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IN THE HIGH COURT OF BOMBAY
S.P. Kurdukar, J.
Kamal H. Javeri others ... Petitioners.
Versus
Chandulal Gulabchand Kothari others .... Respondents.
Criminal Application No. 1329 of 1983, decided on 3-9-1984.
Advocates appeared :
K.M. Desai and A.K. Desai and M.P. Vashi, i/b. Crawford Bayley and Co., for petitioners.
A.G. Sabnis with Niranjan Singh Ajwani, for respondent No. 1.
J. A. Barday, P. P., for State.
CRIMINAL PROCEDURE CODE - LIMITATION - SECTION 468 - COGNIZANCE OF OFFENCE - TAKING COGNIZANCE - INTERPRETATION - DEFAMATION - SECTION 500 OF THE INDIAN PENAL CODE - COMPLAINT - FILING WITHIN LIMITATION - MAGISTRATE'S JURISDICTION - EXTENSION OF LIMITATION PERIOD - SECTION 473 OF THE CRIMINAL PROCEDURE CODE - APPLICATION FOR CONDONATION OF DELAY - PERJURY PROCEEDINGS - RELEVANCE - INTEREST OF JUSTICE - PROPRIETY - DISMISSAL OF PETITION.
Fact of the Case:
The petitioners, accused in a defamation case, challenged the order of issuance of process against them under section 500 of the Indian Penal Code. The complaint was filed by the respondent, who alleged that the petitioners had filed two complaints against him and two others for cheating and conspiracy, which were dismissed by the Magistrate. The respondent claimed that the allegations made against him in those complaints were false and defamatory, causing damage to his reputation and business. The petitioners argued that the complaint was barred by limitation under section 468 of the Criminal Procedure Code and that the Magistrate lacked jurisdiction to take cognizance of the offence.
Finding of the Court:
The Court held that the complaint was filed within the limitation period prescribed under section 468 of the Criminal Procedure Code. The Court interpreted section 468 to mean that the limitation period begins from the date of filing the complaint, not from the date of cognizance or issuance of process by the Magistrate. The Court also held that the Magistrate had jurisdiction to take cognizance of the offence since the complaint was filed within the limitation period. The Court further held that the pendency of perjury proceedings against the petitioners did not bar the prosecution of the defamation case and that it was in the interest of justice to allow the complainant to proceed with the complaint.
Issues: 1. Whether the complaint was barred by limitation under section 468 of the Criminal Procedure Code? 2. Whether the Magistrate had jurisdiction to take cognizance of the offence? 3. Whether the pendency of perjury proceedings against the petitioners barred the prosecution of the defamation case? 4. Whether it was in the interest of justice to allow the complainant to proceed with the complaint?
Ratio Decidendi: 1. The limitation period under section 468 of the Criminal Procedure Code begins from the date of filing the complaint, not from the date of cognizance or issuance of process by the Magistrate. 2. The Magistrate has jurisdiction to take cognizance of an offence if the complaint is filed within the limitation period prescribed under section 468 of the Criminal Procedure Code. 3. The pendency of perjury proceedings against the accused does not bar the prosecution of a defamation case. 4. It is in the interest of justice to allow the complainant to proceed with the defamation complaint.
Final Decision: The petition was dismissed, and the rule was discharged with no order as to costs.
2. The petitioners are the original accused who are hereinafter referred to as 'the accused' in Criminal Case No. 246/S of 1983 filed by the 1st respondent being the private complaint in the Court of Metropolitan Magistrate, 28th Court, Esplanade, Bombay. This complaint was filed on June 7, 1983. In order to appreciate the allegations contained in this complaint, it would be necessary to refer to two other complaints filed by the accused preceding this private complaint which according to the complainant formed the basis for his criminal action under sections 500, 114, 34 of the Indian Penal Code.
Both the accused are the employees of Godrej Company. It is also not in dispute that one Saindas Bhandari is the proprietor of the firm known as Pragati Enterprises. Roshanlal Wadhera is the nephew of Saindas Bhandari and was connected with the business of Pragati Enterprises. Pragati Enterprises carry on the business in edible oils which they used to purchase in bulk quantity from Godrej Soaps Ltd. The accused No. 1 filed Criminal Case No. 79/S of 1979 in the capacity of Sales Manager (Edible Oils) of Godrej Soaps Ltd. against Saindas Bhandari, Roshanlal Wadhera and Chandu Kothari, the present complainant. That case was filed for the offence punishable under section 34 and/or under section 120-B read with section 420 of the Indian Penal Code for cheating the Godrej Soaps Ltd. for Rs. 2,26,300/-. This complaint is hereinafter related to as the 'first complaint'. It is alleged in this first complaint that Sanidas Bhandari is the proprietor of the firm known as Pragati Enterprise. Roshanlal Wadhera and Chandulal Kothari used to assist Sanidas in the business of the firm of Pragati Enterprise.
3. It is then stated in this first complaint that during the period between December 1977 and July 1978, one or other of the accused from time to time placed orders worth Rs. 14 lacs and the same were executed by the Company on each against delivery basis. On July 12, 1978, the Company had to effect delivery of 550 tins of oil but at that time it was noticed that the blank cheques signed by Saindas had been exhausted and, therefore, the complaint told the accused No. 1 on the telephone on July 11, 1978 to send him the cheques duly signed to enable the Company to effect the delivery against payment. Accused No. 1 informed the complainant that he had already posted few signed cheques and the delivery should not be held up. Accused No. 2 also repeated the same request and told him that the cheque were already sent by post and the same will be received by July 15, Saturday or latest by July 17, 1978 Monday. Relying on these representations and assurances given by accused No. 1, the Company delivered 2100 tins of edible oils worth Rs. 2,26,300/-. No cheques signed by accused No. 1 were received as represented and promised and, therefore, the complainant contacted the accused Nos. 1 and 2 when they accepted for having made a false statement and further alleged that since they could not recover the outstanding from the customers they were unable to pay the price. The company therefore suspended delivery of further edible oil to accused Nos. 1 and 2 . It was then alleged in the first complaint that on or about August 31, 1978 accused Nos. 1 and 2 appealed to the Company to effect delivery on C.O.D. basis and promised to clear all the outstanding by November 1978. The Company however taking a charitable view applied the edible oil tins to the accused Nos. 1 and 2 but, however, accused Nos. 1 and 2 failed and neglected to pay the price. It was then alleged in the complaint that accused Nos. 1 and 2 have defrauded the Company
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