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2007 DIGILAW 880 (ORI)

Sri Braja Bhai v. State of Orissa

2007-11-21

M.M.DAS

body2007
ORDER M. M. DAS, J. — This is an application under Section 439 Cr.P.C. for grant of bail to the petitioner. 2. On 20.11.2006, one Shri Dandanirodha Mishra, the then General Manager of “The Samaja” lodged an F.I.R. in the Canton¬ment Police Station alleging, inter alia, that a sum of Rs. 97,08,500/- has been mis-appropriated from the account of “The Samaja” in two phases. It was alleged that the petitioner, who was the then General Manager, Printer and Publisher of “The Samaja” by resorting to fraud, forgery, cheating etc., at the first phase, misappropriated a sum of Rs. 50.00 lakhs and in the second phase, the petitioner and Shri Sunil Poddar, Managing Director of M/s. Poddar Global Ltd. misappropriated a sum of Rs. 47,08,500/- fraudulently. On lodging of the F.I.R., investigation was taken up. Two cheques amounting to Rs. 15.00 lakhs each and another cheque amounting to Rs. 20.00 lakhs, being bearer cheques, under the joint signature of the petitioner and Smt. Manorama Mohapatra, who is the life member of Servants of the People Society (in short “SOPS”) and the Editor of the Samaj, were drawn in favour of M/s. Poddar Global Ltd. The said cheques were encashed from the Punjab National Bank in its extension counter within the premises of “The Samaja”, Cuttack, by the bearers of the said cheques. It appears from the record that on a query being made by the informant, M/s. Poddar Global Ltd. through the authorized signatory of the said company, sent a fax message on 9.11.2006 intimating that the company has no informa¬tion regarding the cheques as it has neither been received by the said company nor it was encashed to the knowledge of the said company. It also appears from the said record that pursuant to the above fax message, a letter dated 26.11.2006 was issued by “The Samaja” to M/s. Poddar Global Ltd. making a query as to who is its authorized signatory and as to whether the bearers i.e. Sunil Jain and Binod Jain, who were the persons, who got the cheque encashed, were the employees of the said company. Investi¬gation discloses that the petitioner, who was working as General Manager of “The Samaja” handed over such huge amount by bearer cheques and when the Manager and Cashier of the bank had objec¬tion to pay such huge amount to the bearers of the cheques and wanted confirmation/identification by the General Manager, it is alleged that along with the joint signatory, Smt. Manorama Moha¬patra, the petitioner identified the said persons, who wanted to encash the cheques, as Sunil Jain and Binod Jain. Upon such identification being made, the bank paid the amount to them. 3. The other transaction relates to a cheque for a sum of Rs. 47,08,500/-, which was issued in favour of M/s. Poddar Global Ltd., even though it is alleged that nothing was due to be paid to the said company. The said cheques were jointly signed by the petitioner and Shri Satya Paul, Former Executive Secretary, Board of Management, SOPS, Orissa Branch, they being the authorized signatory for operation of the bank account. Shri Satya Paul was ordinarily residing at Delhi and in the F.I.R. it is admitted that Shri Satya Paul signed the cheques in good faith as the petitioner, who was the General Manager of “The Samaja”, already signed the cheques. 4. Mr. B. Mishra, learned senior counsel appearing for the petitioner vehemently argued that with regard to the bearer cheques totalling to Rs.50.00 lakhs, the case of the prosecution is clear that the said amount was taken by the bearers of the said cheques, who were employees of M/s. Poddar Global Ltd. and therefore, no fault can be found with the petitioner of having misappropriated the said amount. He further submitted materials are available in the case diary to show that at the behest of the informant, in order to show that the newspaper “The Samaja” has the highest circulation, the above amount of Rs. 47,08,500/- was paid to M/s. Poddar Global Ltd. by way of an arrangement and the said amount was paid by Account Payee cheques, which were credit¬ed to the account of the said company. 5. Mr. S. Pradhan, learned counsel for the State submitted that the allegations made and the materials collected during investigation clearly make out a prima facie case of commission of offence under Sections 406/468/467/420/408/506/120(B) I.P.C. along with other Sections of the Penal Code against the petition¬er. 5. Mr. S. Pradhan, learned counsel for the State submitted that the allegations made and the materials collected during investigation clearly make out a prima facie case of commission of offence under Sections 406/468/467/420/408/506/120(B) I.P.C. along with other Sections of the Penal Code against the petition¬er. He further brought to the notice of this Court that during investigation, it is revealed that the Manager (Finance) of “The Samaja” is the custodian of the cheque books, but the petitioner as the General Manager took a cheque book from him out of which one cheque was utilized for the fraudulent transaction. Mr. Pradhan also relied upon various decisions in support of his contention that in the event the petitioner is released on bail, there is every likelihood of the petitioner absconding. He fur¬ther submitted that the petitioner was residing in a house within the premises of “The Samaja” and he has obtained and interim order from the Delhi High Court that he will not be evicted from the said house. He, therefore, submitted that in the event the petitioner is released on bail, from the nature of allegations made against him, there is all possibility of the petitioner indulging himself in criminal activities thereby disrupting the process of publication of the daily newspaper “The Samaja”. 6. It is revealed from the records that the petitioner approached this Court in an application under Section 438 Cr.P.C. before he was apprehended and this Court in the said application, being BLAPL No.12457 of 2006, categorically came to the conclu¬sion that the statements of the witnesses and the documents col¬lected during investigation make out a prima facie case against the petitioner with regard to commission of the alleged offences. However, this Court while rejecting the said bail application granted liberty to the petitioner to surrender before the Court below and move for regular bail, if he is so advised. (See 2007 (36) OCR 429). 7. The petitioner approached the Supreme Court in a Special Leave Petition against the order of this Court refusing to grant anticipatory bail to him. However, this Court while rejecting the said bail application granted liberty to the petitioner to surrender before the Court below and move for regular bail, if he is so advised. (See 2007 (36) OCR 429). 7. The petitioner approached the Supreme Court in a Special Leave Petition against the order of this Court refusing to grant anticipatory bail to him. The Supreme Court, after hearing the case by order dated 23.2.2007 recording the prayer made on behalf of the petitioner to withdraw the SLP with leave to move for regular bail, passed the following order : “The High Court while disposing of the petition has, howev¬er, granted liberty to the petitioner 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 the said bail appli¬cation expeditiously in accordance with law. In view of the above direction, the learned senior counsel seeks permission to withdraw the Special Leave Petition with liberty to move for regular bail. If such an application is field, the same shall be disposed of as expeditiously as possi¬ble. The Special Leave Petition is dismissed as withdrawn.” 8. It further transpires from the records that as after passing of the aforementioned order, the petitioner did not surrender before the Court below, a prayer was made before the Court below by the Investigating Agency to issue process against the petitioner under Sections 82 and 83 Cr.P.C.. The petitioner was thereafter declared as a proclaimed offender as he did not surrender in spite of issuance of notice. Process under Section 83 Cr.P.C. was issued in accordance with law directing seizure of moveable and immovable properties of the petitioner. At this juncture, the petitioner surrendered in the Court of learned S.D.J.M. (S), Cuttack on 25.6.2007 and was remanded to custody. 9. Mr. Pradhan, learned counsel for the State relied upon the decision in the case of Gajanand Agarwal v. State of Orissa and others, (2007) (3) Supreme 434, in support of his submission that once process under Sections 81, 82 and 83 Cr.P.C. was is¬sued, there is all likelihood that the petitioner will abscond, if he is released on bail. 9. Mr. Pradhan, learned counsel for the State relied upon the decision in the case of Gajanand Agarwal v. State of Orissa and others, (2007) (3) Supreme 434, in support of his submission that once process under Sections 81, 82 and 83 Cr.P.C. was is¬sued, there is all likelihood that the petitioner will abscond, if he is released on bail. In the aforesaid decision, the Supreme Court, while dealing with the finding of this Court that there was no likelihood of the accused absconding, held as follows :- “The High Court was also not correct in saying that there was no likelihood of the accused persons absconding in view of what has been pointed out by learned counsel for the appellant about his not surrendering requiring issuance notice in terms of Sections 82 and 83 of the Act.” 10. I have perused the order of the Court below by which the prayer for bail made on behalf of the petitioner has been rejected. Though Mr. Mishra, learned senior counsel appearing for the petitioner vehemently argued that the petitioner is al¬ready in custody for more than three months and the offences alleged are triable by the learned Magistrate, I do not find that the Court below has committed an error in refusing the prayer for bail made on behalf of the petitioner. It would be profitable in this regard to refer to the relevant portion of paragraph-5 of the judgment in the case of Ghamchi Rubina Salimbhai v. Metubha Diwansingh Solanki and others, (2003) 7 SCC 183 which reads thus. “...... We think since the trial Court has assigned reasons for refusing bail which includes availability of material to establish prima facie case against the respondent-accused, and looking to the gravity of the offence as also the apprehension of the complainant as to the possibility of interference by the accused with the investigation and threat to the prosecution witnesses in the event of they being enlarged on bail, we think it would have been more appropriate if the High Court could have at least briefly indicated the reasons which it thought entitled the respondent-accused to bail...........” 11. In the case of Himanshu Chandravadan Desai and others v. State of Gujarat, 2005 (9) SCALE, the Supreme Court, while dealing with the bail application under Section 439 Cr.P.C. where similar offences were alleged, held as follows :- “........ In the case of Himanshu Chandravadan Desai and others v. State of Gujarat, 2005 (9) SCALE, the Supreme Court, while dealing with the bail application under Section 439 Cr.P.C. where similar offences were alleged, held as follows :- “........ The crime in which the petitioners are involved is very serious involving a conspiracy to cheat and defraud public institutions in a systematic manner and the punishment is likely to be severe in the event of conviction.................Having regard to huge amounts involved in the systematic fraud, there is a danger of the appellants absconding, if released on bail, or attempting to tamper with the evidence by pressurizing witnesses. In the circumstances, we do not find any reason to interfere with the order refusing bail as grant of the relief sought may result in thwarting the course of justice. The appeal, is therefore dismissed.” 12. Keeping the above principles in mind, this Court, on closely scrutinizing the materials available in the case diary and finding of this Court in the previous bail application filed by the petitioner for grant of anticipatory bail, is of the view that there is a prima facie case made out against the petitioner in regard to commission of the alleged offences and there is also likelihood of the petitioner absconding and threatening the prosecution witnesses, if he is set at liberty by way of granting bail. 13. In view of the above, this Court is of the opinion that this is not a fit case where the petitioner should be granted bail. Accordingly, the BLAPL is dismissed. BLAPL dismissed.