The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK BLAPL No.8729 of 2023 Santosh Kumar Rath … Petitioner Mr. G. Dash, Advocate -versus- State of Orissa … Opposite Party Mr. A.K. Nayak, Advocate (OPID) Order No. 09. CORAM: JUSTICE G. SATAPATHY ORDER(ORAL) 20.05.2024 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical Mode). 2. This is a bail application U/S.439 of Cr.P.C. by the petitioner for grant of bail in connection with EOW Bhubaneswar P.S. Case No.17 of 2023 corresponding to C.T. Case No.04 of 2023 pending in the file of learned Presiding Officer, Designated Court under the OPID Act, Cuttack, being charge-sheeted for commission of offences punishable Under Sections 406/ 420/ 467/ 468/ 471/ 120-B of IPC read with Section 6 of Odisha Protection of Interest of Depositors (In Financial Establishments) Act, 2011 (In short the ‘OPID’ Act), on the allegation of cheating the informant and others by not supplying any flats to them even after taking away huge sum of money on the pretext of providing flats in the project “Utopia Housing Project” of M/s. Mishra Creation Pvt. Ltd., of which the petitioner is the Additional Director (AD), by forging documents. Page 1 of 6 3.
Legal Reasoning
In the course of hearing of bail application, Mr. Gopabandhu Dash, learned counsel for the petitioner submits that although the petitioner was ceased to be the Additional Director of M/s. Mishra Creation Pvt. Ltd. since 23.12.2021 and the allegations of investment in M/s. Mishra Creation Pvt. Ltd. having been effected thereto, the petitioner cannot be said to have any liability for any offence. It is further submitted by referring to the cross examination of PW1 that the informant has not paid any amount to the present petitioner and thereby, the present petitioner’s involvement cannot be prima facie considered and the petitioner having already been detained in custody with commencement of trial, the petitioner may kindly be granted bail. Mr. Dash relies upon the decision in Sanjay Chandra Vrs. Central Bureau of Investigation; (2012) 1 SCC 40 and Satender Kumar Antil Vrs. Central Bureau of Investigation and another; (2022) 10 SCC 51 while praying to grant bail to the petitioner. 4. On the other hand, Mr. Anil Kumar Nayak, learned counsel appearing for the OPID while opposing the prayer of the petitioner seriously submits that the petitioner was an Additional Director of the company since 01.09.2015 to 23.12.2021 and in the meantime, he has not only induced the depositors to deposit the amount in the company on the assurance of providing them flats, but also has ultimately cheated them by Page 2 of 6 entering into conspiracy with co-accused persons and forging documents. Mr. Nayak accordingly, prays to reject the bail application of the petitioner. 5. After having considered the rival submissions upon perusal of record, it appears that the petitioner was the Additional Director of the company M/s. Mishra Creation Pvt. Ltd., which had launched a housing project namely “Utopia Housing Project” and, accordingly, the petitioner was alleged for collecting money from the intending home buyers to provide flats to them in the said project since the year 2015, but till today, no flat has been provided to any of the buyers. In the investigation by EOW Bhubaneswar, it is alleged that more than hundreds of investors have booked flats in the said project by paying 95% of the total project cost after taking loan from different banks and the loan amount has been paid to the company. It has also been alleged that the petitioner and co-accused persons have allegedly made multiple transaction in respect of same flats with forged documents by agreements, but even after seven years of project, the petitioner is yet to supply a single flat to any of the investor. Learned counsel for the OPID has also produced one written instruction received from the Investigating Officer, wherein a tabular chart showing names of 41 investors paying a sum of Rs.6,05,44,573/- to the company of the petitioner. Further, it is also alleged that the petitioner had arranged one builder namely Arjun Kumar Rout of Page 3 of 6 Maa Shakti Construction for construction of some part of the blocks of project “Utopia Housing Project”, but the said contractor was having a due of Rs.83,79,454/- to be paid by the M/s. Mishra Creation Pvt. Ltd. for the construction work, but the petitioner has evaded to pay such amount. It is, however, true that PW1-informant has already been examined, but in this case, a number of persons have invested money and, thereby, unless some witnesses who have invested money in the company of the petitioner are examined in the trial, there is every chance of tampering of the evidence by the petitioner. The petitioner has, of course, relied upon the decision in Satender Kumar Antil (supra), but while delivering the judgment in the aforesaid case, the apex Court has relied upon the decision in P. Chidambaram Vrs. Directorate of Enforcement; (2020) 13 SCC 791 to observe that even economic offences would fall under the category of “grave offence” and in such circumstance, while considering the application for bail in such matters, the Court will have to deal with the same, being sensitive to the nature of allegation made against the accused and one of the circumstances to consider the gravity of the offence is also the term of sentence that is prescribed for the offence the accused is alleged to have committed. In this case, it is not disputed that the petitioner has been charge-sheeted for offence under Section 467 of IPC, which prescribes maximum imprisonment up to life. Page 4 of 6 Further, in Sanjay Chandra (supra), the apex Court in Paragraph-40 of the judgment has observed that the grant or refusal to grant bail lies within the discretion of the Court and the grant or denial is regulated, to a large extent, by the facts and circumstances of each particular case. 6. From a conspectus of allegation on record, it cannot be disputed that the allegation against the petitioner is for commission of economic offence. For grant of bail in economic offence, law has been well settled by a plethora of decisions of apex Court including Nimmagada Prasad Vrs. Central Bureau of Investigation; (2013) 7 SCC 466 and Y.S. Jagamohan Reddy Vrs. Central Bureau of Investigation; (2013) 7 SCC 450, wherein it have been held that economic offences constitute a class apart and need to be visited with a different approach in the matter of bail and the economic offence having deep rooted conspiracies and involving huge loss of public funds need to be viewed seriously and considered as a grave offence affecting the economy of the Country as a whole and thereby posing serious threat to the financial health of the Country. 7.
Decision
In view of the above facts as alleged against the petitioner and taking into consideration the rival submissions keeping in view the nature and gravity of the offences alleged against the petitioner and regard being had to the mode and manner of committing the Page 5 of 6 offences by the petitioner as alleged to defraud a number of innocent home buyers or investors by collecting huge sum of money from them on the pretext of supplying flats, but ultimately not providing a single flat to any of the buyers, even after seven years of launching the project, this Court is not inclined to grant bail to the petitioner at this stage, when the trial has just begun and number of important witnesses are yet to be examined. Hence, the bail application of the petitioner stands rejected. The petitioner, however, may renew his prayer for bail after examination of some more important witnesses. Accordingly, the BLAPL stands disposed of. Issue urgent certified copy of the order as per 8. 9. Rules. (G. Satapathy) Judge Subhasmita Signature Not Verified Digitally Signed Signed by: SUBHASMITA DAS Designation: Sr. Stenographer Reason: Authentication Location: High Court of Orissa Date: 21-May-2024 14:19:04 Page 6 of 6