KUNJA BIHARI PATRA Vs. STATE OF ORISSA

JUDGEMENT

(1.) The petitioner, being accused no.1 in ICC Case No.217 of 2016 pending in the Court of learned S.D.J.M., Angul, has filed this application seeking to quash order dated 17.12.2016, by which direction has been given to IIC, Angul Police Station for registration of the case and causing investigation as per the provisions contained in Section 156(3) of Cr.P.C.

(2.) Brief facts of the case, as revealed from the complaint petition filed by opposite party no.2, as complainant before the Court below, are as follows:- Opposite party no.2-complainant named and styled as "M/s. Jaydurga Transport" is a proprietorship firm and the owner of heavy earth moving equipment. Petitioner-accused no.1 is the owner of "Hindustan Machinary", a sub-contractor of accused no.2, who is the contractor of Railway authority and was awarded with the contract work of doubling the railway track/earth work from Handapa to Nakchi railway line, along with other contract work. During course of business, petitioner- accused no.1, along with other accused persons, approached opposite party no.2-complainant for supply of its heavy earth moving equipment for construction of doubling railway track work from Handapa to Nakchi on hire basis. After due negotiation amongst the parties, opposite party no.2-complainant engaged its Tata Hitachi 200 (chain mounting) and three numbers of Haiwa on hourly/monthly hire basis from 24.04.2016 under the accused persons in the said work.

(3.) Mr. S.Pattnaik, learned counsel appearing for the petitioner-accused no.1 strenuously urged that on the basis of factual matrix, it may be a case under Section 138 of N.I. Act, because of dishonor of the cheque/ instrument for insufficiency of funds, but not a case under Sections 418 , 420 read with 34 of IPC . It is contended that the learned Magistrate has committed error while invoking jurisdiction under Section 156(3) of Cr.P.C., inasmuch as he has not made enquiry under Section 202 of Cr.P.C., and without making such enquiry sent the complaint petition to IIC, Angul P.S. to register the same as FIR and cause investigation, which cannot sustain in the eye of law. Thereby, the order impugned dated 17.12.2016 cannot sustain in the eye of law and the same has to be quashed, including the consequential criminal proceeding.