The central legal point established in the judgment is the interpretation and application of Section 409 I.P.C. in relation to the accused's role as an agent and the distinction between Section 409 and Section 406 I.P.C.

JUDGMENT :

SUBHASH VIDYARTHI, J.

1. Heard Sri Ratnesh Kant Agnihotri, Advocate holding brief of Ms. Ranjana Agnihotri, the learned counsel for the revisionist and Ms. Charu Singh, the learned A.G.A. for the State.

2. By means of the instant revision filed under Section 397/401 Cr.P.C. the revisionist has assailed the validity of order dated 21.04.2022 passed by the Additional Civil Judge (Junior Division)/ Judicial Magistrate, Court No. 3, Unnao in Misc. Case No. 1392/2021, whereby, the revisionist's application for discharge under Section 239 Cr.P.C. has been rejected.

3. Briefly stated, the facts of the case are that an F.I.R. was lodged on 08.04.1994, stating that the complainants are old members of Sadhan Sahkari Samiti Ltd. They used to take loan for purchasing fertilizers, seeds and cattle from the Samiti and to repay the same. The revisionist was Secretary of Sadhan Sahkari Samiti and he had removed the entire record of the Samiti somewhere around the year 1987. Lock of the Samiti premises was broken open by the Tehsildar but even thereafter, the record was not handed over by the revisionist. Thereafter, the government had announced waiver of the loans. About a month prior to lodging of the F.I.R, the applicant had demanded passbooks of the complainants on the pretext that he would get the loan waiver entered in the passbooks. Accordingly, the complainants had handed over their passbooks to the revisionist. Thereafter, the new secretary of Sadhna Sahkari Samiti was demanding money from the complainants. Upon making inquiries from the bank, the complainants came to know that the revisionist has got entries of amount made in excess of the amounts borrowed by the complainants. The revisionist was not returning the passbooks of the complainants.

4. After investigation, a final report was submitted on 03.01.1996. However, even after submissions of the final report, the complainant was summoned and his statement was recorded on 02.06.1998 wherein he stated that the final report had wrongly been submitted. Accordingly, cognizance of the offence was taken by means of an order dated 17.08.1999.

5. The revisionist has challenged the order dated 17.08.1999 by filing application under Section 482 Cr.P.C. No. 3514 of 2009, which was disposed off by means of an order dated 18.09.2009, without entering into the merits of the case, directing that the revisionist may apply for bail and it was further stated that the plea that the offence under Section 409 I.P.C. is not made, out can be raised at the time of framing of charges by moving a discharge application. Thereafter, the revisionist moved an application for discharge on 23.07.2010 which has been rejected by means of the impugned order dated 21.04.2020.

6. The learned counsel for the applicant submitted that the proceedings are barred by Section 468 Cr.P.C. which provides as follows:

“Bar to taking cognizance after lapse of the period of limitation. Except as otherwise provided elsewhere in this Code, no Court, shall take cognizance of an offence of the category specified in Sub-Section (2), after the expiry of the period of limitation.

The period of limitation shall be:

1. six months, if the offence is punishable with fine only.

2. one year, if the offence is punishable with imprisonment for a term not exceeding one year.

3. three years, if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years.

For the purposes of this section, the period of limitation, in relation to offences which may be tried together, shall be determined with reference to the offence which is punishable with the more severe punishment or, as the case may be, the most severe punishment.”

7. As per the learned counsel for the applicant, Section 406 I.P.C. provides for a maximum punishment for imprisonment up to three years and as per the provision contained in Section 468 (2)(c), the limitation for taking cognizance of an offence will be three years and no court can take cogniz