Gujarat High Court
Girishbhai Ambalal Rathod vs State Of Gujarat on 17 August, 2023
Bench: J. C. Doshi
NEUTRAL CITATION
R/CR.MA/30834/2016 JUDGMENT DATED: 17/08/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 30834 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J. C. DOSHI
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1 Whether Reporters of Local Papers may be allowed YES
to see the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy NO
of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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GIRISHBHAI AMBALAL RATHOD
Versus
STATE OF GUJARAT & 1 other(s)
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Appearance:
MR HRIDAY BUCH(2372) for the Applicant(s) No. 1
DS AFF.NOT FILED (R) for the Respondent(s) No. 2
NOTICE NOT RECD BACK for the Respondent(s) No. 1,2
MR RONAK RAVAL APP for the Respondent(s) No. 1
RULE SERVED BY DS for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 17/08/2023
ORAL JUDGMENT
The present petition seeks quashment of the FIR being I
CR No.80 of 2016 registered with Dehgam Police Station for the
offences punishable under Sections 409 and 114 of the IPC
which came to be registered by the respondent No.2 - org.
complainant.
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2. Briefly stated; the case of the petitioner is that the
petitioner was serving as Deputy Manager (Accounts) in the
State Bank of India, Dehgam Branch; while one Mr.Harishbhai
Maganbhai Parmar who was shown accused No.1 was serving
Head Cash Officer in the said Branch and it is their joint
responsibility to tally accounts (currency) in the Bank. That on
19/12/2006, a surprise checking was conducted by the Nodal
Office, SBI, Ahmedabad and upon verification of the account, it
was found that there is a deficit amount of Rs.4,52,500/- which
were in denomination of coins. It is further stated that petitioner
and said Mr.Harishbhai holds the responsibility to keep all the
currency notes in the currency chest. Since the deficit of
Rs.4,52,500/- has been recorded in the surprise visit; upon
verification Bank Manager filed the FIR before Dehgam Police
Station alleging aforesaid offence.
3. Heard learned Advocate Mr.Hriday Buch for the petitioner
and learned APP Mr.Ronak Raval for respondent - State.
4. At the outset, it may be noted that the order dated
27/12/2016 passed by this Court indicates that Mr.Dipak
Gaurishanker Joshi serving as Branch Manager with the SBI
was personally present before the Court and learned APP was
also heard while passing the said order.
5. Learned Advocate for the petitioner Mr.Buch would submit
two fold submissions. Firstly; that indisputably the amount of
Rs.4,52,500/- for which the alleged offence is registered, came
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back to the SBI and amount is deposited in the Bank. He would
further submit that the alleged incident took place in the year
2006; but the FIR was lodged in the year 2016; almost after ten
years. He would submit that on reading of the contents of the
FIR, it appears that the delay in lodging the FIR is not properly
explained. He would submit that on the contrary, as per order
dated 27/12/2016 passed by this Court, this Court has inquired
as to why the FIR is filed lately and the first informant gave reply
that SBI had no intention to initiate any criminal proceedings,
more particularly, having regard to the finding recorded in the
departmental inquiry; but since the RBI directed the SBI to lodge
the FIR, the Bank thought it fit to lodge the FIR after delayed
period of ten years from the date of alleged incident. He would
further submit that looking to such aspect, by no stretch of
imagination, the offence of criminal breach of trust punishable
under Section 409 of the IPC is made out.
5.1 Learned Advocate Mr.Buch would submit that the
petitioner is retired person on being superannuated and is living
his retirement life. It is also sought to be canvassed that the
petitioner who is facing departmental proceeding on same set of
evidence came to be exonerated from the charge of criminal
breach of trust. Thus, in view of decision in case of M/s.
Videocon Industries Ltd. vs. State of Maharashtra [AIR 2016 SC
2843], more particularly, paragraph 18 thereof, he would submit
that in case of exoneration on merits, independent proceeding
where the allegations are unfounded on the set of evidence, the
criminal prosecution on the same set of facts cannot be allowed
to continue.
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5.2 Mainly on above submissions, learned Advocate for the
petitioner submits to allow the present petition as the petitioner
got retired and has not misappropriated the money of the Bank;
else it would seriously and adversely hamper the life of the
petitioner.
5.3 In light of these submissions, learned Advocate Mr.Buch
for the petitioner seeks adjudication of this petition in favour of
the petitioner.
6. Vehemently, learned APP Mr.Ronak Raval for respondent -
State would submit that at earlier point of time vide letter dated
20/04/2007 Vide O/W No.DEH/NISC-2007-08-26, a written
complaint was forwarded to the concerned Police Station; but the
Police Station has not taken into consideration the said written
complaint. He would further submit that looking to this aspect,
it appears that the information was lodged as soon as incident
took place; but the Police has not recorded the FIR and thus no
fault of the SBI can be found in filing the complaint late.
6.1 Learned APP would further submit that in-fact reading of
the outcome of the departmental inquiry would indicate that the
punishment has been imposed upon the petitioner in
departmental proceeding in tune of reduction by one stage in the
time scale of pay for one years, with the direction that the
petitioner will not earn increments to pay during the period of
such reduction and on expiry of such period the reduction will
have the effect of postponing the future increments of his pay.
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Thus, the circumstances spell that even in the departmental
inquiry, it was found that the petitioner has committed the
mischief as alleged and it is therefore submitted that the FIR
prima facie found to be true. He would submit that sufficient
material is available to send the petitioner to trial. Thus,
resultantly the petitioner has failed to make out any case for
exercise of powers under Section 482 of the Code to quash the
FIR. He would submit that the defence of the petitioner can be
examined during course of trial; but under the jurisdiction of
Section 482 of the Code, it is not possible to examine the
complaint / FIR in juxta position of various probabilities raised
by the petitioner. Upon such submissions, learned APP prays to
dismiss the present petition.
7. At the outset, let refer to order dated 27/12/2016 passed
by this Court.
"1. Shri Dipak Gaurishanker Joshi serving as a 'Branch Manager'
with the State Bank of Inida, Dehgam i.e. the respondent No.2 is
personally present in the Court. He informs the Court that in the
departmental inquiry, which was initiated against the applicant
herein, the applicant has been exonerated. He points out that the
findings recorded by the Inquiry Officer are accepted by the Bank.
The findings recorded by the Inquiry Officer are as under:
"In view of the above, I am inclined to consider the following
points also while deciding upon the penalty to be imposed on
Shri G. A. Rathod, Officer MMGS-II.
(i) It is no where mentioned in the charge sheet that fraud
has been perpetrated by the Charge-sheeted Officer (CSO).
(ii) The procedural lapses are observed on the part of the
Charge-sheeted officer.
(iii) The Charge-sheeted officer could not take complete
charge of Rupee Coins / Small Coin balances while taking over
permanent charge as Branch Accountant on 21.07.2006, due
to improper storage of the coins bags in the strong room.
(iv) No monetary loss has occurred to the Bank as the entire
amount of cash storage has been recovered equally from the
Cash officer and the Charge-sheeted officer. The Charge-
sheeted officer has accepted, in his submission dated
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08/10/2008 on the IA's Report, the recovery of Rs.2,26,250/-
from his as penalty to him.
(v) As per the investigation report, Shri H.M. Parmar,
Deputy Manager (Cash) did not perform his duty as Cash
Officer with due diligence and sincerely. Certain act on the
part of Shri Parmar mentioned under para 8 of the
investigation officer which has resulted into this shortage of
cash in the Currency Chest and Small Coins Depot balances.
Keeping in mind the whole matter in totality, I am of the
considered view that the ends of justice would be adequately
meet by imposing the following penalty of Shri G. A. Rathod.
"Reduction by one stage in the time scale of pay for one year,
with further direction that the officer will not earn increments
to pay during the period of such reduction and on expiry of
such period the reduction will have the effect of postponing the
future increments of his pay" in terms of Rule No 67(f) of State
Bank of India Officers' Service Rules from the date of service of
this order.".
2. In reply to the question put by the Court as to why it took ten
years for the Bank to lodge the F.I.R. I am told that the Bank had no
intention as such to initiate any criminal prosecution, more
particularly, having regard to the findings recorded in the
departmental inquiry. However, the Reserve Bank of India directed
the Bank to lodge the F.I.R. In such circumstances, the Bank
thought fit to lodge the F.I.R. after a period of ten years from the date
of the alleged incident.
3. Let Rule be issued to the respondents, returnable on 21 st April,
2017. Ms. Thakore, the learned Assistant Public Prosecutor waives
service of notice of rule for and on behalf of the respondent No.1. - the
State of Gujarat. The respondent No.2 be served directly through the
Investigating Officer of the concerned Police Station. Direct Service is
permitted.
4. Let there be an ad-interim order in terms of para 15(G)."
8. The said order indicates that SBI was not inclined to file
the FIR; but the FIR came to be lodged at the insistence of RBI
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after a period of 10 years from the date of alleged incident. It is
undoubted that on the set of circumstance spelling in the FIR,
on same set of circumstances, the departmental proceeding was
initiated against the petitioner and in the said departmental
proceeding as reproduced herein above, it clearly mentions that
no monetary loss has occurred to the Bank as the entire amount
of cash shortage has been recovered. It is further recorded that
the petitioner could not take charge of Rupee Coins / small coin
balances while taking over permanent charge as Branch
Accountant on 21/07/2006 due to improper storage of the coins
bags in the strong room. The above finding has been accepted by
the SBI.
9. Now, insofar as reliance placed upon M/s. Videocon
Industries Ltd. (supra) is concerned, in paragraph 18 and 19, the
Hon'ble Apex court has observed and held following:
"18. In the ultimate eventuate, the following principles were culled out
from the decisions referred to in the judgment. The majority has put it
thus:-
"The ratio which can be culled out from these decisions can broadly
be stated as follows:
(i) Adjudication proceedings and criminal prosecution can be
launched simultaneously;
(ii) Decision in adjudication proceedings is not necessary before
initiating criminal prosecution;
(iii) Adjudication proceedings and criminal proceedings are
independent in nature to each other;
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(iv) The finding against the person facing prosecution in the
adjudication proceedings is not binding on the proceeding for criminal
prosecution;
(v) Adjudication proceedings by the Enforcement Directorate is not
prosecution by a competent court of law to attract the provisions
of Article 20(2) of the Constitution or Section 300 of the Code of
Criminal Procedure;
(vi) The finding in the adjudication proceedings in favour of the
person facing trial for identical violation will depend upon the nature
of finding. If the exoneration in adjudication proceedings is on
technical ground and not on merit, prosecution may continue; and
(vii) In case of exoneration, however, on merits where the allegation is
found to be not sustainable at all and the person held innocent,
criminal prosecution on the same set of facts and circumstances
cannot be allowed to continue, the underlying principle being the
higher standard of proof in criminal cases".
19. Clarifying the position, the majority observed that the yardstick
would be to judge as to whether the allegation in the adjudication
proceedings as well as the proceeding for prosecution is identical and
the exoneration of the person concerned in the adjudication
proceedings is on merits. In case it is found on merit that there is no
contravention of the provisions of the Act in the adjudication
proceedings, the trial of the person concerned shall be an abuse of
the process of the court. On the basis of the aforesaid principles, the
majority proceeded to analyse the factual matrix and analysed the
finding recorded by the adjudicating authority and opined when there
is a finding by the Enforcement Directorate in the adjudication
proceeding that there is no contravention of any of the provisions of
the Act, it would be unjust and an abuse of the process of the court to
permit the Enforcement Directorate to continue with the criminal
prosecution."
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10. What perceives from the aforesaid ratio is that when the
allegations founded in the departmental inquiry under criminal
case are based on same set of circumstances if the allegations in
departmental proceedings leads to exoneration, the criminal
proceedings cannot be allowed to continue upon underlying
principle that criminal proceeding requires higher standard of
proof.
11. In the present case, in the departmental proceeding though
punishment was imposed upon the petitioner, it favours the
petitioner insofar as the allegations under Section 409 of the IPC
is concerned.
12. At this juncture, let refer to Section 409 of the IPC.
"409. Criminal breach of trust by public servant, or by banker,
merchant or agent.--Whoever, being in any manner entrusted with
property, or with any dominion over property in his capacity of a
public servant or in the way of his business as a banker, merchant,
factor, broker, attorney or agent, commits criminal breach of trust in
respect of that property, shall be punished with 1[imprisonment for
life], or with imprisonment of either description for a term which may
extend to ten years, and shall also be liable to fine."
12.1 In order to prove the offence under Section 409 of the IPC,
the prosecution is undoubted to prove that the accused, public
servant or a banker or agent was entrusted with the property
which he is duly bound to account for and that he committed
criminal breach of trust [see: Sadhupati Nageswara Rao vs State
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Of Andhra Pradesh [2012 8 SCC 547].
13. The finding in the departmental proceeding indicates that
the petitioner was not entrusted the property. Thus, the basic
ingredients of offence punishable under Section 409 of the IPC is
lacking. In addition thereof, there is ten years of yawning and
unexplained gap for registration of the FIR.
14. No doubt, while exercising the powers under Section 482 of
the Cr.PC the complaint / FIR has to be read as a whole.
However, if reading of the FIR as a whole does not constitute the
elements of alleged offence, the Court owes the duty to scuttle
such vexatious proceedings. In the recent decision of the Hon'ble
Apex Court in the case of Mahmood Ali & Ors vs. State of UP &
Ors rendered in Criminal Appeal No.2341 OF 2023 (Arising out
of S.L.P. (Criminal) No.12459 of 2022) in paragraph 12 it has
been held and observed as under:
"12. At this stage, we would like to observe something important.
Whenever an accused comes before the Court invoking either the
inherent powers under Section 482 of the Code of Criminal Procedure
(CrPC) or extraordinary jurisdiction under Article 226 of the
Constitution to get the FIR or the criminal proceedings quashed
essentially on the ground that such proceedings are manifestly
frivolous or vexatious or instituted with the ulterior motive for
wreaking vengeance, then in such circumstances the Court owes a
duty to look into the FIR with care and a little more closely. We say so
because once the complainant decides to proceed against the accused
with an ulterior motive for wreaking personal vengeance, etc., then he
would ensure that the FIR/complaint is very well drafted with all the
necessary pleadings. The complainant would ensure that the
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averments made in the FIR/complaint are such that they disclose the
necessary ingredients to constitute the alleged offence. Therefore, it
will not be just enough for the Court to look into the averments made
in the FIR/complaint alone for the purpose of ascertaining whether
the necessary ingredients to constitute the alleged offence are
disclosed or not. In frivolous or vexatious proceedings, the Court owes
a duty to look into many other attending circumstances emerging
from the record of the case over and above the averments and, if need
be, with due care and circumspection try to read in between the lines.
The Court while exercising its jurisdiction under Section 482 of the
CrPC or Article 226 of the Constitution need not restrict itself only to
the stage of a case but is empowered to take into account the overall
circumstances leading to the initiation/registration of the case as well
as the materials collected in the course of investigation. Take for
instance the case on hand. Multiple FIRs have been registered over a
period of time. It is in the background of such circumstances the
registration of multiple FIRs assumes importance, thereby attracting
the issue of wreaking vengeance out of private or personal grudge as
alleged."
15. In the result, the petition succeeds. FIR being I CR No.80
of 2016 registered with Dehgam Police Station for the offences
punishable under Sections 409 and 114 of the IPC and the
further proceedings arising out thereof are quashed and set
aside. Rule is made absolute to the aforesaid extent.
(J. C. DOSHI,J)
sompura
