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2016 DIGILAW 657 (ORI)

Braja Sundar Mishra v. State of Odisha

2016-08-18

D.P.CHOUDHURY

body2016
JUDGMENT : D.P. Choudhury, J. Here is an application under Section 439 of Cr.P.C. to release the petitioner on bail as there is allegations of commission of offences under Sections 420/467/468/471/406/120-B of the Indian Penal Code read with Sections 4, 5 and 6 of the Prize Chits and Money Circulation Schemes (Banning) Act, 1978 and Section 6 of the Odisha Protection of Interests of Depositors (in Financial Establishments) Act, 2011. 2. The factual matrix of the case of the prosecution is that the petitioner was the Managing Director of M/s. Land India Real Estate Private Limited and M/s. Land India Assets Limited. It is alleged inter alia that the present petitioner and other Directors of these two Companies induced the general public to make deposits in different schemes of the company so that the amount invested will be doubled and accordingly, the valuable depositors deposited amount with a hope of receiving a good amount of interest thereon. It is the case of the prosecution that being assured by petitioner and other Directors under different schemes, public deposited an amount of Rs.5,69,45,602.00 in M/s. Land India Real Estate Private Limited and Rs.2,81,89,900.00 in M/s. Land India Assets Limited. Altogether Rs.8,51,35,502.00 collected from 1985 persons on the assurance given by the present petitioner as Managing Director and other Directors of the company to the poor persons that their amount will be doubled in two years. When the depositors did not get back their money and went to the concerned company to demand their claim, they found the companies were under lock and key. It is alleged inter alia that prima facie case has been made out against the petitioner for committing serious economic offences. Although the charge sheet has been submitted, but in the event of release of the petitioner on bail, it will give a wrong message to the society and the depositors and there is every likelihood of tampering with the prosecution witnesses going to be examined. SUBMISSIONS 3. Mr. S.S. Ray, learned counsel for the petitioner submitted that the petitioner was the Managing Director of above two companies but the agents were collecting money from the depositors with the assurance of making double of the amount payable. 4. It is submitted by Mr. SUBMISSIONS 3. Mr. S.S. Ray, learned counsel for the petitioner submitted that the petitioner was the Managing Director of above two companies but the agents were collecting money from the depositors with the assurance of making double of the amount payable. 4. It is submitted by Mr. Ray, learned counsel for the petitioner that the calculation as per the Economic Offence Wing (in short „the EOW?) has falsely projected about the pendency of such amount of money against the petitioner. It is also submitted that the offences are triable by Magistrate First Class and they are not serious offences for which it is a fit case where the petitioner should be released on bail. He further submitted that out of the collected amount, the major amount have already been returned to the depositors and the amount outstanding as claimed by the EOW is not correct. Since the maturity date has not lapsed, it is not fair on the part of the prosecution to claim for return of the amount by the date the petitioner was apprehended. So, the petitioner may be released on bail with any condition as deemed fit and proper in the facts and circumstances of the case. 5. Mr. J. Patnaik, learned Additional Government Advocate, submitted that the petitioner, being the Managing Director of the above companies, has allured the public to deposit good amount of money in their company with the assurance to return the same with interest doubled the amount of the principal deposit and the valuable depositors, being motivated by the assurance of the present petitioner and other Directors of these two companies, have deposited the amount in their company. But, later on they did not receive the amount as promised by the petitioner and other Directors. When the depositors went to protest about the non-payment of their amount, they found the petitioner has left the headquarters along with his friends. It is further submitted by the learned Additional Government Advocate that the petitioner, being the Managing Director of these two companies has not obtained the permission from the Reserve Bank of India and other regulators for the investment of the money in their company and when the depositors are ran to their company, they found the companies are under lock and key and as such they have not got back their money invested. Since the petitioner has committed forgery, cheating and conspiracy read with other offences under the law, he has prima facie committed economic offences. It is further submitted that if the petitioner is released on bail, there will be tampering with the prosecution witnesses and the Court should be reluctant in this regard to release the present petitioner on bail as the Hon’ble Supreme Court have been pleased to take serious view in respect of the economic offences. DISCUSSION 6. It is reported in (2013) 7 SCC 439 ; Y.S. Jagan Mohan Reddy v. Central Bureau of Investigation, where Their Lordships observed at paragraphs-34, 35 and 36: “34. Economic offences constitute a class apart and need to be visited with a different approach in the matter of bail. The economic offences having deep rooted conspiracies and involving huge loss of public funds need 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 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 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”. 7. 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”. 7. It is reported in (2014) 16 SCC 508 ; Neeru Yadav v. State of Uttar Pradesh and another, where Their Lordships observed at Paragraphs-9 and 10: “9. In this context, a fruitful reference be made to the pronouncement in Ram Govind Upadhyay v. Sudarshan Singh; (2002) 3 SCC 598 , wherein this Court has observed that grant of bail though discretionary in nature, yet such exercise cannot be arbitrary, capricious and injudicious, for the heinous nature of the crime warrants more caution and there is greater change of rejection of bail, though, however dependant on the factual matrix of the matter. In the said decision, reference was made to Prahlad Singh Bhati v. NCT, Delhi; (2001) 4 SCC 280 and the Court opined thus: (Sudarshan Singh case, SCC p.602, para 4). "(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." 10. In Chaman Lal V. State of U.P.; (2004) 7 SCC 525 , the Court has laid down certain factors, namely, the nature of accusation, severity of punishment in case of conviction and the character of supporting evidence, reasonable apprehension of tampering with the witness or apprehension of threat to the complainant, and prima facie satisfaction of the Court in support of the charge which are to be kept in mind”. 8. From the aforesaid decisions, this Court is of the view that in respect of economic offences, the Court should adopt strict view even if the offences are triable by Magistrate First Class because the money invested by the public cannot be allowed to be misappropriated by some individuals who have not taken permission from the Reserve Bank of India and other regulators running such business. Not only this, but also it has been already enshrined in the above said paragraphs that the parameters required for considering regular bail under Section 439 Cr.P.C. should be also adhered to. Keeping in mind this principle, it has to find out as to whether the petitioner is entitled for bail. 9. On going through the statement of witnesses, it appears that the present petitioner was the Managing Director of M/s.Land India Real Estate Private Limited and M/s. Land India Assets Limited. The statements of Kabiranjan Sahoo, Purnachandra Kunda, Prahallad Swain, Kabiraj Palei and N.Jagaya Reddy and other witnesses, who have consistently stated that the present petitioner and the Directors of the above two companies have not obtained any permission from the Reserve Bank of India or any other authority to invest money in their respective companies. 10. It is revealed from the statements of the above witnesses and the statements of Susanta Kumar Mohanty, Trinath Mohanty and other persons who have consistently stated before the police that the present petitioner being the Managing Director of the aforesaid two companies, has induced the depositors to invest money in their company with the assurance that the money deposited by them would be doubled within a period of two years but they have not got back their matured amount. It is also revealed from the statements of the witnesses that when they rushed to the companies to get back their money, they found the companies are closed. 11. It is also revealed from the statements of the witnesses that when they rushed to the companies to get back their money, they found the companies are closed. 11. The statement of account showing the deposited amount by different depositors would show that out of Rs.8,53,01,806.00, only Rs.1,74,7000.00 have been paid back. But rest of the amount have not been paid to the valuable depositors. The investigating agency has also seized documents showing the name of agents engaged for collection of the amount and disbursement of the same to the depositors. On going through the same, it appears that very few amount out of the amount invested by different depositors have been returned, but rest of the money have not been returned so far. The EOW, during investigation, have come to find that the petitioner and his associates have collected Rs.8,51,35,502.00 but it was submitted by the learned Additional Government Advocate that Rs.6,44,92,262.00 is still to be paid back to the investors. 12. On going further through the aforesaid materials, undoubtedly the petitioner has allured the innocent depositors to invest money in their company prima facie and subsequently they decamped with the company. Very few amount of money has been realized and paid back to the depositors but yet huge amount of money is outstanding for payment to the investors. It is submitted by the learned Additional Government Advocate that vide Annexure-11, Rs.1,07,51,038.00 has been drawn from the accounts of the company, i.e, M/s. Land India Real Estate Private Limited and such amount has been misappropriated by the present petitioner as per the bank statement of the said company. The said fact undoubtedly amply proves the intention of the petitioner to grab the money of gullible investors. On the other hand, learned counsel for the petitioner submitted that no amount has been misappropriated by the petitioner. When there is glaring proof of trailing of money from the accounts of their companies which are under the stewardship of the present petitioner to his account, a huge amount has been collected at the instance of the present petitioner from the innocent depositors for their deposit with the company, it cannot be said that there is no prima facie case made out against the petitioner. 13. Besides, the Court has to take a strict view while considering the bail application in economic offences. 13. Besides, the Court has to take a strict view while considering the bail application in economic offences. Although the nature of allegation appears to be civil in nature, but the intention of the present petitioner, being to cheat the depositors as available from the materials, the Court has to take a serious view of the same. 14. In view of the catena of decisions of the Hon’ble Supreme Court and other decisions as stated above and considering the above materials, this Court is of the view that the petitioner is involved in serious economic offences prima facie and as such, this Court is loath to grant bail to the petitioner, who has got entire master mind of collection of money from the poor persons without any approval of the Reserve Bank of India and other regulating authority. It is settled in law that in economic offences, the attention of the Court should be drawn to the interest of the public and society. Since a good amount of money of gullible depositors has well siphoned off to the company and then to the petitioner’s personal account, for larger interest of the public and the society, the petitioner does not deserve to obtain any sympathy of the Court. So, the BLAPL, being devoid of merit, stands rejected.