The High Court
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK CRLMC No. 2549 of 2024 An application under Section 482 of the Code of Criminal Procedure. Prasant Kumar Das ..…. Petitioner -------------- -versus- 1. State of Odisha 2. Balamukunda Das …… Opp. Parties ----------------------------------------------------------------------------- For Petitioner : Mr. Pratap Kumar Mohanty, Advocate For Opp. Parties : Ms. Sarita Moharana, A.S.C. (for O.P. No.1) Mr. Bharat Bhusan Routray, Advocate ----------------------------------------------------------------------------- (for O.P. No.2) CORAM: HON’BLE MISS JUSTICE SAVITRI RATHO J U D G M E N T 31.07.2025 Savitri Ratho, J. This application under Section 482 of the Code of Criminal Procedure has been filed for quashing the order dated 03.06.2019 passed by the learned Judicial Magistrate First Class, Banpur (in short “JMFC”) in G.R. Case No.58 of 2019 arising out of Banpur Police Station Case No.42 of 2019, taking cognizance of the offences CRLMC No. 2549 of 2024 Page 1 of 22 punishable under Sections 420, 294, 506 of the Indian Penal Code (in short “IPC”). This case has been filed in this Court on 25.06.2024 and numbered on 07.05.2024 by which time accused statement had already been recorded. Interim order granted on 07.08.2024 permitting the petitioner to pray for an adjournment in the trial Court has been vacated on 11.03.2025. FACTUAL MATRIX 2. The allegation in brief as per the First Information Report (in short “FIR”) is that the informant had paid Rs.3,80,000/- to the accused for the purchase of a generator. He had promised to repay the same within a month. But as he did not return the amount, there was a settlement with the mediation of Banpur Police on 14.06.2017 and the accused promised to execute a registered sale deed at the Banpur Registration Office. He did not do so but abused the informant in obscene languages and threatened him, for which the informant
Legal Reasoning
appellants. He seems to have prima facie lost the period of limitation for filing such a civil suit. CRLMC No. 2549 of 2024 Page 7 of 22 40. In such circumstances referred to above, the continuation of the criminal proceeding would be nothing but abuse of the process of law. xxx xxx xxx 43. It is high time that the police officers across the country are imparted proper training in law so as to understand the fine distinction between the offence of cheating viz-a-viz criminal breach of trust. Both offences are independent and distinct. The two offences cannot coexist simultaneously in the same set of facts. They are antithetical to each other. The two provisions of the IPC (now BNS, 2023) are not twins that they cannot survive without each other. In the case of M/s. Medchl Chemicals and Pharma Pvt. Ltd., vs. M/s. Biological E. Ltd. & Others reported in AIR 2000 SC 1869, it is held as follows:- “17. On careful reading of the complaint, in our view, it cannot be said that the complaint does not disclose the commission of an offence. The ingredients of the offences under Sections 415, 418 and 420 cannot be said to be totally absent on the basis of the allegations in the complaint. We, however, hasten to add that whether or not the allegations in the complaint are otherwise correct has to be decided on the basis of the evidence to be led at the trial in the complaint case but simply because of the fact that there is a remedy provided for breach of contract, that does not by itself clothe the Court to come to a conclusion that civil CRLMC No. 2549 of 2024 Page 8 of 22 remedy is the only remedy available to the appellant herein. Both criminal law and civil law remedy can be pursued in divers situations. As a matter of fact they are not mutually exclusive but clearly co-extensive and essentially differ in their content and consequence. The object of criminal law is to punish an offender who commits an offence against a person, property or the State for which the accused, on proof of the offence, is deprived of his liberty and in some cases even his life. This does not, however, affect civil remedies at all for suing the wrongdoer in cases like arson, accidents etc. It is anathema to suppose that when a civil remedy is available, a criminal prosecution is completely barred. The two types of actions are quite different in content, scope and impart” [vide Pratibha Rani v. Suraj Kumar (AIR) 1985 SC 628 : 1985 Cri LJ 817]. 19. Considering the factual aspect of the matter, we unhesitatingly state, however, that the issue involved in the matter under consideration is not a case in which the criminal trial should have been short circuited. We, thus, without expressing any opinion on the merits of the case allow the Appeal and set aside the impugned order of the High Court and restore the complaint. The learned trial Magistrate shall proceed with the complaint and dispose of the same in accordance with the law with utmost expectation. Be it clarified however that observations as above in this CRLMC No. 2549 of 2024 Page 9 of 22 judgment be not taken as an expression of opinion of ours.” In the case of M/s. Zandu Pharmaceutical Works Ltd. & Others vs. Md. Sharaful Haque & 7 Others reported in AIR 2005 SC 9, it was held that: “As noted above, the powers possessed by the High Court under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. The High Court being the highest court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hard-and-fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceeding at any stage. It would not be proper for the High Court to analyse the case of the complainant in the light of all probabilities in order to determine whether a conviction would be sustainable and on such premises arrive at a conclusion that the proceedings are to be quashed. It would be erroneous to assess the material before it and conclude that the complaint cannot be proceeded with. In a proceeding instituted on complaint, exercise of the inherent powers to quash the proceedings is called for only in a case where the complaint does not disclose any offence or is frivolous, vexatious or oppressive. If CRLMC No. 2549 of 2024 Page 10 of 22 the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, it is open to the High Court to quash the same in exercise of the inherent powers under Section 482 of the Code. It is not, however, necessary that there should be meticulous analysis of the case before the trial to find out whether the case would end in conviction or acquittal. The complaint has to be read as a whole. If it appears that on consideration of the allegations in the light of the statement made on oath of the complainant that the ingredients of the offence or offences are disclosed and there is no material to show that the complaint is mala fide, frivolous or vexatious, in that event there would be no justification for interference by the High Court. When an information is lodged at the police station and an offence is registered, then the mala fides of the informant would be of secondary importance. It is the material collected during investigation and evidence led in court which decides the fate of the accused person. The allegations of mala fides against the informant are of no consequence and cannot by themselves be the basis for quashing the proceedings.” the In the case of Achin Gupta vs. State of Haryana & Another reported in AIR 2024 SC 2548, it was held that: “20. It is now well settled that the power under Section 482 of the Cr.P.C. has to be exercised sparingly, carefully and with caution, only where such exercise is justified by the tests laid down in the Section itself. It is also well settled that Section 482 of the Cr.P.C. does not confer any new power on the High Court but only saves the inherent power, which the Court possessed before the enactment of the Criminal Procedure Code. the There are three circumstances under which CRLMC No. 2549 of 2024 Page 11 of 22 inherent jurisdiction may be exercised, namely (i) to give effect to an order under the Code, (ii) to prevent abuse of the process of Court, and (iii) to otherwise secure the ends of justice. 21. The investigation of an offence is the field exclusively reserved for the Police Officers, whose powers in that field are unfettered, so long as the power to investigate into the cognizable offence is legitimately exercised in strict compliance with the provisions under Chapter XII of the Cr.P.C.. While exercising powers under Section 482 of the Cr.P.C., the court does not function as a Court of appeal or revision. As noted above, the inherent jurisdiction under the Section, although wide, yet should be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the Section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone courts exist. The authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has the power to prevent such abuse. It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers, the court would be justified to quash any proceeding if it finds that the initiation or continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto. CRLMC No. 2549 of 2024 Page 12 of 22
Arguments
Mr. Pratap Kumar Mohanty, learned counsel appearing for the petitioner submitted that the allegations made in the FIR are completely false and fabricated and no document has been produced CRLMC No. 2549 of 2024 Page 2 of 22 in support of the allegation that the informant had given any money to the petitioner for purchase of generator. He submitted that even accepting the allegations against the petitioner to be true, the offence under Section 420 of IPC is not made out against the petitioner. Even if it is found that a loan had been given to the petitioner and he failed to repay it, it would be a civil dispute. He also submitted that six witnesses including the informant have been examined in the trial, but their evidence does not make out the offences under Sections 420, 294, 506 of IPC against the petitioner. Their depositions which have been annexed to this CRLMC and may at best make out a civil dispute. He finally submitted that false allegations have been made against him so as to make out the offence under Sections 294 and 506 of IPC against him. He has relied upon the following decisions in support of his submissions:- i) Jit Vinayak Arolkar vs. State of Goa & Others reported in AIR 2025 SC 361 ii) Delhi Race Club (1940) Ltd. & Others vs. State of Uttar Pradesh & Anther reported in AIR 2024 SC 4531 iii) M/s. Medchl Chemicals and PharmaPvt. Ltd., vs. M/s. Biological E. Ltd. & Others reported in AIR 2000 SC 1869 CRLMC No. 2549 of 2024 Page 3 of 22 4. Mr. Bharat Bhusan Routray, learned counsel appearing on behalf of Opposite Party No.2 submitted that the order dated 03.06.2019 has been challenged taking cognizance of the offence under section 420 IPC along with other offences but in the meanwhile, the trial has progressed and accused statement has been recorded on 16.03.2024. He further submits that the case is now posted for argument in the learned trial Court. 5. Ms. Sarita Moharana, learned Additional Standing Counsel for the State submitted that as the evidence of witnesses have already been recorded in the trial, it would not be proper for this Court to interfere with the order of cognizance which has been passed almost six years ago. JUDICIAL PRONOUNCEMENTS 6. The Supreme Court in the case of Jit Vinayak Arolkar vs. State of Goa & Others, reported in AIR 2025 SC 361, it is held as follows:- “12. It is pertinent to note that the purchasers under the sale deeds have not made any grievance about the sale deeds. In the case of Mohd. Ibrahim v State of Bihar, in paragraphs 20 to 23, this Court held thus: “20. When a sale deed is executed conveying a property claiming ownership thereto, it may be possible for the purchaser under such sale deed to CRLMC No. 2549 of 2024 Page 4 of 22 allege that the vendor has cheated him by making a false representation of ownership and fraudulently induced him to part with the sale consideration. But in this case the complaint is not by the purchaser. On the other hand, the purchaser is made a co-accused. 21. It is not the case of the complainant that any of the accused tried to deceive him either by making a false or misleading representation or by any other action or omission, nor is it his case that they offered him any fraudulent or dishonest inducement to deliver any property or to consent to the retention thereof by any person or to intentionally induce him to do or omit to do anything which he would not do or omit if he were not so deceived. Nor did the complainant allege that the first appellant pretended to be the complainant while executing the sale deeds. Therefore, it cannot be said that the first accused by the act of executing sale deeds in favour of the second accused or the second accused by reason of being the purchaser, or the third, fourth and fifth accused, by reason of being the witness, scribe and stamp vendor in regard to the sale deeds, deceived the complainant in any manner. 22. As the ingredients of cheating as stated in Section 415 are not found, it cannot be said that there was an offence punishable under Sections 417, 418, 419 or 420 of the Code. A clarification CRLMC No. 2549 of 2024 Page 5 of 22 23. When we say that execution of a sale deed by a person, purporting to convey a property which is not his, as his property, is not making a false document and therefore not forgery, we should not be understood as holding that such an act can never be a criminal offence. If a person sells a property knowing that it does not belong to him, and thereby defrauds the person who purchased the property, the person defrauded, that is, the purchaser, may complain that the vendor committed the fraudulent act of cheating. But a third party who is not the purchaser under the deed may not be able to make such complaint.” (emphasis added) 12.1 In this case, it is impossible to understand how the appellant deceived the 4th respondent and how the act of execution of sale deeds by the appellant caused or was likely to cause damage or harm to the 4th respondent in body, mind, reputation or property. The appellant has not purported to execute the sale deeds on behalf of the 4th respondent. He has not purported to transfer the rights of the 4th respondent. There is no allegation that the appellant deceived the 4th respondent to transfer or deliver the subject property. 13. Taking the complaint as correct, the offence of cheating under Section 415 of IPC was not made out against the appellant. Moreover, the complaint was filed by the 4th respondent for the first time after a time gap of two years from the date of institution of the civil CRLMC No. 2549 of 2024 Page 6 of 22 suits. In the complaint, he suppressed the fact that civil suits were already filed in which applications for temporary injunction were made. When there was a dispute over the title, the act of the 4th respondent of setting in motion criminal law two years after the date of filing of the suits amounts to nothing but abuse of the process of law.” In the case of Delhi Race Club (1940) Ltd. & Others vs. State of Uttar Pradesh & Anther reported in AIR 2024 SC 4531, it is held as follows: “32. Even if the Magistrate would have issued process for the offence punishable under Section 420 of the IPC, i.e., cheating the same would have been liable to be quashed and set aside, as none of the ingredients to constitute the offence of cheating are disclosed from the materials on record.” xxx xxx xxx 38. If it is the case of the complainant that a particular amount is due and payable to him then he should have filed a civil suit for recovery of the amount against the appellants herein. But he could not have gone to the court of Additional Chief Judicial Magistrate by filing a complaint of cheating and criminal breach of trust. 39. It appears that till this date, the complainant has not filed any civil suit for recovery of the amount which according to him is due and payable to him by the