Judgment:
G.R. Luthra, J.
(1) The present petition is directed against an order dated November 23, 1982 of Shri T.D. Keshav, Metropolitan Magistrate, Delhi directing the summoning of the present petitioners in respect of commission of an offence punishable under Section 409 and 120B Indian Penal Code The summoning was made on the complaint of Shri Rajesh Khanna, a partner of M/s. Saral Trading Co. and also of M/s. Serhoo Mal Jagdish Rai, 2433, Ghhippiwara, Delhi.
(2) At the relevant time petitioner No. I Ms. Trilochan Banga was branch manager of Union Bank of India, Sunder Nagar, New Delhi and Shri S.K. Kataria, petitioner No. 2 was Superintendent Vigilance Union Bank of India, Kailash Colony, New Delhi. The firms of Rajesh Khanna, respondent No. 1, were having some accounts current as well as cash credit etc. in Sunder Nagar branch of Union Bank of India.
(3) The complaint is quite lengthy one In the complaint certain allegations have been made.as to how petitioner No.1 had grown inimical to the complaint, respondent No. 1, and as to bow there were some defamatory statements made by him. But those allegations are not relevant for the purpose of deciding this petition The real question in respect of which cognizance was taken by the learned magistrate relates to 20th February 1982. On that date, the complainant wanted to withdraw a sum of Rs. 23,000.00 from his current account in the Sunder Nagar branch of Union Bank of India. His allegations, as contained in the complaint, arc as follows. He gave cheque for Rs. 23,000.00 to his representative Mr. R.K. Seth. That was a self cheque drawn by the complainant. On presentation of the said cheque, a token was given to Mr. Seth by the clerk concerned as per the procedure and the amount of the cheque was debited in the current account. Thereafter the said cheque was sent to the branch manager, petitioner No. 1. She took the token from Mr. Seth and refused the payment of the cheque on the ground that there were huge outstandings from the complainant (respondent No. I in this case). The net result was that the cheque was dishonoured and Mr. Seth went away.
(4) After narrating all these facts, the complainant stated that another account was opened in Lajpat Nagar branch, that the present petitioners tried to interfere with the operation of that account also but ultimately the same was not done. According to the complainant, there was a conspiracy between the present petitioners to commit breach of trust within the meaning of section 409 of Indian Penal Code.
(5) The learned magistrate after narrating all these facts came to the conclusion that the present petitioners had committed offences punishable under section 409 read with section 34 Indian Penal Code and section 120B Indian Penal Code, by way of making the following remarks :
'I have perused the complaint, the statements of witnesses produced by examination by the complainant and heard Shri B.K. Kapur, Advocate for the complainant. From the statements of witnesses and the documents filed on record it is proved that on the date when the cheque was presented by the complainant, a sum of Rs. 29,95249 np. was the balance in the said account, whereas the cheque was for Rs. 23.000.00 only and the Bank Manager should not have dishonoured the cheque keeping in view sufficient balance in the bank in the said account. The money kept in the bank is kept as a trust with the Bank and the person keeping the money with the bank can withdraw it at any time as per his goods and if the bank does not allow the person holding an account in the bank to withdraw the money from the said account then there is no use of keeping the money in the bank and withholding of the amount in the bank is an act of breach'of trust within the meaning of section 409 Indian Penal Code When sufficient balance was there with the bank then the cheque of Rs. 23.000.00 dated 20.2 1982 should not have been dishonoured by the Bank. The fact of dishonouring the cheque when sufficient balance was there in the said account is in itself an offence within the purview of section 409 IPC.'
(6) I have heard the learned counsel for the petitioners. Respondent No. I is present. He sought an adjournment on the ground that some compromise talks are going on between 'the Chairman of the Union 'Bank of India on the one side and him on the other side and that. thereforee, there was hardly any necessity of deciding this case. He added that he even could produce a copy of the letter from the Chairman in respect of that compromise. However, he was told that the Chairman is not a party in this case and he is unfit to effect any compromise on behalf of the petitioners. The present matter is confined to the petitioners on the one hand and respondent No. 1 i.e. the complainant on the other hand and, thereforee, there could not be any adjournment. It may be pointed out that on 24th September 1985 also, an application of the petitioners for expediting the decision of the case was opposed on this very ground and this ground was found to be baseless and the case was fixed for arguments. It may also be mentioned that Mr. D.R. Sethi, Advocate for the respondent No. 1 stated in the morning before this case was taken up that he is not appearing in this case because he had no instructions from the complainant respondent No. 1. It is obvious that the adjournment is being sought only to prolong the matter as far as possible. Hence I did not give any adjournment and called upon the complainant/respondent No. 1 to argue.
(7) Criminal Breach of trust is defined in Section 405 Indian Penal Code It is clear from a reading of that provision that so that there should be criminal breach of trust there should be firstly entrustment of the property or dominion over any property and secondly, there should be dishonest misappropriation or conversion to his own use that property or dishonestly using or disposing of that property in violation of any direction of law. There is no allegation, at all, in the complaint that there was any dishonest misappropriation or use of the property by the petitioners. The case is simple one of dishonouring of the cheque and, thereforee, the second condition does not stand satisfied on which account alone the proceedings before the learned magistrate are liable to be quashed.
(8) Further even the first condition does not stand satisfied. Following was held by the Supreme Court in Shanti Prasad Jain v. The Director of Enforcement, : [1963]2SCR297 :-
'Now the law is well settled that when moneys arc deposited in a bank, the relationship that is constituted between the banker and the customer is one of debtor and creditor and not trustee and beneficiary. The banker is entitled to use the monies without being called upon to account for such user, his only liability being to return the amount in accordance with the term agreed between him and the customer.'
(9) That judgment was followed by CbaranjitTalwar,J.of this Court in R P. Sablok, Manager, Syndicate Bank v. Kaushalya Devi, : 21(1982)DLT364 . This was also the law laid down in Santosh Kumar and others v. The King. : AIR1952Cal193 . thereforee, it is clear that when money is deposited in a bank, the depositor becomes the creditor and the banker becomes the aebtor. There is no entrustment as such of the money and when there is no entrustment, there is no .criminal breach of trust.
(10) Having regard to the aforesaid position of law and talking all the facts stated in the complaint to be correct, no offence is made out and it was wrong and illegal on the part of. the. learned magistrate to have summoned the petitioners as accused for committing criminal breach of trust punishable under section 409 Indian Penal Code or for having entered into a Criminal conspiracy in that regard.
(11) Under the above circumstances I accept the petition, set aside the order of the learned magistrate and quash all the proceedings. The complaint filed by respondent No. I stands dismissed.
(12) A copy of this order shall be sent to the learned magistrate for information and compliance.
(13) Criminal Misc. (Main)666 of 1982 stands disposed of.