BEENA ALEXANDER KURIAN Vs. ALEXANDER KURIAN

JUDGEMENT

(1.) This is an appeal against acquittal. The appellant filed a complaint against the respondent husband alleging that he committed criminal breach of trust. The marriage between the appellant and the respondent took place on 28-10-79. Prior to the marriage, there was a betrothal ceremony on 9-9-79 and on that day a sum of Rs.75,000/- was entrusted with the respondent as 'streedhan' amount. The marriage between the appellant and the respondent ran into rough weather and on 9-6-80 the appellant left the marital home and started residing with her parents. Thereafter the appellant requested for the return of Rs.75,000/-, the gold chain and ring given to the respondent. The respondent did not accede to the request and in spite of repeated demands the respondent failed to pay back the money. The appellant later filed a civil suit for the recovery of the money and the same is pending. On 10-4-87 the appellant filed this criminal complaint alleging that the respondent husband committed criminal breach of trust. On the side of the appellant 4 witnesses were examined. The learned Magistrate acquitted the accused and held that the complainant failed to take steps against the respondent in the first instance and that she filed a civil suit and this shows that the respondent did not dishonestly misappropriated the amount and that the entire prosecution was an afterthought. This finding is challenged by the appellant.

(2.) The appellant admitted that her marriage with the respondent lasted only for a few months. She alleged that the respondent had an affair with another woman and found it difficult to reside with her husband. The appellant left the marital home on 9-6-80. She filed a criminal complaint only in 1987. Meanwhile, she had taken steps to recover the amount through other means. She filed a pauper original petition in 1982 itself. The appellant admitted that in 1987 she came to know of the decision rendered by the Supreme Court in Pratibha Rani's case (AIR 1985 Supreme Court 628) and, therefore, she filed the present criminal complaint against the respondent. It is in the above circumstance the learned Magistrate held that there existed only civil dispute and that the appellant failed to prove that the respondent dishonestly misappropriated the amount. The conduct of the appellant would show that she never believed that the respondent dishonestly misappropriated the amount. She was of the view that there existed a liability on the part of the respondent to return the amount. In view of the above circumstance, I do not think that the view taken by the learned Magistrate is either perverse or unreasonable.

(3.) The acquittal of the accused in this case is not liable to be interfered with for another reason. It is contended on behalf of the appellant that by virtue of S.468(2)(c) of the Code of Criminal Procedure the criminal complaint itself was filed beyond the period of limitation and the Magistrate was not entitled to take cognizance of the offence. Under S.406 I. P. C. the punishment prescribed is imprisonment for a term which may extend to 3years, or with fine, or with both. Under S.468(2)(c) Cr. P. C, for an offence punishable with imprisonment for a term exceeding one year but not exceeding three years the period of limitation shall be 3 years. In the instant case the cause of action for filing this complaint had taken place as early as in 1980. The appellant deposed that she demanded the money in 1980. Thereafter she sent a lawyer's notice on 8-2-82. Even then the respondent did not pay the amount. The present complaint was filed on 10-4-87, much beyond the period of limitation. The learned counsel for the respondent contended that the punishment for the offence punishable under S.406 I. P. C. is not imprisonment for a period of 3 years but with imprisonment of either description for a term which may extend to three years, or with fine, or with both and, therefore, S.468(2)(c) of the Cr.P.C, has no application. I am unable to accept this contention. The substantive sentence for the offence punishable under S.406 I. P. C. is imprisonment for a period of 3 years. If the fine also is to be taken as prescribed punishment, S.468 Crl. P. C. may not have any application to many of the offences mentioned in the Penal Code. I am of the view that in a case where the offence alleged is punishable with prescribed period of imprisonment, that alone is to be taken into consideration for determining the period of limitation mentioned in S.468 Cr. P. C. Therefore, where the offence alleged is under S.406 I. P. C., the complaint should be filed within a period of three years of the commission of the alleged criminal breach of trust.