# Satish Chandra Shukla Revisionist v. State of U.P. & Anr

- **Citation:** (2024) 1 ILRA 393
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-01-04
- **Case number:** Criminal Revision No. 546 of 2022
- **Bench:** Subhash Vidyarthi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/satish-chandra-shukla-revisionist-v-state-of-u-p-anr-51158
- **Pages:** 5

## Headnote

(A) Criminal Law - Code of Criminal
Procedure, 1973 - Section 397/401 -
Revision, Section 239 - Discharge,
Section 468 (2)(c) - limitation for taking
cognizance of an offence will be three
years - no court can take cognizance of
the offence after the expiry of period of
limitation

-
for
the
purpose
of
computing the period of limitation under
Section 468CrPC, the relevant date is
the date of filing of the complaint or the
date of institution of prosecution and
not the date on which the Magistrate
takes cognizance of the offence - Indian
Penal Code, 1860 - Section 405,406 -
Criminal breach of trust, Section 409 -
Criminal
breach
of
trust
by
Public
servant, or by banker, merchant or
agent.(Para - 7)

Revisionist was Secretary of Sadhan Sahkari
Samiti - not a public servant - cannot be tried
for an offence under section 409 I.P.C. -
allegations could potentially constitute an
offence under Section 405 I.P.C, defining
criminal breach of trust - Court clarified that
Secretary of a Sadhan Sahkari Samiti is not an
agent of the Government. - Validity of an
order passed by ACJ under challenge - which
rejected revisionist's application for discharge
under Section 239 Cr.P.C. (Para - 2,11,16)

HELD:-No trial for revisionist under Section
409 Cr.P.C. .No illegality in prosecution under
Section 406 I.P.C. . Order rejecting application
for discharge filed by revisionist set aside.
Directs trial court to decide revision under
Section 239 Cr.P.C afresh.(Para - 17,18)

Revision allowed. (E-7)

List of Cases cited:

## Text

1 All. Satish Chandra Shukla Vs. State of U.P. & Anr.
393

(2) ....

(3) Any Magistrate empowered under
Section 190 may order such an investigation
as above-mentioned."

15. Hence, in view of the case law cited
above, it is evident that it is the powers of the
Magistrate to treat the application under
Section 156(3) Cr.P.C. as a complaint and to
proceed to record the statement under Section
200 and 202 Cr.P.C. and decide the
application in accordance with the provisions
of law.

16. In the present case, court has acted
in accordance with the powers vested in it by
the provisions of Section 156(3) Cr.P.C., the
Magistrate acted with the judicious approach
to convert the application moved under
Section 156(3) into complaint. Moreover, the
powers of Magistrate was not challenged
when the first appeal was filed by the
revisionist against the impugned order dated
27.08.2012, hence, the revision has no force,
there is no illegality, irregularity or perversity
in the impugned order, hence revision is
liable to be dismissed and is accordingly
dismissed.

17. Let the copy of the order be sent
to the court concerned for necessary
information and compliance.
----------
(2024) 1 ILRA 393
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 04.01.2024

BEFORE

THE HON'BLE SUBHASH VIDYARTHI, J.

Criminal Revision No. 546 of 2022

Satish Chandra Shukla ...Revisionist
Versus
State of U.P. & Anr. ...Respondents
Counsel for the Revisionist:
Ranjana Agnihotri, Satyendra Tiwari

Counsel for the Respondent:
G.A.

(A) Criminal Law - Code of Criminal
Procedure, 1973 - Section 397/401 -
Revision, Section 239 - Discharge,
Section 468 (2)(c) - limitation for taking
cognizance of an offence will be three
years - no court can take cognizance of
the offence after the expiry of period of
limitation

-
for
the
purpose
of
computing the period of limitation under
Section 468CrPC, the relevant date is
the date of filing of the complaint or the
date of institution of prosecution and
not the date on which the Magistrate
takes cognizance of the offence - Indian
Penal Code, 1860 - Section 405,406 -
Criminal breach of trust, Section 409 -
Criminal
breach
of
trust
by
Public
servant, or by banker, merchant or
agent.(Para - 7)

Revisionist was Secretary of Sadhan Sahkari
Samiti - not a public servant - cannot be tried
for an offence under section 409 I.P.C. -
allegations could potentially constitute an
offence under Section 405 I.P.C, defining
criminal breach of trust - Court clarified that
Secretary of a Sadhan Sahkari Samiti is not an
agent of the Government. - Validity of an
order passed by ACJ under challenge - which
rejected revisionist's application for discharge
under Section 239 Cr.P.C. (Para - 2,11,16)

HELD:-No trial for revisionist under Section
409 Cr.P.C. .No illegality in prosecution under
Section 406 I.P.C. . Order rejecting application
for discharge filed by revisionist set aside.
Directs trial court to decide revision under
Section 239 Cr.P.C afresh.(Para - 17,18)

Revision allowed. (E-7)

List of Cases cited:

1. Sarah Mathew Vs Institute of Cardio Vascular
Diseases, (2014) 2 SCC 62

2. Amritlal Vs Shantilal Soni, (2022) 13 SCC 128
394 INDIAN LAW REPORTS ALLAHABAD SERIES
3. S.S. Dhanoa Vs Municipal Corporation, Delhi,
1981 3 SCC 431

(Delivered by Hon'ble Subhash Vidyarthi,
J.)

1. Heard Sri Ratnesh Kant Agnihotri,
Advocate holding brief of Ms. Ranjana
Agnihotri, the learned counsel for the
revisionist and Ms. Charu Singh, the
learned A.G.A for the State.

2. By means of the instant revision
filed under Section 397/401 Cr.P.C, the
revisionist has assailed the validity of order
dated 21.04.2022 passed by the Additional
Civil Judge (Junior Division)/ Judicial
Magistrate, Court No. 3, Unnao in Misc.
Case
No.
1392/2021,
whereby,
the
revisionist's application for discharge under
Section 239 Cr.P.C has been rejected.

3. Briefly stated, the facts of the case
are that an F.I.R was lodged on 08.04.1994,
stating that the complainants are old
members of Sadhan Sahkari Samiti Ltd.
They used to take loan for purchasing
fertilizers, seeds and cattle from the Samiti
and to repay the same. The revisionist was
Secretary of Sadhan Sahkari Samiti and he
had removed the entire record of the Samiti
somewhere around the year 1987. Lock of
the Samiti premises was broken open by
the Tehsildar but even thereafter, the record
was not handed over by the revisionist.
Thereafter, the government had announced
waiver of the loans. About a month prior to
lodging of the F.I.R, the applicant had
demanded passbooks of the complainants
on the pretext that he would get the loan
waiver
entered
in
the
passbooks.
Accordingly, the complainants had handed
over their passbooks to the revisionist.
Thereafter, the new secretary of Sadhna
Sahkari Samiti was demanding money from
the complainants. Upon making inquiries
from the bank, the complainants came to
know that the revisionist has got entries of
amount made in excess of the amounts
borrowed
by
the
complainants.
The
revisionist was not returning the passbooks
of the complainants.

4. After investigation, a final report
was submitted on 03.01.1996. However,
even after submissions of the final report,
the complainant was summoned and his
statement was recorded on 02.06.1998
wherein he stated that the final report had
wrongly been submitted. Accordingly,
cognizance of the offence was taken by
means of an order dated 17.08.1999.

5. The revisionist has challenged the
order
dated
17.08.1999
by
filing
application under Section 482 Cr.P.C No.
3514 of 2009, which was disposed off by
means of an order dated 18.09.2009,
without entering into the merits of the case,
directing that the revisionist may apply for
bail and it was further stated that the plea
that the offence under Section 409 I.P.C is
not made, out can be raised at the time of
framing of charges by moving a discharge
application. Thereafter,
the
revisionist
moved an application for discharge on
23.07.2010 which has been rejected by
means of the impugned order dated
21.04.2020.

6. The learned counsel for the
applicant submitted that the proceedings
are barred by Section 468 Cr.P.C., which
provides as follows:-" Bar to taking
cognizance after lapse of the period of
limitation. Except as otherwise provided
elsewhere in this Code, no Court, shall take
cognizance of an offence of the category
specified in Sub-Section (2), after the
expiry of the period of limitation.
1 All. Satish Chandra Shukla Vs. State of U.P. & Anr.
395

The period of limitation shall be?

1. six months, if the offence is
punishable with fine only;

2. one year, if the offence is punishable
with imprisonment for a term not exceeding
one year;

3. three years, if the offence is
punishable with imprisonment for a term
exceeding one year but not exceeding three
years.

For the purposes of this section, the
period of limitation, in relation to offences
which may be tried together, shall be
determined with reference to the offence
which is punishable with the more severe
punishment or, as the case may be, the most
severe punishment."

7. As per the learned counsel for the
applicant, Section 406 I.P.C provides for a
maximum punishment for imprisonment up
to three years and as per the provision
contained in Section 468 (2)(c), the
limitation for taking cognizance of an
offence will be three years and no court can
take cognizance of the offence after the
expiry of period of limitation. The offence
was allegedly committed between the years
1987 till the year 1994 and cognizance of
the offence has been taken on 17.08.1999.

8. The learned A.G.A. has placed
reliance of the judgment in the case of
Sarah Mathew v. Institute of Cardio
Vascular Diseases, (2014) 2 SCC 62, in
which the Hon?ble Supreme Court held
that ?for the purpose of computing the
period of limitation under Section 468
CrPC the relevant date is the date of filing
of the complaint or the date of institution of
prosecution and not the date on which the
Magistrate takes cognizance.

9. The judgment in Sarah Mathew
(Sura) has been followed and reaffirmed in
Amritlal v. Shantilal Soni, (2022) 13 SCC
128, wherein is has been stated that: -

?11. Therefore, the enunciations and
declaration of law by the Constitution
Bench inSarah Mathew case [Sarah
Mathew v.Institute of Cardio Vascular
Diseases, (2014) 2 SCC 62 : (2014) 1 SCC
(Cri) 721] , do not admit of any doubt that
for the purpose of computing the period of
limitation under Section 468CrPC, the
relevant date is the date of filing of the
complaint or the date of institution of
prosecution and not the date on which the
Magistrate
takes
cognizance
of
the
offence.?

10. As the F.I.R. was lodged on
08.04.1994 alleging that the applicant had
removed the entire record of Sadhan
Sahkari Samiti Ltd. In the year 1987, but it
also alleges that the applicant had taken
away the passbooks of the complainants
about 1 month prior to lodging of the FIR
and thereafter he got entries made in the
passbooks showing borrowings made by
the
complainants
in
excess
of
the
borrowings which they had actually made,
some offence was committed about 1
month prior to lodging of the FIR and,
therefore, the F.I.R. was lodged within the
period prescribed by Section 468 Cr.P.C.
and the proceedings cannot be quashed on
the ground of the same being hit by Section
468 I.P.C.

11. The next submission of the
learned counsel for the revisionist is that
the revisionist was the Secretary of Sadhan
Sahkari Samiti and he was not a public
servant and, therefore, he cannot be tried
for an offence under section 409 I.P.C.

12. Per contra, the learned A.G.A has
submitted that the revisionist was acting as
396 INDIAN LAW REPORTS ALLAHABAD SERIES
an agent of the government and, therefore,
he would fall within the purview of Section
409 I.P.C.

13. Section 409 I.P.C provides as
follows:-

"Whoever, being in any manner
entrusted with property, or with any
dominion over property in his capacity of a
public servant or in the way of his business
as a banker, merchant, factor, broker,
attorney or agent, commits criminal breach
of trust in respect of that property, shall be
punished with imprisonment for life, or
with imprisonment of either description for
a term which may extend to ten years, and
shall also be liable to fine. "

14. For making out an offence of
criminal breach of trust by a public servant
or by a banker, merchant or agent provided
in Section 409 I.P.C, it is necessary that the
accused should have been entrusted with
any property or with any dominion of
property in his capacity of a public servant
or in the way of his business as a banker,
merchant, factor, broker, attorney or agent.
The only allegation against the revisionist
in the F.I.R is that he was working as a
Secretary of Sadhan Sahkari Samiti and
members of the Sadhan Sahkari Samiti had
handed over their passbooks of their bank
accounts to the revisionist. The passbooks
related to the bank accounts, and the
revisionist is not an employee of any bank
and he is not a banker. The revisionist is not
even a merchant, factor, broker or attorney.

15. In S.S. Dhanoa vs. Municipal
Corporation, Delhi, 1981 3 SCC 431, the
Hon'ble Supreme Court has held that a
cooperative society is not a corporation
established by or under an act of the
Central or State legislature and that an
officer of a cooperative society would not
fall within the definition of public servant
as defined in Section 21 I.P.C.

16. So far as the submissions of the
learned A.G.A that the revisionist is an
agent is concerned, suffice it to say firstly
that when Section 409 speaks of an agent, it
provides that the property should have been
interested to a person in the way of his
business as an agent, which implies that the
property should have been handed over by
the principle of which the accused is an
agent. There is no allegation that the
revisionist
was
an
agent
of
the
complainants. Therefore, the offence under
Section 409 will not be made out against
the revisionist, who was the secretary of
Sadhan Sahkari Samiti even if he be treated
to be an agent of the Government. The
allegations will at the most make out
commission of an offence under Section
405 I.P.C, which defines criminal breach of
trust
and
which
is
punishable
by
imprisonment for a term which may extend
to three years or with fine or with both as
provided in Section 406 I.P.C. It is clarified
that the while deciding the aforesaid plea,
this Court has not held that the Secretary of
a Sadhan Sahkari Samiti is an agent of the
Government.

17. In view of the forgoing
discussion, I am of the view that no case is
made out for trial of the revisionist for
commission of an offence under Section
409 Cr.P.C. However, there is no illegality
in prosecution of the revisionist for
commission under Section 406 I.P.C.

18. Accordingly, the revision is
allowed. The order dated 21.04.2022
passed by the Additional Civil Judge
(Junior Division)/ Judicial Magistrate,
Court
No.
3,
Unnao
rejecting
the
1 All. Chandra Prakash & Ors. Vs. State of U.P.
397
application for discharge filed by the
revisionist is hereby set aside and the trial
court is directed to decide the revision for
discharge under Section 239 Cr.P.C afresh
in light of the observation made in this
order.
----------
(2024) 1 ILRA 397
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 11.01.2024

BEFORE

THE HON'BLE SUBHASH VIDYARTHI, J.

Crl. Revision No. 1436 of 2023

Chandra Prakash & Ors. ...Revisionists
Versus
State of U.P. ...Respondent

Counsel for the Revisionists:
Arun Kumar Pandey, I.K. Pandey Ist

Counsel for the Respondent:
G.A.

(अ) र्ौजदारी कानून - िारिीय दिंर् प्रकक्रया सिंकहिा ,1973
- िारा 397/401 - आपराधिक पुनरीक्षण (Criminal
Revision) , िारा 227 - उन्मोचन(Discharge), िारा
228 - आरोप विरधचि करना(Framing of Charge) ,
िारिीय दिंर् सिंकहिा, 1860 - िारा 306 - आत्माहत्या का
दुष्प्रे रण (Abetment of suicide) - मामले की सत्यिा
मात्र िब स्पष्ट हो पायेर्ी जब अधियोजन अपना साक्ष्य
प्रस्िुि करिा है िर्था साजक्षयों का प्रधिपरीक्षण बचाि पक्ष
द्वारा ककया जािा है, िारा 313 दिं०प्र०सिं० के अिंिर्गि
अधियुक्त से उसको आरोवपि करने िाले साक्ष्य के विषय में
प्रश्न पूछे जािे हैं िर्था अधियुक्त को बचाि में साक्ष्य देने का
अिसर कदया जािा है - उक्त सिी सोपानों के पूणग होने के
पिाि ही विचारण पूणग होिा है िर्था न्यायालय अपनी
अिंधिम राय बनािे हुए धनणगय देिा है। (पैरा - 10)

(ब) िारिीय दिंर् प्रकक्रया सिंकहिा ,1973 - दिं०प्र०सिं० की
िारा 227 एििं 228 में एक महीन सा अन्िर - िारा
227 दिं०प्र०सिं० में न्यायालय को अधियुक्त के विरुद्ध
कायगिाही करने के धलए पयागि आिार न होने का सिंिोष
अधिलेखों िर्था अन्य उपलब्ि सामिी के आिार पर
धनिागररि करना होिा है - िारा 228 द०प्र०सिं० में
न्यायालय को मात्र यह राय बनानी होिी है कक ऐसी
उपिारणा करने का आिार है कक अधियुक्त ने कधर्थि
अपराि ककया है- यह कहना र्लि होर्ा कक िारा 228
दिं०प्र०सिं० में आरोप विरधचि करिे समय न्यायालय को
ऐसी राय बनाना आिश्यक है कक अधियुक्त धनिय ही कधर्थि
आरोप के धलए दोषी है।(पैरा - 8)
मृिक ने एक मृत्यु पूिग पत्र धलखकर प्रार्थीर्ण को अपनी
मृत्यु के धलए दोषी ठहराने के िुरन्ि बाद आत्महत्या कर
ली - धशकायिकिाग ने अपने बयान में उपरोक्त आरोप का
समर्थगन ककया- उन्मोचन के धलए प्रार्थगना-पत्र -
पुनरीक्षणकिाग का उन्मोचन प्रार्थगना-पत्र धनरस्ि ककया र्या
- िैििा को चुनौिी । (पैरा - 2,3,4,11)

धनणगय : आरोपों की सत्यिा िारा 227 दिं०प्र०सिं० के स्िर
पर िय नहीिं की जा सकिी है िर्था यह विचारण(Trial) के
उपरान्ि ही िय हो सकिा है ।(पैरा -11)

पुनरीक्षण धनरस्ि ककया जािा है। (E-7)

उद्धृि मामलों की सूची :

1. रमेश कुमार बनाम छत्तीसर्ढ राज्य , AIR 2001
सुप्रीम कोर्ग 3837

2. माररयानो एन्र्ो ब्रूनो बनाम पुधलस धनरीक्षक (M.A.
Bruno Vs I.P.) , AIR 2022 सुप्रीम कोर्ग 4994

3. अधमि कपूर बनाम रमेश चन्दर, 2012 9SCC 460

4. महाराष्ट्र राज्य बनाम सोमनार्थ र्थापा , 1996 4SCC
659

(Delivered by Hon'ble Subhash Vidyarthi, J.)

1. प्रार्थीर्ण के विद्वान अधििक्ता श्री
अरुण
कुमार
पाडर्ेय,
विद्वान
अधिररक्त