GOPALDAS BULAKBIDAS MOHTA Vs. STATE OF MAHARASHTRA
LAWS(BOM)-1972-2-14
HIGH COURT OF BOMBAY
Decided on February 14,1972

Gopaldas Bulakbidas Mohta Appellant
VERSUS
STATE OF MAHARASHTRA Respondents

JUDGEMENT

V.D. Tulzapurkar, J. - (1.) IN these appeals, apart from challenging the convictions on merits, counsel for some of the appellants raised four or five legal contentions and it will be convenient to deal with these legal contentions seriatim at the outset. In the first place, the sanction or consent of the State Government under section 196 -A of Criminal Procedure Code, to initiate proceedings and prosecute these accused granted by the State of Maharashtra on November 6, 1962 in this case was challenged as being invalid or bad in law. The sanction or consent of the State Government has been produced at exh. 2154; the validity thereof was challenged in the trial Court on some grounds which were negatived by the learned Additional Sessions Judge but the challenge made before us is on an altogether different ground which was not urged in the lower Court. It was pointed out that the present case was governed by sub -section (2) of section 196 -A, inasmuch as, one of the objects of the criminal conspiracy, as suggested by the prosecution, was to commit a non -cognizable offence, namely, falsification of accounts under section 477 -A, Indian Penal Code and as such no Court could take cognizance of this case unless the State Government had by an order in writing consented to the initiation of proceedings against the accused and since such sanction or consent in writing was necessary in this case, the question assumed importance as to whether the sanction or consent in writing of the State Government produced at exh. 2154 was valid or not. It was further pointed out that the sanction or consent in writing produced at exh 2154 in this case, though issued 'by order and in the name of the Governor of Maharashtra' was signed by Shri J. R. Cabral, Deputy Secretary to the Government of Maharashtra, Home Department, and according to counsel, this clearly suggested that it was the Home Department, that is, either the Home Minister or the Secretary of the Home Department, who had applied his mind to the facts and papers of the case submitted by the investigating machinery to Government and it was contended that under the Business Rules framed under Article 166 (2) and (3) of the Constitution, the subject of issuing sanction or consent in writing under section 196 -A, Criminal Procedure Code had been allocated at the material time i. e. in 1962 to the Law and Judiciary Department (vide items Nos. 23 and 24 enumerated in the List under Law and Judiciary Department), and therefore, in law it was permissible for the Law and Judiciary Department alone, that is either the Law Minister or the Law Secretary who could have considered the matter while applying mind to the facts of the case and, therefore, the sanction or consent in writing at exh. 2154 which had been granted by the Home Department was invalid or bad in law and as such the entire prosecution and along with it the convictions of the accused were vitiated. In support of this contention, counsel relied upon the decision of the Supreme Court in R. J. Singh v. State of Delhi : AIR 1971 S C 1552. He pointed out that in that case when the sanction to prosecute the accused for offences under section 161, Indian Penal Code and section 5 (2) of the Prevention of Corruption Act had been signed by one Mr. K. Rajaram, Deputy Secretary to the Government of India as the authority competent to remove the accused from service, the Court held that the said sanction was invalid, inasmuch as it was the Home Department of Government of India which could sanction the prosecution. It was, therefore, urged that in this case there was nothing to show that it was the Law and Judiciary Department that had applied its mind to the question whether the sanction or consent in writing should be given under section 196 -A, Criminal Procedure Code for the initiation of proceedings against the accused or not and, therefore, the sanction or consent in writing as evidenced by exh. 2154 must be held to be invalid. In our view, this contention has to be rejected for two reasons. In the first place, the entire argument of counsel was founded upon the simple fact that one Shri J. R. Cabral, Deputy Secretary, Home Department, Government of Maharashtra, had signed the order of sanction (exh. 2154) and on that fact an edifice was built that it must be the Home Department which must have applied its mind to the facts of the case and not the Law and Judiciary Department as required by the Business Rules. Mr, Dharmadhikari for the State urged that since under the Business Rules it was the Law and Judiciary Department that had to apply its mind to this question it must have done so and decided to accord sanction or consent to the initiation of these proceedings and the order might have merely come to be signed by the Deputy Secretary, Home Department and he made a grievance that, had this aspect been raised in the trial Court the prosecution would have placed the relevant material before that Court. The position being not very clear and since this aspect of sanction was pressed for the first time before us, following the course adopted by the Supreme Court in the case relied upon by the defence counsel, we asked Mr. Dharmadhikari to obtain instructions on the point and find out whether the Law and Judiciary Department had sanctioned the initiation of proceedings and launching of prosecution and Mr. Dharmadhikari has now filed an affidavit dated October 25, 1971 of Mr. Deshpande, Under Secretary in the Law and Judiciary Department clarifying the position that it was the Law and Judiciary Department that had applied its mind and granted sanction. Exhibit 2154 must, therefore, be held as a valid sanction. Secondly, there is another strong reason why the contention must fail. The real question is whether the sanction or consent in writing of the State Government to initiate proceedings and prosecute the accused under section 196 -A, Criminal Procedure Code is necessary in this case and it was pointed out by Mr. Dharmadhikari that the position in law was clear that if the principal or main object of the criminal conspiracy was to commit cognizable offence and the object to commit non cognizable offence or offences was ancillary to the main object, then, the case was not governed by section 196 -A, Criminal Procedure Code and for want of sanction the prosecution cannot fail and in this behalf he invited our attention to two decisions, one of the Supreme Court reported in Bhanwar Singh v. State of Rajasthan : A I R 1968 S C 709. and the other of the Andhra Pradesh High Court reported in Vadlamudi v. State of A, P. : A I R 1961 A. P. 448. In the former case, the main object of the criminal conspiracy suggested was to commit an offence of cheating under section 420, Indian Penal Code but other non -cognizable offence like forgery of document (section 467, Indian Penal Code) and using as genuine a forged document with requisite knowledge (section 471, Indian Penal Code) were also committed as merely steps taken by one or the other of the accused for the purpose of effecting the main object of conspiracy and the Supreme Court held that a trial under such circumstances for the offences charged without obtaining sanction under section 196 -A (2) of the Criminal Procedure Code was neither illegal nor void and the Supreme Court observed as follows : It is necessary to keep in mind the difference between the object of a conspiracy and the means adopted for realising that object. Even if the object of the conspiracy, viz., of cheating, is sought to be attained by resort to non -cognizable offences, sanction under section 196 -A of the Code is not necessary. In the case before the Andhra Pradesh High Court the criminal conspiracy was entered into to commit cognizable offence under section 409, Indian Penal Code and non -cognizable offences under sections 467 and 468, Indian penal Code were committed in pursuance of and for carrying out the conspiracy and the Court held that sanction under section 196 -A (2) for taking cognizance of the offence of conspiracy was not required. In the present case, there is no doubt that the main object of conspiracy or rather the sole object has been to commit criminal breach of trust and falsification of accounts has undoubtedly been indulged in to achieve that object ; in fact the latter offence was committed as and by way of a device adopted to accomplish the criminal breach of trust and to prevent the detection thereof. In this view of the matter, it seems to us clear that the sanction under section 196 -A (2), Criminal Procedure Code was really unnecessary in this case and the contention raised must be rejected.
(2.) THE nest legal contention urged was in connection with the entrustment of the property in question to accused No. 1. Undisputably the property which is the subject -matter of the alleged criminal breach of trust in this case is a chose -in -action being the dues of Laxmi Bank recoverable from Rekhchand Gopaldas firm under the Banker's account and on the question of the entrustment of this property to accused No. 1 a twofold contention was raised, namely that in law accused No. 1 was not a trustee of that property either in his capacity as the sole proprietor of the firm Rekhchand Gopaldas or in his capacity as the Managing Director of Laxmi Bank and as such there being no entrustment of the property to him; no offence of criminal breach of trust could be committed by him. We will presently deal with both the aspects of the contention. On the first aspect it was pointed out that by the Board's Resolution exh. 205 Rekhchand Gopaldas firm was appointed the banker of Laxmi Bank and as such so far as the dues under the Banker's account were concerned, the relationship between Rekhchand Gopaldas on the one hand and Laxmi Bank on the other was clearly that of a banker and his customer, that is to say, the relationship was of a debtor and creditor and, therefore, it was urged that no criminal breach of trust could take place in respect of the said dues recoverable under the said Banker's account, inasmuch as, in law there could be no entrustment of constituent's monies with the banker. In support of this contention several decisions were cited at the Bar, to some of which only a reference need be made. The earliest English case which pronounces upon the correct relationship between a banker and his customer is Foley v. Hill, (1848) 2 H L C 28. where the relevant observations run as follows: The relation between a Banker and Customer, who pays money into the Bank, is the ordinary relation of debtor and creditor, with a superadded obligation arising out of the custom of bankers to honour the customer's drafts;... This exposition of the legal position pertaining to the relation between a banker and customer has been approved by later English as well as Indian decisions, in some of which it came to be considered in the context of the offence of embezzlement or breach of trust. In Attor. -Gen. of Canada v. Attor. Gen. of Qubec Province, A I R 1947 P C 44. the Privy Council has made certain observations, the relevant portions whereof have been succinctly reproduced in Head Note (B) as follows: . . The relation between banker and the customer who pays money into the bank is the ordinary relation of a debtor and creditor with a superadded obligation arising out of the custom of the bankers to honour the customer's drafts Once the deposit is made there remains only a debt due from the banker to the customers. Money deposited with a bank is also not trust money which the trustee must preserve and not use; on the contrary it is tent for a se and the bank is not a trustee but a debtor to the depositor. The difference between property and possession of deposits does not come in question; the only obligation adder which a bank lies is to repay a like sum in the like currency. In Gopesh Chandra v. Nirmal Kumar : A I R 1950 Cal. 57, the Court has observed as follows: Section 409 presupposes entrustment. When a person opens a current account in a bank, there is no question of entrustment. The relationship between the bank and the customer is one of creditor and debtor. Hence there can be no case against a bank or its officers for committing an offence under section 409 in respect of the money deposited by a customer. The bank is free to use the money deposited by the customer or constituent in any way it likes and is not bound to keep the money apart. No bank can ever function if it was obligatory on it not to touch the money of a person who makes a deposit in its current account. The bank is liable to pay the money to the customer when called upon but until called upon to pay it the bank is entitled to utilise the money in investment and in other ways for earning profit therefrom. If a cheque is dishonoured, that does not connote misappropriation. The remedy for a cheque being wrongfully dishonoured lies in the civil Court. This is not a matter which is to be tried by a criminal Court. Reference was also made to a decision of this Court reported in Deochand v Madanial : 1968 Mh. L J 113=, (1967) 70 Bom. L R 280. where following the above principle it was held by Deshtnukh J. that where a person had made a deposit of monies with a shop keeper without anything more, the relationship between the shop -keeper and the depositer was held to be that of debtor and creditor and there was no entrustment within the meaning of section 405, Indian Penal Code. Relying upon these decisions, it was urged before us that since M/s. Rekhchand Gopaldas the sole proprietory firm of accused No. 1 was a private banker of Laxmi Bank the amounts or dues covered by such Banker's account could not be said to have been entrusted with the said firm of accused No. I within the meaning of section 403, Indian Penal Code, the relation between that firm and the Laxmi Bank being that of debtor and creditor and as such no offence of criminal breach of trust could at all take place at the hands of accused No. 1.
(3.) IN our view, though there could be no quarrel with the legal position enunciated in the aforesaid decisions governing relationship between a banker and his customer, that legal position is thoroughly irrelevant to the present case and the contention based thereon is utterly futile. In the present case, prosecution has nowhere suggested that the dues recoverable under the Bankers" account were entrusted to the firm of Rekhchand Gopaldas or to accused No. 1 as its sole proprietor nor is the prosecution seeking to hold accused No. 1 guilty for criminal breach of trust in respect of the said dues in his capacity as the sole proprietor of the said firm. Had that been the case, then the question of invoking the principle enunciated in these decisions would have arisen. There is, therefore, no substance in this contention.;


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