- (1.) HON'ble MATHUR, J.-By way of instant petition under Section 482 Cr. P. C. , the first petitioner Shri G. K. Purohit, Chief General Manager, State Bank of Bikaner and Jaipur and the second petitioner Shri S. K. Kothari, Manager (P. F. & Gratuity), State Bank of Bikaner and Jaipur seeks to quash the F. I. R. No. 40/1997 Police Station Kotwali, Sriganganagar filed by the second respondent Baij Nath Garg, a dismissed employee of the Bank ("branch Manager at Wair Branch (District Bharatpur) of the Bank") for offence under Section 406 and 420 I. P. C. The petitioners have also challenged the order dated 05. 10. 1998 passed by the Additional Chief Judicial Magistrate, Srikaranpur directing further investigation on a negative report forwarded by the police. FIRST INFORMATION REPORT :
(2.) ON 04. 02. 1997 at 10:15 AM, the second respondent Baijnath Garg submitted a written report at Police Station, Sriganganagar. It is averred that he has been dismissed by the Chief Manage (Operation) of S. B. B. J. Bank and he has challenged the said order by way of writ petition which is pending before the Rajasthan High Court, Jaipur Bench. He asked the Bank for payment of Provident Fund amount whereupon the Bank informed him that Bank's contribution towards the Provident Fund is Rs. 1,27,254. 50p and the member's contribution is Rs. 1,80,178. 50p in total Rs. 3,07,433/- for which he was required to produce an advance receipt. It is alleged that the Bank Officers by order dated 19. 07. 1995 misusing their powers sent a cheque dated 19. 07. 1995 only for a sum of Rs. 1,14,235. 15p. It was claimed that the Bank was entitled to deduct Rs. 22,386/- and Rs. 43,557. 35p out of the Bank contribution but Rs. 43,557. 35p was wrongly deducted from his contribution. Thus, by wrongful deduction and not returning his Provident Fund amount, the Bank has misappropriated his amount. It is further averred that only Rs. 14,263/- could be deducted from his contribution but the Bank has wrongly deducted Rs. 22,386/ -. The grievance has also been made with respect to the gratuity amount. It is averred that the informant is entitled to 15 months pay as gratuity to the tune of Rs. 1,57,500/- but the Bank has wrongly ordered that this amount could be realised from the money payable to the complainant and, thereafter, on 26. 06. 1996, the total amount of gratuity was ordered to be forfeited. It is claimed that the order is illegal as the authority passing the said order had no authority to realise the loss caused to the Bank. It is further averred that as the loss caused by the informant's act has not been determined and no court of law has yet found him guilty, the order of forfeiture of gratuity amount is illegal. It is submitted that the amount of Provident Fund as well as the gratuity are trust money and any adjustment of the said amount comes within the ambit of misappropriation. ON this information, police registered a case for offence under Section 420 and 406 I. P. C. and commenced the investigation. POLICE REPORT : After usual investigation, police forwarded a negative report to the court of Chief Judicial Magistrate. It was revealed during the investigation that informant Baij Nath Garg was an officer in the Middle Management Category-III. As a consequence of disciplinary enquiry, he was dismissed from the service. The authority also passed the order of forfeiture of the Bank contribution in Provident Fund as well as the gratuity amount for realisation of financial loss suffered by the Bank on account of his misconduct. The police also found that after the retirement of Chief General Manager, the Executive Committee of the Bank passed an order authorising the General Manager (Operation) for taking appropriate disciplinary action. Thus, the order of termination was passed by Shri Prabhu Dayal, Chief General Manager as a disciplinary authority. The police also examined various provisions of Employees Provident Fund and Regulations of Bank and found that amount of loss to the Bank was recoverable from the Bank contribution as per the provisions of Gratuity Act and Regulations. The police also took the note of fact that informant has taken the same case to the Consumer Forum and failed. In the opinion of the police, no case for prosecution of officers of Bank under Section 420 and 406 I. P. C. is made out. According to the police, the entire dispute is essentially of civil nature pending adjudication before the High Court. Accordingly, police forwarded negative report to the Chief Judicial Magistrate. The acceptance of Final Report was objected by the informant by way of protest petition. Chief Judicial Magistrate, Sri Ganganagar by order dated 06. 04. 1998 directed to transfer the case to the court of Additional Chief Judicial Magistrate. The Additional Chief Judicial Magistrate instead of accepting the Final Report directed for further investigation by order dated 05. 10. 1998. It is submitted that on a frivolous complaint, the officers of Bank have been unnecessarily harassed and as such the investigation being an abuse of the process of court, deserves to be quashed. At the outset it has been brought to the notice of this court that first petitioner Shri G. K. Purohit has died and second petitioner Shri S. K. Kothari has retired as back as on 31/7/2001. The factual scenario, as emerges from the material on record is that the informant was a Branch Manager at Wair Branch (District Bharatpur) during the period 9/2/1991 to 30/4/1992. A departmental enquiry was conducted against him in accordance with the provisions of S. B. B. J. (Officer's) Service Regulations 1979. The disciplinary authority found him guilty of the alleged misconduct and passed a punishment of dismissal from service. It was also ordered that wrongful loss of Rs. 2,00,000/- caused by the said act of the respondent, may be recovered from his emoluments. The disciplinary authority further held that misconduct as proved, constituted a criminal offence involving moral turpitude and as such by virtue of Section 4 (6) (b) (ii) of the Payment of Gratuity Act, 1972, the Bank ordered for forfeiture of the gratuity amount payable to the second respondent after following the procedure as provided in the Act. It has also been pointed out that Bank was empowered in terms of Rule 17 (2) of the S. B. B. J. Employees Provident Funds Rules to disallow the E. P. F. to the respondent. The appeal before the appellate authority was dismissed vide order dated 19. 02. 1996 affirming the order of disciplinary authority dated 13. 12. 1994. The respondent has challenged the said order by way of writ petition being S. B. Civil Writ Petition No. 1628/1996 which is pending before the Jaipur Bench of this Court. As regards the payment of gratuity is concerned, it is stated that under Regulation 12 (2) (b) (e) of the S. B. B. J. Payment of Gratuity to Employees Regulations, 1970 the employee is not entitled to the payment of gratuity, if there is termination of service by way of punishment. In the instant case, the respondent was dismissed for misappropriation of funds, as such, he is not entitled to the payment of gratuity under the Regulations. However, under the payment of Gratuity Act, sub-clause (5) of Section 4 provides that out of the provisions of Payment of Gratuity Act and S. B. B. J. Gratuity Regulations any of the better terms of the payment of gratuity will prevail. The Act also provides that if dismissal on the ground of offence involving moral turpitude then the concerned authority can order forfeiture of the gratuity. The Chief General Manager in exercise of powers under Section 4 (6) (b) (ii) passed an order of forfeiture after notice to him. Hence, no amount of gratuity was liable to be paid.
(3.) AS regards the Provident Fund which consists of two contributions i. e. , employer's contribution and employee's contribution is concerned, the total loss caused to the Bank determined in the departmental enquiry because of cheating and misappropriation was to the tune of Rs. 2,00,000/ -. The employers contribution available was Rs. 1,27,254. 50p and that amount was liable to be deducted. So far as the employee's contribution is concerned, a sum of Rs. 1,80,178. 50p was due to be paid. Out of which the respondent himself made an application for refund. The two recoveries were made i. e. Provident Fund Loan of Rs. 22,386/- and Housing Loan of Rs. 43,555. 35p. Nothing else was deducted from his contribution and rest of the amount was paid. It is now well settled that the inherent powers of this court under Section 482 of the Code of Criminal Procedure in the matter of quashing of a complaint or a charge-sheet can be exercised only in an exceptional case where on perusal of complaint the court comes to the conclusion that the allegations levelled therein on the face of it does not constitute or disclose any offence as alleged. The Apex Court in Medchl Chemicals and Pharma (P) Ltd. vs. Biological E. Ltd. and Others (1), has observed as follows:- " Frustrated litigants ought not to be indulged to give vent to their vindictiveness through a legal process and such an investigation ought not to be allowed to be continued since the same is opposed to the concept of justice, which is paramount. " On careful consideration of the entire matter, I am of the view that investigation on the complaint filed by the second respondent is a gross abuse of process of court. The investigation is at the instance of a person who has been found guilty of misappropriation of an amount of Rs. 2,00,000/- by misusing the official position and has been terminated from the service. The allegation of with-holding of gratuity amount is a matter of calculation, in accordance with the provision of law. Even on going to the allegation made in the F. I. R. no offence under Section 406 and 420 I. P. C. is made out. There is absolutely no material even prima facie, to array any of the officers of the Bank as accused. The learned Magistrate directing further investigation has failed to address himself to the crucial question as to whether the allegation in the complaint coupled with other materials on record justifies an investigation by the police. It is a fit case to quash the investigation with a view to prevent the abuse of process of the court and to secure the ends of justice. ;