Criminal Revision Application No.45 of 1993

26th August, 1996

Respondent Counsel: Ms. J.S.PAWAR, Shri. S.PARAB i/s MULLA & MULLA with H.V.VAKIL

Cases Cited:
1992 Supp (1) SCC 335 [Para 7]
AIR 1981 SC 1054 [Para 8]
1981 Cri.L.J. 1813 [Para 8]
AIR 1930 Sind 221 [Para 5,9]

JUDGMENT

JUDGMENT : The petitioner and appellant in person. The aforesaid criminal Revision Application and the Criminal appeal arise out of the same proceeding and being between the same parties, can be disposed of by this common judgment.

2. The order impugned in the revision application is passed by the Additional Sessions Judge, Pune, in Criminal Revision Application No.362 of 1991 and thereunder the order of the Judicial magistrate (A.C.), F.C., Pune, issuing process for offences under sections 403 and 406 of the Indian Penal Code, in Criminal Case No.396 of 1991, on his file, has been set aside holding that the complaint filed by the petitioner before the Magistrate was barred by limitation.

3. The necessary facts to understand the controversy are follows :

The petitioner is a Graduate in Metallurgical Engineering and he established a small scale industry styled as "Anil Industries" with 100% assistance of the Maharashtra State Financial Corporation, under Technicians' Assistance Scheme. The required capital was sanctioned by the Central Bank of India, Tilak Road Branch, Pune. Respondents Nos. 2 and 3 are respectively officials of the Central bank of India, Tilak Road Branch, Pune, Respondent No.3 being the Branch Manager. Due to reasons beyond the control of the petitioner, his unit incurred losses and dues remained to be paid and the unit virtually came to standstill. However, on the recommendations of the Director of Industries, the unit was identified as a 'sick unit' and nursing programme as per guidelines prescribed by the Reserve Bank of India was undertaken by the Central bank. The object of the nursing programme was to repay the dues by the profits and surplus generated by the working of the unit. Amongst other dues, petitioner was liable to pay sales tax to the Sales Tax Department of the Government of Maharashtra. In that connection, petitioner deposited two cheques, received by him from M/s. Vulcan Laval Co., drawn on the Central Bank of India, account of M/s Anil Industries for Rs.1879.20 and Rs.7448.42, totalling to Rs.9357.62. Proceeds of these cheques were realised on 5-11-1982 and the cheques were deposited on 4-11-1982. The petitioner had informed that the amounts realised from the said cheques should be paid towards the sale-tax dues and even Sales tax department had levied attachment on the account of the petitioner. It was also the directive of the Reserve Bank of India that the Bank should take care of statutory dues of the small scale units. Inspite of the said clear-cut direction of law as well as of the petitioner, Respondents Nos.2 and 3 are alleged to have appropriated the said sums towards the dues of the bank and that is how offences under sections 403 and 406 of the Indian Penal Code are alleged to be committed by Respondents Nos. 2 and 3. This is alleged to be done with malafide intention and dishonest intention and with a view to cause wrongful loss to the petitioner. The petitioner then contended that though this was the fact of 5-11-1982 he was not in the know of attachment levied by the Sales-tax Department and it is for the first time when the Central Bank of India filed documents in the Special Civil Suit instituted by it against the petitioner, from extract of accounts, that he came to know for the first time on 9th February 1988 that the Bank has misappropriated the amounts of the aforesaid cheques. As such, petitioner claims that knowledge of the alleged offences came to his notice on 9th February 1988 and thus instituted the private complaint viz. Criminal case No.396 of 1991 in the Court of Judicial Magistrate, F.C.(A.C.B.), Pune on 1st January 1990.

4. It appears that the learned Magistrate initially directed the police to make enquiry and submit report, but the same was not received for a considerable time, inspite of the repeated directions and ultimately, the learned Magistrate without waiting for report of the police, after perusing the papers, verification statement of the petitioner and the allegations made in the complaint issued process for the aforesaid offences against Respondents Nos. 2 and 3. on 5-9-1991.

5. That order came to be challenged by Respondents Nos. 2 and 3 before the Sessions Court, Pune by preferring Criminal Revision Application No.362 of 1991. The Additional Sessions Judge, Pune, accepted the contention of Respondents Nos. 2 and 3 - original accused, in the complaint, that the period of limitation for filing the complaint for the offence under section 406 of the I.P.C. was of 3 years under section 468 of the criminal Procedure Code, and that for offence under section 403, of one year and having regard to the fact that offence was committed on 4-11-1982 the complaint filed by the petitioner on 1st January 1990, was clearly barred by limitation.

6. On behalf of Respondents Nos. 2 and 3, plea of jurisdiction of the Magistrate was also raised but that has been negatived. The learned Additional Sessions Judge found that complaint being barred by limitation, the Judicial Magistrate should not have taken cognizance of the same in the absence of any application for condonation of delay or without holding that it was necessary to do in the interest of justice.

7. The petitioner-in-person contended before me that the Additional Sessions Judge has totally ignored the provisions regarding condonation of delay and clear averments made by him in the complaint, that the offence came to his knowledge on 9th February 1988 and from that time, complaint was filed quite within limitation. It was submitted that the learned Judge has overlooked the provisions of section 469(b) of the Cri.P.C. and without taking into consideration those averments simply on the basis of the date of commission of offence, he held that the complaint was barred by limitation. Furthermore it was submitted that the Respondents Nos. 2 and 3 are public servants being employees of the nationalised Bank and in substance the offence committed was under section 409 of the I.P.C. though in the complaint it has been stated to be under sections 403 and 406 of the I.P.C. I find sufficient force in the submissions advanced on behalf of the petitioner. It is now well settled that in setting aside or quashing the order of issue of process by the Magistrate certain categories of cases have been illustrated by the Supreme Court, in State of Haryana vs. Bhajanlal (1992 Supp.(1) SCC 335). The Additional Sessions Judge considered this to be a case falling in category (1) viz. that taking the allegations in the complaint at face of it no offence is disclosed, or that there is some bar such as sanction, limitation etc. If this position is to be considered, then certainly averments made in the complaint by the petitioner that offence came to his knowledge only on 5th February 1988 is required to be considered and cannot be excluded from consideration. However, the learned Additional Sessions Judge appears to have ignored this aspect of the complaint and taking date of offence as the basis, calculated limitation and came to the conclusion that the complaint was time barred. May be that the complainant would be in a position to establish or not, that fact of offence came to his knowledge only on 5th February 1988. that is a matter of evidence to be led in the complaint. As such, it appears that the Additional Sessions Judge while considering the complaint filed by the petitioner, ignored certain aspects therein on the point of limitation and erroneously came to the conclusion that the complaint was barred by limitation. Furthermore, though offence under section 403 and 406 of the I.P.C. are mentioned in the complaint, yet, one should not go by the number of section. Body of the complaint would go to show that the respondents Nos. 2 and 3 were public servants being officers of the Nationalised Bank and in substance, criminal breach of trust or misappropriation by public servant is offence under section 409 of the I.P.C., which is punishable with life imprisonment, or imprisonment which may extend to 10 years. For this offence, there is no limitation for filing the complaint.

8. On behalf of the Respondents Nos. 2 and 3, decisions in State of Punjab vs. Sarwan Singh (AIR 1981 SC 1054) and in the case of Jethmal Himmatmal Jain vs. State of Maharashtra (1981 Cri.L.J. 1813) have been relied upon. Having regard to the aforesaid decisions, no doubt, question of limitation has to be considered in a given case but the same is required to be considered on the basis of the averments made in the complaint and after giving an opportunity to the complainant to prove the allegations in that behalf. It may be that the complainant, after he is given opportunity to lead evidence, may fail to prove the facts on the basis of which he claims his complaint to be within limitation, but that will be a matter of evidence. It cannot be said that on the basis of the complaint, taking all the allegations therein, the complaint was barred by limitation. Secondly, as indicated above, the facts disclose prima facie offence under section 409 of the I.P.C. though the complainant has mentioned offences as under sections 403 and 406 of the I.P.C. That aspect also could not have been lost sight of. As such, on that account also, I find that the order of the Additional Sessions Judge cannot be sustained and will have to be quashed and set aside and the order of the Judicial Magistrate, F.C., (AC), Pune, issuing process will have to be restored.

Accordingly, Criminal Revision Application No.45 of 1993 is allowed and the order of the Additional Sessions Judge, Pune, is set aside and the complaint filed by the Petitioner is directed to be proceeded with according to law. Rule is made absolute in the aforestated terms.

9. Coming to Criminal Appeal No.222 of 1993, filed by the appellant, who is also revision petitioner abovenamed, I find the same to be totally misconceived. the appellant-complainant had filed an application in the aforesaid revision application in the Sessions Court, Pune, for taking action against Respondents Nos. 2 to 5 in the appeal under sections 191, 192 and 193 r/w 34 of the I.P.C. in that behalf, in paragraph 17 of the Memo of Appeal, false statements alleged to be made by Respondents Nos. 2 to 5 have been enumerated. The application filed by the appellant as per Exhibit 13 before the Additional Sessions Judge in Revision Application No. 362 of 1991 has been rejected by the Additional Sessions Judge, for the reasons stated in the said judgment in revision application before him. However, finding has to be reached by the Court after enquiry and then the Court has to make complaint for the aforesaid offences. Merely on the basis of the assertions of the appellant that the circumstances enumerated were false, it was not possible for the Additional Sessions Judge to have taken action as prayed for in the application. I, therefore, find appeal of the appellant devoid of any merit and the same will have to be dismissed.

Accordingly, appeal is dismissed.

order accordingly.