The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLMC No. 1994 of 2021 & CRLMC No. 1216 of 2022 Applications under Section 482 of the Criminal Procedure Code, 1973. --------------- CRLMC No. 1994 of 2021 Chhaya Prava Dash @ Nayak & others ...… Petitioners -Versus- Smt. Girija Nandini Nayak ...…. Opp. Party CRLMC No. 1216 of 2022 Santosh Khatua ...… Petitioner -Versus- State of Odisha & another ...…. Opp.Parties Advocate(s) appeared in this case:- _________________________________________________________ : M/s. S.P. Mishra, S.S. Chaini, M. Sahoo & A. Sahoo, Advocates. [in CRLMC No. 1994 of 2021] For Petitioners M/s. A.K. Nath, S.K. Rout & P.K. Sahoo. [in CRLMC No. 1216 of 2022] For Opp. Parties : M/s. H.N. Tripathy, S.R. Tripathy & D. Barik, Advocates. [ in CRLMC No. 1994 of 2021] Mr. S.K. Mishra, Addl. Standing Counsel [in CRLMC No. 1216 of 2022] _________________________________________________________ Page 1 of 12 CORAM: JUSTICE SASHIKANTA MISHRA JUDGMENT 20th March, 2023 SASHIKANTA MISHRA, J. The three petitioners in CRLMC No. 1994 of 2021 and the sole petitioner in CRLMC No. 1216 of 2022 seek to challenge the order dated 18.03.2021 passed by learned J.M.F.C. (Rural), Balasore in ICC Case No. 16 of 2020 whereby he took cognizance of the offences under Sections 420/467/468/448/294/506/34 of IPC on the basis of the complaint filed by the present opposite party. 2.
Legal Reasoning
The brief facts of the case are that the opposite party- complainant having approached the police on 02.10.2019 to lodge an FIR against the petitioners, the same was not registered for which she filed the complaint in question before the court below. In the said complaint petition she has alleged that a partition suit being C.S. No. 1072/2005 relating to ancestral property of her husband was preliminarily decreed on 13.09.2010, wherein Chhaya Prava Nayak (petitioner No.1 in CRLMC No. 1994 of 2021) was the plaintiff. But after the death of her husband, the said Chhaya Prava Nayak managed to get a power of Page 2 of 12 attorney executed from her on 13.06.2012 and thereafter, herself executed a power of attorney in favour of one Santosh Khatua (petitioner in CRLMC No. 1216 of 2022). Thereafter, Chhaya Prava Nayak managed to sell the complainant’s share of the land and registered the same behind her back. On 08.07.2012, Chhaya Prava Nayak, Santosh Khatua and Krushna Chandra Dash (petitioner No.2 in CRLMC No. 1994 of 2021) came to the house of the complainant and took her signatures on some blank papers and also took her to the Sub-registrar’s office where her photograph was taken. On the same day, the complainant came to know that the petitioners had cheated her by showing sale of Ac.0.47 dec. of land through a fraudulent sale deed, the value of which is more than rupees one crore. They however, paid only Rs.3,00,000/- to the complainant. Having come to know about their intention, the complainant cancelled the power of attorney on 09.07.2012 but by such time, the petitioners had managed to sell away her entire share to one Prasanna Kumar Barik. The complainant thereafter requested the petitioners to pay the balance amount but they did not heed her request. On Page 3 of 12 01.10.2019 at about 7.00 p.m., all the petitioners came to her house with some antisocial persons, abused her and threatened to kill her if she demanded more money. On the complaint being filed, the initial statement of the complainant was recorded and enquiry under Section 202 of Cr.P.C. was taken up, wherein some witnesses were examined. Basing on the materials on record, the court below took cognizance of the offences as aforesaid by the impugned order. 3.
Legal Reasoning
Heard Mr. S.P. Mishra, learned Senior Counsel along with Mr. M. Sahoo, learned counsel for the petitioner in CRLMC No. 1994 of 2021; Mr. A.K. Nath, learned counsel for the petitioner in CRLMC No.1216 of 2022; Mr. S.R. Tripathy, learned counsel appearing for the complainant (opposite party in CRLMC No. 1994 of 2021 and opposite party No.2 in CRLMC No. 1216 of 2022) 4. Assailing the impugned order, Mr. S.P. Mishra, learned Senior Counsel contends that the very initiation of criminal proceedings is bad in law inasmuch as on the face of it, the same is a civil dispute given the colour of criminal offence. Mr. Mishra further submits that even otherwise as Page 4 of 12 per the complaint, the complainant was aware of the alleged fraud played by the petitioners way back on 09.07.2012, but she chose to remain silent till the year 2020 without offering even a semblance of explanation for such inordinate delay. It is also argued that even the allegation that the petitioners threatened and abused the complainant, is entirely false and baseless. Summing up his arguments, Mr. Mishra submits that if aggrieved, the complainant should have approached the competent Civil Court for redressal within the period of limitation and since she could not do so, she has come up with the criminal case only to harass and put pressure on the petitioners. Mr. Mishra has referred to certain judgments of the Apex Court, which will be discussed at the appropriate stage. 5. Mr. Nath, while adopting the arguments advanced by learned Senior Counsel further submits that he was the bonafide power of attorney holder of Chhaya Prava Nayak and has got nothing to do with the dispute between the parties, which is nothing but a family dispute and is also civil in nature. Page 5 of 12 6. Mr. S.R. Tripathy, learned counsel appearing for the complainant-opposite party submits that only because the dispute has elements of civil dispute, will not take away the criminal liability of the accused persons. He further submits that the very act of fraudulently selling away the share of the complainant by the accused petitioners without her knowledge amounts to the offence of cheating, besides forgery and related offences. Therefore, according to Mr. Tripathy, notwithstanding the fact that the dispute involves some civil elements, the criminal liability of the petitioners cannot be ignored. 7. In view of the rival submissions noted above, it is evident that the moot question that falls for consideration by this Court is, whether the dispute as per the complaint is purely civil in nature but given the cloak of a criminal case. On examination of the materials on record it is seen that there was a partition of the ancestral properties as per the preliminary decree passed in a suit (C.S. No. 1072/2005) filed by Chhaya Prava Nayak @ Dash. In the said suit, the husband of the complainant was defendant No.5. The suit was decreed on 13.09.2010 and Page 6 of 12 thereafter the husband of the complainant died. It is alleged that a power of attorney was obtained from the complainant on 13.06.2012 by Chhaya Prava Nayak, who in turn executed another power of attorney in favour of Santosh Khatua. The fact of execution of power of attorney on 13.06.2012 is not denied. It is further alleged that on 08.07.2012 the signatures of the complainant were obtained on blank stamp papers. It is borne out from the complaint petition that the complainant had gone to the office of the Sub-Registrar, where her photograph was taken. It is claimed that on the same day she came to know that the land belonging to her share measuring Ac. 0.47 dec. had been sold by the accused persons and she was paid Rs.3 lakhs. Therefore, on the next date, she cancelled the power of attorney. From the above narration it is evident that the complainant had willfully executed the power of attorney in favour of Chhaya Prava Nayak on 13.06.2012 and was also aware of the execution of power of attorney by the said Chhaya Prava Nayak in favour of Santosh Khatua. Further, she admits to have put her signatures on some blank Page 7 of 12 stamp papers and of having visited the Sub-Registrar’s office. Nowhere, it has been claimed that the power of attorney was forcibly obtained from her or her signatures and photographs were also so obtained. So, the fact of execution of the sale deed cannot be said to have occurred behind the back of the complainant. The dispute seems to be related to the amount of money paid to her towards consideration. While it is claimed that the complainant was paid only Rs. 3 lakh yet, as pointed out by learned Senior Counsel, the sale deed shows that the total consideration amount of Rs. 29,65,000 was paid to her. Since the registered sale deed contains the value of the transaction, no oral evidence can be adduced to rebut the same in view of the provision under Section 91 of the Indian Evidence Act. Even otherwise, if according to the complainant, the accused persons had cheated her by paying less than what she was entitled to, she could as well have ventilated her grievance by approaching the competent court of law at the relevant time. There is absolutely no explanation as to why she remained silent from 2012 till 2019. Page 8 of 12 8. Thus, this Court finds that the dispute as laid in the complaint is in essence, of civil nature but attempted to be given the cloak of a criminal offence. Since civil remedy is available, which the complainant chose not to avail, the case cannot partake of a criminal nature subsequently. It is well settled that a case may have both civil and criminal aspects but then the Court has to find out whether a purely civil dispute is given a criminal texture. If so, the criminal proceedings cannot be allowed to continue. Reference in this regard may be had in the decision of the Apex Court in the case of Paramjeet Batra v. State of Uttarakhand, reported in (2013) 11 SCC 673, wherein it was observed as under: “12.xxxxxxxxxx. Whether a complaint discloses a criminal offence or not depends upon the nature of facts alleged therein. Whether essential ingredients of criminal offence are present or not has to be judged by the High Court. A complaint disclosing civil transactions may also have a criminal texture. But the High Court must see whether a dispute which is essentially of a civil nature is given a cloak of criminal offence. In such a situation, if a civil remedy is available and is, in fact, adopted as has happened in this case, the High Court should not hesitate to quash the criminal proceedings to prevent abuse of process of the court.” Page 9 of 12 Similarly in the case of Vesa Holdings (P) Ltd. v. State of Kerala, (2015) 8 SCC 293, reported in (2015) 8 SCC 239, the Apex Court observed as follows: “13. It is true that a given set of facts may make out a civil wrong as also a criminal offence and only because a civil remedy may be available to the complainant that itself cannot be a ground to quash a criminal proceeding. The real test is whether the allegations in the complaint disclose the criminal offence of cheating or not. In the present case there is nothing to show that at the very inception there was any intention on behalf of the accused persons to cheat which is a condition precedent for an offence under Section 420 IPC. In our view the complaint does not disclose any criminal offence at all. The criminal proceedings should not be encouraged when it is found to be mala fide or otherwise an abuse of the process of the court. The superior courts while exercising this power should also strive to serve the ends of justice. In our opinion, in view of these facts allowing the police investigation to continue would amount to an abuse of the process of the High Court committed an error in refusing to exercise the the Criminal power under Section 482 of Procedure Code to quash the proceedings.” the court and 9. Since it is the complainant’s own case that she had executed the power of attorney and had herself gone to the office of the Sub-Registrar, it is not comprehended as to how the offence of cheating and/or forgery etc. is made out. In other words, there is simply no material to even remotely suggest that there was any intention on the part of the petitioners to cheat the complainant at the inception. Page 10 of 12 In view of what has been discussed hereinbefore relating to facts of the case as averred in the complaint petition itself, it is clear that the offences under Sections 420/467/468 of IPC are not made out at all. 10. In course of hearing it is brought to notice of this Court by the complainant herself by way of affidavit that the preliminary decree in C.S. No. 1072 of 2005 was challenged before this Court in RFA No.71 of 2013 and is presently under challenge before the Supreme Court of India in SLP(C) No. 5780 of 2018. Since the basic civil dispute is under adjudication, it is all the more reason why the criminal proceeding should not be allowed to proceed. 11. Coming to the allegation that on 01.10.2019, the petitioners went to the house of the complainant and abused her and threatened her if she demanded more money, this Court finds the same too farfetched and worded in very general terms. Nothing specific has been attributed. There is nothing to show that they had made a forcible entry into her house. Further, what abusive words were used, what weapon if any, the petitioners allegedly held etc. have not been stated at all. Therefore, the offences Page 11 of 12 under Sections 448/506/294 of IPC are prima facie, not made out. It is reiterated that merely an allegation, that too, in such general terms will not constitute the offences in question. 12. In the final analysis thus, this Court finds that the dispute between the parties is basically civil in nature and the criminal proceeding in question has evidently been launched by the complainant to pressurize the petitioners. In view of the settled position of law as discussed hereinbefore, this Court has no hesitation in holding that continuation of the proceedings would amount to an abuse of the process of the Court. 13. In the result, the CRLMCs are allowed. The criminal proceeding in 1CC Case No. 16 of 2020 in the Court of JMFC (Rural), Balasore is hereby quashed. ……..…………………….. Sashikanta Mishra, Judge Orissa High Court, Cuttack, The 20th March, 2023/ A.K. Rana, P.A. Page 12 of 12