Patna High Court
The State Of Bihar vs Shishir Kumar Ghosh on 9 November, 2012
Author: Mandhata Singh
Bench: Mandhata Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
Govt. Appeal (SJ) No.5 of 2004
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Against the judgment of acquittal dated 16.12.2003 passed by Shri Bikrama
Ram, Judicial Magistrate, 1st Class, Patna in G.R.970/97/T.R.1768/03.
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The State Of Bihar
.... .... Appellant
Versus
Shishir Kumar Ghosh
.... .... Respondent
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Appearance:
For the Appellant: Mr. S.N.Prasad, A.P.P
For the Respondent:
Mr. Surendra Kumar, Advocate and
Mr. Kamlesh Prasad Singh
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CORAM: HONOURABLE MR. JUSTICE MANDHATA SINGH
ORAL JUDGMENT
Date: 9.11.2012
F.I.R. initiated on a written report of B.L. Basyantri, Secretary, Bihar
School Examination Board, Patna, in brief, is that he was Secretary to Bihar
School Examination Board (hereinafter referred to as 'Board'). On 9.8.1990
accused Vinod Kumar Beria, a stock and share broker and a member of Magadh
Stock Exchange Association represented before the Board that Canara Bank had
settled Canstar Fund Mutual Fund 1990 Scheme for raising deposits (amount). He
convinced for better return of the amount of Group Insurance of the Employees of
the Board. There is further detail of the return of amount twice after five years,
three time at the end of eight years and 4 time at the end of ten years. The amount
can be withdrawn any time after completion of three years.
2. Literature was also provided. On persuasion and entrustment
with literature a proposal was submitted on 9.8.1990 by accused respondent S.K.
Ghosh for investment of money in the Employees Group Insurance Account in
CANSTAR. Thereafter the accountant A.K.Lehri placed the file with his
Patna High Court G. APP. (SJ) No.5 of 2004 2
suggestion to the then Finance Officer for re-investment of Rs. 35,00,000/- in the
aforesaid CANSTAR Scheme for five years. Thereafter the same was placed
before Mathura Chaudhary, the then Secretary who recommended to place the file
before the Chairman of the Board Dr Ram Naresh Trivedi. The matter was
discussed and proposal was approved by the then Chairman himself on 13.9.1990
without there being even any decision of the Board in this regard. On 13.9.1990
the Board applied for purchase of 3.50 lacs unit of Canstar on the application
form supplied by accused Beria together with cheque of Rs. 35,00,000/- of
Allahabad Bank, Patna in favour of CANBANK Mutual Fund, Canstar which
were inadvertently returned unpaid. A letter was sent to Trustee, CANBANK
Mutual Fund along with demand draft of Rs. 35,00,000/-. The Board was allotted
3.50 lacs Unit of Canstar bearing distinctive number 69739792 to 697737920 of
Rs. 10 each but no share certificates were sent to the Board. A letter was sent to
the Trustee of CANBANK Mutual Fund to expedite the issuance of aforesaid
certificates in favour of the Board even then no certificate received. On 2.1.1992
this accused respondent further gave a note in the file of Assistant Secretary of the
Board that out of the subsequent deposit of Rs. 6 lacs, a sum of Rs. 5 lacs if is
deposited for six years in the Bank of Baroda, the deposit will be doubled
benefiting the employees of the Board.
3. Again the matter was placed before the Chairman through the
Secretary Mathura Chaudhary with proposal to deposit the aforesaid Rs. 5 lacs
either in the S.B.I. Mutual Fund or in the PNB Mutual Fund. The matter was
discussed by the then Secretary of the Board with Chairman to invest Rs. 2 lacs to
SBI Mutual Fund and Rs. 3 lacs in Mutual Fund of Canara Bank. Cheques were
issued received by accused Beria on 19.2.1992 till then also share certificates of
already invested amount of Rs. 35 lacs was not delivered to the Board.
Patna High Court G. APP. (SJ) No.5 of 2004 3
4. Further it is alleged that the aforesaid accused Beria with an
ulterior motive informed the then Chairman of the Board vide his letter dated
9.3.1992that investment made by the Board as stated above in Canstar was supposed to be doubled in span of five years but same was done less than five years and he induced the then Chairman of the Board to convert the fund of Canstar to Candeep or other high growth income scheme as the fund will be getting double of the same money if reinvested and will get dividend or interest on 70 lacs instead of 35 lacs. Accused Beria was informed the decision of Chairman of the Board to convert all the Units (3.5 lacs) of Canstar into other high growth income scheme of Can Bank or other Mutual Fund for Rs. 70 lacs taken without any decision of the Board.
5. This accused respondent S.K.Ghosh again at the instance of the then Secretary and Chairman of the Board gave a proposal and defined about coming of Rs. 2,89,000/- in deposit in the Group Insurance Account of employees and to deposit Rs. 2,50,000/- in Candeep for betterment of the employees which was approved by the then Chairman. Accused Beria again received a cheque of Rs. 2,50,000/- towards investment in Candeep.
6. On the point of delivery of share certificates of Canstar, Vinod Kumar Beria gave false information of being lost of said certificates in transit for which several letters were sent to the concerned office by the then Secretary Mathura Chaudhary. Other formalities including submitting of affidavit were done for duplicate certificates.
7. It is further said that from the noting it was evident that Beria was misrepresenting and playing dubious role with the Board rather playing fraud in league with the then Chairman, the Secretary and other officials of the Board and authorities of the Trustees of Canbank Mutual Fund Bombay. On enquiry Patna High Court G. APP. (SJ) No.5 of 2004 4 from the Manager, Canara Bank Mutual Fund it transpired to the Board that the certificates of 35 lacs were already issued by Bombay Office long back to Vinod Kumar Beria but the fact was misrepresented by him.
8. It also came to the knowledge of the Board that authorities of Canstar in conspiracy with accused Beria illegally delivered him certificates which was admitted by Beria vide his letter dated 23.7.1992 and retained the same with him.
9. Beria admitted that one thousand transfer deeds were submitted to the Secretary for his signature for effecting the delivery and balance was to be given as soon as he got it from the Registrar of the Companies. The Secretary asked Beria to deliver 3.5 lacs Canstar certificates to the Board for verification and further needful immediately. This accused respondent was asked to explain as when the said certificates were made available to the Secretary for his signature and as to whether the sale proceeds of certificates which amounted to Rs. 70 lacs were received in the Board or not. Beria himself met the then Secretary, assured him the payment by end of January, 1993. Further a letter was given by Beria addressing the Chairman about some delay in making payment and assured to make payment within three months along with interest on the basis of fixed deposit rate with effect from 1.7.1993 till the date of payment. After further persuation Beria made payment of meager amount about Rs. 3,40,000/-.
10. In all 1,92,300 certificates still remained with Beria. Share market was contacted, rate of shares was Rs. 45 per unit on the date of alleged sale and it is said that in this way accused persons cheated and defrauded a sum of Rs. 87,75,000/- difference of price of 3.5 lac units of Canstar. Correspondence was made with Magadh Stock Exchange Association, Patna and Canbank Financial Services to stop the transaction of Beria for the Board. Authorities of Patna High Court G. APP. (SJ) No.5 of 2004 5 the Stock Exchange and Trustees of Canbank are said in league with accused persons. It is said that in conspiracy accused Beria was allowed to participate in the transaction of aforesaid Board.
11. After trial same case is ended in acquittal of the accused respondent by passing the impugned judgment, legality of which has been questioned through filing this appeal.
12. In all four witnesses are examined in the case. They are P.W.1 Ashraf Hussain legal assistant, P.W.2 Raghwendra Nath Tiwari, legal officer, P.W.3 Bhagwat Lal Basayantri informant of the case the then Secretary, B.S.E.B., Patna and P.W.4 Sachidanand Kumar.
13. P.W.1 has not supported the prosecution case rather has been declared hostile, of no use for any of the parties. P.W.2 is a witness to state that the money was diverted to purchase shares was the decision of Chairman, no doubt he states about accused respondent's duty to make proposal but not concerning this case. So, his evidence is also of no avail. P.W.4 has also not stated a word regarding allegations made in the F.I.R. P.W.3 only is concerned with the allegations leveled in the F.I.R. The whole allegation against this accused respondent is that he made some proposals in conspiracy with the main accused Vinod Kumar Beria.
14. It is made clear that F.I.R. has not been lodged against this accused respondent, his name appeared only in course of investigation and his first proposal according to P.W.3 was dated 9.8.1990 for deposit of Rs. 30,00,000/- of Group Insurance in Bank of India in Mutual Fund for five years. This proposal does not concern with deposit of money in Canstar Scheme of Mutual Fund of Canara Bank which has come in paragraph 2 of the examination in chief of this witness. In paragraph 10 he states about another note of this Patna High Court G. APP. (SJ) No.5 of 2004 6 accused respondent about reinvestigating the money in Candeep Scheme but giving detail about non-receiving of share certificates. In the same paragraph there is detail about giving of reminders for the share certificate. This material is not sufficient at all for involvement of accused respondent in committing crime even in conspiracy angle. So, I find no mistake committed by the trial court in passing the impugned judgment of acquittal of accused respondent.
15. The Govt. Appeal is accordingly, dismissed.
(Mandhata Singh, J) A.I./N.A.F.R.