IMPORTANT POINT
Failure on the part of the bank to supply T.D.S. certificate in favour of the complainant can hardly attract the offence of criminal breach of trust.

ORDER

Partha Sakha Datta, J.—By this application dated 22.6.2004 under Section 482 of the Cr.P.C. prayer has been made for quashing of the proceeding being C—Case No. 1240 of 2004 pending before the learned Magistrate, 6th Court, Calcutta under Section 120B/409 of the IPC. The opposite party herein lodged a petition of complaint some time in the middle of 2004 against M/s. Bank of Baroda, accused No. 1 and other accused persons who are the officers of the said bank. The complainant deposited four fixed deposits of Rs. 7,15,000/-, 2,80,000/-, 2,40,000/- and 4,00,000/- with the said bank by way of trust and security and on 7-1-1992 and 15-1-1992 the bank deducted Rs. 1,777/- and Rs. l,965/- by way of TDS on interest accrued on the aforesaid fixed deposits but did not issue any certificate of TDS in favour of the complainant in spite of the demand lastly made on 15-1-2004. Thus according to the complainant the accused persons committed the offence of criminal breach of trust by criminal conspiracy. Process was issued against the petitioners and during the pendency of the proceeding before the learned Magistrate this application has been filed praying for quashing of the proceeding on the ground that the learned Magistrate ought not to have taken cognizance of offence as no prima facie case was made out and that too without obtaining sanction from the appropriate authority. The further ground was that the bank did not receive the money in trust and as such, there cannot be any allegation of misappropriation of the property.

2. I have heard Mr. Milan Mukherjee, learned advocate appearing for the petitioner. None appears for the opposite party though service was effected as per affidavit of service.

3. During hearing only one point is raised to the effect that the bank cannot be said to be a trustee in respect of the money deposited by the O.P. because the relationship between the bank and the O.P. is a relationship of debtor and creditor. The further argument is that the deductions in respect of TDS was made by the bank in January, 1992 while the petition of complainant was filed after a lapse of twelve years on 26-2-2004 with no explanation convincing for such delay of more than one decade in lodging the petition of complainant and a Court of law cannot be utilised as a weapon of harassment. It has been argued that though it is the case of the O.P., that the amount deposited with the bank by way of a fixed deposit amounts to entrustment, it has been well settled by the decisions of the Hon’ble Supreme Court as also of this Court that the relationship between a bank and its customer is not that of a trustee and a beneficiary but of a creditor and a debtor because when the customer deposits money with the bank and expects interest therefrom the bank cannot keep such money aside and idle. The sum of money becomes a part of the corpus of the bank and the customer is only entitled to ask for return of the money after expiry of stipulated period. Thus in absence relationship of trustee and beneficiary the charge under Section 409 of the I.P.C. is inappropriate. Since it is the statutory demand of the bank to deduct the tax at source the tax so deducted becomes the property of the Government of India and the bank holds that property as a trustee on behalf of the Government. Thus the customer does not have any proprietary right over that property, even if the bank fails to deposit the same with the Government of India the customer cannot claim the said sum already deducted as TDS as his property and if any criminal breach of trust has been committed it can be so alleged by the Government of India who is the owner of the money after such deduction. The decisions which have been cited as follows:-

1.Shanti Prasad Jain v. Director of Enforcement, FERA.1

2.Ram Ratan Gupta v. Director of Enforcement, FERA.2

3.Gopesh Chandra Pal v. Nirmal Kumar Dasgupta.3

4.ANZ Grindlays Bank. PIC v. Shipping and Clearing (Agents) Pvt. Ltd.4

5.Kalpanth Rai v. S