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2018 DIGILAW 730 (ORI)

BISWAJIT MOHANTY v. STATE OF ORISSA

2018-08-13

S.K.SAHOO

body2018
JUDGMENT : S. K. Sahoo, J. - The petitioner Biswajit Mohanty has filed this application under section 482 of the Code of Criminal Procedure, 1973 challenging the order dated 21.09.2011 passed by the learned S.D.J.M., Puri in G.R. case No.1125 of 2011 in taking cognizance of offences under sections 420, 406 read with section 34 of the Indian Penal Code and issuance of process against him. The said case arises out of Kumbharpada P.S. Case No.160 of 2011. 2. The opposite party no.2 Smt. Anu Das filed a complaint petition in the Court of learned S.D.J.M., Puri, on the basis of which I.C.C. Case No.244 of 2011 was instituted. The said complaint petition was forwarded to the Inspector in Charge of Kumbharpada police station under section 156(3) of Cr.P.C. and accordingly, Kumbharpada P.S. Case No.160 of 2011 was registered under sections 406, 420 read with section 34 of the Indian Penal Code against the petitioner and one Pratibha Singh @ Sila Singh. On completion of investigation, charge sheet was placed against the petitioner and Pratibha Singh @ Sila Singh under sections 406, 420 read with section 34 of the Indian Penal Code and the learned S.D.J.M., Puri on receipt of the charge sheet passed the impugned order. 3. As per the complaint petition, it is the case of the opposite party no.2-complainant that she is a half-educated poor lady and used to maintain her family doing labour works. The coaccused Pratibha Singh @ Sila is a clever, shrewd and educated lady. The petitioner is the brother of co-accused Pratibha Singh. Both the accused persons with ill-intention gave false assurance to the opposite party no.2 and other poor ladies to become the members of Spandana Spurti Financial Ltd. (hereafter 'the company') so that they can avail loan for the purpose of doing business. The opposite party no.2 being moved by such allurement, agreed to become the member of the company and co-accused Pratibha Singh formed a group and she became the leader of the group. The co-accused Pratibha Singh collected voter identity card, electric bill, ration card, BPL card from the opposite party no.2 and others and also took their signatures in some documents. The accused persons did not give any loan amount to the opposite party no.2 or other assured persons. The co-accused Pratibha Singh collected voter identity card, electric bill, ration card, BPL card from the opposite party no.2 and others and also took their signatures in some documents. The accused persons did not give any loan amount to the opposite party no.2 or other assured persons. In the month of May 2011, the employees of the company came to the opposite party no.2 and asked for payment of the installment of the loan dues. When the opposite party no.2 told them that she had not availed any loan, the employees of the company showed documents to her relating to grant of loan and coaccused Pratibha Singh receiving the loan amount from the company on behalf of the opposite party no.2. When the opposite party no.2 went to meet the co-accused Pratibha Singh, she found that the said accused had left somewhere after locking the door of the rented house. When the petitioner was approached, he called co-accused Pratibha Singh and both the accused persons confessed to have misappropriated the loan amount and spent the same in business purpose and they assured to refund the loan amount and also the documents which had been taken from the opposite party no.2 and others. On 14.04.2011 an agreement was executed between the parties relating to the clearance of the loan amount and closing the loan account. In spite of such agreement, neither the accused persons repaid the loan amount which they had taken from the company nor did they return back the documents which they had taken from the opposite party no.2. 4. Mr. Santanu Ku. Sarangi, learned counsel appearing for the petitioner contended that the allegations leveled in the F.I.R. are false, baseless and unfounded and there is no supporting material/documentary evidence to show the justification for submission of charge sheet against the petitioner. It is further contended that the main allegation is against co-accused Pratibha Singh who obtained the loan from the company for opposite party no.2 and others and did not give it to those persons. When the opposite party no.2 and others approached the petitioner who is a government servant, he refused to pay any money which had been taken by the coaccused for which a false complaint petition has been filed intentionally to harass him. When the opposite party no.2 and others approached the petitioner who is a government servant, he refused to pay any money which had been taken by the coaccused for which a false complaint petition has been filed intentionally to harass him. It is further contended that the coaccused Pratibha Singh is involved in a number of cases for which the petitioner and his family members were not keeping any relationship with her. It is further stated that an agreement dated 14.04.2011 for repayment of loan amount was executed between the co-accused Pratibha Singh and the persons in whose names loans were taken by her. It is further contended that neither the petitioner had taken any documents from the opposite party no.2 to grant loan in her favour nor he had executed any document. Even during course of investigation, no clinching materials were found relating to the involvement of the petitioner in the alleged crime but all the same, charge sheet has been submitted against the petitioner in a most mechanical manner and the learned Court below has committed gross illegality in taking cognizance of the offences. Mr. Priyabrata Tripathy, learned Addl. Standing Counsel appearing for the State of Odisha on the other hand produced the case diary and contended that during course of investigation, number of witnesses have stated about the role played by the petitioner in the crime and therefore, when prima facie case is made out against the petitioner, this Court should not interfere with the impugned order invoking its inherent powers under section 482 of the Code. Mr. Samir Kumar Mishra, learned counsel appearing for the opposite party no.2 argued that in a pre-planned manner, innocent persons like the opposite party no.2 have been cheated and the co-accused Pratibha Singh in active connivance with the petitioner has committed the offence. He submitted that the coaccused Pratibha Singh purchased one auto and two cars after availing the loan from the company and also gave a part of the loan amount to the petitioner who purchased a flat in C.D.A., Cuttack and therefore, there was every justification on the part of the investigating agency to submit charge sheet against the petitioner. 5. Section 420 of the Indian Penal Code relates to cheating and dishonestly inducing the person deceived to deliver any property. Section 415 of the Indian Penal Code defines 'cheating'. 5. Section 420 of the Indian Penal Code relates to cheating and dishonestly inducing the person deceived to deliver any property. Section 415 of the Indian Penal Code defines 'cheating'. Cheating depends upon the intention of the accused at the time of inducement which may be judged by his subsequent conduct but the subsequent conduct is not the sole test. The section requires that there must be deception of any person, fraudulently or dishonestly inducing that person to deliver any property to any person or to consent that any person shall retain any property. Similarly, intentionally inducing a person to do or omit to do anything which he would not do or omit if he were not so deceived and the act or the omission causes or likely to cause damage or harm to that person in body, mind, reputation or property also comes within the definition of 'cheating'. Section 406 of the Indian Penal Code on the other hand prescribes punishment for criminal breach of trust which has been defined under section 405 of the Indian Penal Code. One of the most essential ingredients of such offence is the entrustment of property to the accused and the accused dishonestly misappropriating such property or converting to his own use, in violation of any direction of law or any legal contract. 6. In the complaint petition, though the opposite party no.2 has stated that both the accused persons gave false promises and assurances to the opposite party no.2 and others to become the members of the company in order to avail loan for their business but the statements collected during investigation indicate that such promises/assurances were given by coaccused Pratibha Singh and it is she who created a group and became the leader of the group and collected various documents from the members and signatures in some papers and availed loan from the company. Even the complainant-opposite party no.2 has also stated like that in her statement recorded under section 161 Cr.P.C. In the statements of witnesses, there is nothing against the petitioner to have induced them for becoming the members of the group or to give the documents. Even the complainant-opposite party no.2 has also stated like that in her statement recorded under section 161 Cr.P.C. In the statements of witnesses, there is nothing against the petitioner to have induced them for becoming the members of the group or to give the documents. The statement of one Manoranjan Swain, Manager of the company indicates that co-accused Pratibha Swain availed the loan for some members after creating two groups in the name of Maa Mangala and Maa Tarini but on inquiry, it came to light that the loan amount was not given to the concerned members but misappropriated. Some statements indicate that co-accused Pratibha Singh purchased one auto rickshaw and two cars in the loan amount receipt from the company and gave some amount to the petitioner for purchase of a plot in C.D.A., Cuttack. Since no inducement has been made by the petitioner either to the opposite party no.2 or to any other member of the group and he has not collected any documents from them and the loan amount was never entrusted to the petitioner and there is absence of any material relating to any conspiracy or connivance between the petitioner and co-accused Pratibha Singh, it cannot be said that the petitioner had cheated the opposite party no.2 in any manner or misappropriated any money of the opposite party no.2 being entrusted with the same. If the co-accused had provided some finance to the petitioner out of the loan amount received by her from the company for purchasing a plot in C.D.A., Cuttack, it cannot be said that the petitioner is a party to the cheating or the money collected from the company towards loan was entrusted to him and he has misappropriated the same. Extending some helping hand to a brother for purchase of a plot in C.D.A., Cuttack would not ipso facto attract the ingredients of the offences under sections 420 and 406 of the Indian Penal Code against the petitioner. Even giving assurance to repay the loan amount taken by the sister, cannot make out the ingredients of the offences against the petitioner. 7. Even giving assurance to repay the loan amount taken by the sister, cannot make out the ingredients of the offences against the petitioner. 7. Even though the inherent powers of this Court under section 482 of Cr.P.C. is an exceptional one which is to be used sparingly and cautiously and shifting of evidence or appreciation of evidence is not permissible but since the basic ingredients of the offences are absent in the case against the petitioner, I am of the humble view that continuance of the criminal proceeding against the petitioner would be an abuse of process and therefore, in order to prevent miscarriage of justice, the proceeding against the petitioner should be quashed. Accordingly, the CRLMC application is allowed. The impugned order passed by the learned Sub-divisional Judicial Magistrate, Puri in G.R. case No. 1125 of 2011 in taking cognizance of the offences under sections 420/406/34 of the Indian Penal Code and issuance of process against the petitioner stands quashed. It is made clear that I have not expressed any opinion relating to the continuance of the proceeding against coaccused Pratibha Singh. Final Result : Allowed