2004 Supreme(Ori) 87

High Court Of Orissa
M. PAPANNA
NALINIKANTA MUDULI - Appellant
Versus
STATE OF ORISSA - Respondent
C. R. M. C.  3977  Of  2001
Decided On : 03/02/2004

Headnote:(i) Criminal Procedure Code, 1973 — Section 482 — Inherent jurisdiction of quashing a criminal proceeding — Exercise of — Law laid down by Apex Court.

       Held: The High Court can exercise its inherent jurisdiction of quashing a criminal proceeding only when the allegation made in the complaint do not constitute an offence or that the exercise of the power is necessary either to prevent the abuse of the process of Court or otherwise to secure the ends of justice. No inflexible guidelines or rigid formula can be set out and it depends upon facts and circumstances of each case wherein such power should be exercised. Therefore, it is clear from the rulings cited above that a criminal proceeding against an accused can be quashed in the initial stage only when on the face of the complaint or the papers accompanying the same, no offence is constituted. The test for quashing of criminal proceeding is that taking the allegations in the complaint as they are, without adding or subtracting anything, if no offence is made out then the High Court will be justified in quashing the proceeding in exercise of its power under Section 482 Cr.P.C. It is further clear from the settled position of law that for quashing an FIR the information in the complaint must be so bereft of even the basic facts which are absolutely necessary for making out the offence. (Para 6)

       (ii) Indian Penal Code, 1860 — Sections 120-B, 420, 468/471 — Prevention of Corruption Act, 1988 — Section 13(2) rw/s. 13(1)(d) — Prosecution for offence under — Allegations that petitioner and his associated availed of lacs of rupees and financial assistance fraudulently

       from the Government in the guise of imparting technical education to OBC candidates — Petition for quashing prosecution — Allegation that petitioner obtained a special class and super class contractor’s licence fraudulently — Prima facie no case is said to have been made out against the petitioner — Prosecution against petitioner held liable to be quashed.

       Held: Ingredients of Section 420 of Indian Penal Code pre-supposes existence of direct connection between false representation and delivery of property of doing something by the person deceived. In the instant case, act or omission complained of should cause or likely to cause damage or harm to the person or property. Bounden duty of the prosecution is to prove that he has not only cheated someone but also by doing so he dishonestly induced the said person, who has been cheated to deliver the said property etc. There must be deception which must precede the fraudulent or dishonest-inducement. Furthermore, essential ingredients of offence under Section 468 of Indian Penal Code must show that the document in question is a forged one. That apart the prosecution must prove that the accused has forged the document and in forging the same he had the intention that it shall be used for the purpose of cheating. In the case at hand, when there is no material on record to show commission of offence either under Section 468 of Indian Penal Code or under Section 420 of the Indian Penal Code. I must hold that the prosecution has no prima facie case under the above Sections of law to proceed against him. (Para 11)

       The most serious allegation against petitioner is that he has obtained a special class and super class contractor’s licence fraudulently. The specific allegation is that he has obtained the said contractor’s licence as a Graduate Engineer and that too without any previous work experience. I have gone through the papers submitted by the prosecuting agency and I am fully convinced that the petitioner has never taken individually any, contractor’s licence. By now, it is clear that there is a Company Zerina Marine (P) Ltd. by name as indicated above. It is a legal entity. Under the Companies Act it came into being in 1995. This Construction Company was in fact issued with special class contractor’s licence by the Committee of Chief Engineers in March, 1996 on payment of Rs. 30,000/- towards licence fee and Rs. 1,00,000/- worth N.S.Cs as per Government Circular Code 7/96/5337 dated 22.7.1996. As per OPWD Code the above construction Company applied for licence for which no previous experience as such was required. (Para 13)

       I have gone through the facts of the case. I have also gone through the case laws on the subject and having been satisfied with the legal position on the subject, I am of the considered view that though the proceeding is at a preliminary stage it should not be allowed to continue against an innocent person as it amounts to abuse of process of Court. As such, to prevent such abuse of process of Court and to secure ends of justice, I am inclined to exercise my judicial discretion in quashing the F.I.R. and the procee-dings in its entirety as the information on its face value and if accepted in its entirety do not prima facie constitute any offence or make out a case against the accused. (Para 14)

       Result: Petition allowed.