IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.14901 of 2008 Rakesh Kumar, son of Sri Gyananand Sharma, the then Branch Manager, ICICI Bank Limited, Patna Branch, Kashi Palace, Patna, at present posted as Zonal Training Manager, Regional Office, ICICI Bank Limited, Ground Floor, NBCC Palace, Bhisham Pitamah Marg, Pragati Vihar, P.S. Lodhi Road, New Delhi………………………………………………………Petitioner. Versus 1. The State Of Bihar. 2. Sheo Kumar Khemani, son of Late Kashi Prasad Khemani, 701, Pushpanjali Venkatesh Apartment, Budha Marg, P.S. Kotwali, District-Patna. ………………………………………………..Opposite Parties. -------------- For the Petitioner : Mr. Kumar Onkar Nath, Advocate. For the State : Mr. R.B.S. Pahepuri, A.P.P. For the O.P. No.2 : M/s. Arjun Kumar and Alok Kumar, Advocates. ---------------- With Cr.Misc. No.14903 of 2008 Anikesh @ Aniket Suman, son of Sri Ashok Kumar, the then Cashier, ICICI Bank Limited, Kashi Palace, Patna, at present working as Senior Officer, ICICI Bank Limited, Kankarbagh Branch, H-39, Doctor’s Colony, P.S. Kankarbagh, District- Patna-20………………………………………………….Petitioner. Versus 1. The State Of Bihar. 2. Sheo Kumar Khemani, sole proprietor, Metro Oil Agency, Metro Oil Agency, Patna, presently residing in 701, Pushpanjali Venkatesh Apartment, Budh Marg, Patna. …………………………………………………Opposite Parties. ---------------- For the Petitioner : Mr. Kumar Onkar Nath, Advocate. For the State : Mr. Jharkhandi Upadhyay, A.P.P. For the O.P. No.2 : M/s. Arjun Kumar and Alok Kumar, Advocates. ------------------ with Cr.Misc. No.14923 of 2008 Niraj Kumar @ Niraj Jha, son of Sri Niranjan Jha, the then Branch Operation Manager, ICICI Bank Limited, Kashi Palace, Patna, at present posted as Branch Manager, ICICI Bank 2 Limited, Boring Road Branch, “Sumitra Sadan”, West to Boring Road Chowk, P.S. Shri Krishnapuri, District-Patna. ………………………………………………………………Petitioner. Versus 1. The State Of Bihar. 2. Sheo Kumari Khemani, Sole Proprietor Metro Oil Agency, Metro Oil Agency, Patna, at present residing in 701, Pushpanjali Venkatesh Apartment, Budh Marg, Patna. ………………………………………………….Opposite Parties. ----------- For the Petitioner : Mr. Kumar Onkar Nath, Advocate. For the State : Mr. Jharkhandi Upadhyay, A.P.P. For O.P. No.2 : M/s. Arjun Kumar and Alok Kumar, Advocates. --------------------------- O R D E R 11. 15.11.2011. All these three Criminal Miscellaneous Applications have been filed under Section 482 of the Code of Criminal Procedure against the summoning order dated 11.3.2004, passed under Section 204 of the Code of Criminal Procedure in Complaint Case No.286(C) of 2004 by the court of Sri O.P. Pandey, Judicial Magistrate, First Class, Patna. As such, they have been heard together and are being disposed of by this common order. 2. The facts of the case, leading to these applications, are that the complainant-opposite party no.2, Sheo Kumar Khemani, filed the complaint case, numbered as Complaint Case No.286(C) of 2004 with the contention that he is the sole proprietor of M/s. Metro Oil Agencies 3 and has account no.625965034397 in the ICICI Bank Limited, Kashi Place, Dak Bunglow Road, Patna. Rs.1,02,920/- was balance in his account and on 6.10.2003, he deposited Rs.2,30,000/- through pay-in-slip to credit in his account and on being satisfied by the Cashier at the Cash Counter, receipt/counter foil of the pay-in-slip was handed over to him. As such, after depositing the said amount the balance amount in his account raised to Rs.3,32,920/- on 6.10.2003. Thereafter, on the same day, i.e., 6.10.2003, he made request to the accused no.2, Sunil Jha, the Branch Manager of the said Bank, for the issuance of two Banker’s Cheques, one for Rs.1,01,000/- and other for Rs.2,10,000/- in favour of Indian Oil Corporation Limited, Marketing Division, Patna, payable at Patna. The accused no.2, Sunil Jha, the Branch Manager, after verifying the balance in his account directed for the issuance of the two Banker’s Cheques and, accordingly, two Banker’s Cheques, one for Rs.1,01,000/- and other for Rs.2,10,000/- duly signed by the authorized signatory, accused no.5, Niraj Kumar (petitioner of Criminal Misc. No.14923 of 2008) were issued. The complainant-opposite party no.2 in terms of his business 4 transaction handed over the aforesaid two Banker’s Cheques to the Indian Oil Corporation Limited and two Banker’s Cheques were sent for collection in its favour. While one Banker’s Cheque valued Rs.1,01,000/- was honoured but another Banker’s Cheque bearing no.106045 valued Rs.2,10,000/- was dishonoured by the ICICI Bank and Rs.1000/- was imposed on the complainant-opposite party no.2 as a penalty on account of dishonour of Banker’s Cheque. When the complainant-opposite party no.2 came to know about the dishonour of the Banker’s Cheque issued against the credit outstanding balance, he approached the accused no.2, Sunil Jha, the Branch Manager of the said Bank and also submitted the photo copy of the receipt/counterfoil of the pay-in-slip and also the copy of the statement of the account for the period from 4.10.2003 to 6.10.2003 as furnished by the Bank through E-mail. The accused nos.1 to 6, after verifying the entire records realized their mistake in dishonouring the Banker’s Cheque and assured to rectify their mistake within a short time but all in vain. Thereafter, the complainant-opposite party no.2 sent a notice to the accused persons through his lawyer on 21.10.2003 for 5 redressal of his claim but the accused persons remained sitting tight over the matter. Subsequently, the matter was referred to the Banking Ombudsman, State of Bihar and Jharkhand, where the matter was numbered as Case No.135 of 2003 in which the accused no.1 took futile efforts to cover up mischief. Thereafter, the Deputy Secretary of Banking Ombudsman vide letter dated 1.1.2004 directed the complainant-opposite party no.2 to seek remedy before the competent court of law. As such, the acts of accused persons are full of cheating, fraud and mischief. 3. After filing of the complaint petition by the complainant- opposite party no.2, numbered as Complaint Case No.286(C) of 2004, the court of Sri O.P. Pandey, Judicial Magistrate, First Class, Patna, on inquiry, summoned the accused persons, named in the complaint petition, including the petitioners under Section 204 of the Code of Criminal Procedure finding prima facie case under Sections 409 and 120(B) of the Indian Penal Code and Section 138 of the Negotiable Instruments Act through the impugned order dated 11.3.2004. 4. It has jointly been submitted on behalf of the 6 petitioners of all the aforesaid Criminal Miscellaneous Applications that, in fact, the Cashier, who was on duty, accepted the amount of Rs.1,30,000/- only to the complainant-opposite party no.2 and he appears to have overlooked the digit of Rs.2,30,000/- and issued the counterfoil and taking undue advantage of overlooking the same by the Cashier, the complainant-opposite party no.2 had got issued two Banker’s Cheques on the same day, i.e., 6.10.2003. On the same day on finding the shortage of cash Rs.1,00,000/-, the vouchers of that day was searched and finally error was detected regarding in depositing of cash in the account no.625905034397 of complainant- opposite party no.2 in the name of Metro Oil Agency. The details of cash deposit as per pay-in-slip was in the denomination of Rs.500X260 but in total column entry was made as Rs.2,30,000/- in pay-in-slip and on the same day the complainant-opposite party no.2 was immediately informed by the Bankers on phone and request was made to him either to deposit Rs.1,00,000/- in his account or to get the pay-order cancelled and Marketing Head of the Indian Oil Corporation Limited, Marketing Division, Patna, through letter dated 11.10.2003 was informed that 7 since a sum of Rs.1,00,000/- was not deposited by the complainant-opposite party no.2, the Bank has no option but to dishonour the instrument and the party in question is at fault. It has also jointly been submitted that the complainant-opposite party no.2 only to save his skin has filed this false case against all the bank officials including the petitioners of all these applications. It is further submitted on behalf of the petitioner, Rakesh Kumar, the petitioner of Criminal Misc. No.14901 of 2008, that the occurrence is said to be in between 6.10.2003 to 15.10.2003, whereas this petitioner has joined in the ICICI Bank Limited, Kashi Place Branch, Dak Bunglow Road, Patna, on 4.11.2003 and, as such, this petitioner has no concern with the alleged offence. Moreover, from perusal of the complaint petition itself, it is clear that there is no specific allegation against this petitioner to receive the cash or to issue the alleged Banker’s Cheques. It is further submitted on behalf of the petitioner, Anikesh alias Aniket Suman, of Criminal Misc. No.14903 of 2008 that while this petitioner who is Cashier in the ICICI Bank Limited, Kashi Place Branch, Dak Bunglow 8 Road, Patna, was on duty in the second shift. As such, he was no concern about collecting the money or issuing the Banker’s cheques. It has further been submitted on behalf of the petitioner, Niraj Kumar alias Niraj Jha, of Criminal Misc. No.14923 of 2008 that he was not the Cashier on the alleged date and he was only on duty to assist the Branch Manager, hence, he is not liable in any manner for the alleged offence. 5. On the other hand, learned counsel appearing on behalf of opposite party no.2 submitted that the learned Magistrate has rightly summoned the accused persons, named in the complaint petition, including the petitioners of all these applications finding the prima facie case under Sections 409 and 120(B) of the Indian Penal Code and Section 138 of the Negotiable Instruments Act on perusal of the complaint petition and the statements of the witnesses as recorded in course of inquiry but he has not disputed the joining of the petitioner, Rakesh Kumar, of Criminal Misc. No.14901 of 2008 on 4.11.2003 in the ICICI Bank Limited, Kashi Place Branch, Dak Bunglow Road, Patna. 9 6. It appears from the complaint petition that the allegation of the complainant-opposite party no.2 is that in Account No.625965034397 of the ICICI Bank Limited, Kashi Place Branch, Dak Bunglow Road, Patna, on 5.10.2003, the balance was Rs.1,02,920/- and on 6.10.2003, he deposited Rs.2,30,000/- and, accordingly, the Cashier of the said Bank issued the receipt/counterfoil of the pay-in-slip and on the request of the complainant- opposite party no.2, the Branch Manager of the said Bank issued two Banker’s Cheques, one for Rs.1,01,000/-and another for Rs.2,10,000/- in favour of Indian Oil Corporation Limited, Marketing Division, Patna, payable at Patna, but only Banker’s Cheque of Rs.1,01,000/- was honoured and the other Cheque of Rs.2,10,000/- was dishonoured and penalty of Rs.1000/- was imposed on him and allegation has been made about committing fraud, mischief and cheating against the bank officials regarding Rs.1,00,000/-. It also appears from the complaint petition that the occurrence is said to be in between 6.10.2003 to 15.10.2003. It appears from Annexure-‘2’ to Criminal Misc. No.14901 of 2008 filed on behalf of the petitioner, Rakesh 10 Kumar that the petitioner, Rakesh Kumar, has assumed the charge as Branch Manager of the ICICI Bank Limited, Kashi Place Branch, Dak Bunglow Road, Patna, on 4.11.2003. As such, he was not posted as Branch Manager of the ICICI Bank Limited, Kashi Palace Branch, Dak Bunglow Road, Patna, during the alleged period of occurrence and in the complaint petition there is no specific averment against him also. So far as the petitioner, Anikesh alias Aniket Suman, of Criminal Misc. No.14903 of 2008 and the petitioner, Niraj Kumar alias Niraj Jha, of Criminal Misc. No.14923 of 2008 are concerned, they were posted in the ICICI Bank Limited, Kashi Place Branch, Dak Bunglow Road, Patna, as a Cashier and the Branch Operation Manager respectively and there is allegation of receiving cash Rs.2,30,000/- by the Cashier and issuing two cheques by the petitioner, Niraj Kumar alias Niraj Jha, of Criminal Misc. No.14923 of 2008. 7. Under the aforesaid facts and the circumstances of the case, summoning the petitioner, Rakesh Kumar, of Criminal Misc. No.14901 of 2008, through the impugned order dated 11.3.2004 passed in Complaint Case 11 No.286(C) of 2004 by the court of Sri O.P. Pandey, Judicial Magistrate, First Class, Patna, appears to be an abuse of the process of the court. Accordingly, the impugned order dated 11.3.2004 passed in Complaint Case No.286(C) of 2004 by the court of Sri O.P. Pandey, Judicial Magistrate, First Class, Patna, with respect to the petitioner, Rakesh Kumar, of Criminal Misc. No.14901 of 2008 is hereby quashed and the Criminal Misc. No.14901 of 2008 filed on his behalf is allowed. So far as the petitioner, Anikesh alias Aniket Suman, of Criminal Misc. No.14903 of 2008 and the petitioner, Niraj Kumar alias Niraj Jha, of Criminal Misc. No.14923 of 2008 are concerned, I find no illegality in the impugned order dated 11.3.2004 passed in Complaint Case No.286(C) of 2004 by the court of Sri O.P. Pandey, Judicial Magistrate, First Class, Patna, summoning the said petitioners. Accordingly, both Criminal Misc. Applications are dismissed. P.S. (Rajendra Kumar Mishra, J)