Judgment :- Sadhan Kumar Gupta, J. This revisional application has been preferred against the order dated 10.9.2003 passed by the ld. Judge, 4th Special Court, Calcutta in Special Case No. 3 of 2003. 2. Case of the petitioner is that one A.K. Chamaria filed a petition of complaint before the ld. Chief Metropolitan Magistrate, praying for directing the O/C of Hare Street P.S. to investigate the matter. Said petition of complaint was sent to the O/C, Hare Street P.S. for investigation under section 156(3) of the Cr.PC. On the basis of the said complaint, Hare Street P.S. Case No.73 dated 12.2.2000 was started. The case was investigated and after completion of investigation chargesheet submitted on 28.4.2003 against the petitioner and another person. Ld. Special Judge took cognizance of the offence and started proceeding with the matter. 3. It was alleged in the petition of complaint to the effect that the complainant was engaged in the business of purchase of gold TTB as well as silver bars from different banks and also used to purchase raw gold, silver utensils and other articles from the market. He used to sell gold TTB and silver bars in the open market to the goldsmiths and other traders. Reserve Bank of India gave permission to few bankers for selling gold TTB and silver bars. Corporation Bank, Brabourne Road Branch, Kolkata was one of such bankers. The complainant purchased gold TTB and silver bars from the said branch. He had Current Account No.4470 with the said bank. On 27.1.2000 the complainant had Rs. 1,27,36,936/-in his credit. All on a sudden, on 29.1.2000 the complainant received one notice from the petitioner, who was at that time, the Branch Manager of the said bank, wherein it was stated by the petitioner that a sum of Rs. 1,57,02,220/- was debited from the said current account of the complainant towards the payment of 300 pieces of gold TTB leaving a debit balance for the sum of Rs. 19,50,535.00 in the complainants current account. It was further claimed by the complainant that he had already paid a sum of Rs. 51,26,970/-in respect of Bill No. 369 dated 10.1.2000 raised by the Corporation Bank towards payment of 100 pieces of gold TTB which were delivered to the complainant on 10.1.2000. 19,50,535.00 in the complainants current account. It was further claimed by the complainant that he had already paid a sum of Rs. 51,26,970/-in respect of Bill No. 369 dated 10.1.2000 raised by the Corporation Bank towards payment of 100 pieces of gold TTB which were delivered to the complainant on 10.1.2000. Said bank, it was alleged by the complainant, was entitled to receive payment in respect of 200 pieces of gold TTB only and the sum of Rs. 57,02,220/-which included the value of 100 pieces of gold TTB already made over by the complainant to the said bank, unlawfully taken away from the complainants current account in furtherance to the fraudulent and dishonest intention of the accused persons. It was alleged by the complainant that the petitioner being the Chief Manager of the Corporation Bank was in-charge of and responsible for the day-to-day conduct of the affairs of the business of the said bank and other accused persons used to look after and maintain the record of the bank of the matters of delivery of gold TTB and payments made thereunder. In effect the complainant alleged that the petitioner and other accused persons jointly in furtherance of their common intention while being entrusted with the property and while enjoying dominion over the said property in the way of their business as a banker, committed criminal breach of trust in respect of that property and as such they were liable to be prosecuted for the offence under section 409 read with section 34 of the Indian Penal Code. That apart, a cheque, which was issued by the complainant in favour of another person on the impression that there was sufficient money in his account, was dishonoured by the said bank on the ground of "insufficiency of funds" thereby rendering the complainant liable to be prosecuted by the said person as per provisions of section 138 of the Negotiable Instruments Act. Under such circumstances, the complainant by filing the petition of complaint, prayed for appropriate criminal action against the accused persons. 4. The petitioner has claimed that the bank actually delivered 100 pieces of gold TTB to the complainants company on 10.1.2000, on 17.1.2000 100 gold TTB were also delivered to the complainants company in two instalments and on 21.1.2000 further pieces of 100 TTB were made over to the complainants company. The banker was constrained to raise invoice Nos. 4. The petitioner has claimed that the bank actually delivered 100 pieces of gold TTB to the complainants company on 10.1.2000, on 17.1.2000 100 gold TTB were also delivered to the complainants company in two instalments and on 21.1.2000 further pieces of 100 TTB were made over to the complainants company. The banker was constrained to raise invoice Nos. 385, 386 and 387 all dated 27.1.2000 as in the meantime the complainants company did not settle their accounts with the bank. As such, finding no other alternative the bank decided to realise the value of the gold from the current account held by the complainant company and it was debited from the current account of the complainants company and due to such action the said account showed debit balance. The bank wrote to the complainants company for regularization of its account and soon after receipt of the said letter, in order to avoid its financial liability towards the bank, the complainant lodged the petition of complaint against the petitioner and others. According to the petitioner, the complainant filed a suit before the Honble High Court at Calcutta for realisation of the amount in question. The bank also filed a suit before the Debts Recovery Tribunal, Calcutta for realisation of the amount that was due to the bank from the complainants company. 5. Petitioner has claimed that he was only functioning as the Chief Manager of the Brabourne Road Branch of the bank and there was no evidence at all to connect the petitioner with the transaction that the complainants company had done with the petitioner bank. In fact the petitioner did nothing except writing a letter to the complainants company asking for making necessary payment and for realisation of the amount. 6. Petitioner filed a petition before the ld. Judge praying for discharging him from the said case. Ld. Judge, after hearing the parties, by his order dated 10.9.2003, was pleased to reject the application of the petitioner and framed charges against him and another and fixed a date for recording of evidence. 7. Being aggrieved by and/or dissatisfied with, the said order of the ld. Judge, this revisional application has been preferred. The case was contested by he opposite party/de facto complainant and the opposite party/State of West Bengal. 7. Being aggrieved by and/or dissatisfied with, the said order of the ld. Judge, this revisional application has been preferred. The case was contested by he opposite party/de facto complainant and the opposite party/State of West Bengal. Both the opposite parties have claimed that as there was prima facie material against the petitioner and another, so the ld. Judge was perfectly justified in framing the charge against them and fixing the case for trial. 8. Mr. Basu, ld. Advocate for the petitioner/accused, first of all, submitted that the petitioner being the Chief Manager of the Bank in question, which is a Government of India Undertaking, should be considered to be a public servant and cannot be prosecuted without sanction. In this respect, he also pointed out that it is the admitted position that no sanction was obtained before filing the case against the petitioner. 9. Secondly, Mr. Basu, argued that the impugned order, as passed by the ld. Judge, was defective, as there was no reasoning given in the said order. As such, according to him, said order should be set aside immediately. 10. Mr. Basu, further pointed out that it was not justified on the part of the ld. Chief Metropolitan Magistrate to send the petition of complaint to the concerned P.S., as, according to him, it was only the Special Judge, who could take cognizance in the matter. 11. Ld. Advocate for the petitioner further argued that in this case, there is nothing on record to show that the concerned O/C of the P.S. took up the investigation and submitted the report before the ld. Court below. The officer concerned, who submitted the report, there is nothing to show, that he was authorised to conduct the investigation of the case by virtue of any direction from the O/C of the P.S. 12. Lastly, Mr. Basu, ld. Advocate for the petitioner, further pointed out that the dispute between the parties is purely civil in nature and as such it should be settled in the Civil Court and the criminal proceeding, as filed by the complainant, cannot proceed. He further pointed out that in the revisional application it has been clearly mentioned that the bank in fact filed a civil suit before the Debts Recovery Tribunal, Calcutta Bench, and the complainant also filed a suit in the High Court over the transaction in question. He further pointed out that in the revisional application it has been clearly mentioned that the bank in fact filed a civil suit before the Debts Recovery Tribunal, Calcutta Bench, and the complainant also filed a suit in the High Court over the transaction in question. Since the matter was pending before the appropriate forum, so it was not proper on the part of the Criminal Court to allow the said proceeding to be continued in that forum. In fact, the ld. Trial Judge failed to appreciate all those points while framing the charges against the petitioner and another and as such, ld. Advocate for the petitioner prayed for setting aside of the said order and the accused/petitioner be discharged immediately. 13. On the other hand, ld. Advocate for the opposite parties argued that the petitioner cannot be termed as a public servant, as claimed by him. As such Mr. Safiullah, ld. Public Prosecutor, submits that the question of obtaining sanction for proceeding against the petitioner does not arise at all. Moreover, according to him, besides section 409 IPC there are other sections for which investigation was done and so question of obtaining sanction does not arise at all. 14. Ld. Public Prosecutor, further argued that there was nothing wrong on the part of the ld. Judge in taking cognizance of the matter on the basis of the report submitted by the investigating agency. Whether the I.O. had any power or authority to conduct the investigation or not that can only be decided at the time of trial. 15. That apart, Mr. Safiullah, further argued that there was no question of giving detail reasoning by the ld. Judge while framing the charge against the accused/petitioner. According to him, discussion is necessary if the Judge decides to discharge the accused persons at time of consideration of the charge. 16. Lastly, ld. P.P. submits that simply because the dispute is civil in nature that cannot be a ground for quashing a criminal proceeding. According to him, it is the settled position that a dispute may be of both civil and criminal in nature and in appropriate case both the proceedings can continue, Ld. P.P. prays for dismissal of the revisional application. 17. Mr. Amzad Ali, ld. Advocate for the opposite party No.2 adopted the submission of the ld. P.P and he prayed that the revisional application should be dismissed. 18. P.P. prays for dismissal of the revisional application. 17. Mr. Amzad Ali, ld. Advocate for the opposite party No.2 adopted the submission of the ld. P.P and he prayed that the revisional application should be dismissed. 18. I have considered the submissions of all the sides. It appears that the impugned order in question has been challenged by the ld. Advocate for the petitioner on the ground that the said order was passed without assigning any reason whatsoever. According to him, ld. Magistrate or Judge cannot act as a post office while considering the fact as to whether charge is to be framed against an accused or not. Simply because chargesheet has been submitted against an accused, that does not mean that the ld. Judge was duty bound to frame the charge against the accused/petitioner. It is his duty to consider the materials and thereafter to come to a conclusion as to whether charge is to be framed against the accused or not. 19. In support of his contention he has cited a decision reported in AIR 1972 SC 545 , Century Spinning & Manufacturing Co. Ltd. & Ors. vs. State of Maharashtra. 20. As against this, ld. Advocate for the State cited a decision reported in 2000 SCC (Cri) 303, Kanti Bhadra Shaw vs State of West Bengal. By citing this decision, ld. P.P. submitted that the Honble Apex Court observed in this decision to the effect that no reasons are required to be recorded when the charges are to be framed against an accused_reasons are to be recorded only if the accused is to be discharged. But it appears from the decision reported in AIR 1972 SCC 545 (supra), which is a three-Judges Bench decision, that it has been clearly laid down in the said decision by the Honble Supreme Court to the effect that "It cannot be said that the Court at the stage of framing the charges has not to apply its judicial mind for considering whether or not there is a ground for presuming the commission of the offence by the accused. The order framing the charges thus substantially affect the persons liberty and it cannot be said that the Court must automatically frame the charge merely because the prosecuting authorities by relying on the documents referred to in section 173 considered it proper to institute the case. The order framing the charges thus substantially affect the persons liberty and it cannot be said that the Court must automatically frame the charge merely because the prosecuting authorities by relying on the documents referred to in section 173 considered it proper to institute the case. The responsibility of framing the charges is that of the Court and it has to judicially consider the question of doing so. Without fully adverting to the material on the record it must not blindly adopt the decision of the prosecution". 21. It appears that this decision of the Honble Supreme Court was not placed before the Honble Division Bench of the Honble Supreme Court while disposing of the case reported in 2000 SCC (Cri) 303 (supra). 22. In the decision reported in 1995 AIR SCW 3014 (Buta Singh vs. Union of India) it has been held by the Full Bench of the Honble Supreme Court to the effect that when the attention of the two-Judges Bench of the Supreme Court was not drawn to the earlier three-Judges Bench decision on the same point then it must be held that two-Judges Bench decision is per incuriam inasmuch as attention of Bench was not invited to the decision of the three-Judges Bench. As such, since the three-Judges Bench decision as reported in AIR 1972 SC 545 (supra) was not taken into consideration by the Honble Division Bench of the Supreme Court in the decision reported in 2000 SCC (Cri) 303, so the ratio as decided by the earlier three-Judges Bench, should be followed. In view of this decision it is necessary that at the time of consideration of charge, the Judge or the Magistrate must look into the materials and thereby to satisfy himself about the existence of a prima facie case against an accused and then to come to a conclusion as to whether a charge is to be framed against the accused or not. He cannot frame the charge by blindly relying upon the fact that the chargesheet has been submitted by the prosecution against the accused. It appears that the ld. Judge in his order practically did not consider and discuss the materials while coming to such a conclusion. So there cannot be any doubt that the said order of the ld. Judge appears to be defective. It appears that the ld. Judge in his order practically did not consider and discuss the materials while coming to such a conclusion. So there cannot be any doubt that the said order of the ld. Judge appears to be defective. But that does not mean that simply for that reason the order is to be set aside and the accused/petitioner should be discharged. We are to come to a conclusion regarding the case of the respective parties and then to come to a decision as to whether there is any prima facie case against the petitioner or not. If any such material is not disclosed then appropriate order may be passed. Further discussion on this point will be made at the time of consideration as to whether the present case, as instituted on the basis of the petition of complaint, is at all maintainable or at all. 23. Be that as it may, the ld. Advocate for the petitioner has raised a preliminary point to the effect that the present case is not maintainable as no sanction was obtained for proceeding against the petitioner who is a public servant. According to him, the petitioner, being the Chief Manager of the Corporation Bank, which is a Government of India Undertaking, should be held to be a public servant and in absence of any sanction, the case cannot be proceeded with. 24. As against this, ld. Public Prosecutor argued that the bank officer cannot be considered to be a public servant within the meaning of section 21 of the Indian Penal Code and as such no sanction is necessary for proceeding against such official. 25. In support of his contention ld. Advocate for the petitioner cited decision reported in 2006 (1) SCC (Cri) 23, Centre for Public Interest Litigation & Anr. vs. Union of India. 26. As against this, ld. P.P. relied upon the decision reported in 1998 Cr. LJ 2826, Md. Hadi Raja vs. State of Bihar & Anr. 27. I have considered those two decisions. It appears that the decision reported in 2006 (1) SCC (Cri) 23 (supra) is not on the same point. So far as the decision reported in 1998 Cr. 26. As against this, ld. P.P. relied upon the decision reported in 1998 Cr. LJ 2826, Md. Hadi Raja vs. State of Bihar & Anr. 27. I have considered those two decisions. It appears that the decision reported in 2006 (1) SCC (Cri) 23 (supra) is not on the same point. So far as the decision reported in 1998 Cr. LJ 2826 (supra), it appears that the question of considering an officer of a Public Undertaking to be a public servant, was considered by the Honble Supreme Court and as such I think that this decision is very much applicable, so far as the present case is concerned. It appears that in the said decision the Honble Supreme Court clearly observed that "For the purpose of enforcing the fundamental rights, the Public Undertakings which, on account of deep and pervasive control, can be held to be a State within the meaning of Article 12 has been treated at per with the Government Department, but in all these facets, Public Undertaking has not been equated with the department run directly by the Government. Though through the contrivance of mechanism of corporate structure, some of the Public Undertakings are performing the function which are intended to be performed by the State, ex facie, such instrumentality or agency being a juridical person has an independent status and the action taken by them, however, important the same may be in the interest of the State cannot be held to be an action taken by or on behalf of the Government as such within the meaning of section 197 Cr.PC. Therefore, the protection by way of sanction under section 197 of the Cr.PC is not applicable to the officers of Government companies or the public undertakings even when such public undertakings are `State within the meaning of Article 12 of the Constitution on account of deep and pervasive control of the Government". 28. So in view of this decision, I have got no hesitation to hold that for prosecuting the petitioner, no sanction was necessary. 29. Ld. Advocate for the petitioner further argued by pointing out to the provisions of West Bengal Criminal Law Amendment to the effect that sanction is necessary for prosecuting the petitioner being a public servant. But in view of the decision as quoted above, I am of opinion that this argument of Mr. Basu, cannot be accepted. 30. Ld. 29. Ld. Advocate for the petitioner further argued by pointing out to the provisions of West Bengal Criminal Law Amendment to the effect that sanction is necessary for prosecuting the petitioner being a public servant. But in view of the decision as quoted above, I am of opinion that this argument of Mr. Basu, cannot be accepted. 30. Ld. Advocate for the petitioner further submitted that from the allegation, as made in the petition of complaint, it will appear that there is no question of any entrustment, as claimed by the complainant. According to him, section 409 pre-supposes entrustment of a property by a person in favour of another person. So far as present case is concerned, the complainants case is that his money was entrusted with the bank in question and it was misappropriated and as such the petitioner and others being the bank officials are liable to be prosecuted. But in the decision reported in AIR (37) 1950 Cal 57, Gopesh Chandra Pal vs. Mrinal Kumar Dasgupta, it has been clearly held by a ld. Single Judge of this Court to the effect "Section 409 pre-supposes entrustment. When a person opens a current account in a bank, there is no question of entrustment. The relationship between the bank and the customer is one of the creditor and debtor. Hence there can be no case against a bank or its officer for committing an offence under section 409 in respect of the money deposited by a customer". 31. In the said decision it has further been decided that in case of any such allegation of mis-appropriation, remedy lies in the Civil Court and not in the Criminal Court. I fully agree with the said observation of the ld. Single Judge. By opening a current account and by depositing money in the bank, it cannot be said that the `entrustment as envisaged in the Indian Penal Code was complete. There was only relationship of creditor and debtor amongst the complainant and the bank in question. If there is any such alleged mis-appropriation, then that matter can only be settled in a Civil Court by way of filing appropriate suit. Simply because the petitioner and others were the employees of the said bank, they cannot be held liable for the alleged mis-appropriation. If there is any such alleged mis-appropriation, then that matter can only be settled in a Civil Court by way of filing appropriate suit. Simply because the petitioner and others were the employees of the said bank, they cannot be held liable for the alleged mis-appropriation. Whether or not there was any mis-appropriation, as claimed by the complainant, can only be decided by a competent Civil Court having jurisdiction over the matter. In fact, if we look into the revisional application then it will appear that there it has been clearly claimed that the complainant has already filed a civil suit in the High Court and the bank authority also filed a petition before the Debts Recovery Tribunal, Calcutta, regarding the alleged dispute. It appears that the complainant has claimed that his money has been illegally debited from his account by the bank authority while on the other hand the bank has claimed that although the complainant received the gold TTB from the bank it did not make payment in that respect and thereby did not take any step for setting the account. So, there is a claim and counter-claim between the parties over the transaction in question and to my mind, this matter cannot be settled in a criminal trial. It requires for consideration of the evidence and documents to be produced by the parties before the Civil Court in coming to a proper adjudication. 32. Ld. P.P. argued that even if for argument sake, it is accepted that the dispute is civil in nature, then also there is no bar for a person to proceed in both the forums. Undoubtedly that is the settled position of law. But at the same time, the Honble Supreme Court in series of cases have decided that when the matter is absolutely civil in nature then the Civil Court is the only authority to settle the matter in between the parties. In this respect the decision reported in 2006 AIR SCW 3830, Indian Oil Corporation vs. NEPC India Limited & Ors., is very much relevant. In the said decision the Honble Supreme Court observed that "Any effort to settle civil disputes and claims, which do not involve any criminal offence, by applying pressure through criminal prosecution should be deprecated and discouraged." 33. In the said decision the Honble Supreme Court observed that "Any effort to settle civil disputes and claims, which do not involve any criminal offence, by applying pressure through criminal prosecution should be deprecated and discouraged." 33. I have no hesitation to my mind to hold that the dispute in between the parties is pure and simple civil in nature and it can only be settled in Civil Court and not before the Criminal Court. I have already pointed out that from the revisional application it appears that the parties have already approached the civil forums and this fact has not been denied by the opposite party/complainant. As such, it appears that the said dispute is very much in the appropriate forum and it is still pending for decision. If that is the position, then I have got no hesitation to hold that further continuance of the present proceeding will be absolutely an abuse of the process of the Court and it should not be allowed to proceed any further. In my considered opinion, if this criminal proceeding is allowed to be continued, then it will certainly cause unnecessary harassment to the petitioner and others. As such, I think that the ld. Special Judge was not at all justified in framing the charge against the petitioner and others and to my mind said order is liable to be set aside and the entire criminal proceeding should be quashed. 34. In the result, the revisional application succeeds on contest. The order dated 10.9.2003 passed by the 4th Special Court, Calcutta, in Special Case No.3 of 2003 is set aside. The entire criminal proceeding of Special Case No. 3 of 2003, as pending in the Court below, is quashed and the accused persons are discharged accordingly. Interim order, if any, stands vacated. 35. Send a copy of this judgement to the Court below immediately for information and taking necessary action. 36. Xerox certified copy, if applied for, be handed over to the parties on urgent basis. Revisional application succeeds.