Patna High Court - Orders
Devendra Prasad Singh vs State Of Bihar & Anr on 1 July, 2009
IN THE HIGH COURT OF JUDICATURE AT PATNA
Cr.Misc. No.55450 of 2006
DEVENDRA PRASAD SINGH, S/o late Ram Saran Singh, R/o village Sahit, P.S. Vidyapati
Nagar, District - Samastipur
..... Petitioner
Versus
1. STATE OF BIHAR
2. The Senior Regional Manager, Land Development Bank, Munger
....... Opp. Parties
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For the petitioner : M/s Rama Kant Sharma, Sr. Advocate &
L.K.Sharma, Advocate
For the State : Mr. Jharkhandi Upadhaya, A.P.P.
For O.P. No. 2 : Mr. Girja Nand Prasad, Advocate
ORDER
The petitioner, the sole FIR named accused of Jamui P.S. Case No. 123 of 1991, G.R. No. 793 of 1991, through this application has prayed for the quashing of the entire proceeding arising therefrom including the order dated 22.11.1995 passed therein by the learned Chief Judicial Magistrate, Jamui, whereby he has taken cognizance for offences under sections 419, 420, 467 and 409 IPC . The petitioner has further prayed for the quashing of the order dated 25.1.2000, whereby he has been declared an absconder.
The Senior Regional Manager, Land Development Bank, Bhagalpur, impleaded herein as O.P. No. 2, gave a written report to the Officer Incharge, Jamui P.S. on 22.8.1991, inter alia, alleging therein that the sole accused, Devendra Pd. Singh, who at the relevant time was the Branch Manager of the Jamui Branch of the Land Development Bank, had committed forgery in the disbursement of loan to 138 farmers in the year 1987 - 88 and mis-appropriated a sum of Rs. 10,83,000/- and in order to screen 2 his overt acts he had concealed all the 138 files and when the farmers were approached it was learnt that the Branch Manager had committed irregularities in distribution of the loans. It was also alleged that Branch Manager happened to be the Incharge of the D.B. files and notwithstanding repeated demands he did not submit the 138 D.B. files either at the Headquarters or at the Branch office at Jamui and on being transferred he had left without handing over the files to the new Branch Manager Accordingly legal action against him was prayed for.
It appears that after due investigation the police submitted a charge sheet against the sole petitioner and cognizance was taken by the learned Chief Judicial Magistrate vide order dated 22.11.1995 and when he failed to appear in court by order dated 25.1.2000 the petitioner was declared to be an absconder and permanent warrant having been issued against him, the records of the case were directed to be deposited in the Record Room.
The submission on behalf of the petitioner is that he had neither misappropriated any funds not the allegation of not handing over the D.B. files were correct. In this connection it was sought to be submitted that by memo dated 6.5.1988 of the Regional Manager, the petitioner was transferred from Jamui Branch to Patna and having been relieved was directed to give his joining at the Headquarters at Patna without availing of any transit leave and as such he had no occasion to prepare any inventory and hand over all the D.B. files to anyone as no Branch 3 Manager had assumed charge from him. In this connection it was alleged that the transfer order of the petitioner was by way of punishment as he happened to be the General Secretary of the Employees Union and the people at the Headquarters were biased as he frequently raised voice against the administration on account of non fulfillment of certain grievances. It is also submitted that upon his joining at Patna he had made repeated requests to the authorities to take over charge of the D.B. files but his requests were not heeded and no body assumed charge of those files and it was eventually when a direction was issued by the Headquarters in 1993 for the incumbent Branch Manager at Jamui to take over the files that they were handed over, a photocopy of the charge report is appended with the application as annexure 4. However, no date of the transaction is inscribed therein.
It is further submitted that after the institution of the criminal case as the petitioner had reasonable apprehension he applied for anticipatory bail and was granted the same provisionally vide order dated 21/22.4.1993 by the Sessions Court which was subsequently confirmed vide order dated 7.1.1994. The learned counsel for the petitioner brought to my notice the order dated 21/22.4.1993 which has been appended as Annexure 5 and pointed out that the Court while granting bail had taken into account the fact of the sudden transfer of the petitioner, he being the Secretary of the Union, that there was none in the Branch to take charge from him, that there was satisfactory realization of 4 loans distributed to the farmers and also that there was no complaint by any of the loanees.
In respect of the order declaring the petitioner to be an absconder, it was submitted that in view of the fact that the petitioner had handed over all the D.B. files he remained under the impression that as per assurance given orally by the headquarters there was now no case pending against him and the Bank Management had withdrawn the case and as he had been granted anticipatory bail he would definitely be served with summons before any penal action was taken against him and as a matter of fact no summons at all had been received by him. It was finally submitted that in the aforesaid premise the present prosecution of the petitioner was an abuse of the process of the court and fit to be quashed. It was also submitted that the petitioner in the circumstances aforesaid cannot be fastened with any criminal liability as no offence had been made out and there had been no misappropriation of bank's money.
O.P. No. 2 has appeared and contested the application by filing a counter affidavit wherein the maintainability of this application has been questioned on the ground that order of cognizance dated 22.11.1995 and the order declaring him an absconder dated 25.1.2000 was being challenged in the year 2006 after a long lapse of time for which no cogent reasons had been assigned. It is also submitted that out of the 138 loanees the loan account of 60 farmers had been closed and in cases of the remaining 5 farmers only debt relief has been adjusted in their account and the cash amount was not recovered. The further submission was that not having appeared in Court itself notwithstanding granting of anticipatory bail the Court was justified and declared him an absconder.
Admittedly the petitioner was transferred in May 1988 and he did not hand over the files till 1993. Obviously the petitioner must have handed over charge of the post of Branch Manager of the Bank to some person before proceeding to carry out his transfer order to Patna. It cannot be accepted that he had left without handing over charge of Branch Manager to any person before leaving for Patna. In that situation where he had handed over charge of the post of the Branch Manager of the Branch to some person in the Bank he could in all fairness also have handed over the charge of the files to that very person since it was the duty of the Branch Manager to be the custodian of the aforesaid files. That apart it does not appear from the pleadings that notwithstanding having been granted anticipatory bail and being transferred to Patna he had informed the Court in seisin of his case of his transfer and as such if any summons had been sent by the court the same would have been returned and the plea of the petitioner that he was not served with notice prior to the order declaring him an absconder cannot be accepted. Even otherwise the submissions advanced by the learned counsel for the petitioner involves the looking into disputed questions of facts and figures 6 which possibly and legally cannot be done in a proceeding under section 482 Cr.P.C.
In that view of the matter I find no merit in this
application which is accordingly dismissed. The petitioner will
now surrender in Court and pray for bail and in the event of such prayer being made the Court shall take into consideration the fact that the petitioner had already been granted anticipatory bail and pass orders in accordance with law. The petitioner shall also be at liberty to raise all the issues raised herein at the time of framing of charge.
Patna High Court, Patna. (Abhijit Sinha, J.) Dated : The 1st day of July, 2009 Sanjay Pd./A.F.R.