ABANI MOHAN SINHA, J. ( 1 ) THIS revision petition under section 401 read with section 482 of the Code of Criminal Procedure is directed against the order of the learned Sub-divisional Judicial Magistrate, Purulia in G. R. case No. 1060, of 1983. The defacto complainant filed a complaint before the learned Sube divisional Judicial Magistrate on 17th January, 1983 alleging that he took one truck being No. ASK 2943 from one Basudev Supakar of Sudamdih P. S. Sudandih District, Dhanbad under an agreement dated 10. 10. 79 for a period of fourteen months on condition of payment of Rs. 4,000/- per month, He made over the said truck to the accused persons in good faith for carrying goods from Purulia to Dubra and the truck was entrusted to them. Thereafter, the complainant became ill and after recovery from the illness following an operant at the hospital, he asked the accused about the whereabouts of the truck but the truck could not be traced out on his repeated demands the accused person did not return the truck. The accused persons refused to return the truck on his repeated demands and after search he could find a truck bearing No. WBW 1796 at the front door of the accused. It is alleged that the original truck bearing No. ASK. 2943 which was entrusted to them was Cringed with the new number as mentioned above. Accord injury, he lodged a diary in the Para Police Station. Thereafter, he filed a complaint case against the accused persons for committing criminal breach of trust in the court of the learned S. D. J. M. The steered S. D. J. M. on receiving the complaint disorder the Officer- in-Charge, Para Police Station to start a case under section 156 (3) of the Code of Criminal Procedure after treating the complaint $ F. I. R. The Police, accordingly started a case being Para Police Station Case No. 4 on 2. 5. 1983 under section 406 of the Indian Penal Code against the accused persons. ( 2 ) A proceeding was taken out by Basudev Supakar, the owner of the truck for return of the same to him pending enquiry and trial. The learned Sub-divisional Judicial Magistrate allowed such application for return of the truck to him for keeping the same in his custody with a rider that he would execute a bond of Rs. ( 2 ) A proceeding was taken out by Basudev Supakar, the owner of the truck for return of the same to him pending enquiry and trial. The learned Sub-divisional Judicial Magistrate allowed such application for return of the truck to him for keeping the same in his custody with a rider that he would execute a bond of Rs. 1 lakh and that he would produce the vehicle before the court as and when called for arid shall not change the nature, colour or any other component of the vehicle. Bikash Banerjee, one of the accused moved against such order in revision before this High Court. The High Court entertaining the revisional application passed an order of stay with regard to the proceeding as to the return of the truck. The learned court of the S. D. J. M. by his order dated 53. 1985 stayed such proceeding pending hearing of the revisional application in this regard. This court, it appears, passed an order on 2 1. 2. 1986 in Criminal Revision No. 242 of 1985 rejecting the revisional application and directing the vehicle to be returned to Basudev Supakar. Accordingly, the learned S. D. J. M. on 25. 3. 1986 passed an order for return of the vehicle. ( 3 ) THE return of the vehicle was presumably done under the provision of section 451 of the Code of Criminal Procedure which relates to passing an order for custody and disposal of the property pending trial or enquiry. The main proceeding, however, was pending and on several dates, orders were passed by the learned S. D. J. M. awaiting return of the record from the High Court and also directing Investigating Officer to file after investigation report as to the accused. These orders were passed on 28. 3. 1985, 9. 7. 1985, 15. 11. 985 and 27. 2. 1986. Ultimately, on 12. 6. 1986 the Investigating Officer submitted charge-sheet against the accused persons. The learned Magistrate by his order of that date took cognizance of the offence and directed issue of warrant against one of the accused. The case was fixed for report of execution of the warrant on 12. 9. 1986 and, thereafter, several dates elapsed. 2. 1986. Ultimately, on 12. 6. 1986 the Investigating Officer submitted charge-sheet against the accused persons. The learned Magistrate by his order of that date took cognizance of the offence and directed issue of warrant against one of the accused. The case was fixed for report of execution of the warrant on 12. 9. 1986 and, thereafter, several dates elapsed. On 23rd December, 1988, one of the accused Pijush Mukherjee filed a petition before the learned S. D. J. M. alleging that the cognizance of the offence was bad as it was barred by limitation and the proceeding should be dropped. Ultimately, the said application was taken up for hearing on 13. 9. 1989. The then learned S. D. J. M. in his order recorded that the offence is a continuing one and as such it is not effected by the law of limitation as contained in section 468 (2) of the Code of Criminal Procedure. He further held that the court has jurisdiction to take cognizance in terms of section 473 of the Code even after the expiry of the period of limitation. On being satisfied on the facts on the facts and circumstances of the case he held that the delay in taking cognizance had been explained and that it was necessary so to take cognizance in the interest of justice. He further held that the congnizance was delayed on account of the fact the matter was stayed by the High Court in connection with the revisional application for return of the truck and the original record was not available for which the learned S. D. J. M. could not get any opportunity for going into the merits of the case and he had to take cognizance of the case and also he could not explain the delay in taking cognizance, in the absence of the original record. Ultimately, he held that he could not interfere with the said order passed by the learned S. D. J. M. on 12. 6. 1986 taking cognizance of the case against the accused. ( 4 ) BEING aggrieved by such judgment and order, one of the accused, Pijush Mukherjee has come up in revision with two fold prayers for quashing the entire proceeding under section 482 and also for setting aside the order passed by the learned S. D. J. M. on 13. 9. 1986 taking cognizance of the case against the accused. ( 4 ) BEING aggrieved by such judgment and order, one of the accused, Pijush Mukherjee has come up in revision with two fold prayers for quashing the entire proceeding under section 482 and also for setting aside the order passed by the learned S. D. J. M. on 13. 9. 1989 rejecting his contention on the point of limitation. ( 5 ) MR. Subrata Bose, learned Counsel appearing for the petitioner has urged with reference to section 468 (2) (c) of the Code that the offence of criminal breach of trust under section 406 of Indian Penal Code is punishable with imprisonment for three years cannot be taken cognizance of after the expiry of period of limitation which is three years from the date of commission of offence of this nature. ( 6 ) IT is alleged in the petition of complaint that the offence took place on 23rd December, 1988, one of the accused that the offence took place on 10. 1. 1983 when the Pijush Mukherjee filed a petition before the accused refused tore the vehicle in question to learned S. D. J. M. alleging that the cognizance of the complainant. The complaint in the present the offence was bad as it was barred by limitation case was filed before the learned S. D. J. M. on and the proceeding should be dropped. On 17. 1. 1983. The learned S. D. J. M. took cognizance mately, the said application was taken up for of offence on submission of the charge-sheet by hearing on 13. 9. 1989. The then learned S. D. J. M. the police on 12. 6. 1986 and he recorded an order in his order recorded that the offence is a continuing in this regard. It has been contended by Mr. Bose one and as such it is not effected by the law of that there was no application either on behalf of limitation as contained in section 468 (2) of the complainant or on behalf of the police for Code of Criminal Procedure. He further held that condonation of delay in filing the charge-sheet for the court has jurisdiction to take cognizance in the purpose of taking cognizance of the offence terms of section 473 of the Code even after the According to him, as the offence was committed expiry of the period of limitation. He further held that condonation of delay in filing the charge-sheet for the court has jurisdiction to take cognizance in the purpose of taking cognizance of the offence terms of section 473 of the Code even after the According to him, as the offence was committed expiry of the period of limitation. On being satiations on 10. 1. 1983 its cognizance was clearly barred by fled on the facts and circumstances of the case he limitation on 12. 6. 1986 and the cognizance was held that the delay in taking cognizance had been taken after the lapse of about five months. In explained, and that it was necessary so to take support of his contention, he has relied upon a cognizance in the interest of justice. He further decision of this Court, Mahipai Bahadur Singh and held that the cognizance was delayed on account Ors. v. State and Anr. In this decision it was held of the fact the matter was stayed by the High Court that the bar of limitation is the pre-requisite for in connection with the revisional application for taking cognizance under the provisions of the return of the truck and the original record was not Code of Criminal Procedure. It was further held available for which the learned S. D. J. M. could not that the offence of Criminal breach of trust under get any opportunity forgoing into the merits of the section 406 of the I. P. C. is not a continuing case and he had to take cognizance of the case and offence as it was alleged in the petition of complaints that it was committed once for all. The learned Judge S. P. Das Ghosh, J. (as His Lordship then was) considered the decisions of different High Court and of the Supreme Court and ultimately held that an accused cannot he preclude from moving the High Court for quashing a proceeding on the ground of limitation without raising the plea of limitation at first, in the court of learned Magistrate taking cognizance of the offence. In the present case, the question of limitation was raised in the court below. Mr. Bose has also referred to a decision of the Supreme Court in Surinder Mohan vikal v. Ascharaj Lal Chopra. In the present case, the question of limitation was raised in the court below. Mr. Bose has also referred to a decision of the Supreme Court in Surinder Mohan vikal v. Ascharaj Lal Chopra. The relevant observation and the principles laid down by the Supreme Court may be quoted below: It would thus appear that the appellant was entitled to the benefit of sub-section (1) of section 468 which prohibits every court from taking cognizance of an offence of the category specified in subsection (2) after the expiry of the period of limitation. It is hardly necessary to say that statutes of limitation have legislative policy behind them. For instance, they shut out belated and dormant claims in order to save the accused from unnecessary harassment. They also save the accused from the risk of having to fact trial at a time when his evidence might have been lost because of the delay on the part of the prosecutor. As has been stated, a bar to the taking of cognizance has been prescribed under section 468 of the Cr. P. C. and there is no reason why the appellant should not be entitled to it in the facts and circumstances of this case. ( 7 ) MR. Bose also has referred to a Division Bench decision of this court in the Asiatic Oxygen and Acetylene Co. Ltd. v. The Registrar of Companies, and has urged that no application was made by the prosecution or the de facto complainant for extending the period of limitation and that the period of limitation can be extended or delay can be condoned under section 473 of the Code only on notice to the accused person. The Division Bench held that such application cannot be even allowed ex parte and the delay can be condoned and time can be extended only after giving reasonable opportunity to the accused. ( 8 ) THE learned Additional P. P. Mr. Sobhan Lal Hazra has referred to catena of decisions in support of his contention that the court can on its own, exercise the power vested in him under section 473 of the Code. In support of his contention he has also relied on, Madan Mohan Sarma and Anr. ( 8 ) THE learned Additional P. P. Mr. Sobhan Lal Hazra has referred to catena of decisions in support of his contention that the court can on its own, exercise the power vested in him under section 473 of the Code. In support of his contention he has also relied on, Madan Mohan Sarma and Anr. v. State of M. P. , Renu v. State of Haryana, and also Bhagirath Kanoria v. State of M. P. According to him, the offence of criminal breach of trust is a continuing one and the court in such case can condone the delay on its own and it should be presumed that the court in fact condoned the delay by taking cognizance on 12. 6. 1986. It has further been urged by him that as the revision petitioner has come up against the order dated 13. 9. 1989 and not against the order of taking cognizance dated 12. 6. 1986, and that as such the revision application is not maintainable. ( 9 ) I have heard the arguments advanced by the learned Advocates of both sides and I have examined the relevant orders of the court below. I find that in view of the Single Bench Decision as also the Division Bench decision of this High Court reported in 1986 C Cr. L. R. (Cal.)1 and (1981)2 Cal. H. N. 412 (supra), the learned S. D. J. M. could not take cognizance of the offence which was committed more than three years before liking of cognizance. In the present case, the offence was committed on 10. 1. 1983 and the cognizance was taken on 12. 6. 1986. On the basis of the principles laid down in the decisions of our High Court that the court cannot suo moto act fecundating the delay of limitation and in taking cognizance of the offence even after the expiry of period of limitation for condensation of such delay. I hold the cognizance in the present case is barred. The decision of the Supreme Court has clearly laid down the principles of application of Section 468. I hold the cognizance in the present case is barred. The decision of the Supreme Court has clearly laid down the principles of application of Section 468. It has also been laid down in the said decision that the benefit of section 470 i. e. , the pleading of bar for taking cognizance or about the stay of higher court or otherwise cannot be given to any person by the court unless the person who wants to seek this benefit should be able to establish that he was, prosecuting any proceeding in a particular forum wrongly and was referred to and the forum subsequently. Now the question comes if it is the duty of the court of establish the facts or circumstances for the exercise of the power under section 470 or 473 of the Code. The tenor of the decision of cur High Court and also of the Supreme Court clearly indicates that the pony who seeks the benefit of all these provisions must establish these facts before the court. In the present case, nothing has been done to establish such facts and circumstances before the court below, so far as giving of the benefit of section 470 of the Code is concerned. It may be said that what was stayed, was proceeding under section 451 of the Code which relates to passing of order for custody and disposal of the property pending trial and disposal of the case. The orders of the court below it appears, which I have already adverted to, starting from 28. 3. 1985 till 12. 6. 1986, the court proceeded with the main proceedings initiated under section 406 of the I. P. C. on submission of the charge-sheet by the police. There was no bar to taking of cognizance within time. The decision of the Supreme Court in Bhagirath Kanorias case (supra) was considered by the learned Single Bench decision. 3. 1985 till 12. 6. 1986, the court proceeded with the main proceedings initiated under section 406 of the I. P. C. on submission of the charge-sheet by the police. There was no bar to taking of cognizance within time. The decision of the Supreme Court in Bhagirath Kanorias case (supra) was considered by the learned Single Bench decision. In my view that such case relates to an offence for non-payment of contribution by the employer of Provident fund under the provisions of the Employees Provident Fund and Family Pension Act, 1952: Such an offence, even, if taken to be an offence under the criminal breach of trust under the amended provision of section 406 of the Indian Penal Code, it is an offence arising out of noncompliance of the statutory liability of the employer, which is to be discharged by the employer every month as when he pays salary and wages to his employees. The omission to make the deposit in his share in the provident fund after deducting the share of contribution of the employee must be held to be a continuing offence as the omission is not made up but is a recurring one, month by month, year to year until the omissions are made up. The other decision relied upon by Mr. Hazra relates to release of Stridhan Property (supra) and the facts of those cases are quite distinguishable from the facts of the present case under enquiry. The facts and circumstances, of such cases clearly indicate that the offence of criminal breach of trust was a continuing one as the Stridhan Property was not released in spite of repeated demands which continues even after the filing of the complaint. In the present cast, however, the facts are different. The arguments of Mr. Hazra that the application is not maintainable in view of the fact that the revision is not directed against the order of cognizance. passed on 12. 60. 1986, in my view, is not tenable. The petitioner has come up with this revision application for quashing the proceeding as it now stands before the trial court on the ground of limitation affecting the taking of cognizance of the offence. passed on 12. 60. 1986, in my view, is not tenable. The petitioner has come up with this revision application for quashing the proceeding as it now stands before the trial court on the ground of limitation affecting the taking of cognizance of the offence. It is wellestablished by the decisions oh his Court and the Supreme Court that in quashing proceeding a party need not proceed against a particular order and he can challenge the basis and the fundamentals of any proceeding on the ground of illegality. ( 10 ) IN my view, the cognizance was bad as time barred and the proceeding started on such cognizance is illegal. So this application stands allowed and the proceeding of the court below in G. R. Case No. 1060 of 1983 is hereby quashed, and the impugned orders are set aside. The Rule is made absolute. There is no order as to costs. Petition allowed. Proceedings quashed.