rd 23 December, 2021 SASHIKANTA MISHRA, J.

1. In the present application filed under Section 482 Cr.P.C. the petitioner seeks quashment of the FIR lodged against him vide Page 1 of 15 Nayapali P.S. Case No. 545 of 2019 for the alleged commission of offence under Section 420 / 34 of IPC and all consequential proceedings arising therefrom.

2. The facts of the case, sans unnecessary details are that one Sribash Jena, Director of ST Minerals Pvt. Ltd., Nayapali, Bhubaneswar (opposite party no.2) lodged a complaint before the Nayapalli Police Station on 30.08.2014 basically alleging that the petitioner, who was the Director of the Company till 01.08.2014 but also was looking after the affairs of the company till recently, offered to sell certain properties to the company by claiming to be the owner thereof. As such, he received substantial amount of money towards advance from the company including Rs.25 lakhs through cheque on 21.09.2016 in favour of M/s. Trusim Infratech Pvt. Ltd. It was further alleged that despite receiving such advance, the petitioner did not take any steps for transfer of the property in question in favour of the company and on being insisted upon, he refused to sell the property but assured to sell three other properties in lieu of the properties in question. In order to shown his bonafides, the petitioner is said to have deposited the original title deeds of the properties offered to be sold by him. Subsequently, it came to the knowledge of the informant that the petitioner has sold away the said properties to his brother-in-law, sister Page 2 of 15 and brother, which amounts to cheating in collusion with his family members. The informant further apprehended that the petitioner might have stolen away more money by abusing the trust vested on him and created large number of assets with such money during the time he was looking after the Company. A list of such properties was also enclosed to the complaint. Basing on such complaint, the aforementioned police case was registered and investigation commenced, which the petitioner wants to be stopped.

3. Heard Mr. S.P. Mishra, learned Sr. Counsel appearing along with Ms. D. Priyanka, learned counsel for the petitioner; Mr. P.K. Maharaj, learned Addl. Standing Counsel for the State; and Mr. Subir Palit, learned counsel for opposite party no.2. Further, a detailed counter affidavit has also been filed by opposite party no.2.

4. While putting forth several grounds in support of the contention that the FIR should be quashed, Mr. S.P. Mishra, learned Sr. Counsel has submitted that the petitioner was, in fact, the Director of the opposite party no.2 company but on the ground of personal difficulty, he resigned therefrom on 01.08.2014 and thereafter, he along with his wife incorporated a new company in the name and style of M/s. Trusim Infratech Pvt. Ltd. In view of his previous association with the informant and the opposite party no.2 company, the Page 3 of 15 petitioner's company received a work order on 07.09.2019 for renovation of Guest House at Puri, for which an advance amount of Rs.24.5 lakh after deducting TDS was paid by cheque dated 21.09.2019. Again on 31.01.2017, an advance of Rs.9.8 lakh was paid by opposite party no.2-company to the petitioner's company towards the work order. Similarly, further amounts were also paid by the opposite party no.2 company to the petitioner's company against invoices raised by it towards execution of the work order and ultimately, the full amount was paid. As regards the properties in question, it is contended that the same were purchased by the petitioner from different persons at different times but in order to clear bank loan liabilities, the petitioner sold the three properties at Ghatikia. He also sold some properties to his brother, sister and brother-in-law. The original documents of sale and conveyance, which were in the possession of the petitioner's sister and brother-in-law were misplaced, for which a lost report was filed at Police Station, Bonth, Bhadrak vide Station Diary Entry No. 5 dated 24.11.2018 as also before Korei Police Station, Jajpur on 30.11.2018. In the above background facts, it is forcefully argued by learned Senior Counsel that the petitioner had approached this Court seeking anticipatory bail in ABLAPL No. 14533 of 2020 but the same was rejected vide order dated 23.12.2020, Page 4 of 15 whereupon the petitioner had approached the Hon'ble Supreme Court in SLP (Crl.) No. 6813 in which the Hon'ble Supreme Court passed an interim order on 30.12.2020 protecting the petitioner from any coercive action being taken against him. Citing the above facts in detail, it is contended by learned Senior Counsel that the FIR, inter alia, suffers from the following defects:

of the informant itself is dubious; and a best, a civil dispute can only be made out, if at all.

Leaned Senior Counsel has thereafter referred to two decisions of the Hon'ble Supreme Court; in the case of Vesa Holdings (P) Ltd. Vs. State of Kerala reported in (2015) 8 SCC 293 and the case of G. Sagar Suri Vs. State of U.P. , reported in (2000) 2 SCC 636 in support of his contention that unless the allegation in the complaint discloses an offence of cheating, continuation of the criminal proceedings would amount to an abuse of the process of the Court and Page 5 of 15 that the criminal proceedings cannot be a shortcut for other remedies available in law and if a matter, which is essentially of a civil nature, has been given a cloak of criminal offence, the same has to be quashed.

5. Per contra, Mr. S. Palit has argued that firstly, as per the settled position of law, the High Court should be slow to interfere with an ongoing investigation by exercising its inherent powers under Section 482 Cr.P.C. and secondly, if the allegations are accepted even on their face value, it would reveal a clear case of cheating on the part of the petitioner, which warrant a full-fledged investigation including taking of all necessary steps to unearth the truth. Taking this Court to the order passed in an application for anticipatory bail filed by the petitioner, which was rejected by this Court, Mr. Palit would argue that after considering the materials on record in detail, this Court was convinced that many other facts and circumstances are likely to emerge during further investigation and thereby, rejected the petitioner's contention that the element of cheating is wholly absent even on acceptance of the prosecution version as laid. Though the petitioner carried the matter to the Hon'ble Supreme Court and also obtained an interim order of protection from coercive action initially but ultimately, vide order dated 29.09.2021, the case was dismissed by Page 6 of 15 specifically holding that the prayer of the petitioner for anticipatory bail had rightly been rejected by this court.

Referring to the position of law, Mr. Palit has cited a recent decision rendered by the Apex Court in the case of Neeharika Infrastructure Pvt. Ltd. v. State of Maharashtra , reported in 2021 SCC OnLine SC 315, wherein the Apex Court laid down as many as 18 guidelines to be kept in mind by the High Court while exercising powers under Section 482 of Cr.P.C. Mr. Palit, would further argue that the sum and substance of the guidelines so laid down is to the effect that the power of quashing should be exercised sparingly with circumspection and only in the cases where no cognizable offence or offence of any kind is disclosed in the FIR and further that the court should not thwart any investigation into the cognizable offences. In conclusion of his arguments, Mr. Palit has contended that the petitioner has practiced fraud and deception not only with regard to the instances mentioned in the FIR, but in several other connected instances that would certainly see the light of the day if a free and fair investigation is allowed to be conducted.

6. Before delving into the merits of the rival contentions as noted above, it would be apposite for this Court to remind itself of the settled position of law in the matter of exercise of its inherent powers Page 7 of 15 under Section 482 Cr.P.C., particularly, with regard to a prayer for quashing of the FIR. The number of case laws in this aspect are legion and it may not be necessary to refer to all of them. However, for the limited purpose of this case, one may profitably refer to three decisions of the Apex Court, namely, N. Soundaram vs. P.K. Pounraj and another reported in (2014) 10 SCC 616; Vinod Raghuvanshi vs. Ajay Arora and others reported in (2013) 10 SCC 581 and Neeharika Infrastructure Pvt. Ltd. (supra).

7. In the case of N. Soundaram (supra), it was held as under:

8. In Vinod Raghuvanshi (supra), it was held as under:

9. In Neeharika Infrastructure Pvt. Ltd. (supra), the following conclusions were arrived at by the Apex Court:

during the investigation or till the final report/charge sheet is filed under Section 173 Cr.P.C., while dismissing/disposing of/not entertaining/not quashing the criminal proceedings/complaint/FIR in exercise of powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India, our final conclusions are as under:

before the competent court. The High Court shall not and as such is not justified in passing the order of not to arrest and/or "no coercive steps" either during the investigation or till the investigation is completed and/or till the final report/chargesheet is filed under Section 173 Cr.P.C., while dismissing/disposing of the quashing petition under Section 482 Cr.P.C.

and/or under Article 226 of the Constitution of India. xvii) Even in a case where the High Court is prima facie of the opinion that an exceptional case is made out for grant of interim stay of further investigation, after considering the broad parameters while exercising the powers under Section 482 Cr.P.C.

and/or under Article 226 of the Constitution of India Page 11 of 15 referred to hereinabove, the High Court has to give brief reasons why such an interim order is warranted and/or is required to be passed so that it can demonstrate the application of mind by the Court and the higher forum can consider what was weighed with the High Court while passing such an interim order.

xviii) Whenever an interim order is passed by the High Court of "no coercive steps to be adopted"

10. Thus, on a reading of the aforementioned observations of the Apex Court, the position of law that emerges is to the effect that when a prosecution at the initial stage is to be quashed, the test to be applied by the Court is whether the uncontroverted allegation as made, Page 12 of 15 prima facie establishes the offence. At this stage, the Court is not expected to make a roving enquiry to weigh the evidence or its probative value or the genuineness of the allegations etc.

11. Now turning to the facts of the case in the light of the aforementioned legal propositions, it is seen that the basic allegation as laid in the FIR is to the effect that the petitioner had initially promised the opposite party no.2 company to sell two properties at Bhubaneswar, of which he was the owner to it and also received substantial amount towards advance including Rs.25 lakhs from it. Despite making such promise and receiving part consideration amount as advance, the petitioner admittedly did not take steps to sell the said properties and instead offered to sell three other properties. The said three properties were found to have been sold to other persons, which could not be known because of deception practiced by the petitioner in the form of depositing the original title deeds with opposite party no.2 company in a bid to create an impression as if he is still the owner thereof. Thus, it cannot be said that the above allegation, even without considering the petitioner's side of the story, does not reveal, at least prima facie, a dishonest intention making out thereby, a case of cheating. In view of the settled position of law discussed in the Page 13 of 15 preceding paragraphs, this Court is not required to consider the explanation offered to rebut the allegations as the facts leading to the FIR itself would suffice to show the existence of prima facie materials of the alleged offence. It is not disputed that the case is under investigation. Therefore, the explanation and/or counter allegations made by the petitioner against the opposite party no.2 company and the informant can only be examined during investigation, which is all the more reason why the investigation should not be scuttled at the threshold only because the accused-petitioner has a different explanation to offer. As regards the attempt, feeble though, made on behalf of the petitioner that the allegations, even if accepted on their face value reveal a civil dispute, this Court can only profitably refer to the decision in Vesa Holdings (P) Ltd. (supra) 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 a ground to quash a criminal proceeding. The real test is whether the allegation in the complaint discloses the criminal offence alleged or not. As has been discussed hereinbefore, even the uncontroverted allegations made in the FIR at least prima facie, reveal the existence of the ingredients of the offence of cheating within the meaning of Section 420 of I.P.C. Whether such allegation will actually Page 14 of 15 stand the test of investigative scrutiny or even a regular trial are matters which cannot be looked into by this Court at this stage.

12. For the foregoing reasons therefore, this Court is of the considered view that having regard to the existence of a prima facie case, as also seriously disputed questions of fact, it would not be proper to interfere with the process of investigation into the case. It is therefore, not a fit case for exercising inherent power under Section 482 Cr.P.C. to quash the FIR and the consequential proceedings.

13. In the result, the CRLMC fails and is therefore dismissed.

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Sashikanta Mishra, Judge Orissa High Court, Cuttack The 23rd December, 2021/ A.K. Rana Page 15 of 15