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TMI Blog2024 (10) TMI 1212X X X X Extracts X X X X X X X X Extracts X X X X ..... ced anyone since inception; (b) That the said inducement was fraudulent or dishonest; and (c) That mens rea existed at the time of such inducement. The appellant-bank is a juristic person and as such, a question of mens rea does not arise. However, even reading the FIR and the complaint at their face value, there is nothing to show that the appellant-bank or its staff members had dishonestly induced someone deceived to deliver any property to any person, and that the mens rea existed at the time of such inducement. As such, the ingredients to attract the offence under Section 420 IPC would not be available. For bringing out the case under criminal breach of trust, it will have to be pointed out that a person, with whom entrustment of a property is made, has dishonestly misappropriated it, or converted it to his own use, or dishonestly used it, or disposed of that property. In the present case, there is not even an allegation of entrustment of the property which the appellant-bank has misappropriated or converted for its own use to the detriment of the respondent No.5. As such, the provisions of Section 406 and 409 IPC would also not be applicable. Since there was no entrustment of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Tax Act, 1961 IT Act for short . During the course of the search, it was found that Smt. Sunita Khemka held a bank locker bearing No. 462 in the appellant-bank at its Exhibition Road Branch, Patna. 3.2 On the basis of the said operation, on 5th October, 2021, an order under Section 132(3) of the IT Act was served upon the Branch Manager of the appellant-bank at its Exhibition Road Branch, Patna by the concerned Authorized Officer, thereby directing the said branch of the appellant-bank to stop the operation of any bank lockers, bank accounts and fixed deposits standing in the names of Shri Sunil Khemka (HUF), Smt. Sunita Khemka and Smt. Shivani Khemka, among several other individuals and entities, with immediate effect. It was further clarified that contravention of the order would render the Branch Manager liable under Section 275A of the IT Act and the same would result in penal action. 3.3 In compliance of the aforesaid order, the appellant-bank stopped the operation of the bank accounts, bank lockers and fixed deposits of the individuals/entities mentioned in the order. Further, on 7th October,2021, the appellant-bank blocked the bank accounts of the income-tax assesses named ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d /assume that the revocation of the restraint extended to the bank lockers as well. Having misunderstood the order, the bank officials under a bona fide assumption that bank locker had been released as well, allowed Smt. Sunita Khemka to operate the same. 3.9 The statement of Smt. Sunita Khemka had also been recorded wherein she stated that her accountant Surendra Prasad, after speaking with Deepak Kumar, had informed her that the restraint on the aforementioned bank locker had been revoked and she could operate the said locker. This was specifically denied by Deepak Kumar in his statement. 3.10 Dissatisfied with the said explanations, Respondent No. 5 submitted a written complaint to the SHO, Gandhi Maidan Police Station seeking to register an FIR against Smt. Sunita Khemka and the concerned bank officials on the ground that the order dated 5th October, 2021 had been violated owing to the unlawful operation of the aforementioned locker. 3.11 On the basis of the said complaint, on 22nd November, 2021, an FIR being Case No. 549 of 2021 came to be registered against Smt. Sunita Khemka and the staff of the appellant-bank at its aforementioned branch for the offences punishable under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an Lal and others 1992 Supp. (1) SCC 335 , submits that the continuation of the prosecution of the appellant-bank and/or its staff under IPC would amount to undue hardship and miscarriage of justice. 8. Shri Manish Kumar, learned counsel appearing on behalf of the respondents Nos. 1 to 4, on the contrary, submits that the High Court while exercising powers under Section 482 Cr.P.C. cannot conduct a mini trial. It is submitted that this Court in the case of R. Venkatkrishnan v. Central Bureau of Investigation (2009) 11 SCC 737 has held that though a bank or a financial institution may not suffer ultimate loss but if the money has been allowed to be used by another person illegally for illegal purposes, the ingredients of Section 405 IPC would be attracted. 9. It is submitted that access of the bank locker given to Ms. Sunita Khemka in violation of Section 132(2) of the IT Act would attract the offence under Section 409 read with Section 405 of the IPC. 10. It is submitted that the High Court has rightly, relying on various judgments of this Court including Neeharika Infrastructure Private Limited v. State of Maharashtra and others (2021) 19 SCC 401 , held that the High Court cannot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... espect of Bank Accounts, Lockers, Fixed Deposits, etc.-reg. Ref:- This office s letter No.DIN/AC/DDIT/U 2(2)/GHY/2021-22, dated 05.10.2021. In this connection this is to state that, restrain order u/s 132(3) of the Income Tax Act, 1961, were put on the following bank accounts of the persons as stated below. The restrain order put on the following bank accounts only may be revoked by your kind self and they may be allowed to operate these accounts. Sl. No. Name of Account Holder Account No. 1. Sunil Kumar Khemka (HUF) 01861000049315 2. Sunil Kumar Khemka 01861530001080 3. Sunita Khemka 01861530001097 4. Shivani Khemka 01861460006152 14. It could thus be seen that though vide order dated 5th October 2021, a restraint order was imposed in respect of Bank Lockers, Bank Accounts and Fixed Deposits, the Revocation Order dated 1st November 2021 only refers to the Bank Accounts. 15. In the statements of the Officers of the appellant-bank, it is stated that the bank locker was inadvertently permitted to be operated, by misinterpreting the Revocation Order dated 1st November 2021. 16. In the present case, we are only considering the FIR registered for the offences punishable under the differ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... abdicated its role, functions and jurisdiction when seized of a petition under Section 482 CrPC. The High Court recited the legal position that the jurisdiction to quash under Section 482 has to be exercised sparingly. These words, however, are not meaningless incantations, but have to be assessed with reference to the contents of the particular FIR before the High Court. If the High Court were to carry out a prima facie evaluation, it would have been impossible for it not to notice the disconnect between the FIR and the provisions of Section 306 IPC. The failure of the High Court to do so has led it to adopting a position where it left the appellant to pursue his remedies for regular bail under Section 439. The High Court was clearly in error in failing to perform a duty which is entrusted to it while evaluating a petition under Section 482 albeit at the interim stage. 63. The petition before the High Court was instituted under Article 226 of the Constitution and Section 482 CrPC. While dealing with the petition under Section 482 for quashing the FIR, the High Court has not considered whether prima facie the ingredients of the offence have been made out in the FIR. If the High Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its own use to the detriment of the respondent No.5. As such, the provisions of Section 406 and 409 IPC would also not be applicable. 25. As already discussed hereinabove, since there was no entrustment of any property with the appellant-bank, the ingredients of Section 462 IPC are also not applicable. 26. Likewise, since the offences under Section 206, 217 and 201 of the IPC requires mens rea, the ingredients of the said Sections also would not be available against the appellant-bank. 27. The FIR/complaint also does not show that the appellantbank and its officers acted with any common intention or intentionally cooperated in the commission of any alleged offences. As such, the provisions of section 34, 37 and 120B of the IPC would also not be applicable. 28. It will be relevant to refer to the following observations of this Court in the case of Bhajan Lal and others (supra): 102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice. 29. We find that the present case would squarely fall within categories (2) and (3) of the law laid down by this Court in the case of Bhajan Lal and others (supra). 30. We are of the considered view that the continuation of the criminal proceedings against the appellant-bank would cause undue hardship to the appellant-bank. 31. In the result, we pass the following order. (i) The appeal is allowed. (ii) The impugned judgment and order dated 8th June 2022 passed by the learned Single Bench of the High Court of Judicature at Patna in Criminal Writ Jurisdiction Case No. 1375 of 2021 is quashed and set aside. (iii) The First Information Report being Case No. 549 of 2021 registered at Gandhi Maidan Police Station, Patna on 22nd November, 202 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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