Orissa High Court
Ashok Kumar Padhy vs Icfai Foundation And Another on 25 January, 2018
Author: S. K. Sahoo
Bench: S.K. Sahoo
IN THE HIGH COURT OF ORISSA, CUTTACK
CRLMC No. 3265 Of 2013
An application under section 482 of the Code of Criminal
Procedure, 1973 in connection with I.C.C. Case No.4995 of 2013
pending on the file of S.D.J.M., Bhubaneswar.
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Ashok Kumar Padhy ....... Petitioner
-Versus-
ICFAI Foundation
& another ....... Opp. parties
For Petitioner: - Mr. Pradipta Kumar Mohanty
Senior Advocate
For Opp. Party No.1: - Mr. D.N. Pattanaik
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P R E S E N T:
THE HONOURABLE MR. JUSTICE S.K. SAHOO
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Date of Hearing: 19.01.2018 Date of Judgment: 25.01.2018
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S. K. SAHOO, J.The petitioner Ashok Kumar Padhy who is the Managing Director of M/s. Auro Constructions, Bhubaneswar has filed this application under section 482 of Cr.P.C. for quashing the impugned order dated 05.09.2013 passed by the learned S.D.J.M., Bhubaneswar in I.C.C. Case No.4995 of 2013 in taking 2 cognizance of offence under section 420 of the Indian Penal Code and issuance of process against him.
2. The opposite party no.1 ICFAI Foundation for Higher Education through its Addl. Registrar Mr. Samad Noorus filed the complaint petition stating therein that the complainant is a registered trust having its registered office at Hyderabad. The complainant was in search of fifty acres of contiguous land in and around Bhubaneswar for establishing a University for imparting higher education. The petitioner came to know about the requirement of the complainant and approached him and represented himself as the Managing Director of M/s. Auro Constructions, a Partnership firm and power of attorney holder of M/s. Sofia Study Circle, Cuttack and promised to facilitate and arrange minimum fifty acres of contiguous land with clear title and free from encumbrances within mouza Similipatna and Anlapatna villages near Bhubaneswar. After several negotiations between the parties, an agreement for sale was executed between the parties on 12th May 2009 in the office of the petitioner for arranging fifty acres of contiguous land with clear title @ Rs.20,00,000/- per acre. The agreement contained certain terms like providing minimum fifty acres of land to ICFAI by the petitioner, for registration of the land and giving its 3 physical possession to the complainant. It was also provided in the agreement that the petitioner will settle all the issues and subsequent litigation with respect to the lands transferred to the complainant and that the complainant will withhold 10% of the amount due towards the cost of the land from every payment during registration process which would be returned within fifteen days of completion of registration of fifty acres of land to the complainant and on completion of the formalities like registration of land, conversion of land use, handing over of physical possession of land and completion of boundary wall. The agreement was notarized at Bhubaneswar on 12.05.2009.
It is the further case of the complainant that after entering into the sale agreement, the petitioner started acquiring the land and informed the complainant that the land acquired by him was free from litigations, encumbrances and having clear and marketable title. Believing the version of the petitioner to be true, the complainant purchased the land to an extent of Ac.34.815 decimals and got it registered in its name in mouza Similipatna and Anlapatna of Bhubaneswar. The complainant invested more than seven crores of rupees but though on paper, the land was shown to be in possession of the complainant but the petitioner never handed over the physical possession of the 4 land to the complainant and it was under the care, control and supervision of the petitioner holding for the complainant.
It is the further case of the complainant that when the complainant asked the petitioner to construct a boundary wall around the purchased land, one contractor was appointed on the request of the petitioner. While the work of leveling was under progress, the local people started obstructing the construction of boundary wall over the land purchased through the petitioner and dislodged the contractor and the workers from the site stating that they were the prior purchasers of the land and that they had prior title to such land. When the complainant contacted the petitioner, he was told by the petitioner that the dispute would be resolved and physical possession of the land would be handed over after completion of construction of the boundary wall for the entire land. One 144 Cr.P.C. proceeding was instituted against the locals for interfering with peaceful possession of the complainant and an F.I.R. was also lodged against the local persons with the police authorities.
It is the further case of the complainant that the petitioner breached the trust and cheated the complainant by inducing him to purchase land with clear and marketable title but from the Sub-Register's Office, it was ascertained that some of 5 the land purchased by the complainant was earlier sold to several purchasers and sale deeds were cancelled unilaterally without informing the said purchasers and subsequently the land was fraudulently transferred to the complainant. It is the further case of the complainant that the petitioner in order to gain personally from the amount which was received by him from the complainant, caused irreparable loss and injury to the complainant and gained immensely by wrongful and illegal means. It is the further case of the complainant that transferring of land without clear title amounts to dishonest intention on the part of the petitioner and right from the beginning i.e. from the date of entering into the sale agreement, receiving the amount from the complainant and executing fraudulent sale deeds were all with dishonest intention to cheat the complainant and gain wrongfully.
3. After filing of the complaint petition on 20.08.2013, initial statement of the complainant Samad Noorus, Addl. Registrar of ICFAI Foundation who was authorized to file the complaint petition was recorded and the case was posted for inquiry under section 202 of Cr.P.C. After one date, the complainant filed a memo to close the evidence and accordingly, on 05.09.2013 the learned Magistrate after going through the 6 case records, statement of the complainant recorded under section 200 of Cr.P.C., the documents filed on behalf of the complainant has been pleased to hold that dishonest intention is prima facie made out against the petitioner from his conduct and accordingly passed the impugned order.
4. Mr. Pradipta Kumar Mohanty, learned Senior Advocate appearing for the petitioner contended that the allegations clearly reveal civil disputes arising out of contractual obligation between the petitioner and the opposite party no.1 pertaining to the agreement dated 12.05.2009. It is contended that 144 Cr.P.C. proceeding was instituted by the opposite party no.1 as the first party against some private persons as the second parties in the Court of ACP -cum- Executive Magistrate, Bhubaneswar in CMC No.878 of 2011 who were causing disturbance and claiming title over some portion of the land purchased by the petitioner for the opposite party no.1 and the learned Executive Magistrate vide order dated 30.09.2011 held that the 1st party had established his right, title and interest on the case land and the 2nd parties were creating obstruction, annoyance which might violate public peace and tranquility in the case land and accordingly, they were restrained to create any disturbances and the IIC of Chandaka police station was 7 directed to implement the order strictly. It is further contended that not only the petitioner arranged the land but also registered sale deeds were executed and construction work of the boundary wall started. It is further contended that C.S. No.878 of 2013 and I.A. No.454 of 2013 were filed by the petitioner in the Court of learned Civil Judge, Senior Division, Bhubaneswar on 31.05.2013 seeking permanent injunction and also temporary injunction against the opposite party no.1 alleging non- performance of the contractual obligation arising out of the agreement and not cooperating and providing funds for further construction of the boundary wall and in not paying his dues of ten percent of the sale consideration withheld by the opposite party no.1 and by abandoning the idea of establishing the institute in Odisha and trying to sell away the land already purchased. It is further contended that the learned Civil Judge, Senior Division, Bhubaneswar passed the interim order on 03.06.2013 directing both the parties to maintain status quo and the opposite parties were directed not to alienate the suit land to the outsiders and not to create any third party interest over the suit lands. It is further contended that there is no element of cheating from the beginning in the performance of contractual obligation arising out of the agreement rather the petitioner 8 arranged Ac.34.815 decimals of land and the possession was taken over and the construction of the boundary wall started. It is further contended that since the opposite party no.1 did not show any further interest to cooperate with the construction of boundary wall and ultimately tried to escape from paying the legitimate dues of the petitioner for which civil suit was filed, after appearing in the same on being noticed, to frustrate the claim of the petitioner, the complaint petition was filed with an oblique motive. It is further contended that unless the complaint case proceeding and the impugned order of taking cognizance and issuance of process is quashed exercising the inherent power under section 482 of Cr.P.C., the petitioner will be seriously prejudiced. The learned counsel for the petitioner relied upon the decisions of the Hon'ble Supreme Court in the cases of Madhavrao Jiwaji Rao Scindia -Vrs.- Sambhajirao Chandrojirao Angre reported in A.I.R. 1988 S.C. 709, G. Sagar Suri -Vrs.- State of Uttar Pradesh reported in (2000) 18 Orissa Criminal Reports (SC) 355, Ram Biraji Devi -Vrs.- Umesh Kumar Singh reported in (2006) 34 Orissa Criminal Reports (SC) 457 & Indar Mohan Goswami
-Vrs.- State of Uttaranchal reported in (2008) 39 Orissa Criminal Reports (SC) 188.
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5. Mr. D.N. Pattanaik, learned counsel appearing for the opposite party no.1 on the other hand contended that the petitioner continued to mislead the complainant right from the beginning by way of false representation and promises by arranging disputed lands for the complainant and most of the lands were sold several times before. The proceeding under section 144 of Cr.P.C. is the proof of the litigation surrounding the land and area chosen by the petitioner and because of the litigations, the complainant could not get possession over the land and even one boundary wall became impossible since the date of purchase. It is further contended that the petitioner took advantage of the situation and position of the complainant as an outsider and did not convey the actual status of the land purchased. It is further contended that neither the actual possession of the lands were handed over to the complainant nor the conversion of the land was completed on account of oblique motive of the petitioner to grab huge amount of money from the complainant.
It is further contended that for setting up of a University, the State Government has also enacted an Act but it was due to the fraudulent conduct and intention of cheating of the petitioner, it could not be materialized. It is further 10 contended that the allegations in the complaint petition put forth a serious offence having a bearing on a vital societal interest and it is not an ordinary civil dispute rather a public interest in securing probity of titles or interest in land. It is further contended that on the garb of mercantile transaction, criminal liability cannot be over shadowed and ignored. The petitioner impressed upon the complainant regarding his status as a real estate firm and did not check or verify the title while transferring such a huge patch of land and not a single decimal of land was held by the petitioner. It is further contended that on a bare reading of different paragraphs of the complaint petition and the initial statement of the complainant makes out the ingredients of the offence under section 420 of the Indian Penal Code and plea of the petitioner can be gone into at the time of trial and therefore, the CRLMC application should be dismissed. The learned counsel for the opp. party no.1 relied upon the decisions of the Hon'ble Supreme Court in case of Parbatbhai Aahir @ Parbatbhai Bhimsinhbhai Karmur and Ors. -Vrs.- The State of Gujrat reported in (2017) 68 Orissa Criminal Reports (SC) 982 and Indian Oil Corporation -Vrs.- NEPC India Ltd. reported in (2006) 35 Orissa Criminal Reports (SC) 128. 11
6. The legal position regarding the scope of quashing of criminal case under section 482 Cr.P.C. by this Court is well- settled in a large number of the decisions of the Hon'ble Supreme Court. Some of such decisions placed by the learned counsels are discussed hereinbelow.
In case of Madhavrao Jiwaji Rao Scindia -Vrs.- Sambhajirao Chandrojirao Angre reported in A.I.R. 1988 S.C. 709, it is held as follows:
"7. The legal position is well-settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the Court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the Court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the Court cannot be utilised for any oblique purpose and where in the opinion of the Court chances of an ultimate conviction are bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the Court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage."
12
In case of Parbatbhai Aahir @ Parbatbhai Bhimsinhbhai Karmur and Ors. -Vrs.- The State of Gujrat reported in (2017) 68 Orissa Criminal Reports (SC) 982, it is held as follows:
"15. The broad principles which emerge from the precedents on the subject, may be summarised in the following propositions:
(i) Section 482 preserves the inherent powers of the High Court to prevent an abuse of the process of any court or to secure the ends of justice. The provision does not confer new powers. It only recognises and preserves powers which inhere in the High Court;
xxx xxx xxx xxx
(iii) In forming an opinion whether a criminal proceeding or complaint should be quashed in exercise of its jurisdiction Under Section 482, the High Court must evaluate whether the ends of justice would justify the exercise of the inherent power;
(iv) While the inherent power of the High Court has a wide ambit and plenitude, it has to be exercised; (i) to secure the ends of justice or (ii) to prevent an abuse of the process of any court."13
In case of M/s. Indian Oil Corporation -Vrs.- NEPC India Ltd. reported in (2006) 35 Orissa Criminal Reports (SC) 128, it is held as follows:
"9. The principles relating to exercise of jurisdiction under Section 482 of the Code of Criminal Procedure to quash complaints and criminal proceedings have been stated and reiterated by this Court in several decisions...... The principles, relevant to our purpose are:
(i) A complaint can be quashed where the allegations made in the complaint, even if they are taken at their face value and accepted in their entirety, do not prima facie constitute any offence or make out the case alleged against the accused.
For this purpose, the complaint has to be examined as a whole, but without examining the merits of the allegations. Neither a detailed inquiry nor a meticulous analysis of the material nor an assessment of the reliability or genuineness of the allegations in the complaint, is warranted while examining prayer for quashing of a complaint.
(ii) A complaint may also be quashed where it is a clear abuse of the process of the Court, as when the criminal proceeding is found to have been initiated with malafides/malice for wreaking vengeance or to cause harm, or where 14 the allegations are absurd and inherently improbable.
(iii) The power to quash shall not, however, be used to stifle or scuttle a legitimate prosecution. The power should be used sparingly and with abundant caution.
(iv) The complaint is not required to verbatim reproduce the legal ingredients of the offence alleged. If the necessary factual foundation is laid in the complaint, merely on the ground that a few ingredients have not been stated in detail, the proceedings should not be quashed.
Quashing of the complaint is warranted only where the complaint is so bereft of even the basic facts which are absolutely necessary for making out the offence.
(v) A given set of facts may make out: (a) purely a civil wrong; or (b) purely a criminal offence; or (c) a civil wrong as also a criminal offence. A commercial transaction or a contractual dispute, apart from furnishing a cause of action for seeking remedy in civil law, may also involve a criminal offence. As the nature and scope of a civil proceeding are different from a criminal proceeding, the mere fact that the complaint relates to a commercial transaction or breach of contract, for which a civil remedy is available or has been availed, is not by itself a ground to quash the criminal proceedings. The test is whether the allegations 15 in the complaint disclose a criminal offence or not.
10. While on this issue, it is necessary to take notice of a growing tendency in business circles to convert purely civil disputes into criminal cases. This is obviously on account of a prevalent impression that civil law remedies are time consuming and do not adequately protect the interests of lenders/creditors. Such a tendency is seen in several family disputes also, leading to irretrievable break down of marriages/families. There is also an impression that if a person could somehow be entangled in a criminal prosecution, there is a likelihood of imminent settlement. Any effort to settle civil disputes and claims, which, do not involve any criminal offence, by applying pressure through criminal prosecution should be deprecated and discouraged.
xxx xxx xxx xxx While no one with a legitimate cause or grievance should be prevented from seeking remedies available in criminal law, a complainant who initiates or persists with a prosecution, being fully aware that the criminal proceedings are unwarranted and his remedy lies only in civil law, should himself be made accountable, at the end of such misconceived criminal proceedings, in accordance with law. One positive step that can be taken by the 16 Courts, to curb unnecessary prosecutions and harassment of innocent parties, is to exercise their power under section 250 Cr.P.C. more frequently, where they discern malice or frivolousness or ulterior motives on the part of the complainant."
In case of G. Sagar Suri -Vrs.- State of Uttar Pradesh reported in (2000) 18 Orissa Criminal Reports (SC) 355, it is held as follows:
"8. Jurisdiction under section 482 of the Code has to be exercised with a great care. In exercise of its jurisdiction, High Court is not to examine the matter superficially. It is to be seen if a matter, which is essentially of civil nature, has been given a cloak of criminal offence. Criminal proceedings are not a short cut of other remedies available in law. Before issuing process, a criminal Court has to exercise a great deal of caution. For the accused it is a serious matter."
7. Keeping in view the principles laid down by the Hon'ble Supreme Court in the aforesaid decisions relating to the exercise of inherent power in quashing the criminal proceeding and coming to the case in hand, it appears that cognizance of offence under section 420 of the Indian Penal Code has been taken which has been challenged by the petitioner. 17
Section 420 of the Indian Penal Code deals with punishment for cheating and dishonestly inducing delivery of property. 'Cheating' has been defined in section 415 of the Indian Penal Code, The essential ingredients of the offence of 'cheating' are: (i) deception of a person either by making a false or misleading representation or by other action or omission (ii) fraudulent or dishonest inducement of that person to either deliver any property or to consent to the retention thereof by any person or to intentionally induce that person to do or omit to do anything which he would not do or omit if he were not so deceived and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property.
In case of S.W. Palanitkar and others -Vrs.- State of Bihar reported in A.I.R. 2001 S.C. 2960, it is held as follows:-
"24. Many a times, complaints are filed under section 200 Cr.P.C. by the parties with an oblique motive or for collateral purposes to harass, to wreak vengeance to pressurize the accused to bring them to their own terms or to enforce the obligations arising out of breach of contract touching commercial transactions instead of approaching civil courts with a view to 18 realize money at the earliest. It is also to be kept in mind that when parties commit a wrongful act constituting a criminal offence satisfying necessary ingredients of an offence, they cannot be allowed to walk away with an impression that no action could be taken against them on criminal side. A wrongful or illegal act such as criminal breach of trust, misappropriation, cheating or defamation may give rise to action both on civil as well as on criminal side. When it is clear from the complaint and sworn statements that necessary ingredients of constituting an offence are made out, may be parties are entitled to proceed on civil side only in a given situation in the absence of an act constituting an offence but not to proceed against the accused in a criminal prosecution. Hence before issuing a process, a Magistrate has to essentially keep in mind the scheme contained in the provisions of sections 200-203 of Cr.P.C. keeping in mind the position of law stated above and pass an order judiciously and not mechanically or in routine manner."
In case of Rajesh Bajaj -Vrs.- State of NCT of Delhi reported in 1999 (1) Orissa Law Reviews (SC) 668, it is held as follows:
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"9.It is not necessary that a complainant should verbatim reproduce in the body of his complaint all the ingredients of the offence he is alleging. Nor is it necessary that the complainant should state in so many words that the intention of the accused was dishonest or fraudulent....
11. The crux of the postulate is the intention of the person who induces the victim of his representation and not the nature of the transaction which would become decisive in discerning whether there was commission of offence or not. The complainant has stated in the body of the complaint that he was induced to believe that respondent would honour payment on receipt of invoices, and that the complainant realised later that the intentions of the respondent were not clear. He also mentioned that respondent after receiving the goods have sold them to others and still he did not pay the money. Such averments would prima facie make out a case for investigation by the authorities."
In case of Hridaya Ranjan Pd. Verma -Vrs.- State of Bihar reported in A.I.R. 2000 S.C. 2341, it is held as follows:
"15. On a reading of the section it is manifest that in the definition there are set forth two separate classes of acts which the person 20 deceived may be induced to do. In the first place he may be induced fraudulently or dishonestly to deliver any property to any person. The second class of acts set forth in the section is the doing or omitting to do anything which the person deceived would not do or omit to do if he were not so deceived. In the first class of cases, the inducing must be fraudulent or dishonest. In the second class of acts, the inducing must be intentional but not fraudulent or dishonest.
16.In determining the question, it has to be kept in mind that the distinction between mere breach of contract and the offence of cheating is a fine one. It depends upon the Intention of the accused at the time to inducement which may be judged by his subsequent conduct but for this subsequent conduct is not the sole test. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction, that is the time when the offence is said to have been committed. Therefore, it is the intention which is the gist of the offence. To hold a person guilty of cheating, it is necessary to show that he had fraudulent or dishonest intention at the time of making the promise. From his mere failure to keep up promise subsequently such a culpable 21 intention right at the beginning, that is, when he made the promise cannot be presumed."
In case of Ram Biraji Devi -Vrs.- Umesh Kumar Singh reported in (2006) 34 Orissa Criminal Reports (SC) 457, it is held as follows:
"10. The learned Magistrate in his order has categorically stated that perusal of the complaint would make it clear that there was a dispute in respect of sale and purchase of land between the parties. In our view even if the allegations made in the complaint are accepted to be true and correct, the appellants cannot be said to have committed any offence of cheating or criminal breach of trust. Neither any guilty intention can be attributed to them nor there can possibly be any intention on their part to deceive the complainant. No criminal case is made out by the complainant against the appellants in his complaint and in the statements of the complainant and his witnesses recorded by the Magistrate before taking of the cognizance of the alleged offences. The averments of the complaint and the statements of the complainant and his witnesses recorded by the Magistrate would amount to civil liability inter se the parties and no criminal liability can be attributed to the appellants on the basis of the material on record...."22
In case of Inder Mohan Goswami -Vrs.- State of Uttaranchal reported in (2008) 39 Orissa Criminal Reports (SC) 188, it is held as follows:
"40.Firstly, we shall deal with the section 420 IPC. Cheating is defined in section 415 IPC and is punishable under section 420 IPC.......
41. On a reading of the aforesaid section, it is manifest that in the definition there are two separate classes of acts which the person deceived may be induced to do. In the first class of acts, he may be induced fraudulently or dishonestly to deliver property to any person. The second class of acts is the doing or omitting to do anything which the person deceived would not do or omit to do if he were not so deceived. In the first class of cases, the inducing must be fraudulent or dishonest. In the second class of acts, the inducing must be intentional but need not be fraudulent or dishonest. Therefore, it is the intention which is the gist of the offence. To hold a person guilty of cheating it is necessary to show that he had a fraudulent or dishonest intention at the time of making the promise. From his mere failure to subsequently keep a promise, one cannot presume that he all along had a culpable intention to break the promise from the beginning."23
8. The factual scenario indicates that a sale agreement was executed between the petitioner as the 1st party and the opposite party no.1 as the 2nd party on 12.05.2009 for providing minimum of fifty acres of land by the petitioner to the opposite party no.1 and its affiliates in mouza Similipatna and Anlapatna under Bhubaneswar Tahasil for setting up a University by the opposite party no.1. Certain terms and conditions were stipulated in the said agreement. The petitioner was required to complete transfer registration of the land and conversion of land use (CLU) in respect of the said land and give physical possession of the land to the opposite party no.1. It further stipulated that the opposite party no.1 shall withhold ten percent of amount due towards the cost of land from every payment made during registration process which would be returned to the petitioner within fifteen days after registration of fifty acres of land and completion of registration, CLU, handing over physical possession of the land and completion of boundary wall which is to be constructed by the opposite party no.1 at his own cost. The agreement further stipulated that the petitioner shall try to settle all issues and subsequent litigation (if any) with respect to the lands. The agreement (Annexure-3) provides that the petitioner will provide all the land and other documents to Mr. Prasant 24 Routray, Advocate who will verify the documents provided by the petitioner and registration of land will proceed as per the advice/directions of the advocate.
The complaint petition clearly indicates that after entering into the agreement, the petitioner started acquiring the land and informed the opposite party no.1 and the opposite party no.1 purchased the lands to an extent of Ac.34.815 dec. in mouza Similipatna and Analapatna and it was registered in the name of the opposite party no.1. It is mentioned in the complaint petition that the petitioner informed the opposite party no.1 that the land acquired by him was free from litigations, encumbrances and having clear and marketable title. It is not clear as to whether all the land documents were produced before the concerned advocate of the opposite party no.1 for verification or not. The learned counsel for the petitioner contended that since a clause is stipulated in the agreement that registration of the land will be done only after verification of the documents of the land by the advocate and as per his advice/directions, it pre-supposes that the same has been done before registration which has been suppressed by the complainant in his complaint petition. At this stage, on the available materials, it would not be proper to express any 25 opinion on the submission made regarding verification of documents by the advocate of the complainant before registration of the lands.
On the face of the complaint petition, it is very difficult to hold that the petitioner had a fraudulent or dishonest intention at the time of making the promise for providing minimum fifty Acres of land to the opposite party no.1 for the purpose of setting up a University. It is apparent that the petitioner not only searched for the lands in mouza Similipatna and Anlapatna under Bhubaneswar Tahasil but arranged lands to the extent of Ac.34.815 dec. which were also registered in the name of the opposite party no.1. Some dispute arose while the boundary wall around the acquired land was under progress for which a proceeding under section 144 Cr.P.C. was instituted by the opposite party no.1 against some persons who were creating disturbances and the ACP -cum- Executive Magistrate, Bhubaneswar in CMC No.878 of 2011 observed in its order dated 30.09.2011 that the 1st party (opposite party no.1- complainant) has established his right, title and interest over the case land and the 2nd party members are creating obstruction, annoyance which may violate public peace and tranquility in the case land and therefore, the 2nd party members were restrained from 26 entering and interfering into the case land in any manner and the IIC, Chandaka Police Station was directed to strictly implement the order. This order which has been annexed as Annexure-8 clearly shows that even the learned Executive Magistrate was satisfied with the documents of land produced by the opposite party no.1 that he had established his right, title and interest over the case land and therefore, it cannot be prima facie accepted that the lands which were provided by the petitioner to the opposite party no.1 was not having a clear and marketable title. It further appears that there was some dispute between the parties relating to the alleged non-performance of contractual obligation arising out of the agreement dated 12.05.2009 by the opposite party no.1 and non-providing of fund for further construction of boundary wall and non-payment of the ten percent dues of sale consideration which was withheld by the opposite party no.1 and attempt made by the opposite party no.1 to sell away the land already purchased. The Civil Suit was instituted by the petitioner against the opposite party no.1 and interim order was passed directing both the parties to maintain status quo and the opposite parties to the Suit were directed not to alienate the suit land to the outsiders and not to create any 3rd party interest over the suit lands. It is also apparent that 27 after the interim order was passed in the Civil Suit against the opposite party no.1 and the opposite party no.1 entered its appearance, the complaint petition was filed. In the background of the case, it cannot be said that the petitioner had any fraudulent or dishonest intention at the time of execution of the agreement on 12.05.2009 rather it appears that the opposite party no.1 has adopted a short cut method in filing the complaint petition to bring the petitioner to its own terms and to pressurize him to withdraw the suit in which he was restrained from alienating the suit land to the outsiders and not to create any 3rd party interest. Therefore, there is no element of cheating available in the case and the complaint petition has been filed with an ulterior motive for wreaking vengeance on the petitioner. I am satisfied that the averment made in the complaint petition and sworn testimony of the witness examined does not make out the ingredients constituting the offence under section 420 of the Indian Penal Code. The disputes are essentially civil in nature and it has been given a cloak of criminal offence.
9. Adverting to the contentions raised by the learned counsels for the respective parties and the documents filed, without any meticulous analysis or assessment of the reliability or genuineness of the allegations made in the complaint petition, 28 I am of the humble view that the impugned order suffers from non-application of mind and it would amount to abuse of process if the proceeding is allowed to continue. Therefore, exercising my inherent power under section 482 of Cr.P.C., I am inclined to accept the prayer made in this application and direct that the impugned order dated 05.09.2013 passed by the learned S.D.J.M., Bhubaneswar in I.C.C. Case No.4995 of 2013 in taking cognizance of offence under section 420 of the Indian Penal Code and issuance of process against the petitioner stands quashed.
In the result, the CRLMC application is allowed.
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S. K. Sahoo, J.
Orissa High Court, Cuttack The 25th January, 2018/Pravakar/Sisir