1993 (6) TMI 251 - HC - Indian Laws

Summary

Issues Involved:
1. Quashing of criminal proceedings.
2. Limitation period for taking cognizance.
3. Nature of the dispute (civil or criminal).
4. Continuing offence under Sections 403, 405, and 406 IPC.
5. Mens rea (criminal intent).

Detailed Analysis:

1. Quashing of Criminal Proceedings:
The revisional application was made to quash the criminal proceedings pending in the 3rd Court of Judicial Magistrate, Howrah, initiated by a complaint alleging offences under Sections 403, 405, and 406 IPC. The petitioner, accused No. 2, argued that the proceedings were barred by limitation and lacked the necessary mens rea.

2. Limitation Period for Taking Cognizance:
The petitioner contended that the complaint, filed on 19th September 1992, was barred by limitation as the alleged offences occurred in March 1988. According to Sections 468 and 469 CrPC, the limitation period for offences punishable by imprisonment for up to three years is three years from the date of the offence. The court examined the complaint's paragraphs 10, 11, and 12, which indicated that the refusal to return the articles and the assertion that the complainant had no right over them occurred in March 1988. Thus, the limitation period started in March 1988, and the complaint filed in September 1992 was beyond this period.

3. Nature of the Dispute (Civil or Criminal):
The court considered whether the dispute was of a civil nature. The complainant alleged that the articles and ornaments were her stridhan property, and the accused refused to return them. The court noted that mere refusal to return property does not constitute criminal misappropriation or breach of trust unless accompanied by a volitional act indicating misappropriation. The court found that the allegations in paragraph 12 of the complaint indicated a volitional act by the accused, changing the character of possession and converting the property to their own use.

4. Continuing Offence under Sections 403, 405, and 406 IPC:
The court examined whether the alleged offences were continuing offences, which would allow a fresh period of limitation to begin at every moment the offence continued, as per Section 472 CrPC. The court referred to the Supreme Court's decision in State of Bihar v. Deokaran Nenshi, which distinguished continuing offences from those committed once and for all. The court concluded that the offences of dishonest misappropriation and criminal breach of trust are not continuing offences, as they occur once the transitional phenomenon of converting possession or use is complete.

5. Mens rea (Criminal Intent):
The petitioner argued that the absence of mens rea (criminal intent) rendered the criminal proceedings invalid. The court noted that the allegations in the complaint, particularly in paragraph 12, indicated a volitional act by the accused, accompanied by an assertion that the complainant had no right over the property. This constituted the necessary mens rea for the offences under Sections 403 and 406 IPC.

Conclusion:
The court held that the criminal proceedings were barred by limitation as the complaint was filed beyond the three-year period from the date of the alleged offences in March 1988. The court also concluded that the offences were not continuing offences and that the necessary mens rea was present. Consequently, the court quashed the criminal proceedings. The revisional application was allowed, and the proceedings in the lower court were quashed.