Calcutta High Court (Appellete Side)
Fazlul Haque vs The State Of West Bengal & Anr on 28 August, 2009
1
IN THE HIGH COURT AT CALCUTTA
CRIMINAL REVISIONAL JURISDICTION
APPELLATE SIDE
C.R.R. No. 2704 of 2009
Present:
The Hon'ble Mr. Justice Syamal Kanti Chakrabarti
Fazlul Haque
Vs
The State of West Bengal & Anr.
For the Petitioner : Mr. Himangshu De,
For CBI : Mr. Ranjan Roy,
Heard on : 25.08.2009
Judgement on : 28.08.2009
Syamal Kanti Chakrabarti, J:
The instant revisional application under Section 482 read with 401 of the
Code of Criminal Procedure is preferred praying for quashing of the proceeding
as well as order dated 16.06.2009 passed by the Learned Judicial Magistrate, 1st
Class, Additional Court, Raiganj in connection with CHI. Cal RC No. 93/86 dated
31.12.1986under Sections 420/477A/120B of IPC read with Section 5(2)/5(i)(d) of the P.C. Act in which charge sheet dated 24.02.1991 has been submitted under Section 420/467/468/471 of the Indian Penal Code.
Learned lawyer for the petitioner has contended that as per prosecution case one Kalipada Seal and Arobindo Ghosal, while functioning as Branch Manager and Field Officer of Central Bank of India, respectively entered into a criminal conspiracy during the period of 1983-84 with the present petitioner Fazlul Haque in furtherance of which nine villagers were shown to have been financed for supply of diesel pump sets for irrigation purposes. It is also alleged in the 2 FIR that both Kalipada Seal and Arobindo Ghosal also financed for supply of shallow tubewells to twelve other villagers which were supplied by the present petitioner. It is further case of the prosecution that both Kalipada Seal and Arobindo Ghosal have falsely financed and the present petitioner was alleged to have supplied the same and received double payment from the said Bank as well as from the Land Development Bank, Raiganj. Though charge sheet submitted in the above case on 24.02.1991 under Section 420/467/468/471 of the IPC, the Investigating Officer prayed for discharge of accused Kalipada Seal and Arobindo Ghosal who had released the fund. Accordingly, both Kalapada Seal and Arobondo Ghosal were discharged from this case but the present petitioner was arrested on 14.06.1992 and was released on bail on 21.06.1992. On 18.12.2008 the petitioner made a prayer before the Learned Court below for his discharge which was rejected on 16.06.2009. Being aggrieved by and dissatisfied with such order the instant revisional application has been filed by the petitioner contending, inter alia, that cognisance taken in the instant case after three years is bad in law and since the present petitioner is also on the same footing with accused Kalipada Seal and Arobindo Ghosal he should also be discharged from this case and the instant proceeding should be quashed.
Learned lawyer for the opposite party no. 2 has contended that the plea of discharge on grounds of limitation has been taken in the instant case after filing of charge sheet and as such the same is not tenable at present. He has also contended that the present petitioner is on a different footing because Kalipada Seal and Arobindo Ghosal, while financing as Branch Manager and Agricultural Field Officer respectively, released the fund for supply of diesel pump set and shallow tubewell for irrigation purposes in favour of this petitioner for nine villagers but six villagers were earlier financed by the Land Development Bank, Raiganj. In course of investigation it was also revealed that twelve villagers were financed by Kalipada Seal and Arobindo Ghosal for supply of shallow tubewells by the accused no. 3 and they made double payments to accused no. 3, i.e., the present petitioner for the said supply. It also revealed that both of them financed two other villages for supply of shallow tubewells and made payment to the present petitioner for the same though no such supply was made by the present petitioner to the said villagers and thus undue pecuniary losses was caused to the villagers and to the bank at the cost of undue pecuniary gain to the suspects.
3I have perused the impugned order of Learned Court below as also other materials on record. It appears that the Learned Court below has relied upon the decision reported in 1996 Criminal Law Journal 1137(SC) and rejected the prayer for discharge of the accused made under Section 167(5) Cr.P.C. on the ground that the same was made after filing of chargesheet and as such could not be entertained at a belated stage though the case was initiated on 31.12.1986 resulting in submission of charge sheet on 24.02.1991. It prima facie appears that in the entire transaction the present petitioner being accused no. 3 is a real beneficiary and he received the sale price of the shallow tubewells etc. from the Land Development Bank, Raiganj as well as from the Central Bank of India, Raiganj as supplier of the articles. Once a person receives double payment on account of same transaction and remains silent for a long time without refund of the excess amount, though meager, cannot evade his criminal liability because such receipt of sale price for the second time is a clear commission of offence for which he may be prosecuted. Therefore, I do not find any illegality or impropriety either in the impugned order or in the instant proceeding which can be termed as a miscarriage of justice and as such the same need not be interfered with. Thus the present revisional application fails and the same is dismissed.
Criminal Section is directed to forward a copy of the order to the Learned Court below.
Criminal Section is further directed to supply urgent Photostat copy of the order to the petitioners as and when applied for.
(S. K. Chakrabarti, J.)