Amarendra Mohan Mitra vs State of West Bengal

Amal Kanti Bhattacharjee, J.—This is a petition u/s 482, Code of Criminal Procedure, seeking the intervention of the High Court for quashing a criminal proceeding pending before the Judge, Third Addl. Special Court, Calcutta. The said proceeding being Special Court Case No. 1 of 1983 was started on the basis of a petition of complaint filed by Shri N.K. Mukharjee, Inspector of Police, Central Bureau of Investigation, Delhi Special Police Establishment Dvn, G.O.W., Calcutta. The facts alleged in the petition of complaint were as follows.

The accused Shri A.N. Mitra was an Assistant Accounts Officer of the Bharat Aluminium Co. Ltd., Calcutta. The said company had current account with the State Bank of India, Chowringhee Branch, Calcutta and as per office arrangement the said Assistant Accounts Officer was authorised to draw cheques over his signature upto Rs. 5000 at a time from the said Bank. On June 28, 1979 a Debit (Bank) Voucher for an amount of Rs. 20,000 was prepared and paid by accused Shri Mitra for making payment to the Calcutta Port Trust by four cheques Nos. 463699 to 463702. The payment was intended to be made to make good the shortfall in the company''s Import Deposit Account with the Calcutta Port Trust. It is alleged that Shri Mitra signed all the four cheques but that he drew the amounts in two cheques as self payee by putting his signature on the reverse of the cheques while the other two cheques were drawn in favour of the Calcutta Port. Trust as Account Payee cheques. The result was that Rs. 10,000 drawn in favour of the Calcutta Port Trust were duly credited in the Import Deposit Account of the Bharat Aluminium Co. Ltd. with the Calcutta Port Trust, but the amounts drawn against the other two cheques were not so credited. The latter amounts were not accounted for and it has been complained that the said money was criminally misappropriated by Shri Mitra.

The learned Special Court Judge took cognizance of the case on the basis of the complaint and the allotment order issued by the Judicial Department of the Government of West Bengal and issued summons on the accused on January 29, 1983. The accused appeared and was granted bail. The learned Judge examined the prosecution witnesses from time to time and after hearing both parties at length framed charges under Sections 409/477A of the Indian Penal Code and Section 5(1)(c), read with Section 5(2) of the Prevention of Corruption Act, 1947.

Mr. Pradip Ghosh appearing for the Petitioner raises several points attacking the learned Judge''s framing of charge. His first contention is that on the basis of the allegations made in the petition of complaint there was no element of an offence of criminal breach of trust in this case. His other contention is that there was no proper sanction for starting the criminal case and that, as such the prosecution is liable to be quashed. His further contention is that there being a considerable delay in conduction the criminal case the fundamental right under Article 21 of the Constitute has been affected and on this ground also the prosecution case is liable to set aside.

As regards the sanction, Mr. Ghosh''s argument is that the sanction in this case is bad as the Sanctioning Authority has not been examined. Sanction was accorded in this case by the Chairman and Managing Director of the company Shri I.M. Aga. In the sanction order Shri Aga has briefly referred to the allegations raised against the accused and has stated that he after fully and carefully examining the materials before him in regard to the said allegations and circumstances of the case considers that the accused Shri Mitra should be prosecuted in the Court of law for offences under Sections 409, 467, 477A, Indian Penal Code and Section 5(1)(c), read with Section 5(2) of the Prevention of Corruption Act, 1947. Mr. Ghosh attacks the sanction order on the ground that the Sanctioning Authority mechanically issued the sanction order and there is nothing to show that he applied his mind before giving the sanction. Whether the allegations made in the petition of complaint will finally be successful to establish the charges made therein is, for the trial Judge to decide at the trial. Prima facie the materials mentioned in the said petition connote that they made good grounds for framing the charges. There is apparently, nothing to show that the Sanctioning Authority did not apply his mind to the allegations brought against the accused Petitioner while according sanction. It is true that the Sanctioning Authority was not examined, but that fact itself does not vitiate the sanction order. The sanction order was proved by somebody else and the authority concerned considered the case subjectively with reference to the allegations. Mr. Ghosh refers to Mahabir Auto Stores and others Vs. Indian Oil Corporation and others, In this case the Supreme Court held that the sanction given by an authority on the basis of a sub-delegation of powers flowing from the Sanctioning Authority was not a proper sanction. There is no such allegation in this case. There is nothing to show that the_ Sanctioning Authority issued the sanction order mechanically without considering the prima facie case brought against the accused. For all these reasons I am unable to hold that the sanction accorded in this case suffers from any infirmity.

The next attack made by Mr. Ghosh is regarding the framing of charge u/s 409 of the Indian Penal Code. According to him, there is no ingredient of an offence of criminal breach of trust in the actions alleged against. Mr. Mitra. He argues that there should be specific entrustment for bringing a charge of criminal breach of trust and that such entrustment is lacking here. According to Mr. Ghosh, the only probable charge which could be considered against the accused was criminal mis-appropriation of property as defined, u/s 403 of the Indian Penal Code. It is necessary to examine the point raised by Mr. Ghosh very carefully.

The offence of criminal breach of trust has been defined of Section 405 of the Indian Penal Code as follows:

Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to this own use that property or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or willfully suffers any other person so to do, commits criminal breach of trust. It would be seen that in committing an offence of criminal breach of trust the person concerned must in any manner be entrusted with a property or any dominion over property. In the case of criminal misappropriation on the other hand a person dishonestly misappropriates or converts to his own use any movable property. Dishonest misappropriation or converting to one''s own use is common in both the offences. In an offence of criminal misappropriation of property any movable property is simply misappropriated while in an offence of criminal breach of trust the property so misappropriated must have been entrusted with the person concerned or he must, in any manner have a dominion over such property. Thus, in a simple criminal misappropriation the property comes into the possession of the offender by some casualty or otherwise and he afterwards misappropriates it. In a criminal breach of trust, on the other hand, the property comes to the hand of the offender on the basis of some trust or confidence. It is not a neutral property found on the spot. The property must either be entrusted to him or he must have some dominion over such properly to the knowledge and confidence of the person, to whom the property belongs.

In the instant case, admittedly the accused was empowered to sign cheques on behalf of the company for an amount not exceeding Rs. 5,000 at a time. He had dominion over these cheques. It is true that the cheques were not entrusted to him specifically on each occasion, but there is no doubt that the company entrusted him with the custody of the cheques and authorised him to sign them and expend the amount on behalf of the company. It would be a vain attempt to argue that the amounts involved in the cheques casually came to the hand of the accused. It has been alleged that the accused himself prepared a debit voucher for an amount of Rs. 20,000 for making payment to the Calcutta Port Trust by four different cheques. As per office arrangements the accused in this case was authorised to draw cheques which were under his control. So it is prima facie proved that he had dominion over these cheques and that he could draw the amount mentioned in the cheques at his will. Even though there was no specific entrustment there was general entrustment or at any rate the accused had dominion over the cheques. The allegation against him is that he drew two account payee cheques and two self payee cheques. The allegation is to be proved by evidence, but prima facie there are good ingredients of an offence of criminal breach of trust for misappropriation or Conversion to his own use the cheques kept in the custody of the accused. On consideration of all these facts, therefore, I hold that there are prima facie materials for framing a charge of criminal breach of trust against the accused. The accused was in charge of the property in his Capacity of a public servant and as such a charge u/s 409, Indian Penal Code, triable by a Special Court, could reasonably be framed against him.

The next point argued very eloquently by Mr. Ghosh is about the delay. He submits that in this case no complaint was made by the company concerned and that a C.B.I. investigation was held against him in 1982 resulting in the filing of the complaint in 1983. That no complaint was made by the company docs not obviously raise any presumption about the infirmity of the case. The C.B.I. took up the investigation on some source information and obviously the company itself did not detect the alleged criminal misappropriation immediately after the occurrence of the incident. In any case, after the investigation was complete a complaint was filed promptly and the Special Judge in question also took cognizance of the case and issued summons without delay. Thereafter, the case proceeded by examining the prosecution witnesses before framing the charge and there was no intentional delay in proceeding with the case. There was, however, some delay during the proceeding on account of the loss of some exhibits as, it is found from the records of the lower Court. Excepting this there was no appreciable delay barring the occasional adjournments. Delay in framing charge was due to the fact that witnesses were not examined day by day but with occasional adjournments after each day''s examination. So there is no special delay in proceeding with the case after cognizance was taken. Mr. Ghosh referred to a plethora of decisions to highlight his point that the delay in disposing of a criminal case is an important factor for coming to a decision whether the case should be further proceeded with or not. He refers to Srinivas Gopal Vs. Union Territory of Arunachal Pradesh (Now State), S. Guin and Others Vs. Grindlays Bank Ltd., Hussainara Khatoon and Others Vs. Home Secretary, State of Bihar, Patna, all of the Supreme Court in which delay in the disposal of criminal trial has been deprecated by the said Court. He also refers to several decisions of this High Court, namely, Runu Guho Niogi v. State of West Bengal and Ors. 1988 (11) C.H.N. 313, Prantosh Chakraborty v. Monoj Kumar Chakraborty 1991 Cri.L.J. (Cal) 210 , Ranjit Kumar Pal Vs. The State, Gopal Mukherjee and Ors. v. The State 1991 (1) C.H.N. 389, Tarapada Dey v. State 1991 Cri.L.J. (Cal.) 188, T.R. Malik v. The State and Anr. 1936 Cri.L.J. (Cal.) 116 and Mihir Kr. Ghosh v. State of West Bengal and Ors. 1989 (1) C.H.N. 538 Mr. Ghosh also refers to two Full Bench decisions of the Madheshwardhari Singh and Another Vs. State of Bihar, and The State Vs. Maksudan Singh and Others,

In all the above cases long delay in disposal of criminal cases has, been strongly deprecated and it has been emphasized that if the trial is not reasonably speedy, it affects the fundamental right enshrined in Article 21 of the Constitution of India. So far as the principles enunciated in these decisions are concerned, no exception can be taken to them. Indeed a protracted hearing of a case in the criminal Court has its attended disadvantages besides the question of affecting the fundamental right of having a speedy trial. But all the cases mentioned above are characterised by the peculiar facts of the cases concerned. Mr. Ghosh, however, lays much stress on the two decisions of the Patna High Court in which the Full Bench had discussed the various aspects of such delay and had tried to fix a time limit within which cases should be compulsorily disposed of. The aforesaid Full Bench decisions of the Patna High Court have also laid down that no distinction should be made between the delay caused at the investigation stage and that during the actual trial. The proposition is so obvious that it is not necessary to discuss all the cases referred to above. Although there is no proper consciousness among the criminal Courts about the unwitting deny in the disposal of criminal cases, the different High Courts are apparently aware of this menacing vice and have always given relief whenever deemed appropriate. But in the instant case, it should be carefully considered if there has been any inordinate delay causing miscarriage of justice and affecting the rights of the accused in this case.

As already stated, the case was started three years after the alleged occurrence. That accounts for the time lag between the date of occurrence and the starting of the proceeding. But it does not necessarily follow that there was inordinate delay in the trial of the case by the Court after criminal process was set in motion. Of course, delay could be minimised if the provisions of Section 309, Code of Criminal Procedure, were scrupulously followed. But criminal cases arc never heard in any Court from day to day and there is no special occasion to condemn the practice in the present case. Moreover, the matter has been delayed before this High Court also for three years. On a consideration of the entire facts 1 do not think that it is a fit case for intervention by the High Court u/s 482, Code of Criminal Procedure, on the ground of delay alone. I, however, am of the opinion that the delay in this case is marginal and that if the case lingers for several more years that would be a good ground for quashing the proceedings on the ground of delay.

Considering all aspects of the matter I do not think that the High Court should invoke its powers u/s 482, Code of Criminal Procedure, to quash the proceedings. The petition is according rejected. Let the records be sent down to the trial Court at once and the said Court is directed to dispose of the case without the least possible delay.