Rudra Pratap Mohanty v. … Opp. Party Mr.G.N.Rout, ASC Mr.Manoj Bihari Das, Advocate (for informant) Order No. 07
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK BLAPL No.2509 of 2024 Rudra Pratap Mohanty … Petitioner Mr.S.N.Mishra, Advocate State of Odisha vs … Opp. Party Mr.G.N.Rout, ASC Mr.Manoj Bihari Das, Advocate (for informant) Order No. 07. CORAM: JUSTICE SAVITRI RATHO ORDER 05.07.2024 (Through hybrid mode) 1. This is the third application of the petitioner before this Court under Section 439 of the Cr.P.C. in connection with Madhupatna P.S. Case No.159 of 2023 corresponding to G.R. Case No.472 of 2023, pending in the Court of the learned J.M.F.C.- IV, Cuttack, where chargesheet dated 03.12.2023 has been filed against him for commission of offences punishable under Sections 419/420/506 of IPC, keeping investigation open under Section – 173 (8) of the Cr.P.C. 2. The first bail application of the petitioner in this Court - BLAPL No.12355 of 2023, had been disposed of on 03.11.2023 when investigation was in progress, granting liberty to the petitioner to move for bail before the learned Court below afresh after Page 1 of 15 completion of investigation. 3. The second bail application of the petitioner in this Court – BL APL No.14577 of 2023 had been dismissed on 30.01.2024, considering the nature of allegation against the petitioner, pendency of investigation and his criminal antecedent involving similar offences. Liberty had been granted to the petitioner to move for bail afresh after completion of investigation. 4. The prayer for bail of the petitioner has thereafter been rejected on 12.03.2024 by the learned Addl. Sessions Judge–cum- Special Judge (Vigilance) Cuttack in view of the nature of allegation and the involvement of the petitioner in other cases of similar nature. ALLEGATIONS 5. The allegations against the petitioner are that, the informant after seeing an advertisement that one Rudra Builder was undertaking a project in Mouza Raghunathpur under Nandankanan P.S., contacted the petitioner as his family wanted to purchase a plot. He was shown the land where construction would be made. He paid the petitioner a total sum of Rs.56,49,000/- through Google pay, Phone Pay and RTGS and cash. The petitioner took the money with Page 2 of 15 dishonest intention as he had not taken any steps to arrange a plot or house for the petitioner at any time. When the informant went to the spot which had been shown to him and found that there was no project, he contacted the petitioner who assured that work will start soon. Thereafter, when the informant realized that the petitioner was not going to start any construction and had cheated him, he asked for return of his money, but was threatened by the petitioner. So he
Facts
lodged FIR against him. During investigation, it was found that the petitioner was a computer hardware mechanic. He posed to be a builder to acquire money and had showed a vacant piece of land which did not belong to the informant saying that construction would be made there. So the family of the informant sold their paternal property and out of the proceeds, made payment to the petitioner. The petitioner has been paid Rs.18, 99,000/- through Google pay and phone Pe and Rs.25.00 lakhs through RTGS. After receiving the amount of Rs.25 lakhs from the informant he has purchased a Hyundai Creat car for Rs.15 lakhs from Utkal Hyundai. He has also utilized part of the money for development of his own apartment at Swosti Garden and part of it to buy gold ornaments and pledged some of the gold to avail gold loan and that he has seven bank accounts in different Page 3 of 15 banks. SUBMISSIONS
Legal Reasoning
Advocate General carefully. Prima facie, there is evidence to show that the petitioners played a vital role in sanctioning the proposal for cash credit loan in question. There are materials to show that the properties of certain persons were mortgaged without knowledge of the owners Page 9 of 15 as also by impersonation. Though the Branch Manager, Srikanta Prusty appears to have been primarily responsible for acceptance of the documents and in making a favorable recommendation to his higher authorities still, the complicity of the Manager- Narendra Nayak and Chief Manager-cum-Sanctioning Authority, namely, Birendra Kumar Pattanayak cannot be entirely ruled out. Be that as it may, there is, prima facie, noevidence to show that the petitioners were personally benefited in any manner by such fraudulent transaction. Though it is alleged that huge amounts were diverted / transferred to other persons/firms, yet in the absence of any proof of nexus between the said firms and the present petitioners, it is difficult to prima facie hold that such diversion had enured to their benefit. As it further appears, charge sheet has already been submitted since 11.01.2021 keeping the investigation open under Section 173(8) of Cr.P.C. More than one and half years have elapsed in the meantime. Nothing further has been unearthed against the petitioners, save and except the original allegation. 10. This court is conscious of the law relating to grant of bail in case of economic offences. The Apex Court in the case of Y.S. Jagan Mohan Reddy vs. CBI, reported in (2013) 55 OCR (SC) 1321 held as under; “While granting bail, the Court has to keep in mind the nature of accusations, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character of the accused, circumstances which the accused, reasonable are peculiar to Page 10 of 15 possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of public/State and other similar considerations.” 11. Viewed in light of the ratio as above, this Court finds that the petitioners are senior Bank Officials with both of them being residents of Bhubaneswar and therefore, there is hardly any possibility of their absconding from trial. Moreover, both of them have spent nearly six months in custody. As already stated, chargesheet has already been submitted keeping the investigation open since more than one and half years by now. Such further investigation, if any, has not brought out any other incriminating material against the petitioners.” The Supreme Court in the case of Y.S.Jagan Mohan Reddy (supra) has also held as follows : “14. On going into all the details furnished by the CBI in the form of Status Report and the counter affidavit dated 06.05.2013 sworn by the Deputy Inspector General of Police and Chief Investigating Officer, Hyderabad, without expressing any opinion on the merits, we feel that at this stage, the release of the appellant (A-1) would hamper the investigation as it may influence the witnesses and tamper with the material evidence. Though it is pointed out by learned senior counsel for the appellant that since the appellant is in no way connected with the persons in power, we are of the view that the Page 11 of 15 apprehension raised by the CBI cannot be lightly ignored considering the claim that the appellant is the ultimate beneficiary and the prime conspirator in huge monetary transactions. 15. Economic offences constitute a class apart and need to be visited with a different approach in the matter of bail. The economic offence having deep rooted conspiracies and involving huge loss of public funds needs to be viewed seriously and considered as grave offences affecting the economy of the country as a whole and thereby posing serious threat to the financial health of the country. 16. While granting bail, the court has to keep in mind the nature of accusations, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public/State and other similar considerations. 17. Taking note of all these facts and the huge magnitude of the case and also the request of the CBI asking for further time for completion of the investigation in filing the charge sheet (s), without expressing any opinion on the merits, we are of the opinion that the release of the appellant at this stage may hamper the investigation.
Arguments
6. Mr. S.N.Mishra, learned counsel for the petitioner has submitted that the petitioner is in custody since 08.10.2023 and investigation has been completed and chargesheet dated 03.12.2023 has been filed for the offence under Sections 419/420/506 of the IPC. He also submits that there is no material in the chargesheet to indicate that the petitioner is a builder or contractor or has undertaken any construction of duplex house on behalf of the informant for which it is apparent that the allegations made in the FIR are false and if accepted, it may at most attract civil liability. He has stated that there is no question of settlement between the parties and the petitioner is not in a position to return any amount to the informant. He has also submitted that the real facts are that the petitioner runs an old age home in the name of Sanjibani Brudha Ashram and the informant has made certain donations to the old age home over a period of time but he subsequently made false allegations that he had sold his land in the village and handed over the money to the petitioner for providing a house to him. Though it has been alleged that Rs.56.00 lakhs has been paid to the petitioner Page 4 of 15 but documents are available with regard to payment of Rs.38.00 lakhs only. But Rs.56.00 lakhs of property of the petitioner has been seized by the Investigating Officer who is hand in gloves with the informant. The petitioner should be released on bail as chargesheet has been filed although unnecessary prayer has been made for further investigation. In support of his submissions, he has placed reliance on the following decisions :- i) CRLMC No.3383 of 2013 Dibakar Panigrahi and another v. State of Odisha: 2022 (II) OLR 656, ii) BLAPL No.2192 of 2022 (Narendra Nayak v. State of Odisha) and BLAPL No.2204 of 2022 (Birendra Kumar Pattanayak v. State of Odisha): 2022 (II) OLR-482; and iii) BLAPL No.565 of 2024 (Surjit Kumar Dhal v. State of Odisha (EOW) decided on 18.04.2024. 7. Mr. G.N. Rout, learned Addl. Standing Counsel has submitted that the informant has made specific allegation that the petitioner has taken an amount of Rs.58.00 lakhs from him over a period of time on the assurance of arranging a house for his family in Bhubaneswar. He has received Rs.18, 99,000/- through Google pay and phone Pe and Rs.25.00 lakhs, has been transferred to his account Page 5 of 15 through RTGS. He further submits that investigation reveals that after receiving of Rs.25.00 lakhs the petitioner has brought a Hundai Creta car (the payment has been made to Utkal Hyundai on 17.06.2021 to the tune of Rs.15.00 lakhs). He has also purchased some gold using the same money and by mortgaging this gold has taken loan. The subsisting gold has been seized by the police from his house. He has also submitted that though chargesheet has been submitted, further investigation is continuing and there is likelihood of the petitioner tampering with evidence and influencing witness if he is released on bail. He has also submitted that that the petitioner is a habitual offender as he has two criminal antecedents of similar nature. One of them is -Balianta P.S. Case No.173 of 2016 under Sections 419/420 of the IPC. 8. Mr. Manoj Bihari Das, learned counsel for the informant objects to the prayer for bail and submits that the petitioner pretended to be builder and taken huge amount of money from the petitioner with dishonest intention. Without suspecting anything and with the hope of getting a house in Bhubaneswar, the mother of the informant has sold their ancestral property situated in Paradip and most of the sale proceeds money had been paid to the petitioner. He Page 6 of 15 further submits that as per the seizure list dated 07.10.2023, various gold vouchers has been seized which indicates that the petitioner has taken the money with dishonest intention and has diverted money received from the informant for purchase of gold and has mortgaged part of the gold for obtaining the loan. He has also made payments from this money for his own apartment .He further submits that the petitioner has admitted to have received part of the amount but has taken the false plea that the payments by the petitioner were for managing the old age home. Such plea is absurd as there is no reason why a person will pay such a huge amount for management of an old age home. 9. I have heard Mr.S.N.Mishra, learned counsel for the petitioner, Mr. Manoj Bihari Das, learned counsel for the informant and Mr.G.N.Rout, learned Addl. Standing Counsel for the State, perused the written note of submission filed on behalf of the petitioner and gone through the case diary. The case diary reveals that the FIR was registered on 04.05.2023. The petitioner evaded arrest and was ultimately arrested on 07.10.2023 from Jagannathpur, Pahala. 10. In the case of Surjit Kumar Dhal (supra), this Court has Page 7 of 15 held as follows : “18. Having heard the learned counsels appearing for the respective parties and on a careful examination of the case diary, the statement of the witnesses as well as the materials produced before this Court, this Court is of the considered view that so farthe allegation made in the F.I.R. is concerned, the same pertains to a dispute between two individuals, i.e. the Informant and the Petitioner in the present case. The broad allegation as has been understood by this Court from a careful reading of the record is that the Informant had paid a sum of Rs.1 Crore to the Petitioner, out of which, a sum of Rs.10 lakhs was transferred to the account of the Petitioner and the balance Rs.90 lakhs was paid in cash.The purpose of such payment of amount is to get certain works like getting approval in clearances from the Government agencies/authorities by the Petitioner by using his proximity and contact with some highly placed Government officials. This Court further observes that the Petitioner is in custody that since 06.01.2024, i.e. almost three months. In the meanwhile, the Petitioner must have been interrogated by the I.O. on several occasions. Moreover, it also appears that the allegation is by aspecific individual alleging a specific sum of money paid to the Petitioner for a particular purpose. Therefore, there is no possibility of any enhancement of the cheated amount. It also appears that the Petitioner does not have any criminal antecedent. In view of the above Page 8 of 15 consideration, this Court at this juncture strains itself making any observation on the factual aspect of the case as the same would likely cause prejudice in the mind of the trial court while conducting the trial. However, taking into consideration the surrounding facts and circumstances, the gravity of allegation made in the F.I.R., the period of custodial detention as well as the fact that the Petitioner does not have any criminal antecedent, this Court is inclined to release the Petitioner on bail subject to certain stringent conditions.….. In the case of Dibakar Panigrahi (supra), this Court quashed the order of cognizance in a case under Section – 272/34 IPC, as no report had been obtained from the Public Analyst. In the case of Narendra Nayak and Birendra Kumar Pattanayak (supra), a common order had been passed allowing the prayer for bail of the petitioners. The reasoning of this Court is extracted below : “9. I have considered the rival submissions and have perused the materials on record including the written instructions submitted by the I.O. to the office of the learned
Decision
However, we direct the CBI to complete the investigation Page 12 of 15 and file the charge sheet (s) within a period of 4 months from today. Thereafter, as observed in the earlier order dated 05.10.2012, the appellant is free to renew his prayer for bail before the trial Court and if any such petition is filed, the trial Court is free to consider the prayer for bail independently on its own merits without being influenced by dismissal of the present appeal. In the case of Central Bureau of Investigation vs V. Vijay Sai Reddy: CRIMINAL APPEAL NO. 729 OF 2013 (Arising out of SLP (Crl.) No. 5946 of 2012 decided on 09.05.2013, the Supreme Court while cancelling the bail granted to the respondent by the High court in a case under Section 120-B read with Sections 409, 420 and 477-A of the IPC and Sections 13(2) read with Section 13(1) (c) and (d) of the PC Act. “ 28. While granting bail, the court has to keep in mind the nature of accusations, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public/State and other similar considerations. It has also to be kept in mind that for the purpose of granting bail, the Legislature has used the words "reasonable grounds for Page 13 of 15 believing" instead of "the evidence" which means the Court dealing with the grant of bail can only satisfy it as to whether there is a genuine case against the accused and that the prosecution will be able to produce prima facie evidence in support of the charge. It is not expected, at this stage, to have the evidence establishing the guilt of the accused beyond reasonable doubt.” 11. In the cases of Surjit Dhal, Narendra Nayak and Birendra Kumar Pattanayak (supra), this Court after considering the allegations against the petitioners had granted bail to them. So those cases cannot come to the aid of the petitioner as his prayer for bail has to be considered on its own merits, keeping in mind - the nature of allegations against him, the nature of materials collected against him, the punishment prescribed for the offences, the period he has remained in custody, his conduct, his antecedents, the possibility of securing the presence during trial, cooperation with investigation and the chances of tampering with evidence and influencing witnesses. 12. The case diary reveals that the petitioner could only be arrested after five months after the case was registered against him. It is therefore unlikely that he will co-operate with investigation and the chances of his tampering with evidence cannot be ruled out. Page 14 of 15 This Court expects the investigating agency to complete the investigation expeditiously. 13. Considering the materials available against the petitioner, the amount of money involved, his involvement in two similar cases and as investigation in this case is continuing, I am not satisfied that the petitioner should be released on bail at this stage. 14. The BL APL is dismissed. 15. It is open to the petitioner to move for bail afresh after completion of investigation. 16. If the petitioner has returned or returns any amount to the informant in the meanwhile, it will be without prejudice to his stand in the trial. ………………………... SAVITRI RATHO (JUDGE) Orissa High Court, Cuttack Dated 5th July, 2024 /Bichi Signature Not Verified Digitally Signed Signed by: BICHITRANANDA SAHOO Designation: Secretary Reason: Authentication Location: Orissa High Court Date: 11-Jul-2024 21:17:45 Page 15 of 15