M/s. D. Panda, B. K. Das, A. Rout and M.K. Mohanty, Advocates v. For Opp. Party
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK BLAPL No. 10497 of 2023 Application for bail under Section 439 of Code of Criminal Procedure, 1973. --------------- Bijendra Rabindra Thakur@ Prince …. Petitioners & Another -versus- State of Odisha …. Opp. Party Advocate(s) appeared in this case:- _______________________________________________________ For Petitioners : M/s. D. Panda, B. K. Das, A. Rout and M.K. Mohanty, Advocates Vs. For Opp. Party
Legal Reasoning
: Mr. S.K. Mishra, (Additional Standing Counsel) M/s. R.K. Pattnaik, B.C. Parija, L. Behera and K. K. Jena, Advocates (For Informant) __________________________________________________________ CORAM: JUSTICE SASHIKANTA MISHRA
Decision
ORDER 19th April, 2024 SASHIKANTA MISHRA, J. The petitioners are in custody since 18.07.2023 in connection with Badagada P.S. Case No. 388 of 2023 Page 1 of 7 corresponding to C.T. Case No. 662 of 2023 pending in the Court of learned J.M.F.C-IV for the alleged commission of the offences under Sections 420/468/471/34 of IPC. 2. The prosecution case is that one Sarmishtha Rath lodged FIR before the IIC of Badagada Police Station, Bhubaneswar on 15.07.2023, inter alia, alleging that being convinced by the petitioners, she invested huge amount in a purported business venture by transferring a total of Rs.2.76 crores on different dates. It is stated that basing on her preliminary investigation, she suspected that the petitioners were indulging in some kind of financial fraud and as such, she lodged the FIR giving details of the payments made by her. On such FIR being lodged, the aforementioned case was registered and the petitioners were taken into custody. 3. Heard Mr. Devashis Panda, learned counsel for the petitioners, Mr. S.K. Mishra, learned Additional Standing Counsel for the State and Mr. K.K. Jena, learned counsel appearing for the informant. Page 2 of 7 4. Mr. D. Panda would argue that all the offences alleged against the petitioners are triable by Magistrate and punishable with imprisonment for term upto seven years. As such, the investigating agency ought to have complied with the provision under Section 41-A of Cr.P.C. instead of arresting the petitioners. On merits, Mr. Panda would argue that the informant and her husband transferred more than Rs.1 crore towards investment in the company on their own volition and inquiry. Out of the said amount, substantial amount has been returned by the petitioners to them which they have suppressed before this Court. Even otherwise, the prosecution case accepted on face value, reflects a breach of contract, which being civil in nature has been given a criminal colour only for the purpose of putting pressure on the petitioners with the ultimate aim of recovery of the amount. 5. Mr. S.K.Mishra, learned State Counsel has opposed the prayer for bail by submitting that there is clear proof of transfer of at least Rs.2.82 crores by the informant to the bank accounts of the petitioners. The petitioners by falsely Page 3 of 7 projecting a company defrauded the informant and her husband and since they had the intention of cheating from the very beginning, no leniency should be shown to them. 6. Mr. Jena, learned counsel appearing for the informant also opposes the prayer for bail by submitting that the informant had invested huge amount of money on good faith believing in the words of the petitioners with the hope of getting higher returns but she was duped by them. Since the entire life savings of the informant and her husband have been utilized they have been subjected to undue penury being cheated by the petitioners. 7. The prosecution case being as narrated hereinbefore, it is seen that the informant has filed as many as three affidavits, i.e, on 15.12.2023, 16.01.2024 and 05.04.2024 before this Court stating the amounts transferred to the accounts of the petitioners on different dates. She has categorically denied receiving any amount from the petitioners. The husband of the informant has also filed an affidavit on 02.02.2024 stating the amount paid by him. It is stated that out of Rs.29,18,300/- paid by him, the Page 4 of 7 petitioners have returned Rs.20,93,400/- leaving an outstanding amount Rs.9,79,300/-. However, nothing has been repaid out of Rs.2,82,51,000/-. As against these affidavits, an affidavit has been filed being sworn by the advocate’s clerk of the petitioners’ counsel stating that a sum of Rs.28 lakhs was returned to the informant between 01.02.2023 to 29.04.2023 and Rs.21,50,000/- to her husband between 17.05.2022 to 16.06.2023. Copies of the relevant bank statements have been enclosed to such affidavit. The I.O. has also filed an affidavit on 25.01.2024 indicating the transfer of different amounts by the informant to the account of the petitioners. Thus, this Court finds that there is evidence of huge amount being transferred from the informant’s account to the accounts of the petitioners. Correspondingly, there is also some proof of transfer of nearly Rs.41 lakhs by the petitioners to the informant and her husband. Undoubtedly, a prima facie case exists against the petitioners. Investigation being complete, charge sheet has already been submitted on 15.09.2023. Under such circumstances, there seems to be Page 5 of 7 no justification to detain the petitioners in custody any further. Accepting the prosecution case as laid, this Court finds considerable force in the contention advanced by Mr. Devashis Panda that it is basically a monetary dispute between private individuals and not an offence affecting the public at large. It is well settled that the machinery of criminal court cannot be resorted to for the purpose of recovery of money, which can obviously be done through a civil proceeding. Be that as it may, fact remains that the petitioners have received substantial amount of money from the informant and have also returned some amount. As already stated, charge sheet has already been submitted. Under such circumstances, their further detention in custody appears to be unnecessary. 8. For the foregoing reasons therefore, I am inclined to allow the prayer for bail. Let the petitioners be released on bail on such terms and conditions as the court below may deem fit and proper to impose including the following condition:- Page 6 of 7 i. The petitioners shall furnish cash security of Rs.20 lakhs in all of which Rs.5 lakhs shall be paid upfront at the time of release and the remaining Rs.15 lakhs shall be paid in fifteen installments. Such deposit shall be without prejudice to the rival claims. 9. The BLAPL is disposed of accordingly. ..……..………………….. Sashikanta Mishra, Judge Orissa High Court, Cuttack, The 19th April, 2024/ B.C. Tudu, Sr.Steno Signature Not Verified Digitally Signed Signed by: BHIGAL CHANDRA TUDU Designation: Senior Stenographer Reason: Authentication Location: Orissa High Court, Cuttack Date: 22-Apr-2024 19:38:43 Page 7 of 7