SUSHIL KANTA CHAKRAVARTY Vs. STATE

JUDGEMENT

(1.) The facts giving rise to this petition are thatShri Samarjit Chakravarty (hereinafter referred to as respondent No. 2) fileda criminal complaint under Sections 406, 409, 420 read with Section 120-BIPC against Shri Sushil Kanta Chakravarty (the petitioner herein) andShri J.K. Sood, Senior Manager, Indian Overseas Bank, Janpath Branch,New Delhi on the allegations that the complainant, Shri SamarjitChakravarty, Smt. Arati Chakravarty, wife of Shri Sunil Kanta Chakravartyand Shri Sushil Kanta Chakravarty are partners of M/s-ESPI (New Delhi)Trading Company, having its registered office at II, Tolstoy Marg, NewDelhi. The said firm was maintaining an account with Indian OverseasBank, Janpath, New Delhi, being current account No. 503, which was beingoperated either by the complainant, Shri Samarjit Chakravarty or byShri Sushil Kanta Chakravarty, the petitioner herein. It is further allegedthat a portion of the premises of the said firm was on rent with CanaraBank. In the year 1987 the petitioner herein had collected the rent by chequefrom the said tenant i.e. from the Canara Bank and he clandestinely openeda bank account in the name of the firm showing himself to be the proprietorof M/s ESPf (New Delhi) Trading Company. The said prorietory accountin the name of the company was opened in the Canara Bank, OverseasBranch, Competent House, Nem Delhi with the sole purpose of diverting thecheques received on behalf of the company, so that the other partners maynot know about the payment received by the petitioner herein. In August,1987, Shri Samarjit Chakravarty the complainant came to know about it anda notice to the Canara Bank was served upon the Canara Bank MerchantBanking Bureau, New Delhi with a request to the said bank to direct closureof the proprietorship account at Overseas Branch, Competent House, NewDelhi and transfer of the balance of the said account to the account of thefirm at Indian Overseas Branch, Janpath, New Delhi and the same was done.Shri Samarjit Chakravarty, the complainant wrote the letter dated 24-8-1987to the Manager, Indian Overseas Bank, Janpath Branch, New Delhi that infuture all cheques and transfers etc. pertaining to the account of the partner-ship firm were to be honoured only on the joint signatures of Shri SamarjitChakravarty, the complainant and Shri Sushil Kanta Chakravarty, the peti-tioner herein. It is further alleged in the complaint that the said letter wasduly served on the bank and thereafter all the cheques of the firm weresigned by both the partners i.e. Shri Samarjit Chakravarty, the complainantand Shri Sushil Kanta Chakravarty, the petitioner herein till the end ofJanuary, 1989.

(2.) In May, 1988 the partners of the said firm decided to sell thebusiness premises pertaining to the partnership firm for Rs. 24 lakhs and awritten agreement was signed on 22-9-1988 and the sale proceeds were to bedisbursed in the manner as mentioned in that agreement. The entire saleproceeds were realised and deposited in the firm's account with IndianOverseas Bank, Janpath Branch, New Delhi being Current Account No. 503,on the assurance and understanding that the withdrawals from the saidaccount for use for specified purpose as mentioned in this agreement wouldbe done jointly by the complainant, Shri Samarjit Chakravarty and the petitioner herein, Shri Sushil Kanta Chakravarty. The bank had already beeninformed by letters dated 24-8-1987 and 20-9-1988 that the withdrawal ortransfer from the said account cannot be effected without the joint signaturesof Shri Samarjit Chakravarty, the complainant and Shri Sushil KantaChakravarty, the petitioner herein. It has been further alleged that in thesecond week of March, 1989 Shri Samarjit Chakravarty, (the complainant)same to know that Shri Sushil Kanta Chakravarty, (the petitioner herein)had clandestinely and fraudulently with active connivance of and in cons-piracy with Shri J.K. Sood, Senior Manager of Indian Overseas Bank,Janpath, New Delhi has illegally and unautborisedly withdrawn/transferred asum of Rs. 13,23,000 from the said account No. 503 belonging to the com-pany by withdrawing a cash sum of Rs. 7,05,000 vide cheque No. 849425 andby getting a sum of Rs. 6,00,000 transferred from the aforesaid company'saccount vide cheque No. 849422 to his personal account in the sama Bank on30-1-89. Again on 10-2-89, Shri Sushil Kanta Chakravarty, the petitioner here-in, got a cheque for a sum of Rs 18,000 encashed vide cheque No. 582926.The aforesaidsum of Rs. 13,23,000 i.e. Rs. 7,05,000, Rs. 18,000 as cash andRs. 6,00,000 by way of transfer was respectively withdrawn and transferredby Shri Sushil Kanta Chakravarty, the petitioner herein by singly signing thecheques/letters of request for transfer of the aforesaid sum. As per theallegations made in the complaint filed, Sbri Sushil Kanta Chakravarty, thepetitioner herein criminally and fraudulently misappropriated a sum ofRs. 13,23,000 belonging to the company causing wrongful loss to the com-plainant, the third partner, and the company itself and has caused wrongfulgain to himself by cheating and criminally misappropriating this sum ofRs. 13,23,000. It is further alleged that Shri J.K. Sood, respondent No. 3herein, in the capacity of the Senior Manager of the bank has actively con-nived and conspired with the petitioner herein in clandestinely allowing andpermitting the af^resaid cheques and transfer of funds without the signaturesof the second signatory, i.e. Sbri Samarjit Chakravarty, the complainant.Shri Sushil Kanta Chakravarty, the petitioner berein, being the partner of thecompany was jointly entrusted with the money belonging to the company inthe said account of Indian Overseas Bank, Janpath, New Delhi and he wasnot authorised to withdraw and transfer the money of the company for hisown use and in his own account. Shri Sushil Kanta Chakravarty, the peti-tioner herein, in active connivance and conspiracy with Shri J.K. Sood,Senior Manager of the said bank has converted a sum of Rs. 13,23,000belonging to the company, of which the complainant is also a partner, tohis own use and or disposed of the said money in violation of the directionsof law prescribing the mode in which the said trust was to be discharged andthus they have committed the offence of criminal breach of trust as definedunder Sec. 405 Indian Penal Code and punishable under Sections 406 and 409 IPC. Shri J.K.Sood, Senior Manager of the said bank has also made himself liable underSection 120-B Indian Penal Code by colluding with Shri Sushil Kanta Chakravarty, the peti-tioner herein, in getting this illegal thing done.

(3.) The learned Magistrate after perusing the pre-summoning evidenceand the documents on record and hearing arguments came to the conclusionthat there is sufficient material on record to proceed under Section 403 IPCagainst Sbri Susbil Kanta Chakravarty, the petitioner herein and underSection 120-B Indian Penal Code against Shri J.K. Sood. respondent No. 3 herein and theywere accordingly suirmoned to face trial for the said offences.