CHANDRA SINGH RAI Vs. STATE OF SIKKIM

JUDGEMENT

(1.) The Petitioners herein assail the Order of the Learned Special Judge (PC Act, 1988), in Sessions Trial (Vigilance) Case No.01 of 2020, dtd. 20/4/2021 by which the Learned Trial Court declined to accord consent for withdrawal from Prosecution and rejected the application filed under Sec. 321 of the Code of Criminal Procedure, 1973 (in short "Cr.P.C") by the Special Public Prosecutor (Vigilance), hence this Revision Petition.

(2.) (i). Learned Senior Counsel for the Petitioners advancing his arguments briefly led this Court through the facts of the case. It was contended that on 2/6/2009, a Current Account was opened by the Sikkim Scheduled Castes, Scheduled Tribe and Other Backward Classes Development Corporation Limited (SABCCO) in the Canara Bank wherein an amount of Rs.31,78,658.00 (Rupees thirty one lakhs, seventy eight thousand, six hundred and fifty eight) only, was deposited. Through the period 3/6/2009 to 14/12/2009, 10 (ten) numbers of cheques were issued, signed by both the Petitioners, employees of the SABCCO, the Petitioner No.1 being the Deputy General Manager (Finance and Accounts) of SABCCO and Petitioner No.2 being the Managing Director of SABCCO, withdrawing a total amount of Rs.31,78,658.00(Rupees thirty one lakhs, seventy eight thousand, six hundred and fifty eight) only, from the said account. That later, on 17/9/2012, Rs.29,50,000.00 (Rupees twenty nine lakhs and fifty thousand) only, was deposited in the Savings Bank Account of SABCCO in the Axis Bank and on 15/11/2013, an amount of Rs.2,29,044.00 (Rupees two lakhs, twenty nine thousand and forty four) only, was also deposited. That, the Prosecution case is that loss of approximately Rs.13,00,000.00 (Rupees thirteen lakhs) only, was caused to the State Exchequer on account of the loss of interest in the intervening three years from 3/6/2009 to 16/9/2012 due to withdrawal of the entire amount, allegedly by the Petitioners. It was urged that the Learned Trial Court in the impugned Order has considered the merits of the case while rejecting the Petition under Sec. 321 of the Cr.P.C instead of only examining whether the Learned Public Prosecutor had applied his independent mind while filing the Petition seeking withdrawal. That the merits of the matter cannot be considered by the Court in a petition seeking withdrawal from Prosecution and the Learned Trial Court failed to consider the law laid down by the Hon'ble Supreme Court on this aspect. To buttress his submissions on this count succour was drawn from the ratio in Name Dasrath v. State of Andhra Pradesh 2014 10 SCC 395. That there are no ingredients to prima facie make out a case against the Petitioner under the Ss. that the Charge-Sheet has been filed under for which reliance was placed on N. Raghavender v. State of Andhra Pradesh, CBI AIR 2022 SC 826.

(3.) Learned Public Prosecutor for the State-Respondent advancing her arguments supported the stand of Learned Senior Counsel for the Petitioners and sought to convince this Court that in the impugned Order all that the Learned Trial Court was to consider was whether there was proper application of mind by the Public Prosecutor when the Petition under 321 of the Cr.P.C was filed and whether there was public interest in filing of such Petition but the Learned Trial Court went beyond the call of duty in holding that prima facie materials existed in the records against the Petitioners, hence the order be set aside and the Petition is allowed.