Orissa High Court
Reddy Vrs. Cbi; (2013) 7 Scc 439' In ... vs Prabhakar Rajaram on 3 February, 2021
Author: D. Dash
Bench: D. Dash
BLAPL No.134 OF 2021
04. 03.02.2021 The matter is taken up through video conferencing mode.
The Petitioner being in custody in connection with a
F.I.R. No.RC-10A/2020-BBS (RC05520220A0010),
CBI/SPE, SCB, Bhubaneswar giving rise to RC Case
No.10A/2020 in the Court of learned Special Judge, CBI
Court No.1, Bhubaneswar registered under section 7A, 8 and
9 of the Prevention of Corruption Act, 1988, (in short, 'the
P.C. Act') and section 120-B of the IPC has filed this
application under section 439 of the Code of Criminal
Procedure (Cr.P.C.) for his release on bail.
2. The Petitioner has been arrested in the case on 29th
December, 2020. He had moved the learned Special Judge,
Vigilance, Bhubaneswar in seisin of the case for his release on
bail and that having been rejected on 6th January,2021; he has
now moved this Court.
3. Mr. Tapesh Roy, learned counsel for the Petitioner
submitted that for no such justifiable reason, this Petitioner
has been arraigned in the case.
Placing the F.I.R., he submitted that the Management of
the M/s. Centurian University is looked after by the appointed
Chief Executive Officer (CEO) and he handles the
administration and one Himansu Sekhar Kabi was working as
the Chief Financial Officer, (CFO) entirely looking after the
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financial aspects and under the above system in place, in the
absence of any such document in support, the allegations that
pursuant to the demand of the GST Officials, the Management
of the Centurian Institute of Technology (CIT), Jatni or the
Trustee/s directed the Chief Financial Officer (CFO) and GST
Consultant to resolve the issue of the CIT with the Officials of
the GST is per se not acceptable when those Officers attached
to the Department of CIT themselves have all the authority to
do the needful. In this connection, he has referred to a letter
filed with the note of submission which has been given to the
Petitioner in assigning him the position in Gram Tarang
Employability Training Services Private Ltd. (GTET)
indicating the jobs that he is to perform. It was submitted that
said GTET is a social entrepreneurial outreach of the
University and said establishment runs separately having
independent administration. He further submitted that the
documents so far available are to the effect of conducting
audit by the GST personnel on in the 4th week of September,
2020 and that having not been finally completed nor any
demand being made upon the CIT by the GST Department,
now the prosecution allegations are not deriving that much of
strength from the materials as to blatant violation of GST laws
and the likelihood of giving rise to a very high demand on that
score from the CIT. He submitted that the prosecution case is
that accused A.B. Kar, Superintendent GST had demanded
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bribe of a sum of Rs.10.00 lakh from the Chief Financial
Officer and the GST Consultant of M/s. Centurian Institute of
Technology, Jatni to settle the GST issues at a lesser amount
without pointing those violations leading to raising of demand
of much higher amount. In this context, it was submitted that
accused A.B.Kar is said to have demanded Rs.10.00 lakh
from the CFO and the GST Consultant, but they have not been
named in the F.I.R. to be there in picture thereafter and
therefore in such situation, the allegation of offering the bribe
pursuant to that needs consideration keeping in view the
surrounding circumstances; important of which is that no
demand had then been made and therefore, any such direction
coming from the Trustees namely Prof. Mukti Kanta Mishra
or Prof. D.N. Rao in that regard is not even inferable. He thus
submitted that except the fact that the Petitioner was a Senior
Finance Manager solely looking after the financial affairs of
Gram Tarang Employability Training Services Pvt. Ltd
(GTET), a social entrepreneurial outreach of the University,
no material is forthcoming on the score that he had any
knowledge as to that GST audit affair nor had gone to that
restaurant in that reputed hotel situated in the posh locality of
the city in order to bribe the GST Officials. According to him,
none of the offences for which the case has been registered,
prima facie stands against this Petitioner. It was submitted that
simply for his presence at the restaurant sitting in a sofa with
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two others and in the absence of anything to show that he had
the knowledge about such bribing affair, also having not been
so directed by the Trustees concerning in support of which no
such material has come to surface, he ought not to have been
arraigned in the case, moreso, when even as per the
prosecution case the bag containing the cash was not in his
possession when raid was made. He submitted that just in
order to implicate this Petitioner, it is alleged that he being
asked he pointed out that the bag held by him being given to
accused A.B. Kar was lying with him. He submitted that the
facts as to phone call being made by the Petitioner to the
Trustee who had been apprised of all these are all fabricated
and said activity is clearly seen to be at the instance of the
CBI officials under grave threat and coercion. It was
submitted that the CBI officials have made raids in the Office
of the Institute as also in the house of the present Petitioner
and as yet no such document is being shown indicating the
involvement of this Petitioner in offering the bribe in the
matter or to have received the direction, save and except the
development said to have taken place at the spot. He also
submitted that the allegation made by the prosecution that this
Petitioner had gone to the place i.e. restaurant open for
general public having carried money as directed by the
Trustees, is cooked up somehow to rope in the Petitioner and
others. It was submitted that one of the Trustees Prof. M.K.
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Mishra is away from the Country since October, 2020 for his
professional engagement at Sydney (Australia) and he had not
been able to return to the Country since then and for that, it
cannot be said for a moment that he had any knowledge in
these day to day matters especially, as to GST matters when
robust system is in place with able and responsible personnels
to handle all the affairs being posted for that and that apart
when the Petitioner had left the Country after about a month
of receipt of notice even having no knowledge of that and
then the response to the notice was a challenge to the GST
audit. He further submitted that pursuant to the notice for
conducting Audit by the GST Officials; the Trust in the reply
having sought for time had clearly stated that they challenge
the audit and filing of return under GST and under the
circumstance, to say that there was an attempt to settle the
issue by accepting any demand is not prima facie acceptable
that too with the knowledge of the Trustees or as per their
instruction and then as to the alleged part of this Petitioner. He
submitted that as against said Himansu Sekhar Kabi (CFO)
for defalcation of huge amount of the University, an F.I.R. has
been lodged at Jatni Police Station on 08.01.2021 and the
investigation is going on. The Police has also seized
incriminating materials in connection with the same;
whereafter another supplementary F.I.R. has been given by
the University and it has been detected that he has siphoned
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huge funds of the University to different fictitious accounts
and those accounts have now been freezed by Police in that
criminal case initiated by the University. It was submitted
that the dubious role of that CFO in this matter just to divert
the attention and focus from his misdeeds of defalcation is
quite apparent. He submitted that in the above case, neither
this Petitioner nor the Trustees had to play any role nor they
played and somehow for the presence of the Petitioner at the
spot through some purposeful and misleading informations
alleging that he was so instructed by the Trustee; the case has
been foisted to defame the Institute and this Petitioner has
been a victim of all these plots. He submitted that it is
completely false to say that the said Trustee, Prof. Mishra is
absconding, when admittedly he is out of the Country
althrough the period i.e. since October, 2020 and he in fact
expressing his inability to come immediately, upon receipt of
the notice, has made a request to the Investigating Officer for
discussion with him through video conferencing. It was
further submitted that the Petitioner has already remained in
custody for more than one month and he being the permanent
resident of the State, there remains no scope on his part to flee
from justice; as also keeping in view the time elapsed and
after the CBI raids in all said selected places, the
apprehension as to tampering of evidence by this Petitioner is
not there. With all these above and further placing the
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quantum of sentence prescribed for the offences under
section-7A, 8 and 9 of the P.C. Act; he urged for grant of bail
to the Petitioner.
Mr. Sarthak Nayak, learned Special Public Prosecutor,
CBI, submitted that this Petitioner was very much present at
the spot wherefrom cash of Rs.10.00 lakh kept in the bag has
been seized and his very presence with the other accused A.B.
Kar and P. Acharya, the GST officials in-charge of the GST
Audit of the Institute is enough at this moment to say that a
prima facie case against him for the offences for which the
case has been registered stands. He submitted that when based
on prior information sudden raid was made by the CBI
Officials, the Petitioner being an employee of the University
under the instructions from the Trustees in order to settle the
GST issues, was there as the bribe giver to the GST officials.
He submitted that at the spot, the conversation of this
Petitioner with one Trustee over telephone makes the picture
clear. He also submitted that the investigation is in progress
and other materials are likely to be unearthed and it may come
to light that it was a case of attempt of evasion of huge sum of
GST by the Institution. He submitted that as per the source
information, accused A.B. Kar, Superintendent, the leader of
the team had given an information to the concerned accounts
section of the Institute about the violation with respect to GST
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and during audit verification, he had pointed out all those for
which there was a move from the Institute for resolution of
the issues, so that huge demand towards GST and penalty
would be avoided for which the bribe of Rs.10.00 lakh was
demanded and this Petitioner was present at the spot as the
giver of the said bribe under the instruction of the Authorities.
He further contended that at this initial stage of investigation,
since this case is different from the regular trap cases and
there stands all the possibility of tampering the evidence,
grant of bail to the Petitioner would not be proper.
He placed the decisions of the Apex Court in case of 'B.
Noha Vrs. State of Kerala & Others;(2006) 12 SCC 227; the
State Rep. by Inspector Vrs. A. Parthiban in Appeal (Crl.)
No.842 of 2003 decided on 09.10.2006 and Y.S. Jagan Mohan
Reddy Vrs. CBI; (2013) 7 SCC 439' in support of his
contentions in opposing the move.
4. Both sides have also filed written notes of their
submissions as well as the documents which have been taken
on record. I have perused the F.I.R. and other materials placed
on record as well as the given notes.
5. Law is well settled that at the stage of consideration of
the matter relating to grant of bail, elaborate examination of
evidence and detailed reasons touched upon the merits of the
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case, which can prejudice the accused, should be avoided. The
court at that stage is only called upon to give its reasons in
exercise of discretion in granting or not exercising the
discretion in refusing to grant bail as different from discussing
the merits or demerits of the case. The detail examination of
evidence, elaborate documentation of the merits of the case
should be avoided.
In case of Niranjan Singh and Anr vs Prabhakar Rajaram
Kharote & Ors: (1980)2 SCC 559, it was held that:-
"3........Detailed examination of the evidence and
elaborate documentation of the merits should be
avoided while passing orders on bail applications.
No party should have the impression that his case
has been prejudiced. To be satisfied about a prima
facie case is needed but it is not the same as an
exhaustive exploration of the merits in the order
itself."
6. At this stage, it be also stated as regards the jurisdiction
to the grant of bail. The Hon'ble Apex Court in case of
Prahlad Singh Bhati Vrs. NCT, Delhi & Another; (2001) 4
SCC 280 has held that:-
"The nature and seriousness of the offence, the
character of the evidence circumstances which are
peculiar to the accused persons and reasonable
possibility of the presence of the accused not being
secured at the trial, reasonable apprehension of
witnesses being tampered with a larger interest of
the public or State or other similar factors which
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are relevant in the facts and circumstances of the
case, are to weigh in the mind of the Court in the
matter of grant of bail".
7. In case of Kalyan Chandra Sarkar, in State of U.P.
through CBI V. Amarmani Tripathi; (2005) 8 SCC 21, the
Hon'ble Court observed that:-
"18. It is well settled that the matters to be
considered in an application for bail are (i) whether
there is any prima facie or reasonable ground to believe
that the accused had committed the offence; (ii) nature
and gravity of the charge; (iii) severity of the
punishment in the event of conviction; (iv) danger of
accused absconding or fleeing if released on bail; (v)
character, behaviour, means, position and standing of
the accused; (vi) likelihood of the offence being
repeated; (vii) reasonable apprehension of the witnesses
being tampered with; and (viii) danger, of course, of
justice being thwarted by grant of bail (see Prahlad
Singh Bhati vs. NCT, Delhi 2001 (4) SCC 280 and
Gurcharan Singh vs. State (Delhi Administration) AIR
1978 SC 179). While a vague allegation that accused
may tamper with the evidence or witnesses may not be
a ground to refuse bail, if the accused is of such
character that his mere presence at large would
intimidate the witnesses or if there is material to show
that he will use his liberty to subvert justice or tamper
with the evidence, then bail will be refused........".
8. The first two decision cited by the learned Special
Counsel CBI concern with the cases where conviction and
sentence were under challenge. In case of Y.S. Jagan Mohan
Reddy (supra),the Hon'ble Apex Court looking to the facts
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and circumstances of the said case relating to conspiracy
distinctly involving seven entities as also huge magnitude of
the case, then with the recording of statements of one hundred
and forty (140) witnesses as also collection of three hundred
and fifty two (352) document having all the possibility of
steep rise; at that stage of investigation of the said case had
declined to accept the prayer of the appellant for grant of bail.
9. In the light of the above settled principles of law,
keeping in view the submissions made, the case needs
consideration.
The prosecution case is that the Petitioner is the Senior
Manager of Accounts in Centurian Group of Institutions
when the case of the Petitioner is that he was exclusively
looking after of GTET, the social entrepreneurial outreach of
the University having its office at different place with
separate administration and financial management. As per the
F.I.R., CBI officials had received the information from the
reliable source that the M/s. Centurian Institute of
Technology had received notice from the Commissioner,
Audit, GST and Central Excise for conducting audit for the
financial year, 2017-18 and during audit inspection, accused
A.B. Kar, Superintendent, GST with his team had informed
the Accounts Section of the said Institute about the blatant
violations with respect to GST in their accounts. So, it is the
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case of the prosecution that in order to resolve the issue and
avoid the payment of huge amount of GST & penalty, there
was a demand of bribe of Rs.10.00 lakh from the leader of the
team comprising of GST Officials entrusted with the audit
work and all the members of the team had their approval and
share. The Petitioner is not the Chief Financial Officer as to
have been first informed about all those. It is stated that said
Chief Financial Officer and GST consultant being told had
then made the endeavour to settle the issue by informing this
Petitioner. The information received from the source as finds
mention in the F.I.R. is to the effect that said Chief Financial
Officer and GST Consultant had then informed the Trustees
about all these through this Petitioner which however derives
no such support from any independent document save and
except the so called later conversation over phone at the spot
after the raid at the restaurant which had been initiated
through the CBI Officials and the Petitioner is said to have
been instructed by the Trustee to do the needful. Those are
challenged as under threat and coercion and with a bid to see
that somehow the case as laid stands and thus would stand for
answer in the trial upon appreciation of evidence in the
touchstone of the settled law holding the field. In support of
any such instruction to have been given by the Trustees to
this Petitioner on any earlier occasion as to the financial affair
of the said Institute nor as to his indulgence in those matters
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is forthcoming. The recovery of the cash of Rs.10.00 lakh
kept in a bag has been made from a restaurant. It is said that
the Petitioner being asked informed the CBI Officials that he
had given the bag to accused A.B. Kar; when the Trap
Memorandum dated 29th December, 2020 reveals that it was
lying with accused A.B. Kar. As noted in that Trap
Memorandum, the Audit observation issued to M/s. Centurian
School of Rural Enterprise Management Trust were there in
that bag and the bill of the restaurant towards payment of
lunch taken was with accused A.B. Kar with the office copies
of those audit objection Memorandums having the
Petitioner's signature. The telephone call to the Trustee said
to have been made by this Petitioner is under the direction of
CBI Officials.
10. On the other hand, the Trust has come up with an
allegation as to defalcation against that very Chief Financial
Officer that he had siphoned huge sum of money of the
University to different accounts which are said to have been
freezed in course of investigation of that case and he is not in
this arena. The projected case of the prosecution is that the
members of the audit team connived among themselves,
demanded the bribe and accepted the same from this
Petitioner who is also said to be having the connivance in the
matter being the bribe giver.
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11. In the facts and circumstances as indicated above and
materials on record as touched upon for the purpose, the
Petitioner has already remained in custody for more than a
month. The offence under section 7A of the P.C. Act is
punishable with imprisonment for a term not less than 3 years
which may extend to seven years and fine whereas for the
offence under section 8 of the Act, prescribes the punishment
of imprisonment upto seven years or with fine or both and
that under section 9 of the Act concerns as to commission by
a commercial organization liable to be punished with fine.
The CBI has conducted raids in different places including the
house of this Petitioner in connection with the case and after
lapse of one month, for the Petitioner with his assigned job to
make any attempt to tamper the evidence appears to be too
remote a possibility when by now the statements of all those
witnesses to the Trap laid as also raids have already been
recorded. The Petitioner being a permanent resident of the
State and presently, in service in the City, scope of his fleeing
from justice does not so surface.
12. Considering all the above factors and the facts and
circumstances of the case, I am of the view that the Petitioner
be released on bail.
The Petitioner is ordered to be released on bail subject
to the condition of his executing bail bonds for a sum of
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Rs.1,00,000/- (Rupees one lakh) with two sureties of the like
sum to the satisfaction of the learned Court in seisin of the
case, with further conditions that he shall cooperate with the
investigation as and when so required; shall not directly or
indirectly attempt to influence the prosecution witnesses; and
shall not leave the Country without the leave of the Court in
seisin of the case.
The BLAPL is accordingly disposed of.
13. As the restrictions due to the COVID-19 situation are
continuing, learned counsel for the parties may utilize a soft
copy of this order available in the High Court's website or
print out thereof at par with certified copy in the manner
prescribed, vide Court's Notice No.4587, dated 25th March,
2020.
.....................
D. Dash, J.
Narayan