Simultaneous filling of a Civil Complaint cannot be a ground to quash a criminal complaint: Odisha High Court

HIGH COURT OF ORISSA CRLMC No.2021 In the matter of an application under Section 482 of the Criminal Procedure Code 1973) Prasanta Kumar Patra and another State of Odisha and another For Petitioners S. Panda and D. K. Mohapatra M s. Devashis Panda … Opposite Parties Versus For Opposite Parties M s. Manoj Kumar Mohanty Additional Standing Counsel M s. B. P. Pradhan B. R. Sahu S. Rath and R. Satapathy For Informant) PRESENT : THE HON’BLE SHRI JUSTICE S. K. PANIGRAHI Date of Hearing 06.04.2021 Date of Judgment 07.05.2021 S. K. Panigrahi J. 1. This petition under Section 482 of the Code of Criminal Procedure 1973 has been filed with a prayer to quash the proceedings of C.T. Case No.4110 of 2020 pending before the learned SDJM Bhubaneswar which arises out of Badagada P.S. Case No.2720 under Sections 420 406 465 468 34 IPC and all proceedings consequent thereto. 2. The allegations in the FIR are summarised herein below: 2 a. The complainant opposite party No.2 lodged a complaint on 26.09.2020 at Badagada P.S. The contents of the complaint as set out implicates petitioner No.1 and petitioner No.2 for committing offences punishable under Sections 420 406 465 468 34 of the IPC. b. According to the complainant opposite party No.2 she was induced by petitioner No.1 to jointly purchase a plot situated at Khata No.450 92 Chaka No.221 Plot No.486 area Ac.1.790 decs. in Mouza Brahman Jharilo from one Subash Chandra Patra for a total consideration of Rupees 1 35 00 000 Bhubaneswar. A compromise was arrived at by the parties wherein the agreement dated 30.11.2015 stood nullified and it was agreed that the present opposite party No.2 and petitioner No.2 would pay land owner a sum of Rs.95 00 000 out of which a sum of Rs.64 00 000 was to be remitted on the date of drawing up of the compromise and the remaining Rs.31 00 000 was undertaken to be paid within a period of two and half months. It was also agreed that the outstanding amount of Rs.31 00 000 payable to the land owner would be raised by sub dividing the plot and selling the sub plots to various other buyers. The suit was disposed of on the terms of the aforesaid compromise on 22.10.2016. d. The complainant has claimed that the petitioners thereafter put her off every time she inquired about the execution of the Sale Deed and sale proceeds. Subsequently after passage of some time the complainant learnt that the land owner had died and before his death the petitioners had jointly purchased the plot in their names along with others without her knowledge. 4 Furthermore they had re sold the property to multiple parties without her consent and had retained all the sale proceeds themselves thereby cheating the complainant and deriving unlawful gains. The complainant also alleges that the petitioners have criminally intimidated her. 3. The learned counsel for the petitioners earnestly contended that the allegations in the FIR are false and have been lodged with an ulterior motive to harass and humiliate the petitioners. It was submitted that the opposite party No.2 had failed to pay the land owner in the first instance thereby necessitating the filing of C.S. No.1831 of 2016 by the land owner. In the compromise arrived at as a result of the Civil Suit above mentioned it is alleged that the opposite party No.2 had requested that the amount invested by her be refunded back by the said owner. Further the learned counsel for the petitioners submits that the opposite party No.2 filed C.S. No.1097 of 2020 on 17.07.2020 which is pending for adjudication before the Civil JudgeBhubaneswar claiming her share of the net profit earned by the present petitioners. It is after the institution of that suit did the opposite party No.2 file the impugned F.I.R. as a tool of harassment which is nothing but an attempt to clothe a civil dispute as a criminal dispute. 4. Per contra the learned counsel for the opposite party No.2 vehemently opposed the submissions made by the learned counsel 5 for the petitioners. He further contended that the case in hand is hungry for a proper trial and nipping the same at the bud at this stage will lead to gross miscarriage of justice. The learned counsel for the opposite party No.2 further submitted that a prima facie case is made out against the petitioners and it is in the interest of justice that proper investigation be allowed in the present matter failing which opposite party No.2 shall suffer grave and irreparable loss. 5. Heard the learned counsel for the rival parties of the case and perused the case diary to delve deeper into the case. Before adverting to the facts of the case at hand it is to be borne in mind that it becomes imperative while dealing with a case with respect to Section 482 of the Cr.P.C. which is the plenary power and makes it obligatory for the High Court to exercise the same with utmost care and caution. The width and amplitude of the power demands that its exercise is sparing in nature and is resorted to only in cases where the Court is of the unambiguous view that continuance of the prosecution would be nothing but an abuse of the process of law. It cannot be countenanced that while exercising jurisdiction under Section 482 of the Cr.P.C. the High Court would not embark upon a roving enquiry whether the allegations in the complaint are likely to be established by the evidence or not. That is the function of the trial court when such evidence is presented before it. 6 6. It becomes imperative at this juncture to briefly examine the allegations contained in the F.I.R. vis a vis the contents of the joint compromise petition filed by the deceased land owner opposite party No.2 and petitioner No.2 in C.S. No.1831 of 2016 in order to determine whether a prima facie case is made out against the petitioners in the impugned F.I.R. As submitted by the learned Counsel for the petitioners it is nowhere mentioned or indicated that opposite party No.2 was desirous of exiting the agreement or had requested that her initial deposit of 26 Lakhs be returned to her. Furthermore it is recorded in that very compromise petition that the then defendants had jointly made provisions undertaken to make provisions to sell the sub plots to other purchasers. It is contended that it emerges from the documents put on record that the petitioner No.2 had sold the sub plots through various registered sale deeds for which he has received consideration. It is submitted that after multiple requests only an amount of Rs.17 12 400 was transferred to the opposite party No.2 which seems unlikely to be inclusive of her share of the net profit from the sale of the sub plots. It is also noted that despite three notices being served on the petitioners they failed to appear before the investigating officer to join the investigation. It is thus contended that without going into 7 the merits of the case that a prima facie case is made out against the petitioners. 7. As held in Lee Kun Hee v. State of U.P.1 by the Hon’ble Supreme Court of India that in cases involving cheating wherein a party has not performed its obligations the complaint involves both civil and criminal liability. Deprivation caused by the complaint of cheating could not be solely recovered through only civil proceedings. Simultaneous filing of a civil complaint therefore cannot be a ground to quash criminal complaint. Both criminal law and civil law remedy can be pursued in diverse situations. As a matter of fact it was also held by the Hon’ble Supreme Court in the case of Medchi Chemicals Pharma Pvt. Ltd. v. Biological E. Ltd.2 “…they are not mutually exclusive but clearly co extensive and essentially differ in their content and consequence. The object of criminal law is to punish an offender who commits an offence against a person property or the State for which the accused on proof of this offence is deprived of his liberty and in some cases even his life. This does not however affect civil remedies at all for suing the wrongdoer. anathema to suppose that when a civil remedy is available a criminal prosecution is completely barred. The two types of actions are quite different in content scope and impart.” In the present case there cannot be any dispute that there is no legal bar against continuance of the complaint nor can it be said 1AIR 2012 SC 1007 2AIR 2000 SC 1869 8 that the allegations in the complaint taken on its face value and accepted in their entirety do not constitute an offence. 8. Another argument advanced by the petitioners for quashing the complaint is that the complaint is mala fide and aimed at wreaking of vengeance with a view to spite the accused due to personal grudges. In Sheonandan Paswan v. State of Bihar3 it was observed: is well established proposition of law that a criminal prosecution if otherwise justifiable and based upon adequate evidence does not become vitiated on account of mala fides or political vendetta of the first information or the complaint.” Therefore the issue of mala fide becomes relevant and applicable only when the complaint can be demonstrated to be patently false untenable in the eye of law. In the present case a bird’s eye view of the FIR would show that the offences alleged are serious in nature and facts are elucidated in such a manner that the court cannot say that mala fide is conspicuously manifested in the 9. It is trite in law as laid down by the Apex Court in Pankaj Kumar v. State of Maharashtra4 that the scope and ambit of powers of the High Court under Section 482 of Cr.P.C. has been enunciated and reiterated by this Court in a series of decisions. Thus it would 3(1983) 1 SCC 438 4AIR 2008 SC 3077 9 suffice to state that though the powers possessed by the High Courts under the said provisions are wide but they should be exercised in appropriate cases i.e. ex debito justitiae to do real and substantial justice for the administration of which the courts alone exist. The inherent powers do not confer an arbitrary jurisdiction on the High Court to act according to whim and caprice. The powers have to be exercised sparingly with circumspection and in the rarest of rare cases where the court is convinced that allowing the proceeding to continue would be an affront on the process of the court or that the ends of the justice beseech that the proceedings be quashed. In Rashmi Kumar v. Mahesh Kumar Bhada5 while considering the power of High Court to quash the proceeding at initial stage the Hon’ble Supreme Court has held that: “The High Court should sparingly and cautiously exercise the power under Section 482 of the Code to prevent miscarriage of justice. The High Court would be loath and circumspect to exercise its extraordinary power under Section 482 of the Code or under Article 226 of the Constitution. The Court would consider whether the exercise of the power would advance the cause of justice or it would tantamount to abuse of the process of the Court. Social stability and order require to be regulated by proceeding against the offender as it is an offence against the society as a whole. This cardinal principle should always be kept in mind exercise of the inherent power vested in the Court.” 5(1997) 2 SCC 397 10 It is therefore the settled position of law that this inherent power should be exercised by the High Court sparingly where parties are left with to prevent abuse of process of court or to give effect to any order under the Code or to secure the ends of justice. Such a power is not be invoked or exercised on mere asking. Furthermore in Amit Kapoor v. Ramesh Chander6 the Hon ble Supreme Court has laid down that the Court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not. If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach to such a conclusion and where the basic ingredients of a criminal offence are not satisfied then the Court may interfere. Where the factual foundation for an offence has been laid down the courts must be reluctant and should not hasten to quash the proceedings even on the premise that one or two ingredients have not been stated or do not appear to be satisfied if there is otherwise substantial compliance with the requirements of the offence. No meticulous examination of the evidence is needed for considering whether the case would end in conviction or not at the stage of framing of charge or quashing of charge. Where 6(2012) 9 SCC 460 11 exercise of such power is absolutely essential to prevent patent miscarriage of justice and for correcting some grave errors that might be committed by the sub ordinate Courts even in such cases the High Court should be loath to interfere at the threshold to throttle the prosecution in exercise of its inherent powers. Another very significant caution that the Courts have to observe is that it cannot examine the facts evidence and materials on record to determine where there is sufficient material on the basis of which the case would end in a conviction. The Court is concerned primarily with the allegations taken as a whole whether they will constitute an offence and if so whether or not it is an abuse of the process of Court culminating in injustice. If the records disclose commission of a criminal offence and the ingredients of the said offence are satisfied then such criminal proceedings would not be quashed merely because a civil wrong has also been committed. The power cannot be invoked to stifle or scuttle a legitimate prosecution. The factual foundation and ingredients of an offence being satisfied the Court will not either dismiss a complaint or quash such proceedings in exercise of its original jurisdiction. 10. In the present case upon a close reading of the FIR it is not possible to come to the conclusion that they do not make out a prima facie case against the petitioners for the offences alleged therein. 12 11. Consequently it becomes imperative that the matter be investigated further and the petitioners shall face the rigour of trial respect of the alleged offences to meet the ends of justice. 12. The inherent jurisdiction of this Court does not warrant to be This Court under Section 482 of Cr. PC at this stage. Considering the law laid down by the Apex Court in the cases cited above the aforesaid discussion submissions made and taking into account a holistic view of the facts and circumstances of the case at hand this Court is not inclined to entertain the instant petition. Accordingly this Court refuses to exercise the inherent power under Section 482 of Cr.P.C. and consequently dismiss the present petition. Orissa High Court Cuttack The 7th day of May 2021 AKK LNB AKP Judge 

Summary: Where the factual foundation for an offence is laid down, the court must be reluctant and should not hasten to quash the proceedings even on the premise that one or more ingredients have not been stated or do not appear to be satisfied. A single bench comprising of Justice S.K. Panigrahi adjudicating the matter in Prasanta Kumar Patra &amp; another v. State of Odisha &amp; Another (CRLMC-Appeal u/s-482 CrPC No.200 of 2021) dealt with the issue of quashing the pending proceedings filed u/s 482 CrPC. The Petitioner in the present case prays before the HC to quash the proceeding pending before the Sub-Divisional Judicial Magistrate against him under section 420,406,465,468/34 of IPC. The petitioner &amp; the Respondent in the said case entered into an agreement on 31.05.2015 with a landowner to jointly purchase a plot for a consideration of Rs 1,35,00,000/- but were only able to pay Rs 44,00,000/-. There was an agreement and mutual understanding between the parties that they would eventually sell the plot and the sale proceeds would be shared by both the parties in the ratio of 59:41. But they failed to pay the balance amount i.e. Rs. 91,00,000 in the stipulated time which led the landowner to file a suit against both parties. The suit was dismissed on 22.10.2016 and a compromise between the landlord and both the parties were done and it was decided that the sum of Rs. 64,00,000/- would be remitted and Rs.31,00,000/- is to be paid within two and half months. It was also agreed that the amount will be raised by sub-dividing the plot and selling those plots to various buyers. The respondents later learned that the landlord had died and the Petitioners have jointly purchased the plot in their name and re-sold the property to multiple buyers without their consent and have retained all the sale proceeds themselves and in response, the Respondents filed a case against the Petitioner claiming the share of net profit earned by the Petitioners. Also, the Respondents after the institution of the suit filed an FIR against Petitioner for investigation. The petitioner in response contended that the suit is filed to harass and humiliate the petitioners and alleged that the Respondents had requested that the amount invested by them be refunded back by the said owner. They also contended that the complaint is mala fide and is made out of a personal grudge. The court after examining the allegation of the FIR and contents of the joint compromise petition filed by the deceased landowner found that it was nowhere mentioned that the Respondents were desirous to exit out of the agreement or had requested to get back their initial deposit of Rs.26,00,000/-. Also, some documents support the fact that the Petitioners had sold sub-plots through various sale deeds and received consideration. On multiple requests only Rs. 17,12,400/- was transferred to the Respondent which is lesser than her share from the net profit arising out of the sale. The petitioner also didn’t participate in the investigation process and failed to appear before the Investigation officer. And hence there is a prima facie case against the Petitioner even without looking into the merits of the case. The Court relied upon the judgments Lee Kun Hee v.  State of U.P ,  Medchi Chemicals Pharma Pvt. Ltd. v. Biological E. Ltd. and permitted the simultaneous filing of a civil complaint and held that it cannot be ground quash a criminal complaint. Also looking into the prayer of the Petitioner to quash the proceeding at an initial stage, the court relied upon Rashmi Kumar v. Mahesh Kumar Bhada and Amit Kapoor v. Ramesh Chander and it was held that “If the records disclose the commission of a criminal offence and the ingredients of the said offence are satisfied, then such criminal proceedings would not be quashed merely because a civil wrong has also been committed. The power cannot be invoked to stifle or scuttle a legitimate prosecution. The factual foundation and ingredients of an offence being satisfied, the Court will not either dismiss a complaint or quash such proceedings in exercise of its original jurisdiction.” Click here for the Judgement