BHAGWAN BHAUDEO KALE Vs. RAMESH LAXMINARAYAN BANGAD

JUDGEMENT

(1.) Heard.

(2.) The respondent No. 1 had filed a complaint on 31-12-1991, against the present applicants and it came to be registered as R. C. C. No. 354/91 in the Court of C. J. M. Jalna. It was alleged by respondent no. 1 iin the complaint that he is the consumer of domestic gas with Agency of chandulal T. Parikh and his consumer no. was 6576. The applicants, who had good relations with respondent No. 1, did not have gas connection and therefore, on their request he had given his gas connection to the applicants on temporary basis. After taking the gas connection and cylinder on temporary basis, the applicant avoided to return the same. Therefore, a notice was issued by the respondent No. 1 which was received by them on 4-10-1991. In spite of the notice, they did not return the said cylinder and the gas connection. In view of this, on the complaint of the respondent No. 1 offence under section 406 read with section 34 of Indian Penal Code was registered and process was issued. On 6-2-1992 an application was filed whereby the complainant sought permission to compound the offence with one accused and to withdraw the complaint against another accused. Permission was granted. Thus in respect of one accused complaint was withdrawn and in respect of another accused it was compounded with permission of the Court and the present applicants were acquitted of the charge. On 5-7-1993 the respondent No. 1 filed a fresh complaint based on the same facts and it was registered as R. C. C. No. 130/93 on the file of C. J. M. Jalna. In para 8 of that complaint it was alleged that the accused had assured that he would return the articles, hence the complainant had withdrawn the earlier complaint but in spite of that the accused had not returned the same, hence the fresh complaint. On this complaint also process was issued. The applicants challenged the issuance of process in Criminal Rev. Petition No. 79/93. The learned Additional sessions Judge dismissed that revision Petition by judgment dated 21-9-1996, holding that it was a continuing offence and therefore, it was not barred by limitation as alleged by the accused-applicants. Being aggrieved by the dismissal of the Revision Petition, the applicants have preferred the present application under section 482 of Criminal procedure Code invoking inherent powers of this Court.

(3.) The record clearly reveals that in earlier complaint R. C. C. No. 354/91, case was partly withdrawn and partly compounded with permission of the Court as required under section 257 and 320 of criminal Procedure Code. On the basis of the said compromise, the learned C. J. M. had passed an order of acquittal of both the accused. Section 257, Criminal procedure Code provides that where the complaint is withdrawn with permission of the Court, it shall pass an order of acquittal. Section 320 sub-section (8) , criminal Procedure Code also clearly provides that composition of an offence under this section shall have the effect of acquittal of the accused with whom the offence has been compounded. In view of the fact that said complaint was compounded in respect of one and withdrawn in respect of another accused and the accused were acquitted, on the basis of the same facts the accused could not be prosecuted again. Even though in para 8 of the second complaint it was alleged that the accused had assured to return the articles and in view of the said assurance, the complaint was withdrawn but the accused had not returned the same, in the application Exh. 10 filed in R. C. C. No. 354/91 seeking permission to withdraw and to compound the offence, no such assurance was referred to. In fact that application clearly revealed that the complaint was result of misunderstanding between the parties and no offence as such was committed. There was no mention that the accused had assured to return the cylinder or gas connection and therefore, the matter was being withdrawn or compounded. If on the same facts it was clearly stated that it was result of misunderstanding and no offence was committed, it is difficult to understand how on the same facts, the complainant could file second complaint prosecuting the accused persons again, particularly after they were acquitted.