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2004 DIGILAW 255 (PAT)

Ashok Kumar Singh v. State Of Bihar

2004-03-03

MRIDULA MISHRA

body2004
Judgment Mridula Mishra, J. 1. Heard learned counsel for the petitioner, counsel for the State and counsel for opposite party No. 2 the informant. This application is for quashing of the First Information Report giving rise to Siwan (Town) P.S. Case No. 117 of 2001 dated 29.7.2001. 2. The case of the petitioner is that one Pradeep Kumar Dey, the Deputy Manager, Sahara India Ltd., Regional Office, Siwan on 15.2.2001 filed a petition of complaint before the Chief Judicial Magistrate, Siwan being complaint case No. 183 of 2001. In the complaint petition it was stated that Sahara India Limited is a company indulging in Para Banking. The Accounts Holders deposit their money in their account and at the time of their maturity as per rule they encash their amount alongwith its interest. The company also provides secured loan on the amount of deposited money and the loan amount along with interest is deducted at the time of maturity of the deposit. The petitioner namely Ashok Kumar Singh was posted on the post of Cashier in Regional Office, Siwan of Sahara India Limited with effect from 1.11.1996 to 14.7.2000. His work was to make entry in the day book and to hand over the receipt of its payment to the depositors and to give and take the cash amount to the depositors. The Audit team of Sahara India Limited audited the sector office Siwan in between 24.7.2000 to 1.8.2000. During the audit it was detected that the relevant interest amount of 66 secured loan were not mentioned in the day book. It was also found that their receipts for payment of the amount has also not been granted to the depositors. By this way Ashok Kumar Singh, the petitioner has defaulted an amount of Rs. 3,93,714.00. The details of the relevant names of the account holders have been given in the FIR up to serial No. 66. It is also stated that the complainant went to the Officer-in-charge of Siwan Police Station for instituting an FIR but it was denied and ultimately the complaint petition was filed. 3. 3,93,714.00. The details of the relevant names of the account holders have been given in the FIR up to serial No. 66. It is also stated that the complainant went to the Officer-in-charge of Siwan Police Station for instituting an FIR but it was denied and ultimately the complaint petition was filed. 3. The Chief Judicial Magistrate, Siwan directed for instituting the case under Sec. 156(3), Cr.P.C. The Officer-in-charge of the concerned police station instead of instituting the FIR reported to the CJM, Siwan that on the basis of the statement of Pradeep Kumar Dey, a case has already been instituted giving rise to Siwan Town P.S. Case No. 114 of 2000 on 25.7.2000 for which the accused has been arrested and he is in custody. The Chief Judicial Magistrate, Siwan again directed the Officer-in-charge of the concerned police station to draw up a formal FIR and to register a case. Finally Siwan Town P.S. Case No. 117 of 2001 was instituted on 29.7.2001 for the offence under Sec. 407 of the Indian Penal Code. 4. The counsel appearing for the petitioner has assailed the institution of Siwan Town P.S. Case No. 117 of 2001 on the ground that Siwan Town P.S. Case No. 114 of 2000 has been instituted for the same offence and for the same incident as such institution of second FIR is illegal. On the basis of these facts he has submitted that the second FIR i.e. Siwan Town P.S. Case No. 117 of 2001 must be quashed. 5. The opposite party No. 2 has entered appearance and has filed a detailed counter affidavit. In the counter affidavit it has been stated that the petitioner has filed the present application after suppressing material facts. He has not even annexed the FIR of Siwan Town P.S. Case No. 114 of 2000. The offence alleged in both the FIRs i.e. Siwan Town P.S. Case No. 114 of 2000 and Siwan Town P.S. Case No. 117 of 2001 are completely different. They do not relate to same offence, same occurrence and same incident. The FIR dated 29.7.2001 i.e. Siwan Town P.S. Case No. 117 of 2001 was lodged after one year of the first FIR i.e. Siwan Town P.S. Case No. 114 of 2000 dated 29.7.2000. They do not relate to same offence, same occurrence and same incident. The FIR dated 29.7.2001 i.e. Siwan Town P.S. Case No. 117 of 2001 was lodged after one year of the first FIR i.e. Siwan Town P.S. Case No. 114 of 2000 dated 29.7.2000. In the first case the police submitted charge- sheet after completing the investigation under Sec. 173, Cr.P.C. and on the basis of the charge-sheet, the Chief Judicial Magistrate, Siwan took cognizance on 7.11.2000 under Secs. 467, 468, 471 and 406 of the Indian Penal Code. The case has already proceeding before the Judicial Magistrate, Siwan. It is further submitted that in Siwan Town P.S. Case No. 114 of 2000 prima facie allegation relates to forging of the books of accounts by cutting, over writing, altering the entry and thereby to cover up the amount misappropriated on two dates. Only the books of accounts was checked by the officer from Patna Office of the company and in random checking on 11.7.2000 found that the petitioner by forging. the books of accounts particularly by altering or cutting and rewriting the entry on two dates i.e. 16.6.2000 and 29.6.2000 has tried to cover up misappropriation. In Siwan Town P.S. Case No. 117 of 2001 the petitioner has committed breach of trust particularly in connection with the loan account. At least in the case of 66 loanee, the amount of loan and interest amount which were deducted from the amount payable to the depositors/loanee were not entered in the day book nor issued any receipt and thereby misappropriated a sum of Rs. 3,39,714.00 on various dates. At this stage it is stated that the Sahara India Ltd. is a Non- Banking Financial Institution engaged in receiving deposits from individual and institutions as also advances loan and as such the petitioner was acting as an employee/agent of the Banker and thereby he was entrusted with the amount of the depositors and loanee besides being the custodian of books of account and in due discharge of his duties he committed the offence punishable under Sec. 409, IPC and not under Sec. 407, IPC. 6. The two case i.e. Siwan Town P.S. Case No. 114 of 2000 and Siwan Town P.S. Case No. 117 of 2001 are totally different cases and the petitioner has made a false submission that both the cases relate to same incident. 7. 6. The two case i.e. Siwan Town P.S. Case No. 114 of 2000 and Siwan Town P.S. Case No. 117 of 2001 are totally different cases and the petitioner has made a false submission that both the cases relate to same incident. 7. The counsel appearing for the petitioner has placed his reliance on a decision in the case of T. T. Antony V/s. State of Kerala and others. In this case it has been held that there should be no second FIR in respect of the same cognizable offence, same incident or same occurrence. The facts of the present case is totally different from the facts of the reported case. In the present case the offence committed by the petitioner are on two different dates and the offences are different. It cannot be said that both the FIR are in respect of the same cognizable offence, same incident or same occurrence. The stage at which the petitioner has come for quashing the FIR is pre-mature. 8. In the facts and circumstances of the case, this application is dismissed.