BANK OF BARODA Vs. GOVIND RAM AGARWAL

JUDGEMENT

(1.) This revisional application under Section 482 of the Code of Criminal Procedure (in short the Code) is aimed at quashing the criminal proceeding being Case No. C-9458 of 2004 under Sections 409/120B of the Indian Penal Code (in short I.P.C.) now pending before the learned Metropolitan Magistrate, 11th Court, Calcutta.

(2.) Before I proceed into the merit of the revisional application it would be fruitful to mention the gist of the complaint which was filed by (he O.P. against the petitioner challenging which the present revisional application has been filed for quashing the said complaint. The O.P. complainant in his complaint alleged that he had deposited three fixed deposits of Rs. 15,00,000/-, Rs. 12,67,000/- and Rs. 1,25,000/- with the petitioner bank on interest by way of trust and security. The petitioner bank and its officers, i.e. accused persons, on June 23,1998 deducted a sum of Rs. 13,962/-, Rs. 11,794/-and Rs. 141/-by way of Tax Deducted at Source (in short TDS) over the interest accrued on the aforesaid three fixed deposits. The bank did not issue TDS certificate to him and he from time to time demanded TDS certificate from accused Nos. 2 to 5, but they neglected to give him TDS certificate. The amount purportedly deducted as TDS by the accused persons were lying with the bank by way of trust property. The said money was lying in the custody of the accused persons and since the accused persons failed to return the same and could not show any document for deduction of the said amount as TDS, the accused persons were liable for commission of breach of trust. The complaint lodged by the O.P. No. 2 in the Court of the learned Chief Metropolitan Magistrate, Calcutta was registered as Case No. C-9458 of 2004 and the learned Chief Metropolitan Magistrate transferred the said complaint to learned Metropolitan Magistrate, 11th Court, Calcutta. The learned Metropolitan Magistrate, 11th Court after receiving such complaint and after examining the complainant under Section 200 of the Code issued process against the petitioner and others under Sections 409/120B of the I.P.C. Challenging the said order the petitioner has moved this Court in this revisional application praying for quashing the said criminal proceeding.

(3.) Mr. Milon Mukherjee, the learned Advocate for the petitioner Bank of Baroda submitted that TDS deducted by the bank becomes the property of the Government of India immediately after deduction and till the said amount is deposited with the Government the bank holds the same in trust on behalf of the Government and, the said money becomes the property of the Government and the person from whom such tax was deducted had no right over the same. The amount deducted as TDS becomes property of the Government makes it clear that there was no entrustment of any money by the complainant to the petitioner which can justify elements of Section 409 of the I.P.C. The bank had deposited the said TDS amount with the Government of India and as such there was no entrustment of the said amount by the complainant O.P. to the bank and being so the charge under Section 409 of the I.P.C. is not maintainable. Mr. Mukherjee also contended that the complainant had the belief that the amount given to the petitioner bank by way of fixed deposit amounts created relationship of trustee and beneficiary but, such belief is erroneous. It has been settled in number of decisions by the Hon'ble Supreme Court as well as by this Court that the relationship existing between a bank and its customer is not that of a trustee and beneficiary but a relation between lender and creditor. The reason behind this principle of law is that when a customer deposits a sum of money with the bank and expects interest therefrom, the said amount becomes a part of the corpus of the bank and the customer is only entitled to ask for return of the money deposited with the bank after expiry of the stipulated period or otherwise.