there is no period of limitation as regards filing of the complaint against the builder. In any other event the limitation would be of 3 years from the date of cause of action. While drafting the criminal complaint, the Society should high-light specifically the violation of the various provisions of MOFA Act. The Society should also emphasize that violation of the provisions of MOFA Act is criminal in nature. Attention of the criminal court should be drawn to offences of various sections of Indian Penal Code – Sections 406, 407 read with sections 415 and 420. The complainant should also bring out irregularities committed by the builders while executing the constructions of the building:
1) Selling away the car parking
2) Not giving copies of the building plan
3) Not giving the original documents like title deeds
4) Not giving building plans
5) Not giving replies to the various submissions made by the Society by way of legal notices of advocates.
The complainant may substantiate their allegations with the documentary evidence and correspondence done with the builder. As regards filing a complaint against the Builder in Criminal Court, normally action has to be initiated against the erring Builders under the provisions of Sections 3, 3-J, 4, 5, 10, 11, 13 of the MOFA Act r/w Rule 9 of the MOFA Rules. The Society should also initiate action u/s 406 & 407 of IPC read with Sections 415 and 420 of the Indian Penal Code, 1860.
The above-said sections are reproduced herewith for ready reference. Section 406 of the Indian Penal Code, 1860
“406 Punishment for criminal breach of trust – Whoever commits criminal breach of trust shall be punihed with imprisonment of either description for a trm which may extend to three years, or with fine, or with both.”
Section 407 of the Indian Penal Code, 1860
“407. Criminal breach of trust by carrier, etc. – Whoever, being entrusted with property as a carrier, wharfinger or warehouse keeper, commits criminal breach of trust in respect of such property, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.”
Section 415 of the Indian Penal Code, 1860
“415. Cheating – Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to “cheat”.
Explanation – A dishonest concealment of facts is a deception within the meaning of this section.”
Section 420 of the Indian Penal Penal Code, 1860
“420. Cheating and dishonestly inducing delivery of property – Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a value security, shall be punished with imprisonment of ether description or a term which may extend to seven years, and shall also be liable to fine.”
Many a times there are disputes among individuals who make allegations against each other. In such circumstances it is a fashion to approach the police authorities making allegations against the persons with whom the party has a dispute. The police authorities in such circumstances initiate chapter proceedings against the party who is in their opinion, a source of nuisance in the area. The police authorities to begin with call upon the parties to remain physically present at the Police Station. This procedure leads to frustration as the parties are made to wait at the police station. In chapter proceedings, reasonable restrictions are made on the individuals. The Police authorities invoke Section 107 of the Code of Criminal Procedure, 1973. The said section is reproduced below:
“107. Security for keeping the peace in other cases – (1) When an Executive Magistrate receives information that any person is likely to commit a breach of the peace or disturb the public tranquility or to do any wrongful act that may probably occasion a breach of the peace or disturb the public tranquility and is of opinion that there is sufficient ground for proceeding, he may, in the manner hereinafter provided, require such person to show-cause why he should not be ordered to execute a bond with or without sureties, for keeping the peace for such period, not exceeding one year, as the magistrate thinks fit.
(2) Proceedings under this section may be taken before any executive magistrate when either the place here the breach of the peace or disturbance is apprehended is within his local jurisdiction or there is within such jurisdiction a person who is likely to commit a breach of the peace or disturb the public tranquility or to do any wrongful act as aforesaid beyond such jurisdiction.”
Now let us analyse how the formalities have to be undertaken by the Co-operative Society if it wants to file a suit before the Criminal Court. First and foremost a Notice has to be issued to the builder calling upon him to comply with the statutory formalities as are stipulated in the MOFA Act. It needs to be emphasized that the blanket consent obtained by the Builder at the time of signing the Agreement is not a consent at all.
It is further submitted that normally the Agreement executed by the Builder is a one sided Agreement. Having regard to the misuse of power by the Builder, the Government Authorities have been compelled to incorporate Model Agreement in Form-V in the MOFA Act. It is observed that very rarely the Builders will comply with the terms and conditions as are stipulated in the Model Agreement in Form-V.
If there is no proper response from the Builder after issuance of the Notice, then the parties have a right to approach the Criminal Court. It is advisable to lodge a Police Complaint after issue of notice and then to file a Criminal Complaint in the Magistrate’s Court upon failure of the Police Authorities to take cognizance of the Complaint. This can also be a ground for approaching the Magistrate’s Court. A Criminal Complaint has to be filed against the Builder in the Metropolitan Magistrate’s Court, who has the jurisdiction to try such cases, for the offences committed by him. The offences that are normally committed by the Builder are already mentioned hereinabove.
Whenever there is a complaint by an individual to the police authorities and if the individual feels that for some reasons the police authorities are not taking necessary action then the alternative remedy is to lodge a private complaint with the Metropolitan Magistrate. The private complaint can be lodged by an individual under Section 190(1)(c) of the Code of Criminal Procedure. The said section is reproduced below:
“190. Cognizance of offence by Magistrate – (1) Subject to the provisions of this chapter, any magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub-section (2), may take cognizance of any offence :-
(a) upon receiving a complaint of facts which constitute such offence.
(b) Upon a police report of such facts.
(c) Upon information received from any person other than a police officer or upon his own knowledge, that such offence has been committed.”
Grievances of the complainants against the police authorities
FIR is not recorded.
Recording of the complaint is delayed by the police authorities.
No action is taken on the complaint.
Investigations are not done by the Police in a proper manner.
The complainants are made to wait for no fault of theirs.
Abusive language is used by the Police authorities.
If one is not satisfied with the way Sr. Inspector conducts investigation, one should approach the Asstt. Commissioner of Police.
If one does not get proper response from the Asstt. Commissioner of Police, one should approach the Dy. Commissioner of Police.
If one does not get proper response from the Dy .Commissioner of Police, one should approach the Commissioner of Police.
If one does not get proper response from the Commissioner of Police, one should take up the matter with the Collector.
It needs to be emphasized that the Magistrate is not bound to accept the private complaint from an individual. However, if there is substance in the complaint and if the Magistrate is prima facie satisfied as regards the various submissions made in the private complaint then the Magistrate may entertain the private complaint.
Now let us analyze when a private complaint is lodged by an individual. There are various instances when the police authorities do not entertain the request of the individuals. Also there are instances where the individual feels that the police authorities are not genuinely interested in pressing the case against the accused. In such circumstances the individual can file a private complaint.
Filing of a private complaint can result in the accused either being acquitted or convicted. If the accused is convicted then in those circumstances the Metropolitan Magistrate can pass sentence against him or impose fine or with both. Once a private complaint is filed, then the normal procedure with regard to the trial of criminal complaint would be applicable.
It needs to be emphasized that even if a private complaint has been filed then the complainant has a right to pray before the Hon’ble Magistrate to get the matter investigated through Police Officer under Section 156(3) of the Code of Criminal Procedure. The said section is reproduced herewith for ready reference:
“156. Police officer’s power to investigate cognizable case – (1) Any Officer-in-charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of chapter XIII.
(2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate.
(3) Any Magistrate empowered under the Section 190 may order such instigation as above-mentioned.”
Once a complaint is lodged, the matter is kept for verification wherein the statement of the Complainant is taken. If the Metropolitan Magistrate is of the opinion that process should be issued under the provisions of MOF Act, after verification he accordingly issues the process (Summons) to the accused Builder calling upon him to answer the charges. The time taken for the process period is approximately one month.
On the first day of the accused Builder remaining present in the Criminal Court he has to submit a Personal Bond (PR) of such amount as directed by the Hon’ble Metropolitan Magistrate. In criminal complaint, a complainant has to personally remain present in the court. The Co-operative Societies are advised to file the complaint through the Manager. This may save time. The implication would be that the society may pay reasonable remuneration to the Manager who would attend the court. Necessary resolution of the society has to be annexed along with the complaint. It needs to be emphasized that if the services of the employee are terminated, even then the ex-employee is duty bound to attend the court and give evidence. Normally an accused has to remain present personally before the Hon’ble Judge of Metropolitan Magistrate’s Court. Many times the accused, because of his other business commitment as well as with a view to avoid mental torture, may apply to the Metropolitan Magistrate’s Court for permanent exemption, which is rarely granted by the Hon’ble Metropolitan Magistrate. In the event this request of the accused is not granted then the accused is supposed to remain present on each and every date of hearing.
In the event the accused does not remain present at the Metropolitan Magistrate’s Court then in such circumstances first and foremost the Court may issue Bailable Warrant u/s. 87 of Cr. P.C. If in spite of the same accused does not remain present then Non Bailable arrest warrant is issued. Implementation of the same can be explained with an example, say the accused is traveling from Mumbai to Goa then the Police Officer can, as per direction of the Metropolitan Magistrate Court, straightway arrest the accused and produce him before the Metropolitan Magistrate’s Court. This is the reason why many people settle the matter out of Court when criminal cases are filed. Normally criminal cases can result in mental torture and inconvenience to the accused including imprisonment for not complying with the statutory obligations.
Of course if there are genuine reasons like health ground then the accused may be exempted from appearing personally in the Court for a particular date.
Once the Hon’ble Metropolitan Magistrate Court issues Summons the same has to be served upon the accused Builder. Thereafter the accused has to attend the Court and answer various charges that are mentioned in the complaint. The option available to the accused includes accepting the charges or contesting the charges. Normally the accused contests the charges. Normally time taken between the different dates is about one month.
If the accused Builder does not plead guilty then the matter is kept for evidence and the evidences are recorded firstly of the Complainant and his witnesses, if any, and thereafter that of the Accused Builder and his witnesses, if any. Their evidence so recorded will be followed by cross-examination for all witnesses. The Complainant may call the Estate Agent, his bankers, Police Authorities, Govt. and Semi-Government Authorities, etc. as his witnesses. On the basis of the evidences either of the both the parties Hon’ble Metropolitan Magistrate’s Court office passes proper order. If the accused Builder has erred in not complying with the various statutory obligations as contemplated under the MOFA Act, then the Metropolitan Magistrate has the powers to take action against the erring Builder.
It will not be out of place to mention here that recently one of the Metropolitan Magistrate Court while passing the Order in the case of Torna Co-operative Housing Society Ltd. has mentioned that one of the purposes of delivering the Judgment of awarding the punishment to the Builder is also to send a signal to other likewise Builders. The Hon’ble Metropolitan Magistrate has powers to compound charges and levy penalty on the accused when a Complaint has been filed by the Society against the builder for cheating (Sec. 420 of I.P.C.)
Now let us examine alternative options that are available to the accused. Once the matter is disposed of by judgment and order passed by the Metropolitan Magistrate Court convicting the Accused Builder then he has to prefer an appeal in the Sessions Court and that has to be done within a period of 30 days from the date of the order. The Sessions Court may review the order of the Lower Court. In the event the accused is aggrieved by the order as passed by Sessions Court then in that circumstances either of the parties can approach High Court.
Normally time frame that is taken in a criminal case for matters related to conveyance is 2 to 3 years.