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.1897 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.233

of 2012 arising out of Rayagada P.S. Case No.92 of

2012 as a sequel of complaint in 1.C.C. No.30 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

installment of 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, but O.P.No.2 never took part in the

monthly draws 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 Junior Clerk (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

Padma 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.30 of 2011 before the learned

S.D.J.M., Rayagada, who by an order sent the

complaint to Police U/S.156(3) of Cr.P.C., which was

accordingly registered vide Rayagada P.S. Case

No.92 dated 11.06.2012 for offences 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.92 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 noticed as confirmed in postal tracking report.

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 disputed

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 in this case disclose no

seizure of any document to indicate 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

had stated to have heard the matter about petitioner

floating a scheme for collection of money and their

statements categorically appear to have no

reference about deposit by OP 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/acknowledged the

aforesaid fact of refund of amount to O.P.No.2 and

another in 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 of the offence for which

cognizance is taken. It is not the case of the

O.P.No.2 that by deceiving, 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, petitioner and

others by forming a group had started the Chit Fund

Scheme, but there is neither any prima facie

materials or documents collected in the course of

investigation to indicate about any entrustment of

cash/property to the petitioner nor is there any

allegation of deceiving the group members, rather

the same discloses 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 against the petitioner.

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 regard

being had to the principle laid down 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 it 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