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2018 DIGILAW 603 (ORI)

Sushmita Das @ Patnaik v. Soumya Ranjan Tripathy

2018-06-20

J.P.DAS

body2018
JUDGMENT J.P. DAS, J. - This is an application under Section 482 of the Code of Criminal Procedure (in short, “Cr.P.C.”) assailing the order of cognizance passed by the learned S.D.J.M., Bhubaneswar in I.C.C. No. 35 of 2012 taking cognizance of the offences punishable under Secton 420/506/34, I.P.C. against the present petitioner and three others and directing issuance of summons. 2. The present opposite party filed a complaint petition on 04.01.2012 alleging that the present petitioner, the accused no. 1 in the complaint petition, was engaged as Public Relation Officer in the Company of the opposite party at the request of her mother, the accused no. 2, since the complainant and the accused persons had good family relation. Thereafter, in the year 1999 being requested by accused no.2, the complainant agreed to purchase a piece of land on Puri-Konark road. But, the accused No. 2 got the sale deed registered in the name of a fictitious person namely, Sasmita Tripathy, One building was also constructed on the said land at the expenses of the Company and one restaurant was opened there by engaging other co-accused no. 3. The accused No. 2 also withdrew Rs. 90,000/- of the Company without the knowledge of the complainant. The accused persons allegedly misappropriated the entire income from the hotel and on being asked by the complainant, they assured to refund the amount which was not complied with. The complainant alleged that exploiting his good faith, the accused persons cheated him by misappropriating huge amount of the Company. The learned S.D.J.M., Bhubaneswar made an enquiry under Section 202, Cr.P.C. by examining the witnesses and by the impugned order dated 01.10.2012 finding a prima-facie case under Sections 420/-506/34, I.P.C. against the accused persons, directed to issue summons for their appearance to face their trial. 3. It has been submitted on behalf of the petitioner that there being absolutely no material to make out the alleged offences against the present petitioner, the learned trial Court has issued process against the petitioner along with other co-accused persons in a mechanical manner. 3. It has been submitted on behalf of the petitioner that there being absolutely no material to make out the alleged offences against the present petitioner, the learned trial Court has issued process against the petitioner along with other co-accused persons in a mechanical manner. It has been submitted that all the allegations as made in the complaint petition, were against the accused No.2 namely, Kamal Das, the mother of the present petitioner and excepting the fact that the petitioner worked in the Company of the complainant for a period of about one year, there is absolutely no allegation against her so as to make her liable for the alleged offences. It was also submitted that the petitioner had also left the job of the Company much prior to the alleged purchase of land and construction of building etc. it was further submitted that although the alleged occurrence took place prior to 2000, still the complaint petition was filed in the year 2012. It was further submitted that the petitioner had got married since 25.01.1998 and has been residing with her husband at Hyderabad and hence, she could not have any complicity with the allegations as made by the complainant. In course of hearing, it was also submitted that in the year 2011 the wife of the complainant had filed one Civil Proceeding before the learned Civil Judge (Senior Division), Bhubaneswar arraying the present petitioner and other co-accused as defendants with the pleadings that there was some relationship between her husband and the present petitioner who was also employee in the Company and taking advantage thereof the present petitioner along with other defendants misappropriated huge amounts of the Company for which her husband lost his mental balance. Placing the copy of the plaint in the said suit it was submitted that all the allegations as made like purchase of property, spending of money of the Company were all within the knowledge of the complainant and with his consent as per the pleadings in the said Civil Suit. But subsequently, the said suit was withdrawn and the complaint was filed by the present opposite party making allegations of cheating and misappropriation. 4. Per contra, it was submitted by the learned counsel for the opposite party that the present application of the petitioner is not maintainable either in law or facts. But subsequently, the said suit was withdrawn and the complaint was filed by the present opposite party making allegations of cheating and misappropriation. 4. Per contra, it was submitted by the learned counsel for the opposite party that the present application of the petitioner is not maintainable either in law or facts. It was submitted that the mother of the petitioner had approached this Court for quashing of the cognizance in CRLMC No. 3825 of 2012 but it was disposed of by order dated 30.04.2013 giving liberty to the petitioner to approach the revisional forum since the order of cognizance is a revisable order. Thereafter, the mother of the petitioner approached the learned Sessions Judge, Khurdha in Criminal Revision No. 27 of 2013 against the order of cognizance but the said criminal revision was dismissed for being devoid of merit by a reasoned order passed by the learned Sessions Judge on 18.01.2014. Thus, it was submitted that since a similar application has been rejected by the revisional Court which has also not been challenged before any higher authority, the present application is not maintainable, apart from the fact that the said facts have been suppressed by the present petitioner while moving the present application. It was further submitted that the present petitioner along with her mother as accused No. 2 had moved an application before the learned trial Court to discharge them from the offences under Section 245(1), Cr.P.C. and the said application had also been rejected by the learned trial Court by order dated 30.11.2015 a copy of which, has been placed before the Court. Thus, it was submitted that the prayer of the petitioner to be discharged from the offence having been rejected, the petitioner instead of challenging the said order, has come up with the application against the order of cognizance which is not maintainable in law. Lastly, it was contended that while exercising the power under Section 482, Cr.P.C. the order of cognizance passed by the learned trial Court should not be ordinarily interfered with unless there is gross miscarriage of justice, moreso in a case where the learned trial Court after making an enquiry himself under Section 202, Cr.P.C. has taken cognizance of the offences to proceed against the accused person finding a prima-facie case against them on the material evidence placed before it. In support of such contention, reliance was placed on a decision of the Hon’ble Apex Court reported in AIR 2014 SC 957 (Fiona Shrikhande Vrs State of Maharashtra and Anr) wherein referring to an earlier decision of the Hon’ble Apex Court reported in (1976) 3 SCC 736 (Smt. Nagawwa Vrs. Veeranna Shivlingappa Kanjalgi & Ors.) it was observed by Their Lordships that “Once the Magistrate has exercised his discretion in forming an opinion that there is ground for proceeding, it is not for the Higher Courts to substitute its own discretion for that of the Magistrate. The Magistrate has to decide the question purely from the point of view of the complaint, without at all adverting to any defence that the accused may have.” 5. Lastly, it was contended on behalf of the petitioner that it is the settled proposition of law that mere averments in the complaint petition without materials to make out a case of inducement or cheating, there could not have been an offence under Section 420 of the I.P.C., and in this case there is absolutely no material to show that there was any inducement or cheating by the present petitioner against the complainant. It was also submitted that rejection of such prayer in respect of any co-accused does not take away the right of the present petitioner to assail the order of cognizance. Lastly, it was submitted that there was a delay of more than 12 years in filing the complaint after the alleged acts. 6. The position of law is undisputed that at the time of taking cognizance and issuing process against the accused persons, the Magistrate is merely concerned with the allegations made out in the complaint and has only to be prima-facie satisfied whether there are sufficient grounds to proceed against the accused and it is not the province of the Magistrate to enter into a detailed discussion on the merits and demerits of the case. The contention as made on behalf of the petitioner before this Court are materials of defence and those could not have been before the learned trial Court nor could have been considered by the said Court while directing for issuance of process against the accused persons after completing an enquiry under Section 202, Cr.P.C. Further it is on record that an application filed by the present petitioner and another co-accused her mother to discharge them from the offences has been rejected by the learned trial Court and that order has not been challenged by her. Of course, it is not known as to whether these materials as submitted, were placed before the learned trial Court while considering such application for discharge since the relevant order did not disclose any such details. 7. However, considering the facts and circumstances besides the settled position of law in the field, I do not find any merit in the case of the petitioner to quash the order of cognizance passed by the learned trial Court, in exercising the power under Section 482, Cr.P.C. The CRLMC is dismissed accordingly. CRLMC dismissed.