J.N.HORE, J. - (1.) THIS is an application under Article 217 of the Constitution of India and Sections 401 and 482 of the Criminal Procedure Code for quashing the criminal proceeding being Case No. CII of 1991 in the 9th Court of the learned Judicial Magistrate, Alipore u/Sections 120B 409, 420, 465 and 500 of the Indian Penal Code.
(2.) PETITIONER No. 1 ANZ Grindlays Bank PIC having a branch office at 10, Sansad Marg. New Delhi represented by petitioner No. 2 S.C. Bhargava formerly Assistant Manager and now Manager, Area Administration, Northern India are accused Nos. 4 and 5 respectively. On 3 -1 -1991 the complainant -opposite party Shipping and Clearing (Agents) Pvt. Limited (hereinafter referred to as SCAL) filed a petition of complaint in the Court of the Sub -Divisional Judicial Magistrate, Alipore, South 24 - Parganas against the petitioners and some other persons alleging commission of offence u/Sections 120B, 409, 410, 465 and 500 of the Indian Penal Code. The allegations in the petition of complaint may briefly be stated thus : Complainant SCAL has a Branch Office at New Delhi situated at B 27 Sagar Apartments, 6. Tilak Marg. Accused Nos. I and 2 are Directors of accused No. 3 which is an existing company carrying on business in transportation, shifting, clearing and air -cargo operations. By virtue of an agreement accused Nos. I and 2 as Directors of accused No. 3 took over the charge of business of the SCAL's Office at New Delhi with effect from 1st April, 1986 for a term of 3 years. SCAL maintained current account No. O/C BM -8174990 with the accused No. 4 ANZ Grindlays Bank at its Branch at 10, Sansad Marg, New Delhi and accused No. 5 was the Assistant Manager of the Bank at the relevant time. By virtue of the agreement between the accused No. 3 and the complainant accused Nos I and 2 being Directors of accused No. 3 had been operating the said account of the complainant. The proposal for renewal of the agreement was rejected by the complainant but a grace period of 8 months was allowed to settle the outstanding matters ending on 30th June 1989. Accused No. 3 also maintained an account with the accused No. 4 Bank operating through accused Nos. 1 and 2. Accused Nos. I and 2 were asked to draw upto date accounts and to close all bank accounts as on 0 -6 -1989. But accused Nos. 1 and 2 and 6 with mala fide intention failed to close the said account with the accused No 4 Bank, The Managing Director of the complainant company came to learn on 11th November, 1984, that accused No. 1 collected a cheque from a customer of the complainant and arranged to syphon the proceeds to the credit of accused No. 3 using the service of accused No. 4 Bank. Thereafter the complainant sent a letter and mandate, to the accused No. 4 to close the complainant's account which was received by accused No. 4 on 15 -11 -1989. But accused No. 4 Bank transferred a sum of Rs. 52,572.30 on 15 -11 -1989 from the complainant's account to the account of accused No. 3 without having any authority to do so and failing to abide by the instructions of the complainant. The unauthorised transaction by accused No. 4 was further aggravated by transferring a sum of Rs. 2,000/ - on 17 -11 -1989 from the complainant's account to the account of accused No. 3. These transactions were made with the mala fide intention to cheat the complainant by committing breach of trust by the accused persons including the accused No. 4 Bank. The complainant sent lawyer's notice to the accused No. 4 calling upon it to make payment of the cumulative sum of Rs. 55,277.65 which was illegally transferred to the accused No. 3' account making a wrongful gain for the said accused and causing a wrongful loss to the complainant on 15 -11 -1989 and 17 -11 -89 ignoring the instructions of the complainant. Accused No 4 sent a reply on 18 -12 -1989 denying negligence and liability on the part of the Bank. The accused persons have thus committed offences punishable u/Sections 120B, 409, 420, 465 and 500, Indian Penal Code.
(3.) ON perusal of the complaint the learned Sub Divisional Judicial Magistrate, Alipore, South 24 Parganas took cognizance by an order dated 3 -1 91 and transferred the case to the 9th Court of the learned Judicial Magistrate, Alipore and the learned Magistrate by order dated 14 -1 -91 issued process against the petitioners and others u/Sections 120B, 400, 420, 461 and 500 of the Indian Penal Code.;