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2001 DIGILAW 456 (CAL)

Rev. G. Andrews v. State

2001-07-30

Asit Kumar Bisi

body2001
JUDGMENT Asit Kumar Bisi, J.: At the time when the instant revision application is taken up for hearing it is submitted by the learned Advocate for the petitioners that petitioner No.1 Dr. Rev. G. Andrews who is the President of Diocese of Eastern Himalaya Diocesan House, Gandhi Road, Darjeeling died in an accident. In view of death of petitioner No.1 as reported by the petitioners' learned Advocate, the name of petitioner No.1 be expunged from the cause title of the revisional application. Inspite of copy of this application being served upon the opposite party none appears. The affidavit of service filed be kept on record. 2. The instant revision application under section 401/482 of Cr. P.C. has been preferred by the accused/petitioners for quashing of the impugned proceeding being G.R.Case No. 297 of 1995 under section 406/34 of I.P.C. pending before the learned Sub-divisional Judicial Magistrate, Darjeeling. 3. In a nut-shell the facts anterior to filing of the revision application, the facts are as follows:- One organisation, namely, Church of North India was set up in 1976 amalgamating six Churches of Darjeeling District and Diocese. In 1984 Darjeeling Diocese had been running a School under the name and style of Darjeeling Diocese C.N.I. Bible Hill School and the said school was given a sum of Rs. 40,000/- by the Board of World Missionaries, Church of Scotland, United Kingdom for the benefit of the said school. The said amount of Rs.40,000/- had been kept as Fixed Deposit in Indian Bank at Darjeeling at an annual interest of 11 % and the interest accrued to the extent of Rs. 4,400.00 was deposited till 1991 in the account of Darjeeling Hill Bible School, Mirik and the original amount was entrusted to Diocese of Darjeeling. Darjeeling Diocese was one of the units of the Church of North India (C.N.I.). Due to difference of opinion in the policy matter for appointment of teachers and other administrative function the Darjeeling Hill Bible School was separated from Darjeeling Diocese in 1996. The C.N.I. being the national body changed the name of Darjeeling Diocese as Eastern Himalayan Diocese since 1992. The said sum of Rs. 40,000/- was given to the Diocese of Darjeeling as unit of C.N.I. subject to stipulation that the entire money accrued from interest annually should be given to the School. The C.N.I. being the national body changed the name of Darjeeling Diocese as Eastern Himalayan Diocese since 1992. The said sum of Rs. 40,000/- was given to the Diocese of Darjeeling as unit of C.N.I. subject to stipulation that the entire money accrued from interest annually should be given to the School. Since 1.1.90 some dissidents led by the present opposite party No.2 being the Principal of Darjeeling Hill Bible School at Mirik severed connection with the Diocese of Eastern Himalaya and those dissidents led by opposite party No.2 asked for transfer of the said amount of Rs. 40,000/- given to Diocese of Darjeeling, C.N.I. since renamed as Diocese of Eastern Himalaya to the Darjeeling Hill Bible School and the present petitioners wrote to the Church of Scotland to decide as to whether that amount should be given to them but no reply thereto was received. Since the dissidents broke away from the Diocese the decision of the Church of Scotland was sought for and as the entire matter being a civil dispute it can not lead to any criminal liability of the petitioners. It is alleged that the entire sum of Rs. 40,000/- together with interest accrued therefrom annually till date have been lying in deposit with the Indian Bank, Darjeeling and as such question of conversion of the same to the use of the petitioners dishonestly never arose. 4. Further facts of the case are that the present opposite party No.2 filed a petition of complaint before the learned Chief Judicial Magistrate, Darjeeling and the learned Magistrate by his order dated 20.11.95 directed the Inspector in Charge, Sadar Police Station, Darjeeling to treat the petition of complaint as F.I.R. under section 156(3) of Cr. P.C. and accordingly Darjeeling P.S. Case No. 159 dated 20.11.95 had been started. After completion of investigation the investigating officer submitted a final report on 13.9.97. the said final report dated 13.9.97 was submitted after submission of the final report dated 27.6.96 which was submitted by the investigating officer earlier and the order of subsequent investigation by the learned Magistrate did not improve the situation. Thereafter, opposite party No.2 filed a Naraji petition on 27.2.97 alleging that the investigation was not properly done. Subsequently, the learned Magistrate examined some witnesses under section 200 of Cr. Thereafter, opposite party No.2 filed a Naraji petition on 27.2.97 alleging that the investigation was not properly done. Subsequently, the learned Magistrate examined some witnesses under section 200 of Cr. P.C. in support of Naraji petition where no allegation of commission of any offence was made out and the Branch Manger of the Indian Bank at Darjeeling who was examined under section 200 of Cr. P.C. stated on oath that the entire amount of Rs. 40,000/- is lying in deposit with the Bank together with accumulated interest being Rs. 19,778/- till 1st March, 1998. 5. After examining the witnesses the learned Magistrate passed order No. 15 dated 14.7.98 directing further investigation in the matter but it could not be done since police submitted the final report. Again on 10.11.98 the learned Magistrate entertained two other Naraji petitions of the present opposite party No.2 and the impugned order dated 14.7.99 shows that the learned Sub-divisional Magistrate, Darjeeling after examination of the complainant and witnesses found prima facie case under section 406/34 of I.P.C. against the petitioners and issued summons against them accordingly. 6. Being aggrieved by the continuance of the impugned criminal proceeding and the impugned order dated 14.7.99 the petitioner/accused have come up in revision alleging inter alia that the learned Magistrate acted illegally in passing the impugned order and as such the entire proceeding is liable to be quashed. 7. The learned Advocate for the petitioner has drawn my attention to the fact that Darjeeling Diocese C.N.I. Bible Hill School was being run by Darjeeling Diocese and the said sum of Rs. 40,000/- was given by the Board of World Missionaries, Church of Scotland, United Kingdom for "the benefit of the said school and the amount has been kept as Fixed Deposit in Indian Bank at Darjeeling and the interest accrued on the said amount of Rs. 40,000/ - was deposited in the account of the said school as per the stipulation made in the agreement. It appears from the materials on record that the C.N.I. (Church of North India) being the national body changed the name of Darjeeling Diocese as Eastern Himalayan Diocese since 1992 and since 1.1.1990 some dissidents led by opposite party No.2 being the Principal of Darjeeling Hill Bible School at Mirik severed connection with the Darjeeling Diocese of Eastern Himalaya. It appears from the materials on record that the C.N.I. (Church of North India) being the national body changed the name of Darjeeling Diocese as Eastern Himalayan Diocese since 1992 and since 1.1.1990 some dissidents led by opposite party No.2 being the Principal of Darjeeling Hill Bible School at Mirik severed connection with the Darjeeling Diocese of Eastern Himalaya. It has been pointed out by the learned Advocate for the petitioner that since the dissidents broke away from the Diocese the decision of Church of Scotland was sought in the matter as to whether the said amount should be given to the said school or not. It is further submitted by the learned Advocate for the petitioner that no reply was received from the Church of Scotland at the time when the revision application was filed but subsequently a reply was received from them. A xerox copy of the said reply received from the Church of Scotland has been produced by the learned Advocate for the petitioner in course of hearing of this revision application. It is quite evident therefrom that money was granted with the condition that the interest accrued on the amount which was invested was regularly remitted to the DHBS by the Diocese till 1991 and this was done in terms of the agreement with the Church of Scotland with regard to the use of the said grant. Since in 1992 the DHBS decided to dissociate from the Diocese, remitting of the accrued interest to DHBS was stopped and the Diocese has taken the decision to use the accumulated interest for the theological education of their ordinands to the ministry of the Church of North India. 8. It is contended by the learned Advocate for the petitioner that since the Darjeeling Hill Bible School has disassociated itself from Darjeeling Diocess the said school is not entitled to get any interest or grant from the Church of North India. The materials on record fortify such contention of the learned Advocate for the petitioner. 9. The circumstances emerging from the materials on record make it manifestly clear that the amount of Rs. 40,000/- has still been kept intact in the Bank. The initial deposition of the concerned Branch Manager of the Indian Bank taken by the learned Magistrate on 5.5.99 clearly reveals that. 9. The circumstances emerging from the materials on record make it manifestly clear that the amount of Rs. 40,000/- has still been kept intact in the Bank. The initial deposition of the concerned Branch Manager of the Indian Bank taken by the learned Magistrate on 5.5.99 clearly reveals that. It has been strenuously argued by the learned Advocate for the petitioner that when the sum of Rs. 40,000/- along with the accrued interest is still kept in a Bank no question of criminal misappropriation can at all arise and as such he has sought quashing of the impugned proceeding under section 406/34 of the Indian Penal Code pending in the Court of the learned Sub-divisional Judicial Magistrate, Darjeeling against the petitioners. The facts and circumstances emerging from the materials on record leave no room for scepticism that the amount was kept in the account of the Bank and that being so the ingredients of the offence under section 406 of I.P.C. are conspicuously absent in the instant case. It has been held by the Honourable Apex Court in the case of Mr. K. Ramakrishna & Ors. vs. The State of Bihar & Anr., as reported in 2001 C. CR. L. R. (SC) 1 at page 3, Para 3 that' the inherent powers of the High Court under section 482 of Cr. P.C. can be exercised to quash proceedings in appropriate cases either to prevent the abuse of process of any Court or otherwise to secure the ends of justice. In the case in hand I find that the ingredients of the offence of criminal breach of trust are visibly absent. There is no material to suggest any dishonest misappropriation of the property by the person with whom confidence was placed as to management and custody of the property in respect of which breach of trust is charged. There is nothing on record to show that any part of the amount deposited in the Bank was ever withdrawn by any of the accused petitioners and converted to their own use. In the above circumstance, I am clearly of the view that continuance of the impugned proceeding before the learned Sub-divisional Judicial Magistrate, Darjeeling will be abuse of the process of the Court and the inherent power of this Court under section 482 of Cr. P.C. should be exercised to quash the said proceeding. 10. In the above circumstance, I am clearly of the view that continuance of the impugned proceeding before the learned Sub-divisional Judicial Magistrate, Darjeeling will be abuse of the process of the Court and the inherent power of this Court under section 482 of Cr. P.C. should be exercised to quash the said proceeding. 10. For the foregoing reasons the present application for revision is allowed. The impugned proceeding being G.R. Case No. 297 of 1995 under section 406/34 of I.P.C. or any other proceeding arising therefrom pending in the Court of the learned Sub-divisional Judicial Magistrate, Darjeeling be quashed. 11. Let a copy of this order be sent down to the learned Court below forthwith. Revision allowed.