Calcutta High Court (Appellete Side)
Monoranjan Roy vs The State Of West Bengal & Anr on 30 June, 2022
Form J(2) IN THE HIGH COURT AT CALCUTTA
Criminal Revisional Jurisdiction
Appellate Side
Present :
The Hon'ble Justice Bibek Chaudhuri
CRR 1643 of 2022
Monoranjan Roy
Vs.
The State of West Bengal & Anr.
For the petitioner: Mr. Milon Mukherjee, Sr. Adv.
Mr. Biswajit Manna
For the State: Mr. Ranabir Roy Chowdhury
Mr. Mainak Gupta
Item No.06.
Heard & Judgment on: 30.06.2022
Bibek Chaudhuri, J.
Affidavit of service be kept with the record.
It appears from the affidavit of service that the private
opposite party No.2 refused to accept the notice of the instant
proceeding in spite of the same being tendered to him and the
registered envelope was returned with postal remark "refused".
Therefore, this Court can very well take the presumption of
Section 27 of the General Clauses Act and holds that the notice
of the instant proceeding is presumed to have been served upon
the opposite party No.2.
Mr. Ranabir Roy Chowdhury, learned advocate for the
State is present to contest the instant application. The
application is taken up for hearing.
A short but pertinent question is involved in the instant
criminal revision viz., whether the trial of an accused shall be
conducted by the learned Special Judge for committing offence
under Section 409 of the Indian Penal Code in view of the West
Bengal Criminal Law Amendment (Special Courts) Act, 1949.
Before dealing with the question directly it is necessary to
mention that the accused/petitioner collected huge amount of
money from the general members of public in so-called lucrative
investment scheme. Subsequently, it is alleged that the said
money was misappropriated.
It is submitted by Mr. Milon Mukherjee, learned senior
counsel on behalf of the petitioner that as per schedule
appended to the Criminal Procedure Code Section 409 of the
Indian Penal Code is triable by the learned Magistrate. However,
in view of the West Bengal Criminal Law Amendment (Special
Courts) Act, 1949, "offence punishable under Section 409 of the
Indian Penal Code, if committed by a public servant or by a
person dealing with property belonging to Government as an
agent of Government or by a person dealing with property
belonging to a Government Company as defined in Section 617
of the Company's Act, 1956 as an agent of such Company in
respect of property -
with which he is entrusted, or over which he has dominion
in his capacity of a public servant or in the way of his business
as such agent" is liable to be prosecuted by the learned Special
Judge.
In the instant case, the accused is neither a public servant.
He did not deal with the property belonging to Government as
an agent of the Government. He is also not a person dealing
with the property with which he is entrusted belonging to a
Government Company. Therefore, the petitioner cannot be tried
by the learned Special Judge. However, he may be tried for the
same offence by the learned Magistrate.
In support of his contention Mr. Mukherjee relies on a
decision of a Co-ordinate Bench in the case of Swarup
Mazumder versus The State of West Bengal and Anr.
reported in (2015) 1 C Cr. L. R (Cal) 429.
Mr. Ranabir Roy Chowdhury, learned P.P.-in-charge, on the
other hand, takes me to page 82 onwards of the Banking
Regulation Act, 1949 which is annexed with the instant
revisional application. Mr. Roy Chowdhury specially refers to
Section 5(b) of the Banking Regulation Act, 1949 which defines
banking in the following words:-
"5(b) Banking means the accepting, for the purpose of
lending or investment, of deposits of money from the public,
repayable on demand or otherwise, and withdrawal by cheque,
draft, order or otherwise."
It is pointed out by Mr. Roy Chowdhury that the accused
accepted money for the purpose of investment from the general
members of the public. However, when the depositors wanted to
withdraw the said money, they fail.
Therefore, the petitioner is liable to be prosecuted under
Section 409 of the Indian Penal Code.
Even if the submission of Mr. Roy Chowdhury is accepted,
the petitioner is to be held having his business as a banker and
he commits criminal breach of trust. In case of a banker of
private nature West Bengal Criminal Law Amendment (Special
Courts) Act, 1949 is not applicable since he is not a public
servant or a person dealing with property belonging to
Government. Admittedly, the property or money with which the
petitioner was handling does not belong to the Government. It
belongs to private individuals.
In view of such circumstances, I am in agreement with Mr.
Mukherjee that Debra Police Station Case No.234/2017 dated 2 nd
May, 2017 under Sections 120B/406/409 of the Indian Penal
Code is triable by the learned Magistrate.
For the reasons stated above, the instant criminal revision
is allowed on contest, however, without costs.
The learned Special Judge, 1st Court, Paschim Midnapore is
directed to send back the record of Special Trial No.9 of 2021 to
the Court of the learned Chief Judicial Magistrate, Paschim
Medinipur for trial and disposal.
(Bibek Chaudhuri, J.)
