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TMI Blog1985 (12) TMI 371X X X X Extracts X X X X X X X X Extracts X X X X ..... in some scheduled banks in the personal names of the petitioners and that an amount of Rs. 1,83,661.99 P. was kept by the petitioners as cash in hand in their sadar office at Calcutta. After receipt of this audit report in August, 1975, the opposite party 2, Bijay Singh Nahar, wrote a letter on 15-9-75 to the petitioners, complaining to them about their keeping of the sum of Rs. 17,66,607.16 P. in their personal names instead of depositing the amounts in the name of Sammet Sikharjee Group of Temples and asking them not to keep a huge amount of Rs. 1,83,661.99 P. as cash in hand. By that letter the opposite party 2 requested the petitioners to deposit their cash in hand in Bank on keeping some working fund in their hands for meeting the day-to-day expenses. On 26-9-75 a reply was sent by the petitioners as Hony. Joint Managers of Jain Swetambar Society intimating that steps were being taken to keep the fixed deposits in the name of the Trust and that the cash in hand was indispensable for urgent and unforeseen expenses. On 10-10-75, the opposite party 2 wrote another letter to the petitioners requesting them to furnish the details of the bank accounts, particularly, the fixed deposi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed-petitioners have prayed for quashing the proceeding in the court of the learned Magistrate against them. 3. Mr. Balai Ch. Ray, the learned Advocate appearing for the petitioners, has submitted that the proceeding in the Case No. 2396/80 in the court of the learned Metropolitan Magistrate, 6th Court, Calcutta, should be quashed as the petition of complaint, even if taken at its entirety, does not disclose any offence under Section 120B/406 I.P.C. It is contended that the complaint under Section 120B/406 IPC is barred by limitation. It is also contended that the learned Chief Metropolitan Magistrate, Calcutta, had no territorial jurisdiction to entertain the complaint. 4. In course of hearing of this revisional application, a supplementary affidavit was filed for the petitioners. The opposite party No. 2 filed an affidavit-in-opposition regarding the supplementary affidavit. 5. Mr. Saha Ray, learned Advocate appearing for the opposite party 2, has challenged all the contentions of Mr. Balai Ch. Ray. According to him, the allegation in the petition of complaint filed by the opposite party 2 contain all the ingredients for an offence under Section 406 I.P.C. According to hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . As regards the first contention of Mr. Balai Ch. Roy that the petition of complaint by the opposite party No. 2 does not disclose any offence under Section 406 I.P.C. it is to be stated that an offence of criminal breach of trust consists of two distinct parts. The first part consists of the creation of an obligation in relation to a property over which dominion or control is acquired by an accused. The second part is a misappropriation or dealing with the property dishonestly and contrary to the terms of the obligation created. So far as the first part is concerned, there can be no doubt that the petition of complaint by the opposite party No. 2 contains all the necessary allegations. As per the second part, the necessary allegations are to be found in paras 10, 11,16 and 22 of the petition of complaint. The summing up of these allegations is to be found in para 22 of the petition of complaint wherein it is stated that the accused persons fraudulently and dishonestly converted the amounts for their own personal use by retaining them in their own hands in the Banks concerned. Nowhere in the petition of complaint is there any allegation that the petitioners misappropriated these a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the accused person must have caused wrongful gain to somebody or wrongful loss to somebody, in order to be hauled up on a charge of criminal breach of trust in respect of the amounts. There is, however, no allegation in the petition of complaint that by keeping the amounts as fixed deposits in their names in different Banks and keeping some amounts with them as cash in hand, the accused persons actually caused any wrongful loss to the Sammet Shikharji Group of Temples or any wrongful gain to them. That no wrongful loss to the Sammet Shikharji Group of Temples was caused by the petitioners is evident from the fact that at the time of audit for the years ending 31-3-75 and 31-3-76 the petitioners showed Books of Accounts to the auditors going to establish that these amounts were not for their personal use but for use of Jain Swetambar Society. Keeping of some of these amounts in the name of Jain Swetambar Society instead of in the name of Sammet Shikharji Group of Temples cannot amount to dishonest misappropriation of these amounts within the meaning of Section 405 I.P.C. An explanation in the matter has also been given by the petitioners by annexing a copy of a letter dated 22-10 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tation cannot be raised for the first time in the High Court, unless that plea is taken in the court below. The object which the statute seeks to subserve by engrafting a bar of limitation in Section 468 Cr. P.C. is clearly in consonance with the concept of fairness of trial as enshrined in Article 21 of the Constitution. As decided by the Supreme Court in the case of State of Punjab v. Sarwan Singh 1981CriLJ722 it is of the utmost importance that any prosecution, whether by the State or a private complainant, must abide by the letter of law or take the risk of the prosecution failing on the ground of limitation. As the bar of limitation under Section 468 Cr. P.C. has been included by the Supreme Court in the case of Sarwan Singh, within the guarantee or protection of personal liberty under Article 21 of the Constitution under which no person can be deprived of his life or personal liberty except according to the procedure established by law, the petitioners can, in my humble opinion, raise the plea of limitation in this Court without taking this plea in the court below. Though a distinction has been made in the case of Ramkripal Prasad, 1985 Cri LJ 1048 (Pat) (FB) between lack of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt by the petitioners cannot, thus, be accepted. 9. In para 7 of the petition of complaint filed in the court of the Chief Metropolitan Magistrate, Calcutta, the opposite party No. 2 alleged that on 15-9-75, on the basis of the report of the auditor for the year ending 31-3-75, he wrote a letter to the petitioners about the keeping of the sum of Rupees seventeen lakhs and odd in their personal names and the sum of Rupees one lakh eighty three thousand and odd as cash in hand. The period of limitation for an offence under Section 406 Cr. P.C. is three years under Section 468(2)(c) Cr. P.C. if this period of three years be counted from 15-9-75, the petition of complaint filed on 6-9-80 is clearly barred by limitation. In the letter sent by the opposite party 2 to the D. C. D. D. Calcutta on the basis of which section-K Case No. 316 dt. 4-7-78 was started under Sections 120B/406 and 406 IPC, the Opposite party 2 alleged that on 30-3-76, while inspecting some accounts, balance sheets etc. the opposite party 2 came to know that the petitioners had illegally deposited the money of Shikharjee Group of Temples in their own names in some Banks mentioned in that complaint to the D. C. D. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as keeping of these amounts as fixed deposits with Banks or as cash in hand is concerned. As such the alleged offence under Section 406, IPC cannot be a continuing offence on the ground that these deposits will enjoy interest. As for deposits even in 1978 by the petitioners in their personal names with some banks, as transpiring from the seizure-list dt. 12-12-78, it will be for the opposite party No. 2 to allege criminal breach of trust in respect of these deposits by filing a separate petition of complaint, if actually there is any offence under Section 406, IPC by the petitioners in the matter. Because of such deposits even in 1978, the deposits by the petitioners in their names as fixed deposits with some Banks, as transpiring from the audit reports of 1975 and 1976 cannot be continuing offence. I am, therefore, of the opinion that the petition of complaint is barred by limitation under the provisions of Section 468(2)(c) Cr. P.C. 10. Though the learned Chief Metropolitan Magistrate, Calcutta, has territorial jurisdiction to entertain the complaint, the proceeding in Case No. 2396 of 1980 under Section 120B/406 IPC in the court of the Metropolitan Magistrate, 6th Court, Calc ..... 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