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2011 DIGILAW 1268 (CAL)

Milon Kumar Ghosh v. State of West Bengal

2011-09-13

KANCHAN CHAKRABORTY

body2011
JUDGMENT : - Kanchan Chakraborty, J: 1. This revision application under Section 397 read with Section 401 of the Code of Criminal Procedure is pertaining to the Special case no. 2 of 2000 pending in the Court of learned Judge, 24 Parganas 1st Special Court, Alipore. It has been filed at the instance of Milon Kumar Ghosh, one of the accused in the case, and is directed against an order dated 7.7.2008 passed by the learned Judge whereby his prayer for discharge from the case was rejected. By filing a supplementary affidavit, the petitioner prayed for quashing of the proceeding against him in alternative. 2. As short reference to the factual aspect is given for proper appreciation of the matter. 3. The Assistant General Manager (Vigilance), United Bank of India (O.P. no. 3) lodged one F.I.R. with the opposite party no. 2, Superintendent of Police, C.B.I., B.S. & F.C. alleging therein that some of the officers of United Bank of India, in connivance with each other, defrauded the United Bank of India by opening false current Accounts, drawing and encashing fictitious cheques of huge amount, manufacturing forged documents and thereby caused huge loss of public exchequer in clandestine manner. The offence alleged mainly had taken place in the United Bank of India, Syed Amir Ali Avenue Branch, Calcutta. On the basis of said F.I.R., a case being R.C. 3(e) 97 – B.S. & F.C./DLI dated 21.4.97 was registered against the persons who were named in the F.I.R. The case was investigated into thoroughly by the C.B.I. and on conclusion of the investigation, a charge-sheet was filed against as many as seven persons including this petitioner Milon Kumar Ghosh who happened to be the then Manager of Bank of Baroda, Camac Street Branch, Calcutta. In course of investigation it was detected that he fraudulently opened one current account in the name of R.L. Mirpuri on 23.12.1995 on the basis of Banker Cheque no. 669405 dated 23.12.1995 for Rs. 42.50 lacs; issued in favour of Bank of Baroda by M/S S.R. Ramamani, the then Senior Manager of Alahabad Branch, Southern Avenue Bank, Calcutta by showing debit to a non-extend N.R.E. account no. 880931/12 dated 14.12.1995. The said account was opened at the instance of Amarendra Nath Ghosh (accused no. 6) and Mr. Mrigendra Nath Ghosh (accused no. 7) of M/S Mafcon Group of companies of Calcutta. 880931/12 dated 14.12.1995. The said account was opened at the instance of Amarendra Nath Ghosh (accused no. 6) and Mr. Mrigendra Nath Ghosh (accused no. 7) of M/S Mafcon Group of companies of Calcutta. The accused Milon Kumar Ghosh did not obtain photograph of the account holder which was required as per R.B.I. guidelines. He also obtained introduction of one Pradeep Khaitan, a current account holder no. 1497 opened only on 22.12.1995 on the introduction of P. Sharma of M/s Shaunak Tie up Pvt. Ltd., having an account in fictitious name in UBI, Syed Amir Ali Avenue Branch, Calcutta duly verified by Jasobrata Basu (accused no. 2) Deputy Manager of the said bank. It was further revealed that Milon Kumar Ghosh, in order to correct the illegality, obtained another set of account opening form mentioning the date of opening as 23.12.1995 in the name of R. L. Mirpuri wherein introduction of M/s Tripti Basu maintaining account in Jodhpur park Branch of India Bank, Calcutta was obtained. It was found that Milon Kumar Ghosh, in connivance with other accused persons in the case defrauded United Bank of India and thereby dealt with huge amount of public exchequer in clandestine manner. He was shown as an accused in the charge-sheet for committing offences under Section 420, 477A of I.P.C. read with Section13(2) and 13(1) 9d) of Prevention of Corruption Act. Milon Kumar Ghosh had taken out an application in the learned Judge, Special Court praying for his discharge from the case on the ground that he was not involved in the offence alleged and that in a departmental proceeding held by CVC, he was exonerated from that specific charge. The learned Court, upon consideration of the material on record and result of investigation rejected his prayer. Milon Kumar Ghosh has come up with this application challenging the legality, validity and propriety of the order, mainly, o n the grounds : a) that the learned Court failed to appreciate that no case, prima facie, is made out against the petitioner Milon kumar Ghosh who was not an employee of United Bank of India at the relevant period of time ; b) that in the departmental enquiry initiated against him by the Government of India, Central Vigilance Commission, the specific charge of opening current account no. 1498 of 1995 in the name of Mr. R. L. Mirpuri without obtaining trade licenses, photograph etc. Mr. 1498 of 1995 in the name of Mr. R. L. Mirpuri without obtaining trade licenses, photograph etc. Mr. Mirpuri and clearing a cheque amounting to Rs. 42.50 lacs, was not proved against Milon Kumar Ghosh and the learned Court failed to appreciate the report of departmental enquiry although it was placed it by the petitioner Milon Kumar Ghosh. 4. Mr. Sekhar Basu, learned Counsel appearing on behalf of the petitioner contended that the petitioner placed the report of departmental enquiry before the Court for its perusal so that it could take a right conclusion regarding the specific allegation made out in course of investigation, against him. Learned Court simply kept that on record without giving any value to it. In fact, Mr. Basu contended, the Court did not even peruse the same. When the document of like nature wherein the delinquent was exonerated from a specific charge in a departmental enquiry, the learned Court ought to have considered the document whatsoever the result would have been. Non-consideration of the document itself, according to Mr. Basu, is against the spirit of law and miscarriage of justice. 5. Mr. Himangsu De, learned Counsel appearing on behalf of the C.B.I./opposite party contended that at that juncture, the learned Court was not supposed to consider the report of departmental enquiry and put any value to it. Therefore, there was no wrong on the part of the Court by not taking the document into consideration at the time of passing the order impugned rejecting the prayer for discharge. 6. The crux of the entire matter is centred around one issue, i.e., whether a report of departmental proceeding on the self same issue whereby an accused being delinquent in the departmental proceeding was exonerated, can be placed before the Court where the Criminal case is pending for considering whether allegation and aspersion against the accused is prima facie made out or not. In order to appreciate the entire matter it would be proper to look at the relevant portion of the order impugned. It says, “ On behalf of the accd. No. 5 Advocate S. Deb Roy has filed a petition regarding discharge of the accd. On the ground that there is no existence of prima facie case against the said accd. It was submitted by Mr. Deb Roy that only the allegation against the said accd. Is that this accd. It says, “ On behalf of the accd. No. 5 Advocate S. Deb Roy has filed a petition regarding discharge of the accd. On the ground that there is no existence of prima facie case against the said accd. It was submitted by Mr. Deb Roy that only the allegation against the said accd. Is that this accd. Being the Manager of Camac St. Branch of the Bank of Baroda opened one current A/c without obtaining the photograph of the A/c holder R. L. Mirpur. He further submitted that the said A/c was opened as per the order of the superior. He submitted before me one Xerox copy of the departmental enquiry report relating to accd. M. K. Ghosh conducted by the Central Vigilance Commission, Govt. of India, wherein the enquiring officer held that the concerned officer acted under the instruction of the superior and he further held that the allegations against the concerned officer was not true. Let the Xerox copies be kept with the record. It was further submitted by the defence counsel that the Bank of Baroda did not sustain any loss for opening of that A/c .It was submitted by Mr. Deb Roy that the A/c was opened on 26.12.1995 and one banker’s cheque worth Rs. 42 lac odd dtd. 23.12.1995 issue by the Allahabad bank, Southern Avenue Branch was cleared on 27.12.1995 and Bank of Baroda gave payment to the A/c holder. Mr. Deb Roy by all these tried to convince that this accd was not at fault. It was submitted by the Ld. Spl. PP of the BSFC that the purpose of such opening of A/c was just to allow the A/c holder to encash the said banker’s cheque. My answer to all these is that opening of the A/c on 26.12.1995 after the banker’s cheque was issued which was not a small amount but a fat amount to the tune of Rs. 42 lac od dtd. 23.12.1995 and the clearance of that cheque through that A/c is itself a conspiracy I was told by Mr. Deb Roy that the said accd. M. K. Ghosh had no mens rea and he acted as per the order of thesenior official who is also one accd. in this case. 42 lac od dtd. 23.12.1995 and the clearance of that cheque through that A/c is itself a conspiracy I was told by Mr. Deb Roy that the said accd. M. K. Ghosh had no mens rea and he acted as per the order of thesenior official who is also one accd. in this case. Apart from this aspect about which I have mentioned in the last paragraph the opening of such A/c must be viewed with suspicion as no photograph of the A/c holder was pasted on the A/c Opening Form. Naturally by doing this the accd. tried to hide the identity of the said A/c holder which is very much against the banking rules. I was supplied by the Ld. Spl. PP one pay in slip dtd. 26.12.1995 (on that very date the alleged A/c was opened) and such cheque was deposited in that Current A/c no. 1498. Thus, in view of my aforesaid discussion this Court is not at one with the Ld. Defence counsel that the accd has no mens rea regarding opening of the said A/c. Mens rea is to be inferred that is to be covered from the circumstance and the circumstance hints at the conspiracy. Thus, this Court is not convinced that there is no prima facie case against the said accd. and the accd. is fit to be discharge and the petition as such stands rejected.” 7. The order impugned as quoted above unequivocally discloses that the xerox copy of the departmental enquiry report in respect of accused Milon Kumar Ghosh conducted by the Central Vigilance Commission, Government of India indeed was placed before the Court for taking the same into consideration for the purpose of considering his prayer for discharge from the case. The order also shows clearly that the learned Court did not at all consider that report. Mr. Basu contended that whatever out come of consideration of said document would be, the Court was under no circumstances could simply keep at on record and pay no attention to that. When it was placed before the Court it was obligatory on the part of Court to consider the same irrespective of the fate of the prayer for discharge. 8. The following decisions have been referred to at the bar in course of hearing of this application. 1) P. S. Rajya Vs. When it was placed before the Court it was obligatory on the part of Court to consider the same irrespective of the fate of the prayer for discharge. 8. The following decisions have been referred to at the bar in course of hearing of this application. 1) P. S. Rajya Vs. State of Bihar reported in 1996 Supreme Court Cases (Cri) 897. 2) Gopal Das Mundar Vs. Assistant Collector of Customs & Anr. repoted in 2002 (1) CHN 612 3) F. V. Aul & Ors. Vs. S. K. Mukherjee reported in 2006 (3) CHN 6384. 4) Radheshyam Dejriwal Vs. State of West Bengal & Anr. reported in (2011) 2 Supreme Court Cases (Cri) 721. 5) Soma Chakravary Vs. State Through CBI reported in (2007) 2 Supreme Court Cases (Cri) 514 6) State through SPE & CBI, Andhara Pradesh Vs. M. Krishna Mohan & Anr. reported in (2009) 1 SCC (Cri) 922. 7. Stare of Bihar Vs. Purushottam Singh reported in 2004 Supreme Court Cases (Cri) 63. 8. CBI Vs. V. K. Bhutiani reported (2010) 1 Supreme Court Cases (Cri) 407. 9. In P. S. Rajya (Supra)- the appellant was exonerated in departmental proceeding in the light of report of Central Vigilance Commission. It was observed by the Hon’ble Court that standard of proof required to establish the guilt in the departmental proceeding is far less than standard of proof required to establish guilt in a criminal case. When the CBI did not dispute the finding rendered in departmental proceeding, the criminal proceeding initiated against the appellant can not be persuade. The Apex Court while taking that view discussed its earlier decision in State of Hariyana Vs. Bajanlal – 1992 SCC (Cri) 426. 10. In Gopal Das Mundar (Supra) – A Division Bench of this Court was pleased to held that there can not be any absolute legal bar to any subsequent criminal prosecution of the same set of acts or omissions which was determined finally by the official authorities in negative. It was further held that once it appears and has not been disputed that the departmental proceeding initiated by the department itself on the same set of facts has terminated in favour of the accused, it would amount to a misuse of the process of law to prosecute the accused in the same thing under the criminal law. The proceeding was quashed. 11. The proceeding was quashed. 11. In F. V. Arul & Ors (Supra) – the accused was exonerated of the charges by the adjudicatory authority. The proceeding was quashed by this Court on the grounds that it would be amounting to abuse of process if criminal proceeding against the accused on the self same charges is allowed to be continued. 12. In Radheshyam Dejriwal (Supra) – the issue directly before the Court was whether findings of fact in the adjudication proceeding can be a ground for dropping criminal proceeding if both arises out same set of act or omission. Per majority, it was held that in a case of exoneration on merit in such an adjudication proceeding, where the allegations are found to be not sustainable at all and the person concerned is held innocent, criminal prosecution on the same set of facts and circumstances can not be allowed to be continued underling principle being the higher standard of proof is required in criminal cases. 13. The Hon’ble Court while taking the view per majority in Radheshyam Dejriwal case, discussed its earlier decisions in Standard Chatterer Bank (2006) 4 SCC 278, L.R. Melyani case (1970) Cr. L.J. 885, Uttam Chand case (1982) 2 SCC 534 and case (1995) Supplementary (2) SCC 724 and K. C. Builder case 2004 SCC (Cri) 1992. The ratio was culled out by the Hon’ble Court from those decisions are as follows : i. Adjudication proceedings and criminal prosecution can be launched simultaneously; ii) Decision in adjudication proceedings is not necessary before initiating criminal prosecution; iii) Adjudication proceedings and criminal proceedings are independent in nature to each other; iv. The finding against the person facing prosecution in the adjudication proceedings is not binding on the proceeding for criminal prosecution; v. Adjudication proceedings by the Enforcement Directorate is not prosecution by a competent Court of law to attract the provisions of Article 20(2) of the Constitution or Section 300 of the Code of Criminal Procedure; vi. The finding in the adjudication proceedings in favour of the person facing trial for identical violation will depend upon the nature of finding. If the exoneration in adjudication proceedings is on technical ground and not on merit, prosecution may continue; and vii. The finding in the adjudication proceedings in favour of the person facing trial for identical violation will depend upon the nature of finding. If the exoneration in adjudication proceedings is on technical ground and not on merit, prosecution may continue; and vii. In case of exoneration, however, on merits where the allegation is found to be not sustainable at all and the person and the person held innocent, criminal prosecution on the same set of facts and circumstances cannot be allowed to continue, the underlying principle being the higher standard of proof in criminal case. 14. The Hon’ble Court opined that the yardstick would be to judge as to whether or not the allegation in the adjudication proceeding as well as the proceeding for prosecution is identical and the exoneration of the person concerned in the adjudication proceeding is on merits. In case it is found on merit that there is no contravention of the provisions of the act in the adjudication proceeding, the trial of the person concerned shall be an abuse of the process of the Court. 15. In Soma Chakravorty (Supra), it was held that Court can frame charge if on the basis of material on record it can form an opinion that the commission of offence by the accused was possible. At the time of framing of charge, the probative value of the material on record can not be gone into. The said material has to be accepted as true at that stage. 16. The above decision of the Hon’ble Court is not disputed at all in this case and the question raised in this case quite different than what was raised before the Hon’ble Apex Court. 17. The State through SPE and CBI, A.P. (Supra) the accused was exonerated in the departmental proceeding. He was booked in a criminal proceeding under prevention of corruption Act. He was a bank official. The question raised before the Court was whether exoneration of the departmental proceeding would entitle the accused to acquittal in criminal proceeding. It was held that the plea of exoneration in departmental proceeding having been raised by way of defense, the accused was obliged to bring on record all the relevant documents relating to departmental proceeding as the Enquiry Officer in the departmental proceeding could not get benefit of all the materials considered by the Investigating Officer. It was held that the plea of exoneration in departmental proceeding having been raised by way of defense, the accused was obliged to bring on record all the relevant documents relating to departmental proceeding as the Enquiry Officer in the departmental proceeding could not get benefit of all the materials considered by the Investigating Officer. Exoneration in the departmental proceeding would not result in acquittal of the accused in the Criminal Proceeding. 18. In that case before the Hon’ble Court, a full fledged Criminal Trial was concluded and the accused was found guilty of offence under Prevention of Corruption Act. In an appeal the judgement passed by the Trial Court was reversed by the High Court. Matter was went up to the Hon’ble Apex Court and the Apex Court found that all the relevant documents relating to departmental proceeding were not brought on record and therefore exoneration in the departmental proceeding which was taken as a plea by the accused as a defense case would not result of his acquittal. I find that the case before the Hon’ble Court not only factually but also materially different from the case in hand. 19. In State of Bihar Vs. Purushottam Singh (Supra)-, a proceeding under Prevention of Corruption Act was quashed by the High Court on the ground that the accused was exonerated of the charges in departmental proceeding. The Hon’ble Apex Court was pleased to set aside that order on the ground that the High Court ought to have considered the aforesaid materials so as to find out if the charges could be framed against the accused on the basis of those documents before quashing of the proceeding. 20. In CBI Vs. V. K. Bhutiani (Supra) – the question raised directly before the Hon’ble Court whether a Criminal proceeding can be quashed simply on the ground that Central Vigilance Commission exonerated the accused in a departmental proceeding. In that case, in fact and in substance, the CVC did not give cleanchit to the accused. The Hon’ble Court was pleased to held that report of CVC may be a relevant factor but it can not be held to be the “ be all or end all “ when the accused is being prosecuted for serious offences. 21. In the instant case, no doubt, the petitioner Milon kumar Ghosh allegedly has committed a serious offence. The Hon’ble Court was pleased to held that report of CVC may be a relevant factor but it can not be held to be the “ be all or end all “ when the accused is being prosecuted for serious offences. 21. In the instant case, no doubt, the petitioner Milon kumar Ghosh allegedly has committed a serious offence. His name, however, is not found place in the F.I.R. In course of investigation, truth was unearthed and it was found that he being the Branch Manager and the accused no. 4 being the General Manager of the Branch were also connected with the offence allegedly committed by the Co-accused. There are specific allegations against him. The charge-sheet was filed in the learned Special Judge and before consideration of charge, the petitioner Milon kumar Ghosh had taken out an application praying for his discharge from the case on the ground that he was exonerated from the particular charge amongst others by the CVC in a departmental proceeding. That report was placed before the Court and the learned Court did not at all consider the same in order to find out whether the matter was disposed of by the CVC on merit or not or whether the charge framed by the CVC against the petitioner is similar to that as detected by the Investigating Officer in the Criminal proceeding pending before it. 22. The question automatically comes in that whether the Court is supposed to consider documents placed before it by the accused praying for his discharge from the case in the event of his exoneration of the same charge by a departmental proceeding. 23. There can not be any debate on the settled position of law that for the purpose of framing charge or discharging an accused, the Court should not embark upon an enquiry in respect of merit of the acquisition. However, in an appropriate case, if on the face of the documents which are beyond suspicion or doubt, placed by the accused, the acquisition against him can not stand, it would be travesty of justice if the accused is relegated to trial and is asked to prove his innocence before the trial Court. However, in an appropriate case, if on the face of the documents which are beyond suspicion or doubt, placed by the accused, the acquisition against him can not stand, it would be travesty of justice if the accused is relegated to trial and is asked to prove his innocence before the trial Court. It is also trite law that acquittal in adjudication proceeding is not binding on Court in a Criminal Proceeding nor does a prosecution under Prevention of Corruption Act depends on the result of adjudication proceeding by CVC. But, as I already stated, when a report of adjudication proceeding is placed before the Court for consideration as to whether an accused is to be discharged or not on the basis of finding of departmental proceeding, Court should and must consider the same irrespective of the outcome of such consideration. Since, it is not binding on the Court it can take independent view because the report of investigation has also been placed before it. But when there is an opportunity for the Court to look into the findings of fact taken by the CVC against the accused/petitioner on the same set of facts, it ought to have availed of that opportunity. Simply keeping the same on record without taking the same into consideration at all is amounting to miscarriage of justice and against the spirit of law. 24. In view of the facts above, I remit the matter back to the learned Special Court CBI, Alipore to reconsider the entire matter after taking the departmental proceeding reports into consideration without quashing the proceedings as prayed for in alternative. The learned Court, it is made clear, is free to take any independent view in this regard without being influenced or swayed by any observation made by this Court. This Court reiterates that it is entirely on the learned Judge to decide as to whether there are sufficient reasons to continue the Criminal proceeding against the petitioner/accused Milon Kumar Ghosh. Since the matter is pending for quite a long time. I direct the learned Judge, Fast Court at Alipre to take up the matter without delay, if possible, within a month from the date of communication of the order. 25. Mr. Basu as well as Mr. De be given typed copy of this order, so that it can be placed before the learned Judge at the earliest. 26. I direct the learned Judge, Fast Court at Alipre to take up the matter without delay, if possible, within a month from the date of communication of the order. 25. Mr. Basu as well as Mr. De be given typed copy of this order, so that it can be placed before the learned Judge at the earliest. 26. The learned Judge is also directed to act on such a plain copy to avoid delay. 27. The revision application is, thus, allowed and disposed of.