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2016 DIGILAW 1172 (JHR)

Anil Kumar Modi v. State of Jharkhand

2016-07-29

RONGON MUKHOPADHYAY

body2016
ORDER : Heard Mr. S.L. Burnwal, learned senior counsel appearing for the petitioners and Mr. Ajit Kumar, learned, A.A.G. for the Respondent-State as well as Mr. P.P.N. Roy, learned senior counsel for the Respondent no. 2. 2. In this application petitioners have prayed for quashing the entire criminal proceeding in C.P. Case No. 228 of 2007 including the order dated 04.01.2010 passed by the learned Judicial Magistrate 1st Class, Giridih whereby and whereunder cognizance has been taken for the offence punishable under Section 406 of the Indian Penal Code. 3. It has been submitted by the learned senior counsel for the petitioners that the impugned order taking cognizance is being challenged basically on three points. Submission has been advanced that the order taking cognizance is barred in view of Section 468 of the Code of Criminal Procedure. The case under Section 406 IPC is not made out as there is no entrustment and in view of the fact that a civil suit had already been preferred by the complainant, initiation of criminal proceeding is bad in law. While elaborating the points learned senior counsel for the petitioners has submitted that so far as the question of limitation is concerned the occurrence is alleged to have been taken place some time back in the year 2006 whereas the cognizance has been taken on 04.01.2010 which is beyond the period of three years as envisaged under Section 468 of the Code of Criminal Procedure. Learned senior counsel submits that the delay could only be condoned when proper application is made before the learned Magistrate and after giving opportunity of hearing to the petitioners the same could have been condoned in terms of Section 473 of the Code of Criminal Procedure. As regards the non-applicability of Section 406 is concerned, it has been submitted that the defence witnesses which include the Registrar have categorically stated that there was no entrustment of money. In such circumstances, Section 406 of the Indian Penal Code is not made out against the petitioners. Learned senior counsel for the petitioners further submits that a suit for specific performance of contract has already been initiated by the complainant and since the complainant had taken recourse to an appropriate remedy available under law, no criminal proceeding under such circumstances could have been initiated against the petitioners. Learned senior counsel for the petitioners further submits that a suit for specific performance of contract has already been initiated by the complainant and since the complainant had taken recourse to an appropriate remedy available under law, no criminal proceeding under such circumstances could have been initiated against the petitioners. It has further been submitted that the allegation in the complaint petition, therefore, in view of the averments made in the complaint petition which reveals only existence of a civil dispute, the entire criminal proceeding deserves to be quashed and set aside. 4. At this Mr. P.P.N. Roy, learned senior counsel for the respondent no. 2 has referred to the order passed by this Court in Criminal Revision No. 655 of 2007 and has submitted that the petitioners had deliberately suppressed the fact that in Criminal Revision No. 655 of 2007, the order passed by the learned Magistrate under Section 203 Cr.P.C. was set aside and the matter was remanded back to the learned court below. It has been submitted that in Criminal Revision No. 655 of 2007 all the issues which have been raised by the petitioners have already been considered and only after considering the same having been satisfied that prima facie case has been made out against the petitioners the matter was remanded back to the learned Magistrate to proceed further in accordance with law. It has also been submitted that so far as the question of limitation raised by the learned senior counsel for the petitioners is concerned the same does not appear to be a good ground as the crucial date for computation of the period of limitation is the date of occurrence and the date of filing of the complaint case. Learned senior counsel for the respondent no. 2 further submits that the complaint petition itself reveals that an amount of Rs. 4,00,000/-had been taken by the accused persons but the sale deed was never registered. It has also been submitted that merely because a suit has been filed by the complainant the same cannot prevent the petitioners from being prosecuted in the criminal case as the allegation which has been made out is a civil wrong as well as a criminal offence. It has also been submitted that merely because a suit has been filed by the complainant the same cannot prevent the petitioners from being prosecuted in the criminal case as the allegation which has been made out is a civil wrong as well as a criminal offence. Learned senior counsel further submits that the charge was framed on 07.06.2012 and after framing of charge the witnesses both on behalf of the complainant as well as the accused have been examined and the case is fixed for argument. At this stage, it is not practicable to interfere in the criminal proceedings. 5. It appears that C.P. Case No. 228 of 2007 was preferred by the complainant and on conducting an inquiry the learned Magistrate vide order dated 25.06.2007 was pleased to dismiss the complaint case under Section 203 of the Cr.P.C. Against the said order of dismissal of the complaint petition, the respondent no. 2 had preferred Criminal Revision Application 655 of 2007 in this Court and vide order dated 17.08.2009 the order of the learned Magistrate was set aside and the case was remanded back to the learned Magistrate to proceed further in accordance with law. Pursuant to the same cognizance was taken and the trial as has been stated by the learned senior counsel for the respondent no. 2 had proceeded. 6. Adverting to the submission made by the learned senior counsel for the petitioners with respect to the delay in institution of the complaint case the sequence of event which has been narrated above does suggest that it was not within the domain of the complainant with respect to taking of cognizance on 04.01.2010. The complaint case was filed on 20.02.2007 and the alleged date of occurrence, which has been mentioned in the complaint petition itself, is of 23.03.2006, 24.03.2006 and 26.09.2006. It would thus mean that within a period of one year from the first date of occurrence, the complaint case has been instituted. The subsequent events which led to dismissal of the complaint petition and the domain of the learned Revisional Court could not have taken away the right of the complainant to prosecute the petitioners. Even otherwise the crucial date which has to be taken into consideration for calculating the period of limitation is the date of occurrence and the filing of the complaint case or the First Information Report as the case may be. Even otherwise the crucial date which has to be taken into consideration for calculating the period of limitation is the date of occurrence and the filing of the complaint case or the First Information Report as the case may be. In the case of Sarah Mathew versus Institute of Cardio Vascular Diseases by its Director Dr. K.M. Cherian and Others (2014) 2 SCC 62 [ : 2014(1) JLJR (SC)617], while affirming the judgment passed by the Hon’ble Supreme Court in the case of Japani Sahoo (2007) 7 SCC 394 para 51 it was held as follows:- “51. In view of the above, we hold that for the purpose of computing the period of limitation under Section 468 CrPC the relevant date is the date of filing of the complaint or the date of institution of prosecution and not the date on which the Magistrate takes cognizance. We further hold that Bharat Kele which is followed in Japani Sahoo lays down the correct law. Krishna Pillai will have to be restricted to its own facts and it is not the authority for deciding the question as to what is the relevant date for the purpose of computing the period of limitation under Section 468 CrPC.” 7. The fact of the case coupled with judicial pronouncement as indicated above goes to suggest that the complaint case was instituted well within the period of limitation and as such the contention of the learned senior counsel for the petitioners that only on an application filed under Section 473 of the Cr.P.C. and after hearing the accused the limitation could have been condoned is negated. 8. So far as non-applicability of Section 406 of the Indian Penal Code is concerned, reference has been made to the defence witnesses adduced by the petitioners in course of trial that the money was never handed over in their presence. The complaint petition reveals that an amount of Rs. 4,00,000/-was paid to the accused persons by the complainant. On inquiry, cognizance was taken by the learned court below on 04.01.2010 based on the materials available on record which included the complaint petition as well as the statement of the witnesses recorded under Section 202 of the Cr.P.C. The subsequent evidence of the witnesses in course of trial can best be appreciated by the learned trial court. On inquiry, cognizance was taken by the learned court below on 04.01.2010 based on the materials available on record which included the complaint petition as well as the statement of the witnesses recorded under Section 202 of the Cr.P.C. The subsequent evidence of the witnesses in course of trial can best be appreciated by the learned trial court. Even otherwise the trial is at the fag-end and is at the stage of argument. The question of the complainant having taken recourse to a civil remedy by filing a suit would not make the complaint petition or for that matter the allegations made in the complaint petition redundant as the issue with respect to prima facie involvement of the petitioner for commission of the offence has already been considered by this Court in Criminal Revision No. 655 of 2007. Even otherwise mere filing of a civil suit would not render a criminal prosecution defunct as an act may bear civil consequences as also a criminal offence. The perusal of the complaint petition does suggest that in spite of taking an amount of Rs. 4,00,000/-from the complainant, the land in question was never registered. 9. At this stage Mr. S.L. Burnwal, learned senior counsel for the petitioners refuted the contention of learned senior counsel for the respondent no. 2 with respect to the order passed in Criminal Revision No. 655 of 2007 which is based on a judgment of this Court in the case of Binod Kumar Newar versus The State of Jharkhand reported in (2007) 3 JLJR, 472 by submitting that the present case differs from the facts of the case under reference as in the earlier case admittedly there was an entrustment of money. The said submission of the learned senior counsel for the petitioner has already been dealt with in earlier paragraphs as also what has been relied upon. The complaint petition and the statement of the witnesses were before the Magistrate and such order has been challenged in the present application as in Criminal Revision No. 655 of 2007 and as has been stated above, a clear finding has been given with respect to the prima facie involvement of the petitioners in the commission of the offence. 10. In view of the discussions made hereinabove, I do not find any merit in this application and the same is accordingly, dismissed.