Calcutta High Court
Dinabandhu Banerjee vs Nandini Mukherjee on 15 June, 1993
Equivalent citations: 1994CRILJ422
ORDER Gitesh Ranjan Bhattacharjee, J.
1. This revisional application has been made for quashing the proceeding, being No. 1565C/92 (T.R. No. 215/92, T.R. No. 86/92) pending in the 3rd Court of, Judicial Magistrate, Howrah. The said proceeding was started by a complaint filed by the complainant opposite party herein on 19th September, 1992 against 3 accused persons. In the said criminal proceeding cognizance was taken and process was issued against the accused persons in respect of offences under Sections 403/405/406, IPC. The petitioner in this criminal revision is the accused No. 2. The accused Nos. 1 and 3 are his son and wife respectively. The complainant opposite party is the wife of the accused No. 1. They were married in April, 1986. The petitioner is a resident of Howrah. The accused No. 1 took his wife, the complainant to Bombay sometime in August, 1987 and they stayed together there and subsequently the complainant returned from Bombay allegedly due to the misbehaviour of the accused and since then she has been staying in her father's house at Howrah. It is her case that at the marriage she received gifts of articles and ornaments, etc. from her parents as well as from the accused persons and she entrusted those articles and ornaments, etc. to the accused persons and subsequently she was allowed to take away her ornaments which she received from her parents but the ornaments which she received from the accused persons and which also constitute her stridhan property as well as the other articles she received as gift at her marriage remained with the accused persons. The other articles mentioned above include furniture, etc. All those articles remained in a room in the Howrah house of the accused persons when the complainant and her husband went to Bombay. As I have already mentioned the complainant filed the petition of complaint for offences Under Sections 403, 405 and 406, IPC. in respect of the articles and the ornaments which remained with the accused persons. The accused persons however were agreeable to return those articles and in fact there is correspondence on record regarding the matter. But of course, it is the contention of the accused persons that whatever ornaments belonged to her or were given to her had been taken away by the complainant and that the further items of ornaments which the complainant claims to have been given to her by the accused persons at the time of or in connection with the marriage were not gifted to the complainant by the accused persons as alleged nor do those items of ornaments belong to the complainant. It is submitted on behalf of the petitioner accused that the complainant is laying false claim over the ornaments which belong to the accused persons and the members of their family. It is also the case of the accused persons that some items of jewellery of the complainant's husband are rather lying with the complainant. It may be mentioned here that in this criminal proceeding a search warrant was issued at the instance of the complainant and the articles belonging to her have been seized and taken away in execution of the search warrant. Virtually the dispute is mainly confined now to certain items of ornaments which according to the complainant's case were gifted and given to her by the accused persons, but the accused persons deny that those items were gifted to her by them.
2. Sometime in August, 1989 the accused No. 1 filed a matrimonial suit at Bombay against the complainant for dissolution of the marriage on the ground of desertion and cruelty and ultimately the said suit was decreed and the marriage between the complainant and the accused No. 1 was dissolved by that decree in January, 1990. It is however the contention of the complainant that the said decree was obtained fradulently by the accused No. 1 behind the back of the complainant. The complainant also however filed a matrimonial suit at Howrah in December, 1989 for dissolution of the marriage on the ground of desertion and cruelty, but that suit has been dismissed on the ground that the marriage between the parties has already been dissolved by the decree of the Bombay Court. An appeal however at the instance of the complainant wife is pending in this Court against the order of dismissal of the Howrah suit. In the said Howrah suit the wife also filed an application under Section 27 of the Hindu Marriage Act for return of her Stridhan articles, ornaments and jewellery including those stated to have been presented by the accused persons. The complainant in May, 1988 also filed an application under Section 125, Cr. P.C. for maintenance against her husband the accused No. 1 and on that application she has obtained an order of maintenance at the rate of Rs. 500/- per month.
3. The petitioner accused No. 2 has challenged the criminal proceeding under Sections 403, 405 and 406, IPC. on several grounds, such as, limitation, absence of mens rea, civil nature of the dispute, etc. I take up the question of limitation at the first instance. Section 403, IPC provides for punishment for dishonest misappropriation of moveable property. The said section says that whoever 'dishonestly misappropriates or converts to his own use' any moveable property, shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both. Section 405, IPC defines criminal breach of trust. The relevant portion of Section 405, IPC runs thus :
Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other persons so to do, commits 'criminal breach of trust.
Section 406, I.P.C. is the penal section which provides that whoever commits criminal breach of trust shall be punished with imprisonment of either description for a term which may extend to three years or with fine or with both. The period of limitation prescribed for taking cognizance in respect of an offence of the criminal breach of trust for which the maximum punishment is imprisonment for three years is ordinarily three years from the date of the offence under Section 468 read with Section 469 of the Code of Criminal Procedure. In this case the complaint was filed on 19th September, 1992. It is the contention of the petitioner accused that the cognizance taken on the basis of the said complaint on the 19th September, 1992 is bad in law as the proceeding was barred by limitation under Sections 468 and 469 Cr. P.C. inasmuch as even according to the allegations made in the complaint dishonest misappropriation and criminal breach of trust punishable under Sections 403 and 406, I.P.C. were committed, if at all, in March, 1988 as described in paragraphs 10, 11 and 12 of the petition of complaint and therefore the complaint should have been filed within three years from March, 1988, that is, within March 1991 but as a matter of fact the complaint was filed in September, 1992, long after the expiry of the period of limitation and as such the proceeding in the court below is bad in law and is liable to be quashed. The contention of the complainant opposite party in reply to the petitioner's plea of limitation is that the offence of dishonest misappropriation or for that matter, criminal breach of trust took place in December, 1991 as averred in paragraph 17 of the petition of complaint and not in March, 1988 and as such the complaint has been filed well within the period of limitation. It is also the contention of the! complainant opposite party that the offence of dishonest misappropriation or for that matter, criminal breach of trust is a continuing offence and that being so under Section 472, Cr. P.C. a fresh period of limitation begins to run at every moment of the time during which the offence continues. It is also the alternative argument of the learned Advocate for the opposite party that the subsequent willingness of the accused persons to return the articles of the opposite party as conveyed through the letter of the Advocate in October, 1991 furnished a fresh cause of action or for that matter, a fresh starting point of limitation for bringing an action for the offences punishable under Sections 403 and 406, I.P.C.
4. Now let us take up the question as to when, according to the averments made in the petition of complaint, the offences punishable under Sections 403 and 406, I.P.C. were committed. In paragraph-10 of the petition of complaint it is alleged that on the 30th January, 1988 the complainant wrote to the accused No. 2 requesting him to take her back or to return the household articles fully described in annexure-A. In paragraph-11 of the complaint it is stated that as no response to the said letter dated the 30th January, 1988 was received, the complainant again wrote to the accused on 8th March, 1988 requesting him to return the said articles as also the valuable moveables, meaning, the gold and jewellery items. Then comes the crucial paragraph, namely, paragraph No. 12 of the complaint wherein it is alleged that as there was no response even to the said letter dated the 8th March, 1988 the complainant telephoned the accused Nos. 2 and 3 in March, 1988 and specifically asked them to return both the household articles and the gold and jewellery items, but the accused Nos. 2 and 3 refused and they in fact passed on the receiver of the telephone to the accused No. 1 and then the accused No. 1 abused the complainant maintaining that the complainant 'had no right over the gold and jewellery presented by his family and challenged her to go to Court and also refused to return the household articles described in annexure-A'. It is the argument of the learned Advocate for the petitioner that in view of the said clear averments made in paragraph-12 of the complaint the commission of the alleged offence of dishonest misappropriation or for that matter, criminal breach of trust took place, if at all, in March 1988 when allegedly the accused persons not only refused to return the articles and the gold and jewellery items presented by their family but also asserted in unequivocal terms that she had no right over the gold and jewellery presented by their family and also challenged her to go to court. It is the contention of the learned Advocate for the petitioner that the period of limitation of three years therefore started to run from March, 1988 and expired long before the petition of complaint was filed in September, 1992. On the other hand, the learned Advocate for the opposite party submitted that nothing in paragraphs 10, 11 and 12 of the complaint constituted the commission of the offence of dishonest misappropriation or criminal breach of trust inasmuch as mere refusal to return the entrusted property does not constitute any such offence in the absence of any volitional act indicating misappropriation of the concerned property. No such volitional act, it is argued, is indicated or disclosed by the averments contained in the said paragraphs 10, 11 and 12 and therefore there is no question of starting of the period of limitation from March, 1988 on the basis of the averments made in the said paragraphs. It is further argued by the learned Advocate for the opposite party that the ingredients of the offences punishable under Sections 403/406, I.P.C. were divulged for the first time in December, 1991 as pleaded in paragraph 17 of the petition of complaint. In the said paragraph-17 it is stated that in December, 1991 the complainant made further demand through her cousin Mr. Debapriya Banerjee in respect of her personal effects lying in the Howrah home of the accused persons but the accused persons again refused to give back the complainant's personal effects and in fact proceeded to dishonestly misappropriate or convert to their own use or dishonestly use or cause to be used or dispose of the articles including gold ornaments and jewellery. I have carefully considered the matter and I find that there is very little distinctive feature in the averments made in the said paragraph-17 for which it could be said that the alleged offence of dishonest misappropriation or criminal breach of trust in respect of the concerned articles, ornaments and jewellery items was committed on the occasion stated to have happened in December, 1991 as alleged in the said paragraph-17. The very averments made in paragraph-17 describe the demand made on that occasion as further demand and the refusal thereof in term of the language 'again refused'. It is thus evident that both the demand and the refusal stated to have been made on that occasion in December, 1991 were nothing new but were only repetition of what had allegedly happened on earlier occasion. Therefore, it is not understood what new volitional act is there in paragraph-17 so as to warrant a finding that the alleged offence of dishonest misappropriation or criminal breach of trust was committed on that occasion in December, 1991 and not on any earlier occasion in respect of the concerned properties. The other part of the allegations made in paragraph-17 of the complaint is that the accused persons 'proceeded to' do certain things described therein -- and that too alternatively as marked by the repeated use of the word 'or' --in the language of the concerned portion of Section 405, I.P.C. doing of which would constitute an offence defined in the said section. It is needless to mention that 'to do' a thing and to 'proceeded to do' such thing are not the same. While the doing of the thing may constitute an offence, mere proceeding to do such thing will not constitute the offence and would rather indicate only a preparation to do such thing or a preparation to commit the offence. It is therefore evident that apart from refusal to return the property on demand there is nothing additional in paragraph-17 of the complaint on the basis of which it could be said that the offence of dishonest misappropriation or criminal breach of trust was committed for the first time on that occasion in December, 1991 and not on any earlier occasion in respect of the concerned property. On the other hand paragraph-17 even when taken at face value, would only indicate, an inclination or disposition on the part of the accused persons to commit the alleged offence but such inclination or disposition amounting at best to preparation is not the same as commission of the offence and that being so it has to be held that if para-12 does not come to its rescue the complaint itself does not disclose any commission of the offence of dishonest misappropriation or criminal breach of trust and what is rather projected, at face value, is only an inchoate state of affairs indicating at best an inclination, disposition or preparation to commit the offences punishable under Sections 403 and 406 I.P.C. and not the actual commission thereof. Therefore paragraph-17 of the complaint, which has been relied upon by the learned Advocate for the opposite party for the purpose of marking the starting time of the countdown of limitation not only does not help him but also tends to operate as a boomerang leading to a position where it may have to be held that the complaint does not at all disclose actual commission of the offence alleged and therefore the same must be quashed. But even without making any such extreme finding, it is not difficult to see that in view of the averments made in paragraphs 10, 11 and 12 and particularly in paragraph-12 of the complaint the offence of dishonest misappropriation or for that matter, criminal breach of trust occurred, if at all, in March 1988.
5. I have already mentioned that the learned Advocate for the opposite party argued that for constituting an offence of dishonest misappropriation or criminal breach of trust, mere refusal is not enough and there must be some volitional act indicating the commission of such offence. In this connection, the learned Advocate for the opposite party also attracted my attention to the illustrations appearing under Sections 403 and 405, I.P.C. He has also referred to a very old decision of the Madras High Court, to be precise, a decision of 1907 reported in the (1907) 6 Cri LJ 330 (In Re : Adhinarayana Iyer). In that case one A left a wooden box on the pial of the accused promising to remove it later on and subsequently when he wanted to remove the box the accused would not allow him to do so and called upon him to pay what he owed him. The Madras High Court in that case took note of the fact that there was no evidence in regard to the alleged trust with reference to the box in respect of which the offence of criminal breach of trust had been brought, nor was there any evidence whatsoever to show any disposal or application of the property such as was required in case of criminal breach of trust, and the court therefore opined that the refusal of the accused to allow the removal of the box from his house unless the debt claimed by him to be due was paid obviously did not amount to a criminal offence. As we have seen the facts of that case are clearly distinguishable from the facts of our present case. In the said case the accused neither denied the title of A to the concerned box nor did he claim any title of his own to the same. There was also no blanket refusal to return the box ever. The demand was that the box would be returned on payment of the outstanding dues. There was obviously no complexional change in the character of possession of the box by the accused.
6. The learned Advocate for the opposite party also relied on the decision of the Supreme Court in Mohd. Sulaiman v. Md. Ayub, . In that case the appellant hired a motor from Modern Electrical Works on a rent of Rs. 40/- per month. While the motor remained in the use of the appellant hire-charges were paid by him for ten months and thereafter allegedly no hire charges were paid. The appellant then wrote a letter to the said Motor Electrical Works stating that he had purchased the motor in question for Rs. 600/-on condition that the same would be tried for 3 months, and if it was found satisfactory the money would be paid and the purchase completed, etc. and the appellant claimed that he had paid Rs. 620/- in all and thus the purchase had been completed and requested the Motor Electrical Works to give him a slip saying that the motor had been ;sold to the appellant and no further money was due. But the Motor Electrical works inter alia denied any such agreement and ultimately filed a complaint alleging that the appellant had committed criminal breach of trust and was therefore guilty under Section 406, I.P.C. It was held by the Supreme Court that the motor was handed over to the appellant for his own use even according to the case of the owner and the letter showed no change in the use of the motor and therefore it could not be said that by merely writing that letter the appellant dealt with the property in such manner as would amount to its misappropriation or conversion to his own use. It was further held that Section 405, I.P.C. contemplated something being done with respect to the property which would indicate either misappropriation or conversion or its use or disposal in violation of the contract, express or implied, and that the use of the motor was the same before the letter as well as after it and thus nothing was done with respect to the use of the property which was not in accordance with the hiring agreement between the parties and therefore it could not be said that there was misappropriation or conversion of the property or its use or disposal in violation of the contract and further that the letter merely raised a dispute of civil nature between the parties and there was no question of any criminal breach of trust with respect to the motor on the basis of that letter. We thus find that in the said case also the appellant raised certain plea and requested the owner of the motor, in view of the facts alleged by him, to issue a slip saying that the motor had been sold to him and no further money was due. Obviously so long the certificate or slip, as requested by the appellant, was not issued by the owner stating that the owner had sold the property to the appellant and that nothing was due, there was no question of any complexional change in the character of the possession of the motor by the appellant and in that background the Supreme Court held that no offence of misappropriation or conversion of the property or criminal breach of trust was committed. In our present case however in view of and according to the averments made in paragraph-12 of the complaint there was not only distinctively a volitional act on the part of the accused persons but also a complexional change in the character of possession of the concerned properties as soon as the accused persons not only refused to return the properties as demanded by the complainant, but also simultaneously declared in unequivocal terms that the complainant had no right over the same and also challenged her to go to court. The conduct of the accused persons in that respect is not an evasive or stale refusal to part with the property but is rather a refusal accompanied by asserted denial of any right or title of the complainant to the concerned properties with a challenge thrown at her to approach the court. Such unequivocal and assertive declaration denying the complainant's right and title to the properties constitutes a volitional act on the part of the accused persons necessarily changing the character and complexion of possession and thereby simultaneously converting the properties to their own use and purposes according to their will and volition. The commission of the offence of criminal misappropriation or for that mater, criminal breach of trust is complete, if at all, with what is stated in para-graph-12 of the complaint to have happened on that occasion in March, 1988 and therefore the period of limitation must also start running from that point of time. It is to be noted here that while examining the question of limitation I have kept out of consideration the question as to whether the complaint taken as a whole would disclose a dispute of civil nature only.
7. The petition of complaint was filed long after the expiry of three years from March, 1988. The learned Court below took cognizance thereon without any prayer under Section 473, Cr. P.C. for extension of the period of limitation or without recording that he was satisfied on the facts and circumstances of the case that the delay had been properly explained or that it was necessary so to do in the interest of justice. In the circumstances it must be held that the cognizance taken is bad in law on ground of limitation. The argument advanced on behalf of the opposite party that the fact that the accused No. 1 by his letter dated the 8th October, 1991 requested the opposite party to take back her articles and also to return his articles would revive the cause of action for filing the complaint or would give rise to a fresh cause of action is of no moment in considering the question whether the cognizance taken on the complaint is bad in law as being barred by limitation. In this connection, it is also to be mentioned that the said letter dated the 8th October, 1991 was written when the period of limitation for filing prosecution or for that matter for taking cognizance on the basis of such prosecution had already expired. Whatever may be the other consequences of the said letter or whatever may be the right of the complainant for taking recourse to legal remedy on the basis of that letter, this is however certain the said letter will not give rise to a fresh cause of action for starting prosecution after the expiry of the period of limitation which had started running in March, 1988 in view of the particular facts and circumstances of the case.
8. The next question is whether the offence of dishonest misappropriation or for that matter, criminal breach of trust in respect of which the complaint against the accused persons has been filed in this case is a continuing offence, because in case the offence is a continuing offence a fresh period of limitation begins to run at every moment of the time during which the offence continues as provided in Section 472, Cr. P.C. In this connection the learned Advocate for the opposite party relied upon the decision of the Supreme Court in State of Bihar v. Deokaran Nenshi, . Paragraph-5 of the said decision runs thus :--
A continuing offence is one which is susceptible of continuance and is distinguishable from the one which is committed once and for all. It is one of those offences which arises out of a failure to obey or comply with a rule or its requirement and which involved a penalty, the liability for which continues until the rule or its requirement is obeyed or complied with. On every occasion that such disobedience or non-compliance occurs and recurs, there is the offence committed. The distinction between the two kinds of offences is between an act or omission which constitutes an offence once and for all and an act or omission which continues and therefore, constitutes a fresh offence every time or occasion on which it continues. In the case of a continuing offence, there is thus the ingredient of continuance of the offence which is absent in the case of an offence which takes place when an act or omission is committed once and for all.
In the said case the question arose whether the failure to furnish annual return for the preceding year by the prescribed date namely, the 21st of January is a continuing offence or not under Section 66 of the Mines Act read with Regulation 3. The Supreme Court held that the infringement consists in the failure to furnish return on or before the 21st January and the infringement, therefore, occurs on 21st January of the relevant year and is complete on the owner failing to furnish the annual return by that date. Accordingly the Supreme Court held that the said offence was not a continuing offence. It was however clarified by the Supreme Court in the later decision of Bhagirath Kanoria v. State of M. P., that the decision in State of Bihar v. Deokaran Nenshi (1973 Cri LJ 347) (SC) (supra) to the effect that failure to furnish return before the due date is not a continuing offence must be confined to cases of failure to furnish return and it cannot be extended to cases where the contravention is not of a procedural or formal nature and goes against the very grain of the statute under consideration. The question involved in the case of Bhagirath Kanoria v. State of M.P. (supra) was whether non-payment of contribution to the Provident Fund within the prescribed date in compliance with the provisions of the Employees' Provident Fund and Family Pension Act, 1952 and the Scheme framed thereunder constituted a continuing offence. The Supreme Court after considering some English and Indian decisions on the point held that such offence constituted a continuing offence. The Supreme Court in paragraph-19 in Bhagirath Kanoria (supra) observed thus :
The question whether a particular offence is a continuing offence must necessarily depend upon the language of the statute which creates that offence, the nature of the offence and above all the purpose which is intended to be achieved by constituting the particular act as an offence. * * * * The appellants were unquestionably liable to pay their contribution to the Provident Fund before the due date and it was within their power to pay it as soon after the due date had expired as they willed. The late payment could not have absolved them of their original guilt but it would have snapped the recurrence. Each day that they failed to comply with the obligation to pay their contribution to the Fund, they committed a fresh offence. ****** Such offences must be regarded as continuing offences, to which the law of limitation cannot apply".
9. The subsequent Supreme Court decision in G. Patel Volcart Ltd. v. Dundayya G. Hiremath, also took note of the fact that State of Bihar v. Deokaran Nenshi (1973 Cri LJ 347) (SC) (supra) was explained by the Supreme Court in Bhagirath Kanoria v. State of M. P. (supra). The Supreme Court in G. Patel Volcart Ltd. (supra) held that an offence under Section 630 of the Companies Act was a continuing offence. Under Section 630 of the Companies Act it is an offence to wrongfully obtain possession of any property of a company and is also an offence to wrongfully withhold it or to knowingly apply it to purposes other than the authorised purposes. It is therefore evident that the very language of the Act makes the offence a continuing one, and the Supreme Court in the said decision also observed that the offence continues until the property wrongfully obtained or wrongfully withheld or knowingly misapplied is delivered up or refunded to the company. It was accordingly held that the offence under Section 630 of the Companies Act was a continuing offence.
10. Now let us look to the language of the relevant parts of Section 403 and Section 405 of the Indian Penal Code for ascertaining whether the offence of dishonest misappropriation or for that matter, criminal breach of trust is a continuing offence. Dishonest misappropriation or conversion to one's own use is the crux of the offence of dishonest misappropriation punishable under Section 403, I.P.C. Now, the dictionary meaning of the word 'misappropriate' is 'to put to a wrong use; to take dishonestly for oneself (vide, Chambers Twentieth Century Dictionary). The dictionary meaning of the word 'appropriate' is 'to make to be the private property of anyone, to take to oneself as one's own' (ibid). It is thus evident that every wrong use will not necessarily be misappropriation. Misappropriation rather marks the point where the transition takes place from non-offending possession, control or use to offending or dishonest possession, control or use. It is this transitional phenomenon and this process of transformation which converts the possession or use of a property to dishonest misappropriation. Once this transitional phenomenon, that is, the process of transformation is complete and dishonest misappropriation takes place the subsequent wrong user of the property or the continuance of such wrong user is not a part of the phenomenon of misappropriation although such continuance of user or repetition of user may be also morally and legally wrong. But then such subsequent wrong user or continuance of wrong user or retention of the property wrongfully will not be a continuance or repetition of the offence of dishonest misappropriation as defined in Section 403. The same feature of transitional phenomenon of converting the complexion of the possession or user marks the precipitation and completion of the offence of criminal breach of trust as defined in Section 405. By definition the offence of dishonest misappropriation or for that matter, criminal breach of trust must be tainted at the point of its commission by a process of transformation, by a transitional phenomenon converting the complexion of the possession, user or dealing of the property and once that transitional phenomenon is over and the conversion is complete by answering at that amount the definition of dishonest misappropriation or criminal breach trust as contained in the relevant section of the Indian Penal Code, the subsequent continuance of the possession, user or dealing of the property even if it is morally wrong and legally untenable will be lacking the transitional factor of contemporaneous conversion of the complexion of the user from one type to a different type and therefore it cannot be said that the subsequent user is a continuing offence of the same type which was initially committed in changing the complexion of user. In order to constitute a continuing offence the acts complained of must at every moment of continuance reflect all the ingredients necessary for constituting the offence. As we have seen conversion or transitional phenomenon of complexional change of the user being one of the salient ingredients of the offence of dishonest misappropriation or for that matter, criminal breach of trust, such transitional phenomenon obviously cannot recur or endure after the conversion or change of complexion of the user is complete. In the circumstances it cannot be said that retention or subsequent dealing of the misappropriated property, although wrong, will constitute any such offence as stated above because the definition of such offence does not make such wrongful subsequent use a continued part or a repetition of the offence. I have therefore no hesitation to hold that the offence of dishonest misappropriation defined in Section 403 or the offence of criminal breach of trust defined in Section 405, I.P.C. is not a continuing offence because such offence, by definition, takes place where an act is committed once and for all.
11. In this connection, the learned Advocate for the petitioner has referred to the decision of the Supreme Court in State of Punjab v. Sarwan Singh, where the Supreme Court upheld a finding that a prosecution for an offence under Section 406, I.P.C. was barred by limitation. It has been submitted by the learned Advocate for the petitioner that had an offence punishable under Section 406, I.P.C. been a continuing offence the Supreme Court in that case would not have held that the prosecution in respect of the offence punishable under Section 406 was barred by limitation. The learned Advocate for the opposite party, on the other hand, very strenuously argued that the Supreme Court in that decision did not in fact at all consider or decide whether an offence under Section 406, I.P.C. was a continuing offence or not and that the Supreme Court rather proceeded on a priori assumption that the said offence was not a continuing offence and as such the said decision cannot be considered to be an authority on the question whether an offence under Section 406, I.P.C. is a continuing offence or not. It is further submitted on behalf of the opposite party that nothing in the said decision also should be taken as an obiter dictum of the Supreme Court. In this connection, he also referred to the Full Bench decision of the Punjab and Haryana High Court in Balram Singh v. Sukhwant Kaur, 1992 Cri LJ 792 in support of his argument that the offence of criminal breach of trust is a continuing offence. I have however already elaborately discussed, supported by reasons, as to why an offence of dishonest misappropriation or criminal breach of trust is not a continuing offence and I have held this independently even without taking any support from the Supreme Court decision in State of Punjab v. Sarwan Singh (1981 Cri LJ 722) (supra). In spite of the view taken by the Punjab and Haryana High Court in Balram Singh (supra) I am inclined to hold for reasons discussed earlier that the offence of dishonest misappropriation or criminal breach of trust is not a continuing offence and in this regard I receive support from another single Bench decision of this Court in Mohipal v. State, 1986 Cal Cri LR 1. I therefore find that the prosecution in this case is barred by limitation and for this reason the proceeding in the Court below must be quashed. The other questions raised in this revisional application are however not considered or decided by me as I find that on ground of limitation the proceeding in the Court below must be quashed. The revisional application is accordingly allowed and the proceeding in the Court below is quashed.