IN THE HIGH COURT OF JUDICATURE AT PATNA CR.MISC. NO.35814 OF 2009 1. PRAHLAD SINGH, SON OF LATE JAMUNA SINGH, BRANCH MANAGER, STATE BANK OF INDIA, AGRICULTURAL BRANCH, RAJENDRA NAGAR, POLICE STATION NAWADA, DISTRICT NAWADA 2. SHYAM SUNDAR PRASAD BARNWAL, SON OF LATE TIRLOKI LAL, SPECIAL ASSISTANT, STATE BANK OF INDIA, AGRICULTURAL BRANCH, RAJENDRA NAGAR, POLICE STATION NAWADA, DISTRICT NAWADA ………………………………………………………………………….…….PETITIONERS VERSUS 1. THE STATE OF BIHAR 2. DEVENDRA PRASAD YADAV, SON OF JAGO PRASAD YADAV, RESIDENT OF RAJENDRA NAGAR, POLICE STATION AND DISTRICT NAWADA ……………………………………………………………………..….OPPOSITE PARTIES ********* 4 02/02/2010 Heard learned Counsel for the petitioner. In this case, notices have been issued to the complainant-Opposite Party No. 2 and the Counsel has filed appearance. This matter has been posted for admission on two successive dates, however, nobody has appeared on behalf of the complainant-Opposite Party No. 2 on both occasions. Infact, the matter was passed over for appearance of the Counsel for the Opposite Party. A complaint petition was filed in which it is stated that the petitioner in his joint account had a sum of Rs. 75,664.88/-. On 04.05.2009, he withdrew Rs. 5400/- from the ATM. The balance on 04.05.2009 was Rs. 70,264.88/-. Again on 16.06.2009, the complainant withdrew Rs. 400/-. The balance was Rs. 20,645.88/- which surprised the complainant. On 11.07.2009, he 2 took out the balance sheet which showed a sum of Rs. 21,663.88/-. On 12.07.2009, the balance amount was Rs. 46,663.88/- indicating that Rs. 25,000/- had been deposited back into the account. On the basis of the aforesaid facts, the complaint was instituted. After examination of the complainant on S.A., the Court below called for the records from the bank and the statement account of the ATM along with the account of the complainant as well as the accounts of the National Insurance Company Limited was produced before the Court below for examination of the facts. The case of the petitioners who are the Branch Manager and the Special Assistant respectively of the State Bank of India, Agricultural Branch, Rajendra Nagar, Nawada is that the complainant has two accounts, one is the single holder account, whereas the other is the joint account with his daughter Kamini Kaushal. The National Insurance Company Limited, Nawada had deposited six cheques in the complainant’s single bank account on 05.08.2008. The total amount deposited was Rs. 24,219/- It is said that due to system failure, this amount was twice credited to the account of the complainant which is clear from Annexure-4 at item 3 nos. 1 and 4. Due to the aforesaid failure in the system or whatever it may be called, the petitioner became richer by Rs. 24,219/- Thereafter, the national Insurance Company Limited, Nawada informed the State Bank of India, ADB, Nawada that Rs. 24,219/- had been twice debited from its accounts and requested the bank to rectify the matter. In the mean time, it transpires that the petitioner had withdrawn the entire amount from his single holder account. The bank vide Annexures 6 and 6/A addressed two letters to the complainant on 30.03.2009 and 22.04.2009 respectively asking him to deposit the said amount in his bank account. The complainant predictably did not do so. Thereafter, there was a meeting with the complainant and after verbal agreement, it was decided that the petitioner should transfer the amount from his joint account to the single account which was thereafter be credited to the account of the National Insurance Company Limited. Accordingly, the statements of the accounts of the complainant and the National Insurance Company Limited which is on record as Annexures 4, 8 and 9 would indicate the transactions. Annexure 4, the single account, which shows at item nos. 18 and 19 that Rs. 24,219/- was credited to this account on 20.05.2009and 4 Annexure 8 which is the joint account of the complainant shows that on the same day i.e. on 20.05.2009, Rs. 24,219/- was debited from the single account and was credited to the account of the National Insurance Company Limited (Annexure 9 at item no. 8). The order of the bank to put on hold the operation of the joint account was also removed on 20.05.2009 and as such, the complainant found on 12.07.2009 that he had a balance of Rs. 46,663.88/-. In the aforesaid background and on the basis of the documents which are unimpeachable document and which cannot be doubted by the Court as these bank documents are relied upon for all money transactions, it cannot be said that the petitioners were guilty of an offence under Section 409 of the Indian Penal Code. At the most, it can be said that there was an irregularity in the bank and someone in the bank was responsible for being careless and allowing the system failure to occur. As far as the allegation that the petitioner has committed breach of trust, in the opinion of this Court, the ingredients for committing breach of trust are not made out. Firstly, the complainant cannot by any stretch of imagination establish that there was an intention to dishonestly misappropriate the property or 5 convert it to his own use. For the purpose of committing criminal breach of trust, requirements are that (a) there must be entrustment of the person with the property, (b) dishonest misappropriation by converting the property to his own use, (c) dishonestly using the property or willfully suffering others to do so in violation of any law or enactment. The ingredients of this section are thus not made out as far as the petitioners are concerned. They have neither misappropriated the property nor have they converted the property for their own personal use. It is a question of simple accounting. In my view, no offence under Section 409 of the Indian Penal Code would be made out in the factual background of this case. Accordingly, the order dated 08.09.2009 passed by the Judicial Magistrate, 1st Class, Nawada in Complaint Case No. C 930 of 2009 is quashed. In the result, this application is allowed. Anand ( Sheema Ali Khan, J.)