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2016 DIGILAW 499 (ORI)

SWAMI SHANKARANANDA GIRI v. STATE OF ORISSA

2016-07-11

J.P.DAS

body2016
JUDGMENT : J.P. Das, J. - This revision has been filed seeking indulgence of this Court under Section 482 of the Code of Criminal Procedure (Code in short) to quash the order of cognizance of the offence punishable under Section 420 of the Indian Penal Code (IPC in short) dated 02.10.2014 passed by the learned S.D.J.M., Bhubaneswar in G.R. Case No. 510 of 2010 arising out of Saheed Nagar P.S. Case No. 63 of 2010 and directing to Issue process against the present petitioner. 2. The prosecution was initiated on a written report submitted to the Commissioner of Police, Bhubaneswar by one Mr. Allen, a Danish citizen alleging that Swami Shankararranda Giri, the present petitioner, was visiting his country since 1991 and was teaching 'Kriya Yoga' techniques. In a meeting, the petitioner convinced the informant that if he invests his money in India it would be doubled in two years and being induced, the informant invested an amount of rupees two crores. The said payment was made through bank transaction and also by hand during the visit of the informant to India. When the informant visited India in 2010, he did not find the petitioner in his Ashram and was also unable to contact him over phone. The informant got information that since some criminal cases were pending against the petitioner he had left the ashram to avoid police arrest. Thus he alleged that he has been cheated by the accused-petitioner. 3. Treating the report as FIR, Saheed Nagar PS. Case No. 63 of 2010 under Section 420 IPC was registered and the investigation was taken up. In course of investigation witnesses were examined, some documents were seized and on 02.08.2014 a preliminary charge sheet was filed by the investigating officer against the petitioner under Section 420 of the IPC keeping the investigation open for further collection of materials. Pursuant thereto the learned SDJM, Bhubaneswar by the impugned order took cognizance of the offence under Section 420 of the IPC and directed for issuance of process against the petitioner who was on police bail. 4. The said order of the learned SDJM has been assailed in the present revision on different grounds with the submission that the learned Court below has taken cognizance of the alleged offence mechanically without application of judicial mind and hence, it is liable to be quashed. 5. 4. The said order of the learned SDJM has been assailed in the present revision on different grounds with the submission that the learned Court below has taken cognizance of the alleged offence mechanically without application of judicial mind and hence, it is liable to be quashed. 5. The informant entered appearance in the case and was heard through his counsel. 6. The main thrust of argument that was advanced by the learned senior counsel appearing on behalf of the petitioner was that there is absolutely no material on record to make out an offence under Section 420 of the IPC. It was submitted that the basic necessity for making out an offence under Section 420 IPC is 'inducement' with deceitful intention of the accused, which is manifestly absent in the present case. Without disputing that there was some financial transaction between the parties, it was submitted that the informant had voluntarily donated the amounts to the 'Kriya yoga' trust for development of its establishments and since he asked for the return of the amounts later, some part of it was returned and an agreement was entered into between the parties for refund of the balance amount. Thus it was submitted that in the worst, the dispute between the parties is civil in nature and it can never be said as cheating by any stretch of imagination so as to make out an offence under Section 420 of the IPC. In this context the learned senior counsel placed before the Court the statement of the informant recorded by the police under Section 161 of the Code and submitted that the informant nowhere has alleged that he was induced to invest money so as to be doubled within two years as alleged in the FIR. Rather he has admitted in his statement in clear terms that he gave some loan to the petitioner and gave some amount to the Trust for improvement of its school and construction of ashram. He has also admitted that he has got refund of some amounts. He has also categorically stated that in the year 2009, he requested the petitioner to refund the rest amount in presence of some witnesses, which the petitioner agreed to return by instalments and that an agreement was entered into on 27.08.2009. He has also admitted that he has got refund of some amounts. He has also categorically stated that in the year 2009, he requested the petitioner to refund the rest amount in presence of some witnesses, which the petitioner agreed to return by instalments and that an agreement was entered into on 27.08.2009. He simply alleged that the petitioner did not return the money as agreed and avoided payment with ulterior motive of cheating. Stressing upon this statement of the informant, it was contended that conceding the entire statement of the informant recorded by the police to be true, it can safely be held that there was absolutely no offence under Section 420 of the IPC, excepting some civil liability. Statements of some other witnesses were also placed before the Court to show that some amounts were returned on behalf of the petitioner to the informant at different times. 7. It was also submitted that the payment of huge amounts in Euro currency as has been claimed by the informant cannot be believed since carrying such amount of foreign currency while coming to India is prohibited.under law and could not have been possible. 8. Per contra it was submitted on behalf of the informant-opposite party that the petitioner taking the advantage that the informant was a foreign national has exploited his confidence by inducing him to give money with allurements of high returns, as has been specifically mentioned in the FIR and it has also remained admitted that there was financial transaction between the parties. Thus, a clear case of cheating is made out showing the criminal intention of the petitioner. It was further submitted that if at all the informant had donated the amount to the trust, then it cannot be believed that he would ask for return of his money so as to necessitate an agreement to be entered into between the parties. It was also submitted that the claim of the petitioner to be the President of the Kriya Yoga foundation trust was not correct since it was refused by the IG of Registration, Cuttack in its order dated 27.04.2002 with certain observations regarding criminal antecedents of the petitioner. It was also submitted that the claim of the petitioner to be the President of the Kriya Yoga foundation trust was not correct since it was refused by the IG of Registration, Cuttack in its order dated 27.04.2002 with certain observations regarding criminal antecedents of the petitioner. It was submitted that even though there was an agreement entered into between the parties subsequently still the initial intention of the petitioner was to defraud the informant and hence, a clear case of cheating has been made out. 9. Learned counsels for both the sides placed reliance upon certain observations of the Hon'ble Apex Court in support of their respective contentions. 10. The learned counsel for the petitioner relied upon the observation of the Hon'ble Apex Court in the case of Hriday Ranjan Pd. Verma & others v. State of Bihar and another ( AIR 2000 SC 2341 ) wherein it was observed that: "The distinction between mere breach of contract and the offence of cheating is a fine one. It depends upon the intention of the accused at the time of inducement which may be judged by his subsequent conduct but for this subsequent conduct is not the sole test. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction, that is the time when the offence is said to have been committed." 11. Further reliance has been placed on the observation of the Hon'ble Apex' Court made in the case of G. Sagar Suri & another v. State of U.P. & others (2000) 18 OCR (SC) 355 : AIR 2000 SC 754 such as; "Jurisdiction under Sec. 482 has to be exercised with a great care. In exercise of its jurisdiction High Court is not to examine the matter superficially, it is to be seen if a matter, which is essentially of Civil nature, has been given a cloak of criminal offence. Criminal proceedings are not a short cut of other remedies available in law." 12. In exercise of its jurisdiction High Court is not to examine the matter superficially, it is to be seen if a matter, which is essentially of Civil nature, has been given a cloak of criminal offence. Criminal proceedings are not a short cut of other remedies available in law." 12. Further it was held in the case of V.Y. Jose & another v. State of Gujarat & another (2009) 42 OCR (SC) 488 : AIR 2009 SC (Supp) 59 that, "Where a complaint for offence of cheating did not make an allegation in regard to existence of a dishonest intention on the part of the appellants when the contract was entered into, it was held that no case was made out against the appellant so as to hold that he should face the criminal trial." 13. On behalf of the informant reliance has been placed on a decision of the Hon'ble Apex Court as reported in (2015) 60 OCR (SC) 993 : (2015) SCC 424 (Sonu Gupta v. Deepak Gupta & others) that, "At the stage of cognizance and summoning the Magistrate is required to apply his judicial mind only with a view to take cognizance of the offence, or, in other words, to find out whether prima facie case has been made out for summoning the accused persons. At this stage, the learned Magistrate is not required to consider the defence version or materials or arguments nor he is required to evaluate the merits of the materials or the evidence of the complainant, because the Magistrate must not undertake the exercise to find out at this stage whether the materials would lead to conviction or not." 14. Reliance has also been placed on a decision reported in (2012) 52 OCR (SC) 687 : AIR 2012 SC 847 (Dr. Mrs. Nupur Talwar v. C.B.I., Delhi & others), wherein it was held that, "At the stage of taking cognizance of offence, the Court has only to see whether prima facie there are reasons fix issuing the process and whether the ingredients of the offence are there on record." 15. Further it was held in a decision reported in (2013) 2 SCC 801 [Arun Bhandari v. State of U.P. & others] that, "if the allegation discloses a civil dispute, the same by itself may not be a ground to hold that the criminal proceedings should not be allowed to continue." 16. Further it was held in a decision reported in (2013) 2 SCC 801 [Arun Bhandari v. State of U.P. & others] that, "if the allegation discloses a civil dispute, the same by itself may not be a ground to hold that the criminal proceedings should not be allowed to continue." 16. The guiding principles while exercising the jurisdiction under Section 482 of the Code as enumerated by the Hon'ble Apex Court in the case of State of Haryana & others v. Ch. Bhajan Lal & others, reported in AIR 1992 SC 604 were also drawn attention to. 17. It is the undisputed position of law that at the time of taking cognizance, the Court need not go into the merits of the case either of the prosecution or the defence in order to assess the possible final result of the case. At this stage, the court's duty is limited to the extent of finding out whether from the material placed before it, offence alleged therein against the accused is made out or not with a view to proceed further with the case. As per the guidelines enumerated in the case of Bhajan Lal (supra), the power under Section 482 of the Code can be exercised where the criminal proceeding is manifestly attended with malafide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. A note of caution was also given that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of the rare cases. 18. On the touch stone of the aforesaid guiding principles, the present case of the parties is to be examined on the facts as discussed herein before. In the instant case it is to be seen as to whether the allegations made in the FIR lodged by the informant, even if they are taken at their face value and accepted in entirety do or do not make out a case against the accused. 19. As stated at the outset, the informant alleged in the FIR that the petitioner while in Denmark convinced him that the informant should invest money in India so that it would be doubled in two years. 19. As stated at the outset, the informant alleged in the FIR that the petitioner while in Denmark convinced him that the informant should invest money in India so that it would be doubled in two years. The informant alleged that believing the petitioner, he had given him rupees two crores. He alleged further that the petitioner did not return even his principal amount. These allegations on their face value obviously make out a prime facie case of inducement with false allurements which spells out a dishonest intention. However, in the statement of the informant, as recorded by the police during investigation, he has given out some different stories terming the payments to be loans and subsequent execution of an agreement between the parties to the effect. But at this stage to consider the evidentiary value of such statement recorded under Section 161 of the Code or to discard the initial allegation of the informant as made in the FIR, in my considered opinion would neither be permissible nor justified. The facts stated in the subsequent statement of the informant may be different from the allegations levelled in the FIR, but at this stage before the statement is confronted to its maker, it cannot be said to be contradictory to the allegations made in the FIR so as to hold it false or vexatious and to discard it. 20. That apart only a preliminary charge sheet has been filed keeping the investigation open for collection of further materials. Taking into consideration the facts and the circumstances along with the positions of law, as discussed, I do not find this to be a case where there is absolutely no material against the petitioner that requires a trial so as to quash the order of cognizance. 21. The argument advanced regarding possibility of carrying huge amount of foreign currency inside the country is of little consequence since it remains admitted that there was some financial transaction between the parties besides execution of an agreement. 22. In the result of my aforesaid discussions and findings, I find no merit in the present application and accordingly it stands dismissed. Final Result : Dismissed