Orissa High Court
Gagan Bihari Mishra vs State Of Odisha ........ Opp. Party on 4 June, 2019
Equivalent citations: AIRONLINE 2019 ORI 72
Author: S. K. Sahoo
Bench: S.K. Sahoo
IN THE HIGH COURT OF ORISSA, CUTTACK
BLAPL NO. 3131 Of 2019
An application under section 439 of the Code of Criminal
Procedure in connection with E.O.W., Bhubaneswar P.S. Case
No.03 of 2018 corresponding to C.T. Case No. 05 of 2018
pending on the file of Presiding Officer, Designated Court,
O.P.I.D. Act, Cuttack.
----------------------------
Gagan Bihari Mishra ........ Petitioner
-Versus-
State of Odisha ........ Opp. Party
For Petitioner: - Mrs. Sujata Jena
G.B. Jena, B. Jena
For Opp. party: - Mr. Bibekananda Bhuyan
-------------------------------
P R E S E N T:
THE HONOURABLE MR. JUSTICE S.K. SAHOO
---------------------------------------------------------------------------------------------------
Date of Argument: 17.05.2019 Date of Order: 04.06.2019
---------------------------------------------------------------------------------------------------
S. K. SAHOO, J. The petitioner Gagan Bihari Mishra 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.03 of 2018 corresponding to C.T. Case No. 05 of 2018
pending on the file of Presiding Officer, Designated Court,
O.P.I.D. Act, Cuttack for offences punishable under sections 420,
2
467, 468, 471, 406 and 120-B of the Indian Penal Code read
with section 6 of the Odisha Protection of Interests of Depositors
(in Financial Establishments) Act, 2011 (hereafter 'O.P.I.D. Act').
2. On 31.01.2018 one Priyabrata Parida of Pithapur,
Buxi Bazar under Purighat police station in the district of Cuttack
lodged the first information report before the Superintendent of
Police, Economic Offences Wing, Odisha, Bhubaneswar stating
therein that during October 2011, he came to know from the
advertisement published in the local daily newspaper as well as
from the brochures and leaflets circulated by the real estate
company namely M/s. Shree Baladevjew Infrastructure (P)
Limited, Cuttack (hereafter 'M/s. SBI (P) Ltd.') that one
residential housing project in the name and style of 'Tulasi
Gardens' located at Mouza Badkesharpur, Tangi in the district of
Cuttack measuring Ac. 03.05 dec. has been floated by M/s. SBI
(P) Ltd. for selling of flats to the customers. Being allured by the
advertisement of M/s. SBI (P) Ltd., the informant visited its
project site office and contacted Durga Prasanna Mishra, Director
and during discussion, Shri Mishra and other officials of M/s. SBI
(P) Ltd. assured the informant to handover a flat bearing no. C-
303 situated in the 3rd floor of the said residential housing
project for a consideration amount of Rs.12,56,250/- within a
3
period of thirty months. At that time, there was no construction
at the project site except one office. The informant paid a total
sum of Rs.4,90,000/- in three phases/instalments towards
booking amount and he also received money receipt dated
12.11.2011 from M/s. SBI (P) Ltd. towards booking of a 2 BHK
flat in his name. On 29.02.2012 M/s. SBI (P) Ltd. represented
through its Director Shri Mishra executed an agreement with the
informant wherein it was agreed to handover the flat to the
informant within thirty months from the date of agreement. It is
the further case of the informant as per the F.I.R. that he
contacted Shri Mishra and other officials time and again to know
about the progress of the work and asked them to handover the
flat to him within the stipulated time as per agreement. M/s. SBI
(P) Ltd. failed to commence as well as to complete the
construction. When the informant requested Shri Mishra and the
other officials to refund his money, they persuaded him to adjust
his money by providing another flat in the said project but
neither the informant nor other customers were provided with
any flat despite the company taking advances from them as per
agreements. Neither the construction work of the flat started nor
any of the flats in the said project was handed over to any of the
customers. The informant came to know that some of the flats in
4
the project have been hypothecated to Dewan Housing Finance
Corporation Ltd. (DHFL) during the year 2012. An amount of
more than five crores was collected by M/s. SBI (P) Ltd. from
more than 200 investors/customers with false assurance of
providing flats in the said residential housing project and later
the investors were cheated. Assurance was given to many
investors in the name of providing plot/flat/duplex in the project
as well as in other projects in and around Cuttack by executing
agreements and issuing fake money receipts, giving false
assurance of providing flats in cheap rates and later cheating
them. It is further stated in the F.I.R. that Shri Mishra diverted
the invested money for acquiring lands/flats and other
movable/immovable properties in his name as well as in the
name of his other family members.
3. On receipt of such F.I.R., the Superintendent of
Police, E.O.W., Bhubaneswar registered the case against Shri
Mishra as well as the company and directed Inspector Snehalata
Mohanty of E.O.W. to take up investigation of the case.
During course of investigation, it was ascertained
that the petitioner is the father of accused Durga Prasanna
Mishra. A project loan of rupees eight crores was sanctioned by
DHFL on 17.05.2013 in favour of M/s. SBI (P) Ltd. as borrower
5
and M/s. Tulsi Spices and Foods Ltd. (hereafter 'M/s. T.S.F. Ltd.')
as co-borrower. As per the terms and conditions of the loan, the
primary security of the loan amount was the entire project land
of Ac.03.05 dec. owned by M/s. T.S.F. Ltd. and present and
future constructions in the residential project 'Tulsi Gardens' and
that after execution of loan documents, first disbursement of
Rs.2.50 crores was to be made directly in favour of State Bank of
Hyderabad towards payment of the outstanding loan amount
against M/s. T.S.F. Ltd. The said sanctioned letter dated
17.05.2013 was signed by Durga Prasanna Mishra, Director of
M/s. SBI (P) Ltd. as borrower and the petitioner who is the
Director of M/s. T.S.F. Ltd. as co-borrower.
During course of investigation, it was further
ascertained that Mr. Ambika Prasad Mohanty, Auditor of M/s. SBI
(P) Ltd. had audited the accounts of the company for the period
of 2014-15 and submitted his report. As per his report, M/s. SBI
(P) Ltd. received Rs.7.36 crores as loan from DHFL and Rs.5.22
crores as advance from the customers. Out of the said amount,
the head of the company utilized an amount of Rs.3.01 crores in
other companies of their groups. An amount of Rs.29,215,968/-
was diverted to M/s. T.S.F. Ltd. and Rs.9,77,957/- to M/s. Tulasi
Flour Mills, a proprietorship farm in which the petitioner was the
6
Proprietor. As such, the aforesaid amount was diverted to the
accounts of M/s. T.S.F. Ltd. and M/s. Tulasi Flour Mills, in which
the petitioner was the Director and Proprietor respectively from
the account of M/s. SBI (P) Ltd. which had collected deposits
from public in the pretext of providing flats.
Out of Rs.7.36 crores loan received from DHFL, an
amount of Rs.2.5 crores was credited to the accounts of M/s.
T.S.F. Ltd. for clearing the outstanding loan of State Bank of
Hyderabad as the entire project land of 'Tulsi Gardens' was kept
under mortgage with DHFL for obtaining loan. Out of the total
amount of Rs.29,215,968/- shown to have been transferred to
the account M/s. T.S.F. Ltd. from the account of M/s. SBI (P)
Ltd., after deducting the aforesaid amount of Rs.2.5 crores which
was utilised for clearing the outstanding loan of State Bank of
Hyderabad, it comes to Rs.42,15,968/- which is nothing but the
amount collected from intending purchasers of flats. Similarly, an
amount of Rs.9,77,957/- which was transferred to the account of
M/s. Tulasi Floor Mills from the account of M/s. SBI (P) Ltd. was
also collected from the intending purchasers of flats.
It also revealed from the statements of accounts
standing in the name of M/s. T.S.F. Ltd. maintained in Axis Bank,
Jagatpur Branch vide A/C no.911020064237878 and Central
7
Bank of India, Pir Bazar Branch, Cuttack vide A/C
no.1994618348 that as on 14.03.2015, the balance in Axis Bank
account was Rs.00.00 and as on 30.09.2018, the balance in
Central Bank of India account was Rs.2,036.96 paisa.
4. Finding prima facie case against the petitioner, he
was taken into custody on 27.03.2019 and his application for bail
before the learned Presiding Officer, Designated Court, O.P.I.D.
Act, Cuttack was rejected on 29.03.2019.
5. Mrs. Sujata Jena, learned counsel for the petitioner
contended that the petitioner is the proprietor of M/s. Tulsi Flour
Mill and one of the Directors of M/s. T.S.F. Ltd. The Managing
Director of M/s. T.S.F. Ltd. namely, Smt. Mitali Madhusmita
Ratha who is the daughter-in-law of the petitioner entered into
an agreement on 01.10.2011 with M/s. SBI (P) Ltd. represented
through its Director accused Durga Prasanna Mishra, the son of
the petitioner for providing Ac.03.05 dec. land for construction of
flats. As per the agreement, M/s. SBI (P) Ltd. would be liable to
the intending purchasers if the construction work is not
completed in time and M/s. SBI (P) Ltd. shall also refund the
deposit amount to them with interest, if it failed to execute the
sale deed in favour of such purchasers. One irrevocable general
power of attorney was also executed in favour of M/s. SBI (P)
8
Ltd. represented through its director accused Durga Prasanna
Mishra by the Managing Director of M/s. T.S.F. Ltd. to deal with
the property for getting the plan approved from C.D.A., for
applying for electric and water pipe connection, to give
advertisement in the newspapers and in any other media for sale
of those flats, to negotiate with the prospective purchasers for
alienating the land and the flats etc. It is contended that accused
Durga Prasanna Mishra and the petitioner as borrowers took a
loan of rupees eight crores from DHFL for construction of flats by
mortgaging the land belonging to M/s. T.S.F. Ltd., out of which
Rs.2.5 crores was first deposited with State Bank of Hyderabad
towards the outstanding loan incurred by M/s. T.S.F. Ltd. None
of the intending purchasers has alleged anything against the
petitioner and the petitioner is also in no way connected with the
receipt of money from the investors or in the construction of the
flats. There is no material that the money which came to the
account of the petitioner and withdrawn phase wise belonged to
the intending purchasers. It is further submitted that the main
allegation is against the son of the petitioner who is in judicial
custody since 01.02.2018. The petitioner is an old man, aged
about 71 years and he is suffering from various age related
ailments and there is no male member in the family to take care
9
of the ailing wife of the petitioner who is suffering from brain
tumour so also his daughter-in-law and two minor grand
children. It is contended that there is no possibility of either
absconding or tampering with the evidence by the petitioner and
he has also got no criminal antecedent and therefore, 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
prayer for bail and submitted that the petitioner is the Director
of M/s. T.S.F. Ltd. and there was an outstanding loan amount of
Rs.2.50 crores of State Bank of Hyderabad against M/s. T.S.F.
Ltd. Project loan of Rs.8.00 crores was sanctioned by DHFL on
17.05.2013 in favour of M/s. SBI (P) Ltd. as borrower and M/s.
T.S.F. Ltd. as co-borrower keeping mortgage of the entire
project land measuring Ac.03.05 dec. owned by M/s. T.S.F. Ltd.
and the present and future construction thereon in the
residential project 'Tulsi Gardens'. The sanction letter was signed
by the petitioner as the Director of M/s. T.S.F. Ltd. and his son
co-accused Durga Prasanna Mishra, Director of M/s. SBI (P) Ltd.
After such sanction of project loan, the loan agreement was
executed on 21.05.2013 between the M/s. SBI (P) Ltd. and M/s.
T.S.F. Ltd. as borrowers of the one part and DHFL on the other
10
part and it was stipulated that the borrowers shall utilize the loan
only for the purposes of developing the project and for no other
purpose. Out of the project loan of Rs.8.00 crores, an amount of
Rs.2.5 crores was utilized for repayment of the outstanding loan
of State Bank of Hyderabad against M/s. T.S.F. Ltd. Mr. Bhuyan
argued that the audit report of M/s. SBI (P) Ltd. indicated that
Rs.5.22 crores was received from the customers as advance
towards residential housing project. An amount of
Rs.2,92,15,968/- was diverted to M/s. T.S.F.L. Ltd. and
Rs.9,77,957/- was diverted to M/s. Tulsi Flour Mills. He
emphasized that if Rs.2.5 crores which was utilized for
repayment of the outstanding loan of State Bank of Hyderabad is
deducted from the aforesaid amount of Rs.2,92,15,968/-, then it
comes to Rs.42,15,968/- which was the amount collected from
the intending purchasers of the flats. It is contended that huge
amount collected from the intending purchasers was transferred
from the account of the M/s. SBI (P) Ltd. to the accounts of M/s.
T.S.F. Ltd. as well as M/s. Tulsi Flour Mills. The money was not
available in the bank accounts of M/s. T.S.F. Ltd. when those
were seized, which indicates that the money has been withdrawn
and misappropriated. It is further contended that since it is an
economic offence and the manner in which the son of the
11
petitioner collected crores of rupees from the intending
purchasers with false assurance of providing them flats and the
petitioner signed the loan agreement with DHFL as authorized
director of M/s. T.S.F. Ltd. and substantial amount was
transferred to the accounts of M/s. T.S.F. Ltd. and M/s. Tulsi
Flour Mills and the same was withdrawn and misappropriated by
the petitioner, he does not deserve to be released on bail.
6. 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
12
reported in A.I.R. 1987 S.C. 1321 and Nimmagadda Prasad
-Vrs.- C.B.I. reported in (2013) 7 Supreme Court Cases
466).
7. Adverting carefully to the tactical and enthralling
contentions raised at the Bar by the learned counsel for the
respective parties and looking at the oral as well as documentary
evidence available on record, it is not disputed that the petitioner
is the director of M/s. T.S.F. Ltd. and proprietor of M/s. Tulsi
Flour Mills and there was an outstanding loan amount of Rs.2.5
crores of State Bank of Hyderabad against M/s. T.S.F. Ltd. The
petitioner as authorized director of M/s. T.S.F. Ltd. and his son
Durga Prasanna Mishra as authorized director of M/s. SBI (P)
Ltd. signed the loan agreement with DHFL as borrowers. As per
the agreement, out of the sanctioned loan of Rs.8.00 crores, an
amount of Rs.2.5 crores was first disbursed directly in favour of
State Bank of Hyderabad towards payment of the outstanding
loan against M/s. T.S.F. Ltd. It further reveals that from the
accounts of M/s. SBI (P) Ltd., an amount of Rs.42,15,968/- has
been transferred to the accounts of M/s. T.S.F. Ltd. and an
amount of Rs.9,77,957/- was transferred to the account of M/s.
Tulsi Flour Mills. The two bank accounts position of M/s. T.S.F.
Ltd. indicate that the balance in Axis Bank account is Rs.00.00
13
and that of Central Bank of India is Rs.2036.96 paisa. Therefore,
the petitioner has withdrawn almost the entire amount which had
come to the accounts of M/s. T.S.F. Ltd. from M/s. SBI (P) Ltd.
According to the prosecution case, the amount which was
transferred from the accounts of M/s. SBI (P) Ltd. to the
accounts of M/s. T.S.F. Ltd. was collected from the investors for
giving them flats in the residential projects of 'Tulsi Gardens'. It
reveals that even though Rs.5.22 crores was collected from the
customers as advance for providing them flats since long but not
a single customer is able to get such flat rather the amount so
deposited has been transferred to different accounts for obvious
reasons and misappropriated. The dreams of the poor investors
to get a flat in the residential project have remained unfulfilled
and they have been cheated of their hard earned money. The
role of the petitioner cannot be said to be negligible one in the
entire transaction. Even though the petitioner has not executed
any agreement with the investors nor received any money
directly from them but such money has indirectly came to him
through his son. The case against the petitioner relates to
commission of the economic offence. The investigation is at a
nascent stage. Submission of the learned counsel for the
petitioner relating to the age related ailments of the petitioner is
14
not supported by any medical documents. The medical
documents filed in connection with the wife's ailment of the
petitioner are of April and May 2018. There is nothing to show
relating to her present health condition. There is strong prima
facie case available against the petitioner to show his
involvement in the economic offence. Even though the petitioner
is an aged person but taking into account the 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.
Accordingly, the bail application of the petitioner sans
merit and hence stands rejected.
...............................
S. K. Sahoo, J.
Orissa High Court, Cuttack The 04th June 2019/Pravakar/Sisir/Sukanta