Criminal law cannot be set into motion as a matter of course and the Magistrate must apply his mind to the facts and circumstances of the case before summoning the accused.

JUDGMENT :

Shampa Dutt (Paul), J.

1. The present revision has been preferred praying for quashing of the proceedings being C-208 of 2018 under Sections 403/406/418/419/420/463/464/468/120B/34 of the Indian Penal Code, pending before the Learned Additional Chief Judicial Magistrate, Sealdah, 24 Parganas (South).

2. The petitioner’s case is that the Central Bank of India, is a body corporate constituted under the Banking Companies (Acquisition & Transfer of Undertakings) Act, 1970 having its Head Office at Chander Mukhi, Nariman Point, Mumbai- 400 021, and branch office inter alia at 1, Park Street, P.S.- Park Street, Kolkata 700 016, commonly known as “Park Street Branch”.

3. The Complaint Case being C-208 of 2018 was filed by the complainant (i.e. the opposite party no. 2 herein) therein, alleging the commission of offence by the petitioner (in his official capacity) and other accused persons, punishable under Sections 403/406/418/419/420/463/464/468/120B/34 of the Indian Penal Code, before the Learned Additional Chief Judicial Magistrate at Sealdah, 24 Parganas (South). The petitioner (accused no. 4) was the Chief Manager at the relevant point of time.

4. The allegations in the complaint is that the joint owners of the disputed property entered into a development agreement with accused no. 3, one Sujan Kumar Roy Burman. An agreement for sale on 09.02.2006, in respect of Flat No. 101/A, 1st floor, was entered into with the complainant. Loan for the said sale was sanctioned by the State Bank of India, Paikpara Branch. Deed of conveyance was executed on 12.02.2008 and possession was handed over.

5. It is further stated that the complainant for the first time on 01.12.2016, when a person visited the said flat and claimed himself as Receiver appointed in the proceedings being R.C. No. 120 of 2014 (arising out of O.A. No. 165 of 2010 between Central Bank of India … Certificate Holder – vs- Animesh Mitra & Ors. …. Certificate Debtors) pending in the Debts Recovery Tribunal No. 1, Kolkata and pasted a notice on the outer wall of the said flat, came to know on enquiry that the Central Bank of India, Park Street Branch, Kolkata had initiated the above O.A. proceedings against the accused persons no. 1, 2 and 3 for recovery and/or realization of Rs. 18, 38, 875/- plus interest on the grounds that the said Central Bank of India sanctioned house building loan of Rs. 16,52,000/- to and in favour of the accused person no. 1 against the flat being no. A-1 on the first floor measuring about 1225 Sq. Ft. consisting of three bed rooms, one dining room/living/drawing room, one kitchen, two bath & privy and one verandah wherein the accused person no. 2 is/was the guarantor. The complainant states that the flat in question of the petitioner has been attached by an order dated 01.12.2016 passed by the learned Recovery Officer in R.C. No. 120 of 2014 for the wrong acts done by the accused persons and for them, the petitioner/complainant suffered a lot and has been suffering huge monetary loss and mental agony. That the complainant being innocent has become victimized in the hands of the accused persons who have practiced fraud upon the Central Bank of India (of which the petitioner was the Chief Manager), Park Street Branch, Kolkata and for their such illegal, unethical, fraudulent activities, they should be penalized and punished. Having no other alternative, the complainant lodged a written complaint against the accused persons (which includes the petitioner in his official capacity) before the Sinthee Police Station on 09.04.2018 requesting to treat the complaint as FIR and to investigate but the Sinthee Police Station sat tight over the matter and as such the petitioner has been compelled to rush before this learned Court for issue of process against the accused persons.

6. A Receiver was appointed in a proceeding between the petitioner’s Bank and accused no. 1, Animesh Mitra and others. A notice for recovery of the loan amount taken by accused nos. 1,