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1997 DIGILAW 11 (CAL)

JAYANTA KUMAR MUKHERJEE v. STATE

1997-01-09

DIBYENDU BHUSAN DUTTA

body1997
D. B. DUTTA, J. ( 1 ) IN the instant application under section 482 Cr PC the accused of Case No. 43 of 1994 (T. R. 30 of 1994) pending in the Third Court of Judicial Magistrate has prayed for quashing the proceeding only on the ground of limitation. ( 2 ) IT is submitted on behalf of the petitioner that the offence taken cognizance of being punishable with imprisonment for a term exceeding one year but not exceeding three years, the cognizance is hit by the mischief of section 468 (2) (c) of Cr PC. ( 3 ) THE cognizance was taken on the basis of a complaint lodged on 11. 1. 94 and process was issued against the petitioner under section 406 IPC on 27. 1. 94. ( 4 ) THE learned Advocate for the petitioner contends that if we go by the date of occurrence appearing in the petition of complaint, it would appear that the date of the offence was 5. 3. 83 with the result that the cognizance was hopelessly barred by the limits of time. The entries against the "date of occurrence" in the petition of complaint read as "5. 3. 83 and on subsequent dates" and the Advocate for the petitioner submits that an offence punishable under section 406 IPC is not a continuing offence and as such if the offence was committed on 5. 3. 83. It could not be continued on any subsequent date. ( 5 ) THE learned Advocate for the complainant opposite party, on the other hand, contends that 5. 3. 83 represented only the date on which one of the several acts that constituted the offence of criminal breach of trust was done and if the petition of complaint be read as a whole, it would he clear that the offence was completed long after 25. 5. 90 and that the impugned cognizance was quite legal and valid in view of the fact that the said offence came to the knowledge of the complainant not earlier than 18. 12. 92 with the result that the impugned cognizance is within the limits of time by virtue of the provisions of section 469 (1) (b) of Cr PC. ( 6 ) THE case sought to be made out in the petition of complaint may, on a scrutiny of the petition of complaint, in substance, be stated as follows. 12. 92 with the result that the impugned cognizance is within the limits of time by virtue of the provisions of section 469 (1) (b) of Cr PC. ( 6 ) THE case sought to be made out in the petition of complaint may, on a scrutiny of the petition of complaint, in substance, be stated as follows. ( 7 ) THE Imdad Khani School of Sitar applied to Government of West Bengal for financial assistance for publication of a book and a grant of Rs. 5,400/- was made by the Government some time in March, 1983 on condition that the price of that book was not to exceed Rs. 30/- per copy and sixty copies shall have to he given to the Government free of cost. On 5. 3. 83, the governing body of the institute of which the complainant was the President took the resolution and entrusted the accused petitioner with the work of editing, printing, binding and selling of that book and submitting to the institute proper accounts thereof. The petitioner accused edited and printed the said book and got it bound. The accused was in full charge of as may as 1115 copies of such books, the publication of which was completed in the middle of June, 1984. The petitioner accused received the books from time to time on different dates and started selling them since 20. 6. 84 at a rate of Rs. 30/- per copy including sale commission and gave the accounts with duplicate copies of cash memos and paid the money accordingly up to 25. 5. 90. The accused petitioner sold 650 copies and gave 129 copies for free distribution with the consent of the governing body of the complainant institute. The accused petitioner gave account of only 779 copies of books and the remaining 336 copies are lying with the accused for which he gave no accounts or any satisfactory explanation. The accused petitioner being a member of the Governing body of the complainant institution, despite his full knowledge about the terms and conditions under which the Government of West Bengal rendered the financial assistance for publication of the book, enhanced the price of the said book to Rs. The accused petitioner being a member of the Governing body of the complainant institution, despite his full knowledge about the terms and conditions under which the Government of West Bengal rendered the financial assistance for publication of the book, enhanced the price of the said book to Rs. 50/- per copy by forging the original printed price of the book without the knowledge and consent of the governing body of the complainant institute and sold the books in the market keeping the entire sale proceeds for his own benefit and personal gain and gave no information or account to the governing body since after 26. 5. 90. The complainant came to know from witness No. 4 that he had purchased the said book at a price of Rs. 50/ -. The complainant purchased the book at Rs. 40/- after deduction of commission on the price that was found to be Rs. 50/ -. The complainant thereafter requested the petitioner accused to submit accounts for the remaining 336 copies of the books and asked him why he had enhanced the price of the book violating the terms and conditions regarding the price as agreed upon between the complainant institute and the Government of West Bengal. But the accused neither rendered any accounts nor gave any reply. ( 8 ) THE offence of criminal breach of trust as defined in section 405 of IPC requires the following essential ingredients, namely, (1) entrusting a person with property or with a dominion over property, (2) the person entrusted (a) dishonestly misappropriating or converting to his own use of that property, (b) dishonestly using or disposing of that property or wilfully suffering any other person so to do in violation-- (i) of any direction of law prescribing the mode in which such trust As to be discharged, (ii) or any legal contract, express or implied, made touching the discharge of such trust. Now, ordinarily, under section 469 of Crpc, the period of limitation in relation to an offence commences on the date of the offence but in case where the commission of offence is not known to the person aggrieved by the offence, it commences on the day on which such offence for the first time comes to the knowledge of such person. ( 9 ) ON a plain reading of the petition of complaint as a whole, it becomes clear that the offence was committed at least after and not earlier than 25. 5. 90 the date on which the petitioner gave the accounts for the last time and the commission of the offence came to the knowledge of the complainant for the first time at least nor earlier than 18. 12. 92 when he purchased a book in order to verify the authenticity of the information that he received from witness No. 4 regarding the sale of the book at Rs. 50/ -. ( 10 ) IN such view of the matter, I negative the contention of the learned advocate for the petitioner and hold that the cognizance is within the time extended by section 469 (1) (b) of Cr PC. The instant application under section 482 Cr PC is accordingly dismissed. Application dismissed.