Tapas Ranjan Panda vs State Of Odisha
2021 Latest Caselaw 13019 Ori

           IN THE HIGH COURT OF ORISSA AT CUTTACK

                        CRLMC No. 168 of 2021

Application under Section 482 of the Code of Criminal Procedure, 1973
seeking to quash the FIR No. 545 of 2019 of Nayapali P.S. corresponding to
C.T. No. 5225 of 2019 pending in the court of learned S.D.J.M.,
Bhubaneswar.
                                   ---------------

Tapas Ranjan Panda                                      .....      Petitioner

                          -Versus-

State of Odisha                                         .....      Opp. Party

Advocate(s) appeared in this case : -
_____________________________________________________________

     For Petitioner       :          Mr. S.P. Mishra, Sr. Advocate along with
                                     M/s. D. Priyanka, S. Ray, D. Rout & L.K.
                                     Maharana

     For Opp. Party       :          Mr. P.K. Maharaj,
                                     Addl. Standing Counsel.
                                     (for O.P. No.1)

                            Mr. S. Palit, Advocate
                            (for O.P. No.2)
__________________________________________________________
CORAM:
        JUSTICE SASHIKANTA MISHRA

                              ORDER

rd 23 December, 2021

SASHIKANTA MISHRA, J.

1. In the present application filed under Section 482 Cr.P.C.

the petitioner seeks quashment of the FIR lodged against him vide

Nayapali P.S. Case No. 545 of 2019 for the alleged commission of

offence under Section 420/34 of IPC and all consequential proceedings

arising therefrom.

2. The facts of the case, sans unnecessary details are that one

Sribash Jena, Director of ST Minerals Pvt. Ltd., Nayapali,

Bhubaneswar (opposite party no.2) lodged a complaint before the

Nayapalli Police Station on 30.08.2014 basically alleging that the

petitioner, who was the Director of the Company till 01.08.2014 but

also was looking after the affairs of the company till recently, offered

to sell certain properties to the company by claiming to be the owner

thereof. As such, he received substantial amount of money towards

advance from the company including Rs.25 lakhs through cheque on

21.09.2016 in favour of M/s. Trusim Infratech Pvt. Ltd. It was further

alleged that despite receiving such advance, the petitioner did not take

any steps for transfer of the property in question in favour of the

company and on being insisted upon, he refused to sell the property

but assured to sell three other properties in lieu of the properties in

question. In order to shown his bonafides, the petitioner is said to have

deposited the original title deeds of the properties offered to be sold by

him. Subsequently, it came to the knowledge of the informant that the

petitioner has sold away the said properties to his brother-in-law, sister

and brother, which amounts to cheating in collusion with his family

members. The informant further apprehended that the petitioner might

have stolen away more money by abusing the trust vested on him and

created large number of assets with such money during the time he was

looking after the Company. A list of such properties was also enclosed

to the complaint. Basing on such complaint, the aforementioned police

case was registered and investigation commenced, which the petitioner

wants to be stopped.

3. Heard Mr. S.P. Mishra, learned Sr. Counsel appearing

along with Ms. D. Priyanka, learned counsel for the petitioner; Mr.

P.K. Maharaj, learned Addl. Standing Counsel for the State; and Mr.

Subir Palit, learned counsel for opposite party no.2. Further, a detailed

counter affidavit has also been filed by opposite party no.2.

4. While putting forth several grounds in support of the

contention that the FIR should be quashed, Mr. S.P. Mishra, learned

Sr. Counsel has submitted that the petitioner was, in fact, the Director

of the opposite party no.2 company but on the ground of personal

difficulty, he resigned therefrom on 01.08.2014 and thereafter, he

along with his wife incorporated a new company in the name and style

of M/s. Trusim Infratech Pvt. Ltd. In view of his previous association

with the informant and the opposite party no.2 company, the

petitioner's company received a work order on 07.09.2019 for

renovation of Guest House at Puri, for which an advance amount of

Rs.24.5 lakh after deducting TDS was paid by cheque dated

21.09.2019. Again on 31.01.2017, an advance of Rs.9.8 lakh was paid

by opposite party no.2-company to the petitioner's company towards

the work order. Similarly, further amounts were also paid by the

opposite party no.2 company to the petitioner's company against

invoices raised by it towards execution of the work order and

ultimately, the full amount was paid. As regards the properties in

question, it is contended that the same were purchased by the petitioner

from different persons at different times but in order to clear bank loan

liabilities, the petitioner sold the three properties at Ghatikia. He also

sold some properties to his brother, sister and brother-in-law. The

original documents of sale and conveyance, which were in the

possession of the petitioner's sister and brother-in-law were misplaced,

for which a lost report was filed at Police Station, Bonth, Bhadrak vide

Station Diary Entry No. 5 dated 24.11.2018 as also before Korei Police

Station, Jajpur on 30.11.2018. In the above background facts, it is

forcefully argued by learned Senior Counsel that the petitioner had

approached this Court seeking anticipatory bail in ABLAPL No. 14533

of 2020 but the same was rejected vide order dated 23.12.2020,

whereupon the petitioner had approached the Hon'ble Supreme Court

in SLP (Crl.) No. 6813 in which the Hon'ble Supreme Court passed an

interim order on 30.12.2020 protecting the petitioner from any

coercive action being taken against him. Citing the above facts in

detail, it is contended by learned Senior Counsel that the FIR, inter

alia, suffers from the following defects:

   (i)       Absence of a prima facie case.

   (ii)      Unexplained delay.

   (iii)     Vague and non-specific allegations.

   (iv)      Allegations based only on apprehension; and

   (v)       False allegations.

   (vi)      In addition, according to learned Senior Counsel, the role

of the informant itself is dubious; and a best, a civil

dispute can only be made out, if at all.

Leaned Senior Counsel has thereafter referred to two

decisions of the Hon'ble Supreme Court; in the case of Vesa Holdings

(P) Ltd. Vs. State of Kerala reported in (2015) 8 SCC 293 and the case

of G. Sagar Suri Vs. State of U.P., reported in (2000) 2 SCC 636 in

support of his contention that unless the allegation in the complaint

discloses an offence of cheating, continuation of the criminal

proceedings would amount to an abuse of the process of the Court and

that the criminal proceedings cannot be a shortcut for other remedies

available in law and if a matter, which is essentially of a civil nature,

has been given a cloak of criminal offence, the same has to be quashed.

5. Per contra, Mr. S. Palit has argued that firstly, as per the

settled position of law, the High Court should be slow to interfere with

an ongoing investigation by exercising its inherent powers under

Section 482 Cr.P.C. and secondly, if the allegations are accepted even

on their face value, it would reveal a clear case of cheating on the part

of the petitioner, which warrant a full-fledged investigation including

taking of all necessary steps to unearth the truth. Taking this Court to

the order passed in an application for anticipatory bail filed by the

petitioner, which was rejected by this Court, Mr. Palit would argue that

after considering the materials on record in detail, this Court was

convinced that many other facts and circumstances are likely to

emerge during further investigation and thereby, rejected the

petitioner's contention that the element of cheating is wholly absent

even on acceptance of the prosecution version as laid. Though the

petitioner carried the matter to the Hon'ble Supreme Court and also

obtained an interim order of protection from coercive action initially

but ultimately, vide order dated 29.09.2021, the case was dismissed by

specifically holding that the prayer of the petitioner for anticipatory

bail had rightly been rejected by this court.

Referring to the position of law, Mr. Palit has cited a

recent decision rendered by the Apex Court in the case of Neeharika

Infrastructure Pvt. Ltd. v. State of Maharashtra, reported in 2021

SCC OnLine SC 315, wherein the Apex Court laid down as many as

18 guidelines to be kept in mind by the High Court while exercising

powers under Section 482 of Cr.P.C. Mr. Palit, would further argue

that the sum and substance of the guidelines so laid down is to the

effect that the power of quashing should be exercised sparingly with

circumspection and only in the cases where no cognizable offence or

offence of any kind is disclosed in the FIR and further that the court

should not thwart any investigation into the cognizable offences. In

conclusion of his arguments, Mr. Palit has contended that the petitioner

has practiced fraud and deception not only with regard to the instances

mentioned in the FIR, but in several other connected instances that

would certainly see the light of the day if a free and fair investigation

is allowed to be conducted.

6. Before delving into the merits of the rival contentions as

noted above, it would be apposite for this Court to remind itself of the

settled position of law in the matter of exercise of its inherent powers

under Section 482 Cr.P.C., particularly, with regard to a prayer for

quashing of the FIR. The number of case laws in this aspect are legion

and it may not be necessary to refer to all of them. However, for the

limited purpose of this case, one may profitably refer to three decisions

of the Apex Court, namely, N. Soundaram vs. P.K. Pounraj and

another reported in (2014) 10 SCC 616; Vinod Raghuvanshi vs. Ajay

Arora and others reported in (2013) 10 SCC 581 and Neeharika

Infrastructure Pvt. Ltd. (supra).

7. In the case of N. Soundaram (supra), it was held as under:

13. It is well settled by this Court in a catena of cases that the power under Section 482 CrPC has to be exercised sparingly and cautiously to prevent the abuse of process of any court and to secure the ends of justice. [See State of Haryana v. Bhajan Lal [1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426] .] The inherent power should not be exercised to stifle a legitimate prosecution. The High Court should refrain from giving a prima facie decision unless there are compelling circumstances to do so. Taking the allegations and the complaint as they were, without adding or subtracting anything, if no offence was made out, only then the High Court would be justified in quashing the proceedings in the exercise of its power under Section 482 CrPC. [See MCD v. Ram Kishan Rohtagi [(1983) 1 SCC 1 : 1983 SCC (Cri) 115 : (1983) 1 SCR 884] .] An investigation should not be shut out at the threshold if the allegations have some substance. [See Vinod Raghuvanshi v. Ajay Arora [(2013) 10 SCC 581 : (2013) 4 SCC (Cri) 792 : (2014) 1 SCC (L&S) 679] .]"

8. In Vinod Raghuvanshi (supra), it was held as under:

"30. It is a settled legal proposition that while considering the case for quashing of the criminal proceedings the court should not "kill a stillborn child", and appropriate prosecution should not be stifled unless there are compelling

circumstances to do so. An investigation should not be shut out at the threshold if the allegations have some substance. When a prosecution at the initial stage is to be quashed, the test to be applied by the court is whether the uncontroverted allegations as made, prima facie establish the offence. At this stage neither can the court embark upon an inquiry, whether the allegations in the complaint are likely to be established by evidence nor should the court judge the probability, reliability or genuineness of the allegations made therein. More so, the charge-sheet filed or charges framed at the initial stage can be altered/amended or a charge can be added at the subsequent stage, after the evidence is adduced in view of the provisions of Section 216 CrPC. So, the order passed even by the High Court or this Court is subject to the order which would be passed by the trial court at a later stage."

9. In Neeharika Infrastructure Pvt. Ltd. (supra), the

following conclusions were arrived at by the Apex Court:

"Conclusions:

80. In view of the above and for the reasons stated above, our final conclusions on the principal/core issue, whether the High Court would be justified in passing an interim order of stay of investigation and/or "no coercive steps to be adopted", during the pendency of the quashing petition under Section 482 Cr.P.C and/or under Article 226 of the Constitution of India and in what circumstances and whether the High Court would be justified in passing the order of not to arrest the accused or "no coercive steps to be adopted" during the investigation or till the final report/charge sheet is filed under Section 173 Cr.P.C., while dismissing/disposing of/not entertaining/not quashing the criminal proceedings/complaint/FIR in exercise of powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India, our final conclusions are as under:

i) Police has the statutory right and duty under the relevant provisions of the Code of Criminal Procedure contained in Chapter XIV of the Code to investigate into a cognizable offence;

ii) Courts would not thwart any investigation into the cognizable offences;

iii) It is only in cases where no cognizable offence or offence of any kind is disclosed in the first information report that the Court will not permit an investigation to go on;

iv) The power of quashing should be exercised sparingly with circumspection, as it has been observed, in the „rarest of rare cases (not to be confused with the formation in the context of death penalty).

v) While examining an FIR/complaint, quashing of which is sought, the court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR/complaint;

vi) Criminal proceedings ought not to be scuttled at the initial stage;

vii) Quashing of a complaint/FIR should be an exception rather than an ordinary rule;

viii) Ordinarily, the courts are barred from usurping the jurisdiction of the police, since the two organs of the State operate in two specific spheres of activities and one ought not to tread over the other sphere;

ix) The functions of the judiciary and the police are complementary, not overlapping;

x) Save in exceptional cases where non-interference would result in miscarriage of justice, the Court and the judicial process should not interfere at the stage of investigation of offences;

xi) Extraordinary and inherent powers of the Court do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice;

xii) The first information report is not an encyclopaedia which must disclose all facts and details relating to the offence reported. Therefore, when the investigation by the police is in progress, the court should not go into the merits of the allegations in the FIR. Police must be permitted to complete the investigation. It would be premature to pronounce the conclusion based on hazy facts that the complaint/FIR does not deserve to be investigated or that it amounts to abuse of process of law. After investigation, if the investigating officer finds that there is no substance in the application made by the complainant, the investigating officer may file an appropriate report/summary before the learned Magistrate which may be considered by the learned Magistrate in accordance with the known procedure;

xiii) The power under Section 482 Cr.P.C. is very wide, but conferment of wide power requires the court to be more cautious. It casts an onerous and more diligent duty on the court;

xiv) However, at the same time, the court, if it thinks fit, regard being had to the parameters of quashing and the self-restraint imposed by law, more particularly the parameters laid down by this Court in the cases of R.P. Kapur (supra) and Bhajan Lal (supra), has the jurisdiction to quash the FIR/complaint;

xv) When a prayer for quashing the FIR is made by the alleged accused and the court when it exercises the power under Section 482 Cr.P.C., only has to consider whether the allegations in the FIR disclose commission of a cognizable offence or not. The court is not required to consider on merits whether or not the merits of the allegations make out a cognizable offence and the court has to permit the investigating agency/police to investigate the allegations in the FIR;

xvi) The aforesaid parameters would be applicable and/or the aforesaid aspects are required to be considered by the High Court while passing an interim order in a quashing petition in exercise of powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India. However, an interim order of stay of investigation during the pendency of the quashing petition can be passed with circumspection. Such an interim order should not require to be passed routinely, casually and/or mechanically. Normally, when the investigation is in progress and the facts are hazy and the entire evidence/material is not before the High Court, the High Court should restrain itself from passing the interim order of not to arrest or "no coercive steps to be adopted" and the accused should be relegated to apply for anticipatory bail under Section 438 Cr.P.C. before the competent court. The High Court shall not and as such is not justified in passing the order of not to arrest and/or "no coercive steps" either during the investigation or till the investigation is completed and/or till the final report/chargesheet is filed under Section 173 Cr.P.C., while dismissing/disposing of the quashing petition under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India. xvii) Even in a case where the High Court is prima facie of the opinion that an exceptional case is made out for grant of interim stay of further investigation, after considering the broad parameters while exercising the powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India

referred to hereinabove, the High Court has to give brief reasons why such an interim order is warranted and/or is required to be passed so that it can demonstrate the application of mind by the Court and the higher forum can consider what was weighed with the High Court while passing such an interim order.

xviii) Whenever an interim order is passed by the High Court of "no coercive steps to be adopted"

within the aforesaid parameters, the High Court must clarify what does it mean by "no coercive steps to be adopted" as the term "no coercive steps to be adopted" can be said to be too vague and/or broad which can be misunderstood and/or misapplied.

81. In view of the above and for the reasons stated above, the present appeal succeeds. The impugned interim order/direction contained in clause (d) of the impugned interim order dated 28.09.2020 by which the High Court has directed that "no coercive measures to be adopted" against the petitioners (respondent nos. 2 to 4 herein) in respect of FIR No. 367/2019 dated 19.09.2019, registered at Worli Police Station, Mumbai, Maharashtra (subsequently transferred to Economic Offence Wing, Unit IX, Mumbai, renumbered as C.R. No. 82/2019) is hereby quashed and set aside. However, it is made clear that we have not expressed anything on the merits of the case, more particularly the allegations in the FIR and the High Court to consider the quashing petition in accordance with law and on its own merits and considering the afore-stated observations made by this Court in the present judgment.

82. Having regard to the fact that despite the law laid down by this Court in the case of Habib Abdullah Jeelani (supra) and other decisions, referred to hereinabove, some High Courts have continued to pass such interim orders, we direct the Registry to forward a copy of this judgment to all the High Courts to be placed before Hon'ble the Chief Justice to circulate to all the Judges of the High Courts."

10. Thus, on a reading of the aforementioned observations of

the Apex Court, the position of law that emerges is to the effect that

when a prosecution at the initial stage is to be quashed, the test to be

applied by the Court is whether the uncontroverted allegation as made,

prima facie establishes the offence. At this stage, the Court is not

expected to make a roving enquiry to weigh the evidence or its

probative value or the genuineness of the allegations etc.

11. Now turning to the facts of the case in the light of the

aforementioned legal propositions, it is seen that the basic allegation as

laid in the FIR is to the effect that the petitioner had initially promised

the opposite party no.2 company to sell two properties at

Bhubaneswar, of which he was the owner to it and also received

substantial amount towards advance including Rs.25 lakhs from it.

Despite making such promise and receiving part consideration amount

as advance, the petitioner admittedly did not take steps to sell the said

properties and instead offered to sell three other properties. The said

three properties were found to have been sold to other persons, which

could not be known because of deception practiced by the petitioner in

the form of depositing the original title deeds with opposite party no.2

company in a bid to create an impression as if he is still the owner

thereof. Thus, it cannot be said that the above allegation, even without

considering the petitioner's side of the story, does not reveal, at least

prima facie, a dishonest intention making out thereby, a case of

cheating. In view of the settled position of law discussed in the

preceding paragraphs, this Court is not required to consider the

explanation offered to rebut the allegations as the facts leading to the

FIR itself would suffice to show the existence of prima facie materials

of the alleged offence. It is not disputed that the case is under

investigation. Therefore, the explanation and/or counter allegations

made by the petitioner against the opposite party no.2 company and the

informant can only be examined during investigation, which is all the

more reason why the investigation should not be scuttled at the

threshold only because the accused-petitioner has a different

explanation to offer. As regards the attempt, feeble though, made on

behalf of the petitioner that the allegations, even if accepted on their

face value reveal a civil dispute, this Court can only profitably refer to

the decision in Vesa Holdings (P) Ltd. (supra) that a given set of facts

may make out a civil wrong as also a criminal offence and only

because a civil remedy may be available to the complainant, that itself

cannot be a ground to quash a criminal proceeding. The real test is

whether the allegation in the complaint discloses the criminal offence

alleged or not. As has been discussed hereinbefore, even the

uncontroverted allegations made in the FIR at least prima facie, reveal

the existence of the ingredients of the offence of cheating within the

meaning of Section 420 of I.P.C. Whether such allegation will actually

stand the test of investigative scrutiny or even a regular trial are

matters which cannot be looked into by this Court at this stage.

12. For the foregoing reasons therefore, this Court is of the

considered view that having regard to the existence of a prima facie

case, as also seriously disputed questions of fact, it would not be

proper to interfere with the process of investigation into the case. It is

therefore, not a fit case for exercising inherent power under Section

482 Cr.P.C. to quash the FIR and the consequential proceedings.

13. In the result, the CRLMC fails and is therefore dismissed.

...........................

Sashikanta Mishra, Judge

Orissa High Court, Cuttack The 23rd December, 2021/ A.K. Rana