TMI Blog1993 (6) TMI 251X X X X Extracts X X X X X X X X Extracts X X X X ..... a resident of Howrah. The accused No. 1 took his wife, the complainant to Bombay sometime in August, 1987 and they stayed together there and subsequently the complainant returned from Bombay allegedly due to the misbehaviour of the accused and since then she has been staying in her father's house at Howrah. It is her case that at the marriage she received gifts of articles and ornaments, etc. from her parents as well as from the accused persons and she entrusted those articles and ornaments, etc. to the accused persons and subsequently she was allowed to take away her ornaments which she received from her parents but the ornaments which she received from the accused persons and which also constitute her stridhan property as well as the other articles she received as gift at her marriage remained with the accused persons. The other articles mentioned above include furniture, etc. All those articles remained in a room in the Howrah house of the accused persons when the complainant and her husband went to Bombay. As I have already mentioned the complainant filed the petition of complaint for offences Under Sections 403, 405 and 406, IPC. in respect of the articles and the ornament ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ication under Section 27 of the Hindu Marriage Act for return of her Stridhan articles, ornaments and jewellery including those stated to have been presented by the accused persons. The complainant in May, 1988 also filed an application under Section 125, Cr. P.C. for maintenance against her husband the accused No. 1 and on that application she has obtained an order of maintenance at the rate of Rs. 500/- per month. 3. The petitioner accused No. 2 has challenged the criminal proceeding under Sections 403, 405 and 406, IPC. on several grounds, such as, limitation, absence of mens rea, civil nature of the dispute, etc. I take up the question of limitation at the first instance. Section 403, IPC provides for punishment for dishonest misappropriation of moveable property. The said section says that whoever 'dishonestly misappropriates or converts to his own use' any moveable property, shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both. Section 405, IPC defines criminal breach of trust. The relevant portion of Section 405, IPC runs thus : Whoever, being in any manner entrusted with property, or with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of trust is a continuing offence and that being so under Section 472, Cr. P.C. a fresh period of limitation begins to run at every moment of the time during which the offence continues. It is also the alternative argument of the learned Advocate for the opposite party that the subsequent willingness of the accused persons to return the articles of the opposite party as conveyed through the letter of the Advocate in October, 1991 furnished a fresh cause of action or for that matter, a fresh starting point of limitation for bringing an action for the offences punishable under Sections 403 and 406, I.P.C. 4. Now let us take up the question as to when, according to the averments made in the petition of complaint, the offences punishable under Sections 403 and 406, I.P.C. were committed. In paragraph-10 of the petition of complaint it is alleged that on the 30th January, 1988 the complainant wrote to the accused No. 2 requesting him to take her back or to return the household articles fully described in annexure-A. In paragraph-11 of the complaint it is stated that as no response to the said letter dated the 30th January, 1988 was received, the complainant again wrote to the accused ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned Advocate for the opposite party that the ingredients of the offences punishable under Sections 403/406, I.P.C. were divulged for the first time in December, 1991 as pleaded in paragraph 17 of the petition of complaint. In the said paragraph-17 it is stated that in December, 1991 the complainant made further demand through her cousin Mr. Debapriya Banerjee in respect of her personal effects lying in the Howrah home of the accused persons but the accused persons again refused to give back the complainant's personal effects and in fact proceeded to dishonestly misappropriate or convert to their own use or dishonestly use or cause to be used or dispose of the articles including gold ornaments and jewellery. I have carefully considered the matter and I find that there is very little distinctive feature in the averments made in the said paragraph-17 for which it could be said that the alleged offence of dishonest misappropriation or criminal breach of trust in respect of the concerned articles, ornaments and jewellery items was committed on the occasion stated to have happened in December, 1991 as alleged in the said paragraph-17. The very averments made in paragraph-17 describe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion to commit the offences punishable under Sections 403 and 406 I.P.C. and not the actual commission thereof. Therefore paragraph-17 of the complaint, which has been relied upon by the learned Advocate for the opposite party for the purpose of marking the starting time of the countdown of limitation not only does not help him but also tends to operate as a boomerang leading to a position where it may have to be held that the complaint does not at all disclose actual commission of the offence alleged and therefore the same must be quashed. But even without making any such extreme finding, it is not difficult to see that in view of the averments made in paragraphs 10, 11 and 12 and particularly in paragraph-12 of the complaint the offence of dishonest misappropriation or for that matter, criminal breach of trust occurred, if at all, in March 1988. 5. I have already mentioned that the learned Advocate for the opposite party argued that for constituting an offence of dishonest misappropriation or criminal breach of trust, mere refusal is not enough and there must be some volitional act indicating the commission of such offence. In this connection, the learned Advocate for the oppo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the motor had been ;sold to the appellant and no further money was due. But the Motor Electrical works inter alia denied any such agreement and ultimately filed a complaint alleging that the appellant had committed criminal breach of trust and was therefore guilty under Section 406, I.P.C. It was held by the Supreme Court that the motor was handed over to the appellant for his own use even according to the case of the owner and the letter showed no change in the use of the motor and therefore it could not be said that by merely writing that letter the appellant dealt with the property in such manner as would amount to its misappropriation or conversion to his own use. It was further held that Section 405, I.P.C. contemplated something being done with respect to the property which would indicate either misappropriation or conversion or its use or disposal in violation of the contract, express or implied, and that the use of the motor was the same before the letter as well as after it and thus nothing was done with respect to the use of the property which was not in accordance with the hiring agreement between the parties and therefore it could not be said that there was misapp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... therefore the period of limitation must also start running from that point of time. It is to be noted here that while examining the question of limitation I have kept out of consideration the question as to whether the complaint taken as a whole would disclose a dispute of civil nature only. 7. The petition of complaint was filed long after the expiry of three years from March, 1988. The learned Court below took cognizance thereon without any prayer under Section 473, Cr. P.C. for extension of the period of limitation or without recording that he was satisfied on the facts and circumstances of the case that the delay had been properly explained or that it was necessary so to do in the interest of justice. In the circumstances it must be held that the cognizance taken is bad in law on ground of limitation. The argument advanced on behalf of the opposite party that the fact that the accused No. 1 by his letter dated the 8th October, 1991 requested the opposite party to take back her articles and also to return his articles would revive the cause of action for filing the complaint or would give rise to a fresh cause of action is of no moment in considering the question whether the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the failure to furnish annual return for the preceding year by the prescribed date namely, the 21st of January is a continuing offence or not under Section 66 of the Mines Act read with Regulation 3. The Supreme Court held that the infringement consists in the failure to furnish return on or before the 21st January and the infringement, therefore, occurs on 21st January of the relevant year and is complete on the owner failing to furnish the annual return by that date. Accordingly the Supreme Court held that the said offence was not a continuing offence. It was however clarified by the Supreme Court in the later decision of Bhagirath Kanoria v. State of M. P., [1985]1SCR626 that the decision in State of Bihar v. Deokaran Nenshi (1973 Cri LJ 347) (SC) (supra) to the effect that failure to furnish return before the due date is not a continuing offence must be confined to cases of failure to furnish return and it cannot be extended to cases where the contravention is not of a procedural or formal nature and goes against the very grain of the statute under consideration. The question involved in the case of Bhagirath Kanoria v. State of M.P. (supra) was whether non-payment of contri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10. Now let us look to the language of the relevant parts of Section 403 and Section 405 of the Indian Penal Code for ascertaining whether the offence of dishonest misappropriation or for that matter, criminal breach of trust is a continuing offence. Dishonest misappropriation or conversion to one's own use is the crux of the offence of dishonest misappropriation punishable under Section 403, I.P.C. Now, the dictionary meaning of the word 'misappropriate' is 'to put to a wrong use; to take dishonestly for oneself (vide, Chambers Twentieth Century Dictionary). The dictionary meaning of the word 'appropriate' is 'to make to be the private property of anyone, to take to oneself as one's own' (ibid). It is thus evident that every wrong use will not necessarily be misappropriation. Misappropriation rather marks the point where the transition takes place from non-offending possession, control or use to offending or dishonest possession, control or use. It is this transitional phenomenon and this process of transformation which converts the possession or use of a property to dishonest misappropriation. Once this transitional phenomenon, that is, the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such offence does not make such wrongful subsequent use a continued part or a repetition of the offence. I have therefore no hesitation to hold that the offence of dishonest misappropriation defined in Section 403 or the offence of criminal breach of trust defined in Section 405, I.P.C. is not a continuing offence because such offence, by definition, takes place where an act is committed once and for all. 11. In this connection, the learned Advocate for the petitioner has referred to the decision of the Supreme Court in State of Punjab v. Sarwan Singh, 1981CriLJ722 where the Supreme Court upheld a finding that a prosecution for an offence under Section 406, I.P.C. was barred by limitation. It has been submitted by the learned Advocate for the petitioner that had an offence punishable under Section 406, I.P.C. been a continuing offence the Supreme Court in that case would not have held that the prosecution in respect of the offence punishable under Section 406 was barred by limitation. The learned Advocate for the opposite party, on the other hand, very strenuously argued that the Supreme Court in that decision did not in fact at all consider or decide whether an offence under S ..... X X X X Extracts X X X X X X X X Extracts X X X X
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