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2018 DIGILAW 863 (ORI)

Rohit Saraf v. State Of Orissa

2018-12-21

S.PUJAHARI

body2018
JUDGMENT S. Pujahari, J. - This Criminal Appeal is listed today for orders on the aforesaid I.A. No.1926 of 2018, but the same having been not pressed and the aforesaid Interim Application for intervention filed in Court having been allowed, on the consent of the parties, this Appeal is taken up for final disposal. 2. The appellant in this Criminal Appeal filed under Section 13 of the Odisha Protection of Interest of Depositors (In Financial Establishments) Act, 2011 (for short "OPID Act") has prayed for quashing of the order of cognizance dated 25.01.2017 passed by the learned Presiding Officer, Designated Court (OPID Court), Cuttack in Criminal Trial No.15 of 2016 taking cognizance of the offences under Sections 465, 467, 468, 471, 420, 406 and 120-B of the Indian Penal Code and Section 6 of the OPID Act, so also the entire criminal prosecution against the appellant. 3. Heard Shri Ashok Mohanty, learned senior counsel appearing for the appellant, Shri Bibekananda Bhuyan, learned counsel appearing for the Respondent -State, so also Shri P.K. Pattanaik learned counsel appearing for the Interveners-Victims. 4. The prosecution case, as revealed from the materials available on record, is that one M/s. Seven Hills Estates Pvt. Ltd., who is one of the coaccused in this case, deals with a Real Estate business. Said M/s. Seven Hills Estates Pvt. Ltd. is stated to be the registered owner of a parcel of land in Mouza- Matiapada-2. Out of the said land, M/s. Seven Hills Estates Pvt. Ltd. sold Ac.1.091 decimals in different patches to the complainant - Subhransu Sekhar Senapati and others by registered deeds of sale executed by N. Kishore Reddy and K.C. Panda as the power of attorney holders of said M/s. Seven Hills Estates Pvt. Ltd. and also delivered possession thereof. However, the said land could not be mutated in their names for the reasons that the same was agricultural land coming under the consolidation area and the sales were in violation of the Odisha Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 (for short "OCH & PFL Act"), and the transfers were also made without the permission of the Authority concerned. After 6 to 7 years, again the same patches of land, which were earlier sold to the Complainant and others, were again sold to Lingaraj Infrastructure Pvt. Ltd. by M/s. Seven Hills Estates Pvt. Ltd. through another Power of Attorney holder, namely, Anam Sahoo. The present appellant is one of the Directors of said Lingaraj Infrastructure Pvt. Ltd. and he had also signed in the sale deed on behalf of the vendee-company. After sale of the aforesaid land, a report was lodged by the former purchasers of the land in the name of M/s. Seven Hills Estates Pvt. Ltd. and the Firm of the present appellant alleging them to have committed fraud and forgery and cheated them inasmuch as without any transferable title they executed the sale deeds, and in connivance with the present appellant they subsequently sold the same to Lingaraj Infrastructure Pvt. Ltd. Basing on their such report, investigation was carried on and ultimately charge-sheet has been filed against M/s. Seven Hills Estates Pvt. Ltd. for the aforesaid offences along with the present appellant showing him as a conspirator. 5. Challenging the impugned order of cognizance and also the prosecution launched against the appellant, Mr. Ashok Mohanty, learned senior counsel appearing for the appellant submits that the prosecution against the appellant in the aforesaid case is totally misconceived inasmuch as it is never the allegation of the prosecution that the appellant was a party to the sales earlier made in violation of the OCH & PFL Act by M/s. Seven Hills Estates Pvt. Ltd. It is not in dispute that M/s. Seven Hills Estates Pvt. Ltd. without having transferable title had sold the disputed land to them with delivery of possession. However, the R.O.R. in respect of the said land having continued to remain in the name of M/s. Seven Hills Estates Pvt. Ltd., the company of the appellant without knowing the fact of the earlier sales, purchased the entire tract of land and got the same mutated in its favour. The learned senior counsel submits that the appellant, who had purchased the litigated property on behalf of the company, could not have been booked for the aforesaid offences and proceeded against, especially when neither the company of the appellant is financial establishment nor it had any link with the financial establishment when the alleged moneys were accepted for transferring the disputed land to the complainant and others. In such premises, it is submitted that the prosecution against the appellant in aid of Section 120-B of IPC, is totally misconceived and the prima-facie allegation being not capable of making out any case against the appellant, the impugned order of cognizance against the appellant is liable to be quashed. Furthermore, it is submitted that the same is more so when the sales made in favour of the earlier purchasers have already been found to be void. 6. On the other hand, Shri Bibekananda Bhuyan, learned counsel appearing for the State submits that since in this case the materials on record would go to show that the appellant is stated to have purchased an encumbranced property from M/s. Seven Hills Estates Pvt. Ltd. knowing well that the same was in possession of others, and thereby put the ownership of the earlier purchasers over the property at a stake in connivance with the original owner. Shri Bhuyan, learned counsel for the State further submits that the Court at the stage of taking cognizance being required only to look into the prima-facie case without resorting to any detail documentation and appreciation of the materials on record, the present appeal is devoid of merit. At the same time, Shri Bhuyan, learned counsel for the State fairly submits that the indictment of the appellant in this case is confined to one under Section 120-B of IPC alone and no offence under the OPID Act is made out against him inasmuch as he is not a financial establishment and he was not in picture when the transaction had taken place between the Complainant and others and M/s. Seven Hills Estates Pvt. Ltd. in respect of the disputed land. 7. Shri P.K. Pattanaik, learned counsel appearing for the Intervenersvictims would submit that since the Interveners-victims have been cheated in this case and the appellant though had promised for refund of their money, and the same having not been refunded whereas money has been refunded to some of the persons in similar footing, this Court should not quash the impugned order of cognizance or the prosecution launched against the appellant. 8. 8. In rejoinder, Shri Ashok Mohanty, learned senior counsel appearing for the appellant submits that the aforesaid contention is fallacious inasmuch as even if the appellant had paid back some money out of sympathy to earlier purchasers on behalf of the company, that does not mean that he was a party to any conspiracy for commission of the aforesaid offences. Therefore, it is submitted that the impugned order of cognizance against the appellant is totally misconceived and the same is liable to be quashed, so also the prosecution against the appellant. 9. Before addressing the contention of the parties, it would be apposite to mention here that though this is a criminal appeal, in view of the statutory mandate of Section 13 of the OPID Act that all the orders of the Presiding Officer of the Designated Court (OPID Act) are appealable, but basically the order of cognizance being challenged in this criminal appeal, the limitation of the Court to interfere at the stage of cognizance in exercise of the power under Section 482 of Cr.P.C. would apply to this case. Hence, being alive to the limitation of the Court to interfere at the stage of cognizance in exercise of power under Section 482 of Cr.P.C., this Court has to examine the sustainability of the order of cognizance and the prosecution initiated against the appellant. For quashment of the order of cognizance, the Apex Court in the case of R.P. Kapur vrs. The State of Punjab, 1960 AIR 862, have held as follows :- "17. xxxxx xxxxxx xxxxx It is well settled that the inherent jurisdiction of the High Court can be exercised to quash proceedings in a proper case either to prevent the abuse of the process of any court or otherwise to secure the ends of justice. Ordinarily criminal proceedings instituted against an accused person must be tried under the provisions of the Code, and the High Court would be reluctant to interfere with the said proceedings at an interlocutory stage. It is not possible, desirable or expedient to lay down any inflexible rule which would govern the exercise of this inherent jurisdiction. However, we may indicate some categories of cases where the inherent jurisdiction can and should be exercised for quashing the proceedings. It is not possible, desirable or expedient to lay down any inflexible rule which would govern the exercise of this inherent jurisdiction. However, we may indicate some categories of cases where the inherent jurisdiction can and should be exercised for quashing the proceedings. There may be cases where it may be possible for the High Court to take the view that the institution or continuance of criminal proceedings against an accused person may amount to the abuse of the process of the court or that the quashing of the impugned proceedings would secure the ends of justice. If the criminal proceeding in question is in respect of an offence alleged to have been committed by an accused person and it manifestly appears that there is a legal bar against the institution or continuance of the said proceeding the High Court would be justified in quashing the proceeding on that ground. Absence of the requisite sanction may, for instance, furnish cases under this category. Cases may also arise where the allegations in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety, do not constitute the offence alleged; in such cases no question of appreciating evidence arises; it is a matter merely of looking at the complaint or the First Information Report to decide whether the offence alleged is disclosed or not. In such cases it would be legitimate for the High Court to hold that it would be manifestly unjust to allow the process of the criminal court to be issued against the accused person. A third category of cases in which the inherent jurisdiction of the High Court can be successfully invoked may also arise. In cases falling under this category the allegations made against the accused person do constitute an offence alleged but there is either no legal evidence adduced in support of the case or evidence adduced clearly or manifestly fails to prove the charge. In dealing with this class of cases it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is manifestly and clearly inconsistent with the accusation made and cases where there is legal evidence which on its appreciation may or may not support the accusation in question. In dealing with this class of cases it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is manifestly and clearly inconsistent with the accusation made and cases where there is legal evidence which on its appreciation may or may not support the accusation in question. In exercising its jurisdiction under s. 561-A the High Court would not embark upon an enquiry as to whether the evidence in question is reliable or not. That is the function of the trial magistrate, and ordinarily it would not be open to any party to invoke the High Court's inherent jurisdiction and contend that on a reasonable appreciation of the evidence the accusation made against the accused would not be sustained." Further, the Apex Court the case of State of Haryana and others vrs. Ch. Bhajan Lal and others, 1992 AIR 604 , have held that unless the case is covered by any of the contingencies mentioned therein, the Court should not interfere with the order of cognizance and issuance of process against the person. One of those contingencies is, where the allegations made in the F.I.R. or complaint and the materials, even if they are taken at their face value and accepted in their entirety do not prima-facie constitute any offence or make out a case against the accused. So also, the Apex Court in the case of State of Bihar vrs. Rajendra Agrawalla, (1996) 8 SCC 164 , have held that "the inherent power of the court under Section 482 of the Code of Criminal Procedure should be very sparingly and cau7tiously used only when the court comes to the conclusion that there would be manifest injustice or there would be abuse of the process of the court, if such power is not exercised. So far as the order of cognizance by a Magistrate is concerned, the inherent power can be exercised when the allegations in the first information report or the complaint together with the other materials collected during investigation taken at their face value,do not constitute the offence alleged. At that stage it is not open for the court either to sift the evidence or appreciate the evidence and come to the conclusion that no prima facie case is made out". At that stage it is not open for the court either to sift the evidence or appreciate the evidence and come to the conclusion that no prima facie case is made out". Further, the Apex Court in the case of Medchl Chemicals & Pharma (P) Ltd. vrs. Biological E. Ltd., (2000) 3 SCC 269 , have held that "exercise of jurisdiction under the inherent power as envisaged in Section 482 of the Code to have the complaint or the charge-sheet quashed is an exception rather than a rule and the case for quashing at the initial stage must have to be treated as rarest of rare so as not to scuttle the prosecution. With the lodgement of first information report the ball is set to roll and thenceforth the law takes its own course and the investigation ensues in accordance with the provisions of law. The jurisdiction as such is rather limited and restricted and its undue expansion is neither practicable nor warranted. In the event, however, the court on a perusal of the complaint comes to a conclusion that the allegations leveled in the complaint or charge-sheet on the face of it do not constitute or disclose any offence as alleged, there ought not to be any hesitation to rise up to the expectation of the people and deal with the situation as is required under the law. To exercise powers under Section 482 of the Code, the complaint in its entirety will have to be examined on the basis of the allegation made in the complaint and the High Court at that stage has no authority or jurisdiction to go into the matter or examine its correctness. Whatever appears on the face of the complaint shall be taken into consideration without any critical examination of the same. But the offence ought to appear ex-facie on the complaint. The truth or falsity of the allegations would not be gone into by the Court at this earliest stage. Whether or not the allegations in the complaint were true is to be decided on the basis of the evidence led at the trial. But the offence ought to appear ex-facie on the complaint. The truth or falsity of the allegations would not be gone into by the Court at this earliest stage. Whether or not the allegations in the complaint were true is to be decided on the basis of the evidence led at the trial. So the question is: Can it be said that the allegations in the complaint do not make out any case against the accused nor do they disclose the ingredients of an offence alleged against the accused or the allegations are patently absurd and inherently improbable so that no prudent person can ever reach to such a conclusion that there is sufficient ground for proceeding against the accused ?" 10. Keeping in mind the aforesaid, the contention advanced in this case is to be addressed. 11. Admittedly, M/s. Seven Hills Estates Pvt. Ltd., who is the owner of the land, had sold the said land to the complainant and others in patches in violation of the OCH & PFL Act on receipt of consideration. The possession of the property is stated to have been delivered, but the same could not be mutated in revenue record inasmuch as the fragmented piece of land was shown to have been sold without the permission of the appropriate authority under the OCH & PFL Act. When the persons paid the money for the said lands prima-facie and got the same registered in their names, it is an admitted fact that the subsequent purchaser, i.e., M/s. Lingaraj Infrastructure Pvt. Ltd. was nowhere in picture. Nowhere, it is alleged that M/s. Lingaraj Infrastructure Pvt. Ltd. was a party to such sale or had given any promise for delivery of the salable title to them in the property. The only allegation is that M/s. Seven Hills Estates Pvt. Ltd. sold the disputed land to complainant and many others, but title in the same could not be delivered, and many years thereafter the same owner sold the land to the company of the present appellant. Even if it is accepted that the appellant knowing well the said land to have been earlier sold to the complainant and others, got the land transferred in favour of his company, it can very well be said that the appellant purchased a litigated property which was purchased by some other persons anterior in time. Even if it is accepted that the appellant knowing well the said land to have been earlier sold to the complainant and others, got the land transferred in favour of his company, it can very well be said that the appellant purchased a litigated property which was purchased by some other persons anterior in time. It is also an admitted fact that in the meanwhile the title of those earlier sale deeds has been declared null and void. The indictment of the appellant is one under Section 120-B of IPC which speaks of criminal conspiracy which always precedes the commission of an offence. A conspiracy cannot be subsequent to the commission of offence. Admittedly, it is the allegation of the complainant and others that they could not have purchased the disputed land had they known beforehand that M/s. Seven Hills Estates Pvt. Ltd. was not in a position to transfer any salable title of the land to them and, therefore, M/s. Seven Hills Estates Pvt. Ltd. is alleged to have cheated them by committing fraud and forgery by taking money from them without having any saleable title, and again they sold the same to the company of the present appellant. If at all the appellant had committed any wrong, it is only that he knowing well that the lands were earlier sold, again purchased the same. Therefore, prima-facie no offence under Section 120-B of IPC is made out against the appellant in the aforesaid case for commission of the offences, inasmuch as there exists no material indicating him to have conspired with M/s. Seven Hills Estates Pvt. Ltd. to deceive the earlier purchasers or commit any fraud and forgery. This Court, ultimately, is of the view that the appellant, who prima-facie appears to be a victim of circumstances, could not have been prosecuted criminally. Liability, if any, of the appellant on account of the purchase of the property by the complainant and others, is purely civil in nature, for which the appellant could not have been prosecuted criminally. In absence of any criminal element to be attributed to the appellant, the prosecution launched against him appears to be misconceived. 12. Accordingly, this Criminal Appeal is allowed and the proceeding against the present appellant for alleged commission of the offences stands quashed. In absence of any criminal element to be attributed to the appellant, the prosecution launched against him appears to be misconceived. 12. Accordingly, this Criminal Appeal is allowed and the proceeding against the present appellant for alleged commission of the offences stands quashed. The trial court shall do well to comply with this order on production of the certified copy of this order.