Niranjan Dash vs State of Orissa and Another

Pradip Mohanty, J.—This criminal revision is directed against the Order Dated 24.04.2007 passed by the Learned Chief Judicial Magistrate, Dhenkanal rejecting an application u/s 239 Cr.P.C. filed by the Petitioner in G.R. Case No. 896 of 2005.

The brief fact of the case is that the Petitioner along with two others have been implicated under Sections 409/417/419/420/467/468/471/34 I.P.C. in G.R. case No. 896 of 2005 of the court of S.D.J.M., Dhenkanal (subsequently transferred to the court of C.J.M., Dhenkanal). As per the F.I.R. story, the informant, while working as a Branch Manager, U.Co. Bank, Deogaon Branch received a complaint from the account holders of S.B. Account No. 200 that a sum of Rs. 56,000 had been withdrawn from the said account without their knowledge. The informant lodged an F.I.R. before the Police station about the withdrawal of money by the present Petitioner and one Basudev Dehury (Head Cashier).The police registered a case, took up investigation and ultimately filed charge-sheet against the Petitioner under the above Sections. The Petitioner filed a petition u/s 239 Cr.P.C. for discharge, but the Learned Chief Judicial Magistrate, Dhenkanal, after hearing the parties, rejected the said petition as there was prima facie evidence against the Petitioner. He also fixed the date for hearing on the charge.

Learned Counsel for the Petitioner submitted that there is absolutely no material against the Petitioner to proceed against him u/s 409/420/468/471/34 I.P.C. He also submitted that at the relevant time he was a daftary and was promoted as clerk-cum-cashier with effect from 21.05 2005. The Branch Manager in order to save his skin has foisted this case to harass the present Petitioner. In the event of withdrawal of money from an account it is the duty of the Passing Officer to compare and verify the signatures on the withdrawal slip with the specimen signatures available in the Bank. The duty of the Cashier at the cash counter is to honour the pay slip duly passed by the Passing Officer. Thus the daftary of the Bank has absolutely no role to play in such type of transactions. The Petitioner being a daftary at the relevant time is in no way connected with the alleged offence. There was even no reasonable cause for him to know about the occurrence and when it took place. In support of his contention, he cited decisions in Mr. Ramakrishna and Ors. v. State of Bihar and Ors. (2001) 20 O.C.R. (S.C.) 194 ; & Union of India (UOI) Vs. Prafulla Kumar Samal and Another, .

Learned Addl. Government Advocate supported the impugned order & vehemently contended that there is prima facie evidence against the Petitioner to proceed against him, under Sections 409/420/448/471/34 I.P.C. The statements recorded u/s 161 Cr.P.C. & the F.I.R. are very clear to that effect. He submitted that on a strong suspicion against the accused, charge can be framed and he can be tried. In support of his contention, he also cited decision in Kanti Bhadra Shah and Anr. v. The State of West Bengal (2000) 18 O.C.R.477 (S.C).

Perused the record and the decision citied by the Learned Addl. Government advocate. In the said case, it has been held that if there is presumption of involvement of the accused with the alleged crime, charge can be framed & the accused can be tried. In the instant case, after perusal of the statements recorded u/s 161 Cr.P.C. & the F.I.R., this Court is of the opinion that there are sufficient grounds to frame charge against the Petitioner & there is no illegality or irregularity has been committed by the Learned Chief Judicial Magistrate in rejecting the application u/s 239 Cr.P.C.

The revision is accordingly dismissed. However, it will be open to the Petitioner to file an application for discharge after closure of the prosecution evidence. In the event such an application is filed and the Learned Magistrate considers that no case against the Petitioner has been made out, he can pass an appropriate orders discharging the Petitioner by giving reasons.