Duti Krushna Mahapatra vs State Of Odisha Vs

Savitri Ratho, J

This application under Section 482 Cr.P.C. has been filed by the petitioner for quashing the order of cognizance dated 22.07.2022 and the criminal proceeding in G.R. Case No. 494 of 2022 pending in the Court of the learned S.D.J.M., Bhanjanagar arising out of Bellaguntha P.S. Case No. 109 of 2022, registered for the offence punishable under Sections 294, 420, 506 and 34 of IPC.

When the matter was listed on 18.08.2023, Mr. S.R. Mohapatra, learned counsel for the petitioner submitted on instructions that the petitioner is not in a position to settle the matter as he is not in a position to pay back the money of the opposite party No.2, and hence the CRLMC may be decided on merit.

PROSECUTION CASE

The prosecution allegations in brief are that on 28.09.2016, the petitioner had borrowed total amount of Rs 2,00,340/- from the informant. Rs 1,60,000/- through bank and Rs 40,340/- cash. He has assured to return the money within six months. After six months, on 29.01.2020, he committed on bond paper that he would return the money within six months. After six months he did not return the money, he came to the police station on 07.09.2021 and 11.01.2022 again he committed to the informant that he would return the money. On 12.03.2022, the informant went to the house of the petitioner to ask for his money, but the petitioner abused him in obscene language refused to return the money and threatened to kill him. On 12.04.2022 at about 1.50 a.m., the petitioner came to the house of the informant and called him outside. When he came out he threatened to kill him and rape his wife.

SUBMISSIONS

Mr. S.R. Mahapatra, learned counsel for the petitioner submitted the petitioner had borrowed the money for necessity and had intended to pay it back but was not able to do so due to unforeseen circumstances. As there was no dishonest intention when he borrowed the money, his subsequent inability to pay cannot amount to cheating. A breach of contract or agreement does not amount to cheating and a civil dispute cannot be given the cloak of criminal liability. He further submitted that that false allegations under Sections 294 and 506 IPC have been made against the petitioner only to maintain the allegation of cheating for which the order dated 22.07.2022 taking cognizance of the offences under Sections 294, 420, 506 and 34 of IPC is liable to be quashed. Relying on the decisions of the Supreme Court in the case of Hridaya Ranjan Pd. Verma & Others vs. State of Bihar & Others reported in (2000) 4 SCC 168 : AIR 2000 SC 2341 (paras 8, 15, 16), G. Sagar Suri & Others vs. State of U.P. & Others reported in (2000) 2 SCC 636 (Para-8), and State of Haryana & Others vs. Bhajan Lal reported AIR 1992 SC 81, he has submitted that :

Ms. S. Patnaik, learned Addl. Govt. Advocate for the opposite party no.1- State submits that the offence under Section 420 of IPC is squarely made out against the petitioner as his dishonest intention to cheat the informant is apparent from his conduct. He had no intentions of returning the money for which he kept asking for time and ultimately threatened and abused the informant. He had borrowed the money with the assurance to return it after selling his land , but although he has sold the land, he did not return the money of the informant. Other witnesses have also supported this allegation of the informant.

Mr. S.K. Mahanty, learned counsel for the opposite party no.2 has submitted that the dishonest intention of the petitioner is made out from his conduct in not paying the money of the opposite party no.2. Although the petitioner had no intentions of returning the money, he had given false assurance to the informant to return the borrowed money after selling his land, but he did not return the money even after he sold his land. He also submits that the offences under Section 294 and 506 of IPC are made out against the petitioner as statement of the informant is corroborated by his wife Manakhi Behera.

STATUTORY PROVISIONS

It is necessary to examine the ingredients of the said offences and whether the allegations attract those offences under the Penal Code. Cheating is defined in Section 415 of IPC. The provision is extracted below:

Section - 415. Cheating. —Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to “cheat”. Section 420 IPC defines cheating and dishonestly inducing delivery of property which reads as under: -

“Section 420. Cheating and dishonestly inducing delivery of property. —Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.”

The essential ingredients of the offense of cheating are:

a.) Deception of any person by making false representation.

b). The accused should have prior knowledge that his representation is false .

c). Without the inducement , the person would not have done any act or abstained from doing any act or not delivered / retained any property.

d.) The act or omission should cause loss , damage or harm to the person .

Section 420 IPC is an aggravated form of cheating .e way of cheating or inducement.

JUDICIAL PRONOUNCEMENTS

In the case of Hridaya Ranjan Prasad Verma & Ors. Vs. State of Bihar & Anr. 26 (2000) 4 SCC 168 27 27 26, it has been held that the distinction between mere breach of contract and cheating, which is criminal offence, is a fine one. While breach of contract cannot give rise to criminal prosecution for cheating, fraudulent or dishonest intention is the basis of the offence of cheating. Therefore, it is the intention which is the gist of the offence. To hold a person guilty of cheating it is necessary to show that he had fraudulent or dishonest intention at the time of making the promise.

In Vesa Holdings Pvt. Ltd. & Anr. Vs. State of Kerala & Ors.: (2015) 8 SCC 293, the UPREME Court has observed as follows : -

“13. It is true that a given set of facts may make out a civil wrong as also a criminal offence and only because a civil remedy may be available to the complainant that itself cannot be ground to quash a criminal proceeding. The real test is whether the allegations in the complaint disclose the criminal offence of cheating or not. In the present case, there is nothing to show that at the very inception there was any inception on behalf of an accused person to cheat which is a condition precedent for an offence u/s 420 IPC. In our view, the complaint does not disclose any criminal offence at all. Criminal proceedings should not be encouraged when it is found to be mala fide or otherwise an abuse of the process of the courts. Superior courts while exercising this power should also strive to serve the ends of justice. In our opinion, in view of these facts allowing the police investigation to continue would amount to an abuse of the process of the court and the High Court committed an error in refusing to exercise the power under Section 482 Cr.P.C to quash the proceedings.”

In the case of G. Sagar Suri (supra), the Supreme Court has held that the High Courts, while exercising their jurisdiction under Section 482 Cr.P.C. has to ascertain whether the case before them, is essentially of civil nature, which has been given a cloak of criminal offence. The apex court had also observed that criminal proceedings are not a shortcut for other remedies available in law. Therefore, as the dispute between the parties in the present case is purely a civil dispute which has been given a criminal flavor by Opposite Party No.2, it is an abuse of process of the courts; therefore, it is liable to be quashed.

In the case of N.S. Madan Gopal and others vs. K Lalitha reported in MANU / SC /1805 /2022, the Supreme Court has held that the essential ingredients for Section 294 IPC are:

i) that the accused must have done some act or sang, recited, or uttered any song or ballad;

ii) that such act, singing, etc., was obscene;

iii) that it was done in a public place; and

(iv) it caused annoyance to others.

The scope of jurisdiction of the High Court under Section 482 CrPC has been decided in a catena of decisions of the Supreme Court. In State of Karnataka vs. L. Muniswamy : (1977) 2 SCC 699 the Supreme Court has laid down several principles which govern the exercise of jurisdiction of the High Court under Section 482 CrPC. The relevant paragraphs are extracted below:

“7. … In the exercise of this wholesome power, the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the court or that the ends of justice require that the proceeding ought to be quashed. The saving of the High Court's inherent powers, both in civil and criminal matters, is designed to achieve a salutary public purpose which is that a court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. In a criminal case, the veiled object behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice. The ends of justice are higher than the ends of mere law though justice has got to be administered according to laws made by the legislature.

The compelling necessity for making these observations is that without a proper realisation of the object and purpose of the provision which seeks to save the inherent powers of the High Court to do justice, between the State and its subjects, it would be impossible to appreciate the width and contours of that salient jurisdiction.”

DISCUSSION AND CONCLUSION

It is the settled principle of law that at the stage of cognizance, a Court is required to see if prima facie an offence is made out. Therefore, in an application under Section – 482 Cr.P.C., this Court does not sit in appeal over the order of cognizance hold a mini trial by making a threadbare analysis of the statements of witnesses. This would amount to usurping the jurisdiction of the trial Court.

In view of the above discussion, after careful perusal of the statements of the witnesses, I am not convinced that the order of cognizance or the proceeding ought to be quashed or that allowing the proceeding to continue would be an abuse of the process of the court.

I therefore do not consider this to be fit case for exercise of power under Section 482 Cr.P.C. for quashing the order of cognizance and / or the criminal proceedings.

The petitioner is at liberty to raise al his contentions at the appropriate stage before the learned trial court , which shall be considered in accordance with law.

The CRLMC is accordingly dismissed.

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