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HIGH COURT OF ORISSA : CUTTACK
S.C. PARIJA, J.
Sri Shiv Dutt Sharma - Petitioner
Versus
State of Orissa - Opp. Party No.1
M/s. Monnet Ispat & Energy Ltd. - Opp. Party no.2
CRLMC No. 2920 of 2010
Decided on : 14.01.2015
At the time of framing charge, the Court is not to meticulously judge the evidence proposed to be adduced by the prosecution and not to see whether there is sufficient ground for conviction, nor is any weight to be attached to the probable defence. At that stage, even a very strong suspicion founded upon materials leading the Magistrate to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged, may justify the framing of charges. The trial Court has to be satisfied whether there is "sufficient ground for proceeding" and not "whether there is sufficient ground for conviction". At the stage of Section 227 or 239 Cr.P.C., the Court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom, taken at their face value, disclose the existence of all the ingredients of the offence. At that stage, the accused has no right to produce any material or summon any document or materials in addition to those collected by the investigating agency, or invite the Court of pass an order of discharge on the basis of such additional material. The Court may, for the limited purpose of framing charge, sift the evidence and if on the basis of materials on record, the Court comes to the conclusion that the commission of offence is probable consequence, as case of framing of charge exists and the order rejecting application for discharge is legal and valid. (Paras-14 & 24)
2. PENAL CODE, 1860 - Sec.415 - To hold a person guilty of cheating, as defined under the Section it is necessary to show that at the time of making the promise he had fraudulent or dishonest intention to retain the property or to induce the person so deceived to do something which he would not otherwise do - Details stated.
Section 415 I.P.C. has two parts. While in the first part, the person must ’dishonestly’ and ’fraudulently’ induce the complainant to deliver any property, in the second part, the person should intentionally induce the complainant to do or omit to do a thing. That is to say, in the first part, inducement must be dishonest or fraudulent. In the second part, the inducement should be intentional. A guilty intention is an essential ingredient of the offence cheating. The intention to deceive should be in existence at the time when the inducement was offered.
Judgment :
S.C. Parija, J. : This application has been filed under Section 482 Cr.P.C., challenging the order dated 23.8.2010, passed by the learned J.M.F.C., Barbil, in G.R. Case No.27 of 2007, rejecting the application of the accused-petitioner under Section 239 Cr.P.C. for discharge and framing charge against him under Section 420 I.P.C.
2. The brief facts of the case is that on 01.11.1979, the Government of Orissa executed a mining lease in favour of M/s Utkal Minerals for mining of Iron Ore and Manganese Ore over an area measuring 26.243 hectares at village Raika, in Keonjhar district, in the State of Orissa. On 25.06.1985 a Deed of Transfer of mining lease was executed by the State of Orissa in favour of the petitioner to carry on mining activities to extract Iron Ore and Manganese Ore in the aforesaid 26.243 hectares i.e. 64.85 acres of land. Subsequently, a Deed of Rectification of mining lease was executed whereby the schedule of land was modified but the total area of the lease remained same i.e. 64.85 acres. Thereafter, out of the total area of 64.85 acres of land, the petitioner was accorded surface right by the Collector, Keonjhar, for an area of 36.13 acres and accordingly possession was given to the petitioner on 12.9.1986. The petitioner was carrying on mining activities and extracting Iron Ore and Manganese Ore from the said land measuring 36.13 acres.
While the matter stood thus, M/s. Orissa Mining Corporation Ltd., (hereinafter referred to as “OMC”) made a complaint to the Collector, Keonjhar, alleging that the petitioner is conducting mining operation violating the boundary line between the leasehold area of OMC and that of the petitioner. On the basis of such allegations, the Collector, Keonjhar, directed for a joint verification to determine the exact boundary line between leasehold mining area of the OMC and that of the petitioner. Accordingly, a joint verification was conducted on 29.6.1991 by the Mining Officer, Joda, Mining Officer, Keonjhar and Sub-Collector, Champua, in the presence of the representatives of the petitioner and OMC. During the joint verification, field measurement was conducted and in the joint verification report it was observed as follows:-
“Since there is dispute on the common boundary from station No.100 to 103 of OMC which forms common with ‘BA’ line of Sri Sharma’s lease, the operation of the quarries should be forthwith stopped within 300’ on either side of the existing boundary of OMC from station No.100 to 103 until re-survey is conducted and final decision is arrived at. Any violation of this will be treated as contravention of the lease covenants”.
Accordingly, both the petitioner and OMC were directed to stop mining activities within 300 ft. on either side of mining lease boundary from station no.100 to 103, until re-survey is done and final decision is taken in the matter. The petitioner applied for renewals of the mining lease on 28.10.1998, since the mining lease was going to expire on 30.10.1999. However, as per Rule 24A(6) of the Mineral Concession Rules, 1960, the mining lease of the petitioner was deemed to have been extended by a further period, till the Government passes an order on such renewal application. Thereafter, on 22.03.2003, the Collector, Keonjhar, granted surface right to the petitioner only over the non-forest land measuring about 3.33 acres instead of 36.13 acres, since in view of the Forest Act, the petitioner cannot extract minerals in forest areas. On 26.3.2003, the Deputy Director of Mines, Joda, handed over possession of the said area of land to the petitioner for undertaking mining operation.
Subsequently, on 7.3.2006, the petitioner entered into an agreement with the opposite party no.2 Company for sale of Iron Ore and Manganese Ore extracted from his leasehold mining area measuring 64.85 acres or 26.243 hectares. In the recital of the said agreement, it was stated that the buyer (opposite party no.2) has agreed to pay an advance of Rs.4.50 cr
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