MANU/KE/0243/1990

Equivalent Citation: 1990CriLJ2641, 1990(1)KLJ306

IN THE HIGH COURT OF KERALA
Criminal Appeal No. 287 of 1989
Decided On: 25.01.1990
Appellants: Mrs. Beena Alexander Kurian
Vs.
Respondent: Alexander Kurian
Hon'ble Judges/Coram:
K.G. Balakrishnan, J.
Counsels:
For Appellant/Petitioner/Plaintiff: C.K.S. Panicker, Adv.
For Respondents/Defendant: M.N.S. Nayar, Adv.
Subject: Criminal
Acts/Rules/Orders:
Code of Criminal Procedure, 1974 (CrPC) - Section 468, Code of Criminal Procedure, 1974
(CrPC) - Section 468(2); Indian Penal Code 1860, (IPC) - Section 406
Cases Referred:
Pratibha Rani's case, AIR 1985 SC 628, 1985 Cri LJ 817
Citing Reference:

Discussed

Disposition:
Appeal dismissed
Case Note:
Criminal - Acquittal - Offence committed punishable under Section 402 of the Indian
Penal Code, 1860 - Held, Appellant deposed that she demanded the money - She sent
a lawyer's notice after two years - Respondent did not pay the amount - Present
complaint was filed beyond the period of limitation - Substantive sentence for the
offence punishable under Section 406 of I.P.C. was imprisonment for a period of 3
years - If the fine was to be taken as prescribed punishment, Section 468 of the
Criminal Procedure Code (CrPC) of 1974 might not had any application to many of the
offences mentioned in the Penal Code - Offence alleged was punishable with
prescribed period of imprisonment, that alone was to be taken into consideration for
determining the period of limitation mentioned in Section 468 of Cr. P.C - Offence
alleged was under Section 406 of I.P.C. complaint should be filed within a period of
three years of the commission of the alleged criminal breach of trust - Acquittal of
Respondent was not liable to be interfered - Criminal appeal dismissed.
JUDGMENT
K.G. Balakrishnan, J.

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1. This is an appeal against acquittal. The appellant filed a complaint against the respondent
husband alleging that he committed criminal breach of trust. The marriage between the
appellant and respondent took place on 28-10-79. Prior to the marriage, there was a betrothal
ceremony on 9-9-79 and on that day a sum of Rs. 75,000/-was entrusted with the respondent
as 'streedhan' amount. The marriage between the appellant and the respondent ran into rough
whether and on 9-6-80 the appellant left the marital home and started residing with her
parents. Thereafter the appellant requested for the return of Rs. 75,000/-, the gold chain and
ring given to the respondent. The respondent did not accede to the request and in spite of
repeated demands the respondent failed to pay back the money. The appellant later filed a civil
suit for the recovery of the money and the same is pending. On 10-4-87 the appellant filed this
criminal complaint alleging that the respondent-husband committed criminal breach of trust. On
the side of the appellant 4 witnesses were examined. The learned Magistrate acquitted the
accused and held that the complainant failed to take steps against the respondent in the first
instance and that she filed a civil suit and this shows that the respondent did not dishonestly
misappropriate the amount and that the entire prosecution was an afterthought. This finding is
challenged by the appellant.
2. The appellant admitted that her marriage with the respondent lasted only for a few months.
She alleged that the respondent had an affair with another woman and found it difficult to
reside with her husband. The appellant left the marital home on 9-6-80. She filed a criminal
complaint only in 1987. Meanwhile, she had taken steps to recover the amount through other
means. She filed a pauper original petition in 1982 itself. The appellant admitted that in 1987
she came to know of the decision rendered by the Supreme Court in Pratibha Rani's case,
MANU/SC/0090/1985 : AIR 1985 SC 628 : (1985 Cri LJ 817), and, therefore, she filed the
present criminal complaint against the respondent. It is in the above circumstance the learned
Magistrate held that there existed only a civil dispute and that the appellant failed to prove that
the respondent dishonestly misappropriated the amount. The conduct of the appellant would
show that she never believed that the respondent dishonestly misappropriated the amount. She
was of the view that there existed a liability on the part of the respondent to return the amount.
In view of the above circumstance, I do not think that the view taken by the learned Magistrate
is either perverse or unreasonable.
3. The acquittal of the accused in this case is not liable to be interfered with for another reason.
It is contended on behalf of the appellant that by virtue of Section 468(2)(c) of the Code of
Criminal Procedure the criminal complaint itself was filed beyond the period of limitation and the
Magistrate was not entitled to take cognizance of the offence. Under Section 406, I.P.C. the
punishment prescribed is imprisonment for a term which may extent to 3 years, or with fine, or
with both. Under Section 468(2)(c), Cr. P.C. for an offence punishable with imprisonment for a
term exceeding one year but not exceeding three years the period of limitation shall be 3 years.
In the instant case the cause of action for filing this complaint had taken place as early as in
1980. The appellant deposed that she demanded the money in 1980. Thereafter she sent a
lawyer's notice on 8-2-82. Even then the respondent did not pay the amount. The present
complaint was filed on 10-4-87, much beyond the period of limitation. The learned Counsel for
the respondent contended that the punishment for the offence punishable under Section 406,
I.P.C. v. is not imprisonment for a period of 3 years but with imprisonment of either description
for a term which may extend to three years, or with fine, or with both and, therefore, Section
468(2)(c) of the Cr. P.C. has no application. I am unable to accept this contention. The
substantive sentence for the offence punishable under Section 406, I.P.C. is imprisonment for a
period of 3 years. If the fine also is to be taken as prescribed punishment, Section 468, Cr. P.C.
may not have any application to many of the offences mentioned in the Penal Code. I am of the
view that in a case where the offence alleged is punishable with prescribed period of
imprisonment, that alone is to be taken into consideration for determining the period of
limitation mentioned in Section 468, Cr. P.C. Therefore, where the offence alleged is under
Section 406, I.P.C., the complaint should be filed within a period of three years of the
commission of the alleged criminal breach of trust.
For the reasons aforesaid, the acquittal of the respondent is not liable to be interfered with. Crl.
Appeal fails and the same is dismissed.

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