Telangana High Court
Smt. Sravana vs The State Of Telangana on 28 June, 2022
Author: D.Nagarjun
Bench: D.Nagarjun
THE HON'BLE DR. JUSTICE D.NAGARJUN
CRIMINAL PETITION No.7754 of 2019
ORDER:
The petitioner was charged by the police for the offence under Section 406 IPC. Aggrieved by the same, the present petition is filed seeking quashment of C.C.No.1383 of 2018 on the file of XIV Additional Chief Metropolitan Magistrate at Hyderabad on the ground that the limitation for taking cognizance of the offence under Section 406 IPC is expired and that the complaint filed by the de-facto complainant under Section 200 Cr.P.C., is not in consonance with the directions of the Hon'ble Supreme Court in Priyanka Srivastava & Anr vs State Of U.P.& Ors1. The facts which can be gathered from the record available before the Court are as under:
The de-facto complainant has filed a complaint under Section 200 Cr.P.C. against the petitioner alleging that he has committed offence under Section 420, 406, 384 and 506 IPC.
The marriage of the de-facto complainant was performed with one SVD Lavanya, who is the elder sister of the petitioner/accused, at Tirupathi. In the year 2013, the de-facto complainant's wife Lavanya expired on account of ill-health.
1 (2015) 6 SCC 287 2 When the de-facto complainant was in disturbed mood on account of demise of his wife, the petitioner, who is no other than the sister of the deceased wife of the de-facto complainant, came to his house and requested for lending of gold ornaments weighing amount 20 tulas belonging to her sister, who was the wife of the de-facto complainant, for a short period to attend a function. Trusting the petitioner, the de-facto complainant has parted with the gold ornaments in favour of the petitioner.
However, when the de-facto complainant wanted those ornaments to be returned, the petitioner has informed that she has taken the gold ornaments to extract the money.
The de-facto complainant filed a complaint under Section 200 Cr.P.C., alleging that the petitioner has committed offence punishable under Sections 420, 406, 384 and 506 IPC. The said complaint was referred to the police under Section 156 (3) Cr.P.C., and police have registered a case against the petitioner and issued FIR. During the course of investigation, the police have recorded the statements of the witnesses and ultimately filed a charge sheet stating that no offence is made out against the petitioner for the offence punishable under Sections 420, 384 and 506 IPC on account of lack of evidence. However, the petitioner is charge sheeted for the offence under Section 406 3 IPC and accordingly, the trial Court has taken cognizance of the same.
Learned counsel for the petitioner has submitted that the directions of the Hon'ble Supreme Court in Priyanka Srivastava's case (supra) has not been complied with and there is no limitation to take cognizance against the petitioner for the offence under Section 406 IPC.
On the other hand, learned Assistant Public Prosecutor while denying the contentions of the learned counsel for the petitioner has submitted that the case is within the limitation and therefore, prayed the Court to dismiss the petition.
Now, the point for determination is whether the charge sheet filed against the petitioner under Section 406 IPC can be quashed on the grounds urged by the petitioner?
Section 468 Cr.P.C., reads as under:
"468. Bar to taking cognizance after lapse of the period of limitation.
(1) Except as otherwise provided elsewhere in this Code, no Court shall take cognizance of an offence of the category specified in sub- section (2), after the expiry of the period of limitation.
(2) The period of limitation shall be-
(a) six months, if the offence is punishable with fine only 4
(b) one year, if the offence is punishable with imprisonment for a term not exceeding one year;
(c) three years, if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years.
(3) For the purposes of this section, the period of limitation in relation to offences which may be tried together, shall be determined with reference to the offence which is punishable with the more severe punishment or, as the case may be, the most severe punishment.
Section 468 Cr.P.C., speaks about the limitation within which cognizance of an offence can be taken against a person. The offence alleged against the petitioner is under Section 406 IPC. Section 406 IPC is the punishment for committing the criminal breach of trust, the punishment of which can be either description for a term which can be extended to three years or with fine or with both. That means, the maximum sentence that can be expected to give for the offence under Section 406 IPC against the petitioner, if proved, is three years. As per Section 468 (2)(c) Cr.P.C., the period of limitation shall be three years, if the offence is punishable with imprisonment for term exceeding one year but not exceeding three years. Therefore, the limitation to take cognizance is three years from the date of commencement of offence.
As per the charge sheet the de-facto complainant's wife expired in the year 2013. The last para of page 13 of the charge 5 sheet filed along with this petition would show that as per the investigation, the petitioner, who is the sister of the wife of the de-facto complainant, approached the de-facto complainant and took 20 tulas of gold in the year 2013. This petition is filed before the Court on 13.06.2018. Therefore, even if the date on which the complaint under Section 200 Cr.P.C., is taken into consideration, it has been five years from the date of taking the ornaments by the petitioner. Therefore, once the limitation for taking cognizance is expired, filing this complaint in the year 2018 is clearly barred by limitation.
In Nawab Mir Barkat Ali Khan Bahadur, successor, to Nawab Mir Osman Ali Khan Bahadur, The Nizam of Hyderabad v. Aziz Ali and others2, a learned Judge of the erstwhile High Court of Judicature of Andhra Pradesh at Hyderabad in Paragraph 6 has held as under:
"6. As per Section 468 Cr.P.C., limitation for filing a complaint in respect of offence punishable with imprisonment for a term exceeding one year but not exceeding three years, is three years. Offence under Section 406 IPC, is punishable with imprisonment for three years. So complaint, for an offence under Section 406 IPC should be filed within three years from the date of commission of the offence. The averments in the complaint show that 1st respondent from more than three years prior to the lodging of the complaint, was demanding return of the jewellery. Therefore, it is clear that the complaint is filed more than three years after the 1st respondent made demands to the petitioners to return the jewellery. So the complaint for 2 2022 (2) ALD (Crl.) 22 (AP) 6 offence under Section 406 IPC is liable to be quashed on the ground of limitation and is accordingly quashed."
In Assistant Commercial Tax Officer, Hyderabad v. Sri Krishna Picture Palace and others3 a learned Judge of the erstwhile High Court of Judicature of Andhra Pradesh at Hyderabad has held as under:
"In my view, Section 468 Cr.P.C. is clear that if a complaint is made beyond time the Magistrate has no jurisdiction to take the cognizance. In order to assume jurisdiction to try a complaint, it is a duty cast on the Magistrate to see that whether the complaint is made within time and if not whether any application has been made under Section 473 Cr.P.C. If no application is made under Section 473 Cr.P.C. and the Magistrate finds that the complaint has been instituted beyond limitation, he has no jurisdiction to try the same and he must invariably dismiss the complaint. The bar created under Section 468 Cr.P.C., is to be taking of cognizance and once cognizance is taken in matters which are barred by limitation that becomes illegal as the Magistrate who takes cognizance in such a case, takes the cognizance without jurisdiction. However, if an application under Section 473 Cr.P.C. is made and the Magistrate concerned is satisfied that the delay has been properly explained and the delay needs to be condoned because of the interests of justice, he has to pass an order to that effect before taking cognizance. Admittedly, in these cases no such application under Section 473 Cr.P.C. was made and no extension was granted by the trial Court."
Therefore, considering the authorities mentioned above and the facts of the case, it is clear that taking cognizance of the offence under Section 406 IPC against the petitioner is clearly beyond the limitation, as prescribed under Section 468 (2) (C) Cr.P.C. and therefore, on this count itself, the C.C. registered against the petitioner can be quashed.
3 2000 (1) ALD (Crl.) 267 (AP) 7 The second ground on which the petitioner is seeking quashment is that the de-facto complainant has not followed the directions of the Hon'ble Supreme Court in Priyanka Srivastava's case (supra) in respect of approaching the police prior to filing the complaint under Section 200 Cr.P.C., before the Court. The directions in respect of a private complaint as under:
"27. In our considered opinion, a stage has come in this country where Section 156(3) Cr.P.C. applications are to be supported by an affidavit duly sworn by the applicant who seeks the invocation of the jurisdiction of the Magistrate. That apart, in an appropriate case, the learned Magistrate would be well advised to verify the truth and also can verify the veracity of the allegations. This affidavit can make the applicant more responsible. We are compelled to say so as such kind of applications are being filed in a routine manner without taking any responsibility whatsoever only to harass certain persons. That apart, it becomes more disturbing and alarming when one tries to pick up people who are passing orders under a statutory provision which can be challenged under the framework of said Act or under Article 226 of the Constitution of India. But it cannot be done to take undue advantage in a criminal court as if somebody is determined to settle the scores. We have already indicated that there has to be prior applications under Section 154(1) and 154(3) while filing a petition under Section 156(3). Both the aspects should be clearly spelt out in the application and necessary documents to that effect shall be filed. The warrant for giving a direction that an the application under Section 156(3) be supported by an affidavit so that the person making the application should be conscious and also endeavour to see that no false affidavit is made. It is because once an affidavit is found to be false, he will be liable for prosecution in accordance with law. This will deter him to casually invoke the authority of the Magistrate under Section 156(3). That apart, we have already stated that the veracity of the same can also be verified by the learned Magistrate, regard being had to the nature of allegations of the case. We are compelled to say so as a number of cases pertaining to fiscal sphere, matrimonial dispute/family disputes, commercial offences, medical negligence cases, corruption cases and the cases where there is abnormal delay/laches in initiating criminal prosecution, as are illustrated in Lalita Kumari are being filed. That apart, the 8 learned Magistrate would also be aware of the delay in lodging of the FIR."
In the case on hand, the de-facto complainant has directly filed a private complaint under Section 200 Cr.P.C., before the Court on 08.12.2017 alleging that the petitioner has committed offence under Sections 420, 406, 384 and 506 IPC. As per the directions of the Hon'ble Apex Court the petitioner is expected to file an affidavit disclosing that he has approached the police under Section 154(1) Cr.P.C., and on refusal to register the case, he has approached the higher-ups under Section 154(3) Cr.P.C., and the petitioner is expected to enclose copies of documents to that extent. But in the case on hand, the de-facto complainant has not filed any affidavit or the documents to show that he has approached the police prior to filing of the complaint directly in the open Court. Therefore, once the directions of the Hon'ble Supreme Court have not been complied with, the case against the petitioner, which was registered without following the directions of the Apex Court, required to be quashed and therefore on this ground also C.C is liable to be quashed.
9
In the result, the criminal petition is allowed and the proceedings against the petitioner in C.C.No.1383 of 2018 on the file of XIV Additional Chief Metropolitan Magistrate, Hyderabad, are hereby quashed.
Miscellaneous applications, if any, shall stand closed. No costs.
_____________________ DR. D.NAGARJUN, J Date: 28.06.2022 ES