1. The 1st respondent had pledged some gold articles with the State Bank of India Branch at Hunugund. He is the complainant in the case. He filed a private complaint on 15-1-1983 in the court under S. 200 of the Cr.P.C., 1973 (the Code) not merely against these petitioners but also against the Manager of that Bank, C. S. Damanakara. The averments in the complaint were that he had pledged some gold articles belonging to him with the Bank; had secured a loan of Rs. 1,500/- had later on 9-12-1982, approached the Bank with the principal and interest due on the loan, with a request to the Bank authorities to return the pledged articles, that when the articles were shown for being returned he found that they were not the ones he had pledged but were of an inferior quality and value that therefore; had declined to obtain return of the same and that since the three accused, who had been entrusted with the articles had committed criminal breach of trust re : the same they were liable to be proceeded against.
2. This complaint was referred to the police for investigation under S. 156(3) of the Code. The police after investigation have placed a charge-sheet only against these two persons but not against the Bank Manager.
3. On behalf of these petitioners it was contended by their learned counsel that the facts placed by the police do not show any prima facie case against his clients and, therefore, the court below had committed an error in issuing process to them. According to him, the very complaint of the first respondent was that he had pledged the articles with the Bank and therefore on behalf of the Bank, it was the first accused, the Manager, who was if at all responsible and not these petitioners who were only minor functionaries therein. The Manager, it is said was the person solely in charge of the affairs of the Bank. His case is that to constitute an offence under S. 409, IPC entrustment of the property or dominion over the property is essential and that in these circumstances of the case it cannot be said that either his clients had been entrusted with the property or had dominion over the same. He pleads that, if at all, the entrustment was to the Bank and the dominion, if any, over the property pledged in the Bank lies with the person solely responsible to the management of the Bank branch and certainly not his clients.
4. On the other hand, it was argued by the learned Government Pleader that the two accused before the Court the Bank Officials were the persons who had received the pledged goods on behalf of the Bank and they are the persons who are accountable to those articles and therefore it cannot, at this stage, be said that no prima facie case had at all been made out against them. It is a fact that, of these two, the 1st petitioner was an Accountant and the second, the Head-Cashier in that branch of the Bank. In this connection he placed considerable reliance on the statement of the Administrator of the State Bank of India, who, in his statement before the police, has stated that whenever customers come to pledge the valuables it is these two persons, the Accountant and the Head-Cashier, who receive the same on behalf of the Bank, verify as to the quality and value of the same and keep the same in safe custody, and that it is not the responsibility of the Bank Manager at all for the safe custody of these articles. This statement, the learned Govt. Pleader states, shows a prima facie case against the accused and, therefore, no interference is called for.
5. The two questions that arise for consideration in this petition are :
(i) Who had been entrusted with these pledged articles or who had dominion over the same within the meaning of S. 405, I.P.C.
(ii) Has any prima facie case of dishonest misappropriation or conversion to their own use of the pledged articles been made out against these accused
6. Admittedly, as can be seen from the very complaint preferred by the complainant, the articles he had pledged had been pledged with the Bank. The Manager, the Accountant, and the Cashier were the officials of the Bank. It cannot be disputed that in so far as this Branch Manager (Hunugund Branch) is concerned it was the Manager who was solely responsible for the affairs of that Bank. No doubt, during their investigation the police recorded the statement of one Boppanala Somashekhar Rao, who, in those days, was said to be functioning as an Administrative Officer at the regional office of the State Bank of India, Bangalore. Strangely enough he states in his statement that the responsibility to these pledged articles was not that of the Manager but of the Head-Cashier and the Accountant (the two petitioners herein). The entrustment was to the Bank itself. It being a non-natural person its business had to be transacted by someone who was authorised to do so on its behalf. Such a person, in a case like this, would be none other than the Manager of the Bank. Other minor functionaries serving in the Bank only carry on their functions through the Manager and under his directions and in the name of the Bank. The complainant was not unaware of this. He knew fully well the responsibility of the Bank Manager. Therefore, he had arrayed the Manager as the 1st accused. He had stated at para-5 of his complaint filed in the court below that prior to the filing of that complaint he had got issued, through his counsel, a legal notice to the 1st accused the Bank Manager. In the circumstances of the case if anybody can be said to have had dominion over the pledged articles that person was the one who had the power to transact on behalf of the Bank.
7. In this connection the decision of the Supreme Court in Jaswantrai Manilal Akhaney v. State of Bombay, : 1956CriLJ1116 may be seen. In that case two financial institutions - a Co-operative Bank and an Exchange Bank - were involved in a transaction. The Co-operative Bank had entrusted the Exchange Bank with some securities to keep them as securities for over-drafts that may be taken by the Co-operative Bank. Alleging criminal breach of trust re : the said securities the Exchange Bank was prosecuted. As to who was liable to be proceeded against in such a situation was considered by the Supreme Court in Jaswantrai's case at sub-para (3) of Para-13 which reads thus :
'The entrustment was to the Exchange Bank itself. But, it being a non-natural person, its business had to be transacted by someone who was authorised to do so on its behalf. The appellant held the power of attorney on behalf of the directors of the Bank to transact business on behalf of the bank. In that capacity the appellant had dominion over the securities. Hence the appellant can be said either to have been entrusted with the property in a derivative sense or to have dominion over the securities as a banker ...............'
8. If these minor functionaries of the Bank had committed any lapses in the matter of the safe custody of the articles kept in the Bank they are answerable to the Bank and action can be taken against them at the instance of the Bank. But that is a separate question. What we have to see now is as to whether these two petitioners can be said to have been entrusted with the pledged articles or can be said to have had dominion over the same. It cannot be said to be so for the reasons already stated. The prosecution has failed to show any prima facie case against these persons for the offence alleged against them. Their prosecution is misconceived and, if allowed to continue, would amount to an abuse of the process of the Court.
9. It is still open to the complainant to take appropriate action against the concerned in a proper forum - either criminal or civil. It is also open to the Bank authorities, if they so desire, to take action against the officials concerned in this matter. However, the prosecution, as it is against these two, has to be quashed.
10. Accordingly, this petition is allowed. The prosecution pending against these two persons in the Court below in C.C. No. 240 of 1983 is hereby quashed.
11. Petition allowed.