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2004 DIGILAW 356 (CAL)

SACHINDRA NATH KUNDU v. STATE OF WEST BENGAL

2004-05-20

P.K.BISWAS

body2004
BISWAS, J. ( 1 ) THIS is an application under Sections 401 and 482 of the code of Criminal Procedure filed at the instance of one Sachindra Nath kundu as petitioner seeking for quashing of the impugned proceeding being no G. R. Case No. 176 of 1999 arising out of Howrah P. S. Case No. 119/94 dated 22. 6. 99 under Section 467/468/471 of I. P. C. ( 2 ) THE short facts leading to the filing of this revisional application are as under : petitioner is an employee of State Bank of India and at the material point of time he was posted at Howrah Branch of State Bank of India. He is a disabled man and a married person having family and resides at 35/a, narsingha Dutta Road, P. S. Bantra, Howrah. ( 3 ) IT has been alleged by the petitioner that Chief Manager of the state Bank of India lodged a complaint to the Officer-in-Charge of Howrah p. S. alleging inter alia that two drafts dated 6. 2. 99 for an aggregate amount of Rs. 8,75,000/- favouring M/s. Misra Scrap Co. were presented by Allahabad bank, Howrah Maidan Branch through clearing to the State Bank of India and the said two drafts were paid on 11. 2. 99. it was found later that the said two drafts were forged. The name of the payee is Misra Scrap Co. , and the name of the Bank who presented through clearing is Allahabad Bank, Howrah maidan Branch and on the basis of the aforesaid complaint, lodged by the chief Manager of State Bank of India, the present case was started against misra Scrap Co. under Section 467/468/471 of the Indian Penal Code. ( 4 ) IT has been alleged by the petitioner that he is in no way connected with the alleged offence. The said Misra Scrap Co. is having its office at 1/1, Belliltous Lane, P. S. Bantra, Howrah is owned by one J. P. Jaiswal. The said J. P. Jaiswal, the Proprietor of M/s. Misra Scrap Co. deposited the aforesaid two drafts to their Banker Allahabad Bank, Howrah Maidan Branch, howrah and thereafter the said two drafts were sent for encashment to the state Bank of India, Howrah Branch, where the present petitioner was posted as J. M. GSI and it was subsequently detected that the above two drafts were forged. deposited the aforesaid two drafts to their Banker Allahabad Bank, Howrah Maidan Branch, howrah and thereafter the said two drafts were sent for encashment to the state Bank of India, Howrah Branch, where the present petitioner was posted as J. M. GSI and it was subsequently detected that the above two drafts were forged. ( 5 ) IT has been alleged by the petitioner that he has not forged any document and the said two drafts came from the Allahabad Bank in course of business and the present petitioner after going through the Code Nos. had passed the said two drafts. ( 6 ) IT has further been alleged by the petitioner that on 22. 7. 99, the petitioner was asked to show cause by the Chief Manager State Bank of India as to how the said two drafts were passed by him without taking extra precautionary measure. ( 7 ) THE petitioner replied to the show cause on 2. 8. 99 by stating, inter alia, that he is entrusted with the payment of drafts, bankers' Cheques inclusive of cancellation thereof as well as receiving registered letters for incorporation of the same in the inward Mail Register in addition to Day Book checking of Draft Account and the instruments relating to drafts paid and bankers' Cheques work out to 210 on an average per day and 20 Registered letters. ( 8 ) IT was further stated by him that since the Code number of the drawee branch was alright, there was no bar in clearing the draft and moreover the signature scanner or any ultraviolet instrument being no provided in the Bank, for the detection of fraudulent encashment of the drafts, he could not detect the fradus, if any, in course of normal checking. So, he had on occasion to raise any doubt whatsoever with regard to the passing of those drafts. So, he had on occasion to raise any doubt whatsoever with regard to the passing of those drafts. ( 9 ) IT has further been alleged by the petitioner that he has neither forged any document nor used any document and he has become the victim of the circumstances and the authority concerned of the Bank, however, has not suspended after his explanation and subsequently it was held by the concerned authority of the Bank that the lapses of the petitioner were procedural in nature and negligence and carelessness of the petitioner in passing the high value drafts has facilitated preparation of fraudulent encashment of drafts and thereafter the petitioner was penalised by way of reduction in basic pay for two years and he was also not allowed to earn increments of pay during the period of such reduction and the deduction will have the effect of postponing the future increments of his pay. ( 10 ) IT has further been alleged by the petitioner that the police investigated the case and found that the accused Jai Prakash Jaiswal, proprietor of Misra Scrap Co. has withdrawn the cash and accused Santosh and Ors. , are doing the business of the forged drafts and the allegation against the petitioner is to the effect that the petitioner has passed the draft and helped to withdraw the cash. Accordingly, police submitted charge-sheet no. 151 of 2002 dated 29. 9. 2002. ( 11 ) IT has further been alleged by the petitioner that although he received the papers under Section 173 of Cr. P. C. together with the statements recorded under Section 161 of Cr. P. C. by the Police, but none of the witnesses has said that the petitioner encashed the drafts in collusion with Jai prakash Agarwal and Santosh Kumar Shaw and as such there is no materials whatsoever to proceed against the present petitioner and in consequence thereof, he has come up with the prayer for quashing the aforesaid proceeding in so far as it relates to the present petitioner, since, upon investigation no materials could be collected by the investigation agency to establish the prima facie allegation that the petitioner helped to withdraw the cash or he had mens rea in committing the offence. Hence, this prayer. Hence, this prayer. ( 12 ) THIS prayer, however, has been opposed by the learned Counsel appearing for the State alleging that although in the F. I. R. , there is no direct allegations agaisnt the present petitioner, yet, upon investigation, it has been revealed that this petitioner was in charge of bank draft and he has passed this draft and helped to withdraw the cash and as such he cannot deny the liability in the present matter and accordingly his prayer in this revisional application should be rejected. ( 13 ) SRI Himanshu Dey, learned Counsel appearing for the petitioner while arguing the case of the petitioner drawing my attention to the F. I. R. , submitted by the Chief Manager and taking me through the papers supplied to the petitioner under Section 173 of Cr. P. C. specially the statements recorded under Section 161 of Cr. P. C. , has contended before me that either in the F. I. R. or in the statements recorded under 161 of Cr. P. C. there is no material whatsoever which converted into evidence can indicate that this petitioner had any hand in the commission of any offence whatsoever and as such it has been submitted on his behalf that this is a clear case of abuse of the process of the Court as such it should be quashed. ( 14 ) IN support of his contention he has placed his reliance on the decision reported in the case K. Ramkrishna and Ors. v. State of Bihar and Anr. , 2001 C Cr LR (SC) 1 and in the case of Bhaskar Chattoraj v. The State of west Bengal, 1991 C Cr LR (SC) 7. ( 15 ) IN 2001 C Cr LR (SC) 1 (supra) the Apex Court has laid down the following guidelines in the matter of exercising powers by High Court under section 482 if the Criminal Procedure Code"the inherent powers of the High Court under Section 482 of the code of Criminal Procedure 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. Ordinarily the criminal proceedings which are instituted against the accused must be tried and taken to logical conclusions under the Code of Criminal Procedure and the High Court should be reluctant to interfere with the proceedings at an interlocutory stage. However, there may be cases where the inherent jurisdiction to quash proceedings can and should be exercised. Where there is a legal bar against the institution or continuance of the criminal proceedings in respect of the alleged offence, the High Court should not be reluctant to exercise the inherent jurisdiction. Similarly, where the allegations in the FIR or the complaint, even if they are taken at their face value do not constitute the offence alleged, or without appreciating the evidence but merely by looking at the complaint or the FIR or the accompanying documents, the offence alleged is not disclosed, the person proceeded against in such a frivolous criminal litigation has to be saved. " ( 16 ) THE trial Court under Section 239 and the High Court under Section 482 of the Code of Criminal Procedure is not called upon to embark upon an enquiry as to whether evidence in question is reliable or not or evidence relied upon is sufficient to proceed further or not. However, if upon the admitted facts and the documents relied upon by the complainant or the prosecution and without weighing or sifting of evidence, no case is made out, the criminal proceedings instituted against the accused are required to be dropped or quashed. ( 17 ) ULTIMATELY the Apex Court has further held that on"on perusal of F. I. R. , the final report under Section 173 of the Code of Criminal Procedure and all other documents accompanying it, we are satisfied that no case is made out against any of the appellants and the pendency of the proceedings against them before the Magistrate is an abuse of process of Court. The appeal is allowed and the order of the High Court dated 8th April, 1997 and Magistrate dated 6. 7. 96 are quashed and the appellants discharged in terms of Section 239 of the Code of Criminal Procedure. The appeal is allowed and the order of the High Court dated 8th April, 1997 and Magistrate dated 6. 7. 96 are quashed and the appellants discharged in terms of Section 239 of the Code of Criminal Procedure. " ( 18 ) IN 1991 C Cr LR SC 7 (supra) it was held by the Apex Court that"we carefully and meticulously went through the entire reports as well as the statements of the witnesses recorded under Section 162 of the Criminal procedure Code during the course of the investigation and on perusal of the records, we are satisfied that there is no material connecting the appellant with the alleged offence of criminal trespass. The learned Counsel appearing on behalf of the respondent is not able to satisfy us showing any material that would justify the implication of the appellant with the offence for which he now stands charged. in our considered opinion, no conviction can be recorded on the mere vague allegations, that too made only in the petition dated 15. 11. 85 and as such the entire proceedings as against this appellant is only an abuse of the process of the Court. in view of the above circumstances, we quash the charge framed as against this appellant under Section 448, I. PC. " ( 19 ) THE case Diary of this case was produced before me by the learned Counsel appearing for the State. Going through the materials from the C. D. , specially the F. I. R. and the statements recorded under Section 161, i find that there is no material whatsoever which converted into evidence can indicate in any manner that this petitioner had any hand in the commission of the offence. ( 20 ) THIS being the position the materials collected upon investigation, and examining those in the light of the ratio of the decisions, as aforesaid, I hold with certainty that no case has been made out agaisnt the present petitioner and as such pendency of the proceeding agaisnt him before the court should, therefore, be regarded as clear abuse of the process of the court. ( 21 ) FURTHERMORE, although from the departmental proceeding, it has come out that in the departmental proceeding the negligence and the carelessness of the petitioner were established which resulted in reduction of the petitioner's basic pay by two stages for two years with further direction that he will not earn increments of pay during the period of the said reduction and the reduction will have the effect of postponing future increment of the petitioner, yet, they do not disclose any materials, whatsoever specially presence of means rea of the petitioner in connection with the present crime. ( 22 ) IT is, however, quite settled position that mens rea plays a very dominant role in the matter of committing a crime. But presence of mens rea and negligence normally never go together. Rather, one excludes the other. ( 23 ) SO, upon assessing the entire materials within its permissible limits, I find that in the instant case, there is no material whatsoever in the case or in the alternative when police failed to collect any material against the petitioner then charge-sheet against the petitioner should not have been submitted. ( 24 ) BUT, in the instant case by submitting charge-sheet, as aforesaid, agaisnt the present petitioner, the police has abused the process of law and which has ultimately resulted in the abuse in the order of this Court. Therefore, this is a fit case where the power vested under Section 482 of cr. P. C. should be exercised. ( 25 ) IN view of what I have stated above, I hold this revisional application succeeds and the proceeding and the charge-sheet in connection with the G. R. Case No. 1176 of 1999 under Sections 467/468/471 of the indian Penal Code so far as this petitioner is concerned should be quashed and accordingly, the charge-sheet submitted against this petitioner stands quashed so far as it relates to the present petitioner. ( 26 ) IN the result, the revisional application succeeds and the impugned proceeding so far as it relates to the present petitioner stands quashed.