Pradeep Chandra & Anr vs State & Anr
2012 Latest Caselaw 1902 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI


+      CRL.M.C. 2188/2010 & Crl.M.A. 8578/2010 (stay)

%                                          Reserved on: 13th March, 2012
                                           Decided on: 20th March, 2012


       PRADEEP CHANDRA & ANR                   ..... Petitioners
                   Through  Mr. Ravinder Aggarwal, Adv.

                     versus

       STATE & ANR                                          ..... Respondents

Through Mr. Mukesh Gupta, APP for the State.

Mr. N.K. Jha, Adv. for R-2.

Coram:

HON'BLE MS. JUSTICE MUKTA GUPTA

1. By the present petition, the Petitioners challenge the orders dated 3rd September, 2009 and 18th December, 2009 issuing summons to the Petitioners for offence under Section 406 IPC and the proceedings pending before the Learned ACMM in complaint case No. 3990/2006 titled as "Prakash Narain Mathur Vs. Pradeep Chandra & Anr.".

2. The grievance of the Petitioners is that as per the complaint the alleged offence was committed on and before 2nd June, 1991 when it is alleged that Petitioner No.1 refused to return the money of the complainant/Respondent No.2, however the complaint was filed on 28th September, 2006 and cognizance thereon was taken on 3rd September, 2009. In view of Section 468 Cr.P.C., the period of limitation for taking cognizance for an offence under Section 406 IPC was three years and the learned Trial Court took cognizance much beyond the period of three years. Further, no application

for condonation of delay in taking the cognizance was filed by Respondent No.2 and the learned Trial Court also did not take note of this fact. Learned counsel for the Petitioners contends that admittedly the time for taking loan was extended as is evident from the agreement dated 10 th November, 1991 between the parties. Petitioner No.1 was only a guarantor and the complainant wants to implicate the Petitioners. It is further contended that on the basis of photocopies placed on record by the complainant, which were only marked documents, the process of summoning has been issued against the Petitioners. Hence the impugned order and the proceedings be set aside.

3. Learned amicus curiae appearing for Respondent No.2 on the other hand contends that the offence under Section 406 IPC is a continuing offence, thus no period of limitation can be prescribed as per the provision of Section 472 Cr.P.C. Reliance in this regard is placed on Bhagirath Kanoria and Ors. Vs. State of M.P. AIR 1984 SC 1688 and Renu & Ors. Vs. The State of Haryana & Anr. 1990 (3) Crimes 226. Further, the complainant did not have documents in his possession and thus produced the photocopies before the learned Trial Court when his statement was recorded. At this stage, the Court has only to form a prima facie view and further formal proof of documents can be done at the stage of trial.

4. I have heard learned counsel for the parties. Briefly the complaint filed by Respondent No.2 alleges that Petitioner No.1 was the brother of one Ramesh Chandra and friend of the Complainant. At the time when the offence was committed, Petitioner No.1 was working as a Probationary Officer in State Bank of India, Welcome Branch, Delhi. Since the Complainant was in urgent need of money, he approached Petitioner No.1

for availing loan of Rs. 30,000/-. The Complainant took three gold loans from State Bank of India, Krishna Nagar in the year 1989 through Petitioner No.1. The three loans were taken in the names of the Complainant/Respondent No.2, one Raj Bahadur and Smt. Rita Chandra Petitioner No.2 herein i.e. wife of Petitioner No.1. These loans were taken as short-term loans and the complainant thus had Rs. 30,000/- in his possession. The complainant along with Shri Raj Bahadur went to the house of the Petitioners and persuaded Petitioner No.1 to reach the bank to redeem the gold by discharging the loan. Petitioner No.1 told that he would go to the bank on the next day. When Petitioner No.1 did not go to the bank on that day the complainant entrusted a sum of Rs. 30,000/- to Petitioner No.1, who kept the same in his almirah. After two days, the complainant again went to the house of Petitioner No1 and asked him to go to the bank to repay the loan on which he said that he had spent the money and he will get the same deposited as and when he has the money. However, Petitioner No.1 did not deposit the money on one pretext or other. On 2nd June, 1991 when the complainant strictly asked Petitioner No.1 to return the money he refused to do so and exhorted the Complainant to do anything he liked. On the complainant making a complaint to PS Anand Vihar, an inquiry was conducted and it was confirmed that there was a loan transaction. However, no FIR was registered as according to the SHO, PS Anand Vihar the incident related to PS Shahdara. The complainant then gave a complaint to SHO PS Shahdara also, however no FIR was registered. The complainant repeatedly demanded his gold back, however the Petitioners did not return the same. Hence he filed the abovementioned complaint. On a status report being called the learned Trial Court did not proceed with the matter by directing

registration of FIR, however recorded the statement of Respondent No.2/complainant on 14th July, 2008. Pursuant thereto, the Petitioners were summoned for offence under Section 406 IPC.

5. The primary contention of learned counsel for the Petitioners is that the order of cognizance is barred by limitation. In view of Section 472 Cr.P.C. since the offence under Section 406 IPC is a continuing offence, a fresh period of limitation begins to run at every moment of the time during which the offence continues. As long as the entrusted property is not returned, the offence continues. Thus, in view of Section 472 Cr.P.C. the period of limitation would not apply and there was no need for Respondent No.2 to have filed an application for condonation of delay and the Magistrate to have taken the same into consideration.

6. Further, with regard to the grievance of the Petitioners that only photocopies have been produced in the evidence of Respondent No.2, it may be noted that at this stage the Court has to see the prima facie evidence on record. The trial is yet to start after framing of the charge against the Petitioners and during the said trial the parties would be at liberty to produce their documents and exhibit the same. At this stage, I find no reason to interfere with the impugned order or quash the proceedings pursuant thereto.

7. Petition and application are dismissed.

(MUKTA GUPTA) JUDGE MARCH 20, 2012 'ga'