Orissa High Court
Gangadhar Padhi And Others vs State Of Odisha And Another on 27 March, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLMC No.1619 of 2016
Gangadhar Padhi and others .... Petitioners
Mr. A.R. Dash, Advocate
-versus-
State of Odisha and another .... Opposite Parties
Mr. Debakanta Mohanty, A.G.A. for the State
Mr. B.P.B. Bahali, Advocate for O.P. No.2
CORAM:
THE CHIEF JUSTICE
ORDER
Order No. 27.03.2023
Dr. S. Muralidhar, CJ
09. 1. The present petition seeks the quashing of criminal proceedings
in 1 CC No.445 of 2015 pending in the court of SDJM, Berhampur
at the instance of Opposite Party No.2.
2. The above complaint case is under Sections
464/467/471/120B/197 read with Section 198 IPC. The admitted
position is that the Complainant has also filed Civil Suit No.267 of
2005 in the court of the Civil Judge (Senior Division), Berhampur
against the accused alleging inter alia that false powers of attorney
were created as a result of which portions of the suit schedule lands
belonging to the Plaintiffs (Informants) were sold to third parties.
The suit is for a declaration of those powers of attorney and sale
deeds to be null and void.
3. The ground on which the Petitioner seeks relief of quashing is
that the criminal proceedings ought not to continue till such time
the civil suit is not decided. Reliance is placed on the decision in
Ashwini Kumar Padhi v. State (2001) II OLR 148 which is a
judgment of a learned Single Judge of this Court.
4. On the other hand, Mr. Bahali, learned counsel appearing for the
Opposite Party No.2 has placed before the Court the decision of the
Supreme Court of India in M. Krishnan v. Vijay Singh AIR 2001
SC 3014 which in fact states that in such circumstances there would
be no justification for scuttling the criminal complaint as the
standard of proof in both instances i.e., the civil suit and the
criminal complaint would be different. In paras 5, 6 and 7 of the
said decision it was held as under:
"5. Accepting such a general proposition would be
against the provisions of law inasmuch as in all cases
of cheating and fraud, in the whole transaction, there
is generally some element of civil nature. However, in
this case, the allegations were regarding the forging of
the documents and acquiring gains on the basis of such
forged documents. The proceedings could not be
quashed only because the respondents had filed a civil
suit with respect to the aforesaid documents. In a
criminal court the allegations made in the complaint
have to be established independently, notwithstanding
the adjudication by a civil court. Had the complainant
failed to prove the allegations made by him in the
complaint, the respondents were entitled to discharge
or acquittal but not otherwise. If mere pendency of a
suit is made a ground for quashing the criminal
proceedings, the unscrupulous litigants, apprehending
criminal action against them, would be encouraged to
frustrate the course of justice and law by filing suits
with respect to the documents intended to be used
against them after the initiation of criminal
proceedings or in anticipation of such proceedings.
Such a course cannot be the mandate of law. Civil
proceedings, as distinguished from the criminal action,
have to be adjudicated and concluded by adopting
separate yardsticks. The onus of proving the
allegations beyond reasonable doubt, in criminal case,
is not applicable in the civil proceedings which can be
decided merely on the basis of the probabilities with
respect to the acts complained of. The High Court was
not, in any way, justified to observe :
"In my view, unless and until the civil court
decides the question whether the document are
genuine or forged, no criminal action can be
initiated against the petitioners and in view of
the same, the present criminal proceedings and
taking cognizance and issue of process are
clearly erroneous."
6. Where factual foundations for the offence have been
laid down in the complaint, the High Court should not
hasten to quash criminal proceedings merely on the
premise that one or two ingredients have not been
stated with the details or that the facts narrated the
existence of commercial of money transaction between
the parties.
7. This Court in Rajesh Bajaj v. State NCT of Delhi &
Ors., MANU/SC/0155/1999 observed :
"It may be that the facts stated narrated in the present
complaint would as well reveal a commercial
transaction or money transaction. But that is hardly a
reason for holding that the offence of cheating would
elude from such a transaction. In fact, many a
cheatings were committed in the course of commercial
and lose money transactions. One of the illustrations
set out under Section 415 of the Indian Penal Code
(illustrations "f") is worthy of notice now :
"(f) A intentionally deceives z into belief that A
means to repay any money that Z may lend to
him and thereby dishonestly induces Z to lend
him money, A not intending to repay it. A
cheats."
The crux of the postulate is the intention of the person
who induces the victim of his representation and not
the nature of the transaction which would become
decisive in discerning whether there was commission
of offence or not. The complainant has stated in the
body of the complaint that he was induced to believe
that respondent would honour payment on receipt of
invoices, and that the complainant realised later that
the intentions of the respondent were not clear. He also
mentioned that respondent after receiving the goods
have sold them to other and still he did not pay the
money. Such averments would prima facie make out a
case for investigation by the authorities."
5. In that view of the matter, the Court is not inclined to entertain
the present petition at this stage.
6. Permitting the Petitioner to raise all pleas at the appropriate stage
in the criminal proceedings, the petition is disposed of. It is made
clear that no observation is made by this Court that the present
order would be construed as an expression of a final opinion on the
merits of the contentions of the parties. The interim order passed
earlier stands vacated.
(Dr. S. Muralidhar)
Chief Justice
M. Panda
