JUDGMENT [ENTITY], J.
1. The petitioners Shri [ENTITY] filed this revisional application for quashing the investigations and proceedings in [CASE NUMBER] [CASE NUMBER] and RC/15/ EOW/86 all dated 17th December, 1986. All these proceedings were started under [SECTION] [ACT] and under [SECTION] read with [SECTION] of [ACT] on the basis of four separate F.I. Rs lodged by one Shri [ENTITY], Dy. General Manager of Tamil Nadu Marcantile Bank Limited, Calcutta. This revisional application was originally heard by a Division Bench of this court comprising of [ENTITY] and [ENTITY], JJ. the petitioner took the objection that the allegations made in the F.I. Rs are not true and at any rate do not, prima facie, make out any cognizable offence and as such the F.I. Rs and the investigations are liable to be quashed. A plea was also taken that the Central Bureau of Investigation (C.B.I.) with whom the F.I. Rs were lodged and who took up the investigations are not competent to investigate the cases. Both the learned Judges of the Division Bench in their separate orders dated 8.5.91 however held that the C.B.I, was competent to investigate the matter. The learned Judges also did not consider it proper to quash the entire investigation. There was however a difference of opinion between the learned Judges on the question whether investigation should be continued against the present petitioner. While [ENTITY], J. held that no case was made out for staying the investigation against the petitioner, [ENTITY], J. was of the view that the investigation proceedings should be stayed so far as present petitioner is concerned. At the same time the learned Judge also made it abundantly clear that the order would not prevent the investigating authorities to further investigate into the matter and if they were able to collect sufficient materials against the petitioner after such investigation they might apply for variation and/or vacation and/or recession of the order. In view of this difference of opinion between the learned Judges of the Division Bench as to whether the investigations should be stayed against the petitioner the matter was referred to a learned Third Judge being [ENTITY], J. Having regard to the nature of the matter the learned Third Judge recommended the matter to be referred to a larger Bench. Accordingly the Hon'ble the Chief Justice has assigned the matter to this Bench which is preside over by [ENTITY], J.
2. It has been argued by the learned Advocate for the petitioner that the material allegations in the concerned F.I. Rs are not true and that the allegations do not prima facie disclose commission of any cognidable offence and as such the F.I. Rs and the investigations are liable to be quashed. Here it is necessary to look to the allegations made in the F.I. Rs. The allegations made in all the F.I. Rs are more or less the same. Only the periods, amounts and figures involved are different. As a sample case we look to the allegations made in the F.I.R in proceeding RC/12/EOW/86 dated 17th December, 1986. The F.I.R was recorded by the C.B.I on the basis of written complaint lodged by Shri [ENTITY], Dy. General Manager, Tamil Nadu Miarcantile Bank Limited. It is stated in the F.I.R that it appears from records that during the period from January 1985 to September 1985 the then Calcutta Branch Manager (of the said bank) Mr. [ENTITY] had misused his official position and power and committed fraud, conspiracy and cheating in a preplanned manner thereby cheating the bank. It is further stated in the F.I.R that during the concerned period Mr. [ENTITY] while acting as the Manager and by misusing his power and official position, had cheated, committed fraud and acted to the prejudice of the bank's interest with a view to secure personal gain wrongfully and dishonestly, inter alia, in the following manner :
"(a) Issuance of unauthorise overdraft-Rs. 3,19,41,672.00
(b) Unauthorised Credit extended through clearing cheques outstanding account-Rs. 422.80 lakhs
(c) Drawings against clearing-Rs. 62,60,[SECTION].00
(d) Illegal book transfer-Rs. 12,35,07,000.00
(e) Other surreptitious and unauthorised-'Rs
(f) Total loss-Rs. 24,18,470.79."
It is also alleged in the F.I.R that it appears that in the year 1985, 94 pub- lie limited companies were floated and the capital was subscribed in questionable manner and that one young Chartered Accountant known as [ENTITY] (the petitioner hearein) who was very thick and thin with Mr. [ENTITY] hatched up a plan to utilise the facilities of the bank by flating the said joint stock companies solely with a view to dupe the Government and government agencies into believing that the companies had the genuine base of promoters and in the process had cheated and defrauded, government and government agencies at large and the bank as well. Centain facts also have been mentioned for establishing the relationship of [ENTITY]. Such facts were that Shri [ENTITY] was the common Chartered Accountant of all the floated companies and the registered offices of the companies word shown to be the same in. a group and that when demands were made by the bank for payment of the bank dues most of the demand letters came back with the re-mark 'not known' and that the companies which had received the said demand letters replied word by word in similar manner without any deviation, whatsoever and further that if proper scrutiny were made it would appear that most of the Directors were more or less common. It is stated in the F.I.R that initially the so-called promoters of the joint stock companies utilised many savings bank and current accounts opened by them, in Tamil Nadu Marcantile Bank Limited and the cheques were issued from these accounts to the credit of application and allotment accounts of various public issues and only transfer entries were made and in all the cases the basis of allotment was from the date of close of the subscription list and the allotments were made immediately and the so-called companies withdrew the subscription on the very same date, but Mr. [ENTITY] although on document acted as bankers to the issue did not even bother to claim for or realise the bank's commission and expenses and charges thereby causing a loss to the tune of Rs. 24,18,470.79 in the year 1985 for which the bank was being compelled to' institute various suits in order to realise the dues and to save limitation and the Bank had to undertake huge expenses for the purpose. It is also the allegation in the F.I.R that there are many book transfers involving the group of companies of [ENTITY] and companies promoted by him and such transactions run into crores of rupees on a single day and in all those accounts the amount standing in the credit is normally in hundreds and in a few cases even less than hundred and the said Mr. [ENTITY] had allowed debit to the various accounts without any credit balances. It is alleged that creating a chain of unauthorised overdrafts which were settled by virtue of cross transfers on the same day the accused persons defrauded the Government and Government agencies and the bank in particular. The entries in this regard, it is alleged, are all fictitious and were caused with direct connivance of Mr. [ENTITY] who allowed those fictitious transactions in the books of the bank and such transactions were innumerable during the period between 1983 and 1985. The further allegation in the F.I.R. is that in all such transactions shares were allotted benami in fictitious names and the promoters withdrew from the bank the account credit to the share application account oven before the application was over. It is stated in the F.I.R. that although the Directors made declarations to the stock exchange stating that brokerages were paid by cheque yet operations of the account do not reveal so and on verification of the DEs, TTs and MTs received at and remittent from Calcutta it is revealed that a sum of Rs. 2.76 crores was received at Calcutta mainly through the accounts of [ENTITY] group of companies and the remitters' names were mentioned as themselves and in some cases there was no such mention at all. The Dps were received, it is alleged, towards interest received and towards repayment of the deposits made with some of the companies by Mr. [ENTITY] by forging the signatures which suggests that benami investments were held by him as well and that considerable amount had. also gone to a firm at Birudhnangar in which Mr. [ENTITY], an ex-employee who left the service in April 1985 and his family members were partners and Shri [ENTITY] and his wife were also beneficiaries of some of the remittances. It is further stated in the F.I.R. that [ENTITY] Group of Companies with the help of Mr. [ENTITY] successfully opened many accounts numbering about hundred in Delhi and that the Branch Manager, Delhi however took precautionary measures by issuing certificates in respect of 40 companies registered in Delhi and the Delhi Branch collected commission in all those cases. It is also the allegation in the F.I.R. that unauthorised overdraft facilities were extended to a number of parties by Mr. [ENTITY] and overdrafts were allowed in the current account ledger on many occasions for a certain group of parties where either no interest was charged or interest charged was too inadequate. It is alleged in the F.I.R. that it appears that the [ENTITY] Group of Companies have subscribed for Rs. 12.35 crores unauthorised overdrafts and thus obtained share certificates worth Rs. 12.35 crores without spending a single paisa, not even in terms of interest to the bank and that similar unauthorised overdrafts were allowed to other [ENTITY] Group of Companies to the tune of Rs. 175 lakhs and moreover clearing cheque outstanding account had been utilised by Mr. [ENTITY] to illegally finance the [ENTITY] Group of Companies and the bank did not charges anything towards this and that a good number of cheques belonging mostly to [ENTITY] Groups had bounced subsequently and further that Mr. [ENTITY] appeared to have passed bills purchases account which were used to extend concealed lending to certain parties. It is also revealed from enquiry made by the Head Office of the bank, so goes the allegation in the F.I.R., that for the purpose of defrauding the bank as well as the Government and Government agencies at large no proper documents have been obtained by the said Mr. [ENTITY] thereby securing the socalled loan and/or credit facilities and no prior approval and/or sanction was obtained from the Regional Manager and/or the higher authorities of the bank. On these allegations in the written complaint the C.B.I recorded F.I.R. as already mentioned, under [SECTION] [ACT] and [SECTION] of the [ACT]. As I have already mentioned, the other three F.I.Rs are also more or less of the same nature. The total number of companies floated is stated to be 174. The amounts involved in all the four F.I.Rs also come to a gigantic figure. The F.I.Rs contain clear allegations of cheating, fraud and even forgery. The allegation of conspiracy is also there. Leaving aside the question of truth or falsity, the allegations also prima facie project unholy alliance in the alleged commission of the offences between the Branch Manager Mr. [ENTITY] and the petitioner Mr. [ENTITY]. In the circumstances there is no scope for holding that the F.I.Rs do not disclose any cognizable offence. On the other hand a simple reading of the F.I.Rs discloses daring commission of cognizable offences mentioned therein during a number of years involving huge amounts of money. Since there is no scope for holding that the F.I.Rs do not disclose any cognizable offence and since on the other hand it is apparent that the F.I.Rs contain allegations regarding commission of cognizable offences of very appalling nature it will be not at all proper for the court to throttle the investigation at its birth or infancy.
3. Even the learned judges of the Division Bench did not consider to be a lit case for quashing the investigation altogether. What only one of the learned Judges felt was that the investigation against the present petitioner who is one of the accused should be stayed, and that too, with the liberty to the investigating agency to approach the court for variation or vacation of the order if during the investigation proper materials involving the present petitioner becomes available. With great respect, I must say that this is somewhat self-contradictory. If the investigation in respect of a particular accused is stayed by the court, it is difficult to comprehend how it would be possible for the investigating agency to collect materials against the particular accused during the course of the investigation so as to pray subsequently for permission to carry on the investigation against that particular accused. In this connection it is to be noticed that [SECTION] [ACT] authorises the police to investigate "cognizable case". It is therefore evident that law contemplates and mandates investigation relating to the case, a cognizable case and obviously the investigation can not be predestined by the court to be confined to particular accused only nor can it be shackled by the court within a given frame on the basis of any foregone conclusion so as to exclude any particular person to be named beforehand. The purpose of an investigation is to ascertain whether any cognizable offence has been committed and if so, who are the persons involved in the commission of such offence. The investigation is expected to proceed in a chain process leading to discovery of truth by proceeding from stage to stage on the basis of available materials and detected clues and therefore if in any case an investigation is allowed to continue it will have to be allowed to continue by following its own course in accordance with law so as to reach its logical destination. There is no scope of judicial tailring of police investigation.
4. The learned Advocate for the petitioner made strenuous agrument by referring to certain facts, such as, filing of money suits by the bank for realisation of its dues, certain paper publications, etc. to show that the allegations in the F.I.Rs are not true or sustainable. In my opinion, however, the court at this stage can not embark upon a parallel or preemptive investigation for finding out whether the allegations made in the F.I.Rs are true and sustainable. This is a function which the police investigation is precisely required to undertake and the court at such stage can not stay the police investigation and itself embark upon a separate investigation with reference to the different materials that may be referred to by an accused for coming to a conclusion that the allegations made in the F.I.R are not true or sustainable, particularly where the allegations in the F.I.R. when taken at face value prima facie disclose commission of cognizable offence as they do in this case. The present petitioner has been named as an accused in the F.I.R. inter alia with allegations of conspiracy and collusion supported by prima facie indications given in the F.I.R. Police investigation is expected to unearth whether the allegations are sustainable or not. The court therefore should not interfere here at the stage of investigation.
5. The learned Advocate for the petitioner in this conection has referred to certain decisions, one being the decision of the Supreme Court in [PRECEDENT] . Relying on this decision it is submitted by the learned Advocate for the petitioner that the delay in lodging the F.I.R makes the F.I.R bad. This submission is not tenable. In the said decision of the Supreme Court the question that was dealt with was regarding the appreciation of evidence adduced in trial in the background of the delay in lodging the F.I.R. Clearly in the present case we are not yet concerned with the appreciation of evidence in trial and therefore the said decision is plainly out of context here. He has also referred to the decision of the Supreme Court is [PRECEDENT], . It appears that there the prosecution was a complaint case and it was found that the facts alleged in the complaint would constitute a civil wrong and the ingredients of criminal offence were wanting and therefore the proceeding was quashed. In our present case, as we have seen, it is not a complaint case and here the police investigation has been started on the basis of F.I.R. The case is now under investigation and at this stage it is very difficult and at any rate premature to say that the investigation will not divulge any criminal offence, particularly, where there are allegations of fraud, cheating and forgery even in the F.I.R. The learned Advocate for the petitioner also referred to the decision of the Supreme Court in [PRECEDENT], . It is submitted by the learned Advocate for the petitioner relying on the said decision of the Supreme Court, that this court may at this stage consider whether the evidence substantiate the allegations made in the F.I.R. In this connection it is, however, to be stated that unless the investigation is completed it is not possible to say whether the evidence that may be collected in course of such investigation will or will not sustain the allegations made in the F.I.R. A piece of isolated material even if looked into at an intermediate stage of an investigation, may not give out the whole and correct picture of the thing and therefore it will not be proper to decide the matter on any isolated piece of material when the investigation is yet to be completed.
6. The learned Advocate for the petitioner also referred to the decision of the Supreme Court in the well-known case of [PRECEDENT], in support of his contention that the court at this stage can also look into other materials besides the F.I.R for deciding whether the investigation is liable to be quashed. In that decision [ENTITY], C.J. observed that the condition precedent to the commencement of investigation under [SECTION] of the Code is that the F.I.R must disclose prima jade that a cognizable offence has been committed and it is wrong to suppose that the police have an unfattered disscretion to commence investigation under [SECTION] of the Code. It has been further observed by His Lordship that their right of enquiry is conditioned by the existence of reason to suspect the commission of a cognizable offence and they can not, reasonably, have reason so to suspect unless the F.I.R. prima jade, discloses the commission of such offence. His Lordship further observed that if that condition was satisfied, the investigation must go on and the rule in [ENTITY] would apply. [ENTITY], J. observed in paragraph 64 (ibid) that the legal position appeared to be that if an offence was disclosed, the court would not normally interfere with an investigation into the case and would permit investigation into the offence alleged to be completed, and if however, materials did not disclose the offence, no investigation should normally be permitted. A reading of the said decision would show that the materials indicated are the materials referred to in the F.I.R of the case or associated therewith. It is on consideration of the allegations made in the F.I.R and the materials referred to in or associated with the F.I.R the Supreme Court came to the conclusion in that case that no cognizable offence was disclosed. The said decision of the Supreme Court, it will appear on a close reading, does not authorise the High Court to take into consideration at the stage of investigation extraneous materials that may be referred to or relied upon by an accused at such stage for quashing the investigation. The said decision of the Supreme Court in [ENTITY] (supra) was also discussed by the Supreme Court in State of Haryana v. [ENTITY]. of the said decision in [ENTITY] it has been observed that in the case of [ENTITY] the Supreme Court quashed the proceedings on the ground that the allegations made in the complain did not constitute an offence within the ambit of the provisions of the Act under which the respondents/accused therein were prosecuted. The decision of the Supreme Court in State of Haryana v. [ENTITY] (supra) makes a plannery survey of all earlier decisions (numbering not less than 19) having a bearing on the question as to in what circumstances an investigation can be quashed by the High Court and enumerates certain guidelines for the purpose in paragraph 108. Guideline No. 2 runs thus :
"2. Where the allegations in the first information report and other materials, if any, accompanying the F.I.R do not disclose a cognizable offence, justifying an investigation by police officers under [SECTION] of the Code except under an order of a Magistrate within the purview of [SECTION] of the Code".
It is therefore evident that the 'other materials' to be taken into consideration for deciding the question whether the F.I.R or the investigation is to be quashed, are not materials which there may be at large but only such materials, if any, which may accompany the F.I.R. In all the authoritative judicial-pronouncements starting from the decision of the Privy Council in [ENTITY] upto the decision of the Supreme Court in State of Haryana v. [ENTITY] the law has been consistently enunciated and it is by now crystalised that the F.I.R. and the investigation are liable to be quashed if the F.I.R., taken at its face value, does not disclose any cognizable offence but if the F.I.R., makes out a cognizable case the court should not ordinarily interfere with the police investigation. The different aspects of the position of law in the matter has been also discussed in the light of the decision of the Supreme Court in State of Haryana v. [ENTITY] (supra), by a single Judge of this court ([ENTITY], J.) in [PRECEDENT]. The subsequent Supreme Court decisions in [PRECEDENT] and in [PRECEDENT] virtually reaffirm the settled position of law that the investigation should not be ordinarily interfered with by the court if the F.I.R., prima facie, discloses cognizable offence.
7. In [PRECEDENT] the Supreme Court had to deal with the question whether a prosecution in respect of offences under [SECTION], [SECTION], [SECTION] and [SECTION] [ACT] was liable to be quashed by the High Court in exercise of inherent jurisdiction under [SECTION] [ACT] before the commencement of the trial. It was argued before the Supreme Court on behalf of the respondent that the judgement of the High Court quashing the prosecution was sustainable on the ground that the seizure was not proper and the evidence collected did not show that the respondent had committed any crime. The Supreme Court, however, reversed the judgement of the High Court and observed that the course adopted by the High Court to appreciate the 'evidence' was not proper. It was further observed by the Supreme Court that it was not a case in which the High Court should have cut short the normal process of the criminal trial. Perhaps the latest decision of the Supreme Court in such matter is Union of India v. [ENTITY], . In that case the allegations in the F.I.R. prima facie related to commission of cognizable offences under [SECTION], [SECTION] [ACT] and [SECTION] with [SECTION] of the [ACT]. Several aspects of the allegations in the F.I. R were still to be investigated by the police. The High Court in exercise of the inherent power under [SECTION] [ACT] quashed the F.I.R. and the High Court while interfering at the stage of F.I.R. holding that the F.I.R. did not disclose any offence, as a matter of fact, took into consideration several other records produced by accused and also relied upon certain affidavit and letter. Such approach of the High Court was disapproved by the Supreme Court as the same, to say the least, to some extent amounted to investigation by the court whether the offence alleged on the F.I.R were made out or not. This decision of the Supreme Court rather affirms the position that the High Court in exercise of its inherent power under [SECTION] [ACT] can not, during the pendency of the police investigation, embark upon a parallel enquiry or investigation to ascertain whether the allegations in the F.I.R. are in fact made out or not where such allegations, taken at face value, disclose cognizable offence. The Supreme Court therefore held that the High Court erred in quashing the F.I.R. In paragraph 8 of the said decision in Union of India v. [ENTITY] (supra) the Supreme Court after narrating the allegations in the F.I.R observed thus :
"These are some of the important allegations in the F.I.R which make out a cognizable offence at that stage and the registration of an F.I.R. is only the beginning of the investigation. That being the case, the High Court has grossly erred in quashing the F.I.R. itself when several aspects of the allegations in the F.I.R had still to be investigated. The learned judge of the High Court while coming to the conclusion that the allegations in the F.I.R do not disclose any offence has taken into consideration several aspects including the guidelines, normal duty of Shri [ENTITY] etc. and went further and investigated whether the offences under [SECTION], [SECTION] [ACT] and [SECTION] of the [ACT] has been made out. Suffice it to say that the learned judge has treated the whole matter as though it was an appeal against the order of conviction and that should never be the approach in exercising the inherent power under [SECTION] [ACT] particularly at the stage of F.I.R when the same discloses commission of a cognizable offence which had still to be investigated thoroughly by police. We do not think that in this case we should make a further detailed consideration about the contents of the F.I.R. We are satisfied that this is not at all a fit case for quashing the F.I.R under [SECTION] [ACT]"
In our case also, I must say, we cannot but draw a conclusion exactly in the language of the Supreme Court as quoted above as we can not offer any better language or expression in this matter. Here in our case also the F.LRs disclose cognizable offences of very serious nature indicating involvement of the Branch Manager and the petitioner and that being so there is no question of looking into other materials at this stage which the petitioner may wish us to take into consideration nor can we treat the matter as if the matter has come up before us in appeal. In the circumstances we must hold that there is no scope of stopping the investigation and all the investigations must proceed in accordance with law and there is no scope of granting any exemption in favour of the petitioner from the ambit of such investigation.
8. It has been argued by the learned Advocate for the petitioner that the C.B.I. which is governed by the provisions of the [ACT] has no jurisdiction to conduct investigation in the present cases. Both the learned Judges of the Division Bench have however held in their separate judgements that the C.B.I is competent to investigate on the basis of the F.I.Rs. The order of the learned Judges show that the contention that C.B.I, has no jurisdiction is not acceptable in view of the notification dated the 18th July, 1988 regarding offences notified under [SECTION] and [SECTION] read with [SECTION] of the [ACT]. Nothing has been shown to us on behalf of the petitioner as to why we should hold differently from the separate but concurrent findings of the learned Judges of the Division Bench that the C. B.I. has jurisdiction to investigate the matters. That the C.B.I, has jurisdiction to investigate into such matters as are involved in the present case has also been held by a learned single Judge of this Court after detailed examination in [PRECEDENT]. Finding no reason to hold otherwise, we record our opinion that the C.B.I., has jurisdiction to investigate into the matter.
9. It has been argued on behalf of the petitioner that since neither the petitioner nor Mr. [ENTITY], the Branch Manager of the bank is a public servant, the [ACT] is not attracted here. It may be mentioned here that the [ACT] was in force when the F.I. Rs were lodged but subsequently the [ACT] came into force. [SECTION] of the [ACT] provides that 'public servant' means a public servant as defined in [SECTION] of the [ACT]. It is argued on behalf of the petitioner that the Manager of the bank, the bank not being a nationalised one, is not a public servant. In this connection we may however refer to [SECTION] of the [ACT] which reads thus :
"[SECTION] Chairman, Director etc. to be public servant for the purposes of [SECTION] of the [ACT] :- every Chairman, Diretor, Auditor, Liquidator, Manager and any other employee of a banking company shall be deemed to be a public servant for the purposes of [SECTION] of the [ACT]."
It may be mentioned here that [SECTION] of the [ACT] contains [SECTION]. It may also be mentioned here that [SECTION] of the [ACT] defines offences which are rather aggravated or diversified forms of offences contained in some of the Sections in [SECTION] of the [ACT]. Therefore, the logical corollary is that [SECTION] of the [ACT] also makes an employee of a bank a public servant within the meaning of [SECTION] [ACT] for the purpose of [ACT]. It may be mentioned here that the provisions of [SECTION] of the [ACT] have been engrafted with some modifications in the [ACT] and therefore an employee of a bank will now be deemed to be a public servant within the meaning of the provisions contained in the [ACT] also.
10. It is alleged on behalf of the petitioner that the lodging of the F.I.Rs and the investigations are mala fide acts resorted to at the instance of a former Central Minister and that is also a reason why the F.I.Rs and the investigations should be quashed. This allegation of the petitioner is yet to be substantiated by evidence and such allegation by itself can not be a ground for quashing the F.I.Rs or the investigations. The Supreme Court in the State of Haryana v. [ENTITY] (supra) in paragraph 114 made the following observation which deserves notice in this connection :
"At this stage when there are only allegations and recriminations but no evidence, this court can not anticipate the result of the investigation and render a finding on the question of mala fides on the materials at present available. Therefore, we are unable to see any force in the contention that the complaint should be thrown over-board on the mere unsubstantaited plea of mala fides. Even assuming that [ENTITY] has laid the complaint only on account of his personal animosity that, by itself, will not be a ground to discard the complaint containing serious allegations which have to be tested and weighed after the evidence is collected. In this conection, the following view expressed by [ENTITY], C.J. in [PRECEDENT] may be referred to :
'It is a well established proposition of law that a criminal prosecution, if otherwise justifiable and based upon adequate evidence does not become vitiated on account of mala fides or political vendetta of the first informant or the complainant'.
Beyond the above, we do not wish to add anything more".
We also have nothing more to add than to say on the basis of the aforesaid authoritative Supreme Court decisions that the suggested mala fides can, not be a ground for quashing the investigations. [SECTION] [ACT] as amended by the [ACT] is however not yet attracted in this case because as submitted, there has not been yet any arrest or appearance of any accused in the case as contemplated under the said [SECTION].
11. In the result the revisional application fails and the same is dismissed. All iaterim orders, if any, stand vacated. There will however be no order as to costs.
[ENTITY], J.
12. I agree.
[ENTITY], J.
13. I agree.