The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLMC No.4126 of 2024 Soumendra Mohapatra & another …. Petitioners Mr. Ramani Kanta Pattanaik, Advocate State of Odisha …. Opp. Party -versus- Mr.U.R. Jena, AGA CORAM: JUSTICE SIBO SANKAR MISHRA ORDER 04.02.2025 1. The petitioners, by invoking the inherent jurisdiction of this Court under Section 528 of the BNSS, 2023/482 of Cr.P.C., 1973, are seeking quashing of the order dated 01.06.2024 passed by the learned JMFC-I, Bhubaneswar in C.T. Case No.313 of 2024, whereby the learned trial Court has taken the cognizance of the offences punishable under Sections 420/120(B)/ 467/468/294/506 of the IPC against the petitioners. 2. The allegation against the petitioners made by the complainant on the basis of which the F.I.R. has Page 1 of 7
Decision
Order No. 02. been registered is that the complainant Pabitra Kumar Mohapatra, Managing Director of M/s. Shogun Infra Projects Private Limited deals with the real estate business. On 20.05.2012, the petitioner No.1 intended to purchase a plot bearing No.662/1004, having an area A01.188 decimals, paid Rs.46,00,000/- (Rupees forty six lakhs) and subsequently, the complainant executed a deed of agreement for sale as well as executed a power of attorney on 18.06.2012 in favour of the petitioner No.1. The total consideration amount in respect of the said plot was finalized for an amount of Rs.1,60,00,000/- (Rupees one crore sixty lakhs). It is further alleged that though the petitioner No.1 had paid only Rs.61,00,000/- (Rupees sixty one lakhs) out of the total consideration amount of Rs.1,60,00,000/- (Rupees one crore sixty lakhs) but by virtue of the power of attorney, executed by the informant, the petitioner No.1 has alienated the said plot in the name of six purchasers through two registered sale deeds. In spite of several demand by the informant for the balance amount, the petitioner No.1 did not pay the same, rather used un-parliamentary languages and threatened to commit his murder. 3. After the investigation, the charge sheet was filed in the present case on 31.05.2024. The learned trial Court, by taking into consideration the allegations in the charge sheet and the materials form part of the Page 2 of 7 charge sheet, has taken cognizance of the offences by the impugned order. The petitioners are aggrieved by the same and are seeking quashment of the entire criminal prosecution. 4. Learned counsel for the petitioners has taken me to the allegations made in the F.I.R. and the charge sheet and also taken me to various other documents to submit that, this is a pure and simple civil matter, however criminal colour has been given to achieve ulterior motive. The petitioners have appropriate remedy under the civil law and the civil suit being C.S. No.967 of 2017 has already been filed, which is pending in the Court of the learned Civil Judge (Senior Division), Bhubaneswar. The dispute amongst the parties can be thrashed out in the said civil proceeding. However, the informant has employed the present method of initiating the criminal prosecution against the petitioners to arm-twist the petitioners to get undue advantage. He has also submitted that the sale of the land, which is alleged against the petitioners, is on the basis of the Power of Attorney given by the opposite party in favour of the accused persons. There is no illegality or criminality involved in it. 5. Mr. Pattanaik, learned counsel for the petitioners also relied upon the judgment of the Hon’ble Supreme Court in the case of Naresh Kumar & another vs. Page 3 of 7 The State of Karnataka & another reported in SLP (Crl.) No.1570 of 2021). He has emphatically relied upon paragraphs-7 & 8 of the said judgment which reads as under: “7. Essentially, the present dispute between the parties relates to a breach of contract. A mere breach of contract, by one of the parties, would not attract prosecution for criminal offence in every case, as held by this Court in Sarabjit Kaur v. State of Punjab and Anr. (2023) 5 SCC 360. Similarly, dealing with the distinction between the offence of cheating and a mere breach of contractual obligations, this Court, in Vesa Holdings (P) Ltd. v. State of Kerala, (2015) 8 SCC 293, has held that every breach of contract would not give rise to the offence of cheating, and it is required to be shown that the accused had fraudulent or dishonest intention at the time of making the promise. 8. In the case at hand, the dispute between the parties was not only essentially of a civil nature but in this case the dispute itself stood settled later as we have already discussed above. We see no criminal element here and consequently the case here is nothing but an abuse of the process. We therefore allow the appeal and set aside the order of the High Court dated 02.12.2020. The criminal proceedings arising out of FIR No.113 of 2017 will hereby stand quashed.” 6. Relying upon the afore-cited judgment of the Hon’ble Supreme Court, Mr. Pattanaik, learned counsel for the petitioners submits that, the facts of the said case resemble with the facts of the present case. The Hon’ble Supreme Court has laid down the law authoritatively that a criminal case filed against the accused, which is essentially arising out of a breach of contract is abuse of process of law. Page 4 of 7 7. Mr. Jena, learned Additional Government Advocate appearing for the opposite party-State, on the other hand, has vehemently opposed the prayer made by the learned counsel for the petitioners and submits that, the further investigation in the present case is still open under Section 173(8) of the Cr. P.C. At this stage, this Court may not give indulgence to the petitioners in view of the serious nature of the allegations. 8. I have carefully gone through the documents placed before this Court in the present case and so also the material form part of the charge sheet. 9. It is apparently clear that, from the allegation made by the complainant which has been investigated by the local police, the prima facie case appears to be made out against the petitioners. Therefore, the learned trial Court has rightly taken the cognizance of the same. At the stage of cognizance, the Court is required to see only whether the prima facie case is made out or not. 10. It would be apt to refer to the judgement of the Hon’ble Apex court in the case of S.K. Sinha, Chief Enforcement Officer vs. Videocon International Ltd., reported in AIR 2008 SC 1213. “The expression 'cognizance' has not been defined in the Code. But the word (cognizance) is of indefinite import. It has no esoteric or mystic Page 5 of 7 significance in criminal law. It merely means 'become aware of' and when used with reference to a Court or a Judge, it connotes to take notice of 'judicially'. It indicates the point when a Court or a Magistrate takes judicial notice of an offence with a view to initiating proceedings in respect of such offence said to have been committed by someone. 'Taking cognizance' does not involve any formal action of any kind. It occurs as soon as a Magistrate applies his mind to the suspected commission of an offence. Cognizance is taken prior to commencement of criminal proceedings. Taking of cognizance is thus a sine qua non or condition precedent for holding a valid trial. Cognizance is taken of an offence and not of an offender. Whether or not a Magistrate has taken cognizance of an offence depends on the facts and circumstances of each case and no rule of universal application can be laid down as to when a Magistrate can be said to have taken cognizance. 'Conditions Chapter XIV (Sections 190-199) of the Code deals with initiation of requisite proceedings'. Section 190 empowers a Magistrate in certain to take cognizance of an offence circumstances. Sub-section (1) thereof is material and may be quoted in extenso. for 1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under Sub-section (2), may take cognizance of any offence- (a) upon receiving a complaint of facts which constitute such offence; (b) upon a police report of such facts; (c) upon information received from any person other than a police officer, or upon his own knowledge, offence has been committed.” such that 11. In view of the aforementioned discussion, I am not inclined to entertain the present petition at this Page 6 of 7 stage. Hence, the CRLMC is dismissed. However, dismissal of the present petition will not preclude the petitioners to avail other remedy at the stage of framing of the charge. If any such application is moved by the petitioners before the trial Court, the same shall be considered independent of the observations made by this Court in the present order. Judge Subhasis (S.S. Mishra) Signature Not Verified Digitally Signed Signed by: SUBHASIS MOHANTY Designation: Personal Assistant Reason: Authentication Location: High Court of Orissa, Cuttack. Date: 06-Feb-2025 10:32:02 Page 7 of 7