Idbi Bank Ltd. Through Its Dy General Manager Cum Branch Head Bistupur Branch Sri Manish Aind Vs The State Of Jharkhand And Anr.

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IN THE HIGH COURT OF JHARKHAND, RANCHI

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Cr.M.P. No. 1251 of 2017

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IDBI Bank Ltd. (formerly known as Industrial Development Bank of India), a company incorporated and registered under Companies Act, 1956 (1 of 1956) and a banking company within the meaning of section 5(c) of the Banking Regulation Act, 1949 (10 of 1949) and having its Registered Office at IDBI Tower, WTC Complex, Cuffe Parade, Mumbai-400 005 and a Branch Office at Bistupur, Jamshedpur, Jharkhand, represented through its Dy. General Manager-cum-Branch Head, Bistupur Branch, Sri Manish Aind, son of lt. Mathias Aind, Sakchi Boulevard Road, P.O. and P.S. Bistupur, Dist. Singhbhum East. .... Petitioner

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-- Versus -- 1.The State of Jharkhand 2.Yogendra Mahto .... Opposite Parties

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CORAM: HON’BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

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		---
For the Petitioner	:-	Mr. Indrajit Sinha, Advocate Mr. P.A.S. Pati, Advocate Mr. Rishav Kumar, Advocate
For the State	:-	Ms. Sushma Aind, Advocate
For the O.P.No.2	:-	Mr. Rakesh Kumar Sinha, Advocate ----

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6 /03.07.2024 Heard Mr. Indrajit Sinha, the learned counsel appearing on

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behalf of the petitioner, Ms. Sushma Aind, the learned counsel appearing on behalf of the respondent State and Mr. Rakesh Kumar Sinha, the learned counsel appearing on behalf of the O.P.No.2.

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In this petition, the prayer has been made for quashing the entire criminal proceeding arising out of Bistupur P.S. Case No.142 of 2017, corresponding to G.R. Case No.1271 of 2017, pending in the court of learned Chief Judicial Magistrate, Jamshedpur.

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The complaint case has been filed alleging therein that accused no.1 is a Bank/ Financial institution carries on business of wealth management and the accused no.2 is the Chairman & Managing Director of the Accused No. 1 who is responsible for day to day business

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affairs of Accused No. 1 of its all branches. The Accused No. 3 is the Director of the Accused No. 1 who is also responsible for day to day business affairs of Accused No. 1.

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That the Accused No. 4 is the authorized business agent / partner of the Accused No. 1. Accused No. 5 is the Managing Director of the Accused No. 4. Accused No. 6 is the Regional Officer of Accused No. 4 and Accused No. 7 is the Branch Manager of the Accused No. 4 and they all are responsible for day to day affairs of business of Accused No.4.

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That on the proposal of the accused persons the complainant purchased a Bond in the form of Promissory Note of IDBI Bank bearing Reg. Folio No. IFD053468, Certificate No. 277859, Distinctive No. 0004053468 dated 19/11/1998 of Rs.10,000/- (Rupees Ten Thousand only).

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That the accused persons assured the complainant with intention to cheat the complainant that the aforesaid bond was to be matured after 17 years and 6 months and after that the complainant will get a sum of Rs.1,00,000/- (Rupees one lakh) on its maturity.

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That the complainant purchased the aforesaid bond from the Accused No. 1 through its authorized business agent namely Accused No. 4 and all the accused persons falsely assured the complainant that he will defiantly get a sum of Rs.1,00,000/- (Rupees one lakh) on its maturity, just to cheat the complainant.

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That in this regard the Accused No. 1 issued a certificate under signature of Accused No. 2&3, wherein it is mentioned that if the amount is withdrawn on Nov.2005, i.e. within 7 years the face value will be Rs.25,000/- (Rupees twenty-five thousand) and if the same is withdrawn on February 2011 i.e. 12 years 3 months, the face value will

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be Rs.50,000/- (Rupees fifty thousand).

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That the complainant visited the office of Accused No. 4 to withdraw the matured sum of Rs.1,00,000/- (Rupees one lakh) after 17 years 6 months on its maturity, surprisingly the complainant was informed by the accused persons that the redemption amount along with interest of Rs.23,562/- (Rupees twenty three thousand five hundred sixty two) was paid on 16/11/2005 vide letter Ref. No. RAJ / STATE / FL01/ 7543857 dated 27/05/2016 by the Accused No. 4 under signature of Accused No. 6 while the complainant did not receive or get any money against the aforesaid Bond.

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That it is pertinent to mention here that complainant visited the office of Accused No. 4 to obtain the matured amount. The complainant was directed to submit the original bond in the office of the Accused No. 4, as such the complainant submitted the original bond in the office of Accused No. 4 and the Accused No. 6 acknowledged the receipt of the said original Bond.

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That it is also pertinent to mention here that the complainant neither requested nor withdrawn any money on or before 16/11/2015 before its maturity from the office of the accused persons.

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That the intention of the accused persons was to cheat the complainant from very beginning as such the accused persons in connivance to each other have induced the complainant to purchase the aforesaid Bond for their wrongful gain and to put the complainant in wrongful loss thereby the accused persons committed punishable offence U/S 420 of I.P.C.

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That the accused persons have also misappropriated the hard earning money of Rs.1,00,000/- (Rupees one lakh) of the complainant -3- Cr.M.P. No.1251 of 2017

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thereby the accused persons have committed punishable offence U/S 406 of I.P.C.

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That the accused persons have also issued a forged Bond / Certificate to grab the money of the complainant thereby the accused persons have committed punishable offence U/S 467,468 & 471 of I.P.C.

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That is submitted by the complainant that the complainant served a legal notice on 01/08/2016 upon the accused persons and in reply, the accused persons stated that the complainant was paid a sum of Rs. 23,562/- (Twenty three thousand five hundred sixty two) through Cheque No. 56830 which was encashed in UCO Bank, Gamahriya Branch, while the complainant has got no such account in UCO Bank, Gamahriya Branch vide Account No. 812/4. Therefore it is evident that the accused persons have cheated the complainant and also misappropriated money of the complainant by forging a document (a promissory note).

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Mr. Indrajit Sinha, the learned counsel appearing on behalf of the petitioner submits that by order dated 29.09.2016 the learned Chief Judicial Magistrate, Jamshedpur has been pleased to forward the said complaint petition under section 156(3) of the Cr.P.C. for registration of the F.I.R and pursuant to that the said P.S. Case has been registered. He submits that there is no post of Chairman and Managing Director in the IDBI Bank. He submits that in view of the policy decision no post of Chairman-cum-Managing Director in all public sector banks are existing and that has been split up in Managing Director and Chief Executive Officer. He then submits that so far as the accused no.3 is concerned, there is a Board of Directors in the Bank and as such, implication of the Director of the Bank is also unsustainable in the eye of law. He further -4- Cr.M.P. No.1251 of 2017

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submits that the post of accused no.2 is described in the FIR is not there. He further submits that the complaint case was filed on the ground of pre-encashment of promissory note purchased by the O.P.No.2. He submits that if any case is made out that is deficiency in service and a complaint case has been filed. According to him, no criminal case can proceed against the post and no persons have been named as accused by way of their name. He further submits that in view of the guidelines of the Hon’ble Supreme Court in the case of Priyanka

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Srivastava and Others v. State of Uttar Pradesh and Others, (2015) 6 SCC 287, the invocation of section 154 of the Cr.P.C must be there and straightway in the complaint the prayer is made for sending the complaint case under section 156(3) of the Cr.P.C. without complying section 154 Cr.P.C. which is further bad in law. He relied in the case of

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Priyanka Srivastava and Others v. State of Uttar Pradesh and

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Others(supra) , paragraph nos.30 and 31 of the said judgment are quoted hereinbelow:

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“ 30. In our considered opinion, a stage has come in this country where Section 156(3) CrPC applications are to be supported by an affidavit duly sworn by the applicant who seeks the invocation of the jurisdiction of the Magistrate. That apart, in an appropriate case, the learned Magistrate would be well advised to verify the truth and also can verify the veracity of the allegations. This affidavit can make the applicant more responsible. We are compelled to say so as such kind of applications are being filed in a routine manner without taking any responsibility whatsoever only to harass certain persons. That apart, it becomes more disturbing and alarming when one tries to pick up people who are passing orders under a statutory provision which can be challenged under the framework of the said Act or under Article 226 of the Constitution of India. But it cannot be done to take undue advantage in a criminal court as if somebody is

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determined to settle the scores.

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31. We have already indicated that there has to be prior applications under Sections 154(1) and 154(3) while filing a petition under Section 156(3). Both the aspects should be clearly spelt out in the application and necessary documents to that effect shall be filed. The warrant for giving a direction that an application under Section 156(3) be supported by an affidavit is so that the person making the application should be conscious and also endeavour to see that no false affidavit is made. It is because once an affidavit is found to be false, he will be liable for prosecution in accordance with law. This will deter him to casually invoke the authority of the Magistrate under Section 156(3). That apart, we have already stated that the veracity of the same can also be verified by the learned Magistrate, regard being had to the nature of allegations of the case. We are compelled to say so as a number of cases pertaining to fiscal sphere, matrimonial dispute/family disputes, commercial offences, medical negligence cases, corruption cases and the cases where there is abnormal delay/laches in initiating criminal prosecution, as are illustrated in Lalita Kumari [(2014) 2 SCC 1 : (2014) 1 SCC (Cri) 524] are being filed. That apart, the learned Magistrate would also be aware of the delay in lodging of the FIR.”

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He draws the attention of the Court to the Bond in the form of promissory note which is part of the FIR and submits that the power to redeem was there to the Bank as well as the O.P.No.2 and as such, if the Bank has redeemed the said promissory note, no case of cheating from the very beginning is made out and in view of that, further this case is bad in law.

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Learned counsel appearing on behalf of the respondent State submits that FIR has been registered in view of the order of the learned Magistrate and investigation has not started as yet. 7. Learned counsel for the O.P.No.2 submits that the case of cheating from the very beginning is made out as the said promissory -6- Cr.M.P. No.1251 of 2017

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note was redeemed by the Bank without informing the O.P.No.2. When the O.P.No.2 went to the Bank, it was informed that a sum of Rs.23,562/- was transmitted in favour of the O.P.No.2. He submits that the said amount has also not been received by the O.P.No.2 and as such, the case is made out and in view of that, the learned court has rightly passed the order.

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It is an admitted position that the complaint case was filed by the O.P.No.2 alleging that the promissory note was pre-maturely redeemed by the Bank and the O.P.No.2 has been deprived of Rupees One Lac which was to be redeemed after maturity and for that the complaint case is made. The Court finds that in the promissory note itself the power of redeeming of the same by the holder and the Bank namely IDBI Bank are there, which is given as under:

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“ xxx xxx xxx xxx xxx The holder(s) of this Bond/IDBI shall have the option to redeem the Bond on any of the following dates at the deemed face value mentioned below.”

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In view of above, it is crystal clear that the power of redeem of the said promissory note was there to the holder as well as the Bank. It was pointed out that it was redeemed and the amount of Rs.23,562/was sent to the O.P.No.2, however, that is being denied by the learned counsel for the O.P.no.2 to the effect that the same amount was also not received. In this background, when the case is made out, that is, for deficiency in service, whereas the complaint case is lodged, that too, against the post and not against any individual by way of their name. It is well-settled that any deficiency detected post purchase opens up an avenue for the aggrieved consumer to seek relief before the Consumer foras. A reference may be made to the case of Debashish Sinha v.

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R.N.R. Enterprises reported in (2023) 3 SCC 195. Thus, if any case

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is made out, that is deficiency in service, for that the O.P.No.2 is having remedy under the Consumer Protection Act.

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Further any designation cannot be summoned to appear in a criminal case under the IPC. There is no concept of vicarious liability under the IPC if any offence committed which is punishable under the IPC, it is the person who committed the offence has to face the trial. The person can be juristic or can be natural person, the post is not a person. There are provision made under section 305 of the Cr.P.C as to how to deal an accused who is juristic person. Accused nos.1,2 and 3 are not shown as accused by person rather, by their post they have been made accused. Thus, the summons could not have been issued against any post and the Bank has come for quashing of the said F.I.R. Further, in the complaint petition there is no averment as to what role has been played by the petitioners who have been made accused nos.1,2 and 3. In a mechanical way, the learned court has sent the complaint under section 156(3) of the Cr.P.C. In the case of Priyanka Srivastava and

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Others v. State of Uttar Pradesh and Others(supra) relied by learned counsel for the petitioner, the Hon’ble Supreme Court was considering the criminal case filed against the Bank officials and for that case the guidelines have been made as to how to register the case under section 156(3) Cr.P.C. In the complaint petition, there is no averment that prior to filing of the complaint petition section 154 Cr.P.C was invoked and straightway the complaint is made for sending the matter under section 156(3) Cr.P.C which is against the mandate of Hon’ble Supreme Court as held in the case of Priyanka Srivastava

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and Others v. State of Uttar Pradesh and Others(supra). The

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Court further finds that the order passed under section 156(3) Cr.P.C, is not a separate order and only on the complaint an endorsement to that effect is made which further suggest that the same was referred without applying the judicial mind. If a complaint is filed before the learned court, the learned court may decide to send the matter under section 156(3) Cr.P.C or he may proceed treating the said complaint and make enquiry in light of section 202 and 204 of the Cr.P.C., however, in the case in hand, the learned court has chosen the first option of sending it under section 156(3) Cr.P.C and that order appears to be a mechanical order and there is no application of judicial mind. In view of Priyanka

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Srivastava and Others v. State of Uttar Pradesh and

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Others(supra) case, consideration should be there as to whether it is required to be sent under section 156(3) Cr.P.C or not?

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As such, in view of above, entire criminal proceeding arising out of Bistupur P.S. Case No.142 of 2017, corresponding to G.R. Case No.1271 of 2017, pending in the court of learned Chief Judicial Magistrate, Jamshedpur are quashed.

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This petition is allowed and disposed of.

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It is made clear that if the O.P.No.2 take any step of

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deficiency of service under the related provisions of law, that will be decided in accordance with law without prejudice to this order as this order is passed only considering the criminal aspect of the matter.

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( Sanjay Kumar Dwivedi, J.)

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SI/, A.F.R.

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Idbi Bank Ltd. Through Its Dy General Manager Cum Branch Head Bistupur Branch Sri Manish Aind v. The State Of Jharkhand And Anr.

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Idbi Bank Ltd. Through Its Dy General Manager Cum Branch Head Bistupur Branch Sri Manish Aind v. The State Of Jharkhand And Anr.

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