T.R. Arya vs State of Punjab

M.M. Punchhi, J.—In this petition for revision, two orders of the Special Judge, Jalandhar, have been challenged by T. R. Arya, petitioner. The first one is dt. 8th July, 1985 whereby Arya was ordered to be summoned as an accused, during trial of one R. K. Vashist u/s 5(2) read with Section 5(1)(d) of the Prevention of Corruption Act and other ancillary offences under the Indian Penal Code. The second one is dt. 17th Sept. 1985, whereby charge was framed against Arya u/s 420 read with Section 120B as well as u/s 420, Penal Code.

The prosecution case may now broadly be stated. Arya was the Manager of the Indian Overseas Bank, Jalandhar Cantt. On 20th Jan. 1981, a Savings Bank Account was shown to have been opened in the Bank in the name of one Ashok Kumar with the initial deposit of Rs. 100/-. The specimen signature card too was shown obtained from the depositor. Two significant things were, however, missing. Firstly, nothing was available as to who introduced Ashok Kumar as a prospective client to the Bank. Secondly, the specimen signature card of Ashok Kumar was not authenticated by any Bank Official. The following day on 21st Jan. 1981 a sum of Rs. 10,000/- was shown credited to the said account of Ashok Kumar by way of transfer. There was no transfer document supportive thereof. On the other hand, to cover up the cash in hand discrepancy, a sum of Rs. 10,000/- was shown debited to the Savings Bank Account of an Association by R. K. Vashist. On the strength of the opening of the account, a cheque book too was shown to have been issued to Ashok Kumar. Two cheques of Rs. 5,000/- each purported to have been issued by Ashok Kumar were encashed at the bank counter on 30th Jan. 1981 and 2nd Feb. 1981, respectively. Out of these two cheques, payment of one was authorised by Arya and the other one by S. K. Bhagat, another bank official. Though in the first information report the involvement of all the bank officials dealing with the matter had figured one way or the other, but the prosecution while presenting the challan mentioned Arya in column No, 2. The Special Judge taking cognizance of the matter against R. K. Vashist, in the course of recording prosecution evidence, chose to summon Arya as an accused-because Arya while appearing as P.W. 8 had made a statement which appeared to the learned Judge justifying the action. The role owned by Arya was that he had at the time of passing of one of the cheques Exhibit PW6/8 compared the signatures of the drawer with the specimen signature card and then had authorised payment of the cheque. Since the specimen signature card did not bear the authentication of any bank official, the conduct of Arya aroused suspicion in the mind of the Judge for he seemingly was of the view that the absence of authentication by some one on the specimen signature card would have aroused suspicion of Arya and since he did not do so, he was negligent in the performance of his duties. This view he manifested subsequently in his order dated 17th Sept. 1985 while ordering framing of charge against Arya by observing that the allegation against him was that he was negligent in the performance of his duties and his negligence was the result of cheating and criminal conspiracy between him and R. K. Vashist.

Learned''counsel for Arya petitioner, for the present, is not touching the question whether Arya was negligent or not in the performance of his duties but projects the view that his suggested negligence does not match well with the other observation of the learned Special Judge that Arya was guilty of cheating and criminal conspiracy. It is on these premises alone that he prays for quashing of the summoning order as also of framing charge.

Mr. S. K. Sayal, learned Assistant Advocate General is ably assisted by Mr. J. K. Nanda, Public Prosecutor for the Central Bureau of Investigation, conducting the case before the trial Judge. Both of them have stated at the Bar before me that the prosecution does not need prosecuting Arya accused as there is no evidence against him much less any suspicion. Mr. Nanda has further stated that on the recommendation of the C.B.I. Arya might possibly be dealt with departmentally but there is nothing with the investigation or in the evidence led by the prosecution to disclose that Arya was guilty of criminal conspiracy or cheating.

For the stance adopted by the prosecution, much wind is taken out from the view taken by the learned Special Judge and what is to be seen is whether the positive view held of negligence can match well with the suspicion of criminal conspiracy and cheating. Obviously, it cannot, for an offence of cheating presupposes the act or omission of the accused to have been done dishonestly or fraudulently as the words are defined Under Sections 24 and 25 of the Penal Code and this aspect is to be projected with the requisite mens rea. Presence of mens rea and negligence normally never go together. Rather, one excludes the other. In view of this conflicting finding and specially when the prosecution is not interested in prosecuting Arya, I would lean in lavour of the view of the learned Judge that Arya was negligent in his duties, but not necessarily party to the criminal conspiracy and cheating. He thus does not have to undergo the ordeal of trial.

For the foregoing reasons, this petition is allowed, the summoning order, the order framing charge and the consequential charge are quashed.