Disposed

Brajabandhu Behera v. Baragarh Cement Ltd.

Orissa HC4 Apr 2018CRLMC/1084/2005

Case brief

AI extract

What is this about?

The Court held that the omission of the word 'cognizance' in the Magistrate's order issuing process was an irregularity, not an illegality. Finding a prima facie case justified the process issuance, and a civil suit alongside the criminal case does not preclude proceeding.

What did the court decide?

Writ petition dismissed; CRLMC disposed of.

Brajabandhu Behera Vs Baragarh Cement Ltd. — Civil Procedure and Limitation | Orissa HC (2018)

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HIGH COURT OF ORISSA : CUTTACK

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CRLMC No.1084 of 2005

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In the matter of an application under Section 482 of the Code of Criminal Procedure.

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Brajabandhu Behera … Petitioner

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-Versus-

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Bargarh Cement Ltd. and another … Opp. Parties

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For Petitioner : M/s. M. Khatua, R.Lenka, M.Mohanty & S.K.Samantaray.

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For Opp. Parties : M/s.R.K.Rath & N.R.Rout (for O.P.No.1) Additional Standing Counsel (for O.P.No.2)

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P R E S E N T :

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THE HON’BLE DR. JUSTICE D.P. CHOUDHURY

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Date of hearing: 05.02.2018| Date of Judgment: 04.04.2018

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Dr. D.P. Choudhury, J. Challenge has been made to the impugned order dated 2.12.2004 and also the entire proceeding in ICC No.68 of 2002 pending in the court of the learned S.D.J.M., Bargarh with the prayer to quash the same under Section 482, Cr.P.C.

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FACTS

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The unravelled story of the prosecution case is that the petitioner joined as Manager in M/s.IDCOL Cement Ltd. in March, 1996 and subsequently w.e.f. 1.3.1998 he was posted as Zonal Manager at Bhubaneswar and was looking after the sales promotion of IDCOL Brand cement. It is alleged, inter alia, that the accused in his full capacity by letter dated 25.11.1998 forwarded the application dated 23.11.1998 of one Amiya Kanta Nayak introducing him as Proprietor of M/s.Nayak Construction, Ballibhagat Road, Buxi Bazar, Cuttack.He had also signed on the copy of the Contractor Licence issued by the Superintending Engineer, P.H.Circle in the name of Amiya Kanta Nayak along with work order purported to have been awarded the construction work under the Project Engineer, Project Management, Unit-II, Cuttack, Kendrapara, OWS & SB in favour of M/s.Nayak Construction. The petitioner has also intimated that a Bank Draft of Rs.18,000/- was deposited. On 26.12.1998 the accused sent a letter intimating that M/s.Nayak Construction was awarded work at Kakatpur by Executive Engineer, OWS & SB, Cuttack and the requirement of cement for that job was 24000 bags. In order to show the genuineness of such transaction, he sent the letter bearing No.1792 dated 26.12.1998 alleged to have been written by the Project Engineer, Project Management, Unit-I, OWS & SB, Cuttack. Subsequently on 11.1.1999 the petitioner intimated about deposit of

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Bank Draft and Post-dated cheque along with letter dated 11.1.1999 of the said M/s.Nayak Constructions recommending to supply cement to M/s.Nayak Constructions. Like this, he forwarded letters dated 14.1.1999 and 21.1.1999 purportedly written by Amiya Kanta Nayak. In all the letters, he had sent his recommendation to supply cement. As per the recommendation of the petitioner, cement was being lifted by the authorized person of M/s.Nayak Construction on their own arrangement and Amiyakanta Nayak never personally attended the factory, work office of Idcol Cement. The complainant-company supplied 1381 M.Ts. of cement against M/s.Nayak Construction vide bill raised in between 30.11.1998 to 31.1.2000, but finally Rs.3,22,880/- remained payable by M/s.Nayak Construction. Again when the balance amount was asked to be paid by M/s.Nayak Construction, the petitioner submitted post-dated cheque bearing No.0071418 dated 7.11.2000 for such amount allegedly to have been issued by M/s.Nayak Construction to clear the balance cost. On presentation of such cheque, the Bank of Baroda, Mani Sahu Chhak Branch, Cuttack dishonoured the cheque on the ground “Title of the Account Differs”, meaning that the account number mentioned in the cheque does not belong to Amiya Kanta Nayak. Since the amount was not realized, Civil Suit bearing C.S.No. 25 of 2002 was filed before the learned Civil Judge (Senior Division), Bargarh against Amiya Kanta Nayak as proprietor of M/s.Nayak Construction. Summon was issued

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in the given address of M/s.Nayak Construction, but the same was returned unserved with the report that no such person or firm exists. The complainant-company searched for the correct address and asked the petitioner to disclose the address, but the petitioner remained silent. In the meantime on thorough search, the Project Engineer, Project Management, Unit-II, Cuttack, Kendrapara, OWS & SB, Cuttack after enquiry informed that work order, letters and signature of the officers were not at all related to the office of M/s.Nayak Construction, which is also not an enlisted contractor.

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In the meantime, the complainant found that the petitioner deceived the complainant-company fraudulently and induced the complainant-company to deliver cement to his own arranged men and by that he gained himself illegally to show existence of one Amiya Kanta Nayak knowing fully well that no such person or account holder was actually in existence. Since the petitioner had dishonestly and fraudulently writing his letter of introduction since 25.1.1998 cheated the complainant-company to deliver cement on all dates of lifting cement till last lifting i.e. on 9.1.2000 and by sending fake cheque, which was dishonoured. The complainant-company lodged a complaint for the offence under Sections 420/468/471 of IPC and basing on the complaint, initial statement of the complainant was recorded by the learned SDJM,

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Bargarh and issued process against the petitioner. Challenging the said order, the petitioner has filed the present petition to quash the same.

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SUBMISSIONS

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Learned counsel for the petitioner submitted that the order of taking cognizance is illegal and improper as the cognizance was taken in 2004 although the incident relates to 1998. Further, it is submitted that the allegations in this case are absolutely false as on perusal of the initial statement of the complainant, statement of the witnesses recorded under Section 202, Cr.P.C., no case under Sections 420/468/ 471 of IPC is made out against the petitioner and thus, the continuance of the proceeding is illegal and improper for which the same should be quashed.

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Learned counsel for the petitioner further submitted that the learned Magistrate has committed gross illegality in issuing process against the petitioner, particularly when the illegal and arbitrary action of the authority, i.e. M/s.IDCOL Cement Ltd. has been challenged in W.P.(C) No.2384 of 2003, which is pending before this Court. M/s.Nayak Construction was regularly transacting with the company and the complaint clearly shows that M/s.Nayak Construction was regularly making payments towards purchase of cement from time to time in the shape of draft and Demand Drafts.

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If at all the cheque was dishonoured, it is not known why the complainant did not file a case under the N.I. Act against the said firm. The officials of the company instead of following the procedure established under law, has shifted the burden on the petitioner by making false allegations and filed the complaint. If at all the petitioner had made recommendation for supplying cement as per the instruction of the higher authorities, the sole liability of the present petitioner is quite unfounded and it is being hatched up by some unscrupulous officials.

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It is submitted by the learned counsel for the petitioner that if at all the complainant-company has seriousness with the allegations, it should have filed before the police instead of filing complaint and the learned Magistrate in the event of filing of complaint, ought to have sent it for registration for proper investigation by the police to unveil the truth. As such, the learned Magistrate from the beginning did not apply his judicial mind and passed the impugned order issuing process against the petitioner. It is further submitted that the petitioner was not in Bargarh Cement Ltd., but was in IDCOL Cement Ltd. for which the complainant has no locus standi to lodge the complaint. It is further submitted that the learned Magistrate without passing the order of taking cognizance of

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the offences, issued process against the petitioner, which is

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otherwise illegal and improper and thus, the same is liable to be quashed.

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Learned counsel for the complainant-opposite party no.1 submitted that the impugned order of issuing process against the petitioner is correct and legal. According to him, Bargarh Cement Ltd. Bargarh was a subsidiary company of ACC Ltd., which is under IDCOL. He further submitted that the learned Magistrate on application of judicial mind, has issued process against the petitioner and thus, the impugned order cannot be set aside. So, he submitted to reject the CRLMC.

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DISCUSSIONS

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The impugned order dated 2.12.2004 is as follows :

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“Record is put up today on the strength of a petition to that effect by the learned counsel for the complainant.

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He has filed another petition to pass appropriate order as he does not want to adduce any further evidence.

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Perused the complaint petition, the statement of the complainant and the documents relied on by him.

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There is prima facie material U/s.420,468, 471, IPC against accused Brajabandhu Behera. Hence issue summons to the accused fixing the case to 2.1.05 for appearance. Complainant to file requisites within 3 days for the purpose. “

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On perusal of the LCR, it appears from the complaint

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that the present petitioner being the Manager (Sales) of the

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complainant-company was looking after the sales promotion of IDCOL Brand Cement, which subsequently changed to Bargarh Cement Ltd. w.e.f. 22.1.2004. It is alleged, inter alia, that the present petitioner in the official capacity forwarded the application dated 23.11.1998 of one Amiya Kanta Nayak introducing him as proprietor of M/s.Nayak Construction, Ballibhagat Road, Buxi Bazar, Cuttack along with a copy of the contract licence issued by the Superintending Engineer. Gradually, the petitioner in the name of the said company, i.e. M/s.Nayak Constructions went on dealing with lifting of cement and other transactions with the then IDCOL Cement Ltd. But ill luck would have it, during such transaction, the petitioner lifted cement and submitted a post-dated cheque bearing No. 0071418 dated 7.11.2000 for Rs.3,22,880/- to clear the balance cost, but the cheque was dishonoured. When a civil suit bearing C.S. No. 25 of 2002 was filed against the said Amiya Kanta Nayak to recover such amount, summon was returned with the endorsement that there was no such M/s.Nayak Constructions or Amiya Kanta Nayak. After due enquiry, the complainant found that there was no such company, but the accused himself created the name and did the business. As such, the accused has cheated by forging the documents. The statement of the witnesses Y. Khuntia and Kailash Chandra Barik corroborate the statement of the complainant and so also the complaint petition.

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Of course, the statement of the officials of M/s.Bargarh Cement Ltd. and the letters available with the company only disclose about the involvement of the present petitioner, who was in-charge of sales of the company. But it is too early to decide whether the accused-petitioner would be convicted on the materials produced at present. While cognizance of any offence is taken, the Court is required to see only prima facie case without digging further. When there is a civil suit for recovery of money, it cannot be said that there cannot be a complaint case. Be that as it may, the materials perused by the learned Magistrate amply find out a prima facie case. In the case of Rashmi Kumar (Smt.) vs Mahesh Kumar Bhada , (1997) 2 SCC 397 and State of Bihar v. Rajendra Agrawalla, (1996) 8 SCC 164 , their Lordships have observed that at the time of taking cognizance of the offence, the Court has to consider only the averments made in the complaint or in the charge-sheet filed under Section 173, Cr.P.C. as the case may be. It is not open to shift or appreciate the evidence at that stage with reference to the materials and come to the conclusion that no prima facie case is made out to proceed further in the matter. On the other hand, there must be application of judicial mind on the basis of the materials available on record.

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With due regard to the aforesaid decision, in the present case the complaint along with the initial statement of the complainant and the statements recorded under Section 202, Cr.P.C. no doubt bring out a prima facie case under Sections 468/420/471, IPC. Thus, there is no mistake in the observation of the learned Magistrate that he found a prima facie case basing on such material for the above offences against the petitioner. At the same time, he issued process against the petitioner. He has omitted to write the words “cognizance taken of such offences”. Now, the question arises whether such omission makes the order vulnerable.

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It is reported in the case of Sk. Siraj –V- State of Orissa; 1994 CRI L.J. 2410 where this Court has observed that cognizance of offence under Section 190 Cr.P.C. means taking notice of the offence, and not the commencement of judicial proceeding in the case. It is also reported in the case of Ajit Kumar Palit –VState of West Bengal and another; AIR 1963 SC 765 where the Hon’ble Supreme Court has observed at paragraph-19 in the following manner:

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“………The word ‘cognizance’ has no esoteric or mystic significance in criminal law or procedure. It merely means-become aware of and when used with reference to a Court or Judge, to take notice of judicially. It was stated in Gopal Marwari v. Emperor, AIR 1943 Pat 245 (SB) by the learned Judges of the Patna High Court in

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a passage quoted with approval by this Court in R.R. Chari v. State of Uttar Pradesh, 1951 SCR 312 at p.320 :(AIR 1951 SC 207 at P.210 ) that the word ‘cognizance’ was used in the Code to indicate the point when the Magistrate or Judge takes judicial notice of an offence and that it was a word of indefinite import, and is not perhaps always used in exactly the same sense.”

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13. In the case of S.K. Sinha, Chief Enforcement Officer–

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V- Videocon International Ltd. and others; (2008) 2 SCC 492,

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the Hon’ble Supreme Court at paragraphs-19, 20, 21 and 22 have observed in the following manner:

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“19. The expression cognizance has not been defined in the Code. But the word (cognizance) is of indefinite import. It has no esoteric or mystic significance in criminal law. It merely means “become aware of” and when used with reference to a Court or a Judge, it connotes “to take notice of judicially”. It indicates the point when a Court or a Magistrate takes judicial notice of an offence with a view to initiating proceedings in respect of such offence said to have been committed by someone.

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“Taking cognizance” does not involve any formal action of any kind. It occurs as soon as a Magistrate applies his mind to the suspected commission of an offence. Cognizance is taken prior to commencement of criminal proceedings. Taking of cognizance is thus a sine qua non or condition precedent for holding a valid trial. Cognizance is taken of an offence and not of an offender. Whether or not a Magistrate has taken cognizance of an offence depends on the facts and circumstances of each case and no rule of universal application can be laid down as to when a Magistrate can be said to have taken cognizance.

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Chapter XIV (Sections 190-199) of the Code deals with “Conditions requisite for initiation of proceedings”. Section 190 empowers a Magistrate to take cognizance of an offence in certain circumstances. Sub-section (1) thereof is material and may be quoted in extenso: “190. Cognizance of offences by Magistrate:- (1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub-section (2), may take cognizance of any offence-

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(a) upon receiving a complaint of facts which constitute such offence;

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(b) upon a police report of such facts;

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(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.”

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Chapter XV (Sections 200-203) relates to “Complaints to Magistrates” and covers cases before actual commencement of proceedings in a Court or before a Magistrate. Section 200 of the Code requires a Magistrate taking cognizance of an offence to examine the complainant and his witnesses on oath. Section 202, however, enacts that a Magistrate is not bound to issue process against the accused as a matter of course. It enables him before the issue of process either to inquire into the case himself or direct an investigation to be made by a Police Officer or by such other person as he thinks fit for the purpose of deciding whether there is sufficient ground for proceeding further. The underlying object of the inquiry under Section 202 is to ascertain whether there is prima facie case against the accused. It thus allows a Magistrate to form an opinion whether the process should or should not be issued. The scope of inquiry under Section 202 is, no doubt, extremely limited. At that stage,

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what a Magistrate is called upon to see is whether there is sufficient ground for proceeding with the matter and not whether there is sufficient ground for conviction of the accused .”

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With due regard to the aforesaid decisions, it appears that the specific word ‘cognizance’ means taking judicial note of the offence. The same view has also been taken by this Court in

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Artatran Mahasuara and others–V- State of Orissa; AIR 1956 ORISSA 129 .

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Moreover, omission of such word ‘cognizance’ in the impugned order is an irregularity but not an illegality inasmuch as the learned Magistrate has categorically observed that there is prima facie case under Sections 420/468/471 of IPC against the petitioner and issued process. Under Section 465 Cr.P.C., this omission can be curable but not incurable when there is clear in the opinion of the learned Magistrate that there is a prima facie case under Sections 420/468/471 of IPC and omission to write the words “cognizance

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taken of offence” is not a factor to reject the case of the complainant. Rather it is clear that the learned Magistrate has taken cognizance of offences as aforesaid when he found prima facie case

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of such offences and accordingly issued process to the petitioner. Absence of formal expression “cognizance has been taken of such offences” in impugned order is casus omissus and cannot be construed that the learned Magistrate has not taken cognizance of

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such offences. Thus, such impugned order requires no interference. At the same time, the petitioner is at liberty to raise all such contentions, which have been raised in this Court, before the Court below at the time of framing of charge.

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Since it is a matter of 2004, the learned Magistrate would do well to conclude the trial of the case within a period of three months from the date of receipt of a copy of this order.

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Registry is directed to send back the LCR along with copy

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of this order to the Court below forthwith by a Special Messenger.

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The CRLMC stands disposed of accordingly.

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……………………………. Dr. D.P. Choudhury, J.

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ORISSA HIGH COURT: CUTTACK Dated the 4^th April, 2018/ PKSahoo

Brajabandhu Behera v. Baragarh Cement Ltd.

Case brief

What is this about?

What did the court decide?

Brajabandhu Behera v. Baragarh Cement Ltd.

Case brief

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