Gujarat High Court Quashes FIR Against Former SBI Deputy Manager In Currency Deficit Case From 2006

Justice JC Doshi observed, “The finding in the departmental proceeding indicates that the petitioner was not entrusted the property. Thus, the basic ingredients of offence punishable under Section 409 of the IPC is lacking. In addition thereof, there is ten years of yawning and unexplained gap for registration of the FIR.”

“No doubt, while exercising the powers under Section 482 of the CrPC the complaint / FIR has to be read as a whole. However, if reading of the FIR as a whole does not constitute the elements of alleged offence, the Court owes the duty to scuttle such vexatious proceedings,” the court added while placing reliance on the Apex Court’s decision in the case of Mahmood Ali & Ors vs. State of UP & Ors rendered in Criminal Appeal No.2341 OF 2023.

The court's decision came in a petition seeking the quashing of the FIR, which had been registered under Sections 409 (Criminal breach of trust by public servant or by banker, merchant or agent, etc.) and 114 (Abettor present when offence is committed) of the IPC.

The case revolved around the petitioner, Girishbhai Ambalal Rathod who had held the position of Deputy Manager (Accounts) at SBI's Dehgam Branch, and Mr. Harishbhai Maganbhai Parmar, the Head Cash Officer at the same branch. Both individuals were jointly responsible for reconciling the bank's currency accounts.

In a surprise audit conducted by the Nodal Office in Ahmedabad on December 19, 2006, a deficit of Rs. 4,52,500/- in coins was discovered. The petitioner alleged that Harishbhai was responsible for safeguarding the currency notes in the currency chest. Subsequently, the Bank Manager filed an FIR with the Dehgam Police Station, alleging the commission of offenses under Sections 409 and 114 of the IPC, based on the recorded deficit.

The petitioner's advocate presented a two-fold argument before the court. Firstly, it was highlighted that the missing amount of Rs. 4,52,500/- had been returned to the SBI and deposited back into the bank, rendering the alleged offense moot. Furthermore, it was pointed out that the FIR had been filed a decade after the incident, with no satisfactory explanation for the delay provided within the FIR itself.

The defense also emphasized that the petitioner had already faced departmental proceedings based on the same evidence and had been acquitted of the charge of criminal breach of trust.

In response, the Assistant Public Prosecutor (APP) argued that the State had previously submitted a written complaint in 2007 to the Police Station, promptly after the incident occurred.

The APP contended that the delay in filing the FIR should not be attributed to the SBI, especially given the departmental inquiry's findings, which had resulted in a reduction in the petitioner's pay scale.

The APP asserted that there was sufficient material to warrant the petitioner facing a trial, and that the petitioner's defense could be examined during the trial process.

At the outset, the Court referred to its order dated 27/12/2016, which indicated that SBI was not inclined to file the FIR; but the FIR came to be lodged at the insistence of RBI after a period of 10 years from the date of alleged incident.

The court asserted, “It is undoubted that on the set of circumstance spelling in the FIR, on same set of circumstances, the departmental proceeding was initiated against the petitioner and in the said departmental proceeding as reproduced herein above, it clearly mentions that no monetary loss has occurred to the Bank as the entire amount of cash shortage has been recovered.”

“It is further recorded that the petitioner could not take charge of Rupee Coins / small coin balances while taking over permanent charge as Branch Accountant on 21/07/2006 due to improper storage of the coins bags in the strong room. The above finding has been accepted by the SBI,” the Court added.

Placing reliance on M/s. Videocon Industries Ltd. vs. State of Maharashtra [AIR 2016 SC 2843], the court said that what perceives from the aforesaid ratio is that when the allegations founded in the departmental inquiry under criminal case are based on same set of circumstances if the allegations in departmental proceedings leads to exoneration, the criminal proceedings cannot be allowed to continue upon underlying principle that criminal proceeding requires higher standard of proof.

The court noted, “In the present case, in the departmental proceeding though punishment was imposed upon the petitioner, it favours the petitioner insofar as the allegations under Section 409 of the IPC is concerned.”

The court while expounded on Section 409 of the IPC said, “In order to prove the offence under Section 409 of the IPC, the prosecution is undoubted to prove that the accused, public servant or a banker or agent was entrusted with the property which he is duly bound to account for and that he committed criminal breach of trust [see: Sadhupati Nageswara Rao vs State Of Andhra Pradesh [2012 8 SCC 547].”

“In the result, the petition succeeds. FIR being I CR No.80 of 2016 registered with Dehgam Police Station for the offences punishable under Sections 409 and 114 of the IPC and the further proceedings arising out thereof are quashed and set aside. Rule is made absolute to the aforesaid extent,” the Court concluded.

Case Title: Girishbhai Ambalal Rathod Versus State Of Gujarat & 1 Other(S)

Case Citation: 2023 Livelaw (Guj) 147