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2017 DIGILAW 618 (ORI)

Sabyasachi Pani v. Republic of India (CBI)

2017-06-20

D.P.CHOUDHURY

body2017
JUDGMENT : Dr. D.P. Choudhury, J. 1. This is an application under Section 439 of Cr.P.C. moved by the petitioner for allegedly implicated in the offence punishable under Sections 120(B)/420/409 of I.P.C. read with Sections 4, 5 and 6 of the Prize Chits and Money Circulation Schemes (Banning) Act, 1978. FACTS 2. The factual matrix leading to the case of the prosecution is that the petitioner is one of the promoter and Director of M/s. Swastik India Multi State Credit Co-operative Society Ltd. Office at Sundargarh. It is alleged inter alia that the Company was collecting public deposits by promising high interest rates and is indulged in money circulation. It has office at different places of the State including at Balasore while the Hon’ble Apex Court directed in W.P.(C) No.401 of 2013 to handover all cases of 44 Companies including this Company to investigate cases where innocent depositors have been cheated and money collected from them trailed by such Companies and their so called Directors and other employees being involved with such commission of offences. 3. It is alleged that C.B.I. after registering a case against the present Company investigated the matter. During investigation it came to know that the petitioner being the promoter and Director of the said Company has allured the innocent depositors to invest money with the promise to award high returns within short period but the depositors could not get back such matured amount and finally found the office at Balasore where the present petitioner was indulged in such activity has remained closed. Not only this but also there are other officials and Directors of the Company equally indulged in such illegal activities. So, the petitioner was arrested in 2016 and remained in custody. SUBMISSIONS 4. Mr. Asim Amitabh Dash, learned counsel for the petitioner submitted that the petitioner was an employee of the said Company but not the Director indulged in such dubious activities. He has not collected any money from depositors or allured the depositors to invest money with the promise to return money with high rate of interest. The petitioner was receiving salary from the Company and he was posted at Balasore being Branch Manager. The other co-accused persons have been already released on bail by this Court and the petitioner is languishing in jail custody since 7.1.2016. 5. The petitioner was receiving salary from the Company and he was posted at Balasore being Branch Manager. The other co-accused persons have been already released on bail by this Court and the petitioner is languishing in jail custody since 7.1.2016. 5. Learned counsel for the petitioner submitted that the C.B.I. has only alleged about Rs.25 lakhs of money credited to his personal account but same related to his salary and the maintenance of the office at Balasore. He was only employee for fourteen months in the Company and has no any complicity with the commission of offence. He further submitted that the petitioner undertakes to co-operate the investigation and he being a local resident is always available having no chance of his absconding. So, it is submitted to release the petitioner on bail with any condition as deemed fit and proper. 6. Mr. A.P. Bose, learned Assistant Solicitor General of India vehemently opposes the bail stating that the C.B.I. has started investigation being directed by the Hon’ble Apex Court in the case of Subrata Chattoraj v. Union of India & others and Alok Jena v. Union of India & others. He further submitted that according to investigation so far the petitioner is the Promoter and Director of the Company and he is actively involved at Balasore alluring the innocent persons to deposit money in their Company and accordingly Rs.5,81,97,007/- has been deposited by the innocent persons with the hope of getting high returns. It further reveals that out of such deposit Rs.2,77,60,000/- has been diverted to the sister Company namely Swastik India Multiprojects Limited by the petitioner and other Directors of the Company and thus the money collected has been trailed for wide circulation without having any permission from R.B.I. or other necessary regulators. 7. Mr. Bose, learned Assistant Solicitor General further submitted that a good amount of money has been siphoned off from the account of the Company to the personal account of the petitioner. The petitioner had signed the documents as Director and the money trailed to his personal account is not the salary of the petitioner but money of gullible depositors. According to the statement of the witnesses the office opened for about four months at Balasore and without informing the depositors remained closed and the depositors were harassed by not receiving the matured amount. According to the statement of the witnesses the office opened for about four months at Balasore and without informing the depositors remained closed and the depositors were harassed by not receiving the matured amount. Not only this but also the petitioner has made false promise to the depositors to return money but subsequently closed the office which show clear criminal intention to cheat the depositors who are none other than the common man in the society. 8. Mr. Bose, learned Assistant Solicitor General further submitted that the investigation although has completed but further investigation has been left open to find out money trailing involving other persons. Ranjan Kumar Das, one of the Promoter and Director of the Company has been granted bail by this Court on humanitarian point of view because of his illness and one Ashok Kumar Chand has been released on bail by this Court basing on the fact that he was mere employee of the Company without having exact role showing his complicity with the commission of offence. So, he submitted that the petitioner if enlarged on bail, would interference with the further investigation and there is every possibility of witness being tampered during trial of the case. So, he prayed to reject the bail petition. DISCUSSIONS 9. Before going to the fact of the case, the law on the question of grant of bail in the economic offences has been well addressed by the Hon’ble Apex Court in catena of decisions. It is reported in (2013) 2 SCC 801 ; Arun Bhandari v. State of U.P. and others where Their Lordships observed in the following manner: “26. At this stage, we may usefully note that sometimes a case may apparently look to be of civil nature or may involve a commercial transaction but such civil disputes or commercial disputes in certain circumstances may also contain ingredients of criminal offences and such disputes have to be entertained notwithstanding they are also civil disputes. In this context, we may reproduce a passage from Mohd. Ibrahim and others v. State of Bihar and another: (2009) 8 SCC 751 . “8. In this context, we may reproduce a passage from Mohd. Ibrahim and others v. State of Bihar and another: (2009) 8 SCC 751 . “8. This Court has time and again drawn attention to the growing tendency of the complainants attempting to give the cloak of a criminal offence to matters which are essentially and purely civil in nature, obviously either to apply pressure on the accused, or out of enmity towards the accused, or to subject the accused to harassment. Criminal courts should ensure that proceedings before it are not used for settling scores or to pressurize parties to settle civil disputes. But at the same time, it should be noted that several disputes of a civil nature may also contain the ingredients of criminal offences and if so, will have to be tried as criminal offences, even if they also amount to civil disputes. (See G. Sagar Suri v. State of U.P.; (2000) 2 SCC 636 : and Indian Oil Corpn. v. NEPC India Ltd.; (2006) 6 SCC 736 . Xxx xxx xxx 29. We have referred to the aforesaid decisions in the field to highlight about the role of the Court while dealing with such issues. In our considered opinion the present case falls in the category which cannot be stated at this stage to be purely civil in nature on the basis of the admitted documents or the allegations made in the FIR or what has come out in the investigation or for that matter what has been stated in the protest petition. We are disposed to think that prima facie there is allegation that there was a guilty intention to induce the complainant to part with money. We may hasten to clarify that it is not a case where a promise initially made could not lived up to subsequently. It is not a case where it could be said that even if the allegations in entirety are accepted, no case is made out. Needless to emphasise, the High Court, while exercising power under Article 226 of the Constitution or Section 482 of the Cr.PC, has to adopt a very cautious approach”. With due regard to the decision, it is clear that every wrong although seems to be a civil liability but the criminal intent behind the civil liability cannot be overlooked. 10. Needless to emphasise, the High Court, while exercising power under Article 226 of the Constitution or Section 482 of the Cr.PC, has to adopt a very cautious approach”. With due regard to the decision, it is clear that every wrong although seems to be a civil liability but the criminal intent behind the civil liability cannot be overlooked. 10. It is also reported in (2013) 7 SCC 466 ; Nimmagadda Prasad v. Central Bureau of Investigation where Their Lordships observed at paragraphs-24 and 25: “24. 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. 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 itself 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. 25. 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 a grave offence affecting the economy of the country as a whole and thereby posing serious threat to the financial health of the country”. 11. With due respect to the aforesaid decision, it appears that in the economic offences the Court should unveil the truth or must separate the grain from the chaff because of rampant economic offences polluting the society. 12. Now the fact of the case may be adverted to by following the aforesaid principle as enunciated by the Hon’ble Supreme Court while considering bail in economic offences. 12. Now the fact of the case may be adverted to by following the aforesaid principle as enunciated by the Hon’ble Supreme Court while considering bail in economic offences. No doubt the copy of the judgment in Subrata Chattoraj vs. Alok Jena reported in (2014) 58 OCR (SC) 905, shows that C.B.I. was permitted to conduct further investigation into the cases against 44 Companies in the State of Orissa where charge-sheet has already been filed. In that judgment Hon’ble Apex Court have been pleased to direct that investigation must be directed whether the money trail has been traced out or not and to find out the conspiracy angle because of the inter-state ramification which the investigation agency need to examine. Thus, it appears that the Company in question is one of the 44 Companies where investigation was conducted by the C.B.I. 13. From the F.I.R. it appears that one Ashok Kumar Chand and other Promoters are involved with the offence of cheating, money circulation, money trailing for which investigation was proceeded. The petitioner has filed Annexure-3 wherefrom it is found that the petitioner was offered a letter on 1.7.2011 to be appointed as Director of the Company with annual remuneration of Rs.13,33,332/-. The name of the Chairman is not mentioned but he has to report to the Chairman under his guidance and supervision. Not only this but also the respondent C.B.I. has filed a copy of the Deed of Agreement between one Anil Kumar Maity and the present Company represented by the present petitioner as Director of the Company about the house of Shri Maity being leased out to the Swastik India Multiprojects Ltd. So, from the above two documents, it appears that he was the Director of the Company. Statement of Manoranjan Mishra shows that he is a Priest and he was lured by the Director to deposit money in the deposited schemes of Swastik India Group with the assurance of payment of doubled the invested amount after three years and six months. So, on such assurance, he deposited a sum of Rs.50,000/- in Swastik India and it issued Deposit Certificate of Utkal Rural and Urban Development Credit Cooperative Society Limited mentioning the maturity value. He also stated to have opened another recurring deposit account. So, on such assurance, he deposited a sum of Rs.50,000/- in Swastik India and it issued Deposit Certificate of Utkal Rural and Urban Development Credit Cooperative Society Limited mentioning the maturity value. He also stated to have opened another recurring deposit account. He deposited all the amount in 2012 but in 2013 Swastik India was found to have closed the office and he has not got back his matured amount for which he stated to have been cheated. Similarly, the statements of Subrat Kumar Pattanyak and Satya Narayan Nayak show that being lured by the present petitioner as Director of Swastik India Multi State Credit Cooperative Society Limited have deposited good amount of money but before maturity date the office remained closed and they have not got back their money. The statement of one Kirit Kumar Machhar shows that the petitioner as Director has also taken the house of Kirit at Motiganj, Balasore on rent. But from April 2013 to September 2013 no rent was paid and the Company vacated the house. Thus, from the aforesaid material, it is clear that the petitioner was not only the Director but also actively involved in luring the gullible depositors to invest money in the Company and sister concern projects with the assurance of high return of interest but they have closed the office for which their criminal intention is well made out prima facie to cheat the gullible depositors. 14. The statement of one Chittaranjan Bihari shows that this Company has been registered and the present petitioner is not only the Director of the Company but also has 500 equity shares. In that Company Ranjan Kumar Das, Jagabandhu Panda, Pramod Kumar Parida, Hiranmayee Panda, Bhagyalaxmi Nanda and Manoranjan Nanda were also the Directors. His statement further shows that the petitioner is also the Director in Swastik Telemedia & Entertainment Private Limited and Senorita Ceramics Private Limited. The statement of Vinay Kumar Ginni shows that Ranjan Kumar Das was the Chief Promoter of the Company while it was constituted and the present petitioner was one of the members of the said Company at the time when it was formulated. So, from the aforesaid material, it appears that the petitioner is the founding member and also the Director of the said Company from the beginning. The statements of other witnesses also amply corroborate the aforesaid statement. 15. So, from the aforesaid material, it appears that the petitioner is the founding member and also the Director of the said Company from the beginning. The statements of other witnesses also amply corroborate the aforesaid statement. 15. The statement of Chinmaya Mohapatra, who is the Manager (Operation) of Axis Bank, Bhubaneswar shows that the present petitioner has got Account No.912010003117094 and also in the same Branch the Company in question has also got the Account. From the Company’s Account, it appears that good amount of money has been transferred to the personal account of the petitioner on 26.12.2011, 2.1.2012, 27.1.2012 and 2.2.2013. The statement of the present petitioner also shows that on several dates in 2012 the money has been debited from the account of Swastik India Multiprojects Limited and credited to the account of the present petitioner. Similarly, in 2011 also good amount of money has been debited from the Company Account and credited to the account of the present petitioner. The explanation of the present petitioner is that the money trailed to his personal account is with regard to his salary and maintenance of the house. If at all there is salary, then it could have been arrayed as salary for the petitioner. But money as it appears has been straight debited from the Company account and credited to the account of the present petitioner not as salary but the purpose is very well known to the petitioner. On the other hand, from the material it appears that in May 2013 Swastik India suddenly closed the office and the money collected from the gullible depositors have been trailed to the personal account of the petitioner, other Directors and Promoters for which they are accounted for. 16. From the aforesaid discussion, when the petitioner is involved actively in luring the gullible depositors to deposit the money in their Company and huge amount of money has been siphoned off to his account and other accounts and the Swastik India Credit Cooperative Ltd. has closed their office suddenly, prima facie case cannot be ruled out against the present petitioner. It is true that co-accused Ranjan Kumar Das, the Chief Promoter has been granted bail by this Court in BLAPL No.3383 of 2016. But it appears his case was not considered on merit but his case was considered only on humanitarian point of view because of his illness. It is true that co-accused Ranjan Kumar Das, the Chief Promoter has been granted bail by this Court in BLAPL No.3383 of 2016. But it appears his case was not considered on merit but his case was considered only on humanitarian point of view because of his illness. Similarly, one Ashok Kumar Chand has been released on bail by this Court in BLAPL No.14202 of 2013 on the ground that he is a mere employee of that Company but the case of the present petitioner cannot be at par with the case of these co-accused persons because the present petitioner is not only the Director but also Promoter of the Company has actively involved with the activities of the Company and there is reason to believe his complicity with the commission of offences. 17. In view of the decision in Nimmagadda Prasad (supra) the economic offence being directly connected with the economic growth of the country the petitioner does not deserve to be considered leniently for such offences. It is true that he is in custody since 7.1.2016 but it is settled in law that long incarceration in custody cannot be a ground to take lenient view. Considering all such aspects, for the larger interest of the people and society, I am loath to grant bail to the petitioner. Hence, the bail application being devoid of merit stands rejected. 18. Before parting from this order it is made clear that the observation as made above is for the purpose of granting or refusing bail but the trial court would evaluate the evidence adduced before it to decide the case on merit without being influenced by any observation made in the order. The BLAPL is dismissed accordingly.