The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK Iftekar Asif Khan (In BLAPL No.10105 of 2023) Sk. Abdul Hayee (In BLAPL No.6093 of 2023) Md. Mustakim Raza (In BLAPL No.7586 of 2023) Prakash Kumar Mohapatra (In BLAPL No.7794 of 2023) Md. Sarfaraj Jawed @ MS Jawed (In BLAPL No.11856 of 2023) … Petitioners Mr. L.N. Patel, Advocate(BLAPL No.10105 of 2023) Mr. S.R. Mulia, Advocate(BLAPL No.6093 of 2023) Mr. Y. Dash, Sr. Advocate(BLAPL No.7586 of 2023) Mr. D. Das, Advocate(BLAPL No.7794 of 2023) Mr. Sk. Zafarulla, Advocate(BLAPL No.11856 of 2023) State of Orissa -versus- … Opposite Party Mr. S.S. Kanungo, AGA CORAM: JUSTICE G. SATAPATHY ORDER 23.02.2024 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical Mode). 2. Since these five bail applications arise out of one and same case record, the same are heard together and disposed of by this common order with the consent of
Legal Reasoning
the learned counsel for the parties. 3. These are applications U/S.439 of Cr.P.C. by the petitioners for grant of bail in connection with EOW, Bhubaneswar P.S. Case No.16 of 2023 corresponding to Page 1 of 8 Order No. 12. C.T. Case No.13 of 2023 pending in the file of learned Presiding Officer, Designated Court under the OPID Act, Cuttack, for commission of offences punishable U/Ss.409/ 420/ 467/ 468/ 471/ 120-B of IPC, on the allegation of cheating and misappropriating the money of informant-Bank by forging the loan documents pursuant to collusion/conspiracy between them and thereby, dishonestly causing loss of Rs.4.13 Crores inclusive of interest to the informant-Bank. 4.
Legal Reasoning
Mr. Y. Dash, learned Senior Counsel appearing for the petitioner in BLAPL No.7586 of 2023 has submitted that although there is allegation against the petitioner for availing loan to the tune of Rs.2.23 Crores in collusion with petitioner Sk. Abdul Hayee, the Ex- Branch Manager of Nuapatana Branch of informant-Bank and the petitioner Prakash Kumar Mohapatra, Senior Assistant of Christ College Extension Counter of informant-Bank against the mortgage of fake LIC policy with false surrender value certificate, but the petitioner had closed seven loan accounts by repaying the dues and the subsequent loan taken by the petitioner has already been declared as NPA, however, the petitioner has no intention to defraud the Bank, rather he would repay the loan amount which has been declared as NPA in coming days. Mr. Dash has further submitted that even looking at the allegation on record at the threshold, the offences alleged against the petitioner being triable by Magistrate First Class, no fruitful purpose would be served by keeping the petitioner in custody for further Page 2 of 8 period, especially when the trial has already commenced. It is, however, prayed by Mr. Dash to grant bail to the petitioner by imposing appropriate conditions. 5. Learned counsel for the petitioner in BLAPL No.10105 of 2023 has submitted that although there is allegation against the petitioner for availing of the loan amount of Rs.43 lakhs by producing fake LIC bonds, but the said loan along with interest having been repaid through the account of the petitioner Mustakim Raza on 30.03.2022, no liability can be fastened on the petitioner, but the petitioner in the aforesaid circumstances having already been detained in custody for substantial period may kindly be granted bail. 6. Mr. Sk. Zafarulla, learned counsel for the petitioner in BLAPL No.11856 of 2023 has submitted that the petitioner has already closed seven loan accounts by repaying the loan amount, but he had never intended to cheat or defraud the Bank, rather the petitioner if found to have any outstanding amount would clear the same after being released on bail. Accordingly, Mr. Zafarulla has prayed to grant bail to the petitioner. 7. Mr. S.R. Mulia, learned counsel for the petitioner in BLAPL No.6093 of 2023 has submitted that the petitioner is the retired Branch Manager of Nuapatana Branch of informant-Bank and the loans sanctioned by the petitioner were already closed which has been found mentioned in the FIR and thereby, the petitioner had never caused any wrongful loss to the Bank, but the Page 3 of 8 petitioner having been rotting inside jail custody without any fault, may kindly be granted bail. 8. Mr. Debasnan Das, learned counsel for the petitioner in BLAPL No.7794 of 2023 by enclosing the certified copy of deposition of PW-1 has submitted that although it is alleged against the petitioner for sanction of high value loan without having any authority, but the petitioner having sanctioned the loan on bonafied impression cannot be saddled with the liability for committing the offences of cheating and forgery, however, the petitioner has been detained in custody for a substantial period and in the meanwhile, charge-sheet has already been filed and, therefore, the petitioner may kindly be granted bail. He has also submitted that the deferring of examination-in-chief of PW-1 on the petition of prosecution would give rise to an inference that the trial would continue for a longer period. 9. On the other hand, Mr. S.S. Kanungo, learned AGA has, however, strongly opposed the bail applications of the petitioners by inter-alia submitting that not only the petitioners have committed fraud upon the Bank, but also have dishonestly caused loss to the Bank to the tune of Rs.4.13 Crores. He has further submitted that although petitioners Md. Mustakim Raza, Md. Sarfaraj Jawed @ MS Jawed and Iftekar Asif Khan have repaid loan dues for some loan accounts, but their act of obtaining loan by producing forged LIC documents itself is indicative of the guilty intention of these petitioners to cheat the Bank and the petitioners Sk. Page 4 of 8 Abdul Hayee and Prakash Kumar Mohapatra being the employees of the Bank in collusion had actively assisted with them for committing the forgery and, therefore, the petitioners being involved in cheating of Bank money which is primarily the funds of general public, should not be granted bail. Accordingly, Mr. Kanungo, learned AGA has prayed to reject the bail applications of the petitioners. 10. On the admitted submissions of the parties, it is found that all the offences are being triable by Magistrate First Class, no matter the same are right now being tried by the learned Presiding Officer, Designated Court under the OPID Act, Cuttack, but the petitioners are in custody from the month of April, 2023 and some of the loan accounts have been closed by petitioners Md. Mustakim Raza and Md. Sarfaraj Jawed @ MS Jawed. Furtherm, the petitioner Iftekar Asif Khan has also closed three loan accounts which he availed by repaying the loan amount as stated in the written notes of submission of the learned AGA. It is also brought to the notice of the Court that already trial has commenced and 01 out of 19 CS witnesses has been partly examined, but his further examination by the prosecution was adjourned to 31.01.2024 on the petition of the prosecution, and his examination thereafter, was not completed. In such situation, eventually the time for conclusion of trial would be a guess, but the petitioners cannot be put behind the Bar indefinitely on the expectation of trial would be completed in future. Page 5 of 8 11. One of the important considerations for grant of bail is the tripod test; such as (i) flight risk, (ii) influencing witness & (iii) tampering evidence, but in this case trial having already commenced, the tampering of evidence of witnesses can be curbed by imposing appropriate conditions, at the same time, the apprehension of flight risk can also be equally addressed by directing the petitioners to surrender their passport, if any, and in the event, they have no passport, they may be directed to file an affidavit before the learned trial Court towards the same. Further, the investigation having been completed, the witnesses cannot be influenced. 12. For the reason stated above and taking into consideration the rival submissions and regard being had to the pre trial detention of the petitioners in custody, especially when the trial has already commenced, this Court, without expressing any opinion on the merits of the case and being alive with the principle that bail is the rule, but jail is the exception, grants bail to the petitioners. 13. Hence, the bail applications of the petitioners stand allowed and the petitioners namely, Iftekar Asif Khan, Sk. Abdul Hayee, Md. Mustakim Raza, Prakash Kumar Mohapatra and Md. Sarfaraj Jawed @ MS Jawed are allowed to go on bail on furnishing bail bonds in the sum of Rs.1,00,000/- (Rupees One Lakh) with two solvent sureties for the like amount to the satisfaction of the learned Court in seisin of the case. Besides, the Page 6 of 8 release of petitioners Md. Mustakim Raza and Md. Sarfaraj Jawed @ MS Jawed on bail is subject to further condition of their furnishing property sureties of Rs.5,00,000/- (Rupees Five Lakhs) each free from any encumbrances. All the petitioners are allowed to go on bail on such terms and conditions as deem fit and proper by the learned trial Court with following conditions:- (i) the petitioners shall not commit any offence while on bail, fail unless (ii) the petitioners in the course of trial shall attend the trial Court on each date of posting without their attendance are dispensed with. In case the Petitioners fail without sufficient cause to appear in the Court in accordance with the terms of the bail, the learned trial Court may proceed against for offence U/S.229-A of IPC in accordance with law and the Petitioners the petitioners shall not the (iii) jurisdiction of the trial Court without prior permission till disposal of the case by giving their present address of stay. leave (iv) the petitioners shall inform the Court as well as the IO as to their places of residence during the trial by providing their mobile number(s), residential address, e-mail, if any, and other documents in support of proof of their residence. The petitioners shall not change their address of residence without intimating to the Court and IO. (v) in case the petitioners misuses the liberty of bail and in order to secure their presence, proclamation U/S.82 of Cr.P.C. is issued and the petitioners fail to appear before the Court on the date fixed in such proclamation, then, the learned trial Court is at liberty to initiate proceeding against them for offence U/S.174-A of the IPC in accordance with law. Page 7 of 8 (vi) the petitioners shall appear before the IO as and when required and shall cooperate with the further investigation in the present case. (vii) the petitioners shall surrender their passports, if any, in the Court in seisin of the case till conclusion of trial, unless they are permitted to take back such passports to use for specific purpose during the pendency of the case and in case, the petitioner(s) is/are not having any passport, he/they shall file an affidavit before the trial Court indicating the same. It is clarified that the Court in seisin of the case will be at liberty to cancel the bail of the petitioners without further reference to this Court, if any of the above conditions are violated or a case for cancellation of bail is otherwise made out. In the wake of aforesaid, the subsequent involvement of the petitioners in future for similar type of offences on prima facie accusations may be treated as a ground for cancellation of bail in this case. 14. Accordingly, the bail application Nos.10105,
Decision
6093, 7586, 7794 and 11856 of 2023 stand disposed of. 15. Issue urgent certified copy of the order as per Rules. (G. Satapathy) Signature Not Verified Digitally Signed Signed by: KISHORE KUMAR SAHOO Designation: Secretary Reason: Authentication Location: High Court of Orissa Date: 24-Feb-2024 16:01:04 S.Sasmal Judge Page 8 of 8