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2017 DIGILAW 461 (ORI)

Bikash Ch. Tulsiyan v. State of Orissa

2017-04-24

S.K.SAHOO

body2017
JUDGMENT : S.K. SAHOO, J. 1. Heard learned counsel for the petitioners, learned Addl. Standing Counsel for the State and learned counsel for the opposite party no.2. 2. This is an application under section 482 of Cr.P.C. filed by the petitioners challenging the impugned order dated 22.12.2006 passed by the learned S.D.J.M., Angul in C.T. Case No.403 of 2005 in taking cognizance of offences under sections 120-B/406/417/418/420/422/323/506/294/34 of the Indian Penal Code and issuance of process against them. 3. It appears that initially the opposite party no.2 Sri Surendra Kumar Baliar filed a complaint petition in the Court of learned S.D.J.M., Angul which was registered as C.T. Case No.403 of 2005 against the petitioners. The said complaint petition was sent to the Inspector in charge of Angul Police Station for registration of the first information report and for investigation, on the basis of which Angul P.S. Case No.110 of 2005 was registered on 28.04.2005 under sections 120-B/406/417/418/420/422/323/506/294/34 of the Indian Penal Code. 4. After completion of investigation, final report was submitted in the case on 07.01.2006 indicating the case to be false which was received and placed before the learned S.D.J.M., Angul on 13.01.2006 and accordingly, the learned S.D.J.M., Angul issued notice to the complainant for filing a protest petition, if any. 5. On the basis of such notice, the opposite party no.2 filed a protest petition on 03.04.2006. The learned S.D.J.M., Angul treated the protest petition as complaint petition, recorded the initial statement of the complainant-opposite party no.2 under section 200 of Cr.P.C. and conducted inquiry under section 202 of Cr.P.C. During course of such inquiry, six witnesses were examined where after on perusal of the complaint petition, initial statement of the complainant–opposite party no.2 and the evidence recorded under section 202 of Cr.P.C., the learned S.D.J.M., Angul was of the prima facie view that the ingredients of offences under sections 120B/406/417/418/420/422/323/506/294/34 of the Indian Penal Code are made out against the petitioners and accordingly took cognizance of such offences and issued process against the petitioners which is impugned in this application under section 482 of Cr.P.C.. 6. Mr. 6. Mr. Jayadeep Pal, learned counsel appearing for the petitioners contended that on a plain reading of the complaint petition which was first filed before the learned S.D.J.M., Angul, the protest petition and the evidence of the witnesses which were recorded during course of inquiry under section 202 of Cr.P.C., it would reveal that the petitioner no.1 is the son of the petitioner no.2, petitioner no.3 is the wife of petitioner no.2 and petitioners nos. 4 and 5 are the daughters of the petitioner no.2 and the complainant was serving as a sales man under the petitioner no.1 who was the proprietor of M/s. Shree Ranisati Distributors, Bazar Chowk, Angul. It is further revealed that on three occasions, the petitioners nos. 1 and 2 had taken an amount of Rs.2,50,000/- (rupees two lakhs fifty thousand only) from the complainant–opposite party no.2 on credit basis and they refunded only of Rs.80,000/- (rupees eighty thousand only) but did not refund the rest of the amount and on subsequent occasions when the complainant approached the petitioners nos. 1 and 2 asking for refund of the balance amount, he was abused in the filthy language and both the petitioners nos. 1 and 2 assaulted the complainant and also threatened him to file false case under section 376 of the Indian Penal Code and for criminal intimidation. It is strenuously argued by Mr. Pal that there is absolutely no material on record against the petitioners nos.3, 4 and 5 who are ladies and they have been falsely entangled in the case merely because they are related to petitioners nos. 1 and 2. It is contended that even accepting the entire allegations as per the complaint petition and the evidence on record, the ingredients of offences under sections 120-B/406/417/418/420/422 of the Indian Penal Code are not attracted and therefore, the impugned order should be quashed invoking the inherent power under section 482 of Cr.P.C. 7. Mr. S.K. Bhanjadeo, learned counsel for the complainant–opposite party no.2 on the other hand placed the complaint petition as well as evidence and submitted that the accused persons had intention to cheat the complainant– opposite party no.2 and therefore, in spite of their assurance to refund the amount taken on credit basis, they only refunded a part of it and therefore, no illegality has been committed by the learned Magistrate in passing the impugned order. 8. Mr. C.R. Swain, learned Addl. 8. Mr. C.R. Swain, learned Addl. Standing Counsel supported the impugned order. 9. Considering the submissions made by the learned counsels for the respective parties and on perusal of the materials available on record, it appears that at the first instance when the complaint petition which was filed by the opposite party no.2 was referred to Angul Police Station for registration of the first information report and for investigation, the police after conducting investigation submitted final report indicating the case to be false. Subsequently, on the basis of the notice issued by the learned S.D.J.M., Angul, the complainant–opposite party no.2 filed the protest petition. At the initial stage, in the first complaint petition, the complainant-opposite party no.2 had mentioned only three witnesses but in the protest petition, he has cited twelve persons as the witnesses to the occurrence and examined six of the witnesses during course of inquiry under section 202 of Cr.P.C. As per the accusation made by the complainant–opposite party no.2, it appears that the petitioners nos. 1 and 2 had taken an amount of Rs.2,50,000/- (rupees two lakhs fifty thousand only) on three occasions i.e. an amount of Rs.1,00,000/- (rupees one lakhs only) on 07.04.1999, an amount of Rs.1,00,000/- (rupees one lakhs only) on 08.03.2003 and on the last occasion i.e. on 21.05.2004 an amount of Rs.50,000/- (rupees fifty thousand only). It is the case of the complainant–opposite party no.2 that the accused persons had refunded a sum of Rs.80,000/- (rupees eighty thousand only) to him but did not refund the balance amount. Even if such accusations are taken on its face value, the dispute between the parties appears to be civil in nature. 10. Law is well settled that in order to establish a charge under section 420 of the Indian Penal Code, it is to be proved that the accused had fraudulent or dishonest intention at the time of making promise or representation. Such a culpable intention right at the time of entering into the agreement must be established by showing from facts and that cannot be even be presumed including from any failure to keep his promise subsequently or for mere dereliction of any duty or any omission or lapse. Mere use of expression ‘cheating’ in the complaint is of no consequence. A pure and simple breach of contract does not constitute an offence of cheating. Mere use of expression ‘cheating’ in the complaint is of no consequence. A pure and simple breach of contract does not constitute an offence of cheating. If the dispute between the parties was essentially a civil in nature resulting from a breach of contract on the part of the accused by non-refunding the amount of advance, the same would not constitute an offence of cheating. Of course, a given set of facts may make out a civil wrong as also a criminal offence and only because a civil remedy may also be available to the informant/complainant that itself cannot be a ground to quash a criminal proceeding. The real test is whether the allegations in the complaint disclose a criminal offence or not. It is to be seen if a matter, which is essentially of a civil nature, has been given a cloak of criminal offence. Criminal proceedings are not a short cut of other remedies available in law. Before issuing process, a criminal Court has to exercise a great deal of caution. For the accused, it is a serious matter. In the case in hand, merely because the accused persons refunded a part of the credit amount to the complainant and could not refund the rest, it cannot be inferred that they had fraudulent or dishonest intention at the time of taking money on credit basis. 11. The powers under section 482 of Cr.P.C. are to be exercised sparingly and with a great deal of circumspection. The legitimate prosecution should not be stifled or scuffled if some materials are available prima facie to indicate a criminal intent on the part of the accused. On scrutiny of materials available on record, it indicates that there is nothing against the petitioners nos. 3, 4 and 5 who are the ladies and allegations have been leveled in an omnibus manner. Without specific accusation in respect of any of the offences, I am of the view that the order of taking cognizance and issuance of process against the petitioners nos. 3, 4 and 5 are not sustainable in the eye of law and therefore, the same is hereby set aside. Similarly, so far as the offences under sections 120-B/406/417/418 /420/422 of the Indian Penal Code are concerned, the ingredients of cheating and criminal breach of trust are conspicuously absent from the allegations leveled against the petitioners nos. 3, 4 and 5 are not sustainable in the eye of law and therefore, the same is hereby set aside. Similarly, so far as the offences under sections 120-B/406/417/418 /420/422 of the Indian Penal Code are concerned, the ingredients of cheating and criminal breach of trust are conspicuously absent from the allegations leveled against the petitioners nos. 1 and 2 and in such circumstances, it would not be in the interest of justice if the criminal proceedings are allowed to stand in respect of such offences and therefore, the order of taking cognizance of such offences also stands quashed. 12. So far as the offences under sections 323/506/294/34 of the Indian Penal Code are concerned, on a plain reading of the complaint petition as well as evidence on record, the ingredients of such offences are apparent as against petitioners nos. 1 and 2 and therefore, no illegality has been committed by the learned S.D.J.M., Angul in taking cognizance of such offences and issuance of process against those two petitioners. 13. Accordingly, the 482 Cr.P.C. application is allowed in part. The order of taking cognizance and issuance of process as against petitioners nos. 3, 4 and 5 stands quashed. 14. So far as the taking cognizance of offences under sections 120-B/406/417/418/420/422 of the Indian Penal Code also stands quashed. The order of taking cognizance of offences under sections 323/506/294/34 of the Indian Penal Code and issuance of process against the petitioners nos. 1 and 2 stands confirmed. 15. Since it is a case of the year 2005, the learned Magistrate shall do well to expedite the trial and conclude the same at an earliest preferably within a period of six months from the date of receipt of the copy of this order. 16. With the aforesaid observation, the CRLMC application disposed of. 17. Since the petitioners were on bail granted by this Court, they shall remain on bail till the end of the trial.