- (1.) THE petitioner is accused in C.C.No.12826 of 1988 pending on the file of the XIII Metropolitan Magistrate, Egmore, Chennai. He faces a private complaint for offences under Secs.500, 501 and 502, I.P.C. While so, he filed a petition before the trial Court by way of memorandum of objection in the Court which took cognizance of the offence. According to the petitioner, the offence was said to have taken place on 4.8.1985 on the date when the alleged imputation was published in the daily "Dinamalar", whereas the complaint was filed on 4 8.1988; but it was taken cognizance by the Court only on 30.11.1988. THErefore, the accused wanted to invoke the benevolence provisions found in Sec.468, Crl.P.C. on the contention that taking cognizance of the offence beyond the period of three years as contemplated under Sec.468 is in violation of the established procedure of law. THE trial Court negatived the contention and dismissed his petition. Hence this revision.
(2.) THE alleged imputation was said to have been published in the paper on 4.8.1988. THE complaint for the offences under Secs.500, 501 and 502, I.P.C. was filed on 2.8.1988 and the same was taken cognizance by the Magistrate on 30.11.1988. Insofar as these dates are concerned, there is no dispute. THE only point urged by the learned counsel appearing for the petitioner is, that inasmuch as taking cognizance of the offence was made only on 30.11.1988 which is being the period of three years as contemplated under Sec.468, Crl.P.C., the accused cannot be made to face a prosecution and therefore, the complaint has got to be dismissed in limine.Sec.468, Crl.P.C. fixes the period of 3 years limitation for an offence punishable with imprisonment for a period exceeding one year, but not exceeding three years. All the above three offences invite punishment only upto two years; therefore the period of limitation for taking cognizance of the offence is, no doubt, only three years as per Sec.468, Crl.P.C. in the absence of any application being made by the complainant under Sec.473, Crl.P.C. Learned counsel appearing for the complainant submits that though the complaint was filed just two days prior to the expiry of the period of limitation i.e., on 4.8.1988, taking cognizance of the complaint was belated and it was taken cognizance of only on 30.11.1988 and that Sec.468 speaks only about taking cognizance and not making a complaint as in the case for an offence under Sec.138 of N.I. Act and therefore, since the trial Court took cognizance of the offence beyond the period of limitation, the revision has to be allowed. In support of his contention, learned counsel relied on a ruling of the Apex Court rendered in the case of Narsingh Das Tapadia v. Goverdhan Das Partani and another , (2000)7 S.C.C. 183. Their Lordships in that case distinguished "making a complaint" from "taking cognizance of the complaint." Their Lordships would say that taking cognizance would mean the action taken by the Court for initiating judicial proceedings against the offender in respect of offence regarding which the complaint is filed. According to Sec.138, which was the subject matter in that case a period of one month was for making a complaint under Sec.142(b) of N.I. Act and not for taking cognizance of the complaint. In the case before the Apex Court, the trial Court took cognizance of the offence prematurely even before the period of expiry of 15 days after the receipt of the notice by the accused concerned. In that context, their Lordships distinguished the phrase "making complaint" from the phrase "taking cognizance" and then held that the Magistrate ought not to have proceeded to take cognizance of the offence even before the rising of the cause of action as per Sec.138(b) and the magistrate ought to have kept the complaint so as to allow the period run to enable the Court to take cognizance after the period which gives rise to cause of action. In that context alone, their Lordships have distinguished between "making a complaint" from "taking cognizance" of the offence. The import and meaning as well as the object of Sec.468, Crl.P.C. was not discussed in the said ruling. But, the same was discussed by the Apex Court in the case of State of Punjab v. Sarwan Singh, A.I.R. 1981 S.C. 1954 and the Supreme Court has held as follows; "The object of Criminal Procedure Code in putting a bar of limitation on prosecutions was clearly to prevent the parties from filing cases after a long time, as a result of which material evidence may disappear and also to prevent abuse of the process of the Court by filing vexatious and belated prosecutions long after the date of the offence. The object which the statute seeks to subserve is clearly in consonance with the concept of fairness of trial as enshrined in Art.21 of the Constitution". Therefore, the object, according to their Lordships, of prescribing period of limitation in the Criminal Procedure Code is only to prevent the parties from filing cases after a long time and not to prescribe a strict period of limitation for the Courts for taking cognizance of the offence. This aspect has been well appreciated by a Division Bench of this Court, reported and rendered in the case of A.Vinayagam v. Dr.Subash Chandran, (2000)1 L.W. (Crl.) 460. The question before that Court was also with regard to the limitation prescribed under Sec. 142(b) of N.I. Act. Insofar as Sec.138 of N.I.Act is concerned, the Division Bench has held that, "the limitation is undoubtedly provided only for filing the complaint and not for taking its cognizance or even for issuing the process. There is nothing in that clause indicating or bringing fetters on the powers of the Magistrate to take cognizance on a complaint which has been filed within limitation, i.e., within thirty days of the date on which the cause of action arises under Clause (c) of proviso to Sec.138. Such fetters may come by the general law of limitation contained in Sec.468 of the Code of Criminal Procedure, but that is not the case here". After holding so, this Bench in para.22 of its judgment has held as follows, which is very much relevant for appreciation of the position that is in dispute in this revision: "It is the cardinal principle of law that the Act of Court should not prejudice any one." Actus curiae neminem gravabita". The Supreme Court has reiterated this principle in Jang Singh v. Brijlal and others, 2 S.C.R. 145. There, the Supreme Court has refused to find fault with a party who had made short payment by one rupee, for which the Court was responsible. We would choose the same course by holding that once the complaints were filed within limitation, merely because the Magistrates, completely contrary to the procedure known to law, chose to return the same without fixing the date for representation, it should not be held that the subsequent filing by the complainants would be hold to be beyond limitation. We therefore answer the reference by holding that the date, which is to be taken into account would be the date on which the complaints were initially presented. They being within limitation, the complaints would have to be held as validly filed and on that count, the accused cannot claim any benefit." The Supreme Court in the case of Pankajbnai Nagjibhai Patel v. State of Gujarat and another , (2001)1 C.T.C. 368 while dealing with the period of limitation under Sec.138 of Negotiable Instruments Act, held that - under the Code a complaint could be made at any time subject to the provisions of Chapter XXXVI. But so far as the offence under Sec.138 of the N.I. Act is concerned such complaint shall be made within one month of the cause of action. Even in this case, the period of limitation prescribed in Chapter XXXIV seems to speak only with reference to the making of the complaint and not taking cognizance of the offence. Yet another ruling reported in Swrendra Mohan Vital v. Asehraj Chopra, 1978 Crl.L.J. 764 is also germane to decide this issue. That case also relates to a complaint filed under Sec.506, Penal Code for defamation. In that case also, according to the complainant, the offence under Sec.500, I.P.C. was committed on March 15, 1972, which was the date of the offence within the meaning of Sec.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 Sec.468. But the Apex Court has said that as has been stated, the complaint under Sec.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 the offence after the expiry of the period of limitation. Even in that case, the Court took into consideration only the date of filing of the complaint and not the date on which the Court took cognizance of the offence. The Apex Court in that case has held a complaint under Sec.500, Penal Code for defamation will be barred if filed after three years of the commission of the offence. The emphasis is on the term "filed" and not on the phrase "taking cognizance of the offence". No doubt while taking cognizance of the offence, the learned Magistrate has to apply his mind and decide. But unfortunately, in most of the cases, where strict period of limitation is prescribed, the Magistrates do not take care to take cognizance of the offence within the period of limitation. It is unfortunate that such lethargic attitude on the part of the Magistrate concerned has to be condemned and a sense of duty is instilled to take cognizance of the offence if the complaint or police report is otherwise in order. Insofar as Sec.468, Crl.P.C. is concerned, as discussed above, though the phrase used is "taking cognizance", according to the various rulings of the Apex Court, it virtually amounts to only making of the complaint. The law prescribes the period of limitation. Even in the general law of limitation only for filing suits and making of complaints, etc. and not for taking cognizance as such by the Courts concerned. In that view of the matter, since insofar as this case is concerned, the complaint was filed well within the expiry period of limitation, this Court is unable to set aside the order of the learned Magistrate who rejected the request of the accused petitioners. Therefore, the petition stands dismissed. Consequently connected Crl.M.Ps. are closed. ;