NIRUPAMA CHOUDHURY Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) Being aggrieved by the order dated 17.10.06 passed by the learned Additional Chief Judicial Magistrate (in short the ACJM), Siliguri in G.R. Case No. 1018 of 2006 arising out of Siliguri P.S. Case No. 283 of 2006 dated 16.10.2006 under section 406/420 of the Indian Penal Code (in short the IPC) granting bail to the accused O.P. No. 2, the petitioner, who is the dc facto complainant, has moved this Court by filing this application under section 439(2) of the Cr. PC praying for cancellation of bail of O.P. No. 2 and to set aside the order passed by the learned ACJM dated 17.10.2006. Pursuant to earlier direction for serving copy of the application for cancellation of bail upon the O.P. No. 2, the O.P. No. 2 entered appearance and filed affidavit-in-opposition against the application praying for cancellation of bail and the petitioner has also filed affidavit-in-reply.

(2.) Mr. Tapas Kumar Ghosh, the learned Advocate for the petitioner submitted that the Siliguri P.S. Case No. 283 dated 16.10.06 was registered on the basis of written complaint/FIR filed by the petitioner. Her husband late Mihir Kumar Choudhury was Superintendent Engineer of the West Bengal State Electricity Board and he opted for voluntary retirement scheme (in short the VRS). The husband of the petitioner used to maintain bank accounts in different banks of Siliguri. After demise of her husband on 15.03.06, the petitioner on enquiry from the Centurion Bank, Siliguri Branch came to learn that even after death of her husband several withdrawals were made from the savings bank account standing in the name of her husband in the said branch by presenting self-cheques and in that process the accused withdrew more than Rs. 19 lakhs from the bank which was accumulated in the account of her husband. As the petitioner is an assistant teacher of Bolpur Girls High School she used to stay at Bolpur, and during vacation she used to go to her husband's residence at Siliguri and during 'pous mela' in the month of December each year her husband used to come to her at Bolpur. She took all steps for the medical treatment of her husband at Calcutta when he became ill. The accused O.P. No. 2, though brother of her husband, never looked after her husband.

(3.) Mr. Ghosh further submitted that after performing 'sradh' ceremony of her husband at Siliguri she came back to Bolpur handing over key to the -accused on good faith expecting that the accused O.P. No. 2 would look after the properties of her husband including the residential flat of her husband. On 12.6.2006 she came to Siliguri and when she tried to enter into the residence of her husband she found a new lock and she was not allowed to enter into the house and, the accused O.P. No. 2 disclosed that she and her son have no right of entry into the said house. On the basis of the FIR dated 16.10.2006 the accused O.P. No. 2 was brought under arrest before the learned ACJM on 17.10.2006 but, the learned Magistrate enlarged the accused on bail on the very same date observing that ingredients of sections 406 and 420 of the IPC have not been established. The learned Magistrate also observed that apprehension of theft of cheques do not attract such sections but, the learned Magistrate did not consider that money cannot be withdrawn from bank by presenting self-cheques in respect of a person who had already expired. The accused O.P. No. 2 did not inform the Manager of the bank or the other employees of the bank that the husband of the petitioner expired on 15.3.2006. Concealing the fact of death of her husband the accused O.P. No. 2 withdrew money from the account of husband of petitioner presenting self-cheques after death of husband of petitioner.