Meenu Prakash Bhantu vs The State Of Uttar Pradesh

MEENU PRAKASH BHANTU …Appellant

Versus

STATE OF UTTAR PRADESH & ANR. …Respondents

JUDGMENT

Rajesh Bindal, J.

1. The Order dated 12th October, 2017 passed by the

High Court for Judicature at Allahabad is under challenge

before this Court. Vide the aforesaid order, the Criminal

Miscellaneous Application filed by the appellant under

Section 482 of the Code of Criminal Procedure, 1973 (for

short “CrPC”) for quashing of the orders dated 4 th July, 2017

passed by the Sessions Judge, Aligarh in Criminal Revision Signature Not Verified Digitally signed by Anita Malhotra Date: 2023.03.16 17:10:00 IST Reason: No.306 of 2017 and the order dated 29th August, 2017

1 passed by the Additional Chief Judicial Magistrate, Aligarh,

was disposed of by the impugned order.

2. While examining the issue in detail, a brief

narration of the facts of the case would be relevant:

The Respondent No.2/complainant lodged FIR bearing

Case Crime No.170/2014 dated 20 th June, 2014 at Police

Station Gonda, District Aligah, Uttar Pradesh. It was with

the allegation that ₹55,20,000/- (Rupees fifty five lakhs

twenty thousand only) were embezzled from his account. A

perusal of the contents of the FIR shows that no one was

named as an accused therein. He merely stated therein

that there were certain unauthorized withdrawals from his

bank account. He had never requested for issuance of a

new cheque book, however, still a new cheque book was

issued. It was sent by registered post to the complainant

but was not delivered to him. Some unauthorized person

collected the same. Though earlier the complainant was

receiving SMS from the bank for all the transactions but

suddenly it got stopped. He came to know about the

cheating when on 19th June, 2014 he got entries done in his

pass book. After investigation, charge sheet was filed

2 against Jagpal Singh, s/o Ghasiram, Clerk (Assistant) SBI

Branch, Gonda district, Aligarh and Ajeet Kumar Sharma s/o

Bhupendra Sharma, SBI Branch Gonda. During the course

of trial, the appellant got his statement recorded. He

reiterated the stand taken by him in complaint filed to the

police on the basis of which FIR was registered. He stated

that the cheating has been done in connivance with the

employees of the bank and the Post Office. He admitted in

his cross-examination that the amount of ₹ 55,20,000/- (Rupees fifty five lakhs twenty thousand only) which was

withdrawn from his bank account has been returned to him

by the bank.

3. On the basis of the statement made by the

complainant which was in line with the complaint filed to

the police, an application was filed under Section 319 Cr.PC

by the prosecution for summoning the present appellant,

Accountant S.D.Sharma and Bank Manager M.L.Verma,

State Bank of India and the then Post Master of Post Office,

Gonda. The same was rejected by the Additional Chief

Judicial Magistrate vide order dated 6th May, 2017 finding

that sufficient material was not available to summon the

3 accused. The order was challenged by the prosecution by

filing revision. The learned Sessions Judge vide order dated

4th July, 2017 allowed the Revision Petition and remitted the

matter to the Trial Court for disposal afresh after affording

opportunity of hearing to the parties. Thereafter, vide order

dated 29th August, 2017 the learned Additional Chief Judicial

Magistrate, Aligarh allowed the application and directed for

summoning of the present appellant, Accountant S.D.

Sharma and Bank Manager M.L. Verma and the then Post

Master of Gonda Post Office.

4. In the aforesaid order, no reasons were assigned

except stating that for the reasons stating by the Sessions

Judge in his order by which the matter was remitted back

for consideration afresh, the application is allowed and the

present appellant, Accountant S.D.Sharma, Bank Manager

M.L.Verma and the then Post Master of Gonda Post Office

were directed to be summoned. The appellant being

aggrieved by the aforesaid order approached the High Court

at Allahabad. The High Court vide the impugned order

dismissed the Criminal Miscellaneous Application filed

under Section 482 CrPC only with general observations and

4 without noticing the facts of the case. The impugned order

merely mentioned that no illegality or impropriety was

found in the order which could persuade the High Court to

interfere. The order reflects non-application of judicial

mind. The order is under challenge before this Court.

5. Learned counsel appearing for the appellant

submitted that the appellant was merely working as a

Miscellaneous Clerk in State Bank of India, Gonda Branch,

District Aligarh, Uttar Pradesh. If there was any fraudulent

withdrawal from the account of the complainant, the

appellant cannot be held responsible for the same. The

only allegation against the appellant is that once he had

supplied printout of the statement of account of the

complainant which according to him was not legible or there

was some mis-printing. The appellant cannot be held

responsible for treating his part of the crime. The High

Court had failed to appreciate the contentions and it merely

passed a general order without discussing the facts of the

case. The order passed by the Additional Chief Judicial

Magistrate which again was totally non-speaking. He

merely referred to the order passed by the Sessions Judge

5 challenging an earlier order passed by the Additional Chief

Judicial Magistrate dated 6th May, 2017. The Sessions Judge

had accepted the Revision Petition with certain observations

and remitted the matter back to the Trial Court for passing

fresh orders and the matter was required to be considered

on its own merits by the Trial Court.

6. In support of the arguments, reliance was placed

upon the Constitution Bench judgment in the case of

Hardeep Singh and Ors. Vs. State of Punjab & Ors. ,

(2014) 3 SCC 92.

7. On the other hand, learned counsel for the

respondents submitted that it is a case in which there was

fraudulent withdrawal of ₹55,20,000/- (Rupees fifty five lakhs twenty thousand only). The role of the appellant is

clearly established. When the complainant received a

message regarding dispatch of a cheque book of his

account, he immediately approached the bank as he had

never requested for issuance of a cheque book. However,

no satisfactory reply was given by the bank. When the

complainant requested for a copy of the statement of his

account with the bank, statement supplied was either

6 illegible or there was mis-printing and as a result of which

the complainant could not make out as to what transactions

had been done from his account. The appellant being the

person responsible for supplying copies of the account, he

is equally responsible in playing fraud.

8. Heard the learned counsel for the parties and

perused the relevant material placed on record.

9. The parameters on which additional accused

could be summoned in an application filed under Section

319 CrPC are well settled in the case of Hardeep Singh

and Ors.’s case (supra) which are as under:

“105. Power u/s 319 CrPC is a discretionary and an extraordinary power. It is to be exercised sparingly and only in those cases where the circumstances of the case so warrant. It is not to be exercised because the magistrate or the sessions judge is of the opinion that some other person may also be guilty of committing that offence. Only where strong and cogent evidence occurs against a person from the evidence laid before the court that such power should be exercised and not in a casual and cavalier manner.

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106. Thus we hold that though only a prima facie case is to be established from the evidence laid before the court, not necessarily tested on the anvil of cross-

examination, it requires much strong evidence that near probability of his

complicity. The test that has to be applied is one which is more than prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction. In the absence of such satisfaction, the court should refrain from exercising power u/S 319 CrPC.” (emphasis supplied)

10. In Sagar vs. State of U.P. & Anr. (2022) 6

SCC 389, it is stated as under:

“9. The Constitution Bench has given a caution that power under Section 319 of the Code is a discretionary and extraordinary power which should be exercised sparingly and only in those cases where the circumstances of the case so

8 warrant and the crucial test as notice above has to be applied is one which is more that prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction….”

11. If the case in hand is examined on the parameters

laid down in the aforesaid judgments, in our opinion, no

case is made out against the appellant at this stage for his

summoning as an additional accused merely because he

once had supplied a copy of the statement of account to

the complainant which was either dim or mis-printed. Based

on this material, opinion cannot be formed that he was in

connivance with the accused who allegedly indulged in

cheating the complainant by fraudulent withdrawal from his

account. He is not authorized either to approve withdrawal

or to deal with the account of the complainant. 9

12. For the reasons stated aforesaid, the present appeal is

allowed. The impugned order dated 12 th October, 2017

passed by the High Court is set aside and the application

filed by the prosecution for summoning the present

appellant as an additional accused is dismissed.

….………………J. [Abhay S. Oka]

….………………J. [Rajesh Bindal]

New Delhi March 16, 2023

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