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2014 DIGILAW 328 (ORI)

Prashanta Kumar Dash v. State of Odisha

2014-05-14

S.K.MISHRA

body2014
Judgment S.K. Mishra, J. In this writ petition the petitioners pray that the FIR bearing Semiliguda P.S. Case No. 32/2013 on the basis of the allegedly self-same transaction of FIR vide CID, CB (EOW), P.S. Case No. 39/2012 has been registered and, therefore, the second FIR is liable to be quashed. 2. Petitioner No. 1 is the Chairman-cum-Managing Director, Seashore Group of Companies registered under the Indian Companies Act, 1956. An FIR was lodged on 18.7.2012 by the Deputy Superintendent E.O.W:, C.I.D., CB, Bhubaneswar with the allegation that on the basis of various petitions and information received, an enquiry was entrusted to the informant to verify the allegations that Seashore Group of Companies are collecting/depositing about crores of rupees from members of general public by alluring them with a high interest. It is further alleged that the company had no commensurate business to make huge interest payment as claimed by it, accordingly the company was running a money circulation scheme, which is an illegal activity. It is further alleged that the enquiry also revealed that the company after collecting huge amount of deposits from the members of general public, suddenly closed down their branches and disappeared. After hue and cry and protest from the public, the company settled some of the amount due to the depositors, but still large number of deposits were not returned to the depositors and misappropriated by the company. On the basis of the aforesaid allegation, CID, CB (EOW) P.S. Case No. 39/2012 was registered against the petitioners and other Directors for the offence punishable under Section 420/120-B of the IPC read with Sections 4, 5 and 6 of the Prize Chits and Money Circulation Scheme (Banning) Act, 1978 (hereinafter referred to as the "Act") for brevity). 3. Petitioner No. 1 apprehending arrest filed an application for anticipatory bail before this Court and this Court as per order dated 17.10.2012 in BLAPL No. 18619/2012 allowed his application for anticipatory bail. 4. It is stated by the learned counsel for the petitioners that in pursuance of the direction of the Court in BLAPL No. 18619/2012, petitioner No. 1 was fully cooperating with the investigation by furnishing relevant documents and also attending the investigation as and when called by the I.O. in connection with the aforesaid case instituted by the E.O.W., Crime Branch. It is stated by the learned counsel for the petitioners that in pursuance of the direction of the Court in BLAPL No. 18619/2012, petitioner No. 1 was fully cooperating with the investigation by furnishing relevant documents and also attending the investigation as and when called by the I.O. in connection with the aforesaid case instituted by the E.O.W., Crime Branch. It is further stated that on 18.7.2012 the investigating agency seized and sealed all the offices and relevant documents including computer hard disc/ram in 37 nos. in order to verify the amount collected and the amount spent on different heads of the industries of the company. It is stated that the investigating agency is not interested in examining the said records seized by them. However, the investigating agency is going on seizing each and every article, several industrial units, which are part of group of companies without any justification. 5. It is further stated that while the investigation is in progress on the self-same transaction in the first FIR i.e. CID, CB (EOW), P.S. Case No. 39/2012 the second FIR i.e. Semiliguda P.S. Case No. 32/2013 was registered on the basis of the self-same transition against petitioner No.1's company for the offence punishable under Sections 420/120-B/406 IPC read with Sections 4, 5 and 6 of the Act. Petitioner No. 1 asserts that the first FIR i.e. CID, CB (EOW), P.S. Case No. 39/2012 and the second FIR i.e. Semiliguda P.S. Case No. 32/2013 are based on same transactions, accordingly, the registration of the second FIR and investigation on the same is mala fide exercise of power by the State, which is unfair, unreasonable, violation of fundamental right guaranteed under Articles 14, 19 and 21 of the Constitution of India. Relying upon the reported case of T.T. Antony v. State of Kerala, 2001(5) SCC 181, learned counsel for the petitioners submits that Semiliguda P.S. Case No. 32/2013 is liable to be quashed. 6. The Deputy Superintendent of Police (EOW) CID, CB Bhubaneswar filed a counter affidavit on behalf of opposite party Nos. 3 and 4 inter alia stating that Semiliguda P.S. Case No. 32/2013 was registered on the basis of the FIR dated 10.6.2013. The facts of which are different from CID, CB (EOW), P.S. Case No. 39/2012, which was registered on 18.7.2012. The Deputy Superintendent of Police (EOW) CID, CB Bhubaneswar filed a counter affidavit on behalf of opposite party Nos. 3 and 4 inter alia stating that Semiliguda P.S. Case No. 32/2013 was registered on the basis of the FIR dated 10.6.2013. The facts of which are different from CID, CB (EOW), P.S. Case No. 39/2012, which was registered on 18.7.2012. It is stated the complainant, who are the innocent gullible investors/depositors and the place where illegally money have been collected by petitioner No. 1 through his agents and others, are different In both the FIRs the mode of collection of deposits, mode of operation and cause of action are completely different. It is further stated that a plain paper FIR was not lodged at CID, CB (EOW), P.S. suo motu, but on the basis of various petitions, informations and allegations received against petitioner No. 1 and such complaints and informations were discreetly and secretly enquired into by the staffs of EOW which revealed that the petitioner No. 1 as CMD of Seashore Group of Companies was collecting crores of rupees from members of general public by alluring them with the promise of high interest. It is stated that the company had also no commensurate business activities to make huge interest payments as claimed by it and, therefore, the company was running a money circulation scheme which is an illegal activity. It is further stated that the petitioners after collecting huge amount of deposits from the members of general public, suddenly closed down their branches all over the State and disappeared. After hue and cry and protest of the public the company instead of settling their claims disappeared by misappropriating the public money. On the basis of such facts as brought out during course of enquiry CID, CB (EOW), P.S. Case No. 39 of 2012 was registered as the petitioners and other Directors for the offences committed under Sections 420/120-B of the IPC read with Sections 4, 5 and 6 of the Act. The Deputy Superintendent of EOW, who enquired into such complaints/informations is a mere complainant only who set the investigation into motion. 7. The Deputy Superintendent of EOW, who enquired into such complaints/informations is a mere complainant only who set the investigation into motion. 7. It is stated that in order to avoid arrest, petitioner No. 1 filed an application for anticipatory bail bearing No. BLAPL No. 18619/2012 before the High Court and anticipatory bail was granted by the Court However, it is stated that petitioner No. 1 did not appear personally before the Investigating Officer nor submit informations/documents, as asked for, on the plea of sickness and being busy in his business affairs. It is alleged that petitioner No. 1 was not cooperating with the Investigating Agency. The Investigating Agency with much difficulty, seized and sealed all the office premises and recovered relevant documents including 37 Computer Hard Disks/RAMS in order to verify the amount collected and spent in its different sister companies. 8. It is reiterated by the opposite parties that both the FIRs are not same as claimed. In fact the FIRs are completely distinct and separate. The victims are separate, the places of occurrence are different, the amounts cheated are different, the accused are also different except petitioner No. 1 and the modus operandi are also significantly different. It is also relevant to record here that in addition to two cases referred in the petition, 37 number of cases in different Districts have also been registered against the petitioners which are also different in character and content. It is further stated that the company was neither registered as Non-Banking Financial Company with Reserve Bank of India nor a listed company in National Stock Exchange of India to collect public deposits. Seashore Securities Ltd. a sister company of Seashore Group of Companies had applied for certificate of registration but the same was rejected by RBI vide its order dtd. 29.11.2010, as the Company was not satisfying the eligibility criteria for registration as NBFC with the Bank. As such the company could not have carried on any business of a Non-Banking Financial Company (NBFC) as defined under Section 45-I (C & F) of the R.B.I. Act, 1934. Investigation further revealed that a sum of Rs. 16,46 crores was also diverted fraudulently from the accounts of the company to the personal accounts of Directors, which amounts to a clean-cut case of misappropriation and cheating. Investigation further revealed that a sum of Rs. 16,46 crores was also diverted fraudulently from the accounts of the company to the personal accounts of Directors, which amounts to a clean-cut case of misappropriation and cheating. It is therefore submitted that both the cases being different from each other and should not be tagged or merged together. 9. In course of hearing, learned counsel for the petitioners relied upon several reported cases and argued that the second FIR has been filed for the self-same offence, the same should be quashed. In this case the first reported case cited by the learned counsel appearing for the petitioners is T.T. Antony v. State of Kerala (supra). In this case, the Supreme Court has held that it is quite possible and it happens not in frequently that more informations than one are given to a police officer in charge of a police station in respect of the same incident involving one or more than one cognizable offences. It is further laid down that in such a case he need not enter everyone of them in the station house diary and this is implied in Section 154 Cr.P.C. It is further held that apart from a vague information by a phone call or a cryptic telegram, the information first entered in the station house diary, kept for this purpose, by a police officer in charge of a police station is the first information report and FIR postulated by Section 154 Cr.P.C. All other informations made orally or in writing after the commencement of the investigation into the cognizable offence disclosed from the facts mentioned in the first information report and entered in the station house diary by the police officer or such other cognizable offences as may come to his notice during the investigation, will be statements falling under Section 162 Cr.P.C. No such information/statement can properly be treated as an FIR and entered in the station house diary again, as it would in effect be a second FIR and the same cannot be in conformity with the scheme of Cr.P.C. 10. In the aforesaid reported case, the Supreme Court further held that the scheme of Cr.P.C. is that an officer in charge of a police station has to commence investigation as provided in Section 156 or 157 Cr.P.C. on the basis of entry of the first information report, on coming to know of the commission of a cognizable offence. On completion of investigation and on the basis of the evidence collected, he has to form an opinion under Section 169 or 170 Cr.P.C., as the case may be, and forward his report to the Magistrate concerned under Section 173(2) Cr.P.C. It is further held that even after filing such a report, if he comes into possession of the further information or material, he need not register a fresh FIR; he is empowered to make further investigation, normally with the leave of the Court, and where during further investigation he collects further evidence, oral or documentary, he is obliged to forward the same with one or more further reports; this is the import of Sub-section (8) of Section 173 Cr.P.C. Therefore, the Supreme Court has held that there can be no fresh investigation on receipt of every subsequent information in respect of the same cognizable offence or the same occurrence or incident giving rise to one or more cognizable offences. On receipt of information about a cognizable offence or an incident giving rise to a cognizable offence or offences and on entering the FIR in the station house diary, the officer in charge of a police station has to investigate not merely the cognizable offence reported in the FIR but also other connected offences found to have been committed in the course of the same transaction or the same occurrence and file one or more reports as provided in Section 173 Cr.P.C. 11. The case of T.T. Antony v. State of Kerala (supra) has been taken note of by the Supreme Court in the case of Babubhai v. State of Gujarat and others (2010)12 Supreme Court Cases 254, wherein the Court has to examine whether the second FIR is hit by Section 162 of the Cr.P.C. has been laid down. The case of T.T. Antony v. State of Kerala (supra) has been taken note of by the Supreme Court in the case of Babubhai v. State of Gujarat and others (2010)12 Supreme Court Cases 254, wherein the Court has to examine whether the second FIR is hit by Section 162 of the Cr.P.C. has been laid down. It is held that in a case of subsequent FIR, the Court has to examine the facts and circumstances giving rise to both the FIRs and the test of sameness is to be applied to find out whether both the FIRs relate to the same incident in respect of the same occurrence or are in regard to the incident which are two or more parts of the same transaction. It is further held that if the answer is in the affirmative, the second FIR is liable to be quashed. However, in case, the contrary is proved, where the version in the second FIR is different and they are in respect of the two different incidents/crimes, the second FIR comes forward with a different version or counterclaim, investigation on both the FIRs has to be conducted. 12. In applying the aforesaid test of sameness to the present case, it is seen that the FIR lodged by the Deputy Superintendent CID, CB on 18.7.2012 list present petitioner No. 1 and 6 others as co-accused persons. They are members of the Board of Directors of the Company. FIR reflects that on receipt of information that Sri Prasharnta Kumar Dash had set up various companies such as Seashore Securities Ltd., Seashore Agricultural Promotion Pvt. Ltd., Seashore Consultancy Pvt. Ltd. etc. and he has also formed Seashore Multipurpose Cooperative Limited and registered the same as Self Help Cooperative Society in various districts of Odisha and depositors were lured through various means, including pamphlet, brochure and website to deposit heavy amount with a promise of very high interest rate. The interest was shown in the accounts of the company as dividend and paid to the depositors. However, enquiry revealed that the amount paid to the depositors was part of the deposits made by them. The company had no commensurate business to make huge interest payment as claimed by it. Thus, it is evident that the company was running a money circulation scheme which is an illegal activity. However, enquiry revealed that the amount paid to the depositors was part of the deposits made by them. The company had no commensurate business to make huge interest payment as claimed by it. Thus, it is evident that the company was running a money circulation scheme which is an illegal activity. Thereafter, the FIR was lodged by Gyanaranjan Mohanty, Deputy S.P. (EOW), CID, CB and investigation of the case was taken up. 13. The second FIR, it appears, was registered on 10.6.2013 on the allegation of several depositors of Semiliguda Police Station. In the FIR, petitioner No.1 has been arrayed as accused No. 1 and some five other persons, who were not accused persons in the earlier case, were added as accused persons in this case. They are Asst. Team Manager, Regional Manager, Sales Manager, Branch Manager etc. of the Seashore Group of Companies. 14. It is stated in the FIR that the petitioner and five others are accused. Seashore Group of Companies, Semiliguda Branch was headed by Sri Aswini Kumar Tripathy, RM (Regional Manager), and his SM (Sales Manager) Sri Ch. Tuna Patro and BM (Branch Manager) Sri Suresh Sharma. The complainants lodged a complaint before Semiliguda P.S. inter alia alleging that Seashore Group of Companies is dealing with mainly collecting money from the customers and investing the same in their products and in that manner collected a huge amount through them. There are all together seven Branches are functioning in undivided Koraput District. The Semiliguda Branch is one of them. Since 2009 to July 2012 the same branch staff collected the sum of Rupees Fifteen Crores during course of time from the customers out of which Rupees three crores only belong to the complainants. Some of the officials claiming and promising that they will give a return of 24% per annum. As such they easily collected money from the gullible depositors. However, it is said that they never paid the money to the petitioners (complainants) and closed the Seashore Companies Branch Office. 15. From the aforesaid facts, it is clear that the persons who have been cheated in the Semiliguda P.S. Case are different from the persons who have cheated in the earlier case registered by the EOW, CID, CB. Though petitioner No. 1 is common accused in both the cases, there are other accused persons in both the cases. 15. From the aforesaid facts, it is clear that the persons who have been cheated in the Semiliguda P.S. Case are different from the persons who have cheated in the earlier case registered by the EOW, CID, CB. Though petitioner No. 1 is common accused in both the cases, there are other accused persons in both the cases. The accused persons acting independently in other cases have promoted the business of illegal circulation of money and induced investors to deposit the same with them. So the offence committed by the accused persons named in the Semiliguda P.S. Case are distinctly different from the offences alleged in the CID, CB, EOW P.S. Case No. 39/2012. 16. So this Court comes to the conclusion that the offences mentioned in both the FIRs are different and, therefore, relying on the reported case of State of Gujarat v. Ganeshbhai Jakshibhai Bharwad and others, 2010 AIR SCW 5126 and in the case of State of Bihar v. Murad Ali Khan and others; AIR 1989 SC 1 , this Court comes to the conclusion that the second FIR lodged at Semiliguda P.S. cannot be quashed and for the self-same reason, both the cases cannot be merged. 17. With the aforesaid reasonings, this Court comes to the conclusion that the W.P. (Crl.) is devoid of any merit and the same is dismissed. Pending Misc. Case is also dismissed. Petition dismissed.