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2005 DIGILAW 270 (ORI)

Pravat Kishan v. State of Orissa

2005-04-20

A.K.PARICHHA

body2005
JUDGMENT A. K. PARICHHA, J. : This is an application under Section 482, Cr.P.C. for quashing the FIR and the order of cognizance dated 31.3.2003 passed by the learned S.D.J.M., Panposh, in G.R.case No. 36 of 2002 arising out of Tangarapalli P.S.Case No. 2 of 2002. 2. Basing on the FIR lodged by the informant, opposite party No. 2, Tangarpalli P.S.Case No. 2 of 2002 was registered, investigation was conducted and charge-sheet was submitted against the petitioner for the offence under Sections 420, 468 and 471, IPC. After perusing the materials on record, the learned SDJM, Panposh took cognizance for the above noted offences and directed issue of process against the petitioner for his appear¬ance. Aggrieved, the petitioner has come up with the present application with a prayer to quash the said FIR and the order of cognizance basically on the plea that no material evidence is there on record to establish the offences under Sections 420, 468 and 471,IPC. 3. Mrs. Bharati Dash, learned counsel for the petitioner submits that the petitioner is the adopted son of Jhaptu Kishan, the paternal uncle of the informant, opposite party No. 2 and so his appointment in the Rourkela Steel Plant under the Rehabilita¬tion Scheme was patently legal and the allegation that the peti¬tioner is a total stranger to the family and got the appointment on the basis of forged documents is untenable. Learned counsel clarifies that the issue of adoption of the petitioner is a civil dispute between the parties, which can be resolved only by the Civil Court and for such issue, criminal proceeding under Sec¬tions 420, 468 and 471, IPC is not maintainable. In support of the aforesaid contention, learned counsel cited the decision of the Supreme Court in the case of Bal Kishan Das v. P.C.Nayar, AIR 1991 SC 1531 . 4. Ms. C. Kasturi, learned Addl. Govt. Advocate, on the other hand, submits that there are statements and report of the officials in the case diary to show that the petitioner personat¬ing himself as the son of Jhaptu Kishan applied for a job in the Rourkela Steel Plant under the rehabilitation scheme and produc¬ing forged certificates, he got that appointment. 4. Ms. C. Kasturi, learned Addl. Govt. Advocate, on the other hand, submits that there are statements and report of the officials in the case diary to show that the petitioner personat¬ing himself as the son of Jhaptu Kishan applied for a job in the Rourkela Steel Plant under the rehabilitation scheme and produc¬ing forged certificates, he got that appointment. She submits that the dispute regarding adoption might be a civil dispute, but in the present case, there are strong materials to show that there was never any adoption of the petitioner and that the certificates from the Tahasildar were obtained by fraud and misrepresentation and that the school leaving certificate was also never issued by the school authorities. Ms. Kasturi submits that on perusal of the materials available in the case diary, a clear case under Sections 420, 468 and 471, IPC is made out and so, the impugned order of cognizance passed in the aforesaid G.R.Case cannot be quashed. 5. Before analysing the rival contentions of the learned counsel for the parties, it would be profitable to recount the prosecution case briefly. Some lands were submerged in Mandira Dam Project. The Rour¬kela Steel Plant authorities floated a rehabilitation scheme making a provision for appointment of one person from each family whose lands were submerged in that project. Some lands belonging to the family of Op. party No. 2 were submerged in Mandira Dam Project. Opposite party No. 2 at that time was a minor. After attaining majority, he applied for a job under the rehabilitation scheme and during pendency of his application, on enquiry, he learnt that the petitioner describing himself as son of Jhaptu Kishan, who is the paternal uncle of opposite party No. 2, got an appointment in Rourkela Steel Plant under the rehabilitation scheme. Opposite party No. 2 then lodged a report before Tangara¬palli Police Station alleging that the petitioner who is a total stranger to the family has played fraud and has got appointment by personating himself as son of Jhaptu Kishan. The police au¬thorities took up investigation of the case and found that the petitioner is not the adopted son of Jhaptu Kishan and the school leaving certificate, which he produced was a forged one. They accordingly submitted charge-sheet under Sections 420, 468 and 471, IPC. The police au¬thorities took up investigation of the case and found that the petitioner is not the adopted son of Jhaptu Kishan and the school leaving certificate, which he produced was a forged one. They accordingly submitted charge-sheet under Sections 420, 468 and 471, IPC. The petitioner claims that he is the adopted son of Jhaptu Kishan and has got certificates of the authorities to support his claim, but without taking those documents into con¬sideration, the police authorities charge-sheeted him and the Court also took cognizance against him. 6. In the case of State of Orissa v. Debendra Nath Padhi,* reported in (2005) 30 OCR (SC) 177 reference was made to a larger Bench of the Apex Court to decide as to whether at the stage of cognizance the defence plea and evidence can be considered. After examining the provisions of Sections 227 and 228 of the Cr.P.C. and the ratio laid down on the subject in earlier cases, their Lordships came to hold that the stage of cognizance the plea and evidence put-forth by the accused are not to be considered and that the Court should decide the matter of cognizance only on the materials placed before it by the prosecution. Their Lordships also observed that the materials produced by the prosecution are not to be scrutinised in a threadbare manner as is done at the time of final disposal of the case, but are to be considered in a broad manner and if those materials reveal the ingredients of the alleged offences in a prima facie manner, then cognizance of the offences alleged is to be taken. 7. Law is, therefore, settled that at the stage of cognizance the evidences produced by the prosecution are only to be taken into consideration and if such materials accepted in its entirety, reveal a prima facie case for the alleged offences, then cognizance is to be taken. 8. In the present case, the prosecution alleges that the petitioner personated himself as son of Jhaptu Kishan and pro¬duced forged documents in order to obtain a job in Rourkela Steel Plant. The petitioner, on the other hand, claims that he is the adopted son of Jhaptu Kishan and the documents and certificates produced by him are all genuine. The truth or merit of the claim of the respective parties can be decided only after the trial is over. The petitioner, on the other hand, claims that he is the adopted son of Jhaptu Kishan and the documents and certificates produced by him are all genuine. The truth or merit of the claim of the respective parties can be decided only after the trial is over. For the purpose of cognizance is the prosecution is able to produce some evidence or material to indicate that the allega¬tions against the petitioner might be true or probable, then cognizance of the offence can be legally taken. Contents of the case diary, reveals that the members of family of Jhaptu Kishan have stated before the I.O. that Jhaptu Kishan was issueless and that they are not aware of any adoption made by Jhaptu Kishan. The report of the Tahasildar shows that Jhaptu Kishan was issue¬less. Even the father of the petitioner has stated that he is not aware of any adoption of the petitioner by Jhaptu Kishan. That apart, the Headmaster of the High School has also reported to the I.O. of the case that the school leaving certificate which was used by the petitioner is not a genuine one and was never issued by the school. With these materials available in the case diary, one has to conclude that a prima facie case for the offences under Sections 420, 468 and 471, IPC is available. Whether the above noted evidences are acceptable or are sufficient to estab¬lish the charges are matters to be decided at the stage of trial. Similarly, the plea of the petitioner that he is the adopted son and that the documents are genuine can also be considered at the stage of trial but such defence plea and evidence cannot be assessed at the stage of cognizance. Thus, the ratio in the case of Bal Kishan Das v. P.C.Nayar (supra) cannot be applied to the facts of the present case. 9. Since the evidence and materials produced by the prosecution constitute a prima facie case for the offence under Sections 420, 468 and 471, IPC, the order of taking cognizance by the learned SDJM, Panposh dated 31.3.2003 is legally tenable and does not call for any interference. 10. In the result, therefore, the prayer of the petitioner to quash FIR and the order of cognizance dated 31.3.2003 is found to be without any merit and is dismissed. 10. In the result, therefore, the prayer of the petitioner to quash FIR and the order of cognizance dated 31.3.2003 is found to be without any merit and is dismissed. It is however made clear that the trial Court is not to be influenced by any observation made by this Court and shall decide the case on its own merit. Petition dismissed.