Divya Lal @ Dibya Lal vs The State Of West Bengal & Anr
2022 Latest Caselaw 8121 Cal

08.12.2022 S/L No.8 KS

C.R.R. 1722 of 2021 With IA No. CRAN 1 of 2021

Divya Lal @ Dibya Lal

-Vs.-

The State of West Bengal & Anr.

Mr. Sekhar Kumar Basu, Sr. Adv.

Mr. Antarikshya Basu Mr. Sayan Mukherjee Ms. Madhumita Basak .....For the Petitioner Mr. Sudip Ghosh Mr. Bitasok Banerjee .....For the State Mr. Mrinal Kanti Mukherjee .....For the O.P. No.2

It has been informed to this Court that till date the charge has not

been framed by the Learned A.C.J.M., Asansol in connection with

Asansol South Police Station Case No.289 of 2015 dated 07.07.2015

under Sections 409/ 420/ 468/ 469/ 471/ 120B and 34 of the Indian Penal

Code alongwith the added Sections being 498A/ 506 of the Indian Penal

Code.

There is a delay in challenging the order wherein the petitioner's

prayer for discharge was refused by the Learned A.C.J.M., Asansol.

Mr. Basu, learned senior advocate appearing for the petitioner

prays for condoning the delay of 1076 days in preferring the revisional

application. There are reasons assigned in the application for the delay.

Mr. Mukherjee, learned advocate appearing for the private

opposite party and Mr. Ghosh, learned advocate appearing for the State

opposes the prayer for condoning the delay and submits that the delay

has been unexplained and, as such, allowing the petitioner now to argue

on the issue of discharge would delay the proceedings before the

Learned Trial Court.

I have considered the submissions advanced by the parties and

also considered that till date the charge has not been framed by the

Learned A.C.J.M., Asansol.

Having taking into account the impugned order, I am of the

opinion that the delay which has occurred in preferring the revisional

application should be condoned.

Accordingly, IA No. CRAN 1 of 2021 is allowed.

The main revisional application is thereafter taken up for hearing.

The three issues which have been canvassed by the petitioner in the

present revisional application are that firstly, the case was initiated on

the basis of an application under Section 156(3) of the Code of Criminal

Procedure pursuant to which Asansol South Police Station Case No.289

of 2015 dated 07.07.2015 was registered for investigation and the said

application under Section 156(3) was not accompanied by an affidavit

thereby violating the law laid down in the case of Priyanka Srivastava

& Anr. Vs. State of Uttar Pradesh & Ors. reported in (2015) 6 SCC 287,

288. Additionally, it has been submitted that no information was sent

to the Superintendent of Police or the Commissioner of Police of the

concerned Zone thereby violating the provisions of Section 154(3) of the

Code of Criminal Procedure which is also the position of law and

reiterated by the Hon'ble Supreme Court in the case of Lalita Kumari

Vs. State of U.P. (2014) 2 SCC 1 and Priyanka Srivastava (supra).

Second point which has been argued by the learned Senior

advocate is that the Learned A.C.J.M., Asnasol while rejecting the

application for discharge under Section 239 of the Code of Criminal

Procedure did not take into account any materials which included the

statement of the witnesses as well as the documents collected by the

Investigating Agency and erroneously arrived at its finding on a

presumption that since the police authorities/Investigating authorities

have not discharged the petitioner and cognizance has already taken,

then in that case, the cognizance should have been taken on the

materials already presented by the Investigating Agency/Prosecuting

Agency.

Thirdly, it has been canvassed that the present petitioner namely,

Mrs. Divya Lal happens to be Manager of the Bank - the act complained

of was in discharge of official duty and it was incumbent to adhere and

comply with the provisions of Section 197 of the Code of Criminal

Procedure.

Mr. Mukherjee, learned advocate appearing for the private

opposite party opposes such contention and submits that in this case the

original receipts relating to Fixed Deposit and the Recurring Deposit

were lying with the complainant and her husband being one of the

accused in collusion and conspiracy with the present petitioner who

happens to be Manager of the Bank encashed the said fixed deposit and

recurring deposit by abusing his official position wherein the present

petitioner being the Branch Manager aided and abetted him. It has been

submitted that as the act and conduct of the present accused do not

come within the discharge of an official duty which is an illegal act, the

provisions of Section 197 of the Code of Criminal Procedure are not at

all attracted. To that effect, learned advocate appearing for the private

opposite party relied upon in the case of M. Gopalakrishnan Vs. State

by Addl. S.P. CBI, B.S. & F.C., Bangalore reported in AIR 209 SC 2015.

Mr. Ghosh, learned advocate appearing for the State produces

the Case Diary drawing the attention of the Court to the relevant

statement of the witnesses under Section 161 of the Code of Criminal

Procedure, the seizure lists, the seized materials/items mentioned in the

seizure lists and submitted that most of the documents which have been

seized by the Investigating Officer was pursuant to the production

made by this petitioner being the Branch Manager. Learned advocate

further submits that the debit vouchers which have been seized would

reflect that the Fixed Deposit and the Recurring Deposit were encashed

without consent of the holders therein and the Branch Manager as well

as Debasis Mukherjee, the other accused abused their official position

for being involved in such illegal act thereby depriving the complainant

of her legal entitlement. It has been contended on behalf of the State

that the complainant entered into a contract with the bank and,

therefore, if any, loss has been suffered by the complainant bank is

responsible for the act complained of. Learned advocate adduced that

in this case the originals were in possession of the complainant, as such,

she was under the belief that her assets are safe. However, behind her

back the same has been encashed for which the Branch Manager being

the Branch Head and without whose permission the funds cannot be

transmitted to any other account has been done in this case, which

exposes the Branch Manager/present petitioner to face rigors of criminal

trial.

I have considered the submissions of the learned senior advocate

appearing for the petitioner, learned advocate appearing for the private

opposite party as well as learned advocate appearing for the State. I

have also considered the Case Diary and the impugned order dated

17.06.2017 passed by the Learned A.C.J.M., Asnasol. So far as the first

issue which has been canvassed by the petitioner that the complainant

did not adhere to the provisions of Section 154(3) of the Code of

Criminal Procedure and also did not owe the responsibility in respect of

the statements made in the application under Section 156(3) of the Code

of Criminal Procedure by way of an affidavit which has been settled by

the Hon'ble Supreme Court in the judgment of Priyanka Srivastava, I

hold that there has been a change of circumstance in this case as the

police authorities have collected materials and arrived at their finding

under Section 173(2) of the Code of Criminal Procedure, at this stage, to

consider that a criminal case should be quashed only because of the

reason that the first information report was registered not in accordance

with law settled by the Hon'ble Supreme Court would be to set back the

clock for re-exercising the same set of acts by the police authorities.

Materials collected by the Investigating Authority in this case reflects

that an offence has been made out whether such offence would point

finger to the petitioner or not is a separate issue.

Having regard to the totality of the circumstances as a Court of

Law, I am of the opinion that the continuance of the proceedings cannot

be scuttled and the non-compliance by the complainant would be

treated as a curable irregularity.

So far as the other two issues are concerned, I find from the

records that the learned senior advocate has rightly pointed out that the

Learned A.C.J.M., Asansol did not take into account the materials relied

upon by the prosecution in the statements/documents under Section 207

of the Code of Criminal Procedure. It is only after considering those

materials, the Court would be able to take a decision whether the

provisions of Section 197 of the Code of Criminal Procedure are to be

considered at this stage or at the subsequent stage. As it has been

informed to this Court that charge till date has not been framed by the

Learned A.C.J.M., Asnasol, I am of the opinion that this Court should

not enter into the merits of the statements of the witnesses, documents

or seizures which have been effected by the Investigating Agency and

the Learned Trial Court at the stage of consideration of the charges

would point out the complicity of the petitioner in a case where there

are charges under Section 409 of the Indian Penal Code but arising out

of matrimonial discord/dispute. More than five years have been passed

since the case has not progressed. It has also been informed that the

next date has been fixed in the month of February, 2023. Learned

A.C.J.M., Asnasol is directed to consider the observations made above

while deciding on the issue of framing of charges. If it is not possible to

complete the process of Section 240 of the Code of Criminal Procedure

in the month of February, 2023, I direct that the whole process must be

completed by 15th March, 2023.

With the aforesaid observations, C.R.R. 1722 of 2021 is disposed

of.

Pending applications, if any, are consequently disposed of.

All parties are directed to act on the server copy of this order

downloaded from the official website of this Hon'ble Court.

(Tirthankar Ghosh, J.)