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1987 DIGILAW 260 (ORI)

SANATAN DASH v. DAMBARUDHAR PANDA

1987-08-25

K.P.MOHAPATRA

body1987
K. P. MOHAPATRA. J. ( 1 ) THE petitioner has challenged the order passed by the learned Additional Sessions Judge setting aside the order passed by the learned Chief Judicial Magistrate, framing charge against the opposite party under sections 406 and 465 of the Indian Penal Code (I. P. C. for short ). ( 2 ) THE facts in brief may be stated. The petitioner is the Secretary of the Regulated Market Committee of Kendupatne in Cuttack district. The opposite party was serving as a Market Sarkar under the petitioner and was entrusted with collection of market fees of Danpur market and some other centres. On 27. 12. 1975 the petitioner received an audit report to the effect that in the years 1974-75 the opposite party had collected a sum of Rs. 7. 429. 17 from traders, but misappropriated the said amount. After getting the report, the petitioner made an enquiry for verification of the original receipts of the traders and was satisfied that the opposite party had committed criminal breach of trust in respect of a sum of Rs. 5,560. 95. The original receipts in respect of the balance amount of Rs. 1,868,22 were not available. The petitioner repeatedly asked the opposite party to refund the misappropriated amount. The opposite party evaded and he gave an evasive reply. Thereafter the petition of complaint was filed on 9. 12. 1979. ( 3 ) ON 4. 1. 1980 the learned Sub-Divisional Judicial Magistrate directed the police to treat the complaint as F. I. R. , take up investigation and submit final report. But it seems, the police did not take any action and so on 29. 9. 1980 the learned Sub-Divisional Judicial Magistrate directed for recording of the Initial statement of the complainant and on 9. 12-1980 the record of the case was made over to another Judicial Magistrate to hold enquiry under section 202 of the Code of Criminal Procedure (Code for short ). On receipt of the report of enquiry under section 202 and without having recorded the initial statement of the petitioner, cognizance of the offences under sections 406 and 465 I. P. C. was taken on 9. 1. 1981. After examination of two prosecution witnesses an order was passed on 16-2-1982 for framing charge against the opposite party under sections 406 and 465 [p. C. and on that day the charge was framed. 1. 1981. After examination of two prosecution witnesses an order was passed on 16-2-1982 for framing charge against the opposite party under sections 406 and 465 [p. C. and on that day the charge was framed. ( 4 ) BEING aggrieved by the order of framing charge, the opposite party filed a revision petition before the learned Additional Sessions Judge and raised an objection on the ground of bar of limitation contained in section 460 of the Code. The learned Additional Sessions Judge by the impugned order held that the petitioner acquired knowledge of the misappropriation on 27. 12. 1975 and as the complaint petition was not filled within three years and was actually filed on 9. 12. 1979, the complaint petition was barred by limitation. ( 5 ) MR. Sanatan Jena, learned counsel appearing for the petitioner urged that after the petitioner received the audit report on 27. 12. 1975, he wanted to verify the actual fact of misappropriation and so conducted an enquiry. After completion of the enquiry it was detected that the opposite party had committed criminal breach of trust for the sum of Rs. 5,560,95 and thereafter the complaint petition was filed in the court. All these facts have been stated in the complaint petition and provide sufficient cause for condonation of limitation. Mr. Arijit Pasayat, learned counsel appearing for the opposite party, in the other hand contended that according to provision of section 469 (b) of the Code, limitation commenced on the first day when the petitioner acquired knowledge of the offence alleged to have been committed by the opposite party. Therefore, the complaint petition was patently barred by limitation and sufficient cause having not been proved to the satisfaction of the court as contemplated in section 473 of the Code, the impugned order is unassailable. ( 6 ) IT is not disputed by the parties that the period of limitation of this Case is three years as laid down under section 468 (21 (c) of the Code. The period of limitation commenced on 27. 12. 1975 when the petitioner received the audit report and acquired knowledge to the effect that the opposite party had committed misappropriation of funds as provided under section 469 (b) of the Code. The complaint petition having been filed on 9. 12. The period of limitation commenced on 27. 12. 1975 when the petitioner received the audit report and acquired knowledge to the effect that the opposite party had committed misappropriation of funds as provided under section 469 (b) of the Code. The complaint petition having been filed on 9. 12. 1979, patently it was barred by limitation and no cognizance of the offence could be taken according to law. Section 473 is, however, a saving provision like section 5 of the limitation Act. According to section 473, cognizance of an offence may be taken after expiry of the period of limitation on happening of two events. First, if the court is satisfied on the facts and in the circumstances of the case that the delay has been properly explained and second, it Is necessary to taken cognizance of the offence in the interest of justice. The non-obstante clause appearing in the section and the unlimited discretion vested in the court to take cognizance of an offence in the interest of Justice shows that in exercise of jurisdiction under this section, the court has wider powers to exercise than under section 5 of the Limitation Act. The power, however, is to be exercised on sound judicial principles by stating reasons therefor and not arbitrarily. In taking the above view, I am supported by two decisions of this Court, in State v. Jagannath Ram and others1 and Mahani Mohan Laha v. State2. That is also the view of most of the High Courts. ( 7 ) IT is now to consider whether in this particular case, a case has been made out for satisfaction of the Court that either one or both of the requirements contained in section 473 of the Code have been satisfied so as to save limitation for the complaint petition. A close scrutiny of the complaint petition shows that the following cause contained in para 10 has been shown, That the complainant repeatedly asked the accused to cause refund of the misappropriated amount and he deferred the matter on some pretext or other and ultimately on 21. 12. 79 he gave an evasive reply. Hence delay in filing the complaint. Mr. 12. 79 he gave an evasive reply. Hence delay in filing the complaint. Mr. Jena during argument did not rely upon the aforesaid statement in the complaint petition, but-on the other hand, urged that in order to determine the amount misappropriated by the opposite party an enquiry was held and the receipts were collected. In that enquiry it could be known that the opposite party had definitely misappropriated the sum of Rs. 5,560,95 which fact formed the basis of the charge. On account of the enquiry there was delay. Either of these two conditions was not at all taken into consideration by the learned Judicial Magistrate or by the learned Additional Sessions Judge. As a matter of fact, the learned Additional Sessions Judge did not at all consider the provisions of section 473 of the Code. In order that the attention of the court shall be reverted to the explanations offered for compliance of the provisions of section 473 of the Code, I consider it necessary to remand the case to the court of the learned Additional Sessions Judge so that after hearing the parties on the question of limitation he shall form an opinion either this way or the other and dispose of the criminal revision in accordance with law. ( 8 ) BEFORE parting with the cause, I would refer to the propriety of the following observation made In Mahan; Mohan Laha v. State (supra): The court empowered to take cognizance is not bound to take cognizance after the period of limitation expires even if one or both the conditions are satisfied. It has the discretion not to the cognizance if the period of limitation has expired even if it is satisfied that either of the aforesaid conditions or both exist. The learned counsel pointed out this observation and contended that It will create difficulties for the criminal courts for application of the provisions of section 473 of the Code do cases barred by limitation. On perusal of the entire decision I find that the learned Judge has taken the correct view on the broad principle that the Court has discretion for condonation of limitation taking into consideration the facts and circumstances of each particular case. But it seems to me that the observations quoted above were occasioned because of use of the word may in section 473 of the Code. But it seems to me that the observations quoted above were occasioned because of use of the word may in section 473 of the Code. Use of the word may connotes exercise of judicial discretion by the court for condonation of limitation if one or both the requirements of section 473 of the Code are satisfied. The expression cannot mean negative exercise of discretion even though the requirements contained in the section are satisfied. Section 473 is a benevolent and enabling provision. The legislative intention is to save criminal cases being barred by limitation so that criminal justice can be administered effectively, but not to drown them In the name of bar of limitation. If the court would refuse to condone limitation even if the requirements are satisfied, then the provisions of section 473 of the Code shall be rendered useless, ineffective and nugatory. The section must sub serve the purpose, but should not negate it. It is, therefore, clear that when the requirements of section 473 of the Code are satisfied, the court in exercise of judicial discretion has ample and wide power to condone limitation. ( 9 ) FOR the reasons stated above, the criminal revision is allowed and the impugned order passed by the learned Additional Sessions Judge is set aside. The case is remanded to him for fresh disposal according to law in the light of the observations made above. In order to save delay parties are directed to appear before him on 5. 9. 1987 for direction. Records may be despatched expeditiously. Revision allowed.