Calcutta High Court (Appellete Side)
Samir Kumar Halder vs ) The State on 5 March, 2010
Form No. J(2)
IN THE HIGH COURT AT CALCUTTA
Criminal Revisional Jurisdiction
Present :
THE HON'BLE MR. JUSTICE RAGHUNATH RAY
C.R.R. No. 1974 of 1995
Samir Kumar Halder...... Petitioner
Vs
1) The State
2) Dilip Kumar Debnath ......Opposite Parties
(Added with the leave of the court)
For the Petitioner : Mr. Milan Mukherjee
Mr. Saibal Mondal
For the State : Mr. Kashem Ali Ahmed
Heard on : 07.01.2010, 08.01.2010, 12.01.2010 &13.01.2010
Judgment on : 05.03.2010
RAGHUNATH RAY, J. :
On February 17, 1986, one Dilip Kumar Debnath lodged an FIR alleging inter alia that on 23.03.1983 he opened a Savings Account No. 2659 in the Coochbehar branch of UCO Bank by depositing Rs. 20,000/- with the assistance 1 of a clerk attached to the said branch of the Bank. He, thereafter, did not visit the said bank for three years. Subsequently when he sent his brother Sri Shiv Prasad Debnath to update his account with an instruction to deposit Rs. 10/- in the said account, it was detected that almost entire amount leaving a small fraction thereof had already been withdrawn by someone else. It is also contended inter alia that he never withdrew any amount from his account in question earlier. Since S/B Account Pass Book was all along with him, such withdrawal of deposit amounts on different occasions is not possible for any outsider.
2. On the basis of such allegations made in the FIR, Kotwali P.S. Case No. 16 dt. 17.2.86 under sections 468/420 IPC was initiated against some unknown miscreants and the case was endorsed to S.I. S.P. Sarkar DEO(S) CBR for investigation. It is however, a hard reality that investigation / reinvestigation of this ill fated P.S. Case is still pending even after the efflux of almost two decades and half.
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3. By filing this revisional application, the accused revisionist has sought to assail continuance of this long pending investigation of Kotwali P.S. Case No. 16 dated17.02.86 under sections 468/420/120B IPC on several grounds. According to him, although in the year 1983, when the account was opened by the de-facto complainant, the petitioner was the Assistant Branch Manager of UCO Bank Coochbehar, in the year 1985 he was transferred, to Howrah. He is, therefore, not involved with the incidents of withdrawal of deposits as alleged. The de-facto complainant also filed money suit no. 5/86 in the court of ld. Assistant District Judge, Coochbehar, against the United Commercial Bank for realisation of Rs. 20000/- alongwith interest thereupon. On the self-same allegations the instant police case was subsequently started on 17.02.86. However, the said money suit was dismissed by the ld. Trial court on contest on 21.11.1988. The said Judgment and order was challenged in Money Appeal No.2 of 1989 and after a contested hearing the suit was sent back on remand on 8.3.90 with a direction to give a chance to the plaintiff for 3 appointment of a hand writing expert to verify the genuineness of signatures in question. So, the revisionist is not connected with the offence u/s. 420 IPC as alleged and has falsely been implicated in this case. His name also does not figure in the FIR. In such circumstances, the criminal proceeding pending before the ld. S.D.J.M. Coochbehar is liable to be quashed.
4. In support of his contention, Mr. Mukherjee, appearing with Mr. Saibal Mondal refers to the following rulings of the Hon'ble Apex Court and argues that the inherent jurisdiction of the High Court can be exercised to quash a criminal proceeding in an appropriate case either to prevent the abuse of the process of any court or otherwise to secure the ends of justice ;-
1) AIR 1960 SC 866 (R. P. Kapur.. Appellant Vs. State of Punjab..
Respondents)
2) AIR 1982 SC 949 (State of W.B. & Ors... Appellant Vs. Swapan Kr.
Guha & Ors... Respondents) 4
3) 1998 C Cr. LR (SC) 402 (Ashok Chaturvedi & Ors. Appellants Vs. Situl Chanchani & Anr. Respondents) He has also relied upon two decisions of this High Court reported in (1) (2004) 2 CAL LT 314 (HC) [Jayanta Saha.. Petitioner v. state of West Bengal. Respondents] & (2) 1992 CRI L.J. 77, [ANZ Grindlays Bank P.I.C. and another.. petitioners v. Shipping and clearing (agents) Pvt. Ltd. & Ors. Respondents] and has further argued that allegations made in the FIR against the revisionist do not constitute an offence u/s. 420 IPC against the revisionist and as such the same cannot stand the test of judicial scrutiny. It is further argued by him that the materials so collected by the I.O. during investigation are also not sufficient to establish a prima facie case u/s 420 IPC against him. Relying upon a ruling of the Hon'ble Apex Court reported in 2009 (B) E. Cr. N. 876 (S.C.) it is also argued by him that a decision by the Civil Court is binding upon the criminal court. In this context it is pointed out by him that the Money Suit No. 5 of 1986 filed by the de-facto complainant on the self-same allegation was dismissed by the ld Assistant District Judge, Coochbehar and such findings made by the competent civil court 5 being binding upon the criminal court, continuance of the present criminal proceeding on the self-same allegation is not legally justifiable.
5. Such submission is, however, strongly disputed by Mr. Kashem, ld.
Counsel for the state. He refers to a ruling of the Hon'ble Apex Court reported in 2004 SCC (Cri) 1805 [ State of A.P. Vs. Golconda Linga Swamy & Anr.] and argues that the inherent power u/s 482 should not be exercised 'to stifle legitimate prosecution' and High Court should not assume the role of a trial court and 'embark upon an enquiry' as to reliability of evidence and sustainability of accusation on a reasonable appreciation of such evidence. It is forcefully argued by him that if ingredients of an offence are disclosed in the FIR and there is no material to show that the FIR is mala fide frivolous or vexatious, the criminal proceeding cannot be quashed.
6. Mr. Kashem also seeks to rely upon another ruling of the Hon'ble Apex Court reported in 1999 CRI.L/J/ 1833 [Rajesh Bajaj Vs. State of NCT of 6 Delhi & Ors.] and argues, further, that in a case of cheating it is not necessary for the de-facto complainant to state in so many words that the intention of the accused was dishonest or fraudulent. In fact, the de-facto complainant need not give in details all the relevant facts satisfying all the ingredients of an offence u/s 420 IPC. Rather, it is the duty of the court, according to him, to allow the investigation to continue to identify the miscreants who have practised cheating by forging the documents in question. His further, contention is that it is sufficient if basic facts in making out an offence of cheating are given in the FIR, and in such a situation the Criminal Proceeding should not be quashed in hot haste without giving the investigating agency reasonable opportunities to proceed with the investigation in the manner which is required for the purpose of collecting relevant documents and other necessary particulars etc. which are the vital pieces of evidence to substantiate the allegation of creating fraudulent documents for the purpose of cheating. He has also referred to another ruling of the Hon'ble Apex Court reported in (1994 ) 2 7 SCC 227 [Union of India & Ors. Appellants Vs. B.R. Bajaj & Ors, Repondents]. Relying upon the principles of law as enunciated therein it is also argued by him that whenever allegations in the FIR disclose commission of a cognizable offence inherent power to quash FIR cannot be exercised because at that stage the High Court could not go into the question as to whether offences alleged in the FIR were made out or not. According to him, the statutory power of police to investigate cannot be interfered with in exercise of inherent power of the High Court.
7. Before dealing with the rival contentions of the parties let us have a glimpse over the relevant case record of the present petition to ascertain whether pendency of this revision has, in any manner, affected the progress of investigation of the concerned P.S. Case since 1995. On 26.09.95 when the revisional application was moved there was a direction to cause service of a copy of the said petition together with a notice upon the state through ld. P.P. High Court Calcutta and also to file Affidavit - of - service at the time of hearing. The matter was to come up for hearing three weeks after Puja Vacation. 8
An interim order was also granted by this Court in the following form :-
'There will be an ad-interim stay for a period of 4 weeks after the Puja Vacation, to this effect that the I.O. shall proceed with the investigation but shall not arrest the accused -petitioner without prior permission from the ld. S.D.J.M. Sadar, Coochbehar. Liberty is granted to the petitioner to apply for extension of the ad- interim order with notice to the opposite party.
Liberty is granted to the O.P. to apply for vacating and / or modifying or altering the ad-interim order with notice to the petitioner. Liberty is given to the petitioner to communicate the gist of this order to the court below ad to the I.O.'
8. Subsequently on 24.11.1995 on consent of the parties the interim order dated 26.09.95 stood extended till the disposal of application in the presence of ld. counsel for the state. On 10.08.09 liberty was given to the petitioner to add the de-facto complainant as one of the opposite parties with a direction to serve notice upon the added opposite party and also to affirm an affidavit of service in this regard.
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It appears that the de-facto complainant / opposite party No. I was served with a notice together with a copy of revisional application through registered with A/D Post and an affidavit - of - service was also duly affirmed to that effect on behalf of the revisionist.
9. The moot point for consideration is whether the criminal proceeding arising out of Kotwali P.S. Case No. 16 dated 17.02.86 u/s. 420 IPC (corresponding to G.R. Case No. 45 of 1986) pending before the ld. S.D.J.M. Coochbehar should be quashed by the High Court in exercise of its inherent power to prevent the abuse of the process of the court.
10. The prayer for quashing the present criminal proceeding pending against the revisionist for about all these twenty four years is to be taken up for consideration in the light of materials and circumstances deducible from the CD coupled with submission so advanced and rulings cited on behalf of both sides.
11. To find out the Zigzag path of investigation, this court have had an occasion to go through the CD. It is available there from that in course of investigation the I.O. seized a good number of documents including 10 specimen signatures and hand writing of the staff of the UCO Bank, Coochbehar Branch. However, seized documents were deposited in the court of ld. Assistant District Judge, Coochbehar, in connection with Money Suit No. 5/86 filed at the instance of the de-facto complainant of this case.
12. The investigation of such an old case was being dragged because of non-
availability of seized documents from the court of ld. Assistant District Judge, Coochbehar. After the lapse of more than twelve years on 12.07.1995 statement of Pranab Kr. Sen, a clerk of UCO Bank & Birendra Kr. Karmakar, officiating Manager of UCO Bank Coochbehar were recorded and, thereafter, statements of the de-facto complainant and his brother Shiv Kumar Debnath were also recorded on 15.07.95 and 18.07.95 respectively. Sri Arun Kumar Sadh, Bank manager of Coochbehar of UCO Bank since 1993 and Arup Kr. Dutta, a staff of bank since 1981 were examined on 18.07.95. The report of a hand writing expert was also called for in course of investigation and as per his opinion 11 signatures appearing on the withdrawal slips tally specimen signatures of the depositor preserved by the Bank.
13. During investigation, I.O. also collected the Judgment and oder dated 20.02.1996 passed by the ld Assistant District Judge, dismissing the Money Suit No. 5 of 1986 instituted on self-same allegations by the de- facto complainant against UCO Bank, on contest with costs. The findings of the ld. Appellate Court in Money Appeal no. 1/96 affirming the Judgment and Order passed by the ld. Assistant District Judge, Coochbehar vide Judgment and Order dated 18.06.1997 passed by the ld. Additional District Judge, were also taken into consideration by the I.O. He also obtained the opinion of ld. PP Coochbehar. On perusal of afore- mentioned documents, statements of witnesses recorded u/s. 161 Cr.P.C. together with the relevant materials and circumstances on record the I.O. was of the opinion that no forgery and false personification in respect of withdrawal of amount in question from S/B A/Cs No. 2659, have been established prima facie. Accordingly, FRT No. 69/98 u/s 12 468/471/420 IPC was submitted with a prayer for discharge of all the accused persons including the revisionist before the ld. S.D.J.M. Coochbehar. On conclusion of hearing of Naraji petition filed at the instance of the de-facto complainant the said FRT was not accepted and the ld. S.D.J.M., Coochbehar directed reinvestigation of the case. Such reinvestigation was conducted by the second I.O. S.I S.C.Roy DEO Coochbehar. On completion of reinvestigation, FRT No. 97/2000 dated 24.03.2000 u/s 420 IPC was submitted for the second time. Again it was not accepted by the then ld. SDJM Coochbehar, and the case docket was returned to Kotwali P.S. Coochbehar on 22.05.01 with a direction to cause reinvestigation for the third time. Such case docket was received by the then Inspector of police S. B. Chakraborty attached Kotwali P.S. His successor B. Gurung, Inspector - in - Charge of Kotwali P.S. has, however, submitted a report dated 03.01.10 contending inter alia that he took over the charge of Kotwali P.S. on 03.03.09. but no such case docket was made over to him at that point of time. However, he collected a 13 duplicate CD having entries upto 24.03.2000 and the same was transmitted alongwith his report dated 03.01.10 to this court through the ld. Public Prosecutor, High Court, Calcutta.
14. A distressing tale of a protracted investigation thus stands unfolded. In the disturbing background of such a chequered career of this investigation spreading over a long period of more than two decades and a half, the merit of this revisional application is to be judged on the touch stone of the principles as enunciated in different judicial pronouncements of the Hon'ble Apex Court.
15. In the absence of any status report pinpointing progress of the reinvestigation of this case because of loss of the original CD in the year 2001, it can easily be visualized that the fate of reinvestigation of this case as ordered by ld. S.D.J.M. in the year 2000 has been sealed for all these nine years. It can, therefore, be reasonably inferred that even after the lapse of long thirty years from the date commission of alleged offence the investigation / reinvestigation of this case could not reach its logical conclusion.
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16. Against the backdrop of such high handedness of the legal system allowing investigation of a criminal case to continue for more than two decades and a half augmenting tremendously tormenting mental agony of a bank employee, it would be appropriate to quote the observations of the Hon'ble Apex Court reported in 1977 SCC (Cri) (State of Karnataka Vs. Muniswamy & Ors.) laying down certain principles for the exercise of the wholesome power of the High Court as envisaged u/s 482 Cr. P.C. which read as under :-
'In the exercise of this wholesome power, the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the ends of justice require that the proceeding ought to be quashed. The saving of the High Court's inherent powers, both in civil and criminal matters, is designed to achieve a salutary public purpose which is that a court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. In a criminal case, the veiled object behind a lame prosecution, the very nature of the material on which the structure of 15 the prosecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice. The ends of justice are higher than the ends of mere law though justice has got to be administered according to laws made by the legislature. The compelling necessity for making these observations is that without a proper realization of the object and purpose of the provision which seeks to save the inherent powers of the High Court to do justice between the State and its subjects, it would be impossible to appreciate the width and contours of that salient jurisdiction.'
17. Turning to the staggering progress of investigation / reinvestigation of this criminal case, as analysed in preceding paragraphs it can both contextually and factually be concluded that such investigation / reinvestigation has, in reality, 'degenerated into a weapon of harassment or persecution'. It is, therefore, well covered by the principles permitting interference in such a 'lame prosecution' in exercise of inherent power of this court in order to prevent the abuse of the process of court. 16
18. That apart, out of three categories of cases as mentioned in R.P. Kapur's Case reported in AIR 1960 (SC) 866 (R.P. Kapur, Appellant v. State of Punjab, Respondent) where the inherent jurisdiction to quash a criminal proceeding can or should be exercised, the case in hand satisfies the requirement of guidelines (ii) and (iii) which may be reproduced as under
;-
(i) ************************ (ii) '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.
(iii) Where the allegations made against the accused person do constitute an offence alleged but there is either no legal evidence adduced in support of the case or the 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 17 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.'
19. A close look to the recitals of the FIR itself reveals that allegations levelled against unknown persons even if taken on their face value and accepted in their entirety do not prima facie constitute offences under sections 468/420 IPC or make out a case against the accused revisionist. However, it has rightly been pointed out by the ld. counsel for the state that in case of practice of cheating by forging documents, the criminal proceeding should not be quashed in hot haste and the investigating agency should be afforded reasonable opportunities to collect relevant materials in order to substantiate the allegation of cheating. There is no dispute with the principles as propounded in the rulings cited by him. But in the present case I feel constrained to opine that the Investigating Agency was allowed more than sufficient time, nay two decades to investigate into the alleged 18 offences but the Agency has failed to collect any credible evidence against the revisionist or other suspects engaged in the employment of a Nationalized Bank. Prior to submission of FRT for the second time, a notice was also sent to the de-facto complainant by the I.O. but he refused to accept the same. Significantly, despite service of notice, the de- facto complainant has not cared to come forward to contest this revision.
20. That apart, both the ld. Trial Court and ld. Appellate Court have found Money Suit No. 5/86 and Money Appeal No. 1/96 respectively that the allegation of cheating by creating fraudulent papers has not been substantiated. Such concurrent findings by Civil Courts coupled with other connected materials on record have perhaps led the Investigating Agency, to submit Final Reports twice in this case. Although, in the year 2000, an order was passed for re-investigation by the ld S.D.J.M., Coochbehar, there is nothing on record to indicate that re-investigation was, in fact, taken up in right earnest by the I.O. for collecting further 19 materials, if any. Strangely enough, such reinvestigation was completely halted for all these 10 years.
21. Taking all these facts and circumstances together into account I am therefore, to opine that investigation in this criminal case was conducted in a very casual fashion and perfunctory manner allowing it to linger on unnecessarily at least for first ten years. At any rate, on perusal of materials as are available in the duplicate CD, I feel inclined to hold that there is no legal evidence to establish prima facie ingredients of offences under sections 468 / 420 IPC as alleged against the revisionist.
22. For foregoing discussion I am to hold that investigation / reinvestigation in this case should not be allowed to continue any further to prevent an abuse of the process of the court.
23. In the result, the instant Criminal proceeding arising out of Kotwali P.S. Case No. 16 dated 17.02.86 under sections 468/420 IPC which gave rise to G.R. Case No. 45 of 1986 pending before the then ld. S.D.J.M presently designated as C.J.M., Coochbehar, stands quashed. The accused 20 petitioner be discharged accordingly. He also be discharged from bail bonds, if any.
Let a copy of this order be sent to the ld. C.J.M. Coochbehar, for necessary compliance.
CD be returned.
Xerox certified copies if applied for, may be supplied to the parties on priority basis.
(RAGHUNATH RAY, J.) 21