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Uttarakhand High Court · body

2010 DIGILAW 129 (UTT)

KAMESHWAR NATH PATHAK v. STATE OF U. P.

2010-03-23

PRAFULLA C.PANT

body2010
JUDGMENT By means of this petition, moved under Section 482 of Code of Criminal Procedure, 1973 (for short Cr.P.C.), the petitioner has sought quashing of the charge-sheet dated 06.04.1998, filed against the petitioner in respect of crime no. 67 of 1996, relating to offences punishable under sections 409, 420, 468 and 471 of Indian Penal Code, 1860 (for short I.P.C.). 2. Heard learned counsel for the parties and perused the papers on record. 3. Brief facts of the case are that respondent No. 3/complainant lodged First Information Report on 06.08.1996, against the petitioner, stating that in the year 1993-94, the petitioner had withdrew certain amounts from account No. 295, and deposited the same within a day or two. It is also alleged that a cheque No. 1283783, dated 09.08.1993, was deposited in respect of 11 dollars in account No. 10254 but the same was not accounted for. A crime No. 67 of 1996, was registered against the petitioner, who was Manager of P.N.B. Jhanda Chowk, Kotdwar. After investigation, no offence is said to have been made out in respect of cheque of 11 dollars but in respect of three withdrawal of account No. 295, it was found that in the year 1993, thrice withdrawal were made, but the amount was deposited within a couple of days of the withdrawal and impugned charge-sheet was accordingly filed. 4. Learned counsel for the petitioner drew attention of this Court to the provision contained in Sections 409, 420, 468, 471 I.P.C. and it is pleaded that ingredient of said offences are not made out. It is contended that there was no entrustment of the property to the petitioner bank, as such, there is no question of breach of trust and as such, ingredients of Section 409 I.P.C., are not made out. In this connection, it is contended that the account No. 295, which is mentioned in the First Information Report, was a loan account and not the depositors account. It is argued that had it been a depositors account, like saving account, current account etc., it could have been said that the property deposited was entrusted to the bank. But in the present case, being a loan account, it was the banker’s money, which was to be paid to the account holder as and when needed by him. It is argued that had it been a depositors account, like saving account, current account etc., it could have been said that the property deposited was entrusted to the bank. But in the present case, being a loan account, it was the banker’s money, which was to be paid to the account holder as and when needed by him. I agree with the contention of the learned counsel for the petitioner that in the above facts and circumstances, admittedly there was no entrustment of money to the petitioner and as such, there is no question of criminal breach of trust. That being so, the ingredients of the offence punishable under Section 409 I.P.C., are not made out. 5. Similarly, there is not a single word in the First Information Report that any forged entry was made in respect of the withdrawal or depositing of the amount in account No. 295. Had it been a case that the petitioner had made false entries, it could have been said that offence punishable under Section 468 or 471 I.P.C. are made out. But that is not the case here. There is no averment of committing forgery by the petitioner in the First Information Report nor is it the finding of the Investigating Officer in the charge sheet. 6. Also, it is pleaded that there is no wrongful loss or wrongful gain to any person in the present case. Apart from this, it is pointed out that in respect of the entry of the year 1993, a third person (present respondent No. 3) filed a criminal complaint (not account holder) that too after a period of three years. Apart from this, it is pointed out that after the Bank initiated criminal proceedings against one of the members of Vyapar Mandal, its President (respondent no. 3), as a counter blast lodged First Information Report, which is nothing but abuse of process of law. In para-5 and para-10 of the counter affidavit, filed on behalf of the State, it is stated that Magistrate has not taken cognizance on the impugned charge-sheet. 7. For the reasons, as discussed above, having considered submissions of learned counsel for the parties this Court is of the view that the impugned charge-sheet is liable to be quashed. The same is accordingly quashed. The petition under Section 482 Cr.P.C. is allowed.