Delhi District Court
Smt. Naraini Devi Shukla vs State on 8 September, 2014
Criminal Revision No. 69/14
IN THE COURT OF SH. PULASTYA PRAMACHALA
ADDITIONAL SESSIONS JUDGE
SHAHDARA DISTRICT, KARKARDOOMA COURTS, DELHI
Criminal Revision No. : 69/14
FIR No. : 480/2007
Under Section : 420/406/34 IPC
Police Station : Mansarovar Park
Unique I.D. No. : 02402R0100042013
In the matter of :-
1. Smt. Naraini Devi Shukla
W/o. Sh. Surender Shukla,
R/o. H.No.1/1600, Mansarovar Park,
Shahdara, Delhi.
2. Sh. Sanjay Kumar Bajpai
S/o. Late Sh. Vishnu Dutt,
R/o. H.No.1/1600, Mansarovar Park,
Shahdara, Delhi.
3. Sh. Atul Shukla
S/o. Sh. Surender Shukla,
R/o. H.No.1/1600, Mansarovar Park,
Shahdara, Delhi.
4. Sh. Surender Kumar Shukla
S/o. Sh. Ram Kumar Shukla
R/o. H.No.1/1600, Mansarovar Park,
Shahdara, Delhi.
.....Revisionists
VERSUS
State. .... Respondent
Date of Institution : 01.04.2013
Date of receiving the case in this court : 19.05.2014
Date of reserving order : 29.08.2014
Date of pronouncement : 08.09.2014
Decision : Revision petition is allowed.
Page 1 of 9 (Pulastya Pramachala)
Additional Sessions Judge (Shahdara)
Karkardooma Courts, Delhi
Criminal Revision No. 69/14
ORDER
1. This revision petition is directed against the impugned order dated 23.01.2013 passed by the trial court in a case titled as State v. Surender Kumar Shukla & Ors., bearing FIR no.480/07, under Section 406/420/34 IPC, Mansarovar Park police station. Vide impugned order, the trial court framed charges against petitioner no.4 for offence under Section 406 IPC read with Section 120-B IPC and against all four petitioners for offence under Section 120-B IPC.
2. Briefly stated, the relevant facts of this case are that a complaint was made by complainant namely Sh. Munna Lal on 09.09.2007 alleging that accused Surender Shukla was residing in house no. 1/2351, Ram Nagar, Delhi along with his family for last 35 years. He alleged that for last 35 years accused Surender Shukla had been accepting money from number of persons in different ranges of amount, towards deposit in different committees (chit fund). Complainant along with his two sons had also invested their money in the committee with the accused Surender Shukla and Naraini Devi Shukla in the year 2006 and they had deposited amount of Rs.12,50,000/- with the accused Surrender. Accused Surender and Naraini Devi Shukla used to accept the deposit against issuance of receipts. On 11.04.2007, complainant came to know that accused Surender Shukla, Naraini Shukla and their son namely Guddu had eloped along with invested money, after locking their house. Complainant also came to know that the accused persons had cheated other investors also. On the basis of such complaint, FIR was registered under Section 420/406/34 IPC. The complainant had also taken name of accused Sanjay, who is brother-in-law of Page 2 of 9 (Pulastya Pramachala) Additional Sessions Judge (Shahdara) Karkardooma Courts, Delhi Criminal Revision No. 69/14 accused Surender Shukla, to be one of the conspirator behind such crime. Police kept on investigating the case since 09.09.2007 up to 10.04.2010. Thereafter, a charge sheet for offences under Section 406/420/34 IPC was filed against all four accused persons (petitioners herein) before the court of ld. MM on 05.07.2010. Ld. MM took cognizance of all the offences and proceeded further. Thereafter, vide impugned order charges were framed against all four petitioners.
Arguments of petitioners
3. Petitioners have challenged the impugned order raising following plea :-
(a) The offence under Section 406 IPC is punishable with imprisonment up to three years or fine and therefore, the maximum limitation period to take cognizance of such offence would be three years from the date of offence or from the date when such offence came to knowledge of the complainant. In the present case, as per allegations made by the complainant, he came to know about such offence taken place on 11.04.2007 and therefore, ld. MM could not have taken cognizance for offence under Section 406 IPC after three years from 11.04.2007. Still the cognizance was taken on 05.07.2010, probably on the basis of addition of Section 420 IPC in the charge sheet. However, there was no case of Section 420 IPC and the prosecution could not have extended the limitation by including this offence in the charge sheet. Since the cognizance of offence under Section 406 IPC was time bared, therefore the trial court should have discharged all the accused persons.
(b) Even otherwise, no case for offence under Section 406 IPC is Page 3 of 9 (Pulastya Pramachala) Additional Sessions Judge (Shahdara) Karkardooma Courts, Delhi Criminal Revision No. 69/14 made out because there was neither any demand made by the complainant, nor any refusal on the part of accused persons to return the amount. The complainant did not make allegations of enturstment of money. Rather it was an investment and the money given by the complainant was invested for business purposes. Therefore, no case of criminal breach of trust is made out.
(c) Complainant did not explain the role of other accused persons except Surender Shukla. Accused Naraini Devi Shukla only collected the money and there is no specific role of accused Sanjay and Guddu. There is no allegation of inducement against other three accused persons except accused Surender. There is no evidence on the record to show the source of amount, which were allegedly paid to the accused persons.
(d) For the purpose of conspiracy, there has to be meeting of mind, but there are no allegations against the accused persons for playing any active role and the allegations are more or less based upon the presumption raised by the complainant, being influenced by relationship of co-accused persons with accused Surender.
(e) The trial court did not deal with the question of limitation nor did give any reason to attract Section 406 IPC.
Arguments of prosecution :-
4. Ld. CPP could not challenge the question of limitation raised on behalf of petitioners, however, he submitted that since Section 420 IPC was also mentioned right from the beginning i.e. from the time of registration of FIR, therefore, there was no reason for the prosecution to seek condonation of delay.
Page 4 of 9 (Pulastya Pramachala)Additional Sessions Judge (Shahdara) Karkardooma Courts, Delhi Criminal Revision No. 69/14 Findings :-
5. During arguments, ld. Counsel for petitioners referred to several case laws, which are Vipin Kalra & Anr. v. State, 2002 (I) AD Delhi 900, State v. Vijay Kataria, C.R.P. 448/11, decided by High Court on 14.08.2014, C.H, Satyanarayan v. State, C.R.P. 114/05, decided by High Court of Delhi on 06.03.2012 and Arun Vyas & Ors. v. Anita, AIR 1999 SC 2071.
6. I shall start with the question of limitation as raised by ld. Counsel.
There is no doubt that as per Section 468 Cr.P.C. the maximum limitation period to take cognizance of offence under Section 406 IPC was three years. As per section 469 (1) (b) Cr.P.C. the period of three years began in this case from 11.04.2007, when the complainant came to know about elopement of the accused persons with the money of a number of persons including complainant. Thus, cognizance of Section 406 IPC could not have been taken on 05.07.2010, without resorting to Section 473 Cr.P.C. However, since the charge sheet also mentioned Section 420 IPC, therefore, neither prosecution sought condonation of delay nor ld. MM had any occasion to deal with the question of limitation. But the trial court did not find disclosure of offence under Section 420 IPC against any of the accused persons, on the basis of allegation made by the complainant. Therefore, it is found that Section 420 IPC added by the IO and prosecution was established to be a meaningless exercise. In the case of Arun Vyas (supra), Supreme Court observed that :-
"Where the Magistrate finds that taking cognizance of the offence itself was contrary to any provision of law, like Section 468 Cr.P.C, the complaint being barred by Page 5 of 9 (Pulastya Pramachala) Additional Sessions Judge (Shahdara) Karkardooma Courts, Delhi Criminal Revision No. 69/14 limitation, so he cannot frame the charge, he has to discharge the accused. Indeed in a case where the Magistrate takes cognizance of an offence without taking note of Section 468 Cr.P.C, the most appropriate stage at which the accused can plead for his discharge is the stage of framing the charge. The Magistrate will be committing no illegality in considering that question and discharging the accused at the stage of framing of charge, if the case so justified."
7. The aforesaid case law makes it amply clear that the ld. MM had the power as well as the duty to consider the question of limitation, while passing order on charge.
8. In the case of Vipin Kalra, Vijay Kataria as well as C.H. Satyanarayan (supra), Delhi High Court observed that merely by adding a Section to fill up the lacuna in the limitation, the case of prosecution would not go beyond the purview of Section 468 Cr.P.C. The Court found that the sustainable charges in those cases were time barred on the date when cognizance was taken by the trial court and therefore, the charges framed by the trial court were set aside.
9. In the present case as well, it is well apparent that in the charge sheet, there is no specific reason given to include Section 420 IPC along with Section 406 IPC. Section 406 and 420 IPC cannot go together on the basis of same allegation, until unless there are different parts of the alleged facts and one part of such facts constitute Section 406 IPC and other part of such facts constitute Section 420 IPC. However, it would be possible probably in rare situations. I say so because the requirement of these two Page 6 of 9 (Pulastya Pramachala) Additional Sessions Judge (Shahdara) Karkardooma Courts, Delhi Criminal Revision No. 69/14 provisions are destructive of each other. Section 406 IPC requires voluntarily entrustment of property to the accused and at that time there may not be a dishonest intention on the part of accused, while accepting such entrustment. However, in the case of Section 420 IPC, the element of dishonest intention on the part of accused has to be there while accepting any money from the complainant in as much as delivery of such property to the accused has to be an outcome of deception played by accused on the complainant.
10. The facts of the present case did not talk about the element of deception and therefore, there could not have been any valid ground to include Section 420 IPC since beginning. In that situation, the limitation period could not have been extended for the purpose of taking cognizance of offence under Section 406 IPC.
11. Hence, I do find that the cognizance of Section 406 IPC taken in this case was bad in the eyes of law, because of expiry of limitation period and because the trial court did not take cognizance invoking Section 473 Cr.P.C. In these circumstances, the inevitable conclusion would be that the impugned order dated 23.01.2013 is also not sustainable.
12. However, in the case of Arun Vyas (Supra), Supreme Court made further observations regarding the importance of provision under Section 473 Cr.P.C. and regarding the duty of the trial court to consider Section 473 Cr.P.C while deciding the question of bar of limitation raised under Section 468 Cr.P.C. The Supreme Court observed that :-
"What the court has to see is interest of justice. The interest of justice demands that the court should protect the oppressed and punish the oppressor/offender. It is, Page 7 of 9 (Pulastya Pramachala) Additional Sessions Judge (Shahdara) Karkardooma Courts, Delhi Criminal Revision No. 69/14 therefore, appropriate for the courts, in case of delayed complaints, to construe liberally Section 473 Cr.P.C. in favour of a wife who is subjected to cruelty if on the facts.............. When the conduct of the accused is such that applying rule of limitation will give unfair advantage to him or result in miscarriage of justice, the court may take cognizance of offence after the expiry of period of limitation in the interests of justice. This is only illustrative and not exhaustive."
13. The Supreme Court in that case directed the Magistrate to consider the question of limitation taking note of Section 473 Cr.P.C accordingly.
14. In the present case, I find that the allegations are serious i.e. regarding criminal breach of trust of huge amount. I also find from the record that the accused Surender Shukla and Atul Shukla had also deposited Rs.3 lac. before High Court of Delhi at the time of seeking anticipatory bail.
15. Therefore, it is necessary that the trial court decides the question of limitation for taking cognizance or refusing the same. The impugned order is accordingly, set aside and matter is remanded back to the trial court to decide the question of bar of limitation keeping in view Section 468 as well as 473 Cr.P.C. The further course of action would depend upon the decision taken by the trial court. It is expected that the trial court shall summon all the IOs of this case to seek reasons for delay in filing this charge sheet.
16. At the same time, I find that even for the investigating agency as well as for prosecution branch, there is a need for introspection so as to find out that whether this charge sheet could have been filed Page 8 of 9 (Pulastya Pramachala) Additional Sessions Judge (Shahdara) Karkardooma Courts, Delhi Criminal Revision No. 69/14 earlier and to find out that whether there was sufficient reasons for delay in conclusion of the investigation. Accordingly, matter is referred to ld. Commissioner of Police as well as ld. Director of Prosecution to make their respective inquiry in respect of the role played by IO as well as prosecution, to find out the justification in delay in filing of this charge sheet and to invoke Section 420 IPC. In the same process, it is also expected that the quality of investigation done would be also analyzed by both agencies and appropriate steps/action would be taken.
17. Revision petition is allowed and matter is remanded back to the trial court to hold proceedings as per observation made herein above.
18. All petitioners are directed to appear before the trial court on 12.09.2014 at 02:00 PM.
19. Copy of this order be sent to the trial court along with TCR through ld. CMM, Shahdara, Karkardooma Courts, Delhi.
File of revision be consigned to record room, as per rules Announced in the open court (PULASTYA PRAMACHALA) today on 08.09.2014 Additional Sessions Judge (Shahdara) (This order contains nine pages) Karkardooma Courts, Delhi Page 9 of 9 (Pulastya Pramachala) Additional Sessions Judge (Shahdara) Karkardooma Courts, Delhi