Jay Chandra Jha vs The State of Bihar and Others

Ashutosh Kumar, J.—Heard learned counsel for the parties. The petitioner seeks quashing of the order dated 15th of July, 2010 passed by learned Judicial Magistrate, 1st Class, Siwan in Complaint Case No. C 124 of 2009 whereby cognizance has been taken under Sections 409 and 120-B of the Indian Penal Code.

The opposite party No. 2 has lodged a complaint against the petitioner and others vide Complaint Case No. 1558 of 2004 for the offences under Sections 419, 420, 467, 468and 471 of the Indian Penal Code.

It was alleged by him that a society under the name and style of "SAMPOORNA SAKSHARTA AND GRAM SWARAJ SAMITI, SIWAN" was founded in the year 1992 for implementing the literacy schemes funded by the Central Government and the State Government. The society, aforesaid, has got its own memorandum of association and bye-laws (rules and regulations) for regulating its affairs.

It was stated by the Opposite Party No. 2 that he has been associated with such society. It was alleged that the petitioner and other accused persons, under a conspiracy, embezzled a huge amount of money from the accounts of the society. It was stated in detail as to how the money was illegally/fraudulently withdrawn and misappropriated. The above mentioned complaint was sent under Section 153(6) for institution of regular case, whereafter, Siwan Town P.S. Case No. 166 of 2004 was instituted for investigation.

When after protracted investigation, police submitted a final report in the case, a protest petition was filed by the opposite party No. 2. Such protest petition was treated as complaint vide Complaint Case No. 124 of 2009.

After an enquiry under Section 202 of the Code of Criminal Procedure in which the complainant gave his solemn affirmation and offered two witnesses on his behalf, the Court of the learned Judicial Magistrate, 1st Class, Siwan vide his order dated 15th of July, 2010 took cognizance against the petitioner for the offences under Sections 409 and 120-B of the Indian Penal Code.

The aforesaid order is under challenge.

In order to appreciate the contention on behalf of the petitioner, it is necessary to advert to certain facts.

For the implementation of national literacy mission, the society aforesaid was acting as "ZiLA SAKSHARTA SAMITI" with the District Magistrate of the district as its ex-officio president and some other officers as its members. One Bisheshwar Nath Singh (witness No. 1 in the protest complaint and father of opposite party No. 2) was the officiating secretary against whom there were charges of misappropriation of huge amount of money from the accounts of the society. Because of such charges, aforesaid Bisheshwar Nath Singh was removed from the post of the Secretary. The audit of the accounts of the committee revealed that money was siphoned off from the society at the instance of the aforesaid Bisheshwar Nath Singh. Several cases were lodged against him. They are being listed below:--

(1) Siwan Town P.S. Case No. 79 of 1999 in which charge-sheet has been submitted against Bisheshwar Nath Singh.

(2) Siwan Town P.S. Case No. 81 of 1999 (charge-sheet submitted)

(3) Siwan Town P.S. Case No. 202/2011 (charge-sheet submitted).

(4) Two certificate case for the recovery of the defalcation amount from Bisheshwar Nath Singh pending in the court of District Certificate Officer, Siwan.

It has been stated by the petitioner that during the period when all these cases were being investigated, the petitioner in his capacity as Senior Branch Manager of Punjab National Bank, Siwan, gave full cooperation and support to the investigating agency. This infuriated Bisheshwar Nath Singh and his family as if it were a personal fight between them. It has also been stated by the petitioner that in some of the cases referred to above, the petitioner was cited as a witness in the charge-sheet.

Mr. Bisheshwar Nath Singh had submitted an application before the petitioner requesting him to provide the statement of Account No. 4576 which was the account of the society. Since the account was being operated by the District Magistrate, Siwan, the petitioner did not accede to the request made as it was beyond the banking norms.

It has further been submitted that thereafter the wife of Bisheshwar Nath Singh (mother of opposite party No. 2) lodged two complaint cases against the petitioner as well as the other district functionaries, vide Complaint Case Nos. 1712 of 2003 and 1713 of 2003, both of which were dismissed ultimately.

After all these, the opposite party No. 2 chose to file a complaint vide Complaint Case No. 1558 of 2004 which led to registration of Siwan Town P.S. Case No. 166 of 2004. After thorough investigation of the aforementioned police case, final report was submitted. In presence of the informant the final report was accepted. The protest petition which was filed by the opposite party No. 2 was then treated as complaint and it was instituted as Complaint Case No. 124 of 2009. It has thus been contended that because the petitioner did not agree to become an accomplice with aforesaid Bisheshwar Nath Singh, that the petitioner being persistently hounded by the family of Bisheshwar Nath Singh. It has further been submitted that the petitioner allowed certain cheques to be encashed as they were duly signed by the District Magistrate and the co-signatories namely, Hiraman Prasad and Brajesh Kumar Ojha.

Learned counsel appearing on behalf of the Opposite No. 2, on the other hand, stated that his father has been a dedicated social worker and because of his efforts, a scheme under the national literacy mission was sanctioned for the district of Siwan. It was submitted on his behalf that the case is based entirely on documentary evidence and the documents suggest the embezzlement of money from the account of the society at the hands of the petitioner and other accused persons. It was then submitted that the bye-laws of the society were completely disregarded in ousting the father of the opposite party No. 2 from the society. The father of opposite party No. 2 was removed from the post of the secretary by the executive committee of the society, which was not competent for such an act. As such, the resolution against the father of opposite party No. 2 was only with a view to taking control of the society and thereafter the accused persons embezzled the funds in which the petitioner also took part as a conspirator and, in fact, as an active participant. With respect to the pendency of case against the father of opposite party No. 2, it was submitted that merely because cases have been lodged against the father of the complainant, the illegal activities of the accused persons including the petitioner cannot be overlooked as the crime does not extinguish.

After considering the facts of the case and the submissions of the parties, it appears to be appropriate to consider whether the prosecution against the petitioner is an abuse of the process of the Court and simultaneously whether any offence has been made out as against him. So far as offence under Section 409 of the Indian Penal Code is concerned, it is necessary to examine the provision of Section 409 of the Indian Penal Code.

Section 409 reads as follows:--

"Criminal Breach of Trust by Public Servant or by banker, Merchant or agent.--Whoever, being in any manner entrusted with property, or with any dominion over property in his capacity of a public servant or in the way of his business as a banker, merchant, factor, broker, attorney or agent, commits criminal breach of trust in respect of that property shall be punished with (imprisonment for life), or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."

The essential ingredients of the offence are that the accused must be a public servant; he must have been entrusted in such capacity with property, and that he must have committed breach of trust in respect of such property.

The petitioner here was posted as Senior Branch Manager of Punjab National Bank, Siwan. Assuming that the money of the society which was deposited in the account of the society with the bank of which the petitioner was the Branch Manager, it cannot be said that the petitioner was entrusted with the money in question in his capacity as banker. The relation between a banker and customer is that of a debtor and creditor, with an obligation arising out of the custom of the Bank to honour the customer''s draft or cheque. The account was in the name of the society of which the father of the complainant was the secretary. The society remains the customer of the Bank. Any official of the Bank entrusted with the responsibility of honoring, the cheque or draft of a customer has to ensure that such demands are respected and honoured. If there is any dispute between the functionaries of the society, in whose name the account is being operated, a banker is to see and goby the instructions of the concerned society.

In the present case, the District Magistrate of Siwan was the ex-officio president. The cheques were issued in the name of the ex-officio president and other signatories. A person who has been ousted from the post of the Secretary of the Society, cannot claim that the money was wrongly and fraudulently withdrawn from the Bank unless he is in a position to demonstrate the same conclusively. In any view of the matter, he is not a competent person to allege the offence of criminal breach of trust as against a banker when any money of the society is withdrawn through a cheque, signed by the genuine office holders of the society. The Bank is liable to pay money to the customer (here the customer is the society) when called upon to do so.

It, therefore, appears from the facts of this case that the money was allowed to be withdrawn from the Bank because it was so demanded on behalf of the society. The petitioner, therefore, could not have been charged for the offences under Section 409 of the Indian Penal Code. There is also no material, whatsoever, as it appears from the records of the cases, that there was any conspiracy on the part of the petitioner to have the funds of the society taken out by unauthorized persons. Since the signatory of the cheques was the District Magistrate of the district, there could have been no presumption of such withdrawal to be fake or beyond rules, so far as the petitioner is concerned. The petitioner, as it appears, may not have been even aware of the inter se dispute between the functionaries of the society. Thus, the element of conspiracy also is completely lacking.

Now the question which falls for consideration is whether the prosecution of the petitioner is required to be interdicted at this stage and the ancillary issue would be as to whether allowing such proceeding to continue any further would be an abuse of the process of the Court. The question, therefore, revolves around as to what would constitute "an abuse of the process" of the Court. The Wharton''s Law Lexicon defines "abuse of process" as actions manifestly frivolous or brought against good faith, wanting in bona fide.

In Hui Chi-Ming vs. The Queen ((1992) SCC 34 (PC)), the privy council defined the word "abuse of process" as something so unfair and wrong with the prosecution that the Court should not allow to prosecutor to proceed with what is, in all other respects, a perfectly supported case.

In Bennett vs. Horseferry Road Magistrate'' Court, (1993) 2 All ER 138, on the application of abuse of process, the Court confirms that an abuse of process justifying the stay of prosecution could arise in the following circumstances:--

(i) Where it would be impossible to give the accused a fair trial; or

(ii) Where it would amount to misuse/manipulation of process because it offends the court''s sense of justice and propriety to be asked to try the accused in the circumstances of the particular case.

In R. vs. Derby Crown Court ex p. Brooks, (1985) 80 Cr. App R 164, Lord Chief Justice Ormrod stated: "it may be an abuse of process if either (a) the prosecution has manipulated or misused the process of the court so as to deprive the defendant of a protection provided by law or to take unfair advantage or a technicality, or (b) on the balance of probability a defendant has been, or will be, prejudiced in the preparation of conduct of his defence by delay on the part of the prosecution which is unjustifiable."

Lord Justice Neill in R. vs. Beckford, [1996] 1 Cr. App R 94 : [1995] RTR 251 observed that: "The jurisdiction to stay can be exercised in many different circumstances. Nevertheless two main strands can be detected in the authorities'': (a) cases where the court concludes that the defendant cannot receive a fair trial: (b) cases where the court concludes that it would be unfair for the defendant to be tried." What is unfair and wrong will be for the court to determine on the individual facts of each case.

The present proceeding against the petitioner appears to be actuated by mala fide motives. The petitioner has participated in the investigation process against the conduct of the father of opposite party No. 2. Certain requests made by the father of the opposite party No. 2 were turned down by the petitioner. The complainant-opposite party No. 2, being son of Bisheshwar Nath Singh is expected to be aware of the cases lodged against his father in which the petitioner has been cited as a witness. These very facts as also lack of any positive material against the petitioner clearly illustrate that the complainant-opposite party No. 2 has come forward with a lame prosecution. The hidden object behind such prosecution is very obvious. It is for the purpose of wreaking vengeance; with a view to spite the petitioner because of his having supported the prosecution as against his father. Now once it is established that allowing such proceedings to be continued would be an abuse of the process of the Court then, it would be in the exercise of the whole-some powers under Section 482 of the Code of Criminal Procedure to quash such proceedings.

The Apex Court has laid down the scope and ambit of powers under Section 482 of the Code of Criminal Procedure. It has been established by a line of decisions that the inherent powers of the Court under Section 482 of the Code of Criminal Procedure entitles it to act ex- debito justitiae to do substantial justice for preventing the abuse of process of the Court. To list some of the leading cases.

In R.P. Kapoor vs. State of Punjab (AIR 1960) 866, some categories have been summarized for use of such powers. Such powers could be used when there is legal bar against the institution of a proceeding or allegations do not constitute any offence and when there is no legal evidence to prove the charge. However, no hard and fast rule was laid down for the exercise of such powers at any stage.

In State of Karnataka Vs. L. Muniswamy and Others, , the Apex Court observed that the ends of justice are higher than mere law. Such propositions have been followed in large number of cases where the powers under Section 482 have been utilized to quash frivolous proceedings.

In Chandrapal Singh and Others Vs. Maharaj Singh and Another, , where dispute between landlord and tenant was involved, the Court held that when the defendant has met his Waterloo at all stages he has chosen to file a vexatious criminal case against his landlord. The Court was of the opinion that in such cases, the Court must come down heavily on such persons or else the whole judicial process would come under ridicule.

In State of Haryana and others Vs. Ch. Bhajan Lal and others, , the Supreme Court very categorically channelized and defined guidelines for exercise of such powers under Section 482 and gave an exhaustive list of the circumstances where such powers could be used. In paragraph-102 such list has been provided. Entry-7 of such list states that where a criminal proceeding is manifestly attended with mala fide and/or where the proceedings is maliciously instituted with an ulterior motive for wreaking vengeance on the accused with a view to spite him due to private and personal grudge.

Similar views were expressed in Zandu Pharmaceutical Works Ltd. and Others Vs. Md. Sharaful Haque and Others, and Indian Oil Corporation Vs. NEPC India Ltd. and Others, and Inder Mohan Goswami and Another Vs. State of Uttaranchal and Others, .

Coming back to the instant case, as noticed in the earlier paragraphs, the purpose of launching prosecution as against the petitioner is only to settle scores with him. The ingredients for the offences for which he is being charged are not satisfied. The petitioner has now superannuated also.

Allowing the opposite party No. 2 to continue with the present proceeding as against the petitioner would therefore be an abuse of the process of the Court.

In view of the aforesaid premised reasons, the order taking cognizance is quashed. The application is allowed.