Udai Shankar Awasthi Vs State of U.P. & Anr.
Supreme Court of India (Division Bench (DB)- Two Judge)
Appeal (Crl.), 61 of 2013, Judgment Date: Jan 09, 2013
CONTINUING OFFENCE:
10. Section 472 Cr.P.C. provides that in case of a continuing
offence, a fresh period of limitation begins to run at every moment of
the time period during which the offence continues. The expression,
‘continuing offence’ has not been defined in the Cr.P.C. because it is
one of those expressions which does not have a fixed connotation, and
therefore, the formula of universal application cannot be formulated
in this respect.
16. Thus, in view of the above, the law on the issue can be
summarised to the effect that, in the case of a continuing offence,
the ingredients of the offence continue, i.e., endure even after the
period of consummation, whereas in an instantaneous offence, the
offence takes place once and for all i.e. when the same actually takes
place. In such cases, there is no continuing offence, even though the
damage resulting from the injury may itself continue.
SECOND COMPLAINT ON SAME FACTS-MAINTAINABILITY:
“It is evident that the law does not prohibit filing or
entertaining of the second complaint even on the same facts
provided the earlier complaint has been decided on the
basis of insufficient material or the order has been passed
without understanding the nature of the complaint or the
complete facts could not be placed before the court or
where the complainant came to know certain facts after
disposal of the first complaint which could have tilted the
balance in his favour. However, second complaint would not
be maintainable wherein the earlier complaint has been
disposed of on full consideration of the case of the
complainant on merit.”
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 61 of 2013
Udai Shankar Awasthi …Appellant
Versus
State of U.P. & Anr. …Respondents
WITH
CRIMINAL APPEAL NO. 62 of 2013
J U D G M E N T
Dr. B.S. CHAUHAN, J.
1. Both these appeals have been preferred against the impugned
judgment and order dated 13.3.2012, passed by the High Court of
Judicature at Allahabad in Criminal Misc. Application No. 41827 of
2011, by which the High Court has rejected the petition filed under
Section 482 of Code of Criminal Procedure,1973 (hereinafter referred
to as the ‘Cr.P.C.’) for quashing the proceedings in Complaint Case
No.628 of 2011 (Sudha Kant Pandey v. K.L. Singh & Anr.) under Sections
403 and 406 of Indian Penal Code, 1860 (hereinafter referred to as the
‘IPC’).
2. Facts and circumstances giving rise to these appeals are:
A. M/s. Manish Engineering Enterprises of which respondent No.2,
Sudha Kant Pandey, claims to be the proprietor, was given a work order
by M/s. Indian Farmers Fertilizer Cooperative Ltd. (hereinafter
referred to as “IFFCO”), Phulpur unit, on 1.2.1996 for the purpose of
conducting repairs in their plant worth an estimated value of
Rs.13,88,750/-. The said work order was subsequently cancelled by
IFFCO on 7.2.1996.
B. Aggrieved, M/s. Manish Engineering Enterprises made a
representation dated 21.3.2001, to IFFCO requesting it to make
payments for the work allegedly done by it. As there was no response
from the management of IFFCO, the said concern filed Writ Petition
No. 19922 of 2001 before the High Court of Allahabad, seeking a
direction by it to IFFCO for the payment of an amount of
Rs.22,81,530.22 for alleged work done by it.
C. The High Court disposed of the said Writ Petition vide order
dated 25.5.2001, directing IFFCO to dispose of the representation
dated 21.3.2001, submitted by the said concern within a period of 6
weeks. In pursuance of the order of the High Court dated 25.5.2001,
the said representation dated 21.3.2001, was considered by the
Managing Director of IFFCO and was rejected by way of a speaking order
dated 15.10.2001, and the same was communicated to the said concern
vide letter dated 29.10.2001.
D. M/s. Manish Engineering Enterprises filed Writ Petition No. 7231
of 2002 before the High Court of Allahabad for the recovery of the
said amount, which stood disposed of vide order dated 20.2.2002, with
a direction to pursue the remedy available under the arbitration
clause contained in the agreement executed in pursuance of the
aforementioned work order.
E. M/s. Manish Engineering Enterprises filed Arbitration
Application No. 24 of 2002 before the High Court of Allahabad under
Section 11 of the Arbitration and Conciliation Act, 1996 (hereinafter
referred to as ‘the Act 1996’) on 24.5.2002, praying for the
appointment of an arbitrator, in view of the fact that the application
made by the said concern for the purpose of appointing an arbitrator,
had been rejected by IFFCO as being time barred. The High Court
therefore, vide judgment and order dated 17.10.2003, appointed an
arbitrator. However, the said arbitrator expressed his inability to
work. Thus, vide order dated 13.2.2004, another arbitrator was
appointed.
F. M/s. Manish Engineering Enterprises filed a Claim Petition on
various counts, including one for an amount of Rs.9,27,182/- towards
the alleged removal of items from their godown within the IFFCO
premises.
The learned arbitrator so appointed, framed a large number of
issues and rejected in particular, the claim of alleged removal of
items from the godown of M/s. Manish Enterprises, located within the
IFFCO premises (being issue No.13), though he accepted some other
claims vide award dated 11.3.2007.
IFFCO filed an application under Section 34 of the Act, 1996 for
the purpose of setting aside the award dated 11.3.2007, before the
District Court, Allahabad and the matter is sub-judice.
G. Mr. Sabha Kant Pandey, the brother of respondent
no.2/complainant, filed Complaint Case No. 4948 of 2009 against the
officers of IFFCO on 23.11.2009 under Sections 323, 504, 506, 406 and
120-B IPC before the court of Special Chief Judicial Magistrate,
Allahabad. Therein, some witnesses including the said complainant were
examined.
H. Sabha Kant Pandey, the brother of respondent no.2 filed another
Complaint Case No. 26528 of 2009, against the appellants and others
under Sections 147, 148, 323, 504, 506, 201 and 379 IPC. In the said
complainant, the brother of respondent no.2 was examined alongwith
others as a witness.
I. Complaint case no. 4948 of 2009 was rejected by way of a
speaking order passed by the Special Chief Judicial Magistrate, vide
order dated 20.3.2010 under Section 203 Cr.P.C.
J. Respondent no.2 filed Criminal Complaint No. 1090 of 2010
against the appellants and others on 2.4.2010, under Sections 323,
504, 506, 406 and 120-B IPC before the Special Chief Judicial
Magistrate, Allahabad. After investigating the matter, the police
submitted a report on 18.4.2010 stating that, allegations made in
complaint case no. 1090 of 2010 were false.
K. The Additional Chief Judicial Magistrate, vide order dated
18.8.2011 dismissed complaint case no. 26528 of 2009 filed by the
brother of respondent no.2.
L. Respondent no.2 filed another complaint case no. 628 of 2011 on
31.5.2011 under Sections 403 and 406 IPC, in which, after taking
cognizance, summons were issued to the present appellants under
Sections 403 and 406 IPC on 16.7.2011, and vide order dated 22.9.2011,
bailable warrants were issued against the appellants by the Addl. CJM,
Allahabad. Subsequently, vide order dated 21.11.2011, non-bailable
warrants were also issued against one of the appellants by the Addl.
CJM, Allahabad.
In view of the fact that K.L. Singh, appellant in the connected
appeal, could not be served properly as the correct address was not
given, on being requested, the Addl. CJM withdrew the non-bailable
warrants on 17.12.2011.
M. Aggrieved, the appellants filed Criminal Misc. Application No.
41827 of 2011 under Section 482 Cr.P.C. before the High Court for
quashing the said criminal proceedings, which has been dismissed vide
impugned judgment and order.
Hence, these appeals.
3. Shri Mukul Rohtagi and Shri Nagendra Rai, learned senior counsel
appearing for the appellants, have submitted that as the complaint
cases filed by the brother of the respondent no.2 in regard to the
same subject matter were dismissed by the magistrate concerned, the
question of entertaining a fresh complaint could not arise. A fresh
complaint cannot be entertained during the pendency of the complaint
case filed by respondent No. 2, with respect to which, the police
filed a final report, stating the same to be a false complaint. It
was further submitted, that there was suppression of material facts,
as in Complaint Case No. 628 of 2011, dismissal of the earlier
complaint was not disclosed. Furthermore, as the matter is purely
civil in nature, and in view of the fact that arbitration proceedings
with respect to the very same subject matter are presently sub-judice,
and the claim of respondent no.2 on this count has already been
rejected by the arbitrator, entertaining/continuing criminal
proceedings in the said matter is clearly an abuse of the process of
the court. Moreover, the alleged claim is related to the period of
1996. A complaint made after a lapse of 15 years is barred by the
provisions of Section 468 Cr.P.C., and the High Court has erred in
holding the same to be a continuing offence. As, in pursuance of the
High Court’s order dated 25.5.2001, the representation of respondent
no.2 dated 21.3.2001 was decided by the Managing Director, IFFCO vide
order dated 15.10.2001, the limitation period began from the date of
the said order, or at the most from 29.10.2001, that is, the date on
which, the order of rejection was communicated.
The initiation of criminal proceedings is nothing but an
attempt by the frustrated litigant to give vent to his frustration,
by invoking the jurisdiction of the criminal court and thus, the
proceedings are liable to be quashed.
4. Per contra, Shri Devrrat, learned counsel appearing for
respondent no.2, has submitted that the High Court has rightly held
that the same was in fact, a case of continuing offence. Therefore,
the question of limitation does not arise. The law does not prohibit
the initiation of criminal proceedings where there has been breach of
trust and further, in such a case, in spite of the fact that
arbitration proceedings are pending, a criminal complaint is
maintainable, and the court concerned has rightly entertained the
same. There is no prohibition in law as regards maintaining a second
application, even though the earlier application has been dismissed.
Thus, the appeals are liable to be dismissed.
5. We have considered the rival submissions made by learned counsel
for the parties as well as by Shri Gaurav Bhatia and Shri Annurat,
learned counsel appearing for the State of U.P. and perused the
record.
In light of the facts of these cases, it is desirable to deal
first, with the legal issues involved herein.
LIMITATION IN CRIMINAL CASES- Section 468 Cr.P.C.:
6. Section 468 Cr.P.C. places an embargo upon court from taking
cognizance of an offence after the expiry of the limitation period
provided therein. Section 469 prescribes when the period of limitation
begins. Section 473 enables the court to condone delay, provided that
the court is satisfied with the explanation furnished by the
prosecution/complainant, and where, in the interests of justice,
extension of the period of limitation is called for. The principle of
condonation of delay is based on the general rule of the criminal
justice system which states that a crime never dies, as has been
explained by way of the legal maxim, nullum tempus aut locus occurrit
regi (lapse of time is no bar to the Crown for the purpose of it
initiating proceeding against offenders). A criminal offence is
considered as a wrong against the State and also the society as a
whole, even though the same has been committed against an individual.
7. The question of delay in launching a criminal prosecution may be
a circumstance to be taken into consideration while arriving at a
final decision, however, the same may not itself be a ground for
dismissing the complaint at the threshold. Moreover, the issue of
limitation must be examined in light of the gravity of the charge in
question. (Vide: Japani Sahoo v. Chandra Sekhar Mohanty, AIR 2007 SC
2762; Sajjan Kumar v. Central Bureau of Investigation, (2010) 9 SCC
368; and Noida Entrepreneurs Association v. Noida & Ors., AIR 2011 SC
2112).
8. The court, while condoning delay has to record the reasons for
its satisfaction, and the same must be manifest in the order of the
court itself. The court is further required to state in its
conclusion, while condoning such delay, that such condonation is
required in the interest of justice. (Vide: State of Maharashtra v.
Sharad Chandra Vinayak Dongre & Ors., AIR 1995 SC 231; and State of
H.P. v. Tara Dutt & Anr., AIR 2000 SC 297).
9. To sum up, the law of limitation prescribed under the
Cr.P.C., must be observed, but in certain exceptional circumstances,
taking into consideration the gravity of the charge, the Court may
condone delay, recording reasons for the same, in the event that it
is found necessary to condone such delay in the interest of justice.
CONTINUING OFFENCE:
10. Section 472 Cr.P.C. provides that in case of a continuing
offence, a fresh period of limitation begins to run at every moment of
the time period during which the offence continues. The expression,
‘continuing offence’ has not been defined in the Cr.P.C. because it is
one of those expressions which does not have a fixed connotation, and
therefore, the formula of universal application cannot be formulated
in this respect.
11. In Balakrishna Savalram Pujari Waghmare & Ors. v. Shree
Dnyaneshwar Maharaj Sansthan & Ors., AIR 1959 SC 798, this Court dealt
with the aforementioned issue, and observed that a continuing offence
is an act which creates a continuing source of injury, and renders the
doer of the act responsible and liable for the continuation of the
said injury. In case a wrongful act causes an injury which is
complete, there is no continuing wrong even though the damage
resulting from the said act may continue. If the wrongful act is of
such character that the injury caused by it itself continues, then the
said act constitutes a continuing wrong. The distinction between the
two wrongs therefore depends, upon the effect of the injury.
In the said case, the court dealt with a case of a wrongful act
of forcible ouster, and held that the resulting injury caused, was
complete at the date of the ouster itself, and therefore there was no
scope for the application of Section 23 of the Limitation Act in
relation to the said case.
12. In Gokak Patel Volkart Ltd. v. Dundayya Gurushiddaiah Hiremath &
Ors., (1991) 2 SCC 141, this Court dealt with the issue and held as
under:
“According to the Blacks' Law Dictionary, Fifth Edition,
'Continuing' means ‘enduring; not terminated by a single act
or fact; subsisting for a definite period or intended to
cover or apply to successive similar obligations or
occurrences.’ Continuing offence means ‘type of crime which
is committed over a span of time.’ As to period of statute
of limitation in a continuing offence, the last act of the
offence controls for commencement of the period. ‘A
continuing offence, such that only the last act thereof
within the period of the statute of limitations need be
alleged in the indictment or information, is one which may
consist of separate acts or a course of conduct but which
arises from that singleness of thought, purpose or action
which may be deemed a single impulse.’ So also a 'Continuous
Crime' means "one consisting of a continuous series of acts,
which endures after the period of consummation, as, the
offence of carrying concealed weapons. In the case of
instantaneous crimes, the statute of limitation begins to
run with the consummation, while in the case of continuous
crimes it only begins with the cessation of the criminal
conduct or act."
13. While deciding the case in Gokak Patel Volkart Ltd. (Supra),
this Court placed reliance upon its earlier judgment in State of Bihar
v. Deokaran Nenshi & Anr., AIR 1973 SC 908, wherein the court while
dealing with the case of continuance of an offence has held as under:
“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 involves 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.”
(See also: Bhagirath Kanoria & Ors. v. State of M.P., AIR 1984 SC
1688; and Amrit Lal Chum v. Devoprasad Dutta Roy, AIR 1988 SC 733).
14. In M/s. Raymond Limited & Anr., Etc. Etc. v. Madhya Pradesh
Electricity Board & Ors., Etc. Etc., AIR 2001 SC 238, this Court held
as under:
“It cannot legitimately be contended that the word
"continuously" has one definite meaning only to convey
uninterrupted ness in time sequence or essence and on the
other hand the very word would also mean 'recurring at
repeated intervals so as to be of repeated occurrence'. That
apart, used as an adjective it draws colour from the context
too.”
15. In Sankar Dastidar v. Smt. Banjula Dastidar & Anr., AIR 2007 SC
514, this Court observed as under:
“A suit for damages, in our opinion, stands on a different
footing vis--vis a continuous wrong in respect of enjoyment
of one's right in a property. When a right of way is claimed
whether public or private over a certain land over which the
tort-teaser has no right of possession, the breaches would
be continuing one. It is, however, indisputable that unless
the wrong is a continuing one, period of limitation does not
stop running. Once the period begins to run, it does not
stop except where the provisions of Section 22 of the
Limitation Act would apply.”
The Court further held:
“Articles 68, 69 and 91 of the Limitation Act govern suits
in respect of movable property. For specific movable
property lost or acquired by theft, or dishonest
misappropriation or conversion; knowledge as regards
possession of the party shall be the starting point of
limitation in terms of Article 68. For any other specific
movable property, the time from which the period begins to
run would be when the property is wrongfully taken, in terms
of Article 69. Article 91 provides for a period of
limitation in respect of a suit for compensation for
wrongfully taking or injuring or wrongfully detaining any
other specific movable property. The time from which the
period begins to run would be when the property is
wrongfully taken or injured or when the detainer's
possession becomes unlawful.”
16. Thus, in view of the above, the law on the issue can be
summarised to the effect that, in the case of a continuing offence,
the ingredients of the offence continue, i.e., endure even after the
period of consummation, whereas in an instantaneous offence, the
offence takes place once and for all i.e. when the same actually takes
place. In such cases, there is no continuing offence, even though the
damage resulting from the injury may itself continue.
SECOND COMPLAINT ON SAME FACTS-MAINTAINABILITY:
17. While considering the issue at hand in Shiv Shankar Singh v.
State of Bihar & Anr., (2012) 1 SCC 130, this Court, after
considering its earlier judgments in Pramatha Nath Talukdar v. Saroj
Ranjan Sarkar AIR 1962 SC 876; Jatinder Singh & Ors. v. Ranjit Kaur
AIR 2001 SC 784; Mahesh Chand v. B. Janardhan Reddy & Anr., AIR 2003
SC 702; Poonam Chand Jain & Anr. v. Fazru AIR 2005 SC 38 held:
“It is evident that the law does not prohibit filing or
entertaining of the second complaint even on the same facts
provided the earlier complaint has been decided on the
basis of insufficient material or the order has been passed
without understanding the nature of the complaint or the
complete facts could not be placed before the court or
where the complainant came to know certain facts after
disposal of the first complaint which could have tilted the
balance in his favour. However, second complaint would not
be maintainable wherein the earlier complaint has been
disposed of on full consideration of the case of the
complainant on merit.”
18. The present appeals require to be decided on the basis of the
settled legal propositions referred to hereinabove.
Complaint Case No.4948 of 2009 was filed by Sabha Kant Pandey,
brother of respondent no.2, wherein, he claimed to be a partner in the
firm M/s Manish Engineering Enterprises, against one of the
appellants and other officers of IFFCO, under Sections 323, 504, 506,
406 and 120B IPC at Police Statition Phulpur, District Allahabad,
alleging that the said Firm had been given a separate godown/office
within the IFFCO compound, wherein their articles worth Rs.30-40 lacs,
as well as their documents were kept. The complainant was not
permitted to remove them and additionally, even the payment for the
work done by the firm was not made, on certain technical grounds. The
officers of IFFCO, including Mr. U.S. Awasthi - the appellant,
misbehaved with the complainant and kept the said articles worth Rs.30-
40 lacs, as also the important documents, in addition to the entry
gate pass required to enter the plant by the complainant and his
brother Sudhakant (respondent no.2 herein), therefore making it
impossible for them to access their godown.
19. The complaint was dealt with appropriately by the competent
court, wherein the present complainant was also examined as a
prosecution witness. The Court took note of the fact of pendency of
the Arbitration Proceedings with respect to the payment of dues, and
came to the conclusion that the complaint had been filed to put
pressure on IFFCO to obtain payments. The said complaint was
dismissed on merits.
20. Complaint Case No.26528 of 2009 was then filed by Sabhakant
Pandey, brother of respondent no.2, against one of the appellants and
also other officers of IFFCO under Sections 147, 148, 323, 504, 506,
201 and 379 IPC in Police Statition Phulpur, Allahabad, making similar
allegations, and giving full particulars of the outstanding dues.
That complaint was heard and disposed of by the competent court,
taking note of the fact that there had been a cross-complaint by the
officers of IFFCO, wherein allegations were made to the effect that on
19.12.2008, Arbitration Proceedings in Case No.1 of 2007 took place at
the residence of the Arbitrator, a retired Judge of the Allahabad High
Court, wherein Sabha Kant Pandey and Sudha Kant Pandey misbehaved with
the Arbitrator, and he was hence forced to adjourn the hearing of the
case. Subsequently, they stood in front of his house and shouted
slogans, abusing the officers of IFFCO and even tried to beat them up.
The court dismissed the said complaint after recording the following
findings:
“In the opinion of the court, the complaint filed by
Sabhakant Pandey is imaginary, a bald story with an
intention to put illegal pressure and by suppressing
material facts in the complaint.”
21. Complaint Case No.1090 of 2010 was filed by the present
complainant, respondent no.2 against the appellant Udai Shankar
Awasthi and other officers of IFFCO under Sections 323, 504, 506, 406
and 120B IPC, making similar allegations as were mentioned in the
first complaint, to the effect that articles worth Rs.15-20 lacs in
each godown were lying in the premises of IFFCO, and that the
complainant was not permitted to remove the same. In the said case,
after investigation, the police filed the final report stating that
all the allegations made in the complaint were false. The concluding
part of the report reads as under:
“For last 6 months no body has turned up to get his
statement recorded in spite of notice. The application had
been filed on false facts and complaint was bogus,
forceless and baseless and was liable to be dismissed.”
22. So far as the present complaint is concerned, the same has been
filed under Sections 415, 406 and 403 IPC, wherein the allegation that
their Bill had been cleared on 10.7.1996, but the requisite payment,
to the tune of Rs.22,81,530/- was not made to the complainant. Their
claim for payment was wrongly rejected. Certain articles and documents
belonging to the complainant were lying within the premises of IFFCO
and the same were not returned to the complainant despite requests for
the same. In this case, after taking cognizance, summons were issued
on 16.7.2011, under Sections 403 and 406 IPC, though the case under
Section 415 IPC stood rejected.
23. It is evident that in the said complaint, no reference was made
by the complainant as regards the Arbitration Proceedings. There was
also no disclosure of facts to show that earlier complaints in respect
of the same subject matter, had been dismissed on merits by the same
court.
24. A copy of the Award made by the Arbitrator was placed on record,
wherein issue no.13 which dealt with the present controversy, i.e.
some material and documents were placed in the premises of IFFCO and
the return of the same was refused. The claim as regards the same,
has been rejected. There has been no mention of such claim and its
rejection by the said concern, in either of the writ petitions filed
before the High Court earlier or even for that matter, in the
application filed by the said concern before IFFCO, for the purpose of
making appointment of an arbitrator, or in the application filed under
Section 11 of the Act, 1996 before the High Court.
25. In the counter affidavit filed by respondent no.2, it has been
submitted that the contract was terminated by IFFCO fraudulently, to
usurp the entire amount towards the work done by it and that IFFCO
took illegal possession of all the goods and articles belonging to the
firm lying within its premises, and as the amount had not been paid,
the officers were guilty of criminal breach of trust and were
therefore, liable to be punished. However, the fact that earlier
complaints had been filed by the brother of respondent no.2 Sabha Kant
Pandey has been admitted. It has further been admitted that
Arbitration Proceedings are still pending, but it has also
simultaneously been urged that criminal prosecution has nothing to do
with the Arbitral award.
26. The Magistrate had issued summons without meeting the mandatory
requirement of Section 202 Cr.P.C., though the appellants were outside
his territorial jurisdiction. The provisions of Section 202
Cr.P.C. were amended vide Amendment Act 2005, making it mandatory to
postpone the issue of process where the accused resides in an area
beyond the territorial jurisdiction of the Magistrate concerned. The
same was found necessary in order to protect innocent persons from
being harassed by unscrupulous persons and making it obligatory upon
the Magistrate to enquire into the case himself, or to direct
investigation to be made by a police officer, or by such other person
as he thinks fit for the purpose of finding out whether or not, there
was sufficient ground for proceeding against the accused before
issuing summons in such cases.. (See also: Shivjee Singh v. Nagendra
Tiwary & Ors., AIR 2010 SC 2261; and National Bank of Oman v. Barakara
Abdul Aziz & Anr., JT 2012 (12) SC 432).
27. Section 403 IPC provides for a maximum punishment of 2 years, or
fine or both; and Section 406 IPC provides for a maximum punishment of
3 years, or fine or both. The limitation period within which
cognizance must be taken, as per the provisions of Section 468 of
Cr.P.C. is three years. In the case of an instantaneous offence, as
per the provisions of Section 469 of the Cr.P.C., the period of
limitation commences on the date of offence. In the instant case,
admittedly, the claim of the said firm was rejected by way of a
speaking order dated 15.10.2001, in pursuance of the order of the High
Court dated 25.5.2001, and the said order was communicated vide letter
dated 29.10.2001. Respondent No. 2 correctly understood the nature of
the offence and, therefore, subsequently approached the High Court for
the purpose of seeking recovery of outstanding dues, wherein the High
Court directed him to pursue the remedy available under the
arbitration agreement between the parties. In such a fact situation,
it is beyond our imagination as to how the offence involved herein can
possibly be termed as a continuing offence. In fact, the damage
caused by virtue of non-payment of their dues, if any, is legally
sustainable, may continue, but the offence is most certainly not a
continuing offence, as the same has not recurred subsequent to order
dated 15.10.2001, even though the effect caused by it may be
continuous in nature.
In Arun Vyas & Ors. v. Anita Vyas, AIR 1999 SC 2071, this Court
held that in a case of cruelty, the starting point of limitation would
be the last act of cruelty. (See also: Ramesh & Ors. v. State of
Tamil Nadu, AIR 2005 SC 1989).
28. Approaching the court at a belated stage for a rightful cause,
or even for the violation of the fundamental rights, has always been
considered as a good ground for its rejection at the threshold. The
ground taken by the learned counsel for respondent No. 2 that the
cause of action arose on 20.10.2009 and 5.11.2009, as the appellants
refused to return money and other materials, articles and record, does
not have substance worth consideration. In case a representation is
made by the person aggrieved and the same is rejected by the competent
statutory authority, and such an order is communicated to the person
aggrieved, making repeated representations will not enable the party
to explain the delay.
29. In Rabindra Nath Bose & Ors. v. Union of India & Ors., AIR 1970
SC 470, in spite of the fact that the Government rejected a
representation and communicated such rejection to the applicant
therein, his subsequent representations were entertained by the
Government. A Constitution Bench of this Court held as under:
“He says that the representations were being received by the
government all the time. But there is a limit to the time
which can be considered reasonable for making
representations. If the Government has turned down one
representation, the making of another representation on
similar lines would not enable the petitioners to explain
the delay.” (Emphasis added)
30. In State of Orissa v. Sri Pyarimohan Samantaray & Ors., AIR 1976
SC 2617; State of Orissa etc. v. Shri Arun Kumar Patnaik & Anr. etc.,
etc., AIR 1976 SC 1639; and Swatantar Singh v. State of Haryana &
Ors., AIR 1997 SC 2105, a similar view has been reiterated.
31. The view taken by this Court in Rabindra Math Bose (Supra) has
been approved and followed in Sri Krishna Coconut Co. etc. v. East
Godavari Coconut and Tobacco Market Committee, AIR 1967 SC 973,
Karnataka Power Corporation Ltd. & Anr. v. K. Thangappan & Anr., AIR
2006 SC 1581; and Eastern Coalfields Ltd. v. Dugal Kumar, AIR 2008 SC
3000.
32. In Kishan Singh (dead) thr. Lrs. v. Gurpal Singh & Ors. AIR 2010
SC 3624, this court while dealing with a case of inordinate delay in
launching a criminal prosecution, has held as under:
“In cases where there is a delay in lodging a FIR, the Court
has to look for a plausible explanation for such delay. In
absence of such an explanation, the delay may be fatal. The
reason for quashing such proceedings may not be merely that
the allegations were an afterthought or had given a coloured
version of events. In such cases the court should carefully
examine the facts before it for the reason that a frustrated
litigant who failed to succeed before the Civil Court may
initiate criminal proceedings just to harass the other side
with mala fide intentions or the ulterior motive of wreaking
vengeance on the other party. Chagrined and frustrated
litigants should not be permitted to give vent to their
frustrations by cheaply invoking the jurisdiction of the
criminal court. The court proceedings ought not to be
permitted to degenerate into a weapon of harassment and
persecution. In such a case, where an FIR is lodged clearly
with a view to spite the other party because of a private
and personal grudge and to enmesh the other party in long
and arduous criminal proceedings, the court may take a view
that it amounts to an abuse of the process of law in the
facts and circumstances of the case. (Vide : Chandrapal
Singh & Ors. v. Maharaj Singh & Anr., AIR 1982 SC 1238;
State of Haryana & Ors. v. Ch. Bhajan Lal & Ors., AIR 1992
SC 604; G. Sagar Suri & Anr. v. State of U.P.& Ors., AIR
2000 SC 754; and Gorige Pentaiah v. State of A.P. & Ors.,
(2008) 12 SCC 531).”
33. The instant appeals are squarely covered by the observations
made in Kishan Singh (Supra) and thus, the proceedings must be labeled
as nothing more than an abuse of the process of the court,
particularly in view of the fact that, with respect to enact the same
subject matter, various complaint cases had already been filed by
respondent No.2 and his brother, which were all dismissed on merits,
after the examination of witnesses. In such a fact-situation,
Complaint Case No. 628 of 2011, filed on 31.5.2001 was not
maintainable. Thus, the Magistrate concerned committed a grave error
by entertaining the said case, and wrongly took cognizance and issued
summons to the appellants.
34. In view of above, the appeals are allowed. The impugned
judgment dated 13.3.2012 is set aside and the proceedings in Complaint
Case No. 628 of 2011 pending before the Additional C.J.M., Allahabad,
are hereby quashed.
…….…………….....................J.
(Dr. B.S. CHAUHAN)
............………............................J.
(JAGDISH SINGH KHEHAR)
New Delhi,
January 9, 2013