SRI ASHIM KR DEY vs THE STATE OF ASSAM and ANR

1.This petition is filed under Section 482/397/407 of the Cr.P.C. seeking quashment of the Complaint Case No. 2 of 2006, presently pending in the

learned Sessions Court, Khonsa, district-Tirap, Arunachal Pradesh and the order, dated 18-12-2006, passed by learned SubDivisional Officer-cum-

Judicial Magistrate, First Class, Kanubari, Arunachal Pradesh and the order, dated 17-10-2008, passed by the learned Court of Sessions, Khonsa, in

the said case or to transfer the case to either Tinsukia or Dibrugarh district of the State of Assam.

I have perused the petition as well as the annexures furnished therewith. I have also perused the record of the CR Case No. 2/2006. As indicated

above, the petition before this Court is with alternative prayers.

Heard Mr. KK Mahanta, learned senior counsel appearing for the accused-petitioner and Mr. MP Goswami, learned Additional Public Prosecutor.

Also heard Mr. NNB Choudhury, learned Public Prosecutor, Arunachal Pradesh.

The fact leading to the aforesaid complaint is that while the accused-petitioner was working as Branch Manager of Kanubari Branch of the State

Bank of India (SBI) from May, 2002 till 24-06-2006, disbursed loan amount less then the sanctioned amounts to the lonees. Therefore, complaint from

114 persons was received by the Sub-Divisional Officer-cumJudicial Magistrate, First Class, Kanubari alleging that some amounts of loan amount of

some lonees were misappropriated by the accused-petitioner. Loans were sanctioned to 155 persons as has come out from the papers available in the

record of the trial Court.

After receipt of the complaint, the aforesaid learned Sub-Divisional Officer-cum-Judicial Magistrate, First Class, Kanubari, Arunachal Pradesh, Mr.

W Tikhal held a meeting, which was attended by himself, the accused-petitioner and 39 others (total participants 40) wherein a committee was

constituted consisting of 10 persons to scrutinize the complaints within 5 days, with effect from 28-11-2006. This meeting was held on 24-11-2006.

The minutes of this meeting is at Annexure-2 of the petition. In accordance with the decision of the meeting, an undertaking was obtained from the

accused-petitioner which reads as follows: “I, Shri. Ashim Kr. Dey, S/O Late Anil Boran Dey and on behalf of Sri. UP Kar, Asstt and Sri. JK

Baruah, Asstt. State Bank of India, Kanubari in their presence in the meeting held on 24 th  Nov’2006 hereby undertake to repay the

misappropriated amounts of money to the respective loanee complainants in one instalment before 30 th  Dec’2006.â€​

According to the accused-petitioner, the said meeting was convened by the aforesaid learned Magistrate who also signed the same in his capacity

as Sub-Divisional Officer, Kanubari, which is, of course, evident from the Annexure-2 itself.

It is the case of the accused-petitioner that while he was working, on transfer, in the State of Meghalaya, he visited Kanubari in connection with

recovery of the loans of Kanubari Branch of State Bank of India with effect from 08-11-2006 to 24-11-2006, where, under threat and pressure, he

was made to give the undertaking, referred to in the Annexure-1. He also alleged that he did not get an opportunity to examine the loan records of the

Bank. Thereafter, he wrote a letter, vide Annexure-3, to the aforesaid learned Sub-Divisional Officer, Kanubari, on 02-12-2006 that he was compelled

to admit the allegations without knowing the allegations and exact amount of misappropriation and that he was not given an opportunity to verify their

allegations with the record. The borrowers created a situation which endangered his life, and therefore, he admitted the allegations having no

alternative. Thepetitioner has also informed the aforesaid Sub-Divisional Officer, Kanubari, and the jurisdictional Deputy Commissioner of Tirap

district, all these facts, together with the fact that the lonees had raised the allegations only when steps for recovery of their loans, in repayment of

which they dafaulted, were taken by the Bank authority.

The aforesaid Sub-Divisional Officer, Kanubari, forwarded the complaint to the jurisdictional Deputy Commissioner, vide Annexure-5 letter. Then,

N Wangsher, EAC (Judl.) lodged an FIR in respect of the complaint to the Officer-in-Charge of Kanubari Police Station vide Annexure-6. He also

sent the original complaint along with the alleged undertaking for treating the same as FIR, vide No. JUD/10/2001, dated Khonsa the 4th October,

2007.

There is no whisper in the record of the CR Case No. 2/2006 in respect of the FIR. However, vide order, dated 18-12-2007, the same learned Sub-

Divisional Officer-cum-Judicial Magistrate, First Class, Kanubari, passed the following order: “The CR case No. 02/06 State VRS Sri A.K. Dey,

Former Branch Manager, SBI, Kanubari Branch, U/S 418/420 IPC has been put up before court today, Records against the accused person has been

perused and found that he is guilty U/S 418/420 IPC for cheating money borrowers. He has also cheated Executive Magistrate giving his false

assurance by deposing is non judicial stamp on 24 th  Nov’06 to repay the entire amount of money misappropriate by him before 30 th

 Dec/2006. Keep copies of records ready for supplying to the accused person on his appearance before Court on the date fixed, i.e., 28 th

 Dec/07. Issue summons accordingly.â€​

The order, reproduced above, ma kes it clearly appear that the learned trial Court, while taking cognizance (if it is taken to be an order taking

cognizance) held the accusedpetitioner guilty of the offences, under Section 418/420 of the IPC as he cheated the Executive Magistrate by giving

false assurance by deposing in Non-Judicial Stamp on 24th November, 2016 to repay the entire amount of money misappropriated by him before 30th

December, 2006.

The learned Sub-Divisional Officer-cum-Judicial Magistrate, First Class, Kanubari, Mr. W Tikhal is the presiding Magistrate and passed the above

quoted order. But, he was also the  signatory of the alleged undertaking/assurance given by the accused-petitioner, vide Annexure-1. The Annexure-

1 was written by the accused-petitioner at the behest of learned presiding officer as he convened the meeting where such action was taken and the

resolution of the meeting was also signed by him vide Annexure-2. That being the position, the order, dated 18-12-2007 is passed by the presiding

officer of the Court as a  Magistrate who at the same time was prosecuting the cause of the complainant. It is not out of place to mention here that

he had also forwarded the complaint to the jurisdictional Deputy Commissioner for necessary action whereafter the FIR, referred to above, was filed.

Presently, the case is pending for trial before the learned Deputy Commissioner/Sessions Judge, Tirap district, Arunachal Pradesh, and vide order,

dated 17-10-2008, warrant of arrest has been ordered to be issued against the accused-petitioner. The offence for which the cognizance has been

taken is not triable by the learned Sessions Judge, and therefore, the order passed by him cannot sustain.

On the other hand, the accused-petitioner was residing in the State of Meghalaya on the date of the complaint in the aforesaid CR Case No.

2/2006. It has not come out from the record of the learned trail Court that the provision of Section 202 of the Cr.P.C. was complied with in this case

which is mandatory as no witness, not to speak of all the witnesses for the complainant, was examined. On the other hand, there is an FIR in respect

of the same occurrence is a fact evident from the Annexure-6. Therefore, it was mandatory for the learned Magistrate to stay the proceeding of the

inquiry or trial of the CR Case No. 2/2006, aforesaid, and to call for a report, as mandated by the provisions of Section 210 of the Cr.P.C. which has

not been done in the instant case.

On the other hand, in a complaint of the instant nature, without examining the relevant record, only on the basis of the alleged assurance, vide

Annexure-1, which was allegedly obtained by creating a situation endangering the life of the accused-petitioner and in obtaining which the learned trial

judge himself is party cognizance could not have been taken by him. The tone and tenor of the order, dated 18- 12-2007, also speaks volumes about he

approach of the learned trial Judge with a predetermined mind that the accusedpetitioner is guilty.

The most important fact noticed in the case is that, vide Annexure-6, the original complaint along with the original undertaking by the accused-

petitioner was forwarded to the Officer-in-Charge of Kanubari Police Station, meaning thereby, that the original complaint and the original

undertaking are not before the learned trial Court. Then, what is the basis on which he had taken cognizance of the offences under Sections 418/420

of the IPC against the accused-petitioner? This shows that there is no complaint in the CR Case No. 2/2006, referred to above, and as such the said

case was registered without there being a complaint. Therefore, the CR Case No. 2/2006 needs to be quashed.

In view of the above facts and circumstances, the CR Case No. 2/2006, aforesaid, and the orders, dated 18-12-2008 and 17-10-2008, passed in the

aforesaid CR Case No. 2/2006 taking cognizance of  offences as well as issuing warrant of arrest against the accusedpetitioner, are quashed. This

order is passed by this Court in invoking its inherent power under Section 482 of the Cr.P.C. to prevent the abuse of the process of the Court.

This petition stands disposed of accordingly.

Send down the LCR along with a copy of this judgment and order.