R BHAGAWANTH RAO Vs. STATE OF A P

JUDGEMENT

(1.) Divisional Co-operative Officer, Tenali addressed a letter dated 17-10-2003 to the Station House Officer, Tsodayapalem Police Station stating that on the authorisation given by the Joint Registrar/District Co-operative Officer, Guntur, Co-operative Sub Registrar, Tenali conducted an enquiry into the affairs of Thummala Primary Agricultural Co-operative Credit Society Limited, Thummala (the Society) under Section 52 of A.P. Co-operative Societies Act, and submitted a report stating that the funds of the Society were misappropriated by the petitioner and another, the Ex-President and the Secretary respectively of the said Society, to a tune of Rs.60,025.00 and so necessary action may be taken against them. On the basis of that letter, the Station House Officer, Tsodayapalem Police Station, Guntur District registered a case in Cr.No.31 of 2003 under Sections 406 and 409 I.P.C. against the petitioner and another. This petition is filed to quash the said F.I.R. against the petitioner.

(2.) The contention of the learned counsel for the petitioner is that since the offences alleged relate to the year 1998, and since the inspection was conducted and report was submitted in 1999, even assuming that the date of knowledge, but not the date of offence, is the starting point for computing the period of limitation, since the complaint was given in October 2003, i.e., more than three years after the discovery of the alleged misappropriation, the complaint is hopelessly barred by time, because petitioner is not a 'public servant' within the meaning of Section 21 I.P.C. as held in D. Venkata Rao v. State following the ratio in State of Maharashtra v. Laljit Rajshi Shah, and so Section 409 I.P.C. does not apply to the petitioner, and in view of Section 469 Cr.P.C. limitation for taking cognizance of an offence under Section 406 I.P.C. is three years. Relying on the observations of the Supreme Court in State of Punjab v. Sarwan Singh that the object of Section 468 Cr.P.C. is in consonance with the concept of fairness of trial, enshrined in Article 21 of the Constitution, and so, it is of the utmost importance that any prosecution, whether by the State or a private complaint, must abide by the letter of law or take the risk of the prosecution failing on the ground of limitation, he contended that since there is no scope for the petitioner being convicted for an offence which is barred by time, no useful purpose would be served in permitting the police to investigate into the alleged offences. He strongly relied on P. V. Subbaiah v. State of A.P., where a learned Single Judge quashed the F.I.R. in a similar case, and contends that the F.I.R. in this case also is liable to be quashed, more so because the amount allegedly misappropriated was recovered from the petitioner and was remitted to the Society's account long time back, and since the then Joint Registrar of Co-operatives did not think it fit to initiate any action against the petitioner, and the new incumbent to the office of Joint Registrar only thought it fit to reopen the issue with a mala fide intention. Heard the learned Additional Public Prosecutor.

(3.) Supreme Court in State of Han/ana v. Bhajanlal laid down the principles governing quashing of F.I.Rs. and complaints. Recently a three-Judge Bench of the Supreme Court in State of Karnataka v. Devendrappa6, after reviewing the case law on the subject, held that power under Section 482 Cr.P.C. should be exercised Ex Debitojstitiae to prevent abuse of process of court and should not be exercised to stifle legitimate prosecution, by embarking upon an enquiry as to the sustainability of the accusation or a reasonable appreciation of evidence, and the allegations of mala fides against the informant is of no consequence and cannot by itself be the basis for quashing the proceedings. Therefore, mala fides on the part of the complainant are irrelevant for the purpose of deciding this petition. Similarly the fact that the petitioner remitted the amount allegedly misappropriated by him is also of no consequence because offence of misappropriation committed by a person would not get obliterated on his remitting or paying the misappropriated amount to the victim.