JUDGMENT - B.J. RELE, J.:---These two appeals are disposed of by a common judgment as they arise out of the same facts. 2. These two appeals came to be filed for the reason that the learned Magistrate acquitted the accused of the offences under sections 3, 5 and 8 read with sections 13 and 14 of the Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sales, Management and Transfer) Act, 1963, (hereinafter referred to as "The ownership Flats Act"). However, the learned Magistrate convicted the accused under section 4 of the Ownership Flats Act and sentenced him to pay a fine of Rs. 500/-, in default simple imprisonment for one month. Against the order of acquittal under the said sections, the original complainant has preferred the above first mentioned Criminal Appeal. 3. Against their conviction, the accused preferred appeal in the Court of Sessions for Greater Bombay and the learned Additional Sessions Judge acquitted the accused. Against the said order of acquittal the original complainant has preferred the second mentioned Criminal Appeal. 4. The facts giving rise to the two appeals are that the accused are the Promoters and Builders carrying on business of building construction under the name and style of Messrs Jhangiani Gurubaxani Construction Company. As the complainant was in need of accommodation, he approached, in the month of June 1968, one Gulamalli Mulla Kadharbhai Kadri, an Estate Broker. Gulamalli took the complainant to the accused as the accused had constructed a building known as Prakash Building at Besant Road, Santacruz (west) and a flat bearing flat No. 5 was vacant in that building. The complainant and his father accompanied by Gulamalli then saw the flat some time prior to 25th June, 1968. The complainant and his father found the flat suitable and approved it. At that time Tarachand, accused No. 2, was present in the flat. Tarachand quoted the price of Rs. 22,000/- while the complainant quoted the price of Rs. 21,000/-. On 25-6-1978 Gulamalli told the complainant that the deal was settled for Rs. 21,000/-. On 26-6-1968, the complainants wife, his father and Gulamalli went to the house of accused No. 3 and gave him a cheque for Rs. 2,000/-. Accused No. 3 passed a receipt for the said amount. 22,000/- while the complainant quoted the price of Rs. 21,000/-. On 25-6-1978 Gulamalli told the complainant that the deal was settled for Rs. 21,000/-. On 26-6-1968, the complainants wife, his father and Gulamalli went to the house of accused No. 3 and gave him a cheque for Rs. 2,000/-. Accused No. 3 passed a receipt for the said amount. After two-three days, the complainant went to the house of accused No. 2 Tarachand, he told Tarachand and accused No. 2, to take the balance amount and hand over possession of the flat. Accused No. 2 asked the complainant to meet accused No. 1. After two-three days the complainant went to the office of accused No. 1 at Marine Lines and the complainant was referred by accused No. 1 to accused No. 3. After about couple of days, the complainant met accused No. 3, who, in turn, asked the complainant to meet accused No. 2. 5. On 3-7-1968, the complainant Gulamalli went to the house of accused No. 2, who asked them to come to the flat at Prakash Building on 4-7-1968. Accordingly, on 4-7-1968, the complainant, his father and Gulamalli went to the flat at Prakash Building and gave a cheque for Rs. 16,000/- to accused No. 2. On the next day, i.e. on 5-7-1968, the complainant gave one cheque for Rs. 251/- to accused No. 2 for painting and fixture work. The complainant has alleged that on 10th July, 1968 the brother of accused No. 2 went to his flat and gave him the sale agreement which, according to the complainant, was ante dated to 1st July, 1968, as also the key of the said flat No. 5 in Prakash Building. The complainant has further stated that on 10-7-1968 the brother and some family members of accused No. 2 were occupying the said flat No. 5 and he was told by the brother of accused No. 2 that he would remove the goods and luggage from the flat and would hand over the duplicate key of the flat on 14th July, 1968 in the evening at his shop. On 14th July, 1968, the complainant got the duplicate key and vacant possession of the said flat which he occupied from that day. 6. On 14th July, 1968, the complainant got the duplicate key and vacant possession of the said flat which he occupied from that day. 6. It is further alleged by the complainant that after about a month or so the nephew of accused No. 2 went to him and told him that he was required by accused No. 3. He was taken to the office of accused No. 1 and he was told that he was called there for the purpose of registration of the sale agreement and in connection with the society matter; but in fact he was taken to the Esplanade Police Court for the purpose of affirming an affidavit. The complainant has alleged that having known that there were some proceedings pending in the Court he would not have entered into the transaction or forthwith sought legal advice to protect his interest and would have taken necessary action against the accused. The complainant has further alleged that after about three months or so, father of accused No. 4 and brother of accused No. 2 went to his shop and told him that they had lost the case in the High Court and that if the Police Officer came to take possession of his flat, he should not be afraid for the order was against them and not against him. It is further alleged that his father was told at that time that the accused would return the money within 12 hours. On the same night, i.e. on 15-11-1968, a Police Officer went to the flat and at his request the complainant gave possession of the flat to one Sen Gupta. 7. It is further alleged that his father was told at that time that the accused would return the money within 12 hours. On the same night, i.e. on 15-11-1968, a Police Officer went to the flat and at his request the complainant gave possession of the flat to one Sen Gupta. 7. It appears that on 16-7-1968 the said A.K. Sen Gupta filed a case being Case No. 241/O of 1968 against the three accused persons in the Court of the Additional Chief of Presidency Magistrate, 8th Court, Esplanade, Bombay under section 145 of the Code of Criminal Procedure and by order dated 25-10-1968 the learned Presidency Magistrate held--- "The person in actual physical possession of flat No. 5 on the first floor of the building called "Prakash" at 18-C, Besant Street, Santacruz (West), Bombay-64, on 25-6-1968 was the applicant and he is the person entitled to the possession thereof until evicted therefrom in due course of law.......As he has been forcibly and wrongfully deprived of the said possession within a period of two months from the date of the preliminary order, I further direct that vacant possession thereof be handed over to the applicant. Inspector of Police, Santacruz Police Station to see that this order is carried out". In pursuance thereof possession of the said flat was given to the said Ashis K. Sen Gupta on 15-11-1968. It appears that against the said order the accused preferred Criminal Revision Application No. 1085 of 1968 and the said Revision Application was dismissed by this Court. 8. The said Ashis K. Sen Gupta also filed on the same day, i.e., on 16-7-1968 a Case bearing Case No. 142/S of 1968 in the Court of the learned Presidency Magistrate, 21st Court, Bandra, against the three accused persons under section 454 read with section 341 of the Indian Penal Code. That case was disposed of on 30th June, 1969 and the accused were acquitted. 9. On 25-11-1968, i.e. after about 10 days after the present petitioner complainant was dispossessed, he filed Case No. 160/S of 1968 in the Court of the learned Presidency Magistrate, 21st Court, Bandra, against the three accused under section 420 of the Indian Penal Code. That case was disposed of on 31-10-1969 and the accused in that case were also acquitted. 10. That case was disposed of on 31-10-1969 and the accused in that case were also acquitted. 10. It appears that the said Ashis K. Sen Gupta claimed ownership and possession of the said flat as having been purchased from one D.J. Rawatani who, in turn had purchased it from the one Khemchand Naraindas Sanjnani and who also, in turn, had purchased it from the compalainant. This transaction was brought about by one Nandlal Daulatram. The present respondent No. 1, therefore, filed a complaint in the Court of the learned Presidency Magistrate, 21st Court, Bandra, Bombay, against the said Khemchand Narindas Sanjnani, Dulhanomal Jivatram Rawatani and Nandlal Daulatram as accused Nos. 1,2 and 3 respectively under section 471 read with section 367 of the Indian Penal Code on the ground that the Company, i.e. the Partnership of Jhangiani and Gurubaxani Construction Company, had not sold the flat No. 5 to the said Sanjanani, accused No. 1 therein, or to anybody else and that they did not receive consideration. They alleged that the signatures on the documents are forged ones and hence they filed the said case. It appears that the said case was committed to Sessions and was numbered as Sessions Case No. 579 of 1969. By order passed on 6th August, 1970 the three accused, viz., Sanjanani, Rawatani and Nandlal Daulatram were acquitted. 11. The case of the petitioner as set out in the present complaint is as under: "9. I state that the accused did not make full and true disclosures about the adverse claim on the said flat No. 5 of a third party. Knowing it well, they concealed these facts dishonestly and induced me to part with Rs. 21,000/- for which I neither got the flat nor I was returned my amount by the accused. I further say that the accused took from me more than 20% of the sale price entered into the written agreement for the sale of the said flat as earnest money/deposit. I say that the accused subsequently contended that a sum of Rs. 251/- which they had collected from me towards the cost of extra electrical wiring they had collected from me towards the cost of extra electrical wiring and painting and work, alleged to have been done by them, was share money and membership fees. I say that I was not given any receipt for the same. 251/- which they had collected from me towards the cost of extra electrical wiring they had collected from me towards the cost of extra electrical wiring and painting and work, alleged to have been done by them, was share money and membership fees. I say that I was not given any receipt for the same. On making enquiries with the President of the Society which is now the owner of the said property, viz., Prakash Building, I learnt that the accused never entered my name as one of the flats owners and purchasers of the said flat No. 5. The accused wrongly and deliberately showed that the said flat is owned by accused No. 3 though accused had taken Rs. 21,000/- from me by cheque which were also realised and they had entered into an agreement for sale with me and duly signed the same." It is also alleged by the petitioner that the accused as Promoters and Builders as also sellers of the said Flat No. 5 failed to transfer the said flat in his name with clear title and they have also failed to give possession of the said flat to him. They also did not refund the amounts already received by them along with interest in respect of the said flat from him which, according to the petitioner, the respondents are liable to refund to him on demand. The petitioner has also alleged that the accused did not even take steps to form a Co-operative Society of the owners of the various flats sold out by the accused. The accused did not get the sale agreement dated 1st July, 1968 even registered with the Registrar of documents till now. It is on these allegations that the accused were charged by the complainant under sections 3, 4, 5 and 8 read with sections 13 and 14 of the Ownership Flats Act. This complainant was filed on 2nd July, 1970. The learned Metropolitan Magistrate acquitted the respondents of the offences under sections 3, 5 and 8 read with sections 13 and 14 of the Ownership Flats Act and he convicted the accused under section 4 of the said Act. Against the order of acquittal the petitioner has preferred the said Criminal Appeal No. 1200 of 1976. 12. The accused were convicted under section 4 of the Ownership Flats Act and sentenced to pay a fine of Rs. Against the order of acquittal the petitioner has preferred the said Criminal Appeal No. 1200 of 1976. 12. The accused were convicted under section 4 of the Ownership Flats Act and sentenced to pay a fine of Rs. 500/-, in default to suffer simple imprisonment for one month. Against their conviction and sentence, the accused preferred an appeal to the Sessions Court which was allowed and the accused were acquitted of the offence under section 4 of the said Ownership Flats Act. Against the said order of acquittal, the petitioner has preferred the said Criminal Appeal No. 144 of 1978. 13. The accused admit that they are the partners of Jhangiani Gurubaxani Construction Company carrying on the business of construction of buildings. They also admit that they were the Promoters and Builders of Prakash Building at Santacruz and that the deal was effected through Broker Gulam Ali in respect of Flat No. 5 with the complainant Sadruddin and the price was fixed at Rs. 21,000/-. They also admit that Rs. 5,000/- were paid by Sadruddin on 26-6-1968; but they contend that the said amount was not accepted as advance payment or deposit but it was part payment towards the price of the flat. They also admit receipt of Rs. 16,000/- by cheque dated 4-7-1968 and a further sum of Rs. 261/- as membership charges. According to the accused, possession of the said flat was given to the complainant on 1-7-1968 on which date the sale agreement was executed between the complainant and the firm of the accused. They contend that it was not necessary for them to register the said agreement under the Indian Registration Act. They deny that the signature of the complainant was taken under the pretext that he was to sign an affidavit. Their case is that they asked the complainant to become a member of the Co-operative Society; but he refused and, therefore, the firm became member and thereby prevented Sen Gupta from becoming a member. They deny that at the date of the execution of the said agreement Sen Gupta was in possession of the said flat. They assert that they were in possession of the said flat and that it was sold to the complainant. They further deny that they dispossessed Sen Gupta on 26-6-1968. According to the accused the contribution was paid by them to the society. 14. They assert that they were in possession of the said flat and that it was sold to the complainant. They further deny that they dispossessed Sen Gupta on 26-6-1968. According to the accused the contribution was paid by them to the society. 14. Shri V.C. Mehta, the learned Advocate appearing on behalf of the petitioner, has contended that the respondents not having made a full and complete disclosure they have committed an offence under section 3(2)(a) and (b) of the Ownership Flats Act and since no date was specified for delivery of possession at the time when the first amount of Rs. 5,000/- was paid, the respondents have committed an offence under section 3(f) of the said Ownership Flats Act. He has further contended that the sale price of the said flat was Rs. 21,000/- and the respondents have admittedly taken from him Rs. 5,000/- as deposit. He has further contended that at the time when the said deposit was taken the agreement was not entered into. It was only on 10th July, 1968 that the agreement was given and further the said agreement is not registered and that, therefore, the respondents have committed an offence under section 4 of the Ownership Flats Act. He has then contended that possession was not given free from all encumbrances and that, therefore, it is no possession at all and hence the respondents have committed an offence under section 8 of the said Ownership Flats Act. In any case, the respondents not having repaid the said amount of Rs. 21,000/- on demand, the respondents have also committed an offence under S.B. (b) of the said Act. Shri Mehta has also contended that the respondents have admitted having received Rs. 251/- as share money and membership fees; but the petitioner did not get any share or recognition as a member and, therefore, the respondents have committed an offence under section 10 of the said Ownership Flats Act. 15. It must be stated that in the complaint that has been lodged no offence under section 10 of the said Ownership Flats Act has been made out in the sense that the petitioner was not got admitted by the respondent as a member of the Co-operative Housing Society which was formed. 15. It must be stated that in the complaint that has been lodged no offence under section 10 of the said Ownership Flats Act has been made out in the sense that the petitioner was not got admitted by the respondent as a member of the Co-operative Housing Society which was formed. In fact, the allegation at that stage was that the Co-operative Society was not till that time formed and, therefore, no further reference to section 10 need be made. 16. Shri Merchant on the other hand has submitted that the provisions of section 3(2)(a) and (b) of the Ownership Flats Act have no application whatsoever to the facts of the present case. He has also contended that in order to attract the provisions of section 4 of the said Act, the promoter must have intended to construct or has been constructing a building of flats. In the present case, it is an admitted fact that the building was completed in or about the year 1966 and except for flat No. 5 all the flats were sold out and that, therefore, section 4 has no application. He has also contended that it was incumbent upon the complainant to prove which of the accused was in charge or was responsible to the company for the business and as this has not shown by the complainant, the respondents were rightly acquitted and there is no ground for interference by this Court. There is considerable force in the arguments advanced by Shri Merchant on behalf of the respondents. 17. Before, I consider the provisions of the Ownership Flats Act, I shall deal with the evidence that has been led in this case. The complainant has examined himself and his elder brother Rajabali Hussainbhai Somaji, P.W. 3, the broker Gulamalli Mulla Kadarbhai Kadri, P.W. 4, Kunju Krishna Pillai, P.W. 5 Secretary of the Society, and Ashis Kumar Sen Gupta, P.W. 6. The complainant has, in his evidence, admitted that a few days prior to 25-6-1968 he, his father and witness Gulamalli went to see the flat. They found the flat suitable and approved of it. It is further admitted that on 25-6-1968, the deal was settled at Rs. 21,000/- and on 26-6-1968 Rs. 5,000/- were paid to accused No. 3. In the cross-examination the petitioner complainant has admitted that he paid Rs. 5,000/- as first instalment. They found the flat suitable and approved of it. It is further admitted that on 25-6-1968, the deal was settled at Rs. 21,000/- and on 26-6-1968 Rs. 5,000/- were paid to accused No. 3. In the cross-examination the petitioner complainant has admitted that he paid Rs. 5,000/- as first instalment. Therefore, the case made out in the complaint that the amount of Rs. 5,000/- was paid as deposit or as advance money in order to bring the case within section 4 of the Ownership Flats Act stands disproved by the complainants own statement. Section 3(2)(a) and (b) deals with the deals disclosure of the nature of the Promotors title to the land and to the encumbrances on the land. There is no case made out that the promoters. i.e., the present respondents had not made any full and true disclosure in the nature of the title of the land or to the encumbrances on the land. Therefore, the petitioner has not brought home the charge under section 3(2)(a) and (b) of the Ownership Flats Act and the respondents were rightly acquitted by the lower Court. 18. The petitioner has come forward with a case that no date by which the possession of the flat was to be handed over was fixed. But the petitioner has admitted that on 10th July, 1963 he was given an agreement and the key of the flat by the brother of accused No. 2. Therefore, even according to the complainants own case, the possession of the flat was delivered to him on the day the agreement was signed. Therefore, on the facts of this case, the provisions of section 3(2)(f) are not attracted. The charge under that section must, therefore, fail. The lower Court was, therefore, justified in acquitting the accused of that offence. 19. In regard to the offence under section 4, viz., charging more than 20 per cent, it must, at the outset, be stated that section 4 is provided to accept the amount as advance money or deposit. In the present case, the petitioner has admitted that it was the first instalment that has been paid towards the purchase price and that, therefore, on this ground the provision of section 4 of the said Ownership Flats Act are not attracted. In the present case, the petitioner has admitted that it was the first instalment that has been paid towards the purchase price and that, therefore, on this ground the provision of section 4 of the said Ownership Flats Act are not attracted. The respondents were acquitted by the learned Additional Sessions Judge on the ground that in order to bring home the charge under section 4 read with section 13 of the Ownership Flats Act, it was necessary for the prosecution to prove not only that the accused were partners but were in charge of and were responsible for the conduct of the business of the firm. That fact was not proved and, therefore, the essential ingredient of section 14 has not been complied with by the prosecution and hence the prosecution is vitiated. Now, this finding of the learned Additional Sessions Judge is not challenged before me. What has been argued before me by Shri Mehta is that section 14 merely provides as to who is liable if the Company is prosecuted as an accused and that it would be impossible for a person to prove who was the person responsible for the conduct of the business of the firm and that, therefore, the prosecution is not vitiated merely because such responsible person is not joined as a co-accused. On the question whether the Company is a necessary party as co-accused; Shri Mehta has contended that it is not necessary that the firm should be joined as co-accused and, therefore, even on that basis the prosecution must succeed. Now, it is difficult to accept this submission of Shri Mehta. Shri Merchant on the other hand has referred to an unreported decision of (Vaidya J. in Criminal Appeal No. 1167 of 1969, decided on 14th January, 1971)1 and he has contended that by the agreement itself the complainant will have no right other than the rights which are available as a member of a Co-operative Society and the words "taken on ownership basis" must necessarily include "taken on the basis of joining Co-operative Society" and for that reason the prosecution by the complainant is erroneous. The acquittal of the respondents-accused by the lower Court must therefore, be sustained. 20. The acquittal of the respondents-accused by the lower Court must therefore, be sustained. 20. Section 14(1) of the Ownership Flats Act deals with the offences by companies and it states :- "If the person committing an offence under this Act is a company, every person who at the time the offence was committed was in charge of, and was responsible to, the company for the conduct of business by the company, as well as the company, shall be deemed to be guilty, of the offence and shall be liable to be proceeded against and punished accordingly." Therefore, as provided in Section 14, the Company itself is a guilty party and if the Company is not joined, then in that case the prosecution must fail. "Company" has been explained in section 14 as meaning a body corporate and includes a firm or other association of individuals. That being so, it was incumbent upon the petitioner to have joined the Company as co-accused. The failure to join the firm as co-accused must be fatal to the trial for the reason that the use of the words "as well as the company" in section 14(1) makes it amply clear that the Company is also necessarily to be joined as co-accused. Furthermore, I am in entire agreement with the view expressed by the learned Additional Sessions Judge that it was incumbent upon the complainant to prove which of the three accused, the respondents herein, was responsible for the conduct of the business of the firm and there being no evidence on record in that regard, the acquittal of the accused on that score must be sustained. The decision of Vaidya J. has been distinguished on the ground that the facts in that case and the facts in the present case are different. The decision of Vaidya J. has been distinguished on the ground that the facts in that case and the facts in the present case are different. In the case under consideration in the said Appeal decided by Vaidya J. The Agreement contained a proviso in clause 5 which provided :--- "Nothing contained in these presents shall be construed as demise or assignment or conveyance in law of the said piece of land or any part thereof or the said building or any part thereof constructed thereon, such demise or assignment or conveyance is to take place only upon the transfer by a formal assignment or conveyance to the Co-operative Housing Society Ltd., or a limited liable Company or an incorporated body to be formed as herein after provided." In the present case, Clause 11 of the agreement provides as under :-- "The Promoters agree and undertake to convey the said building and land appertaining there upto to the Co-operative Housing Society to be formed by the tenant members acquiring the flats in the said building." Therefore, though ex facie the wording in Clause 5 in the case before Vaidya J. and the wording in Clause 11 in the present case is different, the effect, in my opinion, is the same, viz., that the conveyance was to be effected to the Co-operative Society, and the agreement itself provides that the petitioner was to be a tenant member. Therefore, as has been held by Justice Vaidya, the petitioners rights in the flat were necessarily restricted by the rights and interests of other flat owners who had, therefore, to join a Co-operative Society. If the legislature intended to include within its ambit transactions of this nature, they ought to have defined the words "ownership basis" including the transaction of the present nature where the builders wanted to convey to flat-holders flat in a building which were to be ultimately transferred to a Co-operative Housing Society. In the absence of such express provision, it is impossible to hold that the accused contravened section 4 in not giving a copy of the agreement to the complainant and other flat-holders and not getting it registered. The agreement did not amount to an agreement to take a flat on ownership basis. Section 4 is not at all attracted. Therefore, the acquittal of the respondents-accused under section 4 of the Ownership Flats Act must, therefore, be sustained. 21. The agreement did not amount to an agreement to take a flat on ownership basis. Section 4 is not at all attracted. Therefore, the acquittal of the respondents-accused under section 4 of the Ownership Flats Act must, therefore, be sustained. 21. Shri Mehta has lastly contended that the accused has committed criminal breach of trust in respect of an amount of Rs. 21,000/- as well as an amount of Rs. 251/- given for share money. Now, in respect of the amount of Rs. 225/- the petitioner has, in his evidence, stated that he gave a cheque for Rs. 251/- for painting and fixtures; but later on he corrected himself and stated that he paid share money as Rs. 250/- and membership fee rupee one by cheque to accused No. 2. Then in cross-examination he has stated that he paid Rs. 251/- for painting and wiring. Since the petitioner himself states that he had not paid Rs. 251/- for share money and membership fee, the burden cannot be shifted upon the accused-respondents and, therefore, it must be held that the petitioner himself has failed to prove that he paid Rs. 251/- towards share money and membership fee. 22. In regard to the amount of Rs. 21,000/-, it is an admitted fact that Rs. 21,000/- were received by the accused, but the Secretary of the Co-operative Society, witness Kunju Krishna Pillai has, in his evidence, admitted that the property was conveyed by the accused to the society for Rs. 2,58,000/- and that amount included the contribution of Sadruddin, i.e., the complainant. The said price was the aggregate price of all the flats, grages and land. Therefore, the said amount of Rs. 21,000/- having been paid to the Society, the accused-respondents have committed no offence and have not committed any criminal breach of trust in respect thereof. The offence under section 8 of the Ownership Flats Act has not, therefore, been made out. 23. In the result, both the appeals fails and are dismissed. Appeal dismissed. .....