The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK ABLAPL NO.12968 OF 2023 Dilip Kumar Mohanty ..... -versus- Republic of India (Enforcement Directorate) ..... Petitioner Represented By Adv. - Mr.R.P. Kar, Sr. Advocate Mr. A.N. Ray, Advocate Opposite Party Represented By Adv. - Mr.Bibekananda Nayak, (Directorate of Enforcement) CORAM: THE HON'BLE MR. JUSTICE D.DASH ORDER 15.04.2024 Order No. 06. 1. This matter is taken up through hybrid arrangement (virtual/physical mode). 2. The Petitioner apprehending his arrest and likely detention in connection with Crl. Misc. (PMLA) Case No.34 of 2016 on the file of learned Sessions Judge-cum-Special Court, Khurda at Bhubaneswar has filed this application under Section 438 of the Code of Criminal Procedure, 1973 with a prayer for his release on bail in the above event. 3. Heard R.P. Kar, learned Senior Counsel for the
Legal Reasoning
Petitioner and Mr. B. Nayak, learned counsel for the Enforcement Directorate. Page 1 of 10 I have gone through the averments taken in the application filed by the Petitioner as also the documents annexed thereto. The objection affidavit with the annexed documents have has also been perused. 4. On registration of Kharavelanagar P.S. Case No.44(4) of 2013, on receipt of an F.I.R. on 07.02.2013, after investigation, charge-sheet was filed on 10.07.2013. Another F.I.R. being received at the same Police Station on 27.05.2013, investigation being made, charge-sheet was also filed on 28.07.2013. When the matter stood thus, the Central Bureau of Investigation (CBI) took up investigation of these cases together with one case with similar allegation as had been registered at Sahadev Khunta Police Station and some more cases being clubbed together. Upon investigation at their level on 11.12.2014, they filed the first charge-sheet in the Court of learned Special Chief Judicial Magistrate, Bhubaneswar, placing 23 persons to stand their trial for commission of offence under Section 120-B/ 294/ 341/ 406/ 409 /420 /467/ 468/471/506/34 of the IPC read with Section 3,4 and 5 of the Prize Chit and Money Circulation Scheme (Banning) Act, 1978. The present Petitioner is one among them in F.I.R. No. RC47/S/2014-SCB/ Kol dated 05.06.2014 in connection with CBI/SPE/SCB/SIT/Kolkata R. Case No.47/S/2014 on the file of Page 2 of 10 CJM (CBI), Bhubaneswar. In that case supplementary charge- sheets were also filed. 5. The Enforcement Directorate on the basis of the initiation of the above criminal cases and submission of charge-sheets for commission of the schedule offences as per the schedule given under the Prevention of Money Laundering Act ( for short, ‘the PMLA Act’) commenced the investigation for commission of the offence under the PML Act. It is said to have been found that Artha Tatwa Group of Companies and its various other sister Companies having collected huge amount from innocent depositors by floating different alluring schemes in falsely promising them with very high returns and benefits, they all had ultimately cheated those investors by not returning their deposits as promised and misappropriated the same. A large number of investors are said to have been defrauded and that illegal money circulation activities which was not the aim and objectives of the Company had been carried out by the persons associated with the Companies. They hatching the conspiracy forming a number of companies; through credential advertisement, propaganda, awareness programmes etc. attracted as much as depositors as possible by approaching them through various ways all throughout the State and ultimately the huge funds collected has been Page 3 of 10 siphoned in phased manner in a planned way. This Petitioner is said to have made some personal financial gain and acquired properties utilizing the said diverted money. 6. The specific allegation against this Petitioner (accused No.12) is in relation to the immovable properties attached from the present Petitioner. The Petitioner was a signatory as the representative of M/s. Orisons Properties Private Limited in the sale deed of the immovable properties measuring Ac.2.872 dec. whereby the properteis had been purchased in the name of M/s.Orisons Properties Private Limited from M/s. Artha Tatwa Infra India Limited, the Chit Fund Company for a consideration of Rs.94,77,600/- It is alleged that there was no payment of the consideration by M/s. Orisons Properties Private Limited, which has been represented by the Petitioner as its representative to the vendor Chit Fund Company M/s. Artha Tatwa Infra Private Limited. So, it is stated that this accused as well as with other one, namely, Pradeep Kumar Sethy, the Managing Director of M/s. Artha Tatwa Infra Private Limited and others illegally obtained the plot in the name of M/s. Orisons Properties Private Limited to siphon the money. 7. Perusal of the record reveals that one accused Joytiprakash Joy Prakash, who had the investment and 50% partnership with accused Pradeep Kumar Sethy, the Managing Page 4 of 10 Director of the leading company of Artha Tatwa Group as also others against whom allegations also stand that some properties had been acquired in his name being arrested in the case for schedule offences were in custody for quite some time and they had been released on bail on certain stringent conditions. Accused Jyoti Prakash Joy Prakash being arrested in that case had been taken to custody and he has been released on bail on certain stringent conditions including that of deposit of cash of Rs.1.00 crores. He when had approached this Court by filing ABLAPL No.15091 of 2019 apprehending his arrest and likely detention in the subsequent case under the Prevention of Money-Laundering Act, 2002 (for short, ‘the PMLA Act’) wherein the present Petitioner is also an accused, had been directed to be released on bail on his surrendering before the learned Court in seisin of the case on certain conditions. The Enforcement Directorate having challenged that order before the Hon’ble Apex Court in SLP (Crl.) No.2286 of 2022 in view of the submission that the Petitioner was not needed for further custody, the said order passed by this Court was not interfered with. In the case running for the predicate offences, the present Petitioner has been apprehended on 05.11.2014 had remained in custody for about one year and two months and thereafter this Court in BLAPL No.3591 of Page 5 of 10 2016 by order dated 22.01.2016 having directed for his release on bail on certain conditions including furnishing of cash security by way of fixed deposit of a sum of Rs.1.00 Crore, the Petitioner having deposited the same has accordingly been released on bail. It is submitted at the Bar that the Petitioner while in custody in the case running for predicate offence had faced interrogation in connection with this case under the PMLA Act. 8. In the meantime, accused Sambit Kumar Khuntia almost similarly with this Petitioner being arrested in the case on 27.01.2024 has been released on bail by the order passed by this Court on 20.02.2024 in BLAPL No.980 of 2024. 9. When the matter stood thus, another accused, namely, Rajat Choudhury who was holding the Power of Attorney of the Company, namely, M/s. Artha Tatwa Infra Private Limited carrying the allegations that the property in question which has been purchased in the name of his wife from his father-in- law, who was the Accountant of the AT Group of Company, was without payment of any consideration by moving this Court for invocation of inherent power under section 482, Cr.P.C., this Court has passed the following order:- Page 6 of 10 “Having regard to the facts of the present case, this Court in the larger interest of justice deems it proper to grant an opportunity to the Petitioner to surrender before the learned Trial Court and move an application for bail within two weeks from today. In such eventuality, the learned Trial Court shall do well to release the Petitioner on bail subject to Petitioner furnishing a bail bond of Rs.1,00,000/- (Rupees One Lakh) with one surety of like amount and also subject to Petitioner furnishing an undertaking that he shall appear before the Court on each and every date fixed without default. Release of Petitioner shall be subject to Petitioner furnishing cash security of Rs.2,00,000/- (Rupees Two Lakhs). Such appearance, of course, would be subject to the Court’s power under Section 205 Cr.P.C. to grant exemption to the Petitioner in accordance with law and subject to satisfaction of the learned Trial Court. In the event the Petitioner violates the undertaking, it would be open to the Trial Court to take coercive action against the Petitioner to ensure his presence in Court during trial.” 10. No such material is placed before this Court that custody of the present Petitioner is any more required for the purpose of the present case under PMLA Act wherein complaint having been filed, cognizance of the offences have already been taken. The ED Officials have also taken no steps Page 7 of 10 in that CBI case running for schedule offence to take the Petitioner to their custody in PMLA case. It is also nowhere stated that the Petitioner after being released on bail in the CBI case running for predicate offence or even thereafter at any point of time during all these post release period had made any attempt to tamper the evidence or influence the witnesses. No material also surfaces or shown in this case that the Petitioner has ever resorted to abscodance. In fact, the Petitioner is appearing in that CBI Case running against him for the schedule offence. There was no move from the side of the ED to stall the release of the Petitioner from custody in connection with that CBI case running for the schedule/ predicate offence pursuant to the order passed by this Court with a prayer to take him to custody or arrest him in that PMLA case for the purpose of further investigation of the case at their end. All these go to show that there was no such compelling need. The Petitioner has been at large and enjoying liberty for several years and has not been arrested during the investigation of the PMLA case or thereafter by the ED Officials. It is not shown nor any material is placed to point that the Petitioner has violated any terms and conditions as imposed on him while granting bail in the case running for the schedule/predicate offence. When the Petitioner has been Page 8 of 10 enlarged on bail in the case in connection of the schedule/predicate offence and is enjoying liberty for long length of time and has not been arrested during the investigation and taken to custody; the move for suddenly to go for his arrest for being incarcerated further merely because of pendency of PMLA Case against him by resisting the prayer, does not appear to be in the direction of serving any purpose of the case where cognizance of the offences has been taken way back on 01.11.2016. At this stage after lapse of such long period, the chance of discovery of further material facts and other relevant information at the instance of this Petitioner also stands too remote a possibility. Moreover, the stage so as to infer that further custodial interrogation at this distance of time would be qualitatively more elicitation oriented than he being questioned under the protective umbrella seems to be over. 11. In view of all the aforesaid, this application stands
Decision
disposed of with the observation that in the event of arrest of the Petitioner or upon his surrender before the Court in seisin of the case in connection with Criminal Misc. (PMLA) Case No.34 of 2016 within two weeks hence, he shall be released on bail on the conditions that :- Page 9 of 10 (i) that he shall furnish bond of Rs.2,00,000/- (Rupees two lakh) with two solvent sureties each for the like amount; (ii) that he shall not directly or indirectly make any inducement, threat or promise to any person who is acquainted with the facts of the case as to dissuade him to disclose such facts to the Investigating Agency or before the Court; (iii) that he shall not directly or indirectly influence any witness and attempt to tamper the evidence; (iv) that he shall not leave the country without prior permission of the Court in seisin of the case; and (v) that he shall present himself before the officials of the E.D./ Court as the case may be as and when required in connection with the case. 12. The ABLAPL is accordingly disposed of. Issue urgent certified copy of this order as per rules. (D.Dash) Judge Signature Not Verified Digitally Signed Himansu Signed by: HIMANSU SEKHAR DASH Reason: Authentication Location: OHC Date: 29-Apr-2024 19:09:15 Page 10 of 10