Orissa High Court

Babi Panda vs State Of Orissa And Another on 20 March, 2023

   IN THE HIGH COURT OF ORISSA AT CUTTACK

              CRLMC NO.1898 of 2016

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

 Babi Panda                        ...         Petitioner
                        -versus-

 State of Orissa and another       ...   Opposite Parties


 For Petitioner          :   Mr. C.A. Rao, Advocate


 For Opposite Parties    :   Mr. S.S. Pradhan, AGA
                             [O.P.No.1]
                             None[O.P. No.2]

        CORAM:
                 JUSTICE G. SATAPATHY

           DATE OF HEARING :09.02.2023
           DATE OF JUDGMENT:20.03.2023

G. Satapathy, J.

1. The petitioner by way of this application

U/S.482 of Cr.P.C. prays to quash the entire criminal

proceeding initiated against her in G.R. Case No.232

of 2012 arising out of Rayagada P.S. Case No.91 of

2012 as a sequel of complaint in 1.C.C. No.31 of

2011 pending in the file of learned S.D.J.M.,

Rayagada.

2. The background of facts in precise are the

petitioner, according to O.P.No.2, started a private

Chit Fund Scheme of a group of 20 persons including

O.P.No.2 and, accordingly, each of the group

members was to deposit a sum of Rs.5,000/-

(Rupees Five Thousand) per month and there would

be a monthly draw in which the highest bidder would

take the amount so deposited by all the 20 members

and the tenure of the scheme would be one year.

The scheme accordingly ran and O.P.No.2 was

regularly paying Rs.5,000/- (Rupees Five Thousand)

only per month to the petitioner towards the scheme

and the petitioner was also receiving the said sum

by entering the fact in a small book supplied to

O.P.No.2 and, in the process, O.P.No.2 paid a sum

of Rs.90,000/- (Rupees Ninety Thousand) only with

effect from 20.02.2009 till 30.07.2010 (18

installments), but O.P.No.2 never took part in the

monthly draw as she wanted to take up the total

amount of Rs.1,00,000/- (Rupees One Lakh) for

utilizing the same for the marriage of her daughter.

While the matter stood thus, the petitioner got

transferred from Rayagada to Gunupur as she was

working as a Government Servant and, thereby, she

acknowledged her liability to pay Rs.1,85,500/-

(Rupees One Lakh Eighty Five Thousand and Five

Hundred) to O.P.No.2 and one Indu Swain at the

time of her transfer, but she subsequently did not

pay that amount. On being aggrieved, O.P.No.2 filed

a complaint against the petitioner in 1.C.C. No.31 of

2011 before the learned S.D.J.M., Rayagada, who by

an order sent the complaint to the Police U/S.156(3)

of Cr.P.C., which was accordingly registered by

Rayagada P.S. Case No.91 dated 11.06.2012 for

offence U/Ss.406/420 of IPC paving the way for

investigation in this case which culminated in

submission of charge-sheet against the petitioner for

offence U/Ss.406/420 of IPC under which the

learned S.D.J.M., Rayagada took cognizance and

issued summons against the petitioner. In the above

backdrop, the petitioner challenges her implication in

this case by praying to quash the entire criminal

proceeding initiated against her in this application

U/S.482 of Cr.P.C.

3. In the course of hearing the CRLMC, Mr. C.A.

Rao, learned counsel for the petitioner by relying

upon the decision in the case of Anil Kumar

Agarwalla @ Mandothia Vrs. State of Odisha

and another; 2023 (l) OLR-389 and Vitla

Venkata Rao and others Vrs. Suttapalli Venkata

Rao; 1983 CLR 80 submits inter-alia that the

complaint sent to police station without being

supported with an affidavit, is not at all

entertainable by the police and the very inception of

the complaint to be registered as a Rayagada P.S.

Case No.91 of 2012 is not maintainable in the eye of

law and on that score, it is required to be quashed.

It is further submitted by him that in Vitla Venkata

Rao (supra) which is a similar matter, this Court

however, had quashed the proceeding on the ground

no offence is being made out against the petitioner.

4. On contrary, Mr. S.S. Pradhan, learned AGA,

however, submits that the materials on record

definitely disclose the ingredient of offence and,

thereby, the criminal proceeding initiated against the

petitioner cannot be quashed.

None appears for the O.P.No.2 despite being

duly notice.

5. In addressing the rival contentions, it seems

that the complaint was sent to the police station

U/S.156(3) of Cr.P.C. by the learned S.D.J.M.,

Rayagada for registration of the case and

investigation in the matter, but it cannot be denied

that the complaint filed by O.P.No.2 was not

supported by an affidavit and in fact, there was no

prayer by O.P.No.2 to send the complaint

U/S.156(3) of Cr.P.C. In such situation, this Court is

conscious of the decision rendered by this Court in

Anil Kumar Agarwalla @ Mandothia (supra)

wherein by referring to the decision in Priyanka

Srivastava Vrs. State of Uttar Pradesh; (2015)

6 SCC 287, this Court at Paragraph-6 has held as

under:

"6. Assuming that such a complaint could be treated as an application Section 156(3) Cr.P.C. then as explained by the Supreme Court in Priyanka Srivastava (supra), it had to be supported by an affidavit which obviously was not. The legal positions as explained by the

Supreme Court in the aforementioned case are as under:

"29. At this stage it is seemly to state that power under Section 156(3) warrants application of judicial mind. A court of law is involved. It is not the police taking steps at the stage of Section 154 of the Code. A litigant at his own whim cannot invoke the authority of the Magistrate. A principled and really grieved citizen with clean hands must have free access to invoke the said power. It protects the citizens but when pervert litigations takes this route to harass their fellow citizens, efforts are to be made to scuttle and curb the same.

30. In our considered opinion, a stage has come in this country where Section 156(3) CrPC applications are to be supported by an affidavit duly sworn by the applicant who seeks the invocation of the jurisdiction of the Magistrate. That apart, in an appropriate case, the learned Magistrate would be well advised to verify the truth and also can verify the veracity of the allegations. This affidavit can make the applicant more responsible. We are compelled to say so as such kind of applications are being filed in a routine manner without taking any responsibility whatsoever only to harass certain persons. That apart, it becomes more disturbing and alarming when one tries to pick up people who are passing orders under a statutory provision which can be challenged under the framework of the said Act or under Article 226 of the Constitution of India. But it cannot be done to take undue advantage in a criminal court as if somebody is determined to settle the scores.

31. We have already indicated that there has to be prior applications under Sections 154(1) and 154(3) while filing a petition under Section 156(3). Both the aspects should be clearly spelt out in the application and necessary documents to that effect shall be filed. The warrant for giving a direction that an application under Section 156(3) be supported by an affidavit is so that the person making the application should be conscious and also endeavour to see that no false affidavit is made. It is because once an affidavit is found to be false, he will be liable for prosecution in accordance with law. This will deter him to casually invoke the authority of the Magistrate under Section 156(3). That apart, we have already stated that the veracity of the same can also be verified by the learned Magistrate, regard being had to be nature of allegations of the case. We are compelled to say so as a number of cases pertaining to fiscal sphere, matrimonial dispute/family disputes, commercial offences, medical negligence cases, corruption cases and the cases where there is abnormal delay/laches in initiating criminal prosecution, as are illustrated in Lalita Kumari V. State of U.P. (2014) 2 SCC 1 are being filed. That apart, the learned Magistrate would also be aware of the delay in lodging of the FIR."

6. A genuine prima facie survey of the certified

copy of the FIR and charge-sheet together with

statement of three witnesses U/S.161 of Cr.P.C. as

enclosed by the petitioner disclose no seizure of any

document to indicate about collection of money by

the petitioner, although the complaint/FIR reveals

about O.P.No.2 enclosing a Xerox copy of payment

slip at Annexure-1 of the complaint. The statement

of witnesses Susmita Gouda and Smita Sahoo are hit

by hearsay evidence as both of them have stated to

have heard the matter about petitioner floating a

scheme for collection money and their statements

categorically appear to have no knowledge about

deposit made by O.P. No.2 in the Chit Fund Scheme

as alleged by the complainant/O.P.No.2. In this

case, the commission of offence U/Ss.406/420 of

IPC have been alleged, but a bare reading of the

complaint/FIR would not go to disclose that the

petitioner had misappropriated or diverted any

money of the O.P.No.2 for her own use, much less

no documentary evidence had been collected by the

Investigating Agency to prima facie reveal about any

entrustment or payment of any amount by O.P.No.2

to the petitioner, of course it is alleged by O.P.No.2

that the petitioner had acknowledged to have owed

a total amount of Rs.1,85,500/-(Rupees One Lakh

Eighty Five Thousand and Five Hundred) from

O.P.No.2 and another member of the Chit Fund

Scheme. It is also alleged in the complaint/FIR that

the petitioner had endorsed the aforesaid fact of

refunding the amount to O.P.No.2 and another on

the book supplied to O.P.No.2, but what prevented

her not to produce such book containing the

endorsement of the petitioner. These are of course

facts involved in this case. The legal position/

principle in this regard is not disputed that at the

time of taking cognizance of offence, detailed and

meticulous examination of the materials/allegation

raised against the accused person is impermissible,

but the Court has to find out prima facie ingredient.

It is not the case of the O.P.No.2 that by deceiving

her, the petitioner fraudulently or dishonestly

induced her to deliver the installment amount as

alleged, rather the allegation on record reveals

about O.P.No.2, the petitioner and others by forming

a group had started the Chit Fund Scheme, but

there is neither any prima facie materials nor any

document collected in the investigation to indicate

about any entrustment of cash to the petitioner nor

is there any allegation of deceiving the group

members and rather the same disclose about breach

of oral contract. In the circumstance and background

of facts and allegations involved in this case, mere

inability of the petitioner to return the amount as

agreed cannot give rise to a criminal prosecution for

cheating, unless fraudulent or dishonest intention

shown right at the beginning of floating of the

scheme, as it is this mensrea which is the crux of

the offence and failure of the petitioner to return the

money in absence of any written agreement would

not ipso facto constitute any offence of criminal

breach of trust or cheating.

7. The principle governing quashing of criminal

cases as laid down in State of Haryana & others

Vrs. Bhajan Lal & others; 1992 Supp (1) SCC

335 is a locus classicus by itself and the Apex Court

in Paragraph-102(3) of the aforesaid case has held

as under:-

"102. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused."

8. In view of the discussion made hereinabove

and keeping in view the allegation appearing against

the petitioner prima facie does not constitute any

offence of cheating and misappropriation and the

principle stated in Anil Kumar Agarwalla @

Mandothia (supra) vis-à-vis the undisputed fact of

absence of an affidavit in support of the complaint

for sending it U/S.156(3) of Cr.P.C. requiring the

Police to register the complaint as an FIR, which of

course has been done in this case, this Court

considers that the present criminal proceeding

against the petitioner is nothing but an abuse of