Krushna Ch.Debata vs State Of Odisha
2021 Latest Caselaw 11351 Ori

         IN THE HIGH COURT OF ORISSA AT CUTTACK

                      CRLMC No. 312 of 2016
          (An application under Section 482 of Cr.P.C.)

     Krushna Ch.Debata                           ....             Petitioner

                                  -Versus-
     State of Odisha                             ....        Opposite Party

     Appeared in this case:

     For Petitioner                          :        Mr.Anirudha Das,
                                                      A.Das, S.K.Rout,
                                                      and Mr.D.K.Mishra,
                                                      Advocate

    For Opposite Party                       :        Mr. D.R.Parida,
                                                      ASC

     CORAM:
    JUSTICE R.K.PATTANAIK

    DATE OF HEARING : 26.10.2021           DATE OF ORDER :10.11.2021


    1.

This is an application under Section 482 pressed into service by the petitioner to quash/set aside the criminal proceeding vide G.R. Case No. 1346 of 2013 arising out of Dhenkanal Town P.S. Case No. 273 of 2013 allegedly for offences under Section 420 IPC pending in the court of learned S.D.J.M., Dhenkanal on the grounds inter alia that it is untenable and bad in law and absolutely necessary in order to prevent abuse of process of the Court.

. 2. From the record, it is revealed that an F.I.R. was lodged in the year 2013 by the complainant, a Branch Manager of Dhenkanal Evening Branch, Dhenkanal alleging therein that the petitioner, a partner of Shri Balaram Fabrics presented a cheque dated 23.08.2013 for an amount of Rs.50,00,000/- drawn by M/S. K.M. Sugar Mills Pvt.Ltd. which was credited in the account of Shri Balaram Fabrics but on 24.08.2013, the Bank's Faizabad Branch // 2 //

intimated that said amount has been debited but the cheque in question was reported to be fraudulent one.

3. Accordingly, Town P.S. Case No. 273(14) dated 22.11.2013 was registered under Section 420 IPC which later culminated in G.R. Case No. 1346 of 2013. Said criminal proceeding is under attack on the ground of double jeopardy.

4. Heard learned counsel for the petitioner and learned Addl. Standing Counsel for the State.

5. It is contended that for the self same cause of action, a criminal prosecution has already been lunched against the petitioner by Kotwali Nagar PS, Faizabad and in that connection, a notice has been received by stating that a case under Sections 420/467/468/471 IPC stands registered and therefore, that can be no prosecution twice as it would result in double jeopardy.

6. Learned counsel for the petitioner would contend that the learned court below without applying its judicial mind and by not considering the materials on record continued with the proceeding in G.R. Case No. 1346 of 2015 and therefore, such initiation of a criminal prosecution for the same cause of action should not be permitted and hence, it should be quashed in exercise of Court's inherent power envisaged in Section 482 Cr.P.C. which is necessary in the interest of justice and so as to prevent the process of the Court being abused. While contending so, a decision of the Supreme Court in the case of T.T. Antony -Vrs- State of Kerala & others reported in (2001) 6 SCC 181 is relied upon. In fact, in the decision (supra), the Supreme Court held and observed that there can be no second F.I.R. and a fresh investigation on receipt of every information in respect of the same cognizable offence or same occurrence giving rise to one or more cognizable offences and all such subsequent informations shall be covered by Section 162 Cr.P.C.

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7. It is also contended that on behalf of the petitioner that the proceeding in the court of learned S.D.J.M., Dhenkanal is on the strength of alleged F.I.R. subsequent to the one lodged at Faizabad which is also in respect of the same transaction inter se Shri Balaram Fabrics and M/S. K.N.Sugar Mills Pvt. Ltd. and hence, it is not maintainable in the eye of law and thus, liable to be quashed or else it would result in double prosecution.

8. Learned counsel for the State strongly urged that the transaction may be the very same but the F.I.R. lodged at Dhenkanal is at the instance of the Manager of the Bank concerned and the cause of action is distinct and separate from that of the alleged incident for which the F.I.R. was lodged at Faizabad P.S. It is further contended that rightly a criminal prosecution has been initiated against the petitioner at Dhenkanal since the drawn cheque was presented at the SBI Branch, Dhenkanal for encashment. In other words, according to the State, it is not such a case, where the court is required to exercise inherent jurisdiction in order to quash the proceeding in G.R. Case No. 1369 of 2013 pending before the court of learned S.D.J.M., Dhenkanal.

9. By order dated 22.06.2017, this Court had directed learned counsel for the petitioner to submit an English translated copy of the F.I.R. lodged at Faizabad, in compliance of which, it was filed and the same is on record. A certified copy of the F.I.R. dated 03.07.2013 lodged before Kotwali Nagar PS, Faizabad was earlier produced before the Court and the same is also perused.

10. The seminal question is, whether, the criminal prosecution lunched later to the lodging of F.I.R. vide Town P.S. Case No. 273(14) dated 22.11.2013 under Section 420 IPC pending before the learned court below is to be quashed on the ground that for the same occurrence and cause of action an F.I.R. was previously lodged at Kotwali Nagar PS, Faizabad, U.P. in exercise of inherent jurisdiction by invoking Section 482 Cr.P.C?

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11. In so far as the decision in T.T.Antony case is concerned, the Supreme Court considering the fact that after the alleged incident, a second F.I.R. was lodged held and observed that each of such information received later to the first F.I.R. under Section 154 Cr.P.C. may not be entertained as it would be covered by section 162 Cr.P.C. It is further observed that an Officer in- Charge of P.S. has to investigate not merely a cognizable offence reported in the F.I.R. but also other connected offences found to have been committed in course of the same transaction or same occurrence and file one or more reports as provide section 173 Cr.P.C.

12. It is settled law that at times second F.I.R. is not to be entertained and a case registered thereon, as it would lead to breach of fundamental right of the accused against double jeopardy and also to maintain the rule of fair investigation and to not allow the police to abuse its investigative powers. A reference may be had to a judgment of the Supreme Court in the case of Anju Choudhury -Vrs- State of U.P. and another decided on 13th December, 2012 in Criminal Appeal No. 2093 of 2012. In fact, in T.T.Antony case, the test of sameness was applied wherein examining the legality of second F.I.R., the Supreme Court extensively discussed on the above principle and held that unless both the cases arising out of first and second F.I.Rs. appear to be substantially different from each other, the second F.I.R. shall not be entertained, which means, in the facts and circumstances of a particular case giving rise to two F.I.R.s must be different and the offences committed in the two must also be different vis-à-vis the persons accused of committing the offences.

13. The Court can apply the test of sameness when it has to examine the facts and circumstances that are giving rise to two F.I.Rs; in trying to find out, whether, it relates to same incident or not, the Court has to either look at the occurrence of the two // 5 //

incidents and their relationship with each other or the transaction of the occurrence, if, it has occurred in past, and if it finds out the occurrence of offence is the same or the different transaction forms the part of the same occurrence, second F.I.R. is reliable to be quashed; if the second occurrence based on different version and two different crimes are committed as a result, the second F.I.R. shall survive; and it would cover all such situations where the police receives subsequent information in furtherance of investigation permitted under section 173(8) Cr.P.C. The aforesaid guidelines were provided by the Supreme Court in T.T.Antony case and further it has been observed therein that a criminal prosecution on the second F.I.R., if, it fails to stand on the test of sameness, shall be liable to be quashed since, it is to balance rights of an accused in view of Articles 19, 20(2) and 21 of the Constitution of India.

14. The test of consequence is also at times applied after second F.I.R. is lodged. In C. Muniappan -Vrs- State of T.N. the Supreme Court held that if the offences alleged at both places be same, in that case, the second F.I.R. is not to sustain. In fact, the test of consequence was reiterated by the Supreme Court in Amitbhai Anilchandra Shah -Vrs- C.B.I.

15. On conspectus of materials on record and keeping in view the settled position of law as enunciated by the Supreme Court in the decision ibid, the Court is to examine if at all the criminal prosecution before the learned court below in G.R. Case No. 1346 of 2013 is to be quashed on the ground that for the alleged transaction an F.I.R. is already lodged at Kotwali Nagar PS, Faizabad, U.P. From the F.I.R. dated 22.11.2013, it is made to reveal that on an intimation being received from the Banks' Faizabad branch in U.P., the amount which was credited to the account of Shri Balaram Fabrics Pvt.Ltd. was withheld and later reversed. It is, thus, made to realize that only after the information being received from Faizabad Branch of SBI, the // 6 //

complainant lodged the F.I.R. at Dhenkanal for a legal action by the local police. On a bare perusal of the English translated copy of the F.I.R., it is also made to suggest that the dispute and the concerned cheque relates to a transaction during which an amount of Rs.50,00,000/-(rupees fifty lac) was alleged to have been withdrawn and credited to the account of Shri Balaram Fabrics. It is being alleged in the said F.I.R. that someone has committed the overt act, perhaps, in connivance with the bank staff at Odisha Branch, inasmuch as, the amount was debited from the account of M/S. K.M. Sugar Mills Pvt. Ltd. with the active knowledge of the concerned bank. So, in the F.I.R. lodged at Kotwali Nagar PS, Faizabad, U.P., not only cheating was alleged but also, it has been claimed that someone responsible for alleged transaction did it by hatching a conspiracy in connivance with the Bank staff. So to say, the alleged transaction is covered by the F.I.R. of Faizabad for cheating and also conspiracy. If the occurrence is same; parties are identical; and consequence would be one and the same, in such a case, the second F.I.R. which is lodged only by indicating the alleged fraud to have been committed should not be allowed to survive. In the instant case, the transaction in question mentioned in the first F.I.R. stated to be the cause of action for the second F.I.R. at Dhenkanal and it clearly indicates the parties to be identical and apart from cheating, conspiracy has also been alleged. Not only the parties are same but also the consequence would be same in the event criminal prosecution at Dhenkanal is allowed to continue which is based on lodging of the second F.I.R. dated 22.11.2013. Applying the tests of sameness and consequence, as discussed here in above, the Court reaches at a logical conclusion that the criminal prosecution commenced on the lodging of second F.I.R. dated 22.11.2013 and its continuation should not be permitted, as it would result in double jeopardy and that apart, the alleged transaction under second F.I.R. covers both cheating as well as // 7 //

conspiracy and investigation thereon would singularly serve the purpose.

16. In other words, the criminal prosecution in G.R. Case No. 1346 of 2013 since arise out of a common transaction in respect of which an F.I.R. is already lodged at Kotwali Nagar PS, Faizabad, U.P., it would be desirable that criminal action at Dhenkanal should be quashed with a direction to transmit the second F.I.R. to Kotwali Nagar PS, Faizabad, U.P. for reference and necessary action. Hence, it is ordered.

17. In the result, application under Section 482 of Cr.P.C. at the instance of the petitioner stands allowed. As a necessary corollary, proceeding vide G.R. Case No. 1346 of 2013 arising out of Dhenkanal P.S. No. 273 of 2013 is hereby quashed with a direction that F.I.R. lodged at Town P.S. on 22.11.2013 under Section 420 IPC to be transmitted forthwith to the Kotwali Nagar PS. Faizabad, U.P. for intimation and appropriate action at their end.

18. The CRLMC is accordingly disposed of.

                                                 (R.K.Pattanaik)
                                .                    Judge




 Dated 10th November, 2021/K.R.Majhi,P.A.