Lalit Kumar vs State Of U.P. And Another
2023 Latest Caselaw 10135 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 72
 
Case :- APPLICATION U/S 482 No. - 45327 of 2019
 
Applicant :- Lalit Kumar
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Suresh Chandra Pandey
 
Counsel for Opposite Party :- G.A.,Ram Chandra Uttam,Vinay Kumar Tripathi
 

 
Hon'ble Mrs. Sadhna Rani (Thakur),J.

Heard learned counsel for the applicant, learned counsel for the opp. party no. 2 and perused the record.

By moving this application, the prayer is made to quash the order dated 24.12.2018 and 11.3.2016 passed by learned A.C.J.M., Court No. 4, Mathura, in case crime no. 2171 of 2014, Nand Kishor Vs. Lalit Kumar, and the order dated 30.9.2019 passed by Additional Sessions Judge, Court No. 5, Mathura in Cr. Revision No. 25 of 2019, Lalit Kumar Vs. State of U.P. and another. Prayer is also made to quash the entire proceedings of case no. 2171 of 2014 under section 406 I.P.C., police station Highway District Mathura.

As per the facts of the case on 17.9.2011 an FIR under section 406 and 420 I.P.C. was lodged by the opp. Party no. 2 against the applicant Lalit Kumar alleging therein that the opp. party no. 2 and the applicant had agreed orally for sale of two plots belonging to the applicant to the opp. party no. 2. Date 23.5.2011 was fixed for the execution of the sale deed. The whole consideration of Rs. 2 lacs had been paid to the applicant in advance on the date fixed for sale deed. All the stamp papers were purchased in the name of the applicant. The documentation was also done on the same day and the same was submitted in the registry office. But at the time of registry, the applicant eloped. Thus, the allegation is that after taking due consideration and getting all the documents prepared, the applicant neither executed the sale deed nor returned the money to the opp. party no. 2 and thus, cheated the opp. party no. 2.

It has further been submitted that on the basis of the application u/s 156 (3) Cr.P.C., this FIR could hardly be lodged on 17.9.2011. After investigation Final Report was submitted on 15.10.2021. On the protest petition of the opp. party no. 2 the F.R. was rejected and further investigation was done but again the final report was filed. On the protest of the opp. party no. 2 for the second time, it was treated as a complaint and vide order dated 11.3.2016 the applicant was summoned to face trial under section 406 I.P.C.

On 17.8.2017, The applicant moved an application u/s 468 Cr.P.C. that after the incident dated 23.5.2011 the complaint has been registered on 23.6.2014, the cognizance has been taken on 11.3.2016 and the applicant has been summoned to face trial under section 406 I.P.C. only. Under section 406 I.P.C. maximum punishment is three years simple imprisonment. So the cognizance could not be taken in his case after 3 years of lodging the first information report. The complaint has also been registered after 3 years of the incident, thus, both the registration of complaint and the order of cognizance are time barred.

Vide order dated 11.3.2016 passed by learned A.C.J.M. Court No. 4 Mathura, the applicant was summoned to face trial under section 406 I.P.C. The application 13-B of the applicant was rejected. Vide order dated 24.12.2018 passed by A.C.J.M. Court No. 4 Mathura against that order the revision was also dismissed on 30.9.2019. Both the courts have wrongly rejected his application/ revision and did not consider his plea of section 468 Cr.P.C. hence, the prayer is made to quash all the three above mentioned orders.

Learned counsel for the opp. party no. 2 however, opposed the prayer and submitted that on 23.5.2011, the sale deed was to be executed. Regarding the incident dated 23.5.2011, the opp. party no. 2 had moved an application to S.S.P. concerned on 26.7.2011. Later on, on the basis of this application under section 156(3) Cr.P.C., the FIR was registered on 17.9.2011.

After investigation by police final reports were filed by the police twice and the opp. party no. 2 had to move protest petitions against both the final reports. His second protest petition was registered as complaint and after recording the statements under section 200 and 202 Cr.P.C. only, the cognizance was taken on 11.3.2016 against the applicant. Thus the opp. party no.2 was continuously contesting the matter. If the procedure takes long time, the applicant cannot be penalized for this delay, hence, prayer is made accordingly.

If we go through the provision under section 468 Cr.P.C., this section relates to the bar taking cognizance after lapse of period of limitation. Admittedly, the applicant has been summoned to face trial for the offence under section 406 I.P.C. wherein the maximum sentence is 3 years imprisonment or imprisonment with fine or both. As per this section the offence is punishable with imprisonment for a term up to 3 years and the limitation period of taking cognizance in the case is also 3 years. On the basis of this provision only, the applicant makes a prayer that the offence is of year 2011 complaint has been registered on 23.6.2014 and cognizance has been taken in the year 2016, so the complaint and cognizance both are time barred.

If we go through the section 473 of Cr.P.C. it is related to the extension of period of limitation in certain cases mentioned therein. Vide this section 473 Cr.P.C., the court has been empowered to take cognizance of the offence after the expiry of the period of limitation, if it is satisfied on the facts and the circumstances of the case that delay has been properly explained or that it is necessary to do so in the interest of justice. Referring the Judgment of Bharat Damodar Kale Anr. Vs. State of Andhra Pradesh (2003) 8 SCC 559, learned counsel for the opp. party no.2 submitted that in the present case cognizance was taken on 11.3.2016 and the revisional court confirmed the said order vide order dated 15.7.2017. Section 473 Cr.P.C. provides for the extension of period of limitation, if the court is satisfied going through the facts and circumstances of the case. In the judgment of Bharat Damodar Kale (supra), the Apex Court held that this limitation is only for filing of a complaint and not for taking cognizance. Regarding cause of action dated 23.5.2011, on the basis of an application under section 156(3) Cr.P.C., the FIR was lodged on 17.9.2011. Thus, it would be considered that the process has been initiated within time, hence, the proceedings cannot be said to be time barred.

From the perusal of the record, it is found that after lodging the FIR within time, the opp. party no. 2 had to face two final reports and then to file two protest petitions. His second protest petition was registered as complaint on 23.6.2014. He had also to adduce the evidence under sections 200 and 202 Cr.P.C. in the complaint and finally the court took cognizance vide order dated 11.3.2016. This shows that the opp. party no. 2 was continuously busy in the proceedings of the said case. There was no laxity on his part. In the opinion of the court, the opp. party no. 2 is entitled for benefit of extension of period of limitation on the basis of section 473 Cr.P.C.

Learned counsel for the applicant drawing the attention of the court toward the judgment in Prem Lata and another VS. State of Rajsthan and another claimed the benefit of his argument on the basis of section 468 of Cr.P.C. that the complaint was registered and the cognizance was taken on complaint after more than 5 years of the alleged committal of the crime but if we go through this judgment, it is found that as per the facts of this case there was a delay of 12 years between filing the complaint and taking cognizance and this delay was attributed to the complainant who did not produce any witness in support of his protest petition but in the case in hand, the position is different. Here delay is caused for the reason not attributing to the opp. party no. 2 / the complainant himself, but it was due to this long procedure which was followed due to the peculiar circumstances of the case, hence, learned counsel for the applicant cannot get benefit of this judgment filed by him.

No ground exists for quashing of the orders dated 11.3.2016, 24.12.2018 and 30.9.2019 as prayed by the learned counsel for the applicant above.

The application u/s 482 Cr.P.C. being devoid of merits is liable to be dismissed and is accordingly dismissed.

Order Date :- 6.4.2023

Gss