PUNJAB NATIONAL BANK Vs. SURENDRA PRASAD SINHA

JUDGEMENT

(1.) Special leave granted.

(2.) Though the respondent was served on July 29, 1991, neither appeared in person, nor through counsel. The facts set out in the complaint eloquently manifests on its face a clear abuse of the process of the Court to harass the appellants. The respondents, an Advocate and Standing Counsel for the first appellant filed a private complaint in the Court of Addl. Chief Judicial Magistrate, Katni in C.C. No. 933/91 for offences under S. 409 and Ss. 109/114, I.P.C. The facts stated in the complaint run thus: The first appellant's branch at Katni gave a loan of Rs. 15,000/- to one Sriman Narain Dubey on May 5, 1984 and the respondent and his wife Annapoorna stood as guarantors, executed Annexure 'P' "security bond" and handed over Fixed Deposit Receipt for a sum of Rs. 24,000 / -, which would mature on November 1, 1988. At maturity its value would be at Rupees 41,292/-. The principal debtor committed default in payment of the debt. On maturity, the Branch Manager, 5th appellant, Sri V. K. Dubey, adjusted a sum of Rs. 27,037.60 due and payable by the principal debtor as on December, 1988 and the balance sum of Rupees 14,254.40 was credited to the Saving Banks Account of the respondent. The respondent alleged that the debt became barred by limitation as on May 5, 1987. The liability of the respondent being coextensive with that of the principal debtor, his liability also stood extinguished as on May 5, 1987. Without taking any action to recover the amount from the principal debtor within the period of limitation, on January 14, 1989, Sri D. K. Dubey, the Branch Manager, intimated that only Rupees 14,254.40 was credited to his Saving Bank Account No. 3763. The entire amount at maturity, namely Rupees 41,292/- ought to have been credited to his account and despite repeated demands made by the respondent it was not credited. Thereby the appellants criminally embezzled the said amount. The first appellant with a dishonest interest (intent) to save themselves from the financial obligation neglected to recover the amount from the principal debtor and allowed the claim to be barred limitation and embezzled the amount entrusted by the respondent. The appellants 2 to 6 abeted the commission of the crime in converting the amount of Rs. 27,037.40 to its own use in violation of the specific direction of the respondent. Thus they committed the offences punishable under S. 409 and Ss. 109 and 114, I.P.C.

(3.) The security bond, admittedly, executed by the respondent reads the material parts thus:"We confirm having handed over to you by way of security against your branch office Katni F.D. Account No. 77/ 83 dated November 1, 1983 for Rs. 24,000/ - in the event of renewal of the said Fixed Deposit Receipt as security for the above loan." "We confirm..... the F.D.R. will continue to remain with the bank as security here." "The amount due and other charges, if any, be adjusted and appropriated by you from the proceeds of the said F.D.R. at any time before, on or its maturity at your discretion, unless the loan is otherwise fully adjusted from the dues on demand in writing made by you...." "We give the bank right to credit the balance to our saving banks account or any other amount and adjust the amount due from the borrowers out of the same." "We authorise you and confirm that the F.D.R. pledged a security for the said loan shall also be security including the surplus proceeds thereof for any other liability and the obligation of person and further in favour of the bank and the bank shall be entitled to retain/ realise/ utilise/ appropriate the same without reference to us."