P.N. Sinha, J.
1. This revisional application under Section 482 of the Code of Criminal Procedure (in short the Code) is aimed at quashing the criminal proceeding being Case No. C-9458 of 2004 under Section 409/120B of the Indian Penal Code (in short IPC) now pending before the learned Metropolitan Magistrate, 11th Court, Calcutta.
2. Before I proceed into the merit of the revisional application it would be fruitful to mention the gist of the complaint which was filed by the O.P. against the petitioner challenging which the present revisional application has been filed for quashing the said complaint. The O.P. complainant in his complaint alleged that he had deposited three fixed deposits of Rs. 15,00,000/-, Rs. 12,67,000/- and Rs. 1,25,000/- with the petitioner bank on interest by way of trust and security. The petitioner bank and its officers, i.e. accused persons, on June 23, 1998 deducted a sum of Rs. 13,962/-, Rs. 11,794/- and Rs. 141/- by way of Tax Deducted at Source (in short TDS) over the interest accrued on the aforesaid three fixed deposits. The bank did not issue TDS certificate to him and he from time to time demanded TDS certificate from accused Nos. 2 to 5, but they neglected to give him TDS certificate. The amount purportedly deducted as TDS by the accused persons were lying with the bank by way of trust property. The said money was lying in the custody of the accused persons and since the accused persoris failed to return the same and could not show any document for deduction of the said amount as TDS, the accused persons were liable for commission of breach of trust. The complaint lodged by the O.P. No. 2 in the Court of the learned Chief Metropolitan Magistrate, Calcutta was registered as Case No. C-9458 of 2004 and the learned Chief Metropolitan Magistrate transferred the said complaint to learned Metropolitan Magistrate, 11th Court, Calcutta. The learned Metropolitan Magistrate, 11th Court after receiving such complaint and after examining the complainant under section 200 of the Code issued process against the petitioner and others under Section 409/120B of the IPC. Challenging the said order the petitioner has moved this Court in this revisional application praying for quashing the said criminal proceeding.
3. Mr. Milon Mukherjee, the learned Advocate for the petitioner Bank of Baroda submitted that TDS deducted by the bank becomes the property of the Government of India immediately after deduction and till the said amount is deposited with the Government the bank holds the same in trust on behalf of the Government and, the said money becomes the property of the Government and the person from whom such tax was deducted had no right over the same. The amount deducted as TDS becomes property of the Government makes it clear that there was no entrustment of any money by the complainant to the petitioner which can justify elements of Section 409 of the IPC. The bank had deposited the said TDS amount with the Government of India and as such there was no entrustment of the said amount by the complainant O.P. to the bank and being so the charge under Section 409 of the IPC is not maintainable. Mr. Mukherjee also contended that the complainant had the belief that the amount given to the petitioner bank by way of fixed deposit amounts created relationship of trustee and beneficiary but, such belief is erroneous. It has been settled in number of decisions by the Hon'ble Supreme Court as well as by this Court that the relationship existing between a bank and its customer is not that of a trustee and beneficiary but a relation between lender and creditor. The reason behind this principle of law is that when a customer deposits a sum of money with the bank and expects interest therefrom, the said amount becomes a part of the corpus of the bank and the customer is only entitled to ask for return of the money deposited with the bank after expiry of the stipulated period or otherwise.
4. Mr. Mukherj ee also contended that if the bank fails to deposit the amount of TDS with the Government of India, the customer cannot claim the said sum deducted as TDS to be his property. The bank may be hauled up for criminal breach of trust by the Government of India for non-deposit of the same with the Government. It is thus apparent that all ownership in respect of the sum deducted as TDS stands extinguished so far as it relates to the person from whom the TDS was deducted. In the present complaint it would be apparent on a perusal of the petition of complaint that the complainant himself has annexed a statement issued by the petitioner bank showing deduction of the said sum of money as TDS and it establishes that certain sum of money was deducted by the petitioner bank as TDS. Non-supply of TDS certificate by the bank cannot lead to commission of any criminal breach of trust and at best, the same can amount to deficiency of service whose remedy lies before a different forum. The Criminal Court cannot be utilised by the complainant in order to launch his own vengeful campaign against the bank and its officers. Besides that, the taking of cognizance was bad in law as the offence alleged was committed in June, 1998 and the complaint was lodged in 2004, i.e. after a period of six years. The complaint was clearly hit by law of limitation and the proceeding being mala fide in nature, the learned Magistrate should not have issued process. Initiation of a criminal proceeding in respect of a claim which is not legally enforceable, should not be allowed to be continued with and the Criminal Court should not be utilised as a short-cut method to make a claim. The Hon'ble Supreme Court laid down the guidelines in Chaudhury Bhajan Lal v. State of Haryana and, if the principles laid down in the said decision is followed it would be clear that averments made in the complaint do not disclose any element of cognizable offence as alleged.
5. Mr. Mukherjee further submitted that Section 194A of the Income-tax Act (in short IT Act) provides for deduction of tax at source in respect of payment of interest other than income by way of interest on securities. Section 201 of the IT Act further provides that in the event any person referred to in Section 200 of the Act fails to pay the tax after deduction he or it shall, without prejudice to any other consequences which he or it may incur be deemed to be an assessee in default in respect of the tax. Section 203 of the IT Act further prescribes that the Income Tax Authority or the person authorised by such authority as referred to in Sub-section (3) of Section 200 shall prepare and deliver to every person from whose income the tax has been deducted, a statement in the prescribed form specifying the amount of tax deducted or paid and such other particulars as may be prescribed. Section 205 of the Act prescribes that where tax is deductible at source, the assessee shall not be called upon to pay the tax himself to the extent to which the tax has been deducted from that income. Section 272A(2)(g) of the Act provides for penalty for failure to furnish a certificate as required under Section 203 of the Act. Section 276B of the Act provides that if a person fails to pay to the credit of the Central Government the tax deducted at source as required under the provisions of Chapter XVIIB shall be punishable with rigorous imprisonment and with fine. It is thus clear that failure to deposit the tax deducted at source by the petitioner bank with the Income Tax Authority provides for punishment under the Income-tax Act and proceeding under Section 409 of the IPC is not maintainable. Section 279 of the IT Act provides that such a person shall not be proceeded against for an offence under section 276B except with the previous sanction of the Commissioner or the appropriate authority.
6. Mr. Mukherjee further submitted that in order to attract elements of Section 409 of the IPC there is need to show criminal intent on the part of the accused persons to commit the said offence of criminal breach of trust. The petitioner being a bank is a juristic personality and it has no mind of its own and as such a bank cannot have any mens rea nor the bank can be treated as a conspirator. If the amount of TDS is not deposited with the Central Government it is the Income Tax Authority who is the competent person to lodge complaint against the bank and the complainant has no locus standi to lodge complaint. The petitioner could have approached the bank for duplicate TDS certificate and there is provision in the IT Act for duplicate certificate. Accordingly, continuation of the criminal proceeding would be an abuse of the process of the Court and the said proceeding should be quashed. In support of his contention Mr. Mukherjee cited the decisions in Shanti Prasad Jain v. Director of Enforcement, Foreign Exchange Regulation , Ram Ratan Gupta v. Director of Enforcement, Foreign Exchange Regulation , Gopesh Chandra Pal v. Nirmal Kumar Dasgupta , ANZ Grindlays Bank, PIC v. Shipping and Clearing (Agents) Pvt. Ltd. reported in 1992 Cr. LJ 77 and Kalpnath Rai v. State reported in 1998 Cr. LJ 369.
7. On the contrary, Mr. S. K Mehta, the learned Advocate for the complainant submitted that the TDS amount collected by the accused bank was not deposited to the Central Government. It amounts to embezzlement of public money. Mr. Mehta submitted that provisions of Sections 194A, 213 and 271(c) of the IT Act are very clear and also the Rule 30B(2) and Rule 31(3) of the Income Tax Rules. The petitioner bank did not give any TDS certificate to the complainant but, the bank issued only advice statement. The advice statement supplied by the bank to the complainant cannot be equated to TDS certificate and advice statement is not sufficient. The bank after deducting tax at source did not deposit the said amount with the Income Tax Authority and thereby elements of Section 409 was attracted as the bank committed criminal breach of trust in respect of public money.
8. Mr. Mehta further submitted that the Supreme Court in several decisions has clearly laid down that power to quash a criminal proceeding under Section 482 of the Code should be exercised very sparingly and in rarest of rare cases. Whether the allegations in the complaint are likely to be established or not can be decided in the trial by the Magistrate and not by this Court. The petitioner bank could not produce any document to show deposit of the amount deducted as TDS with the Government. The offence committed by the petitioner bank is very serious and there is no ground to quash the criminal proceeding and being so the revisional application should be dismissed.
9. Serious consideration on the submissions made by the learned Advocates for the parties and perusal of the contents of the revisional application along with annexures including copy of the complaint filed by the O.P. reveals that the O.P. filed the complaint for non-supply of TDS certificate to him showing deduction of income tax at source over the interests accrued on the three fixed deposits kept by him with the petitioner bank. The submissions of the learned Advocates for the parties make it clear that the complainant O.P. received one advice statement from the bank showing deduction of tax at source i.e. TDS. It is not such a case that the bank authorities did not supply him any paper or document showing deduction of TDS. The complainant could have approached the bank for a duplicate TDS certificate which he did not do. Failure of the bank to supply TDS certificate in my opinion does not attract element of any criminal offence. At best, it can be a kind of negligence and deficiency of service which a customer is expected to receive from the bank, and for this deficiency of service proper remedy lies elsewhere in the proper forum and not in the form of lodging complaint.
10. The allegation of the complainant was that the amount of fixed deposits which he deposited with the petitioner bank was in fact a trust property as the bank was holding it as a trustee and he was the beneficiary. In this respect the approach of the complainant was not correct and proper and, the constant view of this Court is that the relation between bank and its customer is not a relationship of trustee and beneficiary but, is a relationship of creditor and debtor. In this connection, the decisions in Gopesh Chandra Pal v. Nirmal Kumar Dasgupta (supra) and ANZ Grindlays Bank v. Shipping and Clearing (Agents) Pvt. Ltd. (supra) cited by Mr. Milon Mukherjee for the petitioner bank are apposite. In the latter decision i.e. ANZ Grindlays Bank v. Shipping and Clearing (Agents) Pvt. Ltd. (supra) this Court indicated that normally the relation between a bank and the customer regarding the money deposited is that of a debtor and a creditor but under special arrangement relationship of trust may be created. In the instant matter before this Court from the averments of the complaint it does not appear to me that there was any special arrangement showing relationship of trust between the petitioner bank and the O.P. complainant. The petitioner on maturity of fixed deposits received the amounts with interest. It is evident that the petitioner bank deducted sum of Rs. 13,962/-, Rs. 11,794/- and Rs. 141/- respectively on 23rd June, 1998 as TDS over the interest accrued on the aforesaid three fixed deposits. Deduction of TDS over the amount of interest accrued can under no circumstances be treated as trust property showing entrustment of the property of complainant with the accused petitioner. When a bank deducts certain amount as TDS on the interests accrued over amount of fixed deposits, the said amount deducted as TDS becomes the property of the Government of India which is liable to be deposited with the Income Tax Authorities. The complainant has nothing to do with the amount deducted as TDS. If the Income Tax Authorities again directed him for payment of tax over such amounts, the complainant could have raised objections that the bank authorities committed embezzlement of the amount deducted as TDS. There is nothing to show that the complainant had to pay taxes again for the interest accrued on the fixed deposits or for the amounts deducted as TDS. If the bank fails to deposit the amount within the Income Tax Authorities deducted as TDS, the Income Tax Authority is the only authorised concern to take appropriate penal action against the petitioner bank and the complainant has no authority to file a complaint against the bank and its officers alleging non-issue of TDS certificate and non-deposit of the said amount with the Government of India.
11. Our fiscal policy compels a person to pay tax on his income as income tax and also to pay tax on his expenditure over some articles as sales tax. This is the basic feature of our financial policy and a person has to pay tax over certain amount of income when it becomes taxable and there is no escape from it. The Central Government has issued necessary instructions to the bank authorities to deduct tax at source as TDS over interests accrued on fixed deposits if such interests become subject to tax. The same thing happened in the instant matter and the amount of fixed deposits by the complainant with the bank accrued higher interest thereon in favour of the complainant which was liable to be deducted at source as TDS.
12. The averments of the complaint fails to make out any ingredient of offence under section 409/120B of the IPC against the petitioner bank. There was no entrustments of valuable property by the complainant to the accused bank consequent to relationship of trust existing between the complainant and the accused and there was no question of misappropriation of the said valuable property by the accused petitioner bank and conversion of the said amount to its own use. The complainant entrusted certain amount as fixed deposit with the bank and after maturity of the period he received back the amount of fixed deposits with interests accrued thereon. The amount deducted by bank as TDS was not a property over which the complainant O.P. had domain or, that he made entrustment of the same with the accused petitioner. The amount of interest deducted by petitioner bank as TDS was the property of the Government and complainant did not make any entrustment of that amount to bank. In view of the principle of law discussed above there was no relationship of trustee and beneficiary between the accused and the complainant and the relationship between the accused petitioner and complainant O.P. was that of creditor and debtor. The amount of TDS was not converted by the bank for its own use and I am told that the said amount was deposited with the Government of India long back and consequently there was no mis-appropriation of the said amount. It has been indicated above that the complainant has no authority to lodge the complaint for failure of the bank to deposit the amount of TDS with the Central Government and it is only the Income Tax Authority who is competent to take appropriate penal action against the bank in case of failure of the bank to deposit the amount deducted as TDS.
13. Besides that, the provisions of IT Act and rules also make it clear that the complainant was not entitled to lodge any complaint against the bank authorities for alleged failure to deposit the amount deducted as TDS with the Income Tax Authority. Under Section 194A of the IT Act bank has the authority to deduct tax at source in respect of payment of interest other than income by way of interest on securities. In the instant case the interest accrued on the basis of fixed deposits kept by the O.P. with the petitioner bank and it was liable to be deducted at source under Section 194A of the IT Act. Section 203 of the Act prescribes issuance of certificate for tax deducted and according to O.P. he was not provided with such certificate though it is clear that the bank sent him advice showing deduction of income tax at source as TDS. It has already been mentioned earlier that the complainant could have submitted a prayer before the petitioner bank for issuance of a duplicate TDS certificate which was not done by the complainant. After going through the provisions of sections 203, 203AA, 205 of the IT Act I find that the complainant was not at all liable to pay the amount as tax which was deducted as TDS by the petitioner bank. Section 272A(2)(g) of the IT Act prescribes penalty for failure to furnish a certificate and Section 276B of the Act prescribes punishment in case of failure to deposit the amount deducted as TDS to the Central Government. Section 279 of the Act prescribes that such a person shall not be proceeded with for an offence under Section 276B except with the previous sanction of the Commissioner or the appropriate authority. Section 279 of the IT Act makes it clear that the complainant has no authority to initiate any proceeding for alleged failure by the petitioner bank to deposit the tax deducted at source with the Income Tax Authority. The above discussion makes it clear that there was no entrustment of any valuable property in the form of TDS by the complainant with the accused petitioner and that being the position there was no element of Section 409 of the IPC read with Section 120B of the IPC against the petitioner bank.
14. Mr. Mukherjee, the learned Advocate for the petitioner tried to impress upon me by submitting that the complaint was barred by limitation and the learned Magistrate could not have taken cognizance over the same. In this matter, when I find that the complaint does not disclose elements of Section 409 of the IPC I do not like to enter into the discussion whether the complaint was barred by limitation. It was not a case under Section 406 of the IPC but, the complaint was filed for initiating the proceeding under Section 409 of the IPC whose punishment is imprisonment for life, or imprisonment for 10 years and fine. Being so, I think that it would not be proper for me to enter into discussion whether provisions of Section 468(2)(c) of the Code was applicable in this matter. But I must observe that before issuing process the learned Magistrate should have considered the factual position as the incident, if any, occurred in June, 1998 and the complaint was filed in August, 2004. At the same time, I refrain from entering into discussion whether the petitioner being a bank is a juristic person and had no mens rea of its own. I admit the principle of law laid down by the Hon'ble Supreme Court in Kalpnath Rai (supra) wherein the Supreme Court observed that the company is not a natural person and company had no mens rea even if any tourist was allowed to occupy the rooms in Hotel Hans Plaza. The factual aspect of the reported decision being completely different from the factual aspect of the present matter, it is useless to enter into any discussion whether the petitioner bank had the mens rea or not. As discussed and indicated above the petition of complaint does not disclose any element of Section 409 of the IPC and that the complainant had no authority to lodge the complaint against the bank question of discussion concerning mens rea of the bank in this matter does not arise.
15. If a person remains silent for over six years and decides not take any action and thereafter lodges complaint after six years the Courts should be careful to issue process in such a matter. The learned Magistrate should have considered the entire matter before issue of process and, it is clear that the learned Magistrate failed to appreciate that the alleged incident took place more than six years back and whether there was any material before him to issue process for the alleged occurrence of failure to supply TDS certificate which does not attract any element of Section 409 of IPC. In my opinion, this is a fit case where this Court should invoke its inherent jurisdiction under Section 482 of the Code. Continuation of the criminal proceeding against the petitioner will be an abuse of the process of Court and the criminal proceeding against the petitioner should be quashed.
16. In this connection I like to refer a decision of the Supreme Court in Zandu Pharmaceutical Works Ltd. v. Mohd. Sharaful Haque reported in 2005 SCC(Cri) 283. In the reported decision the cause of action, if any, arose in the year 1995 and the respondent therein was the complainant who remained silent for almost six years. The Supreme Court observed that, the facts indicate that the complainant had not come to Court with clean hands. There was no explanation whatsoever for the inaction between 1995 and 2001. The High Court seems to have been swayed by the fact that the appellants have rejected claim of the complainant on 5.12.01. It failed to notice that the communication dated 5.12.01 was in response to the letter of the complainant dated 24.11.01. The complaint was nothing but a sheer abuse of the process of law and this is a case where the power under section 482 should have been exercised. In the present matter also the cause of action, if any, arose in June, 1998 when allegedly the O.P. complainant did not receive TDS certificate. The complainant did not approach the petitioner bank for duplicate TDS certificate. Instead of doing so after six years he lodged the complaint and the learned Magistrate without considering the matter issued process. It clearly shows that the complainant came to Court not with clear hands. In view of the guideline laid down by the Supreme Court this Court should exercise jurisdiction under section 482 of the Code.
17. In view of the discussion made above the revisional application succeeds and is allowed. The criminal proceeding being Case No. C-9458 of 2004 now pending before the learned Metropolitan Magistrate, 11th Court, Calcutta be quashed against the petitioner.
18. Criminal Section is directed to send a copy of this order to the learned Metropolitan Magistrate, 11th Court, Calcutta for information and necessary action.
Later:
19. Let xerox certified copy of this order be given to the parties within two weeks from the date of making of such application on payment of proper fees and charges.
