The charge under Section 420 IPC can stand alone and is not dependent on the charge under Section 406 IPC.

JUDGMENT

Subhasis Dasgupta, J. - This court is called upon to address a prayer for quashing of proceedings pending in the court of Learned Judicial Magistrate, Dantan, Paschim Medinipur, in connection with G.R. Case No. 2130 of 2011 under Sections 406/420 of the Indian Penal Code, in application of the provisions contained in Section 482 of the Code of Criminal Procedure.

2. Learned senior counsel for the petitioner, Mr. Sudipta Moitra, submitted that further continuance of proceedings in the court below even after commencement of trial would be an abuse of process of the court, keeping in view the money, alleged to have been cheated, had already been liquidated by petitioner to the bank, which was taken as loan by the wife of the opposite party no. 2. It was contended by Mr. Moitra that there could not be any culpability survived against the petitioner with the liquidation of loan amount to bank justifying initiation of a prosecution under Sections 406/420 I.P.C.

3. Argument was raised by Mr. Moitra that being a beneficiary of loan amount, though sanctioned in favour of the wife of opposite party no. 2, petitioner had already paid entire loan amount to the bank together with interest accrued thereon resulting in no pecuniary loss to the opposite party no. 2/wife of de facto complainant, as alleged to have been sustained.

4. Mr. Moitra, further attacking prosecution case submitted that the entire prosecution case founded upon the assertion of the wife of opposite party no. 2, namely Chhanda Pattanayak, who remained unexamined, though cited in the charge-sheet, as dependable witness, but prosecution story would not stand reaching finality on her absence ultimately. The further attack incidental to the principal thrust was that the bank from which loan was obtained never claimed to have been cheated in this case for the alleged conduct of petitioner, exposing the bank to go for recovery of loan amount issuing necessary notice and other incidental steps.

5. As regards the charge framed under Section 406 I.P.C. against the petitioner, Mr. Moitra, learned senior counsel for the petitioner contended that in the instant case there had been no entrustment of property to the petitioner, which he had ultimately converted to his own use for his personal gain, and as such the charge under Section 420 I.P.C. being consequential to 406 I.P.C. would automatically fail.

6. Upon taking such grounds, Mr. Moitra proposed for quashing of the pending proceedings.

7. Mr. Bapuli submitted that though the name of Chhanda Pattanayak had been shown, as one of the witnesses of prosecution in the charge-sheet, but her statement admittedly could not be recorded under Section 161 Cr.P.C. It will amount to pre-judge the trial as to whether prosecution case would stand or not in the absence of statement of wife of the opposite party no. 2, ignoring the materials, referred above, already collected during investigation, and mentioned also in the memo of evidence. Therefore, ongoing trial should not be disturbed even on the ground of absence of the statement of wife of the opposite party no. 2 remaining unrecorded under Section 161 Cr.P.C. during investigation.

8. Mr. Bapuli countered the submissions of Mr. Moitra submitting that at this stage the prayer for quashing of proceedings would not be encouraging one on the simple score that there had been already commencement of trial with the framing of charge and the next date being fixed on 19th January, 2021 for evidence.

9. It was challenged by Mr. Baupli that mere liquidation of the loan amount, would not ipso facto exonerate the petitioner from the instant criminal prosecution, for the loan amount was unlawfully sanctioned with the active connivance of some people in the bank by showing opposite party no. 2, and his wife as co-borrower against their wishes, after procuring some documents, favourable to the purpose of sanctioning loan amount, behind the back of the wife of opposite party no. 2 and the opposite p