JUDGMENT 1. - This petition under section 482 Cr. P.C. is directed against the order dated January 18, 1990 of Additional Munsifl'& Judicial Magistrate, Karauli in criminal case no. 97/89. 2. The facts and circumstances under which this petition has come before this court may be narrated. 3. The complainant Kedar Prasad submitted a written report at Police Station, Hindon City on April 4, 1981 though the said report is dated March 18, 1981. In the said report he stated that Rs. 2 000/- were borrowed by him from the petitioner Ram Dayal Goyal on June 16, 1970 and for the security of the amount he had pledged some ornaments as described in the complaint. It was further stated that the petitioner in his statement recorded by Addl. Munsiff & Judicial Magistrate, Hindon City in the civil suit filed by him for the recovery of the amount has denied the writings made on the back of the pro-note and the receipt about the pledging of the ornaments at the time of advancement of the loan to him. He also stated that the petitioner had teen making false assurances to return the ornaments in a day or two. 4. On the said report the police registered crime no. 104 under section 406 I.P.C. on April 4, 1981. 5. After completion of the investigation, the police submitted a charge-sheet against the petitioner for the offence under section 406/409 I.P.C. The Charge-sheet was filed in the court on dated 1-8-1983. Before any cognizance could be taken on the said report, the petitioner moved an application submitting his objections against taking cognizance. Thereafter, the case was adjourned from time to time without passing any order with regard to taking cognizance. 6. It appears that the case was stood transferred to the court of Additional Chief Judicial Magistrate. Gangapur-city on Sept. 24, 1983. When the case file was received by the said court, though there is a mention in the order-sheet dated 24-9-1983 that the case be registered, but it appears that the case was registered without application of mind, as from the subsequent order-sheets it is clear that the case was fixed on several dates for hearing arguments about taking cognizance as well as framing charge In this connection, a reference may be made to the order-sheets dated 23-1-1984, 8-3-1984, 10-5-1984, 22-6-1984,24-7-84 & 29-8-84. However, the arguments were Dot heard for a pret y long time. Ultimately, vide order dated June 26, 1986 the learned Addl. Chief Judicial Magistrate has ordered to frame the charge under section 406 I.P.C. against the petitioner holding that the prima facie offence section 406 is was made out. 7. On 1-10-1986 the charge was framed as under:- " fd vkidks fnukad 16&6&70 dks fgUMksu&flVh esa dsnkj izlkn us lksus dh xqyhcUn] [kxokjh] gkj lksus dk] ,d dM+k tksM+h dqy otuh lkMs nl rksyk lksus ds tsoj fxjoh j[ks o vkils bu tsojkr dks okfil NqM+okuk pkgk rks vkius 18&3&81 ds yxHkx bu fxjoh ( vekurh ) tsojksa dks ykSVkus ls bUdkj dj (Misappropriation) fd;k vkSj vijk/k /kkjk 406 vkbZ0ih0lh0 dk fd;kA vkSj tks esjs izlaxKku esa gSA " 8. The aforesaid order was challenged by the petitioner in the court of Addl. Session Judge, Karauli by way of revision petition. Before the Revisional Court it was argued that the matter was basically of civil nature and that the statement of the petitioner was recorded on 20th Aug. 75 in the civil suit no. 52/75 by the Addl. Munsiff & Judicial Magistrate, Hindon-city, in which he has denied the receipt of any ornaments from the complainant. Thus, the offence under section 406 I.P.C., if committed, was committed on the date of recording this statement i.e. 20-8-1975 in which the petitioner had denied to have reveived the ornaments. The Revisional Court was of the view that the contention of the petitioner was prima-facie tenable. It is also noteworthy that the statement of the petitioner, recorded in the civil suit, was not traceable in the file though there is a mention in the F.I.R. about this statement. The Revisional Court was of the view that the contention of the petitioner was prima-facie tenable. It is also noteworthy that the statement of the petitioner, recorded in the civil suit, was not traceable in the file though there is a mention in the F.I.R. about this statement. On this point, the learned Judge observed as under:- " izFke lwpuk tks eqLrxhl us ntZ djokbZ mlds uhps dk;Zokgh iqfyl esa Hkh Li"V o.kZu gS fd bl izFke lwpuk ds lkFk lkFk izksuksV dh QksVksa dkih vkSj vfHk;qDr jken;ky ds c;kuksa dh lR; izfrfyfi tks nhokuh eqdnek la[;k 52@75 esa gq,] dh izfrfyfi;ka is'k dh xbZ gSA jken;ky ds c;kuksa dh izfrfyfi v/khuLFk U;k;ky; dh i=koyh esa dgha Hkh miyC/k ugha gSA ;g izfrfyfi tc ,Q0vkbZ0vkj0 ds lkFk izLrqr dh xbZ rks fjdkMZ esa D;ksa ugha gS ;g vfHk;kstu i{k vihy ds nkSjku Hkh vUr rd ugha crk ik;kA ,Q0vkbZ0vkj0 esa Li"V o.kZu gS fd jken;ky vfHk;qDr us ,0,e0ts0,e0 U;k;ky; esa gq, vius c;ku esa izksuksV dk fy[kk tkuk gh vLohdkj dj fn;k FkkA bl izdkj lQkbZ i{k dk ;g rdZ gS fd mu c;kuksa ls ;g Li"V gks x;k Fkk fd ftl fnu vfHk;qDr ds c;ku gq, ml fnu mlus dksbZ xguk vekur ds :i esa vius ikl j[kuk vLohdkj dj fn;k Fkk blfy, vekur esa [k;kur ds vijk/k dh e;kn dh vof/k U;k;ky; esa gq, mu c;kuksa ds fnu ls gh izkjEHk gks xbZ FkhA blfy, fuxjkuh esa ;g vkifRr fd tkucw>dj mu c;kuksa dks gVk;k x;k gS] cscqfu;kn ugha ekuh tk ldrhA bu c;kuksa dks ,Q0vkbZ0vkj0 ds vuqlkj dkt vkQ ,D'ku ds :i esa crk;k x;k gS vkSj c;ku ,Q0vkbZ0vkj0 ds vuqlkj ds lkFk is'k djuk ,Q0vkbZ0vkj0 esa fy[kk gS ijUrq ;g c;ku fjdkMZ ij miyC/k D;ksa ugha gS] ;g vUr rd Li"V ugha gSA bu c;kuksa dh ,d izfr vihy LVst ij is'k dh xbZ gSA bl eqdnesa dh ifjfLFkfr;ksa esa vc Lo;a vfHk;kstu i{k us bu c;kuksa ij fo'okl fd;k gS vkSj bls bl QkStnkjh eqdnesa esa dkt vkQ ,D'ku crk;k gS] mlesa bu c;kuksa dks [kqn is'k ugha djuk vkSj ,Q0vkbZ0vkj0 esa ;g fy[kk gksuk fd c;ku ,Q0vkbZ0vkj0 ds lkFk is'k fd;s tk jgs gSa] iqfyl }kjk dh xbZ vUos"k.k dh 'kq)rk ij lansg iSnk djrk gSA blfy, bl c;ku ds lanHkZ esa vfHk;qDr dks e;kn ds fcUnq ij lquk tkuk pkfg;s] fo'ks"k dj mu ifjfLFkfr;ksa esa tc Lo;a iqfyl esa fy[kh ,Q0vkbZ0vkj0 esa c;kuksa dh rkjh[k 16&3&73 ntZ dh xbZ gSA bl izdkj vfHk;qDr dks bl lanHkZ esa lqudj ;g vkns'k ikfjr ugha fd;k x;k ftlls vfHk;qDr dks izkstwfMl gqbZ gSA e;kn ds fcUnq ij fo}ku v/khuLFk U;k;ky; us viuk ekbUM ,IykbZ ugha fd;kA " 9. The learned Judge, thereafter, set-aside the order of the learned Magistrate and framing charge against the petitioner under section 406 I.P.C. and remanded the case with specific direction to re-hear the parties on the question of limitation. In the order the learned Judge had also observed that no application was moved by the complainant/prosecution for extension of period of limitation. 10. Consequently, the matter was re-heard on the question of limitation by the Addl. Munsiff & Judicial Magistrate, Karauli after the remand of the case. The learned Magistrate in this connection passed the order on 22-3-88. In para 4 of the said order, the learned Magistrate held that the statement of the petitioner in civil suit no. 52/77 was recorded on August 20,1975, in the presence of the complainant, in which he had denied of receiving the ornaments. The learned Magistrate further held that the period of limitation started from 20-8-75 when the petitioner had denied to have received the ornaments in the presence of the complainant and that the date of taking cognisance is 26-6-1986. 11. The learned Magistrate then held as under:- " i=koyh ij miyC/k vfHkys[k vkSj lk{; ls ;g rF; izdV gS fd vfHk;qDr ds fo:) fnukad 26&6&86 dks /kkjk 406 Hkk0n0la0 ds vUrxZr vkjksi yxk;s tkus ds vkns'k ikfjr fd;s x;s gSaA /kkjk 406 Hkk0n0la0 ds vUrxZr vkjksi yxk;s tkus ds vkns'k ikfjr fd;s x;s gSaA /kkjk 406 Hkk0n0la0 ds vUrxZr rhu o"kZ dh dkjkokl dh ltk dk izko/kku gS vkSj 468 n0iz0la0 ds vuqlkj rhu o"kZ ds ifjlhekdky esa izlKkau fy;k tkuk pkfg;sA tSlk fd mij iSjk uEcj 4 esa ;g fu"d"kZ fudkyk x;k gS fd orZeku izdj.k esa ifjlhekdky 20&8&75 ls izkjEHk gksxk rFkk izlaKku 26&6&86 dks fy;k gqvk ekuk x;k gSA fuf'pr :i ls vfHk;qDr ds fo:) /kkjk 468 n0iz0la0 ds izko/kkuksa ds vUrxZr fu/kkZfjr ifjlhekdky ds i'pkr~ vfHk;qDr ds fo:) /kkjk 406 Hkk0n0la0 ds vUrxZr izlaKku fy;k x;k gSA " 12. Inspite of the aforesaid findings that the period of limitation for taking cognizance had expired long ago in the present case, the learned Magistrate refused to give the benefit to the accused petitioner on the ground that his order dated 26-6-86 was not set-aside by the Revisional Court by which the cognizance was taken by him and that he was incompetent to review his on own order. 13. 13. It is noteworthy that the Revisional Court while remanding the case by its order dated 8/12/87 had expressly set aside the order framing charge against the petitioner but still the learned Magistrate did not give the benefit to the petitioner for the reason stated above. 14. The petitioner then approached before this court under section 482 Cr.P.C., being aggrieved against the aforesaid order of the learned Magistrate dated 22-3-1988. The petition was allowed by this court on 26-7-88 holding therein that the accused has a right to agitate the point of limitation before the court and the Magistrate cannot deprive this right to the accused. This court, therefore, directed the Magistrate to consider the question of limitation. 15. Then the learned Magistrate passed the impugned order on January 18, 1590. Aggrieved against the said order, the present petition has been filed. 16. In the impugned order the learned Magistrate has held that the offence was committed near about 18-3-81 and as the charge-sheet tiled on 1-8 83, it cannot be said that the cognizance was taken after the period of limitation. In the alternative, the Magistrate further observed that even it is held that the offence was committed on August 20, 1975, the charge-sheet was submitted on August 1, 1981 and the case was registered on Sept. 24, 1983 and thereafter, the charge was framed against the accused petitioner, the court did not possess inherent powers to review the earlier orders. The learned Magistrate further observed that he finds the explanation of the complainant to be proper that the accused petitioner was giving assurances to return the ornaments. 17. In the back-ground of the aforesaid facts, the learned counsel for the petitioner has vehemently argued that the impugned order of the learned Magistrate is not only confusing but contrary to the express findings which have been recorded by the Revisional Court as well as by the same court of the learned Magistrate. 18. The learned counsel draw my attention to the aforesaid judgment/order of the learned Addl. 18. The learned counsel draw my attention to the aforesaid judgment/order of the learned Addl. Session Judge, passed in the revision petition filed by the petitioner against the order framing charge against him, as well as, the order of the learned Magistrate himself dated 22-3-1988 in which it has been categorically held that the offence was committed on 20-8 1975 when the statement of the petitioner was recorded in the civil suit in the presence of the complainant in which he had denied to have received any ornaments. In both these orders, it has been held that the order taking cognizance against the petitioner under section 406 I.P.C. was beyond the period of limitation as prescribed in section 468 Cr.P.C. 19. The learned counsel further drew my attention to the finding of the learned Magistrate in the order dated 22-3-88 in which it has been held that the cognizance in the matter was taken on 26-6-86. The learned counsel also submitted that the subsequent finding of the trial Magistrate which has been given in the impugned order dated Jan. 18, 1990 that the offence was committed on 18-3-81 when the written report was got typed by the petitioner, is absolutely erroneous. The learned Magistrate also appears to be confusing that the date of the commission of the offence is near about 18- J-8 i. 20. The learned counsel further submitted that the learned Magistrate also erred in taking a different view from his earlier view that the period of limitation has to be counted upto 1-8-83 when the charge-sheet was filed. The learned counsel also argued that inspite of the fact that there was no application by the complainant to condone the delay. The learned Magistrate committed serious error in passing remarks that he considers the explanation of the complainant to be proper that the accused petitioner had been giving assurances to return the ornaments. 21. The learned counsel also drew my attention to the application filed by the complainant himself before the trial Magistrate on 5-3-90 in which he has categorically stated that in the civil suit filed by the petitioner for the recovery of the amount, the parties have compromised and the amount claimed by the petitioner has been paid by him. He further stated therein with regard to the ornaments that there is no dispute between the parties. He further stated therein with regard to the ornaments that there is no dispute between the parties. Hence, he does not want to proceed with the complainant. He also admitted that the report was made after the expiry of the period of limitation. 22. On the other hand, the learned counsel for the complainant and the Public Prosecutor supported the order of the learned Magistrate. 23. From the facts narrated above, the relevant dates and salient features of the case are narrated as under ;- (i) On 16-6-70 the complainant took a loan of Rs. 2000/- from the petitioner and executed a pro-note as well as a receipt; (ii) The said pro-note is alleged to have been changed subsequently on 16-5-73; (iii) The petitioner filed a civil suit for the recovery of Rs. 3,367.60 on the basis of the aforesaid pro-note in the court of Munsiff & Judicial Magistrate, Gangapur City. The suit was filed on 21/12/74 and the same was registered as civil suit no 13/75; (iv) The statement of the petitioner was recorded on 20-8-75 in which he has denied to have received any ornaments on 16-6-70 as claimed by the complainant; (v) After about 6 years, the complainant then filed a report at Police Station, Hindon-city on 4-4 81. The report is typed one having the date as 18-3-81; (vi) The police submitted a charge-sheet on 1-8-83, no order of taking cognizance was passed. However, on 24-9-83, there is on order to register the case but it appears that it was without application of mind as the petitioner had filed an application earlier with a prayer not to take cognizance without hearing his objections and that application was still to be decided by the court. From the subsequent various order-sheets also, it is clear that the case was fixed from time to time to hear arguments for taking cognizance and framing charge; (vii) On 26-6-86 the court held that a prima-facie case under section 406 I.P.C. is made out against the petitioner, as such, the charge should be framed. In pursuance to the said order, the charge under section 406 I.P.C. was framed on 1-10-1986. (viii) In the revision petition filed against the aforesaid order, the learned Addl. In pursuance to the said order, the charge under section 406 I.P.C. was framed on 1-10-1986. (viii) In the revision petition filed against the aforesaid order, the learned Addl. Session Judge, Karauli remanded the case to the trial Magistrate to decide the question of limitation after hearing the petitioner; (ix) Then the Magistrate in his order dated 22-3-1988 held that the cognizance was taken on 26-6-86 while the offence stood committed on 20-8-75, as such, it was barred by limitation. However, the Magistrate is refrained from passing any order in favour of the petitioner by observing that he had no power to review his order dated 26-6-1986 and the said order was not set-aside by the Revisional Court; (x) On a petition under section 482 Cr. P.C., this court held that the petitioner has a valuable right to raise the question of limitation before the court of Magistrate and the Magistrate is bound to decide it. This court directed the Magistrate to decide the question of limitation; (xi) Then the impugned order dated 18-1-1990 was passed by the trial Magistrate. (xii) Thereafter, the complainant himself moved an application dated 5-3-1950 in the trial court in which ) e has stated that in the civil suit he has compromised with the petitioner after making the entire payment to him and that he does not want to proceed with the criminal case also and further that there is no dispute about any ornaments and that the report made by hint is also barred by limitation. 24. In the aforesaid background it is to seen whether it is just and proper that the proceedings in the criminal case allowed to continue. 25. The first and the foremost question for consideration is to determine the date of the commission of the offence for the purposes of section 468 Cr. P.C. As per section 468 Cr. P.C., the period of limitation commences on the date of the offence if it is known to the person aggrieved by the offence. 26. Some facts are not in dispute. The petitioner had filed a civil suit for the recovery of the amount on the basis of the pro-note and in that suit, the complainant had taken the plea that ornaments were pledged by him at the time of taking loan and the same have not been returned by the petitioner. There was a specific issue on this point. The petitioner had filed a civil suit for the recovery of the amount on the basis of the pro-note and in that suit, the complainant had taken the plea that ornaments were pledged by him at the time of taking loan and the same have not been returned by the petitioner. There was a specific issue on this point. The statement of the petitioner was recorded in civil suit on 20-8-75, in the presence of the complainant, in which he denied to have received any received any ornaments at the time of advancing the loan. Thus, it is clear that the factum of receiving amount has been denied by the petitioner in the presence of that complainant on 20-8-75. 27. In my view, if the ornaments were taken by the petitioner and this fact was denied by him on 20.8.75 in the presence of the complainant, then this become the crucial date for the purposes of limitation. For the purposes of section 468 Cr.P.C., the dale of the aforesaid denial gave the cause of action to the complainant and it is the date of the commission of the offence under section 406 I.P C. The period of limitation commenced Tom this dale. 28. I may also mention here that the learned Magistrate himself held so in his order dated 22.1.1988 which was not challenged by the complainant. The order of the learned Magistrate dated 22-3-1988 stands and there was hardly any new fact for taking a different view by the learned Magistrate when he held that the offence was committed when the report was got typed near about March 18, 1981. How the date of typing of the report can be a date of the commission of the offence under section 406 I.P.C., under the facts and circumstances of the case. I am unable to understand. 29. Hence, the above view of the learned Magistrate is wholly erroneous and contrary to the material/evidence on the record. It is also contrary to the earlier view taken by the learned Magistrate. 30. I, therefore, hold that the date of the commission of the offence, in the present case, is 20.8.1975 when the petitioner denied to have received the ornament in the presence of the complainant and the period of limitation, in relation to the offence under section 406 I.P.C., commenced from this date for the purpose of section 468 Cr P.C. 31. I, therefore, hold that the date of the commission of the offence, in the present case, is 20.8.1975 when the petitioner denied to have received the ornament in the presence of the complainant and the period of limitation, in relation to the offence under section 406 I.P.C., commenced from this date for the purpose of section 468 Cr P.C. 31. Then the next question is, when the cognizance of the offence have been taken? There may be a dispute as to whether the cognizance was taken on 24.9.83 or 26.6.86 Without making any repeatation, I may state here that the trial Magistrate had himself held in his earlier order that the cognizince in the case shall be deemed to have been taken on 24.6.1986. 32. In the preceding paragraphs I have detailed out the facts after filing of the charge sheet. From the record it appears that the Magistrate did not apply his mind on 24.9.83 when there is a mention in the order-sheet that the case be registered and this fact is revealed from the subsequent order-sheets of the trial court as detailed out earlier. 33. I, therefore, agree with the earlier view of the learned Magistrate taken on 22.3.88 that the cognizance in this case shall be deemed to have been taken on 26 6.1986. Even if it is held that the cognizance was taken on 2 .9.83, it is not going to help to the complainant at all. In that case also, the cognizance has been taken after 8 years of the commission of the offence when the period of limitation is only 3 years. Thus, on this ground also, no cognizance could have been taken under section 406 I.P.C in view of section 468 Cr.P.C. Admittedly, there was no application for the extension of the period of limitation, as such, there was no occasion for the Magistrate to consider this aspect in his earlier order dated 22.3.88. I have, therefore, no hesitation in holding that the cognizance in 'he case has been taken after the expiry of the period of limitation as provided under section 468 Cr.P.C. 34. There is no question of extending the period of limitation in the present case. Firstly, there was no such application. I have, therefore, no hesitation in holding that the cognizance in 'he case has been taken after the expiry of the period of limitation as provided under section 468 Cr.P.C. 34. There is no question of extending the period of limitation in the present case. Firstly, there was no such application. Secondly, when the petitioner had categorically stated in the civil suit that the ornaments were not taken by him then the mere saying of the complainant that the petitioner had given assurances to return the ornaments has hardly any relevance to extend the period of limitation. Such contention made by the complainant is per se unbelievable and motivated to explain so much delay in initiating the criminal proceedings. 35. From the above facts it is clear that as per the complainants case, the amount of loan was advanced by the petitioner on 16.6.70 and this is the date when the ornaments are alleged to have been pledged. In spite of the civil suit filed by the petitioner denying to have received any ornaments, the report was lodged in the year 1981. The cognizance has been taken in the year 1986 i.e. after 16 years of advancing the loan, as well as, after 11 years or so from the filing of the civil suit by the petitioner for the recovery of the amount. 36. The provisions with regard to limitation for taking cognizance of the certain offences have been introduced in the new Code of 1973. The Law Commission have given out the following grounds for prescribing limitation among* others:- "(1) As time passes the testimony of witnesses becomes weaker and weaker because of lapse of memory and evidence becomes more and more uncertain with the result that the danger of error becomes greater. (2) For the purpose of peace and repose it is necessary that an offender should not be kept under continuous apprehension that he may be prosecuted at any time particularly because with multifarious laws creating new offences many persons at sometime or other commit some crime or the other, people will have no peace of mind if there is no period of limitation even for petty offences. (3) The deterrent effect of punishment is impaired if prosecution is not launched and punishment is not inflicted before the offence has been wiped off the memory of persons concerned. (3) The deterrent effect of punishment is impaired if prosecution is not launched and punishment is not inflicted before the offence has been wiped off the memory of persons concerned. (4) The sense of social retribution which is one of the purposes of criminal law loses its edge after the expiry of long period. (5) The period of limitation would put pressure on the organs of criminal prosecution to make every effort to ensure the detection and punishment of the crime quickly." 37. The apex court of the country in AIR 1981 SC 1054 has held that the object of Criminal Procedure Code in putting a bar of limitation on prosecution was clearly to prevent the parties from filing cases after along time, as a result of which material evidence may disappear and also to prevent abuse of the process of the court by filing vexations and belated prosecutions long after the date of the offence. The object which the statute seeks to subserve is clearly in consonance with the concept of fairness of trial as enshrined in Article 21 of the Constitution. It is, therefore, of the utmost importance that any prosecution, whether by the State or a private complainant must abide by the letter of law or take the risk of the prosecution failing on the ground of limitation. 38. From the above discussions, I have no hesitation in holding that the cognizance under section 406 I.P.C. has been taken much after the expiry of period of limitation and as such, it is contrary to section 468 Cr.P.C. 39. The case may be judged from another angle also. I had given the important dates and the salient features of the case earlier. With regard to the same matter, a civil suit was filed by the petitioner as back as in December 74, and in that suit there is a specific issue with regard to the fact as to whether the ornaments were pledged by the complainant or not. It appears that the said suit has been decided on the basis of compromise between the parties as disclosed by the complainant in his application dated 5.3.1990 submitted before the trial court. It appears that the said suit has been decided on the basis of compromise between the parties as disclosed by the complainant in his application dated 5.3.1990 submitted before the trial court. The complainant himself has submitted in the aforesaid application that he has amicably compromise the matter in the civil suit and that he has no dispute with the petitioner with regard to the ornaments, as such he does not want to proceed with the complaint. 40. In the aforesaid back ground also and taking into consideration the entire facts and circumstances of the case narrated above. I am of the view that the continuation of criminal proceedings in the present case shall be an abuse of the process of the court and the impugned order, as well as, the criminal proceedings against the petitioner under section 406 I.P.C. deserve to be quashed. 41. Consequently, this petition is allowed as indicated above. *******