Orissa High Court
Reliance Industries Ltd vs Shyam Sundar Sharma ......... Opposite ... on 30 July, 2018
Equivalent citations: AIRONLINE 2018 ORI 244
Author: S. K. Sahoo
Bench: S.K. Sahoo
IN THE HIGH COURT OF ORISSA: CUTTACK
CRLMC No. 359 Of 2012
An application under section 482 of the Code of Criminal
Procedure, 1973 in connection with I.C.C. Case No. 69 of 2009
pending on the file of S.D.J.M., Athagarh.
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Reliance Industries Ltd. ......... Petitioner
-Versus-
Shyam Sundar Sharma ......... Opposite party
For Petitioner: - Mr. Gautam Mukherji
Mr. Partha Mukherji
For Opposite Party: - Mr. Ashutosh Mishra
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P R E S E N T:
THE HONOURABLE MR. JUSTICE S.K. SAHOO
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Date of Judgment: 30.07.2018
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S. K. SAHOO, J. The petitioner Reliance Industries Limited (hereafter
'R.I.L.') represented through its State Head Sri Viren K Joshi has
filed this application under section 482 of the Code of Criminal
Procedure, 1973 invoking inherent powers of this Court to quash
the impugned order dated 01.11.2011 passed by the learned
S.D.J.M., Athagarh in I.C.C. Case No.69 of 2009 in taking
cognizance of offences under sections 420, 384, 427, 471, 467
2
read with section 34 of the Indian Penal Code and issuance of
process against the R.I.L.
2. The opposite party-complainant Shyam Sundar
Sharma filed a complaint petition in the Court of learned
S.D.J.M., Athagarh alleging therein that he was fraudulently
persuaded by Sangramjeet Mohanty and Sarbeswar Mohanty of
the R.I.L. to establish a R.I.L. Petrol Pump at Khuntuni. They
assured a guaranteed profit margin as per their commission
structure. The complainant was persuaded to purchase a land
measuring Ac.1.70 dec. at a huge cost through the land brokers
engaged by the R.I.L. All steps were taken before the Collector
and Executive Engineer (N.H.) by the R.I.L. and its
representatives for obtaining 'No Objection Certificate' for
establishment of a retail outlet at Khuntuni under the name and
style of 'M/s. Shyam Filling Station'. The R.I.L. fraudulently
induced the complainant to execute a lease deed and a
dealership agreement and being deceived, the complainant and
the R.I.L. entered into dealership agreement as well as lease
deed on 22.08.2005. It is the further case of the complainant
that he signed and executed both the deeds and delivered the
same to the R.I.L. and its representatives. The R.I.L. induced the
complainant to pay a sum of Rs.3,00,000/- (rupees three lakhs)
3
as signing fee and Rs.23.5 lakhs as security deposit. It is stated
that the R.I.L. and its authorized representatives extorted the
complainant for causing loss of property to the tune of Rs.26.5
lakhs. As per the terms of dealership agreement, the R.I.L. was
supposed to continue delivering petrol, diesel and allied products
to the filling station of the complainant. The R.I.L. fraudulently
convinced the complainant that finances to run the outlet would
be arranged by them and the filling station shall run at the rate
fixed by the Government earning profit for the complainant.
It is the further case of the complainant that R.I.L.
and its officers and agents acted in connivance with the
authorities of the State Bank of India and especially the Branch
Manager of the State Bank of India, Athagarh Branch in
providing finance to the tune of Rs.1.19 crores in favour of the
complainant as a term loan and cash credit enabling him to
complete the construction of the filling station as per the
approved layout and design of R.I.L. and for operation of the
filling station. On 29.10.2005 the complainant was compelled to
sign a tripartite agreement with R.I.L. and State Bank of India on
deceitful and fraudulent terms. The R.I.L. and State Bank of
India and their representatives at all relevant time fraudulently
made the complainant believe that they would act bona fide as
4
per the terms of the documents and shall cooperate for
appropriate and proper functioning and operation of the filling
station. The tripartite agreement ex facie shows that the R.I.L.
was interested in setting up and running the retail outlet and the
R.I.L. shall not terminate the dealership and shall not stop
supplying the products to the complainant and that the R.I.L.
had undertaken to act as per the terms and conditions of the
agreement. According to the complainant, the tripartite
agreement was extorted by fraudulent representations.
It is the further case of the complainant that the
complainant operated the outlet for a period of two years as per
the instructions and directions of the R.I.L. issued from time to
time. The complainant had invested more than Rs.60 lakhs of his
own funds for promotion and continuance of the outlet. During
that period, there was inter se correspondence between the
R.I.L. and the State Bank of India. Suddenly on 19.04.2008 the
R.I.L. suspended supply of petrol and diesel with effect from
01.05.2008 to the outlet of the complainant and till the filing of
the complaint petition, they did not resume the supply and
resorted to flimsy plea of non-support of Government of India.
According to the complainant, suspension of supply was a part of
criminal conspiracy of the accused to swindle and cheat him of
5
his valuable assets and properties. Immediately on suspension of
the outlet with effect from 01.05.2008, the accused Branch
Manager of State Bank of India demanded payment of the
outstanding loan by its letter dated 31.05.2008 which according
to the complainant was issued at the instance of the R.I.L. A
further letter was issued by State Bank of India on 26.06.2008
making an offer to the complainant for 'buy bank' to the R.I.L.
for regularizing the loan account. According to the complainant,
in the entire process, he incurred loss of about rupees one crore.
It is the further case of the complainant that he
initially filed a complaint petition before the learned S.D.J.M.,
Sadar, Cuttack in I.C.C. Case No.2340 of 2008 as the
inducement was done in its Cuttack Office but the said Court was
pleased to dispose of the complaint and returned the complaint
petition to the complainant for re-presentation before the proper
Court as per section 201 of the Code of Criminal Procedure by
passing an order on 24.12.2008. The complainant then filed a
Criminal Revision No.2 of 2009 before the learned Sessions
Judge, Cuttack challenging the order dated 24.12.2008 passed
by the learned S.D.J.M., Sadar, Cuttack and the revisional Court
after hearing both the sides was also pleased to confirm the
order passed by the learned S.D.J.M. vide judgment and order
6
dated 08.04.2009. Accordingly, the complainant filed the
complaint petition i.e. I.C.C. Case No.69 of 2009 before the
learned S.D.J.M., Athagarh.
3. After filing of the complaint petition, the learned
S.D.J.M. recorded the initial statement of the complainant under
section 200 of Cr.P.C. and conducted inquiry under section 202
of Cr.P.C., during course of which the complainant examined
three witnesses. After perusing the complaint petition, the initial
statement and the statements of witnesses recorded under
section 202 of Cr.P.C., the learned Magistrate passed the
impugned order.
4. Mr. Gautam Mukherji, learned counsel appearing for
the petitioner with all the wits at his command contended that
the complaint petition is not supported by a duly sworn affidavit
or in the form of a verification duly signed by the complainant
and therefore, learned Magistrate was not justified in proceeding
with such a complaint. He relied upon the decision of the Hon'ble
Supreme Court in cases of Priyanka Srivastava -Vrs.- State
of U.P. reported in (2015) 61 Orissa Criminal Reports (SC)
719. He argued that the learned Magistrate without properly
evaluating and appreciating the materials available on record
passed the impugned order in a most mechanical manner. It is
7
contended that after grant of permission for marketing
transportation of fuels to Reliance Petroleum Ltd. (hereafter
'R.P.L.') by the Government of India as per its policy decision,
the R.P.L. got merged with R.I.L. and the R.I.L. became R.P.L.'s
successor in title upon rights and interest including marketing
rights of R.P.L. so granted. The petitioner started setting up
outlets across the country under various categories and
newspaper advertisements were made inviting dealers for the
petroleum retail outlets at various places and in response to such
advertisement of the petitioner, the complainant-opposite party
submitted his application for a dealership for the petroleum
pump retail outlet at Khuntuni. The complainant was selected as
a dealer and he was issued with a Letter of Intent dated
18.12.2004 on agreeable terms and conditions. After following
the due process, the complainant entered into and executed a
detailed dealership agreement on 22.08.2005 with the petitioner
so also a lease deed dated 22.08.2005. The complainant
approached the State Bank of India for financial assistance for
the construction of his retail outlet which was granted to him by
the bank on certain terms. At the request of the complainant,
the petitioner agreed to and joined in executing a tripartite
agreement on 29.10.2005 between the bank, the petitioner and
8
the complainant. Mr. Mukherji further contended that during
August 2004, the international prices of crude oil started rising
rapidly. The retail prices of the petroleum products which were
sold by the public sector oil marketing companies under the
Ministry of Petroleum and Natural Gas, Government of India
were not correspondingly increased. While the loss of PSU oil
companies was compensated by the Government by way of
subsidies given to the PSU oil companies, directly by the
Government or by way of discount in supply of crude oil by
upstream Government Sector oil companies and sharing of the
losses by other Public Sector Oil and Gas companies, no such
relief was granted to the R.I.L. In spite of that the petitioner did
not increase the prices of petroleum products for about two
years with a view to assist dealers by keeping retail prices of
petroleum products at R.I.L.'s retail outlets at par with the retail
selling price of PSU oil companies. In spite of representation to
the Government by R.I.L. to extend the fuel subsidies to the
R.I.L. at par with subsidies given to the PSUs, there was no
response for which in May 2006, the R.I.L. was compelled to
increase the retail selling price of petroleum products. The PSU
oil companies continued to sell petroleum products at prices
lower than the R.I.L. which was possible because of fuel
9
subsidies offered to them by the Government either by way of
discount in product or sharing of subsidy returns. The sales at
the retail outlets of the R.I.L. progressively reduced on account
of price differential and the R.I.L. decided to suspend supply of
petroleum products to all its retail outlets progressively with
effect from 1st May 2008 in view of the losses and damages.
According to Mr. Mukherji, it was a force majeure situation and
beyond the control of the petitioner. By way of an Addl. Affidavit
dated 06.11.2016, it is stated by the petitioner that the decision
of the Government of India to again make the price of diesel
market determined, was communicated through a press release
dated 18.10.2014 and also the international crude prices have
fallen enabling the petitioner company to resume its retail outlets
spread over the country progressively. It is contended that when
during hearing of ARBP No.3 of 2009, responding to the
suggestion of this Court for an amicable settlement, the
petitioner company made offer to resume the supply to the
outlet of the opposite party, it was submitted on behalf of the
opposite party that the land on which the retail outlet was
situated had already been sold in auction, pursuant to
proceedings passed in SARFAESI Act. The learned counsel for the
petitioner has filed various documents in support of his
10
contention. It is further contended that the allegations leveled
against the petitioner regarding fraudulent inducement to the
complainant to open the retail outlet and later on suspending
supply of petroleum products intentionally, are completely
frivolous and misconceived. It was argued that there was
contractual relationship between both the parties and the
remedy open to the complainant in case of failure of the
petitioner to perform its contractual obligation lies in the civil
action and not by way of a criminal proceeding. It is contended
that the State Bank of India exercised its rights under the
tripartite agreement and called upon the petitioner to terminate
the dealership agreement dated 22.08.2005 entered into by the
petitioner with the complainant and accordingly, the petitioner
by its letter dated 01.07.2010 addressed to the complainant,
terminated the dealership agreement. It was argued that the
complainant after getting demand notice from the Bank on
03.12.2008 instituted the complaint petition which reflects the
oblique motive of the complainant. It is further contended that
the allegations made in the complaint petition, even if are taken
on its face value do not prima facie constitute the ingredients of
the offences under which the impugned order was passed and
the allegations are highly absurd and inherently improbable and
11
on the basis of such allegations, no prudent person can reach a
just conclusion that there is sufficient ground for proceeding
against the petitioner. It is highlighted by Mr. Mukherji that the
complainant has instituted several proceedings before various
forums on similar grounds as alleged in the complaint petition.
The complainant filed a consumer case before the State
Commission which was dismissed on 28.04.2011 and he
approached the National Consumer Disputes Redressal
Commission, New Delhi against such order which was also
dismissed. An Arbitration Petition bearing ARBP No.3 of 2009
was instituted before this Court by the complainant under section
11(6) of the Arbitration and Conciliation Act, 1996 (hereafter
'1996 Act') for appointment of an arbitrator which has been
disposed of on 21.07.2016 by appointing an arbitrator. Another
arbitration application bearing No.22 of 2009 was instituted
before the learned District Judge, Cuttack under section 9 of the
1996 Act which is subjudiced. He placed reliance in the cases of
M/s. Thermax Ltd. -Vrs.- K.M. Johny reported in (2011) 50
Orissa Criminal Reports (SC) 616, Harshendra Kumar D.
-Vrs.- Rebatilata Koley reported in (2011) 48 Orissa
Criminal Reports (SC) 861, M/s. Indian Oil Corporation
-Vrs.- M/s. NEPC India Ltd. reported in (2006) 35 Orissa
12
Criminal Reports (SC) 128, International Advanced
Research Centre -Vrs.- Nimra Cerglass reported in (2015)
62 Orissa Criminal Cases (SC) 635, Dhananjay -Vrs.- State
of Bihar reported in (2007) 36 Orissa Criminal Reports
(SC) 697, Nagendranath Roy -Vrs.- Dr. Bijoy Kumar
reported in (1991) 4 Orissa Criminal Reports 457, A. S.
Krishnan -Vrs.- State of Kerala reported in (2004) 28
Orissa Criminal Reports (SC) 113, Subodh Chandra Shome
-Vrs.- Durga Madhab Das reported in 1985 (II) Orissa Law
Reviews 115 and Ashok Kumar Padhy -Vrs.- ICFAI
Foundation reported in (2018) 70 Orissa Criminal Reports
133.
5. Mr. Ashutosh Mishra, learned counsel appearing for
the opposite party on the other hand while supporting the
impugned order, raised preliminary objection regarding
maintainability of the application under section 482 of Cr.P.C. to
challenge the order of taking cognizance. He placed reliance in
the case of Ramesh Samal -Vrs.- Chabi Mandal reported in
1987 (I) Orissa Law Reviews 1. He argued that when the
learned Magistrate has found prima facie case against the
petitioner and the ingredients of the offences are clearly made
out, invoking of jurisdiction under section 482 of Cr.P.C. is not
13
warranted. It is further contended that the documents relied
upon by the learned counsel for the petitioner are virtually the
defence plea of the accused which cannot be considered at this
stage and at the appropriate stage of trial, the petitioner has to
prove those documents in accordance with law and the relevancy
of such documents can be looked into by the trial Court and not
by this Court while invoking its inherent powers under section
482 of Cr.P.C. which is to be used very sparingly. He relied upon
the decisions of the Hon'ble Supreme Court in cases of Sonu
Gupta -Vrs.- Deepak Gupta reported in (2015) 60 Orissa
Criminal Reports (SC) 993, Fiona Shrikhande -Vrs.- State
of Maharashtra reported in (2014) 57 Orissa Criminal
Reports (SC) 285, R. Kalyani -Vrs.- Janak C. Mehta
reported in (2009) 42 Orissa Criminal Reports (SC) 162,
Amanullah -Vrs.- State of Bihar reported in (2016) 64
Orissa Criminal Reports (SC) 304, Sampelly -Vrs.- Indian
Renewable Energy reported in (2016) 65 Orissa Criminal
Reports (SC) 583, HMT Watches -Vrs.- M.A. Abida
reported in 2015 (I) Orissa Law Reviews (SC) 1012 and
Kamala Devi Agarwal -Vrs.- State of W.B. reported in 2002
(I) Orissa Law Reviews (SC) 173.
14
6. Adverting to the contentions raised by the learned
counsels for the respective parties carefully and minutely and
after going through the petitions, documents filed, written notes
of submission and the citations placed during course of
argument, it would be proper to deal with each of them point
wise.
(i) Maintainability of the application under section
482 of Cr.P.C. in the prayer for quashing cognizance:
Preliminary objection was raised by the learned
counsel for the opposite party relating to the maintainability of
this application under section 482 of Cr.P.C. in challenging the
order taking cognizance. He placed reliance in case of Ramesh
Samal -Vrs.- Chabi Mandal reported in 1987 (I) Orissa
Law Reviews 1 in which the Sessions Judge had dismissed the
revision petition preferred by the petitioners on the ground that
an order taking cognizance is an interlocutory one and a revision
is barred under section 397(2) of the Code. When the matter
was challenged, a Division Bench of this Court held that an order
taking cognizance is not an interlocutory order and can be
revised by the High Court or the Court of Session. There is
nothing in the decision cited that an application under section
15
482 of Cr.P.C. challenging the order taking cognizance is not
maintainable.
The Code of Criminal Procedure, 1973 has provisions
at each stage to correct errors, failures of justice and abuse of
process under the supervision and superintendence of the High
Court. The High Court has inherent powers under section 482 of
the Code to correct errors of the Courts below and pass such
orders as may be necessary to do justice to the parties and/or to
prevent the abuse of process of Court.
In the case of State through Special Cell, New
Delhi -Vrs.- Navjot Sandhu reported in (2003) 6 Supreme
Court Cases 641, it was held that section 482 of the Criminal
Procedure Code starts with the words "nothing in this Code".
Thus the inherent jurisdiction of the High Court under section
482 can be exercised even when there is a bar under section 397
or some other provisions of the Criminal Procedure Code. The
most common case where inherent jurisdiction is generally
exercised is where criminal proceedings are required to be
quashed because they are initiated illegally, vexatiously or
without jurisdiction. It must be remembered that the inherent
power is not to be resorted to if there is a specific provision in
16
the Code or any other enactment for redress of the grievance of
the aggrieved party.
The Hon'ble Supreme Court in case of State of
Bihar -Vrs.- Murad Ali Khan reported in A.I.R. 1989 S.C. 1
held as follows:-
"6. It is trite that jurisdiction under Section 482
Cr.P.C., which saves the inherent power of the
High Court, to make such orders as may be
necessary to prevent abuse of the process of
any Court or otherwise to secure the ends of
justice, has to be exercised sparingly and with
circumspection. In exercising that jurisdiction,
the High Court should not embark upon an
enquiry whether the allegations in the complaint
are likely to be established by evidence or not.
That is the function of the trial Magistrate when
the evidence comes before him. Though it is
neither possible nor advisable to lay down any
inflexible rules to regulate that jurisdiction, one
thing, however, appears clear and it is that
when the High Court is called upon to exercise
this jurisdiction to quash a proceeding at the
stage of the Magistrate taking cognizance of an
offence, the High Court is guided by the
allegations, whether those allegations, set out in
the complaint or the charge-sheet, do not in law
constitute or spell out any offence and that
resort to criminal proceedings would, in the
17
circumstances, amount to an abuse of the
process of the Court or not."
In case of State of West Bengal and Ors. -Vrs.-
Mohammed Khalid reported in A.I.R. 1995 S.C. 785, it is
held as follows:-
"63. It is, therefore, manifestly clear that
proceedings against an accused in the initial
stages can be quashed only if on the face of the
complaint or the papers accompanying the
same, no offence is constituted. In other words,
the test is that taking the allegations and the
complaint as they are, without adding or
subtracting anything, if no offence is made out
then the High Court will be justified in quashing
the proceedings in exercise of its powers under
Section 482 of the present Code."
Therefore, in my humble view, there is no bar for the
High Court in entertaining an application under section 482 of
Cr.P.C. when a prayer is made to quash the criminal proceeding
or an order taking cognizance of offence and issuance of process
is under challenge. The contention of the learned counsel for the
opposite party in raising preliminary objection relating to the
maintainability of this application, stands rejected.
(ii) Complaint petition not supported by a duly
sworn affidavit or a verification:
18
It is contended by the learned counsel for the
petitioner that the complaint petition is not supported by a duly
sworn affidavit or in the form of a verification duly signed by the
complainant and therefore, learned Magistrate was not justified
in proceeding with such a complaint. He placed reliance in the
case of Priyanka Srivastava -Vrs.- State of U.P. reported in
(2015) 61 Orissa Criminal Reports (SC) 719, wherein
Hon'ble Supreme Court held as follows:-
"27. In our considered opinion, a stage has
come in this country where Section 156(3)
Cr.P.C. 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 taking 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 statutory
provision which can be challenged under the
framework of the said Act or under Article 226 of
the Constitution of India. But it cannot be done
19
to take undue advantage in a Criminal Court as
if somebody is determined to settle the
scores..."
Section 156(3) of Cr.P.C. provides that any
Magistrate empowered under section 190 of Cr.P.C. may order
an investigation of a cognizable case to be made by the police
officer. Forwarding of the complaint petition to the police for
investigation under section 156(3) of Cr.P.C. when it discloses a
cognizable offence, before taking cognizance of offence can be
done suo motu after proper application of mind or on an
application filed by the complainant supported by duly sworn
affidavit seeking for such a direction. It is open to the Magistrate
to use his judicious discretion and direct the police to register an
F.I.R. on the basis of the complaint petition forwarded and to
conduct an investigation.
First of all, in the case in hand, there is neither any
prayer made by the complainant before the Magistrate for
exercising the power under section 156(3) of Cr.P.C. nor the
Magistrate has exercised any such power. The learned Magistrate
has recorded the initial statement of the complainant under
section 200 of Cr.P.C., conducted inquiry under section 202 of
Cr.P.C., during course of which three witnesses were examined
by the complainant and after perusing the complaint petition,
20
initial statement of the complainant and statements recorded
under section 202 of Cr.P.C., the impugned order was passed.
Therefore, the ratio laid down in the case of Priyanka
Srivastava (supra) is not applicable in this case.
Section 2(d) of the Code of Criminal Procedure states
that 'complaint' means any allegation made orally or in writing to
a Magistrate, with a view to his taking action under the Code
that some person, whether known or unknown, has committed
an offence, but does not include a police report. Out of the three
modes provided to the Magistrate to take cognizance of offences
under section 190 of Cr.P.C., one of the modes is upon receiving
a complaint of facts which constitutes such offence. Chapter-XV
of the Code deals with the procedure to be followed by the
Magistrate upon receiving a complaint. Rule 14 of Chapter-II of
the G.R.C.O. (Criminal) of High Court of Judicature states that all
petitions should be in the language of the Code and as far as
practicable typewritten. Every page of the petition and every
interlineation, alteration or erasure therein shall be authenticated
by initial of the petitioner or of his pleader by whom it is
presented. Rule 15 states that every petition shall state concisely
and clearly the facts, matters and circumstances upon which the
petitioner relies and the matter of complaint, if any, and the
21
relief sought or prayer made. Rule 20 states that if it is a written
complaint, the complaint petition should contain the name, age
and other description of the complainant as well as the accused,
the date, time and place of occurrence, the list of witnesses with
addresses, the nature of offence with section of statute, the
information about prior lodging of F.I.R. and action taken
thereon, the information about any previous complaint regarding
the same occurrence and the name of the Court, date and
manner of disposal of such complaint, facts of the case and
details of documents relied upon by the complainant.
Information sought for in each of these columns has its
significance and it is the duty of the complainant to comply the
requirement with correct facts. There is nothing either in the
Code or in the G.R.C.O. (Criminal) that a private complaint
petition cannot be entertained by a Magistrate unless it is
supported either by affidavit or verification by the complainant.
Like all procedural laws, Code of Criminal Procedure is also
designed to subserve the ends of justice and not to frustrate
them by mere technicalities. Averments made in the complaint
petition are not substantive piece of evidence. Even if it is
supported by an affidavit or verification, the position will not
change. It would be travesty of justice to throw out a complaint
22
petition merely because it is not supported by an affidavit or
verification or not to act upon it, even though the initial
statement of the complainant and the statements of the
witnesses recorded under section 202 of Cr.P.C. prima facie
make out the ingredients of the offences alleged.
In the case in hand, the complaint petition filed by
the complainant-opposite party fulfills the requirements laid
down in Rules 14, 15 and 20 of Chapter-II of the G.R.C.O.
(Criminal).
Therefore, the contentions raised by the learned
counsel for the petitioner that learned Magistrate was not
justified in proceeding with the complaint petition as it was not
supported by a duly sworn affidavit or in the form
of a verification by the complainant, is totally misconceived and
liable to be rejected.
(iii) Requirement for the Magistrate at the stage of
taking cognizance and issuance of process:
In case of Fiona Shrikhande -Vrs.- State of
Maharashtra reported in (2014) 57 Orissa Criminal
Reports (SC) 285, it is held that at the complaint stage, the
Magistrate is merely concerned with the allegations made out in
the complaint and has only to prima facie satisfy whether there
23
are sufficient grounds to proceed against the accused and it is
not the province of the Magistrate to enquire into a detailed
discussion on the merits and demerits of the case. The scope of
inquiry under section 202 is extremely limited in the sense that
the Magistrate, at this stage, is expected to examine prima facie
the truth or falsehood of the allegations made in the complaint.
In case of Amanullah -Vrs.- State of Bihar
reported in (2016) 64 Orissa Criminal Reports (SC) 304, it
is held that at the stage of taking cognizance, the Court should
not get into the merits of the case and its duty is limited to the
extent of finding out whether from the material placed before it,
offence alleged therein against the accused is made out or not
with a view to proceed further with the case.
(iv) Scope of interference in an application under
section 482 of Cr.P.C.:
In case of Popular Muthiah -Vrs.- State of Tamil
Nadu reported in (2006) 34 Orissa Criminal Reports (SC)
749, it is held that inherent powers of the High Court can be
exercised, it is trite, both in relation to substantive as also
procedural matters. In respect of the incidental or supplemental
power, evidently, the High Court can exercise its inherent
jurisdiction irrespective of the nature of the proceedings. It is not
24
trammeled by procedural restrictions in that. Power can be
exercised suo motu in the interest of justice. If such a power is
not conceded, it may even lead to injustice to an accused. Such
a power can be exercised concurrently with the appellate or
revisional jurisdiction and no formal application is required to be
filed therefor. It is, however, beyond any doubt that the power
under section 482 of the Code of Criminal Procedure is not
unlimited. It can, inter alia, be exercised where the Code is silent
where the power of the Court is not treated as exhaustive, or
there is a specific provision in the Code; or the statute does not
fall within the purview of the Code because it involves application
of a special law. It acts ex debito justitiae. It can, thus, do real
and substantial justice for which alone it exists.
In case of Sonu Gupta -Vrs.- Deepak Gupta
reported in (2015) 60 Orissa Criminal Reports (SC) 993, it
is held that cognizance is taken of the offence and not the
offender. Summoning of an accused can be made on the basis of
prima facie case. It is further held that an error has been
committed by the High Court in evaluating the merits of the
defence case and other submissions advanced on behalf of the
accused which were not appropriate for consideration at the
stage of taking cognizance and issuing summons.
25
(v) Materials to be perused when order taking
cognizance and issuance of process is under challenge:
In case of Sampelly -Vrs.- Indian Renewable
Energy reported in (2016) 65 Orissa Criminal Reports (SC)
583, it is held that it is well settled that while dealing with a
quashing petition, the Court has ordinarily to proceed on the
basis of averments in the complaint. The defence of the accused
cannot be considered at the stage. The Court considering the
prayer for quashing does not adjudicate upon a disputed
question of fact.
In case of R. Kalyani -Vrs.- Janak C. Mehta
reported in (2009) 42 Orissa Criminal Reports (SC) 162, it
is held that while exercising its inherent jurisdiction to quash a
criminal proceeding, save and except in very exceptional
circumstances, the Court should not look into any documents
relied upon by the defence.
In case of HMT Watches -Vrs.- M.A. Abida
reported in 2015 (I) Orissa Law Reviews (SC) 1012, it was
held that the High Court committed grave error of law in
quashing the criminal complaints filed by the appellant in respect
of offence punishable under section 138 of the N.I. Act in
exercise of powers under section 482 of the Code of Criminal
26
Procedure by accepting factual defences of the accused which
were disputed ones. Such defences, if taken before trial Court,
after recording of the evidence, can be better appreciated.
In case of Harshendra Kumar D. -Vrs.- Rebatilata
Koley reported in (2011) 48 Orissa Criminal Reports (SC)
861, it is held as follows:-
"21. In our judgment, the above observations
cannot be read to mean that in a criminal case
where trial is yet to take place and the matter is
at the stage of issuance of summons or taking
cognizance, materials relied upon by the
accused which are in the nature of public
documents or the materials which are beyond
suspicion or doubt, in no circumstance, can be
looked into by the High Court in exercise of its
jurisdiction under Section 482 or for that matter
in exercise of revisional jurisdiction under
Section 397 of the Code. It is fairly settled now
that while exercising inherent jurisdiction under
Section 482 or revisional jurisdiction under
Section 397 of the Code in a case where
complaint is sought to be quashed, it is not
proper for the High Court to consider the
defence of the accused or embark upon an
enquiry in respect of merits of the accusations.
However, in an appropriate case, if on the face
of the documents - which are beyond suspicion
or doubt - placed by accused, the accusations
27
against him cannot stand, it would be travesty of
justice if accused is relegated to trial and he is
asked to prove his defence before the trial court.
In such a matter, for promotion of justice or to
prevent injustice or abuse of process, the High
Court may look into the materials which have
significant bearing on the matter at prima facie
stage.
22. Criminal prosecution is a serious matter; it
affects the liberty of a person. No greater
damage can be done to the reputation of a
person than dragging him in a criminal case...."
7. Keeping in view the requirement for the Magistrate
at the stage of taking cognizance and issuance of process, scope
of interference by this Court in an application under section 482
of Cr.P.C. and materials to be perused when order taking
cognizance and issuance of process is under challenge, it is to be
seen whether the impugned order of taking cognizance of
offences under sections 420, 384, 427, 471, 467 read with
section 34 of the Indian Penal Code and issuance of process is
justified or not.
(i) Offence under section 420 of the Indian Penal
Code:
Section 420 of the Indian Penal Code deals with
punishment for cheating and dishonestly inducing delivery of
28
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. (Ref:- Ashok Kumar Padhy -Vrs.- ICFAI
Foundation reported in (2018) 70 Orissa Criminal Reports
133).
In case of Subodh Chandra Shome -Vrs.- Durga
Madhab Das reported in 1985 (II) Orissa Law Reviews
115, it is held that the necessary ingredients of the offence of
cheating are a deception by the accused that deception must
emanate from the accused, there must be dishonest inducement
from the accused to the complainant, and believing on such
inducement, the complainant parted with some property or
valuable security and there must be a criminal intention of the
accused when the transaction took place. If these ingredients are
29
not satisfied then the offence of cheating cannot be said to have
been committed.
In the case in hand, it is the case of the complainant
that the petitioner-company has dishonestly induced him into the
business of selling petroleum products manufactured by the
company with some alluring proposals that it would yield huge
profit and basing on such inducement, the complainant invested
huge amount to do business in petroleum products with the
company and in course of such business, the company suddenly
suspended supply of petrol and diesel with effect from
01.05.2008 to the complainant on flimsy plea of non-support of
Govt. of India and thereby dishonestly caused huge loss to the
complainant.
On a plain reading of the complaint petition, it
appears that the complainant was a successful businessman in
lime business and in order to establish a R.I.L. petrol pump at
Khuntuni, he purchased land and with the help of the
representatives of the R.I.L., he obtained 'No Objection
Certificate' for establishment of retail outlet at Khuntuni under
the name and style 'M/s. Shyam Filling Station'. A lease deed
and a dealership agreement were executed between the
complainant and the R.I.L. It is the case of the complainant that
30
he paid Rs.3,00,000/- as signing fees and Rs.23,50,000/- as
security deposits to the company. The complainant also obtained
finance from State Bank of India, Athagarh Branch to the tune of
Rs.1.19 crores for completion of construction of the filling station
as per the approved layout and design of R.I.L. It is also the case
of the complainant that he operated the outlet for a period of
two years as per the instructions and directions of the R.I.L.
issued from time to time. There is no dispute that the R.I.L.
suspended the supply of petrol and diesel to the outlet of the
complainant with effect from 01.05.2008. The documents which
are annexed to the 482 Cr.P.C. petition are the notification dated
15.03.2002 of the Govt. of India (Annexture-3) and notification
dated 28.03.2002 issued by the Govt. of India (Annexture-4). In
view of the policy decision of the Govt. of India, R.P.L. submitted
application to the Central Govt. seeking marketing rights and
permission for marketing transportation of fuels was granted to
the R.P.L. by the Govt. of India. The petitioner-company after
setting up outlets across the country under various categories
carried on business. When the complainant submitted his
application for a dealership for the petroleum pump retail outlet
on the basis of newspaper advertisement and he was selected by
the company as a dealer for the proposed retail outlet at
31
Khuntuni and accordingly, dealership agreement was executed
between the parties on 22.08.2005 and a tripartite agreement
was executed on 29.10.2005 between the State Bank of India,
the petitioner and the complainant and after availing the loan
amount and setting up the retail outlet, the company supplied
petroleum products to the retail outlet of the complainant for a
period of two years, it cannot be said that the company had
fraudulent or dishonest intention at the time of making the
promise of supplying petroleum products to the retail outlet of
the complainant. There is nothing on record to show that
representation which was made by the company to the
complainant to supply petroleum products in the retail outlet at
Khuntuni was false to the knowledge of the company and was
made in order to deceive the complainant. It also prima facie
appears on the basis of the materials/documents as to what was
the reason for suspension of supply of petroleum products to all
the retail outlets by the company progressively with effect from
1st May 2008. Since it was a force majeure situation for which
the supply was suspended, it is difficult to hold that there was
any element of cheating in it. It may be a mere breach of
contract by the company for which civil remedies are available
and in fact the complainant has already resorted to such
32
remedies and by filing the complaint petition, the complainant
has given the dispute a cloak of criminal offence.
Learned counsel for the opposite party placed
reliance in case of Kamaladevi Agarwal -Vrs.- State of West
Bengal reported in 2002 (I) Orissa Law Reviews (SC) 173
wherein it is held that merely because civil suit is pending in the
High Court, the Magistrate is not unjustified to proceed with the
criminal case either in law or on the basis propriety. Criminal
cases have to be proceeded with in accordance with the
procedure as prescribed under the Code of Criminal Procedure
and the pendency of a civil action in a different Court even
though higher in status and authority, cannot be made a basis
for quashing of the proceedings.
Coming to the citations placed by the learned counsel
for the petitioner, in case of M/s. Thermax Ltd. -Vrs.- K.M.
Johny reported in (2011) 50 Orissa Criminal Reports (SC)
616, it is held that for proceeding under section 156(3) of the
Code, the complaint must disclose relevant material ingredients
of sections 405, 406, 420 read with section 34 of the Indian
Penal Code. If there is a flavour of civil nature, the same cannot
be agitated in the form of criminal proceeding. If there is huge
33
delay and in order to avoid the period of limitation, it cannot be
resorted to a criminal proceeding.
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:
"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
intention right at the beginning, that is, when he
made the promise cannot be presumed."
34
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 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
35
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 International Advanced Research
Centre -Vrs.- Nimra Cerglass reported in (2015) 62 Orissa
Criminal Reports (SC) 635, it is held as follows:-
"13.......In order to bring a case for the offence
of cheating, it is not merely sufficient to prove
that a false representation had been made, but,
it is further necessary to prove that the
representation was false to the knowledge of the
accused and was made in order to deceive the
complainant.
14. Distinction between mere breach of contract
and the cheating would depend upon the
intention of the accused at the time of alleged
inducement. If it is established that the intention
of the accused was dishonest at the very time
when he made a promise and entered into a
transaction with the complainant to part with his
property or money, then the liability is criminal
and the accused is guilty of the offence of
cheating. On the other hand, if all that is
established that a representation made by the
accused has subsequently not been kept,
criminal liability cannot be foisted on the
36
accused and the only right which the
complainant acquires is the remedy for breach of
contract in a Civil Court. Mere breach of contract
cannot give rise to criminal prosecution for
cheating unless fraudulent or dishonest intention
is shown at the beginning of the transaction."
In case of M/s. Indian Oil Corporation -Vrs.-
M/s. NEPC India Ltd. reported in (2006) 35 Orissa
Criminal Reports (SC) 128, it is held that there is 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. There is
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. It is further held that 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
37
law, should himself be made accountable, at the end of such
misconceived criminal proceedings, in accordance with law.
In view of the foregoing discussions, I am of the
humble view that there is absence of any prima facie material to
show that representation which was made to the complainant by
the company was false to the knowledge of the company and it
was made in order to deceive the complainant. There is also
nothing on record to show that the intention of the company was
dishonest at the very time when it made a promise and entered
into a transaction with the complainant to part with his money.
Discontinuance of supply of petroleum products to the retail
outlet of the complainant under force majeure situation may be a
mere breach of contract but the conduct of the petitioner in
supplying the petroleum products for two years to the retail
outlet of the complainant negatives any fraudulent or dishonest
intention on the part of the company at the beginning of the
transaction. Subsequent conduct of the company relating to
discontinuance of supply of petroleum products cannot give rise
to criminal prosecution for cheating unless fraudulent or
dishonest intention is shown right at the beginning of the
transaction i.e. the time when the offence is alleged to have
been committed. When the Govt. of India took the decision to
38
make the price of diesel market determined and a press release
was made on 18.10.2014 (Annexure-11), the petitioner-
company resumed its retail outlets all over the country
progressively and the complainant was offered by the company
to resume the supplies to the outlet at Khuntuni but the land on
which the retail outlet of the complainant was situated had
already been sold in auction pursuant to proceedings under
SARFAESI Act. The documents which are relied upon by the
petitioner appear to be beyond suspicion or doubt and in fact,
during course of hearing, the learned counsel for the opposite
party did not dispute the same but submitted that such
documents are in the nature of defence plea which cannot be
considered at this stage. In view of the decision of the Hon'ble
Supreme Court in case of Harshendra Kumar D. (supra), it
would be travesty of justice, if this Court ignores those
documents which have got a significant bearing on the matter at
prima facie stage.
Therefore, I am of the humble view that in the
factual scenario, the ingredients of offence under section 420 of
the Indian Penal Code are not attracted.
39
(ii) Offence under section 384 of the Indian Penal
Code:
Section 384 of the Indian Penal Code provides
punishment for 'extortion' which is defined under section 383 of
the Indian Penal Code and the ingredients of extortion are as
follows:-
(i) The accused must put any person in fear of
injury to that person or any other person;
(ii) The putting of a person in such fear must be
intentional;
(iii) The accused must thereby induce the person
so put in fear to deliver to any person any
property, valuable security or anything signed or
sealed which may be converted into a valuable
security;
(iv) Such inducement must be done dishonestly.
A distinction between theft and extortion is that the
offence of extortion is carried out by overpowering the will of a
person by putting him intentionally with fear whereas in
commission of an offence of theft, the offender's intention is
always to take the property without the owner's consent. (Ref:-
40
Dhananjay -Vrs.- State of Bihar reported in (2007) 36
Orissa Criminal Reports (SC) 697).
Though it is mentioned in the complaint petition that
being intentionally put to fear by R.I.L. of loss of his property, a
valuable sum of Rs.2.65 lakhs were extorted from the
complainant by R.I.L. and its authorised representatives but the
complaint petition does not disclose any kind of fear which was
put to the complainant so as to take away from him the element
of volition or to cause any form of injury to reputation/property
or bodily harm or a mental alarm. There is nothing in the
complaint petition or in the statement of the complainant or his
witnesses that the petitioner induced the complainant by putting
him in fear to deliver to him any property. Except a mere
averment in the complaint petition, the complainant has failed to
make out prima facie case satisfying the ingredients of the
offence under section 384 of the Indian Penal Code.
Therefore, I am of the humble view that the
ingredients of offence under section 384 of the Indian Penal
Code are not attracted.
(iii) Offence under section 427 of the Indian Penal
Code:
41
In order to attract the ingredients of the offence
under section 427 of the Indian Penal Code, at first the
requirements of the definition of 'mischief' as envisaged under
section 425 of the Indian Penal Code has to be proved. Mischief
involves mental act with a destructive animus. Destruction with
object of creating wrongful loss or damage is obligatory to be
established. Negligence does not unnecessarily amount to
mischief. Negligence coupled with intention to cause wrongful
loss or damage may amount to mischief in certain
circumstances. The elements of section 425 of the Indian Penal
Code relating to intention or knowledge have to be proved
otherwise section 427 of the Indian Penal Code will have no
application. (Ref:- Nagendranath Roy -Vrs.- Dr. Bijoy Kumar
reported in (1991) 4 Orissa Criminal Reports 457).
In the complaint petition, it is mentioned that the
accused persons have caused mischief and thereby putting the
complainant in loss and harassment. There is nothing in the
complaint petition as to in what way the petitioner had got any
intention or knowledge to cause wrongful loss or damage to the
opposite party. The decision taken for suspension of supplies of
petroleum products to the retail outlets of the company in the
force majeure situation might have caused loss or damage to the
42
complainant but in absence of necessary mens rea, it is difficult
to arrive at the conclusion that the prima facie ingredients of
offence under section 427 of the Indian Penal Code are attracted.
(iv) Offence under section 471 of the Indian Penal
Code:
The essential ingredients of section 471 of the Indian
Penal Code are (i) fraudulent or dishonest use of a forged
document as genuine (ii) knowledge or reasonable belief on the
part of person using the document that it is a forged one.
Therefore, there must be material to show that a particular
document is a forged one. Section 470 of the Indian Penal Code
states that a false document made wholly or in part by forgery is
designated "a forged document". The person using the document
must have specific knowledge or reasonable belief that it is a
forged one. Making a false document is enumerated under
section 464 of Cr.P.C.
In case of Md. Ibrahim -Vrs.- State of Bihar
reported in (2009) 8 Supreme Court Cases 751, it is held as
follows:-
"10. An analysis of Section 464 of Penal Code
shows that it divides false documents into three
categories:
43
10.1) The first is where a person dishonestly or
fraudulently makes or executes a document with
the intention of causing it to be believed that
such document was made or executed by some
other person, or by the authority of some other
person, by whom or by whose authority he
knows it was not made or executed.
10.2) The second is where a person dishonestly
or fraudulently, by cancellation or otherwise,
alters a document in any material part, without
lawful authority, after it has been made or
executed by either himself or any other person.
10.3) The third is where a person dishonestly or
fraudulently causes any person to sign, execute
or alter a document knowing that such person
could not by reason of (a) unsoundness of mind;
or (b) intoxication; or (c) deception practised
upon him, know the contents of the document
or the nature of the alteration.
11. In short, a person is said to have made a
`false document', if (i) he made or executed a
document claiming to be someone else or
authorised by someone else; or (ii) he altered or
tampered a document; or (iii) he obtained a
document by practicing deception, or from a
person not in control of his senses.
44
In case of A.S. Krishnan -Vrs.- State of Kerala
reported in (2004) 28 Orissa Criminal Reports (SC) 113, it
is held as follows:-
"8. Section 471 is intended to apply to persons
other than forger himself, but the forger himself
is not excluded from the operation of the
Section. To attract Section 471, it is not
necessary that the person held guilty under the
provision must have forged the document
himself or that the person independently
charged for forgery of the document must of
necessity be convicted, before the person using
the forged document, knowing it to be a forged
one can be convicted, as long as the fact that
the document used stood established or proved
to be a forged one. The act or acts which
constitute the commission of the offence of
forgery are quite different from the act of
making use of a forged document. The
expression 'fraudulently and dishonestly' are
defined in Sections 25 and 24 IPC respectively.
For an offence under Section 471, one of the
necessary ingredients is fraudulent and
dishonest use of the document as genuine. The
act need not be both dishonest and fraudulent.
The use of document as contemplated by
Section 471 must be voluntary one. For
sustaining conviction under Section 471, it is
necessary for the prosecution to prove that
45
accused knew or had reason to believe that the
document to be a forged one. Whether the
accused knew or had reason to believe the
document in question to be a forged has to be
adjudicated on the basis of materials and the
finding recorded in that regard is essentially
factual."
In the complaint petition, it is mentioned that the
R.I.L. and its representatives dishonestly and fraudulently made,
signed, sealed and executed the documents with the intention of
causing the complainant to believe that such documents would
be acted upon bonafide and R.I.L. shall continue to deliver,
diesel and allied products to the said filling station as per terms
under the dealership agreement. The documents referred to are
lease deed and dealership agreement. Both these documents
were executed on 22.08.2005 in the non-judicial stamp papers
which are annexed to the CRLMC application as Annexure-7
series. The complainant has signed the documents so also from
the side of the R.I.L., the authorized signatory has signed the
same. These documents have been executed in the prescribed
formats of R.I.L. which are meant for the lessors/dealers. There
is nothing to show that these documents are forged documents
and created dishonestly or fraudulently. Section 24 of the Indian
Penal Code defines 'dishonestly' as doing anything with the
46
intention of causing wrongful gain to one person or wrongful loss
to another person. Similarly section 25 of the Indian Penal Code
defines 'fraudulently' which means doing the thing with intent to
defraud but not otherwise. It cannot be lost sight of the fact that
on the basis of these documents, the tripartite agreement was
executed between the bank, the petitioner and the complainant
on 29.10.2005 and the complainant availed the loan from the
bank and established the retail outlet at Khuntuni and carried on
business of petroleum products for two years which were
supplied by the petitioner on the basis of the dealership
agreement.
Therefore, in my humble opinion, the ingredients of
offence under section 471 of the Indian Penal Code are also not
attracted.
(v) Offence under section 467 of the Indian Penal
Code:
Section 467 of the Indian Penal Code prescribes
punishment for forgery of valuable security, will etc. In case of
Inder Mohan Goswami -Vrs.- State of Uttaranchal reported
in (2008) 39 Orissa Criminal Reports (SC) 188, it is held as
follows:-
47
"42. The following ingredients are essential for
commission of the offence under Section 467
IPC:
1. the document in question is forged;
2. the accused who forged it;
3. the document is one of the kinds enumerated
in the aforementioned section."
In view of the discussions which have been made
relating to offence under section 471 of the Indian Penal Code,
since there is no material on record to show that the documents
i.e. lease deed and dealership agreement are forged documents,
the basic ingredients of offence under section 467 of the Indian
Penal Code are altogether missing even in the allegations leveled
in the complaint petition against the petitioner. Therefore, by no
stretch of the imagination, the petitioner can be legally
prosecuted for an offence under section 467 of the Indian Penal
Code.
Conclusion
8. To sum up, in the light of discussions made, it seems
that the criminal prosecution instituted against the petitioner is
nothing but used as an instrument of harassment and with an
ulterior motive to pressurize the petitioner to compensate the
loss or damage which has been caused to the complainant. The
averments made in the complaint petition, the initial statement
48
of the complainant and the statements of the witnesses recorded
under section 202 of Cr.P.C. do not make out any of the offences
under sections 420, 384, 427, 471, 467 read with section 34 of
the Indian Penal Code against the petitioner and therefore, to
prevent abuse of the process and to secure the ends of justice, it
becomes imperative to quash the impugned order invoking the
inherent powers under section 482 of Cr.P.C.
9. For the reasons stated above, the CRLMC application
is allowed. The impugned order dated 01.11.2011 passed by the
learned S.D.J.M., Athagarh in I.C.C. Case No.69 of 2009 so far
as the petitioner is concerned, stands quashed.
.............................
S. K. Sahoo, J.
Orissa High Court, Cuttack The 30th July 2018/Pravakar/Sukanta