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2015 DIGILAW 374 (ORI)

Rabindra Lele v. George Bhaktan

2015-06-22

S.K.MISHRA

body2015
JUDGMENT : S.K. Mishra, J. This case has been filed under Section 482 of the Code of Criminal Procedure 1973 hereinafter referred to as the 'Code' for brevity. The accused persons in 1. C.C. No. 92 of 1998 of the Court of learned S.D.J.M. Panposh, Rourkela assail the order dated 18.10.2000 passed by the said Court taking cognizance of offences under Section 425, 468 and 471 of the Indian Penal Code 1860 hereinafter referred to as the IPC for brevity and issuing processes against the petitioners. 2. The matter already had a checked career. The essential facts leading to filing this case are that the opposite party-complainant filed a complaint under Section 200 of the Code against the present petitioners alleging commission of offences under Sections 425, 468 and 471 of the IPC on the foundation that the complainant-Managing Director of Ores Indian (P) Ltd. had approached the accused persons for supply of machine and equipment for establishing Iron Ore Crusher Unit at village Regalveda in the district of Sundargarh with the financial assistance from the Orissa State Financial Corporation, hereinafter referred to as the 'OSFC' for brevity. The accused persons were willing to supply the machinery and equipment and therefore persuaded the complainant to place the purchase order on their favour and the complainant placed the purchase order on 23.10.1997. It was stipulated in the said purchase order that the accused persons. Apart from other things, had agreed to provide designing and drawing for complete plant within 15 months with guarantee from the date of dispatch. On the basis of the purchase order, the complainant sent the cheque for Rs.15 lakhs and as alleged, after receipt of the said money, the accused person sent their written confirmation to the OSFC acknowledging the receipt of money. The OSFC, in turn paid Rs. 25 lakhs to the accused persons as an advance keeping in view the commitment made by the complainant. 3. The complaint-petition reveals that in spite of such substantial amount paid by way of advance, no steps were taken by the accused persons to ensure supply of machinery and equipment with an ulterior motive as a consequence of which, the complainant suffered huge loss. 3. The complaint-petition reveals that in spite of such substantial amount paid by way of advance, no steps were taken by the accused persons to ensure supply of machinery and equipment with an ulterior motive as a consequence of which, the complainant suffered huge loss. It is ascertained in the complaint petition that with the intention to cause wrongful loss and damage to the complainant, the accused persons procured a letterhead pad of the complainant from a staff of the company and typed a letter thereon with the signature of Georage Bakhtan for which they would get extension from the OSFC regarding the date of purchase it is further alleged that the accused persons entered into a conspiracy and received the monetary benefit and eventually machineries were not supplied. In that background, the complainant filed a complaint for the offences, which have been mentioned hereinbefore. On the basis of the complaint, initial statement of the complainant recorded under Section 200 of the Code and an enquiry conducted under Section 202 of the Code for the aforesaid Sections were taken. Such order has been passed by the learned SDJM, Panposh on 10.11.1998, which was challenged by the accused persons in an application under Section 482 of the Code and the same has been registered as Criminal Misc. Case No. 970 of 1999. The said application was disposed of on 12.05.2000. By virtue of reasoned order, this Court quashed the order of cognizance as it is not maintainable on the available statement of the complainant and his witnesses. However, this Court gave a chance to the complainant to fill up deficiency of evidence regarding existence of a prima facie case and directed that the complainant shall appear in the Court of learned SDJM, Panposh and shall file application expressing his intention to adduce further evidence in the enquiry under Section 202 of the Code. It was also directed that if any such application is filed by the complainant the learned SDJM shall do well to allow the same and to afford reasonable opportunity of leading evidence at the stage of enquiry. The Court further stipulated that if the complainant desires to re-examine himself and the witnesses, he may be permitted and on completion of enquiry-the learned SDJM shall carefully peruse the statement of evidence and pass appropriate order. The Court further stipulated that if the complainant desires to re-examine himself and the witnesses, he may be permitted and on completion of enquiry-the learned SDJM shall carefully peruse the statement of evidence and pass appropriate order. In accordance with the order passed by this Court, the complainant appeared before the learned SDJM, Panposh, and on 08.09.2000, the complainant re-examined himself under Section 202 of the Code. He did not examine any other witness on this additional matter, the learned SDJM, Panposh, as per the order dated 18.10.2000 took cognizance of offences as mentioned hereinabove and issued processes to the accused persons. 4. Such order again challenged in this Court under Section 482 of the Code by the accused persons. The said petition was registered as CRMC No. 5808 of 2001, i.e. the present application. As per the order dated 03.03.2012, basing upon the ratio decided in Gopalakrishna Menon and another vs. D. Raja Reddy and another, 1983 (4) SCC 240 , this Court observed that in view of the prohibition contained in Section 195 (1)(b)(ii) of the Code, the cognizance taken by the learned SDJM, Panposh, is bad and therefore, this Court quashed the order of cognizance. 5. Against that order the complainant preferred a Special Leave Petition, which was registered as SLP (Criminal) No. 7521 of 2012 (Criminal Appeal No. 2165 of 2014) As per the judgment dated 24.09.2014, the Hon'ble Supreme Court set aside the order holding that the ratio decided in the case of Gopalakrishna Menon and another vs. D. Raja Reddy and another (supra) do not hold field on the question of law involved in view of the judgment rendered by the Constitution Bench of the Supreme Court in Iqbal Singh Marwah and another vs. Meenakshi Marwah and another, 2005 (II) OLR (SC) 102 : 2005 (4) SCC 370 . 6. While disposing the criminal appeal, the Hon'ble Supreme Court has taken into consideration the conflicting decision rendered by the Supreme Court earlier and has held that the matter has been set at rest by the Constitution Bench in Iqbal Singh Marwah and another vs. Meenakshi Marwah and another (supra). The question that was raised before the Hon'ble Supreme Court was that since the document, which has been allegedly forged by the accused persons, has been filed in a civil suit in Vadodara the bar under Section 195 (1)(b)(ii) of the Code would get attracted. The question that was raised before the Hon'ble Supreme Court was that since the document, which has been allegedly forged by the accused persons, has been filed in a civil suit in Vadodara the bar under Section 195 (1)(b)(ii) of the Code would get attracted. The Constitution Bench in the aforesaid case has come to the conclusion that in view of the language used in Section 340 of the Code the Court is not bound to make a complaint regarding commission of offence referred to in Section 195(1)(b) as the Section is conditioned by the words "Court is of opinion that it is expedient in the interest of justice". The Hon'ble Supreme Court further held that a course will be adopted only if the interest of justice requires and not in every case. It was further observed that before filing of the complaint, the Court may hold a preliminary enquiry and record a finding to the effect that it is expedient in the interest of justice that enquiry should be made into any of the offences referred to in Section 195 (1)(b) of the Code. This expediency, it is further held will normally be judged by the Court by weighing not the magnitude of injury suffered by the person affected by such forgery or forged document, but having regard to the effect or impact, such commission of offence has upon administration of justice. The Hon'ble Supreme Court further held in the case before the Constitution Bench that it is possible that such forged document or forgery may cause a very serious or substantial injury to a person in the sense that it may deprive him of a very valuable property or status or the like, but such document may be just a piece of evidence produced or given in evidence in Court, where voluminous evidence may have been adduced and the effect of such piece of evidence on the broad concept of administration justice may be minimal. The Hon'ble Supreme Court further held that in such circumstances the Court may not consider it expedient in the interest of justice to make a complaint. The broad view of Clause (b)(ii), as canvassed by the learned counsel for the appellant, would render the victim of such forgery or forged document remediless. Any interpretation which leads to a situation where a victim of a crime is rendered remediless has to be discouraged. 7. The broad view of Clause (b)(ii), as canvassed by the learned counsel for the appellant, would render the victim of such forgery or forged document remediless. Any interpretation which leads to a situation where a victim of a crime is rendered remediless has to be discouraged. 7. The Hon'ble Supreme Court further held that an enlarged interpretation to Section 195 (1)(b)(ii), whereby the bar created would operate where after commission of act of forgery the document is subsequently produced in the Court, is capable of misuse. The Hon'ble Supreme Court took note of the ratio decided by it in Sachida Nand Singh and another Vs. State of Bihar and another, 1998 (2) SCC 493 to the effect that after preparing a forged document or committing an act of forgery a person may manage to get a proceeding instituted in any civil, criminal or a revenue Court, either by himself or through someone set up by him and simply file the document in the said proceeding. The Hon'ble Supreme Court further held that he would be protected from prosecution, either at the instance a private party or the police until the Court, where the document has been filed itself chooses to file a complaint. The litigation may be a prolonged one due to which the actual trial of such a person may be delayed indefinitely. Therefore, the Hon'ble Supreme Court held that such interpretation would be highly detrimental to the interest of the society at large. 8. Observing thus, the Hon'ble Supreme Court has in Iqbal Singh Marwah's case (supra) held that the High Court has erred in relying on the principle stated in Gopalakrishna Menon's case (supra) as it is contrary to the ratio decided in the Constitution Bench by the Supreme Court and therefore the order passed by this Court in this case as per the original order dated 03.03.2012 was set aside. However, before the Supreme Court, the learned counsel appearing for the accused-appellants, i.e. the present petitioners contended that the High Court has not adverted to the factual score to conclude whether a case has been made out on the basis of the materials brought on record. However, before the Supreme Court, the learned counsel appearing for the accused-appellants, i.e. the present petitioners contended that the High Court has not adverted to the factual score to conclude whether a case has been made out on the basis of the materials brought on record. In the absence of any findings in that regard by the High Court, the Hon'ble Supreme Court did not take up the matter on appreciating material on record to find out whether a prima facie case of the offence alleged has been made out or not. Hence, the Hon'ble Supreme Court set aside the order passed by this Court and remanded the matter for fresh consideration with a stipulation that this Court shall consider "whether in the obtaining factual matrix the order of cognizance deserves to be lancinated". In this factual background, this application under Section 482 of the Code came up for disposal before this Court. In course of hearing, the learned counsel for the petitioners, Mr. J.K. Mishra, in essence, raised the following points. It was firstly contended by the learned counsel for the petitioners that in view of the bar under Section 195 of the Code, the complaint-petition is not maintainable and hence cognizance has to be quashed. Secondly, it was contended that there is absolutely no material on record to come to the conclusion that actually a forged has been committed by any of the accused persons, the forged document allegedly has not been produced in the Court and the materials on record prima facie do not reveal a case under Sections 425, 468 and 471 of the IPC. It is further contended by the learned counsel for the petitioners that there is absolute non-application of mind by the learned SDJM, Panposh and in that view of the matter the cognizance should be quashed. The learned counsel for the opposite party-complainant, on the other hand, contends that there are sufficient materials on record to come to the conclusion that a prima facie case for the offences alleged has clearly been made out against the present petitioners. Hence, he urged that the order of taking cognizance and issuing processes against the present petitioners need not be interfered with. 9. As far as the first contention is concerned, the Hon'ble Supreme Court has already put the said dispute to rest as per the judgment dated 24.09.2014. Hence, he urged that the order of taking cognizance and issuing processes against the present petitioners need not be interfered with. 9. As far as the first contention is concerned, the Hon'ble Supreme Court has already put the said dispute to rest as per the judgment dated 24.09.2014. In very uncertain terms, the Hon'ble Supreme Court has held that the view taken by the Court in Gopalkrishna Menon's case (supra) does not hold in the field in view of the Constitution Bench rendered by the Supreme Court in Iqbal Singh Marawah's case (supra). So, the first point raised by the learned counsel for the petitioners need not be reexamined as the same has been put to rest. 10. So far as the second and third contentions raised, this Court very consciously takes note of the observations made by the Hon'ble Supreme Court, inasmuch as the Hon'ble Supreme Court in very clear and uncertain terms has remanded the case for fresh consideration and to see whether in the obtaining factual matrix the order deserves to be lancinated. So, at this stage, the duty of this Court is to see if the factual matrix obtaining in this case the offences as alleged have been prima facie made out and if the order of taking cognizance should be upheld or it should be quashed. Having carefully gone to the entire materials on record and judgment passed by this Court as well as the Hon'ble Supreme Court, this Court takes into consideration the observations made by this Court in Criminal Misc. Case No. 970 of 1999 (in the judgment rendered by Hon'ble Justice P.K. Tripathy). While quashing the order of cognizance, this Court at Paragraph-7 has held as follows: "Since there is no whisper in the complaint or in the statement of the complainant and his witnesses about any civil proceeding which was taken up and disposed of at Baroda, it is not necessary for this Court to go into that aspect of the case when learned SDJM had no access to such document at the time of consideration of existence of prima facie case. Notwithstanding that on a bare perusal of the complaint and the statement of the witnesses this Court finds that learned SDJM has taken cognizance of the offence most mechanically and without due application of mind. Notwithstanding that on a bare perusal of the complaint and the statement of the witnesses this Court finds that learned SDJM has taken cognizance of the offence most mechanically and without due application of mind. That conduct of the SDJM is apparent on the face of the record since he has taken cognizance of the offence u/s 425 IPC. It is needless to point out that Section 425 is not a penal provision but it a provision defining the offence of mischief. Apart from that, it does not appear from the statements of the witnesses about the place where the alleged forgery was committed and who committed that forgery and the manner in which it was committed. In that aspect the relevant evidence satisfying the ingredients of such offence are not available. Under the given circumstance the order of cognizance is not sustainable on the basis of the available statement of the complainant and his witnesses" (Emphasis supplied) 11. This order has not been challenged by the complainant. Instead, he chose to abide the order passed by this Court in the said judgment and examined himself pursuant to the direction given at Paragrahp-10 of the Judgment. Thus, so far as the material available on record, before examination of the complainant under Section 202 of the Code on 08.09.2000, the order of the High Court that no prima facie case has made out for the alleged offences stands unchallenged and, therefore, has become final. To that extent, the matter as has been decided in the orders passed by this Court in the earlier application under Section 482 of the Code is conclusive Now, the question is whether after examination of George Bhaktan, the complainant as P.W.3 on behalf of the complainant under Section 202 Cr. P.C. any further material has come forth to make out a clear case prima facie case for the commission of offences under Sections 425, 468 and 471 of the IPC. 12. In this connection, this Court is constrained to take note of the fact that as per the judgment P9ssed by this Court in Criminal Misc. Case No. 970 of 1999 on 12.05.2000, it was observed that the learned SDJM has acted without application of mind and hence he has taken cognizance of the offences under Sections 425, 468 and 471 of the IPC. Case No. 970 of 1999 on 12.05.2000, it was observed that the learned SDJM has acted without application of mind and hence he has taken cognizance of the offences under Sections 425, 468 and 471 of the IPC. This Court in very uncertain terms has held that apparently the learned S.D.J.M. has mechanically and without due application of mind he has taken cognizance of the offence under Sections 425 of the IPC. It was further observed by this Court that it s needless to point out that Section 425 IPC is a penal provision not but a provision defining the offence of mischief. Even thereafter, when the matter was again taken up by the learned SDJM on 18.10.2000 he has taken cognizance of the offence under Section 425 IPC along with Sections 468 and 471 of the IPC. This shows that the learned SDJM has not gone through the order passed by this Court while reconsidering the matter, which shows a non-application of mind on the part of the learned SDJM. He should not have taken cognizance of any offence under Section 425 of the I.P.C. The aforesaid anomaly has been noted by this Court and has held that the statement of witnesses do not reveal where the alleged forgery was committed, who committed the forgery and the manner in which it was committed. In other words, there is only general allegation about commission of a forgery without giving specifications thereof. Thereafter, George Bhaktan examined himself under Section 202 of the Code on 08.09.2000. Hence, the Court is required to examine the statement of the said George Bhaktan and see if the said statement has in any way improved the case of the complainant so that cognizance of the offences alleged can be taken. 13. A careful examination of the statement of the complainant recorded under Section 202 of the Code reveals that the accused persons came to inspect the factory premises in order to install the equipment and machine during second week of March, 1998. He further states that the accused persons visited the spot and it was conducive to install the machine. The witness further states that the inspection was made for second time and the accused persons returned to Rourkela from Koida. He further states that the accused persons visited the spot and it was conducive to install the machine. The witness further states that the inspection was made for second time and the accused persons returned to Rourkela from Koida. The witness states that the accused persons met his staff of the complainant, namely, Afroz Alam and asked for the letter pad to prepare some letters saying that the complainant has instructed them. The accused persons brought the letter head pad from his staff and typed out some letters in his office at Rourkela. Those letter pads are printed in the name of the company. The witness further states that there was no signature on any of the letter head pad kept in his office. The witness further states that the last date of supply of machine was 30.04.1998. He further states that there was a condition that if the accused persons fail to supply machine within that period, the Bank guarantee was to be withdrawn. He further states that no machine was installed by the accused persons in his factory premises within the time stipulated. Since the machines were not supplied within the time stipulated, the witness states, he withdrew his Bank guarantee and the OSFC has also withdrawn its Bank guarantee of Rs. 25 lakhs. Further, the witness states that no intimation was received from the accused person with regard to non-supply of the machine. The witness contacted the accused persons over telephone regarding no-supply of machine but they told him to come to the Court. The witness further states that he proceeded to Ahmadabad and enquired into the matter from the company of the accused persons. He further states that he could ascertain that one letter has been filed under his signature given extension of Bank guarantee till 31.04.1998. The witness further states that when he perused the letter, he noticed that the date 31st had created doubt in his mind as the date 31st does not fall in the month of April. The witness further states that thereafter he came to know that the letter was prepared by using his letter head pad. He further states that it appears that his forged signature was obtained and it has been filed in the Bank and a forged document has been prepared for extension of the Bank guarantee. He further states that it was not honoured by the Bank. He further states that it appears that his forged signature was obtained and it has been filed in the Bank and a forged document has been prepared for extension of the Bank guarantee. He further states that it was not honoured by the Bank. Thereafter, he states that on the basis of the forged letter the accused persons have filed a civil Suit at Ahmadabad. The injunction granted was vacated and the civil suit was dismissed which went in his favour. He further states that he has not issued any letter within his knowledge in order to extend the Bank guarantee on behalf of his company, i.e. M/s ECOMAN. He has filed an affidavit declaring his specimen signature and filed the Xerox copy of the said letter but he says that the original letter is in possession of the company but under direct control of the accused persons. 14. The moot question is now whether this solitary statement of P.W.3 that is the complainant himself recorded under Section 202 of the Code has improved the case of the complainant so that cognizance of the offence under Section 468 and 471 IPC can be taken. In this connection, I rely upon the judgment rendered by this Court in Criminal Misc. Case No. 970 of 1999. It is apparent from the statement of the witnesses that there is absolutely no material on record regarding the place of the alleged forgery, the actual person who committed the forgery and the manner in which it was committed. The statement of the complainant is based on conjectures and surmises. At this stage, this Court takes note of the judgment rendered by the Constitution Bench of the Supreme Court in the case of State of Haryana and others vs. Bhajan Lal and others, 1992 Supp(1) SCC 335, wherein the Constitution Bench laid down the various categories that can be stated by way of illustration wherein the extraordinary power under Article 226 of the Constitution and inherent powers under Section 482 Cr. P.C. can be exercised by the High Court either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelized and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. At clause (3) the constitution bench has also held that order taking cognizance should be quashed where the uncontroverted allegations made in the FIR or 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 persons. It cannot be held that prima facie a case under Section 468, 471 IPC is made out against the accused petitioners. Hence, this Court is of the opinion that the application has to succeed and the order passed by the learned Magistrate on 18.10.2000 taking cognizance of the offences under Sections 425, 468 and 471 of the IPC has to be quashed. Accordingly, the application is allowed. The order dated 18.10.2000 taking cognizance of the aforesaid offences passed by the learned SDJM, Panposh, Rourkela in 1. C.C. No. 92 of 1998 is quashed. Application allowed.