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IN THE HIGH COURT OF ALLAHABAD
SADHNA RANI THAKUR, J.
Lalit Kumar – Appellant
Versus
State of U.P. and Another - Respondent
Application U/S 482 No. 45327 of 2019
Decided on : 06-04-2023
Indian Penal Code, 1860 - Section 406 and 420 –Criminal Procedure Code,1973 – Section 468 - Offence of Cheating - Charged - Prayer is made to quash the order -Opp. Party no. 2 against applicant alleging therein that opp. Party no. 2 and applicant had agreed orally for sale of two plots belonging to applicant to the opp. Party no. 2- Date was fixed for execution of sale deed - Whole consideration of Rs. 2 lacs had been paid to applicant in advance on the date fixed for sale deed - All the stamp papers were purchased in name of applicant - Documentation was also done on same day and same was submitted in registry office - But at time of registry, applicant eloped - Allegation is that after taking due consideration and getting all documents prepared, applicant neither executed sale deed nor returned the money to opp. Party no. 2 and cheated opp. Party no. 2 - If the procedure takes long time, the applicant cannot be penalized for this delay, hence, prayer is made accordingly. [Para 8]
Finding of the Court: If Court go through provision under section 468 Cr.P.C., section relates to bar taking cognizance after lapse of period of limitation - Admittedly, applicant has been summoned to face trial for offence under section 406 I.P.C. wherein maximum sentence is 3 years imprisonment or imprisonment with fine or both - As per this section offence is punishable with imprisonment for a term up to 3 years and limitation period of taking cognizance in case is also 3 year - On basis of this provision only, the applicant makes a prayer that offence is of year complaint has been registered and cognizance has been taken in year, so complaint and cognizance both are time barred - It is found that as per facts of this case there was a delay of 12 years between filing complaint and taking cognizance and this delay was attributed to complainant who did not produce any witness in support of his protest petition but in case in hand, position is different.
Result: Application u/s 482 Cr.P.C. being devoid of merits is liable to be dismissed and is accordingly dismissed.
JUDGMENT :
1. Heard learned counsel for the applicant, learned counsel for the opp. party no. 2 and perused the record.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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.
8. 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 contes
It would be considered that process has been initiated within time, hence, proceedings cannot be said to be time barred.
Point of Law : Language of Section 468(3) makes it imperative that the limitation provided for taking cognizance is in respect of the offence charged and not in respect of offence finally proved.
Power under Section 473 of Cr.P.C to condone the delay was not exercised. The cognizance taken by the learned Magistrate overlooking the interdiction under Section 468 of Cr.P.C can under no circumst....
The period of limitation for taking cognizance of an offence is computed from the date of the offence until the date of filing the charge-sheet or complaint. Cognizance taken after the expiry of this....
Cognizance –Delay - Although the learned Magistrate has got powers to condone the delay in appropriate case under Section 473 Cr.PC but while taking cognizance of the matter, he must assign reasons a....
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