Nawed Hussain & Another vs State Of Orissa & Another
2023 Latest Caselaw 2736 Ori

      IN THE HIGH COURT OF ORISSA AT CUTTACK

               CRLMC No. 2483 of 2018


Nawed Hussain & Another                ....             Petitioner
                                  Mr. Samvit Mohanty, Advocate


                            -Versus-


State of Orissa & Another               ....        Opposite Parties

                          Mr. Tapas Ku.Praharaj, SC for O.P.No.1
                          Mr. A.C. Panda, Advocate for O.P.No.2


             CORAM:
             MR. JUSTICE R.K. PATTANAIK

              DATE OF JUDGMENT:04.04.2023

1.

By invoking inherent jurisdiction under Section 482 Cr.P.C., the petitioner has approached this Court assailing the correctness, legality and judicial propriety of the impugned order of cognizance dated 14th September, 2017 passed in connection with I.C.C. Case No. 56 of 2017 by the learned SDJM, Panposh and the entire proceeding on the grounds inter alia that the essential ingredients of the offences are not proved and established even by considering the complaint and for the reason that the criminal action has been initiated in order to wreak vengeance.

2. In fact, opposite party No.2 lodged an F.I.R. dated 26th March, 2016 consequent upon which Rourkela Plant Site P.S. Case No. 90 was registered under Sections 420,506,507 read with 34 IPC, however, after completion of investigation, a final report was submitted before the learned court below. Later to the receipt of

the final report (Anneuxre-2), on intimation received, opposite party No.2 filed a protest petition which was treated as a complaint in I.C.C. Case No. 56 of 2017 and in the said proceeding, evidence was received. The learned court below, thereafter, recording the initial statement of opposite party No.2 under Section 200 Cr.P.C. and holding an enquiry in terms of Section 202 Cr.P.C. passed the impugned order of cognizance dated 14th September, 2017 which is presently under challenge at the behest of the petitioners.

3. Heard Mr. Mohanty, learned counsel for the petitioners, Mr. Praharaj, learned counsel for State-opposite party No.1 and Mr. Panda, learned counsel for opposite party No.2, namely, complainant.

4. Mr. Mohanty, learned counsel for the petitioners submits that no offences of cheating and criminal breach of trust are prima facie established even after considering the complaint and evidence received in I.C.C. Case No. 56 of 2017 and therefore, the order of cognizance dated 14th September, 2017 is not tenable in law and hence liable to be quashed so also the entire criminal proceeding initiated at the instance of opposite party No.2 which is later to the submission of final report since no evidence was found during investigation. At the same time Mr. Mohanty, learned counsel for the petitioners referring to the procedure for taking cognizance under Section 200 Cr.P.C. and relying upon the decisions of the Apex Court in S.W. Palanitkar & Another Vs. State of Bihar & Others AIR 2001 SC 1296 and Nirmaljit Singh Hoon Vrs. The State of West Bengal & Another(1993) 3 SCC 753 submits that the learned court below did not apply its judicial mind before issuing process to the petitioners morefully when the complaint is

a false and vexatious one intended only to harass and to wreack personal vengeance. By placing reliance on the above decisions besides S.R. Kumar Vs. S.Sunaad Raghuram reported in 2015(9) SCC 609, it is contended that the learned court below grossly erred in taking cognizance of the alleged offences when no offences of cheating and criminal breach of trust found to have been committed by the petitioners and that too when, there was lack of any intention or mens rea.

5. On the contrary, Mr. Praharaj, learned counsel for the State submits that on consideration of the complaint and evidence received by the learned court below which prima facie proved and established the alleged mischief committed by the petitioners, it cannot be held that the impugned order of cognizance dated 14th September, 2017 suffers from any legal infirmity. Mr. Panda learned counsel for opposite party No.2, namely, complainant submits that the learned court below examined opposite party No.2 under Section 200 Cr.P.C. and received evidence in enquiry under Section 202 Cr.P.C. and thereafter, on a subjective satisfaction and having found the petitioners having committed the alleged overt acts and mischief rightly proceeded against them and took cognizance of the offences vide Annnexure-6 which, therefore, calls for no interference nor the criminal proceeding is liable to be quashed.

6. Mr. Mohanty, learned counsel for the petitioners submits that where there is absence of any entrustment or dominion over property, an offence under Section 406 IPC is not made out. Furthermore, the offence of cheating defined in Section 415 IPC is not prima facie established in absence of material to show any fraudulent or dishonest inducement from the side of the

petitioners. Whether a mere breach of contract could invite a prosecution for an of offence of cheating, as according to Mr. Mohanty, is also a matter for examination since the learned court below did not consider the said aspect before taking cognizance of the offences vide Anneuxre-6. It is contended that unless there is entrustment of a property or having dominion over such property and thereafter, it is dishonestly misappropriated or converted for one's own use, an offence of criminal breach of trust punishable under Section 406 IPC cannot be said to have been committed and hence, issuance of process for an offence under Section 406 IPC is also not sustainable in law.

7. In S.W. Palanitkar (supra), the Apex Court explained the duty of a Magistrate while issuing process after a complaint is received. It is observed therein that enquiry under Section 202 Cr.P.C. is extremely important and limited to the ascertainment of truth or falsehood of the allegation made in the complaint on the basis of materials placed by the complainant and in order to find out, whether, a prima facie case is made out for issue of process. Whether there is a prima facie case based on evidence even though the person charged for an offence might have a defence, according to the Apex Court in the said decision, would have to be left for a decision at the appropriate stage of the prosecution and issue of a process could not be refused unless the Court finds that the evidence led before it is self-contradictory or intrinsically untrustworthy. It has also been held therein that the jurisdiction under Section 482 Cr.P.C is limited to the exceptions. In so far as exercise of inherent power is concerned, it is well settled by a catena of decisions and more prominently in State of Haryana & Others Vs. Ch. Bhajan Lal & Others reported in AIR 1992 SC 604

which is to the effect that if on consideration of the F.I.R. or complaint, no prima facie case is made out or any cognizable offence is shown to have been committed or disclosed or the allegations are highly improbable or on account of personal grudge, such jurisdiction may be exercised. In the case at hand, the petitioners contend that no offences under Sections 406 and 420 IPC are made out even on a plain reading of the complaint besides the evidence received by the learned court below and therefore, the order of cognizance dated 14th September, 2017 is bad in law.

8. The essential ingredients of Section 406 IPC in order to constitute a criminal breach of trust are as follows. For the alleged offence, entrustment of property is with the accused or he having dominion over the same and thereafter shown to have dishonestly misappropriated or converted it for his own use. In other words, not only entrustment shall have to be established but also it is to be shown that the accused who had the entrustment or dominion over the property with dishonest intention, misappropriated or converted the same for self use. Mr. Mohanty, learned counsel for the petitioners submits that even considering the fact that a four wheeler was purchased being financed by the husband of the complainant and it is in possession of the petitioners, no offence of criminal breach of trust as defined in Section 405 IPC is committed. The Court perused the complaint and it is made to appear that a four wheeler was purchased in the name of the husband of opposite party No.2 and it was handed over to the other side with an understanding that the installments would be paid by them. It is not alleged in the complaint that the petitioners or anyone ever disposed of the said four wheeler financed and purchased in the name of opposite party No.1's husband. Rather,

it is revealed that the vehicle after having been purchased was gifted to the son-in-law of petitioner No.1. It is also made to suggest that the petitioners as per the understanding did not pay the EMI's regularly as it was purchased with the finance obtained from ICC Bank Pvt. Ltd. for which an amount of Rs. 70,000/- was parted with by opposite party No.2 as down payment. So, therefore, as per the complaint itself, a vehicle was purchased with the finance and in the name of the husband of opposite party No.2 but the same was handed over to be gifted to the son in-law of petitioner No.1. The said vehicle is since then in possession of the petitioner No.1's son in-law of. In such view of the matter, the Court is unable to persuade itself that an offence punishable under Section 406 IPC is made out since for such an offence not only dominion over a property to be established but also about its dishonest misappropriation or conversion. It is not such a case that the alleged vehicle so financed by the husband of opposite party No.2 was ever dishonestly disposed of petitioner No.2. The ownership of the vehicle as it appears from the complaint remains with the opposite party No.1's husband and there is no allegation about its disposal or conversion. In absence of any allegation as to dishonest misappropriation or conversion with respect to the alleged vehicle so purchased and financed by opposite party No.1, it would not be justified to allege that there was any breach of trust as defined in Section 405 IPC. In S.W. Palanitkar (supra), the Apex Court, in a similar situation, reached at a conclusion that there has to have material evidence to show that the property entrusted or having dominion over such property by the accused, if not dishonestly disposed of or converted for own use, no offence of criminal breach of trust is stated to have been committed.

9. With regard to offence under Section 420 IPC, Mr. Mohanty, learned counsel for the petitioners further submits that the said offence is also not prima facie proved and established considering the allegations in the complaint and in that regard, Mr. Mohanty, placed reliance on a decision of the Apex Court in G.V. Rao Vrs. LHV Prasad & Others AIR 2000 SC 2474 to contend that the intention to deceive and induce a person must appear and also to cause damage or harm to that person in body, mind, reputation or property. The basic element of deception, as according to the said decision, presupposes the existence of a dominant motive of a person making the inducement. In other words, according to the decision (supra), such inducement should have led the person deceived or induced to do or omit to do anything which he would not have done or omitted to do if he were not so deceived and only then an offence of cheating defined in Section 415 IPC can be said to have been committed. According to Mr. Mohanty, learned counsel for the petitioners, there is no deception from the side of the petitioners and whatever happened was on account of an understanding between the parties even for the sake of argument believing the fact that the husband of opposite party No.2 and also opposite party No.2 herself helped and assisted the petitioners on different occasions and provided finance for various purposes.

10. Mr. Panda, learned counsel for opposite party No.2 submits that with the assurance and in good faith, opposite party No.2 and her husband provided the financial assistance to the petitioners at the time of marriage of petitioner No.1's daughter but thereafter the petitioners breaking the promise and such assurance, neither refunded the amount of Rs.2.6 lac which was

availed as a loan and its repayment in twelve monthly installments nor kept the commitment to pay back the regular EMI's in respect of the financed vehicle purchased in the name of husband of opposite party No.2. It is alleged that opposite party No.2 and her husband were waylaid and induced to finance the petitioners and it was on a condition to keep the commitment but by the conduct of the petitioners, it was loud and clear that they had no intention to honour the commitment and hence, thereby, opposite party No.2 and her husband were cheated by them. No doubt, it appears to be a breach of promise. Whether there was any inducement or cheating from the very inception or otherwise at the instance of the petitioner which prompted or prevailed upon opposite party No.2 to finance them is not discernible from the complaint. To hold that opposite party No.2 was not induced and it was merely an agreement so to say between the parties at personal level and to claim that no cheating was committed would not be a claim unjustified. If opposite party No.2 helped and rendered assistance to the petitioners, who did not keep up the promise later could well invite civil liability but denial to the commitment might result in cheating where deception is shown to exist from the very inception. From the complaint, it is rather made to suggest that petitioner No.1's father (accused No.1) did pay EMIs from 1st May 2013 to 1st May 2014 and thereafter, defaulted and became irregular for which the notice of the concerned Bank was published and that led to the relationship between the parties deteriorated. The said accused at the time of recovery of the vehicle by the Bank said to have refused to hand it over with an undertaking to repay the outstanding dues on or before 20th February, 2016. For such conduct of petitioner No.1's father, it would not be proper to allege that he had deception in

mind from the beginning to defraud opposite party No.2 and her husband. The demand for return of cash was also not met which the petitioners had taken earlier. But for the above default, the facts which are very much stated in the complaint itself, it is quite unreasonable to allege any kind mischief on the part of the petitioners to cheat and defraud opposite party No.2 from the inception. So, it can be said that the learned court below fell into an error in passing the impugned order under Annexure-6 to the aforesaid extent. However, the rest of the offences are prima facie made out on a bare reading of the complaint since opposite party No.2 received threat on and off directly and through anonymous callers.

11. Accordingly, it is ordered.

12. In the result, the CRLMC stands partly allowed. As a necessary corollary, the impugned order of cognizance dated 14th September, 2017 passed in connection with I.C.C. Case No. 56 of 2017 by the learned SDJM, Panposh is hereby quashed with respect to the offences punishable under Sections 406 and 420 IPC and not for the remainder.

(R.K. Pattanaik) Judge

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