SEN, J. - (1.) THIS is a rule obtained against an order passed by Sri K. C. Banerjee, Police Magistrate, Alipore, rejecting the application by one Gopesh Chandra Pal for being discharged in certain proceedings under Section 409 read with Section 120B, Penal Code.
(2.) THE facts briefly are as follows: The complainant Nirmal Kumar Das Gupta opened a current account with the Mahaluxmi Bank. He issued a cheque in favour of Messrs. Dunlop Rubber Company on the Bank for the sum of Rs. 2000 odd on 6th September 1948. On 9th September 1948, the complainant Nirmal Kumar Das Gupta received a telephone message from Messrs. Dunlop Rubber Company that the cheque had been returned by the Bank on the ground that the signature differed. Upon this the complainant went and saw the accountant of the Bank whose name is Lalit Sen and it is alleged that Lalit Sen told him that he should sign the cheque again and that there would be no trouble. The complainant signed the cheque again and it was presented on 11th September 1948, but payment was again refused, this time on the ground that the Bank was not functioning owing to a strike by the employees. The statement of the complainant is that these excuses for not meeting this cheque were false and frivolous and the Bank was trying to gain time for an application to the High Court under the Companies Act and he alleged that on 11th September 1948 Gopesh Chandra Pal the Managing Director, Rajani Dutt, the Chief Accountant and Lalit Sen, the Accountant, misappropriated his money dishonestly. This is stated in Para. 8 of the petition of complaint. In para 11 of the petition of complaint, it is stated that the Managing Director and the Accountant abetted Rajani Dutt in the commission of the offence of misappropriation punishable under Section 403, Penal Code and also of the offence of misappropriation punishable under Section 409, Penal Code. The complainant was examined by the learned Magistrate and in the last few lines of the examination his statement is recorded thus : 'The said Bank as represented by the accused cheated me and also committed criminal breach of trust.' I have been at pains to mention these matters in detail in order to show that the complainant had a very hazy notion of who had cheated him or who had misappropriated his money. In one paragraph he says that all the accused persons misappropriated his money and in another paragraph he says that of the accused two of them abetted the other and finally in his initial statement he says that the Bank cheated him and committed criminal breach of trust. Upon this complaint being made, summonses were issued against Gopesh Chandra Pal, the Managing Director, and Lalit Sen, the Accountant, under Section 409 read with Section 120B, Penal Code. Here, again, I would point out that the learned Magistrate had a very vague idea of the meaning of Section 409, Penal Code. Section 409, Penal Code deals with criminal breach of trust by a public servant or by a banker, merchant, factor, broker, attorney or agent. Now, neither of these persons against whom summonses were issued were public servants, nor were they bankers. They were persons working in a bank and persons working in a bank are not bankers. Therefore Section 409, Penal Code has absolutely no application to this case. After the accused appeared a Rule was obtained from this Court for quashing the proceedings against them. On the date of hearing of the Rule learned advocate appearing for the two petitioners stated that he wag instructed not to proceed with the Rules. Upon that statement being made my learned brother Blank J. passed an order 'The Rules are accordingly discharged.' Thereafter the petitioners moved the trial Magistrate praying that they may be discharged under Section 253(2), Criminal P. C., on the ground that no offence had been disclosed against them in the petition of complaint or the initial statement. The learned Magistrate refused the prayer and the present Rule has been obtained against that order.
(3.) ON behalf of the complainant learned advocate contends that the previous Rules having been discharged it was not competent for the petitioners to move the trial Court, nor was it competent for them to obtain a Rule from this Court. He contends that the grounds upon which a discharge has been claimed before the learned Magistrate are almost identical with the grounds given for the issue of the present Rule. In my opinion this preliminary objection should fail. The Rules which were obtained were not pressed and no decision of the Court was given on the merits. There is nothing in the Code of Criminal Procedure which would prevent the petitioners from applying for a discharge under Section 253(2), Criminal P. C., before the learned Magistrate. There is no such thing as res judicata in criminal trials. The only section which lays down a principle which resembles the principle underlying the doctrine of res judicata is Section 403, Criminal P. C., but that section has no application whatsoever to the present case. There may have been many grounds for learned Advocate appearing before Blank J., for not pressing the applications. I do not propose to go into the question why learned Advocate was instructed not to proceed with the Rules. The fact that he did not proceed with the Rules does not in my opinion debar the petitioners from moving the Magistrate for an order of discharge if such an order were permissible in the circumstances of this case.;