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2018 DIGILAW 338 (ORI)

Debi Prasanna Rath v. Padmini Panda

2018-04-02

S.K.SAHOO

body2018
JUDGMENT : S.K. SAHOO, J. This is an application under section 482 of Cr.P.C. filed by the petitioner Dr. Debi Prasanna Rath in challenging the impugned order dated 19.07.2004 of the learned S.D.J.M., Sambalpur passed in I.C.C. Case No. 78 of 2001 in taking cognizance of offence under section 406 of the Indian Penal Code and issuance of process against him. 2. The opp. party Padmini Panda filed the complaint petition stating therein that she is the Director of M/s. Padmini Computers imparting computer education under license from APTECH Ltd. The institution was tied up with number of institutions and universities. Accused no.1 Miss Laxmi Gope was the Principal of the Govt. Women’s College, Sambalpur who invited detailed information regarding provisions of job oriented course for under-graduate students belonging to senior categories. The institution of the complainant submitted the tender as per requirement and the committee which was constituted by accused no.1 recommended M/s. Padmini Computer as suitable for imparting computer education as per the guidelines of U.G.C. and accordingly, accused no.1 by her letter dated 05.07.2001 informed the complainant’s centre regarding acceptance of the tender and also requested the complainant expedite the process of teaching to the new job-oriented computer course to the students of Govt. Women’s College, Sambalpur by opening the extension wing inside the college campus. It is the further case of the complainant that a memorandum of understanding was signed between the complainant’s centre and accused no.1 on 06.07.2001. As per the agreement and memorandum of understanding, the centre of the complainant was required to install the computers and other necessary accessories with complete A.C. in the room which was allocated inside the college campus for the purpose of teaching the computer course to the students. It was agreed upon between the parties that the entire installation expenditure is to be borne by the complainant’s centre. The fees shall be charged from the students in seeking admission which would be 60% of the regular course fees. The college administration will assist in collecting the fees from the students and provide electricity and telephone etc. and will receive 5% of the total collection and the telephone charges shall be paid by the complainant’s institution. As per the agreement between the parties, one room was provided for the computer lab and accordingly the complainant’s institution fitted all the necessities like furnitures, doors, paintings, electrical fittings with carpet etc. and will receive 5% of the total collection and the telephone charges shall be paid by the complainant’s institution. As per the agreement between the parties, one room was provided for the computer lab and accordingly the complainant’s institution fitted all the necessities like furnitures, doors, paintings, electrical fittings with carpet etc. to provide a complete laboratory facilities for twenty students and the total cost was about Rs.2,11,800/-(rupees two lakhs eleven thousand and eight hundred only). For the session 2000-2001, for the teaching purpose, the complainant paid an advance of Rs.3,65,000/-(rupees three lakhs sixty five thousand) to the dealer Nexzun Communication for supply of required nos. of computer CVT, UPS and Printer etc. and thereby the total cost incurred by the complainant was Rs.5,90,300/-(rupees five lakhs ninety thousand three hundred only) to complete the terms of the agreement. It is the further case of the complainant that the accused no.1 with her staff as well as the petitioner collected Rs.10,00,000/-(rupees ten lakhs only) from the intending students seeking admission and kept the same illegally and misappropriated the amount and receipts were also supplied to the students. It is stated that the petitioner along with the accused no.1 who is the Principal with their staff were supervising the installation of computer laboratory in room no.2 in pursuance of the agreement. Some misunderstanding cropped up between the accused persons and the complainant as the accused persons demanded a lion’s share of the expected profit in continuing the scheme of computer education inside the college premises to which the complainant could not accept. The complainant expressed her discontentment for which a letter was issued by the Principal-accused no.1 on 14.08.2001 in which she intimated the complainant that she cannot allow the complainant to continue her presence inside the college campus by putting the second lock on the laboratory in room no.2. The complainant tried to persuade the accused persons for cooperation expressing her inability to pay the commission which can be termed as illegal gratification and being disgusted, the complainant sent advocate’s notice under section 80 of C.P.C. on 14.09.2001 to the accused no.1 giving copies to the State of Orissa, District Magistrate and Collector, Sambalpur, Secretary, Higher Education, Govt. of Orissa, Bhubaneswar. of Orissa, Bhubaneswar. It is the further case of the complainant that though the matter was reported before the officer in charge of Dhanupali police station but the police did not take any action against the accused persons. The complainant filed the complaint petition which was sent to the officer in charge of Dhanupali police station under section 156(3) of Cr.P.C. and accordingly, Danupali P.S. Case No.188 dated 29.11.2001 was registered under sections 427/420/499/406 of the Indian Penal Code and S.I. of police namely Rajendra Barik took up investigation of the case which was subsequently taken over by S.I. of police namely Prafulla Kumar Ratha. According to the complainant, the police failed to examine vital witnesses and did not verify the material documents relating to transaction between the complainant and the accused persons and ultimately submitted final report in the case. It is the further case of the complainant that at the instance of accused no.1 and the petitioner, Dhanupali P.S. Case No.179 of 2001 was registered under section 420 of the Indian Penal Code against the centre head of the computer centre of the complainant namely Mr. P.K. Pandawas and he was arrested and thereby defamed. 3. On receipt of the final report, the learned S.D.J.M., Sambalpur issued notice to the complainant and accordingly, the protest petition by way of complaint petition was filed. After filing of the complaint petition, the initial statement of the complainant was recorded. The learned S.D.J.M., Sambalpur conducted inquiry contemplated under section 202 of Cr.P.C. in which two witnesses were examined by the complainant. The complainant also filed xerox copies of letters. After perusal of the documents filed and after going through the compliant petition, initial statement and the statements of the witnesses, the learned S.D.J.M., Sambalpur found prima facie case under section 406 of the Indian Penal Code against the accused persons including the petitioner and accordingly, took cognizance of such offence and issued process against the petitioner and co-accused Miss Laxmi Gope, Principal of Government Women’s College. 4. Mr. Dayananda Mohapatra, learned counsel appearing for the petitioner contended that the petitioner was the Reader in Philosophy of the collage at the relevant point of time and on a plain reading of the complaint petition, it appears that the main allegation is against accused no.1 Miss Laxmi Gope. 4. Mr. Dayananda Mohapatra, learned counsel appearing for the petitioner contended that the petitioner was the Reader in Philosophy of the collage at the relevant point of time and on a plain reading of the complaint petition, it appears that the main allegation is against accused no.1 Miss Laxmi Gope. It is further contended that the ingredients of offence under section 406 of the Indian Penal Code are not attracted against the petitioner and the averments that the accused persons including the petitioner collected huge amount of Rs.10,00,000/-from the intending students for admission into the computer course is not substantiated by any documentary evidence and none of the students have also come forward with any complaint. It is further contended that so far as the other aspects relating to inviting detailed information from the complainant, constitution of committee, acceptance of the offer of the complainant and execution of an agreement between the parties are all against accused no.1 and therefore, it cannot be said that the prima facie case of criminal breach of trust is made out against the petitioner. It is further contended that since the complainant has already taken recourse in issuing notice under section 80 of C.P.C. and the case is basically civil in nature, the continuance of the criminal proceeding against the petitioner would amount to abuse of process of law and therefore, the same should be quashed. None appears on behalf of the opposite party-complainant on repeated calls. 5. Section 406 of the Indian Penal Code deals with punishment for criminal breach of trust. Criminal breach of trust has been defined under section 405 of the Indian Penal Code. There must be an entrustment; there must be misappropriation or conversion to one’s own use or use in violation of any legal direction or of any legal contract and thirdly the misappropriation or conversion or disposal must be with a dishonest intention. Section 403 of the Indian Penal Code defines dishonest misappropriation of property. In order to prove an offence under section 403 of the Indian Penal Code, the prosecution has to prove that the property was the property of the complainant and that accused misappropriated the same or converted it to his own use and that he did so dishonestly. (Ref:-Ramaswamy Nadar -Vrs.-The State of Madras reported in A.I.R. 1958 Supreme Court 56). In order to prove an offence under section 403 of the Indian Penal Code, the prosecution has to prove that the property was the property of the complainant and that accused misappropriated the same or converted it to his own use and that he did so dishonestly. (Ref:-Ramaswamy Nadar -Vrs.-The State of Madras reported in A.I.R. 1958 Supreme Court 56). Every offence of criminal breach of trust involves a civil wrong in respect of which the complainant may seek his redress for damage in the civil Court but every breach of trust in the absence of mens rea, cannot legally justify a criminal prosecution. In case of Neelu Chopra -Vrs.- Bharti reported in (2010) 45 Orissa Criminal Reports (SC) 99, it is held as follows:- 5. In order to lodge a proper compliant, mere mention of the sections and the language of those sections is not be all and end of the matter. What is required to be brought to the notice of the Court is the particulars of the offence committed by each and every accused and the role played by each and every accused in committing of that offence. When we see the complaint, the complaint is sadly vague. It does not show as to which accused has committed what offence and what is the exact role played by these appellants in the commission of offence. There could be said something against Rajesh, as the allegations are made against him more precisely but he is no more and has already expired. Under such circumstances, it would be an abuse of process of law to allow the prosecution to continue against the aged parents of Rajesh, the present appellants herein on the basis of vague and general complaint which is silent about the precise acts of the appellants. On a bare reading of the complaint petition and the other materials available on record, it is clear that the main allegation is against the accused no.1 Miss Laxmi Gope, the Principal of Govt. Women’s College. It is she who invited the detailed information regarding provision of job-oriented course for the under-graduate students. It is she who constituted a committee for selection of the complainant’s centre. It is she who intimated the complainant’s centre relating to acceptance of offer/tender of the centre of the complainant. It is she with whom memorandum of understanding was also executed by the complainant’s centre. It is she who constituted a committee for selection of the complainant’s centre. It is she who intimated the complainant’s centre relating to acceptance of offer/tender of the centre of the complainant. It is she with whom memorandum of understanding was also executed by the complainant’s centre. It further appears that in terms of such agreement, the complainant incurred expenses in the installment of the fittings and computers etc. in the room allotted for the computer lab by the accused no.1. The only allegation against the petitioner who is accused no.2 in the complaint petition is that while the installation process was on, he along with other staff were supervising the same. So far as the other allegation relating to receipt of Rs.10,00,000/-from the intending students of the computer course is concerned, neither there is any valid document in that respect except vague allegation nor any student has come forwarded to make any accusation relating to collection of fees for computer education. The complainant also seems to have taken recourse to civil proceeding and advocate’s notice under section 80 of C.P.C. has already been issued on her behalf to the accused no.1 and others. In the factual scenario, I am of the view that when the allegation against the petitioner is vague and the exact role played by the petitioner in the commission of the alleged offence is not bone out of the record, continuance of the proceeding against the petitioner would amount to abuse of process of law. 6. Therefore, I am inclined to accept the prayer of the petitioner made in this application under section 482 of Cr.P.C. and quash the impugned order dated 19.07.2004 so far as the petitioner is concerned. Needless to say that the criminal proceeding shall continue so far as the accused no.1 Miss Laxmi Gope is concerned. With the aforesaid observation, the CRLMC application is allowed.