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2011 DIGILAW 260 (CAL)

Alok Kumar Das v. STATE OF WEST BENGAL

2011-02-23

ASHIM KUMAR BANERJEE

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JUDGMENT ASHIM KUMAR BANERJEE. J 1. ONLY question involved in this litigation is whether an offence said to have been committed under Section 409 of the Indian Penal Code could be tried by the Special Judge although the accused was not a government employee. The petitioners were engaged by UCO Bank for collection of deposits from the village investors as agents. The Bank lodged a complaint that they committed grave illegality by misappropriation of the deposits by not depositing the sums to the til of the Bank. The petitioner earlier moved this Court on two occasions on the identical issue. In each of the situations the learned Judges of this Court observed that the petitioners should be at liberty to raise such point at the time of trial. The petitioners thereafter approached the learned Special Judge with the identical plea and prayed for their discharge under Section 239 of the Criminal Procedure Code. The learned Special Judge rejected the contentions by holding that it was a case of Criminal misappropriation and the amount involved was "definitely government money". 2. BEING aggrieved, the petitioners approached this Court challenging the order of the learned Special Judge. I heard the parties on the said application on the above mentioned dates. Mr. Debashis Roy, learned Counsel appearing for the petitioners being ably assisted by Mr. Siladitya Sanyal contended that Section 409 of the Indian Penal Code principally related to an offence committed by Public Servants. Mr Roy further contended that although the mischief of that provision could be extended to the private individuals acting as agents of the government in view of the West Bengal Criminal Law Amendment, (Special Courts) Act 1949 as amended up to 1990 the Special Court was not competent to try the offence involving private individuals. 3. TO support his contentions Mr Roy relied upon following decisions:- i) 2000 Supreme Court Cases (Criminal) Page- 533 ( State of Maharashtra "Vs- Laljit rajshi Shah and others). 3. TO support his contentions Mr Roy relied upon following decisions:- i) 2000 Supreme Court Cases (Criminal) Page- 533 ( State of Maharashtra "Vs- Laljit rajshi Shah and others). ii) (2008) Volume-I Calcutta Criminal law Reporter (Calcutta) page-573 (Srikanta Patra "Vs- State of West Bengal) iii) (2008) Volume-III Supreme Court Cases (Criminal) Page-671 (State of West Bengal "Vs- Shyama Das Banerjee and another) Opposing the application, Mr Swapan Kumar Mallick, learned Counsel appearing for the prosecution contended that the provision of the said Act of 1949 was clear that the offence could be tried by the Special Court as would appear from the schedule appended there under. Hence, the contention of the petitioners did not have any basis. He also disputed the contention of Mr. Roy that he would be losing a forum if the Special Judge would try the offence. According to Mr. Mallick, the Special Judge, although appointed from higher judiciary, was to act at the initial stage as Magistrate before the case could be committed to Sessions Court. Hence, the apprehension was misconceived. He further contended that the punishment provided in Section 409 had an outer limit of imprisonment for life. Hence even if, it was tried by a Magistrate if the Magistrate would feel that the offence committed by an accused was grave attracting higher punishment he would obviously refer it to the Sessions Court having power to impose punishment beyond 7 years. He relied on the Apex Court decisions in the case of (2009) Volume-II Supreme Court Cases (Criminal) Page-177 (M.Gopalakrisan "Vs- State by Additional SP. CBI, BS and FC, Bangalore. 4. SECTION 409 of the Indian Penal Code is quoted below "Criminal breach of trust by public servant, or by banker, merchant or agent-whoever, being in any manner entrusted with property, or with any dominion over property in his capacity of a public servant or in the way of his business as a banker, merchant, factor, broker, attorney or agent, commits criminal breach of trust in respect of that property, shall be punished with [imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.". 5. Perusal of the said provision would denote that the offence relates to Public Servant or Banker or Merchant or their Agents. UCO Bank is a government Bank. 5. Perusal of the said provision would denote that the offence relates to Public Servant or Banker or Merchant or their Agents. UCO Bank is a government Bank. The Bank appointed agents to act on their behalf. The people intending to deposit money with the Bank gave the money to those agents in good faith and being satisfied with their authority given by the Bank. Hence, the moment a private individual deposited money with that agent it was a deposit made to the Bank. If that agent misappropriated the money he misappropriated the money of the Bank and not the depositors. The matter may be looked into from another angle. The Bank authorized its agents to collect money from its constituents. The Bank informed its depositors accordingly. Hence the mischief, if any committed by its agents would make the Bank equally liable as the Bank was having the vicarious liability. In my view, the offence was between the Bank and its agents and the depositors could not suffer for the same. The Bank was responsible for refund of the deposits to various constituents who entrusted the money with the Bank through its agents. Hence, it was indeed public money kept in trust with the Bank and SECTION 409 was squarely applicable. Appropo, 1949 Act, I find that clause (2) to the said schedule was clear enough while giving power to the Special Court trying an offence under Section 409. Clause 2 clearly denotes that the Special Court would have power not only to try the offence committed by Public Servant under Section 409 but also the persons dealing with money belonging to the government as "Agent" of the Government. UCO Bank is a government Bank its agents are authorized to act on its behalf. As observed herein before the money involved in the crime was "money" belonged to UCO Bank, a Public Sector Bank. The Special Court was thus duly empowered to try the offence. 5. OTHER contentions of Mr. Roy that he would be a losing a forum also had no basis. The Special Court while trying the offence under Section 409 would act Magistrate at the initial level following the schedule of the Criminal procedure Code which denotes that the offence under this particular provision was to be tried by the Magistrate. The same learned Judge would act as Sessions Judge while holding trial. The Special Court while trying the offence under Section 409 would act Magistrate at the initial level following the schedule of the Criminal procedure Code which denotes that the offence under this particular provision was to be tried by the Magistrate. The same learned Judge would act as Sessions Judge while holding trial. The Special Court is set up only to expedite the process of trial so that time does not lapse in the process of appreciation of the matter by the learned Magistrate at the initial stage and then by another officer acting as Sessions Judge for holding the trial. The provision is only to expedite the trial and not to usurp the power of the Magistrate. 6. IN the case of State of Maharashtra (Supra), the issue raised was whether the chairman of a Cooperative Society could be held as "Public Servant" within the meaning of Section 21 of the Indian Penal Code. The Apex Court, considering the provisions of Maharashtra Cooperative Society Act, came to a conclusion that the chairman could not be held to be a Public Servant. Such finding of the Apex Court was based on interpretation of the provisions of the said Cooperative Act whereas the case in hand would involve misappropriation of money belonging to a Public Sector Bank. In the case of State of West Bengal -vs- Shyama Das Banerjee (Supra), the Apex Court observed that since the respondent seized to be a member of State Legislator at a point of time when cognizance was taken by the Special Judge the proceeding was vitiated. In our case the agent was duly authorized to collect money on behalf of the Bank. Such authority was existing on the day when the depositors invested the money with the agent. Hence this decision would also be of no assistance. 7. IN the case of Srikanta Patra (Supra), the learned Single Judge of this Court considered the question as to whether Accountant of Cooperative Society could be held to be a Public Servant. His lordship held in the negative. IN the case of M. Gopalakrishnan (Supra), the Chairman of Managing Director of Indian Bank was held to be a Public Servant. None of the aforesaid cases would support the contentions of Mr. Roy. I reiterate, the learned Judge of the Special Court accurately held that the Special Court was competent to try the offence. IN the case of M. Gopalakrishnan (Supra), the Chairman of Managing Director of Indian Bank was held to be a Public Servant. None of the aforesaid cases would support the contentions of Mr. Roy. I reiterate, the learned Judge of the Special Court accurately held that the Special Court was competent to try the offence. I do not have any point of disagreement. 8. THE revisional application fails and is hereby dismissed. Urgent photostat copy will be given to the parties, if applied for.