In the High Court of Judicature at Madras

Dated: 25/07/2002

Coram

The Honourable Mr. Justice A.K. RAJAN

Crl. O.P. No. 20908 of 2000 and Crl. O.P 23865 of 2000 and Crl. O.P. 23866 and 23867 of 2000

1. Sekar

2. Raja

3. Ramesh Petitioners in all the O.Ps.

-Vs-

STATE by Inspector of

Police, District Crime

Branch, Pudukottai. Respondent in all the O.Ps.

Criminal Original Petitions are filed under Section 482 of Code of Criminal Procedure to call for the records in C.C.Nos 98, 100, 101 and 99 of 1999 on the file of the Additional Sessions Judge Cum Chief Judicial Magistrate, Pudukottai and quash the same.

For petitioners : Mr. S. Nagamuthu

For respondent : Mr. O. Srinath APP

:O R D E R

The above criminal original petitions are filed against the order of dismissing the application for discharge by the Court below.

2. The case of the prosecution is that the three petitioners herein were running jewellery shop at Pudukottai. In the year 1993, they started a scheme under which they announced a prize scheme for the members participating in the scheme. The members are to contribute a sum of Rs.100/- or Rs.500/-every month; Every month there was a draw and the successful winner need not pay further instalments. He will be given the value of 36 months' deposits immediately after winning the draw. All the other members have to pay the instalments till the end of 36 months and at the end of 36th instalment, goods worth to the amount deposited plus something more as an incentive will be given to them. A complaint was filed on 17.12.1995 stating that some of such subscribers were not paid the amounts of deposits, and when they went to the shop, they found the shop closed. Therefore, they preferred a complaint to the police;; Based on which First Information Report was filed on the same day i.e., on 17.12.1995 for the alleged violation of Section 4 and 5 of the Prize Chits Money Circulation ( Banning) Act 1978. Subsequently, the police investigated the matter and filed charge sheet on 03.05.1999. The learned Judge taking cognizance of the offence, has framed charges under Sections 4 (1) and 5 of the above said Act. Therefore, the petitioners herein filed petitions seeking discharge and the learned Magistrate has held that since an additional charge sheet is filed before the disposal of these petitions, the petitioners could not be discharged from the alleged offences said to have been committed by the petitioners and dismissed the petitions.

3. Aggrieved by this order, the petitioners have filed the above criminal original petitions under Section 482 of Code of Criminal Procedure.

4. Mr. S. Nagamuthu, learned counsel appearing for the petitioners submitted that the offence had taken place prior to 17.12.1995. For violation of the provisions of Sections 4 and 5 of the Act 1978, the period of limitation for taking cognizance of the offence is fixed as three years. Inasmuch as the congnizance of this case has been taken by the Court below, only after 3.5.1999, on the date of filing of the charge sheet, it is not valid and hence, the applications for discharge should have been allowed.

5. Learned Additional Public Prosecutor submitted that Section 47 3 of Code of Criminal Procedure removes the defects in filing of the charge sheets. According to which the Court can take congnizance of an offence even after the expiry of limitation prescribed under Section 468 of Cr.PC, if it is satisfied on the facts and circumstances of the case that the delay has been properly explained or that it is necessary to do so in the interest of justice. Therefore, in the interest of justice, it is necessary that this case is taken cognizance of and, therefore, it is not hit by limitation prescribed under Section 468 of Code of Criminal Procedure.

6. Learned counsel appearing for the petitioners referred to the judgment of the Division Bench of this Court in KATHAMUTHU v. BALAMMAL 1985 Law Weekly (Criminal), 252 wherein this Court has held that exercise of power under S. 473 extending the period of limitation by condoning the delay in launching the prosecution, should preceded the taking cognizance of the offence. Relying upon the above judgment, learned counsel for the petitioners argued that this Section 473 of Cr.PC cannot be resorted to once that cognizance had been taken by the learned Judge.

7. Learned counsel also relied upon another decision of this Court in MOHAN RAJ AND APPAVOO In re 1982 Law Weekly (Criminal) 164 wherein this Court has held that the filing of charge sheet after more than 3 years of the commission of offence is barred by limitation. The plea of the prosecution that the matter has to be reinvestigated was not sustainable.

8. For the same point, learned counsel further relied on a recent judgment of this Court reported in DANDAPANI AND OTHERS v. STATE BY SUB INSPECTOR OF POLICE, THIRUVANNAMALAI TOWN (2001) M.L.J. (Crl.) 10 83 wherein Nagappan.J. has held that cognizance of an offence taken after the period of limitation prescribed under Section 468 of Cr.PC is not valid and hence quashed the proceedings.

9. Learned Additional Public Prosecutor submitted that what is taken cognizance of is only offence and not offender. The word ' offence' means an act committed by the accused. Here the act of complained of against the accused is collection of money on a promisor and ultimately failing to keep the promise. Therefore, this will amount to an offence punishable under Section 420 of Indian Penal Code. Therefore, even though Section 420 IPC has not been mentioned in the charge sheet, still the act complaint of attracts Section 420 IPC, therefore, it is not as if the congnizance was not taken under Section 420 IPC. Therefore, the application for discharge was rightly rejected by the Court below.

10. This argument of the learned Public Prosecutor though appealing, cannot be accepted on the facts and circumstances of this case.

11. To constitute an offence under Section 420 IPC, there must be cheating within the meaning of Section 415 of IPC. To constitute cheating the representation or promise should have been made with an intention of cheating; that is, the intention to cheat should have been in existence at the initial stage and it should continue till the end. The intention to cheat at the original stage cannot be said to have been existing on the facts of this case.

12. The scheme put forth by the petitioners herein was to collect a fixed sum periodically for a continuous period of 36 months and to pay the entire amount together with interest at the end of 36th instalment. Admittedly, to a large number of persons, the petitioners had repaid the entire amount as promised. Therefore, it cannot be said that the petitioners had the intention to cheat even at the initial stage of starting the scheme. Therefore, this act complained of does not fall within the definition of Section 415 IPC. That appears to be the reason while filing the charge sheet-though initially in the complaint Section 420 was mentioned when the charge sheet was filed Section 420 IPC does not find place. In the circumstances, the act would only attract the provisions of Section 4 and 5 of the Prize Chits Money Circulation (Banning) Act 1978. As per Section 468 of Code of Criminal Procedure, the period of limitation for taking cognizance of that offence is only three years.

13. Admittedly, in this case, the charge sheet was filed only on 3 .5.1999 that is, beyond the period of three years from the date of filing of the First Information Report. Therefore, the act of taking cognizance by the Court below is not legal as it is contrary to the provisions of Section 468 of Code of Criminal Procedure. Therefore, the petitioners are right in seeking an order of discharge from the Court below and therefore, the rejection of discharge by the Court below is not legal and valid and, hence, the orders are set aside.

14. In the result, the criminal original petitions are allowed and the orders of the Court below are quashed. Consequently, connected Crl.M.Ps. are closed.

25.07.2002

Index : Yes

Internet : Yes

kvsg

To

1. The Addl. Sessions Judge cum Chief Judicial Magistrate, Pudukottai.

2. The Prl. Sessions Judge, Pudukottai.

3. The Inspector of Police, District Crime Branch, Pudukottai.

4. The Public Prosecutor, High Court, Madras.

A.K. RAJAN.J.

Crl. O.P. Nos.

20908, 23865, 23866 &

27867/2000