(1.) This is an application under S. 482 of the Code of Criminal Procedure for quashing the order dated 16-3-2002 passed by Sri S. B. Rai, Judicial Magistrate. Bettiah in Complaint Case No. 1909C/2001 (Trial No. 1911/2001} by which he has ordered to issue summons against the petitioner for standing trial for offence under S. 420 of the Indian Penal Code.
(3.) The prosecution case as disclosed from the complaint petition dt. 21-9-2001 is that the complainant (O.P. No, 2) is a poor and illiterate person. In the month of March in the preceding year, the accused-Bhikhari Baitha went along with the accused-petitioner to the house of the complainant and informed htm that the petitioner was distributing loan on subsidy and he should avail of the facility. The petitioner also assured that the loan would be advanced within a month along with due subsidy, After some days both the accused again went to the complainant and c
Please Login To View The Full Judgment!
alled him at Jogapatti Branch of the Bank for executing certain papers for advancing loan to him, The complainant went to the Bank. The accused persons told him to fill up papers of crop loan. The complainant told them that he had got no land.
(4.) They however insisted to execute the documents. The accused persons took L.T.I. of tbe complainant on some papers and assured him that they would inform him when the loan was sanctioned and on information he would come and receive the amount. It is further alleged that thereafter the complainant contacted the accused persons on 3-4 occasions but they informed that the loan had not been sanctioned. But about 7 to 8 days before filing of the complaint he received a notice from the Bank to deposit a sum of Rs. 13,690/- towards the loan given to him. The complainant then made enquiry and learnt that the two accused in conspiracy with each other, had withdrawn the loan in the name of the complainant.
(5.) It appears that after filing of the complaint, the complainant was examined on S.A. and then the complainant examined two witnesses under S. 202, Cr. P.C. The learned Magistrate, on the basis of their statements directed to issue summons against the petitioner and co-accused-Bhikhari Baitha.
(6.) Learned counsel for the petitioner submitted that the petitioner was the Manager of a Branch of Central Bank of India, Jogapatti and was thus a public servant, Therefore, previous sanction of the competent authority was necessary for prosecuting him and as no sanction was obtained the cognizance taken, against him is bad in law, In support of his contention that the petitioner was a public servant, he has relied on the decision of the Apex Court In the case of Union of India v. Ashok Kumar Mitra, reported in AIR 1995 SC 1976 : (1995 Crl LJ 3633) and the Division Bench decision of this Court in the case of Shyam Nandan Prasad Sinha v. Punjab National Bank, reported in 1998 (3) PLJR 146.
(7.) He further submitted that there Is a procedure prescribed for advancement of short term crop loan to agriculturist. According to that procedure, the agriculturist, when Intends to get short term crop loan, he is required to make an application in the prescribed form before the concerned B.D.O. stating, inter alia, the amount of loan which he intends to get, with the details of land possessed by him along with the crops standing on the land. The concerned B.D.O. after verifying the details through proper agency forwards the loan application to the Bank concerned with his recommendation. After receipt of the loan application, the Field Officer of the Bank verifies the capability of the loanee to return the loan and genuineness of the report submitted by the block authority. After verification, the Field Officer gives his recommendation for loan and then the Branch Manager sanctions loan. The loan is advanced to the agriculturist after signing of the agreement paper by the loanee and two guarantors. Then, half of the loan 302 Criminal Law Journal Cri. L.J. amount is advanced in cash on an application by the loanee and half of the loan amount is advanced in kind in the form of fertilizers and seeds. This payment is made after the acceptance of quotation by the Bank.
(8.) Learned counsel then referred to Annexures 2 and 3 of the application and submitted that Annexure 2, which is a photo copy of the application dated 5-5-1999 addressed to the petitioner, would show that the complainant had filed an application for agricultural loan of Rs. 25.000/- and his photograph and L.T.I. thereon were attested by the B.D.O. and while attesting the L.T.I, of the complainant and the signatures of his guarantors it was mentioned that the applicant (complainant) and his guarantors had signed in his presence. Annexure 3 shows that the B.D.O. thereafter through his letter No. 1258 dated 21-5-1999 sent the application of the complainant along with the applications of some other persons to the petitioner with his recommendation for grant of loan. Therefore, it cannot be said that the petitioner contacted the complainant and obtained his L.T.Is. on the application. He further pointed out that the application would further show that the co-accused-Bhikhari is a guarantor of the complainant, and submitted that it cannot be conceived that Bhikhari Baitha would obtain the L.T.Is. of the complainant fraudulently and him-self would be a guarantor. This also falsifies the allegation of the complainant against the; petitioner and the co-accused. Learnedl counsel also referred to technical recommendation of A.F.O. /Agriculture Assistant made; on the body of the application wherein it is mentioned that the complainant had 2.9CI acres of land he also referred to Annexure 4 series and submitted that these annexures. show that the complainant was not landless as alleged by him in the complaint. He also referred to Annexures 5 to 9 to show that out of the sanctioned amount of Rs. 11.600/- to the complainant, half of the amount i.e. Rs. 5800/- was given to him in cash and the remaining sum was given in. kind through the shop Keshav Krishi Kendra and the complainant had given undertaking for payment of the loan and his guarantors including the co-accused had given guarantee for payment and when the complainant failed to repay the loan, ultimately notice was served on him for Rs. 13.690/-.
(9.) The contention of the learned sel, hence, is that the allegations are false and mala fide.
(10.) Learned A.P.P. appearing on behalf of the State defended the impugned order.
(11.) As regards the first contention of the learned counsel, in view of the decisions relied on by the learned counsel, there can be no doubt that the petitioner, who was Manager of Central Bank of India, was a public servant. However, to get protection under S. 197, Cr. P.C. the public servant must be one who is not removable from the office save and except by or with the sanction of the Government; but there is nothing to show that the petitioner was a public servant not removable from the office save and except by or with the sanction of the Government. So, there was no necessity of previous sanction to prosecute the petitioner. The Impugned order, hence, would not be bad on that account.
(12.) Then, so far the other submission of the learned counsel, it is well settled that at the time of taking cognizance the Magistrate has only to see whether the complaint petition discloses offences against the accused and whether there is evidence to support the same. The Magistrate is not required to consider the defence of the accused. It is also true that annexures to the petition under S. 482, Cr. P.C. should not be acted upon by the High Court without being tested and proved. But as observed by the Apex Court in the case of State of Orissa v. Devendra Nath, reported in (2005) 1 SCC 568 : (AIR 2005 SC 359), in exceptional cases this Court can look into those documents which are unimpeachable and can be translated into the relevant evidence.
(13.) In this also at least Annexures 2 and 3 appeared to be unimpeachable in nature. The photo and L.T.I, on application of the complainant (Annexure 2) had been attested by the B.D.O., a reliable Government Officer and attestation being the seal of the B.D.O. Similarly, the letter (Annexure 3) by which the application was forwarded to the petitioner with the recommendation bears the date and signature of the B.D.O. Therefore, the genuineness of those two documents cannot be doubted. Both the documents can also be translated into relevant evidence.
(14.) This case is also of exceptional nature. It involves the Manager of a Bank who gives loan to poor and needy cultivators and if he is innocent and protection is not given Cri LJ - JAN 2007 - REPORTS to him and allowed to contest the case great in justice would he caused to him, and other such Bank officials would also feel insecure in granting toan to the cultivators.
(15.) Therefore, in thr interest of justice feel that atleast the above documents would be taken into consideration and if they are taken into consideration, in view of the submissions of the learned counsel, the, allegations made in the. complaint petition that the petitioner and co-accused had obtained the L.T.ls. of the complainant on the application become false and the entire case appears mala fide.
(16.) In the result, the application is allowed. The impugned order, so far it relates to the petitioner as also the co-accused, is quashed. Petition allowed