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REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 61 of 2013

Udai Shankar Awasthi       …Appellant

Versus

State of U.P. & Anr.               …Respondents

WITH  

     CRIMINAL APPEAL NO. 62 of 2013         

J U D G M E N T

Dr. B.S. CHAUHAN, J.

1. Both these appeals have been preferred against the impugned  

judgment  and order  dated 13.3.2012,  passed  by the High Court  of  

Judicature at Allahabad in Criminal Misc. Application No. 41827 of  

2011, by which the High Court has rejected the petition filed under  

Section 482 of Code of Criminal Procedure,1973 (hereinafter referred  

to as the ‘Cr.P.C.’) for quashing the proceedings in Complaint Case  

No.628 of 2011 (Sudha Kant Pandey v. K.L. Singh & Anr.) under

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Sections 403 and 406 of Indian Penal Code, 1860 (hereinafter referred  

to as the ‘IPC’).

2. Facts and circumstances giving rise to these appeals are:

A. M/s.  Manish  Engineering  Enterprises  of  which  respondent  

No.2, Sudha Kant Pandey, claims to be the proprietor, was given a  

work  order  by  M/s.  Indian  Farmers  Fertilizer  Cooperative  Ltd.  

(hereinafter referred to as “IFFCO”), Phulpur unit,  on 1.2.1996 for  

the purpose of conducting repairs in their plant worth an estimated  

value  of  Rs.13,88,750/-.  The  said  work  order  was  subsequently  

cancelled by IFFCO on 7.2.1996.  

B. Aggrieved,  M/s.  Manish  Engineering  Enterprises  made  a  

representation  dated  21.3.2001,  to  IFFCO  requesting  it  to  make  

payments for the work allegedly done by it. As there was no response  

from the management of IFFCO, the said  concern filed Writ Petition  

No. 19922 of 2001  before the High Court of Allahabad, seeking a  

direction  by  it  to  IFFCO  for  the  payment  of  an  amount  of  

Rs.22,81,530.22 for alleged work done by it.  

C. The High Court disposed of the said Writ Petition vide order  

dated  25.5.2001,  directing  IFFCO to  dispose  of  the  representation  

dated 21.3.2001, submitted by the said concern within a period of 6  

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weeks.   In pursuance of the order of the High Court dated 25.5.2001,  

the  said  representation  dated  21.3.2001,  was  considered  by  the  

Managing Director of IFFCO and was rejected by way of a speaking  

order dated 15.10.2001, and the same was communicated to the said  

concern vide letter dated 29.10.2001.  

D. M/s.  Manish  Engineering Enterprises  filed  Writ  Petition  No.  

7231 of 2002 before the High Court of Allahabad for the recovery of  

the said amount, which stood disposed of vide order dated 20.2.2002,  

with a direction to pursue the remedy available under the arbitration  

clause  contained  in  the  agreement  executed  in  pursuance  of  the  

aforementioned work order.  

E. M/s.  Manish  Engineering  Enterprises  filed  Arbitration  

Application No. 24 of 2002 before the High Court of Allahabad under  

Section 11 of the Arbitration and Conciliation Act, 1996 (hereinafter  

referred  to  as  ‘the  Act  1996’)  on  24.5.2002,  praying  for  the  

appointment of an arbitrator, in view of the fact that the application  

made by the said concern for the purpose of appointing an arbitrator,  

had been rejected by IFFCO as being time barred. The High Court  

therefore,  vide judgment  and order dated 17.10.2003,  appointed an  

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arbitrator. However, the said arbitrator expressed his inability to work.  

Thus, vide order dated 13.2.2004, another arbitrator was appointed.  

F. M/s. Manish Engineering Enterprises filed a Claim Petition on  

various counts, including one for an amount of Rs.9,27,182/- towards  

the alleged removal of  items from their  godown within the IFFCO  

premises.  

The learned arbitrator so appointed, framed a large number of  

issues and rejected in particular, the claim of alleged removal of items  

from  the  godown  of  M/s.  Manish  Enterprises,  located  within  the  

IFFCO premises (being issue No.13), though he accepted some other  

claims vide award dated 11.3.2007.

IFFCO filed an application under Section 34 of the Act, 1996  

for the purpose of setting aside the award dated 11.3.2007, before the  

District Court, Allahabad and the matter is sub-judice.

G. Mr.  Sabha  Kant  Pandey,  the  brother  of  respondent  

no.2/complainant, filed Complaint Case No. 4948 of 2009 against the  

officers of IFFCO on 23.11.2009 under Sections 323, 504, 506, 406  

and 120-B IPC before the court of Special Chief Judicial Magistrate,  

Allahabad.  Therein,  some witnesses including the said complainant  

were examined.  

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H. Sabha  Kant  Pandey,  the  brother  of  respondent  no.2  filed  

another Complaint  Case No. 26528 of 2009, against the appellants  

and others under Sections 147, 148, 323, 504, 506, 201 and 379 IPC.  

In the said complainant, the brother of respondent no.2 was examined  

alongwith  others as a witness.  

I. Complaint  case  no.  4948 of  2009 was rejected by way of  a  

speaking order passed by the Special Chief Judicial Magistrate, vide  

order dated 20.3.2010 under Section 203 Cr.P.C.

J. Respondent no.2 filed Criminal Complaint No. 1090 of 2010  

against  the  appellants  and others  on  2.4.2010,  under  Sections  323,  

504,  506,  406  and  120-B  IPC  before  the  Special  Chief  Judicial  

Magistrate,  Allahabad.  After  investigating  the  matter,  the  police  

submitted  a  report  on  18.4.2010  stating  that,  allegations  made  in  

complaint case no. 1090 of 2010 were false.  

K. The  Additional  Chief  Judicial  Magistrate,  vide  order  dated  

18.8.2011 dismissed complaint case no. 26528 of 2009 filed by the  

brother of respondent no.2.

L. Respondent no.2 filed another complaint case no. 628 of 2011  

on 31.5.2011 under Sections 403 and 406 IPC, in which, after taking  

cognizance,  summons  were  issued  to  the  present  appellants  under  

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Sections  403  and  406  IPC  on  16.7.2011,  and  vide  order  dated  

22.9.2011, bailable warrants were issued against the appellants by the  

Addl. CJM, Allahabad. Subsequently, vide order dated  21.11.2011,  

non-bailable warrants were also issued against one of the appellants  

by the Addl. CJM, Allahabad.  

In view of the fact that K.L. Singh, appellant  in the connected  

appeal, could not be served properly as the correct address was not  

given, on being requested, the Addl. CJM withdrew the non-bailable  

warrants on 17.12.2011.  

M. Aggrieved, the appellants filed Criminal Misc. Application No.  

41827 of 2011 under Section 482 Cr.P.C. before the High Court for  

quashing  the  said  criminal  proceedings,  which  has  been  dismissed  

vide impugned judgment and order.  

Hence, these appeals.  

3. Shri  Mukul  Rohtagi  and  Shri  Nagendra  Rai,  learned  senior  

counsel  appearing  for  the  appellants,  have  submitted  that  as  the  

complaint cases filed by the brother of the respondent no.2 in regard  

to  the  same  subject  matter  were  dismissed  by  the  magistrate  

concerned, the question of entertaining a fresh complaint could not  

arise. A fresh complaint cannot be entertained during the pendency of  

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the complaint case filed by respondent No. 2, with respect to which,  

the police filed a final report, stating the same to be a false complaint.  

It was further submitted, that there was suppression of material facts,  

as  in  Complaint  Case  No.  628  of  2011,  dismissal  of  the  earlier  

complaint  was not  disclosed.   Furthermore,  as  the matter  is  purely  

civil  in nature, and in view of the fact that  arbitration proceedings  

with respect to the very same subject matter are presently sub-judice,  

and  the  claim  of  respondent  no.2  on  this  count  has  already  been  

rejected  by  the  arbitrator,  entertaining/continuing  criminal  

proceedings in the said matter is clearly an abuse of the process of the  

court. Moreover, the alleged claim is related to the period of 1996. A  

complaint made after a lapse of 15 years is barred by the provisions of  

Section 468 Cr.P.C., and the High Court has erred in holding the same  

to be a  continuing offence.   As,  in pursuance  of  the High Court’s  

order  dated  25.5.2001,  the  representation  of  respondent  no.2  dated  

21.3.2001 was decided by the Managing Director, IFFCO vide order  

dated 15.10.2001, the limitation period began from the date of the said  

order, or at the most from  29.10.2001, that is, the date on which, the  

order of rejection was communicated.  

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The initiation of criminal proceedings  is nothing but an attempt  

by the frustrated litigant  to give vent to his frustration, by invoking  

the jurisdiction of  the criminal  court  and thus,  the proceedings  are  

liable to be quashed.  

4. Per  contra,  Shri  Devrrat,  learned  counsel  appearing  for  

respondent no.2, has submitted that the High Court has rightly held  

that the same was in fact, a case of continuing offence. Therefore, the  

question of limitation does not arise. The law does not prohibit the  

initiation of criminal proceedings where there has been breach of trust  

and  further,  in  such  a  case,  in  spite  of  the  fact  that  arbitration  

proceedings are pending, a criminal  complaint  is maintainable,  and  

the  court  concerned  has  rightly  entertained  the  same.  There  is  no  

prohibition in law as regards maintaining a second application, even  

though the earlier application has been dismissed. Thus, the appeals  

are liable to be dismissed.  

5. We  have  considered  the  rival  submissions  made  by  learned  

counsel  for  the parties  as  well  as  by Shri  Gaurav Bhatia  and Shri  

Annurat, learned counsel appearing for the State of U.P. and  perused  

the record.  

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In light of the facts of these cases, it is desirable to deal first,  

with the legal issues involved herein.  

LIMITATION IN CRIMINAL CASES- Section 468 Cr.P.C.:

6. Section 468 Cr.P.C. places an embargo upon court from taking  

cognizance  of  an  offence  after  the  expiry  of  the  limitation  period  

provided therein. Section 469 prescribes when the period of limitation  

begins. Section 473 enables the court to condone delay, provided that  

the  court  is  satisfied  with  the  explanation  furnished  by  the  

prosecution/complainant,  and  where,  in  the  interests  of  justice,  

extension of the period of limitation is called for. The principle  of  

condonation  of  delay  is  based  on  the  general  rule  of  the  criminal  

justice  system  which  states  that  a  crime  never  dies,  as  has  been  

explained  by  way  of  the  legal  maxim,  nullum  tempus  aut  locus  

occurrit regi (lapse of time is no bar to the Crown for the purpose of it  

initiating  proceeding  against  offenders).   A  criminal  offence  is  

considered  as  a  wrong  against  the  State  and  also  the  society  as  a  

whole,  even  though  the  same  has  been  committed  against  an  

individual.  

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7. The question of delay in launching a criminal prosecution may  

be a circumstance to be taken into consideration while arriving at a  

final  decision,  however,  the  same  may  not  itself  be  a  ground  for  

dismissing  the  complaint  at  the  threshold.  Moreover,  the  issue  of  

limitation must be examined in light of the gravity of the charge in  

question. (Vide:  Japani Sahoo v. Chandra Sekhar Mohanty,  AIR  

2007 SC 2762; Sajjan Kumar v. Central Bureau of Investigation,  

(2010) 9 SCC 368; and Noida Entrepreneurs Association v. Noida  

& Ors., AIR 2011 SC 2112).  

8. The court, while condoning delay has to record the reasons for  

its satisfaction, and the same must be manifest in the order of the court  

itself.  The court is further required to state in its conclusion, while  

condoning such delay, that such condonation is required in the interest  

of  justice.   (Vide:  State  of  Maharashtra  v.  Sharad   Chandra  

Vinayak Dongre & Ors., AIR 1995 SC 231; and  State of H.P. v.  

Tara Dutt & Anr., AIR 2000 SC 297).  

9.          To sum up, the law of limitation prescribed under the Cr.P.C.,  

must  be  observed,  but  in  certain  exceptional  circumstances,  taking  

into consideration the gravity of the charge, the Court may condone  

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delay,  recording reasons for the same, in the event that it  is  found  

necessary to condone such delay in the interest of justice.    

CONTINUING OFFENCE:

10. Section  472  Cr.P.C.  provides  that  in  case  of  a  continuing  

offence, a fresh period of limitation begins to run at every moment of  

the time period during which the offence continues. The expression,  

‘continuing offence’ has not been defined in the Cr.P.C. because it is  

one of those expressions which does not have a fixed connotation, and  

therefore, the formula of universal application cannot be formulated in  

this respect.   

11. In Balakrishna Savalram Pujari Waghmare & Ors. v. Shree  

Dnyaneshwar Maharaj Sansthan & Ors.,  AIR 1959 SC 798, this  

Court  dealt  with  the  aforementioned  issue,  and  observed  that  a  

continuing  offence  is  an  act  which  creates  a  continuing  source  of  

injury, and renders the doer of the act responsible and liable for the  

continuation of the said injury.  In case a  wrongful act causes an  

injury  which  is  complete,  there  is  no  continuing  wrong  even  

though the damage resulting from the said act may continue. If the  

wrongful act  is of such character that the injury caused by it  itself  

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continues,  then  the  said  act  constitutes  a  continuing  wrong.  The  

distinction between the two wrongs therefore depends, upon the effect  

of the injury.  

In the said case, the court dealt with a case of  a wrongful act of  

forcible ouster, and held that the resulting injury caused, was complete  

at the date of the ouster itself,  and therefore there was no scope for  

the application of Section 23 of the Limitation Act in relation to the  

said case.  

12. In Gokak Patel  Volkart Ltd. v.  Dundayya Gurushiddaiah  

Hiremath &  Ors.,  (1991) 2 SCC 141, this Court dealt with the issue  

and held as under:   

“According  to  the  Blacks'  Law  Dictionary,   Fifth Edition, 'Continuing' means ‘enduring;   not  terminated  by  a  single  act  or  fact;   subsisting for a definite period or intended to   cover  or  apply  to  successive  similar   obligations  or  occurrences.’  Continuing   offence  means  ‘type  of  crime  which  is   committed over a span of time.’ As to period   of  statute  of  limitation  in  a  continuing   offence, the last act of the offence controls for   commencement  of  the  period.  ‘A continuing   offence,  such  that  only  the  last  act  thereof   within the period of the statute of limitations   need  be  alleged  in  the  indictment  or   information,  is  one  which  may  consist  of   separate  acts  or  a  course  of  conduct  but   which arises from that singleness of thought,   

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purpose  or  action  which  may  be  deemed a   single impulse.’ So also a 'Continuous Crime'   means "one consisting of a continuous series   of  acts,  which  endures  after  the  period  of   consummation,  as,  the  offence  of  carrying   concealed  weapons.  In  the  case  of   instantaneous crimes, the statute of limitation   begins to run with the consummation, while in   the case of continuous crimes it only begins   with the cessation of the criminal conduct or   act."

13. While deciding the case in Gokak Patel Volkart Ltd. (Supra),  

this Court placed reliance upon its earlier judgment in State of Bihar  

v. Deokaran Nenshi & Anr., AIR 1973 SC 908, wherein the court  

while dealing with the case of continuance of an offence has held as  

under:  

“A  continuing  offence  is  one  which  is   susceptible  of  continuance  and  is   distinguishable  from  the  one  which  is   committed once and for all. It is one of those   offences which arises out of a failure to obey   or comply with a rule or its requirement and   which  involves  a  penalty,  the  liability  for   which  continues  until  the  rule  or  its   requirement is obeyed or complied with. On   every  occasion  that  such  disobedience  or   non-compliance  occurs  and  recurs,  there  is   the  offence  committed.  The  distinction   between the two kinds of offences is between   an  act  or  omission  which  constitutes  an   offence  once  and  for  all  and  an  act  or   omission  which  continues  and  therefore,   constitutes  a  fresh  offence  every  time  or   

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occasion on which it continues. In the case of   a  continuing  offence,  there  is  thus  the   ingredient  of  continuance  of  the  offence   which  is  absent  in  the  case  of  an  offence   which takes place when an act or omission is   committed once and for all.”

(See also: Bhagirath Kanoria & Ors. v. State of M.P., AIR 1984 SC  

1688; and  Amrit Lal Chum v. Devoprasad Dutta Roy, AIR 1988  

SC 733).  

14. In  M/s.  Raymond  Limited  &  Anr.,  Etc.  Etc.  v.  Madhya  

Pradesh Electricity Board & Ors., Etc. Etc., AIR 2001 SC 238, this  

Court held as  under:

“It cannot legitimately be contended that the   word "continuously" has one definite meaning   only  to  convey  uninterrupted  ness  in  time   sequence  or essence  and on the other hand   the very word would also mean 'recurring at   repeated  intervals  so  as  to  be  of  repeated   occurrence'. That apart, used as an adjective   it draws colour from the context too.”

15. In  Sankar Dastidar v. Smt. Banjula Dastidar & Anr.,  AIR  

2007 SC 514, this Court observed as under:

“A suit  for damages, in our opinion, stands   on  a  different  footing  vis--vis  a  continuous   wrong in respect of enjoyment of one's right   in a property. When a right of way is claimed   whether public or private over a certain land   over  which  the  tort-teaser  has  no  right  of   

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possession, the breaches would be continuing   one.  It  is,  however,  indisputable  that  unless   the  wrong  is  a  continuing  one,  period  of   limitation  does  not  stop  running.  Once  the   period begins to run, it does not stop except   where  the  provisions  of  Section 22  of  the  Limitation Act would apply.”  

The Court further held:

“Articles 68, 69 and 91 of the Limitation Act   govern suits in respect of movable property.   For  specific  movable  property  lost  or   acquired  by  theft,  or  dishonest   misappropriation  or  conversion;  knowledge  as regards possession of the party shall be the   starting point of limitation in terms of Article   68. For any other specific movable property,   the time from which the period begins to run   would  be  when  the  property  is  wrongfully   taken,  in  terms  of  Article  69.  Article  91   provides for a period of limitation in respect   of  a  suit  for  compensation  for  wrongfully   taking  or  injuring  or  wrongfully  detaining   any other specific movable property. The time   from which the period begins to run would be   when  the  property  is  wrongfully  taken  or   injured  or  when  the  detainer's  possession   becomes unlawful.”

16. Thus,  in  view  of  the  above,  the  law  on  the  issue  can  be  

summarised to the effect that, in the case of a continuing offence, the  

ingredients of the offence continue, i.e., endure even after the period  

of consummation,  whereas in an instantaneous offence, the offence  

takes place once and for all i.e. when the same actually takes place.  In  

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such cases, there is no continuing offence, even though the damage  

resulting from the injury may itself continue.    

SECOND COMPLAINT ON SAME FACTS-MAINTAINABILITY:  

17. While considering the issue at hand in  Shiv Shankar Singh v.  

State of Bihar & Anr., (2012) 1 SCC 130, this Court, after considering  

its  earlier judgments in  Pramatha Nath Talukdar v. Saroj Ranjan  

Sarkar  AIR 1962 SC 876;  Jatinder Singh & Ors. v. Ranjit Kaur  

AIR 2001 SC 784; Mahesh Chand v. B. Janardhan Reddy & Anr.,  

AIR 2003 SC 702;  Poonam Chand Jain & Anr. v. Fazru AIR 2005  

SC 38 held:

“It is evident that the law does not prohibit   filing  or  entertaining  of  the  second   complaint even on the same facts provided   the earlier  complaint has been decided on  the  basis  of  insufficient  material  or  the   order  has  been  passed  without   understanding  the  nature  of  the complaint   or  the complete  facts  could not  be placed   before the court or where the complainant   came to know certain facts after disposal of   the first  complaint which could have tilted   the balance in his favour. However, second   complaint  would  not  be  maintainable   wherein  the  earlier  complaint  has  been   disposed of on full consideration of the case   of the complainant on merit.”

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18. The present appeals require to be decided on the basis of the  

settled legal propositions referred to hereinabove.  

Complaint  Case  No.4948  of  2009  was  filed  by  Sabha  Kant  

Pandey,  brother  of  respondent  no.2,  wherein,  he  claimed  to  be  a  

partner in the firm M/s Manish Engineering Enterprises, against one  

of the  appellants and other officers of IFFCO, under Sections 323,  

504,  506,  406  and  120B  IPC  at  Police  Statition  Phulpur,  District  

Allahabad,  alleging  that  the  said  Firm  had  been  given  a  separate  

godown/office  within  the  IFFCO compound,  wherein  their  articles  

worth  Rs.30-40  lacs,  as  well  as  their  documents  were  kept.   The  

complainant  was  not  permitted  to  remove  them  and  additionally,  

even the payment for the work done by the firm was not made, on  

certain technical grounds.  The officers of IFFCO, including Mr. U.S.  

Awasthi - the appellant, misbehaved with the complainant and kept  

the said articles worth Rs.30-40 lacs, as also the important documents,  

in addition to the entry gate pass required  to enter the plant by the  

complainant  and  his  brother  Sudhakant  (respondent  no.2  herein),  

therefore making it impossible for them to access their godown.

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19. The complaint was dealt with appropriately by the competent  

court,  wherein  the  present  complainant  was  also  examined  as  a  

prosecution witness. The Court took note of the fact of pendency of  

the Arbitration Proceedings with respect to the payment of dues, and  

came to the conclusion that  the complaint  had been filed to put  

pressure on IFFCO to obtain payments.  The said complaint was  

dismissed on merits.

20. Complaint Case No.26528 of 2009 was then filed by Sabhakant  

Pandey, brother of respondent no.2, against one of the appellants and  

also other officers of IFFCO under Sections 147, 148, 323, 504, 506,  

201  and  379  IPC  in  Police  Statition  Phulpur,  Allahabad,  making  

similar allegations, and giving full particulars of the outstanding dues.  

That complaint was heard and disposed of by the competent court,  

taking note of the fact that there had been a cross-complaint by the  

officers of IFFCO, wherein allegations were made to the effect that on  

19.12.2008, Arbitration Proceedings in Case No.1 of 2007 took place  

at  the residence of the Arbitrator,  a retired Judge of  the Allahabad  

High  Court,  wherein  Sabha  Kant  Pandey  and  Sudha  Kant  Pandey  

misbehaved with the Arbitrator, and he was hence forced to adjourn  

the  hearing  of  the  case.   Subsequently,  they  stood  in  front  of  his  

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house and shouted slogans, abusing the officers of IFFCO and even  

tried to beat them up.  The court dismissed the said complaint after  

recording the following findings:  

“In the opinion of the court, the complaint  filed by Sabhakant Pandey is  imaginary,  a  bald  story  with  an  intention  to  put  illegal  pressure and by suppressing material facts in  the complaint.”

21. Complaint  Case  No.1090  of  2010  was  filed  by  the  present  

complainant,  respondent  no.2  against  the  appellant  Udai  Shankar  

Awasthi and other officers of IFFCO under Sections 323, 504, 506,  

406 and 120B IPC, making similar allegations as were mentioned in  

the first complaint, to the effect that articles worth Rs.15-20 lacs in  

each  godown  were  lying  in  the  premises  of  IFFCO,  and  that  the  

complainant was not permitted to remove the same.  In the said case,  

after investigation, the police filed the final report stating that all the  

allegations made in the complaint were false.  The concluding part of  

the report reads as under:

“For last 6 months no body has turned  up to get his statement recorded in spite of  notice.   The application had been filed on  false  facts  and  complaint  was  bogus,  forceless and baseless and was liable to be  dismissed.”

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22. So far as the present complaint is concerned, the same has been  

filed under Sections 415, 406 and 403 IPC, wherein the allegation that  

their Bill had been cleared on 10.7.1996, but the requisite payment, to  

the tune of Rs.22,81,530/- was not made to the complainant.  Their  

claim  for  payment  was  wrongly  rejected.  Certain  articles  and  

documents  belonging  to  the  complainant  were  lying  within  the  

premises of IFFCO and the same were not returned to the complainant  

despite requests for the same.  In this case, after taking cognizance,  

summons were issued on 16.7.2011, under Sections 403 and 406 IPC,  

though the case under Section 415 IPC stood rejected.   

23. It is evident that in the said complaint, no reference was made  

by the complainant as regards the Arbitration Proceedings.  There was  

also no disclosure of facts to show that earlier complaints in respect of  

the same subject matter, had been dismissed on merits by the same  

court.

24. A copy of the Award made by the Arbitrator  was placed on  

record, wherein issue no.13 which dealt with the present controversy,  

i.e.   some material  and documents  were  placed in  the premises  of  

IFFCO and the return of the same was refused.  The claim as regards  

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the same, has been rejected.    There has been no mention of  such  

claim  and  its  rejection  by  the  said  concern,  in  either  of  the  writ  

petitions filed before the High Court earlier or even for that matter, in  

the  application  filed  by  the  said  concern  before  IFFCO,  for  the  

purpose of making appointment of an arbitrator, or in the application  

filed under Section 11 of the Act, 1996 before the High Court.  

25. In the counter affidavit  filed by respondent no.2, it  has been  

submitted that the contract was terminated by IFFCO fraudulently, to  

usurp the entire amount towards the work done by it and that IFFCO  

took illegal possession of all the goods and articles belonging to the  

firm lying within its premises, and as the amount had not been paid,  

the officers were guilty of criminal breach of trust and were therefore,  

liable to be punished.  However, the fact that earlier complaints had  

been filed by the brother of respondent no.2 Sabha Kant Pandey has  

been  admitted.   It  has  further  been  admitted  that  Arbitration  

Proceedings  are  still  pending,  but  it  has  also  simultaneously  been  

urged that criminal prosecution has nothing to do with the Arbitral  

award.

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26.   The  Magistrate  had  issued  summons  without  meeting  the  

mandatory requirement of Section 202 Cr.P.C., though the appellants  

were outside his territorial jurisdiction. The  provisions  of  

Section  202  Cr.P.C.  were  amended  vide  Amendment  Act  2005,  

making it  mandatory to postpone the issue of process where the  

accused resides in an area beyond the territorial  jurisdiction of  the  

Magistrate  concerned.  The  same  was  found  necessary  in  order  to  

protect innocent persons from being harassed by unscrupulous persons  

and making it obligatory upon the Magistrate to enquire into the case  

himself, or to direct investigation to be made by a police officer, or by  

such  other  person  as  he  thinks  fit  for  the  purpose  of  finding  out  

whether or not, there was sufficient ground for proceeding against the  

accused before issuing summons in such cases..  (See also:  Shivjee  

Singh  v.  Nagendra  Tiwary  &  Ors.,  AIR  2010  SC  2261;  and  

National Bank of Oman v. Barakara Abdul Aziz & Anr., JT 2012  

(12) SC 432).

27. Section  403  IPC  provides  for  a  maximum  punishment  of  2  

years, or fine or both; and Section 406 IPC provides for a maximum  

punishment of 3 years, or fine or both.   The limitation period within  

which cognizance must be taken, as per the provisions of Section 468  

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of Cr.P.C. is  three years.  In the case of an instantaneous offence, as  

per  the  provisions  of  Section  469  of  the  Cr.P.C.,  the  period  of  

limitation commences  on the date  of  offence.   In  the  instant  case,  

admittedly,  the  claim  of  the  said  firm  was  rejected  by  way  of  a  

speaking  order  dated  15.10.2001,  in  pursuance  of  the  order  of  the  

High Court dated 25.5.2001, and the said order was communicated  

vide letter dated 29.10.2001.  Respondent No. 2 correctly understood  

the nature of the offence and, therefore, subsequently approached the  

High Court for the purpose of seeking recovery of outstanding dues,  

wherein the High Court directed him to pursue the remedy available  

under the arbitration agreement between the parties.  In such a fact  

situation, it is beyond our imagination as to how the offence involved  

herein can possibly be termed as a continuing offence.  In fact, the  

damage  caused  by  virtue  of  non-payment  of  their  dues,  if  any,  is  

legally sustainable, may continue, but the offence is most certainly not  

a continuing offence, as the same has not recurred subsequent to order  

dated  15.10.2001,  even  though  the  effect  caused  by  it  may  be  

continuous in nature.  

In Arun Vyas & Ors. v. Anita Vyas, AIR 1999 SC 2071, this  

Court held that in a case of cruelty, the starting point of limitation  

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would be the last act of cruelty.  (See also: Ramesh & Ors. v. State  

of Tamil Nadu, AIR 2005 SC 1989).  

28. Approaching the court at a belated stage for a rightful cause, or  

even  for  the  violation  of  the  fundamental  rights,  has  always  been  

considered as a good ground for its rejection at the threshold.  The  

ground taken by the learned counsel  for  respondent No.  2 that  the  

cause of action arose on 20.10.2009 and 5.11.2009, as the appellants  

refused to return money and other materials, articles and record, does  

not have substance worth consideration.  In case a representation is  

made  by  the  person  aggrieved  and  the  same  is  rejected  by  the  

competent statutory authority, and such an order is communicated to  

the person aggrieved, making repeated representations will not enable  

the party to explain the delay.   

29. In  Rabindra Nath Bose & Ors. v. Union of India & Ors.,  

AIR 1970 SC 470, in spite of the fact that the Government rejected a  

representation  and  communicated  such  rejection  to  the  applicant  

therein,  his  subsequent  representations  were  entertained  by  the  

Government.  A Constitution Bench of this Court held as under:  

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“He says that the representations were being   received by the government all the time. But   there  is  a  limit  to  the  time  which  can  be   considered  reasonable  for  making  representations.  If  the  Government  has   turned down one representation, the making   of  another  representation  on  similar  lines   would not enable the petitioners to explain   the delay.”                           (Emphasis added)

30. In  State of Orissa v. Sri Pyarimohan Samantaray & Ors.,  

AIR  1976  SC  2617;  State  of  Orissa  etc.  v.  Shri  Arun  Kumar  

Patnaik & Anr. etc., etc., AIR 1976 SC 1639; and  Swatantar Singh  

v. State of Haryana & Ors., AIR 1997 SC 2105, a similar view has  

been reiterated.   

31. The view taken by this Court in Rabindra Math Bose (Supra)  

has been approved and followed in Sri Krishna Coconut Co. etc. v.  

East  Godavari  Coconut  and  Tobacco  Market  Committee, AIR  

1967 SC 973,  Karnataka Power Corporation Ltd. & Anr. v. K.  

Thangappan & Anr.,  AIR 2006 SC 1581; and  Eastern Coalfields  

Ltd. v. Dugal Kumar, AIR 2008 SC 3000.   

32. In Kishan Singh (dead) thr. Lrs. v. Gurpal Singh & Ors. AIR  

2010 SC 3624, this court while dealing with a case of inordinate delay  

in launching a criminal prosecution, has held as under:  

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“In cases where there is a delay in lodging a   FIR,  the  Court  has  to  look  for  a  plausible   explanation  for  such  delay.  In  absence  of   such an explanation, the delay may be fatal.   The  reason  for  quashing  such  proceedings   may not be merely that the allegations were   an  afterthought  or  had  given  a  coloured   version  of  events.  In  such  cases  the  court   should  carefully  examine  the  facts  before  it   for the reason that a frustrated litigant who   failed to succeed before the Civil Court may   initiate  criminal  proceedings  just  to  harass   the other side with mala fide intentions or the   ulterior motive of wreaking vengeance on the   other  party.  Chagrined  and  frustrated   litigants should not be permitted to give vent   to their frustrations by cheaply invoking the   jurisdiction of the criminal court.  The court   proceedings  ought  not  to  be  permitted  to   degenerate into a weapon of harassment and   persecution. In such a case, where an FIR is   lodged clearly with a view to spite the other   party  because  of  a  private  and  personal   grudge and to enmesh the other party in long   and arduous criminal proceedings, the court   may take a view that it amounts to an abuse   of  the  process  of  law  in  the  facts  and   circumstances  of  the  case.  (Vide  :   Chandrapal Singh & Ors. v. Maharaj Singh   & Anr., AIR 1982 SC 1238; State of Haryana  & Ors. v. Ch. Bhajan Lal & Ors., AIR 1992  SC 604; G.  Sagar Suri  & Anr.  v.  State  of   U.P.& Ors.,  AIR 2000 SC 754; and  Gorige  Pentaiah v. State of A.P. & Ors., (2008) 12  SCC 531).”

33. The instant  appeals  are squarely covered by the observations  

made in  Kishan Singh (Supra)  and thus,  the proceedings  must  be  

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labeled as nothing more than an abuse of the process of the court,  

particularly in view of the fact that, with respect to enact the same  

subject  matter,  various  complaint  cases  had  already  been  filed  by  

respondent No.2 and his brother, which were all dismissed on merits,  

after the examination of witnesses.  In such a fact-situation, Complaint  

Case  No.  628  of  2011,  filed  on  31.5.2001  was  not  maintainable.  

Thus,  the  Magistrate  concerned  committed  a  grave  error  by  

entertaining the said case, and wrongly took cognizance and issued  

summons to the appellants.  

34. In  view  of  above,  the  appeals  are  allowed.   The  impugned  

judgment  dated  13.3.2012  is  set  aside  and  the  proceedings  in  

Complaint  Case  No.  628  of  2011  pending  before  the  Additional  

C.J.M., Allahabad, are hereby quashed.  

                                          …….…………….....................J.                                   (Dr. B.S. CHAUHAN)

............………............................J.          (JAGDISH SINGH KHEHAR)          New Delhi, January 9, 2013

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