Mr. P. K. Biswas vs Mr. Ratan Datta
2021 Latest Caselaw 476 Tri

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                   HIGH COURT OF TRIPURA
                         AGARTALA
                           A.B No.15 of 2021

Smt. Subhra Chakraborty
                                               ............... Petitiopner(s).
                                Vrs.
The State of Tripura.
                                               ............... Respondent(s).
For Petitioner(s) :       Mr. P. K. Biswas, Sr. Advocate.
                          Mr. P. Majumder, Advocate.
For Respondent(s):        Mr. Ratan Datta, Public Prosecutor.
                          Mr. S. Ghosh, Addl. Public Prosecutor.

      THE HON'BLE MR. JUSTICE S. G. CHATTOPADHYAY

                               ORDER

07/04/2021

1. This application under Section 438 of the Code of

Criminal Procedure, 1973 (Cr. P.C in short) has been filed for

granting pre arrest bail to the petitioner who is anticipating arrest in

Amtali Police Station Case No.35 of 2021 under Section 409 of the

Indian Penal Code.

2. Heard Mr. P.K. Biswas, learned Sr. advocate appearing

for the petitioner along with Mr. P. Majumder, learned Advocate.

Heard Mr. Ratan Datta, learned Public Prosecutor appearing for the

State respondent along with Mr. S. Ghosh, learned Additional Public

Prosecutor.

3. The factual context of the case is as under:

Smt. Nabanita Chowdhury, Branch Manager of Tripura

State Co-operative Bank Limited of its Bikramnagar Branch lodged

FIR with the Officer in-charge of Amtali Police station on 20.03.2021

alleging, inter alia, that on 19.03.2021 when the informant Branch

Manager approached the petitioner who was the cashier in the bank

for check up and verification of cash of the said branch, the

petitioner denied to show the cash account to the Branch Manager

which raised suspicion of the informant Branch Manager. Then the

said informant Branch Manager along with other bank staff counted

the entire cash of the branch and after verification and scrutiny of

the cash, shortage of an amount of approximately Rs.15,32,046/-

was detected. The entire amount was hard cash which was handled

by the petitioner. The matter was immediately informed to the head

office of the bank by the informant Branch manager. The petitioner

then admitted her guilt and submitted a written declaration that she

would refund the entire amount defrauded by her within

31.03.2021. The informant Branch Manager requested the Officer-

in-charge of the police station for investigation of the case and

prosecution of the accused petitioner.

4. Based on the said FIR, Amtali P.S case No.

2021/AMT/035 dated 20.03.2021 under Section 409 IPC has been

registered and investigation has been taken up by police.

5. Mr. P. K. Biswas, learned Sr. Advocate appearing for the

petitioner submits that petitioner has already admitted her guilt.

According to learned counsel, since the petitioner has admitted her

guilt and assured the bank that she would pay back the entire

defrauded amount of money, no purpose will be served by her

arrest and detention. According to learned Sr. counsel, in similar

circumstances bail was granted under Section 438 Cr. P.C by the

Apex Court as well as by the Gauhati High Court. Mr. Biswas,

learned Sr. advocate has referred to an order dated 27.03.2012

passed by the Gauhati High Court in AB No.59 of 2012 wherein

anticipatory bail was granted to the petitioner in a case registered

under Sections 420 and 406 IPC on the ground that petitioner who

had obtained loan from the bank already repaid the loan amount.

Learned counsel has also relied on the decision of the Apex Court in

Chakrawarti Prasad Vrs. State of Bihar; reported in (2002) 10

SCC 390 wherein the Apex Court granted anticipatory bail to the

accused who allegedly pilfered money deposited by the consumers

as electricity charges on condition that accused would pay the

pilfered amount within the period granted by the Court. Reliance

has also been placed by the learned counsel on the decision of the

Apex Court in M. Sreenivasulu Reddy Vrs. State of T.N; reported

in (2002) 10 SCC 653 wherein case was registered against the

accused petitioner under Section 420 and 409 read with Section

120B IPC for defalcation. Anticipatory bail was granted by High

Court. The Apex Court approved the decision of the High Court

whereby the High Court had granted bail to the petitioner by

directing him to pay back the money on the basis of his undertaking

and in the said judgment the Apex Court observed as under:

"6. Having considered the rival submissions and the provisions of Section 438 Cr. PC, we are of the considered opinion that the Court while exercising jurisdiction under Section 438 Cr. PC, must bear in mind and be satisfied that the accused will not abscond or otherwise misuse liberty and this can be ascertained from several factors like conduct of the accused in the past, his assets in the country and so on. But, while granting such anticipatory bail, though the Court may impose such conditions as it

thinks fit, but the object of putting conditions should be to avoid the possibility of the person hampering investigation. The discretion of the Court while putting conditions should be an exercise of judicial discretion. In an offence under Section 409 and 420 IPC, the Court is certainly not going to recover the alleged amount as a condition to granting of bail. This being the position, since the High Court had directed the payment of aforesaid money on the basis of the undertaking given by the accused, we would not modify that part of the order and, therefore, the accused would be required to pay the balance sum of Rs. 15 crores within a period of four weeks from today. So far as condition (b) imposed in paragraph 18 of the order is concerned, having considered the facts and circumstances of the case in hand and the object for which an accused is granted bail and the impossibility and/or severity of satisfying the said condition, we would alter the said condition (b) by directing that it would be open for the accused to furnish corporate guarantee to the extent mentioned in paragraph 18(b) of the aforesaid order to the satisfaction of the Magistrate concerned with whom the case is now pending. The Magistrate should be fully satisfied about the solvency of the corporate guarantee. All other conditions mentioned in paragraph 18 of the aforesaid order would remain operative and the prosecution should take expeditious steps for completing the criminal proceedings. The corporate guarantee as aforesaid should be furnished within eight weeks from today."

6. It is submitted by Mr. P.K. Biswas, learned Sr. advocate

that purpose of detention during investigation cannot be punitive

and since the petitioner has undertaken to pay the amount of

money defrauded by her, there is no impediment in granting

anticipatory bail to her.

7. Mr. Ratan Datta, learned Public Prosecutor on the other

hand vehemently opposes the bail application on the ground that

huge amount of public money has been defalcated by the petitioner.

According to Mr. Datta, learned Public Prosecutor, it would not be

possible to commit such offence by the petitioner alone without the

connivance and assistance of some other bank officials. Learned P.P

therefore, submits that thorough investigation is necessary to unveil

the conspiracy and book the offenders. It is submitted by Mr. Datta,

learned P.P that if the petitioner is released on anticipatory bail at

this stage, the investigation of the case will be seriously impaired.

Learned P.P therefore, urges the Court to reject the bail application

of the accused petitioner.

8. In the order dated 27.03.2012 of the Gauhati High

Court in AB No. 59 of 2012, which has been relied upon by the

learned defence counsel, the petitioner had taken loan from the

bank which was also repaid by him when he moved the bail

application. Facts of that case is therefore, entirely distinguishable

from the context of the present case. In the present case, the

accused petitioner is an employee of the bank. She has admittedly

defrauded her own bank by way of transferring a large sum of

money to the tune of more than Rs.15,00,000/- to her own

accounts. The decisions of the Apex Court which have been relied

upon by learned counsel of the petitioner were also rendered in a

completely different factual context.

9. I have perused the case diary produced by the learned

Public Prosecutor. It appears from the case diary that the concerned

bank formed a committee for the purpose of verification of the

accounts of the bank and the committee has submitted its report

indicating lack of checks and surveillance leading to such

misappropriation of fund and fraudulent activities on the part of

some of the bank officials.

10. I have considered the materials available on record and

all the attending facts and circumstances of the case as well as the

parameters for consideration of anticipatory bail.

11. Having considered all these aspects, this Court is of the

view that it would not be appropriate to allow anticipatory bail to

the petitioner at this stage. Therefore, her bail application stands

rejected. Case is disposed of.

Return the case diary.

JUDGE

Dipankar