Ashok Kumar Padhy vs ICFAI Foundation & another

The petitioner Ashok Kumar Padhy who is the Managing Director of M/s. Auro Constructions, Bhubaneswar has filed this application under

section 482 of Cr.P.C. for quashing the impugned order dated 05.09.2013 passed by the learned S.D.J.M., Bhubaneswar in I.C.C. Case

No.4995 of 2013 in taking cognizance of offence under section 420 of the Indian Penal Code and issuance of process against him.

The opposite party no.1 ICFAI Foundation for Higher Education through its Addl. Registrar Mr. Samad Noorus filed the complaint petition

stating therein that the complainant is a registered trust having its registered office at Hyderabad. The complainant was in search of fifty acres of

contiguous land in and around Bhubaneswar for establishing a University for imparting higher education. The petitioner came to know about the

requirement of the complainant and approached him and represented himself as the Managing Director of M/s. Auro Constructions, a Partnership

firm and power of attorney holder of M/s. Sofia Study Circle, Cuttack and promised to facilitate and arrange minimum fifty acres of contiguous

land with clear title and free from encumbrances within mouza Similipatna and Anlapatna villages near Bhubaneswar. After several negotiations

between the parties, an agreement for sale was executed between the parties on 12th May 2009 in the office of the petitioner for arranging fifty

acres of contiguous land with clear title @ Rs.20,00,000/- per acre. The agreement contained certain terms like providing minimum fifty acres of

land to ICFAI by the petitioner, for registration of the land and giving its physical possession to the complainant. It was also provided in the

agreement that the petitioner will settle all the issues and subsequent litigation with respect to the lands transferred to the complainant and that the

complainant will withhold 10% of the amount due towards the cost of the land from every payment during registration process which would be

returned within fifteen days of completion of registration of fifty acres of land to the complainant and on completion of the formalities like

registration of land, conversion of land use, handing over of physical possession of land and completion of boundary wall. The agreement was

notarized at Bhubaneswar on 12.05.2009.

It is the further case of the complainant that after entering into the sale agreement, the petitioner started acquiring the land and

informed the complainant that the land acquired by him was free from litigations, encumbrances and having clear and marketable title.

Believing the version of the petitioner to be true, the complainant purchased the land to an extent of Ac.34.815 decimals and got it

registered in its name in mouza Similipatna and Anlapatna of Bhubaneswar. The complainant invested more than seven crores of

rupees but though on paper, the land was shown to be in possession of the complainant but the petitioner never handed over the

physical possession of the land to the complainant and it was under the care, control and supervision of the petitioner holding for the

complainant.

It is the further case of the complainant that when the complainant asked the petitioner to construct a boundary wall around the

purchased land, one contractor was appointed on the request of the petitioner. While the work of leveling was under progress, the

local people started obstructing the construction of boundary wall over the land purchased through the petitioner and dislodged the

contractor and the workers from the site stating that they were the prior purchasers of the land and that they had prior title to such

land. When the complainant contacted the petitioner, he was told by the petitioner that the dispute would be resolved and physical

possession of the land would be handed over after completion of construction of the boundary wall for the entire land. One 144

Cr.P.C. proceeding was instituted against the locals for interfering with peaceful possession of the complainant and an F.I.R. was also

lodged against the local persons with the police authorities.

It is the further case of the complainant that the petitioner breached the trust and cheated the complainant by inducing him to purchase

land with clear and marketable title but from the Sub-Register''s Office, it was ascertained that some of the land purchased by the

complainant was earlier sold to several purchasers and sale deeds were cancelled unilaterally without informing the said purchasers

and subsequently the land was fraudulently transferred to the complainant. It is the further case of the complainant that the petitioner in

order to gain personally from the amount which was received by him from the complainant, caused irreparable loss and injury to the

complainant and gained immensely by wrongful and illegal means. It is the further case of the complainant that transferring of land

without clear title amounts to dishonest intention on the part of the petitioner and right from the beginning i.e. from the date of entering

into the sale agreement, receiving the amount from the complainant and executing fraudulent sale deeds were all with dishonest

intention to cheat the complainant and gain wrongfully.

After filing of the complaint petition on 20.08.2013, initial statement of the complainant Samad Noorus, Addl. Registrar of ICFAI Foundation

who was authorized to file the complaint petition was recorded and the case was posted for inquiry under section 202 of Cr.P.C. After one date,

the complainant filed a memo to close the evidence and accordingly, on 05.09.2013 the learned Magistrate after going through the case records,

statement of the complainant recorded under section 200 of Cr.P.C., the documents filed on behalf of the complainant has been pleased to hold

that dishonest intention is prima facie made out against the petitioner from his conduct and accordingly passed the impugned order.

Mr. Pradipta Kumar Mohanty, learned Senior Advocate appearing for the petitioner contended that the allegations clearly reveal civil disputes

arising out of contractual obligation between the petitioner and the opposite party no.1 pertaining to the agreement dated 12.05.2009. It is

contended that 144 Cr.P.C. proceeding was instituted by the opposite party no.1 as the first party against some private persons as the second

parties in the Court of ACP -cum- Executive Magistrate, Bhubaneswar in CMC No.878 of 2011 who were causing disturbance and claiming title

over some portion of the land purchased by the petitioner for the opposite party no.1 and the learned Executive Magistrate vide order dated

30.09.2011 held that the 1st party had established his right, title and interest on the case land and the 2nd parties were creating obstruction,

annoyance which might violate public peace and tranquility in the case land and accordingly, they were restrained to create any disturbances and

the IIC of Chandaka police station was directed to implement the order strictly. It is further contended that not only the petitioner arranged the land

but also registered sale deeds were executed and construction work of the boundary wall started. It is further contended that C.S. No.878 of

2013 and I.A. No.454 of 2013 were filed by the petitioner in the Court of learned Civil Judge, Senior Division, Bhubaneswar on 31.05.2013

seeking permanent injunction and also temporary injunction against the opposite party no.1 alleging nonperformance of the contractual obligation

arising out of the agreement and not cooperating and providing funds for further construction of the boundary wall and in not paying his dues of ten

percent of the sale consideration withheld by the opposite party no.1 and by abandoning the idea of establishing the institute in Odisha and trying to

sell away the land already purchased. It is further contended that the learned Civil Judge, Senior Division, Bhubaneswar passed the interim order

on 03.06.2013 directing both the parties to maintain status quo and the opposite parties were directed not to alienate the suit land to the outsiders

and not to create any third party interest over the suit lands. It is further contended that there is no element of cheating from the beginning in the

performance of contractual obligation arising out of the agreement rather the petitioner arranged Ac.34.815 decimals of land and the possession

was taken over and the construction of the boundary wall started. It is further contended that since the opposite party no.1 did not show any

further interest to cooperate with the construction of boundary wall and ultimately tried to escape from paying the legitimate dues of the petitioner

for which civil suit was filed, after appearing in the same on being noticed, to frustrate the claim of the petitioner, the complaint petition was filed

with an oblique motive. It is further contended that unless the complaint case proceeding and the impugned order of taking cognizance and issuance

of process is quashed exercising the inherent power under section 482 of Cr.P.C., the petitioner will be seriously prejudiced. The learned counsel

for the petitioner relied upon the decisions of the Hon''ble Supreme Court in the cases of Madhavrao Jiwaji Rao Scindia -Vrs.- Sambhajirao

Chandrojirao Angre reported in A.I.R. 1988 S.C. 709, G. Sagar Suri -Vrs.- State of Uttar Pradesh reported in (2000) 18 Orissa Criminal

Reports (SC) 355, Ram Biraji Devi -Vrs.- Umesh Kumar Singh reported in (2006) 34 Orissa Criminal Reports (SC) 457 & Indar Mohan

Goswami -Vrs.- State of Uttaranchal reported in (2008) 39 Orissa Criminal Reports (SC) 188.

Mr. D.N. Pattanaik, learned counsel appearing for the opposite party no.1 on the other hand contended that the petitioner continued to mislead

the complainant right from the beginning by way of false representation and promises by arranging disputed lands for the complainant and most of

the lands were sold several times before. The proceeding under section 144 of Cr.P.C. is the proof of the litigation surrounding the land and area

chosen by the petitioner and because of the litigations, the complainant could not get possession over the land and even one boundary wall became

impossible since the date of purchase. It is further contended that the petitioner took advantage of the situation and position of the complainant as

an outsider and did not convey the actual status of the land purchased. It is further contended that neither the actual possession of the lands were

handed over to the complainant nor the conversion of the land was completed on account of oblique motive of the petitioner to grab huge amount

of money from the complainant.

It is further contended that for setting up of a University, the State Government has also enacted an Act but it was due to the

fraudulent conduct and intention of cheating of the petitioner, it could not be materialized. It is further contended that the allegations in

the complaint petition put forth a serious offence having a bearing on a vital societal interest and it is not an ordinary civil dispute

rather a public interest in securing probity of titles or interest in land. It is further contended that on the garb of mercantile transaction,

criminal liability cannot be over shadowed and ignored. The petitioner impressed upon the complainant regarding his status as a real

estate firm and did not check or verify the title while transferring such a huge patch of land and not a single decimal of land was held

by the petitioner. It is further contended that on a bare reading of different paragraphs of the complaint petition and the initial

statement of the complainant makes out the ingredients of the offence under section 420 of the Indian Penal Code and plea of the

petitioner can be gone into at the time of trial and therefore, the CRLMC application should be dismissed. The learned counsel for the

opp. party no.1 relied upon the decisions of the Hon''ble Supreme Court in case of Parbatbhai Aahir @ Parbatbhai Bhimsinhbhai

Karmur and Ors. -Vrs.- The State of Gujrat reported in (2017) 68 Orissa Criminal Reports (SC) 982 and Indian Oil Corporation -

Vrs.- NEPC India Ltd. reported in (2006) 35 Orissa Criminal Reports (SC) 128.

The legal position regarding the scope of quashing of criminal case under section 482 Cr.P.C. by this Court is wellsettled in a large number of

the decisions of the Hon''ble Supreme Court. Some of such decisions placed by the learned counsels are discussed hereinbelow.

In case of Madhavrao Jiwaji Rao Scindia -Vrs.- Sambhajirao Chandrojirao Angre reported in A.I.R. 1988 S.C. 709, it is held as

follows:

The legal position is well-settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the

Court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the Court to take into

consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to

permit a prosecution to continue. This is so on the basis that the Court cannot be utilised for any oblique purpose and where in the

opinion of the Court chances of an ultimate conviction are bleak and, therefore, no useful purpose is likely to be served by allowing a

criminal prosecution to continue, the Court may while taking into consideration the special facts of a case also quash the proceeding

even though it may be at a preliminary stage.

In case of Parbatbhai Aahir @ Parbatbhai Bhimsinhbhai Karmur and Ors. -Vrs.- The State of Gujrat reported in (2017) 68 Orissa

Criminal Reports (SC) 982, it is held as follows:

The broad principles which emerge from the precedents on the subject, may be summarised in the following propositions:

(i) Section 482 preserves the inherent powers of the High Court to prevent an abuse of the process of any court or to secure the ends

of justice. The provision does not confer new powers. It only recognises and preserves powers which inhere in the High Court;

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(iii) In forming an opinion whether a criminal proceeding or complaint should be quashed in exercise of its jurisdiction Under Section

482, the High Court must evaluate whether the ends of justice would justify the exercise of the inherent power;

(iv) While the inherent power of the High Court has a wide ambit and plenitude, it has to be exercised; (i) to secure the ends of justice

or (ii) to prevent an abuse of the process of any court.

In case of M/s. Indian Oil Corporation -Vrs.- NEPC India Ltd. reported in (2006) 35 Orissa Criminal Reports (SC) 128, it is held

as follows:

The principles relating to exercise of jurisdiction under Section 482 of the Code of Criminal Procedure to quash complaints and

criminal proceedings have been stated and reiterated by this Court in several decisions......

The principles, relevant to our purpose are:

(i) A complaint can be quashed where the allegations made in the complaint, even if they are taken at their face value and accepted in

their entirety, do not prima facie constitute any offence or make out the case alleged against the accused.

For this purpose, the complaint has to be examined as a whole, but without examining the merits of the allegations. Neither a detailed

inquiry nor a meticulous analysis of the material nor an assessment of the reliability or genuineness of the allegations in the complaint, is

warranted while examining prayer for quashing of a complaint.

(ii) A complaint may also be quashed where it is a clear abuse of the process of the Court, as when the criminal proceeding is found

to have been initiated with malafides/malice for wreaking vengeance or to cause harm, or where the allegations are absurd and

inherently improbable.

(iii) The power to quash shall not, however, be used to stifle or scuttle a legitimate prosecution. The power should be used sparingly

and with abundant caution.

(iv) The complaint is not required to verbatim reproduce the legal ingredients of the offence alleged. If the necessary factual

foundation is laid in the complaint, merely on the ground that a few ingredients have not been stated in detail, the proceedings should

not be quashed. Quashing of the complaint is warranted only where the complaint is so bereft of even the basic facts which are

absolutely necessary for making out the offence.

(v) A given set of facts may make out: (a) purely a civil wrong; or (b) purely a criminal offence; or (c) a civil wrong as also a criminal

offence. A commercial transaction or a contractual dispute, apart from furnishing a cause of action for seeking remedy in civil law,

may also involve a criminal offence. As the nature and scope of a civil proceeding are different from a criminal proceeding, the mere

fact that the complaint relates to a commercial transaction or breach of contract, for which a civil remedy is available or has been

availed, is not by itself a ground to quash the criminal proceedings. The test is whether the allegations in the complaint disclose a

criminal offence or not.

While on this issue, it is necessary to take notice of a growing tendency in business circles to convert purely civil disputes into

criminal cases. This is obviously on account of a prevalent impression that civil law remedies are time consuming and do not

adequately protect the interests of lenders/creditors. Such a tendency is seen in several family disputes also, leading to irretrievable

break down of marriages/families. There is also an impression that if a person could somehow be entangled in a criminal prosecution,

there is a likelihood of imminent settlement. Any effort to settle civil disputes and claims, which, do not involve any criminal offence,

by applying pressure through criminal prosecution should be deprecated and discouraged.

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While no one with a legitimate cause or grievance should be prevented from seeking remedies available in criminal law, a complainant

who initiates or persists with a prosecution, being fully aware that the criminal proceedings are unwarranted and his remedy lies only

in civil law, should himself be made accountable, at the end of such misconceived criminal proceedings, in accordance with law. One

positive step that can be taken by the Courts, to curb unnecessary prosecutions and harassment of innocent parties, is to exercise

their power under section 250 Cr.P.C. more frequently, where they discern malice or frivolousness or ulterior motives on the part of

the complainant.

In case of G. Sagar Suri -Vrs.- State of Uttar Pradesh reported in (2000) 18 Orissa Criminal Reports (SC) 355, it is held as follows:

Jurisdiction under section 482 of the Code has to be exercised with a great care. In exercise of its jurisdiction, High Court is not

to examine the matter superficially. It is to be seen if a matter, which is essentially of 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.

Keeping in view the principles laid down by the Hon''ble Supreme Court in the aforesaid decisions relating to the exercise of inherent power in

quashing the criminal proceeding and coming to the case in hand, it appears that cognizance of offence under section 420 of the Indian Penal Code

has been taken which has been challenged by the petitioner.

Section 420 of the Indian Penal Code deals with punishment for cheating and dishonestly inducing delivery of property. ""Cheating

has been defined in section 415 of the Indian Penal Code, The essential ingredients of the offence of ''cheating'' are: (i) deception of a

person either by making a false or misleading representation or by other action or omission (ii) fraudulent or dishonest inducement of

that person to either deliver any property or to consent to the retention thereof by any person or to intentionally induce that person to

do or omit to do anything which he would not do or omit if he were not so deceived and which act or omission causes or is likely to

cause damage or harm to that person in body, mind, reputation or property.

In case of S.W. Palanitkar and others -Vrs.- State of Bihar reported in A.I.R. 2001 S.C. 2960, it is held as follows:-

Many a times, complaints are filed under section 200 Cr.P.C. by the parties with an oblique motive or for collateral purposes to

harass, to wreak vengeance to pressurize the accused to bring them to their own terms or to enforce the obligations arising out of

breach of contract touching commercial transactions instead of approaching civil courts with a view to realize money at the earliest. It

is also to be kept in mind that when parties commit a wrongful act constituting a criminal offence satisfying necessary ingredients of an

offence, they cannot be allowed to walk away with an impression that no action could be taken against them on criminal side. A

wrongful or illegal act such as criminal breach of trust, misappropriation, cheating or defamation may give rise to action both on civil

as well as on criminal side. When it is clear from the complaint and sworn statements that necessary ingredients of constituting an

offence are made out, may be parties are entitled to proceed on civil side only in a given situation in the absence of an act constituting

an offence but not to proceed against the accused in a criminal prosecution. Hence before issuing a process, a Magistrate has to

essentially keep in mind the scheme contained in the provisions of sections 200-203 of Cr.P.C. keeping in mind the position of law

stated above and pass an order judiciously and not mechanically or in routine manner.

In case of Rajesh Bajaj -Vrs.- State of NCT of Delhi reported in 1999 (1) Orissa Law Reviews (SC) 668, it is held as follows:

9.It is not necessary that a complainant should verbatim reproduce in the body of his complaint all the ingredients of the offence he is

alleging. Nor is it necessary that the complainant should state in so many words that the intention of the accused was dishonest or

fraudulent....

The crux of the postulate is the intention of the person who induces the victim of his representation and not the nature of the

transaction which would become decisive in discerning whether there was commission of offence or not. The complainant has stated

in the body of the complaint that he was induced to believe that respondent would honour payment on receipt of invoices, and that

the complainant realised later that the intentions of the respondent were not clear. He also mentioned that respondent after receiving

the goods have sold them to others and still he did not pay the money. Such averments would prima facie make out a case for

investigation by the authorities.

In case of Hridaya Ranjan Pd. Verma -Vrs.- State of Bihar reported in A.I.R. 2000 S.C. 2341, it is held as follows:

On a reading of the section it is manifest that in the definition there are set forth two separate classes of acts which the person

deceived may be induced to do. In the first place he may be induced fraudulently or dishonestly to deliver any property to any

person. The second class of acts set forth in the section is the doing or omitting to do anything which the person deceived would not

do or omit to do if he were not so deceived. In the first class of cases, the inducing must be fraudulent or dishonest. In the second

class of acts, the inducing must be intentional but not fraudulent or dishonest.

In determining the question, it has to be kept in mind that the distinction between mere breach of contract and the offence of

cheating is a fine one. It depends upon the Intention of the accused at the time to inducement which may be judged by his subsequent

conduct but for this subsequent conduct is not the sole test. Mere breach of contract cannot give rise to criminal prosecution for

cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction, that is the time when the offence is

said to have been committed. Therefore, it is the intention which is the gist of the offence. To hold a person guilty of cheating, it is

necessary to show that he had fraudulent or dishonest intention at the time of making the promise. From his mere failure to keep up

promise subsequently such a culpable intention right at the beginning, that is, when he made the promise cannot be presumed.

In case of Ram Biraji Devi -Vrs.- Umesh Kumar Singh reported in (2006) 34 Orissa Criminal Reports (SC) 457, it is held as

follows:

The learned Magistrate in his order has categorically stated that perusal of the complaint would make it clear that there was a

dispute in respect of sale and purchase of land between the parties. In our view even if the allegations made in the complaint are

accepted to be true and correct, the appellants cannot be said to have committed any offence of cheating or criminal breach of trust.

Neither any guilty intention can be attributed to them nor there can possibly be any intention on their part to deceive the complainant.

No criminal case is made out by the complainant against the appellants in his complaint and in the statements of the complainant and

his witnesses recorded by the Magistrate before taking of the cognizance of the alleged offences. The averments of the complaint and

the statements of the complainant and his witnesses recorded by the Magistrate would amount to civil liability inter se the parties and

no criminal liability can be attributed to the appellants on the basis of the material on record....

In case of Inder Mohan Goswami -Vrs.- State of Uttaranchal reported in (2008) 39 Orissa Criminal Reports (SC) 188, it is held as

follows:

40.Firstly, we shall deal with the section 420 IPC. Cheating is defined in section 415 IPC and is punishable under section 420

IPC.......

On a reading of the aforesaid section, it is manifest that in the definition there are two separate classes of acts which the person

deceived may be induced to do. In the first class of acts, he may be induced fraudulently or dishonestly to deliver property to any

person. The second class of acts is the doing or omitting to do anything which the person deceived would not do or omit to do if he

were not so deceived. In the first class of cases, the inducing must be fraudulent or dishonest. In the second class of acts, the inducing

must be intentional but need not be fraudulent or dishonest. Therefore, it is the intention which is the gist of the offence. To hold a

person guilty of cheating it is necessary to show that he had a fraudulent or dishonest intention at the time of making the promise.

From his mere failure to subsequently keep a promise, one cannot presume that he all along had a culpable intention to break the

promise from the beginning.

The factual scenario indicates that a sale agreement was executed between the petitioner as the 1st party and the opposite party no.1 as the 2nd

party on 12.05.2009 for providing minimum of fifty acres of land by the petitioner to the opposite party no.1 and its affiliates in mouza Similipatna

and Anlapatna under Bhubaneswar Tahasil for setting up a University by the opposite party no.1. Certain terms and conditions were stipulated in

the said agreement. The petitioner was required to complete transfer registration of the land and conversion of land use (CLU) in respect of the

said land and give physical possession of the land to the opposite party no.1. It further stipulated that the opposite party no.1 shall withhold ten

percent of amount due towards the cost of land from every payment made during registration process which would be returned to the petitioner

within fifteen days after registration of fifty acres of land and completion of registration, CLU, handing over physical possession of the land and

completion of boundary wall which is to be constructed by the opposite party no.1 at his own cost. The agreement further stipulated that the

petitioner shall try to settle all issues and subsequent litigation (if any) with respect to the lands. The agreement (Annexure-3) provides that the

petitioner will provide all the land and other documents to Mr. Prasant Routray, Advocate who will verify the documents provided by the petitioner

and registration of land will proceed as per the advice/directions of the advocate.

The complaint petition clearly indicates that after entering into the agreement, the petitioner started acquiring the land and informed the

opposite party no.1 and the opposite party no.1 purchased the lands to an extent of Ac.34.815 dec. in mouza Similipatna and

Analapatna and it was registered in the name of the opposite party no.1. It is mentioned in the complaint petition that the petitioner

informed the opposite party no.1 that the land acquired by him was free from litigations, encumbrances and having clear and

marketable title. It is not clear as to whether all the land documents were produced before the concerned advocate of the opposite

party no.1 for verification or not. The learned counsel for the petitioner contended that since a clause is stipulated in the agreement

that registration of the land will be done only after verification of the documents of the land by the advocate and as per his

advice/directions, it pre-supposes that the same has been done before registration which has been suppressed by the complainant in

his complaint petition. At this stage, on the available materials, it would not be proper to express any opinion on the submission made

regarding verification of documents by the advocate of the complainant before registration of the lands.

On the face of the complaint petition, it is very difficult to hold that the petitioner had a fraudulent or dishonest intention at the time of

making the promise for providing minimum fifty Acres of land to the opposite party no.1 for the purpose of setting up a University. It

is apparent that the petitioner not only searched for the lands in mouza Similipatna and Anlapatna under Bhubaneswar Tahasil but

arranged lands to the extent of Ac.34.815 dec. which were also registered in the name of the opposite party no.1. Some dispute

arose while the boundary wall around the acquired land was under progress for which a proceeding under section 144 Cr.P.C. was

instituted by the opposite party no.1 against some persons who were creating disturbances and the ACP -cum- Executive Magistrate,

Bhubaneswar in CMC No.878 of 2011 observed in its order dated 30.09.2011 that the 1st party (opposite party no.1-

complainant) has established his right, title and interest over the case land and the 2nd party members are creating obstruction,

annoyance which may violate public peace and tranquility in the case land and therefore, the 2nd party members were restrained from

entering and interfering into the case land in any manner and the IIC, Chandaka Police Station was directed to strictly implement the

order. This order which has been annexed as Annexure-8 clearly shows that even the learned Executive Magistrate was satisfied with

the documents of land produced by the opposite party no.1 that he had established his right, title and interest over the case land and

therefore, it cannot be prima facie accepted that the lands which were provided by the petitioner to the opposite party no.1 was not

having a clear and marketable title. It further appears that there was some dispute between the parties relating to the alleged non-

performance of contractual obligation arising out of the agreement dated 12.05.2009 by the opposite party no.1 and non-providing of

fund for further construction of boundary wall and non-payment of the ten percent dues of sale consideration which was withheld by

the opposite party no.1 and attempt made by the opposite party no.1 to sell away the land already purchased. The Civil Suit was

instituted by the petitioner against the opposite party no.1 and interim order was passed directing both the parties to maintain status

quo and the opposite parties to the Suit were directed not to alienate the suit land to the outsiders and not to create any 3rd party

interest over the suit lands. It is also apparent that after the interim order was passed in the Civil Suit against the opposite party no.1

and the opposite party no.1 entered its appearance, the complaint petition was filed. In the background of the case, it cannot be said

that the petitioner had any fraudulent or dishonest intention at the time of execution of the agreement on 12.05.2009 rather it appears

that the opposite party no.1 has adopted a short cut method in filing the complaint petition to bring the petitioner to its own terms and

to pressurize him to withdraw the suit in which he was restrained from alienating the suit land to the outsiders and not to create any

3rd party interest. Therefore, there is no element of cheating available in the case and the complaint petition has been filed with an

ulterior motive for wreaking vengeance on the petitioner. I am satisfied that the averment made in the complaint petition and sworn

testimony of the witness examined does not make out the ingredients constituting the offence under section 420 of the Indian Penal

Code. The disputes are essentially civil in nature and it has been given a cloak of criminal offence.

Adverting to the contentions raised by the learned counsels for the respective parties and the documents filed, without any meticulous analysis or

assessment of the reliability or genuineness of the allegations made in the complaint petition, I am of the humble view that the impugned order

suffers from non-application of mind and it would amount to abuse of process if the proceeding is allowed to continue. Therefore, exercising my

inherent power under section 482 of Cr.P.C., I am inclined to accept the prayer made in this application and direct that the impugned order dated

05.09.2013 passed by the learned S.D.J.M., Bhubaneswar in I.C.C. Case No.4995 of 2013 in taking cognizance of offence under section 420 of

the Indian Penal Code and issuance of process against the petitioner stands quashed.

In the result, the CRLMC application is allowed.