Calcutta High Court (Appellete Side)
Gopal Jha vs Unknown on 31 August, 2022
23 31.8.2022
sb CRAN 1 of 2022 in CRR 2908 of 2018 In the matter of : Gopal Jha .......Petitioner Mr. Sudipto Moitra, Sr. Adv.
Mr. Vijay Verma
Mr. Dwaipayan Biswas ...for the petitioner
Mr. Amajit De ...for the C.B.I.
In Re: CRAN 1 of 2022
This is an application for recalling and/or modification of the order dated 12.8.2022 passed by this court in CRR 2908 of 2018.
It is contended on behalf of the petitioner that the petitioner moved the criminal revision petition being CRR 2908 of 2018 with two fold prayers. Firstly, the prayer was made for setting aside the order dated 17.7.2018 passed by the learned Additional District & Sessions Judge, Fast track court-II, Bichar Bhawan, in criminal revision no. 176 of 2016 affirming the order dated 17.5.2016 passed by the learned Metropolitan Magistrate, 21st court in G.R. case no. 2252 of 2009 rejecting the prayer for discharge under Section 239 of the Code of Criminal Procedure and secondly, he has also prayed for quashing the said G.R. case 2252 of 2009.
The moot point canvassed to the effect that since the charges were framed under Section 120B/419/420/468/471 of 2 the Indian Penal Code and as the complainant/bank authority has filed an agreement before the Debt Recovery Tribunal (DRT) in the proceeding for recovery of the loan amount for which the criminal case was instituted and as the bank authority has admitted the genuiness of the documents in respect of which the forgery has been alleged and consequently the proceeding before the Kolkata Debt Recovery Tribunal was ended by way of settlement, so he prayed for quashing of the said proceeding.
This court, after hearing both the parties, was pleased to dismiss the said revisional application. Now the petitioner prays for recalling and/or modification of the said order on the ground firstly, that the prayer made by the petitioner for quashing of the entire proceeding was not at all considered in it's proper perspective, in the said order. Secondly, while passing said order dated 12.8.2022 this court inadvertently did not consider the report which was submitted by the investigating officer dated 27.6.2022 as directed by Hon'ble Justice Tirthankar Ghosh by his lordship's order dated 22.3.2022 and along with said report, the bank authority also submitted a report and in the said report nothing transpires regarding the forgery and or allegation of impersonation. Thirdly, this court while dismissing the revisional application being persuaded that trial is being held in respect of the offence punishable under Section 467 of the Indian Penal Code and further judgments cited by the petitioner were held non-applicable since cited judgments were not related to Section 467 of the Indian Penal Code, but fact is that though the charge sheet was submitted including Section 467 of the Indian Penal Code but learned Metropolitan Magistrate, 21st Court, Calcutta 3 framed charge for offence punishable under Section 120B/419/420/468/471 of the Indian Penal Code 1860. Now said finding with regard to the offence under Section 467 of the Indian Penal Code, will cause irreparable prejudice and also cause to interfere with the administration of justice at this stage to the petitioner and the prosecution agency will have an avenue to insist the trial court to frame charge under Section 467 of the Indian Penal Code. Moreover Judgments cited by the petitioner were held to be non-applicable since in the cited judgments, no offence alleged under Section 467 of the Indian Penal Code. Admittedly in the present case charge was not framed under Section 467 of the Code against the petitioners and as such those judgments are very much applicable in the present case. It further appears that the entire judgment is based on propriety of the order impugned in the revisional application, however at the end, it was held that the case of the petitioner is not fit for quashing by invoking power under Section 482 of the Criminal Procedure Code. Lastly, though in the said order dated 12.8.2022 it was observed that a sum of Rs. 50 lakhs was paid to the concerned bank as a matter of fact, the petitioner has paid the entire loan amount as settled by the respective agency and accordingly, the petitioner submitted that unless the inadvertent errors which have cropped up in the order dated 12.8.2022 are recalled, the petitioner will have to face the serious adverse consequences in the administration of justice.
The petitioner has relied upon a judgment reported in (1988) SCC (Cri) 372 in support of his contention that no man should suffer because of the mistake of the court and no man 4 should suffer a wrong by technical procedure or irregularities. It was further held in the judgment that rules or procedures are the handmaid of the justice and not the mistress of justice. Petitioner further relied upon another judgment reported in (1983) SCC (Cri) 822 and contended that punishment under Section 467 of the Indian Penal Code is an offence described in Section 463 of the Indian Penal Code and hence cannot be taken cognizance in the absence of a written complaint by court under Section 195 (1) (b) (ii) of the Code of Criminal Procedure.
Learned advocate appearing for the opposite party submits that even if the charge was not framed against the petitioner under Section Section 467 of the Indian Penal Code by the trial court, even then reasoning for arrival of ultimate conclusion in the said order will not alter in view of the fact that the charge has been framed under Section 468 and 471 of the Code along with other sections. He further submits that Section 362 of the Code does not empower the court to alter or review a judgment after signing it and disposing of the case finally and it can only made correction in connection with clerical or arithmetical error as envisaged under Section 362 of the Code of Criminal Procedure. In this context, he relied upon a case law reported in (2011)2CCr LR (Cal) 747.
Considered the submissions made by both the parties. The application being CRR 2908 of 2018 was preferred against the order dated 17.7.2018 by which the petitioner's prayer for discharge under Section 239 of the Code of Criminal Procedure was not allowed by the court. At the outset, it should be made clear that unless the petitioner's prayer for discharge under 5 Section 239 of the Code of Criminal Procedure is allowed the question of quashing the entire proceeding does not arise. The petitioner has filed the said application being CRR 2908 of 2018 under Section 482 of the Code of Criminal Procedure though practically they have prayed for dismissal of the judgment and order dated 17.7.2018. It has been averred in the revisional application that the petitioners were initially booked under Section 419/424/467/468/471 read with Section 120B of the Code and after investigation charge sheet was also submitted before the concerned Metropolitan Magistrate, 21st Court, Calcutta under Section 120B/419/420/467/468/471 of the Indian Penal Code. It is true that in the order impugned, it has been stated that the charge in respect of which the petitioner has prayed for discharge that was not framed under Section 467 of the Code along with other sections but the charge was framed under Sections 468 and 471 of the Indian Penal Code and charge was not framed under Section 467 of the Indian Penal Code. It is not known to this court as to whether reasoned order was passed by Magistrate while excluding Section 467 of the Indian Penal Code at the time of framing charge specially when the accused persons were booked under Section 467 of the Code and charge sheet was also submitted under Section 467 of the Code along with other offences.
Now let me consider whether for not framing of charge by the trial court under Section 467 of the Code, the purport object, reasoning and ultimate finding of the order dated 12.8.2022 is liable to be recalled and/or modified. On perusal of the order impugned dated 12.8.2022, it appears that this court after 6 quoting Section 239 of the Code discussed when an accused person is liable to be discharged from a particular Section or as a whole. It is when the charge against the accused is found to be "groundless" only then he can be discharged. Now the observation made by the court below that there are sufficient ground to frame charge against the petitioner is the subject matter of present controversy. In this context, this court held in paragraph 38, that in the present context the allegation against the petitioner is about committing forgery i.e. the petitioner placed forged documents in order to persuade the bank for sanctioning loan. It has been specifically observed that from the materials appearing from the extract copy of the case diary, specially the report submitted by the hand writing expert clearly goes to show that the petitioner prima facie had mala fide and fraudulent intention from the very beginning in order to defraud the bank which discloses offence and which needs to be tried. Considering the documents and statements of other witnesses, it cannot be said that the chance of conviction of the petitioner is bleak even if private/bank may have become reluctant to proceed with the case in view of the amicable settlement. The live question which still exists is the allegation of committing forgery by petitioner and not the outcome derived by committing forgery by petitioner, which issue petitioner might have settled with the bank.
Accordingly, the issue involves herein is not whether the charge has been framed against the petitioners under Section 467 of the Indian Penal Code or not. The real issue in controversy is whether the charge framed against the accused 7 person under Section 468/471 along with other sections is still live for the purpose of final adjudication of the case, even if there appears to have an amicable settlement in between the bank authorities and the petitioners. In this context, it was specifically discussed in paragraph 36 of the judgment impugned that even if a settlement with bank had taken place and the bank had withdrawn the suit from DRT but live issues regarding practising fraud upon the bank, misappropriation impersonation and other material allegations including cheating the bank on the basis of forged documents are subject matter which are alive for adjudication during trial.
This observation of the court has no impact upon the fact as to whether the charge was framed against the petitioners under Section 467 of the Code or not. Admittedly charge has been framed against the accused persons/petitioners under Section 468 and 471 of the Code.
In this context it is to be mentioned further that in compliance with order of justice Tirthankar Ghosh dated 22.03.2022, the bank authority has given a report on 27.06.2022, which according to the petitioner, has not been considered in the impugned judgment.
On perusal of Paragraph 2(c) (iii) of the report it is evident that bank has specifically stated about commission of offence of impersonation to defraud the bank for the purpose of securing loan and thereby they have never stated that no such offence of fraud was committed but what the petitioner wanted to point out is that bank has stated in their report, which was prepared after amicable settlement that "some miscreants" had committed the 8 offence. Now whether the petitioners comes within that term "some miscreants" or not, for that purpose charge has been framed against petitioner and the answer of said question can only obtained by way of trial.
In this context it can be said that the decision referred in (2017) 4 C Cr. LR. (SC) 561 relates to a case where the loan obtained on the basis of forged stock statements but the accused persons in that case was not charged under Section 468 of the Code and Hon'ble High court came to a conclusion that after amicable settlement, the borrower became reluctant about the issue of forged stock statements for the purpose of obtaining higher credit limit and that is why the Hon'ble Court came to the conclusion that prolonged trial might be abuse of process of court since ultimate trial may end in a decision which may be of no consequence to any of the parties.
It is observed in the impugned judgment that considering the materials in the case diary of the present case, it cannot be said that the chance of conviction in the present case is bleak and that is why the said judgment does not squarely applicable in the present case.
Similarly the case laws reported in (2014) 2 C Cr LR (SC) 328 was not in connection with Section 468 or Section 471 of the Code of Criminal Procedure and it was merely a case under Section 420/120B of the Indian Penal Code and said case also does not apply in the present context as the liability to make a monetary loss suffered by bank was mutually settled between the parties and the accused had accepted the liability in this 9 regard and that is why High Court found though it fit to invoke power under Section 482 of the Code of Criminal Procedure.
Now as regards, the judgment reported in (2019) 2 SCC 689 though it was a case under Section 468 and 471 along with other relevant sections but the finding of the court was that taking into account, the entire undisputed controversy there is no criminality issue survived qua those accused who are alive so as to allow prosecuting agency to continue with criminal trials on merits. In the said case, charge sheet was filed against 12 accused persons out of which 6 are individuals and remaining are the company and it is not in dispute that during the pendency of the case four accused persons died. Accordingly, the said case has got no application in the present context as in that case no criminality issue survived against those accused persons who are alive but it is not the case in the present context and here it has been discussed in details that the criminality issue is well survived against the petitioner/accused persons who are alive and for which it cannot be said that there is no reason to disallow the prosecuting agency to continue with criminal trial on merits.
In view of the above, I do not find any merit in the prayer made by the petitioner for recalling or modification of the order dated 12.8.2022 passed by this court and as such CRAN 1 of 2022 is dismissed.
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Urgent photostat certified copy of this order, duly applied for, be given to the parties upon compliance of all requisite formalities.
(Ajoy Kumar Mukherjee, J.)