Mahipal Bahadur Singh And Others v. The State And Another

1. This revisional application is directed against an order passed on 7-12-82 by the learned Metropolitan Magistrate, 6th Court, Calcutta, rejecting the prayer of the accused-petitioners to discharge them under S. 245(2) Cr. P.C on the ground that the charge against them was groundless.

2. The opposite party 2, Shri Bijay Singh Nahar, was the president of the Bihar State Board of Swetamber Jain Religious Trusts and was authorised by the Government of Bihar to supervise all the Swetamber Jain Religious Trusts in Bihar. Late Maharaj Bahadur Singh, father of the petitioners was the Trustee/Manager of Sikherjee Group of Temples. After his death in 1957, the petitioners became the Trustees of Sammet Sikherjee Group of Temples by a resolution of the Bihar State Board dt. 13-7-58. The audit report of Sammet Sikharjee Group of Temples for the year ending 31-3-75 showed that a sum of Rs. 17,66,607.16 P. was kept as fixed deposits in some scheduled banks in the personal names of the petitioners and that an amount of Rs. 1,83,661.99 P. was kept by the petitioners as cash in hand in their sadar office at Calcutta. After receipt of this audit report in August, 1975, the opposite party 2, Bijay Singh Nahar, wrote a letter of 15-9-75 to the petitioners, complaining to the about their keeping of the sum Rs. 17,66,607.16 P. in their personal name instead of depositing the amounts in the name of Sammet Sikharjee Group of Temples a asking them not to keep a huge amount of Rs. 1,83,661.99 P. as cash in hand. By that letter the opposite party 2 requested the petitioners to deposit their cash in hand in Bank on keeping some working fund in the hands for meeting the day-to-day expense on 26-9-75 a reply was sent by the petitioner as Hony. Joint Managers of Jain Swetamber Society intimating that steps were being taken to keep the fixed deposits in the name of the Trust and that the cash in hand was indispensable for urgent and unforeseen expenses. On 10-10-75, the opposite party wrote another letter to the petitioner requesting them to furnish the details of the bank accounts, particularly, the fixed deposit receipts. On 18-10-76, the petitioners sent the particulars of fixed deposits in different bank wherefrom it transpired that the sum of Rs. 17,66,607.16 P. had been shown as deposit in 34 different accounts in 12 banks of Calcutta and Isri Bazar Branch, Giridih, in Bihar in the personal names of the petitioners Suspecting foul play, the opposite party sent a complaint to the Deputy Commissioner of Police, Detective Department, Calcutta, for taking cognizance of an offence in respect of the sum of Rs. 17,66,607.16 P. On the basis of that complaint, Section-K Case No. 316 dt. 4-7-78 was started. On 17-4-78, the opposite party 2 sent another complaint to the Deputy Commissioner of Police, Detective Department, for taking cognizance of an offence in respect of the sum of Rs. 1,83,661.99 P. Both these complaints were investigated together by the police who seized all the fixed deposit receipts during investigation and thereafter closed the investigation on the ground that the dispute was of civil nature. The audit report for the year ending 31-3-76 was received by the opposite party 2. That audit report showed that a fixed deposit amount of Rs. 17,66,607.16 P. had increased to Rs. 25,29,302.28 P. That audit report further showed that the petitioners retained those fixed deposit receipts in their personal names and some portion of the fixed deposit amounts had been kept in the name of the Jain Swetambar Society. The opposite party No. 2 filed a petition of complaint in the court of the Chief Metropolitan Magistrate, Calcutta, on 6-9-80 in the allegation that the petitioners committed offence under S. 120B/406 IPC, or retaining those amounts as fixed deposit receipts in their personal names and some of these fixed deposit receipts in the name of the Jain Swetambar Society as well as for, ??? the sum of Rs. 1,83,661.99 P. as cash hand. The learned Chief Metropolitan Magistrate, Calcutta, took cognizance under Section 406/120B IPC. On the basis of this petition of complaint, process was issued against the petitioners. On 10-3-81 a petition as filed for discharging the petitioners under. 245(2) Cr. P.C This petition was rejected by the learned Metropolitan Magistrate, 6th Court, Calcutta, by the impugned order dt. 7-???-82. It is the legality and propriety of this order dt. 7-1-82 that is challenged in this revisional application. The accused-petitioners have prayed for quashing the proceeding in the court of the learned Magistrate against them. Mr. Balai Ch. Ray, the learned Advocate appearing for the petitioners, has submitted that the proceeding in the Case No. 2396/80 in the court of the learned Metropolitan Magistrate, 6th Court, Calcutta, should be quashed as the petition of complaint, even if taken at its entirety, does of disclose any offence Under S. 120B/406 P.C It is contended that the complaint under S. 120B/406 IPC is barred by limitation. It is also contended that the learned Chief Metropolitan Magistrate, Calcutta, had no territorial jurisdiction to entertain the complaint.

3. In course of hearing of this revisional application, a supplementary affidavit was filed for the petitioners. The opposite party No. 2 filed an affidavit-in-opposition regarding the supplementary affidavit.

4. Mr. Saha Ray, learned Advocate appearing for the opposite party 2, has challenged all the contentions of Mr. Balai Ch. Ray. According to him, the allegation in the petition of complaint filed by the opposite party 2 contain all the ingredients for an offence under S. 406 I.P.C According to him, the petition of complaint is not barred by limitation and the learned Magistrate had territorial jurisdiction to entertain the complaint.

5. I am first taking up the question of territorial jurisdiction of the Id. Chief Metropolitan Magistrate, Calcutta, to entertain the complaint. According, to Mr. Balai Ch. Ray, the Id. Chief Metropolitan Magistrate had no territorial jurisdiction as the property of the trust was situate at Parasnath in the district of Giridih in the State of Bihar and the banks, where the fixed deposit accounts had been opened, were situated outside the jurisdiction of the court of the learned Chief Metropolitan Magistrate, Calcutta. I am unable to accept this contention of Mr. Balai Ch. Roy. The petitioners have given a list of fixed deposits with banks up to the year 1973–1974, as per audited account of the year 1973–1974, along with the criminal revisional application. This list of fixed deposits shows that some moneys were kept by the petitioners in the National and Grindlays Banks Ltd., Chowringhee Branch and the United Commercial Bank, New Market Branch, as fixed deposits. In connection with the investigation of Park Street P.S Case No. 316 dt. 4-7-78 u/s. 120B/406 IPC and S. 406 IPC., started by the police on the basis of the complaint lodged at first by the opposite party 2 with the D.C.D.D, Calcutta, the fixed deposit receipts in the names of the petitioners in the different banks were seized by the Investigating Officer of that Park Street P.S Case on 12-12-78. That seizure list dt. 12-12-78, which is with the lower court records, shows some fixed deposit receipts with the Syndicate Bank, Netaji Subhas Rd. Branch, in 1975. Under S. 181(4) Cr. P.C any offence of criminal misappropriation or of criminal breach of trust may be enquired into or tried by a court within whose local jurisdiction the offence was committed or any part of the property which is the subject of the offence was received or retained, or was required to be returned or accounted for, by the accused persons. As some of the fixed deposit receipts were retained by the petitioners in their personal names in the National and Grindlays Bank, Chowringhee Branch, United Commercial Bank, New Market Branch, and Syndicate Bank, N.S Road Branch, the learned Chief Metropolitan Magistrate had territorial jurisdiction to entertain thelearned Chief Metropolitan Magistrate had territorial jurisdiction to entertain the complaint.

6. As regards the first contention of Mr. Balai Ch. Roy that the petition of complaint by the opposite party No. 2 does not disclose any offence under S. 406 I.P.C, it is to be stated that an offence of criminal breach of trust consists of two distinct parts. The first part consists of the creation of an obligation in relation to a property over which dominion or control is acquired by an accused. The second part is a misappropriation or dealing with the property dishonestly and contrary to the terms of the obligation created. So far as the first part is concerned, there can be no doubt that the petition of complaint by the opposite party No. 2 contains all the necessary allegations. As per the second part, the necessary allegations are to be found in paras 10, 11, 16 and 22 of the petition of complaint. The summing up of these allegations is to be found in para 22 of the petition of complaint wherein it is stated that the accused persons fraudulently and dishonestly converted the amounts for their own personal use by retaining them in their own hands in the Banks concerned. Nowhere in the petition of complaint is there any allegation that the petitioners misappropriated these amounts for their own use. There retention of the property entrusted in one's hand, without dishonest misappropriation or illegal conversion of the same, does not amount to criminal breach of trust under S. 405 I.P.C The attempt has been made to make out a case of criminal breach of trust by alleging in the petition of complaint that the Jain Swetambar Society is a non-existent body and that keeping of amounts in fixed deposits in the name of Jain Swetambar Society amounts to misappropriation. A supplementary affidavit has been filed for the petitioners to show that there is only one Swetambar religious trust known as Jain Swetambar Society which manages also the Sammet Shikharji Group of Temples. This is challenged by the opposite party 2 in the affidavit-in-opposition filed for the opposite party 2. To support the averments in the affidavit-in-opposition, the opposite party No. 2 has filed xerox copy of a judgment in Suit No. 288/4 of 1912–14 between Babu Maharaj Bahadur Singh (father of the petitioners) as plaintiff and Seth Hukumchand and others (Digambary Society) in the court of the officiating Subordinate Judge Hajaribagh, as well as xerox copy of a Mis-petition in the court of the Dist. Judge, Giridir. It is not necessary to discuss the contents I the Misc. petition or the judgment delivered on 31-10-16 by the Id. officiating Sub-ordinate Judge, Hajaribagh in that Suit No. 288/4 on 1912–14. Whether Jain Swetambar Society a legally constituted society or not or whether Jain Swetambar Society manages the Samm Shikharji Group of Temples or not, the opposite party 2 is to allege in a complaint under section 120B/406 IPC, against and accused that there was misappropriation dealing with the property dishonestly by the petitioners and contrary to the terms of the obligation created. In the absence of all averment in the petition of complaint above dishonest misappropriation of the amount by the petitioners, though most of the amounts were kept as fixed deposits in the names with different Banks and a big portion of these amounts was also kept in hand, to proceeding under S. 120B/4061. P.C again the petitioners is to be quashed. It is to be mentioned in this connection that S. 401 I.P.C speaks of dishonest misappropriation and not fraudulent misappropriation. The word “dishonestly as defined in S. 241. P.C shows that the accused person must have caused wrongful gain to somebody of wrongful loss to somebody, in order to be hauled up on a charge of criminal breach of trust in respect of the amounts. There is however, no allegation in the petition of complaint that by keeping the amounts as fixed deposits in their names in different Bank and keeping some amounts with them as ??? in hand, the accused persons actually caused any wrongful loss to the Sammet Shikharj Group of Temples or any wrongful gain to them. That no wrongful loss to the Sammel Shikharji Group of Temples was caused be the petitioners is evident from the fact that at the time of audit for the years ending 31-3-73 and 31-3-76 the petitioners showed Books of Accounts to the auditors going to establish that these amounts were not for their persona use but for use of Jain Swetambar Society; Keeping of some of these amounts in the name of Jain Swetambar Society instead of the name of Sammet Shikharji Group of Temples cannot amount to dishonest misappropriation of these amounts within the meaning of S. 405 I.P.C An explanation in the matter has also been given by the petitioners by annexing a copy of a letter dated 22-10-75 from the Branch Manager, State Bank of India, Hajra Road, Calcutta, to the petitioners along with their petition under Ss. 401 and 482 Cr. P.C filed in this court going to show that in the absence of trust deeds, the current and Savings Bank Accounts in respect of some of the amounts kept in the personal names of the petitioners cannot also be transferred to Jain Swetambar Society. Be that as it may, as keeping of these amounts as fixed deposits in personal names or in the name of Jain Swetambar Society cannot amount to dishonest misappropriation or conversion of these amounts by the petitioners, when these amounts were shown by the petitioners to the auditors for the years ending 31-3-75 and 31-3-76 as belonging to the trust fund, there can be no criminal breach of trust in respect of these amounts by the petitioners and hence I am of the opinion that the petition of complaint does not disclose all the ingredients of an offence under S. 120B/406 I.P.C

7. Regarding the plea of limitation, it is to be stated that this plea has been taken by Mr. Balai Ch. Roy for the first time in this Court, without alleging limitation in the petition filed for the petitioners in the court of the Id. Magistrate u/s. 245(2) Cr. P.C This has led to the contention by Mr. Saha Roy, on the authority of the Full Bench decision of the Patna High Court in the case of Ramkripal Prasad v. State of Bihar, 1985 Cri LJ 1048, that disputed issue of limitation under Ss. 468 to 473 Cr. P.C should not be raised directly in the High Court for quashing of proceeding under S. 482 Cr. P.C In the case of Ramkripal Prasad (supra) a distinction has been drawn between lack of sanction under S. 197 Cr. P.C and the bar of limitation under S. 468 Cr. P.C It has been held in that case of Ramkripal Prasad that while lack of sanction under S. 197 Cr. P.C cannot be condoned, the expiry of limitation can both be explained and condoned by the court under S. 473 Cr. P.C As the issue of limitation has not been raised at the earliest point of time in the court below by the petitioners, Mr. Saha Roy has argued that the petitioners should not be allowed to raise a plea of limitation in the High Court for the first time in this revisional application. With greatest respect to their Lordships, I am unable to accept the contention that the plea of limitation cannot be raised for the first time in the High Court, unless that plea is taken in the court below. The object which the statute seeks to sub-serve by engrafting a bar of limitation in S. 468 Cr. P.C is clearly in consonance with the concept of fairness of trial as enshrined in Art. 21 of the Constitution. As decided by the Supreme Court in the case of State Of Punjab v. Sarwan Singh, (1981) 3 SCC 34 : AIR 1981 SC 1054 : (1981 Cri LJ 722), it is of the utmost importance that any prosecution, whether by the State or a private complainant, must abide by the letter of law or take the risk of the prosecution failing on the ground of limitation. As the bar of limitation under S. 468 Cr. P.C has been included by the Supreme Court in the case of Sarwan Singh, within the guarantee or protection of personal liberty under Art. 21, of the Constitution under which no person can be deprived of his life or personal liberty except according to the procedure established by law, the petitioners can, in my humble opinion, raise the plea of limitation in this Court without taking this plea in the court below. Though a distinction has been made in the case of Ramkripal Prasad, 1985 Cri LJ 1048 (Pat) (FB) between lack of sanction and the bar of limitation, it appears that lack of sanction as well as the bar of limitation are the pre-requisites for taking cognizance under the provisions of the Cr. P.C Under S. 197 Cr. P.C, no court shall take cognizance of any offence mentioned in that section except with previous sanction of the authorities mentioned in that section. Similarly, S. 468(1) Cr. P.C is to the effect that except as otherwise provided elsewhere in the Code, no court shall take cognizance of an offence of the category specified in sub-sec. (2) to S. 468 Cr. P.C after the expiry of the period of limitation. The expression “except as otherwise provided elsewhere in this Code”, in S. 468(1) Cr. P.C refers to the provisions in Ss. 470 and 471 Cr. P.C about exclusion of time in certain cases for calculating the period of limitation, the provision for continuing offence in S. 472 as well as the provision in S. 473 Cr. P.C under which there can be extension of the period of limitation in certain cases. If there is no application under S. 473 Cr. P.C for extending the period of limitation at the time of filing a petition of complaint, the court, taking cognizance of any offence on the basis of that petition of complaint, cannot subsequently extend the period of limitation. As such, there is no difference between the provision for sanction in S. 197 Cr. P.C and the bar of limitation in S. 468 Cr. P.C as pre-requisites before taking cognizance of any offence by any criminal court. If the decision of the Full Bench in the case of Ramkripal Prasad is to be followed, an accused, after being summoned in any criminal case for alleged commission of any offence, cannot move the High Court at the first instance for quashing the proceeding against him on the ground that the complaint is barred by limitation without first moving the court of the Magistrate, taking cognizance of the offence, in the matter. I do not think that an accused can be precluded from moving the High Court for quashing a proceeding on the ground that the proceeding is barred by limitation under the provisions of S. 468 Cr. P.C, without raising this plea of limitation at first in the court of the Magistrate taking cognizance of the offence. The contention of Mr. Saha Roy that the plea of limitation cannot be raised for the first time in the High Court by the petitioners cannot, thus, be accepted.

8. In para 7 of the petition of complaint filed in the court of the Chief Metropolitan Magistrate, Calcutta, the opposite party No. 2 alleged that on 15-9-75, on the basis of the report of the auditor for the year ending 31-3-75, he wrote a letter to the petitioners about the keeping of the sum of Rupees seventeen lakhs and odd in their personal names and the sum of Rupees one lakh eighty three thousand and odd as cash in hand. The period of limitation for an offence under S. 406 Cr. P.C is three years under S. 468(2)(c) Cr. P.C If this period of three years be counted from 15-9-75, the petition of complaint filed on 6-9-80 is clearly barred by limitation. In the letter sent by the opposite party 2 to the D.C.D.D Calcutta on the basis of which section-K Case No. 316 dt. 4-7-78 was started under Ss. 120B/406 and 406 IPC, the Opposite party 2 alleged that on 30-3-76, while inspecting some accounts, balance sheets etc. the opposite party 2 came to know that the petitioners had illegally deposited the money of Shikharjee Group of Temples in their ow names in some Banks mentioned in the complaint to the D.C.D.D Calcutta if time is computed from 30-3-76, the period of three years had long expired before the filing of the petition of complaint in the court of the Chief Metropolitan Magistrate on 6-9-80. So, in any view of the matter, the petition of complaint is barred by limitation. To do away with this plea of bar of limitation, Mr. Saha Roy has contended that the offence is a continuing offence and hence, the bar of limitation will not apply. He had referred, in this connection, to the case of Bhagirath Kanoria v. State of M.P, (1984) 4 SCC 222 : AIR 1984 SC 1688, wherein it has been held that the offence of non-payment of contribution by employer to Provident Fund is a continuing offence and hence the limitation under S. 468 Cr. P.C does not apply. Mr. Saha Roy has also argued that as the petitioners kept most of the money in fixed deposits, yielding interest, the offence was a continuing offence as interest was accruing to these deposits even at the time of filing of the petition of complaint. It has also been submitted by Mr. Saha Roy that the seizurelist dated 12-12-78, appearing in the record of the Court below in connection with section-K Case No. 316 dt. 4-7-78 on the complaint of the opposite party 2 with the D.C.D.D Calcutta, shows that there were also some fixed deposits by the petitioners with some Banks even in 1978. The contention is that if time is counted from 1978, the petition of complaint filed in the court of the Chief Metropolitan Magistrate, Calcutta, is not barred by limitation. These contentions of Mr. Saha Roy cannot be accepted. Continuing offence is one which is susceptible of continuance and is distinguishable from an offence which is committed once and for all. This distinction has been made by the Supreme Court in the case of State of Bihar v. Deokaran, (1972) 2 SCC 890 : AIR 1973 SC 908 : (1973 Cri LJ 347). The allegation against the petitioners for the alleged offence under S. 406 IPC is based on the audit reports for the years ending 31-3-75 and 31-3-76 allowing deposit of rupees seventeen lakhs and odd by the petitioners in their names as fixed deposit with some scheduled Banks and keeping of rupees one lakh eighty three thousand and odd by the petitioners as cash in hand. These offences of criminal breach, of trust have been committed once and for all, as per the allegations in the petition of complaint. There is no question of further disobedience or non-compliance, so far as keeping of these amounts as fixed deposits with Banks or as cash in hand is concerned. As such the alleged offence under S. 406, IPC cannot be a continuing offence on the ground that these deposits will enjoy interest.

9. As for deposits even in 1978 by the petitioners in their personal names with some banks, as transpiring from the seizurevlist dt. 12-12-78, it will be for the opposite party No. 2 to allege criminal breach of trust in respect of these deposits by filing a separate petition of complaint, if actually there is any offence under section 406, IPC by the petitioners in the matter. Because of such deposits even in 1978, the deposits by the petitioners in their names as fixed deposits with some Banks, as transpiring from the audit reports of 1975 and 1976 cannot be continuing offence. I am, therefore, of the opinion that the petition of complaint is barred by limitation under the provisions of S. 468(2)(c) Cr. P.C

10. Though the learned Chief Metropolitan Magistrate, Calcutta, has territorial jurisdiction to entertain the complaint, the proceeding in Case No. 2396 of 1980 under S. 120B/406 IPC in the court of the Metropolitan Magistrate, 6th Court, Calcutta, is to be set aside as the petition of complaint does not disclose all the ingredients of an offence of criminal breach of trust under S. 405, IPC and as the petition of complaint is barred by limitation.

11. The revisional application is accordingly, allowed. The impugned order dt. 7-1-82 passed by the learned Metropolitan Magistrate, 6th Court, Calcutta, is set aside and the proceeding in Case No. 2396 of 1980 in the Court of the learned Magistrate is quashed.

12. Let the fixed deposit receipts which are still lying with the Investigating Officer of Park Street P.S Case No. 316 dt. 4-7-78 under S. 120B/406 and S. 406 IPC be returned to the petitioners.

13. Let the operation of the order be stayed for a period of two months from this date.

14. Let a copy of this order be communicated to the court below by a Special Messenger at the cost of the petitioners.

15. Revision allowed.