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Madhya Pradesh High Court · body

2016 DIGILAW 539 (MP)

Ravindra Kumar Dubey v. State of Madhya Pradesh

2016-07-08

ASHOK KUMAR JOSHI, S.K.GANGELE

body2016
JUDGMENT : 1. The petitioner has filed this petition under Section 482 of Cr.P.C., for quashment of the charge-sheet and criminal proceedings registered against the petitioner vide Crime No. 47/2015 at Police Station Harda District Harda for the offences punishable under Sections 406, 408, 409, 419, 420, 421, 467, 120- B, 489-A of IPC and under Section 13 (1) (d) read with Section 13 (2) of the Prevention of Corruption Act, 1988. 2. At the relevant time, the petitioner was posted as Chief Executive Officer of Zila Sahkari Kendriya Bank Maryadit Hoshangabad. There were complaints in regard to irregularities at Main Branch Harda of District Co-operative Central Bank Hoshangabad. Additional Collector G.K. Mishra, S.S. Solanki SDM Harda, M.K. Prahlad, Nodel Officer of District Co-operative Central Bank and the petitioner inspected the main Branch of the Bank Harda on 22.01.2015 at around 10.45 AM. Mr. Sudarshan Joshi, Incharge of the Branch was found absent. Cashier Bhavana Kale was present. Cash Book of the Branch was inspected and it was noticed as per cash book, there must be a cash amount of Rs. 2,79,82,163.00 in the chase of the Bank. Mr. Sudarshan Joshi, Incharge Manager of the Bank was absent hence, a cash box was opened and it was found that an amount of Rs. 2,81,513.00 in the cash box of the Bank. The report of the incident was lodged at the Police Station by the petitioner himself. Mr. Joshi surrendered at the Police Station along with Cash of Rs. 2,77,00650.00. The same was seized and seizure memo was also prepared. Mr. Joshi in his memorandum recorded under Section 27 of the Evidence Act stated that Mr. Hemant Vyas had induced him that if I would handover money which was in the cache box of the Bank, he would pay me certain commission and when the money would be needed, he return the same. On this promise I had given Mr. Hemant Vyas some time Rs. 10 Lacs, Rs. 20 Lacs, Rs. 30 Lacs and Rs. 40 Lacs. He used to return the money and he used to give commission at the rate of 0.5%. He further stated that Mr. Hemant used to pay commission to Mr. S.K. Prahlad, Bhavana Kale and the present petitioner. 3. On the basis of memorandum, the petitioner was also made accused subsequently and after investigation the police filed the charge-sheet against the petitioner. He further stated that Mr. Hemant used to pay commission to Mr. S.K. Prahlad, Bhavana Kale and the present petitioner. 3. On the basis of memorandum, the petitioner was also made accused subsequently and after investigation the police filed the charge-sheet against the petitioner. The petitioner challenged the charge-sheet and contended that on the basis of statement of co-accused, he cannot be made accused. 4. On 21.04.2016, the counsel for the petitioner argued that petitioner being public servant, the local police had no jurisdiction to prosecute the petitioner in view of the Special Police Establishment Act. This Court vide interim order dated 21.4.2016, stayed further proceedings pending before the Court relying on the judgment of the apex Court in the matter of Central Bureau of Investigation, Bank Securities and Fraud Cell v. Ramesh Gelli and others reported in (2016) 3 SCC 788 . In such circumstances, this petition is heard and disposed of finally with the consent of the parties. 5. Learned Senior counsel has argued on merits of the case, however, he has restricted his arguments on the ground of competence of the prosecuting Agency to prosecute the petitioner. It is contended by the Senior counsel that the petitioner is a public servant because he was posted at the relevant time as Chief Executive Officer of District Co-operative Central Bank Ltd., Hoshangabad, hence in view of the provisions of Special Police Establishment Act, the local police has no jurisdiction and authority to prosecute the petitioner. In support of his contention, learned Senior counsel relied on the judgment of the apex Court in the matter of Central Bureau of Investigation, reported in (2016) 3 SCC 788 (supra). 6. Learned counsel for the State has submitted that the prosecuting Agency has already filed the charge-sheet and the investigation is complete. The case is pending before the Court. At this stage, the jurisdiction to prosecute the petitioner could not be looked into. 7. It is an admitted fact that the petitioner was working as Chief Executive Officer, District Co-operative Central Bank Ltd., Hoshangabad. The allegation against the petitioner is that he had not supervised the working of the main Branch Harda and permitted the other accused persons who were posted at the relevant time to keep extra amount in the cache box of the Bank beyond permissible limit. One of the co-accused namely; Sudarshan Joshi in his memorandum deposed that Mr. The allegation against the petitioner is that he had not supervised the working of the main Branch Harda and permitted the other accused persons who were posted at the relevant time to keep extra amount in the cache box of the Bank beyond permissible limit. One of the co-accused namely; Sudarshan Joshi in his memorandum deposed that Mr. Hemant Vyas had also paid some amount to the petitioner. There is no independent evidence to this effect. The petitioner himself lodged the report at the Police Station. No amount has been recovered from the petitioner. It is also a fact that total amount of Rs. 2,77,00650/- was handed over by one of the co-accused Mr. Sudarshan Joshi to the police at Police Station Harda. The same was also seized. The allegation is that Mr. Hemant Vyas used to take the amount from the Bank and he used to give commission to certain employees of the Bank. 8. Section 53 of M.P. Co-operative Societies Act 1960 (herein after in short 'the Act of 1960') prescribes super-session of the Committee. The proviso of the aforesaid Section further provides In case of co-operative Bank, the order of super-session shall not be passed without previous consultation with the Reserve Bank of India. 8. Section 53 of M.P. Co-operative Societies Act 1960 (herein after in short 'the Act of 1960') prescribes super-session of the Committee. The proviso of the aforesaid Section further provides In case of co-operative Bank, the order of super-session shall not be passed without previous consultation with the Reserve Bank of India. Proviso to Section 53 (I) of the Act of 1960 reads as under:- "Provided further that in case of a Co-operative Bank, the order of super-session shall not be passed without previous consultation with the Reserve Bank: [Provided further that if no communication containing the views of the Reserve Bank of India, on action proposed is received within (thirty days) of the receipt by that Bank of the request soliciting consultation, it shall be presumed that the Reserve Bank of India agrees with the proposed action and the Registrar shall be free to pass such order as may be deemed fit:] [Provided also that in case of Co-operative bank, if so required by the Reserve Bank in the public interest or for preventing the affairs of the Cooperative Bank being conducted in a manner, detrimental to the interest of the depositors or for securing the proper management of a Cooperative Bank, the Registrar shall pass an order for the super-session of its Board of Directors or managing body by whatever name called and for appointment of an Administrator therefor for such period or periods not exceeding 5 years in the aggregate, as may from time to time be specified by the Reserve Bank of India and on such appointment, the provisions of sub-section (4), (5), (6) and (8) shall apply as if orders were passed under sub-section (1);" 9. From the aforesaid statutory provision it is clear that Reserve Bank of India has control over the management and functioning of the co-operative Bank. The apex Court in the matter of Central Bureau of Investigation, Bank Securities and Fraud Cell v. Ramesh Gelli and others reported in (2016) 3 SCC 788 has held to the effect that the Managing Director and Executive Director of banking Company operating under license issued by Reserve Bank of India are public servants. Para 27, 28 and 29 of the judgment are relevant the same reads as under:- "27. Para 27, 28 and 29 of the judgment are relevant the same reads as under:- "27. In the light of law laid down by this court as above, it is clear that object of enactment of P.C. Act, 1988, was to make the anti corruption law more effective and widen its coverage. In view of definition of public servant in Section 46A of Banking Regulation Act, 1949 as amended the Managing Director and Executive Director of a Banking Company operating under licence issued by Reserve Bank Of India, were already public servants, as such they cannot be excluded from definition of `public servant'. We are of the view that over the general definition of `public servant' given in Section 21 of IPC, it is the definition of `public servant' given in the P.C. Act, 1988, read with Section 46-A of Banking Regulation Act, which holds the field for the purposes of offences under the said Act. For banking business what cannot be forgotten is Section 46A of Banking Regulation Act, 1949 and merely for the reason that Sections 161 to 165A of IPC have been repealed by the P.C. Act, 1988, relevance of Section 46A of Banking Regulation Act, 1949, is not lost." 28. Be it noted that when Prevention of Corruption Act, 1988 came into force, Section 46 of Banking Regulation Act, 1949 was already in place, and since the scope of P.C. Act, 1988 was to widen the definition of "public servant". As such, merely for the reason that in 1994, while clarifying the word "chairman", legislature did not substitute words "for the purposes of Prevention of Corruption Act, 1988" for the expression "for the purposes of Chapter IX of the Indian Penal Code (45 of 1860)" in Section 46A of Banking Regulation Act, 1949, it cannot be said, that the legislature had intention to make Section 46A inapplicable for the purposes of P.C. Act, 1988, by which Sections 161 to 165A of IPC were omitted, and the offences stood replaced by Sections 7 to 13 of P.C. Act, 1988. 29. A law which is not shown ultravires must be given proper meaning. Section 46-A of Banking Regulation Act, 1949, cannot be left meaningless and requires harmonious construction. As such in our opinion, the Special Judge (CBI) has erred in not taking cognizance of offence punishable under Section 13(2) read with Section 13(1)(d) of P.C. Act, 1988. 29. A law which is not shown ultravires must be given proper meaning. Section 46-A of Banking Regulation Act, 1949, cannot be left meaningless and requires harmonious construction. As such in our opinion, the Special Judge (CBI) has erred in not taking cognizance of offence punishable under Section 13(2) read with Section 13(1)(d) of P.C. Act, 1988. However, we may make it clear that in the present case the accused cannot be said to be public servant within the meaning of Section 21 IPC, as such offence under Section 409 IPC may not get attracted, we leave it open for the trial court to take cognizance of other offences punishable under Indian Penal Code, if the same get attracted." 10. In the aforesaid case, the Bombay High Court had quashed the prosecution initiated against the Managing Director and Executive Director of Global Trust Bank, launched by CBI on the ground that they are not public servant. The Apex Court set aside the order of the Bombay High Court and held that the aforesaid persons are public servants and CBI has power and authority to prosecute the aforesaid persons under the provisions of Prevention of Corruption Act, 1988. 11. It is a fact that Bank in which the petitioner was working, was operating under the license issued by Reserve Bank of India. The aforesaid agency i.e. Reserve Bank of India has also statutory power in the event of super-session of the Society and Management of the Society. 12. In view of the law laid down by the apex Court in the matter of Central Bureau of Investigation v. Ramesh Gelli and others reported in (2016) 3 SCC 788 , it is held that the petitioner is a "public servant" and in view of the provisions of the Madhya Pradesh Police Establishment Act 1947, the Special Police Establishment has power and authority to investigate the specified offences against the petitioner. In view of Section 3 of the aforesaid Act, which reads as under:- "3. Offence to be investigated by special police establishment.- The State Government may, be notification, specify the offences or classes of offences which are to be investigated by [Madhya Pradesh] Special Police Establishment." 13. In view of Section 3 of the aforesaid Act, which reads as under:- "3. Offence to be investigated by special police establishment.- The State Government may, be notification, specify the offences or classes of offences which are to be investigated by [Madhya Pradesh] Special Police Establishment." 13. In this view of the matter, the investigation conducted by the local police and the charge-sheet filed by the police against the petitioner is without power and authority in regard to special offences i.e. punishable under the Prevention of Corruption Act 1988, because the matter is interrelated hence, it would not be appropriate that local police may prosecute the petitioner for other offences also. Consequently, the charge-sheet and the criminal proceedings initiated against the petitioner vide Crime No.47/2015 registered at Police Station Harda are hereby quashed being without jurisdiction. It is hereby clarified that this Court has not opined on the merits of the case and the competence of competent prosecuting Agency.