Allowed

Jatindra Nath Banerjee v. State of Bihar and Anr.

Patna HC20 Sept 2012CR. MISC./19050/2010

Case brief

AI extract

What is this about?

The High Court allowed a petition under Section 482 CrPC to quash criminal proceedings against a bank manager. Despite the legal bar on second revisions, the Court interfered to prevent abuse of process as the petitioner was not involved in the alleged offence committed in 1989. The impugned orders admitting charges were set aside.

What did the court decide?

Impugned orders of the Judicial Magistrate and Sessions Judge were set aside and criminal proceedings were quashed against the petitioner; he was discharged from bail liability.

Jatindra Nath Banerjee Vs State of Bihar and Anr. — Cheating and Forgery | Patna HC (2012)

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IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No. 19050 of 2010

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================================================== Jatindra Nath Banerjee Son of late Mukul Banerjee, the Branch Manager United Bank of India, resident of Village- Kathal Bari P.S. L.M.Mishra University P.O. Lalbag, Distt- Darbhanga. .... .... Petitioner Versus 1. The State of Bihar 2. Manoj Kumar Son of Chandeshwar Prasad, resident of VillageJhapaha, P.S. Ahiyapur, Distt- Muzaffarpur. .... .... Opposite Parties . ================================================== CORAM: HONOURABLE MR. JUSTICE RAKESH KUMAR ORAL ORDER

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7. 20-09-2012 Heard Sri Shiva Shankar Sharma, learned

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counsel for the petitioner, Sri Harendra Prasad, learned Addl. Public Prosecutor as well as Sri Naresh Chandra Verma, learned counsel, who has appeared on behalf of complainant/opp. party no. 2.

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The sole petitioner, who was the Branch Manager in United Bank of India (hereinafter referred to as ‘Bank’), Sariyaganj, Muzaffarpur, has approached this Court, while invoking its inherent jurisdiction under Section 482 of the Code of Criminal Procedure, with a prayer to quash an order dated 20-02-2010 passed by Sri Bipin Bihari Pandey, learned 1^st Additional Sessions Judge, Muzaffarpur.

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By the said order, learned Additional Sessions Judge has

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rejected the Criminal Revision No. 35 of 2009, which was preferred by the petitioner against an order dated 18-122008 passed by Sri R. K. Bharti, Judicial Magistrate 1^st Class, Muzaffarpur, in Complaint Case No. 1653 of 1996 (Tr. No. 1337 of 2010) whereby the learned Magistrate has rejected the prayer for discharge of the petitioner.

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Short fact of the case is that the opposite party no. 2 in the year 1996 filed a complaint petition, which was registered as Complaint Case No. 1653 of 1996, arraying four persons, including the petitioner, as accused on allegation of commission of offence under Sections 406 & 420 of the Indian Penal Code. It was disclosed in the complaint petition that father of the complainant in the year 1982 had deposited Rs. 20,000/- under Fixed Deposit for a period of seven years. The Fixed Deposit Receipts (F.D.Rs.) were in the name of complainant, who was minor at the relevant time and father of the complainant stood guardian of the complainant. It has further been disclosed that immediately after depositing the said amount, accused no. 1 (Ramnath Prasad), who was a businessman, requested the

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father of the complainant to become guarantor for taking loan on his behalf. The accused no. 1 took Rs. 15,000/- as loan and father of the complainant had become guarantor of the said loan amount. It has been clarified in the complaint petition that while turning as a guarantor, the F.D.Rs. were produced by the father of the complainant in the Bank and it was kept in the Bank. It has further been disclosed that after the maturity of F.D.Rs., the father of the complainant approached the Bank for getting the amount of F.D.Rs. refunded, but the matter was deferred on one pretext or the other. Subsequently, it was noticed that the major portion of the amount of F.D.Rs. was adjusted against the loan amount of the accused no. 1 (Ramnath Prasad) and remaining amount of the F.D.Rs. i.e. Rs. 7,776/- was given to the loanee, Ramnath Prasad by pay order. However, subsequently, it was taken back by the Bank and handed over to the father of the complainant. It has been indicated in the complaint petition that said pay order was lost by the complainant. However, they repeatedly sent legal notices to the Bank for refunding the said amount and even in the year

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1996, while the petitioner was posted as Branch Manager, again notice was issued to the Bank, but the said amount was never refunded and as such, the complainant filed the present complaint petition. After order of cognizance and before framing of charges, only one witness i.e. father of the complainant (Chandeshwar Prasad) was examined as witness before charge. At the stage, under Section 245 of the Code of Criminal Procedure, learned counsel for the petitioner pointed out that there was no material for framing charge against the petitioner, however; the learned Magistrate, by the impugned order, rejected the prayer and directed for physical appearance of the petitioner for framing of the charge under Section 406 of the Code of Criminal Procedure, which was assailed by the petitioner before the Revisional Court and Revisional Court too rejected the prayer of the petitioner and finally, the petitioner approached this Court by filing the present petition.

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Learned counsel for the petitioner, while assailing both the orders, submits that there were no

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materials on record suggesting even remotely involvement of the petitioner in the present case. It was submitted that F.D.Rs., which were taken in the year 1982, were for the period of seven years and those F.D.Rs. were produced by the father of the complainant before the Bank, while turning as guarantor to one of the accused in the present case. Since the loanee had not paid the loan amount, in the year 1989 the amount of F.D.Rs. was adjusted against loan amount and the remaining amount of Rs. 7,776/- was initially transmitted to the loanee itself. However, subsequently, it was taken back and it was again handed over to the father of the complainant. He submits that in the complaint petition, the complainant has admitted that the said pay order was lost and as such, it was never produced before the court below. He submits that even if it is assumed that any offence is made out, at the relevant time or at the time of offence, the petitioner was not at all in the picture. The petitioner joined the Bank as Branch Manager in the year 1996, which has been admitted by the father of the complainant in his evidence before charge during his

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examination in chief and subsequently, in paragraph 9 of his deposition at the stage of cross-examination, he has categorically admitted that this petitioner had come as Branch Manager of the Bank in the year 1996. He submits that for application of section 406 of the Indian Penal Code, basic requirement is to establish entrustment. He submits that petitioner was not at all in picture, either in the year 1982 or in the year 1989 and therefore, question of entrustment to the petitioner does not arise and as such, no offence is made out against the petitioner. It has further been pleaded that the order of cognizance was taken for the offence under Section 406 of the Indian Penal Code. He submits that maximum punishment for the offence under Section 406 is sentence for the maximum period of three years and as such, after the notice of commission of offence in such cases, cognizance order was to be passed within a period of three years from the date of commission or knowledge of the offence. He submits that if at all it is admitted that any offence is made out, the said offence was committed in the year 1989 or even in the year 1990. The

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present complaint was filed in the year 1996 and without any observation by the learned Magistrate regarding condoning the delay, the learned Magistrate was not competent to have taken cognizance of the offence. It has also been argued that in the complaint petition even the complainant, who had filed complaint petition, had not been examined as a witness before charge and only one witness i.e. father of the complainant has been examined, who has categorically stated that the petitioner joined the Bank in the year 1996. Accordingly, it has been pleaded that in absence of any material to show involvement of the petitioner, the learned Magistrate was required to pass order of discharge of the petitioner and it is a fit case for discharge of the petitioner.

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Sri Naresh Chandra Verma, learned counsel appearing on behalf of complainant/opp. party no. 2 has vehemently opposed the prayer of the petitioner. He submits that so long the petitioner was posted as Branch Manager of the Bank, the amount of the complainant was outstanding and Bank was required to pay the maturity

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amount of F.D.Rs. or even the remaining amount of Rs. 7,776/- to the complainant. Being Branch Manager of the Bank, it was responsibility on the part of the petitioner to clear the dues of the complainant. Instead of taking any step for clearing the dues of the complainant, the petitioner sat tight over the matter and he has not responded to the notice given by the complainant for clearing the dues amount. According to learned counsel for complainant/opp. party no. 2, offence under Section 406 is made out against the petitioner and the learned Magistrate has rightly rejected the prayer of the discharge of the petitioner. He has further argued that the order of rejection of prayer for discharge was assailed by the petitioner before the Revisional Court and the Revisional Court has also rejected the same. According to him, the present petition, after rejection of the revisional petition, amounts to second revision, which is barred under Section 397(3) of the Code of Criminal procedure. Alternatively, it was argued that since the Bank is liable to refund the outstanding amount of the complainant, direction may be given to refund the amount.

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After hearing the parties and on going through the entire materials, available on record, the Court is satisfied that for application of offence under Section 406 of the Indian Penal Code so far as petitioner is concerned, there is no material on record. The petitioner had joined as Branch Manager in the year 1996. This fact has been admitted in the complaint petition as well as in the evidence of sole witness i.e. father of the complainant. This fact has been categorically stated in paragraph nos. 1 & 9 of the deposition of the sole witness of the complaint petition, who was examined before charge. The Court is conscious that once revision, preferred against an order of the learned Magistrate, is rejected, in normal course, a petition filed under Section 482 of the Code of Criminal Procedure is not required to be entertained. But in view of exceptional facts and circumstances of the present case and the fact that petitioner was Branch Manager in the year 1996 and during the said period no alleged offence has been committed, if Court fails to interfere with the present case, it will amount to allowing abuse of the process of the Court. With a view

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to prevent abuse of the process of the Court, in exceptional circumstances, this is a fit case for interference with both of the orders.

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With regard to claim of the complainant i.e. refund of outstanding amount of F.D.Rs. is concerned, the petitioner can take other remedy before the competent court. At least on the ground of recovery of the said amount, the petitioner, who has done nothing, cannot be put on trial without establishment of commission of any offence.

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Accordingly, both the orders i.e. order dated 18-12-2008 passed in Complaint Case No. 1653 of 2008 (Tr. No. 1337 of 2010) by learned Judicial Magistrate 1^st Class, Muzaffarpur and order dated 20-02-2010 passed in Cr. Rev. No. 35 of 2009 by learned 1^st Additional Sessions Judge, Muzaffarpur are, hereby, set aside and entire criminal proceedings in complaint case no. 1653 of 2008, so far as petitioner is concerned, is hereby set aside and petition stands allowed.

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It was submitted by learned counsel for the

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petitioner that petitioner is already on bail. In view of the fact that present petition has been allowed and criminal proceeding in complaint case no. 1653 of 2008 has been set aside, the petitioner is directed to be discharged from the liability of the bail-bond.

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It is made clear that this order may not prevent the complainant to take appropriate steps for realization of

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his amount from the Bank, if any.

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(Rakesh Kumar, J.)

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Anay

Jatindra Nath Banerjee v. State of Bihar and Anr.

Case brief

What is this about?

What did the court decide?

Jatindra Nath Banerjee v. State of Bihar and Anr.

Case brief

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What did the court decide?

What the court decided

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