Cause of action is date of offence not date of acquittal

Excerpt:

Punjab-Haryana High Court

Yashvant Malhotra vs A.K.Sinha on 20 December, 2019

CRM-M-1992-2017(2 petitions)                                                   -1-



           IN THE HIGH COURT OF PUNJAB & HARYANA AT
                          CHANDIGARH
(1)
                                             Crl. Misc. No. M-11992-2017 (O&M)
                                             Date of decision: December 20, 2019

Yashvant Malhotra
                                                               ..... PETITIONER(s)

                          Versus

A.K. Sinha
                                                            ....RESPONDENT(s)

Crl. Misc. No.M-13649 of 2017 (O&M) J.N. Parsad ….. PETITIONER(s) Versus A.K. Sinha and another ….RESPONDENT(s) CORAM: HON’BLE MR. JUSTICE SURINDER GUPTA Present: Mr. R.S. Cheema, Senior Advocate with Mr. Arshdeep Singh Cheema, Advocate for the petitioner in CRM-M-11992-2017.

Mr. Sumeet Goel, Advocate for the petitioner in CRM-M-13649-2017.

Mr. Mohan Singla, Advocate for respondent No.1.

Mr. Sukant Gupta, AP.P. for U.T. Chandigarh. SURINDER GUPTA, J(Oral) The complaint describes the brief facts of the case in para 3, which are reproduced as follows:-

“That the brief facts leading to the present complaint are 1 of 7 CRM-M-1992-2017(2 petitions) -2-

as under:

(a) when the complainant was working as Commissioner and Secretary to Govt., Haryana Govt., at Chandigarh the accused no. 1, suo moto, registered a preliminary enquiry (hereinafter referred to as ‘PE’) in a transaction conducted during the period 1979-80, alleged to have been connected with some purchase order for WEEDICIDE issued by the complainant as the Director of Agriculture Haryana in 1980.

(b) the accused no. 1, thereafter, marked the same enquiry to accused no. 2 and ordered him to submit a P.E. report. The accused no. 2 conducted the whole P.E. within a span of 4-5 weeks and submitted a P.E. report to the accused no. 1.

(c) the accused no. 1, thereafter, suo moto registered an FIR bearing No. RC 5 of 1987 u/s 120-B Indian Penal Code read with Section 5(2) r/w 5(1) (d) of the Prevention of Corruption Act 1947 (& Sec. 5(2) r/w 5 (1) (d) of the Prevention of Corruption Act, 1947) on dated 23.12.1987 against the complainant and two others namely Kamal Oswal and Vimal Oswal. The copy of FIR dated 23.12.1987 is annexed as Annexure C-1.

(d) The accused No. 3 who was the Chief Secretary, Government of Haryana signed the sanction order for the prosecution of the complainant on the behalf of His Excellency Governor of Haryana without having shown the concerned sanction order to the then Excellency Governor.

(e) the accused no. 1, thereafter, handed over the investigation in the above-mentioned FIR to accused no. 4 who was then DSP, CBI. The accused no. 4 had completed the investigation in 28 months and after a long period of 2 years and 4 months i.e. 28 months, he filed a charge sheet on 22.08.1990 against the complainant and 2 of 7 CRM-M-1992-2017(2 petitions) -3-

two others namely Kamal Oswal and Vimal Oswal. The copy of charge sheet is annexed as Annexure C-2.

(f) the complainant was never examined by the accused No. 4 during the period of so-called above mentioned investigation on any aspect.

(g) the trial, thereafter, was conducted and during the trial prosecution examined 28 witnesses numbered as PW1 to PW29 except numbered as PW10 and produced so many documents on record.

(h) the trial Court after going through, thoroughly, all the statement of witnesses and the documents on record and arguments of the counsels of the parties pronounced its final judgment on dated 11.09.2014 and acquitted the complainant and two others from all charges. The copy of judgment of the trial Court is annexed as Annexure C-3.”

Learned trial Court on the basis of statement of complainant in preliminary evidence, observed that the accused named in the complaint have not followed the ordinary practice of registration of case, investigation, grant of sanction and putting the complainant to trial in the case registered against him.

Learned Chief Judicial Magistrate was of the opinion that respondent has been victimised and the commission of offence under Section 166 and 499 of Indian Penal Code (for short-IPC) was disclosed against petitioners Yashvant Malhotra, J.N. Parsad along with co-accused Kulwant Singh, Purshotam Lal, and Bhaskar Raj Saxena and ordered their summoning vide order dated 25.09.2015.

Petitioners filed separate revisions against the summoning order, which were dismissed by learned Additional Sessions Judge, Chandigarh 3 of 7 CRM-M-1992-2017(2 petitions) -4-

vide separate orders dated 23.01.2017.

Both the petitioners have filed above captioned petitions under Section 482 Code of Criminal Procedure (for short-Cr.P.C.) challenging the orders passed by learned Magistrate and learned Sessions Judge, Chandigarh.

The first point raised by learned counsel for the petitioners is that FIR against the respondent was registered in the year 1987 and the complaint was filed on 22.04.2015 i.e. after a period of 28 years and is barred by limitation. In support of his contention, he has relied on the observations of Hon’ble Apex Court in case of Surinder Mohan Vikal Vs. Ascharaj Lala Chopra (1978) 2 Supreme Court Cases 403.

Learned counsel for the respondent has argued that the offence of defamation is a continuing offence giving recurring cause of action to the complainant-respondent. He was defamed from the year the FIR was registered against him till he was acquitted. From the date of acquittal, complaint is within limitation. In support of his contention, he has relied on the observations of Hon’ble Apex Court in cases of Ajay Agarwal Vs. Union of India 1993(3) SCC 609; State of Bihar Vs. Deokaran Nenshi and another 1972(2) SCC 890; and Bhagirath Kanoria Vs. State of M.P. 1984 (4) SCC 222.

To find answer to the query as to whether the complaint filed by the complainant-respondent is within limitation, reference can be made to the observations of Hon’ble Apex Court in case of Surinder Mohan Vikal Vs. Ascharaj Lala Chopra (supra), wherein a similar question was directly answered. Order of Magistrate was challenged before the Hon’ble Apex Court on the ground that Magistrate could not take cognizance of the offence punishable under Section 500 IPC as the limitation prescribed under Section 4 of 7 CRM-M-1992-2017(2 petitions) -5-

468 Cr.P.C. had expired. The appellant before the Hon’ble Apex Court, who was working as General Secretary, had filed a complaint against respondent Ascharaj Lal Chopra, who was working as Special Assistant in the bank and Amrik Singh, working as Clerk, for the offence punishable under Section 406, 420 IPC on 15.03.1972, alleging some misappropriation by them. They were convicted by the trial Court but acquitted by the Appellate Court vide judgment dated 01.04.1975 and the judgment of acquittal was upheld by this Court. Ashcharaj Lal Chopra (respondent) filed a complaint against Surinder Mohan Vikal (complainant in complaint case) on 11.02.1976 for the offence punishable under Section 500 IPC. Learned Magistrate summoned him and the petition filed by him under Section 482 Cr.P.C. was dismissed by this Court. Taking note of all the above facts, Hon’ble Apex Court observed in para 5 and 6 as follows:-

“It will be recalled that the complaint for the commission of the offence under section 406/420 I.P.C. was. filed on March 15. It has specially been stated in the respondents complaint under section 500 I.P.C. that the defamatory matter was contained in that complaint. So, according to the complaint, the offence under section 500 I.P.C. was committed on March 15, 1972, which was the date of the within the meaning of section 469 (1) (a) of the Code, and the period of three years’ limitation would be calculated with reference to that date for purposes of the bar provided by section 468. But, as has been stated, the complaint under section 500 I.P.C. was filed on February 11, 1976, much after the expiry of that period. It was therefore not permissible for the Court of the Magistrate to take cognizance of offence after the expiry of the period of limitation.

                                   5 of 7

 CRM-M-1992-2017(2 petitions)                                               -6-

The High Court ignored the bar of limitation on the ground the “cause of action for proceeding for defamation could not before he (respondent) was acquitted by the Court of Session.” the respondent was acquitted on April 1, 1975, it appears that High Court took the view that the “protection of section 468(c) was not available to the appellant. We are constrained to say the question of “cause of action could not really arise in this as the controversy relates to the commission of an offence. It been stated, sub-section (1) of section 469 of the Code specifically provides that the period of limitation prescribed in section 468, in relation to an offender, shall commence (inter alia) on the date of the offence. It would therefore follow that the date of the offence was March 15, 1972, when the defamatory complaint was filed in the Court of the Magistrate, and that was the starting point for purpose of calculating the three years’ period of limitation. High Court clearly erred in taking a contrary view.”

The citations referred by learned counsel for respondent that it is a continuing offence, as such, are not applicable to the facts of the present case as defamation is by a particular act and is not a continuing offence. The complaint filed by respondent is clearly barred by limitation and learned trial Court and the Court of revision have committed error while overlooking this fact. As such, both these petitions deserve to be allowed on this short ground.

In view of the above settled proposition of law, it is not required to examine the other plea raised by petitioners. Both these petitions have merits and are allowed. Criminal Complaint No.76 of 2015 (Annexure P-4) and summoning order dated 25.09.2015 passed by Chief Judicial Magistrate, 6 of 7 CRM-M-1992-2017(2 petitions) -7-

Chandigarh along with all subsequent proceedings arising therefrom, are quashed, qua the petitioners.

                                                    (SURINDER GUPTA)
December 20, 2019                                       JUDGE
Sachin M.

            Whether speaking/reasoned: Yes/No

            Whether Reportable:              Yes/No




                                   7 of 7

husband given 2 lakhs as damages in false case

Excerpt:

Punjab-Haryana High Court

Anokh Singh And Anr vs Dalbir Singh And Ors on 18 July, 2017

RSA No.225 of 2016 (O&M)                                                -1-

      IN THE HIGH COURT OF PUNJAB AND HARYANA AT
                     CHANDIGARH

                                                RSA No.225 of 2016 (O&M)
                                                Date of decision : 18.07.2017

Anokh Singh and another

                                                                   ...Appellants

                                       Versus

Dalbir Singh and others

                                                                 ...Respondents

CORAM: HON'BLE MR. JUSTICE ANIL KSHETARPAL.

Present:    Mr. K.S. Chahal, Advocate for the appellants.

            ****

ANIL KSHETARPAL, J.

The appellants-defendant Nos.2 and 3 are in Regular Second Appeal against the concurrent findings of fact arrived at by the Courts below.

The plaintiff had filed a suit for recovery of `15,00,000/- by way of damages. It was pleaded by the plaintiff that he was married to one Harneet Kaur in the year 1991 and they were blessed with a daughter namely Ravneet Kaur. The relationship between husband and wife was strained and marriage was irretrievably broken down. The plaintiff came to India to join the marriage of his niece and at that time, his daughter was residing in the house of defendant No.1. The defendant No.1 sent a message regarding illness of the daughter and he was further informed that his daughter was missing him. When defendant No.1 visited Sangrur, defendant No.1 handed over the custody of Ravneet Kaur to him. However, with a  mala fide intention alongwith other defendants, the defendant No.1 got lodged a false FIR against the plaintiff under Sections 364, 323, 342 IPC on the allegation that the plaintiff has forcibly kidnapped his own daughter i.e. Ravneet Kaur. Due to registration of the false case, the plaintiff, his father and the brother were arrested and remained in jail for more than three months. However, during the investigation, his father and brother were discharged. The plaintiff was acquitted by the then learned Sessions Judge, Sangrur. With these allegations, the plaintiff filed a suit for recovery of damages on account of loss of earnings, malicious prosecution, defamation, mental agony and harassment.

The defendants appeared and contested the suit. It was asserted that the plaintiff use to maltreat both his wife and minor daughter in USA and there was criminal case registered against the plaintiff. It was further asserted that the plaintiff has been kept on probation for a period of 36 months. It was further asserted that the plaintiff has sent back his daughter alongwith his father Hardial Singh immediately after registration of the case. It was further asserted that the plaintiff moved an application seeking custody of minor child in the Court at Kharar but the same was ordered to be dismissed on 14.06.2011. Defendant No.1 also moved an application for seeking direction to Hardial Singh to hand over the passport and green card of daughter so that she can be sent to USA to join her mother there. The aforesaid application was also allowed by the Court. However, the passport and green card was never returned.

The learned trial Court, after appreciating the evidence available on the file, found that the registration of the criminal case against the plaintiff by defendants was clearly with a mala fide intention to falsely implicate him in the criminal case. The learned Sessions Judge, acquitted the plaintiff with a finding that the prosecution has failed to prove its case against the accused. It was further found that Gurdial Kaur-defendant No.1 tried to falsely implicate the plaintiff. The learned trial Court ordered that the plaintiff is entitled to compensation of `2,00,000/- against all the defendants alongwith interest at the rate of 9% p.a. from 02.03.2004.

An appeal filed by the defendants-appellants was ordered to be dismissed by the learned First Appellate Court after re-appreciating the evidence available on the file. It was found that the plaintiff was maliciously prosecuted and falsely implicated.

Counsel for the appellants has made two submissions. Firstly, he has submitted that the Courts have not given any finding on malicious prosecution. He has further submitted that merely because someone has been acquitted in a criminal case would not give rise to cause of action to the accused to file a suit for damages.

I have considered the contentions of learned counsel for the appellants but I am unable to agree with him.

Both the Courts below have found as a matter of fact that plaintiff was trapped and then falsely implicated in a false case. The registration of the FIR against the plaintiff was with a mala fide intention and on that count, the plaintiff had to remain in jail for a period of three months. The learned First Appellate Court re-affirmed the finding arrived at by the Courts below.

Therefore, it is not correct on the part of the counsel for the 3 of 4 appellants to make submissions that there is no finding on malicious prosecution.

There is no doubt that merely because the accused is acquitted, every accused is not entitled to compensation on account of malicious prosecution. But in the present case, as found by both the Courts below, there was false implication of plaintiff, his father and brother. It has further been found that the plaintiff was trapped and thereafter with a mala fide intention, FIR was got registered. In these circumstances, the plaintiff was entitled to file a suit for recovery of damages.

Learned counsel for the appellants has not been able to point out any substantial questions of law as per the provision of Section 100 of CPC. Learned counsel for the appellants has further not been able to point out any ground for interference in the concurrent findings of fact as per the provision of Section 41 of the Punjab Courts Act, 1918.

With the aforementioned observations, present appeal is dismissed.

18.07.2017                                     (ANIL KSHETARPAL)
Pawan                                                JUDGE


               Whether speaking/reasoned:-            Yes/No

               Whether reportable:-                   Yes/No




                                4 of 4

Ghansham Dass vs Sham Sundar Lal

Punjab-Haryana High Court

Ghansham Dass vs Sham Sundar Lal on 4 January, 1982

Equivalent citations: 1982 CriLJ 1717

Author: M Punchhi

Bench: M Punchhi

ORDER M.M. Punchhi, J.

1. In this petition for revision, the summoning and charging of the petitioner to stand trial under Section 500, Indian Penal Code, has been challenged solely on the ground that the Magistrate took cognizance of the offence beyond the period of limitation. It stands undisputed that offence under Section 500, Indian Penal Code, can attract punishment to the accused up to two years’ simple imprisonment and the complaint has to be filed in Court within a period of three years from the date of the commission of the offence. The offence in the instant case was committed by the accused-petitioner on May 20, 1975 by lodging a First Information Report at the Police Station, allegedly containing defamatory statements against the complaint-respondent The trial on that First Information Report was launched in Court On July 13, 1977 but it ended in acquittal of the complainant-respondent on February 11, 1980.

2. Learned counsel for the petitioner contends that the Magistrate was required at the pre-cognizance stage to first settle the question of limitation, as prima facie, the complainant had disclosed that the period of limitation had been computed from the date of the acquittal though erroneously. Reliance has been placed on Surinder Mohan Vikal v. Aschari Lal Chopra 1978 Cri LR (SC) 158 : 1978 Cri LJ 764, where it has been held that the period of limitation commences from the date when the defamatory matter is publicised. In the instant case, it is the First Information Report dated May 20, 1975, which contained the defamatory material. Learned counsel for the petitioner also contends that from that date the complaint was undisputably beyond the period of limitation. It has further been maintained that even if the said statement was taken to be privileged and not published within the meaning of the expression known in Section 500, I. P. C the launching of the prosecution clinched the matter on July 13, 1977 and even then the complaint was filed beyond the period of limitation. On the other hand, learned Counsel for the respondent takes shelter in the provisions of Section 473, Criminal P.C. to contend that the period is extendable not only when the delay is explained but otherwise in the interest of justice. He, however, concedes that no formal application had been made to the Court for extending the period of limitation and the Court itself had not applied its mind with regard to proceeding in the complaint in the interest of justice.

3. Having noticed the respective contentions of the learned Counsel for the parties, it becomes patent that the Magistrate did not apply his mind at all to the question of limitation. This, he had to, at the pre-cognizance stage, which he failed. On his failure to do so, the proceedings become obviously without jurisdiction. Necessarily the sequential orders of summoning the accused-petitioner as also framing the charge against him are beyond jurisdiction and deserve to be quashed for these reasons. The course adopted is unexceptionable, 4 The next question which has been pressed into service by the learned Counsel for the petitioner is that the complaint itself should be thrown out as being beyond limitation, as wag done in Surinder Mohan Vikal’s case 1978 Cri LJ 764 (SC) (Supra). In that precedent it was mentioned that the complainant had not sought the benefit of Section 473, of Criminal P. C, which permitted the extension of the period of limitation in certain cases. It is on those facts that the Supreme Court quashed the order of the Magistrate taking cognizance of the offence against the appellant. The complaint, as such, can also be spelled as to have been left formally on the file of the Magistrate, but without any cognizance having been taken thereon. Learned counsel for the respondent says that if the complainant can now satisfy the Court, by giving reasonable explanation for the delay caused, or otherwise if the Court is satisfied that the complaint need be proceeded with in the interest of justice, it should be left open to the Court to do so. To this course, learned Counsel for the petitioner has objection on the strength of Krishna Singhi v. State of Madhya Pradesh 1977 Cri LJ 90. In that eventuality, the Magistrate will be required to call for the accused petitioner before condoning the delay on either cause.

5. It would seem to me that it would be futile to keep the complaint even on the file to be formally pending at the pre-cognizance stage, all the more when nearly seven years have elapsed from the date of the commission of the offence. There has to be an end to litigation at some point of time. If the complainant had failed to appreciate the starting point of limitation, there would be nothing now for him to explain the delay when he stands confronted that such period commences from the date of making the defamatory statement. There is nothing in the complaint, as also from the judgment of acquittal, to suggest that the interest of justice would require this old matter to be raked up for the sake of satisfying private vendetta. The complainant having neglected to explain the delay rightfully in the first instance cannot be permitted to do now.

6. For the foregoing reasons this petition is allowed. Not only are proceedings from the cognizance stage onwards quashed, but the complaint is dismissed as well. Ordered accordingly.