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2013 DIGILAW 309 (ORI)

KISHAN N. PARIKH v. TRILOCHAN BARIK

2013-08-16

B.R.SARANGI

body2013
JUDGMENT : B.R. Sarangi, J. - The petitioners have filed this application to quash the proceeding initiated against them and to set aside the order refusing to recall the order dated 12.02.2002 passed by the learned S.D.J.M., Panposh in I.C.C. Case No. 56 of 2001 taking cognizance of the offence punishable under Sections 420/403/406/34 I.P.C. The facts as revealed from the complaint petition are that M/s. Jamshedpur Beverages Ltd. appointed one Umakanta Barik as a dealer for its product who was carrying on business in the name and style of "Subhalaxmi Agency" at Rourkela. During the course of business, Umakanta Barik paid different amounts at different points of time to the Company for its product and other business. All the transactions of the Company in respect of Umakanta Barik were either made by him or through others. The Company has never transacted business with anybody else in respect of the business of Umakanta Barik in their personal capacity. The complainant-Trilochan Barik filed a complaint case stating that the petitioners in the capacity of Managing Director of the Company and one Bani Prasad Banerjee, who was an employee of the said Company, are responsible for committing the offence. Umakanta Barik and complainant-Trilochan Barik (opposite party No. 1) had the relationship with regard to the management of their dealership, for which they were also maintaining the books of account. It is further alleged that while maintaining the books of accounts, the complainant has taken money from the source which has been mentioned on various dates under the heading of expenses. 2. It is further stated that with the knowledge of the accused persons, particularly, Bani Prasad Banerjee, who was an Area Development Manager of the Company and the Managing Director and as per their guidance and negotiations, the complainant has invested money through its partnership business and Bani Prasad Banerjee and Umakanta Barik have persuaded the complainant to deposit money for Beverage transaction under the dealership which was running in the name of Umakanta Barik. In good faith, the complainant had given money, but subsequently, he could not get back his money when the said Jamshedpur Beverage Company was liquidated and was merged with another company. Ultimately, with the connivance of accused-Bani Prasad Banerjee and the Managing Director of Jamshedpur Beverage accused Umakanta Barik has grabbed the money which was invested by the complainant. 3. In good faith, the complainant had given money, but subsequently, he could not get back his money when the said Jamshedpur Beverage Company was liquidated and was merged with another company. Ultimately, with the connivance of accused-Bani Prasad Banerjee and the Managing Director of Jamshedpur Beverage accused Umakanta Barik has grabbed the money which was invested by the complainant. 3. Jamshedpur Beverage issued letter dated 16.03.2001 to the complainant wherein in continuation of their letter dated 08.03.2001, he was requested to come down to Jamshedpur for necessary discussion in connection with his claim for refund of the money purported to have been deposited with the Company for soft drink agency at Rourkela. With regard to the complainant's claim, they have admitted that a sum of Rs. 1,91,772/- was deposited by Umakanta Barik, the proprietor of M/s. Subhalaxmi Agency, Rourkela with the company, which was adjusted in his account as per the details given in the letter. The details of the draft number, the money receipt number and the amount given were also mentioned. It is clearly revealed that, the authorities of Jamshedpur Beverage Ltd. has acknowledged the receipt of the money from the complainant, but on the other hand, they have admitted that, it was adjusted in the account of Umakanta Barik. From the said letter itself it is found that the money paid by the complainant which has been duly acknowledged has not returned but the same has not been adjusted through Umakanta Barik in his account. As such, while adjusting the said account no consent has been taken from the complainant. The invitation for compromise being an after-thought, the complainant filed complaint before the learned S.D.J.M., Panposh for commission of offence under Sections 420/403/406/34 I.P.C. and the learned Magistrate took cognizance of the said offences. 4. The accused has filed an application to recall the said order of cognizance taken by the learned S.D.J.M., Panposh which was refused by the learned Magistrate by the impugned order dated 12.02.2002. Against the said order dated 12.02.2002 refusing to recall the order of cognizance as well as to quash the criminal proceeding, the present application has been filed invoking the jurisdiction of this Court u/s 482 Cr.P.C. 5. Mr. Against the said order dated 12.02.2002 refusing to recall the order of cognizance as well as to quash the criminal proceeding, the present application has been filed invoking the jurisdiction of this Court u/s 482 Cr.P.C. 5. Mr. B. Sahoo, learned counsel appearing for the petitioner stated that when for the self-same transaction civil suits are pending for adjudication, the initiation of criminal proceeding is bad in law and, therefore, this Court in exercise of power conferred u/s 482 Cr.P.C. should quash the criminal proceeding. He has relied upon a judgment of the apex Court in Superintendent and Remembrancer of Legal Affairs, West Bengal v. Birendra Chandra Chakravarty, AIR 1974 Supreme Court 290 and urged that since the dispute alleged is essentially civil in nature, the same is to be decided between the parties before any question of criminal liability could be satisfactorily adjudicated upon. 6. Per contra, Mr. A.R. Dash, learned counsel appearing for opposite party No. 1 states that pendency of the civil suit is not a bar to proceed with the criminal cases on the self same allegation if criminal liability is attached to the offence alleged. He also relied upon the judgments of the apex Court in the cases of K.G. Premshanker Vs. Inspector of Police and Another, and Indian Oil Corporation Vs. NEPC India Ltd. and Others, 7. In view of the above rival contentions of the parties, it is to be examined whether pendency of the civil suits for the selfsame allegations bars the criminal proceedings to continue or not. Examining the judgments cited by the learned counsel for the petitioner in Superintendent and Remembrancer of Legal Affairs, West Bengal (supra) wherein it is held that there was long and intimate relation between the accused and the complainant and there were numerous transactions between them it would be difficult to determine the extent to which the complainant was duped or persuaded by mis-representation to part with rights in certain properties alleged to be the subject matter of breach of trust. It was a dispute essentially of civil in nature to be decided between the parties before any question of criminal liability could be adjudicated upon. Whereas in the judgments cited by Mr. It was a dispute essentially of civil in nature to be decided between the parties before any question of criminal liability could be adjudicated upon. Whereas in the judgments cited by Mr. A.R. Dash, learned counsel for opposite party No. 1 in K.G. Premshanker (supra), the question which came up for consideration that civil proceeding against the same person pertaining to the same cause is pending, the criminal proceeding is not required to be dropped. While considering the same, the decision rendered by the Constitution Bench in M.S. Sheriff Vs. The State of Madras and Others, was followed, wherein it has been specifically held that no hard and fast rule can be laid down and that the possibility of conflicting decisions in the civil and criminal Courts is not a relevant consideration. The law envisages that such an eventuality when it expressly refrains from making the decision of one Court binding on the other or even relevant, except for certain limited purpose, such as sentence or damages. In prosecution case while following the view taken by the Constitution Bench, the judgment of the apex Court in V.M. Shah Vs. State of Maharashtra and another, has been overruled as it has given contrary view. 8. In Indian Oil Corporation (supra), the application was filed u/s 482 Cr.P.C. for quashing criminal complaint alleging commission of various offences under Penal Code and disputes arose from breach of contract, for which civil remedies are available and the same have been availed of and therefore quashing of the criminal proceeding was sought for. The apex Court held that pendency of the civil suit for the self same allegations is not a bar for remedy under the criminal law, if allegations disclose a criminal offence. Allegations contained in the complaint petition is to be taken on their face value. If on facts it constitute, an offence under the Penal Code, in that case even though there is pendency of civil suits for the self-same allegations, there is no bar for initiation of criminal proceeding. 9. Taking into consideration the above law, in M.S. Sheriff and another (Supra) which has been followed in K.G. Premshanker (supra), and subsequent decision in Indian Oil Corporation (supra), it is apparently clear that for the self same fact both civil and criminal cases can be filed provided the complaint lodged makes out a case punishable under the Penal Code. 9. Taking into consideration the above law, in M.S. Sheriff and another (Supra) which has been followed in K.G. Premshanker (supra), and subsequent decision in Indian Oil Corporation (supra), it is apparently clear that for the self same fact both civil and criminal cases can be filed provided the complaint lodged makes out a case punishable under the Penal Code. Applying this principle to the case in hand, it is found that the complaint made by the opposite party as against the petitioners makes out a case for commission of offence under the provisions of Penal Code, reason being the money which has been invested by the complainant has been adjusted in the account of accused Umakanta Barik at the instance of petitioner Nos. 1 & 2, with whom the accused persons have got the business transaction. Therefore, even if there is pendency of the civil suit for self same cause of action, the same is not a bar for filing of criminal case, attracting the provisions of Indian Penal Code. 10. On the basis of the complaint made, the learned court below took cognizance of offences under Sections 420/403/406/34 I.P.C. in view of the law governing the field pursuant to the judgment reported in K.M. Mathew Vs. State of Kerala and another Magistrate can recall the order of cognizance. The judgment of the apex Court in Adalat Prasad Vs. Rooplal Jindal and Others, in which the apex Court has held that after taking cognizance of offence, the court cannot recall the said order of cognizance in absence of any review power or inherent power with the subordinate criminal courts as the only remedy lies for invoking inherent power u/s 482 of the Code. In view of such legal position, the order passed on 12.02.2002 refusing to recall the order of cognizance, which is impugned in this application, is wholly and fully justified. In view of the aforesaid facts and circumstances, I am not inclined to interfere with the impugned order dated 12.02.2002 passed by the learned S.D.J.M., Panposh, in I.C.C. Case No. 56 of 2001 in exercise of inherent power u/s 482 Cr.P.C. Parties are directed to co-operate with the learned S.D.J.M., Panposh, who shall do well to dispose of the I.C.C. Case No. 56 of 2001 as early as possible, since the case is of the year 2001. Accordingly, the CRMC is disposed of. Accordingly, the CRMC is disposed of. Final Result : Disposed Off