SIVA DUTTA SHARMA Vs. STATE OF ORISSA

JUDGEMENT

(1.) I have heard learned Counsel for the petitioner, learned Addl. Government Advocate and learned Counsel for opposite party No. 2 on 4th February. The case was then posted to today for further argument on points of law only. At this stage, learned Counsel for the petitioner filed a memo to the effect that the petitioner wants to withdraw Crl. Misc. Case as not pressed seeking liberty of this Court to raise all the grounds before the Court below at the time of framing of charge. Hence, he prays that the Crl. Misc. Case may be accordingly disposed of as not pressed. Copy of the Memo has not been served on the learned Addl. Government Advocate nor on the learned Counsel appearing for opposite party No. 2. It is further seen that while disposing of the Special Leave Petition No. 6110 of 2008, Hon'ble the Supreme Court has requested this Court to dispose of this Criminal Misc. Case as expeditiously as possible, but not later than three months from the date of passing of the order dated 10.11.2009. It is further observed by the Hon'ble Supreme Court that if for any reason, the learned Judge, before whom the matter is stated to be pending as part-heard, finds it difficult to dispose it within the said time, he shall forthwith release the same from his Court, whereafter the Hon'ble Chief Justice will assign the case to some other Judge for disposal within the stipulated time. Such observations clearly indicates that the Hon'ble Supreme Court directed that the case should be disposed of on merit. Thereafter, the case was taken up for hearing on many occasions and it was part-heard. The matter was assigned to this Court on 03.02.2010 and it was listed on 04.02.2010 in view of the fact that the Hon'ble Supreme Court has given a time limit to dispose of the application within three months. The case was listed on 04.02.2010, when it was taken up for hearing. This Court heard the case extensively on 04.02.2010, It is posted today for further hearing. At such stage, the learned Counsel for the petitioner, as afore-stated, filed a Memo for withdrawal of the Criminal Misc. Case. The learned Addl. Government Advocate and learned Counsel for opposite party No. 2 raised objections to the second part of the Memo, wherein the petitioner has sought liberty to raise all such grounds raised at this stage, at the time of framing of charge. The Memo filed by the learned Counsel for the petitioner after a substantial part of the argument is misconceived. In such view of the matter, the Court feels inclined to dispose of the application under Section 482 of the Code of Criminal Procedure, 1973, hereinafter referred to as the 'Code for brevity, on merit.

(2.) The undisputed fact of the case was that information was lodged before the Officer In-charge of Barbil Police Station by the authorised representative of the Monnet Ispat & Energy Ltd., Santikunj on the allegation that the petitioner has committed the offence of cheating along with the other offences. The said information was registered as F.I.R. for the alleged offence under Sections 420, 467 and 468 of the Indian Penal Code, 1860 (hereinafter referred to as the "I.P.C." for brevity). The petitioner was arrested by the Investigating Officer on 16.03.2007. On being produced before the learned J.M.F.C., Barbil, he moved for grant of bail before the learned Magistrate, which was rejected. Then an application was preferred before the Sessions Judge and later an application was preferred to this Court under Section 439 of the Code. At the same time another application was filed under Section 482 of the Code, which was registered as Crl. Misc. Case No. 1044 of 2007. The said application was later withdrawn alter filing of the charge sheet. Thereafter, on 21.12.2007, the present application has been made challenging the cognizance taken by the learned J.M.F.C., Barbil for the offence under Section 420, I.P.C. on the report of the Investigating Officer.

(3.) In course of argument, learned Counsel for the petitioner has submitted that there is no prima facie case against the petitioner for taking cognizance under Section 420, I.P.C. The second contention was that the matter arises out of a contract, which is purely civil in nature for which an arbitration proceeding has been initiated, and in such dispute a criminal case should not have been initiated nor the Magistrate should have taken cognizance of the offence under Section 420, I.P.C. Learned Counsel for the opposite party, on the other hand, submitted that this is not a matter purely civil in nature, rather a criminal implication is also forthcoming.