Thursday, 31 December 2015

Whether a person can be held guilty for misappropriation if he is acting in accordance with order passed by high court?

On this factual backdrop it is really difficult to see as to how the two accused persons who were the officers of the Reserve Bank and were acting under the orders of the High Court could be said to have committed an offence under Section 406 of the Indian Penal Code. This was a very tricky situation in which the Reserve Bank and more particularly, the accused persons who were the officers thereof were caught in without there being any role on their part. These officers have nothing to do with the marital discord between the complainant and his wife. They had also nothing to do with the liability of the complainant to pay maintenance to his wife. The Reserve Bank seems to have been dragged in on account of the order passed by the High Court, initially attached the salary which was also later on clarified by the High Court by the subsequent order that it was not an attachment, however, all the same the High Court directed the Reserve Bank to send the maintenance amount by money order. This order continued. It has come on record that the dispute between the complainant and his wife ultimately came to an end by the final judgment passed in F.A. No. 43 of 2002 on 14th February, 2003, wherein the liability of the petitioner was found at Rs. 3000/- per month by way of permanent alimony. It is to be remembered that this was precisely the amount by way of maintenance pendente lite under Section 24 of the Hindu Marriage Act by the order dated 4th September, 2001, passed by the Division Bench seems to have been continued in the final judgment. If this was so and if there was again an order passed by the Division Bench on 18th June, 2004 in the very same F. A. No. 43 of 2002 which already stood disposed of by the final judgment dated 14th February, 2003 directing the Reserve Bank to make the payment of Rs. 3000/-per month from the salary of the complainant, it was very natural on the part of the Reserve Bank and more particularly the accused persons who were its officers to expect a further order from the High Court to be able to stop the payment. They were after all acting under the orders of the High Court and they were quite justified in feeling bound by the direction given in the last order dated 18th June, 2004.
Calcutta High Court
Arun Kumar Mohanti vs Probhat Kumar Chakravorty on 5 April, 2005
Equivalent citations: (2005) 3 CALLT 154 HC, 2005 (2) CHN 561, II (2005) DMC 203

Bench: V Sirpurkar


1. Present is a petition under Section 482 of the Criminal Procedure Code for quashing of the criminal complaint lodged by the respondent, Mr. Probhat Kumar Chakravorty, for an offence under Section 406 read with Section 120B of the Indian Penal Code. It seems that on the private complaint, 12th Metropolitan Magistrate, Kolkata took cognizance and issued summons. The criminal case was registered as Case No. C/14234 of 2004 and the 12th Metropolitan Magistrate had ordered the issuance of summons by the order dated 10th January, 2005. The petitioners are the officers of Reserve Bank. Petitioner No. 1 being Deputy General Manager (Personnel), while the petitioner No. 2, Assistant General Manager, working in the Reserve Bank of India, Kolkata. While the complainant, Probhat Kumar Chakravorty is also an employee working in the Reserve Bank of India.
2. Following factual background is necessary for understanding the controversy. The complainant/respondent herein was married to one Papiya Chakravorty and there was marital discord between the complainant and his wife. The matters went to the High Court and it seems that an order was passed in F.A. No. 43 of 2002, directing the complainant to pay the maintenance to his wife at the rate of Rs. 3150/- from the salary of the complainant. The Reserve Bank of India was directed by this Court to remit this amount in favour of Smt. Papiya Chakravorty. The order of maintenance was passed under Section 24 of the Hindu Marriage Act on 4th September, 2001. It seems that there was an appeal against the initial interlocutory order and ultimately the maintenance was fixed at Rs. 3000/- per month. An order came to be passed by the Division Bench on 18th June, 2004, whereby it was clarified that the amount of maintenance should be sent to the wife of the complainant by money order, after deducting the money order commission and that was to be done by the Reserve Bank of India after deducting the said amount from the salary of the complainant, who was working there. Accordingly, the amount of maintenance was sent by money order. Initially the salary of the complainant was attached and the Manager, Public Accounts Department, Reserve Bank of India, Kolkata was directed to deduct Rs. 3000/- from the salary of the complainant. As it is pointed out in the order dated 18th June, 2004, it was clarified by the Division Bench that the complainant's salary was not attached, however, the Reserve Bank of India was directed to send the amount of maintenance.
3. So far so good, it seems that Papiya Chakravorty got married again and, therefore, wrote a letter dated 28th July, 2004 to the Assistant General Manager, Central Establishment Section, Reserve Bank, that she was married to one Tapas Paul on 23rd July, 2004 and, therefore, she did not require any maintenance further. She, therefore, requested that no money order should be sent to her from the month of July, 2004. In that letter she contended that she was trying to mention the matter before the Hon'ble High Court at Calcutta for disclosing the aforesaid facts. It seems that on that a letter was written also to Probhat Chakravorty, the complainant by the Assistant General Manager, making a reference to the letter of Papiya Chakravorty dated 28th July, 2004. The Assistant General Manager also referred to the letter dated 30th October, 2004 written by the Reserve Bank to Probhat Kumar Chakravorty. In that letter it was advised by the Assistant General Manager, Reserve Bank to Papiya Paul that she should obtain a modified Court order to enable the Reserve Bank to stop deduction of Rs. 3000/- per month from the salary of Probhat Kr. Chakravorty, the complainant herein. It was, therefore, obvious that the Reserve Bank took every possible step in its power. It seems that the complainant and his Advocate-on-Record have also written letters to the Reserve Bank and, more particularly, to the accused persons for stopping of the deduction of salary. Ultimately, however, the Reserve Bank could not do that and probably continued to make the payment and, therefore, the criminal complaint was filed. It is an admitted position now that after the summons were received by the Reserve Bank, the Reserve Bank or as the case may be the accused persons stopped making payments to Smt. Papiya Paul. In his complaint the case of the complainant is that though the bank was not obliged to send the amount of Rs. 3000/- to Papiya Paul and though Papiya Paul herself had written to the bank that she did not need the maintenance, the bank and more particularly the accused persons without paying heed kept on deducting the amount from the salary of the complainant and had, therefore, committed an offence under Section 406 and since in spite of the letters by Papiya Paul and the other letters sent by the complainant the accused persons only wrote letter, the accused persons had also entered into conspiracy to commit an offence under Section 406 of the Indian Penal Code.
4. It is an admitted position that the marital dispute between the complainant and his wife has obviously come to an end because of the final judgment in F.A. No. 43 of 2002. It is also an admitted position that Smt. Paul who was also joined as a fourth accused in the complaint is now married again to one Tapas Paul and does not claim the maintenance at all. At the time of hearing of this petition nobody remains present on her behalf. On this factual backdrop it is to be seen as to whether the Trial Court was right in issuing summons and whether any offence is made out at all against the present petitioners, original accused persons.
5. It is an admitted position that this Court had directed the Reserve Bank to deduct the amount of maintenance from the salary of the complainant. It is further an admitted position that though initially this was seen as an attachment of his salary, ultimately the Court held that this was not an attachment of the salary, however, all the same the Reserve Bank of India was directed to pay the maintenance amount every month by deducting the salary of Rs. 3000/-. It is also an admitted position that since Smt. Paul wrote to the Reserve Bank requesting them not to send the maintenance amount on account of her second marriage, the Reserve Bank did inform her that she would have to produce a Court order because the payment till then were being made under the Court's order. It is also an admitted position that similar such letter was written by the Reserve Bank to the complainant also. It is further an admitted position that the complainant so far has not moved the High Court for alteration in the order of payment of maintenance, and that there is no order by the High Court to the Reserve Bank directing to stop the payment. Further the Reserve Bank was never a party to the whole dispute and therefore, had requested the parties to get an order from the High Court for stopping the payment.
6. On this factual backdrop it is really difficult to see as to how the two accused persons who were the officers of the Reserve Bank and were acting under the orders of the High Court could be said to have committed an offence under Section 406 of the Indian Penal Code. This was a very tricky situation in which the Reserve Bank and more particularly, the accused persons who were the officers thereof were caught in without there being any role on their part. These officers have nothing to do with the marital discord between the complainant and his wife. They had also nothing to do with the liability of the complainant to pay maintenance to his wife. The Reserve Bank seems to have been dragged in on account of the order passed by the High Court, initially attached the salary which was also later on clarified by the High Court by the subsequent order that it was not an attachment, however, all the same the High Court directed the Reserve Bank to send the maintenance amount by money order. This order continued. It has come on record that the dispute between the complainant and his wife ultimately came to an end by the final judgment passed in F.A. No. 43 of 2002 on 14th February, 2003, wherein the liability of the petitioner was found at Rs. 3000/- per month by way of permanent alimony. It is to be remembered that this was precisely the amount by way of maintenance pendente lite under Section 24 of the Hindu Marriage Act by the order dated 4th September, 2001, passed by the Division Bench seems to have been continued in the final judgment. If this was so and if there was again an order passed by the Division Bench on 18th June, 2004 in the very same F. A. No. 43 of 2002 which already stood disposed of by the final judgment dated 14th February, 2003 directing the Reserve Bank to make the payment of Rs. 3000/-per month from the salary of the complainant, it was very natural on the part of the Reserve Bank and more particularly the accused persons who were its officers to expect a further order from the High Court to be able to stop the payment. They were after all acting under the orders of the High Court and they were quite justified in feeling bound by the direction given in the last order dated 18th June, 2004.
7. Under such circumstances one fails to understand that if they demand the order from the High Court for stopping the payment of maintenance to Smt. Paul what wrong have they committed? They would certainty have faced an action under contempt had they on their own stopped the payment on the basis of the letter by the complainant. Again they were not expected to act on the letter by Mrs. Paul unless there was a fresh order by the High Court. Therefore, it is obvious that there was no dishonest intention on the part of the accused at all nor could they be said to have committed any breach of trust. In fact, there was no entrustment in their favour.
8. The learned Counsel appearing on behalf of the Reserve Bank/ petitioner very earnestly pointed out that in the fight between the complainant and his wife these innocent officers were unnecessarily made the scapegoats. It is trite law that for the offence under Section 406, there has to be a dishonest intention. In fact, in my opinion, no ingredient of offence of criminal breach of trust was present in this whole affair. Even if every sentence in the complaint is accepted, no offence would be made out against those officers who had nothing to do in the whole affair. They unnecessarily became the unwilling players, perhaps because they felt bound and in my opinion, rightly by the earlier orders of the High Court. There was nothing wrong if they expected a fresh order of the High Court and there was still nothing wrong if they continued to pay any amount in the absence of any fresh order from the High Court. In my opinion, therefore, the Trial Court had erred in issuing the summons against the petitioners. The order taking cognizance and issuing summons would, therefore, have to be quashed and, is, accordingly quashed.

9. The accused persons are not any more sending the amount of Rs. 3000/-as was made out at the time of arguments. If any money is deducted and kept apart in the accounts of the Reserve Bank it would be payable to the complainant, however, for that purpose he would have to obtain a fresh order from the High Court in F. A. No. 43 of 2002 by bringing the subsequent facts to the notice of the High Court. With these observations the petition succeeds and the Criminal Case No. C/14234 of 2004 as also all the proceedings therein along with the impugned order are quashed.
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