Rumi Dhar Vs. State of
West Bengal & ANR.  INSC 706 (8 April 2009)
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 661 OF 2009
(Arising out of SLP (Crl.) No.362 of 2008) Smt. Rumi Dhar ... Appellant Versus
State of West Bengal and another ... Respondents
S.B. SINHA, J.
of the provisions of Section 320 of the Code of Criminal Procedure (hereinafter
referred to as `the Code') is in question in this application. The said
question arises in the following factual matrix.
and her husband (A-4) along with various other persons including the officers
of the Oriental Bank of Commerce Khidirpur Branch, Calcutta (hereinafter called
`the Bank') were prosecuted for alleged commission of offences under Sections
120-B/ 420/467/468 and 471 of the Indian Penal Code. The officers of the Bank
had also been prosecuted under Sections 13(2) read with Section 13(1)(d) of the
Prevention and Corruption Act, 1988.
charge sheet was filed against the appellant and seven others. She was inter
alia charged for taking the benefit of overdrafts between the period 8th
February, 1993 to 5th March, 1993 without furnishing any security.
the purpose of realisation of the said amount, indisputably the Bank filed an
application for recovery thereof before the Debt Recovery Tribunal. It is not
in dispute that before the said Tribunal, appellant and the Bank had entered
into a settlement pursuant whereto or in furtherance a sum of Rs.25.51 lacs was
is also not in dispute that for the said purpose, the C.B.I. had returned the
title deeds in respect of the property which were kept as security for
obtaining the loan from the bank.
or about 22.02.2006 the Appellant filed an application under section 239 of the
Code for discharge, inter alia, contending:- 2 i) That having regard to the
settlement arrived at between her and the Bank no case for proceeding against
her has been out.
ii) That she having
already paid Rs. 25.51 Lacs and the CBI having returned the title deeds which
had been kept as security for the loan from the said bank, the criminal
proceeding should be dropped relying on or on the basis of the said settlement.
iii) That the dispute
between the parties were purely civil in nature and that she had not fabricated
any document or cheated the bank in anyway what so ever, charges could not have
been framed against her.
response to the said application the CBI had contended that mere payment of
loan to the bank could not exonerate the accused from a criminal proceeding.
learned Judge, Special Court Alipore in Special Case No. 3 of 1993 vide order
dated 12.12.2006 dismissed the application of the appellant noting that mere
repayment could not exonerate the accused from the prima facie charge in a
or about 06.03.2007 the appellant filed a revision application under section
401 and 402 of the CrPC before the High Court of Calcutta which was registered
as CRR No. 910 of 2007.
Before the High
Court, it was argued that further continuation of the criminal proceeding,
despite repayment of the amount of loan by the appellant, would amount to an
abuse of the process of Court and the same should, therefore, be quashed.
the said revision application the CBI contended that the criminal case against
the appellant was started not only for obtaining loan but also on the ground of
criminal conspiracy with the bank officials. It was accordingly contended that
the court below had rightly rejected the application and the impugned order
does not warrant any interference.
or about 17.07.2007 the learned Single Judge of the High Court dismissed the
revision application. The court after discussing the arguments of both the
parties opined :
"I have taken
into consideration the submissions of the ld. Advocates for both the sides. It
is the case of the prosecution that the loan in question was sanctioned in
favour of the petitioner by way of forming a criminal conspiracy, which was
allegedly engineered by the bank officials. It is further been alleged that
this accused/petitioner also took part in the said conspiracy. Now it is the admitted
position that after investigation charge sheet has also been filed against the
petitioner and the matter is now fixed for framing of charge. Ld.
Trial Judge in his
impugned order discussed the entire matter and thereafter he was of the opinion
that merely because of the fact that the amount in question has already been
paid in favour of the bank, that cannot exonerate the accused/petitioner, so
far as the charge of conspiracy is concerned."
learned judge distinguished the case of CBI, New Delhi v. Duncans Agro
Industries Limited Calcutta, (1996) 5 SCC 591 relied on by the appellant noting
that the said case involved quashing of a criminal case which was still under
investigation. The judge noted that the in the case before him the application
for quashing the criminal proceedings was filed at a stage when the thorough
investigation of the case had already been completed and a charge sheet had
been filed. The court concluded that the trial judge was justified in rejecting
the petition filed under Section 239 of the Code the appellant.
Nagendra Rai, learned senior counsel appearing on behalf of the appellant,
would submit :
(1) Considering the
fact that the Bank had filed a suit to recover money before the DRT and the
dispute between the parties having been settled and the amount in question
having been repayed, continuation 5 of the criminal proceeding would be
nothing but an abuse of the process of law.
(2) Settlement having
been arrived at by and between the parties and, particularly having regard to
the nature of allegations made against the appellant herein, the High Court
committed a serious error in refusing to record the settlement and quashing the
criminal proceedings against her.
Amit Anand, learned counsel appearing on behalf of CBI, on the other hand,
would urge :
(i) No case has been
made out for composition of the criminal offence, as the settlement was arrived
at by and between the appellant and the bank only in respect of the civil
dispute between the parties relating to issuance of a certificate by the Debt
Recovery Tribunal and not for the purpose of withdrawal of the criminal case.
(ii) Having regard to
the nature of evidence collected against the appellant during investigation and
consequent filing of a charge sheet, the High Court has rightly refused to
exercise its discretionary jurisdiction.
(1) of Section 320 of the Code specifies the offences which are compoundable in
nature; Sub-section (2) providing for the offences which are compoundable with
the permission of the court.
is said to have taken part in conspiracy in defrauding the bank. Serious
charges of falsification of accounts and forgery of records have also been
alleged. Although no charge against the appellant under the Prevention of
Corruption Act has been framed, indisputably, the officers of the bank are
facing the said charges.
is now a well settled principle of law that in a given case, a civil proceeding
and a criminal proceeding can proceed simultaneously. Bank is entitled to
recover the amount of loan given to the debtor. If in connection with obtaining
the said loan, criminal offences have been committed by the persons accused
thereof including the officers of the bank, criminal proceedings would also
indisputably be maintainable. When a settlement is arrived at by and between
the creditor and the debtor, the offence committed as such does not come to an
end. The judgment of a tribunal in a civil proceeding and that too when it is
rendered on the basis of settlement entered into by and between the parties,
would not be of much relevance in a criminal proceeding having regard to the
provisions contained in Section 43 of the Indian Evidence Act.
judgment in the civil proceedings will be admissibile in evidence only for a
limited purpose. It is not a case where the parties have entered into a
compromise in relation to the criminal charges. In fact, the offence alleged
against the accused being an offence against the society and the allegations
contained in the first information report having been investigated by the
Central Bureau of Investigation, the bank could not have entered into any
settlement at all. The CBI has not filed any application for withdrawal of the
case. Not only a charge sheet has been filed, charges have also been framed. At
the stage of framing charge, the appellant filed an application for discharge.
One of the main accused is the husband of the appellant. The complicity of the
accused persons was, thus, required to be taken into consideration for the
purpose of determining the application for discharge upon taking a realistic
view of the matter. While considering an application for discharge filed in
terms of Section 239 of the Code, it was for the learned Judge to go into the
details of the allegations made against each of the accused persons so as to
form an opinion as to whether any case at all has been made out or not as a
strong suspicion in regard thereto shall subserve the requirements of law.
may also notice that the learned Tribunal, while accepting the settlement
arrived at by and between the appellant and the bank, opined :
8 "It is, thus,
clear from this evidence that the amount of Rs.25.51 lacs has already been paid
by the respondents. The objections of the appellant that the proposal of OTS
stands withdrawn because the payment was not made by cheques or in the manner
given in their application of OTS has no merit. There is no need of formal
joint petition of compromise if the record shows in the applications of the
parties and the contents therein their consent to the OTS could be derived from
the other documents on record of the case. As is already discussed hereinabove
as to the application of the CHB for OTS dated 7.2.2004 the consent was already
recorded by the Ld.
Recovery Officer in
his order dated 7,10.2004.
The balance payment
of Rs.22.21 lacs by the respondents certificate debtors was payable in 20
monthly instalments which was to expire by December 2005. It is immaterial that
how the payment is being made. The parties under the OTS is that the OTS is
agreeable and consent was at an amount of Rs.25.51 lacs. It is immaterial that
the payment is to be made by equated monthly instalments by post dated cheques
or evenotherwise if the payment is made at an early date, then it is not wrong.
But if the payments are made beyond the scheduled date, then it is the breach
of the OTS and in such a situation the Tribunal may refuse to act upon the OTS.
In the present case the amount has already been paid prior to December 2--5.
Thus, it cannot be said that the payments as per compromise are not paid."
21. The learned
Special Judge in his order dated 16.12.2006 rejected the contention raised on
behalf of the appellant herein, stating :
9 "I have gone
through the record citation and considered the circumstances. It is true that
the accd. has put a good gesture by paying of the dues of the bank but I am at
one with the Ld. PP that this payment cannot exonerate the accd. from a prima
facie charge. If I allow this, then I may have to swallow in a case of bribery
that the accd.
has paid back the
amount to the sufferer the amount received as bribe. It is a question of trial
whether there was any criminal intention on the part of this Lady accd. in this
crime. The criminal intention is to be inferred from the evidence to be adduced
by the prosecution. Simply because the money has been returned, I cannot shut
the mouth of the prosecution from adducing evidence against this accd. Thus, I
do not like to pass any order in favour of the accd. The prayer for discharge
of accd. No.7, Rumi Dhar stands rejected. Let the case proceed. Fix 7.2.07 for
consideration of charge. The sureties must produce all the accd.
persons on that
22. It has not been
argued before us that the learned Judge, in arriving at the said opinion,
committed any error of law or the same otherwise suffers from any illegality so
as to enable the High Court to interfere with the same matter. A prima facie
case has been found out against the appellant. There is no error apparent on
the face of the record warranting interference therewith.
Strong reliance has
been placed by Mr. Rai on a decision of this Court in Central Bureau of
Investigation, SPE, SIU(X), New Delhi v. Duncans Agro Industries Ltd., Calcutta
[(1996) 5 SCC 591], wherein this Court held :
giving our careful consideration to the facts and circumstances of the case and
the submissions made by the respective counsel for the parties, it appears to
us that for the purpose of quashing the complaint, it is necessary to consider
whether the allegations in the complaint prima facie make out an offence or
not. It is not necessary to scrutinise the allegations for the purpose of
deciding whether such allegations are likely to be upheld in the trial. Any
action by way of quashing the complaint is an action to be taken at the
threshold before evidences are led in support of the complaint. For quashing
the complaint by way of action at the threshold, it is, therefore, necessary to
consider whether on the face of the allegations, a criminal offence is
constituted or not. In recent decisions of this Court, in the case of Bhajan
Lal (supra), P.P. Sharma (supra) and Janta Dal (supra), since relied on by Mr.
Tulsi, the guiding principles in quashing a criminal case have been
It was furthermore
"27. In the
instant case, a serious dispute has been raised by the learned Counsel
appearing for the respective party as to whether on the face of the
allegations, an offence of criminal breach of trust is constituted or not. In
our view, the expression 'entrusted with property' or 'with any dominion over
property' has been used in a wide sense in Section 405 I.P.C. Such expression
includes all cases in which goods are entrusted, that is, voluntarily handed
over for a specific purpose and dishonestly disposed of in violation of law or
in violation of contract. The expression 'entrusted appearing in Section 405
I.P.C. is not necessarily a term of law. It has wide and different implications
in different contexts. It is, however, necessary that the ownership or
beneficial interest in the ownership of the property entrusted in respect of
which offence is alleged to have been committed must be in some person other
than the accused and the latter must hold it on account of some person or in
some way for his benefit. The expression 'trust' in Section 405 I.P.C. is a
comprehensive expression and has been used to denote various kinds of
relationship like the relationship of trustee and beneficiary, bailor and
bailee, master and servant, pledger and pledgee. When some goods arc
hypothecated by a person to another person, the ownership of the goods still
remains with the person who has hypothecated such goods.
The property in
respect of which criminal breach of trust can be committed must necessarily be
the property of some person other than the accused or the beneficial interest
in or ownership of it must be in other person and the offender must hold such
property in trust for such other person or for his benefit. In a case of
pledge, the pledged article belongs to some other person but the same is kept
in trust by the pledgee. In the instant case, a floating charge was made on the
goods by way of security to cover up credit facility. In our view, in such case
for disposing of the goods covering the security against credit facility the
offence of criminal breach of trust is not committed. In the facts and
circumstances of the case, it, however, appears to us that the Respondents
moved the High Court only in 1991 although the first FIR was filed in 1987 and
the second was filed in 1989. The CBI, therefore, got sufficient time to complete
the investigation for the purpose of framing the charge."
This is also not a
case where unlike Duncans Agro Industries, no case of criminal breach of trust
had been made out.
Our attention has
also been drawn to a recent decision of this Court in Nikhil Merchant v.
Central Bureau of Investigation & Anr. [(2008) 9 SCC 677], wherein this
Court refused to refer the matter to a larger Bench, stating:
"30. In the
instant case, the disputes between the Company and the Bank have been set at
rest on the basis of the compromise arrived at by them whereunder the dues of
the Bank have been cleared and the Bank does not appear to have any further
claim against the Company. What, however, remains is the fact that certain
documents were alleged to have been created by the appellant herein in order to
avail of credit facilities beyond the limit to which the Company was entitled.
The dispute involved herein has overtones of a civil dispute with certain
criminal facets. The question which is required to be answered in this case is
whether the power which independently lies with this Court to quash the
criminal proceedings pursuant to the compromise arrived at, should at all be
31. On an overall
view of the facts as indicated hereinabove and keeping in mind the decision of
this Court in B.S. Joshi's case (supra) and the compromise arrived at between
the Company and the Bank as also Clause 11 of the consent terms filed in the
suit filed by the Bank, we are satisfied that this is a fit case where
technicality should not 13 be allowed to stand in the way in the quashing of
the criminal proceedings, since, in our view, the continuance of the same after
the compromise arrived at between the parties would be a futile exercise."
23. The jurisdiction
of the Court under Article 142 of the Constitution of India is not in dispute.
Exercise of such power would, however, depend on the facts and circumstance of
each case. The High Court, in exercise of its jurisdiction under Section 482 of
the Code of Criminal procedure, and this Court, in terms of Article 142 of the
Constitution of India, would not direct quashing of a case involving crime
against the society particularly when both the learned Special Judge as also
the High Court have found that a prima facie case has been made out against the
appellant herein for framing charge.
24. For the reasons
aforementioned, there is no merit in the appeal. It is dismissed accordingly.
[Dr. Mukundakam Sharma]