IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.22358 of 2007 SHARDANAN JHA, S/o- Late Ravi Nath Jha, R/o-village-Jogiyara, P.S. Jalley, Distt- Darbhanga. ………………… Petitioner Versus 1. STATE OF BIHAR 2. Sri Gopal ji Verma, Branch Manger, State Bank of India, Parihar, P.S.- Parihar, Distt- Sitamarhi ………………….. Opposite Parties For the Petitioner:-Mr. N.K.Agrawal (Sr.Advocate) Mr. Ashok Kumar Jha, Advocate For the Bank :-Mr. Kaushlendra Kumar Sinha Mr. Sunil Kumar Singh ----------- 8 19.05.2009 Heard learned Senior Counsel for the petitioner, learned counsel representing State Bank of India and learned A.P.P for the State. The Revisional order dated 31.3.2007 passed in Cr. Revision No. 66 of 2004/16 of 2005 by Additional Sessions Judge, F.T.C.No.2, Sitamarhi as well as the order dated 15.3.2004 by virtue of which the learned Magistrate has rejected the petition of discharge filed on behalf of the petitioner in a case which arose Parihar P.S. Case No. 60/98 which is subject matter of challenge in the present application. On the basis of a complaint made by a S.B. Account Holder namely, Ram Gulam Mandal that a sum of Rs. 25,000/- was fraudulently withdrawn from his account on 29.8.1998 by way of withdrawal form, the F.I.R. in question came to be lodged. Allegations were made against 2 three persons, in the F.I.R. The matter was investigated and charge sheet came to be filed against those three persons. This petitioner who happened to be the accountant at the relevant time of the Bank has been subsequently, charge sheeted after the police obtained information of an expert that the signature on the withdrawal form is not of the S.B. Account Holder but somebody else. When cognizance was taken the petitioner moved the Court of the learned Magistrate for his discharge who refused to discharge him and the said became a subject matter of challenge in criminal revision which was dismissed vide order dated 31.3.2007 Submission of learned counsel for the petitioner is that the petitioner at the relevant time was an accountant and had a responsibility to verify the signature of the account holders on any withdrawal which had to be made from any account. In this regard he submits that he verified the signature all right and when he did not find much variance in the signature and he bonafidely passed the said withdrawal form on which payment came to be made by the Cashier of the Bank. Petitioner 3 submits that there is no evidence to show that he had any mens rea or had participated in this matter in connivance with the other accused persons to facilitate fraudulent withdrawal of money from the amount of the S.B. Account Holder namely, Ram Gulam Mandal in connivance with other accused persons. Learned counsel further submits that in absence of any mens rea or any conduct which may not link with the crime he ought not to be punished or prosecuted. In support of such contention it is also urged that a departmental enquiry was also held by the Bank in the matter. On the basis of the finding recorded by the Enquiry Officer punishment of withholding one increment came to be passed. The punishment order came to be passed because the Enquiry Officer came to a considered opinion that it is a case of negligence on the part of the petitioner as he was not diligent enough while verifying the signature. There is nothing on record to show the complicity of this petitioner and involvement to facilitate withdrawal of the said amount. I have gone through the order impugned as well as perused the diary where the evidence 4 has been discussed, there is nothing to show by way of evidence about the complicity of the petitioner in the alleged crime. Only interference has been drawn on the ground that the petitioner had passed the withdrawal form and verified the signature. From the same the element of guilt does not emerge. Negligent conduct may not be equal to a criminal act if the necessary intent or the material is not available to link the crime with the present petitioner. In absence of any categorical evidence having been available on record mere omission or lack of diligence on the part of the petitioner may not be a ground for his prosecution in the case concerned. The petitioner has made out a case for interference. The impugned orders indicated in earlier part of orders stands quashed and the application is allowed. Bibhash (Ajay Kumar Tripathi, J.)