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Ram Palat Jaiswal vs State Of U.P. And Another on 12 December, 2019

HIGH COURT OF JUDICATURE AT ALLAHABAD

?Court No. – 28

Case :- APPLICATION U/S 482 No. – 3860 of 2008

Applicant :- Ram Palat Jaiswal

Opposite Party :- State of U.P. and Another

Counsel for Applicant :- Bharat Pratap Singh

Counsel for Opposite Party :- Govt. Advocate,Sushil Shukla

Hon’ble Rajeev Misra,J.

Heard Mr. Bharat Pratap Singh, learned counsel for applicant and learned A.G.A. for State. No one appears on behalf of opposite party No. 2, even in revised call, though Mr. Shushil Shukla, Advocate, has put in appearance on behalf of opposite party No. 2 and his name is printed in the cause list.

This application under Sectionsection 482 Cr. P. C. has been filed challenging summoning order dated 13.09.2007 passed by Metropolitan Magistrate Court No. 5, Kanpur Nagar, in Complaint Case No. 4312 of 2006 (Harish Chandra Sharma Vs. S.G. Gupta and others), under Sectionsection 406 IPC, P.S. Kidwai Nagar, District Kanpur Nagar, as well as entire proceedings of the above mentioned complaint case.

Present application came up for admission on 11.3.2008. The Court issued notice to opposite party No. 2 and granted interim protection to applicant. In spite of expiry of a period of more than 11 years, no counter affidavit has been filed by opposite party No. 2 till date. As such, averments made in affidavit filed in support of present application remain un-controverted.

It transpires from record that opposite party No. 2 had taken certain loan from State Bank of India, Gaushala Chauraha, Juhi Branch, Kanpur Nagar. Aforesaid loan was granted against one loan account No. 7/25, in the name of opposite party No. 2 at State Bank of India, Gaushala Chauraha, Juhi Branch, Kanpur Nagar. Opposite party No. 2 is also having Savings Bank Account No. 2334 in the aforesaid Bank. Opposite party No. 2 had deposited Magnum Multiplier Plus 1993 issued by S.B.I. Mutual Fund as security towards loan taken by him. As opposite party No. 2 committed default in repayment of loan, respondent Bank requested opposite party No. 2 orally and also sent letter requesting him to repay the loan amount. As no initiative was taken by opposite party No. 2 for repayment of loan taken by him, the Bank transferred the money from his savings bank account to loan account by using right of set off. A categtorical averment to aforesaid effect has been made in paragraph 8 of the affidavit which reads as under:-

Aggrieved by aforesaid action of Bank, opposite party No. 2 sent a legal notice to the Bank which was replied by the Bank on 8.11.2001. Ultimately, opposite party No. 2 filed above mentioned complaint case alleging criminality against applicant which is punishable under Section 406 I.P.C.

On the aforesaid factual premise, Mr. Bharat Pratap Singh, learned counsel for applicant submits that breach of contract and breach of entrustment are two different things. Respondent Bank under the right to set off has transferred the sum of Rs. 12,393/- from savings bank account of opposite party No. 2 to loan account of opposite party No. 2. Therefore, action taken by applicant for transferring the amount in savings bank account of opposite party No. 2 to his loan account was in exercise of right of Bank to claim set off. Aforesaid act was performed by applicant in his official capacity and therefore no misappropriation of entrustment took place. Similar controversy came up for consideration in the Court in the case of Priyanka Srivastava and another Vs. State of Uttar Pradesh and others, (2015) 6 SCC, 287 as well as in the case M.N. Ojha and others Vs. Alok Kumar Srivastav and another, 2009 (9) SCC, 682, wherein Apex Court in almost identical circumstances has quashed the proceedings.

I have perused the aforesaid judgements and find that same are squarely applicable in the present facts and circumstances. Furthermore, averments made in affidavit filed in support of application under Section 482 Cr. P. C. remain un-controverted. Applicant is an employee of State Bank of India and in discharge of his official duties has transferred the amount from savings bank account of opposite party No. 2 to his loan account by invoking the right of set off. Amount transferred by applicant is towards recovery of loan taken by opposite party No. 2 himself. As such, no case of breach of entrustment is made out.

In view of above, present application succeeds and is allowed.

Impugned summoning order dated 13.09.2007 passed by Metropolitan Magistrate Court No. 5, Kanpur Nagar, in Complaint Case No. 4312 of 2006 (Harish Chandra Sharma Vs. S.G. Gupta and others), under Sectionsection 406 IPC, P.S. Kidwai Nagar, District Kanpur Nagar, as well as entire proceedings of the above mentioned complaint case is, hereby quashed.

Order Date :- 12.12.2019

HSM

 

 

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