Chhaya Prava Dash @ Nayak vs Smt. Girija Nandini Nayak
2023 Latest Caselaw 2235 Ori

    IN THE HIGH COURT OF ORISSA AT CUTTACK

               CRLMC No. 1994 of 2021 &
                CRLMC No. 1216 of 2022

Applications under Section 482 of the Criminal Procedure
Code, 1973.
                     ---------------
CRLMC No. 1994 of 2021
Chhaya Prava Dash @ Nayak
& others                             ......         Petitioners

                            -Versus-

Smt. Girija Nandini Nayak              .......     Opp. Party

CRLMC No. 1216 of 2022
Santosh Khatua                         ......       Petitioner

                            -Versus-

State of Odisha & another              .......     Opp.Parties

Advocate(s) appeared in this case:-
_________________________________________________________
      For Petitioners     : M/s. S.P. Mishra, S.S. Chaini,
                            M. Sahoo & A. Sahoo, Advocates.
                            [in CRLMC No. 1994 of 2021]

                             M/s. A.K. Nath, S.K. Rout &
                             P.K. Sahoo.
                             [in CRLMC No. 1216 of 2022]

     For Opp. Parties       : M/s. H.N. Tripathy, S.R.
                              Tripathy & D. Barik, Advocates.
                             [ in CRLMC No. 1994 of 2021]

                           Mr. S.K. Mishra,
                           Addl. Standing Counsel
                           [in CRLMC No. 1216 of 2022]
_________________________________________________________

                                               Page 1 of 12
         CORAM:
           JUSTICE SASHIKANTA MISHRA

                               JUDGMENT

th 20 March, 2023

SASHIKANTA MISHRA, J. The three petitioners in CRLMC No.

1994 of 2021 and the sole petitioner in CRLMC No. 1216 of

2022 seek to challenge the order dated 18.03.2021 passed

by learned J.M.F.C. (Rural), Balasore in ICC Case No. 16 of

2020 whereby he took cognizance of the offences under

Sections 420/467/468/448/294/506/34 of IPC on the

basis of the complaint filed by the present opposite party.

2. The brief facts of the case are that the opposite

party- complainant having approached the police on

02.10.2019 to lodge an FIR against the petitioners, the

same was not registered for which she filed the complaint

in question before the court below. In the said complaint

petition she has alleged that a partition suit being C.S. No.

1072/2005 relating to ancestral property of her husband

was preliminarily decreed on 13.09.2010, wherein Chhaya

Prava Nayak (petitioner No.1 in CRLMC No. 1994 of 2021)

was the plaintiff. But after the death of her husband, the

said Chhaya Prava Nayak managed to get a power of

attorney executed from her on 13.06.2012 and thereafter,

herself executed a power of attorney in favour of one

Santosh Khatua (petitioner in CRLMC No. 1216 of 2022).

Thereafter, Chhaya Prava Nayak managed to sell the

complainant's share of the land and registered the same

behind her back. On 08.07.2012, Chhaya Prava Nayak,

Santosh Khatua and Krushna Chandra Dash (petitioner

No.2 in CRLMC No. 1994 of 2021) came to the house of the

complainant and took her signatures on some blank papers

and also took her to the Sub-registrar's office where her

photograph was taken. On the same day, the complainant

came to know that the petitioners had cheated her by

showing sale of Ac.0.47 dec. of land through a fraudulent

sale deed, the value of which is more than rupees one

crore. They however, paid only Rs.3,00,000/- to the

complainant. Having come to know about their intention,

the complainant cancelled the power of attorney on

09.07.2012 but by such time, the petitioners had managed

to sell away her entire share to one Prasanna Kumar Barik.

The complainant thereafter requested the petitioners to pay

the balance amount but they did not heed her request. On

01.10.2019 at about 7.00 p.m., all the petitioners came to

her house with some antisocial persons, abused her and

threatened to kill her if she demanded more money. On the

complaint being filed, the initial statement of the

complainant was recorded and enquiry under Section 202

of Cr.P.C. was taken up, wherein some witnesses were

examined. Basing on the materials on record, the court

below took cognizance of the offences as aforesaid by the

impugned order.

3. Heard Mr. S.P. Mishra, learned Senior Counsel

along with Mr. M. Sahoo, learned counsel for the petitioner

in CRLMC No. 1994 of 2021; Mr. A.K. Nath, learned

counsel for the petitioner in CRLMC No.1216 of 2022; Mr.

S.R. Tripathy, learned counsel appearing for the

complainant (opposite party in CRLMC No. 1994 of 2021

and opposite party No.2 in CRLMC No. 1216 of 2022)

4. Assailing the impugned order, Mr. S.P. Mishra,

learned Senior Counsel contends that the very initiation of

criminal proceedings is bad in law inasmuch as on the face

of it, the same is a civil dispute given the colour of criminal

offence. Mr. Mishra further submits that even otherwise as

per the complaint, the complainant was aware of the

alleged fraud played by the petitioners way back on

09.07.2012, but she chose to remain silent till the year

2020 without offering even a semblance of explanation for

such inordinate delay. It is also argued that even the

allegation that the petitioners threatened and abused the

complainant, is entirely false and baseless. Summing up

his arguments, Mr. Mishra submits that if aggrieved, the

complainant should have approached the competent Civil

Court for redressal within the period of limitation and since

she could not do so, she has come up with the criminal

case only to harass and put pressure on the petitioners.

Mr. Mishra has referred to certain judgments of the Apex

Court, which will be discussed at the appropriate stage.

5. Mr. Nath, while adopting the arguments

advanced by learned Senior Counsel further submits that

he was the bonafide power of attorney holder of Chhaya

Prava Nayak and has got nothing to do with the dispute

between the parties, which is nothing but a family dispute

and is also civil in nature.

6. Mr. S.R. Tripathy, learned counsel appearing

for the complainant-opposite party submits that only

because the dispute has elements of civil dispute, will not

take away the criminal liability of the accused persons. He

further submits that the very act of fraudulently selling

away the share of the complainant by the accused

petitioners without her knowledge amounts to the offence

of cheating, besides forgery and related offences. Therefore,

according to Mr. Tripathy, notwithstanding the fact that

the dispute involves some civil elements, the criminal

liability of the petitioners cannot be ignored.

7. In view of the rival submissions noted above, it

is evident that the moot question that falls for

consideration by this Court is, whether the dispute as per

the complaint is purely civil in nature but given the cloak

of a criminal case. On examination of the materials on

record it is seen that there was a partition of the ancestral

properties as per the preliminary decree passed in a suit

(C.S. No. 1072/2005) filed by Chhaya Prava Nayak @ Dash.

In the said suit, the husband of the complainant was

defendant No.5. The suit was decreed on 13.09.2010 and

thereafter the husband of the complainant died. It is

alleged that a power of attorney was obtained from the

complainant on 13.06.2012 by Chhaya Prava Nayak, who

in turn executed another power of attorney in favour of

Santosh Khatua. The fact of execution of power of attorney

on 13.06.2012 is not denied. It is further alleged that on

08.07.2012 the signatures of the complainant were

obtained on blank stamp papers. It is borne out from the

complaint petition that the complainant had gone to the

office of the Sub-Registrar, where her photograph was

taken. It is claimed that on the same day she came to know

that the land belonging to her share measuring Ac. 0.47

dec. had been sold by the accused persons and she was

paid Rs.3 lakhs. Therefore, on the next date, she cancelled

the power of attorney.

From the above narration it is evident that the

complainant had willfully executed the power of attorney in

favour of Chhaya Prava Nayak on 13.06.2012 and was also

aware of the execution of power of attorney by the said

Chhaya Prava Nayak in favour of Santosh Khatua. Further,

she admits to have put her signatures on some blank

stamp papers and of having visited the Sub-Registrar's

office. Nowhere, it has been claimed that the power of

attorney was forcibly obtained from her or her signatures

and photographs were also so obtained. So, the fact of

execution of the sale deed cannot be said to have occurred

behind the back of the complainant. The dispute seems to

be related to the amount of money paid to her towards

consideration. While it is claimed that the complainant was

paid only Rs. 3 lakh yet, as pointed out by learned Senior

Counsel, the sale deed shows that the total consideration

amount of Rs. 29,65,000 was paid to her. Since the

registered sale deed contains the value of the transaction,

no oral evidence can be adduced to rebut the same in view

of the provision under Section 91 of the Indian Evidence

Act. Even otherwise, if according to the complainant, the

accused persons had cheated her by paying less than what

she was entitled to, she could as well have ventilated her

grievance by approaching the competent court of law at the

relevant time. There is absolutely no explanation as to why

she remained silent from 2012 till 2019.

8. Thus, this Court finds that the dispute as laid

in the complaint is in essence, of civil nature but attempted

to be given the cloak of a criminal offence. Since civil

remedy is available, which the complainant chose not to

avail, the case cannot partake of a criminal nature

subsequently. It is well settled that a case may have both

civil and criminal aspects but then the Court has to find

out whether a purely civil dispute is given a criminal

texture. If so, the criminal proceedings cannot be allowed

to continue. Reference in this regard may be had in the

decision of the Apex Court in the case of Paramjeet Batra

v. State of Uttarakhand, reported in (2013) 11 SCC 673,

wherein it was observed as under:

"12.xxxxxxxxxx. Whether a complaint discloses a criminal offence or not depends upon the nature of facts alleged therein. Whether essential ingredients of criminal offence are present or not has to be judged by the High Court. A complaint disclosing civil transactions may also have a criminal texture. But the High Court must see whether a dispute which is essentially of a civil nature is given a cloak of criminal offence. In such a situation, if a civil remedy is available and is, in fact, adopted as has happened in this case, the High Court should not hesitate to quash the criminal proceedings to prevent abuse of process of the court."

Similarly in the case of Vesa Holdings (P) Ltd. v.

State of Kerala, (2015) 8 SCC 293, reported in (2015) 8

SCC 239, the Apex Court observed as follows:

"13. It is true 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 allegations in the complaint disclose the criminal offence of cheating or not. In the present case there is nothing to show that at the very inception there was any intention on behalf of the accused persons to cheat which is a condition precedent for an offence under Section 420 IPC. In our view the complaint does not disclose any criminal offence at all. The criminal proceedings should not be encouraged when it is found to be mala fide or otherwise an abuse of the process of the court. The superior courts while exercising this power should also strive to serve the ends of justice. In our opinion, in view of these facts allowing the police investigation to continue would amount to an abuse of the process of the court and the High Court committed an error in refusing to exercise the power under Section 482 of the Criminal Procedure Code to quash the proceedings."

9. Since it is the complainant's own case that she

had executed the power of attorney and had herself gone to

the office of the Sub-Registrar, it is not comprehended as to

how the offence of cheating and/or forgery etc. is made out.

In other words, there is simply no material to even remotely

suggest that there was any intention on the part of the

petitioners to cheat the complainant at the inception.

In view of what has been discussed hereinbefore

relating to facts of the case as averred in the complaint

petition itself, it is clear that the offences under Sections

420/467/468 of IPC are not made out at all.

10. In course of hearing it is brought to notice of this

Court by the complainant herself by way of affidavit that

the preliminary decree in C.S. No. 1072 of 2005 was

challenged before this Court in RFA No.71 of 2013 and is

presently under challenge before the Supreme Court of

India in SLP(C) No. 5780 of 2018. Since the basic civil

dispute is under adjudication, it is all the more reason why

the criminal proceeding should not be allowed to proceed.

11. Coming to the allegation that on 01.10.2019, the

petitioners went to the house of the complainant and

abused her and threatened her if she demanded more

money, this Court finds the same too farfetched and

worded in very general terms. Nothing specific has been

attributed. There is nothing to show that they had made a

forcible entry into her house. Further, what abusive words

were used, what weapon if any, the petitioners allegedly

held etc. have not been stated at all. Therefore, the offences

under Sections 448/506/294 of IPC are prima facie, not

made out. It is reiterated that merely an allegation, that

too, in such general terms will not constitute the offences

in question.

12. In the final analysis thus, this Court finds that

the dispute between the parties is basically civil in nature

and the criminal proceeding in question has evidently been

launched by the complainant to pressurize the petitioners.

In view of the settled position of law as discussed

hereinbefore, this Court has no hesitation in holding that

continuation of the proceedings would amount to an abuse

of the process of the Court.

13. In the result, the CRLMCs are allowed. The

criminal proceeding in 1CC Case No. 16 of 2020 in the

Court of JMFC (Rural), Balasore is hereby quashed.

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

Sashikanta Mishra, Judge

Orissa High Court, Cuttack, The 20th March, 2023/ A.K. Rana, P.A.