TMI Blog2019 (9) TMI 1633X X X X Extracts X X X X X X X X Extracts X X X X ..... ave his signature for the operation of bank locker is not an act of forgery. Therefore, there is no evidence to substantiate the charge under Section 466 of IPC. Similarly the person who can be prosecuted for commission of offence under Section 477A of IPC must be a clerk, officer or servant or employed or acting in that capacity and any private person cannot be prosecuted for the same. The prosecution case is this, that the bank documents have been manipulated and on the basis of admission made by the Bank Officer Mr. Antony Samy, it is clear that he received the application for deletion and addition of names and acted accordingly, as was prayed in the application. Therefore, there is no substance for prosecution of the petitioner under Section 477A of IPC - the material in the prosecution case left only to this extent that unaccounted money in cash form was found in the locker held by this applicant in locker No.240A of bank of Baroda, Raipur. The prosecution has traced its connection to Mr. B.L. Agrawal but as per the submission made by the counsel for petitioner, Mr. B.L. Agrawal has been exonerated by the Income Department. CBI has investigated this case subsequent to the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the counsel for petitioner that the rent receipts were received in the name of Shri R.D. Goyal. Co-accused B.L. Agrawal never used his original signature while operating the said locker. It is evident from the CCTV footage of the bank concerned that the petitioner never visited the bank for operating bank locker. There is no evidence to show that name of the petitioner was added and the name of said B.L. Agrawal was deleted as per banking regulation. It is submitted by the counsel for petitioner that the bank locker was held jointly by Mr. R.D. Goyal and accused B.L. Agrawal with 'either or survivor' clause. Mr. R.D. Goyal expired on 7.12.2005. Application was filed by co-accused B.L. Agrawal on 3.7.2009 making statement that he does not want to continue with the bank locker any more, therefore, his name be deleted and in his place name of petitioner be added. The daily attendance register of renters, copy of which is filed at Page No.214, shows that petitioner had operated the locker on 10.2.2010 and thereafter in the raid conducted by the respondent on 10.2.2010 itself, an amount of ₹ 15 lakhs was found inside the locker. As it is clear that the locker was earl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t powers to give relief in such cases and that the order of framing of charge affects the person's liberty substantially. There is no evidence to show as to who has defrauded and that the petitioner has committed fraud with any person. There is no evidence regarding cheating by impersonating. The confessional statement of Antony Samy very clearly exonerates the petitioner. Reliance has been placed on the judgment of Supreme Court in Radheshyam vs State of West Bengal reported in (2011) 3 SCC 581 and submitted that in that case the appellant was prosecuted after having been exonerated from the prosecution under the provisions of the Foreign Exchange Regulation Act, therefore, it was held that after exoneration, the prosecution on the same facts and circumstances cannot be allowed. Relying on the judgment in the matter of K.C. Builders another vs Assistant Commissioner of Income Tax, reported in (2004) 2 SCC 731, it has been argued that where the Income Tax Tribunal has exonerated the person concerned in such a case, said person cannot be made to suffer reversal of criminal trial and the same is not sustainable in law. There is clarity with respect to the the person who has aff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... counsel for petitioner that there is no evidence present in the charge-sheet to make out any offence against the petitioner for which he may be tried. It is further argued that under the provision of Sections 5 6 of the Delhi Special Police Establishment Act, 1946 the CBI have no jurisdiction to investigate this case. 11. I have heard learned counsel for both the parties and perused the documents on record. 12.Case of the petitioners is of simple denial. Manifold arguments have been advanced by learned counsel for the petitioner. Firstly, the addition of name of the petitioner as tenant of the bank locker is in dispute, as the same was not in accordance with the banking regulation; secondly, the petitioner had never operated the said bank locker and thirdly, no proper investigation has been made in respect of cash amount found inside the locker. Nothing incriminating was found in possession of the petitioner in the investigation of this case by the police or income tax authorities. Further, the petitioner has also given explanation that the cash amount found in the locker belonged to his sister-in-law namely Mrs. Mamta Agrawal. There is no evidence showing commmission of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent of either description for a term which may extend to three years, or with fine, or with both. 466-Forgery of record of Court or of public register, etc.- 3 [Whoever forges a document or an electronic record], purporting to be a record or proceeding of or in a Court of Justice, or a register of birth, baptism, marriage or burial, or a register kept by a public servant as such, or a certificate or document purporting to be made by a public servant in his official capacity, or an authority to institute or defend a suit, or to take any proceedings therein, or to confess judgment, or a power of attorney, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. 1 [Explanation.-For the purposes of this section, register includes any list, data or record of any entries maintained in the electronic form as defined in clause (r) of sub-section(1) of section 2 of the Information Technology Act, 2000.] 477A- [ Falsification of accounts .-Whoever, being a clerk, officer or servant, or employed or acting in the capacity of a clerk, officer or servant, wilfully, and with intent to defraud, destroys, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r. Antony Samy, it is clear that he received the application for deletion and addition of names and acted accordingly, as was prayed in the application. Therefore, there is no substance for prosecution of the petitioner under Section 477A of IPC. 18.Therefore, material in the prosecution case left only to this extent that unaccounted money in cash form was found in the locker held by this applicant in locker No.240A of bank of Baroda, Raipur. The prosecution has traced its connection to Mr. B.L. Agrawal but as per the submission made by the counsel for petitioner, Mr. B.L. Agrawal has been exonerated by the Income Department. CBI has investigated this case subsequent to the raid conducted by the Income Department and have drawn conclusion for prosecuting this petitioner for the offences as aforementioned. This Court after considering on the evidence present in the charge-sheet against this petitioner, has drawn its conclusion that there is no substance for prosecution of the petitioner for the offences for which he has been charge-sheeted. 19.Hon'ble Supreme Court has in Radhshyam Kejriwal Vs. State of West Bengal reported in (2011) 3 SCC 581 held in Para-31, 37, 38, 39 whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owever, on merits where allegation is found to be not sustainable at all and person held innocent, criminal prosecution on the same set of facts and circumstances can not be allowed to continue underlying principle being the higher standard of proof in criminal cases. 39. In our opinion, therefore, the yardstick would be to judge as to whether allegation in the adjudication proceeding as well as proceeding for prosecution is identical and the exoneration of the person concerned in the adjudication proceeding is on merits. In case it is found on merit that there is no contravention of the provisions of the Act in the adjudication proceeding, the trial of the person concerned shall be in abuse of the process of the court. Therefore in view of the principal laid down in Radheshyam(supra) and the conclusion drawn on the basis of the discussions made hereinafter, I am of this opinion that this petition deserves to be allowed. 20. WPCR No.201 of 2017 is allowed and the entire proceedings including the chargesheet filed by the CBI, Bhilai in Crime No. RC/1242010A0009 of 2010 before the Special Court(C.B.I.) so far it relates to the petitioner is quashed. In view of the order pa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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