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2018 DIGILAW 770 (GAU)

SHANKAR SINHA v. STATE OF ASSAM

2018-05-10

AJIT BORTHAKUR

body2018
JUDGMENT/ORDER : 1. By this common judgment, I propose to dispose of the above 2 (two) criminal petitions filed under Section 482 Cr.P.C., which are pertaining to allegations of embezzlement of customers money credited to their respective accounts maintained in the Induslnd Bank at Guwahati. 2. In Crl. Pet. No. 983/ 2017, under Section 482 Cr.P.C., the petitioners have prayed for quashing and setting aside the investigation and further proceeding in the FIR, registered as Paltan Bazar P.S. Case No. 1140/2017 under Section 120B/420/468/471 IPC against them. 3. In Crl. Pet. No. 984/2017, under Section 482 Cr.P.C., the petitioners have prayed for quashing and setting aside the investigation and further proceeding in the FIR, registered as Paltan Bazar P.S. Case No. 717/2017 under Section 120B/420/409/468 IPC and Charge-Sheet, dated 03.11.2017, filed in G. R. Case No. 9942/2017 of the Court of learned Chief Judicial Magistrate, Kamrup (M) at Guwahati. 4. The petitioners case, in a nutshell, is that on 29.07.2017 at about 10 am, one Dr. Biraj Jyoti Goswami, partner of M/s Ophthalmic Associates had lodged an FIR with the Officer-in-Charge, Paltan Bazar P.S., inter-alia, alleging in detail the fraudulent activities in their account maintained in Induslnd Bank, G. S. Road Branch, Guwahati, whereupon Paltan Bazar P.S. Case No. 711/2017 under Section 419/420 IPC was registered against the said bank branch officials. Thereafter, on the same day, that is, 29.07.2017, at around 11.30 pm., one Amal Deka, Branch Manager, Induslnd Bank, Guwahati Main Branch, also lodged anther FIR with the Officer-in-Charge, Paltan Bazar P.S., Guwahati, inter-alia, alleging commission of fraud, manipulation, misappropriation of property, breach of trust and other offences by the petitioners, husband and wife working in the same bank. The said FIR was registered as Paltan Bazar P.S. Case No. 717/2017 under Section 120B/409/420/468 IPC, dated 29.07.2017. Both the petitioners were arrested in connection with the said two cases and got released on bail. While releasing the petitioner No. 1, on bail, in connection with the said Paltan Bazar P.S. Case No. 717/2017, a bench of this Court observed that both the aforementioned FIRs are similar and in that sense the investigation in the earlier case will cover the latter case vide order, dated 24.10.2017, passed in BA No. 1435/2017. While releasing the petitioner No. 1, on bail, in connection with the said Paltan Bazar P.S. Case No. 717/2017, a bench of this Court observed that both the aforementioned FIRs are similar and in that sense the investigation in the earlier case will cover the latter case vide order, dated 24.10.2017, passed in BA No. 1435/2017. Eventually, on completion of the investigation in Paltan Bazar P.S. Case No. 717/2017, Police filed Charge-Sheet, dated 03.11.2017 against both the petitioners and another, with prayer seeking permission to file supplementary Charge-Sheet, which was registered as G. R. Case No. 9942/2017 in the Court of learned Chief Judicial Magistrate, Kamrup (M), Guwahati. Thereafter, on 22.11.2017, one Chiranjib Chakraborty, Branch Manager, Induslnd Bank, Guwahati Branch lodged another FIR with the Officer-in-Charge, Paltan Bazar P.S., inter-alia, alleging that in continuation of their earlier complaint of misappropriation of funds of the Accounts of various customers, which was subsequently registered as Paltan Bazar P.S. Case No. 717/2017 against the petitioners, two customers have informed that post reconciliation of their accounts at their end, it has come to light that they had been provided with fabricated statements of their accounts and that forged signatures were used to siphon out funds from their accounts, which amounted to Rs.70 lacs, more than the amount, which was reported earlier. This FIR has been registered as Paltan Bazar P.S. Case No. 1140/2017, under Sections 120B/420/468/471 IPC, dated 22.11.2017, which is presently under investigation. The petitioners have contended that Paltan Bazar P.S. Case Nos. 717/2017 and 711/2017 as well as 1140/2017 are containing identical allegations against the petitioners and so in utter violation of the mandate of Article 21 of the Constitution of India and the third FIR, dated 22.10.2017 is hit by section 162 Cr.P.C. 5. The respondent No. 2/ Branch Manager, Induslnd Bank, Guwahati Branch in his affidavit-in-opposition averred that the petitioner No. 1 was the manager of Induslnd Bank Ltd., Gangtok Branch and his wife petitioner No. 2 was the Deputy Manager of Guwahati Branch of the same bank and they along with another in a pre-planned manner committed fraud with the Bank causing it to suffer huge pecuniary loss pertaining to customers deposits. It has been further contended that the aforesaid FIRs in succession had to be filed based on discovery of different fraudulent transactions committed by the petitioners resorting to forgery, as per fresh allegations received from the banks customers and on the banks internal enquiry. It has also been contended that investigation into the FIR, whereupon Paltan Bazar P.S. Case No. 1140/17 is registered is underway and as such, at this stage, if the FIR is quashed, the entire investigation will be adversely affected. Hence, it is prayed to dismiss the petition. 6. Mr. S. Mitra, learned counsel for the petitioners, submits that the petitioners have been put to serious embarrassment over the same set of facts by way of filing of three FIRs and as such, in exercise of the wholesome power under Section 482 Cr.P.C., this Court may quash the third FIR upon which Paltan Bazar P.S. Case No. 1140/17 is registered. Mr. Mitra submits that justice demands that the petitioners cannot be vexed repeatedly on the same set of facts exposing them to face a number of criminal proceedings. 7. Mr. B. Gogoi, learned Addl. PP, submits that three FIRs in question do not relate to the same set of facts and the allegations are rooted in fraudulent series of acts, which surfaced one after another involving illegal siphoning of customers money of different amounts. Mr. Gogoi further submits that in the banks internal enquiry and in continuous police investigation into the allegations of siphoning of bank money, different modes of fraudulent acts committed by the petitioners and others have come to light and that it would take more time to complete the investigation into the alleged economic/ penal offences. 8. Opposing the petition, Mr. A. Bhattacharjee, learned counsel appearing for the informant/ respondent No. 2 reiterates the grounds averred in the affidavit-in-opposition and further submits that all the three FIRs are absolutely different and registered under different sections of the Indian Penal Code, as such neither of them can be quashed as all the FIRs on the face of the records make out sufficient prima-facie case against the petitioners. Mr. Mr. Bhattacharjee further submits that in the case of State of Haryana -vs-Bhajan Lal, which has been reaffirmed by the Apex Court in the case of State of Telengana -vs- Habib Abdulla Jeelani, reported in (2017) 2 SCC 779 held that if the allegations in the FIR on their face value make out a prima-facie case against the accused, the same cannot be quashed. It is also submitted that the FIRs have been lodged as the fresh fraud incidents allegedly committed on the bank by the petitioners have come to light after receipt of the fresh complaint from the customers and confirmed in departmental preliminary enquiry. 9. Perusal of the FIR, dated 29.07.2017, supported by documentary evidence whereupon Paltan Bazar P.S. Case No. 711/2017 under Section 419/420 IPC was registered revealed the allegation of fraudulent activities at Induslnd Bank, G. S. Road Branch, Guwahati without specifying the amount of money involved and without naming the culprits, who were connected therein. Subsequently, on the same day, the Branch Manager lodged another FIR, whereupon Paltan Bazar P.S. Case No. 717/2017 under Section 120B/409/420/468 IPC, dated 29.07.2017, was registered identified the petitioners, who are the said bank officials and husband and wife as the culprits, who allegedly misappropriated the said 1st informants deposits of Rs.27,06,201/- and Rs.15,60,000/- on 13.07.2017, fraudulent withdrawal of Rs.6 lacs and transfer of an amount of Rs.22 lacs from their account to the account of another customer. The said 2nd FIR, dated 29.07.2017, lodged by the Branch Manager as per the RBI guidelines that fraud cases are to be reported to the police. After those fraudulent transactions in the accounts of the customers, namely, Malabika Sarma, Bidyut Kalita and a firm M/S Opthalmic Associates were reported, the said bank received two such complaints from other customers, namely, Biraj Jyoti Goswami and Tanmoy Goswami, who alleged of commission of fraud in electronic and print media, by means of their forged signatures in respect of their accounts involving approximately an amount of Rs.70 lacs. The investigation into this third FIR, dated 22.10.2017, is underway. Therefore, it is crystal clear from the FIRs that the allegations contained therein were committed on different occasions and in different illegal modes and further, through forgery of signatures of the customers in respect of different quantum of money deposits made in their accounts. The investigation into this third FIR, dated 22.10.2017, is underway. Therefore, it is crystal clear from the FIRs that the allegations contained therein were committed on different occasions and in different illegal modes and further, through forgery of signatures of the customers in respect of different quantum of money deposits made in their accounts. The allegations in fact relate to economic offences, which normally constitute a distinct category of offences, unlike of a general incident, which concerns single set of facts. 10. In the above context, as Mr. Bhattacharjee submits, a reference may be made to the relevant paras of the judgment delivered in S.M. Datta -vs- State of Gujarat, reported in Special Leave Petition (Civil) 1566-69 of 2000, which are herein below extracted :- "Since the decision of Privy Council in Khwaja Nazir Ahmed (King Emperor -vs- Khwaja Nazir Ahmed), 1944 (71) IA 203; AIR 1945 PC 18 and till this day there is existing one salutary principle that in normal circumstances, the law courts would not thwart any investigation and criminal proceedings initiated must be allowed to have its own course under the provisions of Code. The powers of the police ought to stand unfettered to investigate cases where they suspect or even have reasons to suspect the commission of a cognizable offence and the FIR discloses of such offence". "When an offence is disclosed, a proper investigation in the interests of justice become necessary to collect materials for establishing the offence and for bringing the offender to book. In the absence of a proper investigation in a case where an offence is disclosed, the offender may succeed in escaping from the consequences and the offender may go unpunished to the detriment of the cause of justice and the society at large. Justice requires that a person who commits an offence has to be brought to book and must be punished for the same. If the offence will go unpunished to the serious detriment of the welfare of the society and the cause of the justice suffers. It is on the basis of this principle that the Court normally does not interfere with the investigation of a case where an offence has been disclosed". 11. If the offence will go unpunished to the serious detriment of the welfare of the society and the cause of the justice suffers. It is on the basis of this principle that the Court normally does not interfere with the investigation of a case where an offence has been disclosed". 11. Again in Parbhatbhai Aahir @ Parbatbhai Bhimsinhbhai -vs- State of Gujarat and Another, reported in (2017) 9 SCC 641 , the Apex Court reiterated the guiding principles which High Court should consider in determining whether to effect such quashment, held:- "Section 482 is prefaced with an overriding provision. The statute saves the inherent power of the High Court, as a superior court, to make such orders as are necessary (i) to prevent an abuse of the process of any court; or (ii) otherwise to secure the ends of justice. In Gian Singh (supra) a bench of three learned Judges of this Court adverted to the body of precedent on the subject and laid down guiding principles which the High Court should consider in determining as to whether to quash an FIR or complaint in the exercise of the inherent jurisdiction. The considerations which must weigh with the High Court are: "61 the power of the High Court in quashing a criminal proceeding or FIR or complaint in exercise of its inherent jurisdiction is distinct and different from the power given to a criminal court for compounding the offences under Section 320 of the Code. Inherent power is of wide plenitude with no statutory limitation but it has to be exercised in accord with the guideline engrafted in such power viz.: (i) to secure the ends of justice, or (ii) to prevent abuse of the process of any court. In what cases power to quash the criminal proceeding or complaint or FIR may be exercised where the offender and the victim have settled their dispute would depend on the facts and circumstances of each case and no category can be prescribed. However, before exercise of such power, the High Court must have due regard to the nature and gravity of the crime. Heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. cannot be fittingly quashed even though the victim or victims family and the offender have settled the dispute. Such offences are not private in nature and have a serious impact on society. Heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. cannot be fittingly quashed even though the victim or victims family and the offender have settled the dispute. Such offences are not private in nature and have a serious impact on society. Similarly, any compromise between the victim and the offender in relation to the offences under special statutes like the Prevention of Corruption Act or the offences committed by public servants while working in that capacity, etc; cannot provide for any basis for quashing criminal proceedings involving such offences. But the criminal cases having overwhelmingly and predominatingly civil flavour stand on a different footing for the purposes of quashing, particularly the offences arising from commercial, financial, mercantile, civil, partnership or such like transactions or the offences arising out of matrimony relating to dowry, etc. or the family disputes where the wrong is basically private or personal in nature and the parties have resolved their entire dispute. In this category of cases, the High Court may quash the criminal proceedings if in its view, because of the compromise between the offender and the victim, the possibility of conviction is remote and bleak and continuation of the criminal case would put the accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal case despite full and complete settlement and compromise with the victim. In other words, the High Court must consider whether it would be unfair or contrary to the interest of justice to continue with the criminal proceeding or continuation of the criminal proceeding would tantamount to abuse of process of law despite settlement and compromise between the victim and the wrongdoer and whether to secure the ends of justice, it is appropriate that the criminal case is put to an end and if the answer to the above questions is in the affirmative, the High Court shall be well within its jurisdiction to quash the criminal proceeding." "12. In Narinder Singh.., it has been observed that in respect of offences against society, it is the duty of the state to punish the offender. In consequence, deterrence provides a rationale for punishing the offender. In Narinder Singh.., it has been observed that in respect of offences against society, it is the duty of the state to punish the offender. In consequence, deterrence provides a rationale for punishing the offender. Hence, even when there is a settlement, the view of the offender and victim will not prevail since it is in the interest of society that the offender should be punished to deter others from committing a similar crime. On the other hand, there may be offences falling in the category where the correctional objective of criminal law would have to be given more weightage than the theory of deterrence. In such a case, the court may be of the opinion that a settlement between the parties would lead to better relations between them and would resolve a festering private dispute. The court observed that the timing of a settlement is of significance in determining whether the jurisdiction under Section 482 should be exercised : "29.7 Those cases where the settlement is arrived at immediately after the alleged commission of offence and the matter is still under investigation, the High Court may be liberal in accepting the settlement to quash the criminal proceedings/investigation. It is because of the reason that at this stage the investigation is still on and even the charge-sheet has not been filed. Likewise, those cases where the charge is framed but the evidence is yet to start or the evidence is still at infancy stage, the High Court can show benevolence in exercising its powers favourably, but after prima facie assessment of the circumstances/materials mentioned above. On the other hand, where the prosecution evidence is almost complete or after the conclusion of the evidence the matter is at the stage of argument, normally the High Court should refrain from exercising its power under Section 482 of the Code, as in such cases the trial court would be in a position to decide the case finally on merits" 12. The broad principles which emerge from the precedents on the subject, may be summarised in the following propositions, as observed in Parbhatbhai Aahir case (Supra): "16.1 Section 482 preserves the inherent powers of the High Court to prevent an abuse of the process of any court or to secure the ends of justice. The provision does not confer new powers. The broad principles which emerge from the precedents on the subject, may be summarised in the following propositions, as observed in Parbhatbhai Aahir case (Supra): "16.1 Section 482 preserves the inherent powers of the High Court to prevent an abuse of the process of any court or to secure the ends of justice. The provision does not confer new powers. It only recognises and preserves powers which inhere in the High Court; 16.2 The invocation of the jurisdiction of the High Court to quash a First Information Report or a criminal proceeding on the ground that a settlement has been arrived at between the offender and the victim is not the same as the invocation of jurisdiction for the purpose of compounding an offence. While compounding an offence, the power of the court is governed by the provisions of Section 320 of the Code of Criminal Procedure, 1973. The power to quash under Section 482 is attracted even if the offence is non-compoundable. 16.3 In forming an opinion whether a criminal proceeding or complaint should be quashed in exercise of its jurisdiction under Section 482, the High Court must evaluate whether the ends of justice would justify the exercise of the inherent power; 16.4 While the inherent power of the High Court has a wide ambit and plenitude it has to be exercised; (i) to secure the ends of justice or (ii) to prevent an abuse of the process of any court". 13. The facts stated in the impugned FIRs, disclosed different sets of facts alleging fraud discovered by the customers in succession involving their deposited amounts committed in a concerted manner. Thus, as the said impugned FIRs which disclosed alleged different types of cognizable offences, the same need to be investigated in depth and as such, applying the principles laid by the Supreme Court in this regard referred to above, the same cannot be quashed under Section 482 Cr.P.C. A thorough investigation into the FIRs, based on different sets of facts and different modes of embezzlement of customers money deposited with Induslnd Bank, this Court is afraid, may throw more light on the shadow areas of such fraudulent activities of the petitioner bank officials, which is necessary in the larger interest of the State. 14. 14. In the backdrop of facts, no right implicit in Article 21 of the Constitution of India is created in favour of the petitioners at the present stage of investigation and also they cannot claim to have been vexed for the same alleged offences. The statutory right of the police in investigating a case of such nature is unfettered and cannot be thwarted by way of quashing in exercise of inherent jurisdiction vested under Section 482 Cr.P.C. Consequently, the petitions stand dismissed.