1 S.B. Cr. Misc. Petition No.1041/2003 Krishna Gopal vs State of Rajasthan DATE OF ORDER : -1.2.2008 HON'BLE MR. PRAKASH TATIA, J. Mr.KS Rathore,for the petitioner. Mr.VR Mehta, Public Prosecutor. <><><> Heard learned counsel for the parties. Brief facts of the case are that a fixed deposit receipt (in short FDR) was obtained by M/s. Mohd. Bux Sokat Ali from the Bank of Baroda, Branch Pali for which FRD No.001708 was issued by the Bank of Baroda. It is alleged that the said FDR was issued in the name of Secretary, Rajasthan State Agricultural Marketing Board through account holder M/s.Mohd. Bux Sokat Ali. It is alleged that when department gave certain instructions to the bank for renewal of the said FDR, the department was informed that the amount has already been withdrawn by partner of M/s. Mohd. Bux Sokat Ali then FIR was lodged and it was found in investigation that the FDR, which was in the name of Secretary, Rajasthan State Agricultural Marketing Board was shown to be lost by the partner of the firm and he obtained a duplicate FDR, which was issued by the petitioner as a Manager of the Bank, but this duplicate receipt was not issued in the name of the Secretary, Rajasthan State Agricultural Marketing 2 Board, but in the name of the firm only and, thereafter, after about three years, the amount of the FDR was withdrawn by the partner of the firm, who is co-accused in this criminal case. In view of the FIR dated 1st Oct, 1999, police investigated the matter and thereafter, submitted the charge-sheet in the court holding the petitioner and co-accused guilty for committing offence under Sections 420 and 467 read with Section 120B IPC. After submitting the charge-sheet, the court took cognizance on 11th April, 2000 and framed the charges against the accused persons including against the petitioner on 3rd March, 2001. Thereafter, the case was fixed for the evidence of the prosecution and one of the witnesses was examined in the court on 16th Nov., 2002 whose statement remained incomplete and at this stage, the petitioner approached this Court by filing this petition under Section 482 Cr.P.C. for quashing the prosecution initiated in criminal case no.97/2000, facts of which are referred above. Learned counsel for the petitioner vehemently submitted that admittedly the amount of the FDR amounting to Rs.15,000/- was deposited by the firm and it was the property of the firm. The original FDR was with the complainant department. The partner of the firm applied for issuance of duplicate FDR and the petitioner bonafidely issued the said duplicate 3 FDR, but inadvertently, he might have committed mistake of not wiring “Secretary, Rajasthan State Agricultural Marketing Board”, but it is clear from the facts of the case that there is no allegation of any dishonest intention of the petitioner at the time when he issued that duplicate FDR in the name of the firm. The bonafide of the petitioner is fortified from the fact that the said duplicate FDR was not used for encashing the amount of the fixed deposit for about three years. It is also submitted that in case, when there is no allegation of any criminal intention of the petitioner then the prosecution cannot proceed in the criminal case. Learned counsel for the petitioner heavily relied upon the judgment of the Hon'ble Apex Court delivered in the case of State of UP through CBI SPE Lucknow & Anr. Vs. RK Shrivastava & Ors reported in AIR 1989 SC 2222 wherein the Hon'ble Apex Court in a matter where the amount of about Rs.54,600/- was withdrawn from the bank account and there were allegation of involvement of the officer of the bank, the Hon'ble Apex Court quashed the prosecution after observing that it is well settled principle of law that if the allegations made in the FIR are taken at their face value and accepted in their entirety do not constitute an offence, the criminal proceedings instituted on the basis of such FIR should be quashed. 4 According to learned counsel for the petitioner there was no dishonest intention of the petitioner so as to cause loss to the bank or to any third person nor it resulted into gain to the petitioner in any manner and there is no allegation of gain to the petitioner. It is submitted that the duplicate FDR, which was issued by the petitioner was renewed by the subsequent bank officers time to time and that fact also has come on record from the evidence of the prosecution itself. I considered the submissions of learned counsel for the petitioner and perused the facts of the case. It is true that if no case is made out from the allegations made in the FIR or in the complaint then the person cannot be proceeded to prosecute. It is settled law that at the time of examining whether the court can proceed with the prosecution, only the allegation levelled and the material available on record as produced by the prosecution alone can be looked into as in the present case also, the case of the petitioner accused is only that from entire material available on record, no offence is made out against the petitioner. Without commenting on the truth in the allegations it will be relevant to mention here that after investigation in the challan it has been 5 alleged that FDR was in the name of Secretary, Rajasthan State Agricultural Marketing Board and duplicate FDR was issued in the name of the firm only. There is allegation that it was the positive act of the petitioner accused himself in issuing that said duplicate FDR in the name of firm only. After investigation the challan has already been filed by the prosecution against the petitioner and, thereafter, the court after application of mind framed the charges. The evidence had already started, the matter was pending before the trial court for evidence of the prosecution witnesses and one of the witnesses was examined and his cross-examination was deferred on the request of one of the accused only and at this stage, the prosecution has been challenged. Therefore, in the facts of the case, it cannot be said that the allegations levelled in the FIR or the material placed before the court below there is no allegation against the petitioner of committing an offence nor there appears to be a reason for interference of this Court at this belated stage when FIR was not challenged in time, the charges has already been framed and the order of framing of charges has not been challenged and, thereafter, the evidence started. So far as judgment of RK Srivastava & Ors (supra) is concerned, the facts of above case are 6 very relevant. The Hon'ble Apex Court in para no.2 clearly observed that the allegations in the FIR appear to be vague and although it is alleged that the respondent and the accused P.C. Saxena made false credit entries in the books of accounts of the Bank and connected credit and debit vouchers were also prepared and passed by them and the Hon'ble Apex Court further observed that but no particulars of the same have been given by the petitioner. In addition to above, the Hon'ble Apex Court clearly observed that when the said sum of Rs.54,600/- had been allowed to be withdrawn by the said Shri Sarwant Singh and his wife, necessary entries had to be made in the books of accounts, but it is not understandable how these entries can be characterised as false entries. The Hon'ble Apex Court observed that no document has been referred to in the FIR as the outcome of forgery. Contrary to it, in the present case, loss to the department is clear allegation in the FIR because of the withdrawal of the amount of the FDR, which is alleged to has been caused by the alleged act of the petitioner. On these allegations, if the prosecution is proceeding against the petitioner, it cannot be said to be abuse of process of court. It is made explicitly clear that none of the observations is on merit of the case except that the 7 case cannot be said to be having no allegation against the petitioner so as to call for interference by this Count under Section 482 Cr.P.C. In view of the above reasons, I do not find any merit in this petition and the same is hereby dismissed. The copy of this order be sent to the trial court forthwith. (PRAKASH TATIA), J. c.p.Goyal/-