Orissa High Court

Bighnoraj Mohapatro vs State Of Orissa And Another on 1 December, 2022

         IN THE HIGH COURT OF ORISSA AT CUTTACK

                       CRLMC NO.868 of 2015

  (In the matter of application under Section 482 of the Criminal
  Procedure Code, 1973.).

  Bighnoraj Mohapatro                         ....             Petitioner

                                -versus-

  State of Orissa and another                 ....      Opposite Parties



  For Petitioner                : Mr. T. Nanda , Advocate



  For Opposite Parties          : Mr. M. Mishra, ASC [O.P. No.1]
                                  Mr. A. Sahoo, Advocate[O.P. No.2]

      CORAM:
           JUSTICE G. SATAPATHY

               DATE OF HEARING :01.11.2022
               DATE OF JUDGMENT:01.12.2022


G. Satapathy, J.

1. This is an application U/S.482 of Cr.P.C. by the petitioner

seeking to quash the orders passed on 29.11.2008 and 06.01.2015

by learned S.D.J.M., Bolangir in 1.C.C. Case No.128 of 2008

taking cognizance of offence U/S.138 of N.I. Act and issuance of

summon to the petitioner respectively as well as consequently the

entire criminal proceeding.

2. The inter-se dispute between the parties lies in a narrow

compass of dishonor of cheques, but the complaint is claimed to

be not maintainable by the petitioner on technicality. Hence, this

Court while refraining itself from elaborating the entire gamut of

facts involved in this case reiterates only the relevant facts for

disposal of the CRLMC. OPNo.2 as complainant has instituted a

complaint in 1.C.C. Case No.128 of 2008 against (i) Purchase

Officer, District Purchase Centre (petitioner) (ii) Smt. J. Bhoi, In-

Charge, Paddy Procurement Centre and (iii) The Civil Supply

Officer-Cum-Divisional Manager, all working in Orissa State

Civil Supply Corporation (OSCSC) Ltd., Bolangir for commission

of offence U/Ss.420/120(B)/34 of IPC and Section 138 of N.I. Act.

2.1 It is stated in the complaint that the complainant is a

registered farmer of village Loisingha having Farmer Identity Card

No.10101 issued by R.I., Loisingha and it is alleged that on

04.02.2008 the accused No.2 (J. Bhoi) purchased 536.91 quintals

of paddy worth Rs.3,99,998/- from the complainant by duly

entering upon the sale in the farmer identity card of the

complainant and in lieu of the paddy, on 21.07.2008 the accused

Nos.2 (J. Bhoi) and 3 (petitioner) issued two cheques bearing

No.909970 and 909971 in favour of the complainant to be drawn

from the State Bank of India of Loisingha Branch which upon

presented on 05.08.2008 returned back unpaid by the Bank for

insufficient of funds. On consideration of complaint together with

initial statement of complainant in shape of affidavit, the learned

S.D.J.M., Bolangir by the impugned order took cognizance of

offences U/S. 138 of N.I. Act and issued process against the

petitioner on 06.01.2015 by issuing summons which was received

by the petitioner.

2.2 Feeling aggrieved with the impugned orders, the petitioner

has challenged it in this CRLMC application on the ground that

since the cheques in question were issued by him in his official

capacity, his prosecution is protected U/S.197 of Cr.P.C. which is

a condition precedent for taking cognizance of offence for the act

of the Government Servant in due discharge of official duty.

3. In the course of hearing the CRLMC application, Mr.

Trilochan Nanda, learned counsel for the petitioner relying upon

the decisions (i) Jaysingh v. K.K. Velayutham and another;

(2006) 9 SCC 414, (ii) K. Suresh v. M/s. Lloyds Finance Ltd. and

another; 2009 (1) Crimes 321 (Delhi) and K. Suresh and others

v. Arihant Hire Purchase Co. Ltd.; (2007) 2 GLR 375 submits

that since the petitioner was working as a Purchase Officer at the

relevant time of issuance of cheques for OSCSC Ltd., no liability

U/S.138 of N.I. Act can be attracted against the petitioner. It is

further submitted by him that the act of the petitioner being in due

discharge of his official duty, the same cannot be constituted as

personal liability, rather the action of the petitioner is protected by

Section 197 of Cr.P.C. by which prior sanction is mandatorily

required before taking cognizance of any offences including

offence U/S.138 of N.I. Act, but the learned S.D.J.M., Bolangir

has taken cognizance of offence without obtaining prior sanction

U/S.197 of Cr.P.C. against the petitioner and thereby, the

proceeding against the petitioner is not maintainable in the eye of

law. It is accordingly prayed by the learned counsel for the

petitioner to quash the impugned orders.

4. Learned counsel appearing for OP No.2 opposes the

submission of the petitioner vehemently by inter-alia contending

that the immunity as provided U/S.197 of Cr.P.C. is not attracted

for the act of the petitioner and the impugned orders having been

passed by the learned Court in due application of mind need no

inference by this Court. It is further submitted that since the

petitioner had issued cheques which were remained unpaid on

presentation with the banker of complainant and OPNo.2 having

issued Demand notice within a stipulated time resulting in

institution of complaint by OPNo.2 and the learned S.D.J.M.,

Bolangir has rightly taken cognizance of offences U/S.138 of N.I.

Act. Learned counsel for OPNo.2, however, has relied upon the

decision in Vinod Kumar Asthana v. Central Bureau of

Investigation decided on 11.10.2022 in W.P.(CRL) 643 of 2019 in

support of his contention that prior sanction against the petitioner

is not required for taking cognizance of offence in this case.

5. In view of the rival submissions, the moot question

required to be examined in this case is whether the impugned

order taking cognizance of offence U/S.138 of N.I. Act is

unsustainable in the eye of law for want of sanction U/S.197 of

Cr.P.C. against the petitioner, who claims himself to be a public

servant. Indisputably the OPNo.2 has instituted the complaint

against the petitioner and others in 1.C.C. case No.128 of 2008 by

describing the petitioner and two others as accused persons in the

Column-2 of the complaint which is extracted below:

Name, age and other description 1. The Civil Supply Officer cum of the accused persons Divisional Manager, Orissa State Civil Supply Corporation Ltd., PO/PS/Dist. Bolangir.

2. Sri J.Bhoi, The In-Charge, Paddy Procurement Centre, OSCSC, Ltd., Loisingha PO/PS.

Loisingha, Dist. Bolangir.

3. The Purchase Officer, Dist.

                                       Purchase     Centre,    Bolangir,
                                       OSCSC       Ltd.,    PO/PS/Dist.
                                       Bolangir. (PETITIONER)
                                                    Accused No.1 is the
                                       principal authority of the Orissa
                                       State Civil Supply Corporation
                                       and under his instruction accused
                                       No.2 and 3 are performing their
                                       duty as the In-Charge and
                                       Purchase     Officer     of   the
                                       Corporation.

It is also never disputed by OPNo.2 about identity of the

petitioner as the Purchase Officer working under OSCSC Ltd.

According to Section 21 (Twelfth)(b) of IPC, "every person in the

service or pay of a local authority, a corporation established by or

under a Central, Provincial or State Act or a Government

company as defined in Section 617 of the Companies Act, 1956 (1

of 1956) is a public servant" and the description given in Column-

2 of the complaint as has been referred to above makes it

apparently clear that the petitioner is a public servant which is

further invigorated by the averments made by the petitioner at

paragraph 4 of the CRLMC that the petitioner was working as

Inspector of Supplies with additional duty of Purchase Officer,

OSCSC Ltd., Bolangir which was never disputed by OPNo.2 and

the complaint states that the petitioner was performing his duty as

the In-Charge and Purchase Officer of the Corporation under the

instruction of accused No.1-Civil Supply Officer. The complainant

has also averred in the complaint that accused No.2 purchased

paddy from him and Accused Nos.2 (J. Bhoi) and Accused No. 3

(petitioner) issued two cheques in the name of complainant which

were dishonoured on presentation for collection at State Bank of

India, Bolangir.

6. On scrutiny of the complaint and the facts narrated above,

admittedly, the petitioner has not issued the cheques in question

from his personal account, rather he has issued the cheques in

question in official capacity as Purchase Officer of OSCSC Ltd.,

Bolangir. In this case the criminal liability sought to be fastened

on the petitioner on account of his act in discharge of his official

duty for the Corporation is the vicarious liability. Although the

complainant has averred that the petitioner was performing duty as

a Purchase Officer in the Corporation but the petitioner liability

being vicarious liability on account of his duty for the

Corporation, it can be safely presumed that the respondent-

opposite party No.2 was required to aver in the complaint that he

was In-Charge of and responsible to the Corporation for purchase

of paddy and, thereby, the Corporation as well as the petitioner

were liable for prosecution U/S.138 of N.I. Act so as to attract the

vicarious liability on the petitioner. Merely the petitioner being

described as Purchase Officer of the Corporation is not sufficient

to attract the vicarious liability against him in view of the fact that

he was admittedly discharging duty under the instruction of

accused No.1 who was the Civil Supply Officer-Cum-Divisional

Manager, OSCSC Ltd.

7. Be that as it may, the petitioner seeks to quash the order

taking cognizance of offence U/S.138 of N.I. Act for want of

sanction U/S.197 of Cr.P.C. and it is clear that the petitioner was a

public Servant within the meaning of Section 21 of IPC at the

relevant time and was discharging his official duty for the

Corporation and, thereby, the provision of prior sanction U/S.197

of Cr.P.C. gets automatically attracted in view of the admitted fact

that the petitioner was performing only his official duty while

issuing the cheques in question. Law is very well settled that when

the offence alleged to have been committed by the accused has

some reasonable nexus with due discharge of his official duty as a

Government Servant, the immunity from prosecution against such

Government servant automatically comes into play inasmuch as

the provision of Section 197 of Cr.P.C. is not an empty formality

and it has been couched in the specific language that no Court

shall take cognizance of such offences except with previous

sanction of the competent authority.

8. In this case the petitioner was a Government Servant and

the cheques in question were issued by him in the course of his

discharge of official duty and, thereby, prior sanction U/S.197 of

Cr.P.C. was mandatory condition precedent before taking

cognizance of offence U/S.138 of N.I. Act. In the course of

hearing of the CRLMC, learned counsel for the petitioner has also

placed reliance on the decision of K. Suresh (supra) wherein the

High Court of Delhi while respectfully agreeing with the

conclusion arrived at by a Division Bench of Guwahati High Court

in K. Suresh and others v. Arihant Hire Purchase Co. Ltd.;

(2007) 2 GLR 375 {Criminal Revision No.174 of 2002 disposed

of on 08.08.2006} has held that:

"prior sanction for prosecution of the Managing Director in terms of Section 197 of Cr.P.C. would be mandatory before the learned M.M. can take cognizance of offences."

In fact in this case, a bare perusal of complaint itself

discloses that the petitioner had issued the cheques in discharge of

his official function under the instruction of accused No.1 who is

also a State Government Servant. It is not out of place to mention

here that the judgment relied on by opposite party No.2 in Vinod

Kumar Asthana (supra) is found distinguishable from the facts of

the present case inasmuch as in Vinod Kumar Asthana (supra),

the matter relates to subsequent grant of sanction, but in this case

there is no sanction at all.

9. In view of the above facts and discussions, according to

the complaint itself, the petitioner was performing his duty as the

Purchase Officer under the instruction of accused No.1 who was