Judgment:
M.M. Das, J.
1. The petitioners in the above criminal misc. case have filed this application under Section 482 Cr.P.C. seeking quashing of the order dated 26.12.2008 taking cognizance of the offences and consequent issuance of process passed by the learned S.D.J.M., Bhubaneswar in I.C.C. No. 4482 of 2008. The petitioner No. 1, who claims to be a Chartered Accountant, is the Chairman and Director of J.S.S. (I.T.) Solutions Private limited, which is a company accredited with 9001:2000 ISO. The petitioner no.3 is the Executive Director and the petitioner no.2 is a Senior Executive of the said company.
2. Undisputed facts in this case are that IDCO allotted Ac. 1.940 decimals of land to M/s. J.S.S. (I.T.) Solutions Pvt. Ltd. On 11.4.2008 and possession in respect of Ac. 1.620 decimals was handed over to the said company in Revenue Plot No. 44 under Khata No. 612 in Revenue mouza, Chandrasekharpur which corresponds to IDCO Plot No. F/103.
The opposite party No. 2-complainant along with twenty others filed C.S. No. 425 of 2006 in the Court of learned Civil Judge (Senior Division), Bhubaneswar against IDCO and State of Orissa playing for declaration of their occupancy right over Plot No. 44 under Khata No. 612 in mouza Chandrasekharpur.
I.A. No. 299 of 2006 was filed in the said suit under Order 39 Rules 1 and 2, C.P.C. for an order of restraint against IDCO and the State of Orissa, which was rejected wide order dated 4.1.2007 passed by the learned Civil Judge (Senior Division), Bhubaneswar.
Against the said order, the opposite party No. 2 along with others preferred F.A.O. No. 120 of 2007 before this Court which was dismissed on 29.7.2008 and this Court found possession of the suit land in favour of the State and IDCO.
Since M/s. J.S.S. (I.T.) Solutipns Private Limited got the land by way of Jease from IDCO and was put into possession, it can be safely inferred that the possession of the company was held in affirmative so far as the suit land is concerned.
Before disposal of the F.A.O., the opposite party No. 2 along with others had filed W.P.(C) No. 7816 of 2008 which was disposed of by this Court on 30.5.2008 with a direction that the parties shall maintain status quo regarding possession and construction over the suit land till disposal of the F.A.O. No. 120 of 2007.
The said order passed in W.P.(C) No. 7816 of 2008 was challenged by the petitioners in Writ Appeal No. 90 of 2008 wherein vide order dated 11.6.2008, this Court directed that the possession of the petitioners in respect of the land in question shall not be disturbed.
Subsequently, the Writ Appeal was allowed and the impugned order passed by this Court in W.P.(C) No. 7816 of 2008 was quashed. The petitioners filed C.S. No. 1134 of 2008 before the learned Civil Judge (Senior Division), Bhubaneswar alleging that the opposite party No. 1 along with his henchmen created disturbance in the peaceful possession of the petitioners wherein the learned Civil Judge (Senior Division), Bhubaneswar by an ex parte order injuncted the opposite party No. 2 and others from interfering with the possession of the petitioners.
Vide order dated 3.12.2008, the order of injunction was converted to ah order of status quo and while doing so, the learned Civil Judge (Senior Division), Bhubaneswar found possession in favour of the State Government and the petitioners. It was further held that the petitioners would suffer irreparable loss as they have already invested huge amount of money for setting up the I.T. Unit.
Though the possession was found in favour of the petitioners, but as the order of injunction was converted to that of a status quo, the petitioners preferred F.A.O. No. 97 of 2008 before the learned District Judge, Khurda, who dismissed the same, but there was no finding rendered by the District Judge in regard to possession.
In the meanwhile, the opposite party No. 2 and others preferred a Civil Review against the judgment of this Court in F.A.O. No. 120 of 2007 and the said review petition i.e. RVWPET No. 142 of 2008 was dismissed as withdrawn for which the finding of possession of this Court in favour of the predecessors of the petitioners stood confirmed.
Alleging that the opposite party No. 2 and his henchmen created disturbance in the possession of the petitioners, the company lodged an F.I.R. against Trilokya Rout, Nrusingha Rout, Sambhu Rout, Sudarsana Rout and others (Annexure-2) and accordingly, a case was registered implicating them for commission of offences under Sections 147/148/294/323/427/149 I.P.C. The F.I.R. was lodged on 14.10.2008.
Since the opposite party No. 2 and his henchmen created lawlessness, the Commissioner-cum-Secretary to Government vide D.O. No. 3503 dated 20th October, 2008 requested the Commissioner of Police, Bhubaneswar to initiate special measures to curb the illegal activities caused by the Rout family. A request was also made to provide adequate protection to the petitioner No. 1 and the J.S.S. Group, a home growth company. The Managing Director, IDCO vide D.O. No. 19765 dated 21st October, 2008 requested the Police Commissioner, Bhubaneswar to take coercive measures against the miscreants (Rout family) so as to curb the disturbing activities in the area (Annexure-3 series).
At the instance of petitioner Nos.1 and 3, a proceeding under Section 144 Cr.P.C. was initiated and vide order dated 1.11.2008, the learned Addl. D.C.P.-cum-Executive Magistrate, Bhubaneswar directed the opposite party No. 2 and his henchmen not to change the nature and character of the suit land. The said order was later confirmed.
3. As the matter stood thus, the opposite party No. 2 filed a complaint case being I.C.C. No. 4482 of 2008 against the petitioners before the learned. S.D.J.M., Bhubaneswar. In the said complaint petition, the opposite party No. 2 ventured with great deal of audacity to mention the following:
In the aforesaid First Appeal, the Hon'ble Court also unfortunately fell into the same trap and could not appreciate that the appellants (complainant and his co-sharers) have sought for declaration of their occupancy status over the suit Plot No. 44 appertaining to Khata No. 612 of mouza Chandrasekharpur by virtue of their being the settled raiyat of undivided mouza Patia from the time of their forefathers, yet has categorically held in para-12 of the judgment in F.A.O. No. 120/2007 that although the appellants have no title but only possession over the suit land.
4. It was further alleged that on 14.10.2008, the petitioners were found constructing another room towards south-eastern corner of the suit plot for which they are said to have encroached over the suit plot and were constructing another room. It was alleged that the petitioners were found armed with deadly weapons, such as, sword, bhujali, lathi and iron rod. As soon as they saw the complainant, the petitioner No. 1 abused in filthy language and other petitioners armed with deadly weapons echoed. It was further alleged that the petitioner Nos. 1 and 2 by using their respective weapons threatened to slit through the neck of Sambhu Rout. In the meanwhile, some other villagers and co-sharers arrived at the spot for which the petitioners being afraid refrained themselves from using force. It was further alleged that though F.I.R. was lodged, the same was not accepted by the police for which this complaint.
5. Basing on the above allegations made in the complaint petition the learned S.D.J.M., Bhubaneswar by the impugned order relying on the initial statement and he documents available on record took cognizance of the offences under Sections 294/447/506/34 I.P.C. against the petitioners and issued summons to them. Being aggrieved by the said order of taking cognizance of the offences, the petitioners have preferred this application.
6. Mr. Samananda Mohapatra, learned senior counsel appearing for the opposite party No. 2-complainant vehemently urged that since a prima facie case is well made out in the complaint petition as well as in the initial deposition of complainant, no illegality can be attributed to the impugned order and the said order should not be q> cashed having been passed within the parameters of law.
7. Mr. N. Mohapatra, learned Counsel appearing for the petitioners, on the contrary, strongly urged that the impugned order is not deferrable and cannot be sustained as undisputed facts of the case clearly reveal that the dispute is one which can be categorised as a civil dispute and in such admitted position setting the criminal law into emotion would tantamount to the abuse of the process of law.
8. In the case of Trllok Singh and Ors. v. Satya Deo Tripathi : AIR 1979 SC 850, the Supreme Court while dealing with the dispute between the parties relating to purchase of a Truck by the complainant in which a hire-purchase agreement was entered into between the complainant and the accused, which was a Finance Corporation, analysing the facts of the said case, held that it was of the view that it was not a case where any process ought to have been directed to be issued against any of the accused. On the well settled principles of law, it was a very suitable case where the criminal proceeding ought to have been quashed by the High Court in exercise of its inherent power as the dispute raised in the case was purely of a civil nature even assuming the facts stated by the complainant to be substantially correct. In the case of Indian Oil Corporation v. NEPC India Ltd. and Ors 2006 (II) OLR (SC) 659, the Supreme Court laid down the principles which can be applied for quashing a complaint and a criminal proceeding after referring to various earlier decisions as follows:
(i) A complainant 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 mala fides/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 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 civil proceedings 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.
9. In the case of Suneet Gupta v. Anil Triloknath Sharma and Ors. (2008) 40 OCR (SC) 578, the Supreme Court confirmed the finding of the High Court by holding that the High Court was right in coming to the conclusion that a civil dispute pure and simple between the parties was sought to be converted into a criminal case only by resorting to pressure tactics and by taking police help which was indeed abuse of process of law and had been rightly prevented by the High Court.
10. It is a common knowledge that when the parties are litigating over the disputes, which are purely civil in nature, the tendency of the litigants in such dispute always leads to setting the criminal law into motion against the adversary by way of pressure tactics and as an outcome of vengeance. This may be a result of wrong advice given to any of the parties or with the sole intention of harassing the adversary.
11. Examining the facts of this case in the touch stone of the ratio of the above case laws, the inevitable conclusion would be that the dispute between the parties is purely civil in nature and the complaint petition filed by the opp.party No. 2 undoubtedly amounts to an abuse of the process of law. The tenor of the averments made in the complaint petition also supports the fact that the dispute is purely civil in nature.
12. This Court, therefore, has no hesitation to quash the complaint case being I.C.C. No/482 of 2008 and consequent issuance of process against the petitioners by the learned S.O.J.M., Bhubaneswar. The said complaint case being I.C.C. No. 4482 of 2008 pending before the learned S.D.J.M., Bhubaneswar, therefore, stands quashed.
The CRLMG is accordingly allowed.