Mr. P. Majumder vs Mr. R. Datta
2021 Latest Caselaw 586 Tri

                               HIGH COURT OF TRIPURA
                                     AGARTALA

                                  A.B No. 18 of 2021

For Petitioner(s)         :      Mr. P. Majumder, Adv.

For Respondent(s)         :      Mr. R. Datta, P.P.


               HON'BLE MR. JUSTICE S.G. CHATTOPADHYAY

                                           Order

04/06/2021

[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
                                       Page 2 of 8




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]             The bail application of the petitioner was first heard on

07.04.2021   and   after   hearing     learned      counsel    representing   the

petitioner, the petition was rejected by this court observing as under:
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"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
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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
                     Page 5 of 8




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."

[6] Subsequently, the petitioner approached this court by

filing a fresh application under section 438 Cr.P.C on the ground that

pursuant to the demand of complainant bank, she had already

deposited the defrauded amount.

[7] After hearing her counsel and the learned P.P. she was

granted pre-arrest bail for an interim period vide order dated

30.04.2021 observing as under:

[11] It appears from the information supplied to the Investigating Officer by General Manager, Tripura State Co-operative Bank Ltd. vide his communication dated 27.04.2021 that Rs.21,82,974/- is still left to be recovered from the petitioner from the said defrauded amount of Rs.37,15,020/-. It is submitted by Mr. Biswas, learned senior advocate appearing for the petitioner that in the FIR lodged by the bank itself it was stated that shortage of a fund of an amount of Rs.15,32,046/- was detected by the bank officials after verification of cash. Learned counsel submits that accordingly the petitioner has

returned the said amount with the bank. Mr. Biswas, learned senior advocate, however submitted that if after proper verification of the accounts it is found from the record that defalcated amount is higher, then the same will be deposited by the petitioner for which the petitioner may be given time and meanwhile she may be allowed pre arrest bail to protect her from undue harassment of pre trial arrest and detention.

[12] Perused the case diary and considered the submissions of the learned counsel representing the parties. Keeping in mind the decisions of the Supreme Court relied on by learned counsel of the petitioner, the facts and circumstances of the case particularly the fact that the petitioner has already returned a portion of the defrauded amount and also considering the assurance given by learned counsel appearing for the petitioner, petitioner Smt. Subhra Chakraborty is allowed interim bail for a period of 4(four) weeks from today on the following conditions:

(i) A committee consisting of the senior officers of the bank will be constituted by Tripura State Co- operative Bank Ltd. which will further verify the accounts and find out the actual amount which has been actually defalcated by the petitioner within a period of 2(two) weeks from today. The petitioner may also be given access to the documents to be relied upon by the said committee of the bank. The petitioner will then deposit the amount due within a period of 10 (ten) days after such verification is complete and the actual defrauded amount is determined.

(ii) The petitioner will make herself available before the investigating agency as and when required.

(iii) She will not leave Agartala without prior approval of the Investigating Officer until further order and she will not try to influence the witnesses directly or indirectly.

[13] Subject to the conditions as aforesaid, petitioner may go on bail on furnishing bail bond of an amount of Rs.50,000/- with two local sureties of the like amount to the satisfaction of the Investigating Officer in the event of her arrest for an interim period of 4(four) weeks from today.

[8] Learned counsel appearing for the accused submits

that the bank authority has not yet settled the total amount allegedly

defrauded by the petitioner in terms of the order dated 30.04.2021.

Learned counsel, therefore, urges the court for extending the term of

her interim bail.

[9] Heard Mr. R. Datta, learned P.P representing the State

respondent.

[10] The period of interim bail is extended till 23.06.2021 on

the same terms and conditions laid down in order dated 30.04.2021.

[11] The matter will be heard on 23.06.2021. The

investigating officer is directed to submit status report on or before

23.06.2021. Return the case diary to Mr. R. Datta, learned P.P.

JUDGE

Rudradeep