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Rajasthan High Court · body

2011 DIGILAW 1831 (RAJ)

S. M. Singh v. State of Rajasthan

2011-08-26

SANDEEP MEHTA

body2011
Hon'ble MEHTA, J.—The present Criminal Misc. petition under Sec. 482 Cr.P.C. has been filed by the petitioners, who are all employees of the Punjab National Bank, assailing the order dated March 1st, 2007 passed by the Civil Judge (Sr. Division) cum Additional Chief Judicial Magistrate, Deeg, district Bharatpur, taking cognizance against them for the offence u/Ss. 420, 406, 421 and 477 IPC. 2. Succinctly stated the facts of this case are that all the petitioners are employees of the Punjab National Bank (for short, "the Bank"). The allegations of the complainant are that he had taken a loan of a sum of Rs. 70,000/- from the Bank on 27.3.1990 and the margin money of Rs. 23,500/- was deposited by complainant for the purposes of purchasing a photo stat machine. On the total money being received, a demand draft was given to the Firm M/s. Techniques, New Delhi and the photo stat machine was handed over to the complainant, non-petitioner No. 2, after being hypothecated with the Bank. The interest to be paid was fixed @ 13% on quarterly basis. The machine was insured and the insurance amount was also to be paid to the Bank. On 12th June, 1995, after using the machine for a period of more than five years, the complainant lodged a report at the concerned Police Station, inter-alia, alleging that the machine had been stolen. Based on the incident of theft of machine, the complainant also submitted a claim with the Insurance Company. 3. It appears that the Insurance Company raised some issues about the cover note and there-upon, the complainant was forced to approach the District Consumer Forum, impleading both the Insurance Company as well as the Bank as party to the claim. The Consumer Forum accepted the claim of the complainant and made an award in his favour, for a sum of Rs. 59,315/- along with interest @ 15%. It appears that pursuant to the award, the complainant accepted the amount of insurance directly from the insurance Company. 4. Since the complainant did not make payment of the dues of the Bank, which grew to the tune of Rs. 1,89,349/-, the Bank filed a suit for recovery on 4.5.1998. As soon as the complainant came to know about for factum of filing of the suit, he filed a criminal complaint against the Bank officials on 2.6.1998. 4. Since the complainant did not make payment of the dues of the Bank, which grew to the tune of Rs. 1,89,349/-, the Bank filed a suit for recovery on 4.5.1998. As soon as the complainant came to know about for factum of filing of the suit, he filed a criminal complaint against the Bank officials on 2.6.1998. In the Civil Suit, the complainant entered into a compromise with the Bank on 21st February, 2005 and made payment of Rs. 1,12,000/- to the Bank and gave in writing that he would withdraw the cases against the Bank and that thereafter, there will be no dispute with the Bank. 5. In the mean-time, the complainant kept on prosecuting his complaint and based on the complaint and his statement, the Court proceeded to take cognizance against the Bank officials, who are petitioners before this Court, for the offences mentioned above, on 12.7.2001. The petitioners challenged the order taking cognizance by filing the Revision Petition and the Revisional Court, by order dated 30th June, 2005, set aside the order taking cognizance and remanded the matter back to the trial Court for passing fresh order after giving opportunity of hearing to the complainant. Again after remand, the learned Magistrate, by order dated 1.3.2007, proceeded to take cognizance against the petitioners for the offences mentioned above. Hence the present petition. 6. Assailing the order taking cognizance, Mr. S.R. Surana, Sr. Advocate, appearing on behalf of the petitioners has strenuously contended that the learned Magistrate has proceeded to take cognizance against the petitioners in an absolutely mechanical fashion. The highest allegations as made by the complainant do not disclose the ingredients of the offences for which cognizance has been taken against the petitioners. Neither the petitioners committed any cheating with the complainant nor has there been any breach of trust by the petitioners. So far as so called interpolation in the cover note is concerned, it has been submitted that the insurance for the photo-state was being made regularly and in the last preceding years, before the machine was stolen. However, by error, in the cover note for the year 1995, photography equipment was mentioned, which too was rectified. It has been submitted that the insurance cover note as not a valuable security and the so-called act of correction therein, even if accepted to be true, cannot constitute the offence u/S. 477 IPC. 7. However, by error, in the cover note for the year 1995, photography equipment was mentioned, which too was rectified. It has been submitted that the insurance cover note as not a valuable security and the so-called act of correction therein, even if accepted to be true, cannot constitute the offence u/S. 477 IPC. 7. Per contra, the learned Public Prosecutor and the learned counsel for the complainant have submitted that in this case the Bank officials have cheated the complainant. It was submitted that the Bank officials were supposed to make payment of premium money from the complainant's account for insuring the machine of the complainant and instead they misappropriated the money and as such the offences u/Ss. 406 and 420 IPC were clearly made out. It has also been submitted that since, the insurance cover note was in the possession of the Bank officials, if any interpolation was made therein, the Bank officials were responsible for the same. 8. When specific query was put to the counsel for the complainant, as to who was the person who had made interpolation in the cover note was made, the counsel for the complainant was not able to point out any specific material in this regard. 9. I have given my thoughtful consideration to the arguments advanced at the bar, the order impugned and the material as produced on the record. 10. So far as the allegation regarding commission of offence u/Ss. 420, 421 and 406 IPC are concerned, ex-facie the complaint does not disclose any of the ingredients necessary for the constitution of said offences. There is no material on record to infer as to what inducement was given by the Bank official to the complainant and as to what was the property with which the complainant parted with in favour of the Bank so as to invoke the offence of cheating. Likewise, as regards the allegation of criminal breach of trust, the entrustment which has been made is to the complainant, rather than to the petitioners, Bank officials. The complainant was holding the photo-stat machine, which was hypothicated with the Bank as a trust property. The same was stolen and thereafter the insurance has made good the amount of machine. A sum of Rs. 1,89,349/- became over due to be paid by the complainant against the loan. The complainant was holding the photo-stat machine, which was hypothicated with the Bank as a trust property. The same was stolen and thereafter the insurance has made good the amount of machine. A sum of Rs. 1,89,349/- became over due to be paid by the complainant against the loan. The Bank filed a suit for the recovery of the said amount and the complainant himself settled the loan account by making payment of Rs. 1,12,000/- to the Bank on 21st February, 2005. In terms of the agreement, the Bank withdrew its suit against the complainant. As such, there was no question of the Bank officials having committed breach of trust. They were never entrusted with any thing or property by the complainant so that they could convert the same to their own use. Thus, prima facie the offence u/Ss. 406, 420 and 421 IPC are not made out against any of the accused from the admitted facts and the highest allegations of the complainant. 11. Now coming to the question of offence u/Ss. 467 and 477 IPC, this Court has to consider as to what was the document, which is alleged to be forged. The complainant has come out with the case that the Bank officials deliberately made interpolation in the insurance cover note and thereby deprived the complainant from receiving the insurance money. In this regard, firstly the insurance money was not to be paid to the complainant directly and the same was to be received by the Bank and secondly, the insurance money was to be adjusted in the loan account of the complainant. The so-called interpolation in the insurance document, which has been shown to the Court, is that the insurance cover note contains the description of the premises as a `photography shop' and the equipment sought to be insured was mentioned as `photographic' equipment, which has been allegedly interpolated to photo-copy shop and `photo-stat machine'. Firstly, there is no material on record to show as to who made interpolation and secondly, the so-called changes in the insurance cover note have been made after due permission from the Insurance Company. That apart, the alteration in the document also does not appear to be made with any ulterior motive or mens rea. Firstly, there is no material on record to show as to who made interpolation and secondly, the so-called changes in the insurance cover note have been made after due permission from the Insurance Company. That apart, the alteration in the document also does not appear to be made with any ulterior motive or mens rea. The complainant has shown the cover notes of the insurance made by the Bank in the earlier years and in these cover notes the correct details of the premises as well as the machine was given. It appears that in the year 1995, by error, incorrect descriptions were given in the cover note, which were later-on rectified. Therefore, the Bank officials had nothing to gain by making interpolation in the document i.e. the insurance cover note. The insurance claim has ultimately been accepted by the District Consumer Forum and an award has been made in favour of the complainant. Therefore, ex facie none of the offences for which cognizance has been taken against the petitioners can be said to be made out against them. 12. The Hon'ble Apex Court in the decision rendered in the case of Punjab National Bank vs. Surendra Prasad Sinha, reported in 1991 Supp (1) SCC 499 has held that judicial process should not be an instrument of oppression or needless harassment. The Hon'ble Court observed as under: "It is also salutary to note that judicial process should not be an instrument of oppression or needless harassment. The complaint was laid impleading the Chairman, the Managing Director of the Bank by name and a host of officers. There lies responsibility and duty on the Magistracy to find whether the concerned accused should be legally responsible for the offence charged for. Only on satisfying that the law casts liability or creates offence against the juristic person or the persons impleaded then only process would be issued. At that stage the court would be circumspect and judicious in exercising discretion and should take all the relevant facts and circumstances into consideration before issuing process lest it would be an instrument in the hands of the private complaint as vendetta to harass the persons needlessly. Vindication of majesty of justice and maintenance of law and order in the society are the prime objects of criminal justice but it would not be the means to wreak personal vengeance. Vindication of majesty of justice and maintenance of law and order in the society are the prime objects of criminal justice but it would not be the means to wreak personal vengeance. Considered from any angle, we find that the respondent had abused the process and laid complaint against all the appellants without any prima facie case to harass them for vendetta." 13. Thus, in the light of the decision of the Hon'ble Apex Court, referred to supra, this Court has no hesitation in arriving to a conclusion that the complainant has misused the process of criminal law for satisfying his personal vendetta. He had already entered into a compromise with the Bank in the Civil suit in relation to the repayment of the loan amount and yet he kept on persuing the criminal matter against the Bank employees despite agreeing to withdraw the same. The motive behind this prosecution cannot at all be said to be bona fide. 14. Resultantly, the petition succeeds and is hereby allowed. The order dated 1.3.2007 taking cognizance and all proceedings sought to be taken pursuant to the order taking cognizance against the petitioners, are hereby quashed.