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Rajendra vs State Of U.P. And Another on 7 August, 2019

HIGH COURT OF JUDICATURE AT ALLAHABAD

?Court No. – 70

Case :- APPLICATION U/S 482 No. – 36790 of 2012

Applicant :- Rajendra

Opposite Party :- State Of U.P. And Another

Counsel for Applicant :- Nitin Gupta

Counsel for Opposite Party :- Govt.Advocate,Amit Daga

Hon’ble Sanjay Kumar Singh,J.

Heard Shri Nitin Gupta, learned counsel for the applicant, learned AGA for the State of UP/opposite party No.1 and Shri Amit Daga, learned counsel for the opposite party No.2.

On 25.1.2019, the aforesaid case was heard at length and the following order was passed:

“It is submitted by learned counsel for the applicant that pure legal question is involve in the matter “whether the impugned proceeding against the applicant is barred by the provisions of Section 468 Cr.P.C. or not.” It is contended by learned counsel for the applicant that cognizance has been taken in this matter after three years of the alleged occurrence/offence, which is not sustainable under law.

On the request made on behalf of opposite party No.2, list this case in the next cause list.”

Today, at the outset, Shri Amit Daga, learned counsel, who has filed his vakalatnama on behalf of opposite party No.2 has submitted that as on date, he has no instructions in the matter to argue the matter, therefore, he is not in a position to address the Court on behalf of opposite party No.2. However, on the request of the Court, he is present to assist the Court.

This application under Section 482 Cr.P.C. has been preferred by the applicant, namely, Rajendra with a prayer to set aside the order dated 13.3.2012, passed by Chief Judicial Magistrate, Ghaziabad and proceedings in Case No.5673 of 2012 (SectionState vs. Rajendra and others) under Sections 406, Section506 IPC, P.S.-Indirapuram, District-Ghaziabad.

Filtering out unnecessary details, the basic facts of the case in brief are that the opposite party No.2, namely, S.K. Dubey lodged an FIR on 31.1.2011 with regard to alleged offence dated 9.11.2006 against the applicant-Rajendra and co-accused Khushi Ram, registered as Case Crime No.214 of 2011 under Sections 406, Section506 IPC, P.S.-Indirapuram, District-Ghaziabad, alleging that the applicant informed him that co-accused (Khushi Ram) wants to sell his land situated in District-Kaithal, Haryana. Thereafter, Khushi Ram agreed to sell his 52 bighas land situated in Haridwar in a sale consideration of Rs.1 crore, pursuant to the said oral agreement between the co-accused (Khushi Ram) and informant, a sum of Rs.15 lakhs (Rs.10 lakhs in cash + Rs.5 lakhs through bank-draft dated 9.11.2006) as advanced money was paid by the informant to co-accused (Khushi Ram). Subsequently, co-accused (Khushi Ram) expressed his inability to execute the sale-deed in favour of the informant and on demanding his advanced money, he refused to return the same and threatened the applicant. The Investigating Officer, after investigation, submitted charge-sheet dated 15.1.2012, on which Chief Judicial Magistrate, Ghaziabad, took cognizance on 13.3.2012.

The said cognizance order dated 13.2.2012 has been challenged by the applicant mainly on two grounds; first limb of argument is that the maximum punishment for the offence under Sections 406 is imprisonment for three years and under Section 506 IPC, as per allegation in this case, is imprisonment for two years, therefore, in view of Section 468 (2) (c) SectionCr.P.C., no Court can take cognizance of such offence after expiry of limitation period of three years. As such, the impugned cognizance order dated 13.3.2012 is not sustainable and liable to be quashed. The second limb of the argument is that there is no allegation and evidence of entrustment of any amount so far as the present applicant-Rajendra is concerned, therefore, basic ingredients to constitute an offence under Section 406 IPC is not made out against the applicant. It is further contended that there is no material evidence to constitute offence under Section 506 IPC also against the applicant.

At the time of filing this application, further proceeding of Case No.5673 of 2012 (SectionState vs. Rajendra others), pending in the court of CJM, Ghaziabad, was stayed by a co-ordinate Bench of this Court vide order dated 6.11.2012. Subsequently, the said interim said order was extended time to time. It is contended that impugned cirminal proceeding and order dated 13.3.2012 are liable to be quashed.

Learned AGA for the State as well as Shri Amit Daga, learned counsel for the opposite party No.2, has advanced several arguments and placed the FIR and the statement of witnesses, but in all the material evidences, the allegation of entrustment is against co-accused (Khushi Ram), only. There is no allegation and evidence of entrustment of any amount against the present applicant (Rajendra) and there is no evidence of criminal intimidation also. Case of present applicant-Rajendra is distinguishable from co-accused (Khushi Ram), therefore, this Court is of the opinion that basic ingredients to constitute of offence under Sections 406 Section506 IPC is lacking in this case against the applicant.

Here, it is apposite to set out Section 468 Cr.P.C., which reads as under:

468. Bar to taking cognizance after lapse of the period of limitation.

(1) Except as otherwise provided elsewhere in this Code, no Court shall take cognizance of an offence of the category specified in sub- section (2), after the expiry of the period of limitation.

(2) The period of limitation shall be-

(a) six months, if the offence is punishable with fine only

(b) one year, if the offence is punishable with imprisonment for a term not exceeding one year;

(c) three years, if the offence is punishable with imprisonment for term exceeding one year but not exceeding three years.

(3) For the purposes of this section, the period of limitation in relation to offences which may be tried together, shall be determined with reference to the offence which is punishable with the more severe punishment or, as the case may be, the most severe punishment.”

On testing the another argument of learned counsel for the applicant I find that the cognizance order dated 13.3.2012 is barred by limitation in view of Section 468 (2) (c) SectionCr.P.C., because in the impugned FIR dated 1.12.2011, the date of offence has been mentioned as 9.11.2006, therefore, admittedly, the impugned order dated 13.3.2012, whereby cognizance has been taken place, is beyond the limitation period of three years.

In view of above, the order dated 13.3.2012, passed by Chief Judicial Magistrate, Ghaziabad and proceedings in Case No.5673 of 2012 (SectionState vs. Rajendra and others) under Sections 406, Section506 IPC, P.S.-Indirapuram, District-Ghaziabad, against the applicant-Rajendra, is hereby quashed.

Accordingly, this application is allowed.

Order Date :- 7.8.2019/LN Tripathi

 

 

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