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aggrieved (director)     08 June 2013

Urgent help sec 219 crpc ipc 406

Hi! Need urgent help from advocate members. On basis of one complainant, an FIR under IPC 406 was registered. IO took complaints of six others and took them as PWs in the case who had same complaints. Hon Judge now has framed 7 distinct charges and wants to split the case to three cases as per crpc 219. Case is of return of educational certificates of employees retained by company. Is the view of the judge right, can it be argued and if so, can anyone give citations / judgements to support.

 

would appreciate an urgent reply



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 14 Replies

Sonia Dhamija (Advocate)     08 June 2013

It all depends on the facts of the case. Full details are not mentioned in your query.

 

If all the 7 complaints are part of the SAME cause of action, then only ONE offence or charge is made out.

 

On the other hand, if all the 7 complaints are arising out of DIFFERENT cause(s) of action, i.e., if they are not connected with one-another though the accused may be the same person, then different offences are made out. In such a case, there would be 7 offences. Now, under Section 219 of Cr.P.C., three offences of the same kind occuring within the space of 12 months may be charged together in one trial. Therefore, presuming that all these 7 offences are separate and have occured within a period of 12 months, there would be 3 trials consisting of 3 + 3 + 1 offences (i.e., total 7 offences) since not more than 3 offences of the same kind can be tried together.

aggrieved (director)     08 June 2013

Thankyou Sonia Ji for the prompt revert.

As mentioned, all complaints are of educational documents of employees being retained by company which was a standard practice of the company while employing staff. Same was mentioned in Employment letter of each staff who joined that the cert will be retained for a period of one year which was their minimum period to work with us. Dont know if it becomes one cause of action or different since complainants are different, their certificates are different but all are employment condition. Moreover, only three of them claimed back the certificates through notice, while rest have only alleged in their complaints that they asked for return of documents but were denied. Rest of them got back their certificates immediately after they complained against us in writing to IO who showed them as docs seized and handed over to complainants through court. Joining period of all these employees is over a period of two years.

Hope I have been clear. I have come across divergent cases of cheque bouncing where in some cases, more than three complaints have been clubbed also and in some cases, it has been disallowed.

Please advise if there are citations where more than three complaints for same offence have been clubbed

Thanks 

Advocate Deepak Gupta (Lawyer)     08 June 2013

 One Orissa High Court rulling may be help you - GOURA CHANDRA NAIK V/S STATE OF ORISSA , 1992 , Cr.L.J 275,(ORI)  or refer to page no-521 para-3 of Criminal Procedure ( Ratanlal & Dhirjlal) .

Also - E.K.Thankappan v/s Union of India ( Kerala High Court ) Crimes 1989 (3)  Page -656. may be help you.

aggrieved (director)     08 June 2013

Thank You Deepak Ji

Can you please forward me link where I can find these judgements on the net

Sonia Dhamija (Advocate)     08 June 2013

Let me clarify. If all these employees were selected at a common examination and their educational documents were collected at the same time as a part of the common exercise, it may be the SAME cause of action where only one offence is possible. On the other hand, if they were selected in different examinations or different selection processes or at entirely different times, in that case the cause of action would be different (though in this case also, you can try to convince the court that the collection of documents is done under the SAME rule or order, hence a common cause of action).

 

However, you have also stated that the employees have joined over a perod of two years. As I mentioned earlier, Section 219 is applicable for offences committed within a space of 12 months. So, this may be another impediment to have a single trial.

 

But, let me raise another basic issue. From the descripttion given by you (though one has to see the FIR, Chargesheet and other relevant papers to get a full idea of the case), I doubt how an offence under Section 406 IPC can be made out. There are 3 basic ingredients of the offence under Section 406 IPC:

 

(1) Accused must have dominion over property or must have been entrusted with property (this apepars to be satisfied here).

 

(2) He must dishonestly misappropriate the same or convert it for his own use, etc. (it apepars that this ingredient is not satisfied).

 

(3) Such misappropriation or conversion must be in violation of any direction of law, or of any legal contract, etc.,  prescribing the mode in which such trust is to be discharged (in the absence of full knowlege of the case papers, I cannot say whether this ingredient is satisfied, though it appears from your descripttion that this ingredient is also not satisfied).

 

Therefore, it appears doubtful whether an offence under Section 406 IPC is made out in these circumstances. Of course, a civil action can be taken in this situation, but an offence is doubtful. A definitive opinion can be given by a person who has seen all case papers. 

Advocate Deepak Gupta (Lawyer)     08 June 2013

Try to Search in HC website . If not concern with lawyer to provide the Criminal Law General .

aggrieved (director)     08 June 2013

Thankyou Sonia Ji and Deepak Ji,

Case was made out under Sec 156(3) on complaint by one employee. rest of them were accumulated by IO. Charges have already been framed although initially even Hon MM was of the opinion that all conditions of 406 need to be satisfied. Our arguement also on framing of charges was that property entrusted to us was not misused for personal gain etc.

Also as per appointment letter, docs were to be returned after completing one year of service, or in case any employee left midway, to handover company documents, material etc as well as pay back three months salary in lieu of training provided etc. All these employees had left after taking their salaries and never bothered to hand over charge / follow proper releiving process.

While framing charges, Hon MM has taken cognixance of allegation of demand of money to return documents.......made by the main complainant without any supporting proof (basically a lie) and rest of the complainant that they were coerced to work late hours etc since their documents were submitted.  As mentioned earlier. their was one complainant and rest 6 employees as PWs, Hon MM has framed 7 distinct charges and has now put up for consideration at next date for splitting into 3 cases under sec 219 crpc.

Pls advise if it can be argued successfully and how

Advocate Deepak Gupta (Lawyer)     08 June 2013

File revision against charge and sec 219 .

aggrieved (director)     08 June 2013

Its already 6 months since charges were framed

aggrieved (director)     08 June 2013

was advised that filing for revision may adversely affext the trial in case turned down

biji s (Asst.public Prosecutor)     08 June 2013

I also doubt if the offence of 406 IPC will sustain in this case. There is no misappropriation or convert to his own use. So a suit for recovery of possession will lie.

Next , it is not the collection but the retention of the documents is the cause of action. So S.219 of the Crpc is applicable if it happened within a span of 12 months.

aggrieved (director)     08 June 2013

should there not be a demand for cause of action? In case of 4 employees, there is no demand also except in their complaint to IO after registering of case, they have stated that they asked for documents but were denied.

aggrieved (director)     08 June 2013

BTW all of them have already got back their documents from court on superdari

ramamani (practice)     07 August 2014

Dear friends under the circumstances mentioned here,(one F.I.R and two complaints clubbed at the stage of investigation) mere mentioning of the I.O. in the charge sheet that the other two complaints are clubbed enough?  Is there any procedure followed  by the I.O. for such clubbing. whether the fact of clubbing should  be mentioned in the registered F.I.R or any other document?


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