Allowed

Trilochan Mishra v. State of Odisha

Orissa HC7 Sept 2021CRLMC/3068/2019

Case brief

AI extract

What is this about?

The High Court allowed the petitioner's application under Section 482 CrPC to quash criminal proceedings for cheating, forgery, and criminal conspiracy. The court quashed the case based on the Supreme Court precedents cited, noting the underlying civil dispute had been settled by compromise, the impugned sale deed was cancelled, and no live criminal issue remained, continuing trial would be an abu

What did the court decide?

CRLMC allowed; impugned order of cognizance under Section 482 CrPC quashed; consequential proceedings against the petitioner quashed.

Trilochan Mishra Vs State of Odisha — Cheque Dishonour | Orissa HC (2021)

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IN THE HIGH COURT OF ORISSA AT CUTTACK

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CRLMC No.3068 of 2019

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Trilochan Mishra.

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Trilochan Mishra. …. Petitioner M/s. Ramdas Achary, N. Barik, R.K. Sahoo, S. Hidayatullah, S.R. Ojha, Advocates

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-versus-

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…. 1. State of Odisha. Opposite Parties 2. Mochiram Sahu.

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Mr. Mahindra Kumar Pradhan, Addl. Standing Counsel for the State (O.P. No.1) None (For O.P. No.2)

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Order No.

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CORAM: JUSTICE S. PUJAHARI ORDER 07.09.2021

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1. Present is an application filed by the petitioner seeking invocation of the power of this Court under Section 482 of Cr.P.C. for quashing of the order of cognizance dated 02.02.2016 passed against him by the learned S.D.J.M., Chhatrapur in G.R. Case No.119 of 2015, corresponding to CID, CB, Odisha, Cuttack P.S. Case No.28 of 2015 and also the proceeding against him.

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2. Heard the learned counsel appearing for the petitioner. Although Mr. Mahendra Kumar Pradhan, learned counsel appearing for the Enforcement Directorate on 03.08.2021 sought time to file affidavit in this case, despite time given he made no affidavit. Perused the relevant papers on record.

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3. As it appears, the opposite party no.2, hereinafter referred to as the “Informant” lodged a report with police on 03.09.2015 that as his son was suffering from some mental ailment, in the month of March, 2015 he had visited “Trahi Achuta Ashram” of Surendranath Mishra @ Sura Baba (since dead) at Jinti for spiritual blessing, and that the latter at that point of time had assured that if the Informant donated something for opening of a branch of the Ashram at Chhatrapur, his son would be cured of the mental ailment. It is alleged that believing the assurance so given by Sura Baba, the Informant agreed to donate his land measuring Ac.0.970 decimals to the Ashram Trust, and the present petitioner, who is son of Late Surendranath Mishra along with one Debiprasad Rath made the

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documentation, and took signatures of the Informant and his son on the deeds on 12.04.2013 at the office of the Sub-Registrar, Chhatrapur. However, the son of the Informant did not recover from the mental ailment and to learn that the deed intended by him to be a Gift deed had been fraudulently got executed and registered as a sale deed. Thereafter, when the Informant ventilated his grievance to Surendranath Mishra, both the present petitioner and Debiprasad Rath threatened him with life

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threat if he divulged the incident to public.

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Pursuant to the FIR as above, the Chhatrapur Police registered a case, and subsequently the case was taken over by the CID, CB, Odisha. After completion of investigation the said Investigating Agency submitted charge-sheet for the offences under Sections 420, 423, 467, 468, 471, 406, 506, 120-B read with Section 34 of IPC against the present petitioner and his father – Surendranath Mishra and the learned S.D.J.M., Chhatrapur vide the impugned order took cognizance of the said offences against both the accused persons. To reiterate, the accused – Surendranath Mishra is since

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dead and, as such, the connected case, i.e., CRLMC No.2345 of 2019 filed by him has since been disposed of as infructuous on 03.08.2021.

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4. It is also pertinent to mention that for the selfsame cause of action the Informant filed a Civil Suit bearing No.15 of 2016 before the learned Senior Civil Judge, Chhatrapur against the present petitioner and Deviprasad Rath for declaring the sale deed in question to be void and for consequential reliefs, and the said

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suit has been disposed of in terms of compromise entered into by the parties, as per the order dated 18.07.2018. As per the terms of the said compromise, the sale deed in question has been cancelled. In the context, a reference may also be made to the affidavit dated 03.12.2019 of the present Informant which had been filed by him before this Court in connection with CRLMC No.2345 of 2016. Vide the said affidavit, he solemnly affirmed as follows:-

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“xxxxxx

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That all the allegations / disputes relating to the present case i.e. G.R. Case No.258 of 2015 has been amicably settled between informant and the

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present accused persons in presence of their wellwisher and gentlemen.

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That in the meantime the disputed Sale Deed vide Document No.10571302347 dtd. 12.04.2013 executed by the deponent and subsequent mutation R.O.R. vide Khata No.441/3632 of Mouza: Chatrapur published in favour of the Shree Shree Shree Mahapurusha Achyutananda Trust was cancelled by virtue of the order dt. 18.07.2018 passed by the Ld. Civil Judge (Sr.Divn.), Chatrapur, consequent to the Compromise Petition filed by both the parties in the Civil Suit No.15/2016 and the schedule lands which is alleged to have been cheated in this case has already been alienated, as per the terms of compromise, in favour of the deponent, who was the Plaintiff in the Civil Suit, by virtue of decree passed in the Civil Court consequent to the compromise reached in the Civil Suit No.15/2016 and the deponent is in peaceful possession of the said land since then.

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That the aforesaid case has been filed against the accused persons by informant and presently there is no dispute between the parties and as such the present deponent does not want to proceed with the case against the accused persons further and as the amicable compromise has been made by both parties in presence of their well wishers and gentleman.”

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5. The learned counsel for the petitioner contended, inter-alia, that since the Informant admittedly consented to transfer his land to the Ashram Trust, and executed the deed, the allegation made by him that the sale deed was fraudulently got executed was baseless, especially when different requirements and formalities are enjoined by law for execution and registration of Gift deed and Sale deed and that there is no accusation by the Informant against the petitioner regarding any false assurance of spiritual blessing for recovery of the son of the Informant from mental ailment. While questioning the legality of the impugned order of cognizance, the learned counsel further submitted that the dispute involved being civil in nature, and the Informantplaintiff in the meantime having already voluntarily compromised the dispute resulting in disposal of the civil suit in terms of the compromise, continuance of the criminal proceeding against the petitioner would be an abuse of the process of the Court.

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6. There is an argument from the side of the State (Prosecution) that the prosecution having been launched

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for serious non-compoundable offences like, criminal conspiracy, cheating, forgery etc., compromise of the civil suit has no bearing on the criminal proceeding. The State has also made objection in this regard by filing an objection in the connected case.

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7. The crux of the prosecution, as it appears, is a dispute regarding a transfer of land, and it was alleged by the Informant that believing the false assurance given by late Surendranath Mishra, he agreed to donate his land to the Ashram Trust. The allegation made vis-àvis the present petitioner is that he fraudulently got a sale deed executed by the Informant which was assured to be a Gift deed by the Informant. The Informant challenged the transfer by way of a Civil Suit, and the same has already been disposed of in terms of compromise with cancellation of the sale deed and restoration of the peaceful possession of the land to the Informant.

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8. In the case of Parbatbhai Aahir and others vrs. State of Gujarat and others, reported in (2017) 9 SCC 641, the Apex Court held as follows:-

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“15. The broad principles which emerge from the precedents on the subject, may be summarized in the following propositions:

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Xxxxxxx

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(vi) In the exercise of the power under Section 482 and while dealing with a plea that the dispute has been settled, the High Court must have due regard to the nature and gravity of the offence. Heinous and serious offences involving mental depravity or offences such as murder, rape and dacoity cannot appropriately be quashed though the victim or the family of the victim have settled the dispute. Such offences are, truly speaking, not private in nature but have a serious impact upon society. The decision to continue with the trial in such cases is founded on the overriding element of public interest in punishing persons for serious offences;

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(vii) As distinguished from serious offences, there may be criminal cases which have an overwhelming or predominant element of a civil dispute. They stand on a distinct footing in so far as the exercise of the inherent power to quash is concerned;

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(viii) Criminal cases involving offences which arise from commercial, financial, mercantile, partnership or similar transactions with an essentially civil flavor may in appropriate situations fall for quashing where parties have settled the dispute; (ix) In such a case, the High Court may quash the criminal proceeding if in view of the compromise between the disputants, the possibility of a conviction is remote and the continuation of a

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criminal proceeding would cause oppression and prejudice; and

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(x) There is yet an exception to the principle set out in propositions (viii) and (ix) above. Economic offences involving the financial and economic wellbeing of the state have implications which lie beyond the domain of a mere dispute between private disputants. The High Court would be justified in declining to quash where the offender is involved in an activity akin to a financial or economic fraud or misdemeanour. The consequences of the act complained of upon the financial or economic system will weigh in the balance.”

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In the case of CBI, ACB , Mumbai vrs. Narendra

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Lal Jain and others, reported in (2014) 5 SCC 364,. it has also been held by the Apex Court as follows:-

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“11. In the present case, having regard to the fact that the liability to make good the monetary loss suffered by the bank had been mutually settled between the parties and the accused had accepted the liability in this regard, the High Court had thought it fit to invoke its power under Section 482 Code of Criminal Procedure. We do not see how such exercise of power can be faulted or held to be erroneous. Section 482 of the Code inheres in the High Court the power to make such order as may be considered necessary to, inter alia, prevent the abuse of the process of law or to serve the ends of justice.

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While it will be wholly unnecessary to revert or refer to the settled position in law with regard to the contours of the power available under Section 482 Code of Criminal Procedure. It must be remembered that continuance of a criminal proceeding which is likely to become oppressive or may partake the character of a lame prosecution would be good ground to invoke the extraordinary power under Section 482 Code of Criminal Procedure.”

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10. Again in the case of Central Bureau of Investigation, New Delhi vrs. B.B. Agarwal and

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others, reported in (2019) 15 SCC 522, the Apex Court held as follows:-

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“7. The DRT by its order dated 11-5-2006 accepted the settlement and accordingly disposed of OA No.3174 of 2000 in terms of settlement. (See documents filed in IA No.12323 of 2019). In terms of settlement order, the two companies were liable to pay a total sum of Rs.12.20 crores to PNB, which the two Companies, through their Directors, paid to PNB. It is not in dispute that now there are no outstanding dues payable by these two companies to PNB and the order of DRT stood complied with.

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It is with these background facts, the 12 respondent-accused filed the petitions in the High Court of Delhi under Section 482 CrPC seeking to quash the criminal proceedings filed against them. By the impugned order, the High Court allowed the

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petitions and quashed the criminal proceedings, which has given rise to filing of the present appeals by way of special leave by CBI in this Court.

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Having heard the learned counsel for the parties and on perusal of the record of the case, we find no merit in these appeals. In our considered opinion, having regard to the background facts stated above, we find no good ground to interfere in the impugned order.

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The High Court was of the view that on resettlement of accounts, the parties obtained the consent decree from DRT and paid the entire sum, therefore, there is no live issue, which now survives. The High Court then examined the question as to whether the issue of criminality is involved so as to allow the trial court to continue on its merits. After examining this issue with reference to charges and documents, the High Court held that no criminality issue is found involved notwithstanding the settlement of the case between the parties.

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The learned counsel for the appellant, placing reliance on the decision of this Court in Rumi Dhar v. State of W.B. contended that notwithstanding settlement of the civil suits by the parties, the criminal case out of which thee appeals arise has to be brought to its logical end one way or the other on merits and the High Court was, therefore, not right in quashing the charge-sheet at its threshold under Section 482 CrPC.

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We find no merit in her submission. When we take into account the entire undisputed controversy mentioned above, we also find that there is no criminality issue surviving qua those accused, who are alive so as to allow the prosecuting agency to continue with the criminal trial on merits. Indeed, it would be an abuse of process, as was rightly held by the High Court to which we concur.”

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11. Having considered the contentions advanced visà-vis the facts and circumstances depicted from record and in the light of the precedents quoted above, this Court finds no live issue surviving to allow continuance

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of the prosecution against the petitioner.

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12. In the result, the CRLMC stands allowed with quashment of the impugned order of cognizance and the consequential proceeding, qua the petitioner.

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Urgent certified copy of this order be granted on proper application.

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( S.Pujahari ) Judge

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MRS

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Trilochan Mishra v. State of Odisha

Case brief

What is this about?

What did the court decide?

Trilochan Mishra v. State of Odisha

Case brief

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