DINABANDHU BANERJEE Vs. NANDINI MUKHERJEE

JUDGEMENT

(1.) This revisional application has been made for quashing the proceeding, being No. 1565C/92 (T.R. No. 215/92, T.R. No. 86/92) pending in the 3rd Court of, Judicial Magistrate, Howrah. The said proceeding was started by a complaint filed by the complainant opposite party herein on 19/09/1992 against 3 accused persons. In the said criminal proceeding cognizance was taken and process was issued against the accused persons in respect of offences under Ss. 403/405/406, IPC. The petitioner in this criminal revision is the accused No. 2. The accused Nos. 1 and 3 are his son and wife respectively. The complainant opposite party is the wife of the accused No, 1. They were married in April, 1986. The petitioner is a resident of Howrah. The accused No. 1 took his wife, the complainant to Bombay sometime in August, 1987 and they stayed together there and subsequently' the complainant returned from Bombay allegedly due to the misbehaviour of the accused and since then she has been staying in her father's house at Howrah. It is her case that at the marriage she received gifts of articles and ornaments, etc. from her parents as well as from the accused persons and she entrusted those articles and ornaments, etc. to the accused persons and subsequently she was allowed to take away her ornament, which she received from her parents but the ornaments which she received from the accused persons and which also constitute her stridhan property as well as the other articles she received as gift at her marriage remained with the accused persons. The other articles mentioned above include furniture, etc. All those articles remained in a room in the Howrah house of the accused persons when the complainant and her husband went to Bombay. As I have already mentioned the complainant filed the petition of complaint for offences u / Ss. 403, 405 and 406, IPC. in respect of the articles and the ornaments which remained with the accused persons. The accused persons however were agreeable to return those articles and in fact there is correspondence on record regarding the matter. But of course, it is the contention of the accused persons that whatever ornaments belonged to her or were given to her had been taken away by the complainant and that the further items of ornaments which the complainant claims to have been given to her by the accused persons at the time of or in connection with the marriage were not gifted to the complainant by the accused persons as alleged nor do those items of ornaments belong to the complainant. It is submitted on behalf of the petitioner accused that the complainant is laying false claim over the ornaments which belong to the accused persons and the members of their family. It is also the case of the accused persons that some items of jewellery of the complainant's husband are rather lying with the complainant. It may be mentioned here that in this criminal proceeding a search warrant was issued at the instance of the complainant and the articles belonging to her have been seized and taken away in execution of the search warrant. Virtually the dispute is mainly confined now to certain items of ornaments which according to the complainant's case were gifted and given to her by the accused persons, but the accused persons deny that those items were gifted to her by them.

(2.) Sometime in August, 1989 the accused No, 1 filed a matrimonial suit at Bombay against the complainant for dissolution of the marriage on the ground of desertion and cruelty and ultimately the said suit was decreed and the marriage between the complainant and the accused No. I was dissolved by that decree in January, 1990. It is however the contention of the complainant that the said decree was obtained fradulently by the accused No. 1 behind the back of the complainant. The complainant also however filed a matrimonial suit at Howrah in December, 1989 for dissolution of the marriage on the ground of desertion and cruelty, but that suit has been dismissed on the ground that the marriage between the parties has already been dissolved by the decree of the Bombay Court. An appeal however at the instance of the complainant wife is pending in this Court against the order of dismissal of the Howrah suit. In the said Howrah suit the wife also filed an application under S.27 of the Hindu Marriage Act for return of her Stridhan articles, ornaments and jewellery including those stated to have been presented by the accused persons. The complainant in May, 1988 also filed an application under S.125, Cr. P. C. for maintenance against her husband the accused No. 1 and on that application she has obtained an order of maintenance at the rate of Rs. 500/- per month.

(3.) The petitioner accused No. 2 has challenged the criminal proceeding under Ss. 403, 405 and 406, IPC. on several grounds, such as, limitation, absence of mens rea, civil nature of the dispute, etc. I take up the question of limitation at the first instance. Section 403, IPC provides for punishment for dishonest misappropriation of moveable property. The said section says that whoever 'dishonestly misappropriates or converts to his own use' any moveable property, shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with, both. Section 405, IPC defines criminal breach of trust. The relevant portion of S. 405, IPC runs thus : "Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other persons so to do, commits 'criminal breach of trust'. " Section 406, I.P.C. is the penal section which provides that whoever commits criminal breach of trust shall be punished with imprisonment of either description for a term which. may extend to three years or with fine or with both. The period of limitation prescribed for taking cognizance in respect of an offence of the criminal breach of trust for which the maximum punishment is imprisonment for three years is ordinarily three years from the date of the offence under S.468 read with S.469 of the Code of Criminal Procedure. In this case the complaint was filed on 19/09/1992. It is the contention of the petitioner accused that the cognizance taken on the basis of the said complaint on the 19/09/1992 is bad in law as the proceeding was barred by limitation under Ss.468 and 469 Cr. P.C. inasmuch as even according to the allegations made in the complaint dishonest misappropriation and criminal breach of trust punishable under Ss.403 and 406, I.P.C, were committed, if at all, in March, 1988 as described in paragraphs 10, 11 and 12 of the petition of complaint and therefore the complaint should have been filed within three years from March, 1988, that is, within March 1991 but as a matter of fact the complaint was filed in September, 1992, long after the expiry of the period of limitation and as such the proceeding in the court below is bad in law and is liable to be quashed. The contention of the complainant opposite party in reply to the petitioner's plea of limitation is that the offence of dishonest misappropriation or for that matter, criminal breach of trust took place in December, 1991 as averred in paragraph 17 of the petition of complaint and not in March, 1988 and as such the complaint has been filed well within the period of limitation. It is also the contention of the complainant opposite party that the offence of dishonest misappropriation or for that matter, criminal breach of trust is a continuing offence and that being so under S. 472, Cr. P. C, a fresh period of limitation begins to run at every moment of the time during which the offence continues. It is also the alternative argument of the learned Advocate for the opposite party that the subsequent willingness of the accused persons to return the articles of the opposite party as conveyed through the letter of the Advocate in October, 1991 furnished a fresh cause of action or for that matter, a fresh starting point of limitation for bringing an action for the offences punishable under Ss. 403 and 406, I.P.C.