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2014 DIGILAW 807 (PAT)

Deepa Prasad v. State of Bihar

2014-07-23

ASHUTOSH KUMAR

body2014
ASHUTOSH KUMAR, J.:–Heard Mr. Chittranjan Sinha, learned senior counsel assisted by Mrs. Sama Sinha, for the petitioner, Mr. Vikash Ranjan, counsel for the Bihar State Financial Corporation and Mr. Jharkhandi Upadhaya learned APP for the State. 2. The petitioner was made accused in Kotwali P.S. Case No. 219 of 1993. After investigation of the aforementioned case, chargesheet was submitted whereupon cognizance was taken for the offences under Sections 406,409,420 and 120B of the Indian Penal Code. 3. The petitioner preferred an application for discharge before the Court below, which was rejected on 08.01.2003. Being dissatisfied with such refusal by the Court, the petitioner preferred revision before the Additional Sessions Judge IV, Patna in Cr. Revision No. 30 of 2003. The aforesaid revision application of the petitioner also stood dismissed vide order dated 05.08.2005. Both the orders, namely, the order refusing the discharge dated 08.01.2003 passed by the learned Judicial Magistrate 1st Class, Patna in G.R. Case No. 2702 of 1993 arising out of Kotwali P.S. Case No. 219 of 1993 and the revisional order dated 05.08.2005 passed by the learned Additional Sessions Judge IV, Patna in Cr. Revision No. 30 of 2003 are under challenge. 4. One A.Z. Md. Nazim, the then Branch Manager (Patna Central) of Bihar State Financial Corporation (hereinafter referred to as the ‘Corporation’) lodged a written report, addressed to the Officer-in-Charge of the concerned police station, alleging a Partnership firm, namely, M/s. Standard Steel Industries, Patna applied for loan from the Corporation. The proposal of the firm was approved and a term loan of Rs. 4.63 lacs was sanctioned by the then Regional Manager of the Corporation. The partners of the firm, after the approval of the proposal, applied for release of the first installment of loan for the purpose of procuring machines from M/s. Vaishnav Agencies, situated at S.P. Verma Road, Patna. It was alleged in the written report that the partners, in collusion with one B.K. Sinha, the supplier of M/s. Vaishnav Agencies, submitted a letter of the supplier that it had received a sum of Rs. 90,000/- advanced through a cheque drawn at Punjab National Bank of Nawada Branch. 5. The petitioner, the then Manager of Patliputra Branch, Patna, was alleged to have intentionally ignored the requirement of verifying the transaction of Rs. 90,000/- as advance having been given to the supplier. 90,000/- advanced through a cheque drawn at Punjab National Bank of Nawada Branch. 5. The petitioner, the then Manager of Patliputra Branch, Patna, was alleged to have intentionally ignored the requirement of verifying the transaction of Rs. 90,000/- as advance having been given to the supplier. It was alleged that without such verification, she forwarded the proposal to the Regional Manager, Patna with a pay order for the release of the balance amount of loan, viz Rs. 3.08 lacs in favour of the so called supplier namely, M/s. Vaishnav Agencies. The further case of the prosecution is that such release was approved by the Regional Office, but the Branch Manager, namely, the petitioner, was advised to make payment to the supplier only after compliance of certain conditions namely : (i) providing for adequate insurance cover (ii) verification of books of accounts and (iii) the satisfaction note with respect to the advance money having been paid to the supplier and that the machines in proper form and shape only be supplied. 6. The sum and substance of the allegation, therefore, as against the petitioner was that without complying with aforementioned directions, she in the capacity of the Branch Manager of the Bank ordered for release of Rs. 3.82 lacs. The petitioner is also accused of having deputed one of the Officers of the Branch, namely, S.F. Ahmad (Assistant Manager) as her representative to look into the matter and deal with the supplier and the loanee. The draft of the loan amount was given by Mr. S.F. Ahmand, in presence of one of the partners of the firm, to M/s. Vaishnav Agencies. This was done without ensuring that M/s. Vaishnav Agencies had supplied the machinery. Making payments to a supplier, without verifying about the supply of the machinery at their end, was stated to be violative of the directions of the Corporation. 7. Before the factory could be set up, the partners quarreled among themselves, leading to complain and counter complain before the Corporation. When such dispute between the partners of the loanee firm came to surface, further directions were issued by the Corporation, one such, being inspection of site and another ensuring the installation of machines after supply. 7. Before the factory could be set up, the partners quarreled among themselves, leading to complain and counter complain before the Corporation. When such dispute between the partners of the loanee firm came to surface, further directions were issued by the Corporation, one such, being inspection of site and another ensuring the installation of machines after supply. The petitioner in her capacity as Branch Manager, after coming to know of the dispute between the partners, directed the M/s. Vaishnav Agencies not to supply the machinery for which draft had already been given. Because of such acts on the part of the petitioner, the money of the Corporation was virtually lost. In the background of such facts, the case was lodged, arraying the petitioner as one of the accused person in this case. 8. The counsel for the petitioner submits that she was not in picture when such a proposal by the loanee firm was routed or approved for grant of loan. She never played any role in the selection of the supplier, namely, Vaishnav Agnecies. As a matter of fact, the selection of the supplier firm was made by one Regional Manager of the Corporation. Her role came only after all legal formalities with respect to the approval and grant of loan were completed. During the period when such formalities were being completed, the petitioner was neither posted in the Regional Office nor was the Branch Manager of the Patliputra Branch of the Corporation. It has further been submitted on behalf of the petitioner that she joined as Branch Manager of Patliputra Branch of the Corporation on 21.09.1990. After having received the proforma invoice for release of the fund, she sent the same to the Regional Office on 17.11.1990. Only when the advance of the payment along with the cheque in the name of the supplier came, she deputed the concerned Assistant Manager namely, S.F. Ahmad (one of the co-accused) to deal with the supplier as also the partners of the firm. The petitioner had given full instructions to the concerned Assistant Branch Manager for checking the accounts and ensuring the delivery of the machines to the site of the firm. The petitioner had given full instructions to the concerned Assistant Branch Manager for checking the accounts and ensuring the delivery of the machines to the site of the firm. It is submitted on behalf of the petitioner that when she discerned that the partners are at loggerheads with each other and there is no possibility of such dispute between them coming to an end that she forbade the delivery of the machine. The intention of doing so was obviously to prevent the money of the Corporation being frittered away. 9. It is submitted on behalf of the petitioner that since the firm namely Vaishnav Agencies was in the panel of the approved suppliers for Corporation, she in her wisdom, thought that if the machinery is not supplied, then the money could be recovered from such supplier. If the machines would have been supplied, but because of the dispute between the partners the factory would not have been set up, it would have been even more difficult for the Corporation to recover the loan amount. Lastly, it was argued that since she had no personal or specific role to play either in approving the loan proposal or sanctioning the loan amount or selection of the firm, no evidence could have been brought home as against her, despite the fact that the loan money went bad. 10. Consequently, it is argued that no offence under Sections 406,409,420 and 120B of the IPC can at all be made out against her. In so far as Sections 406 and 409 of the IPC are concerned, there was no entrustment of any property or dominion over any property. The loan amount was paid by way of cheque to the approved supplier by one of the Assistant Manager of the Branch, who too was an employee of the Corporation. The aforesaid cheque was handed over to the supplier in presence of one of the partners. The dispute between the partners inter-se erupted only after the cheque was handed over to the supplier. So far as Section 420 IPC is concerned, it is not the case of the Corporation that she cheated anybody, muchless, the Corporation. If at all any fault could have been found in her action, it would be in the realm of negligence in performing the official duty and nothing beyond. So far as Section 420 IPC is concerned, it is not the case of the Corporation that she cheated anybody, muchless, the Corporation. If at all any fault could have been found in her action, it would be in the realm of negligence in performing the official duty and nothing beyond. It is submitted on behalf of the petitioner that for this act of omission, namely, non observance of the formalities, which were directed by the Corporation, she was departmentally proceeded and was also punished. She has already put up a challenge to such departmental punishment by way of a writ petition which, is pending adjudication, at the moment, before the High Court. 11. Under such circumstances, sending the petitioner for facing the trial would not serve any purpose; rather it would only be a formality, leading to harassment of the petitioner. Moreso, when she has already superannuated and subjected to departmental punishment. 12. The counsel for the Corporation, on the other hand, submits that if the petitioner would have had been careful enough in complying with the directions of the Corporation, the machines would have been supplied and perhaps the production of the factory would have commenced. In that event, the money of the Corporation would not have been wasted and the investments would not have become NPA (none performing assets). It has further been submitted on behalf of the Corporation that the quotation of the machines, which was obtained from M/s. Vaishnav Agencies, displayed inflated price and the petitioner was related to the supplier. Therefore, there is a strong suspicion that that petitioner, deliberately, as part of larger strategy, allowed the money to go into to the hands of the supplier and at the same time instructed the supplier not to supply the machines. It was also stated by the Corporation that one of the co-accused persons had put up a challenge to his prosecution, which was later withdrawn and he is about to be tried in the present case. 13. The petitioner, in reply to such assertions, has said that the selection of the supplier was not at her instance and in the investigation for five years, it was found that the petitioner had no relation whatsoever with the proprietors of the supplier firm. 14. 13. The petitioner, in reply to such assertions, has said that the selection of the supplier was not at her instance and in the investigation for five years, it was found that the petitioner had no relation whatsoever with the proprietors of the supplier firm. 14. Let it be noted that if the cheque had been handed over to the supplier and for some reason or the other the machines could not be supplied, it was up to the Corporation for recovery of that amount from the supplier through due process of law. If the management of the Corporation would have had been careful, such amount of money could have been recovered. No such steps were taken by the Corporation and only as a formality, the present case was lodged. 15. As a result of the aforesaid discussion, this Court is inclined to hold, and does hold that no offence, for which the petitioner has been charged, can be made out against her. 16. As such, both the orders dated 08.01.2003 passed by the learned Judicial Magistrate 1st Class, Patna in G.R. Case No. 2702 of 1993 arising out of Kotwali P.S. Case No. 219 of 1993 and the revisional order dated 05.08.2005 passed by the learned Additional Sessions Judge IV, Patna in Cr. Revision No. 30 of 2003 are set aside. The application is allowed. ?