Patna High Court - Orders
Razi Ahmad vs The State Of Bihar on 9 May, 2012
Author: Hemant Kumar Srivastava
Bench: Hemant Kumar Srivastava
Patna High Court Cr.Misc. No.9016 of 2012 (5) dt.02-05-2012
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.9016 of 2012
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Razi Ahmad, S/o Sarif Ahmad, resident of Azimabad Colony, near
Ghera Masjid, P.S. Sultanganj, District-Patna.
.......... Appellant/Petitioner.
Versus
1.The State of Bihar
2. Athar Shamim, S/o Md. Abdullah Kaushar, Resident of Shahganj
Marai, P.S. Sultanganj, District-Patna.
..... ........ ...... Opposite Parties
For the petitioner: Mr. Nand Kishore Singh, Advocate
Mr. Sanjay Kumar Jha, Advocate.
For the State: Mr. Amit Kumar Ranjan, A.P.P.
CORAM: HONOURABLE MR. JUSTICE HEMANT KUMAR
SRIVASTAVA
ORAL ORDER
5 09-05-2012This petition has been filed by the petitioner under Section-482 of the Cr.P.C. for quashing the order dated 30- 01-2012 passed in Cr. Appeal No. 172 of 2010 by learned 2nd Additional Sessions Judge, Patna City whereby and whereunder, he rejected the petition dated 05-11-2011 filed under Section-391 of the Cr. P.C. and refused to admit additional evidence filed on behalf of the petitioner.
2. The brief fact which lies to file this quashing petition, is that Opposite Party No. 2 namely, Athar Shamim lodged Patna High Court Cr.Misc. No.9016 of 2012 (5) dt.02-05-2012 Sultanganj P.S. Case No. 06 of 2007 for the offences punishable under Sections-406, 420 of the Indian Penal Code against the petitioner on the allegation that petitioner allured the Opposite Party No. 2 as well as several other persons for depositing Rs 1500/- to 2000/- in a scheme launched by Shivam Plantation and gave certificate of the aforesaid Shivam Plantation to Opposite Party No. 2 and several other persons with the assurance that their deposit would be matured after ten years but when after period of maturity, Opposite Party No. 2 went to the office of petitioner for encashment of the certificate, issued by above-said Shivam Plantation, he did not find any office on the address given in the certificates and when Opposite Party No. 2 and others demanded their money from the petitioner, he refused to pay the maturity amount to the informant and other persons and, accordingly, he duped the petitioner as well as several other persons and having found no way, the petitioner lodged the above-said Sultanganj P.S. Case No. 06 of 2007 against the petitioner.
3. The above-said case was investigated by the police and after investigation; charge sheet was submitted against the petitioner. The petitioner was put on trial and after full Patna High Court Cr.Misc. No.9016 of 2012 (5) dt.02-05-2012 fledged trial, the petitioner was convicted and sentenced for the offences punishable under Sections-406, 420 of the Indian Penal Code vide judgment dated 12-07-2010 passed by Thakur Aman Kumar, Judicial Magistrate-Ist Class, Patna City in Trial No. 1146 of 2010.
4. The petitioner preferred Cr. Appeal No. 172 of 2010 in Sessions Court against the judgment of conviction and sentence order.
5. During pendency of the aforesaid Criminal Appeal, the petitioner filed a petition on 05-11-2011 under Section-391 of the Cr.P.C. stating therein that Memorandum of Association and Article of Association as well as Certificate of Incorporation of M/S Shivam Plantation Pvt. Ltd. be admitted as an additional defence evidence. Rejoinder to the aforesaid petition was filed on behalf of the state and having heard both the parties, learned Additional Sessions Judge-II, Patna City rejected the aforesaid prayer passing the impugned order dated 30-01-2012, against which, this quashing petition has been filed.
6. Opposite Party No. 2 made his appearance before this court by filing power in favour of his learned counsel though he chose not to file any counter affidavit. Patna High Court Cr.Misc. No.9016 of 2012 (5) dt.02-05-2012
7. I have already heard both the parties at length and with consent of both the parties, this petition is being disposed of, at the stage of admission itself.
8. Learned counsel appearing for the petitioner submitted that Shivam Plantation Pvt. Ltd. is a duly constituted company bearing Registration No. 03-05574/93-94 and according to prosecution case itself, the certificates in question, were issued by above-said company after taking deposits from Opposite Party No. 2 and some other persons. He further submitted that the Government of Bihar enacted the Bihar Protection of Interest of Depositors (In Financial Establishment) Act, 2002 (hereinafter referred to as the "Act") with intent to protect the interest of depositors of the financial establishments. He further submitted that the above-said Act has been enacted by State of Bihar to deal with irregularities, illegalities and violations, if any, committed by a registered company and there is provision of Designated Court in the aforesaid Act to deal with the offences committed by a registered company. He further submitted that the above-said Act is applicable in the facts of the present case and, therefore, the petitioner made prayer before learned Additional Sessions Judge for admitting two following public documents, Patna High Court Cr.Misc. No.9016 of 2012 (5) dt.02-05-2012 namely, a. Memorandum of Association and Article of Association and b. Certificate of Incorporation of aforesaid M/S Shivam Plantation Pvt. Ltd. as additional defence evidence so that the court may do complete justice to the case. He further submitted that Sections-7 and 16 of the aforesaid Act show that no court other than Designated Court shall have jurisdiction in respect of any matter to which the provisions of the said Act, are invoked and any pending case in any other court to which, the provisions of this Act apply shall, on the date of publication of the Act stand transferred to the Designated Court and, furthermore, provision of the above-said Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or any custom or usage and, therefore, the above-said Act has overriding effect over the common law applicable in the facts of the present case. It is further contended by him that reasonings given by the learned Additional Sessions Judge-II, Patna city for rejection of the petition filed on behalf of the petitioner, are not in accordance with law and, therefore, the impugned order should be quashed by this court. He further contended that the learned Additional Sessions Judge-II, Patna City rejected the prayer of Patna High Court Cr.Misc. No.9016 of 2012 (5) dt.02-05-2012 petitioner on the ground that there was inordinate delay in bringing the aforesaid documents before the court but mere delay is no ground for rejecting the petition under Section-391 of the Cr.P.C. and the court has ample power to take additional evidence at appellate stage as held by Apex Court of this country in a famous West Bakery Case and in support of his contention, he referred the decision reported in Jahira Habibullah Sheikh Vs The State of Gujrat reported in (2004) 4 SCC 158 which is commonly known as West Bakery Case.
9. On the other hand, learned counsel appearing for Opposite Party No. 2 submitted that it is not the case of the prosecution that petitioner was an agent of M/S Shivam Plantation Pvt. Ltd rather it is the case of the prosecution that petitioner duped the Opposite Party No. 2 as well as several other persons in the name of M/S Shivam Plantation Pvt. Ltd. and, therefore, the proposed documents are not relevant in the present case and, learned Additional Sessions Judge-II, Patna City rightly refused the prayer to take the above-said proposed documents as an additional evidence in the criminal appeal. He further submitted that petitioner did not file the above-said proposed documents in course of trial or during Patna High Court Cr.Misc. No.9016 of 2012 (5) dt.02-05-2012 pendency of the appeal and when the aforesaid appeal was fixed for judgment, all of a sudden; the petitioner appeared and filed a petition praying therein for taking additional evidence. He further submitted that uptill how, the State of Bihar has not notified any Designated Court and, therefore, the jurisdiction of the present court cannot be challenged by the petitioner and, if the jurisdiction of the present court cannot be challenged, the proposed documents lose their relevance in respect of facts of the present case.
10. Before making any comments on the facts of the case, I would like to say that the State of Bihar enacted "The Bihar Protection of Interest of Depositors (In Financial Establishment) Act, 2002 (Bihar Act No. 10 of 2002)" with intent to protect the interest of depositors of the financial establishments and the aforesaid Act came into force on the date of its enactment.
11. Section-2 (C) of the aforesaid Act defines the word "deposit" and says that "deposit" includes and shall be deemed always to have included any receipt of money or acceptance of any valuable commodity by any Financial Establishment to be returned after a specified period or otherwise, either in cash or in kind or in the form of specified Patna High Court Cr.Misc. No.9016 of 2012 (5) dt.02-05-2012 service with or without any benefit in the form of interest, bonus, profit or in any other form but does not include-
(i) amount raised by way of share capital or by way
of debenture, bond or any other instrument
covered under the guidelines given, and
regulations made, by the "SEBI" established under the Securities and Exchange Board of India Act, 1992 (15 of 1992);
(ii) amount contributed as capital by partners of a firm;
(iii) amounts received from a scheduled bank or a co-
operative bank or any other banking company as defined in clause (c) of section 5 of the Banking Regulation Act, 1949 (10 to 1949);
(iv) Any amount receive from-
(a) the Industrial Development Bank of India
(b) a State Financial Corporation,
(c) any financial institution specified in or under section 6A of the Industrial Development Bank of India Act, 1964;
(v) amount received in the ordinary course of business by way of-
(a) security deposit
(b) dealership deposit Patna High Court Cr.Misc. No.9016 of 2012 (5) dt.02-05-2012
(c) earnest money
(d) advance against order for goods or services;
12. Furthermore, Section-3 of the aforesaid Act says that where any Financial Establishment, having fraudulently or dishonestly, defaults in repayment of any deposit on maturity along with any benefit in the form of interest, bonus or profit, or in any other form as promised or fraudulently or dishonestly fails to render service as assured against the deposit, the Financial Establishment and every person including the promoter, partner, director, manager or any other person or any employee responsible or the management of or conducting the business or affairs of such Financial Establishment shall, on-conviction, be punished with imprisonment for term up to ten years and with fine up to one lakh of rupees or where such default relates to a quantifiable sum of money twice the amount of such sum, whichever is more. Therefore, it is explicit clear that the aforesaid Act makes the intentional or fraudulent defaults in repayment punishable under the aforesaid Act.
13. Section-7 of the aforesaid Act says that to deal with the matters relate to above-said Act, the State of Bihar may, with the concurrence of the Chief Justice of the Patna High Court Cr.Misc. No.9016 of 2012 (5) dt.02-05-2012 Patna High Court, by notification in Official Gazette, constitute one or moré Designated Courts and Sub section (2) of Section-7 of the aforesaid Act says that no court other than the Designated Court, shall have jurisdiction in respect of any matter to which the provisions of this Act are invoked.
14. Section-15 of the aforesaid Act prescribes the procedures and powers of Designated Court regarding offences and says that the Designated Court may, on perusal of the police report of the facts constituting an offence under this Act or upon a complaint made by an officer authorized in this behalf by the State Government take cognizance of the offence without the accused being committed to it for trial and while trying the accused persons, Designated Court shall follow the procedure prescribed in the Code of Criminal Procedure, 1973 for the trial of warrant case and furthermore, the aforesaid Section says that the Designated Court while trying the offence under this Act, may also try an offence other than the offence under this Act with which, the accused may be charged at the same time as prescribed under the Code of Criminal Procedure, 1973.
15. The above-said provisions of the Act say that only Designated Courts have jurisdiction in respect of any manner Patna High Court Cr.Misc. No.9016 of 2012 (5) dt.02-05-2012 to which, the provisions of the Act are invoked and the Designated Court shall follow the procedure prescribed in code of Criminal Procedure, 1973 for the trial of the warrant case and, therefore, the above-said section makes clear that, if a police report disclosing the offence under this Act or upon a complaint made by an officer authorized in this behalf, is received, any Designated Court, may take cognizance of the offence. It is explicit clear from the aforesaid provision that the Designated Court has not only power to take the cognizance of the offence of the Act but also has got power to try the offences but Designated Court is bound to adopt the procedure of warrant trial as prescribed in the Criminal Procedure Code, 1973.
16. Admittedly, uptill now, the State of Bihar has not issued notification for Designated Courts and the Designated Courts to deal with the offences of above-said Act, are not functional in the State of Bihar though the above-said Act was enacted in the year, 2002.
17. Now question arises who will try the offences of the Act in absence of Designated Courts. It is well settled principle of law that in absence of Special Court, the common court, having jurisdiction to try the offences, can proceed with Patna High Court Cr.Misc. No.9016 of 2012 (5) dt.02-05-2012 the case under common law.
18. In the present case, admittedly, the petitioner was not charged with the offence of Protection of Interest of Depositors Act, 2002 and no charge under Section 3 of Protection of Interest of Depositors Act, 2002 was framed by the learned Magistrate nor he was convicted for the offence punishable under Section-3 of the aforesaid Act rather he was charged for the offences punishable under Sections-406, 420 of the Indian Penal Code and he was convicted under the aforesaid sections.
19. Learned counsel appearing for the petitioner emphasized on Sub section (3) of Section-7 of the Act arguing that the aforesaid Sub section (3) of Section-7 says that any pending case in any other courts to which the provisions of this Act are applied on the date of publication of this Act, stand transferred to the Designated Court. It has been argued on behalf of the petitioner that the proposed documents are essential to show this fact that neither trial court nor the appellate court have got jurisdiction to hear the present case but I am not at all convinced with the above-said submission because admittedly, uptill now, the State Government has not notified any Designated Court in State of Bihar. Moreover, Patna High Court Cr.Misc. No.9016 of 2012 (5) dt.02-05-2012 Section-7 of the Act says that the Government may, constitute Designated Courts with the concurrence of the Chief Justice of the Patna High Court by Notification in Official Gazette, so the aforesaid provision is not mandatory provision and the State Government may notify the Designated Court, if he thinks fit to do so and in my view, the aforesaid provision is not mandatory in nature.
20. So far as Section-16 of the aforesaid Act is concerned, no doubt, the Act has overriding effect on common law but admittedly, in the present case, the petitioner has been convicted for the offence punishable under Sectipons- 406, 420 of the Indian Penal Code and the above-said Act does not bar any person to prosecute under the provisions of Indian Penal Code.
21. No doubt, under Section-391 of the Cr.P.C. the appellate court may take additional evidence at appellate stage but the above-said power of the appellate court depends upon the satisfaction of the appellate court and satisfaction of the appellate court paves the way for taking additional evidence and it is well settled principle of law that the appellate court shall always have to be exercised the above-said power with caution and circumspection so as to Patna High Court Cr.Misc. No.9016 of 2012 (5) dt.02-05-2012 meet the ends of justice and no principle can be set forth for exercise of power under Section-391 of the Cr.P.C. since the same is dependant upon the fact, situation of the matter and having due regard to the concept of fair play and justice for well being of the society.
22. In the present case, the petitioner wants to bring the proposed documents before the court as additional evidence to show this fact that learned trial court and appellate court had got no jurisdiction to convict him but as I have already held that in absence of Designated Court, the common court has got power to proceed with the offences of Indian Penal Code and the petitioner has not been convicted for the offence of the aforesaid Act and, therefore, in my view, learned Additional Sessions Judge rightly rejected the petition filed on behalf of the petitioner under Section-391 of the Cr. PC. and, furthermore, I am of the opinion that this quashing petition is devoid of merit.
23. On the basis of aforesaid discussions, this petition stands dismissed at the stage of admission itself.
(Hemant Kumar Srivastava, J) A.K.V./-