Criminal Miscellanious No.28433 OF 2004 In the matter of an application under Section 482 of the Code of Criminal Procedure. OM PRAKASH AGRAWAL, SON OF SHRI NIRANJAN PRASAD AGARWAL, THE THEN SENIOR MANAGER, CANARA BANK, BIHARSHARIF, NALANDA, RESIDENT OF STATION ROAD, NEAR NEW BATA MORE, P.S. KOTWALI, DISTRICT GAYA. ---------------------------------------------------------------------------------------------------- PETITIONER Versus THE STATE OF BIHAR. --------------------------------------------------------------------------------------------- OPPOSITE PARTY P R E S E N T THE HON'BLE JUSTICE SMT. SHEEMA ALI KHAN S.A. Khan, J. This application has been filed against the order dated 13.2.2004 by which the Court has taken cognizance under Sections 420, 406 and 120B of the Indian Penal Code in Bihar P.S. Case No. 232 of 2003. 2. A First Information Report was instituted by the then Senior Manager, Canara Bank, Biharsharif in which it is said that during May 2003, 14 loans under the SGSY Scheme was granted to the villagers of Raja Kuan, Baswanbigha, Uprawan and Mananki. The loanees withdrew the money on various dates but thereafter did not pay the installments. When the inspection team along with the branch officials visited the villagers they found that no assets have been created by any of the beneficiaries. As such the case has been instituted for misutilization of the funds of the Bank as well as the subsidy by the Government. 3. The petitioner who was the Senior Branch Manager, just prior to the filing of the First Information Report was at the helm of affairs, he was not made accused which would 2 be apparent from what stated hereinafter. 4. The loan was granted as per the Swarn Jayanti Gram Swarozgar Yojana. This Yojana was created by the Ministry of Rural Development, Government of India, New Delhi. It is in a booklet form. The scheme envisages that those persons falling below the poverty line would be granted loan. In order to afford maximum participation for the poor, a three member team consisting of the Block Development Officer or his representative, the Banker and the Sarpanch should visit each of the panchayats and a list would be prepared. It also envisages that the Block Development Officer shall arrange to have the applications filled up by the selected candidates and thereafter the applications would be presented to the Bank. Clause 3.26 of the Scheme further envisages that once the applications are received in the Bank, the sanction of the loan should be made within 15 days. Those persons who were entitled to receive the loans would be granted subsidy which will be back-ended, Banks would disburse the full project cost including subsidy to the swarozgaris as loan. The procedure has been described at paragraph 4.17 of the booklet. The Bank subsidy envisages that once the loanees begin to repay the loan, the last two installments would be paid by the Bank from the subsidy fund. This was the benefit, that was to be given to the persons who had received the loans. The loanees on the other hand were to create assets out of the loan amount. 5. As stated above, the inspecting team found that in fact the assets were not created and the loanees had not paid the 3 installments of the loan granted to them. It goes without saying that the Bank did not pay the subsidy to such loans. After enquiry, case diary was prepared and the petitioner has been made accused by the Officer Incharge on the misconception that the petitioner was the person who was Incharge for selecting the loanees. This is not a fact which would be apparent from the procedure as prescribed under the guidelines. 6. Learned counsel for the petitioner submits that in fact no offence is made out, against the petitioner, as the ingredients of Section 420 of the Indian Penal Code are not made out in the facts of this case. To constitute an offence under Section 420 of the Indian Penal Code, there must be (i) deception by any person (ii) fraudulently or dishonestly inducing any person to deliver any property to any person, or to consent that any person shall retain any property and finally intentionally inducing a person to do or omit to do anything which he would not otherwise do or omit. 7. Learned counsel for the petitioner submits that the facts would disclose that none of the ingredients which constitute an offence under Section 420 are made out in the facts of this case. It is nobody’s case that the petitioner was part of the team which selected the candidates for the purposes of granting loan. Undoubtedly there was a person representing the Bank, but that person was not the petitioner. The Block Development Officer or his representative who were present in the said meetings in the Gram Panchayat or and the Sarpanch were the persons who were 4 really responsible for selecting and identifying the candidates who came below the poverty line. In any event a bank employee is not supposed to know the persons who fall below the poverty line, as he is not involved in the administrative capacity in the government at block or village level. The selection having been made, a bank employee cannot guarantee that such persons, would utilize the money in the manner and for the purpose for which it was meant. Therefore, it cannot be said that a case under Section 406 or for that matter criminal breach of trust would be made out against the petitioner. The ingredients of criminal breach of trust are (i) Entrusting a person with property or any of property (ii) the person entrusted (a) dishonestly misappropriates or converts the property to his own use (b) dishonestly misuses or disposes of that property or willfully instigate a person to violate any direction prescribed by law or acts in a manner which is in violation of a legal contract made, cheating the discharge of the trust. 8. In the present case the petitioner only acted as per the scheme and once the names were recommended, allowed the loan amount. The petitioner was not responsible or could not be held to be responsible under Section 120B of the Indian Penal Code. To allege that the petitioner was in conspiracy with the loanees or with the Block Development Officer is completely unjustified and unreasonable in the facts of the present case. There is neither any direct or indirect involvement of the petitioner regarding the process of selection or the like. It was at the level of the village or at the level of the Block office that the loanees 5 prepared their documents, which were then forwarded to the Bank for release of the loan. 9. In such circumstances, this Court finds that in fact no offence is made out under Sections 406, 420 and 120B of the Indian Penal Code. The order dated 13.2.2004, passed by the Additional Chief Judicial Magistrate, Biharsharif in Bihar P.S. Case No. 232 of 2003 is quashed. This application is allowed. 10. The Lower Court Records may be sent back forthwith. Patna High Court, 19th of May, 2011 N.A.F.R./Sanjay ( Sheema Ali Khan, J.)