In M/s. Raymond Limited & Anr., Etc. Etc. v. Madhya
Pradesh Electricity Board & Ors., Etc. Etc., AIR 2001 SC 238, this
Court held as under:
“It cannot legitimately be contended that the
word "continuously" has one definite meaning
only to convey uninterrupted ness in time
sequence or essence and on the other hand
the very word would also mean 'recurring at
repeated intervals so as to be of repeated
occurrence'. That apart, used as an adjective
it draws colour from the context too.”
In Sankar Dastidar v. Smt. Banjula Dastidar & Anr., AIR
2007 SC 514, this Court observed as under:
“A suit for damages, in our opinion, stands
on a different footing vis--vis a continuous
wrong in respect of enjoyment of one's right
in a property. When a right of way is claimed
whether public or private over a certain land
over which the tort-teaser has no right of
possession, the breaches would be continuing
one. It is, however, indisputable that unless
the wrong is a continuing one, period of
limitation does not stop running. Once the
period begins to run, it does not stop except
where the provisions of Section 22 of the
Limitation Act would apply.”
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 61 of 2013
Udai Shankar Awasthi …Appellant
Versus
State of U.P. & Anr. …Respondents
Dr. B.S. CHAUHAN, J.
Citation;2014 ALLSCR 1831
1. Both these appeals have been preferred against the impugned
judgment and order dated 13.3.2012, passed by the High Court of
Judicature at Allahabad in Criminal Misc. Application No. 41827 of
2011, by which the High Court has rejected the petition filed under
Section 482 of Code of Criminal Procedure,1973 (hereinafter referred
to as the ‘Cr.P.C.’) for quashing the proceedings in Complaint Case
No.628 of 2011 (Sudha Kant Pandey v. K.L. Singh & Anr.) under
Page 2
Sections 403 and 406 of Indian Penal Code, 1860 (hereinafter referred
to as the ‘IPC’).
2. Facts and circumstances giving rise to these appeals are:
A. M/s. Manish Engineering Enterprises of which respondent
No.2, Sudha Kant Pandey, claims to be the proprietor, was given a
work order by M/s. Indian Farmers Fertilizer Cooperative Ltd.
(hereinafter referred to as “IFFCO”), Phulpur unit, on 1.2.1996 for
the purpose of conducting repairs in their plant worth an estimated
value of Rs.13,88,750/-. The said work order was subsequently
cancelled by IFFCO on 7.2.1996.
B. Aggrieved, M/s. Manish Engineering Enterprises made a
representation dated 21.3.2001, to IFFCO requesting it to make
payments for the work allegedly done by it. As there was no response
from the management of IFFCO, the said concern filed Writ Petition
No. 19922 of 2001 before the High Court of Allahabad, seeking a
direction by it to IFFCO for the payment of an amount of
Rs.22,81,530.22 for alleged work done by it.
C. The High Court disposed of the said Writ Petition vide order
dated 25.5.2001, directing IFFCO to dispose of the representation
dated 21.3.2001, submitted by the said concern within a period of 6
weeks. In pursuance of the order of the High Court dated 25.5.2001,
the said representation dated 21.3.2001, was considered by the
Managing Director of IFFCO and was rejected by way of a speaking
order dated 15.10.2001, and the same was communicated to the said
concern vide letter dated 29.10.2001.
D. M/s. Manish Engineering Enterprises filed Writ Petition No.
7231 of 2002 before the High Court of Allahabad for the recovery of
the said amount, which stood disposed of vide order dated 20.2.2002,
with a direction to pursue the remedy available under the arbitration
clause contained in the agreement executed in pursuance of the
aforementioned work order.
E. M/s. Manish Engineering Enterprises filed Arbitration
Application No. 24 of 2002 before the High Court of Allahabad under
Section 11 of the Arbitration and Conciliation Act, 1996 (hereinafter
referred to as ‘the Act 1996’) on 24.5.2002, praying for the
appointment of an arbitrator, in view of the fact that the application
made by the said concern for the purpose of appointing an arbitrator,
had been rejected by IFFCO as being time barred. The High Court
therefore, vide judgment and order dated 17.10.2003, appointed an
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Page 4
arbitrator. However, the said arbitrator expressed his inability to work.
Thus, vide order dated 13.2.2004, another arbitrator was appointed.
F. M/s. Manish Engineering Enterprises filed a Claim Petition on
various counts, including one for an amount of Rs.9,27,182/- towards
the alleged removal of items from their godown within the IFFCO
premises.
The learned arbitrator so appointed, framed a large number of
issues and rejected in particular, the claim of alleged removal of items
from the godown of M/s. Manish Enterprises, located within the
IFFCO premises (being issue No.13), though he accepted some other
claims vide award dated 11.3.2007.
IFFCO filed an application under Section 34 of the Act, 1996
for the purpose of setting aside the award dated 11.3.2007, before the
District Court, Allahabad and the matter is sub-judice.
G. Mr. Sabha Kant Pandey, the brother of respondent
no.2/complainant, filed Complaint Case No. 4948 of 2009 against the
officers of IFFCO on 23.11.2009 under Sections 323, 504, 506, 406
and 120-B IPC before the court of Special Chief Judicial Magistrate,
Allahabad. Therein, some witnesses including the said complainant
were examined.
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Page 5
H. Sabha Kant Pandey, the brother of respondent no.2 filed
another Complaint Case No. 26528 of 2009, against the appellants
and others under Sections 147, 148, 323, 504, 506, 201 and 379 IPC.
In the said complainant, the brother of respondent no.2 was examined
alongwith others as a witness.
I. Complaint case no. 4948 of 2009 was rejected by way of a
speaking order passed by the Special Chief Judicial Magistrate, vide
order dated 20.3.2010 under Section 203 Cr.P.C.
J. Respondent no.2 filed Criminal Complaint No. 1090 of 2010
against the appellants and others on 2.4.2010, under Sections 323,
504, 506, 406 and 120-B IPC before the Special Chief Judicial
Magistrate, Allahabad. After investigating the matter, the police
submitted a report on 18.4.2010 stating that, allegations made in
complaint case no. 1090 of 2010 were false.
K. The Additional Chief Judicial Magistrate, vide order dated
18.8.2011 dismissed complaint case no. 26528 of 2009 filed by the
brother of respondent no.2.
L. Respondent no.2 filed another complaint case no. 628 of 2011
on 31.5.2011 under Sections 403 and 406 IPC, in which, after taking
cognizance, summons were issued to the present appellants under
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Page 6
Sections 403 and 406 IPC on 16.7.2011, and vide order dated
22.9.2011, bailable warrants were issued against the appellants by the
Addl. CJM, Allahabad. Subsequently, vide order dated 21.11.2011,
non-bailable warrants were also issued against one of the appellants
by the Addl. CJM, Allahabad.
In view of the fact that K.L. Singh, appellant in the connected
appeal, could not be served properly as the correct address was not
given, on being requested, the Addl. CJM withdrew the non-bailable
warrants on 17.12.2011.
M. Aggrieved, the appellants filed Criminal Misc. Application No.
41827 of 2011 under Section 482 Cr.P.C. before the High Court for
quashing the said criminal proceedings, which has been dismissed
vide impugned judgment and order.
Hence, these appeals.
3. Shri Mukul Rohtagi and Shri Nagendra Rai, learned senior
counsel appearing for the appellants, have submitted that as the
complaint cases filed by the brother of the respondent no.2 in regard
to the same subject matter were dismissed by the magistrate
concerned, the question of entertaining a fresh complaint could not
arise. A fresh complaint cannot be entertained during the pendency of
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Page 7
the complaint case filed by respondent No. 2, with respect to which,
the police filed a final report, stating the same to be a false complaint.
It was further submitted, that there was suppression of material facts,
as in Complaint Case No. 628 of 2011, dismissal of the earlier
complaint was not disclosed. Furthermore, as the matter is purely
civil in nature, and in view of the fact that arbitration proceedings
with respect to the very same subject matter are presently sub-judice,
and the claim of respondent no.2 on this count has already been
rejected by the arbitrator, entertaining/continuing criminal
proceedings in the said matter is clearly an abuse of the process of the
court. Moreover, the alleged claim is related to the period of 1996. A
complaint made after a lapse of 15 years is barred by the provisions of
Section 468 Cr.P.C., and the High Court has erred in holding the same
to be a continuing offence. As, in pursuance of the High Court’s
order dated 25.5.2001, the representation of respondent no.2 dated
21.3.2001 was decided by the Managing Director, IFFCO vide order
dated 15.10.2001, the limitation period began from the date of the said
order, or at the most from 29.10.2001, that is, the date on which, the
order of rejection was communicated.
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Page 8
The initiation of criminal proceedings is nothing but an attempt
by the frustrated litigant to give vent to his frustration, by invoking
the jurisdiction of the criminal court and thus, the proceedings are
liable to be quashed.
4. Per contra, Shri Devrrat, learned counsel appearing for
respondent no.2, has submitted that the High Court has rightly held
that the same was in fact, a case of continuing offence. Therefore, the
question of limitation does not arise. The law does not prohibit the
initiation of criminal proceedings where there has been breach of trust
and further, in such a case, in spite of the fact that arbitration
proceedings are pending, a criminal complaint is maintainable, and
the court concerned has rightly entertained the same. There is no
prohibition in law as regards maintaining a second application, even
though the earlier application has been dismissed. Thus, the appeals
are liable to be dismissed.
5. We have considered the rival submissions made by learned
counsel for the parties as well as by Shri Gaurav Bhatia and Shri
Annurat, learned counsel appearing for the State of U.P. and perused
the record.
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Page 9
In light of the facts of these cases, it is desirable to deal first,
with the legal issues involved herein.
LIMITATION IN CRIMINAL CASES- Section 468 Cr.P.C.:
6. Section 468 Cr.P.C. places an embargo upon court from taking
cognizance of an offence after the expiry of the limitation period
provided therein. Section 469 prescribes when the period of limitation
begins. Section 473 enables the court to condone delay, provided that
the court is satisfied with the explanation furnished by the
prosecution/complainant, and where, in the interests of justice,
extension of the period of limitation is called for. The principle of
condonation of delay is based on the general rule of the criminal
justice system which states that a crime never dies, as has been
explained by way of the legal maxim, nullum tempus aut locus
occurrit regi (lapse of time is no bar to the Crown for the purpose of it
initiating proceeding against offenders). A criminal offence is
considered as a wrong against the State and also the society as a
whole, even though the same has been committed against an
individual.
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Page 10
7. The question of delay in launching a criminal prosecution may
be a circumstance to be taken into consideration while arriving at a
final decision, however, the same may not itself be a ground for
dismissing the complaint at the threshold. Moreover, the issue of
limitation must be examined in light of the gravity of the charge in
question. (Vide: Japani Sahoo v. Chandra Sekhar Mohanty, AIR
2007 SC 2762; Sajjan Kumar v. Central Bureau of Investigation,
(2010) 9 SCC 368; and Noida Entrepreneurs Association v. Noida
& Ors., AIR 2011 SC 2112).
8. The court, while condoning delay has to record the reasons for
its satisfaction, and the same must be manifest in the order of the court
itself. The court is further required to state in its conclusion, while
condoning such delay, that such condonation is required in the interest
of justice. (Vide: State of Maharashtra v. Sharad Chandra
Vinayak Dongre & Ors., AIR 1995 SC 231; and State of H.P. v.
Tara Dutt & Anr., AIR 2000 SC 297).
9. To sum up, the law of limitation prescribed under the Cr.P.C.,
must be observed, but in certain exceptional circumstances, taking
into consideration the gravity of the charge, the Court may condone
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Page 11
delay, recording reasons for the same, in the event that it is found
necessary to condone such delay in the interest of justice.
CONTINUING OFFENCE:
10. Section 472 Cr.P.C. provides that in case of a continuing
offence, a fresh period of limitation begins to run at every moment of
the time period during which the offence continues. The expression,
‘continuing offence’ has not been defined in the Cr.P.C. because it is
one of those expressions which does not have a fixed connotation, and
therefore, the formula of universal application cannot be formulated in
this respect.
11. In Balakrishna Savalram Pujari Waghmare & Ors. v. Shree
Dnyaneshwar Maharaj Sansthan & Ors., AIR 1959 SC 798, this
Court dealt with the aforementioned issue, and observed that a
continuing offence is an act which creates a continuing source of
injury, and renders the doer of the act responsible and liable for the
continuation of the said injury. In case a wrongful act causes an
injury which is complete, there is no continuing wrong even
though the damage resulting from the said act may continue. If the
wrongful act is of such character that the injury caused by it itself
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Page 12
continues, then the said act constitutes a continuing wrong. The
distinction between the two wrongs therefore depends, upon the effect
of the injury.
In the said case, the court dealt with a case of a wrongful act of
forcible ouster, and held that the resulting injury caused, was complete
at the date of the ouster itself, and therefore there was no scope for
the application of Section 23 of the Limitation Act in relation to the
said case.
12. In Gokak Patel Volkart Ltd. v. Dundayya Gurushiddaiah
Hiremath & Ors., (1991) 2 SCC 141, this Court dealt with the issue
and held as under:
“According to the Blacks' Law Dictionary,
Fifth Edition, 'Continuing' means ‘enduring;
not terminated by a single act or fact;
subsisting for a definite period or intended to
cover or apply to successive similar
obligations or occurrences.’ Continuing
offence means ‘type of crime which is
committed over a span of time.’ As to period
of statute of limitation in a continuing
offence, the last act of the offence controls for
commencement of the period. ‘A continuing
offence, such that only the last act thereof
within the period of the statute of limitations
need be alleged in the indictment or
information, is one which may consist of
separate acts or a course of conduct but
which arises from that singleness of thought,
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purpose or action which may be deemed a
single impulse.’ So also a 'Continuous Crime'
means "one consisting of a continuous series
of acts, which endures after the period of
consummation, as, the offence of carrying
concealed weapons. In the case of
instantaneous crimes, the statute of limitation
begins to run with the consummation, while in
the case of continuous crimes it only begins
with the cessation of the criminal conduct or
act."
13. While deciding the case in Gokak Patel Volkart Ltd. (Supra),
this Court placed reliance upon its earlier judgment in State of Bihar
v. Deokaran Nenshi & Anr., AIR 1973 SC 908, wherein the court
while dealing with the case of continuance of an offence has held as
under:
“A continuing offence is one which is
susceptible of continuance and is
distinguishable from the one which is
committed once and for all. It is one of those
offences which arises out of a failure to obey
or comply with a rule or its requirement and
which involves a penalty, the liability for
which continues until the rule or its
requirement is obeyed or complied with. On
every occasion that such disobedience or
non-compliance occurs and recurs, there is
the offence committed. The distinction
between the two kinds of offences is between
an act or omission which constitutes an
offence once and for all and an act or
omission which continues and therefore,
constitutes a fresh offence every time or
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Page 14
occasion on which it continues. In the case of
a continuing offence, there is thus the
ingredient of continuance of the offence
which is absent in the case of an offence
which takes place when an act or omission is
committed once and for all.”
(See also: Bhagirath Kanoria & Ors. v. State of M.P., AIR 1984 SC
1688; and Amrit Lal Chum v. Devoprasad Dutta Roy, AIR 1988
SC 733).
14. In M/s. Raymond Limited & Anr., Etc. Etc. v. Madhya
Pradesh Electricity Board & Ors., Etc. Etc., AIR 2001 SC 238, this
Court held as under:
“It cannot legitimately be contended that the
word "continuously" has one definite meaning
only to convey uninterrupted ness in time
sequence or essence and on the other hand
the very word would also mean 'recurring at
repeated intervals so as to be of repeated
occurrence'. That apart, used as an adjective
it draws colour from the context too.”
15. In Sankar Dastidar v. Smt. Banjula Dastidar & Anr., AIR
2007 SC 514, this Court observed as under:
“A suit for damages, in our opinion, stands
on a different footing vis--vis a continuous
wrong in respect of enjoyment of one's right
in a property. When a right of way is claimed
whether public or private over a certain land
over which the tort-teaser has no right of
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Page 15
possession, the breaches would be continuing
one. It is, however, indisputable that unless
the wrong is a continuing one, period of
limitation does not stop running. Once the
period begins to run, it does not stop except
where the provisions of Section 22 of the
Limitation Act would apply.”
The Court further held:
“Articles 68, 69 and 91 of the Limitation Act
govern suits in respect of movable property.
For specific movable property lost or
acquired by theft, or dishonest
misappropriation or conversion; knowledge
as regards possession of the party shall be the
starting point of limitation in terms of Article
68. For any other specific movable property,
the time from which the period begins to run
would be when the property is wrongfully
taken, in terms of Article 69. Article 91
provides for a period of limitation in respect
of a suit for compensation for wrongfully
taking or injuring or wrongfully detaining
any other specific movable property. The time
from which the period begins to run would be
when the property is wrongfully taken or
injured or when the detainer's possession
becomes unlawful.”
16. Thus, in view of the above, the law on the issue can be
summarised to the effect that, in the case of a continuing offence, the
ingredients of the offence continue, i.e., endure even after the period
of consummation, whereas in an instantaneous offence, the offence
takes place once and for all i.e. when the same actually takes place. In
such cases, there is no continuing offence, even though the damage
resulting from the injury may itself continue.
SECOND COMPLAINT ON SAME FACTS-MAINTAINABILITY:
17. While considering the issue at hand in Shiv Shankar Singh v.
State of Bihar & Anr., (2012) 1 SCC 130, this Court, after considering
its earlier judgments in Pramatha Nath Talukdar v. Saroj Ranjan
Sarkar AIR 1962 SC 876; Jatinder Singh & Ors. v. Ranjit Kaur
AIR 2001 SC 784; Mahesh Chand v. B. Janardhan Reddy & Anr.,
AIR 2003 SC 702; Poonam Chand Jain & Anr. v. Fazru AIR 2005
SC 38 held:
“It is evident that the law does not prohibit
filing or entertaining of the second
complaint even on the same facts provided
the earlier complaint has been decided on
the basis of insufficient material or the
order has been passed without
understanding the nature of the complaint
or the complete facts could not be placed
before the court or where the complainant
came to know certain facts after disposal of
the first complaint which could have tilted
the balance in his favour. However, second
complaint would not be maintainable
wherein the earlier complaint has been
disposed of on full consideration of the case
of the complainant on merit.”
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Page 17
18. The present appeals require to be decided on the basis of the
settled legal propositions referred to hereinabove.
Complaint Case No.4948 of 2009 was filed by Sabha Kant
Pandey, brother of respondent no.2, wherein, he claimed to be a
partner in the firm M/s Manish Engineering Enterprises, against one
of the appellants and other officers of IFFCO, under Sections 323,
504, 506, 406 and 120B IPC at Police Statition Phulpur, District
Allahabad, alleging that the said Firm had been given a separate
godown/office within the IFFCO compound, wherein their articles
worth Rs.30-40 lacs, as well as their documents were kept. The
complainant was not permitted to remove them and additionally,
even the payment for the work done by the firm was not made, on
certain technical grounds. The officers of IFFCO, including Mr. U.S.
Awasthi - the appellant, misbehaved with the complainant and kept
the said articles worth Rs.30-40 lacs, as also the important documents,
in addition to the entry gate pass required to enter the plant by the
complainant and his brother Sudhakant (respondent no.2 herein),
therefore making it impossible for them to access their godown.
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Page 18
19. The complaint was dealt with appropriately by the competent
court, wherein the present complainant was also examined as a
prosecution witness. The Court took note of the fact of pendency of
the Arbitration Proceedings with respect to the payment of dues, and
came to the conclusion that the complaint had been filed to put
pressure on IFFCO to obtain payments. The said complaint was
dismissed on merits.
20. Complaint Case No.26528 of 2009 was then filed by Sabhakant
Pandey, brother of respondent no.2, against one of the appellants and
also other officers of IFFCO under Sections 147, 148, 323, 504, 506,
201 and 379 IPC in Police Statition Phulpur, Allahabad, making
similar allegations, and giving full particulars of the outstanding dues.
That complaint was heard and disposed of by the competent court,
taking note of the fact that there had been a cross-complaint by the
officers of IFFCO, wherein allegations were made to the effect that on
19.12.2008, Arbitration Proceedings in Case No.1 of 2007 took place
at the residence of the Arbitrator, a retired Judge of the Allahabad
High Court, wherein Sabha Kant Pandey and Sudha Kant Pandey
misbehaved with the Arbitrator, and he was hence forced to adjourn
the hearing of the case. Subsequently, they stood in front of his
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Page 19
house and shouted slogans, abusing the officers of IFFCO and even
tried to beat them up. The court dismissed the said complaint after
recording the following findings:
“In the opinion of the court, the complaint
filed by Sabhakant Pandey is imaginary, a
bald story with an intention to put illegal
pressure and by suppressing material facts in
the complaint.”
21. Complaint Case No.1090 of 2010 was filed by the present
complainant, respondent no.2 against the appellant Udai Shankar
Awasthi and other officers of IFFCO under Sections 323, 504, 506,
406 and 120B IPC, making similar allegations as were mentioned in
the first complaint, to the effect that articles worth Rs.15-20 lacs in
each godown were lying in the premises of IFFCO, and that the
complainant was not permitted to remove the same. In the said case,
after investigation, the police filed the final report stating that all the
allegations made in the complaint were false. The concluding part of
the report reads as under:
“For last 6 months no body has turned
up to get his statement recorded in spite of
notice. The application had been filed on
false facts and complaint was bogus,
forceless and baseless and was liable to be
dismissed.”
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Page 20
22. So far as the present complaint is concerned, the same has been
filed under Sections 415, 406 and 403 IPC, wherein the allegation that
their Bill had been cleared on 10.7.1996, but the requisite payment, to
the tune of Rs.22,81,530/- was not made to the complainant. Their
claim for payment was wrongly rejected. Certain articles and
documents belonging to the complainant were lying within the
premises of IFFCO and the same were not returned to the complainant
despite requests for the same. In this case, after taking cognizance,
summons were issued on 16.7.2011, under Sections 403 and 406 IPC,
though the case under Section 415 IPC stood rejected.
23. It is evident that in the said complaint, no reference was made
by the complainant as regards the Arbitration Proceedings. There was
also no disclosure of facts to show that earlier complaints in respect of
the same subject matter, had been dismissed on merits by the same
court.
24. A copy of the Award made by the Arbitrator was placed on
record, wherein issue no.13 which dealt with the present controversy,
i.e. some material and documents were placed in the premises of
IFFCO and the return of the same was refused. The claim as regards
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Page 21
the same, has been rejected. There has been no mention of such
claim and its rejection by the said concern, in either of the writ
petitions filed before the High Court earlier or even for that matter, in
the application filed by the said concern before IFFCO, for the
purpose of making appointment of an arbitrator, or in the application
filed under Section 11 of the Act, 1996 before the High Court.
25. In the counter affidavit filed by respondent no.2, it has been
submitted that the contract was terminated by IFFCO fraudulently, to
usurp the entire amount towards the work done by it and that IFFCO
took illegal possession of all the goods and articles belonging to the
firm lying within its premises, and as the amount had not been paid,
the officers were guilty of criminal breach of trust and were therefore,
liable to be punished. However, the fact that earlier complaints had
been filed by the brother of respondent no.2 Sabha Kant Pandey has
been admitted. It has further been admitted that Arbitration
Proceedings are still pending, but it has also simultaneously been
urged that criminal prosecution has nothing to do with the Arbitral
award.
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Page 22
26. The Magistrate had issued summons without meeting the
mandatory requirement of Section 202 Cr.P.C., though the appellants
were outside his territorial jurisdiction. The provisions of
Section 202 Cr.P.C. were amended vide Amendment Act 2005,
making it mandatory to postpone the issue of process where the
accused resides in an area beyond the territorial jurisdiction of the
Magistrate concerned. The same was found necessary in order to
protect innocent persons from being harassed by unscrupulous persons
and making it obligatory upon the Magistrate to enquire into the case
himself, or to direct investigation to be made by a police officer, or by
such other person as he thinks fit for the purpose of finding out
whether or not, there was sufficient ground for proceeding against the
accused before issuing summons in such cases.. (See also: Shivjee
Singh v. Nagendra Tiwary & Ors., AIR 2010 SC 2261; and
National Bank of Oman v. Barakara Abdul Aziz & Anr., JT 2012
(12) SC 432).
27. Section 403 IPC provides for a maximum punishment of 2
years, or fine or both; and Section 406 IPC provides for a maximum
punishment of 3 years, or fine or both. The limitation period within
which cognizance must be taken, as per the provisions of Section 468
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Page 23
of Cr.P.C. is three years. In the case of an instantaneous offence, as
per the provisions of Section 469 of the Cr.P.C., the period of
limitation commences on the date of offence. In the instant case,
admittedly, the claim of the said firm was rejected by way of a
speaking order dated 15.10.2001, in pursuance of the order of the
High Court dated 25.5.2001, and the said order was communicated
vide letter dated 29.10.2001. Respondent No. 2 correctly understood
the nature of the offence and, therefore, subsequently approached the
High Court for the purpose of seeking recovery of outstanding dues,
wherein the High Court directed him to pursue the remedy available
under the arbitration agreement between the parties. In such a fact
situation, it is beyond our imagination as to how the offence involved
herein can possibly be termed as a continuing offence. In fact, the
damage caused by virtue of non-payment of their dues, if any, is
legally sustainable, may continue, but the offence is most certainly not
a continuing offence, as the same has not recurred subsequent to order
dated 15.10.2001, even though the effect caused by it may be
continuous in nature.
In Arun Vyas & Ors. v. Anita Vyas, AIR 1999 SC 2071, this
Court held that in a case of cruelty, the starting point of limitation
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Page 24
would be the last act of cruelty. (See also: Ramesh & Ors. v. State
of Tamil Nadu, AIR 2005 SC 1989).
28. Approaching the court at a belated stage for a rightful cause, or
even for the violation of the fundamental rights, has always been
considered as a good ground for its rejection at the threshold. The
ground taken by the learned counsel for respondent No. 2 that the
cause of action arose on 20.10.2009 and 5.11.2009, as the appellants
refused to return money and other materials, articles and record, does
not have substance worth consideration. In case a representation is
made by the person aggrieved and the same is rejected by the
competent statutory authority, and such an order is communicated to
the person aggrieved, making repeated representations will not enable
the party to explain the delay.
29. In Rabindra Nath Bose & Ors. v. Union of India & Ors.,
AIR 1970 SC 470, in spite of the fact that the Government rejected a
representation and communicated such rejection to the applicant
therein, his subsequent representations were entertained by the
Government. A Constitution Bench of this Court held as under:
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Page 25
“He says that the representations were being
received by the government all the time. But
there is a limit to the time which can be
considered reasonable for making
representations. If the Government has
turned down one representation, the making
of another representation on similar lines
would not enable the petitioners to explain
the delay.” (Emphasis added)
30. In State of Orissa v. Sri Pyarimohan Samantaray & Ors.,
AIR 1976 SC 2617; State of Orissa etc. v. Shri Arun Kumar
Patnaik & Anr. etc., etc., AIR 1976 SC 1639; and Swatantar Singh
v. State of Haryana & Ors., AIR 1997 SC 2105, a similar view has
been reiterated.
31. The view taken by this Court in Rabindra Math Bose (Supra)
has been approved and followed in Sri Krishna Coconut Co. etc. v.
East Godavari Coconut and Tobacco Market Committee, AIR
1967 SC 973, Karnataka Power Corporation Ltd. & Anr. v. K.
Thangappan & Anr., AIR 2006 SC 1581; and Eastern Coalfields
Ltd. v. Dugal Kumar, AIR 2008 SC 3000.
32. In Kishan Singh (dead) thr. Lrs. v. Gurpal Singh & Ors. AIR
2010 SC 3624, this court while dealing with a case of inordinate delay
in launching a criminal prosecution, has held as under:
25
Page 26
“In cases where there is a delay in lodging a
FIR, the Court has to look for a plausible
explanation for such delay. In absence of
such an explanation, the delay may be fatal.
The reason for quashing such proceedings
may not be merely that the allegations were
an afterthought or had given a coloured
version of events. In such cases the court
should carefully examine the facts before it
for the reason that a frustrated litigant who
failed to succeed before the Civil Court may
initiate criminal proceedings just to harass
the other side with mala fide intentions or the
ulterior motive of wreaking vengeance on the
other party. Chagrined and frustrated
litigants should not be permitted to give vent
to their frustrations by cheaply invoking the
jurisdiction of the criminal court. The court
proceedings ought not to be permitted to
degenerate into a weapon of harassment and
persecution. In such a case, where an FIR is
lodged clearly with a view to spite the other
party because of a private and personal
grudge and to enmesh the other party in long
and arduous criminal proceedings, the court
may take a view that it amounts to an abuse
of the process of law in the facts and
circumstances of the case. (Vide :
Chandrapal Singh & Ors. v. Maharaj Singh
& Anr., AIR 1982 SC 1238; State of Haryana
& Ors. v. Ch. Bhajan Lal & Ors., AIR 1992
SC 604; G. Sagar Suri & Anr. v. State of
U.P.& Ors., AIR 2000 SC 754; and Gorige
Pentaiah v. State of A.P. & Ors., (2008) 12
SCC 531).”
33. The instant appeals are squarely covered by the observations
made in Kishan Singh (Supra) and thus, the proceedings must be
26
Page 27
labeled as nothing more than an abuse of the process of the court,
particularly in view of the fact that, with respect to enact the same
subject matter, various complaint cases had already been filed by
respondent No.2 and his brother, which were all dismissed on merits,
after the examination of witnesses. In such a fact-situation, Complaint
Case No. 628 of 2011, filed on 31.5.2001 was not maintainable.
Thus, the Magistrate concerned committed a grave error by
entertaining the said case, and wrongly took cognizance and issued
summons to the appellants.
34. In view of above, the appeals are allowed. The impugned
judgment dated 13.3.2012 is set aside and the proceedings in
Complaint Case No. 628 of 2011 pending before the Additional
C.J.M., Allahabad, are hereby quashed.
…….…………….....................J.
(Dr. B.S. CHAUHAN)
............………............................J.
(JAGDISH SINGH KHEHAR)
New Delhi,
January 9, 2013
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Print Page
Pradesh Electricity Board & Ors., Etc. Etc., AIR 2001 SC 238, this
Court held as under:
“It cannot legitimately be contended that the
word "continuously" has one definite meaning
only to convey uninterrupted ness in time
sequence or essence and on the other hand
the very word would also mean 'recurring at
repeated intervals so as to be of repeated
occurrence'. That apart, used as an adjective
it draws colour from the context too.”
In Sankar Dastidar v. Smt. Banjula Dastidar & Anr., AIR
2007 SC 514, this Court observed as under:
“A suit for damages, in our opinion, stands
on a different footing vis--vis a continuous
wrong in respect of enjoyment of one's right
in a property. When a right of way is claimed
whether public or private over a certain land
over which the tort-teaser has no right of
possession, the breaches would be continuing
one. It is, however, indisputable that unless
the wrong is a continuing one, period of
limitation does not stop running. Once the
period begins to run, it does not stop except
where the provisions of Section 22 of the
Limitation Act would apply.”
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 61 of 2013
Udai Shankar Awasthi …Appellant
Versus
State of U.P. & Anr. …Respondents
Dr. B.S. CHAUHAN, J.
Citation;2014 ALLSCR 1831
1. Both these appeals have been preferred against the impugned
judgment and order dated 13.3.2012, passed by the High Court of
Judicature at Allahabad in Criminal Misc. Application No. 41827 of
2011, by which the High Court has rejected the petition filed under
Section 482 of Code of Criminal Procedure,1973 (hereinafter referred
to as the ‘Cr.P.C.’) for quashing the proceedings in Complaint Case
No.628 of 2011 (Sudha Kant Pandey v. K.L. Singh & Anr.) under
Page 2
Sections 403 and 406 of Indian Penal Code, 1860 (hereinafter referred
to as the ‘IPC’).
2. Facts and circumstances giving rise to these appeals are:
A. M/s. Manish Engineering Enterprises of which respondent
No.2, Sudha Kant Pandey, claims to be the proprietor, was given a
work order by M/s. Indian Farmers Fertilizer Cooperative Ltd.
(hereinafter referred to as “IFFCO”), Phulpur unit, on 1.2.1996 for
the purpose of conducting repairs in their plant worth an estimated
value of Rs.13,88,750/-. The said work order was subsequently
cancelled by IFFCO on 7.2.1996.
B. Aggrieved, M/s. Manish Engineering Enterprises made a
representation dated 21.3.2001, to IFFCO requesting it to make
payments for the work allegedly done by it. As there was no response
from the management of IFFCO, the said concern filed Writ Petition
No. 19922 of 2001 before the High Court of Allahabad, seeking a
direction by it to IFFCO for the payment of an amount of
Rs.22,81,530.22 for alleged work done by it.
C. The High Court disposed of the said Writ Petition vide order
dated 25.5.2001, directing IFFCO to dispose of the representation
dated 21.3.2001, submitted by the said concern within a period of 6
weeks. In pursuance of the order of the High Court dated 25.5.2001,
the said representation dated 21.3.2001, was considered by the
Managing Director of IFFCO and was rejected by way of a speaking
order dated 15.10.2001, and the same was communicated to the said
concern vide letter dated 29.10.2001.
D. M/s. Manish Engineering Enterprises filed Writ Petition No.
7231 of 2002 before the High Court of Allahabad for the recovery of
the said amount, which stood disposed of vide order dated 20.2.2002,
with a direction to pursue the remedy available under the arbitration
clause contained in the agreement executed in pursuance of the
aforementioned work order.
E. M/s. Manish Engineering Enterprises filed Arbitration
Application No. 24 of 2002 before the High Court of Allahabad under
Section 11 of the Arbitration and Conciliation Act, 1996 (hereinafter
referred to as ‘the Act 1996’) on 24.5.2002, praying for the
appointment of an arbitrator, in view of the fact that the application
made by the said concern for the purpose of appointing an arbitrator,
had been rejected by IFFCO as being time barred. The High Court
therefore, vide judgment and order dated 17.10.2003, appointed an
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Page 4
arbitrator. However, the said arbitrator expressed his inability to work.
Thus, vide order dated 13.2.2004, another arbitrator was appointed.
F. M/s. Manish Engineering Enterprises filed a Claim Petition on
various counts, including one for an amount of Rs.9,27,182/- towards
the alleged removal of items from their godown within the IFFCO
premises.
The learned arbitrator so appointed, framed a large number of
issues and rejected in particular, the claim of alleged removal of items
from the godown of M/s. Manish Enterprises, located within the
IFFCO premises (being issue No.13), though he accepted some other
claims vide award dated 11.3.2007.
IFFCO filed an application under Section 34 of the Act, 1996
for the purpose of setting aside the award dated 11.3.2007, before the
District Court, Allahabad and the matter is sub-judice.
G. Mr. Sabha Kant Pandey, the brother of respondent
no.2/complainant, filed Complaint Case No. 4948 of 2009 against the
officers of IFFCO on 23.11.2009 under Sections 323, 504, 506, 406
and 120-B IPC before the court of Special Chief Judicial Magistrate,
Allahabad. Therein, some witnesses including the said complainant
were examined.
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Page 5
H. Sabha Kant Pandey, the brother of respondent no.2 filed
another Complaint Case No. 26528 of 2009, against the appellants
and others under Sections 147, 148, 323, 504, 506, 201 and 379 IPC.
In the said complainant, the brother of respondent no.2 was examined
alongwith others as a witness.
I. Complaint case no. 4948 of 2009 was rejected by way of a
speaking order passed by the Special Chief Judicial Magistrate, vide
order dated 20.3.2010 under Section 203 Cr.P.C.
J. Respondent no.2 filed Criminal Complaint No. 1090 of 2010
against the appellants and others on 2.4.2010, under Sections 323,
504, 506, 406 and 120-B IPC before the Special Chief Judicial
Magistrate, Allahabad. After investigating the matter, the police
submitted a report on 18.4.2010 stating that, allegations made in
complaint case no. 1090 of 2010 were false.
K. The Additional Chief Judicial Magistrate, vide order dated
18.8.2011 dismissed complaint case no. 26528 of 2009 filed by the
brother of respondent no.2.
L. Respondent no.2 filed another complaint case no. 628 of 2011
on 31.5.2011 under Sections 403 and 406 IPC, in which, after taking
cognizance, summons were issued to the present appellants under
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Page 6
Sections 403 and 406 IPC on 16.7.2011, and vide order dated
22.9.2011, bailable warrants were issued against the appellants by the
Addl. CJM, Allahabad. Subsequently, vide order dated 21.11.2011,
non-bailable warrants were also issued against one of the appellants
by the Addl. CJM, Allahabad.
In view of the fact that K.L. Singh, appellant in the connected
appeal, could not be served properly as the correct address was not
given, on being requested, the Addl. CJM withdrew the non-bailable
warrants on 17.12.2011.
M. Aggrieved, the appellants filed Criminal Misc. Application No.
41827 of 2011 under Section 482 Cr.P.C. before the High Court for
quashing the said criminal proceedings, which has been dismissed
vide impugned judgment and order.
Hence, these appeals.
3. Shri Mukul Rohtagi and Shri Nagendra Rai, learned senior
counsel appearing for the appellants, have submitted that as the
complaint cases filed by the brother of the respondent no.2 in regard
to the same subject matter were dismissed by the magistrate
concerned, the question of entertaining a fresh complaint could not
arise. A fresh complaint cannot be entertained during the pendency of
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Page 7
the complaint case filed by respondent No. 2, with respect to which,
the police filed a final report, stating the same to be a false complaint.
It was further submitted, that there was suppression of material facts,
as in Complaint Case No. 628 of 2011, dismissal of the earlier
complaint was not disclosed. Furthermore, as the matter is purely
civil in nature, and in view of the fact that arbitration proceedings
with respect to the very same subject matter are presently sub-judice,
and the claim of respondent no.2 on this count has already been
rejected by the arbitrator, entertaining/continuing criminal
proceedings in the said matter is clearly an abuse of the process of the
court. Moreover, the alleged claim is related to the period of 1996. A
complaint made after a lapse of 15 years is barred by the provisions of
Section 468 Cr.P.C., and the High Court has erred in holding the same
to be a continuing offence. As, in pursuance of the High Court’s
order dated 25.5.2001, the representation of respondent no.2 dated
21.3.2001 was decided by the Managing Director, IFFCO vide order
dated 15.10.2001, the limitation period began from the date of the said
order, or at the most from 29.10.2001, that is, the date on which, the
order of rejection was communicated.
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Page 8
The initiation of criminal proceedings is nothing but an attempt
by the frustrated litigant to give vent to his frustration, by invoking
the jurisdiction of the criminal court and thus, the proceedings are
liable to be quashed.
4. Per contra, Shri Devrrat, learned counsel appearing for
respondent no.2, has submitted that the High Court has rightly held
that the same was in fact, a case of continuing offence. Therefore, the
question of limitation does not arise. The law does not prohibit the
initiation of criminal proceedings where there has been breach of trust
and further, in such a case, in spite of the fact that arbitration
proceedings are pending, a criminal complaint is maintainable, and
the court concerned has rightly entertained the same. There is no
prohibition in law as regards maintaining a second application, even
though the earlier application has been dismissed. Thus, the appeals
are liable to be dismissed.
5. We have considered the rival submissions made by learned
counsel for the parties as well as by Shri Gaurav Bhatia and Shri
Annurat, learned counsel appearing for the State of U.P. and perused
the record.
8
Page 9
In light of the facts of these cases, it is desirable to deal first,
with the legal issues involved herein.
LIMITATION IN CRIMINAL CASES- Section 468 Cr.P.C.:
6. Section 468 Cr.P.C. places an embargo upon court from taking
cognizance of an offence after the expiry of the limitation period
provided therein. Section 469 prescribes when the period of limitation
begins. Section 473 enables the court to condone delay, provided that
the court is satisfied with the explanation furnished by the
prosecution/complainant, and where, in the interests of justice,
extension of the period of limitation is called for. The principle of
condonation of delay is based on the general rule of the criminal
justice system which states that a crime never dies, as has been
explained by way of the legal maxim, nullum tempus aut locus
occurrit regi (lapse of time is no bar to the Crown for the purpose of it
initiating proceeding against offenders). A criminal offence is
considered as a wrong against the State and also the society as a
whole, even though the same has been committed against an
individual.
9
Page 10
7. The question of delay in launching a criminal prosecution may
be a circumstance to be taken into consideration while arriving at a
final decision, however, the same may not itself be a ground for
dismissing the complaint at the threshold. Moreover, the issue of
limitation must be examined in light of the gravity of the charge in
question. (Vide: Japani Sahoo v. Chandra Sekhar Mohanty, AIR
2007 SC 2762; Sajjan Kumar v. Central Bureau of Investigation,
(2010) 9 SCC 368; and Noida Entrepreneurs Association v. Noida
& Ors., AIR 2011 SC 2112).
8. The court, while condoning delay has to record the reasons for
its satisfaction, and the same must be manifest in the order of the court
itself. The court is further required to state in its conclusion, while
condoning such delay, that such condonation is required in the interest
of justice. (Vide: State of Maharashtra v. Sharad Chandra
Vinayak Dongre & Ors., AIR 1995 SC 231; and State of H.P. v.
Tara Dutt & Anr., AIR 2000 SC 297).
9. To sum up, the law of limitation prescribed under the Cr.P.C.,
must be observed, but in certain exceptional circumstances, taking
into consideration the gravity of the charge, the Court may condone
10
Page 11
delay, recording reasons for the same, in the event that it is found
necessary to condone such delay in the interest of justice.
CONTINUING OFFENCE:
10. Section 472 Cr.P.C. provides that in case of a continuing
offence, a fresh period of limitation begins to run at every moment of
the time period during which the offence continues. The expression,
‘continuing offence’ has not been defined in the Cr.P.C. because it is
one of those expressions which does not have a fixed connotation, and
therefore, the formula of universal application cannot be formulated in
this respect.
11. In Balakrishna Savalram Pujari Waghmare & Ors. v. Shree
Dnyaneshwar Maharaj Sansthan & Ors., AIR 1959 SC 798, this
Court dealt with the aforementioned issue, and observed that a
continuing offence is an act which creates a continuing source of
injury, and renders the doer of the act responsible and liable for the
continuation of the said injury. In case a wrongful act causes an
injury which is complete, there is no continuing wrong even
though the damage resulting from the said act may continue. If the
wrongful act is of such character that the injury caused by it itself
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continues, then the said act constitutes a continuing wrong. The
distinction between the two wrongs therefore depends, upon the effect
of the injury.
In the said case, the court dealt with a case of a wrongful act of
forcible ouster, and held that the resulting injury caused, was complete
at the date of the ouster itself, and therefore there was no scope for
the application of Section 23 of the Limitation Act in relation to the
said case.
12. In Gokak Patel Volkart Ltd. v. Dundayya Gurushiddaiah
Hiremath & Ors., (1991) 2 SCC 141, this Court dealt with the issue
and held as under:
“According to the Blacks' Law Dictionary,
Fifth Edition, 'Continuing' means ‘enduring;
not terminated by a single act or fact;
subsisting for a definite period or intended to
cover or apply to successive similar
obligations or occurrences.’ Continuing
offence means ‘type of crime which is
committed over a span of time.’ As to period
of statute of limitation in a continuing
offence, the last act of the offence controls for
commencement of the period. ‘A continuing
offence, such that only the last act thereof
within the period of the statute of limitations
need be alleged in the indictment or
information, is one which may consist of
separate acts or a course of conduct but
which arises from that singleness of thought,
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Page 13
purpose or action which may be deemed a
single impulse.’ So also a 'Continuous Crime'
means "one consisting of a continuous series
of acts, which endures after the period of
consummation, as, the offence of carrying
concealed weapons. In the case of
instantaneous crimes, the statute of limitation
begins to run with the consummation, while in
the case of continuous crimes it only begins
with the cessation of the criminal conduct or
act."
13. While deciding the case in Gokak Patel Volkart Ltd. (Supra),
this Court placed reliance upon its earlier judgment in State of Bihar
v. Deokaran Nenshi & Anr., AIR 1973 SC 908, wherein the court
while dealing with the case of continuance of an offence has held as
under:
“A continuing offence is one which is
susceptible of continuance and is
distinguishable from the one which is
committed once and for all. It is one of those
offences which arises out of a failure to obey
or comply with a rule or its requirement and
which involves a penalty, the liability for
which continues until the rule or its
requirement is obeyed or complied with. On
every occasion that such disobedience or
non-compliance occurs and recurs, there is
the offence committed. The distinction
between the two kinds of offences is between
an act or omission which constitutes an
offence once and for all and an act or
omission which continues and therefore,
constitutes a fresh offence every time or
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Page 14
occasion on which it continues. In the case of
a continuing offence, there is thus the
ingredient of continuance of the offence
which is absent in the case of an offence
which takes place when an act or omission is
committed once and for all.”
(See also: Bhagirath Kanoria & Ors. v. State of M.P., AIR 1984 SC
1688; and Amrit Lal Chum v. Devoprasad Dutta Roy, AIR 1988
SC 733).
14. In M/s. Raymond Limited & Anr., Etc. Etc. v. Madhya
Pradesh Electricity Board & Ors., Etc. Etc., AIR 2001 SC 238, this
Court held as under:
“It cannot legitimately be contended that the
word "continuously" has one definite meaning
only to convey uninterrupted ness in time
sequence or essence and on the other hand
the very word would also mean 'recurring at
repeated intervals so as to be of repeated
occurrence'. That apart, used as an adjective
it draws colour from the context too.”
15. In Sankar Dastidar v. Smt. Banjula Dastidar & Anr., AIR
2007 SC 514, this Court observed as under:
“A suit for damages, in our opinion, stands
on a different footing vis--vis a continuous
wrong in respect of enjoyment of one's right
in a property. When a right of way is claimed
whether public or private over a certain land
over which the tort-teaser has no right of
14
Page 15
possession, the breaches would be continuing
one. It is, however, indisputable that unless
the wrong is a continuing one, period of
limitation does not stop running. Once the
period begins to run, it does not stop except
where the provisions of Section 22 of the
Limitation Act would apply.”
The Court further held:
“Articles 68, 69 and 91 of the Limitation Act
govern suits in respect of movable property.
For specific movable property lost or
acquired by theft, or dishonest
misappropriation or conversion; knowledge
as regards possession of the party shall be the
starting point of limitation in terms of Article
68. For any other specific movable property,
the time from which the period begins to run
would be when the property is wrongfully
taken, in terms of Article 69. Article 91
provides for a period of limitation in respect
of a suit for compensation for wrongfully
taking or injuring or wrongfully detaining
any other specific movable property. The time
from which the period begins to run would be
when the property is wrongfully taken or
injured or when the detainer's possession
becomes unlawful.”
16. Thus, in view of the above, the law on the issue can be
summarised to the effect that, in the case of a continuing offence, the
ingredients of the offence continue, i.e., endure even after the period
of consummation, whereas in an instantaneous offence, the offence
takes place once and for all i.e. when the same actually takes place. In
such cases, there is no continuing offence, even though the damage
resulting from the injury may itself continue.
SECOND COMPLAINT ON SAME FACTS-MAINTAINABILITY:
17. While considering the issue at hand in Shiv Shankar Singh v.
State of Bihar & Anr., (2012) 1 SCC 130, this Court, after considering
its earlier judgments in Pramatha Nath Talukdar v. Saroj Ranjan
Sarkar AIR 1962 SC 876; Jatinder Singh & Ors. v. Ranjit Kaur
AIR 2001 SC 784; Mahesh Chand v. B. Janardhan Reddy & Anr.,
AIR 2003 SC 702; Poonam Chand Jain & Anr. v. Fazru AIR 2005
SC 38 held:
“It is evident that the law does not prohibit
filing or entertaining of the second
complaint even on the same facts provided
the earlier complaint has been decided on
the basis of insufficient material or the
order has been passed without
understanding the nature of the complaint
or the complete facts could not be placed
before the court or where the complainant
came to know certain facts after disposal of
the first complaint which could have tilted
the balance in his favour. However, second
complaint would not be maintainable
wherein the earlier complaint has been
disposed of on full consideration of the case
of the complainant on merit.”
16
Page 17
18. The present appeals require to be decided on the basis of the
settled legal propositions referred to hereinabove.
Complaint Case No.4948 of 2009 was filed by Sabha Kant
Pandey, brother of respondent no.2, wherein, he claimed to be a
partner in the firm M/s Manish Engineering Enterprises, against one
of the appellants and other officers of IFFCO, under Sections 323,
504, 506, 406 and 120B IPC at Police Statition Phulpur, District
Allahabad, alleging that the said Firm had been given a separate
godown/office within the IFFCO compound, wherein their articles
worth Rs.30-40 lacs, as well as their documents were kept. The
complainant was not permitted to remove them and additionally,
even the payment for the work done by the firm was not made, on
certain technical grounds. The officers of IFFCO, including Mr. U.S.
Awasthi - the appellant, misbehaved with the complainant and kept
the said articles worth Rs.30-40 lacs, as also the important documents,
in addition to the entry gate pass required to enter the plant by the
complainant and his brother Sudhakant (respondent no.2 herein),
therefore making it impossible for them to access their godown.
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Page 18
19. The complaint was dealt with appropriately by the competent
court, wherein the present complainant was also examined as a
prosecution witness. The Court took note of the fact of pendency of
the Arbitration Proceedings with respect to the payment of dues, and
came to the conclusion that the complaint had been filed to put
pressure on IFFCO to obtain payments. The said complaint was
dismissed on merits.
20. Complaint Case No.26528 of 2009 was then filed by Sabhakant
Pandey, brother of respondent no.2, against one of the appellants and
also other officers of IFFCO under Sections 147, 148, 323, 504, 506,
201 and 379 IPC in Police Statition Phulpur, Allahabad, making
similar allegations, and giving full particulars of the outstanding dues.
That complaint was heard and disposed of by the competent court,
taking note of the fact that there had been a cross-complaint by the
officers of IFFCO, wherein allegations were made to the effect that on
19.12.2008, Arbitration Proceedings in Case No.1 of 2007 took place
at the residence of the Arbitrator, a retired Judge of the Allahabad
High Court, wherein Sabha Kant Pandey and Sudha Kant Pandey
misbehaved with the Arbitrator, and he was hence forced to adjourn
the hearing of the case. Subsequently, they stood in front of his
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Page 19
house and shouted slogans, abusing the officers of IFFCO and even
tried to beat them up. The court dismissed the said complaint after
recording the following findings:
“In the opinion of the court, the complaint
filed by Sabhakant Pandey is imaginary, a
bald story with an intention to put illegal
pressure and by suppressing material facts in
the complaint.”
21. Complaint Case No.1090 of 2010 was filed by the present
complainant, respondent no.2 against the appellant Udai Shankar
Awasthi and other officers of IFFCO under Sections 323, 504, 506,
406 and 120B IPC, making similar allegations as were mentioned in
the first complaint, to the effect that articles worth Rs.15-20 lacs in
each godown were lying in the premises of IFFCO, and that the
complainant was not permitted to remove the same. In the said case,
after investigation, the police filed the final report stating that all the
allegations made in the complaint were false. The concluding part of
the report reads as under:
“For last 6 months no body has turned
up to get his statement recorded in spite of
notice. The application had been filed on
false facts and complaint was bogus,
forceless and baseless and was liable to be
dismissed.”
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Page 20
22. So far as the present complaint is concerned, the same has been
filed under Sections 415, 406 and 403 IPC, wherein the allegation that
their Bill had been cleared on 10.7.1996, but the requisite payment, to
the tune of Rs.22,81,530/- was not made to the complainant. Their
claim for payment was wrongly rejected. Certain articles and
documents belonging to the complainant were lying within the
premises of IFFCO and the same were not returned to the complainant
despite requests for the same. In this case, after taking cognizance,
summons were issued on 16.7.2011, under Sections 403 and 406 IPC,
though the case under Section 415 IPC stood rejected.
23. It is evident that in the said complaint, no reference was made
by the complainant as regards the Arbitration Proceedings. There was
also no disclosure of facts to show that earlier complaints in respect of
the same subject matter, had been dismissed on merits by the same
court.
24. A copy of the Award made by the Arbitrator was placed on
record, wherein issue no.13 which dealt with the present controversy,
i.e. some material and documents were placed in the premises of
IFFCO and the return of the same was refused. The claim as regards
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the same, has been rejected. There has been no mention of such
claim and its rejection by the said concern, in either of the writ
petitions filed before the High Court earlier or even for that matter, in
the application filed by the said concern before IFFCO, for the
purpose of making appointment of an arbitrator, or in the application
filed under Section 11 of the Act, 1996 before the High Court.
25. In the counter affidavit filed by respondent no.2, it has been
submitted that the contract was terminated by IFFCO fraudulently, to
usurp the entire amount towards the work done by it and that IFFCO
took illegal possession of all the goods and articles belonging to the
firm lying within its premises, and as the amount had not been paid,
the officers were guilty of criminal breach of trust and were therefore,
liable to be punished. However, the fact that earlier complaints had
been filed by the brother of respondent no.2 Sabha Kant Pandey has
been admitted. It has further been admitted that Arbitration
Proceedings are still pending, but it has also simultaneously been
urged that criminal prosecution has nothing to do with the Arbitral
award.
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26. The Magistrate had issued summons without meeting the
mandatory requirement of Section 202 Cr.P.C., though the appellants
were outside his territorial jurisdiction. The provisions of
Section 202 Cr.P.C. were amended vide Amendment Act 2005,
making it mandatory to postpone the issue of process where the
accused resides in an area beyond the territorial jurisdiction of the
Magistrate concerned. The same was found necessary in order to
protect innocent persons from being harassed by unscrupulous persons
and making it obligatory upon the Magistrate to enquire into the case
himself, or to direct investigation to be made by a police officer, or by
such other person as he thinks fit for the purpose of finding out
whether or not, there was sufficient ground for proceeding against the
accused before issuing summons in such cases.. (See also: Shivjee
Singh v. Nagendra Tiwary & Ors., AIR 2010 SC 2261; and
National Bank of Oman v. Barakara Abdul Aziz & Anr., JT 2012
(12) SC 432).
27. Section 403 IPC provides for a maximum punishment of 2
years, or fine or both; and Section 406 IPC provides for a maximum
punishment of 3 years, or fine or both. The limitation period within
which cognizance must be taken, as per the provisions of Section 468
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of Cr.P.C. is three years. In the case of an instantaneous offence, as
per the provisions of Section 469 of the Cr.P.C., the period of
limitation commences on the date of offence. In the instant case,
admittedly, the claim of the said firm was rejected by way of a
speaking order dated 15.10.2001, in pursuance of the order of the
High Court dated 25.5.2001, and the said order was communicated
vide letter dated 29.10.2001. Respondent No. 2 correctly understood
the nature of the offence and, therefore, subsequently approached the
High Court for the purpose of seeking recovery of outstanding dues,
wherein the High Court directed him to pursue the remedy available
under the arbitration agreement between the parties. In such a fact
situation, it is beyond our imagination as to how the offence involved
herein can possibly be termed as a continuing offence. In fact, the
damage caused by virtue of non-payment of their dues, if any, is
legally sustainable, may continue, but the offence is most certainly not
a continuing offence, as the same has not recurred subsequent to order
dated 15.10.2001, even though the effect caused by it may be
continuous in nature.
In Arun Vyas & Ors. v. Anita Vyas, AIR 1999 SC 2071, this
Court held that in a case of cruelty, the starting point of limitation
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would be the last act of cruelty. (See also: Ramesh & Ors. v. State
of Tamil Nadu, AIR 2005 SC 1989).
28. Approaching the court at a belated stage for a rightful cause, or
even for the violation of the fundamental rights, has always been
considered as a good ground for its rejection at the threshold. The
ground taken by the learned counsel for respondent No. 2 that the
cause of action arose on 20.10.2009 and 5.11.2009, as the appellants
refused to return money and other materials, articles and record, does
not have substance worth consideration. In case a representation is
made by the person aggrieved and the same is rejected by the
competent statutory authority, and such an order is communicated to
the person aggrieved, making repeated representations will not enable
the party to explain the delay.
29. In Rabindra Nath Bose & Ors. v. Union of India & Ors.,
AIR 1970 SC 470, in spite of the fact that the Government rejected a
representation and communicated such rejection to the applicant
therein, his subsequent representations were entertained by the
Government. A Constitution Bench of this Court held as under:
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Page 25
“He says that the representations were being
received by the government all the time. But
there is a limit to the time which can be
considered reasonable for making
representations. If the Government has
turned down one representation, the making
of another representation on similar lines
would not enable the petitioners to explain
the delay.” (Emphasis added)
30. In State of Orissa v. Sri Pyarimohan Samantaray & Ors.,
AIR 1976 SC 2617; State of Orissa etc. v. Shri Arun Kumar
Patnaik & Anr. etc., etc., AIR 1976 SC 1639; and Swatantar Singh
v. State of Haryana & Ors., AIR 1997 SC 2105, a similar view has
been reiterated.
31. The view taken by this Court in Rabindra Math Bose (Supra)
has been approved and followed in Sri Krishna Coconut Co. etc. v.
East Godavari Coconut and Tobacco Market Committee, AIR
1967 SC 973, Karnataka Power Corporation Ltd. & Anr. v. K.
Thangappan & Anr., AIR 2006 SC 1581; and Eastern Coalfields
Ltd. v. Dugal Kumar, AIR 2008 SC 3000.
32. In Kishan Singh (dead) thr. Lrs. v. Gurpal Singh & Ors. AIR
2010 SC 3624, this court while dealing with a case of inordinate delay
in launching a criminal prosecution, has held as under:
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Page 26
“In cases where there is a delay in lodging a
FIR, the Court has to look for a plausible
explanation for such delay. In absence of
such an explanation, the delay may be fatal.
The reason for quashing such proceedings
may not be merely that the allegations were
an afterthought or had given a coloured
version of events. In such cases the court
should carefully examine the facts before it
for the reason that a frustrated litigant who
failed to succeed before the Civil Court may
initiate criminal proceedings just to harass
the other side with mala fide intentions or the
ulterior motive of wreaking vengeance on the
other party. Chagrined and frustrated
litigants should not be permitted to give vent
to their frustrations by cheaply invoking the
jurisdiction of the criminal court. The court
proceedings ought not to be permitted to
degenerate into a weapon of harassment and
persecution. In such a case, where an FIR is
lodged clearly with a view to spite the other
party because of a private and personal
grudge and to enmesh the other party in long
and arduous criminal proceedings, the court
may take a view that it amounts to an abuse
of the process of law in the facts and
circumstances of the case. (Vide :
Chandrapal Singh & Ors. v. Maharaj Singh
& Anr., AIR 1982 SC 1238; State of Haryana
& Ors. v. Ch. Bhajan Lal & Ors., AIR 1992
SC 604; G. Sagar Suri & Anr. v. State of
U.P.& Ors., AIR 2000 SC 754; and Gorige
Pentaiah v. State of A.P. & Ors., (2008) 12
SCC 531).”
33. The instant appeals are squarely covered by the observations
made in Kishan Singh (Supra) and thus, the proceedings must be
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labeled as nothing more than an abuse of the process of the court,
particularly in view of the fact that, with respect to enact the same
subject matter, various complaint cases had already been filed by
respondent No.2 and his brother, which were all dismissed on merits,
after the examination of witnesses. In such a fact-situation, Complaint
Case No. 628 of 2011, filed on 31.5.2001 was not maintainable.
Thus, the Magistrate concerned committed a grave error by
entertaining the said case, and wrongly took cognizance and issued
summons to the appellants.
34. In view of above, the appeals are allowed. The impugned
judgment dated 13.3.2012 is set aside and the proceedings in
Complaint Case No. 628 of 2011 pending before the Additional
C.J.M., Allahabad, are hereby quashed.
…….…………….....................J.
(Dr. B.S. CHAUHAN)
............………............................J.
(JAGDISH SINGH KHEHAR)
New Delhi,
January 9, 2013
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