IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Rev. No.627 of 2006
With
Cr. M.P. No. 1081of 2006
Sunil Mittal ... Petitioner (in both the cases)
Versus
The State of Jharkhand and Anr. ... Opp. Parties
-----
CORAM: HON'BLE MR. JUSTICE R.R. PRASAD
-----
For the Petitioner : Mr. Anil Kumar, Advocate
For State : A.P.P.
For the O.P. No.2 : Mr. Shailesh Kr. Sinha
-----
C.A.V. on 24.10.2008 Pronounced on 14.11.2008.
By Court. The Criminal Revision No.627 of 2006 is directed against the order
dated 20.02.2006, passed by the learned Sessions Judge, Hazaribagh in Cr.
Revision No.174 of 2005, whereby learned Sessions Judge, Hazaribagh, set
aside the order, passed by learned Judicial Magistrate, Hazaribagh in Complaint
Case No.342 of 2005, dismissing the complaint under Section 203 Cr.P.C. and
thereby, remanded the case before learned Magistrate for further inquiry.
Thereupon, learned Magistrate vide its order dated 03.05.2006, took
cognizance against the petitioner under Section 477A of the Indian Penal Code,
which order is under challenge before this Court in Cr.M.P. No.1081 of 2006
and under these situations, both the cases were heard together and are being
disposed of by the common order.
The case of the complainant/Opp. Party No.2 is that he had taken
loan from the ICICI Bank, for purchasing a vehicle and in order to make
repayment of the loan, he had given 10 post dated cheques, each of Rs.1702/-
in advance, drawn on Allahabad Bank, Hazaribagh Branch. In course of time,
one of the cheques bearing No.953814, when was presented before the
Allahabad Bank to which petitioner was the Senior Manager, at the relevant
point of time, it was dishonoured, on the plea of ‘insufficient fund’ and thereby,
Allahabad Bank debited Rs.50/-, as bouncing charge, though the complainant
had had sufficient amount in his account and consequently, ICICI Bank also
charged Rs.200/- and thus, it was alleged that the petitioner-Senior Manager of
the Allahabad Bank has committed offence of criminal breach of trust.
It further appears from the order dated 26.09.2005, under which the
complaint was dismissed, that in course of inquiry, learned Judicial Magistrate
had called for a report from the Bank concerned and in response to which the
Senior Manager of the Allahabad Bank, had reported that the cheque got
bounced by mistake but as soon as mistake detected, it was rectified by
making payment to the drawee. Considering this aspect of the matter, it was
held by the learned Magistrate that the act on the part of the official of the
Bank, was never intentional to commit offence and thereby, complaint was
dismissed under Section 203 of Cr.P.C. and it was observed that if the
complainant is aggrieved by the act of the official of the Bank, he may agitate it
under the provision of Consumer Protection Act.
However, when the said order was challenged before learned
Sessions Judge, Hazaribagh in Cr. Revision No.174 of 2005, order dismissing
complaint, was set aside, on the ground that learned Magistrate was required
to see as to whether offence as alleged is prima facie made out or not, but the
learned Magistrate in stead of deciding the case from that angle, dismissed the
complaint for agitating the matter under the Consumer Protection Act and
hence, remanded the case for further inquiry. Thereupon, cognizance under
Section 477A of the Indian Penal Code has been taken, which is under
challenge in Cr.M.P. No.1081 of 2006.
Thus, it is to be considered as to whether in the facts and
circumstances, learned Magistrate is justified in taking cognizance of the
offence under Section 477A of the Indian Penal Code against the petitioner?
It has already been noted that at the stage of the inquiry, a report
had been called for, by the learned Magistrate, whereupon, it was reported
that the cheque was dishonoured by mistake and when the mistake was
detected, it was rectified by making payment to the complainant of Rs.50/-,
which amount had earlier been deducted on account of bouncing charge.
Under this situation, it can be said that the act of the official of the Bank, was
never intentional to defraud the complainant.
Here it would be relevant to take notice of Section 477A of the
Indian Penal Code, which reads as follows:-
“Whoever, being a clerk, officer or servant, or employed or
acting in the capacity of a clerk, officer or servant, willfully,
and with intent to defraud, destroys, alters, mutilates or
falsifies any book, electronic record, paper, writing, valuable
security or account which belongs to or is in the possession on
his employer, or has been received by him for or on behalf of
his employer, or willfully, and with intent to defraud, makes or
abets the making of any false entry in, or omits or alters or
abets the omission or alteration of any material particular from
or in, any such book, electronic record, paper, writing,
valuable security or account, shall be punished with
imprisonment of either description for a term which may
extend to seven years, or with fine, or with both.
From its reading, it is quite apparent that in order to attract offence
under Section 477A of the Indian Penal Code, there should be intention to
defraud by destroying, altering or falsifying any record, but here in the instant
case, there does not appear to be any intention on the part of the official of the
Bank to defraud the complainant, as it had been reported to the Magistrate
that by mistake, cheque had been dishonoured.
In that view of the matter, order dated 03.05.2006, passed in
Complaint Case No.342 of 2005, taking cognizance of the offence under
Section 477A of the Indian Penal Code against the petitioner suffers from
illegality and is unsustainable in the eye of law and hence it is set aside.
Since, the order dated 03.05.2006 has been set aside, no order
needs to be passed in Cr. Revision No.627 of 2006.
Accordingly, Cr. Revision No.627 of 2006 is disposed of whereas
Cr.M.P. No.1081 of 2006 is, hereby, allowed.
(R.R. Prasad, J.)
Ravi/