SUSHOL KANT CJAKRAVARTY Vs. STATE

JUDGEMENT

(1.) This facts giving rise to this petition are that Shri Samarjit Chakravarty (hereinafter referred to as respondent No. 2) filed a criminal complaint under Sections 406, 409, 420 read with Section 120-B Indian Penal Code against Shri Sushil Kanta Chaktavarty (the petitioner herein). and Shri J. K. Sood, Senior Manager, Iadian Overseas Bank, Janpath Branch, New Delhi on the allegations that the com- plainant, Shri Samarjit Chaloravarty, Smt. Arati Chakravarty, wife of Shri Sunil Kanrta Chakravarty and Shri Sushil Kanta Chakravarty are partners of M/s. ESPI (New Delhi Trading Company, having its registered office at 11, Tolstoy Marg, New Delhi. The said firm was maintaining an account with Indian Overseas Bank, Janpath, New Deelhi, being current account No. 503, which was being operated either bt the coflapfaunant, Shn Samar}it Chakravarty or by Shri Sushil Kanta Chakravarty, the petitioner barein. It is further alleged that a portion of the premises of the said firm was on rest with Canara Bank. In the year 1987 the petitions herein had collected the rent by cheque from the said tenant i.e. from the Canara Bank and he clandestinely opened a bank account in the same of the film showing himselfb to be the propritor of M/s. ESPI (New Delhi) Trading Company. The said proprietory account in the name of the company was opened in the Canara Bank, Oveseas Branch, Comapetent House, New Delhi with the sole purpose of diverting the cheques received on behalf of the company, so that the other partners may not know about the payment received by the petitioner herein. In August, 1987, Shri Samarjit Chakravarty, the complainant came to know about it and a notice to the Canara Bank was served upon the Canara Bank Merchant Banking Bureau, New Delhi with a repuest to the said bank to direct closure of the proprietorshipn account at Overseas Branch, Copmetent House, New Delhi and transfer of the balance of the said account to the account of the firm at Indian Overseas Branch, Janpath, New Delhi and the same was done. Shri Samanrjit Chakravarty, the complainant wrote the letter dated 24-8-1987 to the Manage, Indian Overseas Bank, Janpath Branch, New Delhi that in 'future all cheques and transfers etc pertaining to this account of the partnership firm were to be honoured only on the joint signatures of Shri Samarjit Chakravarty, the complainant and Shri Sushil Kanta Chakravarty, the petitioner herein. It is further alleged in the complaint (hat the said latter was duly served on the bank and thereafter all the cheques of the firm were singned by both the partners i.e. Shri Samarjit Chakravarty, the complainant and Shri Sushil Kanta Chakravarty, the petitioner herein till the end of January, 1989. In May, 1988 the partners of the said firm decided to sell the business pertainning to the partnership firm for Rs.24 lakhs and a written agreement was signed on 22-9-1988. and the sale proceeds were to be disbursed in the manner as mentioned om that agreement. The entire sale proceeds were realised and deposited in the firm's account with Indian Overseas Bank, Janpath Branch, New Delhi being Current Account No. 503, on the assurance and understanding that the withdrawals from the said account for use for specified purpose as mentioned in this agreement would be done jointly by the complainant Shri Samarjit Chakravaty petitioner herein Shri Kanta Chakravarty. The bank had already been informed by letter dated 24-8-1987 and 20-9-1988 that the withdrawal or transfer from the said account cannot be effected without the joint signatures of Shri Samarjit Chakravaty the complainant and Shri Sushil Kanta Chakravarty, the petitioner herein. It has been further alleged that in the second week of March, 1989 Shri Samarjit Chakravarty, (the complainant) came to know that Shri Sushil Kanta Chakravarty, (the petitioner herein) had clandestinely and fraudulently with active connivance of and in conspiracy with Shri J. K. Sood, Senior Manager of Indian Overseas Bank, Janpath, New Delhi has illegally and unauthorisedly withdrawn transferred a sum of Rs. 13,23,000 form the said account No. 503 belonging to the company by withdrawing a cash sum of Rs. 7,05,000 vide cheque No. 849425 and by getting a sum) of Rs. 6,00,000 transferred from the aforesaid company's account vide cheque No. 849422 to his personal account in the same bank on 30-1-1989. Again on 10-2-1989. Shri Sushil Kanta Chakravarty, the petitioner herein, got a cheque for a sum of Rs. 18,000 encashed vide cheque No. 582926. The aforesaid sum of Rs. 13,23,000 i.e. Rs. 7,05,000 and Rs. 18,000 as cash and Rs. 6,00,000 by way of transfer was respectively withdrawn and transferred by Shri Sushil Kanta Chakravarty, the petitioner heirein by singly signing the cheques/letters of request for transfer of the aforesaid sum. As per the allegations made in the complaint filed, Shri Sushil Kanta Chakravarty, the petitioner herein criminally and fraudulently misappropriated a sumofRs. 13,23,000 belonging to the company causing wrongful loss to the complainant, the third partner, and the company itself and has caused wrongful gain to himself by cheating and criminally misappropriating this sum of Rs. 13,23,000. It is further alleged that Shri J. K. Sood, respondent No. 3 herein, in the capacity of the Senior Manager of the bank was actively connived and conspired with the petitioner herein in clandestinely allowing and permitting the aforesaid cheques and transfer of funds without the signatures of the second signatory, i.e. Shri Samarjit Chakravarty, the complainant. Shri Sushil Kanta Chakravarty, the petitioner herein, being the partner of the company was jointly entrusted with the money belonging to the company in the said account of Indian Overseas Bank, Janpath, New Delhi and be was not authorised to withdraw and transfer the money of the company for his own use and in his own account. Shri Sushil Kanta Chakravarty, .the petitioner herein, in active connivance and conspiracy with Shri J. K. Sood, Senior Manager of the said bank has coaverted a sum of Rs. 13,23,000 belonging to the company, of which the complainant is also a partner, to his own use and or disposed of the said money in violation of the direction of law prescribing the mode in which the said trust was to be discharged and thus they have committed the offence of criminal breach of trost as defined under Section 405 Indian Penal Code and punishable under Section 406 and 409 Indian Penal Code . Shri J. K. Sood, Senior Manager of the said bank has also made himself liable under Section 120-B Indian Penal Code by colluding with Shri Sushil Kanta Chakravarty, the petitioner herein, in getting this illegal thing done.

(2.) The learned Magistrate after perusing the presummoning evidence and the documents on record and hearing arguments came to the conclusion that there is sufficient material on record to proceed under Section 403 Indian Penal Code against Shri Sushil Kanta Chakravarty, the petitioner herein and under Section 120-B Indian Penal Code against Shri J. K. Sood, respondent No. 3 herein and they were accordingly summoned to face trial for the said offences.

(3.) Aggrieved by this order of the learned Magistrate, Shri Sushil Kanta Chatoavarty has filed this petition under Section 482 Criminal Procedure Code . for quashing the Complaint and the prroceedings.