Calcutta High Court (Appellete Side)
Kanti Prasad Khaitan vs The State Of West Bengal on 26 September, 2011
Author: Kanchan Chakraborty
Bench: Kanchan Chakraborty
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IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
(APPELLATE SIDE)
PRESENT :
The Hon'ble Justice Kanchan Chakraborty
C.R.R No. 4138 of 2007
Kanti Prasad KHAITAN
Versus
The State of West Bengal
For the Petitioner : Mr. Y. J. Dastoor
For the O.P. No. 3 : Mr. K. V. Vishwanathan
For the C.B.I. : Mr. Himangshu Dey
Heard On : 13.9.2011
Judgement On :26.9.2011
Kanchan Chakraborty, J:
1) In order to try his luck again, this application has been filed by Kanti
Prasad Khaitan, praying for quashing of the criminal prosecution under
sections 120B/420/468 and 471 of Indian Penal Code pending against him
before the learned Judicial Magistrate, 4th Court, Alipore, 24
Parganas(South). On two occasions earlier, his efforts, however, was proved
futile. The number allotted to this application indicates unmistakably that
it was filed long back in the year 2007.The earlier applications were taken
out in the year 1989 and 1998. During this long passage of time, neither
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the applicant/accused lost his hope of exoneration from the charges
without being tried nor the Ld. Court of Magistrate could able to proceed
with the trial owing to the orders of stay passed by this court time to time
on the prayer of the applicant/accused.
2) It is not necessary to refer to the factual aspects in details. Suffice it to
state that the applicant/accused and another indulged themselves in
corrupt practice and fraudulent activities and thereby dealt with public
exchequer to the tune of Rs. 6,00,000/- in clandestine manner. However,
before the C.B.I could place the charge-sheet before the court on 30.5.1989
against them on conclusion of the investigation into the allegations and
aspersions put forth in the F.I.R . lodged by the Bank of Baroda, the money
they allegedly cheated was paid with interest and the Bank of Baroda
accepted the same in writing as well as returned the money paid in excess.
This happened on 05.9.1988, i.e., before the charge-sheet was filed and
the earlier Revision application being No. CRR 952 of 1998 was filed and
disposed of. While rejecting the prayer for quashing, this court in C.R.R.-
952 of 1998 had the occasion to consider the factum of payment made by
the applicant/accused , acceptance of the same by the bank and
returning of the excess money. There is , in fact and substance, no change
in the circumstance enabling the applicant/accused to agitate the same
issue again and afresh. However, being aware of rejection of the earlier
application , Mr. Dastoor, the Ld. Counsel for the applicant/accused put
much stress on " Right to speedy trial " this time. He advanced two-fold
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contention :----------firstly ,the Bank of Baroda is having no scope for
further grievance in view of the fact that the money allegedly cheated has
been deposited in the bank by his client and that too with interest and
secondly , more than two decades have been passed since initiation of the
proceeding without any trial and progress in the prosecution resulting in
gross violation of "Right to speedy trial" which is an essential component of
Article-21 of the constitution of India.
3) Mr. Himanghsu De , Ld. Counsel for the C.B.I./O.P. opposed both the
contentions of Mr. Dastoor and submitted that subsequent deposit by the
applicant /accused has no impact ,whatsoever , on the offence allegedly
committed. Subsequent deposit , in a case of like nature , does not
minimize either the gravity of the offence or the criminality of the
perpetrators. Mr. De contented further that the petitioner cheated the
bank in respect of huge public money and that has been established prima
facie. So , the question of quashing of the prosecution does not arise. Mr.
De contented further that the petitioner himself contributed liberally to the
delay in the criminal proceeding . One who himself caused delay in the
proceeding , can not shout after words that his right to speedy trial is
denied. One must suffer and bear the pain for his own fault and deliberate
attempts to stall the criminal prosecution.
4) At the Bar, the following decisions have been referred to:-
(a) Inspector of police, C.B.I. Vs. B. Raja gopal, reported in 2003 SCC
(Cri) 1238,
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b) Modan Mohan Abbot Vs. state of Punjab, reported in (2008) 2
SCC (Cri) 464,
c) C.B.I. Vs. A. Ravishankar Prasad & Ors., reported in (2009) 2 SCC
(Cri) 1063,
d) Rumi Dhar Vs. State of West Bengal & Anr. reported in (2009) 2
C. Cr.L.R. (SC) 418,
e) Superintendent and Remembrancer of Legal Affairs, West bengal
Vs. Mohan Sing & Ors. Reported in 1975 Cri, L.J. 812,
f) Phiroze Dinshaw Lam Etc. Vs. Union of India & Ors. Reported in
JT 1996(3) S.C. 131,
g) C.B.I. Vs. Duncan Agro Industries Ltd, Calcutta, reported in 1996
C. Cr.L.R. (S.C.) 320,
h) Dilip Kumar Mukherjee Vs. C.B.I., reported in (2007) 2 C. Cr. L.R.
(Cal) 342,
i) Nalini Shankaran & Ors. Vs. Nilkanta Mahadeo Kamble and Ors.,
reported in (2007) 12 SCC 90.
j) Nikhil Merchant Vs. C.B.I. reported in (2008) 3 S.C.C. (Cri) 858,
k) Vakil Prasad Sing Vs. State of Bihar, reported in (2009) 2 SCC
(Cri) 95.
5) The principle that emerges from the ratio of the decisions in the
Duncun Agro (Supra), Nikhil Marchant(supra),and B.N.Joshi(supra),
Madan Mohan Abbot (Supra), Rumi Dhar (Supra), is that , court ,in
appropriate cases , especially in matrimonial disputes and commercial
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transactions between two private parties , may ignore the bar under
section--320 0f the Code and quash a criminal prosecution in order to
extend justice where the parties thereto amicably settled the disputes
between them. The court is not supposed to encourage litigations which
the parties do not want to proceed with owing to changed circumstances.
This does not, however, suggest that in grave offences like murder, rape,
dacoity, counterfeiting of currency, cheating of public money, corruption
by public servants ------this principle ordinarily be followed. There is no
single instance where court quashed prosecution wherein the nature of the
offence is that serious as to touching public interest. In Inspector of
Police,C.B.I. -Vs.--B.Rajagopal (Supra), the accused deposited the amount
allegedly cheated and the bank concerned and the accused reached at a
compromise. The Apex court , however , held that fact alone would not
justify quashing of the proceedings. In C.B.I.--Vs.--Ravisankar(supra) ,in
a more or less similar factual backdrop , the Apex court was pleased to
decline quashing of the proceeding. The Hon'ble Court while expressing its
view in that case, was pleased to take into consideration its earlier
decisions in Rumi Dhar (Supra), Nikhil Marchant (Supra), Madan Mohan
Abbot (Supra) , B. S. Joshi (2003) SCC (Cri) 848, Duncan Agro Industries
Ltd (Supra), referred to by Mr. Dastoor. The factual backgrounds of the
cases in Phiroza Dinshaw Lam etc. (Supra) and in Hari Mohan Barman and
Ors. Vs. State of Assam, reported in (2008) 1 S.C.C. (Cri) 161 are
significantly different from that of the present case.
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5) In the case in hand ,no doubt, a strong prima facie case is made out by
the prosecution against the petitioner and another. In fact, that prima
facie case has been , to some extent , strengthened by the accused herein
who ultimately deposited the money wrongfully acquired by them by way
of malpractice and in fraudulent manner. Therefore, this is not just a
common or ordinary case where despite existence of a strong prima facie
case, court is supposed to quash the proceeding merely because of the fact
that the cheated money is deposited. This court is also fortifies with a
decision a Division Bench of this court in Pranati Textile & Ors. Vs. State of
west Bengal, reported in 1989 Cri. L.J. 1804 wherein it was observed.
" We do not think that we can subscribe to such a view which
would set the rigours of these beneficial provisions almost at
naught. As we observed during the course of arguments, to accept
such a contention might amount to accept the allied contention that
a person who has stolen or misappropriated any amount is not to
be prosecuted, if he returns the stolen or the misappropriated
amount at any time before the prosecution is initiated against him.
As we have already indicated, such delayed payment might be a
mitigating consideration, but not a factor to debar prosecution."
7) It is true that the prosecution against the peititoner could not be proceeded
materially for last twenty (20) years. Mr. Dastoor put much stress on "Right
to speedy Trial". In support of this contention, Mr. Dastoor referred to the
decision of this Court in Dilip Kumar Mukherjee (Supra) wherein the
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Hon'ble Single Judge of this Court observed, " It cannot be denied that
right to speedy justice is an essential component of Article 21 of the
Constitution which deals with the right to life. Such 'life' certainly speaks
of right to live with dignity. It essentially suggests that a person is entitled
to have a life freedom from hunger, exploitation and oppression. It also
cannot be denied that there are innumerable circumstances where in view
of inordinate delay caused due to intentional laches on the part of the
prosecution, the accused person is put into serious hardship. Our
Constitution does not permit this Court to remain indifferent to this nor
can it turn a blind eye. But while ascertaining this, it is necessary to adopt
a cautious approach. "
8) There is no dispute as to the settled principle of law that "Right to Speedy
Trial" is an essential component of Article -21 of the Constitution of India
and Court should not remain indifferent to this right. But, in the case in
hands, no delay was caused by the prosecution side at all. In this case, the
charge sheet was filed on 30.5.1989, on completion of investigation, under
Section 120 B, 420, 468 and 471 of Indian Penal code. The petitioner filed
one Revisional application in that year being no. CRR 1750 of 1989. It was
finally disposed of on 8.8.1995. Six (6) years were, thus, conveniently
consumed in getting that revision application disposed of. Soon thereafter,
the petitioner filed another revisional application in the year 1998 which
was disposed of on 4.8.1999. The learned Magistrate despite its best effort
could not brought another accused on record. A warrant of arrest was
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issued and a considerable period of time was spent in chasing the said
accused. The petitioner, thereafter has taken out this application in the
year 2007. All along, order of stay was followed in the event of filing of each
revisional application. When the record itself shows that the present
petitioner had significant role in causing delay in the trial of the case, he
can not take advantage of such delay. This will perhaps not set a good
precedent and will, no doubt, embolden many others to approach Court in
seeking quashing of the proceeding on that ground.
9) Mr. Dastoor used the word 'JUSTICE' frequently in course of his
submission. Justice -that is what his client has sought for. What is Justice? What does it mean in legal perspective? The word 'JUSTICE' has not been defined in any codified law. Someone may say that it means the quality of being fair and reasonable. Another may describe it as fair trial .It may be said that it connotes providing reliefs one deserves in a given circumstance. In more broad sense, it can be said that Justice means fair treatment for all by an impartial judiciary, in a legal system which protects mutual respect of each other' dignity and differences in order to secure substantive equality for all. To me, Justice is a conception having elasticity to bend in a given situation , which may ,if required, travel beyond the rigid procedural codified law in order to provide right and reasonable relief. The Preamble of the Constitution of India guaranteed "JUSTICE, social, economical and political". What type of Justice the client of Mr. Dastoor wants? As far as payment of alleged cheated money is 9 concerned, this court is of view that it would probably be incorrect to say that by doing so, he has able to erase his criminality which is , prima facie ,established. Exoneration on that ground would not secure Social, economical and political justice at all --- either to him or anybody. Such a dealing with public exchequer in clandestine manner is exposer of a shameless greedy character who has neither respect for himself nor for the public. Banks especially nationalized banks are commonly trusted by people . Majority of general public prefer nationalized banks to private banks in the matters of investments ,savings, loans etc. Nationalized banks , on the other hand are entrusted to deal with that public money , obviously, with great care ,caution and effectively. It is not banks' personal money they deal with but public money for which they are entirely responsible and accountable. So, when one laundered bank money , he actually laundered public money. There can not be any transaction in personal capacity by a bank with any individual----when a loan is sanctioned or overdrawal of credit is allowed .Therefore, when one cheats banks he virtually cheats public in general. On that analogy, when public money is cheated , bank can not possibility ask for exoneration of the cheater on the ground it has no further grievance. Bank can not do it on principle. In the instant case, however, Mr. Viswanathan, Ld. Counsel for the Bank of Baroda has made it clear that the bank is not at all interested to compromise the prosecution allegedly committed by the applicant/accused.
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10)Therefore, the grounds taken by the petitioner are not at all worthy of consideration and this court having regard to the facts and circumstances of the present case, finds it in expedient to appreciate the grievance as ventilated by Mr. Dastoor. This does not appear to be a fit case where this Court in exercising its extraordinary power under Section 482 of Code, should quash the prosecution on the ground of depositing of cheated money and delay in proceeding.
11)Accordingly, the application stands rejected. The revision application is disposed of. The learned Magistrate is directed to ensure attendance of the petitioner on a date to be fixed by the Court. In doing so, the learned Magistrate can invoke relevant provisions of the code without any hesitation. It is further directed that the learned Magistrate should commence the trial without further ado upon communication of the order.
12)Mr. De be given a plain copy of this order duty attested by the Court officer, so that he can place it before the learned Magistrate. Learned Magistrate is directed to act on the plain copy in order to avoid delay. Interim order of stay, if any, stands vacated.
(Kanchan Chakraborty, J)