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2023 DAILYLAW 860 (ORI)

Subash Chandra Sahoo v. State of Odisha

2023-02-15

R K Pattanaik

body2023
JUDGMENT : R.K.PATTANAIK, J. 1. Instant petition under Section 482 Cr.P.C. is filed by the petitioner for quashing of the impugned order dated 25 th March, 2019 passed in G.R. Case No.1765 of 2014 corresponding to EOW Bhubaneswar Case No.19 of 2014 by the learned S.D.J.M., Sambalpur for having taken cognizance of the offences under Sections 420, 409, 465, 467, 468, 471 and 120-B IPC and thereafter summoned him on the grounds inter alia that no prima facie case is made out and hence, the same is not tenable in law and thus, liable to be quashed in the interest of justice. 2. In fact, an FIR was lodged before the S.P., EOW, Bhubaneswar alleging misappropriation of compensation money payable to the beneficiaries displaced due to construction of Rengali Multipurpose Project and in that connection, EOW Bhubaneswar P.S. Case No.19 of 2014 was registered and on completion of investigation, chargesheet under Annexure-2 was filed against the petitioner and another accused, whereupon, the learned court below took cognizance of the alleged offences vide Annexure-3. 3. The petitioner contends that the FIR and statements of witnesses on being perused do not make out a case as the essential ingredients of the offence are not fulfilled and the learned court below without properly verifying the materials available on record and applying its judicial mind passed the impugned order under Annexure-3. It is contended that the petitioner did not commit any fraud and entire allegation is directed against the co-accused. Referring to Annexure-4, information under RTI Act on the written request of the complainant, it is submitted that the beneficiaries received the compensation and they did not allege anything adverse against the other accused. Furthermore, it is informed to the Court that Deogarh P.S. Case No.227 of 2016 against the other accused resulted in submission of final report i.e. Annexure-5 series and not only that, the Vigilance case against him was also closed since the Government did not sustain any pecuniary loss. Lastly it is submitted that the petitioner did not commit any illegality and was no part of the fraud and at best he can be alleged of being negligent while verifying the power of attorney and legal heir certificate produced before him before disbursement of the compensation amount to the beneficiaries received by other accused. Lastly it is submitted that the petitioner did not commit any illegality and was no part of the fraud and at best he can be alleged of being negligent while verifying the power of attorney and legal heir certificate produced before him before disbursement of the compensation amount to the beneficiaries received by other accused. In any case, according to the petitioner, as the beneficiaries said to have received the amount and no dispute remains, considering the limited role played, it would be unjustified to subject him to prosecution. 4. Heard Mr. Dhal, learned Senior Advocate for the petitioner and Mr. Praharaj, learned counsel for the State-opposite party. 5. Mr. Dhal, learned Senior Advocate submits that the petitioner can be said to be negligent but not a case of the nature to criminally prosecute him. It is contended that the petitioner may be alleged of not being careful while verifying the power of attorney and connected papers submitted by the other accused and before releasing the compensation amount which is therefore not a case of gross criminal negligence. It is further submitted that no doubt there is breach of duty on the part of the petitioner and he should have been more cautious while dealing with the matter but to fasten criminal liability, negligence should be of higher degree with the mens rea, which is again an essential ingredient. A reference is made to the celebrated decision in Andrews Vrs. Director of Public Prosecution (1937) All ER 552 by contending that higher degree of negligence is required in order to establish a criminal offence as simple lack of care and caution may constitute civil liability. Lastly, it is contended that the compensation amount was disbursed and it was received by the other accused but thereafter, it reached in the hands of the beneficiaries as revealed from the final report in Deogarh P.S. Case No.227 of 2016 and under the aforesaid scenario, the criminal proceeding against the petitioner deserves to be quashed. 6. Mr. Lastly, it is contended that the compensation amount was disbursed and it was received by the other accused but thereafter, it reached in the hands of the beneficiaries as revealed from the final report in Deogarh P.S. Case No.227 of 2016 and under the aforesaid scenario, the criminal proceeding against the petitioner deserves to be quashed. 6. Mr. Praharaj, learned counsel for the State on the other hand submits that the petitioner is responsible for disbursement of the compensation amount and without proper verification and enquiry and demanding presence of the beneficiaries handed over the cheque to the other accused, an Advocate by profession, who on the strength of a fake power of attorney and legal heir certificate managed to collect and then misappropriated it and notwithstanding the claim that the beneficiaries received the compensation amount later on, the offences committed by the accused persons are not wiped out. 7. The Vigilance proceeding is shown to have been closed against the other accused vide Annexure-5 series, on perusal of which, it is made to appear that the S.P. Vigilance, Sambalpur Division requested the S.P., Deogarh to initiate legal action against him and accordingly, Deogarh P.S. Case No.227 of 2016 was registered which was terminated on submission of FR with the conclusion that for the same cause of action, EOW is in seisin over the matter. 8. The question is, whether, the petitioner did play any role in the alleged mischief or as claimed by Mr. Dhal, learned Senior Advocate, he was merely negligent without any mens rea? As per the FIR, the petitioner at the relevant point of time had been posted as the Resettlement and Rehabilitation Officer, Rengali Multipurpose Project, Phase-I, Sambalpur and he said to have released the cheque received by the other accused on behalf of the beneficiaries with an authority purportedly based on a special power of attorney and legal heir certificate which were later found to be fake. The allegation against the petitioner is that there was no proper verification made by and he ought to have verified the genuineness of the above documents before handing over the cheque for an amount of Rs.27,01,848/- to the co-accused. 9. Is there any specific material collected during investigation and submitted along with chargesheet to show joint participation of the petitioner? The connivance between the accused persons is required to be established. 9. Is there any specific material collected during investigation and submitted along with chargesheet to show joint participation of the petitioner? The connivance between the accused persons is required to be established. It is also to be prima facie satisfied that the petitioner was a party to the mischief with the requisite criminal intent. As per the chargesheet, what is being alleged is that he did not verify the documents properly and as to its authenticity and genuineness before releasing compensation amount which was subsequently said to have been transferred to the account of the other accused. No any incriminating material is discernable to suggest that the petitioner as well had shared the intention to commit the fraud. It is not in dispute that the entire amount was received by the co-accused. It is not made to reveal that any amount from the compensation money was ever siphoned off at the instance of the petitioner. Rather, it is made to suggest that the petitioner was merely negligent and did not carry out proper verification of the power of attorney and the other document. It may be said that the petitioner was guilty of dereliction in duty. In fact, a link is to be established with the crime and participation of the petitioner therein with intent to defraud the beneficiaries and misappropriate the compensation amount in connivance with the other accused. The said joint liability or conspiracy is conspicuously absent. 10. There is a distinct but subtle difference between a civil liability on account of negligence and a gross misconduct attached to criminality. The defence of the petitioner is that he was though negligent but did not have the mens rea or any kind of participation in the fraud along with the other accused. 10. There is a distinct but subtle difference between a civil liability on account of negligence and a gross misconduct attached to criminality. The defence of the petitioner is that he was though negligent but did not have the mens rea or any kind of participation in the fraud along with the other accused. A reference is made to the Law of Torts, Ratanlal and Dhirajlal (24 th Edition, 2002) about the meaning of negligence which has been described as a breach of duty caused by omission to do something which a reasonable man guided by such consideration which ordinarily regulate the conduct of human affairs would do or doing something which a prudent and a reasonable man would not do; that an actionable negligence consisting in the neglect of the use of ordinary care or skill towards a person to whom the defendant owes the duty of observing ordinary care and skill by which neglect the plaintiff has suffered injuries to his personal property; that the definition involves three constituents of a negligence (i) a legal duty to exercise due care on the part of the party complained of towards the party complaining the former’s conduct within the scope of the duty, (ii) breach of the said duty; and (iii) consequential damage. The decision in Andrews (supra) has been placed reliance on to distinguish the conduct of the petitioner not being guilty of criminal negligence by stating that lack of care may constitute a civil liability but for the purposes of criminal law, degree of negligence is very high, which according to the aforesaid judgment, is required to be proved before the felony is established. A decision in Syad Akbar Vrs. State of Karnataka AIR 1979 SC 1848 is also referred to differentiate a civil and criminal liability based on negligence which has to be gross or culpable in order to subject someone to a criminal prosecution which cannot be based on a negligence on account an error of judgment. A decision in Syad Akbar Vrs. State of Karnataka AIR 1979 SC 1848 is also referred to differentiate a civil and criminal liability based on negligence which has to be gross or culpable in order to subject someone to a criminal prosecution which cannot be based on a negligence on account an error of judgment. In the instant case, the contention is that neither there is mens rea nor any participation by the petitioner in the alleged fraud and not only that, it is a case of negligence simplicitor as he was required to be diligent and ought to have verified the documents to find out its genuineness before releasing the compensation money and received by the other accused, who is alleged of being the man responsible behind the mischief, he having produced a fake special power of attorney and legal heir certificate. An error of judgment may happen or at times a casual conduct amounts to dereliction in duty and it facilitates another to commit a crime and the present case is a glaring example of such kind, as because of the carelessness of the petitioner, the other accused managed to receive the amount of compensation meant for the beneficiaries. The Court is not concerned or influenced by the fact that the beneficiaries thereafter received the amount or the matter was settled since the very basis of the prosecution is on account of alleged fraud being committed. However, the Court is not persuaded to accept the fact that the petitioner did something more or was in any way had participation in the alleged mischief with the connivance of the other accused, who seems to be primarily responsible for receiving the compensation money by producing fake documents. The Court is in agreement with the argument that it is a case of negligence and absence of care and caution on the part of the petitioner in disbursing the compensation money without having any convincing material on record to even remotely suggest his direct or indirect involvement in the commission of the crime. An act of gross culpable negligence is what essentially required to criminally prosecute an accused, which in the instant case, does not appear to be so. An act of gross culpable negligence is what essentially required to criminally prosecute an accused, which in the instant case, does not appear to be so. Hence, the conclusion is that the negligence of the petitioner though led to the commission of the crime by the other accused, that by itself not to be sufficient to criminally prosecute him for the alleged mischief. 11. Accordingly, it is ordered. 12. In the result, the CRLMC stands allowed. As a necessary corollary, the impugned order dated 25th March, 2019 passed in G.R. Case No.1765 of 2014 by the learned S.D.J.M., Sambalpur corresponding to EOW Bhubaneswar Case No.19 of 2014 and the criminal proceeding vis-à-vis the petitioner is hereby quashed for the reasons discussed herein above.