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13)Therefore, the issue as to whether in a appropriate case, Court can dismiss a prosecution under Section 406 of I.P.C. being barred by limitation is no longer res integra.
14)In Dinabandhu Banerjee (Supra) this Court held the Hon'ble Single Judge of this Court observed " i) 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 Suprme Court in state of Bihar Vs. Deokaran Nenshi, AIR 1973 SC 908. Paragraph - 5 of the said decision runs thus :-
iii) 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 a continuing offence. Dishonest misappropriation or conversion to one own use is the crux of the offence of dishonest misappropriation punishable under Section 403 I.PC. Now, the dictionary meaning of the word 'misappropriate' is to put to awrong use; to take dishonestly for oneself (vide, Chambers Twentieth Century Dictionary). The dictionary meaning of the word 'a'propriate' 's 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 posession, control or use to offending or dishonest possession, control or use. It is this transitional phenomenon, that is , the process of transformation is complete and dishonest misappropriation takes place the subsequent wrong user of the propert5y or the continuance of such wrong user is not a part of the phenomenon of misappropriation although such continuance of user or repetition of suer 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 40.5. 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 moment the definition of dishonest misappropriation or criminal breach of 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 can not 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."