1. This is a rule obtained against an order passed by Sri K. C. Banerjee, Police Magistrate, Alipore, rejecting the application by one Gopesh Chandra Pal for being discharged in certain proceedings under Section 409 read with Section 120B, Penal Code.
2. The facts briefly are as follows: The complainant Nirmal Kumar Das Gupta opened a current account with the Mahaluxmi Bank. He issued a cheque in favour of Messrs. Dunlop Rubber Company on the Bank for the sum of Rs. 2000 odd on 6th September 1948. On 9th September 1948, the complainant Nirmal Kumar Das Gupta received a telephone message from Messrs. Dunlop Rubber Company that the cheque had been returned by the Bank on the ground that the signature differed. Upon this the complainant went and saw the accountant of the Bank whose name is Lalit Sen and it is alleged that Lalit Sen told him that he should sign the cheque again and that there would be no trouble. The complainant signed the cheque again and it was presented on 11th September 1948, but payment was again refused, this time on the ground that the Bank was not functioning owing to a strike by the employees. The statement of the complainant is that these excuses for not meeting this cheque were false and frivolous and the Bank was trying to gain time for an application to the High Court under the Companies Act and he alleged that on 11th September 1948 Gopesh Chandra Pal the Managing Director, Rajani Dutt, the Chief Accountant and Lalit Sen, the Accountant, misappropriated his money dishonestly. This is stated in Para. 8 of the petition of complaint. In para 11 of the petition of complaint, it is stated that the Managing Director and the Accountant abetted Rajani Dutt in the commission of the offence of misappropriation punishable under Section 403, Penal Code and also of the offence of misappropriation punishable under Section 409, Penal Code. The complainant was examined by the learned Magistrate and in the last few lines of the examination his statement is recorded thus : 'The said Bank as represented by the accused cheated me and also committed criminal breach of trust.'
3. I have been at pains to mention these matters in detail in order to show that the complainant had a very hazy notion of who had cheated him or who had misappropriated his money. In one paragraph he says that all the accused persons misappropriated his money and in another paragraph he says that of the accused two of them abetted the other and finally in his initial statement he says that the Bank cheated him and committed criminal breach of trust. Upon this complaint being made, summonses were issued against Gopesh Chandra Pal, the Managing Director, and Lalit Sen, the Accountant, under Section 409 read with Section 120B, Penal Code. Here, again, I would point out that the learned Magistrate had a very vague idea of the meaning of Section 409, Penal Code. Section 409, Penal Code deals with criminal breach of trust by a public servant or by a banker, merchant, factor, broker, attorney or agent. Now, neither of these persons against whom summonses were issued were public servants, nor were they bankers. They were persons working in a bank and persons working in a bank are not bankers. Therefore Section 409, Penal Code has absolutely no application to this case. After the accused appeared a Rule was obtained from this Court for quashing the proceedings against them. On the date of hearing of the Rule learned advocate appearing for the two petitioners stated that he wag instructed not to proceed with the Rules. Upon that statement being made my learned brother Blank J. passed an order 'The Rules are accordingly discharged.' Thereafter the petitioners moved the trial Magistrate praying that they may be discharged under Section 253(2), Criminal P. C., on the ground that no offence had been disclosed against them in the petition of complaint or the initial statement. The learned Magistrate refused the prayer and the present Rule has been obtained against that order.
4. On behalf of the complainant learned advocate contends that the previous Rules having been discharged it was not competent for the petitioners to move the trial Court, nor was it competent for them to obtain a Rule from this Court. He contends that the grounds upon which a discharge has been claimed before the learned Magistrate are almost identical with the grounds given for the issue of the present Rule. In my opinion this preliminary objection should fail. The Rules which were obtained were not pressed and no decision of the Court was given on the merits. There is nothing in the Code of Criminal Procedure which would prevent the petitioners from applying for a discharge under Section 253(2), Criminal P. C., before the learned Magistrate. There is no such thing as res judicata in criminal trials. The only section which lays down a principle which resembles the principle underlying the doctrine of res judicata is Section 403, Criminal P. C., but that section has no application whatsoever to the present case. There may have been many grounds for learned Advocate appearing before Blank J., for not pressing the applications. I do not propose to go into the question why learned Advocate was instructed not to proceed with the Rules. The fact that he did not proceed with the Rules does not in my opinion debar the petitioners from moving the Magistrate for an order of discharge if such an order were permissible in the circumstances of this case.
5. I shall now consider whether the learned Magistrate was right in refusing to discharge the petitioner. The learned Magistrate says that the statements in paras. 8 and 9 in the petition of complaint are almost conclusive for the purpose of making out a case prima facie under Section 409 read with Section 120B, Penal Code. I have dealt with this matter in the earlier part of my judgment and I have held that Section 409, Penal Code, has no manner of application to the facts of this case. The learned Magistrate goes on to say further that it is premature to order a discharge without hearing the evidence in the case. In my opinion the learned Magistrate is wrong in this view. If ever there was a case for acting under Section 263(2), Criminal P. C., and for discharging the accused at the earliest stage of the proceedings before evidence is taken this case is one of them. It should be remembered that when a person opens a current account in a bank, there is no question of entrustment. The relationship between the bank and the customer is one of creditor and debtor. The bank is free to use the money deposited by the customer or constituent in any way it likes and is not bound to keep the money apart. No bank can ever function if it was obligatory on it not to touch the money of a person who makes a deposit in its current account. The bank is liable to pay the money to the customer when Called upon but until Called upon to pay it the bank is entitled to utilise the money in investment and in other ways for earning profit therefrom. On this ground also it is quite clear that there can be no case against the Bank or any of its officers for committing an offence under Section 409, Penal Code. Section 409, Penal Code, presupposes an entrustment and in the present case there was no entrustment. For this view I would refer to the case of S. Pakrashi v. Emperor : AIR1941Cal713 and also to the case of Attorney General of Canada v. Attorney-General to the Province of Quebec, 51 C. W. N. 427; (A. I. R. (34) 1947 P. C. 44).
6. The main point for consideration is whether any money was entrusted to the persons who have been brought up for trial before the Magistrate. Obviously there was no such entrustment and there could not be any such entrustment. The money was paid into the Bank and not to these persons. It was not suggested that the money was handed over to either of these persons and that they put the money into their pockets. Learned Advocate for the complainant contended that the ingredients of an offence punishable under Section 403 read with Section 120B, Penal Code, have been disclosed in the petition of complaint and in the initial statement of the complainant. Here, again, I must differ from this view. There is nothing in the petition of complaint or in the initial statement to show that there has been any |misappropriation by the accused persons. If a cheque is dishonoured, that does not connote misappropriation. The remedy for a cheque being wrongfully dishonoured lies in the civil Court. This is not a matter which is to be tried by a criminal Court. It is curious that the learned Magistrate has issued summons against Gopesh Chandra Pal and Lalit Sen. If there is any allegation which, if true, would establish their guilt, then Rajani Dutt would, it seems to me, be the chief villain of the piece because he is the person who made the endorsement on the intimation slip that the signature differed. Why he was left out I find it difficult to appreciate. Be that as it may, I am of opinion that on the facts stated in the petition of complaint and in the statement made in the initial deposition of the complainant no case of a criminal nature has been made out against either of the accused persons Gopesh Chandra Pal and Lalit Sen. Lalit Sen has not moved this Court against the order of the learned Magistrate. The present Rule has been obtained by Gopesh Chandra Pal only This Court however has the power to act suo motu under Section 489, Criminal P. C., and in disposing of the case of Gopesh Chandra Pal I have also taken into Consideration the case of Lalit Sen. They both stand on the same footing so far as the question whether a criminal case has been made out by the complainant is concerned.
7. In these circumstances I discharge both the accused Gopesh Chandra Pal and Lalit Sen and make this Rule absolute.