1. This revision petition is directed against the common order dated 25.2.2015 in C.M.P.Nos.185 and 275 of 2015 in C.C.No.515 of 2012 passed by the Court of Judicial First Class Magistrate, Kattappana. The revision petitioner is the second accused therein. He moved the said petitions along with other accused with the prayer to drop the proceedings in the calender case. Earlier, F.I.R. was registered against the revision petitioner on 22.12.2010 and the final report was filed on 10.04.2011. Cognizance of the aforesaid offences was taken and it was taken on file and registered as C.C.No.515 of 2012 and the revision petitioner was charged for commission of offence punishable under section 406 read with section 34 I.P.C.

2. The case of the prosecution is that the Board Members of the Idukki District Wholesale Consumer Store bearing No.K.444 viz., the Managing Director and Salesman, have committed breach of trust in respect of the property of the said consumer store and thereby caused a loss to the tune of Rs.9,06,904.34 during the period between 2004 and 31.12.2006. In C.C.No.515 of 2012, the revision petitioner filed the above miscellaneous petition, in the year 2015, taking up the contention that it was after the period of limitation that cognizance was taken in the year 2012 and therefore, it is bad in law in the light of the provisions under section 468, Cr.P.C. The learned Magistrate after hearing the revision petitioner and the learned Assistant Public Prosecutor considered the aforesaid question and passed the impugned order dismissing the petition and condoning the delay. The said order is under challenge on various grounds.

3. I have heard the learned counsel for the revision petitioner and the learned Public Prosecutor. As noticed hereinbefore, the contention of the revision petitioner is that, he along with the co-accused are charge sheeted for the commission of offence punishable under section 406 read with section 34 of the Indian Penal Code and since the maximum sentence that could be imposed for the offence under section 406 I.P.C. is only three years, the period of limitation prescribed under section 468(2)(c) Cr.P.C would apply in the matter of taking of cognizance of the said offence and therefore, it ought not have been taken after the period of limitation viz., after three years. Per contra, the learned Public Prosecutor contended that no legal infirmity or illegality could be attributed in the matter of condoning the delay and also in taking cognizance of the aforesaid offence against the revision petitioner and therefore, this revision petition is liable to be dismissed.

4. Indisputably, in this case, the final report was laid beyond the period of limitation. Paragraph 4 of the impugned order would reveal that the learned Magistrate had perused the prosecution records and found that the final report was filed beyond the period of limitation and also that the prosecution had not explained the delay in filing the final report. Evidently, it is after taking note of all such aspects and taking note of the nature of the offence alleged against the revision petitioner and the co-accused and upon arriving at the conclusion that it is necessary to condone the delay in the interest of justice that the impugned order was passed.

5. Certain aspects emerging from the very impugned common order require consideration while considering its sustainability. It would reveal that even prior to condoning the delay in filing the final report, cognizance of the offence under section 406, I.P.C. was taken and it was registered as C.C.No.515 of 2012. Though cognizance was taken and the case was taken on file and registered as C.C.No.515 of 2012 as early as in the year 2012, the revision petitioner did not challenge the same and in fact, he took up the challenge against the said action in taking cognizance only now when his application for dropping the proceedings on the ground of taking cognizance of the offence under section 40