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2023 DAILYLAW 890 (ORI)

Birendra Mohan Pattanaik v. State of Odisha

2023-04-17

R K Pattanaik

body2023
JUDGMENT : R.K. PATTANAIK, J. 1. Instant petition under Section 482 Cr.P.C is at the behest of the petitioner challenging the correctness, legality and judicial propriety of the impugned order of cognizance dated 8 th February, 2021 passed in 1.C.C. No. 3733 of 2020 by the learned S.D.J.M., Bhubaneswar on the grounds inter alia that the same is not tenable in law and hence, liable to be interfered with and quashed in exercise of the Court’s inherent jurisdiction. 2. In fact, opposite party Nos. 2 and 3 filed the complaint in 1.C.C. No. 3733 of 2020 against the petitioner, wherein, the learned Court below recorded the initial statement of opposite party No.3 under Section 200 Cr.P.C and received evidence during inquiry in terms of Section- 202 Cr.P.C. and at last, passed the impugned order dated 8 th February, 2021 vide Annexure-3. It has been alleged by the petitioner that the learned Court below ought not to have taken cognizance of the alleged offences without proper inquiry when the dispute between the parties is related to the functioning of a society of the flat owners of Nanda Enclave and morefully, when he instituted a suit in C.S. No. 1430 of 2020 pending before the Court of learned Civil Judge (Junior Division), Bhubaneswar as against which complaint is filed as a counterblast. 3. Heard Mr. Dhal, learned Senior Advocate appearing for the petitioner assisted by Mr. A. Ray, Advocate and Mr. Satapathy, learned counsel for opposite party Nos. 2 and 3. 4. Opposite party Nos.2 and 3 have filed complaint in 1.C.C. Case No. 3733 of 2020 against the petitioner with the allegation that the signatures of one of them and two others, who are arrayed as the witnesses to the complaint, were forged in the Memorandum dated 8 th April, 2018 of the Nanda Enclave Flat Owners Association. It has also been alleged that petitioner collected money from opposite party Nos. 2 and 3 and other flat owners towards development of the society, however, an amount of Rs.8,40,000/-(Rupees Eight Lac Forty Thousand) was misappropriated. The complainant also alleged that a fake bank account was opened by the petitioner in the name of Nanda Enclave Flat Owners’ Association, he being the authorized signatory to carry on bank transactions on behalf of the Association, which was not in existence and was revealed in course of inquiry. The complainant also alleged that a fake bank account was opened by the petitioner in the name of Nanda Enclave Flat Owners’ Association, he being the authorized signatory to carry on bank transactions on behalf of the Association, which was not in existence and was revealed in course of inquiry. With the above allegations, the complaint was filed by opposite party Nos.2 and 3, whereupon, the learned Court below after receiving evidence proceeded to take cognizance of the offences under Sections 420 , 465, 323, 468, 471 and 506 of I.P.C. against the petitioner vide Annexure-3, which is currently under challenge. 5. Mr. Dhal, learned Senior Advocate for the petitioner submits that opposite party Nos. 2 and 3, who is a flat owner of the Nanda Enclave filed the complaint by making false allegations therein with an ulterior motive to arm twist of the petitioner, who filed a suit in C.S. No. 1430 of 2020. It is contended that after the said suit was instituted by the petitioner, as a counterblast, the complaint was filed by opposite party Nos. 2 and 3 in order to wreck vengeance and settle the score. Mr. Dhal, refers to the decision of the Apex Court in State of Haryana and others Vrs. Ch. Bhajan Lal and others reported in 1992 SCC (Cri) 426 and submits that neither the complaint disclosed any such offences to have been committed by the petitioner or a prima facie case is made out and not only that, the criminal proceeding is being initiated by opposite party Nos. 2 and 3 being thrust upon the former which is manifestly with a view to spite him due to private and personal grudge, which are the conditions sufficient to exercise the extra-ordinary jurisdiction under Section 482 Cr.P.C. In other words, it is contended that the complaint since does not disclose any such offences of fraud and forgery besides cheating committed by the petitioner since no evidence was laid bare before the learned Court below and furthermore the complaint is filed out of personal animosity and as a counterblast to the civil litigation and hence, the impugned order under Annexure-3 should be quashed in the interest of justice. It is alleged that the complaint is filed with false allegations and no evidence or any information in detail was placed before the learned court below with regard to siphoning of the fund of the society by the petitioner all the more when none of other flat owners came forward and ever alleged so. Besides the above decision, Mr. Dhal, learned Senior Advocate referred to the following decisions, such as, Paramjeet Batra Vrs. State of Uttarakhand (2013) 11 SCC 673 ; R. Nagender Yadav Vrs. State of Telangana & Another (2023) 2 SCC 195 ; State of Karnataka Vrs. L. Muniswamy (1977) 2 SCC 699 ; Vesa Holdings (P) Ltd. Vrs. State of Kerala (2015) 3 SCC (Cri) 498 besides Usha Chakraborty & Another Vrs. State of West Bengal & Another arising out of SLP (Crl.) 5866 of 2022 to contend that the criminal proceeding initiated at the instance of opposite party Nos.2 and 3 and entertained by the learned Court below should be quashed since it is a matter pertaining to the society of the flat owners and continuance of the same would amount to persecution. Not only that the impugned order under Annexure-3 is also challenged on the ground that the learned Court below was required to conduct a threadbare inquiry under Section 202 Cr.P.C instead of acting upon and merely relying on the statements of opposite party No.3 and two other witnesses to the complaint. 6. On the contrary, Mr. Satapathy, learned counsel for the opposite party Nos. 2 and 3 submits that the learned Court below did not err or commit any wrong or illegality since it received evidence of cheating and forgery against the petitioner, who received money from the complainants and others and did not carry out the developmental work of the society and not only that, manipulated and manufactured the Memorandum of the Association to open a fake account in a bank and also applied for registration of the society. With such allegation, according to Mr. Satapathy, when the complaint is filed and evidence was received, the learned Court below could not be said to have committed any illegality in taking cognizance of the alleged offences vide Annexure-3, which is, therefore, absolutely justified and in accordance with law. A series of documents regarding the forgery of signature and other overt act allegedly committed by the petitioner have been referred to by Mr. A series of documents regarding the forgery of signature and other overt act allegedly committed by the petitioner have been referred to by Mr. Satapathy so to satisfy the Court that the allegations to be true. 7. The allegation is that the petitioner received money not only from opposite party Nos. 2 and 3 but from other flat owners and did not utilize the same for the society’s development instead misappropriated it and also manipulated a Memorandum and committed fraud while applying for the registration and in the opening of a bank account. 8. Mr. Satapathy referring to the list of documents submitted to the Court contends that the impugned order under Annexure-3 should not be disturbed as the learned court below on consideration of evidence received from opposite party No.3 and submitted by two other witnesses during inquiry under Section 202 Cr.P.C., on a subjective satisfaction, has taken cognizance of the alleged offences against the petitioner. While advancing such an argument, it is also contended that the extra-ordinary jurisdiction under Section 482 Cr.P.C. should not be invoked leaving open for the learned court below to examine it during enquiry and trial. While contending so, Mr. Satapathy, learned counsel for opposite party Nos.2 and 3 cited M/s. Indian Oil Corporation Vrs. NEPC India Ltd. & Others (2006) 6 SCC 736 ; State of Odisha & Another Vrs. Saroj Kumar Sahoo (2005)13 SCC 540 ; and Saranya Vrs. Bharathi and Another decided in Criminal Appeal No. 873 of 2021 by the Apex Court along with Musstt Rehana Begum Vrs. State of Assam & Another (Criminal Appeal No. 118 of 2022 arising out of SLP (Crl) No. 559 of 2022) and lastly, M/s. Neeharika Infrastructure Pvt. Ltd. Vrs. State of Maharastra and others disposed of on 13 th April, 2021 in Criminal Appeal No. 330 of 2021. The sum and substance of the contentions of Mr. Satapathy, learned counsel for the opposite party Nos.2 and 3 is that at the initial stage, the Court is not to evaluate the materials on record to appreciate the evidence or to hold a piecemeal trial or to act as an appellate court and such jurisdiction under Section 482 Cr.P.C should be exercised in the rarest of the rare case in the language of the Apex Court in M/s. Neeharika Infrastructure Pvt. Ltd. (supra). With the above authorities, Mr. With the above authorities, Mr. Satapathy, learned counsel for opposite party Nos.2 and 3 finally submits that the impugned order under Annexure-3, since does not suffer from any serious illegal infirmity, it should not be interfered with. 9. There is no denial to the legal position that during the stage of investigation or thereafter when the inquiry is in progress before the court below, unless and until a special case is made out for interference, inherent jurisdiction under Section 482 Cr.P.C should not be exercised. In Saroj Kumar Sahoo (supra), the Apex Court had the occasion to consider the limitation in exercising power under Section 482 Cr.P.C. and held and observed therein that at the stage of framing of charge, only a prima facie case is to be satisfied about the existence of sufficient ground to proceed against the accused instead of a detailed analysis or evaluation of material and documents on record. Likewise in Saranya (supra), the Supreme Court held that the Court while exercising inherent jurisdiction is not to conduct any trial or to invoke jurisdiction like an appellate court against an order of conviction or acquittal. Similarly, in Musstt Rehana Begum (supra), the Apex Court concluded that the Court should not ordinarily embark upon on any inquiry whether the evidence is reliable or not, or whether on a reasonable appreciation of it, conviction would be sustained or otherwise, which is the function of the trial court. There is no tenebrosity in the settled principle of law that the inherent power under Section 482 Cr.P.C. should be exercised sparingly with caution and circumspection and criminal proceeding ought not to be scuttled at the threshold unless an exception is carved out. In fact, the land mark judgment with regard to exercise of inherent jurisdiction is in the case of Ch. Bhajan Lal (supra), wherein, guidelines have been laid down and more prominently, where the F.I.R. or the complaint, as the case may be, if does not disclose the commission of a cognizable offence, or even if taken at its face value, no prima facie case is made out, or any such criminal action has been set into motion with an oblique motive and purpose and the proceeding is maliciously initiated in order to wreack vengeance. Being alive to the above legal position, the Court is to consider whether the impugned order under Annexure-3 dated 8 th February, 2021 can be sustained in law? 10. The complaint is filed by opposite party Nos. 2 and 3 and as earlier mentioned, one of them is a flat owner and both are related as spouses and other two witnesses to the complaint in 1.C.C. Case No. 3733 of 2020 are also the flat owners of Nanda Enclave, whereas, the petitioner being a flat owner is stated to be the Secretary of the society or so called Association. 11. The learned court below examined opposite party No.3 under Section 200 Cr.P.C. during which he alleged that the petitioner received and collected money of Rs.1500/- per flat and an amount of Rs. 35,000/- from him towards development of the society but did not provide the details of the expenses incurred and committed the alleged mischief when the same was demanded and also opened a fake bank account and employing fraud applied for registration of the society after forging their signatures in the Memorandum of the Flat Owners’ Association dated 8 th April, 2018. It is claimed by the petitioner that one of the witnesses was never a signatory to the said Memorandum, a copy of which is at Annexure-4. 12. Mr. Dhal, learned Senior Advocate appearing for the petitioner submits that it is entirely a dispute between the flat owners with the allegation of misappropriation of society’s money which the petitioner claimed to have received from opposite party Nos. 2 and 3 and other two witnesses, however, the evidence is not clear, as to the manner in which, the fraud and forgery was committed. While claiming that the parties are before a civil court in C.S. No. 1430 of 2020 which was with respect to a dispute over the parking slot, Mr. Dhal refers to a copy of the plaint and apprised the Court that in fact in the said suit, opposite party Nos. 2 and 3 filed a compromise petition which was not pressed later on. The essence of the argument of the petitioner is that no any offence of fraud and forgery is proved and established even by considering the complaint which is filed by opposite party Nos. 2 and 3 filed a compromise petition which was not pressed later on. The essence of the argument of the petitioner is that no any offence of fraud and forgery is proved and established even by considering the complaint which is filed by opposite party Nos. 2 and 3 to arm twist the petitioner to withdraw the suit pending in the court of learned Civil Judge (Junior Division), Bhubaneswar. 13. It is claimed by opposite party No.3 while being examined under Section 200 Cr.P.C that he had approached the local PS with the grievance against the petitioner, however, no action was taken thereon. In fact, the complaint as at Annexure-1 reveals that no any information was lodged at the PS. 14. Mr. Satapathy, learned counsel for opposite party Nos. 2 and 3 submits that since the grievance of the complainant was not entertained by the local P.S., the complaint was filed as a last resort. It is made to appear from the statement of opposite party No.3 as at Annexure-2 that a proceeding under Section 107 Cr.P.C. was initiated vide M.C. No. 1664 of 2019. The order sheets in the proceeding under Section 107 Cr.P.C. in CMC No. 1700 of 2019 have been produced by Mr. Satapathy, learned counsel for opposite party Nos. 2 and 3 to show that the petitioner and three others as 2 nd party members furnished bonds of Rs.5000/- each to maintain peace in the locality for a period of one year with other conditions. It thus appears to the Court that the parties are in dispute since last two to three years, for which, the petitioner approached the civil court in the month of September, 2020 and shortly, thereafter, opposite party Nos.2 and 3 filed the complaint on 20 th November, 2020. It is alleged that the petitioner received money from opposite party Nos. 2 and 3 and other flat owners and did not account for the same when it was demanded and in that connection, they were abused and assaulted, in one of such incidents dated 10th November, 2020 shortly before the complaint was filed. With regard to the allegation of fraud and forgery, Annexure-4 is the document containing the decision of the Flat Owners’ Association dated 8 th April, 2018 alleging that in the minutes, the signatures of opposite party No.3 and two of the witnesses were forged. 15. With regard to the allegation of fraud and forgery, Annexure-4 is the document containing the decision of the Flat Owners’ Association dated 8 th April, 2018 alleging that in the minutes, the signatures of opposite party No.3 and two of the witnesses were forged. 15. Though the signatures of other flat owners’ appear in Annexure-4, whether, the opposite party No.3 and two other witnesses were present on the said date in the meeting of the Flat Owners’ Association is a matter of examination. It is alleged that their signatures were forged. However, according to opposite party Nos. 2 and 3 with the help Annexure-4, the fraud was committed by the petitioner, a bank account was opened and also an application was moved for registration of the Association. The said Memorandum is of the year 2018 and nearly two years after as it is made to suggest that opposite party Nos. 2 and 3 filed the complaint with the allegation of fraud and forgery against the petitioner. The petitioner is said to have received an amount of Rs.35,000/- from the complainant and also other flat owners, he being the Secretary of the society which was for the purpose of development of the society but in so far as the complaint is concerned, the details of the fraud and in what manner, the amount has been misappropriated and if at all any such bank account was opened secretly in order to siphon off the society’s fund is also a matter which needs proper inquiry and investigation. 16. Admittedly, the parties on account of a dispute over the parking slot are in litigating terms in C.S. No. 1430 of 2020 and therein, as informed, opposite party Nos. 2 and 3 had moved for compromise. 16. Admittedly, the parties on account of a dispute over the parking slot are in litigating terms in C.S. No. 1430 of 2020 and therein, as informed, opposite party Nos. 2 and 3 had moved for compromise. Against the aforesaid backdrop, the Court is of the considered view that since it is a matter of dispute between the parties with the allegations of money of the society having been misutilized and that some sort of mischief was committed by the petitioner while obtaining signatures of opposite party No. 3 and two other witnesses in Annexure-4, in absence of a clear disclosure with the evidence as to the manner of misappropriation and as to the purpose in opening of bank account, which is stated to be in the name of Flat Owners’ Association, whether, there was any fraud at all committed by the petitioner, the learned court below was required to enquire it in detail in terms of Section 202 Cr.P.C. instead of simply relying on and referring to the statements of two of the witnesses, who are of course the flat owners. It is no doubt that an inquiry has been conducted by the learned Court below but considering the nature of allegations as against the background facts and more so when the parties are before the civil court to work out their remedy over a parking slot and to utilize the periphery area, the enquiry under Section 202 Cr.P.C. should have been more meaningful. The duty of a Magistrate under Section 202 Cr.P.C is not an empty formality rather a solemn duty and is an obligation to reach to the real facts and elicit truth. There is every possibility of a decision in one way or the other but to prevent any kind of prejudice to the complainant or the accused especially when a dispute of present nature, the Court is of the further view that the learned Court below should have directed the local police to enquire and submit a report while exercising jurisdiction under Section 202 Cr.P.C. Any such report after investigation so submitted by the local police would have made the court below easier to decide the future course of action. In the instant case, as it is made to understand, the learned Court below received evidence from opposite party No.3 and two other witnesses in course of inquiry under Section 202 Cr.P.C. but having regard to the nature of the allegation and pendency of dispute inter se parties, a purposeful inquiry was required to be made so as to take a final decision. In other words, the learned court below ought to have exercised its wisdom and expanded the inquiry in the manner as discussed herein above before reaching at a conclusion and taking cognizance of the offence against the petitioner, who is stated to be the Secretary of the society in question. Having said that, the Court is of the ultimate conclusion that the learned court below should have held a detailed enquiry under Section 202 Cr.P.C. before taking any decision in the matter having regard to the peculiar facts and circumstances of the case. 17. Accordingly, it is ordered. 18. In the result, the CRLMC stands allowed to the extent as aforesaid. As a necessary corollary, the impugned order of cognizance dated 8th February, 2021 passed in 1.C.C. No. 3733 of 2020 is hereby set aside with a consequential direction to the learned S.D.J.M., Bhubaneswar to conduct a detailed enquiry corresponding to the allegations in the complaint in terms of Section 202 Cr. P.C. and thereafter to proceed and to dispose it of as per and in accordance with law keeping in view the observations made herein before.