Orissa High Court
Akash Kumar Pathak vs State Of Odisha ........ Opp. Party on 17 June, 2021
Equivalent citations: AIRONLINE 2021 ORI 163
Author: S.K. Sahoo
Bench: S.K. Sahoo
IN THE HIGH COURT OF ORISSA, CUTTACK
BLAPL No. 502 Of 2021
An application under section 439 of the Code of Criminal
Procedure in connection with CID, CB, Cyber Crime P.S. Case
No.26 of 2020 corresponding to C.T. Case No.4053 of 2020
pending on the file of S.D.J.M., Bhubaneswar.
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Akash Kumar Pathak ........ Petitioner
-Versus-
State of Odisha ........ Opp. Party
For Petitioner: - Mr. Pitambar Acharya
(Senior Advocate)
For Opp. party: - Mr. Soubhagya Ketan Nayak
(Addl. Govt. Advocate)
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P R E S E N T:
THE HONOURABLE MR. JUSTICE S.K. SAHOO
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Date of Argument: 04.06.2021 Date of Order: 17.06.2021
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S.K. SAHOO, J. The petitioner Akash Kumar Pathak has knocked at
the portals of this Court by filing an application under section
439 of Cr.P.C. seeking for bail in connection with CID, CB, Cyber
Crime P.S. Case No.26 of 2020 corresponding to C.T. Case
No.4053 of 2020 pending on the file of S.D.J.M., Bhubaneswar in
which first charge sheet has been submitted for offences
punishable under sections 419, 420, 467, 468, 471 read with
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section 120-B of the Indian Penal Code and 66-C, 66-D of the
Information Technology Act, 2000 (hereafter 'I.T. Act') keeping
the investigation open under section 173(8) of Cr.P.C.
2. On 18.05.2020 an email was received from one
Trilochan Mohanty, Deputy General Manger-Ethics at Tata
Motors Limited (hereafter 'the Company'), Jamshedpur Works,
Jamshedpur as authorised representative addressed to the IG,
CID, CB, Cuttack, Odisha alleging therein that it was brought to
the notice of the Company on several occasions that certain
unscrupulous elements were committing fraud and thereby
causing harm to the reputation of the Company by contacting
common public with criminal intent to defraud them and collect
illicit money from them on the pretext of offering them jobs in
the Company. The modus operandi of such people was to use
the logo of the Company and/or TATA Group and other easily
identifiable insignia. They were mentioning a name and number
of a person to whom they misrepresent as an official of the
Company.
It is further mentioned in the email that an alarming
case was brought to the notice of the Company through one
email dated 7th May 2020 16:32 highlighting the illegal and
unauthorized use of brand name and well known trademark of
the Company and/or TATA and impersonation as an official of
the Company relating to fraudulent job offer by Mr. Vijoy Jha
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from his email id [email protected] enquiring about the
confirmation of the post of the petitioner who is the son of an
Indian Forest Officer of Odisha Cadre Mr. A.K. Pathak and that
the petitioner was taking huge amount of money fraudulently
from unemployed youth to secure them a job in the Company.
The email also stated that the petitioner was illegally
impersonating and projecting himself as MD, Tata Motors, Pune
Passenger Division and CEO designate. A copy of the aforesaid
email dated 7th May 2020 was attached to the email dated
18.05.2020. It is stated that the petitioner was using (i) A fake
ID card mentioning Employee ID 88176 (ii) A fake visiting card
with the official details as Akash Kumar Pathak, TAS, VP-
Administration, 1st Floor, JRD Administrative Block, Tata Motors
Limited, Telco Road, Pimpri, Pune-411018, Email ID-
[email protected] and Contact nos.
9556968888/7077608883. Copies of the said fake ID card and
visiting card used by the petitioner were attached to the email
for taking drastic legal actions against the culprits.
The fake ID card and visiting card indicated having
'TATA' stylized word mark as it appears on various passenger
and commercial vehicles manufactured by TML. Those cards
were having the 'T in circle' blue design mark which is a mark
appearing on various passenger and commercial vehicles
manufactured by TML by which the public identifies the
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conglomerate and the various products offered. The email id of
such person mentioned in the email has the word 'Tata' in it.
The person sending email found certain other
evidence in support of the complaints pertaining to the petitioner
that he had donated rupees five lakhs by fraudulently portraying
himself as a M.D. (I/C) of the Passenger Division at Pune to the
CM of Odisha at his official residence in Bhubaneswar, Odisha
which can be found in the newspaper articles at
http://tathya.in/news/39145/0/Pathak-Contributes-To-CMRF and
http://odishabarta.com/2020/04/19/3263/. The Company also
found the LinkedIn and Facebook Profile of the petitioner posing
as TAS officer of Tata Motors Limited joined in 2017. A
screenshot of the same was also attached to the email.
It is further mentioned in the email that the general
public believed that the petitioner was representing the
Company. Neither the petitioner mentioned in the email,
newspaper articles, LinkedIn or Facebook that he was employed
by the Company nor the Company sought for money from any
prospective candidates for recruitment. It is mentioned that
there was no person in the name of the petitioner working for
the Company as M.D. for Tata Motors, Pune Passenger Division
or CEO designate.
It is further mentioned in the email that there are
clear evidence that the petitioner intentionally duped the
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common public fraudulently of their money and maligning the
reputation of the Company and its officials. It was apprehended
that this nature of fraud would lead to larger cunning acts with
public at large i.e. business establishments, officials of the
government, media houses, investors, TML local and regional
establishments etc. and some of the instances were apparent in
the complaint itself. It is stated that the offences committed by
the petitioner amounts to criminal conspiracy, cheating, fraud,
forgery, impersonation, infringement of trademarks and
copyrights and to engage a person with an intent to inflict
monetary losses and theft of identity.
In the said email, request was made to investigate
and take necessary steps to trace out the persons using the
phone numbers 9556968888 and 7077608883 as mentioned by
the petitioner, to trace out the culprits involved in the matter
and to ensure that such activities are discontinued forthwith and
appropriate steps are taken to prosecute the people behind the
act of fraud, forgery and impersonation.
In the email, it is alleged that the petitioner along
with other culprits cheated the company dishonestly and
fraudulently by committing fraud, forgery by manufacturing Id
mail and other documents to misappropriate money from public
by impersonating fraudulently for which accused persons are
liable to be punished for such criminal act of cheating,
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impersonation, committing fraud and forgery, misappropriation
of money from public and other penal provision available for
commission of cyber crime and penalty stipulated under cyber
crime.
3. On 23.09.2020 the complainant Trilochan Mohanty
appeared at Cyber Crime Police Station, Cuttack and reported to
have lodged a report on 18.05.2020 before the I.G. of Police,
CID, CB, Odisha, Cuttack through email. The records were
verified and it was ascertained that the copy of the report was
sent to DCP, Bhubaneswar for appropriate action but no action
was taken thereon as on 23.09.2020. Accordingly, on
23.09.2020 CID, CB, Cyber Crime P.S. Case No.26 of 2020 was
registered under sections 419, 420, 467, 468, 469, 471 of the
Indian Penal Code and 66-C, 66-D of the I.T. Act against the
petitioner only.
During course of investigation of the case, the
complainant Sri Trilochan Mohanty was examined and his
statement was recorded who corroborated the F.I.R. story and
produced some relevant documents like (i) two pages of email
communication received by complainant Trilochan Mohanty in his
mail [email protected] on 08.05.2020 from
his Chief Ethic Councillor Sunil Pundlik from mail id-
[email protected] regarding the mail of
[email protected] about the fraudulent activities of the
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accused, (ii) two pages of mail communication sent from
complainant Trilochan Mohanty on dtd.08.05.2020 from his mail
[email protected] to the mail id-
[email protected] regarding furnishing of information about
the fraud, (iii) nine pages of mail communication sent from the
mail id- [email protected] to complainant Trilochan Mohanty
on dtd.08.05.2020/09.05.2020 to his mail id-trilochan.mohanty
@tatamotors.com regarding submission of more information
about the petitioner, (iv) one LinkedIn account page of the
petitioner having URL:- https://www.linkedin.com/in/akash-
kumar-pathak-a45b09157 having information written about Tata
Administrative Service, (v) one Facebook account page of the
petitioner having URL:- https://www.facebook.com/
akashkumar.pathak.5 having information written about Tata
Administrative Service, (vi) one HP Laptap in which the
complainant communicated with the source through gmail
having specification Make:-HP, Sl. No.:- SCD9112R48, TATA
MOTORS No.-96535 were seized under seizure list.
Basing on the seized documents correspondence
made with Mobile Service Providers, it was ascertained that both
the mobile numbers 9556968888 and 9556968888 belonged to
one Sakir Khan of Unit-9, Bhubaneswar but the user could not
be traced out. During course of investigation, correspondences
were made with Face book Law Enforcement Agency for
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providing User registration details of the Facebook Id:-Akash
Kumar Pathak along with IP addresses details which were
awaited.
During course of investigation, the Investigating
Officer visited the Business Plaza situated at Pune where the
petitioner was running his office at 10th Floor and hired half of
the floor and opened his Tata Motors Office. The Investigating
Officer also visited Gods Blessing Apartment at Pune, Waters
Apartment at Pune and examined different witnesses and
recorded their statements. The witnesses proved the fraudulent,
dishonest, illegal and clandestine activities of the petitioner by
projecting himself as the MD of Tata Motors Ltd., Pimpri Division
and convincing the people that his office in Hotel West Inn was
his additional office to discharge his escalating work pressure.
One witness David Peter proved the meeting of the petitioner
with other co-accused persons namely Pradeep Kumar Panigrahi
and Sarveswar Rao and regarding their conspiracy to cheat
public by using fake identity card, visiting card, mail id, Tata
Motors logo etc. as genuine. The witness further stated that the
petitioner and the co-accused Pradeep Kumar Panigrahi were
visiting different places in Charter Flight and staying together in
hotels at different places.
During course of investigation, the Investigating
Officer seized some vital documents at Pune which proved that
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the petitioner was running a fake office in the name of Tata
Motors by using Tata Motors Logo etc. at Business Plaza.
Requisition was given to Sarfaraj Maner, General Manager HR
(CVBU), Pimpri, Pune to furnish detail information relating to the
petitioner who was projecting himself as MD (I/c), Passenger
Division, Tata Motors Ltd., Pimpri, Pune who in his reply affirmed
that the petitioner was not working in the said Office at Pimpri,
Pune.
On examination of some witnesses of Berhampur
and peripheral area, it was proved that number of job aspirants
have been cheated by co-accused Pradeep Panigrahi, who was
an associate of the petitioner and he was also personally
collecting money from the job aspirants and their
parents/guardians by projecting himself as he would be father-
in-law of the petitioner by projecting the petitioner as the MD
(I/c), Passenger Division, Tata Motors Ltd., Pimpri, Pune. It was
found during investigation that the innocent local people
believed the version of co-accused Pradeep Panigrahi in good
faith and many of them paid huge amount of money in cash as
well as by account payment to the co-accused for securing a job
in TATA Motors. Co-accused V. Sarveswar Rao collected resume
of different job aspirants and sent the same to the petitioner and
assured people for job in the Tata Motors. The job aspirants
received application forms on their mails from careers@tata-
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motors.org and appeared online interview. They also provided
list of selected candidates and attended online training course.
Further the email communications between the mail id of job
aspirants with mail id [email protected] for getting job in
TATA Motors Ltd. along with 65-B Certificates from some
witnesses were seized which proved the correspondence
between the job aspirants and the petitioner.
Statement of accounts of victims indicates that huge
amount of money transactions was made from their account to
account of co-accused Pradeep Panigrahi and similarly
transactions of huge amount of money were made from Pradeep
Panigrahi's account to the account of the petitioner. The
statement of account also corroborate the statements of victims/
witnesses regarding withdrawal of huge amount of money to
attend the illegal demand of accused for providing job in Tata
Motors.
The Investigating Officer made correspondence with
eNom, Inc, Registrar IANA, Google LLC with a request to furnish
the point wise information related to domain tata-motors.org i.e.
User Registration details, IP addresses, payment details etc., but
the report was still awaited. Some Laptops, Mobile handset, SIM
cards etc. which were related to the petitioner were re-seized by
Inspector R.P. Satpathy and David Peter Metre which were
originally seized from them by vigilance.
Page 10 of 36
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The petitioner was brought in police remand who
while in police custody confessed to have created email id
[email protected] and received resumes of job
aspirants from the email id of the co-accused Pradeep Panigrahi
and the petitioner in presence of Government witnesses opened
the email id [email protected] created in the name
of TATA Motors for impersonating himself and screenshots of
each step was taken and memorandum was prepared in
presence of witnesses. The screenshots and other related
documents, email communication between the petitioner and co-
accused Pradeep Panigrahi were also seized.
The Investigating Officer made correspondence with
Google INC through mail for providing User registration details,
IP address details along with MAC address of the alleged
computer used at the time of registration, login details
concerned IP address with login date and time in respect of the
e-mail ID:- [email protected] for the period from
creation/registration of e-mail account and the reply was
received.
The Investigating Officer made correspondence with
Ms. Nupur Mallick, Group CHRO, TATA Sons seeking for
clarifications about the petitioner, who confirmed that the
petitioner was never empanelled in TATA Administrative Service.
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The seized exhibits were forwarded to the Director,
State Forensic Science Laboratory, Rasulgarh, Bhubaneswar for
forensic examination and opinion through learned S.D.J.M.,
Bhubaneswar and the report is still awaited.
The Investigating Officer found that the petitioner
had committed the offence of forgery by creating forged
documents like I-Card, Visiting Card in the name of Tata Motors.
He has committed the offence of identity theft in the name of
Tata Motors and gave an impression of being a senior
functionary of Tata Motors so as to get pecuniary advantages
using forged document as genuine. The petitioner along with co-
accused Pradeep Panigrahi and Sarveswar Rao committed the
offence of cheating by impersonation by creating forged
electronic records in the form of Gmail in the name of TATA
Motors. The offence was committed by the petitioner and co-
accused Pradeep Panigrahi and Sarveswar Rao in a pre-planned
and calculated manner for their wrongful gain by inflicting
wrongful loss to the common people in the name of providing
jobs to the job seekers in Tata Motors Ltd. which is a white-
collar crime affecting socio-economic fabric of the State. The
petitioner along with co-accused Pradeep Panigrahi and
Sarveswar Rao hatched out criminal conspiracy in a pre-planned
and calculated manner to dupe and induce the gullible job
aspirants and their guardians in the guise of providing jobs in
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Tata Motors and collected huge amount of money. The petitioner
along with co-accused Pradeep Panigrahi and Sarveswar Rao
fraudulently fabricated documents including electronic
documents to project the petitioner as the MD (I/c) of Tata
Motors, Passenger Division and received resumes of the job
aspirants, sent them letters purportedly issued by Tata Motors
Ltd., conducted fake online interviews and collected money from
them after issuing forged selection letters. The petitioner also
organized fake online training for the selected candidates. From
the evidence collected, it was found that the petitioner along
with co-accused Pradeep Kumar Panigrahi and V. Sarveswar Rao
have committed the offences under sections
419/420/467/468/471/120-B of the Indian Penal Code read with
sections 66-C/66-D of I.T. Act and accordingly, first charge
sheet was submitted against them keeping the investigation
open under section 173(8) of Cr.P.C.
4. The bail application of the petitioner came to be
rejected by the learned 3rd Addl. Sessions Judge, Bhubaneswar
in BLAPL No.1623 of 2020 as per order dated 07.01.2021 mainly
on the ground that there are prima facie materials against the
petitioner and the accusation against the petitioner are grave
and serious and the investigation is under progress and many
other factors are likely to be unearthed and that there is every
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likelihood of pressurising and threatening the witnesses, if the
petitioner is enlarged on bail.
5. Mr. Pitambar Acharya, learned Senior Advocate
appearing for the petitioner in his own inimitable elegant style
contended that while the petitioner was in judicial custody in
connection with Cuttack Vigilance Cell P.S. Case No.06 dated
27.11.2020, he was taken on remand in this case since
07.12.2020 as per the orders of learned S.D.J.M., Bhubaneswar.
The petitioner has been released on default bail on 27.01.2021
in the vigilance case since the vigilance police failed to submit
the charge sheet within the statutory period of sixty days. In the
said vigilance case, while calculating the assets of the father of
the petitioner, all the bank accounts of the petitioner were taken
into account. Therefore, on the one hand, one investigating wing
has taken the money in the petitioner's bank accounts as his
father's disproportionate assets whereas the other investigating
wing has alleged that the said money in the petitioner's bank
accounts was collected from job aspirants through co-accused
Pradeep Kumar Panigrahi. It is argued that the prosecution is
trying to mislead the Court by projecting that the petitioner was
not an employee of TATA Group even though the Investigating
Officer has received the appointment letter of the petitioner from
the official email id of Nirav Khambati, the CEO of TATA Sons.
The domain names of TATA Sons and TATA Motors cannot be
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created. There has been inordinate delay of four months in
registering of F.I.R. after receipt of email from Trilochan
Mohanty against the petitioner and the prosecution has no
answer to the same. The offences are triable by Magistrate First
Class and charge sheet has already been submitted on
31.03.2021 and the petitioner has suffered pre-trial detention
for more than six months. It is contended that the allegations
against the petitioner are mainly to be proved on the basis of
documentary evidence including electronic materials which have
been seized. None of the witnesses stated to have paid any
money directly to the petitioner for allegedly securing jobs in
TATA Motors and there is no nexus between the job
seekers/aspirants and the petitioner and thus, the element of
cheating within the scope and ambit of section 415 of Indian
Penal Code is not attracted. He emphasised that email contents
of Trilochan Mohanty are false and frivolous and without a
reasonable satisfaction reached after some investigation as to
the genuineness of accusations leveled in email, the curtailment
of liberty of the petitioner is a drastic abridgment of
constitutional protection which is a determining factor to be
taken into account in this bail application. According to Mr.
Acharya, the investigating agency has used all the three
investigating wings of the State i.e. Vigilance, Police
Commissionerate and Crime Branch to implicate the petitioner,
Page 15 of 36
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his father and his would be father-in-law with false accusation.
The Crime Branch has taken the petitioner on five days police
remand and after five days, no further remand was prayed for
by the investigating agencies. The petitioner cannot have any
access to the official witnesses or to any official
documents/records pertaining to the case which have been
seized and as such, there is no question of tampering with the
evidence.
It is further contended that while granting bail to the
co-accused Pradeep Kumar Panigrahi in BLAPL No.9008 of 2020
vide order dated 24.02.2021, this Court secured the money
allegedly paid by the job seekers and directed deposit of
Rs.47.45 lakhs by the said co-accused before the learned Court
below. The allegations made in the F.I.R., even if they are taken
at their face value and accepted in its entirety do not prima facie
constitute any offence against the petitioner.
It is further contended that the petitioner is a young
boy of twenty six years old and he is a graduate in Mechanical
Engineering and there is no criminal antecedent against him
save and except the present F.I.R. and subsequent F.I.Rs which
were lodged on similar accusations on account of political
differences between his would-be father-in-law, a sitting M.L.A.
and present ruling party of the State and the petitioner has
become a victim of a well-designed conspiracy. He placed
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reliance in the cases of State of Rajasthan -Vrs.- Balchand @
Baliay reported in (1977) 4 Supreme Court Cases 308,
Thulia Kali -Vrs.- State of Tamilnadu reported in (1972) 3
Supreme Court Cases 393, Kishan Singh -Vrs.- Gurpal
Singh reported in (2010) 8 Supreme Court Cases 775,
Joginder Kumar -Vrs.- State of Uttar Pradesh and others
reported in (1994) 4 Supreme Court Cases 260 and Sheila
Sebastian -Vrs.- R. Jawaharaj reported in (2018) 7
Supreme Court Cases 581.
6. Mr. Soubhagya Ketan Nayak, learned Addl. Govt.
Advocate on the other hand vehemently opposed the prayer for
bail and argued that the investigation so far reveals that co-
accused Pradeep Panigrahi had collected a hefty sum of
Rs.88,00,000/- (rupees eighty eight lakh) from the job aspirants
for providing them jobs which is the subject matter of different
cases and such money was transferred to the bank account of
the petitioner on different dates. It is further argued that in spite
of opportunities being provided to the petitioner to produce
documents to show that he was serving as M.D. (I/c) of TATA
Motors and received salary as an employee of the company for
his job, he failed to do so. Reliance was placed on the
notification of the Finance Department, Govt. of India dated
13.05.2005 which indicates that salaries of Government servants
and employees in Private/Public & Corporate Sectors are to be
Page 17 of 36
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paid through bank accounts. It is contended that the claim of the
petitioner as an employee of TATA Group is totally false and
baseless. He highlighted the reply received from the Head HR
Manager, TATA Motors, Pimpiri, Pune to the query made by the
Investigating Officer that the petitioner was never posted as
M.D. (I/c) of TATA Motors. He also placed a reply received from
Ms. Nupur S Mallik, Group Chief Human Resources Officer to
show that the petitioner was never in TATA Group and he was
never allotted ID No.88176 and the said witness is yet to be
examined during course of further investigation. It is further
argued that the offences alleged against the petitioner have
serious social ramifications and there is segment of larger
conspiracy to cheat the innocent unemployed youth in the name
of providing jobs. Answering to the point raised by Mr. Acharya
relating to the seizure of bank accounts of the petitioner in the
vigilance case instituted against the petitioner and his father
Abhaykant Pathak, it is stated in the written note submitted on
behalf of State that the bank accounts of the petitioner in which
he received money from co-accused Pradeep Panigrahi have
been duly investigated by the vigilance and such money was
treated as personal income of the petitioner and not as the
disproportionate assets of his father. While concluding the
argument, it is emphasised that in case the petitioner is released
on bail at this stage when further investigation on certain
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important aspects is under progress, there is every likelihood of
tampering with the evidence and dissuading the witnesses to
speak the truth and thereby there would be derailing of the
ongoing investigation. He placed reliance in the case of Muna
Patra @ Patro -Vrs.- State of Odisha reported in (2019) 74
Orissa Criminal Reports 332.
7. Law is well settled that at the stage of granting bail,
detailed examination of evidence and elaborate discussions on
merits of the case need not be undertaken but when the accused
is charged with economic offences, the order must reflect the
reasons for arriving at a prima facie conclusion as to why bail
was being granted.
In the case of Ash Mohammad -Vrs.- Shiv Raj
Singh reported in (2012) 9 Supreme Court Cases 446, it is
held 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.
In the oft-quoted decision of the Hon'ble Supreme
Court in case of Balchand @ Baliay (supra), Hon'ble Justice
V.R. Krishna Iyer speaking for the Bench observed that when an
accused seeks enlargement on bail from the Court, the basic rule
is to grant bail, not jail, except where there are circumstances
Page 19 of 36
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suggestive of fleeing from justice or thwarting the course of
justice or creating other troubles in the shape of repeating
offences or intimidating witnesses and the like. The gravity of
the offence involved which is likely to induce the accused to
avoid the course of justice so also the heinousness of the crime
must weigh with the Court when considering the question of bail.
At this stage, it would be appropriate to discuss the
ratio laid down by the Hon'ble Supreme Court and this Court
relating to the principles of grant of bail in economic offences.
In the case of Y.S. Jagan Mohan Reddy -Vrs.-
C.B.I. reported in (2013) 55 Orissa Criminal Report (SC)
825, it is held as follows:-
"15. Economic offences constitute a class apart
and need to be visited with a different approach
in the matter of bail. The economic offences
having deep rooted conspiracies and involving
huge loss of public funds need to be viewed
seriously and considered as grave offences
affecting the economy of the country as a whole
and thereby posing serious threat to the
financial health of the country.
16. 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
Page 20 of 36
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accused at the trial, reasonable apprehension of
the witnesses being tampered with, the larger
interests of public/State and other similar
considerations."
In case of State of Gujarat -Vrs.- Mohan Lal
Jitamal Torwal reported in A.I.R. 1987 S.C. 1321, it is held
as follows:-
"5.........The entire community is aggrieved if
the economic offenders who ruin the economy of
the State are not brought to book. A murder
may be committed in the heat of moment upon
passions being aroused. An economic offence is
committed with cool calculation and deliberate
design with an eye on personal profit regardless
of the consequence to the community. A
disregard for the interest of the community can
be manifested only at the cost of forfeiting the
trust and faith of the Community in the system
to administer justice in an even handed manner
without fear of criticism from the quarters which
view white colour crimes with a permissive eye
unmindful of the damage done to the National
Economy and National Interest".
In the case of Nimmagadda Prasad -Vrs.- C.B.I.
reported in (2013) 55 Orissa Criminal Reports (SC) 833, it
was held that economic offences have serious repercussions on
the development of the country as a whole. Such offences
constitute a class apart and need to be visited with a different
approach in the matter of bail. The economic offence having
Page 21 of 36
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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.
In the case of Ram Chandra Hansdah -Vrs.-
Republic of India reported in (2015) 62 Orissa Criminal
Reports 219, I have held that economic offences are
considered grave offences as it affects the economy of the
country as a whole and such offences having deep rooted
conspiracy and involving huge loss of public fund are to be
viewed seriously. Economic offence 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. Similar view was
taken by me in the case of Muna Patra @ Patro (supra), while
dealing with a bail application in case of an economic offence.
Thus, economic offences are considered grave
offences as it affects the economy of the country as a whole and
such offences having deep rooted conspiracy and involving huge
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loss of public fund are to be viewed seriously. Economic offence
is committed with cool calculation and deliberate design solely
with an eye on personal profit regardless of the consequence to
the community. An economic offence is a well manipulated
offence. It is a white collared crime which disturbs economic
equilibrium in the society and the weaker section is victimised.
Liberty of an individual cannot outweigh the interest of the
society. An economic offence has to be viewed from a serious
perspective and no lenient view can be taken. A murderer takes
away the life of a person but a person committing economic
offence leaves a living person dead. Discretion of grant of bail
should be used in a proper and judicious manner and the Court
must take note of the nature of accusation, the nature of
supporting evidence, the severity of punishment in case of
conviction, reasonable apprehension of tampering with the
evidence, criminal antecedents etc. Of course, bail should not be
denied merely because the sentiments of the community are
against the accused. It is not to be denied merely because there
is a prima facie case which requires trial of the issue of guilt or
innocence. Its purpose is to secure attendance of the accused at
the trial and non-interference with a fair and speedy trial. The
purpose of bail law is not punitive but preventive. Even if there
is a prima facie case for a possible conviction, bail cannot be
refused, unless there is reasonable evidence before the Court
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that the accused would abscond or destroy evidence or tamper
with witnesses to frustrate the trial and grant of bail would be
against the larger interests of the public and State and similar
other considerations. More heinous is the crime, the greater is
the chance of rejection of the bail, though it would always be
depended on the factual matrix of the matter. 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 application.
8. The crux of matter is whether the petitioner was an
employee of Tata Motors Ltd. and he was working as MD (I/c) of
Pimpri Division, Pune at the relevant point of time.
According to the prosecution, from the statements of
witnesses and documents collected so far particularly from the
reply furnished by Sarfaraj Maner, General Manager HR (CVBU),
Pimpri, Pune and Ms. Nupur Mallick, Group CHRO, TATA Sons, it
appears that the petitioner was not working in Tata Motors
Division Office at Pimri, Pune and was never empanelled in TATA
Administrative Service. The office which he was running in the
name of Tata Motors by using Tata Motors logo etc. at 10th Floor,
Business Plaza, Westin, Koregaon Park, Pune was a fake one.
The petitioner also created forged documents like I-Card,
Visiting Card in the name of Tata Motors. In spite of
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opportunities provided to the petitioner, according to the
prosecution, he failed to produce documents to show that he
was serving as M.D. (I/c) of TATA Motors and received salary as
an employee for his job. Since the investigation is under
progress, the prosecution is expecting some more incriminating
materials to be unearthed in that connection.
Though Mr. Pitambar Acharya, learned Senior
Advocate filed xerox copies of certain documents regarding the
appointment of the petitioner in TATA Group, at this stage it
would not be proper to give any opinion on such documents.
Neither the original copies were filed nor were the documents
filed with an affidavit that those are the true copies of the
original documents. The Investigating Officer is expected to
verify the authenticity of those documents filed in Court. If the
Investigating Officer has received the appointment letter of the
petitioner from the official email id of Nirav Khambati, the CEO
of TATA Sons as submitted by the learned counsel for the
petitioner, the same will certainly be brought on record at the
time of submission of final chargesheet. The petitioner will also
get ample opportunity at the stage of trial to prove the original
documents in that connection in accordance with law.
In view of the materials collected by the prosecution
so far during course of investigation and the documents
produced by the learned counsel for the petitioner, I refrain from
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giving any opinion on the disputed question as to whether the
petitioner was working in Tata Motors Division Office at Pimri,
Pune and he was ever empanelled in TATA Administrative
Service. However, after evidence is adduced from both the sides,
the learned trial Court would be in a better position to evaluate
the materials produced before it and to give a finding thereon.
9. Adverting to the contentions raised by the learned
counsel for the petitioner regarding delay in lodging first
information report, it appears that on 18.05.2020 an email was
received from one Trilochan Mohanty addressed to the IG, CID,
CB, Cuttack, Odisha and the report was sent to DCP,
Bhubaneswar for appropriate action but no action was taken
thereon. On 23.09.2020 the said Trilochan Mohanty appeared at
Cyber Crime Police Station, Cuttack and reported to have lodged
a report on 18.05.2020. The records were verified and when it
was found that no action was taken on the email, the very same
email dated 18.05.2020 was registered as F.I.R. on 23.09.2020
as CID, CB, Cyber Crime P.S. Case No.26 of 2020 against the
petitioner. Therefore, here is a case of delay of four months in
the registration of the F.I.R. even after getting the email against
the petitioner on 18.05.2020. At this juncture, two decisions
relied upon by the learned counsel for the petitioner need to be
discussed.
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In the case of Thulia Kali (supra), the Hon'ble
Supreme Court held that first information report in a criminal
case is an extremely vital and valuable piece of evidence for the
purpose of corroborating the oral evidence adduced at the trial.
The importance of the above report can hardly be overestimated
from the standpoint of the accused. The object of insisting upon
prompt lodging of the report to the police in respect of
commission of an offence is to obtain early information regarding
the circumstances in which the crime was committed, the names
of the actual culprits and the part played by them as well as
names of eye witnesses present at the scene of occurrence.
Delay in lodging the first information report quite often results in
embellishment which is a creature of afterthought. On account of
delay, the report not only gets bereft of the advantage of
spontaneity, danger creeps in of the introduction of coloured
version, exaggerated account or concocted story as a result of
deliberation and consultation. It is, therefore, essential that the
delay in the lodging of the first information report should be
satisfactorily explained.
In the case of Kishan Singh (supra), the Hon'ble
Supreme Court held that prompt and early reporting of the
occurrence by the informant with all its vivid details gives an
assurance regarding truth of its version. In case, there is some
delay in filing the F.I.R., the informant must give plausible
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explanation for the same. Undoubtedly, delay in lodging the
F.I.R. does not make the informant's case improbable when such
delay is properly explained. However, deliberate delay in lodging
the F.I.R. is always fatal. Chagrined and frustrated litigants
should not be permitted to give vent to their frustrations by
cheaply invoking the jurisdiction of the criminal Court. The Court
proceedings ought not to be permitted to degenerate into a
weapon of harassment and persecution. In such a case, where
an F.I.R. is lodged clearly with a view to spite the other party
because of a private and personal grudge and to enmesh the
other party in long and arduous criminal proceedings, the Court
may take a view that it amounts to an abuse of the process of
law in the facts and circumstances of the case.
The Constitution Bench of the Hon'ble Supreme
Court in the case of Lalita Kumari -Vrs.- Govt. of U.P. and
Ors. reported in (2014) 2 Supreme Court Cases 1 held that
the registration of first information report is mandatory under
section 154 of the Code of Criminal Procedure, if the information
discloses commission of a cognizable offence and no preliminary
inquiry is permissible in such a situation. If the information
received does not disclose a cognizable offence but indicates the
necessity for an inquiry, a preliminary inquiry may be conducted
only to ascertain whether cognizable offence is disclosed or not.
If the inquiry discloses the commission of a cognizable offence,
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the first information report must be registered. The police officer
cannot avoid his duty of registering offence if cognizable offence
is disclosed. The scope of preliminary inquiry is not to verify the
veracity or otherwise of the information received but only to
ascertain whether the information reveals any cognizable
offence. The Hon'ble Court further held that in what type and in
which cases preliminary inquiry is to be conducted would depend
on the facts and circumstances of each case. The categories of
cases in which preliminary inquiry may be made were
enumerated therein.
In the case of Jitender Kumar -Vrs.- State of
Haryana reported in (2012) 6 Supreme Court Cases 204, it
is held that the settled principle of criminal jurisprudence is that
mere delay in lodging the first information report may not prove
fatal in all cases, but in the given circumstances of a case, delay
in lodging the first information report can be one of the factors
which corrode the credibility of the prosecution version. Delay in
lodging the first information report cannot be a ground by itself
for throwing away the entire prosecution case. The Court has to
seek an explanation for delay and check the truthfulness of the
version put forward. If the Court is satisfied, then the case of the
prosecution cannot fail on this ground alone.
At the stage of considering bail application, it is not
required to seek an explanation for delay in lodging or
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registering the first information report from the prosecution and
check the truthfulness of the version put forth.
Mr. Nayak, learned Additional Govt. Advocate,
however, on his own tried to explain the delay in registration of
F.I.R. by submitting that some kind of preliminary enquiry was
going on relating to the allegations made in the email sent on
18.05.2020 by Trilochan Mohanty and when the allegations were
prima facie found to be correct, then the F.I.R. was registered. It
is very difficult to accept such explanation at this stage
particularly when no such aspects find place in the case records
submitted by him. There is nothing as to who was conducting
the enquiry and what the outcome of such enquiry was. The
chargesheet rather indicates that on 23.09.2020 when Trilochan
Mohanty appeared at Cyber Crime Police Station to know about
the status of his email dated 18.05.2020, records were verified
and it was found that no action was taken on the email.
However, the prosecution can produce the materials
at the stage of trial giving plausible explanation for the delay in
registration of F.I.R., which is obviously to be taken into account
by the learned trial Court in accordance with law. It would not be
proper on the part of this Court to give any finding on such
submission particularly at the stage of adjudication of the bail
application. It is needless to say that even if there is some delay
in lodging the F.I.R. or registration of the F.I.R., it has to be
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brought on record by the defence that there was deliberate
delay which was the result of malafide or actuated by
extraneous considerations and it has to be further established as
to whether any serious prejudice was caused to the accused
thereby or it cast any doubt on the prosecution case.
10. The learned counsel for the petitioner raised a
contention that one investigating wing has taken the money in
the petitioner's bank accounts as his father's disproportionate
assets whereas the other investigating wing has alleged that the
said money in the petitioner's bank accounts was collected from
job aspirants through co-accused Pradeep Kumar Panigrahi.
However, in the written note submitted on behalf of State, it has
been clarified that the bank accounts of the petitioner in which
he received money from co-accused Pradeep Panigrahi have
been duly investigated by the vigilance and such money was
treated as personal income of the petitioner and not as the
disproportionate assets of his father.
11. The contention raised by the learned counsel for the
petitioner that there has been curtailment of liberty of the
petitioner without proper investigation as to the genuineness of
accusations levelled in the email, is very difficult to be accepted.
Reliance was placed in the case of Joginder Kumar (supra)
where the Hon'ble Supreme Court held that no arrest can be
made in a routine manner on a mere allegation of commission of
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an offence made against a person. It would be prudent for a
police officer in the interest of protection of the constitutional
rights of a citizen and perhaps in his own interest that no arrest
should be made without a reasonable satisfaction reached after
some investigation as to the genuineness and bona fides of a
complaint and a reasonable belief both as to the person's
complicity and even so as to the need to effect arrest. Denying a
person of his liberty is a serious matter. Reliance was also placed
by the learned counsel for the petitioner in the case of Sheila
Sebastian (supra), wherein it is held that the Investigating
Officer is expected to be diligent while discharging his duties. He
has to be fair, transparent and his only endeavour should be to
find out truth.
The case records indicate that after registration of
the first information report on 23.09.2020, the petitioner was
taken on remand in the case on 07.12.2020. Prior to that, he
was in judicial custody in connection with Cuttack Vigilance Cell
P.S. Case No.06 dated 27.11.2020. During investigation,
witnesses were examined and some relevant documents were
seized and the I.O. also visited the office of the petitioner at 10th
Floor, Business Plaza and it was revealed that the petitioner was
running a fake office in the name of Tata Motors by using Tata
Motors logo etc. at Business Plaza and his fraudulent, dishonest,
illegal and clandestine activities by projecting himself as the MD
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of the Company came to fore. Thereafter, the I.O. made a
prayer before learned S.D.J.M., Bhubaneswar to take remand of
the petitioner in the case, which was allowed. In view of the
materials on record, it can be said that there was reasonable
satisfaction of the I.O. reached after some investigation as to
the genuineness and bona fides of the accusations levelled in the
first information report whereafter the petitioner was taken on
remand. There is nothing to show that the investigation was
unfair. Consequently, the contention of the learned counsel for
the petitioner on this score fails.
12. The case records indicate that in a pre-planned and
calculated manner, the petitioner and the co-accused persons
have incurred wrongful gain by inflicting wrongful loss to the
common people in the name of providing them jobs in TATA
Motors which is a white collar crime that affects socio-economic
fabric of the State. According to the prosecution, the petitioner
became successful in his evil mission in collecting huge amount
from the job aspirants in view of the influence of local M.L.A.
who is a co-accused in the case who projected the petitioner as
his prospective son-in-law. The gullible job aspirants were also
mesmerised as the petitioner alleged to have created forged
documents and electronic records of Tata Motors, received
resumes of job aspirants, conducted fake online interviews,
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issued forged selection letters and organised fake online training
programme for the selected candidates.
The very term 'unemployment' sounds like a death
knell for the future of the youth of this nation. When an
educated youth carrying certificates of Boards and Universities is
drenched in rain of sorrows for non-availability of any suitable
job for him and unable to show his tears to anyone even though
he is crying inwardly, feeling pain in his hurting heart and tries
to hide sign of sadness, instead of providing him an umbrella for
weathering storms of life and playing a supportive role to let him
overcome depression, if someone on the pretext of providing
job, exploits the youth and dupes him of his money arranged
with much difficulty and makes him falling prey to temptations
of lucrative jobs, it is a cheating of highest order. It brings
wrongful gain to the duper and wrongful loss to the person
duped. Making false promise by an accused to the job aspirant
by assuring that he would get job on payment of huge amount
itself establishes one of the essential ingredients of cheating as
envisaged under section 415 of the Indian Penal Code that at the
time of making the promise, the accused had fraudulent and
dishonest intention to deceive the job aspirant and to get gained
wrongfully. According to the data collected by Centre for
Monitoring Indian Economy (CMIE), the unemployment rate
among educated youth is on massive rise. Needless to say, the
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cases of fraudsters cheating job aspirants are also on sharp rise.
These white-collar crimes, which have drastic effects, are
required to be dealt with iron hands and severe punishment
needs to be awarded to the culprits on proof of charges by the
prosecution beyond all reasonable doubt.
13. In view of the foregoing discussions, without detailed
examination of evidence and elaborate discussion on merit of the
case but taking into account prima facie case of commission of
act of cheating, fraud and forgery and impersonation alleged
against the petitioner which is also the subject matter of further
investigation and the fact that such offences are essentially
matters of evidence which could be proved as a fact by direct
evidence or by inferences drawn from proved facts, further
taking into account the manner in which gullible job aspirants
have been allegedly duped with deliberate design keeping an eye
on personal profit regardless of the consequence to the
community and that there may be many more such persons who
might have been duped in the name of providing jobs in a
reputed company like TATA Motors which is likely to be
unearthed during course of further investigation, the nature and
gravity of the accusation, severity of the punishment in the
event of conviction, the position and standing of the petitioner
and the co-accused sitting M.L.A. who has been recently
released from judicial custody, the reasonable apprehension of
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tampering with the evidence and when on some important
aspects the investigation is still under progress, in the larger
interest of public and State, I am not inclined to release the
petitioner on bail.
It is made clear that the observation made while
disposing of this bail application relates to the materials
collected during course of investigation so far and the findings
recorded herein are for the purpose of adjudication of this bail
application only. This may not be taken as an expression of
opinion on the merits of the case. The learned trial Court would
be at liberty to decide the matter in the light of evidence which
shall come on record after it is led de hors any finding recorded
in this order.
Accordingly, the bail application sans merit and
hence stands rejected.
............................
S.K. Sahoo, J.
Orissa High Court, Cuttack The 17th June 2021/Pravakar/RKM Page 36 of 36