How to file Criminal case against the Builder if he violates provisions of the MOFA Act.
Criminal Case against Builder by Co-operative Society
Criminal Case against Builder by
Co-operative 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.
Political interference.
If one is not satisfied with the way Sr. Inspector conducts investigation, one should approach the Asstt. Commissioner of Police.
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.
Political interference.
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.
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