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2019 DIGILAW 220 (ORI)

Muna Patra @ Patro v. State of Odisha

2019-03-18

S.K.SAHOO

body2019
JUDGMENT : S. K. SAHOO, J. 1. The petitioner Muna Patra @ Patro has filed this application under section 439 of Code of Criminal Procedure seeking for bail in connection with E.O.W., Bhubaneswar P.S. Case No.10 of 2015 corresponding to C.T. Case No.13 of 2015 pending on the file of Presiding Officer, Designated Court, O.P.I.D. Act, Cuttack for offences punishable under sections 467, 468, 471, 420, 406 read with section 120-B of the Indian Penal Code and sections 4, 5 and 6 of the Prize Chits and Money Circulation Schemes (Banning) Act, 1978 (hereafter 1978 Act) and section 6 of the Odisha Protection of Interests of Depositors (in Financial Establishments) Act, 2011 (hereafter O.P.I.D. Act). 2. On 09.04.2015 one Jagdish Routa of village-Patigada under Polasara police station in the district of Ganjam lodged the first information report before the Superintendent of Police, Economic Offences Wing, Odisha, Bhubaneswar stating therein that he was working as Marketing Executive at Surat since 2010. The petitioner and others formed Oscar Group of Companies (hereafter the companies) consisting of M/s. Oscar Real Estate Pvt. Ltd., M/s. Oscar Management Services Ltd., M/s. Oscar Infra Development Ltd., Oscar Co-operative Ltd., Oscar Movies, Oscar Education Trust and other companies. One Pravash Chandra Rout was the Chairman -cum- Managing Director of the companies. It is further stated that out of these companies, M/s. Oscar Management Services Ltd., M/s. Oscar Infradevelopment Ltd. and Oscar Co-operative Ltd. were collecting deposits from public under various schemes since 2008, such as recurring deposits and fixed deposits by alluring them of higher rates of interest than that of prevailing bank rates through colourful brochures and other methods. Hefty commission was paid to the sales team for encouraging them to collect more and more deposits. The companies were operating from its branches in the States of Gujarat, Odisha and Maharashtra. The companies were not authorized by Reserve Bank of India to collect deposits from public and even not listed in any of the Stock Exchange of India. The companies collected crores and crores of rupees from public even though it had no such income to give such high rate of interest along with commission. It is further stated that the companies were paying money to the old depositors out of the collection made from the new depositors. After collecting the money, the companies transferred the amount to its sister concerns. It is further stated that the companies were paying money to the old depositors out of the collection made from the new depositors. After collecting the money, the companies transferred the amount to its sister concerns. Fake certificates were issued to the investors after receipt of money and ultimately the company officials shut down their offices and fled away. It is the case of the informant that he had deposited Rs.60,000/- (rupees sixty thousand only) as fixed deposits and Rs.1,40,000/- (rupees one lakh forty thousand only) in recurring deposits in his name and in the name of his family members and he was cheated by the companies and like him, thousand and thousand of persons have been cheated. 3. On receipt of the first information report, E.O.W., Bhubaneswar P.S. Case No.10 of 2015 was registered under sections 467, 468, 471, 420, 406, 120-B of the Indian Penal Code, sections 4, 5 and 6 of the 1978 Act and section 6 of the O.P.I.D. Act. Mr. Niranjan Behera, Inspector of Police, E.O.W., Bhubaneswar was entrusted with the investigation of the case. During course of investigation, it was found that the petitioner was one of the Directors of the companies and the registered office of the companies was situated in the IRC Village, Nayapalli, Bhubaneswar. The Directors were collecting huge amount of money from the general public by launching different schemes and assured the depositors to pay the double amount of the deposit. During the period from 2007 to April 2013, the companies collected Rs.230 crores from different depositors in the States of Odisha, Gujarat and Maharashtra by opening more than 150 branches alluring the investors of higher rates of interest than the Nationalized Bank and Financial Institutions. The employees of the companies after receipt of deposits were issuing certificates/bonds/money receipts under the signatures of the Directors of the companies even though they were not authorized to issue such certificates which were found to be forged. At the initial stage, the Directors paid interest to the old depositors from out of the money collected from the new investors. The companies were not registered with Reserve Bank of India as non-banking financial companies. The investors were mainly from labour class Odia people working in the States of Gujarat and Maharashtra who were duped by showing colourful leaflets and brochures. The companies were not registered with Reserve Bank of India as non-banking financial companies. The investors were mainly from labour class Odia people working in the States of Gujarat and Maharashtra who were duped by showing colourful leaflets and brochures. The investigation further revealed that the Directors of the companies diverted the funds collected from innocent public to purchase land, construction of buildings and they also established a +2 Science College at Kendrapara and produced some Odia movies. Numbers of important documents were seized and requisitions were issued to the banks for freezing the bank accounts of the companies and also to furnish bank statements with certificates. Requisitions were sent to the District Sub-Registrar, Khurda-Bhubaneswar and other districts not to allow any kind of sale/purchase, deed or power of attorney in respect of the properties which were standing in the names of the companies and its sister concerns. During investigation, the petitioner was arrested on 02.05.2015 and after being produced before the Designated Court at Cuttack, he was taken on remand and at his instance, some land documents were seized. On the basis of oral and documentary evidence collected during course of investigation, prima facie case under sections 467, 468, 471, 420, 120-B of the Indian Penal Code, sections 4, 5 and 6 of 1978 Act and section 6 of the O.P.I.D. Act was found against the petitioner and others and accordingly, first charge sheet was submitted on 27.08.2015 keeping the investigation open. On 06.10.2016 second charge sheet was submitted under sections 465, 467, 468, 471, 406, 420, 120-B, 201 of the Indian Penal Code, sections 4, 5 and 6 of 1978 Act and section 6 of the O.P.I.D. Act against the petitioner and others keeping the investigation open under section 173(8) of Cr.P.C. for examination of other investors/witnesses, collection of retrieval of data from CFSL, Kolkata, seizure of documents and collection of further evidence. 4. The petitioner moved an application for bail before the learned Presiding Officer, Designated Court, O.P.I.D. Act, Cuttack which was rejected on 31.07.2018. It appears that earlier the petitioner approached this Court thrice for bail after his arrest. His first bail application in BLAPL No.3339 of 2015 was withdrawn on 15.10.2015. His second bail application in BLAPL No.6071 of 2015 was rejected on 03.01.2016. His third bail application in BLAPL No.909 of 2018 was withdrawn on 25.06.2018. 5. Mr. It appears that earlier the petitioner approached this Court thrice for bail after his arrest. His first bail application in BLAPL No.3339 of 2015 was withdrawn on 15.10.2015. His second bail application in BLAPL No.6071 of 2015 was rejected on 03.01.2016. His third bail application in BLAPL No.909 of 2018 was withdrawn on 25.06.2018. 5. Mr. Suresh Tripathy, learned counsel for the petitioner contended that the petitioner is in jail custody since 02.05.2015 and in the meantime, trial has already commenced and out of thirty four charge sheet witnesses, five witnesses have so far been examined in the trial Court. He further contended that the snail speed at which the trial is progressing, it might take a few more years for its completion. He further contended that the petitioner was one of the Directors of the companies and other Director namely Tara Prasad Hotta has already been released on bail in BLAPL No.2403 of 2018 vide order dated 03.12.2018. He emphatically contended that there is no allegation against the petitioner to have misappropriated any amount from the companies and since there is inordinate delay in the progress of the trial and similarly situated co-accused has been enlarged on bail, therefore, on the ground of parity and equity, the bail application of the petitioner may be favourably considered. Mr. Bibekananda Bhuyan, learned Special Counsel appearing for the State of Odisha vehemently opposed the bail application and submitted that the petitioner is involved in a series of similar cases in the States of Gujarat and Maharastra. The petitioner was taken on remand in twelve cases to the States of Gujarat and Maharashtra in between 20.08.2016 to 05.05.2018 on the strength of production warrants issued by different Courts of Gujarat and Maharashtra. The details of remand, case numbers, names of Court and total period of remand of the petitioner to those States were furnished by way of an affidavit of the Investigating Officer. It is submitted that delay in trial was caused for such reason and it was not deliberately done. He emphasized that since it is an economic offence and the manner in which the petitioner and other Directors of the companies collected crores of rupees from different depositors in different States by opening numbers of branches alluring them higher rates of interest, he does not deserve to be released on bail. 6. He emphasized that since it is an economic offence and the manner in which the petitioner and other Directors of the companies collected crores of rupees from different depositors in different States by opening numbers of branches alluring them higher rates of interest, he does not deserve to be released on bail. 6. Even though one of the Directors namely Tara Prasad Hotta has already been released but law is well settled as held in case of Preeti Bhatia -Vrs.- Republic of India reported in (2015) 61 Orissa Criminal Reports (SC) 131 that parity cannot be the sole ground for grant of bail. It is one of the grounds for consideration of the question of bail. There is no absolute hidebound rule that bail must necessarily be granted to the co-accused, where another co-accused has been granted bail. If on careful scrutiny in a given case, it transpires that the case of the applicant before the Court is identically similar to the accused on facts and circumstances who has been bailed out, then the desirability of consistency will require that such an accused should also be released on bail. A Judge is not bound to grant bail to an accused on the ground of parity even where the order granting bail to an identically placed co-accused contains no cogent reasons or if the same has been passed in flagrant violation of well settled principle of law and ignores to take into consideration the relevant facts essential for granting bail. Such an order can never form the basis for a claim of parity. It will be open to the Judge to reject the bail application of the applicant before him as no Judge is obliged to pass orders against his conscience merely to maintain consistency. The grant of bail is not a mechanical act and the power of the Court cannot be fettered to act against conscience. On perusal of the bail order of co-accused Tara Prasad Hota, it reveals that this Court taking into account the submission of the learned counsel for the petitioner that he was a merely salaried employee which was admitted by the Managing Director Pravas Chandra Rout and taking into his period of detention and that only Rs.6,70,000/- was found to have been transferred to his account granted bail. The case of the petitioner is clearly distinguishable as the petitioner was the Managing Director of M/s. Oscar Infra Development Ltd., Director of M/s. Oscar Management Services Ltd. and M/s. Oscar Real Estate Ltd. and he in connivance with the other Directors collected huge deposits from the investors in different states. Therefore, the contention of claim of parity as was raised by the learned counsel for the petitioner is not acceptable. 7. The accusation against the petitioner relates to commission of economic offences which are considered to be grave offences and are to be viewed seriously. Such offences use to have deep-rooted conspiracy and it involves huge loss of public fund. It is committed with cool calculation and deliberate design solely with an eye on personal profit regardless of the consequence to the community. In such type of offences, while granting bail, the Court has to keep in mind, inter alia, the larger interest of public and State. The nature and seriousness of an economic offence and its impact on the society are always important considerations in such a case and those aspects must squarely be dealt with by the Court while passing an order on bail applications. (Ref:- Y.S. Jagan Mohan Reddy -Vrs.- C.B.I. reported in (2013) 55 Orissa Criminal Reports (SC) 825, State of Gujurat -Vrs.- Mohan Lal Jitamalji Porwal reported in A.I.R. 1987 S.C. 1321 and Nimmagadda Prasad -Vrs.- C.B.I. reported in (2013) 7 Supreme Court Cases 466). 8. Adverting to the long period of incarceration of the petitioner, law is well settled as held in case of Kalyan Chandra Sarkar -Vrs.- Rajesh Ranjan reported in (2004) 7 Supreme Court Cases 528, it was clearly held that the mere fact that the accused has undergone a long period of incarceration by itself would not entitle him to be enlarged on bail. In case of Rajesh Ranjan Yadav -Vrs.- C.B.I. reported in (2007) 36 Orissa Criminal Reports (SC) 183, it is held that it is true that Article 21 of the Constitution of India is of great importance because it enshrines the fundamental right to individual liberty, but at the same time a balance has to be struck between the right to individual liberty and the interest of society. No right can be absolute and reasonable restrictions can be placed on them. No right can be absolute and reasonable restrictions can be placed on them. While it is true that one of the considerations in deciding whether to grant bail to an accused or not is whether he has been in jail for a long time, the Court has also to take into consideration other facts and circumstances, such as the interest of the society. In case of Ash Mohammad -Vrs.- Shiv Raj Singh reported in (2012) 9 Supreme Court Cases 446, it is held as follows:- "17. We are absolutely conscious that liberty of a person should not be lightly dealt with, for deprivation of liberty of a person has immense impact on the mind of a person. Incarceration creates a concavity in the personality of an individual. Sometimes it causes a sense of vacuum. Needless to emphasize, the sacrosanctity of liberty is paramount in a civilized society. However, in a democratic body polity which is wedded to Rule of Law an individual is expected to grow within the social restrictions sanctioned by law. The individual liberty is restricted by larger social interest and its deprivation must have due sanction of law. In an orderly society an individual is expected to live with dignity having respect for law and also giving due respect to others' rights. It is a well accepted principle that the concept of liberty is not in the realm of absolutism but is a restricted one. The cry of the collective for justice, its desire for peace and harmony and its necessity for security cannot be allowed to be trivialized. The life of an individual living in a society governed by Rule of Law has to be regulated and such Regulations which are the source in law subserve the social balance and function as a significant instrument for protection of human rights and security of the collective. It is because fundamentally laws are made for their obedience so that every member of the society lives peacefully in a society to achieve his individual as well as social interest. That is why Edmond Burke while discussing about liberty opined, "it is regulated freedom". 18. It is also to be kept in mind that individual liberty cannot be accentuated to such an extent or elevated to such a high pedestal which would bring in anarchy or disorder in the society. That is why Edmond Burke while discussing about liberty opined, "it is regulated freedom". 18. It is also to be kept in mind that individual liberty cannot be accentuated to such an extent or elevated to such a high pedestal which would bring in anarchy or disorder in the society. The prospect of greater justice requires that law and order should prevail in a civilized milieu. True it is, there can be no arithmetical formula for fixing the parameters in precise exactitude but the adjudication should express not only application of mind but also exercise of jurisdiction on accepted and established norms. Law and order in a society protect the established precepts and see to it that contagious crimes do not become epidemic. In an organized society the concept of liberty basically requires citizens to be responsible and not to disturb the tranquility and safety which every well-meaning person desires. Not for nothing J. Oerter stated: "Personal liberty is the right to act without interference within the limits of the law." 19. Thus analyzed, it is clear that though liberty is a greatly cherished value in the life of an individual, it is a controlled and restricted one and no element in the society can act in a manner by consequence of which the life or liberty of others is jeopardized, for the rational collective does not countenance an anti-social or anti-collective act. xx xx xx xx xx 30. We may usefully state that when the citizens are scared to lead a peaceful life and this kind of offences usher in an impediment in establishment of orderly society, the duty of the Court becomes more pronounced and the burden is heavy. There should have been proper analysis of the criminal antecedents. Needless to say, imposition of conditions is subsequent to the order admitting an accused to bail. The question should be posed whether the accused deserves to be enlarged on bail or not and only thereafter issue of imposing conditions would arise. We do not deny for a moment that period of custody is a relevant factor but simultaneously the totality of circumstances and the criminal antecedents are also to be weighed. They are to be weighed in the scale of collective cry and desire. The societal concern has to be kept in view in juxtaposition of individual liberty. We do not deny for a moment that period of custody is a relevant factor but simultaneously the totality of circumstances and the criminal antecedents are also to be weighed. They are to be weighed in the scale of collective cry and desire. The societal concern has to be kept in view in juxtaposition of individual liberty. Regard being had to the said parameter, we are inclined to think that the social concern in the case at hand deserves to be given priority over lifting the restriction of liberty of the accused." Even though the petitioner is in judicial custody since May 2015 and out of thirty four charge sheet witnesses, five witnesses have so far been examined in the trial Court but it cannot be lost sight of the fact that the petitioner was taken on remand in twelve cases to the States of Gujarat and Maharashtra in between 20.08.2016 to 05.05.2018 on the strength of production warrants issued by different Courts of Gujarat and Maharashtra and therefore, in my humble view, on the ground of long incarceration and the fact that a number of witnesses are yet to be examined and there is no likelihood of the trial coming to an end in the near future, the petitioner cannot be entitled to be released on bail. 9. 9. Adverting to the contentions raised by the learned counsel for the respective parties and looking at the oral as well as documentary evidence available on record against the petitioner relating to the commission of the economic offence, even though the period of incarceration of the petitioner is about four years but the manner in which without being authorized by the Reserve Bank of India, the Oscar group of companies collected hundreds of crores of rupees from thousands of depositors throughout Odisha and other states like Gujarat and Maharashtra by floating different alluring schemes giving assurance to provide higher rate of interest than that of prevailing bank rates and invested the money in different illegal projects and spent public deposits on expensive foreign tours in order to create awareness among the depositors that the company is of international repute, strong prima facie case available against the petitioner to show his involvement in the economic offence who was holding important posts in the group of companies, nature and gravity of accusation, likelihood of tampering with the evidence and above all in the larger interest of society, I am not inclined to release the petitioner on bail. However, taking into account the period of detention of the petitioner in judicial custody, the learned trial Court shall do well to expedite the trial keeping in view the provision under section 309 of Cr.P.C. without granting unnecessary and flimsy adjournments to either of the parties. Accordingly, the bail application sans merit and hence stands rejected.