Mastan Singh vs Jaswinder Singh Zora Singh Sandhu

Amar Dutt, J.—Mastan Singh filed a complaint before the Judicial Magistrate First Class, Amloh against the respondents alleging that being an agriculturist he was selling his agricultural produce with respondents No. 2 to 5 who were working as Commission Agents in Mandi Gobindgarh. The respondents had been receiving the price of the produce but had not passed it on to the petitioner and consequently misappropriated the amount received by him. Hence the complaint under Sections 406 and 409 IPC.

Preliminary evidence was recorded by the learned trial Court whereafter the respondents were summoned to face their (trial) u/s 406 IPC. The respondents appeared before the trial Court and moved an application that the complaint be dismissed and they be discharged. According to them the dispute was civil in nature and it was no where stated that any amount was entrusted to the respondents and had been misappropriated by them. It was also submitted that the complaint was barred by them. These objections did not find favour with the trial Court and were dismissed. The respondents filed a revision petition before the Session Judge which was accepted. The petitioner now seeks to challenge the decision of the learned Addl. Sessions Judge, Fatehgarh Sahib. 1 have heard Shri Arvind Kashyap, Advocate, learned counsel for the petitioner, Mr. R.K. Battas, Advocate, learned counsel for respondent No. 1 and Mr. P.C. Chaudary, Advocate, learned counsel for the respondent No. 2 to 5 and have given my thoughtful consideration to the points urged by them.

The first submission raised before me was in anticipation of an objection that may have been taken by the respondents to the maintainability of a criminal complaint in cases where the parties could also avail a remedy on the civil side. The maintainability of a complaint in certain case was not challenge by the respondents'' counsel in view of the law laid down in M/s Medohl Chemicals & Pharma Pvt. Ltd. v. Biological E. Ltd 2000(2) RCR 122.

The main point in controversy before the Court was confined to the question whether in the facts and circumstances brought on the record the Addl. Sessions Judge was right in holding that the complaint was barred by time. For appreciating the submission one may refer to Section 468 of the Code of Criminal Procedure which reads as under :

"Bar to taking cognizance after lapse of the period of limitation - (1) Except as otherwise provided elsewhere in this Code, no Court shall take cognizance of an offence of the category specified in sub-section (2) after the expiry of the period of limitation.

(2) The period of limitation shall be -

(a) six months, if the offence is punishable with fine only;

(b) one year, if the offence is punishable with imprisonment for a term not exceeding one year;

(c) three years, if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years.

(3) For the purposes of this section, the period of limitation, in relation to offences which may be tried together, shall be determined with reference to the offence which is punishable with the more severe punishment or, as the case may be, the most severe punishment."

The respondents have been summoned to face their trial u/s 406, IPC. The complaint had to be filed within 3 years as laid down in Section 468 Cr.P.C, In the present case though the transition took place between the parties after 4.5,1991 yet the cause of action to file the complaint arose only when the respondents refused to make payments of the amounts due from them to the petitioner on 8.9.1996 as the offence of criminal mis- appropriation is a continuing offence, which continues until the property is restored to its true owner. For this view of mine, I seek support from the observations contained in Balram Singh v. Sukhwant Kaur and another 1991(2) CLR 107. The complaint was, therefore, within time as observed by their Lordships of the Hon''ble Supreme Court in Smt. Rashmi Kumar v. Mahesh Kumar Bhada 1997 ACJ 386 : 1999(2) RCR 43 and Balram Singh''s (supra).

For the reasons recorded above, this revision succeeds and is allowed. Accordingly, the order dated 10.10.1998 passed by Additional Sessions Judge, Fatehgarh Sahib is set aside and the trial Court is directed to proceed with the trial of the case in accordance with law.

Revision allowed.