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2020 DIGILAW 47 (ORI)

Kunja Bihari Patra v. State Of Orissa

2020-02-11

B.R.SARANGI

body2020
JUDGMENT B.R. Sarangi, J. - The petitioner, being accused no.1 in ICC Case No.217 of 2016 pending in the Court of learned S.D.J.M., Angul, has filed this application seeking to quash order dated 17.12.2016, by which direction has been given to IIC, Angul Police Station for registration of the case and causing investigation as per the provisions contained in Section 156(3) of Cr.P.C. 2. Brief facts of the case, as revealed from the complaint petition filed by opposite party no.2, as complainant before the Court below, are as follows:- Opposite party no.2-complainant named and styled as "M/s. Jaydurga Transport" is a proprietorship firm and the owner of heavy earth moving equipment. Petitioner-accused no.1 is the owner of "Hindustan Machinary", a sub-contractor of accused no.2, who is the contractor of Railway authority and was awarded with the contract work of doubling the railway track/earth work from Handapa to Nakchi railway line, along with other contract work. During course of business, petitioner- accused no.1, along with other accused persons, approached opposite party no.2-complainant for supply of its heavy earth moving equipment for construction of doubling railway track work from Handapa to Nakchi on hire basis. After due negotiation amongst the parties, opposite party no.2-complainant engaged its Tata Hitachi 200 (chain mounting) and three numbers of Haiwa on hourly/monthly hire basis from 24.04.2016 under the accused persons in the said work. 2.1 After completion of the work and after adjustment of advance paid by accused persons, on 15.07.2016, it was settled/calculated amongst the parties that a sum of Rs.8,11,585/- is due upon accused persons. On that date, petitioner-accused no.1 issued a post dated cheque bearing no. 567298 of ICICI Bank, Bhubaneswar Branch in favour of opposite party no.2-complainant mentioning the date as 05.08.2016 for a sum of Rs.8,00,000/- towards full and final payment. As per commitment of petitioner-accused no.1, on 02.11.2016 the said cheque was deposited by opposite party no.2- complainant with his banker, i.e., Bank of Baroda, Angul Branch, Angul, but it was returned by the Branch Manager on 03.11.2016 due to "insufficient fund" in the account of petitioner-accused no.1. Accordingly, opposite party no.2-complainant, on 03.11.2016, issued a demand notice to petitioner-accused no.1 through its advocate making therein a demand for payment of the aforesaid cheque amount of Rs.8,00,000/- within 15 days from the date of its receipt. Accordingly, opposite party no.2-complainant, on 03.11.2016, issued a demand notice to petitioner-accused no.1 through its advocate making therein a demand for payment of the aforesaid cheque amount of Rs.8,00,000/- within 15 days from the date of its receipt. But even after receipt of said notice on 07.11.2016, since petitioner-accused no.1 did not take any steps, it was evident that petitioner-accused no.1 had a clear intention to deceive and cheat opposite party no.2- complainant by misappropriating its fund. Petitioneraccused no.1 had dishonest intention, right from the beginning, i.e., from the time of approach for supply of heavy earth moving equipment till issue of cheque in favour of opposite party no.2-complainant, to cheat and cause wrongful loss to opposite party no.2-complainant and wrongful gain for themselves and with such intention they had done the above act. In other words, petitioner- accused no.1, in connivance with other accused persons, had intentionally issued the said cheque to deceive and cheat opposite party no.2-complainant. 2.2 In view of commission of such fraudulent act by accused persons, and after bouncing of cheque in question, opposite party no.2-complainant lodged FIR at Angul Police Station, which straightaway refused to accept the same and directed opposite party no.2-complainant to approach the Court. As a consequence thereof, opposite party no.2-complainant filed ICC Case No. 217 of 2016 before the learned SDJM, Angul with a prayer to send the complaint to IIC, Angul Police Station to treat the same as FIR under Section 156(3) of Cr.P.C. and investigate into the case under Sections 418 and 420 of IPC and to submit final form after completion of investigation. Learned SDJM, Angul, vide order dated 17.12.2016, forwarded the original complaint to IIC, Angul P.S. for its registration as FIR and causing investigation, as per the provisions of Section 156(3) of the Cr.P.C., with the further direction to intimate the Court the fact of registration of such P.S. case number and the progress of investigation. Consequentially, IIC, Angul P.S. registered the complaint as Angul P.S. Case No. 177 dated 31.03.2017 under Sections 418, 420 and 34 of IPC against accused persons, including the petitioneraccused no.1. Hence this application. 3. Mr. Consequentially, IIC, Angul P.S. registered the complaint as Angul P.S. Case No. 177 dated 31.03.2017 under Sections 418, 420 and 34 of IPC against accused persons, including the petitioneraccused no.1. Hence this application. 3. Mr. S.Pattnaik, learned counsel appearing for the petitioner-accused no.1 strenuously urged that on the basis of factual matrix, it may be a case under Section 138 of N.I. Act, because of dishonor of the cheque/ instrument for insufficiency of funds, but not a case under Sections 418, 420 read with 34 of IPC. It is contended that the learned Magistrate has committed error while invoking jurisdiction under Section 156(3) of Cr.P.C., inasmuch as he has not made enquiry under Section 202 of Cr.P.C., and without making such enquiry sent the complaint petition to IIC, Angul P.S. to register the same as FIR and cause investigation, which cannot sustain in the eye of law. Thereby, the order impugned dated 17.12.2016 cannot sustain in the eye of law and the same has to be quashed, including the consequential criminal proceeding. It is further contended that the "complaint" within the meaning of Section 2(d) of the Cr.P.C. and also the complaint within the meaning of Section 142 of the N.I. Act is different from each other. Hence, the Court below has no jurisdiction to pass an order directing for investigation by the police under the provisions of Section 156(3) of the Cr.P.C. It is further contended that cheating has been defined under Section 415 of IPC. As such, there was no intention of petitioner-accused no.1 to deceive opposite party no.2-complainant. Had the cheque been placed in the bank on the date mentioned therein, there would not have been insufficiency of funds. As the cheque in question was presented on a subsequent date and due to insufficiency of funds it was returned, it cannot be construed that petitioner-accused no.1 had tried to deceive opposite party no.2-complainant so as to attract the provisions of Sections 417 and 420 of IPC. As the cheque in question was presented on a subsequent date and due to insufficiency of funds it was returned, it cannot be construed that petitioner-accused no.1 had tried to deceive opposite party no.2-complainant so as to attract the provisions of Sections 417 and 420 of IPC. It is thus contended that the transaction, being purely civil in nature, the jurisdiction of the criminal Court could not have been invoked and more so, the basic requirements of Sections 417 and 420 of IPC are absent and as such, the proceeding is a malicious one and there is bleak chance of ultimate conviction and thereby, before taking cognizance, the Court should ensure that criminal prosecution is not used as an instrument of harassment or for seeking private vendetta or with an ulterior motive to pressurize the accused. Therefore, he seeks for interference of this Court by filing the present application. To substantiate his contention, he has relied upon the judgment of this Court in Radharaman Sahu v. Trilochan Nanda, 1990 70 CutLT 788 , as well as of the apex Court in Inder Mohan Goswami v. State of Uttaranchal, 2008 AIR(SC) 251 . 4. Mr. P.K. Mohapatra, learned counsel for opposite party no.2-complainant contended that on the basis of the factual matrix of the case, in hand, it is clearly evident that accused persons have tried to deceive opposite party no.2-complainant in not paying the amount which had been settled having entered into a contract between the parties. As such, the cheque in question issued by petitioner-accused no.1, on being presented before the bank, having been returned due to insufficient fund, clearly attracts the offence under Section 138 of N.I. Act, but that by itself cannot preclude opposite party no.2- complainant to file complaint petition for investigation under Section 156(3) of Cr.P.C. by registering the same as FIR. On the basis of the fact gathered from the complaint petition, if a case under Section 420 is made out, the proceeding under Section 138 of N.I. Act may be distinct from that of the criminal proceeding, simultaneously both the proceedings can be initiated against the person who tried to deceive opposite party no.2-complainant. On the basis of the fact gathered from the complaint petition, if a case under Section 420 is made out, the proceeding under Section 138 of N.I. Act may be distinct from that of the criminal proceeding, simultaneously both the proceedings can be initiated against the person who tried to deceive opposite party no.2-complainant. Thereby, on the basis of the complaint lodged before the learned S.D.J.M, Angul, if direction has been given to register the same as FIR and to cause investigation, no illegality or irregularity has been committed rather the same is in consonance with the provisions of law. A further contention is raised, that there is breach of contract and for that different remedies are available under the law, but fact remains the conduct of the parties has to be taken note of by the Court. As such, having satisfied with the complaint lodged by the opposite party no.2-complainant, the Court below, on being prima facie satisfied that a case under Sections, 417, 420 read with Sec. 34 of IPC is made out, forwarded the complaint, vide order impugned, with the direction to register the same as FIR and cause investigation into the allegations, that itself cannot be said to be illegal and on that basis the proceeding so initiated should not be quashed. To substantiate such contention he has relied upon the judgments of the apex Court in Sangeetaben Mahendrabhai Patel v. State of Gujarat, 2012 7 SCC 621 and Dr. Lakshman V. State of Karnataka, 2019 AIR(SC) 5268 . It is further contended that in the judgment of Dr. Lakshman (supra), the judgment in Inder Mohan Goswami (supra) referred to by learned counsel appearing for petitioner-accused no.1, has been taken note of. Thereby, the contention raised by learned counsel for the petitioner-accused no.1 cannot have any justification and accordingly prays for dismissal of the present writ petition. It is further contended that if the petitioner-accused no.1 wants to quash the proceeding, instead of invoking jurisdiction under Articles 226 and 227 of the Constitution of India, he should have filed application under Section 482 of the Cr.P.C. When adequate remedies are provided under Section 482 Cr.P.C., instead of availing the same, the petitioner-accused no.1 should not have taken recourse to the present proceeding which cannot sustain in the eye of law. 5. This Court heard Mr. S. Pattanaik, learned counsel for the petitioner-accused no.1 and Mr. 5. This Court heard Mr. S. Pattanaik, learned counsel for the petitioner-accused no.1 and Mr. P.K. Mohapatra, learned counsel for opposite party no.2- complainant and perused the record. Pleadings having been exchanged between the parties and with the consent of the learned counsel for the parties, this writ petition is being disposed of finally at the stage of admission. 6. On the basis of the pleadings available on record and in view of the contention raised by Mr. S. Pattanaik, learned counsel for the petitioner-accused no.1 that without conducting enquiry under Section 202 Cr.P.C. the Court below should not have directed for investigation under Section 156 (3) Cr.P.C., for just and proper adjudication of the case, Section 156 and 202 Cr.P.C. are quoted below:- "Sec. 156:- Police officer's power to investigate cognizable case. (1) Any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII. (2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate. (3) Any Magistrate empowered under section 190 may order such an investigation as abovementioned." "202.Postponement of issue of process.- (1) Any Magistrate, on receipt of a complaint of an offence of which he is authorized to take cognizance or which has been made over to him under section 192, may, if he thinks fit, postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding: Provided that no such direction for investigation shall be made, - (a) where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session; or (b) where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath under section 200. (2) In an inquiry under sub-section (1), the Magistrate may, if he thinks fit, take evidence of witnesses on oath: Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath. (3) If an investigation under sub-section (1) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this Code on an officer in charge of a police station except the power to arrest without warrant." On perusal of the aforementioned provisions, it would be evident that under Section 202 Cr.P.C., any Magistrate on receipt of a complaint of an offence of which he is authorized to take cognizance or which has been made over to him under Section 192, may, if he thinks fit, postpone the issue of process against the accused, or either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding. 7. In view of such provision, the Magistrate may either he himself inquire into the case or direct an investigation to be made by the police authority or by such other person as he thinks fit. If the learned Magistrate has exercised power directing the police to make an investigation under Section 156(3) Cr.P.C., it cannot be said that before issuance of such direction an enquiry has to be conducted under Section 202 Cr.P.C. by the Magistrate himself only. The provision contained under Section 202 Cr.P.C. is ample clear that the Magistrate can postpone issue of process, if he thinks that enquiry ought to have been done prior to issuance of such process. But this is not a case where postpone of issuance of process is in question. Rather, on the basis of the complaint, the Magistrate was prima facie satisfied that a cognizable case is made out and thereby directed the police authority to register the FIR and cause investigation. That is well within its jurisdiction, and therefore it cannot be said that any illegality or irregularity has been committed by the Magistrate in issuing such direction, so as to warrant interference by this Court. 8. That is well within its jurisdiction, and therefore it cannot be said that any illegality or irregularity has been committed by the Magistrate in issuing such direction, so as to warrant interference by this Court. 8. On the basis of the factual matrix of the case, the provisions of Section 138 of N.I. Act may be attracted, because the cheque, which was given by the petitioneraccused no.1 to opposite party no.2-complainant, was returned as there was insufficient fund. In addition to the same, if on the basis of the factual matrix prima facie it is satisfied that the petitioner-accused no.1 had tried to deceive opposite party no.2-complainant in the entire transaction, then in that case criminal proceeding can also be initiated against the accused persons. 9. In Dr. Lakshman (supra), the apex Court in paragraphs-9 and 10 observed as follows: "9. It is not seriously disputed by the parties with regard to the entering of the agreements for procuring the land in favour of the appellant in Ballur Village, Anekal Taluk, Bangalore Urban District and respondents have received the amount of Rs.9 crores by way of demand drafts and cheques. It is the specific case of the appellant that there are schedules mentioned to the agreements as per which respondents have agreed to procure the land covered by Survey Nos.115 and 117 of Ballur Village apart from other lands. In a petition under Section 482, Cr.P.C. it is fairly well settled that it is not permissible for the High Court to record any findings, wherever there are factual disputes. Merely on the ground that there is no pagination in the Schedule, the High Court has disbelieved such Schedule to the Agreements. It is the specific case of the appellant that the lands covered by Survey Nos.115 and 117 of Ballur Village were sold even prior to the first agreement, as such respondents have committed an act of cheating. It is also the specific case of the appellant that two cheques were issued by respondents-accused by way of security for the amount of Rs.9 crores which is advance but the account of such cheques was closed even prior to entering into the Agreement itself. The second complaint filed by the appellant is self-explanatory and he is forcefully made to sign the sale deed which were executed subsequently for the lands covered by Survey Nos.115 and 117 of Ballur Village. The second complaint filed by the appellant is self-explanatory and he is forcefully made to sign the sale deed which were executed subsequently for the lands covered by Survey Nos.115 and 117 of Ballur Village. Mere filing of the suits for recovery of the money and complaint filed under Section 138 of the N.I. Act by itself is no ground to quash the proceedings in the complaints filed by the appellant herein. When cheating and criminal conspiracy are alleged against the accused, for advancing a huge sum of Rs.9 crores, it is a matter which is to be tried, but at the same time the High Court has entered into the disputed area, at the stage of considering the petitions filed under Section 482, Cr.P.C. It is fairly well settled that power under Section 482 Cr.P.C. is to be exercised sparingly when the case is not made out for the offences alleged on the reading of the complaint itself or in cases where such complaint is filed by way of abuse of the process. Whether any Schedules were appended to the agreement or not, a finding is required to be recorded after full fledged trial. Further, as the contract is for the purpose of procuring the land, as such the same is of civil nature, as held by the High Court, is also no ground for quashing. Though the contract is of civil nature, if there is an element of cheating and fraud it is always open for a party in a contract, to prosecute the other side for the offences alleged. Equally, mere filing of a suit or complaint filed under Section 138 of the N.I. Act, 1881 by itself is no ground to quash the proceedings. While considering the petition under Section 482 of Cr.P.C., we are of the view that the High Court also committed an error that there is a novation of the contract in view of the subsequent agreement entered into on 08.11.2012. Whether there is novation of contract or not and the effect of such entering into the contract is a matter which is required to be considered only after trial but not at the stage of considering the application under Section 482, Cr.P.C. 10. Whether there is novation of contract or not and the effect of such entering into the contract is a matter which is required to be considered only after trial but not at the stage of considering the application under Section 482, Cr.P.C. 10. Learned senior counsel Sri R. Basant appearing for the accused, in support of his case, relied on the judgment of this Court in the case of S.W. Palanitkar and Ors. vs. State of Bihar and Anr.1 and submitted that every breach of contract may not result in a penal offence, but in the very same judgment, this Court has held that breach of trust with mens rea gives rise to a criminal prosecution as well. In a given case, whether there is any mens rea on the part of the accused or not is a matter which is required to be considered having regard to the facts and circumstances of the case and contents of the complaint etc. In the case on hand, it is clearly alleged that even before entering into the agreement dated 26.09.2012, lands were already sold to third party, which were agreed to be procured in favour of the appellant. Not only that, it is the specific allegation of the complainant that the cheques were issued towards security from the account which was also closed much earlier to the date of Agreement itself. Learned counsel also relied on judgment in the case of Anil Mahajan vs. Bhor Industries Ltd. and Anr. but in the very same judgment it is also held that where there exists a fraudulent and dishonest intention at the time of the commission of the offence, law permits the victim to proceed against the wrongdoer for having committed an offence of criminal breach of trust or cheating. In another case relied on by the learned counsel, viz., Inder Mohan Goswami and Anr. vs. State of Uttaranchal and Ors. this Court has reiterated the scope of power of the High Court under Section 482 Cr.P.C. Having regard to the facts of the case, we are of the view that the said judgments relied on by the learned counsel would not support the case of the respondents. vs. State of Uttaranchal and Ors. this Court has reiterated the scope of power of the High Court under Section 482 Cr.P.C. Having regard to the facts of the case, we are of the view that the said judgments relied on by the learned counsel would not support the case of the respondents. It is also to be noticed that in the complaint filed in P.C.R.No.14420 of 2015, investigation has been completed and chargesheet was also filed on 22nd December 2015." By so discussing, the apex Court held that the High Court has committed an error in allowing the petitions filed under Section 482 Cr.P.C. by the respondents-accused. Thereby, allowed the criminal appeals and set aside the impugned common order dated 28.04.2017 passed by the High Court of Karnataka at Bengaluru. Applying the same analogy to the present context, this is not proper stage where the proceeding so initiated has to be quashed either in exercise of power under Section 226 of the Constitution of India or even under Section 482 Cr.P.C. Rather, the Magistrate is well justified in directing the police authority to register the complaint petition as FIR under Section 156(3) Cr.P.C. and cause investigation into the matter. In the aforementioned judgment of Dr. Laksman, the judgment of the apex Court in Inder Mohan Goswami (supra), which has been referred to by learned counsel for the petitioner-accused no.1, has also been taken note of and despite taking note of such judgment, the apex Court has passed the order as mentioned above. 10. In Sangeetaben Mahendrabhai Patel (supra), the apex Court in paragraphs 27 and 28 thereof held as follows: "27. This Court held: ( A.A. Mulla, 1996 11 SCC 606 : 1997 SCC (Cri) 305 : AIR 1997 SC 1441 , SCC pp. 613-14, para 22) "22. After giving our careful consideration to the facts and circumstances of the case and the submissions made by the learned counsel for the respective parties, it appears to us that the ingredients of the offences for which the appellants were charged in the first trial are entirely different. The second trial with which we are concerned in this appeal, envisages a different fact situation and the enquiry for finding out facts constituting offences under the Customs Act and the Gold (Control) Act in the second trial is of a different nature. The second trial with which we are concerned in this appeal, envisages a different fact situation and the enquiry for finding out facts constituting offences under the Customs Act and the Gold (Control) Act in the second trial is of a different nature. Not only the ingredients of offences in the previous and the second trial are different, the factual foundation of the first trial and such foundation for the second trial is also not indented (sic). Accordingly, the second trial was not barred under Section 403 CrPC of 1898 as alleged by the appellants." (emphasis added) "28. In Union of India v. Sunil Kumar Sarkar, 2001 3 SCC 414 : 2001 SCC (L&S) 600 : AIR 2001 SC 1092 ] , this Court considered the argument that if the punishment had already been imposed for court-martial proceedings, the proceedings under the Central Rules dealing with disciplinary aspect and misconduct cannot be held as it would amount to double jeopardy violating the provisions of Article 20(2) of the Constitution. The Court explained that the court-martial proceedings deal with the penal aspect of the misconduct while the proceedings under the Central Rules deal with the disciplinary aspect of the misconduct. The two proceedings do not overlap at all and, therefore, there was no question of attracting the doctrine of double jeopardy. While deciding the said case, the Court placed reliance upon its earlier judgment in R. Viswan v. Union of India, 1983 3 SCC 401 : 1983 SCC (L&S) 405 : AIR 1983 SC 658 ]." 11. In view of the above analysis and applying the rulings of the apex Court, referred to above, to the present context, it is made clear that an accusation of commission of offence under Section 138 of N.I. Act cannot preclude the complainant to initiate a proceedings against accused persons under Sections 418, 420 read with Section 34 of IPC if ingredients of such offence are attracted. As such, the case under the N.I. Act can only be initiated by filing complaint, but in a case under the IPC, such a condition is not necessary. As such, the case under the N.I. Act can only be initiated by filing complaint, but in a case under the IPC, such a condition is not necessary. But in the case at hand when opposite party no.2-complainant lodged an FIR in the concerned police station, the same was not registered, therefore, there was no other way open to opposite party no.2-complainant than to approach the Magistrate by filing complaint case, who, in turn directed the police to register the complaint as FIR under Section 156(3) of Cr.P.C. and conduct investigation. In view of such position, no illegality or irregularity has been committed by the learned S.D.J.M., Angul by passing the order impugned. 12. Much reliance has been placed by learned counsel for the petitioner on the judgment of this Court in Radharaman Sahu (supra). But as is evident the said case has been decided on its own facts and circumstances, which are different from the present case, and thus is of no help to the petitioner. Similarly, as has been already discussed, the judgment in Inder Mohan Goswami (supra), which has been referred to by learned counsel for the petitioner, having been taken note of by the apex Court in Dr. Laksman (supra), is also in no way helpful to the petitioner. 13. In view of the law laid down by the apex Court, as discussed above, at this stage this Court is not inclined to set aside the order dated 17.12.2016 passed by the learned S.D.J.M., Angul in ICC Case No. 217 of 2016 nor quash the consequential proceeding in G.R. Case No.468 of 2017 pending in the Court of learned S.D.J.M., Angul. Thereby, the CRLMP is devoid of merit and the same is accordingly dismissed. No order to costs.