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2005 DIGILAW 375 (ORI)

Swasti Ranjan Mohapatra v. State of Orissa

2005-06-21

A.K.PARICHHA

body2005
JUDGMENT A. K. PARICHHA, J. : This is an application under Section 482, Criminal Procedure Code (in short, ‘Cr.P.C.’) for quashing the proceeding in Vigilance G.R. Case No.11 of 2005, correspond¬ing to Vigilance F.I.R. No.11 of 2005 pending in the Court of learned Special C.J.M., Vigilance, Bhubaneswar. The Deputy Super¬intendent of Police, Vigilance Cell, Bhubaneswar lodged an F.I.R. alleging that the petitioner who is working as Company Secretary of Orissa Rural Housing Development Corporation Ltd., Bhubaneswar (in short, ‘ORHDC’) and the Managing Director of the said Corpo¬ration entered into a Criminal conspiracy with a builder firm, namely “M/s. Raj Bahadur Associates, Vishakhapatnam” and in procession of that conspiracy sanctioned and disbursed a loan of Rs.20 lakhs to that firm abusing their official position. Basing on the said F.I.R. Bhubaneswar Vigilance P.S. Case No.11 of 2005 was registered under Section 13 (2)/13 (1) (d) of the Prevention of Corruption Act read with Section 120-B of I.P.C. and investi¬gation was undertaken. Aggrieved by such registration of the case and investigation, the petitioner has filed the present applica¬tion for declaring the registration of the case illegal and for quashing of the investigation and the proceeding of the case. 2. Mr. Govind Das, learned Senior counsel appearing for the petitioner submitted that the petitioner was working as Compa¬ny Secretary of the O.R.H.D.S., Bhubaneswar and his official role was confined to the documentation part of the loan transactions and he was in no way concerned with the sanction or disbursement of the loan to M/s. Raj Bahadur Associates, Vishakhapatnam and for that reason the case under Section 13(2)/13(1)(d) of the P.C. Act and Section 120-B of I.P.C. is not maintainable against him. In this regard, Mr. Das indicated several Clauses of the power of attorney, copy of the deed of the agreement, the legal heir cer¬tificate, copy of Khatian, copy of the additional agreement and copies of the Board of Resolution. According to him, when the loanee M/s. Raj Bahadur Associates, Vishakhapatnam had executed the required documents, and the title deeds of the property mort¬gaged had been deposited and valid power of attorney holder had offered collateral security, sanction and disbursement of the loan can never be termed as illegal or product of any criminal conspiracy. Mr. According to him, when the loanee M/s. Raj Bahadur Associates, Vishakhapatnam had executed the required documents, and the title deeds of the property mort¬gaged had been deposited and valid power of attorney holder had offered collateral security, sanction and disbursement of the loan can never be termed as illegal or product of any criminal conspiracy. Mr. Das, specifically submitted that the allegations and materials put-forth by the Vigilance authorities do not constitute any case against the petitioner for the alleged of¬fences and so quashing of the F.I.R. and investigation in Bhuba¬neswar vigilance P.S. Case No.11 of 2005 is necessary. 3. Mr. D. Mohapatra, learned Standing counsel (Vigilance) on the other hand submitted that ORHDC is constituted with the primary object of providing cost effective fire proof houses to the poor persons of rural areas and there was no scope for the said Corporation to grant hefty loans to the urban builders like M/s. Raj Bahadur Associates, Vishakhapatnam. He submitted that sanction and disbursement of loan of Rs.20 lakhs to M/s. Raj Bahadur Associates, Vishakhapatnam itself suggests that the petitioner and the Managing Director of the Corporation were involved in Criminal conspiracy with that firm. Mr. Mohapatra further submitted that the loanee M/s. Raj Bahadur Associates, Vishakhapatnam was already a defaulter and had also not executed proper documents of mortgage, collateral security etc, for the loan applied for but the petitioner recommended its application for the loan, as a result, the loan was sanctioned and public funds were wasted. Mr. Mohapatra further submitted that there are clear allegations of official misconduct and criminal conspiracy against the petitioner in the F.I.R. and investigation is going on into the said allegations and so at this juncture quashing of the F.I.R. and investigation would amount to throttling the process of investigation and depriving the investigating agency from finding out truth or falsity of allegations. 4. In the case of Rajesh Bajaj v. State NCT of Delhi and others, AIR 1999 SC 1216 , the apex Court observed that the inher¬ent power under Section 482, Cr.P.C. is not to be normally exer¬cised for quashing the police investigation as the field of investigation is exclusively reserved for the investigating agency. 4. In the case of Rajesh Bajaj v. State NCT of Delhi and others, AIR 1999 SC 1216 , the apex Court observed that the inher¬ent power under Section 482, Cr.P.C. is not to be normally exer¬cised for quashing the police investigation as the field of investigation is exclusively reserved for the investigating agency. The Court, however, indicated that the exceptional cir¬cumstances where the allegations made in the F.I.R. or complaint even if taken at their face value and accepted in their entirety, do not prima facie constitute any offence or make out a case against the accused the Court may quash the F.I.R. and investiga¬tion connected with such F.I.R. In S.N. Palanitkar and others v. State of Bihar and another, AIR 2001 S.C. 2960 also the apex Court indicated that where the alleged acts against the accused do not constitute any offence, the Court would be justified in exercising the inherent power under Section 48, Cr.P.C. for quashing the proceeding. In Union of India v. Prakash P. Hinduja and another AIR 2003 Page-2612, the Supreme Court specifically laid down the grounds on which the power under Section 482, Cr.P.C. can be exercised for quashing the F.I.R. and the investi¬gation connected with F.I.R. The grounds noted are as follows; (1) Where the allegations made in the F.I.R. or complaint even if taken at their face value and accepted in their entirety do not prima facie constitute any offence for making out a case against the accused. (2) Where the uncontroverted allegations made in the F.I.R. or the complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (3) Where there is an express legal bar engrafted in any of the provisions of the Code of Criminal Procedure or the concerned Acts to the institution and continuance of the proceedings. So, the settled judicial mandate is that an F.I.R. and investigation connected with an F.I.R. can be quashed if the allegations made in the F.I.R. do not reveal any case against the accused or if there is an express legal bar for institution of such F.I.R. and continuance of such proceeding. 5. So, the settled judicial mandate is that an F.I.R. and investigation connected with an F.I.R. can be quashed if the allegations made in the F.I.R. do not reveal any case against the accused or if there is an express legal bar for institution of such F.I.R. and continuance of such proceeding. 5. In the F.I.R. of Bhubaneswar Vigilance P.S. Case No.11 of 2005 it has been alleged that the petitioner being the Secre¬tary of the ORHDC, Bhubaneswar recommended the loan application of M/s. Raj Bahadur Associates, Vishakhapatnam although the said loanee was a defaulter and had not executed the required docu¬ments like tripartite agreement, mortgaged documents, collateral security etc in a proper manner. It is also alleged that the petitioner without pointing out the defects and lapses of M/s. Raj Bahadur Associates,, Vishakhapatnam recommended the loan application knowing fully well that the ORHDC is meant for pro¬viding cost effective houses to the rural poor and not to urban builders. There is also allegation in the F.I.R. that the peti¬tioner and the Managing Director acted in excess of their au¬thority and abused their official position in order to show undue favour to M/s. Raj Bahadur Associates, Vishakhapatnam. The sub¬mission of Mr. Das, learned senior counsel for the petitioner is that proper documents had been executed by the loanee and ade¬quate mortgage had also been given and so no offence was commit¬ted by the petitioner. It is also submitted that the role of the petitioner was limited to the documentation part of the transac¬tion and so the allegation of criminal conspiracy is unfounded. 6. Admittedly, the petitioner is a public servant and was connected with the processing of the loan application of M/s. Raj Bahadur Associates, Vishakhapatnam. Whether he had entered into criminal conspiracy with that builder and other co-accused persons or whether he acted bona fide while discharging his part of the job in processing the loan application is under investiga¬tion and only after the completion of investigation, it would be possible to know the prima facie truth or falsity of the allega¬tion. It is submitted by Mr. Das that the documents, which have been filed by the petitioner would show that the loan in favour of M/s. Raj Bahadur Associates, Vishakhapatnam was sanctioned properly and that the petitioner had nothing to do with the sanc¬tion of the loan. It is submitted by Mr. Das that the documents, which have been filed by the petitioner would show that the loan in favour of M/s. Raj Bahadur Associates, Vishakhapatnam was sanctioned properly and that the petitioner had nothing to do with the sanc¬tion of the loan. The materials, which are now placed in defence of the petitioner before this Court cannot be examined at this stage to find out the truth or falsity of the allegations as it has already been clarified in the case of State of Orissa v. Debendra Nath Padhi* (2005) 30 O.C.R. (S.C.) 177), that at the stage of investigation and cognizance the defence plea and evi¬dence are not to be considered by the Court. 7. In the F.I.R. some specific allegations have been raised against the petitioner which if accepted prima facie reveal commission of offence under Section 120-B of the I.P.C. and Sections 13(1)(d)/13 (2) of the P.C. Act. So, there is no scope of saying that the allegations made in the F.I.R. taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. Truth or falsity of the allegations noted in the F.I.R. can be known only after the completion of the investigation. Quashing the F.I.R. and investigation at this juncture will, therefore, not be in the best interest of justice. The I.O. may however take due note of the documents relied by the petitioner during the course of investigation. 8. For the above said reasons, the inherent power under Section 482, Cr.P.C. cannot be exercised for quashing the F.I.R. and connected investigation in Bhubaneswar Vigilance P.S. Case No.11 of 2005. The prayer of the petitioner accordingly stands rejected and CRLMC stands dismissed. CRLMC dismissed.