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2008 DIGILAW 425 (ORI)

Durga Charan Sarangi v. State

2008-05-16

M.M.DAS

body2008
ORDER BLAPL Nos.10959 & 11165 of 2007 16.05.2008 — Heard learned counsel for the petitioners and the learned counsel for the State. 2. These are applications under Section 439 Cr.P.C. for grant of bail to the petitioners. 3. The petitioners are accused in G.R. Case No.1427 of 2006 arising out of Cantonment P.S. Case No.88 of 2006 pending in the Court of the learned S.D.J.M. Sadar, Cuttack. Charge sheet has been filed in the case against the petitioners and other co-accused persons for alleged commission of offences under Sections 406/408/467/420/468/508/120-B/34 IPC. The investigation has been kept open under Section 173 (8) Cr.P.C. 4. The petitioner - Durga Charan Sarangi, in BLAPL No.10959 of 2007 was working as a Cashier and the petitioner- Srikanta Kumar Mishra @ Srikanta Mishra, in BLAPL No.11165 of 2007 was working as the Finance Manager in the office of the Oriya Daily, “The Samaja”. The co-accused, Braja Bhai, was the General Manager of “The Samaja” and was also a life member of the Servant of the People Society of India. It has been alleged that there was conspiracy between the accused persons with the Manag¬ing Director of M/s. Poddar Global Limited and misappropriation of funds of “The Samaja” amounting to Rs.97,08.500/- was commit¬ted by the accused persons. The said misappropriation is alleged to have been committed in two phases, first being for a amount of Rs.47,08,500/- and the second being Rs.50,00,000/-. The present petitioners are concerned with the misappropriation of Rs.50,000/-as per the prosecution case. 5. It has been alleged that three bearer cheques drawn in favour of M/s. Poddar Global Limited or bearer, were encashed at the extension counter of the Punjab National Bank situated within the premises of the campus of “The Samaja”. It appears that behind the said three cheques, two signatures of Vinod Jain and Sunil Jain appeared describing themselves as Directors of M/s. Poddar Global Limited. The prosecution alleges that from the report of the hand writing expert, it has been ascertained that the said signatures of Vinod Jain and Sunil Jain were in the writing of the petitioners. 6. Learned counsel for the State vehemently argued that the then General Manager, Braja Bhai, who also filed applications for grant of bail before this Court twice has been refused bail, though one of the co-accused, namely, Mrs. 6. Learned counsel for the State vehemently argued that the then General Manager, Braja Bhai, who also filed applications for grant of bail before this Court twice has been refused bail, though one of the co-accused, namely, Mrs. Manorama Mohapatra, has been directed to be released on bail on surrendering before the Court below and moving for bail. According to the prosecu¬tion, the said Mrs. Manorama Mohapatra cannot be equated with the other accused persons as this Court considering the fact that she is a lady, aged about 70 years, passed the order as aforesaid. 7. On analyzing the materials available in the case diary, it appears that this Court rejected the bail application of Braja Bhai at the first instance on finding that there is prima facie case made out against him and there was also apprehension that the said accused may abscond as well as threaten the prosecu¬tion witnesses. The case of the Braja Bhai stands on a different footing as in his case, in spite of the orders passed by this Court as well as the Supreme Court, he having failed to surren¬der, process under Sections 82/83 of the Code of Criminal Proce¬dure was initiated by the prosecution and at that stage, being directed by this Court, he surrendered and was remanded to custo¬dy. 8. It appears that the case of the present petitioners totally stands on a different footing. From the F.I.R., it is disclosed that the informant Danda Nirodha Mishra lodged the F.I.R., where he stated that he ascertained from Srikanta Kumar Mishra, who is one of the petitioners herein that Braja Bhai had forced him under threat to prepare the said cheques, even though, M/s. Poddar Global Limited was not supposed to get any money from the account of “The Samaja”. The said Srikanta Kumar Mishra also told the informant that the cheques were made to be bearer cheques even though from income tax point of view and other financial provisions, the same would have been Account Payee. But Shri Mishra was forced under threat to comply with the orders and instructions of Braja Bhai. The said Srikanta Kumar Mishra also told the informant that the cheques were made to be bearer cheques even though from income tax point of view and other financial provisions, the same would have been Account Payee. But Shri Mishra was forced under threat to comply with the orders and instructions of Braja Bhai. In the statement of the informant recorded under Section 161 Cr.P.C. during investigation, it is found that he stated that on enquiry from the Finance Manager, i.e., Srikanta Kumar Mishra, he (Shri Mishra) told him that Braja Bhai threatening him and got the cheques signed by him and has put a fake stamp below his signature. Same was the statement of Mrs. Manorama Mohapatra before the informant. There is ample material in the case diary to show that during the tenure of Braja Bhai as the General Manager of “The Samaja”, he used to threaten and terrorize the employees to work in a manner, which is not the procedure followed in the office of “The Samaja” with regard to maintenance of financial records and issuance of cheques. 9. From the statement of the Branch Manager of the Punjab National Bank recorded under Section 161 Cr.P.C. during investigation, as well as recorded by the learned Magistrate under Section 164 Cr.P.C., it is revealed that on 12.1.2006 a person brought a bearer cheque from “The Samaja” office and went to him. The petitioners were present there. The said cheque was for an amount of Rs.20,00,000/- drawn in favour of M/s. Poddar Global Limited signed by Braja Bhai and Mrs. Manorama Mohapatra. Signature of the bearer Sunil Jain was attested. The Branch Manager consulted the Legal Cell of the Head Office before making payment on the basis of the said cheque. But Braja Bhai told him that it is their money, which has been kept in the bank and as it is required for the purpose of payment, the Branch Manager should pay Rs.20,00,000/-. He also told the Branch Manager that the bank is running due to “The Samaja” and “The Samaja” office can over draw money to the tune of Rs.13.00 crores, if he wants. On such statement of Braja Bhai, the Branch Manager allowed encashment of the cheque by passing the same for payment. He also told the Branch Manager that the bank is running due to “The Samaja” and “The Samaja” office can over draw money to the tune of Rs.13.00 crores, if he wants. On such statement of Braja Bhai, the Branch Manager allowed encashment of the cheque by passing the same for payment. Again on 20.1.2006, similarly another bearer cheque of Rs.15,00,000/- which was signed by one Vinod Jain was encashed and on 3.2.2006 in the same meth¬od, another cheque of Rs.15,00,000/- was also encashed. The vital part of his statement appears to be the portion where, he stated that these three cheques signed by Braja Bhai and Mrs. Manorama Mohapatra were paid in presence of the petitioners herein from the counter of the bank. It, therefore, appears that the payments were made by the bank at the insistence of Braja Bhai to the person, who carried the cheques. The statement recorded under Section 164 Cr.P.C. is also similar to the statement recorded under Section 161 Cr.P.C. 10. This Court on consideration of the above facts is of the view that the present petitioners do not stand on same foot¬ing as Braja Bhai and, therefore, the reasons ascribed by this Court while rejecting the prayer for bail made by Braja Bhai cannot be made applicable to the petitioners herein. There is ample material to indicate that the petitioners have put their signatures behind the cheques as Sunil Jain and Vinod Jain (provided the hand writing expert opinion is ex facie accepted), on the threat of Braja Bhai. There is no material to indicate that they have received the money from the cash counter of the bank, rather, from the tenor of statement of the Branch Manger of the Bank, the finger is pointed out towards Braja Bhai, who might have received the money through the third person, who was pre¬sented before the bank as a bearer. 11. The petitioners are in custody since 6.10.2007. Though both the bail petitions were heard and order was reserved earli¬er, but due to want of certain clarification, the same were again listed under the heading “To be mentioned” and hearing was con¬cluded on 5.5.2008. In the process, the petitioners have remained in custody for about seven months. 12. 11. The petitioners are in custody since 6.10.2007. Though both the bail petitions were heard and order was reserved earli¬er, but due to want of certain clarification, the same were again listed under the heading “To be mentioned” and hearing was con¬cluded on 5.5.2008. In the process, the petitioners have remained in custody for about seven months. 12. Considering the above aspects of the case and the materials available against the petitioners as well as the well established principles of law that in spite of existence of prima facie case, a Court may release an accused on bail by recording reasons for allowing the same, when there is a need to release such person on bail, where the facts of the case required it to do so, this Court is of the view that even if from the hand writing expert report, it transpires that the signatures of the bearer behind the three cheques tally with the hand writing of the petitioners, but as already discussed, they having cooperated with the investigation and the F.I.R. having been lodged by the informant on ascertaining the facts from one of the petitioners, namely, Srikanta Kumar Mishra, and there being ample material to show that the petitioners have neither made any attempt to ab¬scond or avoid the investigation, they are entitled to an order granting them bail. This Court, therefore, directs that the petitioners, namely, Durga Charan Sarangi in BLAPL No.10959 of 2007 and Srikanta Kumar Mishra @ Srikanta Mishra in BLAPL No.11165 of 2006 shall be released on bail by the learned S.D.J.M. (Sadar), Cuttack in G.R. Case No.1427 of 2006 arising out of Cantonment P.S. Case No.88 of 2006 on such terms and conditions, as the learned S.D.J.M. may deem just and proper. 13. Both the bail applications are disposed of. Applications disposed of.