Bombay High Court
Taramati Sadanand Pathak vs Bank Of India And Ors on 24 October, 2016
Bench: R.P. Mohite-Dere
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nsc.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION NO.91 OF 2016
IN
CRIMINAL WRIT PETITION NO.3933 OF 2012
Taramati Sadanand Pathak
Age: 67 years, Occup: Educator/HRD Consultant,
R/at C 14 Greenpark Apts,
Salisbury Park,
Pune - 411 037. ...Applicant
Versus
1. Bank of India
Z.O. 1162, Shivajinagar,
Near Observatory,
Ganeshkhind,
Pune - 411 005
2. M.Kumar (Employee of bank)
3. P.Barve (Employee of bank - suspended)
4. Mr.Pandit (Employee of bank)
5. Mr.Upadhya (Employee of bank)
6. State of Maharashtra ...Respondents
Ms.Taramati Sadanand Pathak, Applicant in person.
Mr.Anand Pai a/w Mr.Aniket Mokashi i/b Haresh Mehta & Co., for
Respondent No.1.
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Mr.Neel Helekar, for Respondent Nos.2 and 4.
Ms.Pallavi Dabholkar, A.P.P for the Respondent-State
CORAM : REVATI MOHITE DERE, J.
RESERVED ON : 16th SEPTEMBER, 2016
PRONOUNCED ON : 24th OCTOBER, 2016
ORDER :
1. Heard
Ms.Taramati Pathak, the Applicant who appears in
person, learned counsel for the respondent no.1 and the learned APP.
2. By this application, the applicant seeks the following prayers:-
a) The Records of Criminal WP 3933/2012 be kindly perused;
b) Consent be kindly given to the lower court, to issue show cause
notice to discharged accused, directing enquiry, as per law, to
facilitate their arraignment, and be tried with accused No.3;
c) That this trial be expedited, in view of the ailing applicant's age
and health, having undergone surgeries, even on head, affecting
memory;
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d) Any other orders deemed fit and fair, be kindly passed, to
render justice to the ailing lady Senior citizen, defrauded since
2007 of her legal funds."
3. According to Ms.Pathak, the applicant who appears in person,
she has come across some new material (documents) after the respondent
nos.1, 2 and 4 were discharged from the said case. She urged that the said
new documents are incriminating and throw light on the complicity of the
discharged respondents. She submitted that the said documents were
suppressed by the respondent no.1 - bank, when respondent nos.1, 2 and 4
were discharged by this Court. She urged that as there was suppression of
vital documents, the Judgment and Order of this Court discharging the
respondent no.1 - bank and respondent nos.2 and 4, as well as the order of
the Apex Court, dismissing the SLP, preferred by the applicant, are a
nullity. She submitted that in her re-examination certain new documents
have come on record, which will show the fraud committed on the Court,
by the discharged respondents. She relied on the Constitution Bench
Judgment of the Apex Court in the case of Hardeep Singh v/s State of
Punjab and Others1 in support of her submission. According to her, this
1 (2014) 3 SCC 92
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Court under Section 398 r/w Section 300(5) of the Code of Criminal
Procedure can order an enquiry into the fraud committed by the discharged
respondents, so that they are arraigned as accused alongwith the respondent
no.3 - Pramod Barve. The applicant placed reliance on certain documents
which are annexed to the application and 3 documents which were tendered
by her, during the course of arguments on 16 th September, 2016. The
applicant submitted that she has been re-examined by the trial Court and
that she has also filed an application under Section 319, which is pending
adjudication before the trial Court. According to her, although the said
application is pending before the trial Court, an enquiry under Section 398
r/w 300(5) of Code of Criminal Procedure can only be ordered by this
Court which discharged the respondents and not by the trial Court.
4. Mr.Anand Pai, learned counsel for the respondent no.1-bank
opposed the application. He submitted that the application filed by the
applicant in this Court is completely misconceived. He submitted that
respondent no.1-bank alongwith respondent nos.2 and 4 were discharged by
the learned Additional Chief Judicial Magistrate, Pune in Regular Criminal
Complaint No.5281 of 2009 vide Judgment and Order dated 17 th December,
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2011. He submitted that against the said order discharging the respondent
nos.1, 2 and 4, the applicant herein, filed a Revision Application, being
Criminal Revision Application No.92 of 2012, in the Sessions Court and
the learned Additional Sessions Judge, Pune, vide Judgment and Order
dated 9th October, 2012, was pleased to dismiss the said Revision
Application. He further submitted that being aggrieved and dissatisfied
with the said orders, the applicant filed a writ petition in this Court, being
Criminal Writ Petition
ig No.3933 of 2012 and that this Court
(Coram:U.V.Bakre,J.), after hearing the parties was pleased to dismiss the
said Writ Petition and as such the orders discharging the Respondent Nos.1,
2 and 4 were confirmed. He submitted that thereafter, the applicant moved
the Apex Court challenging all the said orders, however, the SLP was also
dismissed. According to the learned counsel, none of the documents
produced by the applicant, in anyway, show the complicity of the
discharged respondents. He submitted that the applicant although has urged
before this Court that she was re-examined by the trial Court, no document
showing her re-examination has been placed on record.
5. Perused the papers. The aforesaid application is filed in a
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disposed of Writ Petition. It is not in dispute that the applicant had filed a
private complaint in the Court of Additional Chief Judicial Magistrate,
Pune, as against the respondents in 2008, alleging offences punishable
under Sections 403, 406, 420, 504 r/w 120B of the Indian Penal Code. The
learned Additional Chief Judicial Magistrate, Pune, was pleased to issue
directions under Section 156(3) of the Code of Criminal Procedure vide
order dated 1st August, 2008, after recording the verification of the
applicant. After investigation, the police submitted a report dated 22 nd June,
2009, before the trial Court. Pursuant thereto, C.R.No.453 of 2007 was
registered with the Vishrambaug Police Station, Pune, as against Pramod
Barve, respondent no.3 herein, an employee of the respondent no.1 - Bank
of India, alleging offences under Sections 409, 420, 465, 467, 468, 471,
473, 511 of the Indian Penal Code. Respondent no.3 was thereafter arrested
and charge-sheet was filed against him. It appears that in 2009 after
recording the evidence of the applicant (original complainant), the learned
Magistrate issued process against the respondent nos.1, 2 and 4, for the
alleged offences punishable under Sections 403, 406, 420, 504, r/w 120B of
the Indian Penal Code. The evidence of the applicant (original complainant)
recorded by the trial Court was treated as evidence before charge. The
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examination-in-chief of the applicant was recorded in 2011 and the
applicant (original complainant) was thereafter cross-examined.
6. After recording the evidence before charge and after hearing
the parties, the learned Additional Chief Judicial Magistrate, Pune was
pleased to discharge respondent nos.1, 2 and 4 from the said case, vide
Judgment and Order dated 17th December, 2011, passed in Regular
Criminal Complaint No.5281 of 2009. The learned Magistrate, however,
directed that the case could proceed against respondent no.3. The said order
discharging the respondent nos.1, 2 and 4 was challenged by the applicant
before the Sessions Court in Criminal Revision Application No.92 of 2012.
The learned Additional Sessions Judge, Pune, vide Judgment and order
dated 9th October, 2012 dismissed the said Revision Application preferred
by the applicant by observing, that the complainant (applicant) had failed to
show the involvement of respondent nos.1, 2 and 4 by satisfactory
evidence on record. The aforesaid orders were challenged by the applicant
in writ petition, being Criminal Writ Petition No.3933 of 2012. This Court
(Coram:U.V.Bakre,J.) vide Judgment and Order dated 15th October, 2013,
was pleased to dismiss the said Writ Petition by a reasoned order. Against
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the aforesaid orders, the applicant preferred an SLP, which was also
dismissed by the Apex Court. According to the applicant, she was re-
examined by the trial Court and that her application filed under Section
319 of the Code of Criminal Procedure, is pending adjudication before the
trial Court. However, the said documents pertaining to her re-examination
nor the application filed by the applicant, under Section 319 in the trial
Court have been placed on record or produced by the applicant before me
during the hearing of this application. According to the applicant, it was
not necessary for her to place the said documents on record, as she had
filed the aforesaid application under Section 398 r/w 300(5) of Code of
Criminal Procedure Code, calling for an enquiry. According to her, the
power to order an enquiry under Section 398 r/w 300(5) vests only with the
High Court. The documents on which reliance is placed are on page nos.6,
8, 9A, 9B of the application and 3 documents which were tendered across
the bar on 16th September, 2016. Documents which are on pages nos.6 and
8 are letters addressed by respondent no.3 - Pramod Barve to the applicant
and respondent no.3 - Barve to the Respondent No.1 - Bank of India
respectively. There is nothing in the said letters to show the complicity of
the respondent nos.1, 2 and 4 in the case. Infact, the respondent no.3 -
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Barve against whom prosecution is pending before the trial Court, has in
the letters, which are on pages nos.6 and 8 admitted his own responsibility
and has confessed that he had used the fixed deposit amount given to him,
by the Customer Ms.T.S.Pathak (applicant) and her family for his urgent
family needs. The document on page nos.9A and 9B also do not in anyway
show the complicity of the respondent Nos.1, 2 and 4 warranting an
enquiry. Similarly, the documents which were tendered on 16th September,
2016 are documents which will have to be proved by the applicant in trial.
The said documents prima-facie, do not show the complicity of the
respondent nos.1, 2 and 4. On the basis of the said documents, as on today,
no direction is warranted. There must be some prima-facie material to
direct an enquiry. Reliance placed on the Judgment of the Apex Court in
the case of Hardeep Singh (supra), for ordering an enquiry under Section
398 r/w 300(5) of Cr.P.C., is misplaced and misconceived in the facts of this
case. No ground is made out to grant any reliefs as sought for in the
application.
7. The Application is rejected and disposed of as such.
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8. The trial Court shall conduct the case, on its own merits, in
accordance with law. The trial is expedited.
9. All concerned to act on the authenticated copy of this order.
REVATI MOHITE DERE, J.
