N. Kotiswar Singh, J.@mdashThe present revision petition has been preferred against the order dated 2.8.2013 passed in Cril (P) Case No. 3 of 2011 by the learned Chief Judicial Magistrate, Churachandpur, Manipur, by which it was directed that the charge for offence u/s 409 IPC shall be framed against the appellant and another person, even though C.B.I. while submitting the report u/s 173 Cr.P.C. did not prefer to level any charge against the petitioner on the ground that his acts of omission and commission relating to the incident of fraudulent withdrawal of Rs. 4.5 crores from the United Bank of India, Churachandpur Branch, were due to threat meted out to him by the other accused persons, and proposed his discharge from the case.
2. The brief facts as may be relevant for the purpose of consideration of this revision petition may be stated as follows.
An FIR No. 55(1))2009 CCP PS u/s 419/420/468/471/120B/121/121A/400 IPC was lodged relating to fraudulent withdrawal of Rs. 4,54,00,000/- (Rupees four crores fifty four lakhs) only from the official account of the Executive Engineer, DRDA, Churachandpur, bearing account No. 0255010217835 in the United Bank of India, Churachandpur Branch by some unknown persons in connivance with the Bank staff, on a complaint filed by the Executive Engineer (E.E.), DRDA, Churachandpur on 16.10.2009. Investigation was initially taken up by the State Police but on the direction of the Hon''ble Gauhati High Court in W.P.(C) No. 636 of 2009 (United Bank of India Vs. State of Manipur & Ors.) the investigation was referred to the CBI (Anti Corruption Branch).
During the investigation conducted by the CBI it was revealed that an amount of Rs. 5,86,68,065.00 was deposited in the aforesaid account of the E.E., DRDA, on 10.9.2009, which was meant for implementation of the Multi Sectoral Development Programme (MSDP). However, later on 15.10.2009 it was revealed that an amount of Rs. 4.54 crores had been withdrawn from the said account on various dates on 3.10.2009, 7.10.2009 and 14.10.2009 through six cheques by forging the signature of the E.E., DRDA, the account holder.
The investigation revealed that three cadres of Zomi Revolutionary Army (ZRA), an armed underground organization namely, (i) S. Lallawn, (ii) N. Suanlian and (iii) Liankiamlou Guite were responsible for the said fraudulent withdrawal from the DRDA account.
According to the C.B.I., the said N. Suanlian, had brought a requisition slip for issue of cheque book against the aforesaid account and submitted to the petitioner, who was serving as the Deputy Manager of the UBI, Churachandpur Branch. The petitioner, in turn instructed one Laltuoklien to complete the formalities of issuing a new cheque book in the name of the account holder. Accordingly, a new cheque book was issued and six cheque leaves from the said cheque book were used for withdrawing fraudulently the aforesaid amount of Rs. 4.54 crores.
3. It has been stated that the ZRA cadres had threatened the petitioner and the Head Cashier of the Bank namely, Benjamin Hmar to co-operate with them for withdrawal of money from the Bank. It has been stated that the petitioner was threatened by the Liankiamlou Guite, the accused ZRA cadre on 28.09.2009 over phone. Not only that, the said ZRA cadre also went to the house of the petitioner and threatened him in front of his family members with dire consequences in case he did not allow withdrawal of money from the said account of the Executive Engineer, DRDA.
It has been also stated that another ZRA cadre, N. Suanlian had threatened the Head Cashier also to accept the cheques for payment otherwise he would face dire consequences and get killed. As per the investigation, on 29.9.2009 four cheques for Rs. 82,00,000/- each were presented to the Bank for payment by the accused, S. Lallawn and N. Suanlian. The said cheques were passed by the Deputy Manager (the petitioner) on being threatened by Liankiamlou Guite, the ZRA cadre, the previous evening, and the petitioner in turn directed the Head Cashier, Benjamin Hmar to make the payment, who, however refused to comply as there was no security slip. Thereafter, on 3.10.2009 the accused S. Lallawn and N. Suanlian again came to the petitioner with the said four cheques. The petitioner then took them to the Cashier, Benjamin Hmar and directed him to make payment stating that he was threatened with life by the ZRA organisation. The ZRA cadres were also stated to have threatened the Head Cashier, Benjamin Hmar with dire consequences and asked him to make payment of the four cheques of Rs. 82 lakhs each. They also produced false/forged security slips for allowing payment and accordingly an amount of Rs. 3.28 crores was withdrawn by S. Lallawn and N. Suanlian against the said four cheques. Thereafter, again on 3.10.2009 the said S. Lallawn and N. Suanlian again came to the UBI, Churachandpur Branch, with another cheque and withdrew Rs. 40 lakhs without production of security slip and subsequently another amount of Rs. 86 lakhs was withdrawn on 14.10.2009 through another cheque by producing false/forged security slip. Thus, a total amount of Rs. 4.54 crores was fraudulently withdrawn from the UBI Churachandpur Branch by the ZRA cadres with the help of the petitioner and other staff, though purportedly under threat to their lives.
4. Subsequently, after the case was taken up for investigation, the entire amount of Rs. 4.54 crores, fraudulently withdrawn by the ZRA organisation was returned by the ZRA in three phases to the Superintendent of Police, Churachandpur.
5. On completion of investigation, the CBI framed charges against the said S. Lallawn, N. Suanlian and Liankiamlou Guite but sought for discharge of the petitioner, the Head Cashier, Benjamin Hmar and one Oinam Chaoba Singh from the case.
The CBI accordingly submitted charge-sheet for taking cognizance of the offence and issuing process against the three accused persons to stand trial.
6. The learned CJM, Churachandpur on consideration of the materials on record took the view that there were sufficient materials against the accused S. Lallawn, N. Suanlian and Liankiamlou Guite for trial for committing offence u/s 120B, 386, 506, 468 and 471 IPC. However, in respect of Oinam Chaoba Singh, the learned CJM having considered the materials on record observed that there is no material to frame any charge against him and accordingly he was discharged. However, as regards the petitioner, Pumkhogin Guite and the Head Cashier, Benjamin Hmar, the learned CJM was of the view that prima facie case of criminal breach of trust u/s 409 IPC has been made out against them and accordingly directed for framing of charge for offence u/s 409 IPC against the petitioner and the Head Cashier, Benjamin Hmar. It is against this order of the learned CJM, directing for framing of charge against the petitioner u/s 409 IPC that the present revision petition has been filed by the petitioner. The CBI has not questioned the decision of the learned CJM and has left to this Court to decide the issue.
7. For coming to the conclusion that prima facie case of criminal breach of trust u/s 409 IPC has been made out against the petitioner and the said Benjamin Hmar, the learned CJM, Churachandpur, took into consideration the confessional statement made by the petitioner and Benjamin Hmar u/s 164 Cr.P.C. and observed that their statement made u/s 164 Cr.P.C. indicates that they were threatened by the accused N. Suanlian and Liankiamlou Guite, which was also supported by the statement of the daughter of the petitioner, who was present when the petitioner was threatened by Liankiamlou Guite in his house. Even though it was the case of the investigating agency that the petitioner and Benjamin Hmar were threatened by the ZRA cadres and acted out of fear and apprehension of danger to their lives, it was observed by the learned CJM, Churachandpur that materials indicate that the petitioner and the Head Constable had failed to discharge their duties and obligations while permitting withdrawal of the amount from the DRDA Bank account opened in the name of the E.E. The learned CJM did not accept the plea of the petitioner and the Head Cashier, Benjamin Hmar that they were victims of threats who were compelled by the ZRA cadres to allow withdrawal of the money.
The learned CJM observed that the petitioner and the other accused could have the benefit of Section 94 only if there was apprehension that instant death would be the consequence, but, in the present case, there is nothing to suggest that while they were committing the aforesaid acts of omission or commission there was any apprehension of instant death to them or to their family members.
8. Learned counsel for the petitioner has vehemently argued that it is admitted by all that there are sufficient materials on record to show that there was indeed threat to the lives of the petitioner and the Head Cashier which compelled them to allow the ZRA cadres to withdraw the money unauthorizedly from the Bank. But there was no dishonest intention for committing any crime inasmuch as they had executed the offensive deeds under compulsion on the pain of death and as such since there was no deliberate or wilful act on the part of the petitioner and in the absence of "mens rea" the petitioner could not have been charged for any of the offences including the offence of criminal breach of trust u/s 409 IPC and accordingly submitted that the direction of the learned CJM, for framing charge against the petitioner and the Head Cashier for the offence u/s 409 IPC is liable to be interfered with.
It has been also contended by the petitioner that apart from absence of mens rea, since the entire money which was stated to have been fraudulently withdrawn had been already returned/recovered, there was no wrongful loss to the account holder.
Accordingly, it was submitted that in absence of any dishonest intention to cause wrongful gain to one person or wrongful loss to another person, the offence u/s 409 IPC is not made out.
9. Thus, the primary issue which arises for consideration is whether the petitioner would be entitled to take the benefit of Section 94 IPC which provides that nothing is an offence which is done by a person who is compelled to do it by threats, which, at the time of doing it, reasonably causes the apprehension that instant death to that person will otherwise be the consequence. In the present case, the plea of the petitioner is that he was compelled to allow the ZRA cadres to withdraw the amount fraudulently from the Bank on the pain of death. The petitioner was allegedly threatened not only over phone but at his house by the said accused ZRA cadres in presence of his family members. According to the petitioner, had there been no such threat to the life of the petitioner, the petitioner would not have done anything to facilitate the fraudulent withdrawal of money from the Bank by the ZRA cadres.
10. To appreciate this plea we have to examine the scope of Section 94 of the IPC which reads as follows:
94. Act to which a person is compelled by threats.-
Except murder, and offences against the State punishable with death, nothing is an offence which is done by a person who is compelled to do it by threats, which, at the time of doing it, reasonably cause the apprehension that instant death to that person will otherwise be the consequence.
Provided the person doing the act did not of his own accord, or from a reasonable apprehension of harm to himself short of instant death, place himself in the situation by which he became subject to such constraint.
Reading of Section 94 IPC would reveal that the section has two ingredients, i.e., i) compelling a person to do certain illegal act by means of threat, and ii) doing the illegal act because of apprehension at the time of doing the illegal act that instant death to the person will otherwise be the consequence, if not done. The threat mentioned in Section 94 IPC is not mere threat of physical violence or even death but "instant death". The word ''death'' has been qualified by the word ''instant''. If the death threat is not subsisting or proximate at the time of committing the illegal act, the benefit of Section 94 IPC cannot be availed. The apprehension must be of "instant" death at the time of committing the offence and not merely a general threat of death which is likely to ensue at a subsequent point of time. Section 94 IPC embodies the principle that a person, who is compelled by a person by threat or force to do any act should not be punished for that act. This provision had been considered by the Law Commission of India. The Law Commission in its 42nd Report had suggested redrafting of the said section to include not only instant death but also grievous bodily injury which may be as compelling as threat of death. The Law Commission also sought to expand the scope of this benefit not only to the person who had received the threat but also to any near relatives of that person, being, parents, spouse, son or daughter, when the threats are made. Though the Law Commission had sought to enlarge the scope of the protection offered by Section 94, the law has not yet been changed. Therefore, this protection will be available only when there is a threat of instant death and it cannot be extended to any other relatives of the person as proposed by the Law Commission. Therefore, in the present case, we have to see whether there was apprehension of "instant" death to the petitioner when he was compelled to allow the fraudulent withdrawal from the Bank.
11. As per the investigation, the illegal acts committed by the petitioner consisted of separate acts and extended over a period of time. According to the CBI, N. Suanlian, the ZRA cadre brought a requisition slip dated 23.9.2009 for issuing a cheque book against the savings bank account No. 217835 which was submitted to the petitioner, who in turn, instructed one Laltuoklien, an employee of the Bank to complete the formalities for issuing a new cheque book. This was the first illegal act on the part of the petitioner to facilitate the fraudulent withdrawal of money from the Bank. Thereafter, the petitioner and the Head Cashier Benjamin Hmar were threatened by the ZRA cadre Liankiamlou on 28.9.2009 over phone and on the same day in the evening petitioner was again threatened in front of his family members with dire consequences by the ZRA cadres to allow withdrawal of money. The first attempt was made on 29.9.2009 to withdraw an amount of Rs. 3.28 crores on 29.9.2009 by presenting forged cheques, each for Rs. 82 lakhs, which however, did not materialise as the Head Cashier, Benjamin Hmar refused to cooperate as there was no security slip. This was the second illegal act on the part of the petitioner. However, after two days the ZRA cadres were successful in withdrawing the said amount of Rs. 3.28 crores on 3.10.2009. This was the third act of commission on the part of the petitioner to allow fraudulent withdrawal. The petitioner had cooperated with the ZRA cadres apparently because of threat to his life. After about four days, on 7.10.2009, another amount of Rs. 40 lakhs was withdrawn without production of any security slip which was the fourth act on the part of the petitioner. Similarly, and lastly, after about a week on 14.10.2009, another sum of Rs. 86 lakhs was withdrawn by producing false security slip. Thus, what is seen is that the aforesaid amount of Rs. 4.54 crores was withdrawn from the Bank on different dates with the intervening periods of two, four and seven days.
It is also to be noted that the aforesaid illegal deeds of the petitioner were within the Bank premises which was well guarded and where a number of Bank staff were also working.
12. It is not the case of the petitioner that the petitioner was compelled to cooperate with the ZRA cadres in the Bank premises because of threat of the ZRA cadres who were armed with deadly weapons which could cause instant death to the petitioner. The ZRA cadres might have the capability to do harm to the petitioner and others to the extent of causing death later on because of his refusal to cooperate with the ZRA cadres. But the petitioner has not been able to bring out the materials to show that there was apprehension of instant death at the time of transaction in the Bank. The threat of instant death to the petitioner must be present when the aforesaid illegal acts were being performed in the Bank or must be in close proximity in time with the illegal acts. If the threat to kill is to be carried out at a later point of time, for not doing the illegal act, it cannot be said that it was a threat for "instant" death. The possibility of the petitioner facing death subsequently and later on, on his refusal to do certain acts as demanded by the ZRA cadres in the Bank would not come within the purview of ''instant death'' as provided u/s 94 IPC. The threat of causing death is qualified by the word, ''instant''. Thus, the threat must be to cause death instantly. However, the petitioner has not been able to draw attention of this Court to any evidence to suggest that there were indeed threat to cause instant death to the petitioner if the acts so demanded by the ZRA cadres were not carried out.
It is to be noted that there were several intervals/interlude between these various dates when the petitioner was compelled to cooperate with the ZRA cadres, during which interludes the apprehension of instant death could not have been present. In other words, there were time gaps or discontinuation in the alleged death threat. In view of that the learned CJM had observed that the facts suggest that they had time to take the help of Police even if they had been threatened with death. Thus, the observation of the learned CJM that there is nothing to suggest that at the time of committing the offence there was apprehension that instant death would otherwise be the consequence, does not suffer from any illegality so as to warrant interference from this Court.
13. The other contention of the petitioner that since the entire amount of Rs. 4.54 crores had been already returned to the bank or recovered, thus no loss was caused to the account holder, no case can be said to have been made out for the offence u/s 409 IPC, cannot be accepted inasmuch as the offence of criminal breach of trust was complete the moment the money was dishonestly and wrongfully withdrawn from the Bank though it may be for a limited period of time or it may have been subsequently recovered.
14. Accordingly, this Court is of the view that no case has been made out to interfere with the order passed by the learned Chief Judicial Magistrate, Churachandpur.
The criminal petition, accordingly, stands dismissed as being devoid of merit.
