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Calcutta High Court · body

2009 DIGILAW 919 (CAL)

Axis Bank v. STATE OF WEST BENGAL

2009-12-18

PARTHA SAKHA DATTA

body2009
Judgment :- (1.) By this application dated 3rd December, 2008 prayer has been made by the nine petitioners who are accused persons in connection with G. R. Case No. 1170 of 2007 corresponding to Sheakespeare Sarani P.S. Case No.124 dated 24.5.2007 under Sections 120B/403/406/409/418/468/471/ 477 of the Indian Penal Code now pending before the learned Chief Judicial Magistrate, Calcutta for quashing of the proceedings on certain grounds which shall appear in the body of the judgment. Of the nine petitioners the first petitioner is the Axis Bank Ltd. (formerly UTI), while the rest eight are its officials. (2.) The opposite party No.2 Sushil Mehra filed a petition under Section 156(3) of the Cr. P. C. before the learned Chief Metropolitan Magistrate, Calcutta against the petitioners alleging the following facts: (3.) One Naurang Rai Lohia executed a will bequeathing his FCNR(B) fixed deposits to the tune of U$ 37,45,220.59 in favour of N. R. Lohia Charitable Trust and Kesori Devi Naurang Rat Lohia Foundation (for short, the Trust and the Foundation) which are managed by the complainant and seven other trustees for the purpose of carrying out the charitable activities as per the objectives of the trust deeds. The probate of the will was obtained from the High Court, Calcutta on 8th September, 2003 and the amount goes to approximately Rs. 66,70 crores in Indian Currency. The trustees were entitled to receive the said sum from the UTI Bank on, 12th September, 1996. The late N. R. Lohia, a non-resident Indian entrusted in his NRE Account an amount of Rs. 7,83,88,779/- in favour of the UTI Bank Limited having its office at "Lords", 7/1, Lord Sinha Road, Calcutta-700 071 and instructed the bank to make sixteen fixed deposits for a period of thirty-six months and accordingly the officers of the Bank who are the other accused persons made NRE fixed deposits to the tune of Rs.7,83,88,779/-which would fetch upon the maturity a total sum of Rs.13,48,58,895/-. Mr. Lohias sons Anil Prakash Lohia,Ajoy Prokash Lohia and Pawan Kr. Lohia were having current accounts of their companies named Woolworth (India) Limited, now called Unitworth Limited, having its business premises at 70/1 Sheakespeare Sarani, Calcutta-17 and Texprint Overseas Limited having its business premises at 11/1 Sarojini Naidu Sarani, Calcutta17 and some other accounts with the UTI but not to the knowledge of N.R. Lohia. Lohia were having current accounts of their companies named Woolworth (India) Limited, now called Unitworth Limited, having its business premises at 70/1 Sheakespeare Sarani, Calcutta-17 and Texprint Overseas Limited having its business premises at 11/1 Sarojini Naidu Sarani, Calcutta17 and some other accounts with the UTI but not to the knowledge of N.R. Lohia. On 10th September, 1999 and 12th September, 1999 the said NRE fixed deposits got matured and one Mr. S. Khandelwal of Woolworth (India) Limited and the accused Nos.2 and 3, the officers of the bank approached Mr. N.R. Lohia to keep his funds with them. N.R. Lohia expressed his desire to convert the maturity value of U$ 37,45,220.59 to FCNR(B); accordingly the accused Nos.2 after obtaining his signatures on certain printed forms in the presence of the complainant and other officers of Unitworth Limited converted the said NRE fixed deposits after discharge to the FCNR(B) to the tune of the said U$ 37,45,00220.59. Now the maturity value would come to U$ 39,56,758/-. The deposit receipts issued by the bank bore a specific mention therein that they were not transferable or negotiable and value was repayable to self on maturity. The late N. R. Lohia had expressed his desire to get the fund back in his overseas account on maturity. He gave accused No.2 the some overseas account number and the accused Nos. 2 and 3 assured him accordingly of transfer of the fund upon maturity as instructed by him. Further, the accused Nos. 2 and 3 did not hand over the original FCNR(B) receipts to late N.R. Lohia despite repeated requests made on 12.9.1999 by N. R. Lohia himself on the pretext that some more papers were required to be signed with regard to Banks Adhoc. Export Packing Credit Limited of Rs.10 crores granted to Woolworth (India) Limited, (now Uniworth Limited) on 25th April, 1998 for six months. Mr. Khandenwal and Mr. Export Packing Credit Limited of Rs.10 crores granted to Woolworth (India) Limited, (now Uniworth Limited) on 25th April, 1998 for six months. Mr. Khandenwal and Mr. S.K. Chowdhury the accused No. 2 who is the Senior Vice President of UTI Bank Limited further said that the said amount of Rs.10 crores had been paid off but the formality of signing the papers were not completed by Woolworth India Limited of recording pledgment of old NRE fixed deposits as per terms of sanction dated 25.4.1998 N.R. Lohia protested as he never consented to the pledgement for grant of any such credit facility of Rs.10 crores against his NRE fixed deposits, nor gave any consent verbally or in writing for giving such credit of Rs. 10 crores, but since the Uniworth Limited confirmed by giving details of payments and the said accused No.1 (bank) also confirmed that the said credit of Rs. 10 crores was paid off there was no justification for accused Nos. 1 and 2 to withhold the original FCNR(B) fixed deposit receipts with them to the tune of Rs. U$ 37,45,220.59 which got matured already. The accused No. 2 told Mr. N.R. Lohia and the complainant that Texprint Overseas Limited which is the company of Pawan Kr. Lohia son of Mr. N.R. Lohia had already been granted facility of bank guarantee to the tune of Rs. 6.58 crores. Thus the signing of a letter and agreement of pledgment of FCNR{B) for the amount of Rs. 10 crores Adhoc Export Packing Credit of Woolworth (India) Limited and bank guarantee of Rs. 6.58 crores for Texprint Overseas Limited and keeping funds of FCNR(B) upto 12.9,1999 was necessary. He assured to release the original FCNR fixed deposit receipts as soon as N.R. Lohia would sign a letter in respect of Rs. 10 crores Adhoc Export Packing Credit for M/s. Woolwith and of Rs. 6.58 crores on account of Texprint Overseas Limited bank guarantee of Rs. 6.58 crores securing the said amount called pledgment agreement. Mr. Khandenwal and the accused No. 2 approached N. R. Lohia for his signature on the required papers with regard to the said amounts only for the purpose of completion of the record and told him that it was merely a formality and gave inducement that he would release the original FCNR(B) receipts to late N. R. Lohia forthwith on signing the document. Under the said inducement and representation to the effect that the original receipts would be delivered,. the said N. R. Lohia and the complainant avoided conflict with the bank and its officers regarding grant of the facilities awarded without his consent which were later paid off and trusted them that they would deliver the fixed deposit receipts of the said U$ 37,45,220.59 as per the assurance given. Thus, N. R. Lohia signed undated letter over the credit facility of Rs.10 crores for Woolworth and bank guarantee of Rs. 6.58 crores of Texprint Overseas Limited and signed the papers prepared by the accused No.2 relating to those amounts as pledge agreement for securing the said amounts only. On such undated letter the amount of FCNR{B) of the said U$ 37,45,220.59 Was mentioned for pledgment of the fixed deposit. The accused bank after obtaining the papers handed over the FCNR(B) receipt No. 455373 for U$ 13,31,038.44 (rupees 6 crores approximately in Indian Currency) to N. R. Lohia in the presence of the complainant. The accused persons promised that they would release all the balance FCNR(B) fixed deposit receipts to the tune of U$ 24,14,182.15 held by them. Complainant repeatedly approached them for delivery of the bank deposit receipts but the accused persons went on gaining time. Further, for a certain period of time the accused No. 2 started insisting on Mr. Ajoy Prokash Lohia to meet the other accused persons for his accounts and started threatening N.R. Lohia and the complainant that they would not release the FCNR(B) receipts on maturity if Mr. Lohia would not compel Uniworth Limited to pay the entire dues of all accounts. The Uniworth Limited gave details of 37 number of invoices valued at Rs.10 crores for which they had availed themselves of Adhoc Export Packing Credit facility accorded to them under sanction letter dated 25.4.1998. They also provided a copy of the banks statement of accused No. 1 confirming that the amounts of Rs. 10 crores had been repaid to the accused No. 1 with interest. This fact was confirmed by the accused Nos. 2 to 7 to the effect that the banks statements were correct. Thus, there was no justification for withholding the original FCNR(B) fixed deposit receipts. 10 crores had been repaid to the accused No. 1 with interest. This fact was confirmed by the accused Nos. 2 to 7 to the effect that the banks statements were correct. Thus, there was no justification for withholding the original FCNR(B) fixed deposit receipts. In the second week of April, 2000 the Uniworth Limited informed the complainant that accused No.1 and its officers have given them short notice of few hours for deposit Rs. 8.20 crores in the current account of their company and thereafter the bank had adjusted the proceeds of FCNR(B) fixed deposits of N.R. Lohia to the realisation of the said Rs. 8.20 crores against overdraft in their current account. Despite the protest of appropriation in the account of the Uniworth Ltd., by the said Uniworth Ltd. Officers in writing the accused Nos, 2 to 7 dishonestly removed the accounts of FCNR(B) to the extent of Rs.8.20 crores belonging to N. R. Lohia and dishonestly credit was given to Uniworth Limited but the amounts were removed for their own use and advantage. This was protested by Ajoy Prokash Lohia also. Since personal guarantee was furnished by Ajoy Prokash Lohia and assets of the company were available the accused persons had no right to stretch their hands on the FCNR(B) fixed deposits belonging to N. R. Lohia. The Uniworth Limited communicated to the bank in writing that the said appropriation of the amount of Rs. 8.20 crores belonging to N.R. Lohia in their current accounts towards overdraft was not correct but the bank did not pay any heed and maintained that this was done so that the account does not become NP A (non-performing asset). N.R. Lohia by letter dated 19.4.2000 requested the bank to give premature encashment of U$ 13,31,038.44/- (rupees 6 crores in Indian Currency) pertaining to FCNR(B) deposit receipt No.27109 (455373). The bank refused to remit any amount in respect of the said FCNR(B) deposit on the ground that the bank had lien for the facility availed of by both Uniworth Limited and Texprint Overseas Limited as per the letter dated 12.10.1999. On 19.4.2000 the liabilities covered by the letter which was stamped on 12,10.1999 dishonestly were fully paid off and nothing was due but the bank mentioned that the account of Uniworth Limited was irregular and they had right to apply the proceeds towards the arrear of Uniworth Limited. On 19.4.2000 the liabilities covered by the letter which was stamped on 12,10.1999 dishonestly were fully paid off and nothing was due but the bank mentioned that the account of Uniworth Limited was irregular and they had right to apply the proceeds towards the arrear of Uniworth Limited. N. R. Lohia complained that the undated letter given to the accused No.2 was dishonestly stamped as a letter dated 12.10.1999 and the related pledge agreement was dishonestly stamped as dated 12.10.1999 which was given only with regard to Adhoc Export Packing Credit of Rs.10 crores bank guarantee to Uniworth Limited on 25.4.1998 and the bank guarantee of Rs. 6.58 crores to Texprint Overseas Limited. Unitworth Limited on 30.3,1998 had demanded regular export packing credit Limited of Rs.10 crores but the UTI Bank Limited disbursed the amount of Rs.10 crores only on 31.3.1998 even without any formal sanction or condition of repayment of the said facility of the amount disbursed by the accused persons. The accused persons on 25.4.1998 issued a formal sanction for the said amount whereby they had subsequently granted only Adhoc Export Packing Credit of Rs.10 crores for a period of six months as is revealed from the documents. The original NRE fixed deposits to the tune of Rs.13,48,58,895/-maturity value which was held by the banks officers were handed over to the accused persons through the authorised signatories of Woolwoth India Limited on 31.3.1998 . It was given only for a period of six months for the said amount of Rs.10 crores Adhoc Export Credit as would be revealed from the correspondences. Despite the fact that entire amount of Rs. 10 crores Adhoc Export Packing Credit stood paid off with interest the Bank did not release the NRE fixed deposits to Uniworth Limited and still went on threatening them that the profits on maturity will be appropriated against outstanding dues of Uniworth Limited if they would not pay the dues in the current account and other various accounts. This was not known to N.R. Lohia and the complainant or to the officers of the Woolworth India Limited. There Was no liability on account of Texprint Overseas Limited in April, 2000 for bank guarantee given by the accused persons to the extent of Rs. 6.58 crores and the bank guarantee was discharged in January, 2000. In spite of the bank having confirmed payment of Rs. There Was no liability on account of Texprint Overseas Limited in April, 2000 for bank guarantee given by the accused persons to the extent of Rs. 6.58 crores and the bank guarantee was discharged in January, 2000. In spite of the bank having confirmed payment of Rs. 10 crores they in their letter dated 24.4.2000 made false statement referring to the letter dated 12.10.1999 that it was placed on lien for these facilities and claimed dishonestly that since the account of Uniworth Limited was irregular and payment was in arrears they had right to retain the amount and apply the profits. The bank falsely alleged that the FCNR fixed deposit No. 455373 to the tune of US 13,31,038.44 was handed over to N.R. Lohia in good faith and then he threatened to take action against the bank. N.R. Lohia by his letter dated 8.5.2000 clearly stated that the appropriation of Rs. 8.20 crores from his FCNR(B) deposit in the account of Uniworth Limited amounted to criminal breach of trust and criminal mis-appropriation . The FCNR(B) deposits worth crores of rupees were entrusted to the accused persons in the capacity as Bankers with accountability as per the norms of the Trust to be discharged as bankers but the accused Nos. 2, 3 and 10 indulged in various manipulations at their end and sent letter bearing No.CR/DKG/1142 dated 10.05.2000 through UTI Bank Ltd., Central Office , Mumbai at Maker Tower, 13th Floor, Cuffe Parade, Mumbai under the signature of accused No.10 Mr. D. Rao, Senior Vice President (credit) to Late Mr. N. R. Lohia. By this letter they replied to the letter dated 8th May, 2000 of Late N, R. Lohia and claimed that the letter dated 12.10.1999 and the pledge agreement authorised them to adjust FCNR(B) Fixed Deposit in case of any irregularity in loan account of the company and that the tone of the letter issued by late N .R. Lohia was distressing. The officers of bank it their Central Office, Mumbai falsely alleged that they have lent certain sum of money to the captioned company on the specific request of Late N. R. Lohia. The officers of bank it their Central Office, Mumbai falsely alleged that they have lent certain sum of money to the captioned company on the specific request of Late N. R. Lohia. The accused bank through its officers fraudulently obtained signature of Late N. R. Lohia on undated letter and undated pledge agreement for amounts granted by them of their own, misrepresenting to Late N. R. Lohia and the complainant as well as to other officers of Uniworth Ltd. that it was with regard to limited amount of Rs.10 crores Adhoc Export Packing Credit and Rs. 6.58 crores Bank Guarantee of Texprint Overseas Ltd. as mentioned in a letter signed by N.R. Lohia alongwith the pledge agreement which was subsequently fraudulently stamped by the Bank officers as of 12.10.1999 with ulterior motive to dishonestly use the said agreement for settling their entire account with Unitworth Ltd. It was clear now from the entire conduct of the bank and its said officials accused Nos. 2 to 7 and 10 that on 12.09.1999 the accused persons issued the said FCNR(B) receipts of U$ 37,45,220.59 of the maturity value credited to him with dishonest plans and intentions in their mind. They had dishonest intention not to pay the said FCNR (B) value of U$ 37,45,220.59 right from the beginning of issuing the said FCNR (B) Fixed Deposits which were issued only wrongfully and dishonestly misrepresenting to Late N. R. Lohia that the maturity amounts had been credited to his NRE Fixed deposits and shall be paid in Foreign Currency on maturity dates of FCNR(B), but the accused persons, as is evident from their conduct, dishonestly did not part with the original FCNR(B) receipts to Late N. R. Lohia on 12.09.1999 or thereafter and soon after preparing these 26 number of FCNR (B) receipts and providing photo copies to the complainant started insisting on signing the papers as mentioned above for Rs. 10 crores Adhoc Export Packing Credit granted to Uniworth Ltd. and Bank Guarantee of Texprint Overseas Ltd. worth RS.6.58 crores on the ground that it was mere formality. 10 crores Adhoc Export Packing Credit granted to Uniworth Ltd. and Bank Guarantee of Texprint Overseas Ltd. worth RS.6.58 crores on the ground that it was mere formality. The Accused No.2 in criminal conspiracy with other accused persons fraudulently obtained undated letter, later dishonestly stamped it as dated 12.10.1999 along with pledge agreement and other papers also dishonestly stamped dated 12.10.1999 mentioning the said FCNR(B) to the tune of US $ 37,45,220.59 as pledged for other amounts then indicated in the said undated letter which only pertains to Rs.10 crores Adhoc Export Packing Credit of Uniworth Ltd. and Bank Guarantee of Rs. 6.58 crores of Texprint Overseas Ltd. The said letter clearly speaks that the FCNR(B) of US $ 37,45,220.59 were specifically intended to be under the lien of the Bank only for the said two amounts of Rs,10 crores Adhoc Export Packing Credit of Uniworth Ltd. and particularly the Bank Guarantee of Rs.6.58 crores of Texprint Overseas Ltd. which was to be discharged in January, 2000. But as is now revealed from the false documents i.e. pledge agreement that the accused persons dishonestly mentioned general facilities given to Uniworth Ltd. for which late N.R. Lohia had no reasons to pledge his FCNR(B) nor he was under any legal obligation to keep the account of Uniworth Ltd. regular as demanded by Bank. The letter clearly discloses the limited liability of Rs.10 crores Adhoc Export Packing Credit and Texprint Overseas Ltd. Bank Guarantee of Rs.6.58 crores which was to be covered by the said FCNR(B) to file tune of US $ 37,45,220.59 and other amount could not be adjusted. The Trusts has been provided a Certificate of the Chartered Accountant that the entire payment of Rs. 10 crores Adhoc Export Packing Credit had been made by Uniworth Ltd. till 23.09.2000 and Texprint Overseas Ltd. Bank Guarantee has been discharged in January, 2000. The Accused No.1 viz. UTI Bank Ltd. therefore dishonestly kept the original FCNR(B) with them after issuing the same on 12.09.1999 and kept on insisting Late N. R. Lohia to sign the said undated letter and connected pledge agreement which the Late N. R. Lohia would not have signed if the accused persons would have parted with the original FCNR(B) issued by them on 12,09.2000. The persons would not have indulged into illegal acts of withholding the said 25 Nos. The persons would not have indulged into illegal acts of withholding the said 25 Nos. FCNR(B) instruments issued by them to Late N. R. Lohia and only one original FCNR(B) receipt No.455373 was handed over to the tune of US$ 13,31,038.44. The accused persons also dishonestly. denied handing over of the said receipt to Late N. R. Lohia and threatened that the same should be returned back.......The accused persons also interestingly took a stand that Late N R. Lohia was holding the said FCNR(B) receipt in Trust for them. The said conduct of the accused Bank officials speaks how they had dealt with dishonestly with the amounts of USS13.31,038.44 approximately Rs. 6 crores) entrusted to them and appropriated the same for their own use and advantage. They are using said funds after misappropriation of Non-Resident Indian Late N. R. conia entrusted to them as Banker since 12th September, 1999 and similarly the other amount of US $24,14,182.15 entrusted to the accused persons pertaining to the above mentioned 25 FCNR(B) numbers had been dishonestly appropriated by the accused persons for their own use by illegal removal of the said funds in April, 2000 on strength of the said false and fabricated documents and forgery committed by them for the purpose of cheating and taking out the funds of the said FCNR(B) in their hands as bankers which they failed to do earlier in respect of NRE fixed deposits as there was no documents in their hands of Late N. R. Lohia on the strength of which they could lay hand on the said amounts belonging to Late N.R. Lohia, The correspondence between the parties shall reveal how they were dealing with transactions of crores of rupees. Thus by financial jugglery and manipulation and falsification of accounts done by the said Bank and its officials named Accused Nos. 2 to 7 and 10 have fraudulently obtained said substantial Foreign Exchange of US $ 37,45,220.59 from the account of Late N. R. Lohia. (4.) Thus, the accused persons are alleged to have committed offences under Sections 120B/403/409/406/418/468/471/477A Indian Penal Code. (5.) The application under Section 156(3) of the Cr.P. C. was sent by the learned Chief Metropolitan Magistrate, Calcutta to the Sheakespeare Sarani P.S. for registration of a case. The police station registered the case being Case No.124 dated 24.5.2007 against the accused persons under the aforesaid sections of the law. (5.) The application under Section 156(3) of the Cr.P. C. was sent by the learned Chief Metropolitan Magistrate, Calcutta to the Sheakespeare Sarani P.S. for registration of a case. The police station registered the case being Case No.124 dated 24.5.2007 against the accused persons under the aforesaid sections of the law. (6.) Axis Bank Limited (formerly known as UTI Bank Limited) and its eight offices have filed this revisional application under Section 401 read with Section 482 of the Cr.P.C. for quashing of the proceeding. The petitioners have come up with certain facts which so far as they are not disputed by the opposite party No.2 may only be considered. Prior to April, 1997 the Bank extended certain banking facilities to Uniworth Limited including the short term loan of Rs. 6 crores, On 10th May, 1997 the bank extended the banking facilities to the UWL with limit of Rs.15.13 crores. On 30th March, 1998 UWL applied for Adhoc Export Packing Credit Limit and the bank agreed to extend the same with a limit of Rs, 10 crores and bank disbursed the said sum of Rs.10 crores to UWL on 31 st March, 1998. The sanctioning of the said loan of Rs.10 crores in favour of UWL for Adhoc Export Packing Credit Facility together the earlier Export Packing Credit facility of Rs. 3.90 crores was on condition that a lien would be created on all the NRE deposits of Rs. 15.30 crores held by the Lohia family who were in-charge of and in control of the affairs of UWL at all material time N. R. Lohia agreed thereto. On 12th September, 1999 UWL towards the security of various credit facilities pledged NRE term deposits of N. R. Lohia with the bank and handed over the same to the bank except one bearing No. 455373 dated 12.9.1999 which was given to N. R. Lohia in trust that he would return the same. On maturity of the NRE deposits the maturity value was renewed by N.R. Lohia by converting the same to U$ and the same was then turned as FCNR(B) deposits. Thus, the securities credited on the above FCNR(B) terms deposits came to be for U$ 37,45,220.59. On 12th October, 1999 Mr. Lohia created a pledge of the above FCNR(B) deposits for U$ 37, 45, 220.59 in favour of the bank by executing pledge letter and other documents. But Mr. Thus, the securities credited on the above FCNR(B) terms deposits came to be for U$ 37,45,220.59. On 12th October, 1999 Mr. Lohia created a pledge of the above FCNR(B) deposits for U$ 37, 45, 220.59 in favour of the bank by executing pledge letter and other documents. But Mr. Lohia did not deliver one deposit being No,455373 dated 12.9.1999. As UWL failed to regularise the account the bank by its letter dated 13.4.2000 requested UWL to deposit Rs. 8.20 crores and in default the NRE term deposits of N. R. Lohia would be encashed and adjusted against the dues of UWL. On 19.4.2000 N. R. Lohia applied to the bank for encashment of the fixed deposit receipt No.455373 dated 12.9.1999 on account of some urgent requirement but the request could not be complied with because of the pledgment of the deposit receipt with the bank towards the liquidation of dues that remained outstanding against the UWL, although the only single deposit receipt was in the possession of Mr. Lohia. N. R. Lohia held the receipt, in fact, in trust for the petitioner. Thus, securities were placed of the above FCNR(B) term deposit of U$ 37,45,220.59. On 24.4.2000 on failure of the UWL to pay the outstanding amount the pledged FDRs for Rs. 8.20 crores were encashed and a sum of Rs.1,75,51,480/- was adjusted against the default mutual LC and a sum of Rs.6,44,48,520 was credited to overdrawn account of Uniworth Limited. Mr. Lohia being aware of the encashment of the FDRs to the tune of Rs.8.20 crores asked the bank on 8.5.2000 to revert the dues but the bank by reply dated 10.5.2000 made the position very clear. Then as the account of the UWL became irregular the Bank demanded payment of Rs.19.89 crores forthwith and it was made clear that in default of payment FDR should be encashed. On the said date the FDRs for Rs.9,28,020.70, inclusive of FDR No. 455373 dated 12.9.1999 for U$ 13,31,038.44, was encashed and the proceeds thereof were adjusted by crediting in the account of UWL, and even thereafter there still remained a sum of Rs.11,70,21,971/-for payment. This was intimated to UWL and Mr. Lohia by two separate letters on 12.9.2000. On that day Mr, Lohia lodged a complaint with the O.C., Sheakespeare Sarani alleging illegal encashment of FDR No. 455373 dated 12.9.2000. Mr. This was intimated to UWL and Mr. Lohia by two separate letters on 12.9.2000. On that day Mr, Lohia lodged a complaint with the O.C., Sheakespeare Sarani alleging illegal encashment of FDR No. 455373 dated 12.9.2000. Mr. Lohia then instituted a suit being C.S. No. 398 of 2000 in this Court against the bank , UWL and Texprint Overseas Limited praying for return of FCNR (B) deposit receipt valued at U$ 24,24,182.15 and for other reliefs. The bank also filed a written statement. The suit is pending. The bank also filed a case being O. A. No. 95 of 2001 before the Debt Recovery Tribunal against UWL for recovery of its due amounting to Rs. 12,01,79,397/-after adjustment of the amounts of the FDR of Mr. Lohia encashed by the bank. Now Mr. Lohia died on 4th February, 2001 leaving a will appointing one Mr. Shyam Sundar Gindoria as executor who applied for substitution in the suit before this Court which was allowed by an order dated 3rd May, 2001. Then sons of N.R. Lohia and certain other persons claiming to be the trustees of the trust applied for substitution in place of Shyam Sundar Girdoria which was allowed by the order dated 3rd April, 2004. On 21st February, 2005 the trustees moved an application for judgment upon admission for Rs. 16,37,41,044.19. The bank filed objection. Then on 18.5.2007 this FIR was registered via Section 156(3) Cr, P. C. (7.) It is contended in the revisional application that ex facie the FIR is a mala fide one because the encashment of the pledged securities by the bank in exercise of its right under the contract of pledge upon failure on the part of its constituents to regularize the account does not amount to an offence. The banker is entitled to call for money due from the customer and in the event of their failure to pay was entitled to encash the securities the total value of which was U$ 37,45,220.59 covering 26 fixed deposit receipts which included the receipt No.455373 amounting to U$ 13,31,038.44 which Mr. Lohia kept with him in trust for the bank. Thus, the encashment of the FDRs because of failure to pay by the constituent is not in violation of any direction of law and thus does not constitute any offence of criminal breach of trust. The dispute purely is a money claim and civil in nature. Lohia kept with him in trust for the bank. Thus, the encashment of the FDRs because of failure to pay by the constituent is not in violation of any direction of law and thus does not constitute any offence of criminal breach of trust. The dispute purely is a money claim and civil in nature. (8.) The opposite party de facto complainant filed an affidavit-in-opposition challenging the narrative of the revisional application. It has been contended, inter alia that the original NRE fixed deposit receipts were in the hands of the officers of the UWL and they were kept with them for safe custody with a view to receiving its proceeds upon maturity. The deposits were free from encumbrances and Mr. Lohia was never informed by the bank of any liability relating to the fixed deposits, nor the officers of the UWL did disclose anything, Mr. N. R. Lohia expressed his desire to convert the maturity value of U$ 37,45, 220.59 to FCNR(B) and accordingly the accused No.2 Mr. S. K. Chowdhury after obtaining signature of Mr. Lohia on certain printed forms in the presence of the complainant and in the presence of the officers of the UWL allowed such conversion. The deposit receipts bore a specific mention on them that they were not encashable. Despite request made by N. R. Lohia the accused Nos. 2 and 3 did not hand over the original FCNR(B) deposit receipts and made representation that some more papers were required to be signed with regard to banks Adhoc Export Packing Credit Limited of Rs. 10 crores which were paid off as was represented to Mr. Lohia by UWL and Mr. S. K. Chowdhury of the bank, but the formality of signing the papers were not said to had been completed by UWL by recording pledgment of old NRE FDRs. Mr. Lohia protested to the said conduct of the accused No. 2 as he never consented to the banker for grant of any such Adhoc Export Packing Credit facilities of Rs. 10 crores against his NRE deposits. Even then as UWL confirmed by giving details of payments that the said sum of Rs. 10 crores were paid off there was no justification for the bank and his officers accused No. 2 to withhold the original FCNR (B) receipts to the tune of Rs. U$ 37,45,220.89. 10 crores against his NRE deposits. Even then as UWL confirmed by giving details of payments that the said sum of Rs. 10 crores were paid off there was no justification for the bank and his officers accused No. 2 to withhold the original FCNR (B) receipts to the tune of Rs. U$ 37,45,220.89. Then the affidavit-in-opposition went on narrating again the allegation of facts pleaded in the lengthy FIR which it is not necessary to reproduce further. Institution of the civil suit by N.R. Lohia and subsequent developments relating to the civil suit are not denied. (9.) The question, therefore, is whether the Court should exercise its jurisdiction under Section 482 of the Cr. P. C. for quashing the criminal proceeding. At the very outset the point taken by Mr. Sudipto Moitra, learned Advocate appearing for the de facto complainant has to be addressed. This is how far and whether this Court may consider the documents annexed to the revisional application, as according to Mr. Moitra, the documents which are annexed to the revisional application, and supplementary affidavit cannot be relied on and the Court can only peruse the lengthy FIR and then decipher as to whether the FIR does disclose commission of a cognizable offence. Mr. Moitra submits that the longish FIR does not but give an appearance of a cognizable offence of cheating and other allied offences which are triable by a Magistrate only when charge-sheet is submitted. (10.) Mr. Pradip Kumar Ghosh, learned Senior Advocate appearing for the petitioners submitted that certain documents which are impeachable and are the documents of the complainant himself and which were filed before this Court in connection with the civil suit in ordinary original jurisdiction of this Court must be referred to so as to appreciate as to what stand was really taken by the complainant as plaintiff in the civil suit. Since the plaint of a suit is a public document and the documents annexed to the plaint were the documents furnished by the plaintiff-complainant himself the Court must consider the said documents; further N.R. Lohia when he was alive admittedly lodged a first complaint with the Officer-in-Charge, Sheakespeare Sarani and the said complaint which is admitted in the affidavit-in-opposition and is not the document of the accused persons would reveal how there has been suppression of material facts in the FIR of the present case. It is submitted that the petitioners intended to rely upon these documents to say that the complainant has not come with clean hands. Mr. Ghosh relied on the decision in Zandu Pharmaceutical Works Limited v. Md. Sharaful Haque and Ann, reported in 2005 SCC (Cri) 283. Mr. Ghosh further referred to the decision in Suneet Gupta v. Anil Triloknath Sharma and Ors., reported in 2008 (11) SCC 670 where the Supreme Court found that a civil dispute pure and simple has been converted into a criminal case with oblique motive and for extraneous purpose. Now with respect to the question whether or how far the Court should in exercise of its jurisdiction under Section 482 of the Cr. P.C. may take into consideration the admitted documents reference may be had to the decision in All Cargo Movers v. Dhanesh Badarmal Jain andAnr., reported in AIR 2008 SC 247 . In this decision Their Lordships of the Supreme Court observed at Paragraph-16 of the judgment as follows: "It is one thing to say that the Court at this juncture would not consider the defence of the accused but it is another thing to say that for exercising the inherent jurisdiction of this Court, its impermissible also to look to the admitted documents". (11.) In the decision in M. Saravana Porselvi v. A. R. Chandrasekhar and Ors., reported in 2008 (11) SCC 520 , it has been observed as follows:-"If even for exercising its jurisdiction under Section 482 of the Code of Criminal Procedure, the High Court has taken into consideration an admitted document, we do not see any legal infirmity therein." (12.) Again, there is a decision of the Supreme Court in Rukmini Narvekar v. Vijaya Satardekar and Ors., 2008 (14) SCC 1 . The Supreme Court held as follows:- "Thus, in our opinion, which it is true that ordinarily defence material cannot be looked into by the Court while framing of the charge in view of the decision of D.N. Padhis Case, there may be some very rare and exceptional cases where some defence material when shown to the trial Court would convincingly demonstrate that the prosecution version is totally absurd or preposterous and in such very rare cases the defence material can be looked into by the Court at the time of framing of the charge or taking cognizance." (13.) It is contended by Mr. Ghosh that if the defence document can be considered by the trial Court at the time of framing of charge or taking cognizance of offence the High Court can surely do it for exercising the power under Section 482 of the Cr. P. C. so as to see whether the prosecution case is inherently improbable in terms of the guidelines laid down in State of Haryana v. Bhajanlal, reported in AIR 1992 SC 604 . Therefore, certain documents , namely the plaint of C. S. Case No. 398 of 2000 filed by the N. R. Lohia himself before the High Court on 26th September, 2000 and the documents annexed thereto, a copy of the complaint lodged by N. R. Lohia himself with the O.C., Sheakespeare Sarani may be considered in order to find out how far there has been any deviation in the stand of the complainant in the instant criminal case from those taken in the civil suit and in the FIR lodged by N. R. Lohia on 12.9.2000 before the O. C, Sheakespeare Sarani. (14.) Now, the primary ingredients of the offence of criminal breach of trust are, (a) entrustment of property by the aggrieved to the accused, (b) subsequent misappropriation of the same by the accused; unless these two ingredients are satisfied prima facie an offence of criminal breach of trust cannot be said to have been constituted. In an offence of cheating there has to be firstly false and fraudulent representation made by the accused to the aggrieved, delivery of the property by the complainant to the accused and then subsequent misappropriation of the same by the accused. Thus, in. order to constitute an offence of cheating the accused has to represent falsely and fraudulently so that the complainant might be induced to act in a manner which he would not have acted but for such inducement. This inducement must precede the delivery of the property in favour of the accused. Secondly, in order to constitute an offence of cheating it has to be established that at the very inception of the transaction the accused had guilty mind, a mens rea. Existence of guilty mind at the very inception of the transaction, must be there which can only be understood from the facts and circumstances of the case. Secondly, in order to constitute an offence of cheating it has to be established that at the very inception of the transaction the accused had guilty mind, a mens rea. Existence of guilty mind at the very inception of the transaction, must be there which can only be understood from the facts and circumstances of the case. Subsequent withholding of the promise pursuant to which the complainant has acted may constitute a breach of promise which is distinguishable from an act of cheating. Now, so far as the offences punishable under Sections 488/ 471 of the I.P.C. are concerned it has to be established that the signature appearing in the name of the complainant, here N. R. Lohia was not the signature of N. R. Lohia since deceased. (15.) Having outlined the parameters of the law let me proceed to consider whether the instant criminal proceeding can be allowed to be proceeded with or not. (16.) Mr. Ghosh submitted that Uniworth Limited which was one of Mr. Lohia Company having failed to regularise the account by repayment of loan. the bank demanded deposit of Rs. 8,20 crores and gave notice that if the default continued FCNR(B) deposits to that extent would be encashed and adjusted towards the claim of the bank. Neither the Unitworth nor Mr. Lohia repaid the amount and the bank had to encash part of the pledged FDRs on 24.4.2000 to the extent of 8.20 crores. Mr. Lohia by his letter dated 8.10.2000 asked the bank to reverse such appropriation but the bank replied on 10th May, 2000 explaining the factual position as to why it was compelled to encash the FDRs. Again, the Uniworth account continued to remain irregular and bank found a sum of Rs. 19.89 crores due, and again wrote that in case of failure of payment the rest of the FDRs would be encashed, and as the payments were not made the bank encashed the same; but still then a sum of Rs.11.70 crores remained due for payment. Mr. Ghosh argued that these letters are admitted documents as these are correspondences by and between the bank and N. R. Lohia and Uniworth Limited. Mr. Ghosh argued that these letters are admitted documents as these are correspondences by and between the bank and N. R. Lohia and Uniworth Limited. Now it is submitted that in his FIR before Sheakespeare Sarani P. S on 12.9.1999 Mr Lohia did not lodge commission of any offence against the bank in respect of encashment of 25 other FDRs, but simply referred to one FDR being No. 453373 dated 12.9.1999 worth Rs. 13,31,038.44 U$. It is submitted that as by N.R. Lohia a civil suit being No. 398 of 2000 was filed challenging the encashment of the FDRs by the bank, the bank also instituted a recovery proceedings being O. A. No.95 of 2001 before the Debts Recovery Tribunal, Calcutta-1 for recovery of the outstanding amount of Rs.12.01 crores after adjustment of the amount of FDRs. It is therefore, submitted that when a civil suit and a debt recovery proceedings are pending by and between the parties there remains hardly any scope for an independent criminal proceeding over the selfsame issue after a time gap of seven years and importantly this is a delayed FIR of seven years and Mr. Lohia did not pursue his earlier FIR before the Sheakespeare Sarani and even after encashment of ail the FDRs he during his lifetime did not initiate any criminal action because he knew that he voluntarily pledged all his 26 FDRs including the one, namely No. 453373 which was only referred to in the complaint before the O.C, Sheakespeare Sarani. Mr, Ghosh referred to the decision in Suneet Gupta (supra) to submit that it was also a case for quashment of a FIR which was lodged after a gap of two years and the Supreme Court finding that the dispute was of civil in nature approved of the action of the High Court in quashing the FIR. It is submitted that here the FIR is delayed by seven years and clearly that dispute is civil in nature Mr. Ghosh referred to the decision in Indian Oil Corporation v. N.E.P.C., reported in 2006 (6) SCC 736 where the Supreme Court deprecated a growing tendency to convert purely civil disputes into criminal cases, Mr. It is submitted that here the FIR is delayed by seven years and clearly that dispute is civil in nature Mr. Ghosh referred to the decision in Indian Oil Corporation v. N.E.P.C., reported in 2006 (6) SCC 736 where the Supreme Court deprecated a growing tendency to convert purely civil disputes into criminal cases, Mr. Ghosh also referred to Inder Mohan Goswami v. State, reported in 2007(12) SCC 1 where the Supreme Court held that the Court must ensure that criminal prosecution is not used as an instrument of harassment or out of vendetta or with an ulterior motive to pressurize the accused. It is not the case of the complainant that the signature appearing on the documents furnished to the bank were not of N. R. Lohia. (17.) Mr. Sudipto Moitra argued that the case instituted on the basis of an order under Section 156(3) of the Cr. P.C. does not suffer from mala fide and even if we are to consider mala fide of the complainant it is only the FIR that can be looked into. He submits that the petition of complaint does not reveal mala fide and as such it cannot be. quashed. Mr. Moitra argued that the story of pledgment of the 26 FDRs including the one in U$ 13, 31, 033.41 were not really pledged with the bank by N.R. Lohia. His signatures were only obtained by the bank without letting him know for. what purpose he was signing and the trust reposed by Mr. Lohia has been breached by the bank by fraudulent encashment of the same without his consent and even when one of the 26 FDRs, namely, 453373 for U$ 132, 31,038.44 was not pledged with the bank and the original FDR was with Mr. Lohia the same was also encashed without any valid authority. Therefore, the motive of the bank was suspect and simply because of the fact that the trusts created through will of N.R. Lohia instituted a civil suit for appropriate relief in the civil forum does not signify that the criminal proceeding initiated through registration of a petition under Section 156(3) of the Cr. P. C. is a mala fide one. It is submitted by Mr. P. C. is a mala fide one. It is submitted by Mr. Moitra that in many commercial transactions element of civil dispute must be there, but merely because of existence of a civil element it does not follow that criminal proceedings should be quashed. The purpose of civil proceeding is to realise the damage and compensation, while in a criminal proceeding it is punishment that is sought for after a regular trial. N. R. Lohia had no connection with Uniworth Limited and even Uniworth Limited paid up a sum of Rs. 10 crores which was advanced in favour of Uniworth on account of Adhoc Export Packing Credit. Therefore, neither N. R. Lohia nor Uniworth had any liability to be discharged towards the bank for which the bank could commence an action either against Mr. Lohia or Uniworth Limited. The complainant asked the bank to deposit the entire proceeds of the fixed deposit receipts to the account of the trust which the bank failed to do; as such complaint was lodged. Mr. Moitra further argued that the circumstances did not exist or were not present concerning encashment of other fixed deposit receipts when N. R. Lohia lodged a complaint with the O.C., Sheakespeare Sarani . It is argued that in view of the fact that when as per instruction of N.R. Lohia the FDRs have been converted to FCNR deposits in Indian Currency it shows that N.R. Lohia had not pledged and there was no pledging of the FDRs at the time of such conversion. (18.) Mr. Moitra referred to the decision in T. Vengma Naidu, reported in JT 2007 (4) SC 240 where the Supreme Court held that the FIR has to be taken on its face value so as to examine whether it spells out the offences alleged. it has also been held that the FIR could be quashed only if there appeared to be no offence at all. The decision in State of Orissa v. Saroj Kumar Sahoo, reported in 2005 (13) SCC 540 has been cited, where the Supreme Court held on the factuality of the case that while exercising jurisdiction under Section 482 Cr. P.C. it is not permissible for the Court to act as if it was a trial Court. The decision in State of Orissa v. Saroj Kumar Sahoo, reported in 2005 (13) SCC 540 has been cited, where the Supreme Court held on the factuality of the case that while exercising jurisdiction under Section 482 Cr. P.C. it is not permissible for the Court to act as if it was a trial Court. The decision in S. M. Dutta v. State of Gujarat and Anr., reported in AIR 2001 SC 3253 has been referred to where caution has been given about careful use of inherent powers of the Court. Mr. Moitra also referred to the decision in State of Bihar and Anr. v. P. P. Sharma, reported in 1992 Supp(1) SCC 222 where it was held inter alia that examining the writ petitions against the charge sheet and considering the matter on merit on the guise of prima facie evidence would amount to pretrial under Article 226 or 227 of the Constitution of India. The decision in M. L. Bhatt v. M. K. Panditia and Ors., reported in JT 2002(3) SC 89 dealing with scope of intervention by the High Court has also been cited. The case of Debendranath Padhi v. State of Orissa, reported in 2005. (1) C.Cr.LR (SC) 487 deals with the function of the Court while framing charge. The decision in C.B.I. v. Ravi Shankar Srivastava, reported in 2007(1) C. Cr. LR (SC) 361, State of Karnataka v. M. Devendrappa andAnr., 2002 (3) SCC 89 , Kamala Devi Agarwal v. State of West Bengal, 2002 (1) SCC 555 . Nagawwa v. Veeranna Shivalingappa Konjalgi, 2000 () SCC 741, M. Krishnan v. Vijay Singh and Anr., 2001(8) SCC 645 , Silok Ram and Anr. v. State of Haryana, 2007 (10) SCC 464 have also been referred to. These decisions relate to scope and ambit of Section 482 of. the Cr. P.C. approach of the Court while framing charge, approach of the Court towards delay in lodgement of the FIR, quashing investigation if offence is made out from the FIR etc. Now, let it be noted that these decisions lay down certain fundamental principles in context of facts and circumstances of each particular case. (19.) Mr. Asimesh Goswami, learned Public Prosecutor submitted that the bank was not co-operating with the investigating agency and despite an order under Section 91 of the Cr. Now, let it be noted that these decisions lay down certain fundamental principles in context of facts and circumstances of each particular case. (19.) Mr. Asimesh Goswami, learned Public Prosecutor submitted that the bank was not co-operating with the investigating agency and despite an order under Section 91 of the Cr. P.C. directing the bank to produce certain documents the bank did not comply with the same. Mr. Goswami submitted that when investigation has been going on the proceeding may be not quashed. (20.) When the lengthy petition of complaint is summarized it comes to this. (21.) N.R. Lohia who was a non-resident Indian entrusted on 10.9.1996 and 12.9.1996 a sum of Rs.7,83,88,789 in his NRE account with the bank and instructed the bank to create 26 fixed deposits for a period of 36 months. The bank assured him to pay the total sum of Rs. 13,48,58,895/- as maturity value. Except one NRE deposit being No. 455373 in U$ 13,31,038.44 all the receipts were in the custody of the Woolworth Limited. The deposits were free from encumbrances as late N. R. Lohia was never informed of by the bank regarding any liability relating to the fixed deposits. On 10th September, 1999 and 12th September, 1999 the said NRE fixed deposits got matured but Woolworth Limited and the bank approached N. R. Lohia to keep his funds with them. N. R. Lohia expressed his desire to convert the maturity value of US 37,45,220.59 to FCNR(B) and bank obtained his signature on certain printed forms in the presence of the complainant and the officers of Uniworth Limited. In the matter of conversion of the said NRE fixed deposits to the FCNR(B) to the tune of the said amount the bank did not hand over the original FCNR(B) deposits, though Mr. Lohia requested to do so on 12.9.1999. The bank took the plea that Some more papers were required to be signed with regard to bank Adhoc Export Packing Credit Limit of Rs.10 crores granted to Woolworth Limited (now Uniworth). The said amount of Rs.10 crores had been paid off but the formality of signing the papers were not completed by Woolenworth Limited regarding pledgment of old NRE fixed deposits. N. R. Lohia protested to the bank to say that he never consented to the banker for grant of any such facility of 10 crores against his NRE fixed deposits. The said amount of Rs.10 crores had been paid off but the formality of signing the papers were not completed by Woolenworth Limited regarding pledgment of old NRE fixed deposits. N. R. Lohia protested to the bank to say that he never consented to the banker for grant of any such facility of 10 crores against his NRE fixed deposits. The bank withheld the amount and the accused No. 2 told N. R. Lohia that Texprint Overseas Limited which is the company of Mr. Pawan Kr. Lohia, the younger son of N. R. Lohia had already been granted the facility of bank guarantee of Rs. 6.58 crores. Thus, N. R. Lohia was asked to sign a letter and agreement for pledgment of his FCNR(B) in respect of Rs.10 crores for Woolworth and Rs. 6.58 crores for Texprint and N. R. Lohia. Lohia was allegedly told that after the signatures were made the bank would release the original FCNR receipts, Mr. Lohia being induced by the representation of S. K. Chowdhury decided to avoid conflict with the bank and signed undated letter for the said Adhoc Export Packing Credit facility of Rs.10 crores and bank guarantee of Rs. 6.58 crores for Uniworth and Texprint respectively. These signatures were made only to secure the said amount. It is the case in the FIR itself that on the undated letter the entire amount of FCNR(B) on US 37,45,220.59 (covering 26 receipts) was mentioned for pledgment of the fixed deposits. The bank went on killing time. The foul play was suspected. In the second week of April, 2000 Uniworth informed N. R. Lohia that the bank has given them short notice of few hours for depositing Rs. 8.20 crores in the current account of the company and had adjusted N. R. Lohias FCNR(B) fixed deposits to the extent of Rs. 8.20 crores against overdraft in the current account. N.R. Lohia informed the bank by a letter dated 8.5.2000 that the accused persons should not adjust the proceeds of the FCNR(B) fixed deposit in the account of the Uniworth but in vain. The bank had no right to remove funds from the FCNR(B) but they did so dishonestly. N.R. Lohia wrote to the bank on 19.9.2000 fur encashment of the FCNR(B) receipt No.455373 for U$ 13,31,038.44 which was in the custody of N.R. Lohia. The bank had no right to remove funds from the FCNR(B) but they did so dishonestly. N.R. Lohia wrote to the bank on 19.9.2000 fur encashment of the FCNR(B) receipt No.455373 for U$ 13,31,038.44 which was in the custody of N.R. Lohia. Bank refused such encashment and communicated the refusal by the letter dated 25.4.2000 on the ground that the bank had lien for the facility availed of by both Uniworth and Texprint and referred to the letter dated 12.10.1999. The bank communicated that the account of Uniworth was irregular. Thus, according to the complaint an undated letter obtained by the bank with signature of N. R. Lohia was dishonestly stamped as a letter dated 12.10.1999 and the related pledge agreement was also dishonestly stamped and dated 12.10.1999 which were only in connection with Adhoc Export Packing Credit of Rs.10 crores granted to Uniworth and the bank guarantee of Rs.6.58 crores of Texprint. Thus, the bank committed offence of criminal breach of trust and of cheating. (22.) The question is whether prima facie it can be said that the bank misappropriated a total value of U$ 37,45, 220 on account of 26 FCNR(B) receipts and applied the same towards the adjustment of the outstanding dues payable by Uniworth and Texprint Limited which are the companies undoubtedly of the members of the family belonging to N, R. Lohia. According to N. R. Lohia, he did not sign any pledge agreement knowing the same to be the document of pledge, but in the other places of the FIR it has been said that the bank and the Uniworth approached him for his signatures on the documents of pledge in respect of Rs.10 crores for the Uniworth and Rs. 6.58 crores for the Texprint. It was the contention of Mr. Lohia that Rs.10 crores has been paid off by the Uniworth and the bank guarantee Tor the Texprint was also discharged but still then the bank refused to encash the FDRs in favour of N. R. Lohia and started making new case that a sum of Rs. 8.20 crores was again found due against and payable by Uniworth Limited and that the said FCNR(B) fixed deposit receipts had been kept as a lien towards the discharge of the all amounts due. 8.20 crores was again found due against and payable by Uniworth Limited and that the said FCNR(B) fixed deposit receipts had been kept as a lien towards the discharge of the all amounts due. The bank communicated to N. R. Lohia that the operation of the bank account of Uniworth was irregular and a sum of Rs.19.89 crores was found due. According to Mr. Lohia unstamped and undated letter had been converted into pledge agreement which is an act of cheating and criminal breach of trust. Now in affidavit-in-opposition N.R Lohias civil suit and his lodgment of first FIR with the Sheakespeare Sarani have been admitted. It is noticeable that when N. R. Lohia was alive he himself lodged a complaint with the Sheakespeare Sarani P.S. on 12.9.2000. On that day he was quite aware that the bank informed him by a letter dated 11.9.2000 that a sum of Rs. 19.89 crores was found outstanding and due for payment by Uniworth Limited. According to the case pleaded in the instant FIR all the 26 fixed deposit receipts for a total value of U$ 37,35,220.59 inclusive of the receipt No. 455373 for U$ 13,31,038.44 got matured for payment. As per the first FIR lodged by N.R. Lohia on 12.9.2000 the Adhoc Export Packing Credit of Rs. 10 crores for Uniworth and the bank guarantee of Rs. 6.59 crores in favour of Texprint were paid off and discharged. It was not unknown to N. R. Lohia that the bank refused encashment of all the 26 FDRs on the ground of lien on account of non-payment of the dues. But in his complaint with the O.C., Sheakespeare Sarani P.S. dated 12.9.2000 N. R. Lohia did not make any whisper about the banks refusal to encash 25 other FCNR(B) deposit receipts valued at Rs.US 24,14,182.15, though he mentioned in that complaint that he was told to pay a sum of Rs. 19.89 crores by the bank through their letter dated 11.9.2000, although the FCNR(B) deposit receipt No.455373 valued at U$ 13,31,038.44 got matured for payment. That is to say, he confined his own first FIR to the allegation against the bank to the banks refusal to encash only one deposit receipt of U$ 13,31,038.44 and did not allege refusal of the bank to encash other 25 receipts. Mr. Pradip Kr. That is to say, he confined his own first FIR to the allegation against the bank to the banks refusal to encash only one deposit receipt of U$ 13,31,038.44 and did not allege refusal of the bank to encash other 25 receipts. Mr. Pradip Kr. Ghosh, learned Senior Advocate submits that N. R. Lohia was quite conscious that he had really pledged all his 26 receipts and remained silent about the banks refusal to encash 25 receipts to the tune of U$ 24,14,182.15. Why silence was observed in the FIR dated 12.9.2000 which has been referred to in the affidavit-in-opposition of the complainant is anybodys guess. The submission of Mr. Ghosh that as Uniworth and Texprint are the family concerns of N. R. Lohia, N. R. Lohia created pledge of his all 26 receipts in favour of his sons companies, although one of the receipts being No. 455373 for U$ 13,31,038.44 remained in the hand of N. R. Lohia and according to the bank he assured of depositing the said receipt with the bank cannot be rejected. The argument of Mr. Ghosh that if N.R. Lohia had no concern with Uniworth and Texprint then it is not known why 25 deposit receipts would be in the custody of the said two companies even though they got matured has not been explained in the FIR cannot be dismissed summarily. Thus, Mr. N. R. Lohia made contradictory claims, once he said alleged pledgment was not to his knowledge, and at the other place he said that he signed the pledge agreement only for the two sums, and then again he says that his signatures were obtained on unstamped and undated letters. Now it would not be not irrelevant to know the stand of Lohia in the plaint of C. S. No. 398 of 2000. Here, it was stated that the plaintiff N. R. Lohia pledged FCNR(B) deposit receipts with the bank, the total value of which was Rs.17.20 crores. This is a clear admission of pledgment of the receipts with the bank to assure liquidation of the dues payable by Uniworth and Texprint. Here, it was stated that the plaintiff N. R. Lohia pledged FCNR(B) deposit receipts with the bank, the total value of which was Rs.17.20 crores. This is a clear admission of pledgment of the receipts with the bank to assure liquidation of the dues payable by Uniworth and Texprint. In the complaint herein it has been stated that the original NRE fixed deposit receipts were in the hands of the officers of Woolworth India Limited and they were kept with them for safe custody with a view to receiving its proceeds conveniently through them at the maturity dates and that the deposits were free from any encumbrances and N. R. Lohia was never informed of by the bank about any liability of any kind involving the said FDRs nor the officers of Uniworth disclosed anything this stand in the present FIR stands contradictory to the plaint case and this case was also not made out in the complaint lodged by N. R. Lohia with the police station earlier on 12.9.2000. In fact, in the middle of the lengthy FIR it has been admitted that N. R. Lohia had put his signatures on some pledged agreement. Now according to Mr, Lohia these pledged agreements relate to Rs. 10 crores + Rs. 6.58 crores and the said amounts were liquidated; but the bank disputes this version and according to them the bank transaction of the companies were irregular and lately it was found as on 12.9.2000 that a total sum of Rs.19.89 crores was found due and admittedly dues of this sum was intimated to N. R. Lohia as far back as 12.9.2000. The bank disputes that the pledgment was only in respect of Rs. 10 crores + 6.58 crores. The distance between the earlier FIR and the institution of civil suit in the original side of the High Court both by N.R. Lohia was a distance of 10 days and within the distance of these 10 days there has been a gulf of difference between the two documents. Mr. 10 crores + 6.58 crores. The distance between the earlier FIR and the institution of civil suit in the original side of the High Court both by N.R. Lohia was a distance of 10 days and within the distance of these 10 days there has been a gulf of difference between the two documents. Mr. Ghosh submits that it is well settled and accepted practice in business that when a person makes an instrument leaving the date blank or puts no date at all he leaves it open to the person to whom the instrument is given to put the date as and when necessary and alleged subsequent insertion of dates cannot come within the ambit of forgery. It is not a case that the date was interpolated and in this connection I have been taken to a decision in Dr, Vimla v. Delhi Administration, reported In AIR 1963 SC 1572 and a Division Bench decision of this Court in J. Th. Zwart and Ors. v. Indrani Mukherjee, reported in 1990 C. Cr. LR (Cal) 1. It is prima facie clear that 26 receipts were pledged with the bank and at the end of the day it could not be the case of the accused that pledgment was not to the knowledge of N. R. Lohia. The further question is whether pledgment continued in respect of further amounts which as on 12.9.2000 came to Rs. 19.89 crores. It cannot be said, as the FIR is sufficient to indicate, that pledgment was to the knowledge of N. R. Lohia and in this scenario the dispute prima facie appears to be a dispute of civil in nature. The ingredients of criminal breach of trust or of cheating do not prima facie appear to have been present and in the chain of events beginning from the FIR lodged by N. R. Lohia himself and ending with the suit, it becomes clear that there is clear admission of pledgment in the civil suit. It further appears that as on the one hand N. R. Lohia instituted the civil suit, the bank other hand filed a case before the Debt Recovery Tribunal against sons of N. R. Lohia, Uniworth Limited and others for realization of a claim of Rs.12.01,76,397 and this amount has been categorized in the said application. Thus pledgement has not been denied by the complainant. Thus pledgement has not been denied by the complainant. In the context of such pleading of Lohias in the civil suit and pleading of the bank before the Debts Recovery Tribunal it becomes clear that the dispute really is one of civil in nature. The learned Public Prosecutor produced the material in the Case Diary which showed that on 12.10.1999 the late N. R. Lohia executed the pledge agreement in favour of the bank on account of advances in favour of Uniworth Limited and it was stipulated in the pledge agreement that the security shall be binding as a continuing security on him. By this pledge document N. R. Lohia undertook repayment on demand to the bank amount on account of loan, cash credit advances, overdrafts or other banking accommodation or for any other money for which the borrower may be liable on any account to the bank whatsoever with all interest thereon. Interestingly, in the agreement for pledge there was mention of 25 fixed deposit receipts but the receipt No.455373 valued at U$ 13,31,038.44 was not mentioned. According to the bank this receipt was in the custody of the N. R. Lohia and he assured to deposit the same and the said receipt was also made a security. According to Mr. Moitra non-mention of this receipt No. 455373 would reveal that this was outside the purview of pledge. One thing is clear that N. R. Lohia consciously executed the agreement for pledge and this is why he did not mention in his complaint before the O.C., Sheakespeare Sarani on 12.9.2000 about 25 receipts. He consciously executed these 25 receipts and mentioned only one receipt in his earlier complaint. But in the Civil Suit No. 398 of 2000 which was filed by N.R. Lohia himself this receipt was also shown as one of the documents of securities making it a total value of U$ .37,45,220.59. Annexure-"A" to the plaint is a sheet showing particulars of securities wherein N. R. Lohia showed this receipt No. 455373 as one of the documents of pledge. (23.) In his complaint with Sheakespeare Sarani P.S. Mr. Lohia was aggrieved only in respect of one FDR, while the present FIR was filed in respect of all the 26 receipts seven years after the said date that is 12.9.2000, without any explanation of delay. My attention has been drawn to the decision in Rajveean and Anr. (23.) In his complaint with Sheakespeare Sarani P.S. Mr. Lohia was aggrieved only in respect of one FDR, while the present FIR was filed in respect of all the 26 receipts seven years after the said date that is 12.9.2000, without any explanation of delay. My attention has been drawn to the decision in Rajveean and Anr. v. State of Kerala, reported in 2003 (3) SCC 355 . The plaint was filed on 26th September, 2000 and it is not that Mr. Lohia was not aware that as on 12,9.2000 the bank asked him to pay a sum of Rs. 19.89 crores through a letter of that even date. Bank wrote to Mr. Lohia on 24.4.2000 again intimating that encashment of receipt No. 455373 for Rs. 13,31,038.44 was not permissible because the said receipt was also pledged with the bank on account of advance of loan/ overdrafts/cash credit to Uniworth and Texprint Overseas Ltd. (24.) So far as the accused Nos. 3-9 are concerned there is absolutely no material against them individually, although accused No.2 cannot be placed on a different footing. Accused No. 2 acted on behalf of the bank . There cannot be any vicarious liability of accused Nos.2-9 as the offences are alleged under the Penal Code. Reference may be placed in the decision in Maksud Shayeed v. State of Gujarat, 2007 (2) JT 276, Sk. Alagh v. State of Uttar Pradesh, reported in 2008 (2) SCC (Cri) 686, I do not find any element of criminal conspiracy of cheating or criminal breach of trust. Pledgement of the documents with the bank cannot be said even ex facie to be result of inducement. Under Section 176 of the Indian Contract Act if the pawnor makes default in payment of debt or performance at the stipulated time in respect of which the good was pledged the pawnee may bring a suit against pawnor and retain the good pledged as a collateral security. As said in Lallan Prasad v. Rahamat Ali, AIR 1967 SC 1322 , a contract of pawn carries with it an implication that the securities are available to satisfy the debt and the pawnee has the power of sale in default of payment. Truly, the stand, of the complainant in the petition of complaint appears to be different from the stand of N.R. Lohia himself who instituted the suit. Truly, the stand, of the complainant in the petition of complaint appears to be different from the stand of N.R. Lohia himself who instituted the suit. He himself made an annexure where the receipt No. 455373 was also shown as one of the documents of pledge. The FIR was filed almost after a lapse of seven years and it is not that the information /particulars mentioned in the petition of complaint were not available with N. R. Lohia when he lodged complaint with the O. C, Sheakespeare Sarani on 12.9.2000 or when he filed the suit in the year of 2000. Mr. Moitra argued that in view of the fact that when as per instruction of Late N. R. Lohia the FDRs have been converted into FCNR(B) N. R. Lohia had not pledged the FDRs and there was no pledging at the time of such conversion, or else the bank would not have converted the same. This argument is not impressive because the fixed deposit receipts of Indian Currency were of UTI/Axis Bank and the fixed/deposit receipts of the foreign currencies were also of the same UTI/Axis Bank. In the complaint, it has been stated that N. R. Lohia had signed certain documents which the complainant subsequently came to learn as the documents of pledge, and the documents were not dated, and dates were put in subsequently. In the civil suit, N. R. Lohia himself admitted pledging of the fixed deposits including the receipt No. 455373. (25.) If we analyse the allegations in the FIR itself it would be revealing that the essential ingredients of criminal breach of trust and cheating are absent because:-(a) At the inception of the transaction there was no fraudulent or false representation. (b) Essentially the relation between bank and the customer is one of debtor and creditor (c) The money on maturity was credited in the account of UWL which is a concern of N. R. Lohias sons. (d) Consciously N. R. Lohia executed pledge agreement. (e) The bank, as per the FIR itself, communicated to N. R. Lohia how was it impossible to allow encashment because of pledgement of 26 F. D. receipts. (f) Interestingly, according to the FIR itself, UWL was the custodian of 25 F. D. receipts of N. R. Lohia even before maturity. (g) Ex facie, there is no material that the banks officers misappropriated the money. (f) Interestingly, according to the FIR itself, UWL was the custodian of 25 F. D. receipts of N. R. Lohia even before maturity. (g) Ex facie, there is no material that the banks officers misappropriated the money. (h) Ex facie, there was no mens rea, in the minds of the banks officers. (i) Ex facie, there has been no forgery. (j) N. R. Lohias first complaint virtually demolishes the present FIR. (k) N. R. Lohias own civil suit in the High Court virtually demolishes the present FIR. (I) The trustees created by N. R. Lohia in his will lodged the present FIR almost 7 years after the death of N. R. Lohia and more than 7 years after Lohia himself lodged the complaint, although the cause of action allegedly originated as far back as 12.9.1999. (26.) In the circumstances, continuation of the criminal proceeding would be an abuse of the process of the Court. (27.) Accordingly, the application is allowed. Criminal proceeding is quashed.