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2006 DIGILAW 107 (CAL)

SADANANDA PAN v. STATE OF WEST BENGAL

2006-02-23

ARUN KUMAR BHATTACHARYA

body2006
ARUN KUMAR BHATTACHARYA, J. ( 1 ) THE hearing arises from an application under section 482 Cr. PC filed by the petitioner praying for quashing the investigation in G. R. Case No. 253/96 arising out of Suri P. S. Case No. 58/96 dated 26. 04. 96 under section 409/448/406 IPC. ( 2 ) THE circumstances leading to the above application are that by order No. 183 dated 01. 02. 94 Assistant Registrar of Co-operative Societies, Birbhum, hereinafter referred to as Assistant Registrar, appointed the petitioner, who is a school teacher, as Special Officer to manage the affairs of the Suri Friends' union Co-operative Bank Ltd. By notification dated 05. 05. 95, Deputy Secretary, department of Co-operation, Govt. of W. B. , appointed a Board of Administrators comprising of 12 members, the petitioner being named as Chair nan thereof to manage the affairs of the said Bank. In order to attend the bank from his residence at a distance of over 24 kms. the petitioner had to undertake a journey by rickshaw, then by bus and then again by rickshaw. Secretary of the Bank advised the petitioner that under the Rules of the Co-operative Societies act he was entitled to claim travelling allowance for the days of his actual visit of the bank in discharge of his official duties, and according to the said advice the petitioner used to claim travelling allowance for the days of his attending the Bank in connection with his duties as Chairman. On occasions he had to attend the urgent affairs of the Bank early in the morning or had to continue to discharge his duties till late evening when buses stopped plying, for which he had to use vehicle. By a resolution dated 18. 08. 95 the Board of Administrators had resolved authorizing the Chairman to use hired vehicle for attending his urgent duties in the absence of public or private vehicle. In connection with preparation of electoral roll and for holding an Annual General Meeting for election of Directors of the Board he had to withdraw some amount as advance for expenses to be incurred on the election of delegates. The Secretary of the bank at the instance of some persons complained to the Assistant Registrar about withdrawal of Rs. 6000/- by the petitioner as advance for expenses in connection with election of delegates and about his receiving taxi fare frequently. The Secretary of the bank at the instance of some persons complained to the Assistant Registrar about withdrawal of Rs. 6000/- by the petitioner as advance for expenses in connection with election of delegates and about his receiving taxi fare frequently. Assistant Registrar after an inspection informed the Secretary of the Bank by a letter dated 24. 01. 96 for recovery of the taxi fare drawn by the petitioner as it is not permissible under the rules and the advances for legal and election expenses drawn without assigning any reason are also not permissible. At the instance of one Kali Charan Mukhopadhyay the aforesaid Suri P. S. Case No. 58/96 dated 26. 04. 96 under section 409/448/406 IPC was started against the petitioner, Secretary, Accountant and Director of the Bank, and investigation is proceeding. The said case has been instituted solely for the purpose of wreaking a private vengeance. ( 3 ) BEING aggrieved by the above investigation, the petitioner has come up before this Court. ( 4 ) MR. Dastoor, ld. Counsel for the petitioner, on referring to the resolution dated 18. 08. 95 of the Board of Administrators contended that all the members are entitled to get Rs. 15/- as sitting fee and Rs. 35/- as conveyance charge for attending the meeting and his client accordingly claimed that amount. Mr. Dastoor further contended that his client had to attend Calcutta for swearing affidavit and attending the chamber of advocate etc. for defending the cases instituted against the bank and it was in the interest of the Bank that he had to incur some expenditure and he duly produced all vouchers in respect of expenditure incurred. It was his further contention that the Assistant Registrar termed the taxi fare so drawn by the petitioner as "most irregular" and not illegal in his letter dated 24. 01. 96 addressed to the Secretary of the Bank and so considering the above aspect, as the allegations levelled against the petitioner do not constitute any offence, the above criminal proceeding should be quashed. Mr. Mallick, ld. Counsel for the State, on the other hand, submitted that chargesheet under section 409/448/406 IPC has been submitted against the petitioner and others and there being sufficient materials bearing out the said offences, the question of quashing the proceeding does not arise. Mr. Mallick, ld. Counsel for the State, on the other hand, submitted that chargesheet under section 409/448/406 IPC has been submitted against the petitioner and others and there being sufficient materials bearing out the said offences, the question of quashing the proceeding does not arise. ( 5 ) QUASHING of proceeding to prevent abuse of the process of the Court or otherwise to secure the ends of justice may be done where: (1) it appears that there is a legal bar against the institution or continuance of criminal proceeding in respect of the offence alleged e. g. absence of requisite sanction, or (2) the allegations in the FIR or the complaint even if they are taken at their face value and accepted in their entirety do not constitute the offence alleged, or (3)the allegations made against the accused person do constitute an offence alleged but there is either no legal evidence adduced in support of the case or the evidence adduced clearly or manifestly fails to prove the charge. In this connection, reference may be made to the case of R. P. Kapur vs. State of Punjab, reported in AIR 1960 SC 866 and State of Haryana vs. Bhajan Lal, reported in air 1992 SC 604 . It is to be borne in mind that the power to quash an FIR by this Court can be exercised very sparingly and with circumspection and that too in the rarest of the rare cases. At this stage the Court cannot inquire about reliability or genuineness or otherwise of the allegations made in the FIR nor it can inquire whether the allegations are likely to be established or not, as was held in the case of M. Narayandas vs. State of Karnataka, reported in 2004 scc (Cri) 118 at 123. ( 6 ) WHETHER the allegations as levelled has spelt out an offence or not is to be considered with reference to the fact as borne out in the complaint and not with reference to the letter addressed by the Assistant Registrar to the Secretary of the Bank. ( 6 ) WHETHER the allegations as levelled has spelt out an offence or not is to be considered with reference to the fact as borne out in the complaint and not with reference to the letter addressed by the Assistant Registrar to the Secretary of the Bank. ( 7 ) WHEN pursuant to the First Information Report the investigation was undertaken and a chargesheet or a police report under section 173 (2) of the code of Criminal Procedure was filed in the Court and if the investigation papers annexed to the chargesheet do not disclose the commission of any crime by the respondent concerned, it would be open to the Court to refuse to frame a charge, but quashing of the FIR is not permissible, as was held in the case of state of Punjab vs. D. V. Singh Jethi, reported in 1994 SCC (Cri) 500. In the case of State of M. P. vs. A. K. Gupta, reported in 2004 SCC (Cri) 353 at 361, it was observed: "the inherent power should not be exercised to stifle a legitimate prosecution. The High Court being the highest Court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so, when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. . . . It would not be proper for the High Court to analyse the case of the complainant in the light of all probabilities in order to determine whether a conviction would be sustainable and on such premises, arrive at a conclusion that the proceedings are to be quashed. It would be erroneous to assess the material before it and conclude that the complaint cannot be proceeded with. . . . When an information is lodged at the police station and an offence is registered then the mala fides of the informant would be of secondary importance. It is the material collected during the investigation and evidence led in the Court which decide the fate of the accused person. The allegations of mala fides against the informant are of no consequence and cannot by itself be the basis for quashing the proceedings. It is the material collected during the investigation and evidence led in the Court which decide the fate of the accused person. The allegations of mala fides against the informant are of no consequence and cannot by itself be the basis for quashing the proceedings. " The legal position is well-settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the Court is as to whether the uncontroverted allegations as made prima facie establish the offence, as was held in the case of M. J. Scindia vs. S. C. Angre, reported in 1988 SCC (Cri) 234. ( 8 ) HERE, a glance to the chargesheet and materials available in the case diary prima facie reveals commission of non-cognizable offences by the petitioner and others. Accordingly, the question of quashing the proceeding is out of the way. So far as the contention of Mr. Dastoor regarding production of vouchers by his client before the concerned authority or the petitioner's incurring expenditure in the interest of bank is concerned, it is the defence case which is a matter for trial and cannot be expected to be decided by this Court. With the background discussion, the present application being devoid of any merit be dismissed. Application dismissed.