KARAM SINGH Vs. STATE OF PUNJAB

JUDGEMENT

(1.) The petitioner was a contractor. Vide letter Ex. P1, the Executive Engineer, Provincial Division, Jullundur, accorded approval on 25.9.1977 for the allotment of works of construction of (Science) Class Rooms in each of the Government Higher Secondary Schools at Dhilwah, Bhalath and Nadala in favour bf the petitioner. The rate settled was 75 % above the Central Schedule of Rates, but subject to the stipulation of issue of cement at the rate of Rs. 10/- per bag, Bitumen at Rs. 550/- per metric tone and steel at Rs. 1,200/- per metric tone. In furtherence thereof, the petitioner was issued on three different dates (there is a confusion of dates, but they need not be sorted out for the present case), 25, 25, 75 and 75 bags of cement, valued totally for Rs. 2,040/- towards the execution of the works allotted to the petitioner. These were given to him under relevant indents. Since the petitioner did not carry out these works, nor did he return the said bags of cement when called upon to do so by the concerned authorities; on the allegations that the petitioner had misappropriated the cement and thereby committed criminal breach of trust, the Executive Engineer, Jullundur sent a letter to the police for registration for a case against the petitioner under section 406 of the Indian Penal Code. On its registration, the matter was investigated and the petitioner was sent up for trial. The learned trial Magistrate convicted the petitioner for an offence under section 406 of the Indian Penal Code and sentenced him to imprisonment for six months and also ordered him to pay fine of Rs. 1,000/-, in default further rigorous imprisonment for six months. The appeal of the petitioner before the Court of Session was a futile exercise. Now he is in revision before this Court.

(2.) Two contentions have been raised by the learned counsel for the petitioner. The first is that the prosecution was launched after the period of limitation and thus, the entire proceedings are vitiated. The second contention is that on the face of the contract between the parties, no trust was created, much less an occasion of any criminal breach of trust.

(3.) In relation to the first question raised, it is noteworthy that in four indents; the petitioner was Karam Singh Vs. The State of Punjab IMPORTANT POINT Mere transaction of sale cannot amount to entrustment. issued 200 bags of cement in all. These related to the period from 17.2.70 to 1.10.70, as is plain from letter Ex. PW 5/A written by the Executive Engineer, Jullundur Cantt., to the Senior Superintendent of Police, Jullundur, that the S.D.E. Sub Division Jullundur, vide his letter dated 11.2.72 had referred the matter to the Superintendent of Police, Kapurthala for registering a case against the contractor for he had neither started the work, nor did he return the material (cement). It was also mentioned therein that the matter remained in correspondence for some time with the Superintendent of Police, Kapurthala who informed that the case be registered with the Senior Superintendent of Police, Jullundur. Accordingly, Ex. PW 5/A Was sent to the Senior Superintendent of Police, Jullundur for the registration of the case against Karam Singh, contractor. The letter bears 15.1.76 as the date. It is on the strength there of that the Senior Superintendent of Police ordered the registration of the case and the formal First Information Report was recorded on 29.1.76, a copy of which is Ex. PW 1/A. After the investigation was completed, the challis was filed in the Court of the Judicial Magistrate I Class on 10.9.1978. From these dates, it is plain that the offence/offences stood committed between the period unto 1.10.1970 and in any case, by 11.2.1972 when the matter was referred by the Executive Engineer to the Superintendent of Police, Kapurthala for the registration of the ease. After 11.2.1972 it took four years for the Executive Engineer to send the letter dated 15.1.1976 Ex. PW 5/A afresh for the registration of the case. Yet thereafter it took nearly 2 1/2 years for the prosecution to be launched against the petitioner. Under section 468 of the Code of Criminal Procedure period of limitation for launching a prosecution for an offence under section 406 of the Indian Penal Code, an offence which attracts a maximum period of punishment of 3 years, the limitation for the purpose as prescribed is 3 years (under section 468(2)(c). It seems that no formal application for condonation of delay was filed on behalf of the prosecution. The learned Magistrate also did not apply his mind to the said question at the pre-cognizance stage. It has been laid down in Ghansham Dass v. Sham Sunder La1, that the limitation is condoned either on the asking of the prosecution or otherwise in the interest of justice, at the pre-cognizance stage. The Supreme Court in State of Punjab v. Sarwan Singh, has held that the prosecution against the accused is barred by limitation, the conviction, as also his sentence and the entire proceedings culminating in his conviction are to be treated as non est. Thus, it seems to me that the time consumed by the Executive Engineer in reporting the matter to the Police and the latter having filed a complaint nearly 8 years after the commission of the offences, the learned trial Magistrate could not have taken cognizance of the offence for the bar created by section 468 of the Code of Criminal Procedure. On this ground alone, the petitioner is entitled to acquittal, having his conviction and sentence set aside.