Patna High Court - Orders
Chandra Shekhar Jha vs The State Of Bihar on 17 October, 2012
Author: Shivaji Pandey
Bench: Shivaji Pandey
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.9834 of 2011
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Chandra Shekhar Jha son of Late Dineshwar Jha, R/o village-Bhramarpur,
PS-Bihpur, Distt.-Bhagalpur at present posted as Deputy Chief Officer
(Recovery) UCO Bank, Zonal office, Begusarai.
.... .... Petitioner/s
Versus
1. The State Of Bihar
2. Prayag Choudhary son of Late Shiv Shankar Choudhary, R/o village-
Lakho, PS-Muffasil, District-Begusarai.
.... .... Opposite Party/s
Appearance :
For the Petitioner/s : Mr. Ranjeet Kr. Pandey, Adv.
For the Opposite Party No. 2 : Mr. Aaruni Singh, Adv.
Mr. Sandeep Kr. Gautam, Adv.
For the State : Mr. Arun Kr. Pandey, APP
CORAM: HONOURABLE MR. JUSTICE SHIVAJI PANDEY
ORAL ORDER
4 17-10-2012Heard learned counsel for the petitioner and learned counsel for the State.
2. In this case, the petitioner is challenging the order dated 2.7.2009 passed by learned Judicial Magistrate 1st class, Begusarai in Complaint Case No. 1928(C)/2008 whereby and whereunder the court below has taken cognizance for offences under sections 420, 323 and 506 of the Indian Penal Code.
3. It is a peculiar case where the customer of the bank has instituted a case against the Bank Manger for exerting undue pressure and obtained a signature with a statement of promising to return money to Bank including forcefully taking Rs. 1,50,000/- from the customer ( O.P. No. 2) for the Bank.
4. In this case it appears that O.P.No. 2 is a customer 2 Patna High Court Cr.Misc. No.9834 of 2011 (4) dt.17-10-2012 P2 / 21 of U.C.O. Bank, I.O.C. Branch, Begusarai. It appears that the complainant had presented a cheque vide cheque No. 965623 dated 1/6/2008 of Rs. 3,20,000/- for crediting the amount in his account. It appears that the said cheque was issued on 1.6.2008 by Umesh Kumar Gupta and the same was presented by the complainant on 29.7.2008 in U.C.O. Bank, I.O.C. Branch, Begusarai, the bank credited the same in his account on 1/8/2008. The O.P. No. 2 withdrew the said amount of Rs. 3,00,000/- on 4/8/2008 and on the same day at about 8.30 P.M. the petitioner along with Umesh Kumar Gupta who had issued the cheque went to the house of the complainant, apprised him about the return of the said cheque dishonoured and requested to return the said amount of money to Bank and in pursuance thereof complainant returned Rs. 1,50,000/- and did not pay rest amount on the plea that he had already paid the said amount to the person from whom he had taken loan but promised to return the same to the Bank on 5/8/2008 by 12.00 Noon. The complainant in plain paper recorded this statement in his handwriting along his signature and date in presence of his nephew, Sanjay Choudhary. It appears, the O.P. No. 2 did not stand to his commitment, ultimately the Bank wrote letters dated 5/8/2008 and 12/8/2008 to return the rest amount of Rs. 1,50,000/-, as the cheque that was deposited by him had been 3 Patna High Court Cr.Misc. No.9834 of 2011 (4) dt.17-10-2012 P3 / 21 returned by the drawee bank on account of insufficient fund. It also appears from the record that the Bank issued the legal notice on 19.8.2008 and reminder vide letter dated 27.8.2008 to return the rest amount of Rs. 1,50,000/- otherwise the Bank would have to take necessary action against the complainant. It also appears from the record, the Bank filed Money Suit No. 11/2009 through the Senior Manager, U.C.O. Bank against the O.P. No. 2 where full facts have been mentioned and the relief has been sought against the O.P. No. 2 to pass a decree of Rs. 1,50,000/- along with interest @ 15% till the realization of entire amount.
5. It appears that on receipt of the legal notice, the O.P. No. 2 filed present complaint petition where he has stated that he had presented a cheque vide cheque No. 965623 dated 1/6/2008 of Rs. 3,20,000/- in the said bank on 29.7.2008 and the said amount was credited to his account, he (the O.P. No.2) withdrew the amount of Rs. 3,00,000/- on 4/6/2008 and on the same day he returned loan amount of Rs. 1,50,000/- to the person from whom he had taken money. Allegation has been made, the petitioner, accused No. 1 along with 10-12 unknown persons entered into the house, asked the complainant, O.P. No. 2 to return the money which was withdrawn by him whereupon the O.P. No. 2 explained the situation but on their insistence, the 4 Patna High Court Cr.Misc. No.9834 of 2011 (4) dt.17-10-2012 P4 / 21 amount of Rs. 1,50,000/- was returned to the petitioner No. 1 on the sympathetic consideration of petitioner might not be loosing job of the bank with a promise to credit the said amount of money to his account. In the complaint petition it has been alleged that the petitioner, accused No. 1 is a Senior Branch Manager took out plain paper, prepared receipt of Rs. 1,50,000/- recorded his statements that he paid Rs. 1,50,000/- and later on he would return rest amount. The O.P. No. 2 refused to sign the receipt, both accused persons along with the witnesses pleaded, the said amount would be credited to his account by 5/8/2008 and on that assurance, the complainant and his nephew put their signatures on the statement recorded therein but unfortunately both the accused persons resiled from their commitment did not deposit the said amount. Ultimately, the O.P. No. 2 filed an informatory petition vide no. 5319/2008 and in stead of returning the said amount, they started hurling threat to frame O.P. No. 2 in concocted case. In the complaint petition it has been stated that on 27/8/08 both named accused came to his residence at about 8.30 P.M. in a car along with 10-12 persons and threatened for dire consequence, When the complainant refused, the accused persons assaulted him with fists and slaps. When he raised alarm, the people of locality started assembling but by that time accused Nos. 1 and 2 fled away from 5 Patna High Court Cr.Misc. No.9834 of 2011 (4) dt.17-10-2012 P5 / 21 there. In the complaint petition, it has been alleged, the petitioner and his friend played a fraud and cheated the petitioner and illegally took his money amounting to Rs. 1,50,000/-.
6. It appears from the record that on the basis of the complaint petition and the statement made in solemn affirmation including the evidence of witnesses, the court below has taken cognizance for offences under sections 420, 323 and 506 of the Indian Penal Code.
7. The counsel for the petitioner submits that the present case is a malicious prosecution as the same is apparent from the fact involved in the present case, the petitioner is a Bank Manager whereas the complainant/O.P. No. 2 is a customer of the said Bank. It is also an admitted fact that O.P. No. 2 had presented a cheque dated 1/6/2008 issued by one Umesh Kr. Gupta amounting to Rs. 3,20,000/- but the said cheque returned dishonoured on account of insufficient fund but by the time O.P. No. 2 had withdrawn the money, when petitioner approached O.P. No. 2, part amount was returned, promised to return rest amount.
8. The counsel for the petitioner submits, at first look, it appears, the cheque was tampered, as factually the cheque was of Rs. 20,000/- and later on the word 3 (three) was added before twenty thousand in words as well as in numerical. He has further 6 Patna High Court Cr.Misc. No.9834 of 2011 (4) dt.17-10-2012 P6 / 21 submitted that when the cheque was presented before the Bank, the same was sent for clearance through the Main Branch. As the cheque dated 1/6/2008 was presented in the Bank on 29/7/2008 and according to the Circular of the Reserve Bank of India as well as of the Bank, the amount of local cheque was to be credited within 24 hours in the account of the customer in the event, the clearance of the cheque would take more than 48 hours. The Bank in terms of the Circular, credited the said amount in the account of the O.P. No. 2. When the cheque was returned dishonoured (Annexure-7/A) on account of insufficient fund, but by the time O.P. No. 2 had withdrawn the money from his account. The returned cheque was received by the Branch on 4/8/2008 i.e. after withdrawal of the said money by O.P. No. 2. The petitioner approached the O.P. No. 2 on the same evening and explained him about bouncing of cheque due to insufficient fund. The O.P. No. 2 returned Rs. 1,50,000/-, but had shown inability to return rest amount as he had already paid Rs. 1,50,000/- to the person from whom he had taken the loan and made commitment to return the rest amount of Rs. 1,50,000/- on 5.8.2008.
9. The counsel for the petitioner submits, as per promise O.P. No. 2 did not return the money to the Bank. The Bank issued the notice vide notice dated 5.8.2008 to return the rest 7 Patna High Court Cr.Misc. No.9834 of 2011 (4) dt.17-10-2012 P7 / 21 amount.
Similar notice was again issued vide letter dated 12.8.2008 and same returned unserved. Ultimately, the Bank issued the legal notices dated 19.8.2008 and 27.8.2008 but all proved in vain. The Bank filed Money Suit No. 11/2009 (Annexure-13) where whole story has been narrated and sought relief of decree of Rs. 1,50,000/- with interest.
10. The counsel for the petitioner submits that Umesh Kr. Gupta who had issued the cheque himself has filed Complaint Case No. 59c/2011 where he has alleged that he had issued the cheque of Rs. 20,000/- but he played a fraud demanded another cheque taking plea of washing of cheque as was in pocket of shirt relying on the statement of O.P. No. 2, Umesh Kumar Gupta paid cash of Rs. 20,000/-. It has been alleged, the said cheque was tampered, as the word three lakhs was prefixed over the twenty thousand in words and numerical. It has further been alleged that the O.P. No. 2 committed a fraud upon him on enquiry from the O.P. No. 2 for the act played by him, demanded the return of Rs. 20,000/- which resulted into hot exchanges and started hurling abuses by O.P. No. 2. The counsel for the petitioner submits that it is completely a malicious prosecution. The whole game plan of O.P. No. 2 was/is to swallow the money 8 Patna High Court Cr.Misc. No.9834 of 2011 (4) dt.17-10-2012 P8 / 21 of Bank. The story mentioned in the complaint is completely improbable, full of falsity, as there cannot be any occasion or situation, for the petitioner, being Bank Manger to act as criminal with the person with whom there was/is only relationship of Banker and the customer.
11. The counsel for the O.P. No. 2 has vehemently opposed the argument of the petitioner and submitted that facts mentioned in the complaint petition clearly constitute an offence under the Indian Penal Code and the point raised by the petitioner will, at best, be seen during the trial. Another point has been raised, according to their own Circular, the cheque amount was required to be credited in the account of the petitioner within 24 hours but petitioner and Bank violated its Circular and the Circular of the Reserve Bank of India (Annexure-3) where specifically the item No. 2 deals this issue.
12. He has further relied on the Circular of Bank dated 25.8.2009 (Annexure-4) issued by Bank dealing with clearing of local instrument/ collection of outstation cheques where Item No. 1 is dealt with the local cheques where it has been mentioned that the local checks credit and debit shall be done on the same day or at the most on the next day.
13. The counsel for the O.P. No. 2 submits as they 9 Patna High Court Cr.Misc. No.9834 of 2011 (4) dt.17-10-2012 P9 / 21 themselves have violated the Circular, petitioner cannot take plea of malicious prosecution. He further submits that in stead of crediting the money in time the said money was credited after much delay and the Bank without any demur has released the money, cannot be ground for levelling the charge of fraud against O.P. No. 2, falls flat.
14. Another point has been raised, the maliciousness of the Bank Manager is apparent from the fact that when the cheque was returned with the note "insufficient fund", there was no occasion for sending the same again on 6/8/2008 for clearance.
15. In this case basically the point of malicious prosecution has been raised and this Court is conscious of the parameters while exercising the power u/s 482 Cr. P.C. The Hon'ble Supreme Court in R.P.Kapur Vs. State of Punjab reported in 1960 S.C. 866 has set the parameter where the court can interfere with the order of cognizance or can quash the FIR or the complaint petition.
Relevant portion of para-6 of the aforesaid judgment is as follows:-
"It is well established that the inherent jurisdiction of the High Court can be exercised to quash proceedings in a proper case either to prevent 10 Patna High Court Cr.Misc. No.9834 of 2011 (4) dt.17-10-2012 P10 / 21 the abuse of the process of any court or otherwise to secure the ends of justice. Ordinarily criminal proceedings instituted against an accused person must be tried under the provisions of the Code, and the High Court would be reluctant to interfere with the said proceedings at an interlocutory stage. It is not possible, desirable or expedient to lay down any inflexible rule which would govern the exercise of this inherent jurisdiction. However, we may indicate some categories of cases where the inherent jurisdiction can and should be exercised for quashing the proceedings. There may be cases where it may be possible for the High Court to take the view that the institution or continuance of criminal proceedings against an accused person may amount to the abuse of the process of the court or that the quashing of the impugned proceedings would secure the ends of justice.
(1) If the criminal proceeding in question is in respect of an offence alleged to have been committed by an accused person and it manifestly appears that there is a legal bar against the institution or 11 Patna High Court Cr.Misc. No.9834 of 2011 (4) dt.17-10-2012 P11 / 21 continuance of the said proceeding the High Court would be justified in quashing the proceeding on that ground. Absence of the requisite sanction may, for instance, furnish cases under this category. (2) Cases may also arise where the allegations in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety, do not constitute the offence alleged; in such cases no question of appreciating evidence arises; it is a matter merely of looking at the complaint or the First Information Report to decide whether the offence alleged is disclosed or not. In such cased it would be legitimate for the High Court to hold that it would be manifestly unjust to allow the process of the criminal court to be issued against the accused person.
(3) A third category of cases in which the inherent jurisdiction of the High Court can be successfully invoked may also arise. In cases falling under this category the allegations made against the accused person do constitute an offence alleged but there is either no legal evidence adduced in support of the 12 Patna High Court Cr.Misc. No.9834 of 2011 (4) dt.17-10-2012 P12 / 21 case or evidence adduced clearly or manifestly fails to prove the charge. In dealing with this class of cases it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is manifestly and clearly inconsistent with the accusation made and cases where there is legal evidence which on its appreciation may or may not support the accusation in question. In exercising its jurisdiction under S. 561-A the High Court would not embark upon an enquiry as to whether the evidence in question is reliable or not.
That is the function of the trial magistrate, and ordinarily it would not be open to any party to invoke the High Court's inherent jurisdiction and contend that on a reasonable appreciation of the evidence the accusation made against the accused would not be sustained.
The proposition of interference with the order of cognizance has been developed by the Hon'ble Supreme Court in a case of State of Haryana v. Bhajan Lal reported in A.I.R. 1992 SC 604 has held, not possible, desirable to lay down any inflexible rule but gave illustration setting parameter for interference under 13 Patna High Court Cr.Misc. No.9834 of 2011 (4) dt.17-10-2012 P13 / 21 Section 482 Cr.P.C., held the power can be exercised either to prevent abuse of the process of the Court or otherwise to secure the ends of justice. The Court culled out seven ground by way of illustration where the Court in exercise of power u/s 482 Cr. P.C. can interfere with the criminal proceeding are as follows:-
"(i) Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(ii) Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizance offence, justifying an investigation by police officers under S. 156(1) of the Code except under an order of a Magistrate within the purview of S. 155 (2) of the Code.
(iii) Where the uncontroverted allegations made in the F.I.R. or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
(iv) Where, the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non-cognizance offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under S. 155 (2) of the Code.
(v) Where the allegations made in the F.I.R. or complaint are so absurd and inherently improbable on 14 Patna High Court Cr.Misc. No.9834 of 2011 (4) dt.17-10-2012 P14 / 21 the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(vi) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
(vii) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.
16. In item No. (v) (vii), the Hon'ble Court has framed up illustration that in a criminal proceeding allegations are so absurd and improbable no prudent person can ever reach such conclusion and criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.
17. In that circumstance, the court can interfere with the criminal proceeding or the order of cognizance or the F.I.R. Basically, the test is to be applied whether allegations really are absurd and improbable or it is a malicious prosecution or a simple 15 Patna High Court Cr.Misc. No.9834 of 2011 (4) dt.17-10-2012 P15 / 21 prosecution.
It is an admitted fact in the present case, the O.P. No. 2 is a customer of U.C.O. Bank, I.O.C. Branch, Begusarai whereas the petitioner is a Branch Manager of that Bank. The O.P. No. 2 had presented the cheque issued by one Umesh Kumar Gupta vide cheque No. 965623 dated 1/6/2008 of State Bank of India. He presented the cheque in the bank on 29.7.2008 for crediting the same in his aforesaid account. The Branch Manager sent the cheque for clearance through U.C.O. Bank, Main Branch, Begusarai to Main Branch of State Bank of India on 31.7.2008. The cheque which was presented by the O.P. No. 2 was a local cheque. As per the guidelines of Reserve Bank of India, local cheques would be credited and debited on the same day at most on the next day. The Reserve Bank of India has given guidelines which is as follows:-
"For local cheques credit and debit shall be given on the same day or at the most of the next day of their presentation in clearing ideally, in respect of local clearing, banks shall permit usage of the shadow credit afforded to the customer accounts immediately after closure of relative return clearing and in any case withdrawal shall be allowed on the same day or maximum within an hour of commencement of business on the next working day, 16 Patna High Court Cr.Misc. No.9834 of 2011 (4) dt.17-10-2012 P16 / 21 subject to usual safeguards."
18. In pursuance of the aforesaid Circular the UCO Bank has also issued its own Circular meant for all branches on 25.8.2009 (Annexure-4) is as follows:-
"(i) Local checks credit and debit shall be given on the same day or at the most on the next day.
(ii) The maximum period for collection of outstation cheques shall be 7, 10, 14 days, based on the policy decided by individual bank. In case of delay, interest at fixed deposit rate, or at a rate specified as per the respective policy of the banks, is to be paid to the payee of the cheques.
(iii) Bank's policy with regard to the collection period of outstation cheques and interest payable in case of delay should be prominently displayed in each branch.
(iv) A copy of the complete policy shall be made available by the Branch Manager if the consumers require the same for reading.
(v) The salient features highlighting the rights of the consumers shall also be displayed on the notice board of each branch of the Banks.
19. The petitioner has also brought on record the policy of collections of cheques and instruction vide Annexure-5 where Item No. 2.1 deals with the local cheque which is as follows:-
17 Patna High Court Cr.Misc. No.9834 of 2011 (4) dt.17-10-2012
P17 / 21 "All cheques and other Negotiable instruments payable locally would be presented through the clearing system prevailing at the centre. Cheques deposited at branch counters and in collection boxes within the branch premises before the specified cut-off time will be sent for clearing on the same day. Cheques deposited after the cut-off time and in collection boxes outside the branch premises including off-site ATMs will be sent in the next clearing cycle. As a policy, bank would give credit to the customer account on the same day clearing settlement takes place. Withdrawal of amounts so credited would be permitted on 2nd day or 3rd day as per the cheque return schedule of the clearing house. Wherever applicable, facility of high- value clearing (same day credit) will be extended to customers."
20. From the aforesaid guidelines, the Bank was required to credit the amount in favour of the customer presented the cheque within the fixed period. First it will be credited for the shadow purpose but later on it was meant for all purposes. In pursuance of the said instruction, the bank credited the amount of Rs. 3,20,000/- in the account of the petitioner on 1/8/2008 but in between 1/8/2008 and 4/8/2008, the O.P. No. 2 did not withdraw the said amount but after withdrawal, received the dishonoured cheque with report of insufficient fund (Annexure 7/A to this petition), later on in the same evening, the petitioner approached 18 Patna High Court Cr.Misc. No.9834 of 2011 (4) dt.17-10-2012 P18 / 21 the O.P. No. 2 being a customer of the Bank and apprised him about dishonour of the cheque whereupon he had returned Rs. 1,50,000/- with the promise to return the rest amount on the next day. It is also undisputed fact, when the O.P. No. 2 did not return the rest money, notices and legal notices were issued and after that the Money Suit vide Money Suit No. 11/2009 was filed by the Bank. Opposite party No. 2 brought to notice of this Court that Money suit has been dismissed for default but the counsel for the Bank has replied that restoration petition has been filed.
21. These are the admitted fact, now the points raised by the O.P. No. 2 have to be considered:- (i) as he has raised that the Bank had not acted as per the guidelines issued by the R.B.I. and even by its own Bank as cheque was presented and the amount was not credited to his account within the fixed period, as has been provided in guidelines so much so that those amounts were credited as a shadow amount and there was no occasion for the Bank to release the said amount and if they have released the said amount without proper enquiry any action or inaction on the part of the O.P. No. 2, cannot be branded wrong withdrawal of the said money.
22. In this context, there may be some dereliction in crediting in the Bank account but it has nothing to do with the 19 Patna High Court Cr.Misc. No.9834 of 2011 (4) dt.17-10-2012 P19 / 21 present issue as it has no connection with the allegations made in complaint petition. The question in the present case to be adjudicated about absurdity and inherently improbable allegations made due to the maliciousness, are the basis of for filing criminal case. Even if there are some violations in action by the Bank in following the R.B.I. policy or its own policy that will not change the situation because this Court is required to see only, the present case is based on improbable and absurd story and attended with mala fide or not, so the contention of the petitioner that there was violation of guidelines of the R.B.I. will not be any way help to the O.P. No. 2 and will not be a factor for coming to a conclusion that present case is not circumscribed by maliciousness.
23. Another point, the O.P. No. 2 has raised that when the cheque was returned to be bounced, there was no occasion for the Bank to send the said cheque for clearance. This might have been done due to over zeal.
24. From facts stated here-in-above that it is an admitted fact that there is no personal relationship between the petitioner with the O.P. No. 2 save and except being a Banker and a customer. O.P. No. 2 has not brought any material to show earlier to this case there was any other litigation in between the parties. But attending facts and circumstances show that after 20 Patna High Court Cr.Misc. No.9834 of 2011 (4) dt.17-10-2012 P20 / 21 return of Rs. 1,50,000/-, greed crept in the mind of the O.P. No. 2 and was not intending to return the said amount but to devour the said amount of the Bank. When O.P. No. 2 found clock was moving against him and bank was ready to file case, to create defence filed complaint case as counsel for the O.P. No. 2 has not denied about the none return of Rs. 1,50,000/- and undertaking was given by him in writing and it is undisputed facts that the O.P. No. 2 kept silence for a long period, when he received a legal notice, to create the defence, filed present case to save himself. The narration facts show, it is one of the case, where this Court in order to secure the ends of justice and to protect from unnecessary and malicious prosecution, is required interference with the order of cognizance and to quash the proceeding.
25. This Court is not giving opinion with regard to the cheque which is the cause of this case was presented before this Court, as the same is subject matter of another criminal case filed by the person who issued the cheque in favour of O.P. No. 2.
26. In that view of the matter, it is duty of the court to protect the Bank officer and Govt. official from unnecessary harassment and malicious prosecution.
27. In this view of the matter, the order of cognizance in connection Case No. 1928C/2008 and any subsequent 21 Patna High Court Cr.Misc. No.9834 of 2011 (4) dt.17-10-2012 P21 / 21 proceeding arising out of the same against the petitioner is quashed and this petition is allowed.
(Shivaji Pandey, J) Mahesh/-