17 August 2004
Supreme Court
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HARNAM SINGH Vs EVEREST CONSTRUCTION CO. .

Case number: Crl.A. No.-000901-000901 / 2004
Diary number: 16812 / 2002
Advocates: Vs ASHWANI KUMAR


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CASE NO.: Appeal (crl.)  901 of 2004

PETITIONER: Harnam Singh

RESPONDENT: Everest Construction Co.  & Ors.

DATE OF JUDGMENT: 17/08/2004

BENCH: P. VENKATARAMA REDDI & B.P. SINGH

JUDGMENT: J U D G M E N T

ARISING OUT OF SPECIAL LEAVE PETITION (Crl.) NO.5540 OF 2002

P. VENKATARAMA REDDI, J.

Leave granted. It is the case of the appellant that his mother (who is  no more) entered in to a written agreement on 13.10.1981  with the first respondent-firm for the purchase of flat        No. 606 in the multistoried complex proposed to be  constructed at Prabha Devi, Mumbai by the said firm,  pursuant to which she paid earnest money initially and later  on after the construction of the building commenced in  1987, she tendered a sum of Rs.50,000 through a demand  draft on 28.1.1987. About a year later, the appellant’s  mother received a letter from the respondent denying the  agreement and the draft of Rs.50,000 was also returned  along with the letter. After exchange of notices, appellant’s  mother filed a suit being suit No. 82 of 1989 in the High  Court of Delhi seeking the relief of specific performance. The  respondent firm filed a written statement on 19.5.1989  setting up the plea that the flat in question was sold to one  Sukhbinder Singh by an agreement of sale dated 30.7.1981.  On 8.7.1991, the respondent filed a photocopy of the  alleged agreement dated 30.7.1981 according to which the  flat was agreed to be sold to Sukhbinder Singh. However,  the original agreement has not been filed in the Court till  now. It is alleged that the appellant’s mother, on getting  certain information from the alleged purchaser, filed a  private complaint under Sections 420, 467, 471 and 474 etc.  of IPC in the Court of Additional Chief Metropolitan  Magistrate, Delhi alleging that she was duped and a  fabricated/forged agreement has been set up in the suit, a  photocopy of which was filed. On recording the statement of  the complainant on 8.3.2001, it appears that the learned  Magistrate took cognizance of the offence and issued  summons to the accused as well as to Sukhbinder Singh. In  the meanwhile, the appellant’s mother i.e. the complainant  died in May, 2001 and the appellant has been substituted as  complainant in the case.

In May, 2002 a petition was filed under Section 482  Cr.P.C. in the High Court of Delhi for quashing the criminal  complaint. By the impugned order, the said application came  to be allowed by the High Court on the ground of delay in

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preferring the complaint. It is against this order the SLP has  been preferred by the complainant. It appears that two questions were raised before the  High Court\027one is about the bar under Section 195 Cr.P.C.  and the other regarding limitation. As regards the bar under Section 195 Cr.P.C., the  learned Judge, though noted the contention of both sides,  did not express any view thereon. However, the complaint  was quashed on the only ground that it is not maintainable  "at this belated stage". The learned Judge observed thus: "I am of the view that the complainant being  aware of the fact that the agreement dated      13-10-1981 has been filed before the High Court  on 8-7-1991, cannot maintain this complaint at  this belated stage in respect of a document  which is filed along with written statement for  defence by the petitioner in the suit pending at  the relevant time at the High Court and is being  adjudicated upon."

We are unable to perceive any legal basis for the  observation quoted above. The bar against cognizance after  the lapse of the prescribed period of limitation is laid down  under Section 468 of Cr.P.C. It is within the parameters of  that provision that the Court called upon to take cognizance  of the offence should act. Most of the offences alleged  against the respondents viz., Sections 420, 467, 471 & 474  IPC are punishable with imprisonment for a term exceeding  three years and therefore as contended by the learned  counsel for the appellant, the bar of limitation under Section  468 is not attracted. The complaint cannot therefore be  thrown out at the threshold on the ground of limitation.      If, apart from the question of limitation, the effect of delay if  any in instituting the complaint is necessary to be  determined for considering the merits of the charge, that  can only be done at the stage of trial on the basis of the  evidence on record. Obviously, the High Court did not bear  in mind the explicit provision contained in Section 468 and  the allied provisions of chapter XXXVI of Criminal Procedure  Code. Still the question whether the complaint is barred by  the provisions of Section 195 Cr.P.C. arises for  consideration. The High Court, as already stated, did not  express any view on this aspect. As it is a contentious issue  and the order of the High Court is found unsustainable as  regards the other point decided by it, the proper course  would be to remit the matter to the High Court for fresh  consideration. Accordingly, the impugned order is set aside  and the matter is remitted to the High Court for fresh  disposal. Appeal is allowed to this extent without costs.