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2004 DIGILAW 488 (CAL)

HRIDAY KUMAR ADHIKARI v. STATE OF WEST BENGAL

2004-07-22

JYOTESH BANERJEE

body2004
JYOTESH BANERJEE, J. ( 1 ) THROUGH this application under Section 482 of the Code of Criminal procedure one of the accused of G. R. Case No. 422/93 (Kotowali PS. Case no. 412/93) has prayed for quashing the proceeding pending in the Court of sub-Divisional Judicial Magistrate, Sadar, Cooch Behar. ( 2 ) IN short, the facts leading to filing of the instant application are as follows : dinabandhu Barman, the Branch Manager of Uttar Banga Kshetriya gramin Bank lodged a F. I. R. on 24. 12. 93 alleging that one Bipul karmakar, New L'oknath Bhandar, Bhabaniganj Bazar, Cooch Behar opened one savings bank account on 12. 7. 93 (SB A/c. No. 4185) depositing Rs. 2. 500/- and the said account holder was duly introduced by one Archana Sengupta having one savings bank account with the same branch. Thereafter, the Branch Manager received two m. T. SI. No. 13/93, Printed No. MT/g being No. 17519 dated 20. 8. 93 amounting to Rs. 12,000/- only from the Hakimpara, Siliguri Branch of i the aforesaid bank to be credited in the savings bank account of said bipul Karmakar. Thereafter, the said SB. A/c, holder withdrew the amount 2,450/- in three instalments. The M. T. No. 13/93 for Rs. 12,000/- was credited in SB, A/c. No. 4185 on 25. 8. 93 and the account holder of the said savings bank account Bipul Karmakar withdrew the amount of Rs. 12,000/- in 4 instalments. Again on 20. 11. 93 another M. T. SI. No. 14/ 93/19 of Rs. 23,000/- was credited to the said SB. A/c, of the said Bipul karmakar and he ultimately withdrew the entire M. Ts. amount of Rs. 23,000/- in two instalments. it is alleged that on verification of Uttar banga Kshetriya Gramin Bank, Hakimpara Branch, Siliguri by the audit and Vigilance Cell, it was found from a letter dated 20. 12. 93 that no such M. T. document amounting to Rs. 12. 12. 93 that no Rs. 12,000/- and Rs. 23,000/- was issued from the said Branch. In fact the M. T. instruments mentioned above were never in existence in Hakimpara branch, although the same was used for cheating the bank by the said bipul Karmakar. it is the contention of the petitioner that at the relevant point of time in 1993 petitioner was in the Head Office of Uttar Banga kshetriya Gramin Bank situated at Cooch Behar as Sr. it is the contention of the petitioner that at the relevant point of time in 1993 petitioner was in the Head Office of Uttar Banga kshetriya Gramin Bank situated at Cooch Behar as Sr. Manager (Planning and Development) Department. On 19th April, 1995 he was transferred to Bazirhat Branch as Branch Manager Scale-ii of the said Bank and at the time of filing the application he was serving as such. It is the specific contention of the petitioner that in the F. I. R. there was no allegation raised against the petitioner. After the police, on the basis of the F. I. R. , which is marked Annexure-A to the petition, started the aforesaid case under Section 468/420 of the I. P. C. , the Investigating officer came to the Head Office and interrogated the petitioner. it is specifically alleged that the police after investigation submitted chargesheet against the present petitioner and other persons on 10. 4. 96 and from the charge-sheet, it transpire that one Kishalay Dutta, branch manager of Gramin Bank, Hakimpara Branch, Dist-Darjeeling who is also an accused in the case was respcrisibie for the forgery on the M. T. forms. The petitioner wants to get the charge-sheet quashed against him in the aforesaid facts and circumstances. ( 3 ) I have heard the submissions Mr. Ashish Kr. Sanyal who with Mr. Uttam Mazumdar appeared for the petitioner. It is submitted by Mr. Sanyal that the F. I. R. has failed to disclose any allegation against the present petitioner. Even the charge-sheet which the police filed on completion of the investigation failed to specifically indicate how the petitioner was involved in the offence complained of. Mr. Sanyal has further submitted that the only relevant allegation which has been raised to connect the accused with the offence complained of that is to say being involved in forgery of document and the use of such document to defraud the bank is the allegation that the accused/petitioner at the relevant point of time, was the Sr. Manager (Planning and Development Department), at the Head office at Cooch Behar of Uttar Banga Kshetriya Gramin Bank, and had the control over the Printing stationary Section of the Bank. But there is nothing to show that the instruments which were used for the commission of the crime, namely, M. T. instruments were in direct custody of the petitioner. Manager (Planning and Development Department), at the Head office at Cooch Behar of Uttar Banga Kshetriya Gramin Bank, and had the control over the Printing stationary Section of the Bank. But there is nothing to show that the instruments which were used for the commission of the crime, namely, M. T. instruments were in direct custody of the petitioner. He has further submitted that in a criminal case a person can not ordinarily be held responsible for acts of others unless it is shown that such person had any part to play in the act or acts complained of. Section 10 of the Evidence Act embodies one of the exceptions to this general rule but in order to bring the case within the mischief of that section, prosecution is required to establish the existence of a common design shared by some persons who have combined together for the same illegal purpose and any act done by one of the persons in pursuance of the original design and with reference to the common object, would be construed as the act of the whole. But in the instant case, besides the allegation that accused as the Head of the Department of the Bank in which similar instruments, namely, M. T. forma were kept, there is no allegation raised which shows or can show that the accused had got a part to play in the commission of the offence. ( 4 ) MR. S. K. Mallick appearing for the State on the other hand, has tried to resist the application by pointing out that C. D. of the case indicates that the accused/petitioner at the relevant point of time as the Manager of planning and Development was the custodian of the entire stationary including M. T. instruments. It is submitted that some M. T. instruments were taken away and those were forged. So it is not such a case where prosecution against the accused should be quashed. In reply thereto, the learned counsel for the petitioner has pointed out that no allegation of forgery has been raised even in the charge-sheet against the accused/petitioner. Therefore, the proceeding against the accused/petitioner should be quashed as the continuation of the same would be simply harassing, without justification against the petitioner. In reply thereto, the learned counsel for the petitioner has pointed out that no allegation of forgery has been raised even in the charge-sheet against the accused/petitioner. Therefore, the proceeding against the accused/petitioner should be quashed as the continuation of the same would be simply harassing, without justification against the petitioner. ( 5 ) IN connection with the hearing I have had the occasion to go through the C. D. which was produced by the learned Counsel appearing for the State, I find that the accused/petitioner is in-charge of certain section including the section of forms and stationary. But there is no allegation that the accused/petitioner had the custody of the M. T. forms, and some of the m. T. forms were taken away from his custody before those were forged and used for the purpose of defrauding the bank. The charge-sheet does not suggest that the accused/petitioner participated in the commission of the offence complained of in any other way. ( 6 ) IT is seen from the charge-sheet that it has been submitted under section 468/420, I. PC. and Section 468 prescribed punishments for forgery for the purpose of cheering. So prima facie there should be an allegation against the accused/petitioner that he being the custodian of the M. T. forms, had allowed any other accused person to take the said form away from his custody and in this way, the accused/petitioner had a hand in the commission of offence and there is reasonable ground to believe that he conspired with others regarding the commission of the offence. But there is no such material for coming to the conclusion that the accused/petitioner had the direct custody of the M. T. forms. The mere allegation in this respect is that as the sr. Manager (Planning and Development), he was in-charge of the forms department. In my considered opinion, if for that reason alone, the accused is to be prosecuted for the offence as stated above then the General manager or even some person who is in over all apex of the of administrator of the bank can be prosecuted for the same reason. Manager (Planning and Development), he was in-charge of the forms department. In my considered opinion, if for that reason alone, the accused is to be prosecuted for the offence as stated above then the General manager or even some person who is in over all apex of the of administrator of the bank can be prosecuted for the same reason. in this connection, I have perused the statements of different witnesses recorded by the prosecuting authority to find that, it has been alleged that the present accused/petitioner was the in-charge of forms and stationary and under him there was one officer, one clerk and one peon and according to the statement recorded of those persons including the accused as in-charge were responsible for receiving the forms, maintaining accounts. But there is nothing to indicate that as the in-charge of the department, the accused/petitioner was the sole custodian of the forms and there is no allegation that without his permission no form could be taken out of the bank's custody. Oh the other hand, the charge-sheet submitted goes to indicate that after receiving expert opinion it was found by the I. O. that the accused Kishalay Dutta, Branch Manager of uttar Banga Kshetriya Gramin Bank, Hakimpara Branch, Siliguri was responsible for Norgery as he put his signature on M. T. forms and other debit voucher for the entire amount of Rs. 35,000/-, which amount was subsequently credited in the bank in favour of the beneficiary, Bipul Karmakar. ( 7 ) IN Pepsi Food Ltd, v. Special Judicial Magistrate, (1998)5 SCC 749 :1998 SCG (Gr) 1400, the Apex Court observed that the guidelines laid therein as to where the Court would exercise jurisdiction under Section 482 of the Code could not be inflexible or laying rigid formula to be followed by the Courts. Exercise of such power would depend upon the facts and circumstances of each case but with the sole purpose to prevent abuse of the process of any Court or otherwise to secure the ends of justice. in the case of State of Karnataka. . . Appellant v. M. Devendrappa and Anr,. . . Exercise of such power would depend upon the facts and circumstances of each case but with the sole purpose to prevent abuse of the process of any Court or otherwise to secure the ends of justice. in the case of State of Karnataka. . . Appellant v. M. Devendrappa and Anr,. . . Respondent reported in All India Criminal Reporter (2002)1 Page 322 : 2002 C Cr LR (SC) 324 the Apex Court has laid down some categories of cases where inherent powers should be exercised to quash proceedings and one of the circumstances which falls within those specified categories is where the uncontroverted allegations made in the F. I. R. or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. No doubt in coming to such a conclusion the Court should not weigh the evidence so collected. But at the same time, the Court should not be a silent spectator about the misuse of the power of the prosecuting authority. In the case of State of Karnataka v. L Muniswamy, (1977)2 SCC 699 : 1997 SCC (Cr) 404, while considering the scope of inherent power of quashing under Section 482, the Apex Court has held that in the exercise of this wholesome power, the High Court is entitled to quash proceedings if it comes to the conclusion that the ends of justice so require. ( 8 ) WHAT emerges from the aforesaid discussion is that the exercise of power under Section 482 of the Code of Criminal Procedure depends upon the facts and circumstances of each case but with the sole purpose to prevent abuse of the prqcess of any Court or otherwise to secure the ends of justice. Thus considering the facts and circumstances, specially the whole allegations levelled against the accused/petitioner as indicated above I am of the opinion that the continuation of proceeding against the present accused/ petitioner would be simply harassing and to secure the ends of justice, the proceeding pending against the accused/petitioner should be quashed. ( 9 ) THE application is thus allowed and the charge-sheet filed against the accused/petitioner in G. R. Case No. 422/93 (Kotowali P. S. Case No. 412/ 93) stands quashed.