Case: M/S. Zandu Pharmaceutical Works Ltd. And Others Vs. S Md. Sharaful Haque And Others

Respondent no.1 (hereinafter referred to as the complainant) filed a complaint on 9.8.2002 alleging that the appellants had committed offences punishable under Sections 406 and 409 of the Indian Penal Code, 1860 (in short in IPC). The date of occurrence was indicated to be between 12.7.1995 to 8.5.2002. The basic allegations in the complaint were that an advertisement was issued by the appellant no.1 seeking applications for appointment to the post of Area Manager. The complainant, who was then working in another concern applied for the post, was called to the interview on 14.7.1995 and was asked to report at the Bombay office of the appellant no.1-company on 1.8.1995 for training. After completion of the training period the complainant was asked to report to the Patna depot. He was given appointment from 9.9.1995 by letter dated 1.9.1995 wherein it was indicated that he was appointed as Field Officer and not Area Manager. According to the respondent, on receipt of the appointment letter the complainant asked the concerned officials i.e. the other accused persons as to how he was being appointed as Field Officer when he had appeared at the interview for the post of Area Manager. He was assured that the letter for the post of Area Manager will be issued in the first week of April, 1996. But no such letter came to be issued and he was not appointed as Area Manager. Grievance was, therefore, made that the accused persons had initially deceived him by appointing as Field Officer and not as Area Manager, though he was assured that the appointment letter in that regard will be issued. Therefore, they were liable to face trial for offences punishable under Sections 406 and 409 IPC4. Statement of complainant was recorded on 13.2.2002. By order dated 8.10.2002 the learned Judicial Magistrate held that sufficient material existed to proceed under Section 418 IPC against the appellants and, therefore, summons were issued for their appearance. An application under Section 482 of the Code of Criminal Procedure, 1973 (in short the Code) was filed before the High Court challenging legality of the order and summons. It was, inter alia, submitted that complaint was mis-conceived; the complainant had not come to Court with clean hands and had suppressed material facts. It was stated that the complainant had filed a Title Suit no.178/2002 before the learned Sub-Judge claiming his transfer order was mala fide. The prayer for interim protection was rejected. Case no.11/99 has been filed before the Labour Court in which complainant claimed certain payments and compensation. There was no grievance made of any cheating neither in the civil suit nor in the matter pending before the Labour Court. The complaint was stale, and in any event, beyond the prescribed period of limitation as provided in Section 468 of the Code. It was pointed out that there was no proof of the complainant having resigned from his previous employment. There was no material to show commission of any offence even if complaint petition is considered in its entirety. No foundation for proceedings under Section 418 of the Code was made out. For the first time in 2002 the alleged breaches were agitated. Stand of the complainant on the other hand was that finally his claim was rejected on 15.12.2001 and subsequently his services were terminated on 29.4.2002. That being so, the plea of complainant having been filed beyond the period of limitation cannot be maintained. The petition was, as noted above, rejected by the High Court.

Reasoning: 13. The learned Magistrate has issued process in respect of offence under Section 418 IPC. The punishment provided for said offence is imprisonment for three years. The period of limitation in terms of Section 468 (2) (c) is 3 years. That being so, the Court could not have taken cognizance of the offence. Section 473 of the Code provides for extension of period in certain cases. This power can be exercised only when the Court is satisfied on the facts and in the circumstances of the case that the delay has been properly explained or that it is necessary to do so in the interest of justice. Order of learned Magistrate does not even refer to either Section 468 or Section 473 of the Code. High Court clearly erred in holding that the complaint was not hit by limitation. As noted above, there was not even a reference that the letter dated 5.12.2001 was in response to the letter of complainant dated 24.11.2001. The factual position clearly show that the complaint was nothing but a sheer abuse of the process of law and this is a case where the power under Section 482 should have been exercised. The High Court unfortunately did not take note of the guiding principles as laid down in Bhajan Singhs case (supra), thereby rendering the judgment indefensible.