Research › Search › Judgment

Orissa High Court · body

2021 DIGILAW 96 (ORI)

Gatikrushna Dash v. State Of Odisha-Opid

2021-03-04

S.K.PANIGRAHI

body2021
JUDGMENT S K Panigrahi, J. - The present application is preferred under Section 439 of the Criminal Procedure Code, 1973 in connection with EOW Bhubaneswar P.S. Case No.28 of 2018 corresponding to C.T. Case No.20 of 2018, pending before the court of the learned Presiding Officer, Designated Court under the O.P.I.D. Act, Cuttack, Odisha. 2. The succinct facts of the case are that one Debadatta Routray lodged an FIR before the EOW Police Station, Bhubaneswar vide P.S. Case No.28/18 alleging that he had booked a studio apartment at Shreekhetra Kalinga Kutira, Puri Project floated by M/s. Shreya Infrastructure Services Ltd. by paying 5,71,000/- out of total consideration amount of 9,50,000/- to its M.D., namely, Mr. Himanshu Shekhar Nayak. An agreement to that effect had been executed between the parties. As per the terms and conditions of the agreement, M/s. Shreya Infrastructure Services Ltd. was liable to handover possession of flat by the end of March, 2017, but much to the chagrin of the complainant neither the flat was provided nor was the money refunded to the informant. It has also been alleged by the informant that a large number of other depositors had also been duped by the said Himanshu Shekar Nayak and his Company. The accused Himanshu Sekhar Nayak and his Company have also been alleged to have allotted the same flats to multiple customers with an ulterior motive to cheat and have thereafter absconded from their Saheed Nagar Office. In the said FIR, it has been alleged that other accused Rama Chandra Patra was the land owner who had given his land on sharing basis to M/s. Shreya Infrastructure Services Ltd. and both the accused persons have connived with each other and duped the informant. 3. On the basis of the aforesaid information, a case was registered under Sections 420(A), 406, 467, 468, 471, 120-B of IPC read with Section 6 of the Odisha Protection of Interests of Depositors (in Financial Establishments) Act, 2011 and the I.O. commenced his investigation. 4. Records of the case portray that during investigation, it was found out that the accused Rama Chandra Patra had given his land for development on sharing basis to the accused Company by means of executing a deed of General Power of Attorney (GPA) in favour of the said Himanshu Sekhar Nayak. After the project commenced, flats were booked and construction works were executed to a substantial extent. After the project commenced, flats were booked and construction works were executed to a substantial extent. In the meantime, accused Rama Chandra Patra, for some reasons, cancelled the deed of GPA giving rise to several litigations. It was further discovered that since a competent civil court passed an order of status quo over the land in controversy, further construction was stalled which caused delay in providing flats to the prospective purchasers. The present accused petitioner functioned as the Director of the Company from 03.09.2014 to 08.07.2016 during which period he had entered into an agreement with some customers on behalf of the Company. The petitioner was arrested on 03.02.2019 and has remained in custody since then after the rejection of his application for bail by the learned Trial Court on 28.02.2019. 5. Learned Counsel for the Petitioner Shri Ashwini Kumar Das has submitted that prima facie no case is made out against the petitioner. The petitioner had been the Director of the Company for only two years and had tendered his resignation from his Directorship in the year 2016 much prior to the Company conducting its business with the land owner or entering into agreement with the prospective buyers. The Petitioner had been promoted from being an employee to the post of the Director and has never conducted any financial transaction on behalf of the Company nor was there any kind money trail connecting him with the deposits made by some buyers. Even the salary of the petitioner has remained unpaid and there are numerous communications to that effect between the MD of the Company and the petitioner. It has further been submitted that the I.O. has seized all the Banks accounts of the petitioner for ascertaining or establishing a money trail but nothing has been unearthed in that connection. The investigation against the present accused petitioner has been substantially carried out and his further custody may not be required. Hence, there is no possibility of tampering with evidence. 6. Per contra, learned Additional Standing Counsel for the State Mr. Anil Kumar Nayak, has submitted that the accused persons with the dishonest intention as the Directors of the Company, M/s. Shreya Infrastructure Service Ltd., launched their building project at Sipasurabali, Puri in the name and style as Shreekhetra Kalinga Kutir. Hence, there is no possibility of tampering with evidence. 6. Per contra, learned Additional Standing Counsel for the State Mr. Anil Kumar Nayak, has submitted that the accused persons with the dishonest intention as the Directors of the Company, M/s. Shreya Infrastructure Service Ltd., launched their building project at Sipasurabali, Puri in the name and style as Shreekhetra Kalinga Kutir. They floated the above building project with colourful brochures and induced general public to deposit money with them with promise to provide litigation free studio flats. They also collected crores of rupees, but duped them by cheating and swindling the collected amounts. It is also submitted that the so-called civil dispute inter se between the accused Rama Chandra Patra and the accused person, Himansu Sekhar Nayak, are nothing but an act of conspiracy among themselves to cheat the innocent depositors. It was submitted that the Petitioner conspired and connived with the other accused persons and he is equally culpable for the offences. On the above assertion and Court's enunciation of the principles of granting bail in economic offence enumerated in various case laws urged for rejection of the present application. 7. Heard learned Counsel for the parties. Pursuant to an order dated 10.07.2019 passed by this Court, the Petitioner has filed an affidavit stating that in terms of order dated 16.07.2019 he had been released on interim bail after which, he attempted to meet the other Director namely Seema Nayak wife of Himansu Sekhar Nayak. However, she refused to co-operate and since that day all efforts of the petitioner to meet her were in vain. The records of the case unravel that the Petitioner was appointed as an Additional Director with effect from 03.09.2014 without any share-holding in the Company and he also further submits that he did not exercise any administrative or financial power. The Petitioner submits that as he was not being given salary regularly, he felt that he was being used and resigned from the Company on 8.07.2016 which was accepted on 15.07.2016. His salaries continued to remain outstanding and numerous unsuccessful correspondences were made in that regard. The Petitioner submits that only the MD and the other Director Seema Nayak were in charge of the affairs of the Company. His salaries continued to remain outstanding and numerous unsuccessful correspondences were made in that regard. The Petitioner submits that only the MD and the other Director Seema Nayak were in charge of the affairs of the Company. He further submits that although the husband and wife have acted in concert, no steps have been taken by the Police to apprehend the said Seema Nayak who is roaming freely and the petitioner is being used as puppet for which he is languishing in custody. The submission of the petitioner that he having been granted an interim bail by this Court earlier, has not abused the liberty granted to him but has shown his bona fide conduct by surrendering before the competent court after the expiry of the period of bail granted, has been taken note of. The petitioner moved an application for bail before the court of the learned Presiding Officer, Designated Court under the OPID Act, Cuttack which was rejected on 28.02.2019. After the same, the petitioner has approached this Court and vide order dated 10.07.2019, he was granted interim bail for a period of one month in order to enable him to coordinate with the other accused persons to explore the possibility of construction of the flats. The petitioner was also directed to file an affidavit to indicate as to how he proposes to complete the project work. The petitioner was again released on interim bail on 18.05.2020 for another one month. 8. A perusal of the FIR dated 17.12.2018 reveals that the petitioner here has not been named therein and no allegation with regard to the petitioner is forthcoming therefrom. The entire allegation is against the original landowner Rama Chandra Patra and the Managing Director of the Company Himansu Sekhar Nayak who have been named as the principal accused. The charge-sheet has been filed on 29.04.2019 in which the only allegation against the petitioner has been shown to be that he was acting on behalf of the Company who has executed agreements with certain customers. The statements recorded under Section 161 of the Cr.P.C. of different persons in fact named the aforesaid Himansu Sekhar Nayak. The charge-sheet has been filed on 29.04.2019 in which the only allegation against the petitioner has been shown to be that he was acting on behalf of the Company who has executed agreements with certain customers. The statements recorded under Section 161 of the Cr.P.C. of different persons in fact named the aforesaid Himansu Sekhar Nayak. Another telling aspect of the entire episode seems to be that the petitioner himself is suffering at the hands of the said Himansu Sekhar Nayak, which is revealed from the e-mail correspondences where the said Himansu Sekhar Nayak is seen to be falsely assuring the petitioner herein to make good his past payments towards salary on one pretext or the other. It thus seems that Himansu Sekhar Nayak has not only managed to dupe large number of depositors/homebuyers but his own colleague who worked with him as a Director in his Company. Another telling aspect of the matter is that the petitioner after being released on interim bail with an undertaking to explore the option of completion of the project work has stated that he had contacted the original landowner Rama Chandra Patra as he was unable to contact Himansu Sekhar Nayak and Seema Nayak. The landowner, Rama Chandra Patra, who was himself an accused disclosed to the petitioner that Himansu Sekhar Nayak since his release on 22.5.2020 has been unreachable and untraceable. This very fact prima facie shows that the criminal intent of Himansu Sekhar Nayak and Seema Nayak is continuing till date. On the contrary, the petitioner by his conduct over time and the opportunities granted to him by this court has proved his bona fide by complying with his own undertaking and making an effort to reach out to the other accused persons to see if a solution to the problem is possible. 9. The records of the case revealed that apart from the money that is received by the petitioner towards salary, there is no other money trail which connects him with the deposits made by the homebuyers. In fact, it has been submitted that he was one hapless employee who has been cunningly utilized by the other Directors who were the masterminds. The records of the case revealed that apart from the money that is received by the petitioner towards salary, there is no other money trail which connects him with the deposits made by the homebuyers. In fact, it has been submitted that he was one hapless employee who has been cunningly utilized by the other Directors who were the masterminds. Arguments have also been made at the bar with regard to the applicability of the OPID Act as well as the RERA Act, however, for the purposes of the instant application those legal propositions may not be gone into, given the facts of the case. Learned counsel for the State has also relied on the cases of Prasan Kumar Patra v. State of Odisha, CRLA No. 32 of 2020 decided on 29th June, 2020 Prasan Kumar Patra v. State of Orissa, CRLMC No. 2781 of 2019 decided on 22nd January 2021 and Manohar Bhimraoji Mahalle & Ors. v. State of Maharastra,2020 SCCOnlineBom 368 which touched upon various aspects relating to the applicability of the OPID Act insofar as application for discharge of an accused was concerned. In the aforesaid cases mostly dealt with revision applications arising out of a question as to whether discharge ought to be granted to the accused in such cases has not found favour with the Court. However, the facts of the present case are entirely different. In the case in hand, the petitioner's role is limited and stands on a different footing compared to other accused persons who seem to have a far more deep-seated role in the matter. The petitioner has also redeemed himself by judiciously utilising the interim bail granted by this Court to him twice and has proved his bona fide by trying to reach out to the other accused persons. 10. Considering the aforesaid discussion, submissions made and taking into account a holistic view of the facts and circumstances of the case at hand, this Court hereby directs that the Petitioner be released on bail in connection with EOW Bhubaneswar P.S. Case No.28 of 2018 corresponding to C.T. Case No.20 of 2018 by the learned Presiding Officer, Designated Court under the O.P.I.D. Act, Cuttack, Odisha, on such terms and conditions as deemed just and proper. It is, however, clarified that the above observations shall not come in the way of a fair trial before the learned Trial Court and it will proceed to decide the matter on its own merits. The Bail Application as well as all pending Interlocutory Applications is disposed of accordingly.