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2011 Supreme(Cal) 1262
IN THE HIGH COURT AT CALCUTTA
KANCHAN CHAKRABORTY, J.
Milon Kumar Ghosh
Versus
The State of West Bengal
C.R.R No. 3823 of 2008
Decided On : 13.9.2011
For the Petitioner: Mr. Sekhar Basu Mr. Sandipan Ganguly Mr. Rudradipta Nandy
For the O.P. No. 2 : Mr. Himangshu De Mr. Mrityunjoy Chatterjee
A court is obligated to consider a report of adjudication proceeding placed before it for consideration as to whether an accused is to be discharged or not on the basis of finding of departmental proceeding, irrespective of the outcome of such consideration.
Headnote:
CRIMINAL PROCEDURE CODE - Section 397, 401 - Special Case No. 2 of 2000 - Alipore Special Court - Discharge application - Petitioner, Milon Kumar Ghosh, was the then Manager of Bank of Baroda, Camac Street Branch, Calcutta, and was accused of fraudulently opening a current account in the name of R.L. Mirpuri on the basis of a banker's cheque for Rs. 42.50 lacs without obtaining a photograph of the account holder as required by RBI guidelines. The petitioner filed a discharge application before the Special Court, relying on a departmental enquiry report by the CVC that exonerated him from the specific charge. The Court rejected the application without considering the departmental enquiry report.
Fact of the Case:
The petitioner, Milon Kumar Ghosh, was the then Manager of Bank of Baroda, Camac Street Branch, Calcutta. He was accused of fraudulently opening a current account in the name of R.L. Mirpuri on the basis of a banker's cheque for Rs. 42.50 lacs without obtaining a photograph of the account holder as required by RBI guidelines. In a departmental enquiry conducted by the CVC, the petitioner was exonerated from the specific charge. The petitioner filed a discharge application before the Special Court, relying on the departmental enquiry report. The Court rejected the application without considering the departmental enquiry report.
Finding of the Court:
The Court held that the trial court erred in not considering the departmental enquiry report placed before it by the petitioner. The Court observed that when a report of adjudication proceeding is placed before the Court for consideration as to whether an accused is to be discharged or not on the basis of finding of departmental proceeding, Court should and must consider the same irrespective of the outcome of such consideration.
Issues: 1. Whether the trial court erred in not considering the departmental enquiry report placed before it by the petitioner? 2. Whether the trial court was obligated to consider the departmental enquiry report even if it was not binding on the Court?
Ratio Decidendi: 1. The Court held that the trial court erred in not considering the departmental enquiry report placed before it by the petitioner. The Court observed that when a report of adjudication proceeding is placed before the Court for consideration as to whether an accused is to be discharged or not on the basis of finding of departmental proceeding, Court should and must consider the same irrespective of the outcome of such consideration. 2. The Court held that the trial court was obligated to consider the departmental enquiry report even if it was not binding on the Court, as it was an opportunity for the Court to look into the findings of fact taken by the CVC against the accused/petitioner on the same set of facts.
Final Decision: The Court allowed the revision application and remitted the matter back to the trial court for reconsideration of the entire matter after taking the departmental proceeding reports into consideration.
Kanchan Chakraborty, J:
1. This revision application under Section 397 read with Section 401 of the Code of Criminal Procedure is pertaining to the Special case no. 2 of 2000 pending in the Court of learned Judge, 24 Parganas 1st Special Court, Alipore. It has been filed at the instance of Milon Kumar Ghosh, one of the accused in the case, and is directed against an order dated 7.7.2008 passed by the learned Judge whereby his prayer for discharge from the case was rejected. By filing a supplementary affidavit, the petitioner prayed for quashing of the proceeding against him in alternative.
2. As short reference to the factual aspect is given for proper appreciation of the matter.
3. The Assistant General Manager (Vigilance), United Bank of India (O.P. no. 3) lodged one F.I.R. with the opposite party no. 2, Superintendent of Police, C.B.I., B.S. & F.C. alleging therein that some of the officers of United Bank of India, in connivance with each other, defrauded the United Bank of India by opening false current Accounts, drawing and encashing fictitious cheques of huge amount, manufacturing forged documents and thereby caused huge loss of public exchequer in clandestine manner. The offence alleged mainly had taken place in the United Bank of India, Syed Amir Ali Avenue Branch, Calcutta. On the basis of said F.I.R., a case being R.C. 3(e) 97 – B.S. & F.C./DLI dated 21.4.97 was registered against the persons who were named in the F.I.R. The case was investigated into thoroughly by the C.B.I. and on conclusion of the investigation, a charge-sheet was filed against as many as seven persons including this petitioner Milon Kumar Ghosh who happened to be the then Manager of Bank of Baroda, Camac Street Branch, Calcutta. In course of investigation it was detected that he fraudulently opened one current account in the name of R.L. Mirpuri on 23.12.1995 on the basis of Banker Cheque no. 669405 dated 23.12.1995 for Rs. 42.50 lacs; issued in favour of Bank of Baroda by M/S S.R. Ramamani, the then Senior Manager of Alahabad Branch, Southern Avenue Bank, Calcutta by showing debit to a non-extend N.R.E. account no. 880931/12 dated 14.12.1995. The said account was opened at the instance of Amarendra Nath Ghosh (accused no. 6) and Mr. Mrigendra Nath Ghosh (accused no. 7) of M/S Mafcon Group of companies of Calcutta. The accused Milon Kumar Ghosh did not obtain photograph of the account holder which was required as per R.B.I. guidelines. He also obtained introduction of one Pradeep Khaitan, a current account holder no. 1497 opened only on 22.12.1995 on the introduction of P. Sharma of M/s Shaunak Tie up Pvt. Ltd., having an account in fictitious name in UBI, Syed Amir Ali Avenue Branch, Calcutta duly verified by Jasobrata Basu (accused no. 2) Deputy Manager of the said bank. It was further revealed that Milon Kumar Ghosh, in order to correct the illegality, obtained another set of account opening form mentioning the date of opening as 23.12.1995 in the name of R. L. Mirpuri wherein introduction of M/s Tripti Basu maintaining account in Jodhpur park Branch of India Bank, Calcutta was obtained. It was found that Milon Kumar Ghosh, in connivance with other accused persons in the case defrauded United Bank of India and thereby dealt with huge amount of public exchequer in clandestine manner. He was shown as an accused in the charge-sheet for committing offences under Section 420, 477A of I.P.C. read with Section13(2) and 13(1) 9d) of Prevention of Corruption Act. Milon Kumar Ghosh had taken out an application in the learned Judge, Special Court praying for his discharge from the case on the ground that he was not involved in the offence alleged and that in a departmental proceeding held by CVC, he was exonerated from that specific charge. The learned Court, upon consideration of the material on record and result of investigation rejected his prayer. Milon Kumar Ghosh has come up with this application challenging the legality, validity and
