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2016 DIGILAW 1044 (ORI)

Susanta Kumar Jena v. State of Orissa

2016-11-04

D.P.CHOUDHURY

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JUDGMENT : D.P. Choudhury, J. The petitioner, who allegedly involved with the offence under Sections 167/467/468/471/406/409/420/120-B of the Indian Penal Code pending in the Court of the learned S.D.J.M., Baripada corresponding to G.R. Case No.1239 of 2014, has filed this application for bail. 2. The factual matrix leading to the case of the prosecution is that the Bank of India, SIPS Campus Branch lodged the FIR stating therein that there was one “JALANIDHI” Scheme (hereinafter called “the Scheme”) duly mooted by the State Government in the Department of Agriculture for installation of the bore-well on the loan granted to the beneficiaries. It is the further case of the prosecution that one co-accused Bangali Charan Jena, who is the proprietor of M/s. Oriental Machinery Supplier (Udala) and the said supplier firm was authorized to supply the bore-well to the beneficiaries on being recommended by the Assistant Agriculture Officer. The beneficiaries would be given loan with 50% subsidy duly sanctioned by the State Government. The prosecution alleged that the present petitioner and his father have submitted 131 applications of the beneficiaries with forged recommendation of the Assistant Agriculture Officer and in connivance with the concerned bank officer, the loan was sanctioned in favour of the beneficiaries without 50% subsidy being accounted to the respective accounts of the beneficiaries and the entire amount of Rs.1,31,00,000.00 (rupees one crore thirty-one lakh) of 131 beneficiaries have been credited to the account of said supplier firm of which the proprietor is the co-accused Bangali Charan Jena between the period from 8.5.2012 to 26.3.2013 and out of such amount, Rs.99,00,000.00 (rupees ninety-nine lakh) have been transferred to the account of the present petitioner on different dates. In the FIR, the bank has alleged that the co-accused Girija Shankar Mishra and Satarupa Mohanty, who are bank officers being in conspiracy with the present petitioner and his father have caused huge loss to the bank and the State Government and the bank has already taken disciplinary action against the bank officials. 3. In the FIR, the bank has alleged that the co-accused Girija Shankar Mishra and Satarupa Mohanty, who are bank officers being in conspiracy with the present petitioner and his father have caused huge loss to the bank and the State Government and the bank has already taken disciplinary action against the bank officials. 3. During investigation, the Investigating Officer found the Assistant Agriculture Officer has authorized the names of 18 beneficiaries but the present petitioner and his father have submitted false and forged applications of rest of the beneficiaries in connivance with the then co-accused Branch Manager G.S.Mishra and all the accused persons having made conspiracy, got the loan sanctioned and the amount of Rs.1,00,000.00 (rupees one lakh) each of 131 beneficiaries were credited to the account of the supplier of which the proprietor is the co-accused Bangali Charan Jena, who happens to be the father of the present petitioner. Most of the beneficiaries have not been supplied with any pump set under the Scheme and some having been supplied with defective pump set by firm of the present petitioner and his father. So, the prosecution has found that due to conspiracy between the present petitioner and his father and the co-accused bank official, they are able to cheat the beneficiaries and misappropriated the entire amount of Rs.1.31 crore. The prosecution, during investigations, further found that the signature and the seal of the Assistant Agriculture Officer and the bank official have been forged as per the opinion of hand writing expert and the statements of the witnesses also do not disclose about the loan being sanctioned on their approach and they have not received any subsidy under the Scheme. Thus, the prosecution alleged about misappropriation of Rs.99.00 lakhs by the present petitioner, as out of Rs.1.31 crores being transferred to his account which is without any sort of approval under the Scheme. The Economic Wing of the Crime Branch took up investigation and after investigation submitted charge-sheet under Sections 167/467/468/471/406/409/420/120-B of the Indian Penal Code. 4. Mr.Lenka, learned counsel for the petitioner submitted that the present petitioner has no any role in the Scheme and he has been falsely implicated in this case. M/s. Oriental Machiery Supplier is only a supplier of pump set for the bore-well/shallow-tube and his father is the proprietor of that firm. 4. Mr.Lenka, learned counsel for the petitioner submitted that the present petitioner has no any role in the Scheme and he has been falsely implicated in this case. M/s. Oriental Machiery Supplier is only a supplier of pump set for the bore-well/shallow-tube and his father is the proprietor of that firm. According to him, the allegations have been submitted by the beneficiaries directly to the concerned bank and as per the procedure, bank has asked the firm of his father to supply pump sets and accordingly pump sets have been supplied for the benefit of the applicants. He further submitted that the entire amount has gone to the account of the firm of which his father is the owner and he has to supply the pump sets for the purpose and the transfer of money to his account from the account of the firm is nothing but transaction between his father and himself. There is no material to show that he is involved with any transaction as alleged by the prosecution. There is no any material to show that the present petitioner has forged any signature and seal of the Assistant Agriculture Officer or the beneficiaries but admitted that he was helping his father in promoting his business but he is not a party to the business transaction of the firm of which his father is the proprietor. In the alternative, he further submitted that all 131 beneficiaries have got the pump sets installed with good condition and in support of that, he has filed the copies of the photographs showing the installation of the pump sets under the assistance of Bank of India duly supplied by the firm of his father. In support of his claim, the petitioner also supplied photo copies of the cash memos and in such memos, there is a declaration of the customer to the effect that he has received the machine in the proper condition and he has no any objection to such supplied of machines. So, he submitted that the allegation by the Crime Branch is out-right false and fabricated for which he may be released on bail with any condition as deemed fit and proper in the facts and circumstances of the case. 5. So, he submitted that the allegation by the Crime Branch is out-right false and fabricated for which he may be released on bail with any condition as deemed fit and proper in the facts and circumstances of the case. 5. Learned Additional Standing Counsel for the Crime Branch has submitted that after the FIR received from the bank, the investigation was conducted by the senior officers and after investigation, it was found that the recommendation of the concerned Government Officer being forged and the applications of the beneficiaries having been forged at the instance of the accused persons including the present petitioner, the loan amount of Rs.1,00,000.00 each of all the 131 persons transferred to the account of the firm of the father of the present petitioner and the present petitioner has misappropriated the same. He further submitted that none of the beneficiaries have received the benefit of such loan amount and the proper procedure has not been followed by the bank officers and the present petitioner. He contended that there is clear materials to show that Rs.99,00,000.00 out of Rs.1.31 crores have already been received by the present petitioner in his personal account out of said misappropriated amount. So, he vehemently opposed the bail for the larger interest of the society and general public. 6. The law in the manner of consideration of bail under Section 439 Cr.P.C. is no more res-integra. In the case of Ranjit Singh –V- State of M.P. and Others; 2013 (12) SCALE 190 Hon’ble Supreme Court, at paragraphs-21 to 24 have observed as follows: “21. In Chaman Lal –V- State of U.P.; (2004) 7 SCC 525 , this Court, while dealing with an application for bail, has stated that certain factors are to be borne in mind and they are:- “…. (i) the nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence, (ii) reasonable apprehension of tampering with the witness or apprehension of threat to the complainant, and (iii) prima facie satisfaction of the court in support of the charge.” 22. (i) the nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence, (ii) reasonable apprehension of tampering with the witness or apprehension of threat to the complainant, and (iii) prima facie satisfaction of the court in support of the charge.” 22. In Prasanta Kumar Sarkar v. Ashis Chatterjee; (2010) 14 SCC 496 , this Court, while emphasizing on the exercise of discretionary power generally has to be done in strict compliance with the basic principles laid down in plethora of decisions of this Court, has observed as follows:- “9… among other circumstances, the factors which are to be borne in mind while considering an application for bail are: (i) whether there is any prima facie or reasonable ground to be believed that the accused had committed the offence; (ii) nature and gravity of the accusation; (iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing, if released on bail; (v) character, behavior, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being influenced; and (viii) danger, of course, of justice being thwarted by grant of bail.” 23. The said principles have been reiterated in Ash Mohammad v. Shiv Raj Singh alias Lalla Babu and another; (2012) 9 SCC 446 . 24. In this context, we may refer with profit to the recent pronouncement in Central Bureau of Investigation v. V. Vijay Sai Reddy; 2013 (7) SCALE 15 wherein the learned Judges have expressed thus: - “28. While granting bail, the court has to keep in mind the nature of accusation, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public/ State and other similar considerations. It has also to be kept in mind that for the purpose of granting bail, the Legislature has used the words “reasonable grounds for believing” instead of “the evidence” which means the Court dealing with the grant of bail can only satisfy it as to whether there is a genuine case against the accused and that the prosecution will be able to produce prima facie evidence in support of the charge. It is not expected, at this stage, to have the evidence establishing the guilt of the accused beyond reasonable doubt.” 7. In the case of Neeru Yadav –V- State of U.P. and another; (2014) 16 SCC) 508 , Hon’ble Supreme Court have observed as follows: “9. Xx xx xx. In the said decision, reference was made to Prahlad Singh Bhati v. NCT, Delhi; (2001) 4 SCC 280 and the Court opined thus: “(a) While granting bail the court has to keep in mind not only the nature of the accusations, but the severity of the punishment, if the accusation entails a conviction and the nature of evidence in support of the accusations. (b) Reasonable apprehensions of the witnesses being tampered with or the apprehension of there being a threat for the complainant should also weigh with the court in the matter of grant of bail. (c) While it is not expected to have the entire evidence establishing the guilt of the accused beyond reasonable doubt but there ought always to be a prima facie satisfaction of the court in support of the charge. (d) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail, and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail.” With dues respect to the said decision, it is clear that while considering the petition under Section 439 Cr.P.C., Court has to follow the above parameters. 8. In the case of Y.S. Jagan Mohan Reddy –V- Central Bureau of Investigation; (2013) 7 SCC 439 , Hon’ble Supreme Court of India at paragraphs-34, 35 and 36 have observed as follows: “(34) Economic offences constitute a class apart and need to be visited with a different approach in the matter of bail. 8. In the case of Y.S. Jagan Mohan Reddy –V- Central Bureau of Investigation; (2013) 7 SCC 439 , Hon’ble Supreme Court of India at paragraphs-34, 35 and 36 have observed as follows: “(34) Economic offences constitute a class apart and need to be visited with a different approach in the matter of bail. The economic offence having deep rooted conspiracies and involving huge loss of public funds needs to be viewed seriously and considered as grave offences affecting the economy of the country as a whole and thereby posing serious threat to the financial health of the country. (35) While granting bail, the court has to keep in mind the nature of accusations, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public/State and other similar considerations. (36) Taking note of all these facts and the huge magnitude of the case and also the request of the CBI asking for further time for completion of the investigation in filing the charge sheets, without expressing any opinion on the merits, we are of the opinion that the release of the appellant at this stage may hamper the investigation. However, we direct the CBI to complete the investigation and file the charge sheets within a period of 4 months from today. Thereafter, as observed in the earlier order dated 05.10.2012, the appellant is free to renew his prayer for bail before the trial Court and if any such petition is filed, the trial Court is free to consider the prayer for bail independently on its own merits without being influenced by dismissal of the present appeal.” 9. Bearing in mind the above principle to consider the bail application under Section 439 Cr.P.C., the contention of the respective learned counsels have to be considered. The statement of Trilochan Samal, Assistant Agriculture Officer disclosed that in the year 2012, he has forwarded applications for sanction of loan in favour of 18 farmers under the Scheme with subsidy of 50% to the Branch Manager of Bank of India, SIPS Campus Branch, Jharpokharia, but he did not get any response. The statement of Trilochan Samal, Assistant Agriculture Officer disclosed that in the year 2012, he has forwarded applications for sanction of loan in favour of 18 farmers under the Scheme with subsidy of 50% to the Branch Manager of Bank of India, SIPS Campus Branch, Jharpokharia, but he did not get any response. After some time, he got the letter from the Branch Manager of Bank of India, SIPS Campus Branch, Jharpokharia to confirm the letter dated 20.4.2012 allegedly to have been sent by him forwarding the proposal of 131 beneficiaries under the Scheme and he found his signature and seal have been forged. So, he replied accordingly. As per the procedure, order is to be issued to the approved beneficiaries after due layout of dug well/bore well by the Agriculture Engineer and the documents are to be submitted to the District Agriculture Officer and finally APICOL, Bhubaneswar for final approval of subsidy to the concerned bank. But, in the present case no such procedure was followed. 10. The statements of Rohitaswa Mohanty, Rasbihari Naik, Sachindra Mohanta and Nilamber Singh recorded under Sections 161 and 164 Cr.P.C. show that they were persuaded by the present petitioner and the Manager of the supplier to take loan for installation of the pump set/bore-well by incurring loan from the concerned bank and after some days, they found that the loan account has been opened by the concerned accused bank official. It is also revealed from their statements that they have been paid some cash and old defective pump sets have been supplied by the present petitioner and subsequently found that notice has come for payment of loan amount whereas they had not incurred any loan from the bank at all. The opinion of the hand writing expert also shows that the signature and seal of the Assistant Agriculture Officer Trilochan Samal have been forged and also the signatures of the beneficiaries have been found forged. The documents of the bank have been also forged. The opinion of the hand writing expert also shows that the signature and seal of the Assistant Agriculture Officer Trilochan Samal have been forged and also the signatures of the beneficiaries have been found forged. The documents of the bank have been also forged. The statement of the bank officer and the seized statement of account maintained in the bank of Udala branch show that in between the date 8.5.2012 to 30.3.2013, an amount of Rs.1.31 crores have been credited to the account of the supplier and in between the said dates, an amount of Rs.99,00,000/- out of Rs.1.31 crores have been transferred to the account of the present petitioner maintained in the Jharapokharia Branch of Bank of India. 11. From the foregoing discussions, it cannot be said that the present petitioner is an outsider and has no role with the said sham transactions. When there is material to show that the present petitioner and the manager of the firm have persuaded the people to incur the loan and they also directly took the loan amount applications from the bank where other co-accused having made conspiracy got the loan account opened and finally the signature and seal of the Assistant Agriculture Officer got forged and an amount of Rs.99,00,000/- having been siphoned off to the account of the present petitioner, it cannot be said that there is no prima facie case against the present petitioner. The misappropriation of amount is huge one and it is a great economic loss to the State, particularly when there is material to show that neither good pump set nor bore-well being provided to the beneficiaries and the loan has been sanctioned against them without a single pie of subsidy being transferred to the respective account. Thus, the role of the petitioner speaks volume against him. Apart from this, the documents produced by the petitioner himself, raise the doubt in the mind as to why there is a declaration by the customers in their respective cash memos that customer has received the machine in good condition and he has no objection later on to be raised. If the firm is a simple supplier of the machinery, it has no business to take declaration of the customer as the supplier is only to act according to the instruction of the Agriculture Engineer. If the firm is a simple supplier of the machinery, it has no business to take declaration of the customer as the supplier is only to act according to the instruction of the Agriculture Engineer. So, the documents produced by the petitioner in order to show his clean image, add a link to the alleged material produced by the prosecution. Be that as it may, there is a strong prima facie case against the petitioner and although the offences are triable by Magistrate First Class, but the nature of the allegation of misappropriation of public money, is so grave to extend any sympathy to the petitioner to take a lenient view. On the other hand, for the interest of the society and general public, it is not a fit case where bail should be granted to the petitioner. So, for the larger interest of the society and general public, the application for bail, being devoid of any merits, stands rejected.