Niranjan Kumar Pandey v. Bank Of India — 1997 DIGILAW 401 (PAT)

Judgment P. K. Sarin, J. 1. The present application has been filed for quashing the entire criminal prosecution launched against the petitioner on the basis of a first information report lodged by central Bureau of Investigation (hereinafter referred to as the CBI)registered as Case No.11 CSI 94/patna for the offence punishable under Sec.120-B, 420, 467, 468 and 471 of the indian Penal Code (hereinafter referred to as the Code ). The case is said to be pending in the Court of Special Judge, cbi, South Bihar, Patna as Special Case no.23/95. 2. The copy of the first information report is at Annexure-1. The allegations made in the first information report are to the effect that the petitioner has entered into a criminal conspiracy with one Smt. Sita Devi and some unknown persons during the year 1988-92 and in pursuance of the said conspiracy cheated the Bank of India, Hazaribagh branch, respondent No.1, to the tune of rs.4,45,199.77 paise approximately by fraudulently and dishonestly showing fictitious credits in Savings Bank Account No.12040 in the name of Smt. Sita Devi and subsequently withdrawing the said amount. It was alleged that the said Savings Bank Account was opened in the name of Smt. Sita Devi on initial cash deposit of Rs.100/- and signature of Smt. Sita Devi was attested by the present petitioner. It was further alleged that two fake cheques aggregating to rupees two lacs purporting to have been issued by the Additional Land Acquisition Officer, Hazaribagh, in the name of smt. Sita Devi were deposited in the said Savings Bank Account and the petitioner, who was working as Special assistant in the respondent No.1 Bank, cancelled both the forged cheques and signed the corresponding credit vouchers and made entries in the transfer book and other related books but he did not make entry in the current account No.571 of Additional Land acquisition Officer, Hazaribagh, who was shown to have issued the cheque. Apart from credit entries regarding both two cheques the petitioner is said to have made five other fictitious credit entries as has been detailed in the first information report. It was further alleged that the cheques purporting to be signed and issued by Smt. Sita Devi were encashed by the petitioner through different persons and cash amount was kept by him. 3. It was further alleged that the cheques purporting to be signed and issued by Smt. Sita Devi were encashed by the petitioner through different persons and cash amount was kept by him. 3. The Superintendent of CBI, respondent No.3, after investigation, submitted charge-sheet against the petitioner and other unknown persons for the offences punishable under Sections 120-B, 420, 467, 468, 471,477-A of the Code and Sec.13 (2) read with section 13 (1) (d) of the Prevention of corruption Act, 1988, copy of the charge-sheet is at Annexure-1 of the petition. 4. Learned Counsel for the petitioner has contended that the CBI was not competent to investigate and submit charge-sheet against the petitioner, who was employee of the Nationalized Bank, as the CBI is not authorised to investigate cases relating to the Officers of the Bank or any other corporations. In support of his contention the learned Counsel for the petitioner has referred to the objects and reasons given in the amending Act no.26 of 1952 which had amended the delhi Special Police Establishment Act, 1946 (hereinafter referred to as the act ). 5. It may be mentioned here that the Act was enacted in the year 1946 being Act No.25 of 1946. The Act was amended subsequently in 1950, 1951, 1952, 1956 and 1964. It appears that earlier when the Act was enacted the special Police Establishment Force was constituted to enquire into the investigation of offences of bribery and corruption committed by the officers and others in the department of Central government and it did not confer any power to deal with cases concerning any corporation or other bodies. It appears that necessity was felt to extend the area of operation of the Special Police Establishment constituted under the Act and amending Act No.26 of 1952 was enacted. The objects and reasons for the amendments made by the Act 26 of 1952 have been stated as follows: "the Delhi Special Police Establishment is a Central Police Force constituted under the Delhi Special Police establishment Act to investigate offence of bribery and corruption committed by officers or others in departments of Central government. It does not confer any power to deal with cases concerning - (a) Corporation or other bodies set up and financed by the Government of india; and (b) departments of the administrations in centrally administered States. It does not confer any power to deal with cases concerning - (a) Corporation or other bodies set up and financed by the Government of india; and (b) departments of the administrations in centrally administered States. It is considered necessary that the delhi Special Police Establishment should be empowered to investigate such offences. The amending bill seeks to give authority to the Central Government to confer this jurisdiction. " 6. The learned Counsel for the petitioner places reliance on the part of the said object as given in paragraph no.1 and Clauses (a) and (b) thereof and has contended on the basis of the same that the Act does not confer any power to the Force created under the act to deal with cases concerning Corporation and other Bodies set up and financed by the Government of India. The contention of the learned Counsel for the petitioner appears to be misconceived on this score. What paragraph no.1 and Clauses (a) and (b) thereof narrated is only in respect of the position which was existing before the amendment was done and which necessitated for making amendment by Act 26 of 1952. It would be clear by the second paragraph of the said order which after stating the existing position in paragraph No.1 stated that "it is considered necessary that the Delhi Special police Establishment should be empowered to investigate such offences. The amending bill seeks to give authority to the Central Government to confer this jurisdiction". The reason for the amendment is given in Paragraph 2 of the objects and reasons and Paragraph No.1 only states about the then existing position which necessitated amendment. The position would be further clear by the amendment made in section 3 of the Act by amending Act 26 of 1952. Before amendment of 1952 the opening lines of Sec.3 of the Act ran as follows: "the Central Government may, by notification in the official Gazette, specify the offences or Clauses of offences committed in connection with matters concerning departments of the Central government" which are to be investigated by the Delhi Special Police Establishment. " 7. The amending Act 26 of 1952 omitted the words "committed in connection with matters concerning departments of the Central Government. " 7. The amending Act 26 of 1952 omitted the words "committed in connection with matters concerning departments of the Central Government. " thus, it is evident that the amending act omitted the words which had confined the jurisdiction of the Special Establishment Force to investigate the offences committed in connection with the matters concerning Departments of the Central Government. After amendment, the present Sec.3 puts no limitation nor confines the jurisdiction to investigate to the matters connected with the concerned departments of the central Government only. The scope has been widened by the present provision, as contained in Sec.3, which lays down that the Central government may by Notification in the official gazette specify the offences or classes of offences which are to be investigated by the Delhi Special Police Establishment. Thus, the present provision lays down what the offences or classes of offences as may be specified by the Centra! Government are to be investigated by the Delhi Special Police Establishment. It does not limit the investigation of such offences in respect of any particular department or any particular institution. In my opinion, the provisions of Sec.3 of the Act, as it exists today, gives jurisdiction to the Delhi Special Police Establishment to investigate into such offences or classes of offences which the central Government notifies in the official gazette. Annexure-1 to the affidavit filed on behalf of respondent No.3 is the copy of the Notification of the central Government dated 7-9-1989 made by virtue of powers conferred by section 3 of the Act specifying the offences and clauses of offences which may be investigated by Delhi Special police Establishment Force. The offences with which the petitioner has been cnarged are covered by the offences enumerated in the said Notification. It may also be mentioned that under Sec.6 of the Act the consent of the state Government is necessary for the delhi Special Police Establishment to exercise powers and jurisdiction in any area in State. The Annexure-2 to the affidavit filed on behalf of the respondent no.3 is the Notification dated 10th july, 1979 issued by the State of Bihar according sanction to the Delhi Special police Establishment to investigate into the offences as have been specified in the said Notification. The offences specified in the said Notification contain the offences with which the petitioner is charged. The offences specified in the said Notification contain the offences with which the petitioner is charged. Thus, the CBI has jurisdiction to enquire into the offence committed by the petitioner in the state of Bihar. 8. The contention of the learned. Counsel for the petitioner that the CBI has no jurisdiction to investigate into an offence committed by an official of the nationalized Bank is not sustainable and is rejected. 9. The learned Counsel for the petitioner has next contended that no offence under Sec.120-B of the code can be said to be made out when the conspiracy is alleged with unknown person. In support of his contention that the conspiracy cannot be proved if the other person to the conspiracy is not proved the learned Counsel for the petitioner has placed reliance on the decision of the Apex Court in the case of Raghubir Singh V/s. State of Bihar, AIR 1987 Supreme Court 149. The facts of the said case would show that the matter was considered with reference to the charges to the conspiracy and sedition on the basis of recovery and search of letters containing seditious material. The Court has held that even though the accused were not authors of the letters charges of conspiracy and sedition were framed as the author of the seditious material alone is not gist of any of the offences and distribution, circulation of seditious material may also be sufficient on the facts and circumstances of the case. It was further observed that to act as a courier is some time enough in a case of conspiracy and it is not necessary that a person should be a participant in a conspiracy from start to finish. Conspirators may appear and disappear from stage to stage in course of a conspiracy. The said decision does not help the petitioner in the present case. Moreover, it is a matter to be considered by the Trial Court at the time of framing of charge whether there is sufficient material to frame a charge under Sec.120-B of the code against the petitioner. 10. The next case relied upon by the learned Counsel for the petitioner is decision of the Supreme Court in the case of State of Uttar Pradesh V/s. Sukhbasi and Ors. 10. The next case relied upon by the learned Counsel for the petitioner is decision of the Supreme Court in the case of State of Uttar Pradesh V/s. Sukhbasi and Ors. , AIR 1985 Supreme court 1224, wherein it has been held that to substantiate the charge under section 120-B of the Code there must be a criminal conspiracy at least between two or more persons. There is no dispute regarding the said proposition of law. The applicability of the principle would come in after consideration and appreciation of the facts and materials collected by the Investigating officer and referring the matter before the court to look into it at the time of framing of charge. 11. The learned Counsel for the petitioner has also placed reliance on a decision of the Apex Court in the case of Jethsur Surangbhai V/s. State of Gujarat air 1984 Supreme Court 151, wherein on the facts of the case it was found that there was no charge of conspiracy or defalcation of the properties of the Cooperative Societies by the Chairman of the Managing Committee and the charge of conspiracy failed. Therefore, the conviction of the Chairman of the society under Sections 406, 409 and 467 of the Code must be dropped. That is a decision on the facts of that case. The trial is not being held here in this proceeding and the said aspect may be looked into by the Trial Court whether or not there is material to frame charge under Sec.120-B against the petitioner and, if the charge is framed and Trial is held, Trial Court will consider whether the charge of conspiracy is proved by the evidence on record. At present no observation of this Court is necessary on that point as that is a matter which needs enquiry and going into details of the facts. 12. The learned Counsel for respondent No.3 has contended that the petitioner could have availed the remedy under Sec.482 of the Code of Criminal Procedure and if the remedy under Sec.482 of the Code of criminal Procedure is available the remedy under Articles 226/227 of the constitution of India cannot be availed of. 12. The learned Counsel for respondent No.3 has contended that the petitioner could have availed the remedy under Sec.482 of the Code of Criminal Procedure and if the remedy under Sec.482 of the Code of criminal Procedure is available the remedy under Articles 226/227 of the constitution of India cannot be availed of. In support of his contention the learned Counsel for respondent No.3 has placed reliance on a Special Bench decision of this Court in the case of surendra Singh V/s. State of Bihar, 1990 bihar Bar Council Journal 655, wherein it has been held that where appeals/revision/applications under Sec.482 is/are maintainable before high Court for setting aside such order power under Article 227 is not available. 13. The Apex Court also in the case of State of Himachal Pradesh V/s. Pirthi chand, 1996 (2) SCC 37 , has held that when an efficacious remedy under section 482 of the Code of Criminal procedure is available the High Court should not exercise its extraordinary power under Article 226. In view of the principles laid down by the Special bench decision of this Court and the apex Court, as referred to above, the present criminal writ application under article 226 would not be maintainable as remedy under Sec.482 of the code of Criminal Procedure was available to the petitioner. In this view also the present criminal writ application cannot be allowed. 14. Considering the entire facts and circumstances of the case, it does not appear to be fit case for exercising jurisdiction of this court under Article 226/227 of the Constitution of India. The application is dismissed accordingly. Application Dismissed.