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2017 DIGILAW 1190 (ORI)

Babula Singh v. State of Orissa

2017-10-23

S.K.SAHOO

body2017
JUDGMENT : S. K. SAHOO, J. 1. This is an application under section 482 of Cr.P.C. filed by the petitioner Babula Singh challenging the impugned order dated 25.02.2005 passed by the learned J.M.F.C., Khariar in I.C.C. Case No. 3 of 2004 in taking cognizance of the offences punishable under sections 420/506 of the Indian Penal Code and issuance of process against him. 2. The opp. party no.2 Basudev Ghivela filed a complaint petition in the Court of learned J.M.F.C., Khariar against the petitioner, on the basis of which I.C.C. Case No. 3 of 2004 was registered. It is the case of the complainant-opp. party no.2 that the complainant was possessing a piece of Government land and he approached the petitioner who was the Revenue Inspector to settle the land in his favour and the petitioner told him that the land would be settled if a sum of Rs.3,000/-(rupees three thousand) is deposited as Government fees. It is the further case of the complainant that since he was illiterate, he arranged Rs.3,000/-(rupees three thousand) and paid it to the petitioner for settlement of land in the month of December 2002 and the petitioner assured the complainant to settle the land within a year but the same was not done and even the money which was taken by the petitioner was not refunded in spite of several approach by the complainant. It is further stated in the complaint petition that on 18.01.2004 when the complainant approached the petitioner for refund of the amount, the petitioner got enraged and abused him. After filing of the complaint petition, the learned J.M.F.C., Khariar sent it to officer in-charge of Sinapalli police station under section 156(3) of Cr.P.C. for registration of the F.I.R. and investigation and accordingly, Sinapalli P.S. Case No. 13 of 2004 was registered on 13.01.2004 against the petitioner under section 420 of the Indian Penal Code. During course of investigation, numbers of witnesses were examined and the Investigating Officer found that there is no evidence to prove the payment of cash to the petitioner. During course of investigation, numbers of witnesses were examined and the Investigating Officer found that there is no evidence to prove the payment of cash to the petitioner. It was further found that since the land was an encroached land, therefore, the petitioner as the Revenue Inspector could not have taken steps to settle the land in favour of the complainant against whom he had initiated a case i.e. Encroachment Case No. 2382 of 2001 for which after transfer of the petitioner, the complainant had filed the complaint petition with a view to harass the petitioner. The Circle Inspector supervised the case and accordingly final report was submitted indicating it to be a false case. 3. It appears that after submission of the final report, the complainant-opp. party no.2 filed a protest petition and accordingly, the initial statement of the complainant was recorded and inquiry contemplated under section 202 of Cr.P.C. was conducted, during course of which the complainant examined two witnesses. The learned Magistrate after perusing the complaint petition, the initial statement as well as the statements of the witnesses recorded under section 202 of Cr.P.C. found prima facie case for commission of offences under sections 420/506 of the Indian Penal Code and accordingly, took cognizance of such offences which is impugned in this application under section 482 Cr.P.C. 4. Mr. Debasish Pattanaik, learned counsel appearing for the petitioner contended that the complaint petition has been filed with an ulterior motive to harass the petitioner as the petitioner initiated an encroachment case against the complainant for encroaching the government land and turned down the request of the complainant to record such land in his favour. It is further contended that the officer in-charge of Sinapalli police station after due investigation of the case which was supervised by the Circle Inspector, Khariar, found it to be a false case. It is further contended by the learned counsel for the petitioner that no prima facie case is made out to attract the ingredients of the offences under sections 420/506 of the Indian Penal Code and therefore, the impugned order should be quashed. Learned counsel for the State, Mr. Prem Kumar Pattnaik supported the impugned order. 5. It is not disputed that at the relevant point of time, the petitioner was the Revenue Inspector at Hatibandha and encroachment case bearing no.2382 of 2001 was instituted against the opp. Learned counsel for the State, Mr. Prem Kumar Pattnaik supported the impugned order. 5. It is not disputed that at the relevant point of time, the petitioner was the Revenue Inspector at Hatibandha and encroachment case bearing no.2382 of 2001 was instituted against the opp. party no.2-complainant for encroaching the government land appertaining to Khata No. 83, Plot No. 721, Ac.1.40 decimal. It is also not disputed that after due investigation of the case, it was found that there is no evidence relating to payment of cash of Rs.3,000/-(rupees three thousand) by the complainant to the petitioner. On perusal of the complaint petition, it appears that though it is mentioned that the complainant arranged Rs.3,000/-(rupees three thousand) and paid it to the petitioner in the month of December 2002 but no documentary proof relating to such payment has been annexed to the complaint petition. Though in the initial statement, the complainant has stated that the payment of Rs.3,000/-(rupees three thousand) was made in presence of Bidyadhar Nag and Gautam Meher but nothing has been mentioned in the complaint petition as to in whose presence, the money was paid. The evidence of the two witnesses examined by the complainant in the inquiry under section 202 of Cr.P.C. are also contrary to the evidence of the complainant. On a plain reading of the complaint petition, the ingredients of the offence under section 506 of the Indian Penal Code are not attracted. In view of the background of the case, the materials available on record and the fact that the version of the complainant in the complaint petition runs contrary to his initial statement and the statements of the witnesses under section 202 of Cr.P.C. are also discrepant in nature and more particularly when there is lack of documentary evidence relating to payment of money by the complainant to the petitioner, I am of the view that the learned J.M.F.C., Khariar has committed the illegality in passing the impugned order and therefore, invoking inherent power under section 482 of Cr.P.C., I am inclined to quash the impugned order. Accordingly, the CRLMC application is allowed. The impugned order dated 25.02.2005 passed by the learned J.M.F.C., Khariar in I.C.C. Case No.3 of 2004 stands quashed.