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Gagan Bihari Patnaik and anr. Vs. State of Orissa - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Case NumberCriminal Revision No. 372 of 1981
Judge
Reported in1984(I)OLR328
ActsCode of Criminal Procedure (CrPC) - Sections 319
AppellantGagan Bihari Patnaik and anr.
RespondentState of Orissa
Appellant AdvocateP.K. Mishra and ;L. Mohapatra, Advs.
Respondent AdvocateAddl. Standing Counsel
DispositionPetition allowed
Cases Referred(Dr. S. S. Khanna v. Chief Secretary
Excerpt:
.....in order to satisfy the requirement of section 319, cr. 7. keeping in view the principles laid down by the supreme court it can be said that in this case on the material so far produced by the prosecution a strong case and compelling reasons have not been made out against the petitioners. it is made clear that the proceedings being quashed against the petitioners will not prevent the court from exercising its discretion at any subsequent stage of the trial if sufficient materials are produced to make out a strong case against them......the order dated 22. 7. 1981 of the chief judicial magistrate-, baripada summoning them as accused persons to face their trial along with the accused nilakantha behera in c. r. case no 593 of 1979.2. the short facts relevant for the purpose of this case are that a savings bank account was opened in the name of one satish ghose of station bazar, baripada on 15. 12. 1978 with a deposit of rs. 100/. in the state bank of india, baripada branch. no further deposite was made in the said account. it was detected that the figures in the ledger sheet were inflated to rs. 15,600/- a total amount of rs.15,200/- was withdrawn under five cheques, the particulars are as follows :-11.1- 1979 rs 2,500/-11.1. 1979 rs 2,500/-29.1. 1979 rs 6,000/-1. 3. 1979 rs 2,000/-1. 3. 1979 rs.....
Judgment:

D.P. Mohapatra, J.

1. The petitioners who were officers in the Baripada Branch of the State Bank of India during the period in question have filed this petition challenging the order dated 22. 7. 1981 of the Chief Judicial Magistrate-, Baripada summoning them as accused persons to face their trial along with the accused Nilakantha Behera in C. R. Case No 593 of 1979.

2. The short facts relevant for the purpose of this case are that a Savings Bank Account was opened in the name of one Satish Ghose of Station Bazar, Baripada on 15. 12. 1978 with a deposit of Rs. 100/. in the State Bank of India, Baripada Branch. No further deposite was made in the said account. It was detected that the figures in the ledger sheet were inflated to Rs. 15,600/- a total amount of Rs.15,200/- was withdrawn under five cheques, the particulars are as follows :-

11.1- 1979 Rs 2,500/-11.1. 1979 Rs 2,500/-29.1. 1979 Rs 6,000/-1. 3. 1979 Rs 2,000/-1. 3. 1979 Rs 2,200/-__________Total ... ... Rs 15,200/- __________

Subsequently the ledger sheet was torn and the two cheques of 11. 1. 1979 were also removed.

3. On the aforesaid allegations, F. I. R. was lodged at Baripada Police-Station by the Branch Manager of the Bank. After investigation, the police submitted the charge-sheet against Nilakantha Behera, a peon serving in the Bank and cognizance was taken under Section 420 and 477A, I. P. C. and charges were framed, against him.

4. In the trial, three witnesses have been examined so far of behalf of the prosecution. P. W. 1, R. C. Bardhan, was the Branch Manager at the relevant time. P. W. 2, Prafulla Chandra Mohapatrs was then working as field Officer and remained in charge as Branch Manager during the absence of P. W. 1 and P. W. 3, Sampat who took over charge as Branch Manager from September, 1979 after the transfer of P. W. 1. The court below referring to these witnesses has observed that their evidence reveals that the Savings Banks Counter Clerk Sadananda Panigrahi, the passing officer and checking officer, namely Shri Gagan Bihari Patnaik and Shri Surendra Kumar Dhal (petitioners) and the accountant, Promod Kumar Ghosh at their own levels were responsible for the contributed to the defalcation. Accordingly, he passed the impugned order directing that the aforesaid persons including the two petitioners be summoned as accused persons in the case to stand their trial along with Nilakantha Behera.

The impugned order is challenged mainly on the ground that there is no material on record to establish that the petitiones have committed any offence for which, they can be tried together with the accused in the case.

The order of the court below has been passed in exercise of jurisdiction under Section 319. Cr. P. C. Sub-sections (1) to (4) of the said Section which are relevant for our purpose read as follows :-

'319. Power to proceed against other persons appearing to be guilty of offence.

(1) Where, in the course of any inquiry into, or trial of an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed.

(2) Where such parson is not attending the Court, he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid.

(3) Any person attending the Court, although not under arrest or upon a summons, may be detained by such Court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed.

(4) Where the Court proceeds against any person under sub-section (1), then-(a) the proceedings in respect of such person shall be commenced afresh, and the witnesses re-heard; (b) Subject to the provisions of clause (a), the case may proceed as if such person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced.'

Interpreting the provisions of this Section, the Supreme Court has laid down that the section vests ample power in the Court to take cognizance and add any person not being an accused before it and try him along with other accused if the prosecution can at any stage produce evidence which satisfies the Court that other persons who have not been order as accused or against whom proceedings have been .quashed, have also committed the offence. While holding in favour of wide powers in the trial court, the Supreme Court has also sounded a word of caution thus 'we would hasten to add that this is really an extraordinary power which is conferred on the Court and should be used very sparingly and only if compelling reasons exist for taking cognizance against the other person against whom action has not been taken' (A.I.R. 1983 S.C. 67 Municipal Corporation of Delhi v. Ram Kishan Rohtagi and Ors.,). This view has also been reiterated in the subsequent decision of the Court in the case of (Dr. S. S. Khanna v. Chief Secretary, Patna and Anr.,) , (A.I.R. 1983 S.C-595, wherein the Court observed-

'On looking into the record we are of the view that the Magistrate had good reason to' summon the appellant under Section 319 of the Code as it appears from the evidence led at the trial that there was a strong case made out against the appellant for joining him in the Criminal case as an accused.'

5. In view of the enunciation of the law by the Supreme Court as indicated above it is to be ascertained if there is sufficient material on record to show that there exists a strong prima facie case against the petitioners in order to satisfy the requirement of Section 319, Cr. P. C.

As stated above, three witnesses have been examined so far on behalf of the prosecution, of whom none excepting Praphulla Chandra Mohapatra (P.W.2) has stated anything relating to the petitioners. The material portion of the evidence reads as follows :-

'Record Keeper Sarbeswar Behera used to remain in charge of custody of the records and papers of the Record Room and he must be responsible for removal of two cheques dated II, .1. 1979 under which Rs. 2,500/-each have been withdrawn. Shri S. Panigrahi, the Savings Bank Counter Clerk wrote the missing ledger sheet 'as far as the first withdrawal of Rs. 2, 500/- each on two cheques dated 11. 1. 1979 were concerned. He was also the clerk who wrote the entry of the first deposit of Rs. 100/-on the missing ledger sheet. The Accountant is the custodian of the ledger book including the ledger book no. 4. The officer who passed the cheque of Rs. 2,500/- . each dated 11. 1. 1979 (two cheques) was Sri Gagan Bihari Patnaik who is now the Field Officer, Jagatsinghpur Branch of State Bank of India. The Officer who further checked it was Sri S. K. Dhal the Checking Officer now working as the Head Cashier of Biramitrapur Branch of the State Bank of India.'

It is in the evidence of P.W.3, the Branch Manager of the Bank that when withdrawal is made from Savings Bank Account for an amount exceeding Rs. 2,000/-the withdrawal chequs is taken by passing officer and verified by him with reference to ledger sheet of that particular account to satisfy himself about the position of deposit and balance of cheque number and if the withdrawal cheque is more than Rs. 2,500/-it is referred to the next superior officer, namely, the Accountant who is supposed to discuss with the depositor the reasons of the withdrawal.

The evidence of Shri R. C. Bardhan, P.W.1 is also to the effect that S. N. Panigrahi was the ledger keeper on 11. 1. 1979 and he must have posted these withdrawals in the Ledger Book. He further stated that all the account books remain in custody of the Accountant during the off hours after day's work and the concerned clerks get them from him for day-today transaction.

6. I asked the Additional Standing Counsel appearing for the State to verify from the records if there is any other material against the petitioners except the statement of P. W.2 as indicated above. On verification, he fairly conceded that there is no other material involving the petitioners in the transactions in question. From the solitary statement of P. W.2, it cannot be said that there were prima facie materials against the petitioners satisfying the ingredients which would make out offence punishable under Sections 420 and 477A I.P.C. The learned Magistrate has also not recorded any such finding.

7. Keeping in view the principles laid down by the Supreme Court it can be said that in this case on the material so far produced by the prosecution a strong case and compelling reasons have not been made out against the petitioners. As such the court below was not justified in exercising its extraordinary power under Section 319, Cr, P,C, and the order is to be quashed. It is made clear that the proceedings being quashed against the petitioners will not prevent the Court from exercising its discretion at any subsequent stage of the trial if sufficient materials are produced to make out a strong case against them.

8. Accordingly, the revision is allowed, the order of the court below is set aside and the Criminal proceeding is so far as the petitioners are concerned is quashed.


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