State of Punjab vs Balwinder Singh

S. D. Bajaj, J.

Inspector Post Offices, East SubDivision, Amritsar, addressed to Senior Superintendent of Police, Amritsar registered letter F12/3/75 dated February 3, 1976 alleging misappropriation of the amount of seventeen money orders detailed therein by Balwinder Singh accused while doing the job of Extra Departmental Delivery Agent at Sub Post office, Ajnala Distt. Amritsar of Punjab State during the period February 19, 1975 to July 14, 1975. The amount misappropriated thereby was Rs. 6250/ and the accused was alleged in the letter under reference to have committed the offences of theft, forgery, cheating and misappropriation of the amount covered by the money orders aforesaid.

On being charged with the commission of offences under Sections 409, 420 and 471 of the Indian Penal Code in respect of it, the accused pleaded not guilty thereto and claimed to be tried. Vide its judgment dated October 21, 1987, learned trial Court convicted the accused of the commission of offences under Sections 406, 420, 471 of the Indian Penal Code and sentenced him as follows

"Under Section 406 :

Accused is sentenced to undergo R. I. for a period of two years and to pay a fine of Rs. 300/ or in default of payment of fine he shall further undergo R. I. for two months.

Under Section 420 IPC :

Accused is sentenced to undergo R. I. for 4 period of two Years.

Under Section 471 IPC :

Accused is sentenced to undergo R. I. for a period of two years.

All the sentences shall run concurrently, Sentence already undergone by the accused be set off under Section 428 Cr.P.C."

In appeal, learned lower Appellate Court vide its impugned judgment dated July 18, 1999 acquitted the accused holding that the taking of cognizance of the case by the learned trial court was barred under Section 468 of the Code of Criminal Procedure, 1973. Feeling aggrieved therefrom, the State of Punjab has filed Crl. Appeal No. 307DBA of 1991 in this Court.

We have heard Shri Randhir Singh, AAG Punjab for the appellant State, Shri R. S. Hundal, Advocate, for the respondent and have pursued the entire relevant material on record very carefully.

The two reasons assigned by the learned lower Appellate Court in recording acquittal of the respondent in this appeal are that the occurrence being of the period February 19, 1975 to July 4, 197 5 prosecution for it could. not be launched in the year 1984 and that the taking of cognizance of the accusation by the learned trial court was barred under Section 468 of the Criminal Procedure Code, 1973. Neither of the two reasons has any legal backing. Section 468 of the Criminal Procedure Code reads:

"468. Bar to taking conizance after lapse 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.

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 a term exceeding one year but not exceeding three years.

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 cast may be, the most severe punishment."

In terms of subsection (3) of Section 468 Cr. P. C., the period of limitation in this case had to be the severe punishment prescribed in Section 409 of the Indian Penal Code which is imprisonment for life or imprisonment for ten years and fine. Since the severe punishment set out therein is imprisonment for life, prosecution of the accused could be launched any time. It was in this view of the matter that their lordships of the Supreme Court observed in Mangilal Vyas v. State of Rajasthan, 1990(1) Recent Criminal Reports 473 (SC) : Judgments Today 1990(1) SC 74 , "The learned counsel for the appellant submitted that the appellant had been prosecuted in 11 criminal cases for offences under Section 408 or 409, Indian Penal Code, that the proceedings are pending for over 25 years, the prolongation of the trial without any fault on the part of the appellant amounts to persecution of the appellant and therefore, the proceedings should have been quashed by the High Court. It is maintained that in spite of passage of several years no evidence worth the name has been recorded by the prosecutor. We have been taken through the various steps taken in each case and the nature of the evidence purported to have been collected.

We do not consider it necessary to narrate the detailed facts leading to the present appeals except to state that the trial in the pending cases has been unduly protracted due to various causes. It is no doubt a regrettable feature, but having regard to the nature of the allegations made and the availability of evidence in support of the prosecution, it is not expedient to terminate the proceedings at this stage, on account of lapse of time alone, by invoking the inherent power of the Court. We think that the circumstances of the case only call for appropriate directions for the expeditious disposal of the pending proceedings and the law has to be allowed to take its own course to prevent''s miscarriage of justice."

The ratio of this court observations in Des Raj Singal v. The State of Punjab, 1986(1) Recent Criminal Reports 66 and The State of Punjab v. Sain Dass and others, 1988(2) Recent Criminal Reports 564 is not attracted for application on the peculiar facts and circumstances obtaining in the present case because the prosecution did not bring on record the appointment order of the respondent as Extra Departmental Delivery Agent. Rule 2. of Punjab Civil Service Rules Volume 11 would not, therefore, operate to exculpate the respondent four years after the commission of the offence. Furthermore, the decision in the two authorities, aforesaid was reversed in State of Punjab v. Kailash Nath, 1989(1) RCR(Crl.) 139 (SC) : AIR 1989 Supreme Court 558 , wherein their lordships of the Supreme Court observed, "Keeping in view the score of Article 309 as also the purpose of Rule 2.2, the said rule cannot be interpreted to be a rule placing an embargo on prosecution of a Government servant on the expiry of a period of four years from the date of cause of action or event mentioned therein."

In result Criminal Appeal No. 307DBA of 1991 filed by the State is allowed, finding of acquittal recorded by the learned lower Appellate Court in its impugned judgment of July 18, 1989 qua the respondent is set aside and the conviction judgment recorded by the learned trial court against him on October 21, 1987 is restored and affirmed. Besides the conviction,; recorded by the learned trial court, the respondent is also convicted of the commission of the offence under Section 467 of the Indian Penal Code for having forged the money order forms Ex. P 1. to Ex. P17, documents to receive or deliver money. For the convictions recorded by the learned trial court, the sentences passed by it upon the respondent accused are affirmed. For the added conviction under Section 467 of the Indian Penal Code, respondent. accused is sentenced to undergo rigorous imprisonment for a period of three years and to pay Rs. 7000/ (Seven thousand rupees only) as fine. In default of payment of fine, convicted accused shall undergo rigorous imprisonment for a further period of seven months out of the fine amount when realised, a sum of Rs. 6250/ would be deposited under the postal head of Central

Revenue Deposits.

JUDGMENT accordingly.