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2008 DIGILAW 1262 (JHR)

Sunil Mittal v. State of Jharkhand

2008-11-14

R.R.PRASAD

body2008
JUDGMENT : By Court. The Criminal Revision No.627 of 2006 is directed against the order dated 20.02.2006, passed by the learned Sessions Judge, Hazaribagh in Cr. Revision No.174 of 2005, whereby learned Sessions Judge, Hazaribagh, set aside the order, passed by learned Judicial Magistrate, Hazaribagh in Complaint Case No.342 of 2005, dismissing the complaint under Section 203 Cr.P.C. and thereby, remanded the case before learned Magistrate for further inquiry. Thereupon, learned Magistrate vide its order dated 03.05.2006, took cognizance against the petitioner under Section 477A of the Indian Penal Code, which order is under challenge before this Court in Cr.M.P. No.1081 of 2006 and under these situations, both the cases were heard together and are being disposed of by the common order. The case of the complainant/Opp. Party No.2 is that he had taken loan from the ICICI Bank, for purchasing a vehicle and in order to make repayment of the loan, he had given 10 post dated cheques, each of Rs.1702/-in advance, drawn on Allahabad Bank, Hazaribagh Branch. In course of time, one of the cheques bearing No.953814, when was presented before the Allahabad Bank to which petitioner was the Senior Manager, at the relevant point of time, it was dishonoured, on the plea of ‘insufficient fund’ and thereby, Allahabad Bank debited Rs.50/-, as bouncing charge, though the complainant had had sufficient amount in his account and consequently, ICICI Bank also charged Rs.200/-and thus, it was alleged that the petitioner-Senior Manager of the Allahabad Bank has committed offence of criminal breach of trust. It further appears from the order dated 26.09.2005, under which the complaint was dismissed, that in course of inquiry, learned Judicial Magistrate had called for a report from the Bank concerned and in response to which the Senior Manager of the Allahabad Bank, had reported that the cheque got bounced by mistake but as soon as mistake detected, it was rectified by making payment to the drawee. Considering this aspect of the matter, it was held by the learned Magistrate that the act on the part of the official of the Bank, was never intentional to commit offence and thereby, complaint was dismissed under Section 203 of Cr.P.C. and it was observed that if the complainant is aggrieved by the act of the official of the Bank, he may agitate it under the provision of Consumer Protection Act. However, when the said order was challenged before learned Sessions Judge, Hazaribagh in Cr. Revision No.174 of 2005, order dismissing complaint, was set aside, on the ground that learned Magistrate was required to see as to whether offence as alleged is prima facie made out or not, but the learned Magistrate in stead of deciding the case from that angle, dismissed the complaint for agitating the matter under the Consumer Protection Act and hence, remanded the case for further inquiry. Thereupon, cognizance under Section 477A of the Indian Penal Code has been taken, which is under challenge in Cr.M.P. No.1081 of 2006. Thus, it is to be considered as to whether in the facts and circumstances, learned Magistrate is justified in taking cognizance of the offence under Section 477A of the Indian Penal Code against the petitioner? It has already been noted that at the stage of the inquiry, a report had been called for, by the learned Magistrate, whereupon, it was reported that the cheque was dishonoured by mistake and when the mistake was detected, it was rectified by making payment to the complainant of Rs.50/-, which amount had earlier been deducted on account of bouncing charge. Under this situation, it can be said that the act of the official of the Bank, was never intentional to defraud the complainant. Here it would be relevant to take notice of Section 477A of the Indian Penal Code, which reads as follows:-“Whoever, being a clerk, officer or servant, or employed or acting in the capacity of a clerk, officer or servant, willfully, and with intent to defraud, destroys, alters, mutilates or falsifies any book, electronic record, paper, writing, valuable security or account which belongs to or is in the possession on his employer, or has been received by him for or on behalf of his employer, or willfully, and with intent to defraud, makes or abets the making of any false entry in, or omits or alters or abets the omission or alteration of any material particular from or in, any such book, electronic record, paper, writing, valuable security or account, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both. From its reading, it is quite apparent that in order to attract offence under Section 477A of the Indian Penal Code, there should be intention to defraud by destroying, altering or falsifying any record, but here in the instant case, there does not appear to be any intention on the part of the official of the Bank to defraud the complainant, as it had been reported to the Magistrate that by mistake, cheque had been dishonoured. In that view of the matter, order dated 03.05.2006, passed in Complaint Case No.342 of 2005, taking cognizance of the offence under Section 477A of the Indian Penal Code against the petitioner suffers from illegality and is unsustainable in the eye of law and hence it is set aside. Since, the order dated 03.05.2006 has been set aside, no order needs to be passed in Cr. Revision No.627 of 2006. Accordingly, Cr. Revision No.627 of 2006 is disposed of whereas Cr.M.P. No.1081 of 2006 is, hereby, allowed.