L. Mohapatra, J.
1. The Petitioners are the accused persons in I.C.C. No. 11 of 1993 pending before the Learned J.M.F.C, Aska. They have filed this application under Section 482, Cr.P.C. challenging the order dated 2.3.2002 passed by the Learned Additional Sessions Judge, Bhanjanagar-Aska in Criminal Revision No. 30 of 2002 dismissing the same and confirming the order of the Learned J.M.F.C., Aska dated 10.2.1995 framing charge for commission of offences under Sections 420 and 34 of the Indian Penal Code.
2. The case of the Complainant-Opposite party No. 1 is that the Petitioner and two others are the Officers of the Public Welfare Department. An agreement was executed between the Complainant and the Petitioner for construction of a fair-weather road. In terms of the agreement, it is alleged that the Complainant executed the work. It is further alleged that on 26.12.1 990 the Petitioner called the Complainant and sought for help stating that unless the Complainant arranged Rs. 25,000/- to purchase wooden planks, the work cannot be completed in time and they also promised to pay back the money. Accordingly, the Complainant paid a sum of Rs. 25,000/- to the Petitioner. The grievance of the Complainant is that though promise was made for refund of the money, the same has not been paid back and those Officers have been transferred to different places and one of the Officers who was Junior Engineer at the relevant time refused to return the money. On the basis of such allegation, cognizance was taken and thereafter charge has also been framed in the impugned order passed by the Learned Magistrate for commission of offences under Sections 420 and 34 of the Indian Penal Code. The said order framing charge was challenged in Revision and the Revision having been dismissed, the present application under Section 482, Cr.P.C. has been filed.
3. Miss. Sanju Panda, the Learned Counsel appearing for the Complainant Opposite party raised a preliminary objection regarding maintainability of the application. According to the Learned Counsel for the Complainant, a second Revision is bar and the application under Section 482, Cr.P.C. is not maintainable. The Learned Counsel ,for the Petitioner submitted that when there is gross miscarriage of justice, the High Court can exercise inherent jurisdiction under Section 482, Cr.P.C. even if a Revision was filed before approaching the High Court. The Learned Counsel appearing for the parties also relied upon a decision of the Apex Court in this regard in the case of Prasanta Kumar Dey v. State of West Bengal reported in (2003) 25 O.C.R. (S.C.) 500. This case arose out of a proceeding under Section 125 Cr.P.C. The Learned Magistrate before whom the petition was filed allowed maintenance of Rs. 800/- to the wife and further sum of Rs. 800/- to the child. The order was an ex parte order passed by the Learned Magistrate. Thereafter, an application was filed by the husband to set aside the said ex parte order and at a subsequent stage, the said application was not pursued and it was dismissed. A Criminal Revision was filed challenging the said order under Section 397 Cr.P.C. before the Learned Sessions Judge, which was dismissed. The husband thereafter filed an application under Section 482 Cr.P.C. before the High Court seeking for quashing of the ex parte order passed by the Learned Magistrate as well as the order passed in the Revision. The said application under Section 482 Cr.P.C. having been dismissed, the matter was carried to the Apex Court. Reliance was placed by the Learned Counsel 'or the wife and the child on an earlier decision of the same Court in the case of Krishnan v. Krishnaveni reported in (1997) 13 OCR (S.C.) 41. The Court even on the face of the said reported case held that the inherent power of the High Court is still available under Section 482 of the Code of Criminal Procedure and it is paramount power of continuous superintendence of the High Court and the High Court will be justified in interfering with any order leading to miscarriage of justice and in setting aside the order of the courts below, if necessary to serve the ends of justice. In the case of Kailash Verma v. Punjab State Civil Supplied Corporation and Anr. reported in (2005) Supreme Court Cases 571 the Apex Court again reiterated the same position of law and held that the High Court can entertain a petition under Section 482 when there is serious miscarriage of justice and abuse of the process of the Court or when mandatory provisions of law are not complied with and when the High Court feels that the inherent jurisdiction is to be exercised to correct the mistake committed by the Revisional Court. The Learned Counsel for the Complainant relied upon a decision of the Apex Court in the case of Krishnan v. Krishnaveni (supra). The said decision was taken note of by the Apex Court in the case of Prasanta Kumar Dey v. State of West Bengal (supra) and the Apex Court held that the inherent jurisdiction under Section 482 Cr.P.C. is available to the High Court to interfere with any order leading to miscarriage of justice. In view of the aforesaid decision, it cannot be said that an application under Section 482 Cr.P.C. before the High Court is not maintainable against a Revisional Order. The Court is required to see whether the order impugned leads to gross miscarriage of justice or not.
4. So far as allegations made in the complaint are concerned, it is evident that the Complainant had entered into an agreement with the Petitioner for execution of certain works. In course of executing the work, it is alleged that the Petitioner asked for payment of Rs. 25,000/- to complete the same in time and promised to return the money. At a later stage, the money was not returned and the Petitioner and two others Officers were transferred to different places.
It is also alleged that one of the Officers who was working as a Junior Engineer at the relevant time refused to refund the money. Under these circumstances, the Court now called upon to see as to whether the ingredients for commission of offence under Section 420 of the Indian Penal Code are available or not to frame charge.
The Apex Court in the case of Hiralal Hari Lal Bhagwati v. C.B.I., New Delhi reported in (2003) 25 OCR (SC) 770 held that applicability of offence under Section 420 of the Indian Penal Code depends upon existence of fraudulent or dishonest intention at the time of making the promise or representation is necessary. In the aforesaid case the C.B.I. initiated a criminal proceeding alleging commission of offence under Section 120-B read with Section 420 of the Indian Penal Code against the accused persons on the ground that the accused persons in conspiracy with the Director, Gujarat Cancer and Research Institute as well as the Secretary of Gujarat Cancer Society and two others have cheated the Government of India in terms of evasion of customs duty and by concealment of facts obtained customs duty exemption certificate in respect of MRI and some other lithotripsy machines. The matter came up before the High Court in an application under Section 482 Cr.P.C. and the application having been rejected, the matter was carried to the Apex Court. The Court interpreting Section 420 of the Penal Code observed that existence of fraudulent dishonest intention at the time of making the promise or representation is necessary to initiate the criminal proceeding. In the case of Ajay Mitra v. State of M.P. and Ors. reported in (2003) 25 OCR (SC) 226 the Apex Court held that in order to constitute the offence of cheating, the intention to deceive should be in existence at the time when the' inducement was offered. If the accused at the time he promised to pay cash against delivery had an intention to do so, the fact that he did not pay would not convert the transaction into one of cheating. This case also arose out of an order passed by the Madhya Pradesh High Court rejecting an application under Section 482 Cr.P.C. challenging initiation of a criminal proceeding. In the case of Vijaya Rao v. State of Rajasthan and Anr. reported in (2006)33 OCR (SC) 230 the Apex Court took similar view that allowing criminal proceedings against Appellant would result in abuse of process of Court and accordingly quashed the same.
5. In the present case as is evident the Complainant is totally silent about any dishonest intention of the Petitioner at the time of receiving the money. There is nothing in the complaint to show that the Petitioner had dishonest intention of not paying back the money alleged to have been taken from the complainant. In absence of any dishonest intention at the very beginning of the transaction, an offence under Section 420 of the Indian Penal Code cannot be made out. I am, therefore of the view that in absence of the prima facie materials for the purpose of holding that the Petitioner had dishonest intention of not paying back the money at the time of transaction, no charge for commission of offence under Section 420 of the Indian Penal Code can be framed. On the other hand, it appears that the proceeding may be of a civil nature. Lam, therefore of the view that continuance of the proceeding for the alleged commission of offence under Section 420 of the Penal Code would result in miscarriage of justice and it also amounts to abuse of process of the Court.
6. I accordingly allow the application and set aside the impugned order passed by both the Courts below.