Judgment:
IN THE HIGH COURT OF JHARKHAND AT RANCHI A.B.A. No. 828 of 2016 ---- Gautam Roy, S/o late Nagendra Nath Roy, at present working as Assistant General Manager Bank of India, Zonal Office, Bistupur, Jamshedpur and Resident of Block No. 38, Alok Vihar, Flat No. T-2/2, 3rd floor, P.O. and P.S. Ghora Bandha, Jamshedpur, District- Singhbhum West-831008, Jharkhand …..Petitioner Versus 1. The State of Jharkhand.
2. Sandeep Agarwal, Son of Sita Ram Agarwal, C/o Medical Relief Center, Resident of Flat No. 1655, Main Road, Shere Punjab Chowk, Adityapur, P.O. and P.S. Adityapur Town, Jamshedpur, District-Seraikella-Kharsawan, Jharkhand. …Opposite Parties -------- Coram: THE HON’BLE MR. JUSTICE RONGON MUKHOPADHYAY -------- For the Petitioner : Mr. A. Allam, Sr. Advocate For the State : APP For O.P. No. 2 : Mr. P.S. Dayal, Advocate -------- 07/08-04-2016 Heard the parties. The petitioner apprehends his arrest in connection with P.C. Case No. 136 of 2014, registered for the offence punishable under Section 420/34 of the Indian Penal Code. A complaint petition, which was instituted by the opposite party no. 2, in which the Bank of India as well as his officials were made accused, reveals that a Notice for conducting E-Auction was published in daily newspaper for auction of a residential Flat being Flat No. 5/2 of 5th Floor, D.S. Tower, Adityapur , Seraikella-Kharsawan. The complainant had taken part in bid schedule and being the successful bidder had deposited an amount of Rs.2,38,000/-. Subsequently, on the advise of accused no. 2, a further amount of Rs.5,94,750/- was deposited and he was advised to pay the rest amount by 15th May, 2014. It has been alleged that in spite of repeated requests by the complainant, relevant documents with respect to the Flat were not supplied to him and except the Sale Deed, Sale Confirmation Letter, One Affidavit cum Declaration and one Indemnity Bond, Drawing ( Naksha) including Sanctioned Plan of the Apartment were not provided to him. It has further been alleged that the complainant had obtained the sanctioned plan from AIADA and he could detect that the authority had not sanctioned the 5th floor -2- with respect to the said Flat and the sanctioned plan was only till fourth floor. On being aware of the factual position, the complainant had sent a pleader notice to the petitioner to return the amount of Rs.8,32,750/- but in spite of returning the amount, on 19.05.2014, a notice was given to the complainant that since rest amount has not been deposited, the said amount shall be forfeited by them. Based on the aforesaid allegation, P.C. Case No. 136 of 2014 was instituted, in which after enquiry, cognizance was taken for the offence punishable under sections 420/34 of the Indian Penal Code. Mr. A. Allam, learned senior counsel for the petitioner, has submitted that the petitioner at the relevant point of time was the Branch Manager of Bank of India, Telco Town Branch, P.O. P.S. Telco, District-Singhbhum East. It has been submitted that the auction was held and after depositing of certain amount by the complainant, documents were submitted to him. It has further been submitted that even Bank was not aware of non sanctioning of plan of fifth floor of Flat, for which the auction was held. Learned senior counsel submits that although subsequently on account of non payment of the rest amount of Rs.15,46,250/-, which was to be deposited by 15th May, 2014, the amount, which was earlier deposited by the complainant, was forfeited but the bank is still ready and willing to return back the said amount to the complainant. He further submits that the entire dispute being civil in nature, the petitioner deserves the privilege of anticipatory bail. Mr. P.S. Dayal, learned counsel for the Opposite Party No. 2, has submitted that the conduct of the petitioner is not bona fide and apart from the complainant, the petitioner is also trying to mislead this Court. It has been submitted that the petitioner has filed truncated documents, which does not show cheating, which has been committed by the petitioner. Learned counsel has referred to the E Auction Notice and the terms incorporated therein and has submitted that the petitioner never stated that for non payment of the rest amount, the amount, which has been deposited, will be forfeited. Learned counsel submits that since the complainant was the successful bidder in the auction, it was within his right to ask the bank to produce the necessary documents relating to the Flat and subsequently when he could get hold of the documents with respect to sanctioned plan of the building, it was found that the same was -3- sanctioned up to only fourth floor by AIADA and the fifth floor was never sanctioned. It has been submitted that it was brought to the notice of the bank authority about the cheating, which has been committed by the petitioner and had wanted refund of the amount deposited but in stead of replying to the same, a letter was issued on 19.
5. 2014, by which the application made by the complainant for purchase of the Flat stood cancelled and the money deposited was also forfeited. Learned counsel therefore submits that the bank had knowingly auctioned the Flat although the plan was never sanctioned. This shows the dishonest intention of the Bank authority from the very inception, which would clearly make out a case under section 420 of the Indian Penal Code. In course of argument, it has been submitted by the learned senior counsel for the petitioner that bank is ready to return the amount of Rs.8,32,750/-, which has been deposited by the complainant but on being asked learned counsel for the complainant expressed his unwillingness to accept the offer made by the bank. Coming back to the fact of the present case, the entire dispute seems to revolve around the non sanctioning of the plan and drawing and non supply of the same by the bank officials to the complainant and when he could detect the same, it was found that 5th floor of D.S. Tower, Adityapur, Seraikella-Kharsawan, for which he was the successful bidder was never sanctioned by the AIADA. Correspondences including legal notice had followed but the bank authorities subsequently forfeited the entire amount which had been deposited by the complainant. The petitioner being the Branch Manager should have been aware of the status of the Flat, which was being put for auction and if an enquiry had earlier been conducted, perhaps, the present situation would not have arisen. The complaint petition as well as the communications, which have been made and which has been brought by the petitioner as well as the opposite party no. 2 reveals that the act of the petitioner being the Branch Manager of Bank of India, Telco Branch at the relevant point of time could at best be considered to be a dereliction of duty and there does not seem to be any criminal culpability or deliberate intention to cheat the complainant. In such circumstances, therefore, I feel inclined to allow this application. -4- Accordingly, the petitioner, named above, is directed to surrender in the court below within a period of three weeks from today and pray for regular bail, and in that event, he will be enlarged on bail, on furnishing bail bond of Rs.10,000/- ( Ten thousand only) with two sureties of the like amount each to the satisfaction of Shri Anuj Kumar, learned Chief Judicial Magistrate, Seraikella, in connection with P.C. Case No. 136 of 2014, subject to the conditions as laid down under Section 438(2) of the Code of Criminal Procedure. ( Rongon Mukhopadhyay, J) Rakesh/