Calcutta High Court (Appellete Side)
Shri Jagannath Goswami & Ors vs The State Of West Bengal & Anr on 16 August, 2023
Author: Shekhar B. Saraf
Bench: Shekhar B. Saraf
IN THE HIGH COURT AT CALCUTTA
CRIMINAL REVISIONAL JURISDICTION
APPELLATE SIDE
Present: -
The Hon'ble Justice SHEKHAR B. SARAF
C.R.R. No 1837 OF 2008
SHRI JAGANNATH GOSWAMI & ORS.
VS
THE STATE OF WEST BENGAL & ANR.
For the Petitioners: Mr Biplab Mitra, Adv.
Mr Indranil Nandi, Adv.
Mr Sayak Konar, Adv.
For the State: Mr Joydeep Roy, Adv.
Ms Sujata Das, Adv.
For the Opposite Party No.2: Mr Pradip Kr. Roy, Adv.
Last heard on: July 31, 2023
Judgement on: August 16, 2023
Page 1 of 25
Shekhar B. Saraf J:
1. The instant Criminal Revisional Application, being C.R.R. No 1837 of
2008, has been filed by the petitioners under Section 401 read with
Section 482 of the Code of Criminal Procedure, 1973 (hereinafter
referred to as the 'CrPC') against the order dated March 4, 2008 passed
by the Learned Judge, Special Court, Tamluk, Purba Medinipur, in
connection with G.R. Case No. 226 of 1998 arising out of Tamluk P.S.
Case No. 69 dated April 30, 1998, alleging commission of offences u/s
468/471/420/120B/406/409 of the Indian Penal Code, 1860
(hereinafter referred to as the 'IPC').
2. Before delving into the facts, it is required at the outset to adumbrate
the identity of the parties involved in the instant application. Jagannath
Goswami, being the petitioner no. 1, herein was holding the post of vice
chairman of the Tamluk Ghatal Co-operative Bank (hereinafter referred
to as the 'Bank'), Shri Ratan Chakraborty and Shri Tarun Samanta,
being the petitioners no. 2 and 3 respectively, were holding the post of
Directors in the said Bank. It is needed to be pointed out that the
petitioner no. 2 has already passed away.
3. On the other side, Shri Pratik Banerjee, Deputy Registrar of Co-
operative Socieites, Western Zone, Burdwan, being the opposite party
no. 2 is the one who had filed the said criminal complaint dated April
30, 1998 with Tamluk Police Station.
Page 2 of 25
Relevant Facts
4. The germane facts which remain after eschewing the unnecessary are
mentioned below:-
a) A proposal was submitted by Sri Mata Prasad Jaiswal, proprietor
of M/s Jaiswal Traders located in Durgachak, Haldia, to seek a
loan for the purpose of constructing a hotel-cum-restaurant. The
proposal was presented to the loan committee of the Bank under
Memo No. HO/TME/4840 dated 02.02.1996 for their careful
evaluation and consideration.
b) The proposal was subsequently accepted after a prolonged
discussion and it was resolved that a loan amounting to Rs.
36,00,000 /- ( Rupees Thirty Six Lakhs Only) would be sanctioned
from the Bank's own resources. It was further decided that interest
at the rate of 18% per annum would be levied upon the said loan.
c) The term of the loan as agreed between the parties was that the
borrower was required to repay the entire loan amount along with
interest by six-yearly instalments. It was also agreed that the loan
will carry interest at the rate of 18% per annum and the said
interest shall be realised on half yearly basis. The penal interest
which would be levied in the event of any default was set at the
rate of 20% per annum till the entire loan is liquidated.
Page 3 of 25
d) In the same meeting, it had been further decided that as part of
collateral security, a land and building, lien of fixed deposit and
cash certificate, and LIC policy in favour of the Bank would be
taken against the disbursement of the loan amount. At this
juncture, it is relevant to point out that the National Bank for
Agriculture and Rural Development ('NABARD') issued a letter
informing the Chairman of the Bank that 'the said disbursement of
loan by the Bank is not eligible for NABARD refinance assistance
as the same exceeds the integrated loan limit of Rs. 10,00,000/-
(Rupees Ten Lakhs only)'.
e) On July 21, 1995, Mata Prasad Jaiswal, that is, the borrower
became the nominal member of the Bank by depositing the
requisite membership fees.
f) The borrower made payments towards the repayment of the loan
to the tune of Rs. 39,32,760 the September 3, 2003 out of the
disbursed amount of Rs. 32,00,000/- whereof the sanctioned
amount was Rs. 36,00,000/-. It is to point out that there were
certain defaults of repayment of the loan amount committed by the
borrower and recovery proceedings were also initiated. For the
sake of brevity, it is not necessary to discuss that herein.
g) On April 20, 1998, a complaint was registered by Sri Pratik
Banerjee, Deputy Registrar of Co-operative Societies, Western
Page 4 of 25
Zone, Burdwan, with the Tamluk Police Station bearing case no
69/1998 against the petitioners alleging the occurrence of the
offences mentioned under 468/471/420/120B/406/409 of the
I.P.C. Subsequently, criminal proceedings corresponding to G.R.
No. 226/1998 were set into motion.
h) Accordingly, the charge sheet no. 142/99 dated September 4,
1999 under the relevant sections was submitted in connection
with the said criminal case, charging the petitioners under
sections 468/471/406/409/420/120B of the IPC, and the same is
pending before the Learned Special Judge at Tamluk, Purba
Medinipur. It is further pertinent here to state that the Learned
Judge by an order dated March 04, 2008 framed charges under
section 409/120B of the I.P.C.
i) The petitioners, at this juncture, filed this revisional application
praying for quashing of the proceedings before Learned Special
Judge at Tamluk, Purba Medinipur being T.R Case No. 7/99 in
connection with G.R. Case No. 226/1998 arising out of Tamluk
Police Station Case No. 69/1998.
Contentions
5. The learned counsel appearing on behalf of the petitioners made the
following submissions:
Page 5 of 25
a) The counsel submitted that the said loan was sanctioned and
ultimately disbursed on the basis of collateral security furnished
by the borrower. He contended that as of March 19, 2008, the
borrower repaid/deposited a total of Rs. 39,32,760/-, which
includes Rs. 10,00,000/- deposited after this Court's order dated
September 06, 2006. The Court had stayed all further proceedings
of the certificate case no. 4 of 2005-06 on the condition that the
borrower deposits Rs. 30,12,540/-. Out of this amount, the
borrower had already deposited the said Rs. 10,00,000/- which
was held in a suspense account by the Bank.
b) The counsel argued that there is no evidence to suggest that the
petitioners have engaged in any misappropriation of funds
entrusted to them by the Bank or misappropriated any of the
Bank's property. The counsel emphasized that substantial
collateral security, comprising land, building, fixed deposits, cash
certificates, and a life insurance policy, was pledged in favour of
the said Bank before the loan's approval.
c) The counsel asserted that the petitioners promptly took
appropriate legal measures immediately after the borrower
defaulted on the said loan. Notably, the award rendered by the
learned Certificate Officer was executed through the initiation of
certificate proceedings. As such, it cannot be reasonably asserted
that the petitioners were remiss in their duty regarding either the
Page 6 of 25
sanctioning of the loan to the borrower or the timely pursuit of
remedies for recovery of the said loan. The counsel further argued
that the prosecution's assertion that the bank authorities failed to
take appropriate measures for the recovery of the loan of Rs.
32,00,000/- along with interest is fundamentally erroneous.
d) The counsel contended that the loan does not amount to an
entrustment, as the Bank provided the loan to the borrower based
on the borrower's undertaking to repay the loan along with interest
in instalments. In the event of the borrower's failure to make
timely repayments, the bank officials appropriately pursued legal
measures for recovery. Therefore, it cannot be stated and/or
observed on behalf of the prosecution that there is any ingredient
of criminal breach of trust against the petitioners.
e) The counsel asserted that for an offence under Section 409 of the
IPC, the establishment of entrustment alone is insufficient; it is
imperative to prove dishonest or criminal intent. As per legal
requirements, materials indicating the conversion of the property
for personal or dishonest use must be demonstrated by materials
collected during the investigation. However, in the current case,
there exists no such investigative material demonstrating any
dishonest or criminal intent, nor any conversion of the property for
the petitioners' use. To substantiate the abovementioned
proposition, reliance was placed upon the decision of the Supreme
Page 7 of 25
Court in Kailash Kumar Sanwatia -v- State Of Bihar reported
in (2003) 7 SCC 399.
f) The counsel highlighted that the borrower had made payments up
to Rs. 39,32,760/- until September 2003, out of the actual
disbursed amount of Rs. 32 lakhs. This payment receipt is
supported by documents from the Bank's books of account, issued
by the Chief Executive Officer on 19th March 2008, in relation to
the loan account of the Borrower of M/s. Jaiswal Traders. These
documents are admissible in evidence and can be duly considered
in any legal proceeding, as per the provisions of the Banker Book
of Evidence Act, 1891. The referenced document indicates that the
Bank received the aforementioned sum from the loanee until 2003.
The counsel also observed that both the First Information Report
(FIR) and the Charge Sheet do not make any mention of the Bank's
receipt. Additionally, the learned Judge of the Special Court,
Tamluk, Purba Medinipur, did not have an opportunity to assess
the legal implications of such receipt by the Bank.
g) The counsel noted that due to the loanee's default in making
timely loan payments with interest, the said Bank initiated civil
proceedings by filing a Dispute Case under Section 95 of the West
Bengal Co-operative Societies Act, 1983. In the aforementioned
Dispute Case, an award dated February 2, 1999 was passed in
favour of the Bank and against the loanee amounting to Rs.
Page 8 of 25
24,98,804. The counsel contended that the facts presented above
clearly demonstrate that a dispute, inherently civil in nature, has
been intentionally portrayed as a criminal case by the Deputy
Registrar of Co-operative Societies, Western Zone, Burdwan, in the
form of Tamluk Police Station Case No. 69 dated April 20, 1998.
h) The counsel contended that a significant portion of the sanctioned
loan amount was repaid by the borrower during the pendency of
the case, which should have been duly considered as it
substantially weakens the allegation of criminal breach of trust
under Section 409 of the I.P.C. Consequently, the current criminal
proceedings merit quashing.
i) The counsel asserted that the materials collected during the
investigation fail to indicate any conspiracy leading to the
sanctioning of the loan or any pecuniary benefit received by the
petitioners from the loan transaction. In the absence of such
evidence, the sanction of a loan cannot form the basis of any
criminal proceeding for which the instant proceedings deserve to
be quashed.
j) The counsel asserted that the materials collected during the
investigation do not establish any dishonest or criminal intention,
nor do they demonstrate the conversion of the property for the
petitioners' personal or dishonest use. Instead, the materials
Page 9 of 25
suggest that the petitioners' actions were within the scope of their
official duties as public servants. Consequently, they are entitled
to the protection of Section 197 of the CrPC, and the cognizance
taken by the learned Special Court without any sanction under
Section 197 is liable to be set aside.
k) The counsel submitted that pursuant to Section 21(1) of the
NABARD Act, the National Bank is empowered to provide
refinance, loans, and advances to State Co-operative Banks,
Central Co-operative Banks, Regional Rural Banks, and approved
Financial Institutions. At the relevant time, NABARD offered a
refinance scheme catering to hotel businesses and related
ventures, with a maximum loan limit of Rs 10 lacs. Borrowers
seeking benefits from this scheme were required to ensure that
their total project cost remained within this limit. However, in the
present case involving the Borrower, the project cost amounted to
Rs 36 lacs, surpassing the permissible limit of Rs 10 lacs. As a
result, the borrower did not qualify for the NABARD refinance
scheme. The counsel highlighted that the benefits under various
NABARD schemes are typically routed through Cooperative Banks,
such as Tamluk Ghatalal Central Cooperative Bank (TGCCB), to
their members or nominal members. The counsel further
contended that since the Borrower was a nominal member of the
Bank, he was otherwise eligible to obtain/get the said loan from
the said Bank.
Page 10 of 25
l) The counsel argued that as per Section 2(7) of the West Bengal Co-
operative Societies Act, 1983, the term "Central Co-operative
Bank" is defined in accordance with the NABARD Act, 1981.
According to Section 2(d) of the NABARD Act, 1981, "Central Co-
operative Bank" refers to the primary co-operative society in a
District within a State, whose main objective is to provide financial
support to other co-operative societies in that particular district.
Section 24(1) of the said Act states that the ultimate authority of a
cooperative society lies with its general body of members convened
in a General Meeting. Alternatively, the authority may also be
vested in delegates elected by the members in a prescribed manner
and gathered in the General Meeting, subject to the provisions of
the said Act and the accompanying rules.
m) The counsel contended that under the provisions of the 1983 Act,
its accompanying rules, and the bye-laws of the Bank, the Board
of Directors has significant authority to grant loans to nominal
members using the bank's own funds. The counsel submitted that
since the Bank carries on banking business, in order to earn
profits, it has to invest its funds by way of loans to its
members/nominal member.
n) The counsel submitted that thus there was no infirmity and/or
illegality on the part of the Bank in granting the said loan, in
Page 11 of 25
respect of which a substantial amount to the tune of Rs 39 lacs
was subsequently recovered.
6. The learned counsels appearing on behalf of the opposite party
propounded the following submissions: -
a. The counsel pointed out that after a detailed and thorough inquiry
by the police authority on the basis of the complaint on April 20,
1998, the charges were put under the abovementioned sections of
the I.P.C and subsequently, the Charge Sheet/Final Report was
also submitted.
b. The counsel also argued that the foremost reason why the
petitioners of the instant case were being prosecuted is due to the
fact that they had issued a loan to the tune of Rs. 36,00,000/- to
the borrower which was outside the prescribed limit of Rs.
10,00,000/-. It is in this regard that the act of the petitioners
violated the West Bengal Co-Operative Banks Guidelines.
c. The stand taken by the petitioners is that the valuation of the
project which was to be constructed on the land allegedly given as
collateral was higher than the sanctioned amount. In response, the
counsel submitted that such an argument, when made before this
court, is not appropriate and would be properly suited before the
Page 12 of 25
trial court. It is also added that the borrower has been timely
paying off the debt is also an argument/submission to be made
before the trial court.
d. The counsel further submitted that the valuation of the land given
as collateral, according to the registered deed dated July 7,1994
was a paltry Rs. 1.27 Lakhs only which is, he argued, considerably
lower than the sanctioned amount. It is further argued that the
petitioner not only sanctioned a loan amount which is higher than
the prescribed limit but also disbursed the amount against a
security the value of which is lower than the sanctioned amount.
In addition to this, it is further argued that the loan was
sanctioned by the petitioners even before the borrower deposited
the cash certificate with the bank to which the counsel argued that
such action ostensibly shows a collusion between the borrower
and the petitioners.
e. To support its contentions, the counsel placed reliance on several
judgements of the Supreme Court namely State of Haryana and
Ors -v- Bhajan Lal reported in 1992 Supp (1) SCC 335 and R.P
Kapur -v- State of Punjab reported in AIR 1960 SC 866.
Page 13 of 25
Analysis
7. I have heard the learned counsel appearing on behalf of the respective
parties and have thoroughly perused the materials on record.
8. The Supreme Court in the State of Haryana and Ors -v- Bhajan Lal,
reported in 1992 Supp (1) SCC 335 had elaborated on the powers of
the High Court and the parameters that need to be kept in mind while
adjudicating a petition, filed under Section 482 of the Criminal
Procedure Code, 1973, praying for quashing of the F.I.R. The relevant
portion has been extracted below:
"102. In the backdrop of the interpretation of the various relevant
provisions of the Code under Chapter XIV and of the principles of
law enunciated by this Court in a series of decisions relating to the
exercise of the extraordinary power under Article 226 or the inherent
powers under Section 482 of the Code which we have extracted and
reproduced above, we give the following categories of cases by way
of illustration wherein such power could be exercised either to
prevent abuse of the process of any court or otherwise to secure the
ends of justice, though it may not be possible to lay down any
precise, clearly defined and sufficiently channelised and inflexible
guidelines or rigid formulae and to give an exhaustive list of myriad
kinds of cases wherein such power should be exercised.
(1) 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.
(2) Where the allegations in the first information report and
other materials, if any, accompanying the FIR do not disclose a
cognizable offence, justifying an investigation by police officers
under Section 156(1) of the Code except under an order of a
Magistrate within the purview of Section 155(2) of the Code.
Page 14 of 25
(3) Where the uncontroverted allegations made in the FIR 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.
(4) Where the allegations in the FIR do not constitute a
cognizable offence but constitute only a non-cognizable offence,
no investigation is permitted by a police officer without an order
of a Magistrate as contemplated under Section 155(2) of the
Code.
(5) Where the allegations made in the FIR or complaint are so
absurd and inherently improbable on the basis of which no
prudent person can ever reach a just conclusion that there is
sufficient ground for proceeding against the accused.
(6) 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.
(7) 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."
9. Again in Pepsi Foods Ltd. -v- Special Judicial Magistrate, reported
in (1998) 5 SCC 749, the following observations was made by the
Court :-
"The Apex Court with reference to the Bhajan Lal case (Supra)
observed that the guidelines laid therein as to where the court will
exercise jurisdiction under Section 482 of the Code could not be
inflexible or laying rigid formulae to be followed by the courts.
Exercise of such power would depend upon the facts and
circumstances of each case but with the sole purpose to prevent
abuse of the process of any court or otherwise, to secure the ends of
Page 15 of 25
justice. It is well settled that these powers have no limits. Of
course, where there is more power, it becomes necessary to
exercise utmost care and caution while invoking such
powers."
(Emphasis Supplied)
10. In another recent decision in Arnab Goswami v. State of
Maharashtra reported in (2021) 2 SCC 427, the Supreme Court
opined that while adjudicating a quashing petition, the High Court is
duty-bound to undertake a prima facie evaluation of whether the
ingredients of the alleged offence have been established in the FIR.
11. As authored by Arijit Pasayat, J., in State of A.P. v. Golconda Linga
Swamy reported in (2004) 6 SCC 522 and to summarise the law
relating to Section 482 of the CrPC, the relevant paragraphs have been
reproduced below:-
"5. Exercise of power under Section 482 of the Code in a case of this
nature is the exception and not the rule. The section does not confer
any new powers on the High Court. It only saves the inherent power
which the Court possessed before the enactment of the Code. It
envisages three circumstances under which the inherent jurisdiction
may be exercised, namely: (i) to give effect to an order under the
Code, (ii) to prevent abuse of the process of court, and (iii) to
otherwise secure the ends of justice. It is neither possible nor
desirable to lay down any inflexible rule which would govern the
exercise of inherent jurisdiction. No legislative enactment dealing
with procedure can provide for all cases that may possibly arise.
Courts, therefore, have inherent powers apart from express
provisions of law which are necessary for the proper discharge of
functions and duties imposed upon them by law. That is the
doctrine which finds expression in the section which merely
recognises and preserves the inherent powers of the High Courts. All
courts, whether civil or criminal, possess in the absence of any
Page 16 of 25
express provision, as inherent in their constitution, all such powers
as are necessary to do the right and to undo a wrong in the course
of the administration of justice on the principle quando lex
aliquid alique concedit, conceditur et id sine quo res ipsa
esse non potest (when the law gives a person anything, it
gives him that without which it cannot exist). While exercising
powers under the section, the Court does not function as a court
of appeal or revision. Inherent jurisdiction under the section
though wide has to be exercised sparingly, carefully and
with caution and only when such exercise is justified by the
tests specifically laid down in the section itself. It is to be
exercised ex debito justitiae to do real and substantial justice for
the administration of which alone courts exist. The authority of the
court exists for the advancement of justice and if any attempt is
made to abuse that authority so as to produce injustice, the court
has power to prevent such abuse. It would be an abuse of the
process of the court to allow any action which would result in
injustice and prevent the promotion of justice. In the exercise of
the powers court would be justified to quash any proceeding
if it finds that initiation or continuance of it amounts to
abuse of the process of court or quashing of these
proceedings would otherwise serve the ends of justice. When
no offence is disclosed by the complaint, the court may examine the
question of fact. When a complaint is sought to be quashed, it is
permissible to look into the materials to assess what the
complainant has alleged and whether any offence is made out even
if the allegations are accepted in toto.
**********
7. In dealing with the last category, 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 clearly inconsistent with the accusations made, and a case where there is a legal evidence which, on appreciation, may or may not support the accusations. When exercising jurisdiction under Section 482 of the Code, the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained. That is the function of the trial Judge. The judicial process, no doubt should not be an instrument of oppression, or, needless harassment. The court should be circumspect and judicious in exercising discretion and should take all relevant facts Page 17 of 25 and circumstances into consideration before issuing process, lest it would be an instrument in the hands of a private complainant to unleash vendetta to harass any person needlessly."
(Emphasis Supplied)
12. In the wake of aforesaid decisions, the Apex Court has consistently underscored the guidelines governing the exercise of inherent powers under Section 482 of the CrPC and/or under Article 226 of the Constitution of India, especially concerning the quashing of FIRs/complaints. With this in mind, it now becomes incumbent upon this Court to delve into the charges levied upon the accused.
13. Keeping in mind the Learned Judge's order dated March 04, 2008 wherein charges were framed under section 409/120B of the IPC, it is essential to discuss the relevant provision of the penal code.
14. The Supreme Court, while interpreting section 409 of the IPC, has laid the following ingredients in the case of Kailash Kumar Sanwatia -v- State of Bihar reported in (2003) 7 SCC 399 :-
"7. Section 409 IPC deals with criminal breach of trust by a public servant, or by a banker, merchant or agent. In order to bring in the application of the said provision, entrustment has to be proved. In order to sustain a conviction under Section 409, two ingredients are to be proved. They are: (1) the accused, a public servant, or banker or agent was entrusted with the property of which he is duty-bound to account for; and (2) the accused has committed a criminal breach of trust.Page 18 of 25
8. What amounts to a criminal breach of trust is provided in Section 405 IPC. Section 409 is, in essence, a criminal breach of trust by a category of persons. The ingredients of the offence of criminal breach of trust are: (1) Entrusting any person with property, or with any dominion over property. (2)The person entrusted:- (a) dishonestly misappropriating or converting to his own use that property, or (b) dishonestly using or disposing of that property or wilfully suffering any other person so as do in violation -
(i) of any direction of law prescribing the mode in which such trust is to be discharged, or (ii) of any legal contract made touching the discharge of trust."
(Emphasis Supplied)
15. Ergo, to bring forth accusations under Section 409 of the IPC, certain fundamental requirements must be proven together :-
1) Entrusting any person with property or with any dominion over property;
(2) The person entrusted:- (a) dishonestly misappropriating or converting to his own use that property; or (b) Dishonestly using or disposing of that property or wilfully suffering any other person so to do in violation (i) of any direction of law prescribing the mode in which such trust is to be discharged, or
(ii) of any legal contract made touching the discharge of such trust.Page 19 of 25
Conclusion:-
16. As per the dictum of Bhajan Lal (supra), this Court needs to tread carefully and satisfy itself whether the facts and circumstances are such that it requires a quashing of the proceedings and to see if the facts fall under the exception laid down.
17. In the first instance, the allegations outlined in the FIR do indeed amount to an offence against the accused individuals and reveal the presence of a cognizable offence. Secondly, it is evident that the accusations are neither ludicrous nor implausible, as there exist substantial reasons to proceed with the case against the accused parties. Lastly, this Court is of the view that there is no justifiable cause to quash the proceedings, as they are not tainted with malicious intent or motivated by any ulterior motive seeking retribution against the accused, driven by personal animosity or private grudges.
18. In addition to this, it is imperative to comprehend that the term "entrustment" in this context denotes the delegation of the authority to sanction loans to the customers of the cooperative bank, subject to adhering to the guidelines duly established by the competent authority. It is my considered view that such authority was vested in the petitioners. Consequently, allegations of irregularities arising during the disbursement of loan amounts have been brought to my attention, Page 20 of 25 and I firmly opine that these issues necessitate thorough examination by the lower court.
19. It has been brought to the attention of this Court that the value of the land, as indicated in the registered deed dated July 07 1994, which was provided as collateral security, appears to be lesser in comparison to the amount of the sanctioned loan. Such a circumstance undoubtedly raises concerns and warrants careful scrutiny by the appropriate court, i.e., the Tamluk Court where the ongoing proceedings are being conducted.
20. It is also alleged that while sanctioning the loan amount, the guidelines and the bye-laws of the Bank were not properly followed by the petitioners, and in my opinion this factual nature is to be decided by Trial Court concerned.
21. As a response to the argument suggesting that no actual loss has been suffered and that the loan amount has been nearly or substantially recovered, it becomes imperative to delve into the ratio decidendi of a pertinent judgment delivered by the Bombay High Court. The case in reference is Dagadu Shamrao Deshmukh -v- State of Maharashtra reported in 1982 Cri LJ 1866. In this judgment, the court pronounced that the concept of 'zero ultimate loss' does not serve as a shield against conviction under Section 409 of the IPC.
Page 21 of 25
22. In addition, I am inclined to be swayed by the verdict pronounced by the Apex Court in the case of Neeharika Infrastructure Pvt. Ltd. vs. State of Maharashtra and Others reported in 2021 SCC OnLine SC
315. The pertinent paragraphs of the said judgment are hereby extracted below:
"23. ******
i) Police has the statutory right and duty under the relevant provisions of the Code of Criminal Procedure contained in Chapter XIV of the Code of Criminal Procedure to investigate into a cognizable offence;
ii) Courts would not thwart any investigation into the cognizable offences;
iii) It is only in cases where no cognizable offence or offence of any kind is disclosed in the first information report that the Court will not permit an investigation to go on;
iv) The power of quashing should be exercised sparingly with circumspection, as it has been observed, in the 'rarest of rare cases (not to be confused with the formation in the context of the death penalty).
v) While examining an FIR/complaint, quashing of which is sought, the court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR/complaint;
vi) Criminal proceedings ought not to be scuttled at the initial stage;
vii) Quashing of a complaint/FIR should be an exception rather than an ordinary rule;
viii) Ordinarily, the courts are barred from usurping the jurisdiction of the police, since the two organs of the State operate in two specific spheres of activities and one ought not to tread over the other sphere;Page 22 of 25
ix) The functions of the judiciary and the police are complementary, not overlapping;
x) Save in exceptional cases where non-interference would result in the miscarriage of justice, the Court and the judicial process should not interfere at the stage of investigation of offences;
xi) Extraordinary and inherent powers of the Court do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice;
xii) The first information report is not an encyclopaedia which must disclose all facts and details relating to the offence reported. Therefore, when the investigation by the police is in progress, the court should not go into the merits of the allegations in the FIR. Police must be permitted to complete the investigation. It would be premature to pronounce the conclusion based on hazy facts that the complaint/FIR does not deserve to be investigated or that it amounts to an abuse of the process of law. After investigation, if the investigating officer finds that there is no substance in the application made by the complainant, the investigating officer may file an appropriate report/summary before the learned Magistrate which may be considered by the learned Magistrate in accordance with the known procedure;
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xv) When a prayer for quashing the FIR is made by the alleged accused and the court when it exercises the power under Section 482 Cr. P.C., only has to consider whether the allegations in the FIR disclose commission of a cognizable offence or not. The court is not required to consider on merits whether or not the merits of the allegations make out a cognizable offence and the court has to permit the investigating agency/police to investigate the allegations in the FIR;' (Emphasis Supplied) Page 23 of 25
23. Based on the aforesaid judicial pronoucments and the reasons elucidated above, I am of the opinion that the criminal complaint in the present matter does make out a prima facie case against the petitioners/ accused persons. Moreover, the instant revisional application is not a rare case that justifies the Court's interference, and for this reason, the said FIR and proceedings before the Trial Court concerned should not be quashed. Thus, this criminal revisional application is hereby disposed of with a caveat that no pronouncement has been made by this Court on the merits of the case, as I firmly believe that such deliberation falls squarely within the purview of the Trial Court.
24. I hereby direct the Learned Judge, Special Court, Tamluk, Purba Medinipur, to conduct expeditiously the ongoing proceedings being T.R Case No. 7/99 and conclude the same within a period of 6 months from the date of receipt of this order. This instruction is deemed necessary to ensure a swift and efficient resolution of the matter at hand, promoting the principles of prompt justice delivery and safeguarding the interests of all concerned parties.
25. The Registry is directed to serve a copy of this judgment to the Learned Judge, Special Court, Tamluk, Purba Medinipur for necessary compliance.
Page 24 of 25
26. Pending interlocutory applications before this Court, if any, stands dismissed. There shall be no order as to costs.
27. Urgent Photostat certified copy of this judgment, if applied for, should be made available to the parties upon compliance with the requisite formalities.
(Shekhar B. Saraf, J.) Page 25 of 25