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TMI Blog2015 (3) TMI 21X X X X Extracts X X X X X X X X Extracts X X X X ..... TMI 53 - SUPREME COURT]. The instant appeals are squarely covered by the observations made in Kishan Singh [2010 (8) TMI 888 - SUPREME COURT] and thus, the proceedings must be 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. - Decided in favour of appellants. - CRIMINAL APPEAL NO. 61 of 2013 WITH CRIMINAL APPEAL NO. 62 of 2013 - - - Dated:- 9-1-2013 - CHAUHAN, B.S (DR) AND KHEHAR,JAGDISH SINGH, JJ. JUDGEMENT 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 rejecte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct 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 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 ₹ 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a wrong against the State and also the society as a whole, even though the same has been committed against an individual. 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 observe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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, 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 wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 complain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt 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. 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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: He says that the representations were being received by the government all the time. But there is a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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