M/s. A. Tripathy, A.K. Behera, Advocates v. For Opp. Party : M/s. B.P Das, A, Mohanty, G. Mohanty, S. Samal, P.A
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLMC Nos. 1161 of 2023 Application under Section 482 of Criminal Procedure Code, 1973. --------------- Aruna Kumar Mohanty and another …. Petitioners -versus- Pramod Pattnaik …. Opp. Party Advocate(s) appeared in this case:- For Petitioners : M/s. A. Tripathy, A.K. Behera, Advocates Vs. For Opp. Party : M/s. B.P Das, A, Mohanty, G. Mohanty, S. Samal, P.A. Dash, S.R. Tripathy, S. Kanungo, A. Sarangi, R. K. Ojha & A.K. Swain, Advocates. __________________________________________________________ CORAM: JUSTICE SASHIKANTA MISHRA JUDGMENT 18th August, 2023 SASHIKANTA MISHRA, J. The petitioners are accused of committing the offences under Sections 406/420/34 of IPC in 1.C.C. Case No.115 of 2022 in the Court of learned S.D.J.M., Nayagarh. Page 1 of 9 In the present application filed under Section 482 of Cr.P.C. they seek to challenge the order dated 16.01.2023 passed by learned SDJM in taking cognizance of the aforementioned offences and in issuing process against them. 2.
Facts
The brief facts of the case are that on 04.08.2022 on an order passed by learned SDJM, Nayagarh under Section 156(3) of Cr.P.C. Nayagarh P.S. Case No. 125 of 2022 was registered against the present petitioners under Sections 406/34 of IPC. It was alleged that the petitioners, being Ex- Secretary and Ex-Treasurer of “Samarpana Old Age Home” had misappropriated huge amount of money without knowledge or approval of the Executive Body. Investigation however did not reveal any evidence to support the allegation for which the I.O. submitted final report as mistake of fact on 30.09.2022. The complainant, claiming to be the Ex-working President of the Old Age Home filed a protest petition in the form of a complaint being 1CC Case No.115 of 2022 in the court of learned S.D.J.M., Nayagarh. His initial statement was recorded and inquiry was held under Section 202 of Cr.P.C., in course of which two Page 2 of 9 witnesses were examined. After going through the complaint petition, initial statement of the complainant and statement of the witnesses examined during the Section 202 inquiry, learned S.D.J.M. was satisfied that there are prima facie materials to proceed against the accused persons and accordingly took cognizance of the offences referred earlier vide the order impugned.
Legal Reasoning
commit the alleged offence. It is settled law that mens rea is necessary ingredient of the offence under Section 406 of IPC as was held by the Apex Court in the case of S.W. Palanitkar Vs. State of Bihar, reported in 2002 SCC (Cri) 129. This Court also finds that the complainant has not stated anywhere as to what was the amount entrusted to the petitioners or over which they had dominion, which is a primary ingredient of the offence under Section 406 of IPC. 9. On the same facts, it is difficult to make out a case under Section 420 of IPC also because there is not an iota of evidence to prima facie show that the petitioners had cheated any one or had the intention to do so or had dishonestly delivered any property to any person. 10. Thus, on a careful examination of the relevant materials on record as referred to earlier, this Court finds that the basic ingredients necessary to constitute the offences under Sections 406 and 420 of IPC are non- existent. Reading of the impugned order suggests that the court below has not applied its judicial mind to the above aspects and appears to have acted somewhat mechanically Page 8 of 9 to accept the complainant’s version as gospel truth. Under such circumstances, the impugned order cannot be sustained in the eye of law. Further, continuance of the criminal proceedings against the petitioners would amount to an abuse of the process of the Court. This is therefore, a fit case for this Court to exercise its inherent power to prevent the abuse of the process of the Court. 11. In the result, the CRLMC is allowed. The impugned order is hereby quashed. Consequently, the criminal proceeding arising out of 1CC Case No. 115 of 2022 as against the present petitioners is also quashed. ..……..………………….. Sashikanta Mishra, Judge B.C Tudu Signature Not Verified Digitally Signed Signed by: BHIGAL CHANDRA TUDU Designation: Senior Stenographer Reason: Authentication Location: Orissa High Court, Cuttack Date: 21-Aug-2023 13:12:07 Page 9 of 9
Arguments
3. Heard Mr. Amitav Tripathy, learned counsel for the petitioners and Mr. B.P. Das, learned counsel appearing for the opposite party-Complainant. 4. Mr. Tripathy forcefully argues that the complaint is nothing but a ploy adopted by the complainant to somehow harass the petitioners because of his inability to be elected to the Executive Body of the society. Mr. Tripathy further submits that the sheer falsity of the allegations are apparent from the fact that despite a thorough investigation, no evidence were found for which the IO had submitted final report. Mr. Tripathy further contends that even otherwise, the basic ingredients necessary to constitute the alleged offences are not at all made out. Page 3 of 9 Therefore, the impugned order is untenable in the eye of law. 5. Per contra Mr. B.P. Das, learned counsel for the complainant-opposite party has argued that it is clearly revealed from the materials on record that the petitioners are guilty of withdrawing Rs.28 lakhs rupees from the Society’s account without any resolution or approval of the Executive body and had misappropriated the same. The alleged offences are therefore clearly made out for which the court below rightly took cognizance. 6. Reference to the final report submitted by the I.O. reveals that in course of investigation several witnesses were examined and their statements recorded under Section 161 of Cr.P.C.. Further, several documents such as audit report, bank statement, income and expenditure of the Old Age Home etc. were examined and it was found that the allegation of misappropriation was baseless. Perusal of the complaint petition revels that the same contains basically two allegations, namely, (i) the petitioners did not convene the meeting of the Governing Page 4 of 9 Body as per Clause-7(e) of the Bye-law and secondly, both the petitioners withdrew nearly Rs.28 lakhs of rupees without knowledge of the Executive body. The complainant claims to have reported the matter in the Collector and also the Hon’ble Minister who supposedly warned the Secretary time and again. 7. In his initial statement, the complainant referring to Clause-7 of the Bye-law stated that there should be a meeting of Governing Body once every three months regarding the day to day affairs and financial transaction of the organization. But from the 17.04.2020 neither General Body nor Governing Body meeting was held. The other two witnesses examined by the complainant have also stated the same thing. Thus, what emerges from the above is, the accused petitioners did not convene the meeting of the Governing Body/General Body as provided in the Bye-law. This Court fails to understand as to how this could be a criminal offence. It is significant to note that the Old Age Home in question is a society registered under the Societies Page 5 of 9 Registration Act, 1860 on 13.03.2020. Violation of the Bye- laws is a matter that can be considered within the four corners of the said Act or before the Competent Authority/Court. But, under no circumstances such violation can be attributed with any criminality so as to prosecute the violators. 8. As regards the other allegation, it is stated in the complaint petition that the accounts were submitted by the petitioners after a gap of twenty eight months and by then, Rs.28 lakhs rupees was transacted by them without knowledge of the Executive Body. The complainant in his initial statement has also stated the same thing. Surprisingly, both the witnesses examined by the complainant have expressed their ignorance about the withdrawal and disbursement of financial transaction of the organization. It is nowhere stated as to if the amount supposedly withdrawn was diverted by the petitioners for any other purpose or utilized by them in their personal capacities. What has been alleged is, belated submission of accounts which reveal transactions amounting to Rs.28 lakhs without approval of the Executive Body. This Court Page 6 of 9 again fails to understand as to how this can be treated as an act of misappropriation. It is settled law that to constitute offence of criminal breach of trust, there must be an entrustment, there must be misappropriation or conversion to one’s own use, or use in violation of a legal direction or of any legal contract; and the misappropriation or conversion or disposal must be with a dishonest intention. Reference may be had to the decision of the Apex Court in the case of Ram Narain Popli vs Central Bureau Of Investigation, reported in 2003 3 SCC 641. As stated earlier, there is not a whisper of allegation that the amounts supposedly withdrawn by the petitioners were converted to their own use. Withdrawal of the money, if at all without knowledge/approval of the Executive Body may be treated as a violation of the Bye-laws, but the same would not partake the nature of a crime as has been attempted to be made out by the complainant unless a clear case of misappropriation is made out. Moreover, there is nothing in the complaint petition, initial statement of the complainant and the statements of witnesses to suggest that the petitioners had a dishonest intention or motive to Page 7 of 9