Calcutta High Court (Appellete Side)
Dr. Bidhan Roy vs The State Of West Bengal & Ors on 16 March, 2016
Author: R.K. Bag
Bench: R.K. Bag
Form No. J(1)
IN THE HIGH COURT AT CALCUTTA
Criminal Revisional Jurisdiction
Present :
The Hon'ble Mr. Justice R.K. Bag [Reportable]
CRR 333 of 2011
Dr. Bidhan Roy
-Versus-
The State of West Bengal & Ors.
For the petitioner : Mr.Sandipan Ganguly
: Mr. Ayan Bhattacharjee
: Mr. Arka Banerjee
For the Opposite Party Nos. 2 & 3 : Mr. Somopriyo Chowdhury
: Mr. Sourav Bhagat
: Mr. Avishek Bhandari
For the State
: Mr. Ayan Basu
Heard On: 16.03.2016
Judgment On: 16.03.2016
R.K. Bag, J.
The petitioner has challenged the order dated December 4, 2010 passed by learned Judicial Magistrate, 2nd Court, Contai, Purba Medinipore in G. R. No. 639 of 2006 by preferring this revision under Section 401 read with Section 482 of the Code of Criminal Procedure.
2. It appears from the materials on record that Contai Police Station Case No. 232 of 2006 dated December 12, 2006 under Sections 420/468/471/409/34 of the Indian Penal Code was registered on the basis of the written complaint submitted by the petitioner. The police investigated the said criminal case and submitted charge sheet against the Opposite Party No.4 for the offence under Sections 420/468/471/34 of the Indian Penal Code. The petitioner being the de facto complainant filed an application before the court of learned Magistrate praying for further investigation, but the said application was rejected by learned Magistrate. The court framed charge against the Opposite Party No. 4 for the offence under Sections 420/468/471 of the Indian Penal Code and one prosecution witness is examined in part. The prosecution filed an application before the trial court under Section 319 of the Code of Criminal Procedure praying for impleading the Opposite Party Nos. 2 and 3 as the accused persons. On December 4, 2010 learned Magistrate rejected the said application filed by the prosecution under Section 319 of the Code of Criminal Procedure. The said order dated December 4, 2010 is under challenge in this revision.
3. Mr. Sandipan Ganguly, learned counsel for the petitioner contends that learned Judge of the trial court rejected the application of the petitioner on three grounds: first, the petitioner did not raise any objection when the Investigating Officer submitted charge sheet only against the Opposite Party No.4; secondly, the sufficient evidence is not available on record to proceed against the Opposite Party Nos. 2 and 3 for the offence under Sections 420/468/471 of the Indian Penal Code; and thirdly, the prosecution has invoked the provision of Section 319 of the Code of Criminal Procedure at the belated stage. Mr. Ganguly argues that the observation of learned Judge of the trial court that the petitioner did not raise any objection at the initial stage is contrary to facts, because the petitioner filed an application before the court of learned Magistrate praying for further investigation which was turned down by learned Magistrate. He further argues that there are sufficient evidence on record to establish complicity of the Opposite Party Nos. 2 and 3 in committing the offence of cheating punishable under Section 420 of the Indian Penal Code. He also submits that only one prosecution witness is examined in part and as such this is the proper stage to proceed against the co-accused persons by invoking the provision of Section 319 of the Code of Criminal Procedure. Mr. Ganguly has specifically submitted that the Opposite Party No. 2 being the then Branch Manager of the United Bank of India made joint inspection of the site where the building of the petitioner was constructed and thereby he made collusion with the principal accused person for sanctioning the loan in favour of the principal accused person by way of mortgage of the land of the petitioner, though the Opposite Party No.3 subsequently tried to regularize the illegality committed by his predecessor-in-office.
4. Mr. Somopriya Chowdhury, learned counsel for the Opposite Party Nos. 2 and 3 submits that the report of joint site inspection prepared by the Opposite Party No.2, the Opposite Party No.4 being the principal accused person and the lawyer of the United Bank of India cannot be relied upon as the said document was part of the case diary. He has relied upon the decision of the Supreme Court in "Lok Ram V. Nihal Singh" reported in (2006) 10 SCC 192 in support of the above contention. By referring to the evidence of P. W. 1, Mr. Chowdhury submits that there is no criminality on the part of the Opposite Party Nos. 2 and 3 in sanctioning loan in favour of the principal accused person, though the action of the Opposite Party No.2 may amount to gross dereliction of duty for which his disciplinary authority is entitled to take discipline action against him. Relying on the decision of "Mohammed Ibrahim V. State of Bihar" reported in (2009) 8 SCC 751 Mr. Chowdhury has urged this court to consider that the evidence on record does not disclose ingredients of the offence under Section 420 of the Indian Penal Code so far as the Opposite Party Nos. 2 and 3 are concerned.
5. Mr. Ayan Basu, learned counsel for the Opposite Party/State has referred to some portions of evidence of P. W. 1 in order to impress upon the court that the Opposite Party Nos. 2 and 3 are involved in the offence of cheating and criminal conspiracy and as such they are liable to be prosecuted by invoking the provision of Section 319 of the Code of Criminal Procedure.
6. Admittedly, charge sheet was submitted against the Opposite Party No.4 for the offence under Sections 420/468/471 of the Indian Penal Code. The further admitted position is that the petitioner being the de facto complainant filed an application before the court of learned Magistrate praying for further investigation under Section 173(8) of the Code of Criminal Procedure, which was turned down by learned Magistrate on the ground that the trial court will have ample opportunity to deal with the Branch Manager of the concerned Bank, if sufficient evidence is adduced by the prosecution during the trial of the case. On consideration of the evidence of P. W. 1 ( the petitioner) I find that the Opposite Party No.4 took a loan of Rs. 15,00,000/- from the United Bank of India, Contai Branch by mortgaging 10 decimals of land appertaining to Plot No. 289, JL 263, Khatian No. 214 of Mouza Padmapukhuria, which was purchased initially by the Opposite Party No.4 from one Satya Ranjan Sen and Smt. B. Sen. Subsequently the petitioner acquired the said land from the Opposite Party No.4 by way of deed of exchange on 18-06-2003. The petitioner constructed two-storeyed building on the said land by obtaining sanctioned plan from Contai Municipality on October 28, 2003. The Opposite Party No.4 suppressed the fact of execution of deed of exchange between the petitioner and himself on June 18, 2003 and obtained the loan of Rs.15,00,000/- from the United Bank of India, Contai Branch by mortgaging the said land of the petitioner by showing his previous deed of sale dated March 21, 2003. Now, the question for consideration of the court is whether the Opposite Party No.2, the then Branch Manager of United Bank of India, Contai Branch was in collusion with the Opposite Party No.4 in granting loan in favour of the Opposite Party No.4 by way of mortgage of the land of the petitioner. The petitioner (P. W.1) has stated in evidence that one site inspection was made by the petitioner along with others before sanctioning loan in favour of the Opposite Party No.4. Had there been any site inspection by the Branch Manager of the concerned Bank, he would have found the existence of the building constructed by the petitioner on the said land which was mortgaged with the Bank by the Opposite Party No.4 for taking loan of Rs. 15,00,000/-. The evidence of P. W.1 goes to establish that the Opposite Party No.3 has tried to project before the petitioner that no charge is created on his land in granting loan to the Opposite Party No.4, though the said stand of the Opposite Party No.2 is negated by the General Manager (Inspection and C. V. O.), United Bank of India, who has furnished information to the petitioner to the effect that the house building loan was granted in favour of the Opposite Party No.4 in respect of 10 decimals of land apertaining to Plot No. 289, JL No. 263, Khatian No. 214 of Mouza - Padmapukhuria, which was purchased by the Opposite Party No.4 from his vendors Satya Ranjan Sen and Smt. S. Sen. The fact of suppression of subsequent deed of exchange between the petitioner and the Opposite Party No.4 with regard to the said land is evident. The petitioner (P.W. 1) has categorically stated in evidence that the bank took no step against the Opposite Party No.4 as the Opposite Party No.2, the then Branch Manager of the United Bank of India, Contai Branch was in collusion with the principal accused person in sanctioning the loan in favour of the Opposite Party No.4 illegally by mortgaging the land of the petitioner. The petitioner (P.W.1) has also pointed out in evidence that the Opposite Party No.3, the subsequent Branch Manager of the United Bank of India, Contai Brnach regularized the illegality of his predecessor-in-office by destroying the previous deed by which the land of the petitioner was mortgaged with the Bank.
7. Mr. Chowdhury has relied on the paragraph 10 of "Lok Ram V. Nihal Singh" reported in (2006) 10 SCC 192 in order to put forward the argument that the court cannot consider the materials available in the case diary to invoke the provision of Section 319 of the Code of Criminal Procedure. It is relevant to quote some portion of paragraph 10 of the said report, which is as follows:
"10. On a careful reading of Section 319 of the Code as well as the aforesaid two decisions, it becomes clear that the trial court has undoubted jurisdiction to add any person not being the accused before it to face the trial along with the other accused persons, if the court is satisfied at any stage of the proceeding on the evidence adduced that the persons who have not been arrayed as accused should face the trial. It is further evident that such person, even though had initially been named in the FIR as an accused, but not charge-sheeted, can also be added to face the trial. The trial court can take such a step to add such persons as accused only on the basis of evidence adduced before it and not on the basis of materials available in the charge-sheet or the case diary, because such materials contained in the charge-sheet or the case diary do not constitute evidence............"
8. By following the above proposition of law laid down by the Supreme Court I would like to consider only the evidence of P. W. 1 to decide whether the Opposite Party Nos. 2 and 3 are liable to be prosecuted by invoking the provision of Section 319 of the Code of Criminal Procedure. On consideration of the evidence of the petitioner (P. W.1) I am of the view that the Opposite Party No.2 being the Branch Manager of United Bank of India, Contai Branch is liable to be prosecuted for the offence under Sections 420/120B of the Indian Penal Code, though the evidence adduced by P. W. 1 is not sufficient to proceed against the Opposite Party No.3 who happens to be the subsequent Branch Manager of the United Bank of India, Contai Branch.
9. Mr. Chowdhury has tried to point out that no wrongful loss is caused to the petitioner by the action of the Opposite Party No.2 and as such the penal provision of Section 420 of the Indian Penal Code cannot be attracted. In "Mohd. Ibrahim V. State of Bihar" reported in (2009) 8 SCC 751 the Supreme Court has laid down in paragraphs 18, 19 and 20 how the offence under Section 420 is attracted in case of execution of a sale deed. In the present case the issue is whether the Branch Manager of a Nationalized Bank is involved in the conspiracy along with the principal accused in sanctioning loan in favour of the principal accused person by mortgaging the land of a third party. So the facts of "Mohd. Ibrahim V. State of Bihar" (supra) are clearly distinguishable from the facts of the present case and as such the said decision has no relevance in the present case.
10. In view of my above observation the order dated December 4, 2010 passed by learned Judicial Magistrate, 2nd Court, Contai, Purba Medinipore in G. R. No. 639 is modified to the extent that the court would like to proceed against the Opposite Party No.2 for the offence under Sections 420/120B of the Indian Penal Code which he appears to have committed. Learned Magistrate of the trial court is directed to take steps against the Opposite Party No.2 in accordance with the provision of Section 319 of the Code of Criminal Procedure.
With the above direction criminal revision is disposed of. Urgent photostat certified copy of this order, if applied for, be given to the parties on priority basis after compliance with all necessary formalities.
( R. K. Bag, J. )