Sudhamayee Das vs State Of Orissa .... Opp. Party
2025 Latest Caselaw 5526 Ori

Orissa High Court

Sudhamayee Das vs State Of Orissa .... Opp. Party on 18 August, 2025

Author: Chittaranjan Dash

Bench: Chittaranjan Dash

      IN THE HIGH COURT OF ORISSA AT CUTTACK
                    CRLMC No.245 of 2017

  Sudhamayee Das                 ....                       Petitioner
                                          Mr. H.M. Dhal, Advocate
                               -versus-

  State of Orissa                ....                      Opp. Party
                                       Mr. S.J. Mohanty,, Addl. P. P.


                   CORAM:
  THE HON'BLE
          BLE MR. JUSTICE CHITTARANJAN DASH
                    Date of Judgment: 18.08.2025

Chittaranjan Dash, J.

1. By means of this application, the Petitioner seeks to quash the FIR under Annexure-1 Annexure 1 and the further proceeding in G.R. Case No.468 of 2015 pending before the learned S.D.J.M., Karanjia.

2. The background facts of the case are that the he Petitioner P had availed a cash credit loan of Rs.47.00 lakhs and Term Loan of Rs.57.00 lakhs, thus a total loan of Rs.1.04 Crores, Crores from the Mayurbhanj Central Co-operative Co operative Bank Ltd., Karanjia Branch for installation of a cold storage under the name and style of M/s. Allied Cold Storage Pvt. Ltd. The Petitioner in order to create the loan furnished landed properties with building as collateral security besides mortgaging the plant and machineries in favour of the Bank. The Petitioner etitioner, being the Managing ng Director of the cold storage, executed necessary bonds In this regard to secure the loan in favour of the Bank.

Bank However, the Petitioner defaulted in the repayment of loan which remained outstanding to the tune of Rs.

5,92,91,076/- as an 31.07.2015. The Branch Manager, Central Co-

Co operative Ltd., Mayurbhanj, lodged an FIR against inst the Petitioner, Petitioner alleging that the Petitioner did not clear the outstanding dues to the Bank and instead sold out the mortgaged properties vide sale deed dated 29.07.2015, 29.07.2015 ignoring the restrictions in selling the mortgaged properties. On the basis of the t complaint, the Karanjjia P.S. Case No.160 of 2015 was registered against the Petitioner. The Petitioner assails the proceeding in the criminal case pursuant to the FIR lodged by the Branch Manager, Central Co-operative operative Ltd., Mayurbhanj, primarily on the ground that the dispute between the Parties are civil in nature pertaining to non-payment payment of outstanding dues and there is no criminality involved in it. According to the Petitioner, the Bank had sent a notice on 24.08.2015, 24.08.2015 requiring the Petitioner to clear the outstanding dues to the tune of Rs.5,92,91,076/- with interest within three days. As the Petitioner failed to repay the loan within the said stipulated time, the Bank lodged the FIR. It is further case of the Petitioner that she responded to the notice of the Bank vide her letter dated 16.01.2007, whereupon the Bank had invited application for settlement of the loan accounts under OTS. The Registrar of Co-

Co Operative Society, Odisha also called for a report on the OTS proposal submitted by the Petitioner Petitioner but the Bank did not place any report. Again in the year 2010, a fresh proposal for OTS was invited and the Petitioner, Petitioner being the loanee, submitted application for settlement of the loan account but such proposal submitted was also not considered and no communication was made in that regard. According to the Petitioner, it is because of the latches on the part of the Bank, the outstanding dues escalated to Rs.5,92,91,076/-.

Rs.5,92,91,076/ The

Petitioner further submits that in order to secure the loan, she had mortgaged aged the property in question and had also executed mortgaged bond dated 07.04.1998, 07.04.1998 and one of the covenants of the said mortgaged bond reads as follows:-

follows:

"The Mortgagor agrees that in case the mortgaged properties is sold or re-mortgaged mortgaged or given on will or transferred by any other means, the Mortgagee Bank without following the terms of repayments, shall recall the entire outstanding amount with interest at the rate of 18½ % per annum along with other expenses etc. till til to the date of full realisation".

reali

3. According to the Petitioner, she not only submitted a proposal for OTS with the Bank but also made representations before various authorities of the Government, whereupon the Registrar, Co-

Co operative Society, vide letter letter dated 22.07.2009, directed the Secretary, Central Co-operative Co operative Bank Ltd., Mayurbhanj, to consider the OTS proposal of the Petitioner with reference to the points indicated therein. The Bank compounded the quarterly accrued interest with the principal even even though there was no default by the loanee in the payment of the loan. It is further submitted that the loanee at times had made excess payments. It would further appear from the letter that compound interest had been levied and, accordingly, the Bank was was asked to submit the revised proposal with the resolution of the Bank for onward transmission of the same to the Government in the Co-operative Co operative Department. But the Bank did not submit the revised proposal, as is evident from the letter dated 08.08.2016 issued sued from the office of the Registrar, Co-operative Co

Society, Odisha. However, the Bank was once again requested to submit a report to the Registrar.

As a matter of fact, the Bank initiated a proceeding under Section 68 of the Odisha Co-operative Co Societies Act in Dispute Case No. 82/07-08.

08. The said dispute was adjudicated and disposed of vide order dated 31.10.2009, wherein a decree for a sum of Rs. 1,60,72,801.46 was passed. The said decree was never challenged by the Bank before the higher forum and, as such, such, it attained finality, and the decree so passed was executable under the provisions of the OCS Act, but the Bank has not initiated any execution proceeding for realisation ation of the decretal dues.

It is further the case of the Petitioner that subsequent to the lodging of the FIR, the Bank also filed a suit bearing C.S. No. 101 of 2016 before the Court of Civil Judge (S.D.), Karanjia, to declare the sale deed dated 29.07.2015 executed by the Petitioner in favour of a third party, relegating the mortgaged properties, properties, as null and void. In the said suit, the loanee, i.e., the Petitioner, and the purchaser have been arrayed as defendants.

The Petitioner respectfully submits that the genesis of the prosecution being one for non-payment non payment of the loan amount availed byy the Petitioner, and further that the Bank had already resorted to the provision under Section 68 of the OCS Act, and further the challenge by the Bank to declare the action of the Petitioner in alienating the mortgaged property in favour of the third party par as null and void, no criminal act apparently appears from the action of the Petitioner, but the entire gamut of allegations rests upon civil consequences. This is further because the covenant under the fund

categorically discloses that, in the event the mortgaged property is sold, re-mortgaged, mortgaged, given on will, or transferred by any other means, the mortgagee Bank, without following the terms of repayment, shall recall the entire outstanding amount with interest at the rate of 18½ % per annum along with other other expenses till the date of full realisation. The Bank too has recalled the entire outstanding dues and, as such, the lodging of the complaint and initiation of the criminal proceeding is just an abuse of the process of law, while the same has only civil consequences. Hence, the learned counsel for the Petitioner submits for quashing of the criminal proceeding.

4. Mr. Mohanty, learned counsel for the State, on the other hand, opposed the contentions of the learned counsel for the Petitioner and submitted that there was criminal intent on the part of the Petitioner, as the Petitioner, ignoring all the covenants under the Fund, preferred to sell the properties, knowing them to have been mortgaged with the Bank, in order to evade the Bank from realizing the outstanding utstanding loan upon the sale of the mortgaged properties.

5. Mr. Dhal, learned counsel for the Petitioner relied upon the decisions in the matter of Usha Chakraborty & another Vs. State of West Bengal and another reported in (2023) 15 SCC 135, 135 wherein the he Hon'ble Supreme Court held as follows:-

follows:

"8. In Paramjeet Batra v. State of Uttarakhand, this Court held: (SCC p. 676, para 12) "12. While exercising its jurisdiction under Section 482 of the Code the High Court has to be cautious. This power is to be used sparingly and only for the purpose of preventing abuse of the process of any court or otherwise to secure ends of justice. Whether Whet a complaint discloses a criminal offence or not depends upon the nature of the 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, case, the High Court should not hesitate to quash the criminal proceedings to prevent abuse of process of the court."

×××

10.. In Kapil Aggarwal v. Sanjay Sharma, this Court held that Section 482 is designed to achieve the purpose of ensuring that criminal proceedings proceedings are not permitted to generate into weapons of harassment.

11. In the decision in State of Haryana v. Bhajan Lal, a two-Judge Judge Bench of this Court considered the statutory provisions as also the earlier decisions and held as under: (SCC pp. 378-79, 378 para 102) "102.... (1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

accused (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate agistrate within the purview of Section 155(2) of the Code.

(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 th accused.

(4) Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable cognizable offence, no investigation is

permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the Act concerned (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the CodeCode or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. ×××

20. As noticed hereinbefore, the respondent alleged commission of offences under Sections 323, 384, 406, 423, 467, 468, 420 and 120-B 120 B IPC against the appellants. A bare perusal of the said allegation and the ingredients to attract them, as adverted to hereinbefore would reveal that the allegations are vague and they did not carry the essential ingredients to constitute the alleged offences. There is absolutely no allegation in the complaint that the appellants herein had caused hurt on the respondent so also, they did not reveal a case that the appellants had intentionally put the respondent in fear of injury either to himself or another or by putting him under suchh fear or injury, dishonestly induced him to deliver any property or valuable security. The same is the position with respect to the alleged offences punishable under Sections 406. 423. 467, 468, 420 and 120-BB IPC. The ingredients to attract the alleged offence of referred to hereinbefore and the nature of the allegations

contained in the application filed by the respondent would undoubtedly make it clear that the respondent had failed to make specific allegation against the appellants herein in respect of the aforesaid offences.

21. The factual position thus would reveal that the genesis as also the purpose of criminal proceedings are nothing but the aforesaid incident and further that the dispute involved is essentially of civil nature. The appellants b and the the respondents have given a cloak of criminal offence in the issue. In such circumstance when the respondent had already resorted to the available civil remedy and it is pending, going by the decision in Paramjeet Batra, the High Court would have quashed the he criminal proceedings to prevent the abuse of the process of the Court but for the concealment.

22. In the aforesaid circumstances, coupled with the fact that in respect of the issue involved, which is of civil nature, the respondent had already approached approach the jurisdictional civil court by instituting a civil suit and it is pending, there can be no doubt with respect to the fact that the attempt on the part of the respondent is to use the criminal proceedings as weapon of harassment against the appellants.

appellants. The indisputable facts that the respondent has filed the pending title suit in the year 2015, he got no case that he obtained an interim relief against his removal from the office of Secretary of the School Managing Committee as also the trusteeship, that tha he filed the stated application for an order for investigation only in April 2017 together with absence of a case that despite such removal he got a right to get informed of the affairs of the school and also the trust, would only support the said conclusion.

conclu

23. For all these reasons, we are of the considered view that this case invites invocation of the power under Section 482 CrPC to quash the FIR registered based on the direction of the Magistrate Court in the aforestated application and all further proceeding proceeding in pursuance thereof. Also, we have no hesitation to hold that permitting continuance of the criminal proceedings against the appellants in the aforesaid circumstances

would result in abuse of the process of court and also in miscarriage of justice."

justi

6. Coming to the case in hand, admittedly the Petitioner had obtained a loan from the Mayurbhanj Central Co-operative Co operative Bank in order to establish his business of cold storage in the name and style of M/s. Allied Cold Storage Pvt. Ltd. The Petitioner continued to repay the loan; however, he defaulted in repayment. The effort of the Petitioner in getting the loan amount settled with the Bank through an OTS plan was never considered. On the contrary, the Bank admittedly proceeded under Section 68 of the OCS Act to recover the loan amount, and the decree passed upon adjudication of the said proceeding under Section 68 of the OCS Act could not be finalized upon execution of the said decree. As seen from the impugned order, the outstanding dues recoverable have have been shown to be Rs.1,60,72,801.46, whereas the Bank lodged the report showing outstanding of Rs.5,92,91,076/-, Rs.5,92,91,076/ , which is not in conformity with the amount sought to be recovered from the Petitioner upon adjudication of the proceeding. Subsequently, the Bank also moved against the action of the Petitioner in alienating the mortgaged property in favour of a third party, challenging it before the appropriate Court of civil jurisdiction, i.e., the Civil Judge, Senior Division, in Civil Suit No.101 of 2016.

7. Needless to mention, the Petitioner had executed a mortgage bond with the Bank, and the covenant thereof, thereof at Annexure-4, specifically stipulates that in the event, event the mortgaged property is sold, re-mortgaged, re mortgaged, bequeathed, or transferred by any other means, eans, the Bank shall recall the entire outstanding dues with interest. There is nothing in the said mortgage bond to indicate

initiation of any criminal proceeding. Even otherwise, the ingredients to attract the alleged offences referred to in the FIR, as well as the proceeding in G.R. Case No.468 of 2015 and the nature of allegations contended in the application filed by the Petitioner, would undoubtedly give rise to a civil action, and there is no material to indicate that the conduct of the Petitioner would would be amenable to criminal action.

8. In view of the above reasons, this court is of the considered view that the material appearing in the case is fit for invocation of the power under Section 482 and the same being absolutely in the nature of dispute in the civil side, si e, the proceeding in the criminal case deserves to be quashed. The CRLMC is disposed of accordingly.

(Chittaranjan Dash) Judge

Bijay

Location: HIGH COURT OF ORISSA