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IN THE HIGH COURT OF ORISSA, CUTTACK
S.K. SAHOO, J.
Bikash Ch. Tulsiyan and others – Petitioners
Versus
State of Orissa and another – Opposite parties
CRLMC NO. 491 OF 2007
Decided On : 24-04-2017
2. PENAL CODE, 1860 - Sec. 420 - In order to establish a charge under the Section, it is to be proved that the accused had fraudulent or dishonest intention at the time of making promise or representation - Such a culpable intention right at the time of entering into the agreement must be established by showing from facts and that cannot be even be presumed including from any failure to keep his promise subsequently or for more dereliction of any duty or any omission or lapse.
Mere use of expression 'cheating' in the complaint is of no consequence. A pure and simple breach of contract does not constitute an offence of cheating. If the dispute between the parties was essentially a civil in nature resulting from a breach of contract on the part of the accused by non-refunding the amount of advance, the same would not constitute an offence of cheating. Of course, a given set of facts may make out a civil wrong as also a criminal offence and only because a civil remedy may also be available to the informant/complainant that itself cannot be a ground to quash a criminal proceeding. The real test is whether the allegations in the complaint disclose a criminal offence or not. It is to be seen if a matter, which is essentially of a civil nature, has been given a cloak of criminal offence. Criminal proceedings are not a short cut of other remedies available in law. Before issuing process, a criminal Court has to exercise a great deal of caution. For the accused, it is a serious matter.
JUDGMENT :
S.K. SAHOO, J.
1. Heard learned counsel for the petitioners, learned Addl. Standing Counsel for the State and learned counsel for the opposite party no.2.
2. This is an application under section 482 of Cr.P.C. filed by the petitioners challenging the impugned order dated 22.12.2006 passed by the learned S.D.J.M., Angul in C.T. Case No.403 of 2005 in taking cognizance of offences under sections 120-B/406/417/418/420/422/323/506/294/34 of the Indian Penal Code and issuance of process against them.
3. It appears that initially the opposite party no.2 Sri Surendra Kumar Baliar filed a complaint petition in the Court of learned S.D.J.M., Angul which was registered as C.T. Case No.403 of 2005 against the petitioners. The said complaint petition was sent to the Inspector in charge of Angul Police Station for registration of the first information report and for investigation, on the basis of which Angul P.S. Case No.110 of 2005 was registered on 28.04.2005 under sections 120-B/406/417/418/420/422/323/506/294/34 of the Indian Penal Code.
4. After completion of investigation, final report was submitted in the case on 07.01.2006 indicating the case to be false which was received and placed before the learned S.D.J.M., Angul on 13.01.2006 and accordingly, the learned S.D.J.M., Angul issued notice to the complainant for filing a protest petition, if any.
5. On the basis of such notice, the opposite party no.2 filed a protest petition on 03.04.2006. The learned S.D.J.M., Angul treated the protest petition as complaint petition, recorded the initial statement of the complainant-opposite party no.2 under section 200 of Cr.P.C. and conducted inquiry under section 202 of Cr.P.C. During course of such inquiry, six witnesses were examined where after on perusal of the complaint petition, initial statement of the complainant–opposite party no.2 and the evidence recorded under section 202 of Cr.P.C., the learned S.D.J.M., Angul was of the prima facie view that the ingredients of offences under sections 120B/406/417/418/420/422/323/506/294/34 of the Indian Penal Code are made out against the petitioners and accordingly took cognizance of such offences and issued process against the petitioners which is impugned in this application under section 482 of Cr.P.C..
6. Mr. Jayadeep Pal, learned counsel appearing for the petitioners contended that on a plain reading of the complaint petition which was first filed before the learned S.D.J.M., Angul, the protest petition and the evidence of the witnesses which were recorded during course of inquiry under section 202 of Cr.P.C., it would reveal that the petitioner no.1 is the son of the petitioner no.2, petitioner no.3 is the wife of petitioner no.2 and petitioners nos. 4 and 5 are the daughters of the petitioner no.2 and the complainant was serving as a sales man under the petitioner no.1 who was the proprietor of M/s. Shree Ranisati Distributors, Bazar Chowk, Angul. It is further revealed that on three occasions, the petitioners nos. 1 and 2 had taken an amount of Rs.2,50,000/- (rupees two lakhs fifty thousand only) from the complainant–opposite party no.2 on credit basis and they refunded only of Rs.80,000/- (rupees eighty thousand only) but did not refund the rest of the amount and on subsequent occasions when the complainant approached the petitioners nos. 1 and 2 asking for refund of the balance amount, he was abused in the filthy language and both the petitioners nos. 1 and 2 assaulted the complainant and also threatened him to file false case under section 376 of the Indian Penal Code and for criminal intimidation. It is strenuously argued by Mr. Pal that there is absolutely no material on record against the petitioners nos.3, 4 and 5 who are ladies and they have been falsely entangled in the case merely because they are related to petitioners nos. 1 and 2. It is contended that even accepting the entire allegations as per the complaint petition and the evidence on record, the ingredients of offenc
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