Orissa High Court
Bijaya Krushna Mohapatra vs State Of Odisha (Vigilance) ... ... on 3 April, 2023
Author: G. Satapathy
Bench: G. Satapathy
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLMC NO.4230 of 2016
(In the matter of application under Section 482 of the
Criminal Procedure Code, 1973).
Bijaya Krushna Mohapatra ... Petitioner
-versus-
State of Odisha (Vigilance) ... Opposite Party
For Petitioner : Mr. B.K. Ragada , Advocate
For Opposite Party : Mr. P.K. Pani, SC (Vig.)
CORAM:
JUSTICE G. SATAPATHY
DATE OF HEARING :24.03.2023
DATE OF JUDGMENT :03.04.2023
G. Satapathy, J.
1. The prayer made in the CRLMC is to quash the criminal proceeding against the petitioner in CTR No.27 of 2015 corresponding to SBP Vig. G.R. Case No.25 of 2013 arising out of SBP Vig. P.S. Case No.28 of 2013.
CRLMC No.4230 of 2016 Page 1 of 12
2. The short facts involved in this case are an FIR in Sambalpur Vigilance P.S. Case No.28 of 2013 was came to be lodged against the petitioner alleging that he being the Bank Manager of SDCC Bank, Mahila Branch, Rourkela, sanctioned a loan of Rs.4,00,000/- (Rupees Four Lakhs) to co-accused Bikrant Keshari Samanta, the Proprietor of M/s. Shivangnee Infotech, on execution of a mortgage deed with him by the loanee and guarantor Sudhir Kumar Dasgupta, but subsequently, co-accused loanee applied for enhancement of loan amount from Rs.4,00,000/- (Rupees Four Lakhs) to Rs.12,00,000/- (Rupees Twelve Lakhs), which was processed by the petitioner after observing other formalities, but the co-accused loanee was considered for sanction of additional loan of Rs.4,00,000/- (Rupees Four Lakhs) on 19.01.2007. On enquiry, it was revealed that the petitioner by entering into criminal conspiracy with co-accused CRLMC No.4230 of 2016 Page 2 of 12 loanee and guarantor had executed mortgage deed with them in respect of Khata No.109, Plot No.316 of Mouza-Jalda violating the provision of Section 28 of the Registration Act, 1908. On registration of FIR, the investigation ensued and in the course of investigation, it was ascertained that Sudhir Kumar Dasgupta was a fictitious guarantor as the photo, thumb impression and signature as available in the deed were not matching with the same in loan file and no such person was available in the address given in the mortgage deed as well as in the loan application. On conclusion of investigation, charge- sheet was submitted against the petitioner and others for offence U/Ss. 13(2) read with Section 13(1)(d) of the P.C. Act, 1988 and Section 468/420/471/120-B of IPC. Hence, this CRLMC.
3. In the course of hearing the CRLMC, Mr. B.K. Ragada, learned counsel for the petitioner by relying upon the decision in the case of N.K. Illiyas Vrs. CRLMC No.4230 of 2016 Page 3 of 12 State of Kerala; AIR 2012 SC 3790 and Nikhil Merchant Vrs. CBI and Another; (2008) 41 OCR (SC) 427 submits that for a moment, if the allegations on record are taken into consideration, the loanee having already cleared the loan amount, the criminal liability of the petitioner is foreclosed/extinguished, but notwithstanding to such facts, the learned trial Court is proceeding against the petitioner. It is also submitted by him that since no wrongful loss has been caused to the Bank, the criminal case against the petitioner is misnomer in the eye of law and, thereby, the criminal proceeding against the petitioner is an abuse of process of Court and to secure the ends of justice, the criminal proceeding against the petitioner may kindly be quashed.
4. On the other hand, Mr. P.K. Pani, learned Standing Counsel for the State-Vigilance Department by referring to the facts of the case, submits that CRLMC No.4230 of 2016 Page 4 of 12 the act of the petitioner is squarely covered under penal provision of law inasmuch as the petitioner has not only caused wrongful loss to the Bank, but also has connived with the co-accused to grant loan by taking fictitious guarantor as well as executing mortgage deed with such fictitious guarantor and for a moment, even if the loan amount has been cleared by the co-accused loanee, but that would not absolve the petitioner from the criminal liability. Mr.P.K.Pani, learned Standing Counsel by relying upon the decision in the case of Central Bureau of Investigation Vrs. Maninder Singh; (2015) 62 OCR (SC) 397 submits that in economic offences, Court must not only keep in view that money has been paid to the Bank, which has been defrauded, but also the society at large and in this case, the petitioner having admittedly being a party to the fraud and misappropriation of public money, no CRLMC No.4230 of 2016 Page 5 of 12 sympathy can be extended to petitioner to quash the criminal proceeding.
5. On taking into consideration the rival submissions advanced for the parties, let us first examine whether the repayment of loan in the circumstance of the case would absolve the criminal liability of the petitioner?. In this regard, it is considered appropriate to refer to the decision in the case of Maninder Singh (supra) wherein at Paragraphs-11 and 12, the Apex Court has observed as under:
"11. The inherent power of the High Court Under Section 482 Code of Criminal Procedure should be sparingly used. Only when the Court comes to the conclusion that there would be manifest injustice or there would be abuse of the process of the Court if such power is not exercised, Court would quash the proceedings. In economic offences Court must not only keep in view that money has been paid to the bank which has been defrauded but also the society at large. It is not a case of simple assault or a theft of a trivial amount; but the offence with which we are concerned is a well planned and was committed with a deliberate design with an eye of personal profit regardless of consequence to the society at large. To CRLMC No.4230 of 2016 Page 6 of 12 quash the proceeding merely on the ground that the accused has settled the amount with the bank would be a misplaced sympathy. If the prosecution against the economic offenders are not allowed to continue, the entire community is aggrieved.
12. In recent decision in Vikram Anantrai Doshi (supra), this Court distinguished Nikhil Merchant's case and Narendra Lal Jain's case where the compromise was a part of the decree of the court and by which the parties withdrew all allegations against each other. After referring to various case laws under subject in Vikram Anantrai Doshi's case, this Court observed that cheating by bank exposits fiscal impurity and such financial fraud is an offence against society at large in para (23), this Court held as under:
23. ...Be it stated, that availing of money from a nationalized bank in the manner, as alleged by the investigating agency, vividly exposits fiscal impurity and, in a way, financial fraud. The modus operandi as narrated in the chargesheet cannot be put in the compartment of an individual or personal wrong. It is a social wrong and it has immense societal impact. It is an accepted principle of handling of finance that whenever there is manipulation and cleverly conceived contrivance to avail of these kind of benefits it cannot be regarded as a case having overwhelmingly and predominantingly of civil character. The ultimate victim is the collective. It creates a hazard in the financial interest of the society.
The gravity of the offence creates a dent in the economic spine of the nation. The cleverness which has been skillfully contrived, if the allegations are true, has a CRLMC No.4230 of 2016 Page 7 of 12 serious consequence. A crime of this nature, in our view, would definitely fall in the category of offences which travel far ahead of personal or private wrong. It has the potentiality to usher in economic crisis. Its implications have its own seriousness, for it creates a concavity in the solemnity that is expected in financial transactions. It is not such a case where one can pay the amount and obtain a "no due certificate" and enjoy the benefit of quashing of the criminal proceedings on the hypostasis that nothing more remains to be done. The collective interest of which the Court is the guardian cannot be a silent or a mute spectator to allow the proceedings to be withdrawn, or for that matter yield to the ingenuous dexterity of the accused persons to invoke the jurisdiction under Article 226 of the Constitution or under Section 482 of the Code and quash the proceeding. It is not legally permissible. The Court is expected to be on guard to these kinds of adroit moves. The High Court, we humbly remind, should have dealt with the matter keeping in mind that in these kind of litigations the accused when perceives a tiny gleam of success, readily invokes the inherent jurisdiction for quashing of the criminal proceeding. The court's principal duty, at that juncture, should be to scan the entire facts to find out the thrust of allegations and the crux of the settlement. It is the experience of the Judge comes to his aid and the said experience should be used with care, caution, circumspection and courageous prudence. As we find in the case at hand the learned Single Judge has not taken pains to scrutinize the entire conspectus of facts in proper perspective and quashed the criminal proceeding. The said quashment neither CRLMC No.4230 of 2016 Page 8 of 12 helps to secure the ends of justice nor does it prevent the abuse of the process of the Court nor can it be also said that as there is a settlement no evidence will come on record and there will be remote chance of conviction. Such a finding in our view would be difficult to record. Be that as it may, the fact remains that the social interest would be on peril and the prosecuting agency, in these circumstances, cannot be treated as an alien to the whole case. Ergo, we have no other option but to hold that the order of the High Court is wholly indefensible".
6. It is of course true that the petitioner relies upon the decision in N.K. Illiyas (supra) wherein the Apex Court after taking note of temporary misappropriation of office money, had granted the benefit to the accused therein by extending the provision of Section 95 of IPC, but the present case cannot be taken as a temporary misappropriation inasmuch as the allegation on record against the petitioner prima facie unearth a situation about petitioner entering into conspiracy and executing the mortgage deed with a fictitious person and, thereby, facilitating co-accused loanee to avail the benefit of loan. Besides, the contentions of the petitioner as CRLMC No.4230 of 2016 Page 9 of 12 advanced in this case are question of facts, which can be ascertained in the course of trial and the veracity of such allegation is subject to proof. A careful perusal of the photocopy of charge-sheet as produced on behalf of the petitioner would prima facie goes to disclose some allegation against the petitioner, no matter the petitioner harps on the point of repayment of total loan dues of the Bank to get rid of the case, but the nature of allegation brought against the petitioner would definitely reveal more than the personal or private wrong and its implication has wider ramification, in view of the allegation that the Bank which had advanced the loan was affected by the alleged act of the petitioner and the money so advanced by the Bank is definitely public money and, therefore, the alleged act of the petitioner would affect the society at large. It also appears from the allegation on record that the offences with which the petitioner are concerned, CRLMC No.4230 of 2016 Page 10 of 12 have probably been committed with a deliberate design for personal benefit, which of course, if established on pedestal proof beyond reasonable doubt, would betray the public trust affirmed with the Bank.
7. In view of the discussion made hereinabove and taking into consideration the alleged act of the petitioner on the face of the rival submissions, this Court is unable to accept the contentions of the petitioner that the repayment/clearance of loan of the Bank by co-accused would absolve the liability of the petitioner and when there is prima facie allegation against the petitioner for misappropriation as well as cheating of public money lying with bank, the criminal proceeding against the petitioner in this case cannot be considered as an abuse of process of Court enuring to the benefit of the petitioner by way of quashment of the criminal proceeding against him. This Court, however, clarifies that any CRLMC No.4230 of 2016 Page 11 of 12 observation made hereinabove is purely for the disposal of the CRLMC and the same in any circumstance would not be considered as proof of offence against the petitioner.
8. In the result, the CRLMC is dismissed, but in circumstance there is no order as to costs.
(G. Satapathy) Judge Orissa High Court, Cuttack, Dated the 3rd of April, 2023/Subhasmita CRLMC No.4230 of 2016 Page 12 of 12