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2016 DIGILAW 1102 (ORI)

Ramakanta Rath v. State of Orissa

2016-11-16

S.K.SAHOO

body2016
JUDGMENT : S.K. SAHOO, J. The petitioner Ramakanta Rath has filed this application under section 482 of the Code of Criminal Procedure for quashing the order dated 23.09.2008 passed by the learned J.M.F.C., Banpur in G.R. Case No.08 of 1999 in taking cognizance of the offences under sections 420, 406, 409 read with section 120-B of the Indian Penal Code and issuance of process against him. One Ambika Samantray lodged the First Information Report on 12.01.1999 before the Officer in Charge of Balugaon Police Station, on the basis of which Balugaon P.S. Case No.3 of 1999 was registered under sections 420/34 of the Indian Penal Code against the petitioner and his wife Smt. Mamata Tripathy. It is stated in the First Information Report that the petitioner who was the Branch Manager of Kuber Group of Companies, Balugaon Branch induced the informant to open a pass book and deposit money. He further assured the informant that his wife Mamata Tripathy is an agent of Kuber Group. Being induced by the petitioner and his wife Mamata Tripathy, the informant opened one pass book and deposited Rs.1,000/-every month. Subsequently the petitioner and his wife were not traced out by the informant and she came to know that the petitioner had misappropriated lakhs of money of different depositors. The matter was investigated by the Officer in Charge of Balugaon Police Station and during course of investigation, it was found that the petitioner being the Branch Manager of a fake investment institute at Balugaon styled as “Kuber Group” during the period from 09.05.1997 to 26.11.1998, dishonestly induced the informant and others and motivated them to be the investors/contributors to the institute with hope of high return and cheated them of huge money to the tune of twentyfive to thirty lakhs and accordingly, on 21.08.2001 the petitioner was charge sheeted under sections 408 and 420 of the Indian Penal Code. On receipt of such charge sheet, the learned J.M.F.C., Banpur took cognizance of the offences under sections 408 and 420 of the Indian Penal Code. On receipt of such charge sheet, the learned J.M.F.C., Banpur took cognizance of the offences under sections 408 and 420 of the Indian Penal Code. The order was challenged before this Court in Criminal Revision No.578 of 2003 and vide judgment and order dated 28.09.2011, this Court held that the Magistrate has not committed any error in passing the order and accordingly dismissed the revision petition and the Magistrate was directed to dispose of the G.R. Case as expeditiously as possible preferably within a period of two months. It further appears that after submission of the first charge sheet, as per the office order No.25/C.I.D. dated 17.01.2002 of the Additional D.G., C.I.D. (C.B.), Orisha, Cuttack, the Inspector of C.I.D./C.B. Shri A. K. Behera was directed to reopen the case for further investigation and accordingly, Shri Behera filed a petition before the learned J.M.F.C., Banpur on 31.10.2002 seeking permission and necessary direction to reopen the investigation of the case under section 173(8) of the Cr.P.C. The learned J.M.F.C., Banpur allowed the petition vide order dated 27.10.2005 and directed the Investigating Officer to reopen the case for further investigation and to submit final form within a reasonable time. It appears that further investigation was conducted and second charge sheet was submitted on 13.09.2007 against three other co-accused persons under sections 420/406/409/120-B of the Indian Penal Code. The petitioner who was previously charge sheeted under sections 408 and 420 of the Indian penal Code was charge sheeted under sections 420/406/409/120-B of the Indian Penal Code. After receipt of the further charge sheet, the impugned order dated 23.09.2008 was passed by the learned J.M.F.C., Banpur in taking cognizance of the offences under sections 420, 406, 409 read with section 120-B of the Indian Penal Code. Mr. Subhasis Sen, learned counsel for the petitioner while challenging the impugned order contended that the petitioner was the Branch Manager and he was a salaried person and there was no entrustment of any property on him and he had also no dominion over the property of Kuber Group of Companies and as per the procedure, it is not the duty of the Branch Manager to motivate the depositors to deposit money and also it does not permit the Branch Manager to accept money from depositors directly. The depositors used to deposit money directly before the cashier of the Bank. The depositors used to deposit money directly before the cashier of the Bank. Learned counsel further contended that there is no material on record that the petitioner had conspired with the other co-accused persons to cheat the depositors and therefore, the submission of charge sheet under section 120-B of the Indian Penal Code is not permissible. He further contended that when cognizance has already been taken of the offences under sections 408 and 420 of the Indian Penal Code, taking of further cognizance is not permissible in the eye of law and therefore, it is a fit case where this Court should invoke its inherent power under section 482 Cr.P.C. to quash the impugned order of cognizance. Mr. Dillip Kumar Mishra, learned Additional Government Advocate produced the case diary and contended that there are ample materials on record against the petitioner that he not only motivated the depositors but gave false assurance to them for getting high returns and even went to their house for the said purpose. He further contended that the materials available on record show that the petitioner tried to influence the depositors on the ground that he is a local person and in case of any eventuality, he would be responsible for refund of the deposits. The learned counsel further submitted that numbers of persons have been cheated in this process and therefore, rightly after further investigation, further charge sheet has been submitted. The learned counsel further submitted that when the petitioner earlier approached this Court challenging the first order of taking cognizance, the same was dismissed in Criminal Revision No.578 of 2003 and therefore, it would not be proper for this Court to exercise its inherent power to quash the impugned order. Learned counsel for the State placed the statement of one Susanta Barala who is a depositor and other witnesses. Considering the submissions made by the learned counsels for the respective parties and on perusal of the First Information Report, the first charge sheet dated 21.08.2001 and the second charge sheet dated 13.09.2007 so also the statements of the witnesses, it prima facie appears that the petitioner has played a vital role in motivating the depositors to deposit their money in the Kuber Group of Companies. The statements of the witnesses further go to show the conduct of the petitioner in approaching them in their houses and giving assurance to them that he would be responsible in case of any eventuality. What was the duty of the Branch Manager and whether the procedure of the Bank permits the Branch Manager to receive deposits directly from the depositors or not are completely different aspects but in the facts and circumstances of the case when the materials are available on record that it was due to the motivation and inducement of the petitioner acting as Branch Manager, poor persons like the informant deposited their hard earned money in the finance company and they have been cheated, I am of the view that prima facie case is clearly made out against the petitioner. So far as taking of the cognizance twice is concerned, since second charge sheet was submitted after taking due permission of further investigation from the Magistrate under Section 173 (8) of Cr.P.C. on the basis of further materials and it was found out that some district offences have been committed by the petitioner and some more accused persons are involved in the crime, it cannot be said that there is any illegality in taking further cognizance of the offences on the basis of second charge sheet. Law is well settled that this Court has to be careful while exercising the inherent power under section 482 Cr.P.C. when the order of cognizance is challenged which should be exercised sparingly and cautiously to prevent abuse of the process of any Court or otherwise to secure the ends of justice and not to stifle a legitimate prosecution. In view of the available materials on record, when prima facie case regarding the commission of the offences by the petitioner is made out, I am not inclined to interfere with the impugned order. Accordingly, the CRLMC application stands dismissed. Since the case is of the year 1999, the learned Trial Court shall do well to expedite the trial of the case and if possible, to conclude the same within a period of six months from the date of receipt of the order by conducting day to day trial.