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2006 DIGILAW 856 (ORI)

BRAJA BHAI ` BRAJARAJ DAS v. STATE OF ORISSA

2006-12-19

A.S.NAIDU

body2006
JUDGMENT : A.S. Naidu, J. - This is a petition u/s 438 Code of Criminal Procedure for grant of anticipatory bail. 2. According to the Learned Counsel for the Petitioner, an FIR was filed on 20th of November, 2006 before the IIC of Cantonment Police Station, Cuttack alleging that a sum of Rs. 47,8,500.00 out of the funds/account of "The Samaja" had been misappropriated by the Petitioner who was the General-Manager of the Samaja, a leading Oriya daily newspaper of Orissa in connivance with Sri: Sunil Poddar, Managing Director of M/s. Poddar Globbal Ltd., New Delhi. It was also alleged that by issuing three numbers of cheques on Punjab National Bank, Extension Counter, Samaja Office, Cuttack, a further sum of Rs. 50,00,000.00 out of the funds/account of The Samaja had been endorsed in favour of M/s. Poddar Globbal Ltd. in the month of January, 2006 which amount had also been misappropriated. It was alleged that the Petitioner and Ors. had committed the offences punishable under Sections 408/461/420 of the Indian Penal Code. On the basis of the said FIR, Cantonment P.S. Case No. 88 of 2006 has been initiated and G.R. Case No. 1427 of 2006 has been registered in the Court of the SDJM (S), Cuttack and investigation is in progress. 3. According to Learned Counsel for the Petitioner, he has not committed any offence and all the aforesaid transactions were made and cheques were issued after due approval of the management of the Samaja. It is stated that in consonance with the decisions of the Servants of the People Society which is in the help of management of the Samaja, the aforesaid transactions were made. The Petitioner was a Life Member of the said Society but due to certain political reasons his membership has been cancelled for which he has filed a suit in appropriate Court at New Delhi. As a counter blast to the said suit the present false FIR has been lodged alleging aforesaid misappropriate of funds against him. 4. According to Mr. Debasis Panda, Learned Counsel appearing for the Petitioner, all the offences alleged to have been committed by the Petitioner are Magistrate-triable offences. The Petitioner is a responsible person. His family resides within the premises of the Samaja. He was the General-Manager of the Samaja and there is absolutely no apprehension that he will abscond. 4. According to Mr. Debasis Panda, Learned Counsel appearing for the Petitioner, all the offences alleged to have been committed by the Petitioner are Magistrate-triable offences. The Petitioner is a responsible person. His family resides within the premises of the Samaja. He was the General-Manager of the Samaja and there is absolutely no apprehension that he will abscond. He further submitted that the Petitioner is ready and willing to cooperate in the investigation if he is protected u/s 438 Code of Criminal Procedure. Mr. Panda, however, admits the issuance of the aforesaid three cheques as well as withdrawal of a sum of Rs. 50,000.00 from the funds of the Samaja, but then explains that the said cheques were issued in consonance with the decision of the management of the Samaja and only with a view to protect the Samaja from audit. He relied on several documents like audit report and submitted that the Petitioner is innocent and it is a fit case where he may be granted anticipatory bail. 5. The aforesaid submissions of Mr. Panda are repudiated by the Learned Counsel for the State. Relying on the statements u/s 161 Code of Criminal Procedure recorded in course of investigation, Learned Counsel for the State and the Investigating Officer concerned drew attention of this Court to the statements of one Prabodh Ranjan Das, Branch Manager of Punjab National Bank; Srikanta Misra, Finance Officer of the Samaja; Nanda Kishore Naik, P.A. to the General Manager of the Samaj and some others. 6. A perusal of the said statements reveals that three cheques for a total sum of Rs. 50,000.00 had been encashed by one Sunil Kumar Naik and/or Vinod Jain representing aforesaid M/s. Poddar Globbal Ltd. It is stated by the Branch Manager of Punjab National Bank that as he hesitated to release such huge amount in cash on the basis of bearer's cheque, he requested Petitioner Braja Bhai ' Brajaraj Das to identify the signatures on the cheques and on his identification respective amounts as per the cheques were "released. A letter said to have been issued by M/s. Poddar Globbal Ltd. on 9th of November, 2006 is available in the Case Diary. In the said letter it has been clearly mentioned that the said company had no knowledge regarding release of Rs. 50,000.00 by the Samaja in its favour. A letter said to have been issued by M/s. Poddar Globbal Ltd. on 9th of November, 2006 is available in the Case Diary. In the said letter it has been clearly mentioned that the said company had no knowledge regarding release of Rs. 50,000.00 by the Samaja in its favour. Even the identity of the two persons who had received the cheques drawn in favour of that company, had presented the same at the Punjab National Bank in its Extension Counter at the Samaja Office and had encashed the same is also disputed. That apart it appears from the materials available in the Case Diary that a sum of Rs. 47,08,500.00 was released in favour of M/s. Poddar Globbal Ltd. on the basis of cheques issued by the Petitioner from the Bank A/c. of the Samaja. 7. The Supreme Court in the case of Adri Dharan Das Vs. State of West Bengal has observed that the power exercisable u/s 438 Code of Criminal Procedure being somewhat extra-ordinary in character should be exercised only in exceptional cases where it appears that the person may be falsely implicated or where there are reasonable grounds for holding that a person accused of an offence is not likely to otherwise misuse his liberty. The facts of the said case are somewhat akin to the case at hand. In the said case huge money belonging to ISCON had been allegedly misappropriated. The Supreme Court also in the case of State of Andhra Pradesh Vs. Bimal Krishna Kundu and another, has held that the considerations governing the Court's decision granting anticipatory bail u/s 438 Code of Criminal Procedure are materially different from those when an application for bail by a person who is arrested in course of investigation as also by a person who is convicted and his appeal is pending before Higher Court. In other words, if the Court is prima facie satisfied that materials are available to reveal that a false case has not been foisted, it should be slow to exercise its discretionary power. That apart, misappropriating funds of an organization to a tune of Rs. 97,08,500.00 by no other than the Managing-Director thereof amounts to white-color offence and the Court should be slow in exercising power u/s 438 Code of Criminal Procedure. 8. That apart, misappropriating funds of an organization to a tune of Rs. 97,08,500.00 by no other than the Managing-Director thereof amounts to white-color offence and the Court should be slow in exercising power u/s 438 Code of Criminal Procedure. 8. After going through the materials available in the Case Diary this Court is of the opinion that it is not a case for exercising discretion u/s 438 Code of Criminal Procedure in favour of granting anticipatory bail to the Petitioner. The Petitioner is no doubt a very influential person. The Investigating Officer concerned has expressed before this Court that in spite of best efforts and conducting raids, the investigating agency is not able to trace out the whereabouts of the Petitioner and two of his associates being Sunil Kumar Jain and Vinod Jain. 9. In the aforesaid circumstances there is no doubt in the mind of this Court that if the Petitioner equipped with an order of anticipatory bail before he is interrogated by police, it would greatly harm the investigation and would impede the prospect of unearthing all the ramification involved in the conspiracy. Public interest would also suffer as a consequence. Considering the seriousness of the offences alleged, this Court rejects the Petitioner's prayer for anticipatory bail. This Court however grants liberty to him to surrender before the Court below and move for regular bail if he is so advised in which event the said Court shall dispose of his bail application expeditiously in consonance with law. 10. Before parting, this Court is constrained to observe that the assistance rendered by Mr. Das, the State Counsel during hearing of this Bail Application is deplorable. As the case involves huge stake, this Court had to send for the concerned Investigating Officer to place the relevant materials from the Case Diary and assist the Court in the hearing. Bail application disposed of.