The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLMC NO.1897 of 2016 (In the matter of application under Section 482 of the Criminal Procedure Code, 1973). Babi Panda … Petitioner -versus- State of Orissa and another … Opposite Parties For Petitioner : Mr. C.A. Rao, Advocate For Opposite Parties : Mr. S.S. Pradhan, AGA [O.P.No.1] None[O.P. No.2] CORAM: JUSTICE G. SATAPATHY DATE OF HEARING :09.02.2023 DATE OF JUDGMENT:20.03.2023 G. Satapathy, J. 1. The petitioner by way of this application U/S.482 of Cr.P.C. prays to quash the entire criminal proceeding initiated against her in G.R. Case No.233 of 2012 arising out of Rayagada P.S. Case No.92 of CRLMC No.1897 of 2016 Page 1 of 14 2012 as a sequel of complaint in 1.C.C. No.30 of 2011 pending in the file of learned S.D.J.M., Rayagada. 2.
Facts
The background of facts in precise are the petitioner, according to O.P.No.2, started a private Chit Fund Scheme of a group of 20 persons including O.P.No.2 and, accordingly, each of the group members was to deposit a sum of Rs.5,000/- (Rupees Five Thousand) per month and there would be a monthly draw in which the highest bidder would take the amount so deposited by all the 20 members and the tenure of the scheme would be one year. The scheme accordingly ran and O.P.No.2 was regularly paying Rs.5,000/- (Rupees Five Thousand) only per month to the petitioner towards the installment of the scheme and the petitioner was also receiving the said sum by entering the fact in a small book supplied to O.P.No.2 and, in the process, CRLMC No.1897 of 2016 Page 2 of 14 O.P.No.2 paid a sum of Rs.90,000/- (Rupees Ninety Thousand) only with effect from 20.02.2009 till 30.07.2010, but O.P.No.2 never took part in the monthly draws as she wanted to take up the total amount of Rs.1,00,000/- (Rupees One Lakh) for utilizing the same for the marriage of her daughter. While the matter stood thus, the petitioner got transferred from Rayagada to Gunupur as she was working as a Junior Clerk (Government Servant) and, thereby, she acknowledged her liability to pay Rs.1,85,500/- (Rupees One Lakh Eighty Five Thousand and Five Hundred) to O.P.No.2 and one Padma Swain at the time of her transfer, but she subsequently did not pay that amount. On being aggrieved, O.P.No.2 filed a complaint against the petitioner in 1.C.C. No.30 of 2011 before the learned S.D.J.M., Rayagada, who by an order sent the complaint to Police U/S.156(3) of Cr.P.C., which was CRLMC No.1897 of 2016 Page 3 of 14 accordingly registered vide Rayagada P.S. Case No.92 dated 11.06.2012 for offences U/Ss.406/420 of IPC paving the way for investigation in this case which culminated in submission of charge-sheet against the petitioner for offence U/Ss.406/420 of IPC under which the learned S.D.J.M., Rayagada took cognizance and issued summons against the petitioner. In the above backdrop, the petitioner challenges her implication in this case by praying to quash the entire criminal proceeding initiated against her in this application U/S.482 of Cr.P.C. 3.
Legal Reasoning
investigation in the matter, but it cannot be disputed that the complaint filed by O.P.No.2 was not supported by an affidavit and in fact, there was no prayer by O.P.No.2 to send the complaint U/S.156(3) of Cr.P.C. In such situation, this Court is conscious of the decision rendered by this Court in Anil Kumar Agarwalla @ Mandothia (supra) wherein by referring to the decision in Priyanka Srivastava Vrs. State of Uttar Pradesh; (2015) 6 SCC 287, this Court at Paragraph-6 has held as under: “6. Assuming that such a complaint could be treated as an application Section 156(3) Cr.P.C. then as explained by the Supreme Court in Priyanka Srivastava (supra), it had to be supported by an affidavit which obviously was not. The legal positions as explained by the CRLMC No.1897 of 2016 Page 6 of 14 Supreme Court in the aforementioned case are as under: “29. At this stage it is seemly to state that power under Section 156(3) warrants application of judicial mind. A court of law is involved. It is not the police taking steps at the stage of Section 154 of the Code. A litigant at his own whim cannot invoke the authority of the Magistrate. A principled and really grieved citizen with clean hands must have free access to invoke the said power. It protects the citizens but when pervert litigations takes this route to harass their fellow citizens, efforts are to be made to scuttle and curb the same. 30. In our considered opinion, a stage has come in this country where Section 156(3) CrPC applications are to be supported by an affidavit duly sworn by the applicant who seeks the invocation of the jurisdiction of the Magistrate. That apart, in an appropriate case, the learned Magistrate would be well advised to verify the truth and also can verify the veracity of the allegations. This affidavit can make the applicant more responsible. We are compelled to say so as such kind of applications are being filed in a routine manner without any responsibility whatsoever only to harass certain persons. That apart, it becomes more disturbing and alarming when one tries to pick up people who are passing orders under a can be challenged under the framework of the said Act or under Article 226 of the Constitution of India. But it cannot be done to take undue advantage in a criminal court as if somebody is determined to settle the scores. statutory provision which taking CRLMC No.1897 of 2016 Page 7 of 14 31. We have already indicated that there has to be prior applications under Sections 154(1) and 154(3) while filing a petition under Section 156(3). Both the aspects should be clearly spelt out in the application and necessary documents to that effect shall be filed. The warrant for giving a direction that an application under Section 156(3) be supported by an affidavit is so that the person making the application should be conscious and also endeavour to see that no false affidavit is made. It is because once an affidavit is found to be false, he will be liable for prosecution in accordance with law. This will deter him to casually invoke the authority of the Magistrate under Section 156(3). That apart, we have already stated that the veracity of the same can also be verified by the learned Magistrate, regard being had to be nature of allegations of the case. We are compelled to say so as a number of cases pertaining to fiscal sphere, matrimonial disputes, commercial offences, medical negligence cases, corruption cases and the cases where there is abnormal delay/laches in initiating criminal prosecution, as are illustrated in Lalita Kumari V. State of U.P. (2014) 2 SCC 1 are being filed. That apart, the learned Magistrate would also be aware of the delay in lodging of the FIR.” dispute/family 6. A genuine prima facie survey of the certified copy of the FIR and charge-sheet together with statement of three witnesses U/S.161 of Cr.P.C. as enclosed by the petitioner in this case disclose no CRLMC No.1897 of 2016 Page 8 of 14 seizure of any document to indicate collection of money by the petitioner, although the complaint/FIR reveals about O.P.No.2 enclosing a Xerox copy of payment slip at Annexure-1 of the complaint. The statement of witnesses Susmita Gouda and Smita Sahoo are hit by hearsay evidence as both of them had stated to have heard the matter about petitioner floating a scheme for collection of money and their statements categorically appear to have no reference about deposit by OP No.2 in the Chit Fund Scheme as alleged by the complainant/O.P.No.2. In this case, the commission of offence U/Ss.406/420 of IPC have been alleged, but a bare reading of the complaint/FIR would not go to disclose that the petitioner had misappropriated or diverted any money of the O.P.No.2 for her own use, much less no documentary evidence had been collected by the Investigating Agency to prima facie reveal about any CRLMC No.1897 of 2016 Page 9 of 14 entrustment or payment of any amount by O.P.No.2 to the petitioner, of course it is alleged by O.P.No.2 that the petitioner had acknowledged to have owed a total amount of Rs.1,85,500/- (Rupees One Lakh Eighty Five Thousand and Five Hundred) from O.P.No.2 and another member of the Chit Fund Scheme. It is also alleged in the complaint/FIR that the petitioner had endorsed/acknowledged the aforesaid fact of refund of amount to O.P.No.2 and another in the book supplied to O.P.No.2, but what prevented her not to produce such book containing the endorsement of the petitioner. These are of course facts involved in this case. The legal position/principle in this regard is not disputed that at the time of taking cognizance of offence, detailed and meticulous examination of the materials/allegation raised against the accused person is impermissible, but the Court has to find CRLMC No.1897 of 2016 Page 10 of 14 out prima facie ingredient of the offence for which cognizance is taken. It is not the case of the O.P.No.2 that by deceiving, the petitioner fraudulently or dishonestly induced her to deliver the installment amount as alleged, rather the allegation on record reveals about O.P.No.2, petitioner and others by forming a group had started the Chit Fund Scheme, but there is neither any prima facie materials or documents collected in the course of investigation to indicate about any entrustment of cash/property to the petitioner nor is there any allegation of deceiving the group members, rather the same discloses about breach of oral contract. In the circumstance and background of facts and allegations involved in this case, mere inability of the petitioner to return the amount as agreed cannot give rise to a criminal prosecution for cheating, unless fraudulent or dishonest intention shown right CRLMC No.1897 of 2016 Page 11 of 14 at the beginning of floating of the scheme, as it is this mensrea which is the crux of the offence and failure of the petitioner to return the money in absence of any written agreement would not ipso facto constitute any offence of criminal breach of trust or cheating against the petitioner. 7. The principle governing quashing of criminal cases as laid down in State of Haryana & others Vrs. Bhajan Lal & others; 1992 Supp (1) SCC 335 is a locus classicus by itself and the Apex Court in Paragraph-102(3) of the aforesaid case has held as under:- (3) Where the uncontroverted “102. allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.” 8. In view of the discussion made hereinabove and keeping in view the allegation appearing against CRLMC No.1897 of 2016 Page 12 of 14 the petitioner prima facie does not constitute any offence of cheating and misappropriation and regard being had to the principle laid down in Anil Kumar Agarwalla @ Mandothia (supra) vis-à-vis the undisputed fact of absence of an affidavit in support of the complaint for sending it U/S.156(3) of Cr.P.C. requiring the police to register it as an FIR, which of course has been done in this case, this Court considers that the present criminal proceeding against the petitioner is nothing but an abuse of process of Court and to secure the ends of justice, the criminal proceeding initiated against the petitioner arising out of Rayagada P.S. Case No.92 of 2012 corresponding to G.R. Case No.233 of 2012 and the order passed thereon on 27.01.2014 by learned S.D.J.M., Rayagada taking cognizance of offences U/Ss.406/420 of IPC being unsustainable in the eye of law, are required to be quashed. CRLMC No.1897 of 2016 Page 13 of 14 9.
Arguments
In the course of hearing the CRLMC, Mr. C.A. Rao, learned counsel for the petitioner by relying upon the decision in the case of Anil Kumar Agarwalla @ Mandothia Vrs. State of Odisha and another; 2023 (l) OLR-389 and Vitla Venkata Rao and others Vrs. Suttapalli Venkata Rao; 1983 CLR 80 submits inter-alia that the CRLMC No.1897 of 2016 Page 4 of 14 complaint sent to police station without being supported with an affidavit, is not at all entertainable by the police and the very inception of the complaint to be registered as a Rayagada P.S. Case No.92 of 2012 is not maintainable in the eye of law and on that score, it is required to be quashed. It is further submitted by him that in Vitla Venkata Rao (supra) which is a similar matter, this Court however, had quashed the proceeding on the ground no offence is being made out against the petitioner. 4. On contrary, Mr. S.S. Pradhan, learned AGA, however, submits that the materials on record definitely disclose the ingredient of offence and, thereby, the criminal proceeding initiated against the petitioner cannot be quashed. None appears for the O.P.No.2 despite being duly noticed as confirmed in postal tracking report. CRLMC No.1897 of 2016 Page 5 of 14 5. In addressing the rival contentions, it seems that the complaint was sent to the police station U/S.156(3) of Cr.P.C. by the learned S.D.J.M., Rayagada for registration of the case and
Decision
In the result, the CRLMC is allowed on contest, but in circumstance, there is no order as to costs. As a logical sequitur, the impugned order taking cognizance of offences together with the criminal proceeding as a whole is hereby quashed. (G. Satapathy) Judge Orissa High Court, Cuttack, Dated the 20th of March, 2023/Subhasmita CRLMC No.1897 of 2016 Page 14 of 14