JUDGMENT S. K. SAHOO, J. - Why everybody wants a house of his own? It is not just a basic need of a human being, a primal urge or just a place made of four walls and a roof thereon but a place where he lives with his family safely, secured and healthy. It gives him comfort, peace and stability, to imagine things in a better manner and to act for the goodness of the society and the nation. Charles Dickens quotes, “Charity begins at home and justice begins next door”. This case depicts the attempts made by Hindustan Aeronautics Limited Housing Committee, Koraput Division, Sunabeda (hereafter ‘HAL Housing Committee’) to bring a housing project at Bhubaneswar for the employees of HAL and the alleged misappropriation, cheating, forgery committed by the appellants in not fulfilling the terms and conditions of the agreement executed between the parties for such purpose. The appellants have filed this appeal under section 13 of the Odisha Protection of Interests (in Financial Establishments) Act, 2011 (hereafter ‘OPID Act’) challenging the impugned order dated 23.11.2015 passed by the learned Presiding Officer, Designated Court, OPID Act, Cuttack in C.T. Case No. 07 of 2014 in rejecting the petition dated 17.10.2015 filed by the appellants under section 239 of Cr.P.C. for discharge and consequently framing charges under sections 420, 406, 467, 468 read with section 120-B of the Indian Penal Code and section 6 of the OPID Act. 2. On 27.04.2014 the respondent no.2 Rajaram Mohanty, Additional General Manager (Overhaul), Sukhoi Engine Division, Sunabeda-2 for HAL Housing Committee lodged the first information report before the Superintendent of Police, Economic Offences Wing, Bhubaneswar stating therein that HAL Housing Committee is a sub-committee of Hindustan Aeronautics Employee Welfare Fund (in short ‘HAEWF’) constituted for providing houses to its 540 committee members. HAEWF was registered under the Societies Registration Act and it was decided and resolved by the General Body of sub-committee to have a housing project at Bhubaneswar for its members who are employees of HAL and accordingly funds were collected from its members. HAEWF was registered under the Societies Registration Act and it was decided and resolved by the General Body of sub-committee to have a housing project at Bhubaneswar for its members who are employees of HAL and accordingly funds were collected from its members. The appellant no.2 Niranjan Parida, Managing Director of M/s. Gajanan Property Dealer & Construction Pvt. Ltd. (hereafter ‘the Company’) representing and managing the company, approached HAL Housing Committee with a proposal to provide the required land of fifty acres in Mouza- Jagannath Prasad, Bhubaneswar and accordingly an agreement was executed on 04.02.2009 with a condition that the appellant no.2 would provide land @19.35 lakhs per acre including the cost of land, cost of registration, conversion, mutation and payment of revenue tax upto date of registration within the stipulated period of 31.03.2009 to the individual committee members. The appellant no.2 was given Rs.50,00,000/- (rupees fifty lakhs) as advance for the said purpose but he could not arrange the land during the period of agreement. It is further stated in the first information report that since the appellant no.2 could not provide the required land at Mouza- Jagannath Prasad, he persuaded the committee members promising to provide the required fifty acres of land in Mouza- Dhauli Kausalyapur and accordingly, the second agreement was entered into on 31.07.2009 with a condition to provide land @Rs.20.50 lakhs per acre including the cost of land, cost of registration, conversion, mutation and payment of revenue tax upto the date of registration within the stipulated period of 30.09.2009 to the individual committee members. The appellant no.2 managed to register around ten acres of land in Mouza- Dhauli Kausalyapur in the name of the committee members after receiving an amount of Rs.2.15 crores. The amount was transferred from the committee account to the company account of ICICI Bank, Nayapalli Branch, Bhubaneswar but the appellant no.2 failed to arrange the balance land of forty acres during the agreement period. The amount was transferred from the committee account to the company account of ICICI Bank, Nayapalli Branch, Bhubaneswar but the appellant no.2 failed to arrange the balance land of forty acres during the agreement period. It is further stated in the first information report that the appellant no.2 again came to the committee with a proposal for providing compact land of fifty acres in Mouza- Giringaput and Bhagabatipur, Bhubaneswar and accordingly, the third agreement was executed on 01.01.2010 with a condition to provide fifty acres of land @Rs.22.30 lakhs per acre including the cost of land, cost of registration, conversion, mutation and payment of revenue tax upto date of registration in Mouza- Giringaput and Bhagabatipur within stipulated period of 31.10.2010 to the individual committee members. The ten acres of land in Mouza- Dauli Kausalyapur which was registered the name of the committee was returned to the appellant no.2. It is further stated in the first information report that the appellant no.2 managed to acquire 48.510 acres of land in Mouza- Giringaput and Bhagabatipur and registered around 42.151 acres of land in the name of the committee, however he with an illegal intention and ulterior motive, registered the balance land measuring 6.359 acres in his own name without registering the same in the name of the committee. The appellant no.2 cunningly kept the said land as those were connecting road to the house sites. He had received an amount of Rs.8.62 crores in addition to the amount of Rs.2.65 crores which he had already received earlier. The cost of the land registered in the name of the committee came to Rs.9.40 crores, whereas the appellant no.2 had received an amount of Rs.11.27 crores and thus the balance amount of Rs.1.87 cores remained with the appellant no.2. It is stated that the amount was transferred from the committee account to the company account no.028405003638 of ICICI Bank, Nayapalli Branch, Bhubaneswar through RTGS. The committee ascertained later on that out of the land registered in the name of the committee, an area of Ac.14.00 fell under the category of “Chhota Jungle”. The appellant no.2 did not register the land in the name of the individual committee members as per the conditions of the agreement for which an amount of Rs.42.28 lakhs was marked as expenses on this head. The appellant no.2 did not register the land in the name of the individual committee members as per the conditions of the agreement for which an amount of Rs.42.28 lakhs was marked as expenses on this head. It is further stated in the first information report that as per the third agreement, it was agreed upon between the parties to develop the acquired land before 31st January 2011 but no development took place during the period for which the period was extended upto 31st March 2012 by the minutes of the meeting dated 25th July 2011 agreed and signed by both the parties & again it was extended upto 10th June 2012 by the minutes of the meeting dated 22-24/01/2012 agreeing upon the rates annexed to the said minutes of meeting. It is further stated in the first information report that on the request of the appellant no.2, an amount of rupees fifty five lakhs was paid to him as advance through RTGS to his company account no.028405003638 of ICICI Bank, Nayapalli Branch, Bhubaneswar for development of the land out of the contract amount of Rs.5.06 crores. After receiving the advance amount, the appellant no.2 did not do any developmental work and on repeated approaches, he demanded more money to start the development work. After repeated reminders, the appellant no.2 did not turn up to settle his account and he cunningly took away the excess amount from the committee and created compelling circumstances to fall in his trap. In spite of several requests and reminders, the appellant no.2 did not hand over the original sale deeds of the land arranged and sold by him. He did not hand over the relevant connected documents and also did not do anything regarding conversion and mutation of the property. He deliberately did not return the land purchased in his name by utilizing the money of the committee and registered the connecting roads in his name with an ulterior motive. He did not hand over the relevant connected documents and also did not do anything regarding conversion and mutation of the property. He deliberately did not return the land purchased in his name by utilizing the money of the committee and registered the connecting roads in his name with an ulterior motive. It is further stated in the first information report that the appellant no.2 had misappropriated an amount of Rs.2.84 crores (an amount of Rs.1.87 crores for the land, Rs.55 lakhs as advance for development of site and Rs.42 lakhs for registration and conversion charges) for which proper legal action is necessary to be initiated against him for recovery of the land measuring area Ac.6.359 purchased in his name by utilizing the committee money and the excess amount Rs.2.84 crores taken by him and that the appellant no.2 had kept all the original documents with him with an ulterior motive. It is further stated in the first information report that at the time of taking possession of the land, it was noticed that during land procurement, the land broker engaged by the appellant no.2 and the land owners were not paid their dues as per the promises and assurances made to them, which is against the spirit and interest of the agreement and therefore, the appellant no.2 had committed breach of trust by not utilizing the money for which he had received the amount. The informant remained unaware as to how much land was free from dispute as the appellant no.2 illegally held all the original documents and the entire linked documents with him with an intention to put the committee in deep trouble. 3. On the basis of the first information report lodged by the opposite party no.2 Rajaram Mohanty, E.O.W., P.S., Bhubaneswar Case No.11 dated 27.04.2014 was registered under sections 420, 406, 467, 468 read with section 120-B of the Indian Penal Code and section 6 of the OPID Act. During investigation of the case, it was ascertained that HAEWF is a registered society whose objective is to provide housing plots to its committee members. After obtaining a good response from HAL employees to develop a plotted scheme at Bhubaneswar, advance amount of Rs.51,000/- for category-I, Rs.46,000/- for category-II and Rs.41,000/- for category-III along with non-refundable deposit of Rs.1000/- towards membership was deposited by the interested members. After obtaining a good response from HAL employees to develop a plotted scheme at Bhubaneswar, advance amount of Rs.51,000/- for category-I, Rs.46,000/- for category-II and Rs.41,000/- for category-III along with non-refundable deposit of Rs.1000/- towards membership was deposited by the interested members. E.O.W., P.S., Bhubaneswar Case No. 33 of 2013 was instituted on 28.12.2013 under sections 406/420/34 of the Indian Penal Code on the written report of Sumanta Kumar Behera, employee of HAL against the respondent no.2 Rajaram Mohanty and other members of HAL Housing Committee on the allegation of inviting applications from HAL employees to provide land for housing purpose, collecting money and though obtaining their signatures in the sale deeds at factory premises for registration of lands at Giringaput and Bhagabatipur but neither the accused persons in that case handed over the plots nor refunded the amount paid by the informant of that case in spite of repeated request rather demanded more money in the pretext of development charges and stated that if he failed to comply the demand, they would not be responsible for the possession of the land. During course of investigation of E.O.W., P.S., Bhubaneswar Case No. 33 of 2013, it was found that HAL Housing Committee has not cheated the individual members rather the company cheated the members of the HAL. During physical verification of the project, it was ascertained that some of lands purchased by HAL Housing Committee were in their possession and the rest lands were not in their possession. A letter was sent by the Investigating Officer to the respondent no.2 Rajaram Mohanty to intimate the actual area of land in possession of HAL Housing Committee and the value of the land. The HAL Housing Committee in its letter dated 28.04.2015 intimated that the revenue land of Ac.4.572 with a clear title had been arranged by the company in the name of individual members and the rest of the lands are litigated without clear transferable title and not in their possession. It was further found that the total loss incurred by HAL Housing Committee is Rs.10,80,04,440/- It was ascertained that the appellant no.2 as Managing Director of the Company and the appellant no.3 Lilumanjari Parida, Director of the Company made conspiracy with each other and they fabricated false documents with a dishonest intention to cheat HAL Housing Committee with whom agreements have been entered into. They collected crores of rupees from the HAL Housing Committee with dishonest intention and diverted the same for their personal gain. The appellants defaulted and failed to provide the rest land and thus the investigating officer was of the opinion that the appellants nos. 2 and 3 have cheated the HAL Housing Committee and members of HAL and thereby they misappropriated the hardearned money of the employees to the tune of Rs.10,80,04,440/- excluding interests beyond 10.06.2012. Accordingly, while submitting final report in E.O.W., P.S., Bhubaneswar Case No. 33 of 2013, charge sheet was placed in E.O.W., P.S., Bhubaneswar Case No.11 of 2014 against the appellants under sections 420, 406, 467, 468 read with section 120-B of the Indian Penal Code and section 6 of the OPID Act on 12.05.2015. 4. Mr. Susanta Kumar Dash, learned counsel for the appellants contended that as per the agreement between the appellant-company and HAL Housing Committee for a housing project over the land having an extent of Ac.50.00 at Bhubaneswar, the appellant-company arranged almost the required land but the HAL Housing Committee started negotiating with others for entrusting the construction of houses over the lands acquired through the appellant-company in violation of the terms of agreement which stipulated the appellant-company to be entrusted with the construction of houses. Being aggrieved by the conduct of the HAL Housing Committee, the appellant-company instituted a civil suit bearing C.S. No.502 of 2012 on 18.04.2012 against HAL Housing Committee relating to the issues involved in the criminal case which is subjudiced in the Court of learned Civil Judge, Senior Division, Bhubaneswar wherein the plaintiff prayed for passing a decree of permanent injunction restraining the defendant from entering into any agreement with any third party with regard to the construction work over the suit property, with a further prayer for a direction to the defendant to co-operate with the plaintiff for supplying necessary finance for construction work over the suit property and to execute fresh agreements to that effect by supplying drawing, specification etc. of the work to be done. of the work to be done. An application for ad-interim injunction vide I.A. No.351 of 2012 under Order XXXIX Rules 1 & 2 read with section 151 of Code of Civil Procedure was also filed by the appellant-company with a prayer to restrain the HAL Housing Committee from engaging any other person/firm/company for executing the development and construction of the housing project over the suit land and though HAL Housing Committee has not filed the written statement in the Civil Suit but show cause/objection has been filed to I.A. No.351 of 2012. It is further contended that since the appellant-company instituted the aforesaid suit, the HAL Housing Committee, in order to harass and pressurize the appellants to abandon their claim with regard to the construction of houses, initiated the criminal prosecution and during pendency of the criminal proceeding, the HAL Housing Committee entered into agreement with the third parties for construction of the houses. It is further contended that the allegation leveled in the F.I.R. that to the utter surprise of the informant, an area of Ac.14.00 dec. from out of the land registered in the name of the committee was found under the category of ‘Chhota Jungle’, is a motivated one inasmuch as HAL Housing Committee presented a writ petition before this Court on 11.01.2011 vide W.P.(C) No.834 of 2011 which is more than three years prior to the lodging of the first information report and in that writ petition, the HAL Housing Committee claimed change of Kissam of the Stitiban land from ‘Chhota Jungle’ to ‘Gharabadi’ on the basis of field position as well as report of the Revenue Inspector dated 12.10.2010 obtained on the strength of the application of the committee. It is further submitted that the facts narrated in the charge sheet that the HAL Housing Committee is in possession of only four acres of land is completely false inasmuch as an agreement has been signed between the HAL Housing Committee and one Pravakar Swain for the development work for thirty acres of land and after Pravakar Swain left the work, it was given to another organization namely AD Dwellers Pvt. Ltd. and the said company has made construction work of the boundary wall of more than thirty acres of land but thereafter he also left the work. It is vehemently contended that the dispute between the parties is essentially civil in nature and it has been given the colour of a criminal case. It is argued that there is no reasonable basis for the foundation of the accusation and the ingredients of the offences are totally lacking and the investigation has been done in a perfunctory manner and the learned Designated Court mechanically rejected the petition under section 239 of Cr.P.C. and framed charges against the appellants and therefore, the impugned order should be set aside. During course of hearing, the learned counsel for the appellants filed affidavits dated 11.01.2018 and 22.03.2018 annexing various documents which were taken on record. Learned counsel for the appellants relied upon the decisions of the Hon’ble Supreme Court in the cases of Thelapalli Raghavaiah -Vrs.- Station House Officer reported in (2007) 37 Orissa Criminal Reports (SC) 358, Suneet Gupta -Vrs.- Anil Triloknath Sharma reported in (2008) 40 Orissa Criminal Reports (SC) 578, Inder Mohan Goswami -Vrs.- State of Uttaranchal reported in (2008) 39 Orissa Criminal Reports (SC) 188, Joseph Salvaraj A. -Vrs.- State of Gujarat reported (2011) 49 Orissa Criminal Reports (SC) 924, Devendra -Vrs.- State of U.P. reported in (2009) 43 Orissa Criminal Reports (SC) 680, Alpic Finance Ltd. -Vrs.- P. Sadasivan reported in A.I.R. 2001 S.C. 1226, Hridaya Ranjan Pd. Verma -Vrs.- State of Bihar reported in A.I.R. 2000 S.C. 2341, Md. Ibrahim -Vrs.- State of Bihar reported in (2009) 8 Supreme Court Cases 751, Popular Muthiah -Vrs.- State of Tamil Nadu reported in (2006) 34 Orissa Criminal Reports (SC) 749 and State of Orissa -Vrs.- Devendra Nath Padhi reported in (2005) 30 Orissa Criminal Reports (SC) 177. Mr. Bibekananda Bhuyan, learned Addl. Govt. Advocate on the other hand contended that the first information report indicates that despite an agreement between the parties and receipt of a sizable amount belonging to the members of HAL Housing Committee, the appellants acquired Ac.41.219 dec. of land and managed to record Ac.7.073 dec. of land in their names and out of the lands registered in the name of the Committee by the appellants, 14 acres fell under the category of ‘Chhota Jungle’. of land and managed to record Ac.7.073 dec. of land in their names and out of the lands registered in the name of the Committee by the appellants, 14 acres fell under the category of ‘Chhota Jungle’. It is contended that the appellants were fully aware that the 14 acres of lands were inalienable in view of the provisions of the Forest (Conservation) Act, 1980 and the decision of the Hon’ble Supreme Court in the case of T.N. Godavaraman. No permission as required under the Orissa Communal Forest and Private Lands (Prohibition of Alienation) Act, 1948 (Act 1 of 1948) (hereafter ‘1948 Act’) was obtained from the Collector and thus fraud has been perpetuated and the so-called alienation are mere eye wash being contrary to law. The appellants having taken the consideration money have defrauded the informant’s society by alienating ‘Jungle kissam’ of land in spite of statutory prohibition. It is further contended that though the appellants by way of affidavits have filed several documents to indicate that the informant was aware about the Kissam of land and as such they cannot be held liable for fraud because of statutory prohibition, but those documents were neither produced before the learned trial Court during consideration of the application for discharge nor taken as grounds at the time of filing of the appeal and therefore, those documents and contentions cannot be taken into account in the present appeal. Learned counsel relied upon the decisions in cases of Chandradhoja Sahoo -Vrs.- State of Orissa reported in (2012) 13 Supreme Court Cases 419, Smt. Basanti Kumari Sahu -Vrs.- State of Orissa reported in 81 (1996) Cuttack Law Times 571, State of Orissa -Vrs.- Dillip Kumar Sahoo reported in 2017 (I) Orissa Law Reviews 214, Birendra Nath Das -Vrs.- State of Orissa reported in 123 (2017) Cuttack Law Times 752 and Chandradhoja Sahoo -Vrs.- Member, Board of Revenue, Orissa reported in 2009 (II) Orissa Law Reviews 8. Scope of discharging an accused under section 239 of Cr.P.C. 5. Section 239 of Cr.P.C., inter alia, provides that if upon considering the police report and the documents sent with it under section 173 of Cr.P.C. and making such examination, if any, of the accused and after giving prosecution and accused an opportunity being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused and record his reasons for so doing. The object of discharge under section 239 of Cr.P.C. is to save the accused from unnecessary and prolonged harassment. When the allegations are baseless or without foundation and no prima facie case are made out, it is just and proper to discharge the accused to prevent abuse of process of the Court. If there is no ground for presuming that accused has committed an offence, the charges must be considered to be groundless. The ground may be any valid ground including the insufficiency of evidence to prove the charge. When the materials at the time of consideration for framing the charge are of such a nature that if unrebutted, it would make out no case whatsoever, the accused should be discharged. Appreciation of evidence is an exercise that this Court is not to undertake at the stage of consideration of the application for discharge. The truth, veracity and effect of the materials proposed to be adduced by the prosecution during trial are not to be meticulously adjudged. The likelihood of the accused in succeeding to establish his probable defence cannot be a ground for his discharge. In case of Amit Kapoor -Vrs.- Ramesh Chander reported in (2012) 9 Supreme Court Cases 460, it is held as follows:- “19. At the initial stage of framing of a charge, the Court is concerned not with proof but with a strong suspicion that the accused has committed an offence, which, if put to trial, could prove him guilty. All that the Court has to see is that the material on record and the facts would be compatible with the innocence of the accused or not. The final test of guilt is not to be applied at that stage.” In case of State of Madhya Pradesh -Vrs.- Mohanlal Soni reported in A.I.R. 2000 S.C. 2583, it is held that at the stage of framing charge, the Court has to prima facie consider whether there is sufficient ground for proceeding against the accused. The Court is not required to appreciate the evidence to conclude whether the materials produced are sufficient or not for convicting the accused. If the evidence which the prosecution proposes to produce to prove the guilt of the accused, even if fully accepted before it is challenged by the cross-examination or rebutted by the defence evidence, if any, cannot show that accused committed the particular offence then the charge can be quashed. If the evidence which the prosecution proposes to produce to prove the guilt of the accused, even if fully accepted before it is challenged by the cross-examination or rebutted by the defence evidence, if any, cannot show that accused committed the particular offence then the charge can be quashed. In case of A.R. Saravanan -Vrs.- State reported in 2003 Criminal Law Journal 1140, it is held as follows:- “7. Under section 239 of Cr.P.C., it is the duty of the trial Court to look into whether there is ground for presuming commission of offence or whether the charge is groundless. The trial court is required to see whether a prima facie case pertaining to the commission of offence is made out or not. At the stage of 239 of Cr.P.C., the trial court has to examine the evidence only to satisfy that prima facie case is made out or not. The Magistrate has to consider the report of the prosecution, documents of both sides, hear the arguments of the accused and prosecution and arrive at a conclusion that the materials placed, on their face value would furnish a reasonable basis or foundation for accusation. 8. The words “groundless” employed in Section 239 means there is no ground for presuming that the accused is guilty. When there is no ground for presuming that the accused has committed an offence, the charge must be considered as groundless.” Scope of producing materials by accused at the stage of section 239 of Cr.P.C. 6. At the stage of framing of charge, in rare and exceptional cases, if the accused produces materials before the High Court which is based on sound, reasonable and indubitable facts and cannot be justifiably refuted by the prosecution and which are of sterling and impeccable quality or on the basis of admitted documents which would rule out and displace the assertions contained in the charges leveled against him, in order to prevent abuse of process of the Court and to secure the ends of justice, the High Court even at the stage of section 239 of Cr.P.C. can take into account such materials. However, the High Court at that stage should not enter into appreciation of evidence to verify if the defence plea can be established by the accused or not. However, the High Court at that stage should not enter into appreciation of evidence to verify if the defence plea can be established by the accused or not. In case of State of Orissa -Vrs.- Debendra Nath Padhi reported in (2005) 30 Orissa Criminal Reports (SC) 177, it is held as follows:- “7. Similarly, in respect of warrant cases triable by Magistrates, instituted on a police report, Sections 239 and 240 of the Code are the relevant statutory provisions. Section 239 requires the Magistrate, to consider ‘the police report and the documents sent with it under Section 173 and, if necessary, examine the accused and after giving accused an opportunity of being heard, if the Magistrate considers the charge against the accused to be groundless, the accused is liable to be discharged by recording reasons thereof. 8. What is to the meaning of the expression ‘the record of the case’ as used in Section 227 of the Code. Though the word ‘case’ is not defined in the Code but Section 209 throws light on the interpretation to be placed on the said word. Section 209 which deals with the commitment of case to Court of Session when offence is triable exclusively by it, inter alia, provides that when it appears to the Magistrate that the offence is triable exclusively by the Court of Session, he shall commit ‘the case’ to the Court of Session and send to that Court ‘the record of the case’ and the document and articles, if any, which are to be produced in evidence and notify the Public Prosecutor of the commitment of the case to the Court of Session. It is evident that the record of the case and documents submitted therewith as postulated in Section 227 relate to the case and the documents referred in Section 209. That is the plain meaning of Section 227 read with Section 209 of the Code. No provision in the Code grants to the accused any right to file any material or document at the stage of framing of charge. That right is granted only at the stage of the trial. xx xx xx xx xx xx xx 16. That is the plain meaning of Section 227 read with Section 209 of the Code. No provision in the Code grants to the accused any right to file any material or document at the stage of framing of charge. That right is granted only at the stage of the trial. xx xx xx xx xx xx xx 16. All the decisions, when they hold that there can only be limited evaluation of materials and documents on record and sifting of evidence to prima facie find out whether sufficient ground exists or not for the purpose of proceeding further with the trial, have so held with reference to materials and documents produced by the prosecution and not the accused. The decisions proceed on the basis of settled legal position that the material as produced by the prosecution alone is to be considered and not the one produced by the accused. The latter aspect relating to the accused though has not been specifically stated, yet it is implicit in the decisions. It seems to have not been specifically so stated as it was taken to be well settled proposition. This aspect, however, has been adverted to in State Anti-Corruption Bureau, Hyderabad and Anr. -Vrs.- P. Suryaprakasam : 1999 SCC (Crl.) 373 where considering the scope of Sections 239 and 240 of the Code it was held that at the time of framing of charge, what the trial Court is required to, and can consider are only the police report referred to under Section 173 of the Code and the documents sent with it. The only right the accused has at that stage is of being heard and nothing beyond that (emphasis supplied). The judgment of the High Court quashing the proceedings by looking into the documents filed by the accused in support of his claim that no case was made out against him even before the trial had commenced was reversed by this Court. It may be noticed here that learned counsel for the parties addressed the arguments on the basis that the principles applicable would be same - whether the case be under Sections 227 and 228 or under Sections 239 and 240 of the Code. xx xx xx xx xx xx xx 18......The scheme of the Code and object with which Section 227 was incorporated and Sections 207 and 207(A) omitted have already been noticed. xx xx xx xx xx xx xx 18......The scheme of the Code and object with which Section 227 was incorporated and Sections 207 and 207(A) omitted have already been noticed. Further, at the stage of framing of charge, roving and fishing inquiry is impermissible. If the contention of the accused is accepted, there would be a mini trial at the stage of framing of charge. That would defeat the object of the Code. It is well-settled that at the stage of framing of charge the defence of the accused cannot be put forth. The acceptance of the contention of the learned counsel for the accused would mean permitting the accused to adduce his defence at the stage of framing of charge and for examination thereof at that stage which is against the criminal jurisprudence. By way of illustration, it may be noted that the plea of alibi taken by the accused may have to be examined at the stage of framing of charge if the contention of the accused is accepted despite the well settled proposition that it is for the accused to lead evidence at the trial to sustain such a plea. The accused would be entitled to produce materials and documents in proof of such a plea at the stage of framing of the charge, in case we accept the contention put forth on behalf of the accused. That has never been the intention of the law well settled for over one hundred years now. It is in this light that the provision about hearing the submissions of the accused as postulated by section 227 is to be understood. It only means hearing the submissions of the accused on the record of the case as filed by the prosecution and documents submitted therewith and nothing more. The expression ‘hearing the submissions of the accused’ cannot mean opportunity to file material to be granted to the accused and thereby changing the settled law. At the state of framing of charge hearing the submissions of the accused has to be confined to the material produced by the police. xx xx xx xx xx xx xx 23. As a result of aforesaid discussion, in our view, clearly the law is that at the time of framing charge or taking cognizance the accused has no right to produce any material. xx xx xx xx xx xx xx 23. As a result of aforesaid discussion, in our view, clearly the law is that at the time of framing charge or taking cognizance the accused has no right to produce any material. Satish Mehra’s case holding that the Trial Court has powers to consider even materials which accused may produce at the stage of section 227 of the Code has not been correctly decided.” In the case of Hem Chand -Vrs.- State of Jharkhand reported in (2008) 40 Orissa Criminal Reports (SC) 272, it is held as follows:- “8. It is beyond any doubt or dispute that at the stage of framing of charge, the Court will not weigh the evidence. The stage for appreciating the evidence for the purpose of arriving at a conclusion as to whether the prosecution was able to bring home the charge against the accused or not would arise only after all the evidences are brought on records at the trial. 9. It is one thing to say that on the basis of the admitted documents, the appellant was in a position to show that the charges could not have been framed against him, but it is another thing to say that for the said purpose he could rely upon some documents whereupon the prosecution would not rely upon. xx xx xx xx xx xx xx 12. The learned counsel for the CBI is, thus correct in his submission that what has been refused to be looked into by the learned Special Judge related the documents filed by the appellant along with his application for discharge. The Court at the stage of framing charge exercises a limited jurisdiction. It would only have to see as to whether a prima facie case has been made out. Whether a case of probable conviction for commission of an offence has been made out on the basis of the materials found during investigation should be the concern of the Court. It, at that stage, would not delve deep into the matter for the purpose of appreciation of evidence. It would ordinarily not consider as to whether the accused would be able to establish his defence, if any.” In the case of Rukmini Narvekar -Vrs.- Vijaya Satarkekar and others reported in (2008) 41 Orissa Criminal Reports (SC) 853, it is held as follows:- “9. It would ordinarily not consider as to whether the accused would be able to establish his defence, if any.” In the case of Rukmini Narvekar -Vrs.- Vijaya Satarkekar and others reported in (2008) 41 Orissa Criminal Reports (SC) 853, it is held as follows:- “9. In my view, therefore, there is no scope for the accused to produce any evidence in support of the submissions made on his behalf at the stage of framing of charge and only such materials as are indicated in Section 227 Cr.P.C. can be taken into consideration by the learned Magistrate at that stage. However, in a proceeding taken therefrom under Section 482 Cr.P.C., the Court is free to consider material that may be produced on behalf of the accused to arrive at a decision whether the charge as framed could be maintained. This, in my view, appears to be the intention of the legislature in wording Sections 227 and 228 the way in which they have been worded and as explained in Debendra Nath Padhi case by the larger Bench therein to which the very same question had been referred. xx xx xx xx xx xx xx 28(17)......Thus in our opinion, while it is true that ordinarily defence material cannot be looked into by the Court while framing of the charge in view of D.N. Padhi’s case, there may be some very rare and exceptional cases where some defence material when shown to the trial Court would convincingly demonstrate that the prosecution version is totally absurd or preposterous, and in such very rare cases, the defence material can be looked into by the Court at the time of framing of the charges or taking cognizance. xx xx xx xx xx xx xx 29(18). In our opinion, therefore, it cannot be said as an absolute proposition that under no circumstances can the Court look into the material produced by the defence at the time of framing of the charges, though this should be done in very rare cases i.e. where the defence produces some material which convincingly demonstrates that the whole prosecution case is totally absurd or totally concocted. We agree with Sri Lalit that in some very rare cases the Court is justified in looking into the material produced by the defence at the time of framing of the charges, if such material convincingly establishes that the whole prosecution version is totally absurd, preposterous and concocted.” Execution of three agreements: Conduct of appellant no.2 7. The first agreement was executed on 04.02.2009 for providing fifty acres of required land in Mouza- Jagannath Prasad, Bhubaneswar. The condition was that the appellant no.2 would provide land @19.35 lakhs per acre including the cost of land, cost of registration, conversion, mutation and payment of revenue tax upto date of registration within the stipulated period of 31.03.2009 to the individual committee members. The appellant no.2 was given Rs.50,00,000/- (rupees fifty lakhs) as advance for the said purpose but he failed to arrange the land during the period of agreement. The second agreement was executed on 31.07.2009 for providing fifty acres of required land in Mouza- Dhauli Kausalyapur. The condition was that the appellant no.2 would provide land @Rs.20.50 lakhs per acre including the cost of land, cost of registration, conversion, mutation and payment of revenue tax upto the date of registration within the stipulated period of 30.09.2009 to the individual committee members. The appellant no.2 managed to register around ten acres of land in Mouza- Dhauli Kausalyapur in the name of the committee members after receiving an amount of Rs.2.15 crores. The appellant no.2 failed to arrange the balance land of forty acres during the agreement period. The third agreement was executed on 01.01.2010 for providing fifty acres of required compact land in Mouza- Giringaput and Bhagabatipur in Bhubaneswar. The condition was that the appellant no.2 would provide land @ Rs.22.30 lakhs per acre including the cost of land, cost of registration, conversion, mutation and payment of revenue tax upto date of registration within the stipulated period of 31.10.2010 to the individual committee members. The ten acres of land in Mouza- Dauli Kausalyapur which was registered the name of the committee was returned to the appellant no.2. It is the prosecution case that after execution of third agreement, the appellant no.2 managed to acquire Ac.48.510 dec. of land in Mouza- Giringaput and Bhagabatipur in Bhubaneswar but registered around 42.151 acres of land in the name of the committee. It is the prosecution case that after execution of third agreement, the appellant no.2 managed to acquire Ac.48.510 dec. of land in Mouza- Giringaput and Bhagabatipur in Bhubaneswar but registered around 42.151 acres of land in the name of the committee. He registered the balance land measuring 6.359 acres in his own name with an illegal intention and ulterior motive. The lands kept by the appellant no.2 were connecting road to the house sites. It is the further prosecution case that the appellant no.2 received an amount of Rs.8.62 crores in addition to the amount of Rs.2.65 crores which he had already received earlier and thus the total amount received was Rs.11.27 crores. The cost of the land registered in the name of the committee was Rs.9.40 crores and thus the balance amount of Rs.1.87 cores remained with the appellant no.2. Filing of Civil Suit by appellant-company: Case of company 8. The first information report was lodged on 27.04.2014. It is not in dispute that two years prior to the lodging of the first information report, the appellant-company instituted a civil suit bearing C.S. No.502 of 2012 on 18.04.2012 against HAL Housing Committee in the Court of learned Civil Judge, Senior Division, Bhubaneswar wherein the plaintiff prayed for passing a decree of permanent injunction restraining the defendant from entering into any agreement with any third party with regard to the construction work over the suit property, with a further prayer for a direction to the defendant to co-operate with the plaintiff for supplying necessary finance for construction work over the suit property and to execute fresh agreements to that effect by supplying drawing, specification etc. of the work to be done. An application for ad-interim injunction vide I.A. No.351 of 2012 under Order XXXIX Rules 1 & 2 read with section 151 of Code of Civil Procedure was also filed in the said Civil Suit by the appellant-company with a prayer to restrain the HAL Housing Committee from engaging any other person/firm/company for executing the development and construction of the housing project over the suit land and though HAL Housing Committee has not filed the written statement in the Civil Suit but show cause/objection has been filed to I.A. No.351 of 2012. In order to appreciate the nature of dispute between the parties, the recitals of the third agreement which was executed on 01.01.2010 are very relevant. In order to appreciate the nature of dispute between the parties, the recitals of the third agreement which was executed on 01.01.2010 are very relevant. This agreement executed between the appellant-company and HAL Housing Committee indicates that in order to have a housing complex at Bhubaneswar, the HAL Housing Committee was searching for a prospective builder and estate developer and constructor, who can arrange and develop the land so also for construction of the housing project and the appellant-company who was dealing with sale/purchase of landed property and construction thereof agreed for such arrangement, development of land and also agreed to undertake the housing project over the site. The HAL Housing Committee agreed upon the proposal made by the appellant-company for establishing the house project at Mouza- Giringaput and Bhagabatipur after visiting the proposal site and being satisfied over the location of the area. As per the agreement, it was the responsibility of the appellant-company for arranging around fifty acres of land for the proposed housing project. The appellant-company shall give the copy of legal opinion obtained from a legal practitioner about the title/ownership of each plot to the HAL Housing Committee before the execution of sale deeds of the properties. The appellant-company shall make the development of the proposed housing site after registration of the properties in the name of the HAL Housing Committee or its nominated persons which includes leveling of the land, construction of metal and morum road, construction of retraining walls of adequate size and shape in the periphery of the proposed site, small demarcation stones to be fixed all around the project site and two numbers of gates with security cabins to be constructed at two entry places. In case the HAL Housing Committee or its member desire to provide the construction of individual compound walls to individual units, the construction of those individual compound walls must be given to the appellant-company. In case all the members having individual sub-plots inside the projects provide the individual walls of their respective units, the appellantcompany has to complete the common compound wall all around the project by its own costs. In case all the members having individual sub-plots inside the projects provide the individual walls of their respective units, the appellantcompany has to complete the common compound wall all around the project by its own costs. In the Civil Suit, specific averments have been taken that the HAL Housing Committee fixed the deadline to 31.03.2012 for completion of all the allied works agreed to be done by the appellant-company in respect of acquiring the land but keeping itself away from doing the part of its contract i.e. entrustment of development work of land, by executing agreement for issuing work order and construction of houses over the housing project site and on the day before presentation of the suit, the defendant flatly denied to entrust the development and construction work by executing a fresh agreement and work order. It is further stated in the plaint that the plaintiff had sustained huge loss in arranging the lands and the appellant-company was expecting to get the allotment of development and construction work as agreed upon and the defendant had no right to stop construction work of the plaintiff or to entrust the work of construction to any other person by entering into any agreement with him. Even though the defendant entered appearance in the Civil Suit but no written statement was filed till the lodging of the first information report. However, objection/show cause has been filed by the HAL Housing Committee in the interim application wherein it is stated that the shifting of project from one place to another by executing three agreements from time to time was only because of non-acquisition of land by the plaintiff and violation of the terms of the contract and at no point of time the plaintiff completed the acquisition of land as per the terms of the agreement. It is further stated in the show cause that by taking the entire amount towards costs of fifty acres of land from the defendant, the plaintiff failed in executing the sale deed within the agreement period and that the land acquired in the name of the committee members is around 41.219 acres whose cost @ 22.30 lakhs per acre is around Rs.9,19,183,70/- and the plaintiff received Rs.11,32,000,00/- which is calculated to be excess amount of Rs.2,12,816,36/- and therefore, the plaintiff had illegally retained the money with him without handing over the land area around 7.073 acre purchased in its name by utilizing the excess amount received from the HAL Housing Committee. It is further stated that the plaintiff has no prima facie case in his favour and the balance of convenience never leans in favour of the plaintiff, rather in favour of the defendant. Whether a civil dispute has been given a colour of criminal offence 9. In case of Thelapalli Raghavaiah -Vrs.- Station House Officer reported in (2007) 37 Orissa Criminal Reports (SC) 358, it is held as follows:- “17. Mr. Singhvi referred to and relied on a decision of this Court in Madhavrao Jiwajirao Scindia and Ors. -Vrs.- Sambhajirao Chandrojirao Angre and Ors. reported in 1988 (1) SCC Page 692 , where this Court had occasion to observe that though a case of breach of trust may be both a civil wrong and a criminal offence but there would be certain situations where it would pre-dominantly be a civil wrong and may or may not amount to a criminal offence. It was also observed that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the Court is as to whether the uncontroverted allegations as made prima facie established the offence. 18. We have carefully gone through the complaint made by the petitioner, and are convinced that the same primarily makes out a civil dispute relating to measurement, though an attempt has been made to give the same a criminal flavour. The High Court rightly held that the entire reading of the complaint does not disclose any offence except a civil dispute between the parties.” In case of Suneet Gupta -Vrs.- Anil Triloknath Sharma reported in (2008) 40 Orissa Criminal Reports (SC) 578, it is held as follows:- “22. The High Court rightly held that the entire reading of the complaint does not disclose any offence except a civil dispute between the parties.” In case of Suneet Gupta -Vrs.- Anil Triloknath Sharma reported in (2008) 40 Orissa Criminal Reports (SC) 578, it is held as follows:- “22. In the case on hand, the High Court was right in coming to the conclusion that a civil dispute - pure and simple - between the parties was sought to be converted into a criminal offence only by resorting to pressure tactics and by taking police help which was indeed abuse of process of law and has been rightly prevented by the High Court.” It prima facie appears that the dispute between the parties arose when HAL Housing Committee tried to enter into an agreement with a third party with regard to the construction work over the lands acquired by the appellant-company and accordingly, the Civil Suit was filed on 18.04.2012 before the learned Civil Judge (Senior Division), Bhubaneswar with a prayer for a decree permanent injunction against the defendant so also a decree for mandatory injunction. An interim application was also filed in the Civil Suit for ad-interim injunction against the defendant to restrain him from engaging any other person/firm/company for executing the development and construction of housing project over the suit land. Documents were filed by the appellants by way of additional affidavit like the agreement dated 01.01.2010, the plaint copy of the Civil Suit, the copy of the interim application, copy of the objection/show cause filed by the defendant and the order sheets of C.S. No.502 of 2012 which were taken on record without any objection from the side of the respondents. These documents having not been refuted by the prosecution can be looked into even at this stage to ascertain the nature of dispute between the parties. Merely because vital documents were not filed before the trial Court at the time of hearing of the petition under section 239 of Cr.P.C. and those were produced before the High Court by the accused while challenging the rejection of the discharge petition, it would be travesty of justice not to consider such documents only on the ground of non-filing of the same before the trial Court. The contention in that respect made by the learned Addl. Govt. Advocate is not acceptable. The contention in that respect made by the learned Addl. Govt. Advocate is not acceptable. In rare and exceptional cases, this Court can entertain the materials produced by the accused in such contingency provided that such materials are based on sound, reasonable and indubitable facts and cannot be justifiably refuted by the prosecution and those are of sterling and impeccable quality. The said principle is also applicable for the admitted documents. In order to prevent abuse of process of the Court and to secure the ends of justice, this Court can take into account such materials even at the stage of section 239 of Cr.P.C. After carefully going through the case records and the undisputed documents filed by the appellants, I am convinced that the dispute between the parties is primarily civil in nature relating to delay in acquiring the lands, violation of certain terms and conditions of agreement, attempt made by the HAL Housing Committee to entrust the development and construction of housing project over the suit land to the third party. Offence under section 420 of the Indian Penal Code 10. The essential ingredients of the offence of “cheating” are as follows: (i) deception of a person either by making a false or misleading representation or by dishonest concealment or by any other act or omission; (ii) fraudulent or dishonest inducement of that person to either deliver any property or to consent to the retention thereof by any person or to intentionally induce that person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived; and (iii) such act or omission causing or is likely to cause damage or harm to that person in body, mind, reputation or property. To constitute an offence under section 420 of the Indian Penal Code, there should not only be cheating, but as a consequence of such cheating, the accused should have dishonestly induced the person deceived (i) to deliver any property to any person, or (ii) to make, alter or destroy wholly or in part a valuable security (or anything signed or sealed and which is capable of being converted into a valuable security). (Ref:- Md. (Ref:- Md. Ibrahim –Vrs.- State of Bihar reported in (2009) 8 Supreme Court Cases 751) In case of Inder Mohan Goswami -Vrs.- State of Uttaranchal reported in (2008) 39 Orissa Criminal Reports (SC) 188, it is held that to hold a person guilty of ‘cheating’, it is necessary to show that he had a fraudulent or dishonest intention at the time of making the promise. From his mere failure to subsequently keep a promise, one cannot presume that he all along had a culpable intention to break the promise from the beginning. In case of Joseph Salvaraj A. -Vrs.- State of Gujarat reported in (2011) 49 Orissa Criminal Reports (SC) 924, it is held that under section 420 of the Indian Penal Code, it is inbuilt that there has to be a dishonest intention from the very beginning, which is sine qua non to hold the accused guilty for commission of the said offence. In case of Devendra -Vrs.- State of U.P. reported in (2009) 43 Orissa Criminal Reports (SC) 680, it is held that a misrepresentation from the very beginning is a sine qua non for constitution of an offence of cheating, although in some cases, an intention to cheat may develop at a later stage of formation of the contract. In case of Alpic Finance Ltd. -Vrs.- P. Sadasivan reported in A.I.R. 2001 S.C. 1226, it is held as follows:- “10. The facts in the present case have to be appreciated in the light of the various decisions of this Court. When somebody suffers injury to his person, property or reputation, he may have remedies both under civil and criminal law. The injury alleged may form basis of civil claim and may also constitute the ingredients of some crime punishable under criminal law. When there is dispute between the parties arising out of a transaction involving passing of valuable properties between them, the aggrieved person may have right to sue for damages or compensation and at the same time, law permits the victim to proceed against the wrongdoer for having committed an offence of criminal breach of trust or cheating. Here the main offence alleged by the appellant is that respondents committed the offence under Section 420 I.P.C. and the case of the appellant is that respondents have cheated him and thereby dishonestly induced him to deliver property. Here the main offence alleged by the appellant is that respondents committed the offence under Section 420 I.P.C. and the case of the appellant is that respondents have cheated him and thereby dishonestly induced him to deliver property. To deceive is to induce a man to believe that a thing is true which is false and which the person practicing the deceit knows or believes to be false. It must also be shown that there existed a fraudulent and dishonest intention at the time of commission of the offence. There is no allegation that the respondents made any willful misrepresentation. Even according to the appellant, parties entered into a valid lease agreement and the grievance of the appellant is that the respondents failed to discharge their contractual obligations. In the complaint, there is no allegation that there was fraud or dishonest inducement on the part of the respondents and thereby the respondents parted with the property. It is trite law and common sense that an honest man entering into a contract is deemed to represent that he has the present intention of carrying it out but if, having accepted the pecuniary advantage involved in the transaction, he fails to pay his debt, he does not necessarily evade the debt by deception. 11. Moreover, the appellant has no case that the respondents obtained the article by any fraudulent inducement or by willful misrepresentation. We are told that respondents, though committed default in paying some installments, have paid substantial amount towards the consideration. 12. Having regard to the facts and circumstances, it is difficult to discern an element of deception in the whole transaction, whereas it is palpably evident that the appellant had an oblique motive of causing harassment to the respondents by seizing the entire articles through magisterial proceedings. We are of the view that the learned judge was perfectly justified in quashing the proceedings and we are disinclined to interfere in such matters.” In case of Hridaya Ranjan Pd. Verma -Vrs.- State of Bihar reported in A.I.R. 2000 S.C. 2341, it is held as follows:- “13. We are of the view that the learned judge was perfectly justified in quashing the proceedings and we are disinclined to interfere in such matters.” In case of Hridaya Ranjan Pd. Verma -Vrs.- State of Bihar reported in A.I.R. 2000 S.C. 2341, it is held as follows:- “13. Cheating is defined in Section 415 of the Code as, “Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to “cheat”. Explanation - A dishonest concealment of facts is a deception within the meaning of this section. The section requires - (1) Deception of any person. (2) (a) Fraudulently or dishonestly inducing that person (i) to deliver any property to any person; or (ii) to consent that any person shall retain any property; or (b) intentionally inducing that person to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body mind, reputation or property. 14. On a reading of the section, it is manifest that in the definition there are set forth two separate classes of acts which the person deceived may be induced to do. In the first place he may be induced fraudulently or dishonestly to deliver any property to any person. The second class of acts set forth in the section is the doing or omitting to do anything which the person deceived would not do or omit to do if he were not so deceived. In the first class of cases the inducing must be fraudulent or dishonest. In the second class of acts, the inducing must be intentional but not fraudulent or dishonest. 15. In determining the question, it has to be kept in mind that the distinction between mere breach of contract and the offence of cheating is a fine one. In the first class of cases the inducing must be fraudulent or dishonest. In the second class of acts, the inducing must be intentional but not fraudulent or dishonest. 15. In determining the question, it has to be kept in mind that the distinction between mere breach of contract and the offence of cheating is a fine one. It depends upon the intention of the accused at the time to inducement which may be judged by his subsequent conduct but for this subsequent conduct is not the sole test. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction, that is the time when the offence is said to have been committed. Therefore it is the intention which is the gist of the offence. To hold a person guilty of cheating, it is necessary to show that he had fraudulent or dishonest intention at the time of making the promise. 16. From his mere failure to keep up promise subsequently such a culpable intention right at the beginning, that is, when he made the promise cannot be presumed.” It is the prosecution case that after the execution of the third agreement on 01.01.2010 for providing fifty acres of required compact land in Mouza-Giringaput and Bhagabatipur in Bhubaneswar, the appellant no.2 managed to acquire Ac.48.510 dec. of land in Mouza-Giringaput and Bhagabatipur but registered around Ac.42.151 dec. of land in the name of the committee and he registered the balance land measuring Ac.6.359 dec. in his own name and the lands kept by the appellant no.2 were connecting road to the house sites. Even when the second agreement was executed on 31.07.2009 for providing fifty acres of required land in Mouza- Dhauli Kausalyapur, the appellant no.2 managed to register around ten acres of land in Mouza-Dhauli Kausalyapur in the name of the committee members which were returned to the appellant no.2 after execution of third agreement. Thus after executing agreement and taking money for providing land, the appellant no.2 has not sat idle rather made sincere attempt to locate the lands at the assured places at Bhubaneswar and was successful to a large extent and also got it registered in the name of the HAL Housing Committee. What was the genuine grievance of the appellants for which the appellant no.2 retained and registered Ac.6.359 dec. What was the genuine grievance of the appellants for which the appellant no.2 retained and registered Ac.6.359 dec. in the name of the company and did not register the same in the name of the committee is a factor which is the subject matter of the Civil Suit. In view of the foregoing discussions, I am of the humble view that there is absence of any prima facie material to show that representation which was made to the committee by the appellant no.2 was false to his knowledge and it was made in order to deceive the committee. There is also nothing on record to show that the intention of the appellant no.2 was dishonest at the very time when he made the promise and entered into a transaction with the committee to part with money. Therefore, on the basis of the available materials, it cannot be said that there existed any fraudulent and dishonest intention at the time of execution of agreement or the appellant no.2 made any willful misrepresentation. Even if it is the prosecution case that the appellant no.2 failed to discharge the contractual obligations to some extent but mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction. Without fraudulent inducement or willful misrepresentation, mere failure to keep up the promise subsequently cannot be a ground to attract the ingredients of the offence of cheating. Therefore, I am of the humble view that in the factual scenario, the ingredients of offence under section 420 of the Indian Penal Code are not attracted. Offence under section 406 of the Indian Penal Code 11. Section 406 of the Indian Penal Code prescribes punishment for criminal breach of trust which is defined under section 405 of the Indian Penal Code. Offence under section 406 of the Indian Penal Code 11. Section 406 of the Indian Penal Code prescribes punishment for criminal breach of trust which is defined under section 405 of the Indian Penal Code. A careful reading of the section 405 Indian Penal Code shows that a criminal breach of trust involves the following ingredients: (a) a person should have been entrusted with property, or entrusted with dominion over property; (b) that person should dishonestly misappropriate or convert to his own use that property, or dishonestly use or dispose of that property or wilfully suffer any other person to do so; (c) that such misappropriation, conversion, use or disposal should be in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract which the person has made, touching the discharge of such trust. The gist of the offence under section 405 of the Indian Penal Code is misappropriation done in a dishonest manner. There are two distinct parts of the said offence. The first involves the fact of entrustment, wherein an obligation arises in relation to the property over which dominion or control is acquired. The second part deals with misappropriation which should be contrary to the terms of the obligation which is created. To make out a case of criminal breach of trust, it is not sufficient to show that money has been retained by the appellants. It must also be shown that the appellants dishonestly disposed of the same in some way or dishonestly retained the same. The mere fact that the appellants did not pay the money to the informant does not amount to criminal breach of trust. It is the case of the informant as per the first information report that an excess amount of Rs.2.84 crores (an amount of Rs.1.87 crores for the land, Rs.55 lakhs as advance for development of site and Rs.42 lakhs for registration and conversion charges) has been retained by the appellant no.2 and therefore, he has misappropriated such amount. Much prior to the lodging of the F.I.R., the appellant has approached the learned Civil Judge, Senior Division, Bhubaneswar in C.S. No.502 of 2012 and also filed an interim application against HAL Housing Committee praying for certain reliefs as already stated. Much prior to the lodging of the F.I.R., the appellant has approached the learned Civil Judge, Senior Division, Bhubaneswar in C.S. No.502 of 2012 and also filed an interim application against HAL Housing Committee praying for certain reliefs as already stated. Whether the terms and conditions of the agreement between the parties have been flouted, whether the appellants would be entitled to the reliefs sought for in the Civil Suit and interim application and whether there is any excess payment of money to the appellant no.2 can be better adjudicated by the Civil Court by giving due opportunity of hearing to the respective sides. In the background of civil dispute between the parties, mere fact that the appellant no.2 did not refund the excess money which he allegedly received from the informant, does not amount to criminal breach of trust. Therefore, I am of the humble view that in the factual scenario, the ingredients of offence under section 406 of the Indian Penal Code are not attracted. Offences under sections 467 and 468 of the Indian Penal Code 12. The basic ingredients of the offence under section 467 of the Indian Penal Code are that (i) the document in question is forged; (ii) the accused forged it and (iii) the document is one of the kinds enumerated in the said section. Section 468 of the Indian Penal Code applies to those cases where forgery has been committed for the purpose of cheating. If it is proved that the purpose of the offender in committing the ‘forgery’ is to obtain property dishonestly or if the guilty purpose comes within the definition of ‘cheating’ as defined under section 415 of the Indian Penal Code then his act would be punishable under section 468 of the Indian Penal Code. For both these offences, the very first thing which is required to be proved is that a ‘forgery’ as defined under sections 463 and 464 of the Indian Penal Code have been committed. It is contended that by the learned counsel for the State that since out of the lands registered in the name of the Committee by the appellants, 14 acres fell under the category of ‘Chhota Jungle’ which are inalienable and no permission was obtained from the Collector as required under 1948 Act, therefore, fraud has been perpetuated and so-called alienation is a mere eye wash being contrary to law. The decisions placed by the learned counsel for the State indicate that section 3 of 1948 Act contains a non-obstante clause, which prohibits alienation of communal forest and private lands and further prohibits a landlord from selling, mortgaging, leasing or otherwise assigning or alienating or converting into raiyati land any communal forest or private land or creating any occupancy rights therein, without the previous sanction of the Collector which of course would not be applicable in prohibiting a landlord from leasing out his private land for a period not exceeding two years and section 4 provides transaction of the nature specified in section 3 to be void. In the case in hand, more than three years prior to the lodging of the first information report, HAL Housing Committee approached this Court on 11.01.2011 in W.P.(C) No. 834 of 2011 with a prayer to direct the Tahasildar, Bhubaneswar to change the Kissam of Plot No.5 under Khata No.176 of Mouza- Giringaput which was mentioned as ‘Chhota Jungle’ in the 1962 settlement R.O.R. and this Court as per order dated 13.12.2011 while disposing of the writ petition, directed the petitioner to approach the appropriate authority under section 58 of the Odisha Land Reforms Act, 1960. The averments made in the writ petition filed by the HAL Housing Committee clearly indicate that being aware of the fact in the R.O.R., the Kissam of the land was mentioned as ‘Chhota Jungle’, they purchased the land and approached different authorities since 2010 including this Court twice i.e. W.P.(C) No.16482 of 2010 and W.P.(C) No. 834 of 2011 for conversion of the status of the land, as the same Kissam as per 1962 settlement ROR was not in existence in the field and since the Government had decided to give the facility to the land owner for changing the Kissam and thereby raising the land revenue. Therefore, the transfer of land recorded under the Kissam ‘Chhota jungle’ was within the knowledge of both the parties and the requisite mens rea of forgery is hopelessly found to be absent and it cannot be said any fraud has been perpetuated in the alienation or that the execution of the sale deed comes within ‘making a false document’ as defined under section 464 of the Indian Penal Code. Therefore, I am of the humble view that in the factual scenario, the ingredients of offence under sections 467 and 468 of the Indian Penal Code are not attracted. Offence under section 120-B of the Indian Penal Code 13. Section 120-B of the Indian Penal Code prescribes punishment for criminal conspiracy which is defined under section 120-A of the Indian Penal Code. In case of Devender Pal Singh -Vrs.- State National Capital Territory of Delhi reported in (2002) 5 Supreme Court Cases 234, it is held that the element of a criminal conspiracy consists of (a) an object to be accomplished, (b) a plan or scheme embodying means to accomplish that object, (c) an agreement or understanding between two or more of the accused persons whereby they become definitely committed to co-operate for the accomplishment of the object by the means embodied in the agreement, or by any effectual means, (d) in the jurisdiction where the statute required an overt act. The essence of a criminal conspiracy is the unlawful combination and ordinarily the offence is complete when the combination is framed. From this, it necessarily follows that unless the statute so requires, no overt act need be done in furtherance of the conspiracy, and that the object of the combination need not be accomplished, in order to constitute an indictable offence. Law making conspiracy a crime is designed to curb immoderate power to do mischief which is gained by a combination of the means. The encouragement and support which co-conspirators give to one another rendering enterprise possible which, if left to individual effort, would have been impossible, furnish the ground for visiting conspirators and abettors with condign punishment. The conspiracy is held to be continued and renewed as to all its members wherever and whenever any member of the conspiracy acts in furtherance of the common design. For an offence punishable under section 120-B of the Indian Penal Code, the prosecution need not necessarily prove that the perpetrators expressly agree to do or cause to be done illegal act; the agreement may be proved by necessary implication. Offence of criminal conspiracy has its foundation in an agreement to commit an offence. A conspiracy consists not merely in the intention of two or more, but in the agreement of two or more to do an unlawful act by unlawfulmeans. Offence of criminal conspiracy has its foundation in an agreement to commit an offence. A conspiracy consists not merely in the intention of two or more, but in the agreement of two or more to do an unlawful act by unlawfulmeans. There is no iota of material in the chargesheet to indicate that there was any criminal conspiracy between the appellants for doing an unlawful act by unlawful means rather the appellant no.2 on behalf of the company lawfully entered into a contract with the HAL Housing Committee and did his best in acquiring the lands and registering the lands in the name of the company in a lawful manner and as such the ingredients of offence under section 120-B of the Indian Penal Code are not attracted. Offence under section 6 of the OPID Act 14. Section 6 of the OPID Act deals with punishment for default in repayment of deposits and interests honouring the commitment. In order to attract the ingredients of the offence, the following aspects are to be proved:- (i) Default in returning the deposit by any Financial Establishment; or (ii) Default in payment of interest on the deposit or failure to return in any kind by any Financial Establishment; or (iii) Failure to render service by any Financial Establishment for which the deposits have been made. In the event any of the aforesaid aspects is proved, every person responsible for the management of the affairs of the Financial Establishment shall be held guilty. ‘Financial Establishment’ has been defined under section 2(d) of the OPID Act and ‘deposit’ has been defined under section 2(b) of the OPID Act. The word ‘default’ in section 6 of the OPID Act has been used in conjunction with honouring the commitment and therefore, it depends upon the reciprocal promises. The material available on record indicate that after several round of discussions and execution of successive agreements, the job of arranging a sizable extent of land at Bhubaneswar was entrusted to the company by the HAL Housing Committee. It was a herculean task and in spite of that, it appears that the company did his best in arranging a major extent of land. It was a herculean task and in spite of that, it appears that the company did his best in arranging a major extent of land. Dispute arose when the hope of the company to proceed with the housing project on the acquired land as a part of composite agreement was shattered by the conduct of the committee in making attempt to hand over the housing project to a 3rd party. Therefore, it is difficult to fathom that any commitment made by the company was flouted deliberately or that the company committed any default or failed to render any service for which the deposit was accepted. Therefore, the ingredients of the offence under section 6 of the OPID Act are grossly lacking. Scope of interference in exercise of Appellate Jurisdiction 15. There is no dispute that this appeal has been filed under section 13 of the OPID Act as the appellants are aggrieved by the order of the Designated Court in rejecting the petition under section 239 of Cr.P.C. for discharge and consequently framing charges. In case of Popular Muthiah -Vrs.- State of Tamil Nadu reported in (2006) 34 Orissa Criminal Reports (SC) 749, it is held that the High Court while exercising its revisional or appellate power, may exercise its inherent powers, both in relation to substantive as also procedural matters. In respect of the incidental or supplemental power, evidently the High Court can exercise its inherent jurisdiction irrespective of the nature of the proceedings. It is not trammeled by procedural restrictions and the power can be exercised suo motu in the interest of justice. If such a power is not conceded, it may even lead to injustice to an accused. It seems that the Investigating Officer has not correctly assessed the nature of dispute between the parties and in a mechanical manner filed the charge sheet. The truth has been kept behind the curtain deliberately and therefore, there is malafideness and arbitrariness in the action of the investigating agency to harass the appellants. In case of State of Bihar and Anr. -Vrs.- P.P. Sharma reported in A.I.R. 1991 S.C. 1260, it is held as follows:- “47. The investigating officer is the arm of the law and plays pivotal role in the dispensation of criminal justice and maintenance of law and order. In case of State of Bihar and Anr. -Vrs.- P.P. Sharma reported in A.I.R. 1991 S.C. 1260, it is held as follows:- “47. The investigating officer is the arm of the law and plays pivotal role in the dispensation of criminal justice and maintenance of law and order. The police investigation is, therefore, the foundation stone on which the whole edifice of criminal trial rests an error in its chain of investigation may result in miscarriage of justice and the prosecution entails with acquittal. The duty of the investigating officer, therefore, is to ascertain facts, to extract truth from half-truth or garbled version, connecting the chain of events. Investigation is a tardy and tedious process. Enough power, therefore, has been given to the police officer in the area of investigatory process, granting him or her great latitude to exercise his discretionary power to make a successful investigation. It is by his action that law becomes an actual positive force. Often crimes are committed in secrecy with dexterity and at high places. The investigating officer may have to obtain information from sources disclosed or undisclosed and there is no set procedure to conduct investigation to connect every step in the chain of prosecution case by collecting the evidence except to the extent expressly prohibited by the Code or the Evidence Act or the Constitution. In view of the arduous task involved in the investigation he has been given free liberty to collect the necessary evidence in any manner he feels expedient, on the facts and in given circumstances. His/her primary focus is on the solution of the crime by intensive investigation. It is his duty to ferret out the truth. Laborious hardwork and attention to the details, ability to sort out through mountainous information, recognized behavioural patterns and above all, to coordinate the efforts of different people associated with various elements of the crime and the case are essential. Diverse methods are, therefore, involved in making a successful completion of the investigation.” In case of Jamuna Chaudhary -Vrs.- State of Bihar reported in 1974 Criminal Law Journal 890, it is held by the Hon’ble Supreme Court as follows: “11. The duty of the Investigating Officers is not merely to bolster up a prosecution case with such evidence as may enable the court to record a conviction but to bring out the real unvarnished truth.” 16. The duty of the Investigating Officers is not merely to bolster up a prosecution case with such evidence as may enable the court to record a conviction but to bring out the real unvarnished truth.” 16. In view of the foregoing discussions, I am of the considered opinion that the Investigating Officer has failed to collect any clinching materials to proceed against the appellants and acted in a most casual and superficial manner. On the available materials on record, I find no prima facie case for commission of the offences alleged against the appellants. There is no ground for presuming that the appellants have committed the offences alleged. There is no strong suspicion against the appellants. The dispute between the parties is primarily civil in nature which has been given the colour of a criminal case resulting abuse of process. Submission of charge sheet is based totally on unfounded assumptions and it has resulted in causing miscarriage of justice. Therefore, I am of the humble view that the learned trial Court has committed palpable error in dismissing the petition for discharge and in framing charges against the appellants and as such, in the interest of justice, the impugned order cannot be sustained in the eye of law. 17. Accordingly, the CRLA is allowed. The impugned order dated 23.11.2015 passed by the learned Presiding Officer, Designated Court in rejecting the petition under section 239 of Cr.P.C. for discharge and consequently framing charges under sections 420, 406, 467, 468 read with section 120-B of the Indian Penal Code and section 6 of the OPID Act, are hereby set aside. The criminal proceeding against the appellants in C.T. Case No. 07 of 2014 pending before the learned Presiding Officer, Designated Court stands quashed. CRLA allowed.