#titlesuit hashtag

[seemabhatnagar]

Hiring agreement can't be equated with bailment

Against the rejection of the discharge petition filed by one of the alleged accused bank official, Criminal Miscellaneous Petition 1078 of 2013 was filed before High Court of Jharkhand at Ranchi.

This is a case where Judicial Magistrate 1st Class has taken cognizance on 17.06.2009 pursuant to the protest-cum-complaint petition for offences u/s 380, 409 and 34 IPC filed by the locker owner at Punjab National Bank. The entire officials of the Bank have been implicated in the protest-cum-complaint case.

Submission of the petitioner

It was submitted by the complainant that he along with his wife are the joint lessee of Locker No. 177 leased out by Punjab National Bank, Main Road, Ranchi.

The complainant has operated his locker last time on 22.02.2002 and kept some gold articles inside the locker.

On 09.06.2003 the complainant along with his son and daughter-in-law went to operate the said locker after opening the same he found the gold articles kept in the small box inside the locker were missing and he immediately informed the same to the then Locker In-charge.

Locker-in-charge, Shri R.K. Sharan did not gave any satisfactory reply same was informed to the then Branch Manager Shri Sanjay Sahay.

An F.I.R. was lodged which was registered as Case No. 71/2003.

The Police filed the Final Form on 15.03.2006 with no clue under Section 379 of the Indian Penal Code.

Aggrieved by the submission of final form, complainant filed a complaint-cum-protest petition before Judicial Magistrate First Class Ranchi.

The complainant submits that if the criminal case is made out, then both criminal and civil cases can go simultaneously.

Submission of the Counsel of the Bank

The petitioners are the officers of the Punjab National Bank, Main Road Branch, Ranchi.

For the grievance of the petitioner Case No. 71 of 2003 was registered and the same was investigated by the police, however, the theft was said to be proved, but the police had not sent up the petitioners for trial.

However, on the protest petition, the court has taken the cognizance.

The complainant for the incident has already preferred a Title Suit No. 246 of2006, which is still pending before the court of Sub-Ordinate Judge at Ranchi.

He further submitted that the theft has occurred, but there is no material against the petitioners-Bank officials to put them accused hence the police has not sent them for trial.

He further submits that police has investigated the matter and has categorially stated that in the locker whatever ornaments / amount is taken out from the locker is only known to the locker owner and his relatives and it is not known to the Bank or its officers and so there is no entrustment and they have also tried to locate that who is the person involved in the case, but they have failed to get any clue and so due to absence of any clue the case was closed.

He further submitted that O.P. No. 2/complainant (Shyam Sundar Lal) has reported the bank that locker was not properly working so there might be some technical problem.

And for such technical problem, it can be case of civil nature and at best the case of deficiency in service.

The lockers were installed in the Banks by the different companies like Godrej etc.

All the petitioners are bank officials and they have been falsely implicated in the case.

Even the discharge petition of one of the accused was rejected, which has been challenged in present criminal miscellaneous petition 1078 of 2013.

If such nature of case is there and the case has proceeded further before the JM First Class, the High Court is competent to pass appropriate orders and in view of that the entire criminal proceedings may kindly be quashed.

Submission of the Counsel of the State – APP

The police had investigated the matter and submitted the final form, whereby, the petitioners have not been sent up for trial,

However, JM First Class has taken the cognizance on the protest petition filed by the O.P. No. 2/complainant/Shyan Sundar Lal.

Observation of the High Court

It is an admitted fact that the jewelry was missing from the locker of the Bank.

The police has investigated the matter however nothing was found against the bank officials/present petitioners as such bank officials were not sent for trial.

On the protest petition, JM First Class has taken cognizance against these petitioners/bank officials and subsequently the discharge petition, filed by one of the petitioner/bank official was rejected by the court.

It appears that the locker is the nature of agreement, in view of that the hiring agreement cannot be equated with the bailment. Bank is not aware of the contents kept inside the locker which is only known to the individual. Bailment is for specific period and for specific purpose.

Furthermore, the said operation of the locker was the agreement and the same can be terminated by a person in his favor.

In view of that hiring of a locker is a transaction to be distinct in nature from a transaction that would create the relationship of landlord and tenant.

Whatever property is deposited in the locker is undoubtedly in the custody and possession of the Bank, merely because the locker can be operated only in the presence of the locker hirer, could not amount to joint possession of the locker.

The Banker can always open the locker with a master key, the hirer of the locker is not in a position to open the locker without the assistance of the Bank.

The hirer can only access the locker only specified banking hour.

The Banker has no such limitation. If such a situation is there, the transaction of bailment could only be established if the provisions of Section 148 of the Indian Contract Act are complied.

In view of the above, it appears that the tile suit has already been preferred by the O.P. No. 2, complainant locker owner, which is still pending, and if civil case – title suit is there, then criminal case is not made out.

There is no doubt if the criminal case is made out, then criminal and civil both cases can go on simultaneously, however, the criminal case is not made out, hence allowing protest cum complaint petition would amount to an abuse of the process of law.

So far discharge petition is concerned, the court can consider if prima-facie there is nothing which affixes culpability or constitutes commission of offence including mens-rea on the part of the petitioner, the Court can exercise its power.

So far as criminal case is concerned, against the petitioners, who happens to be the bank officials of Punjab National Bank, Main Road Branch, Ranchi, is not made out.

It is further well settled that even if the proceeding has gone further before the trial court and if the court comes to the conclusion that the case of interference is made out, then that power can be exercised at any stage.

Order

The entire criminal proceedings including the order taking cognizance dated 17.06.2009, by which, cognizance for the offences under Sections 380, 409 and 34 of the Indian Penal Code has been taken against the petitioners, in connection with Complaint Case No. 1159 of 2006, pending in the court of Judicial Magistrate, 1st Class, Ranchi, are hereby, quashed so far the petitioners in Cr.M.P. Nos. 1519 of 2009 and 627 of 2013 are concerned.

So far as the petitioner in Cr.M.P. No. 1078 of 2013 is concerned, the entire criminal proceedings including the order dated 24.01.2013, whereby, a petition filed under Sectio 245 Cr.PC. for discharge was rejected, in connection with Complaint Case No. 1159 of 2006, pending in the court of learned Judicial Magistrate, 1 st Class, Ranchi, are hereby, quashed.

Seema Bhatnagar