Orissa High Court
Narayan Chandra Muduli vs Mahendra Kumar Mishra & Another ... on 26 July, 2013
Author: B.R.Sarangi
Bench: B.R.Sarangi
ORISSA HIGH COURT: CUTTACK
CRLMC No. 2610 of 2004
In the matter of an application under Section 482 of the Code of Criminal
Procedure.
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Narayan Chandra Muduli ......... Petitioner
-versus-
Mahendra Kumar Mishra & another ......... Opposite Parties
For petitioner : M/s. Sangam Kumar Sahoo, Smt. G. Sahoo,
A.P.Ray, M.K.Mallick, D.P.Pattnaik &
B.P.Mohanty
For opp. parties : Mr. Arun Kumar Acharya
PRESENT:
THE HONOURABLE DR. JUSTICE B.R.SARANGI
Date of hearing & Judgment: 26.07.2013
Dr. B.R.Sarangi, J.The petitioner has filed this application challenging the order dated 10.9.2004 passed by the learned S.D.J.M., Kendrapara in ICC Case No. 80 of 1998 dismissing the complaint petition under Section 203 of the Code of Criminal Procedure.
2. The petitioner filed a complaint petition against the opposite parties indicating that the opposite party no.1 is a clerk in the Syndicate Bank, Kendrapara and the opposite party no.2 is his mother-in- law. The father of the petitioner purchased a Tractor bearing registration No.OR-02-8629 and Trailor bearing registration No.OR-02-8630 being 2 financed by the Syndicate Bank, Kendrapara not only for cultivation purpose but also for transportation of building materials. Since there was default in payment of monthly installment to the bank towards repayment of the loan amount, the Branch Manager issued demand notice to the father of the petitioner. Due to poor financial condition, as the installment amount could not be paid in due time, the opposite party no.1 and other officials of the bank gave threatening to the father of the petitioner to file money suit for realization of the loan amount. The opposite party no.1 came to the house of the petitioner on 1.2.1996 and proposed that the opposite party no.2 is interested to take the Tractor and the Trailor on hire basis for her unemployed son. On 15.3.1996 as per the oral agreement between the parties, the opposite parties took the Tractor and the Trailor with the agreement to pay Rs.2,000/- per month to the father of the petitioner and rest Rs.7,000/- per month to be deposited in the Syndicate Bank, Kendrapara by opposite party no.1 towards clearance of the loan amount. The said agreement was valid till 31.3.1998. On the basis of such oral agreement, the vehicle in question was delivered on 20.3.1996 to the opposite party no.2 and assurance was given to the father of the petitioner by them to execute an acknowledgment deed on 21.3.1996. The father of the petitioner came to Kendrapara on 21.3.1996 and signed on a blank stamp paper in good faith as per the instruction of the opposite parties for execution of a deed of acknowledgment. It is further stated in the complaint petition that though they were paying Rs.2,000/- per month from April, 1996 onwards but they defaulted in making payment since August, 1997. Due to non-payment of the dues of the bank, the bank filed Money suit No. 23 of 1997 and T.M.S.No. 26 of 1997 for realization of the 3 loan amount from the petitioner, his father and other brothers in the court of learned Civil Judge (Senior Division), Kendrapara. Coming to know about the cheating, the petitioner and his father met opposite party no.1 on 27.04.1998 at Kendrapara and requested him to return the tractor and the trailor along with the outstanding amount but the latter did not pay any heed rather threatened them to assault. The opposite parties also affixed a fake number on the front number plate i.e. OAU-9055 of the tractor to cheat the petitioner and his father.
3. To the above allegation the learned Magistrate examined the petitioner and conducted enquiry under Section 202 Cr.P.C. and thereafter, by order dated 01.05.1998 took cognizance of the offence under Section 403/406/506 read with Section 34 of I.P.C. against the opposite parties.
4. The opposite party no.2 preferred Criminal Misc. Case NO.2909 of /1999 under Section 482 Cr.P.C. before this Court to quash the proceeding initiated against her. This Court by order dated 26.8.2003 quashed the order of cognizance and directed the court below to reconsider all the matterials available on record afresh. Thereafter, the petitioner filed a petition for summoning the witnesses namely, Arakhita Jena and Gunanidhi Jena and for recording their evidence during enquiry. But the same was rejected by the learned Magistrate vide order dated 20.08.2004 stating that there was no such direction by this Court in the aforesaid Criminal misc. case. Learned Magistrate after reconsidering the order of cognizance and scanning the evidence, dismissed the complaint petition vide order dated 10.09.2004 under Annexure-1.
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5. Mr. Sahoo, learned counsel for the petitioner strenuously urged that dismissal of the complaint petition is illegal inasmuch as it is the consistent case of the petitioner that the contract between the parties is oral in nature and there is no document in that respect. Since the petitioner's father, Akuli Muduli is the registered owner of the vehicle and the bank has filed the suit against him for realization of the loan amount, it prima facie establishes the ownership as well as fault of the petitioner's father to repay the amount. The possession of the vehicle with the opposite parties at the time of filing of complaint petition is another circumstance against them. Thus, in what way the opposite parties came to possess the vehicle is within their special knowledge and they have to controvert the evidence appearing against them by leading cogent and reliable materials which should have been adjudicated during trial. Mr. Sahoo further urged that reconsideration of the materials available on record pursuant to the order of this Court dated 26.08.2003 passed in Criminal Misc. Case NO.2909 of 1999 does not mean that the court below has to review its earlier order rather he should have applied his mind in proper perspective and instead of dismissing the complaint petitioner relying on the materials available on record, should have proceeded with the matter to find out the correctness of the allegations. To substantiate his contention he has relied upon the judgment of the Supreme Court in Adalat Prasad V. Roplal Jindal & Ors., (2004) 29 OCR (SC)-264.
6. On perusal of the aforesaid judgment, it is found that being aggrieved by the order of issuance of process the appellant before the apex Court and some of the accused moved the High Court and the High 5 Court in the said petition directed the petitioners therein to move the trial court against the order of summoning and pursuant to the said order of the High Court the appellant therein filed an application purported to be under Section 203 Cr.P.C. and the learned trial judge after hearing the parties recalled the said summons. After thorough analysis, the apex Court held that if the Magistrate takes cognizance of an offence, issues process without there being any allegation against the accused or any material implicating the accused or in contravention of the provisions of section 200 and 202 of the Cr.P.C., the order of the Magistrate may be vitiated, but then the relief an aggrieved accused can obtain at that stage is not invoking Section 203 of Cr.P.C. because the Code of Criminal Procedure does not contemplate a review of an order. Hence in the absence of any review power or inherent power with the sub-ordinate criminal courts, the remedy lies in invoking Section 482 Cr.P.C.
7. In view of the law laid down by the apex Court, it is apparently clear that the learned S.D.J.M., Kendrapara has committed grave error apparent on the face on the record by dismissing the complaint petition. More so, when application was filed to examine two witnesses on behalf of petitioners to provide materials, non-consideration of such application and proceeding with the matter afresh, amounts to arbitrary and unreasonable exercise of power by the learned Magistrate. Rather after permitting the petitioner to examine two witnesses as per his application and considering the materials on record, he should have proceeded with the matter instead of dismissing the complaint petition at the threshold. Thus, I am of the opinion that the impugned order dated 10.09.2004 6 passed in I.C.C. NO.80 of 1998 under Annexure-1 suffers from gross material irregularity. Accordingly, the same is quashed. The learned Magistrate is directed to examine the two witnesses, namely, Arakhita Jena and Gunanidhi Jena for recording their evidence during enquiry and reconsider the matter afresh on the basis of the materials, which will be in conformity with the order dated 26.08.2003 passed in Criminal Misc. Case No.2909 of 1999.
8. With the aforesaid observation and direction, the CRLMC is allowed.
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Dr.B.R.Sarangi, J.
Orissa High Court, Cuttack The 26th July, 2013/PKSahoo