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2014 DIGILAW 785 (ORI)

Aradhana Bisoyi v. State of Odisha

2014-11-21

S.K.SAHOO

body2014
Judgment S.K. Sahoo, J. Since both the bail applications arise out of one case and they were heard together, a common order is passed. These two bail applications have been filed under section 438 Cr.P.C. seeking pre-arrest bail in connection with Purushottampur P.S. Case No. 59 of 2014 registered under sections 420/120-B I.P.C. which corresponds to G.R. Case No.58 of 2014 pending in the court of learned J.M.F.C., Purushottampur. The petitioner No.1 Aradhana Bisoyi and petitioner No.2 Dillip Kumar Sahoo in BLAPL No.9806 of 2014 are the Director and Managing Director of M/s. Rushikulya Ayurvedic Cluster Private Limited (hereafter in short “the Company) respectively. The petitioner No.1 Smt. Anita Nayak in BLAPL No.10025 of 2014 is another Director of the Company and petitioner No.2 Dhabaleswar Nayak in BLAPL No.10025 of 2014 is the husband of petitioner No.1. 2. On 13.4.2014 an F.I.R. was presented by one Sunil Kumar Basantia, son of late Sambaru Basantia of village-Sunathara, P.S.-Purushottampur, Dist-Ganjam before Inspector-in-Charge, Purushottampur Police Station alleging therein that the petitioners are the Managing Director and Directors of the company. In the year 2009 there was an agreement between petitioners Smt. Anita Nayak and Aradhana Bisoyi with the informant regarding purchase of his four acres of land of the informant situated in Mouza Nimapalli by the company. The land was registered on 24.12.2009 at a consideration amount of Rs.45 lakhs as per the direction of petitioners Dillip Kumar Sahoo and Dhabaleswar Nayak but only Rs.2 lakhs was given to the informant. As the informant was ill, he executed a Power of Attorney in favour of his son Santosh Kumar Basantia to execute the sale deed on his behalf. It is stated that the petitioners conspired between themselves and allured the son of the informant and executed the sale deed. The petitioners assured the informant to pay the balance amount after receipt of the financial aid from the Government of India. In this process though three years passed but the petitioners did not take any steps to pay the balance consideration amount and ultimately told the informant that since he had already executed the registered sale deed, he would not get any more money. The informant was also threatened with the help of the anti-socials not to ask for any money. In this process though three years passed but the petitioners did not take any steps to pay the balance consideration amount and ultimately told the informant that since he had already executed the registered sale deed, he would not get any more money. The informant was also threatened with the help of the anti-socials not to ask for any money. The informant subsequently enquired into the matter and came to know that the petitioners have received the amount from the Government of India and by depositing six numbers of bearer cheques in the Bank of Baroda, Old Bus Stand, Berhampur for an amount of Rs.19.72 lakhs and by forging the signatures of the informant, they have misappropriated the amount. The informant came to know about the misappropriation on 14.11.2013 through RTI Act. Accordingly, he lodged the FIR to recover the balance of the consideration amount of Rs.43 lakhs from the petitioners who have cheated him and misappropriated his entitlement money from the Bank by forging his signatures. 3. The learned counsel for the petitioners Mr. J.K. Mishra, Senior Advocate submitted that the company was registered under Companies Act, 1956 having its registered office at Ajodhya Nagar, 2nd Line, Berhampur in the district of Ganjam and the company was constituted in the year 2009. He further submitted that the Company was included under Central Sector Scheme for development of common facilities for AYUSH Industries Clusters notified by the Government of India through its Ministry of Health and Family Welfare and one of the principal components of the Central Sector Scheme is the nonrecurring grant-in-aid in favour of the Company against the approved components of the projects viz., land development cost, physical infrastructure, common facility centers including plant and machinery etc. subject to the terms and conditions imposed upon as per guidelines of the Central Sector Scheme for the development of common facilities for AYUSH Industry Cluster approved by Government of India and further subject to the provisions contained in the General Financial Rules. The learned counsel for the petitioners further submitted that there was absolutely no misrepresentation or cheating to the informant by any of the petitioners in any manner and this case is nothing but a result of misunderstanding and difference of opinion between the informant and his son Santosh Kumar Basantia who are the principal and power of attorney holder respectively. The learned counsel for the petitioners further submitted that there was absolutely no misrepresentation or cheating to the informant by any of the petitioners in any manner and this case is nothing but a result of misunderstanding and difference of opinion between the informant and his son Santosh Kumar Basantia who are the principal and power of attorney holder respectively. He further submitted that sale deed in respect of four acres of land was duly executed by the informant through his son who was his power of attorney holder in one part and purchaser company on the other. He further submitted that if there was any discrepancy over the financial transactions made in favour of the informant through his son, the matter rests solely on the question of ratification between the father and the son. Since the purchaser company has paid full consideration amount as on record of evidence revealed from recital of the sale deed dated 24.12.2009, which is a registered document as well as supportive ledger entries made in the statement of accounts maintained in the Bank of Baroda, Berhampur Main Branch covering the period from 19.8.2009 to 31.12.2010 showing payments and encashment made by the informant through several cheques, the ingredients of offence under section 420 IPC is not attracted. He further submitted that the wife of the informant namely Nalini Kumar Basantia had filed a civil suit bearing C.S. No.78 of 2013 pending in the court Civil Judge (Sr. Division), Berhampur raising a money claim of Rs. 10 lakhs only against the petitioners and others in the pretext of having lending such money by her in favour of the company for purchase of the cluster land belonging to her and the informant. The learned counsel further submitted that the dispute appears to be civil in nature and since there is no chance of absconding or tampering with the evidence and the petitioners are the respectable citizens, they will be harassed and humiliated in the event of their arrest and therefore the application for anticipatory bail may be favourably considered. 4. The learned counsel for the State has produced the case diary and placed the statements of the informant as well as his son Santosh Kumar Basantia. 4. The learned counsel for the State has produced the case diary and placed the statements of the informant as well as his son Santosh Kumar Basantia. The statement of the son of the informant indicates that he was serving in the company and in the year 2009 he was allured by the petitioners to sale the land which was standing in the name of his father at Mouza Nimapalli and assurance was given to him that his service would be regularized and accordingly he convinced his father (informant). His statement further indicates that the land was shown to be sold in a higher rate in the sale deed though the actual cost was much less and even though assurance was given to pay back the balance amount but he and his father were neither given the balance dues rather they were duped and threatened. Subsequently he came to know that the petitioners have forged the signatures of the his father (informant) and by presenting six numbers of cheques in the bank, they have misappropriated an amount of Rs 19.72 lakh. The learned counsel for the State further submitted that there was no bank account of the informant in the year 2009 and he only opened an account in the year 2010 in the State Bank of India at Bhatakumarada. He further submitted that though the actual sale price of the plot situated in the Mouza Nimapalli is not Rs.45 lakhs but it was shown as Rs.45 lakhs in the sale deed at the instance of the petitioners to get financial benefits from the Government of India. The learned counsel for the State further submitted that an account in the name of the company was opened in the Bank of Baroda, Main Branch, Berhampur on 18.8.2009 and the said account was closed on 31.12.2010. Since the cheques issued in the name of the informant were the bearer cheques and there is no bar to give the amount to the bearer of the cheques and in the year 2009 there was no rule for production of identification proof for delivery of huge amount of cash, the petitioners adopted this method of issuance of bearer cheques in the name of the informant and misappropriated such amount and the informant was not even aware of the same. The learned counsel further submitted that the specimen signature of the informant has been taken and it is to be sent to handwriting expert to ascertain whether the allegations of forgery of the signatures as alleged by the informant are correct or not. He further submitted that the Government allotment of Rs.1,20,000,00/-was received for the company through R.T.G.S. from the Government of India by the State Bank of Hyderabad, Main branch, Berhampur on 9.9.2010 vide Account No. 62136676857 and the Board of Directors have made transaction till date. The learned counsel for the State further submits that though the case has been registered under sections 420/120-B I.P.C. but there is likelihood of the case being converted to more serious offences. The learned counsel further submitted that larger conspiracy angle is involved in the transaction to siphon off the money entrusted to the company by the Government of India in as much as the materials on record indicates that the actual sale price of the plot in question was much less than Rs. 45 lakhs as mentioned in the sale deed but it was deliberately shown at a higher side with an oblique motive. The learned counsel for the State further submitted that in a case of this nature, the custodial interrogation would be very much necessary and if the petitioners are ensconced with a favourable order of pre-arrest bail then there is likelihood of concealment of many useful information and materials and therefore the anticipatory bail should not be granted. 5. After considering the submissions made by the learned counsel for the petitioners as well as learned counsel for the State and the materials available on record, it is found that not only in the FIR but also in the 161 statements of the informant as well as his son, it prima facie appears that on the basis of an agreement between the informant and the petitioners in the year 2009, a sale deed in respect of Ac.4.000 dec. (Four acres only) of land situated in Mouza Nimapalli under Khata No.490, Chaka No.649, Plot No.2489 was executed on 24.12.2009 before the Sub-Registrar, Purushottampur, Ganjam by Sunil Kumar Basantia who is the son of the informant and his power of attorney holder in favour of the company represented through its Managing Director Anita Nayak and Director Aradhana Bisoyi who are the petitioner No.1 in BLAPL No. 10025 of 2014 and BLAPL 9806 of 2014 respectively. The statement of the informant on re-examination indicates that he had no bank account in the year 2009 and he had only opened an account in the year 2010 in the State Bank of India Bhatakumarada. The statements on record further indicate that the informant has not received any bearer cheque from the company which was stated to have been issued in his name by petitioner Anita Nayak as Managing Director of the company on different dates. The statement of the Branch Manager of Bank of Baroda, Main Branch, Berhampur has been recorded which indicates that an account in the name of the company was opened on 19.8.2009 and it was closed on 31.12.2010. He further stated that since the cheques issued in the name of Sunil Kumar Basantia were all bearer cheques, there is no bar to give the amount to the bearer of the cheque. He has further stated that in the year 2009, there was no rule for production of identification proof for delivery of even huge amount of cash. 6. A bearer cheque is one that does not have the word “bearer” on the cheque cancelled. The cheque sometime can be made payable to “cash” or bearer or made payable to a specific name. The cheque is payable by the drawee bank over the counter to the bearer or presenter of the cheque. A bearer cheque can be negotiated or passed to another person by mere delivery. In other words, the holder (or the transferor), when giving it to another person need not endorse the cheque. No identification is needed when a bearer cheque is presented for encashment. However, in normal banking practice, where the amount of the cheque is substantial, the identity of the encasher is insisted on. A bearer cheque can be collected by the Bank for the credit of anyone’s account. No identification is needed when a bearer cheque is presented for encashment. However, in normal banking practice, where the amount of the cheque is substantial, the identity of the encasher is insisted on. A bearer cheque can be collected by the Bank for the credit of anyone’s account. In banking practice, the need for encasher’s signature on the back of the cheque is merely to evidence that the encasher has received the money from the bank. The cancellation of the word “bearer” automatically makes the cheque an “order cheque”. Identification is insisted by the Bank while encashing the “order cheque” for the presenter. 7. The contention of the learned counsel for the petitioners that dispute between the parties is civil in nature and civil suit is also pending between them is not a ground for grant of anticipatory bail. If civil suit is pending, an appropriate order will be passed by the competent Court. That, however, does not mean that if the accused persons have committed any offence, jurisdiction of criminal Court would be ousted. Both the proceedings are separate, independent and one cannot abate or defeat the other. 8. The investigation conducted so far prima facie reveals the following materials:- (i) The actual sale price of the plot situated in Mouza Nimapalli under Khata No.490, Chaka No.649, Plot No.2489 is much less than as mentioned in the sale deed and it was shown at a much higher side to get the maximum financial benefits from the Government of India; (ii) The statements of the informant and his son indicate that only Rs.2 lakhs out of consideration amount of Rs. 45 lakhs as mentioned in the sale deed has been paid to the informant and so far as the payment of an amount of Rs. 19.72 lakhs made through six bearer cheques of Bank of Baroda, Berhampur Main Branch, Berhampur to the informant is disputed; (iii) The account of the company was opened on 18.8.2009 and it was closed on 31.12.2010 and the bearer cheque amount was withdrawn in cash on six occasions and the last was on 23.12.2009 i.e., much prior to the receipt of Government of India allotment which is on 9.9.2010 by the State Bank of Hyderabad, Main Branch, Berhampur vide account No.62136676857. Thus prior to the receipt of Government allotment, Rs.19.72 lakhs was withdrawn from the Company’s account in Bank of Baroda, Main Branch, Berhampur through bearer cheques; (iv) There is absolutely no material on record regarding payment of the balance of the consideration amount of Rs. 45 lakhs as mentioned in the sale deed apart from Rs. 2 lakhs which is admittedly received by the informant and Rs.19.72 lakhs which is alleged to have been paid to the informant through bearer cheques of Bank of Baroda but disputed; (v) The specimen signature of the informant has been collected by the Investigating Officer for the purpose of sending it to handwriting expert for comparison with the disputed signatures as stated by the learned counsel for the State and the investigation is under progress; (vi) The larger conspiracy angle in order to establish the involvement of other persons to siphon off the Government of India money is to be unearthed; (vii) The statements of the informant and his son indicate that the accused petitioners have threatened them when they asked for the payment of balance of consideration amount and therefore chance of tampering with the evidence is not completely ruled out; (viii) In spite of lodging of F.I.R. on 13.4.2014, the investigation has not made substantial progress for the best reason known to the Investigating Officer and on much aspect the investigation has not been conducted at all. 9. Law is well settled that the power exercisable under section 438 of the Code is somewhat extraordinary in character and it is to 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. A balancing act has to be made between free, fair and full investigation of the case vis-à-vis harassment, humiliation and unjustified detention of an accused. In view such available materials on record, particularly considering the nature and gravity of the accusations with utmost care and caution, I am not inclined to exercise the discretionary power under section 438 by granting pre-arrest bail to the petitioners. Accordingly, the anticipatory bail applications of the petitioners are rejected. A free copy of the order be handed over to the learned State counsel. The BLAPL is accordingly disposed of.