Orissa High Court
Rohit Sharma vs State Of Odisha And Another on 22 February, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
AFR CRLMC No.1295 of 2022
Rohit Sharma .... Petitioner
Mr. Biyotkesh Mohanty, Advocate& Associates
-Versus-
State of Odisha and Another .... Opposite Parties
Mr. S.S. Mohapatra, ASC for OP No.1
Mr. B.P. Pradhan, Advocate &Associates for OP No.2
AND
CRLMC No.1004 of 2022
Satish Dabas and Another .... Petitioners
Mr. Sinha Shrey Nikhilesh, Advocate & Associates
-Versus-
State of Odisha and Another .... Opposite Parties
Mr. S.S. Mohapatra, ASC for OP No.1
Mr. B.P. Pradhan, Advocate &Associates for OP No.2
CORAM:
JUSTICE R.K. PATTANAIK
DATE OF JUDGMENT:22.02.2023
1.
Instant petitions under Section 482 Cr.P.C. are at the behest of
the petitioners for quashing of the criminal proceeding in
connection with Rambha P.S. Case No.92 dated 15th March, 2022
corresponding to G.R. Case No.320 of 2022 pending in the file of
learned J.M.F.C., Khallikote on the grounds inter alia that no prima
facie case is made out under Sections 420 read with 34 IPC and
furthermore, at the dispute is civil in nature.
Rohit Sharma & Satish Dabas and Another and Vrs. State of Odisha & Another
2. Since the matter arises out of a common cause of action, the
both the petitions have been clubbed together and are disposed of
by the following order.
3. In the present case, opposite party No.2 lodged the FIR against
the petitioners with the allegation that the consignment of oil was
honoured and released in good faith but payment was not ensured
despite several requests and finally, the liability was denied. It has
been alleged therein that the petitioners in collusion with each
other cheated opposite party No.2 and avoided paying an amount
of Rs.12,58,455/-. On lodging of the report, Rambha P.S. Case
No.92 of 2022 was registered. The initiation of a criminal action at
the behest of opposite party No.2 is currently under challenge
predominantly on the ground that the dispute to be civil in nature.
4. The petitioners in CRLMC No.1004 of 2022 are the Directors of
the company M/s. Golden Cashew Products Private Limited which
is said to have business transaction with opposite party No.2,
whereas, the petitioner in CRLMC No.1295 of 2022 is a purchase
agent, who negotiated between the parties for sale of the goods.
5. Heard Mr. Mohanty, Mr. Nikhilesh, learned counsels for the
petitioners as well as Mr. Mohapatra, learned counsel for the State
besides Mr. Pradhan, learned counsel for opposite party No.2.
6. CRLMC No.1004 of 2022: The petitioners would plead that the
allegations as per the FIR (Annexure-1) are outrightly false and in so
far as the dispute is concerned, the same is a commercial
transaction and hence, civil in nature and therefore, the criminal
proceeding against them at the instance of opposite party No.2
cannot be sustained in law. It is claimed that the prosecution is not
tenable since the intention to cheat from the inception is
conspicuously absent and has been levied with a purpose to coerce
the petitioners to make the payment which is being demanded by
Rohit Sharma & Satish Dabas and Another and Vrs. State of Odisha & Another
opposite party No.2. It is further claimed that if there was no
delivery of the consigned material, the petitioners would not liable
to make the payment and furthermore, it has been concealed that
the vehicle which is stated to have carried the consignment met
with an accident and as such, it was never delivered and that apart,
no indent was placed with the opposite party No.2. The learned
counsel for the petitioners refer to the decision of the State of
Haryana and others Vrs. Ch. Bhajan Lal and others AIR 1992 SC
604 to contend that even by considering allegations contained in
the FIR, no offence is made out and the criminal proceeding is
manifestly attended with malafide and since the nature of dispute
arises out of a business transaction, the criminal proceeding is not
maintainable in law.
7. CRLMC No.1295 of 2022: Whereas the petitioner in the present
case submits that it was a dispute between the parties as seller and
buyer and he was merely a purchase agent and his limited role was
to negotiate the price of the goods, such as, CSNL oil. It is further
submitted that opposite party No.2 intentionally and willfully
concealed the fact that the vehicle which was transporting oil
bearing registration No.GJ08Y9899 met with an accident on 27th
December, 2021 and the driver of the said vehicle died at the spot
for which Khallikote P.S. Case No.777 of 2021 was registered
under Sections 279 and 304 IPC and deliberately suppressed the
fact that the goods for which the payment is being demanded
never reached its destination. Under the above circumstances, since
there was a transaction on both the sides, the criminal proceeding
on the strength of the FIR lodged by opposite party No.2 could
not have been initiated. The learned counsel for the petitioner
similarly submits that even after considering the FIR, no offence of
cheating under Section 420 IPC is made out and hence, the
impugned FIR is liable to be quashed.
Rohit Sharma & Satish Dabas and Another and Vrs. State of Odisha & Another
8. According to opposite party No.2 on the intimation received
from the petitioners (CRLMC No.1004 of 2022) the vehicle with
the oil was released with an understanding that the payment for the
same would be ensured on the following date i.e. 28th December,
2021. It is further alleged therein that opposite party No.2 was
requested by the above petitioners and M/s. Avon Bulk Carriers
also pressurized to release the tanker by as they were having other
assignment and such request was honoured in good faith with the
commitment that the payment would be made following day,
however, surprisingly received a response through e-mail of having
not purchased the material for not receiving it disowning the
liability. The allegations are that the petitioners in collusion cheated
opposite party No.2 with the requisite intention and avoided
payment which the latter was lawfully entitled.
9. Learned counsel for the petitioners cited a decision of the Apex
Court in Vijay Kumar Ghai and others Vrs. State of West Bengal
(2022) 7 SCC 124 and contend that the criminal proceeding should
be quashed since no criminal offence is made out and also for the
fact that the dispute is the result of a transaction between the
parties and also initiated maliciously or tainted with malafide so as
to pressurize the petitioners in CRLMC No.1004 of 2022 to make
the payment in respect with the goods which was never indented
for and delivered by opposite party No.2 in view of the fact that
the vehicle allegedly carrying the goods met with an accident, the
fact which was concealed and not disclosed in the FIR.
10. Mr. Pradhan, learned counsel for opposite party No.2 cited
decisions such as Teeja Devi @Triza Devi Vrs. State of Rajasthan
and Others (2014) 15 SCC 221; State of Orissa and others Vrs. Ujjal
Kumar Burdhan (2012) 4 SCC 547; Ravindra Kumar Madhanlal
Goenka and Another Vrs. Rugmini Ram Raghav Spinners Pvt. Ltd.
(2009) 11 SCC 529;Indian Oil Corporation Vrs. NEPC India Limited
and others (2006) 6 SCC 736 besides CBI Vrs. Arvind Khanna
Rohit Sharma & Satish Dabas and Another and Vrs. State of Odisha & Another
(2019) 10 SCC 686 and it is contended that since a case of malafide
and cheating is alleged and prima facie revealed from the
impugned FIR, it cannot be quashed, inasmuch as, a criminal
prosecution is not entirely barred for a cause of action arising out
of a commercial transaction on the premise that it is a civil dispute.
In Ch. Bhajan Lal (supra), the Apex Court held and concluded that
the criminal proceeding may be quashed if the allegation in the FIR
or in the complaint even if accepted at their face value do not
prima facie constitute any offence or discloses a cognizable offence
or where FIR or the complaint are so inherently improbable on the
basis of which no just conclusion can be reached that there is
sufficient ground for proceeding against the accused and also where
the criminal proceeding is at manifestly attended with malafide or
where the prosecution is maliciously instituted with an ulterior
motive etc. The said judgment has been referred to in Vijay Kumar
Ghai case. The above is the settled position of law and it is also
well established that a civil dispute cannot be given a criminal
colour and any such attempt should be nipped at the bud and the
proceeding should be quashed in exercise of inherent jurisdiction.
In so far as the decisions cited by opposite party No.2 in Teeja Devi
@ Triza Devi (supra), the Supreme Court concluded that there
should not be interference with the investigation accepting the
defense that the FIR has been lodged only as a counterblast to the
civil action as after filing of report under Section 173 Cr.P.C., the
accused shall have the remedy to challenge the same in accordance
with law. Similarly in Ujjal Kumar Burdhan (supra), it is held that
extra-ordinary jurisdiction under Section 482 Cr.P.C. though very
wide and expansive, there is no fetter in its exercise but should be
invoked with care, caution and circumspection and sparingly only
when no prima facie case is made out from the FIR or the
complaint if taken on its face value and accepted in their entirety.
In Indian Oil Corporation (supra), the Apex Court also held that
even when the disputes are civil in nature and remedy is available
Rohit Sharma & Satish Dabas and Another and Vrs. State of Odisha & Another
under law, the criminal prosecution disclosing commission of an
offence is not barred.
11. In the instant case, opposite party No.2 alleges that on the
indent of the petitioners in CRLMC No.1004 of 2022, the
consignment was dispatched. However, as per said petitioners, no
such delivery was received as opposite party No.2 was informed
not to dispatch any consignment and that apart, the vehicle which
was involved in the transportation of oil met with an accident on
its way and as such, there was no delivery of the goods for which
the payment was demanded. In the FIR, opposite party No.2
indicated that on 27th December, 2021 38.815 MTs of CS&L oil was
delivered and raised invoice and e-waybill in respect thereof the
fact which was informed to the petitioners but since it was already
late, the vehicle was released and commitment was made by them
to make the payment on 28th December, 2021 which was not
honoured and finally such receipt of delivery was denied and also
the alleged payment.
12. The defence of the petitioners is that there was no delivery at
all as the vehicle transporting the oil met with the accident, the fact
which was suppressed. Such a plea is advanced in juxtaposition to
the claim that the consignment had been released but payment was
committed under the peculiar circumstances narrated in the FIR.
Whether it was on the instruction of the petitioners that the
consignment was dispatched by opposite party No.2 is a matter
which needs investigation. As per opposite party No.2, there were
several requests to make the payment but it was delayed and
deferred and was finally avoided with an e-mail intimation
disowning the liability even denying any purchase made.
13.The dispute between the parties as to if there was any
transaction vis-a-vis the goods which is claimed by opposite party
No.2 and denied by the other side for whatever reasons even
Rohit Sharma & Satish Dabas and Another and Vrs. State of Odisha & Another
informing the former to stop the dispatch is required to be
examined with reference to the evidence collected during
investigation. If the alleged consignment was dispatched and
thereafter, no payment was made and when such transaction was
denied outrightly disclaiming the purchase, as to what was the
intention behind disowning the liability is required to be elicited
from the material evidence to be gathered during investigation. If
malafide is alleged and the liability has been denied with the claim
that the goods have not been received contrary to the claim of the
other side that it was indeed dispatched, a criminal action may lie
which cannot be defended on the ground that the dispute is civil in
nature. The law is well settled that there is no bar for a criminal
prosecution in a case of present nature where malafide is alleged
notwithstanding the fact that a civil remedy is available to the
parties involved. Such a question as to if the consignment was on
the request of the petitioners as claimed by opposite party No.2 is
to be thrashed out on consideration of the evidence furnished
along with the chargesheet. On the ground of a civil dispute out of
a business transaction, a criminal proceeding cannot be set at
naught when bad intention is attributed for having been cheated.
The Apex Court in Teeja Devi @ Triza Devi (supra) reiterated the
law that criminal investigation should not be interfered with on
the ground that the FIR was lodged only as a counterblast to a
civil action. The investigation is also not to be intervened and
interfered with at its threshold by accepting the defence as to
absence of any malafide when bad intention is alleged by the
informant. Since in the present case, the investigation is in progress
or on the verge of closure (might be over by now), it would be
too premature to accept the defence straightway believing the
version of the petitioners, who have been alleged of having
acknowledged the consignment but resiled thereafter and even
denied to make the payment towards the end. In Ravindra Kumar
Madhanlal Goenka (supra), the Apex Court in a similar situation
Rohit Sharma & Satish Dabas and Another and Vrs. State of Odisha & Another
relating to payment and supply of cotton bales for manufacturing
yarn and dealing with an allegation of cheating/fraud discouraged
acceptance of defence during pendency of investigation which
could be looked into and entertained at the time of trial. The Apex
Court in Ujjal Kumar Burdhan (supra) concluded that the Courts
should be loath in interfering at early or initial stage of
investigation which is necessary to test the veracity of the alleged
offence and any obstruction or hindrance of process of law from
taking its normal course, without any supervening circumstances
may tantamount to miscarriage of justice. If there was any
misconduct or mischief committed by the petitioners in denying
the liability or a genuine defence was advanced opposing the
contractual obligation is a matter to be examined and for that, a
detailed enquiry and investigation is needed. To prevent or derail
the investigation accepting the defence plea at the threshold of
investigation would not be wise and justified. In other words, the
Court is not inclined to quash the proceeding at the initial stage of
the investigation as in any case on the submission of report under
Section 173 Cr.P.C., the petitioners will have the remedy to
challenge the same as per and in accordance with law.
14. Accordingly, it is ordered.
15. In the result, the CRLMCs stand dismissed.
(R.K. Pattanaik)
Judge
U.K. Sahoo
