Orissa High Court
Uma Shankar Patro vs Republic Of India ....... Opposite ... on 16 August, 2024
Author: S.K. Sahoo
Bench: S.K. Sahoo
Signature Not Verified
Digitally Signed
Signed by: SIPUN BEHERA
Designation: Senior Stenographer
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 16-Aug-2024 13:55:24
IN THE HIGH COURT OF ORISSA, CUTTACK
BLAPL No.541 of 2021, BLAPL No.542 of 2021
and BLAPL No.543 of 2021
Applications under section 439 of the Code of Criminal
Procedure.
--------------------------
Uma Shankar Patro ....... Petitioner
-Versus-
Republic of India ....... Opposite Party
For petitioner - Mr. Ashok Kumar Parija
(in all BLAPLs): Senior Advocate
For Republic of India: - Mr. Sarthak Nayak
(in all BLAPLs) Special Public Prosecutor
(CBI)
--------------------------
P R E S E N T:
THE HONOURABLE MR. JUSTICE S.K. SAHOO
.....................................................................................................
Date of Order: 16.08.2024
.....................................................................................................
S.K. SAHOO, J. The petitioner has filed these three bail applications
under section 439 of Cr.P.C. i.e. BLAPL No.541 of 2021 in
connection with T.R. No. 07 of 2021 arising out of Khurda Odisha
CBI/SPE/ACB P.S. Case No.RC-07(A) of 2019-BBSR charge
sheeted under section 120-B read with sections 409, 420, 471 of
the Indian Penal Code and section 13(2) read with section
Signature Not Verified
Digitally Signed
Signed by: SIPUN BEHERA
Designation: Senior Stenographer
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 16-Aug-2024 13:55:24
13(1)(d) of the Prevention of Corruption Act, 1988 (as amended
in 2018); BLAPL No.542 of 2021 in connection with T.R. No. 06
of 2021 arising out of Khurda Odisha CBI/SPE/ACB P.S. Case No.
RC-08(A) of 2019-BBSR charge sheeted under section 120-B
read with sections 409, 420, 471 of the Indian Penal Code and
section 13(2) read with section 13(1)(d) of the Prevention of
Corruption Act, 1988 (as amended in 2018) and BLAPL No.543 of
2021 in connection with T.R. No.05 of 2021 arising out of Khurda
Odisha CBI/SPE/ACB P.S. Case No. RC-09(A) of 2019-BBSR
charge sheeted under section 120-B read with sections 409, 420,
471 of the Indian Penal Code and section 13(2) read with section
13(1)(d) of the Prevention of Corruption Act, 1988 (as amended
in 2018), all pending in the Court of learned Addl. Sessions
Judge -cum- Special Judge, CBI Court No. I, Bhubaneswar.
The applications of the petitioner for bail before the
learned Addl. Sessions Judge -cum- Special Judge, CBI Court
No.I, Bhubaneswar were rejected as per order dated
13.01.2021.
Since all the three bail applications arise out of
similar accusation, similar offences and parties are same, with
the consent of the learned counsel for the parties, they are heard
analogously and disposed of by this common order.
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Digitally Signed
Signed by: SIPUN BEHERA
Designation: Senior Stenographer
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 16-Aug-2024 13:55:24
Prosecution case in BLAPL No. 541 OF 2021:
2. The factual matrix of the case is that one Roop Lal
Meena, Deputy General Manager, Regional Office, Union Bank of
India, Bhubaneswar lodged a written complaint on 01.07.2019
before the Superintendent of Police, C.B.I., A.C.B., Bhubaneswar
requesting therein to cause an enquiry into the matter relating to
the alleged fraud perpetrated in the 27 housing loan accounts of
Union Bank of India, Nayapalli Branch, Bhubaneswar (hereafter,
"the Bank"). In the said complaint, it is alleged that the accused
Bank officials, namely, Bhubaneswar Mohapatra, the then Chief
Manager, Aswini Kumar Patra, the then Marketing Officer and
Rajesh Kumar Patanga, the then Manager (Advance) entered
into a criminal conspiracy with four accused private builders, 27
borrowers of housing loan and unknown bank officials/others in
the year 2017 and in pursuance thereof, the accused Bank
officials abused their respective official positions in the matter of
processing/sanction/disbursal of alleged housing loans. It is
further stated that under the said conspiracy, the accused
borrowers/builder submitted false/fictitious documents/
information including fake/fictitious ITRs, defective KYC
documents/information and the same were dishonestly
processed/accepted by the accused bank officials without any
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Digitally Signed
Signed by: SIPUN BEHERA
Designation: Senior Stenographer
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 16-Aug-2024 13:55:24
verification in violation of the bank guidelines/procedure and
they also accepted incomplete credit information/documentation
and obtained plan/legal scrutiny/search report etc. and they
released the entire loan amount to the accused builders (on
behalf of the borrowers) without ensuring completion of
construction of the houses (simplex/duplex at GDS-BN Heritage
on Plots at Mouza-Koradkaanta, P.S.-Saheed Nagar,
Bhubaneswar, Dist.-Khurda. It is the further stated that the
disbursed loan amounts were allegedly diverted by the accused
builders for other purposes and have caused undue wrongful loss
to the tune of Rs.13,98,62,852/- as on 31.05.2019 to the Bank.
The said complaint was treated as first information report which
was registered against the petitioner along with others under
sections 420, 467, 468, 471, 120-B of the Indian Penal Code and
section 13(2) read with section 13(1)(d) of the Prevention of
Corruption Act, 1988 (as amended in 2018).
After registration of the case, the C.B.I. commenced
the investigation. During the course of investigation, it was
revealed that during the year 2017, twenty seven housing loan
application forms having signatures of twenty seven different
borrowers on the respective forms along with other documents
including copies of ITRs (signed/unsigned by the applicants),
Page 4 of 57
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Digitally Signed
Signed by: SIPUN BEHERA
Designation: Senior Stenographer
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 16-Aug-2024 13:55:24
were received by the Bank for purchase of land and construction
of houses (simplex/duplex) thereon from the project "GDN-BN
Heritage" of the petitioner, Shri Biswanath Jena and his family
(sellers) at Koradakhanta, Bhubaneswar. Thereafter, loan
amounts were sanctioned and disbursed against each of the
twenty-seven applicants by the Bank.
The investigation further revealed that the petitioner
and his wife Smt. Subhashree Patra were the Directors of the
company, namely, M/s. GDS Builders Pvt. Ltd., Bhubaneswar
and the project 'GDS-BN Heritage' is a housing project started by
the builder M/s. GDS Builders Pvt. Ltd., being represented by the
petitioner and the land owners Shri Biswanath Jena, his wife Late
Kamala Rani Jena and his son Shri Aditya Kumar Jena as per the
terms and conditions mutually agreed to by them vide
development agreement made in the year 2009 for collaborative
development of the land situated at Plot No.73, Khata No.
459/134, Koradakanta, Jagannath Nagar, Bhubaneswar
measuring Ac.0.305 dec. and sub-plot no.11, plot no.74, Khata
No. 435, Koradakanta, Bhubaneswar and measuring Ac.0.046
dec. belonging to M/s. GDS Builders Pvt. Ltd. and plot no.77,
Khata No.292 at Jagannath Nagar, Koradakanta, Bhubaneswar
and measuring around Ac.1.869 dec. belonging to Shri
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Digitally Signed
Signed by: SIPUN BEHERA
Designation: Senior Stenographer
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 16-Aug-2024 13:55:24
Biswanath Jena and his family. Thereafter, during the year 2013,
the piece of land situated in Plot Nos.73 & 74 (belonging to M/s.
GDS Builders Pvt. Ltd.) was divided into five sub-plots and the
piece of land in Plot No.77 (belonging to Shri Biswanath Jena)
was divided into 38 sub-plots. The aforesaid sub-plots (total
05+38=43) were subsequently registered in the names of Shri
Biswanath Jena (04 sub-plots), Late Kamala Rani Jena (04 sub-
plots), Shri Aditya Kumar Jena (03 sub-plots), the petitioner (18
sub-plots), Shri Ashwin Kumar Patro (cousin of the petitioner)
(07 sub-plots), Smt. Rasmita Patro (w/o. Shri Ashwin Kumar
Patro) (05 sub-plots), Shri Sandeep Kumar Patro (01 sub-plot)
and Shri Sudam Subudhi (01 sub-plot) (both known persons to
the petitioner) by way of registered sale deeds. Subsequently, 27
sub-plots out of the aforesaid sub-plots (i.e. the sub-plots in the
names of the petitioner, Shri Biswanath Jena, his wife Late
Kamala Jena and his son Shri Aditya Kumar Jena) were sold to
the accused borrowers by way of sale deeds during 2017 and
mortgaged to the Bank against the alleged housing loans. The
investigation further revealed that the plots sold by Shri
Biswanath Jena, his son, his wife as well as the petitioner in the
present case were found to be marketable and having clear title.
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Digitally Signed
Signed by: SIPUN BEHERA
Designation: Senior Stenographer
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 16-Aug-2024 13:55:24
The investigation further revealed that the
documents like requisite application form, KYC (ID and/or
address proofs) signed by the accused borrowers, notarized sale
and/or construction agreements having seal and signature of
Public Notary Shri Janamejaya Routray, duly signed by the
borrower and builder/sellers of respective plots and affidavits of
equitable mortgage etc. are held on record, but Shri Janamejaya
Routray denied to have signed/notarized the said agreements,
affidavits and claimed that his signatures/seal were forged.
The investigation further revealed that the copies of
Income Tax Returns submitted by the accused borrowers with
the loan application forms were found to be fake, which has been
confirmed through the concerned Income Tax authorities. It was
further revealed that all the borrowers had signed the original
registered sale deed in respect of the alleged sub-plots
registered in their names and mortgaged to the Bank as
collateral security in the alleged loans. Thus, it was revealed that
the borrowers were aware of the facts and their involvement in
the alleged conspiracy of the builder with bank officials.
The investigation further uncovered that all the
accused borrowers are the close associates or the relatives of
such close associates of the petitioner. During the course of
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Signature Not Verified
Digitally Signed
Signed by: SIPUN BEHERA
Designation: Senior Stenographer
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 16-Aug-2024 13:55:24
investigation, the accused Ashwin Kumar Patra who is the cousin
of the petitioner has confirmed that the accused borrowers are
all workers/known persons/relatives or the relatives of known
persons or workers, who are employed with GDS Builders Pvt.
Ltd. and/or Dwaraka Jewelers (a partnership firm owned by the
petitioner). It was also revealed that the borrowers who are all
the employees of GDS Builders Pvt. Ltd. and/or Dwaraka
Jewelers were not financially sound to pay such huge amount as
margin money. The net-worth arrived in respect of the borrowers
is not based on documents and hence, invalid as per the Bank's
instructions. The investigation further revealed that as per the
instant circular/instruction of the Bank, the disbursements from
the loan accounts of the borrowers to the account of the
builder/seller is to be done after obtaining the written consent of
the borrower as well as the written request of the builder duly
confirming the work completed till the date of request and
enclosing bills/invoices.
The investigation further revealed that the project
site 'GDS-BN Heritage' is still a vacant site without any
constructions made thereon and the aforesaid post-sanction
inspection reports compiled and signed by the accused Ashwini
Kumar Patra are all invalid/false as the two storied building
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Digitally Signed
Signed by: SIPUN BEHERA
Designation: Senior Stenographer
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 16-Aug-2024 13:55:24
structure mentioned in the said inspection reports is not found at
the project site and that the construction work is not even
commenced by the petitioner though 99% value of the
sanctioned limits from the loan accounts of the accused
borrowers were already disbursed by the Bank.
The investigation further unwrapped that out of
twenty seven housing loans, Bank has disbursed full loan
amounts of 14 housing loan accounts (in the names of different
borrowers) to the bank account of the petitioner, who himself is
the builder and promoter of the housing project 'GDS BN
Heritage' as well as land/plot owner in the said 14 cases.
Similarly, the Bank has also disbursed loan amounts with respect
to the remaining 13 alleged housing loan accounts (in the names
of different borrowers) to the bank accounts of Shri Biswanath
Jena as well as to the bank accounts of Shri Aditya Kumar Jena
and his wife Late Kamala Rani Jena. It was also revealed that
Jena family were the sellers of plots and promoters of the said
housing project for the said 13 cases. Hence, it was revealed
that the said promoters (Jena family) had also received and
benefitted to the tune of the margin money paid in cash by the
accused borrowers in respect of the 13 plots sold by them,
though the disbursed amount is totally paid back to the builder
Page 9 of 57
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Digitally Signed
Signed by: SIPUN BEHERA
Designation: Senior Stenographer
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 16-Aug-2024 13:55:24
i.e. the petitioner herein. It was also revealed that the Bank has
carried out fresh valuation of the mortgaged properties during
March 2020 and the total value of the said mortgaged properties
was evaluated by the empanelled valuer of the Bank at
Rs.5,25,13,560/-, which is much lower than the total dues
outstanding in the alleged loan accounts.
The investigation further revealed that out of twenty
seven loan accounts, two loan accounts have been closed by
repaying the loan dues and thus, the Bank has suffered a
wrongful loss of Rs.12,36,05,348/- (excluding applicable
interest) in the alleged act of conspiracy and cheating with a
corresponding wrongful gain to the accused persons.
Accordingly, the Investigating Officer submitted charge sheet
against the petitioner along with others for the offences as
aforesaid.
Prosecution case in BLAPL No.542 of 2021:
3. The factual matrix of the case is that pursuant to the
written complaint lodged by one Roop Lal Meena, Deputy
General Manager, Regional Office, Union Bank of India,
Bhubaneswar on 01.07.2019 before the Superintendent of Police,
C.B.I., A.C.B., Bhubaneswar, the first information report was
registered against the petitioner and others for commission of
Page 10 of 57
Signature Not Verified
Digitally Signed
Signed by: SIPUN BEHERA
Designation: Senior Stenographer
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 16-Aug-2024 13:55:24
offences under sections 420, 467, 468, 471 and 120-B of the
Indian Penal Code and section 13(2) read with sections 13(1)(d)
of the Prevention of Corruption Act, 1988.
After registration of the case, the C.B.I. commenced
the investigation. In the said complaint, the complainant has
stated that during the year 2017-18, the accused Bank Officers,
namely, Bhubaneswar Mohapatra, the then Chief Manager,
Rajesh Kumar Patanga, the then Manager (Advances) Aswini
Kumar Patra, the then Marketing Officer and one private builder,
namely, Uma Sankar Patro (the petitioner herein), Director of
GDS Builders Pvt. Ltd., Bhubaneswar along with ten housing loan
borrowers entered into a criminal conspiracy with each other and
in furtherance to the said conspiracy among themselves, a total
amount of Rs.5,00,20,019.74/- (along with interest upto
31.05.2019) of the Bank have been misappropriated by way of
ten nos. of housing loans and one CC loan and the same has
been fraudulently and illegally transferred to the bank accounts
of the aforesaid builder. The said housing loans have been
illegally processed and sanctioned by the aforesaid bank officers
in the names of ten borrowers accepting fake/forged ITRs as
income proofs and false credit information without any
supporting documents and one CC loan is processed, sanctioned
Page 11 of 57
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Digitally Signed
Signed by: SIPUN BEHERA
Designation: Senior Stenographer
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 16-Aug-2024 13:55:24
in the name of the petitioner flouting the bank norms. The
sanctioned loan amounts were disbursed to the aforesaid builder
from the housing loan accounts of the aforesaid ten borrowers
without their consent and also without ascertaining the progress
of constructions made in the project site. It is further alleged
that the disbursements were made flouting the banking norms
merely on the basis of false inspection reports with an ulterior
motive for the own benefits of the accused persons.
After registration of the F.I.R., the CBI took up
investigation of the case. During investigation, it revealed that
out of the ten alleged housing loans, the Bank has disbursed the
loan amounts relating to purchase of land of five housing loan
accounts (in the names of different borrowers) by way of
Demand Drafts favouring Smt. Gita Rani Das who is the land/plot
owner in those five cases. It was further revealed that an
amount of Rs.32,72,000/- has been disbursed by the Bank in
favour of Gita Rani Das by way of demand draft (DD) towards
the land registered by her in the names of five accused
borrowers. Similarly, Bank has also disbursed the loan amounts
with respect to remaining five alleged housing loan accounts (in
the names of different borrowers) to the bank account of the
petitioner who himself is the builder as well as the land/plot
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Digitally Signed
Signed by: SIPUN BEHERA
Designation: Senior Stenographer
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 16-Aug-2024 13:55:24
owner in those five cases. It was further revealed that
Rs.4,38,00,900/- has been credited to the Bank account of the
petitioner maintained with Federal Bank & Union Bank of India
(CC account) on different dates from 13.11.2017 to 23.02.2018.
During the course of investigation, the Bank carried out fresh
valuation of the mortgaged properties during March 2020 and
the total value of the said mortgaged properties was evaluated
by the empanelled valuer of the Bank at Rs.2,74,92,480/- which
is much lower than the total dues outstanding in the alleged loan
accounts.
The investigation further revealed that, in a similar
manner, one CC loan bearing the account no.523205010000335
was processed & recommended by Shri Rajesh Kumar Patanga,
the then Manager (Advances), of the Bank for an amount of
Rs.70,00,000/- in the individual name of the builder, the
petitioner herein, on the basis of false information submitted by
him. Shri Rajesh Kumar Patanga has accepted the false credit
information & false statement of stocks/goods to process the CC
loan. Further, Shri Patanga has not made any field visits to
compile the necessary inspection reports about the business
unit, the availability of stocks, verification of trade license,
customer residence and office, properties offered as security etc.
Page 13 of 57
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Digitally Signed
Signed by: SIPUN BEHERA
Designation: Senior Stenographer
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 16-Aug-2024 13:55:24
Shri Patanga processed the CC loan flouting the prescribed rules
and regulations of the Bank and recommended for sanction at
the branch itself, instead of forwarding the proposal to ULP
functioning in the same premises for necessary processing &
sanction by the officers posted in ULP for such purpose. The said
CC loan was also sanctioned by co-accused Bhubaneswar
Mohapatra at the branch itself dishonestly accepting the false
information/documents submitted by the borrower and relying
on the recommendations of Shri Patanga. Both Shri Rajesh
Kumar Patanga & Shri Bhubaneswar Mohapatra has further
allowed the disbursement of Rs.69,00,000/- out of the total
sanctioned CC loan amount Rs.70,00,000/- to
unrelated/unauthorized parties (as per the Bank's loan policy)
i.e., to the bank account of Smt. Subhasree Patro (spouse of the
petitioner) and GDS Builders Pvt. Ltd. on the date of sanction
itself. Some of the deviations of extant guidelines/ procedures on
the part of Shri Bhubaneswar Mohapatra, the then Chief
Manager, Shri Rajesh Kumar Patanga, the then Manager
(Advances) both of UBI, Nayapalli branch while processing,
sanctioning and disbursing the CC loans. Therefore, a total
amount of Rs.5,42,10,000/- (i.e.Rs.4,72,10,000/- +
Rs.70,00,000/-) has been misappropriated by the accused bank
Page 14 of 57
Signature Not Verified
Digitally Signed
Signed by: SIPUN BEHERA
Designation: Senior Stenographer
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 16-Aug-2024 13:55:24
officials in conspiracy with the aforesaid other accused persons
by way of ten housing loans and one CC loan.
It was further revealed that Shri Bhubaneswar
Mohapatra in the capacity of Chief Manager and Branch Head,
Shri Rajesh Kumar Patanga in the capacity of Manager
(Advances) and Shri Ashwini Kumar Patra in the capacity of Asst.
Manager (Marketing), all of Nayapalli branch of the Bank has
transgressed the delegated, sanction/loaning powers while
processing, sanctioning and disbursement of loan amounts into
the accounts of the builder (as per the Bank's circular no.307-
2015 dated 08.12.2015, the sanction/loaning powers of the
officers, posted in branches were ceased in respect of all kind of
loan proposals involving mortgage of property). The investigation
also revealed that the Bank officers Shri Bhubaneswar
Mohapatra, Shri Rajesh Kumar Patanga and Shri Ashwini Kumar.
Patra has deliberately disbursed all the amounts in the alleged
loan accounts without ensuring the progress of construction (in
respect of ten housing loans) in conspiracy with the accused
builder (the petitioner herein) and the ten accused borrowers.
Therefore, it can be construed that both the accused Bank
officers' Shri Bhubaneswar Mohapatra, Shri Rajesh Kumar
Patanga & Shri Ashwini Kumar Patra had committed criminal
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Digitally Signed
Signed by: SIPUN BEHERA
Designation: Senior Stenographer
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 16-Aug-2024 13:55:24
breach of trust and also abused their respective official positions
extending undue financial accommodation to the petitioner
through housing loans in the names of different borrowers and
CC loan in the individual name of the petitioner
processed/sanctioned and disbursed on the basis of fake/
fabricated documents/false information without proper due
diligence and in gross violation of the extant rules and
regulations of the Bank. The notarized sale and/or construction
agreements (duly signed by the borrower and builder/sellers of
respective plots) and affidavits of equitable mortgage etc. having
seal and signature of Public Notary are claimed to be forged as
stated by the public notary Shri Janamejaya Routray. As per the
complaint given by the Bank, it has sustained a wrongful loss of
Rs.5,00,20,019.74/- along with interest upto 31.05.2019. It was
revealed during the course of investigation that the petitioner
himself has made repayments of around Rs.90,61,618/- covering
the monthly installments in respect of ten housing loan accounts
of the accused borrowers by transferring money from the Bank
accounts operated by his known persons/business firm in
Bhubaneswar. Thus, the Bank has suffered a total wrongful loss
of Rs.4,09,58,401.74/- (excluding applicable interest) in the
alleged act of conspiracy and cheating, with a corresponding
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Signed by: SIPUN BEHERA
Designation: Senior Stenographer
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 16-Aug-2024 13:55:24
wrongful gain to the accused persons. Therefore, the above acts
of the accused bank officers Shri Bhubaneswar Mohapatra, Shri
Rajesh Kumar Patanga & Shri Ashwini Kumar Patra, the
petitioner along with his company M/s. GDS Builders Pvt. Ltd.,
the ten accused borrowers, namely Shri Dhaneswar Patuar
Singh, Shri Sadasiva Jena, Shri Sangram Keshari Routray, Smt.
Shantilata Behera, Shri Kedar Senapati, Shri Jintendra Mahakud,
Shri Mahadev Baral, Shri Manas Kumar Sahoo, Shri Narendra
Swain and Shri Jambeswar Sahoo constitute cognizable offences
punishable U/s.120-B r/w 409, 420 & 471 IPC and Sec. 13(2)
r/w. 13(1) (d) of the Prevention of Corruption Act, 1988 (as
amended in 2018).
Prosecution case in BLAPL No.543 of 2021:
4. The factual matrix of the prosecution case pursuant
to the written complaint lodged by one Roop Lal Meena, Deputy
General Manager, Regional Office, Union Bank of India,
Bhubaneswar on 01.07.2019 before the Superintendent of Police,
C.B.I., A.C.B., Bhubaneswar, the first information report was
registered against the petitioner and others for commission of
offences under sections 420, 467, 468, 471 and 120-B of the
Indian Penal Code and section 13(2) read with sections 13(1)(d)
of the Prevention of Corruption Act, 1988 (as amended in 2018).
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Signed by: SIPUN BEHERA
Designation: Senior Stenographer
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 16-Aug-2024 13:55:24
During the course of investigation, the informant
stated that the Bank officials, namely, Bhubaneswar Mohapatra,
the then Chief Manager, Aswini Kumar Patra, the then Marketing
Officer and Rajesh Kumar Patanga, the then Manager (Advances)
entered into a criminal conspiracy with three accused private
builders, seven borrowers of housing loan and unknown bank
officials and others in the year 2017 and in pursuance thereof,
the bank officials abused their respective official positions in the
matter of processing/sanction/disbursal of alleged housing loans.
It is further alleged that under the said conspiracy, the accused
borrowers/builder submitted false/fictitious documents/
information including fake/fictitious ITRs, defective KYC
documents/information and the same were dishonestly
processed/accepted by the accused bank officials without any
verification in violation of the bank guidelines/procedure and
they also accepted incomplete credit information/documentation
and obtained plan/legal scrutiny/search report etc. and they
released the entire loan amount to the accused builders (on
behalf of the borrowers) without ensuring completion of
construction of the houses (BJB Nagar-02 & Jayadev Vihar-03 in
Bhubaneswar reportedly sold by builders GDS Builders Pvt. Ltd.,
Surnag Builders Pvt. Ltd. and Mrs. Puspanjali Patro). The
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Signed by: SIPUN BEHERA
Designation: Senior Stenographer
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 16-Aug-2024 13:55:24
prosecution further alleges that the disbursed loan amounts were
allegedly diverted by the accused builders for other purposes and
due to the aforesaid criminal act on the part of the accused
persons, undue wrongful loss to the tune of Rs.5,19,16,340/- as
on 31.05.2019 has been caused to the Bank.
Investigation revealed that Shri Bhubaneswar
Mohapatra (Emp. ID/ PF ID No. 29.2331) was posted as Chief
Manager & Branch Head in the Bank on 20.05.2016 and he
worked there in the same capacity till 22.04.2018. Investigation
further revealed that Shri Ashwini Kumar Patra was posted in the
Bank as Assistant Manager (Marketing) on 30.12.2016, and he
worked there in the same capacity till 05.11.2017. Thereafter, he
was posted to the Union Loan Point (ULP) in the same capacity
during the period from 06.11.2017 to 10.06.2018, which is
functioning in the same premises. Investigation revealed that
Shri Rajesh Kumar Patanga was functioning as Manager
(Advance) of Nayapalli Branch, Union Bank of India during the
period from 19.01.2016 to till date.
Investigation has further revealed that during the
alleged period i.e., during the year 2017, seven housing loan
application forms having signatures of seven different borrowers
(on the respective forms), along with other documents including
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Designation: Senior Stenographer
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 16-Aug-2024 13:55:24
copies of ITRs (signed by the applicants), were received by the
bank for purchase of flats located at (i) flat No. 2 (Ninth Dream),
Plot No. III, Khata No.154, in the "Ninth Empire" apartment at
B.J.B. Nagar, Bhubaneswar (belonging to Smt. Pushpanjah
Patro), (ii) flat no.1 (Ninth wonder), Plot No.III, Khata No.154, in
the 'Ninth Empire' apartment at B.J.B. Nagar, Bhubaneswar
(belonging to Smt. Ahuradha Patro, MD, Sunag Builders Pvt.
Ltd.), (iii) Flat No.201, 202 & 301 (total 03 fiats) located at B.K.
Sastry Enclave, Plot No. 688/2877, Khata No. 453/1027, Unit-
16, PS: New capital No.33, Jayadev Vihar, IRC Village,
Bhubaneswar (belonging to 'GDS Builders Pvt. Ltd. & (iv) Flat
No. A in 2nd floor & Flat no. A in 3rd floor (total 02 flats) located
at Narayana Arcade, Plot No.64, Khata No. 66, Unit-7, P.S. New
capital No.39, Surya Nagar, Bhubaneswar (belonging to GDS
Builders Pvt. Ltd.). Thereafter, loans have been sanctioned to the
aforesaid seven accused borrowers by Bhubaneswar Mohapatra
in the capacity of Chief Manager & Branch Head. The same were
duly processed by Shri Ashwini Kumar Patra (Assistant Manager,
Marketing) instead of forwarding them to ULP for necessary
processing & sanction. All the seven loans were processed,
sanctioned & disbursed at the branch by the aforesaid two
officials transgressing the delegated sanction powers.
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Designation: Senior Stenographer
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 16-Aug-2024 13:55:24
Investigation further revealed that the petitioner is
the Director of the company namely, M/s GDS Builders Pvt Ltd.,
Bhubaneswar having its registered office at Plot No.14/3734, Old
Station Square, Cuttack-Puri Road, Near Bhubaneswar Hotel,
Bhubaneswar and incorporated under ROC-Cuttack with CIN No.
U452010R2008PTC009959 and at present the petitioner and his
wife Smt. Subhasree Patro are the Directors of M/s GDS Builders
Pvt Ltd., Bhubaneswar. It was further revealed that seven loans
were raised in the names of different borrowers for purchasing
the flats from him, his mother (Smt. Pushpanjali Patro) and his
aunt (Smt. Anuradha Patro) respectively in the housing projects
at BJB Nagar, Surya Nagar & Jayadev Vihar, Bhubaneswar. The
properties sold by Smt. Pushpanjali Patro, Smt. Anuradha Patro
as well as the petitioner in the instant case are found to be
marketable and having clear title.
Investigation revealed that the documents like
requisite application form, KYC (ID and/or address proofs) signed
by accused borrowers, notarized sale and/or construction
agreements having seal and signature of Public Notary Shri
Janamejaya Routray, (duly signed by the borrower and builder/
sellers of respective plots) and affidavits of equitable mortgage
etc., are held on record. However, during the course of
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Designation: Senior Stenographer
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 16-Aug-2024 13:55:24
investigation, Shri Janamejaya Routray has denied to have
signed/notarized the said agreements/affidavits and claimed that
his signatures/seal were forged. Hence, the voluntarily given
specimen signatures/writings of Shri Janamejaya Routray, Shri
Uma Sankar Patro, Shri Bhubaneswar Mohapatra and Shri
Ashwini Kumar Patra were obtained and sent to GEQD along with
the questioned documents for necessary examination and expert
opinion. The expert opinion in this regard is awaited. It was
further revealed that the alleged loans are processed on the
basis of the value mentioned, in the sale and construction
agreements (submitted by the accused borrowers) as proposed
cost of housing project. No separate estimate from any
empanelled engineer/valuer (as per bank guidelines) was
obtained by the accused Bank officers' Shri Ashwini Kumar Patra
at the time of processing the loan proposals and not even by Shri
Bhubaneswar Mohapatra during sanction.
Investigation further revealed that the copies of
Income Tax Returns submitted by the accused borrowers,
namely, Shri Mithun Pradhan & Shri Ajay Kumar Parida along
with the loan application forms are found to be fake and are not
generated from Income Tax Department. It is pertinent to
mention here that the ITRs as well as other documents
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Designation: Senior Stenographer
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 16-Aug-2024 13:55:24
submitted by the other accused borrowers Shri Durga Prasad
Das, Shri Malaya Kumar Das, Smt. Swapna Sikha, Shri Manoj
Kumar Patra & Shri Una Satya Brata Patra are all found genuine
during the course of investigation. The concerned Income Tax
authorities have been examined who confirmed the use in the
name of the aforesaid accused borrowers for processing the
alleged loans by the Bank. Moreover, the borrowers had signed
the original registered sale deeds in respect of the alleged sub-
plots registered in their names and mortgaged to the Bank as
collateral security in the alleged loans. Hence, investigation
revealed that the borrowers are aware of the facts and their
involvement in the alleged conspiracy of the builder with bank
officials. The borrower wise details of Income Tax Returns
submitted to the Bank in the alleged loan accounts were also
indicated.
Investigation revealed that all the accused borrowers
are the close associates or the relatives of such close associates
of the petitioner. During the course of investigation, Shri Ashwin
Kumar Patra (cousin of the petitioner) has confirmed the fact
that the accused borrowers are all workers/known persons/
relatives/or the relatives of known persons or workers who are
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Designation: Senior Stenographer
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 16-Aug-2024 13:55:24
employed with GDS Builders Pvt. Ltd. and/or Dwaraka Jewelers
(a partnership firm owned by the petitioner).
During the course of investigation, Shri Ashwin
Kumar Patra (cousin of the petitioner) had confirmed the fact
that the accused borrowers are all workers/known persons/
relatives/or the relatives of known persons or workers who were
employed with GDS Builders Pvt. Ltd. and/or Dwaraka Jewelers
(a partnership firm owned by the petitioner). It is also revealed
that the borrowers who are all the employees and/or the
relatives of the employees of GDS builder, Dwaraka Jewelers
(company and firm owned by the petitioner) were not financially
sound to pay such huge amount as margin money.
The investigation further revealed that in the case of
alleged housing loans processed by Shri Ashwini Kumar Patra
and sanctioned by Shri Bhubaneswar Mohapatra, the margin
money is paid to the builder/seller in full, before the sanction of
loan (in cash) which apparently implies the knowledge and
involvement of the Bank officers in the alleged act of criminal
conspiracy. The net-worth arrived in respect of the borrowers is
not based on documents and hence, invalid as per the Bank's
instructions.
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Designation: Senior Stenographer
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 16-Aug-2024 13:55:24
Investigation further revealed that as per the extant
circular instructions of the Bank, the disbursements from the
loan accounts of the borrowers to the account of builder/seller is
to be done after obtaining the written consent of the borrower as
well as the written request of the builder duly confirming the
work completed till the date of request and enclosing the
respective bills/invoices. It was also revealed that the Branch
officers have to mandatorily carry out a post-sanction inspection
of the property and record the findings in the inspection report.
Based on the findings in the inspection report only, margin
money arranged by the borrower is disbursed. During the stage
of the disbursement, the Branch Head has to authorize the
disbursement amount to be made to the builder duly noticing his
remarks. However, investigation has revealed that post-sanction
inspection was not carried out at every stage of disbursement as
per the circular guidelines of the Bank. It was revealed that
during March 2018, Shri Ashwini Kumar Patra (Marketing Officer)
had conducted the post-sanction inspection of properties
financed in the alleged loan accounts by the Bank and compiled
the inspection reports. All the said inspection reports are found
to be signed by Shri Ashwini Kumar Patra and are held on record
as a part of the loan documents.
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Signed by: SIPUN BEHERA
Designation: Senior Stenographer
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 16-Aug-2024 13:55:24
Investigation revealed that that 04 flats were in
ready to occupy condition but three flats in the names of
borrowers, namely, Smt. Swapna Sikha, Shri Manoj Kumar Patra
& Shri Ajay Kumar Parida were partially constructed (around 50
to 60% work completed and remaining work pending) but full
loan amount to the builder from the 03 loan accounts of said
borrowers were disbursed by the accused bank officials.
Investigation revealed that the aforesaid post-
sanction inspection reports in the case three flats located at B.
K. Sastry Enclave, IRC Village, Jayadev Vihar, Bhubaneswar are
invalid/false as the completed buildings mentioned in the said
inspection reports are not yet complete and that full amount of
the sanctioned limits in the loan accounts of the accused
borrowers was disbursed by the Bank to the bank account of the
company GDS Builders Pvt. Ltd. with the Bank through transfer
mode. Investigation revealed that Shri Bhubaneswar Mohapatra
had full knowledge of all the disbursements made in the alleged
housing loan accounts of the accused borrowers to the bank
accounts of the accused builder/sellers as he along with Shri
Ashwini Kumar Patra had signed/initialed the respective
disbursement vouchers. Competent witness from the Bank who
was acquainted with the signatures/initials of Shri Bhubaneswar
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Designation: Senior Stenographer
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 16-Aug-2024 13:55:24
Mohapatra as well as Shri Ashwini Kumar Patra during the
regular course of banking has identified the signatures/initials of
the said officers on the said disbursement vouchers. It was also
revealed that no consent of the borrower was obtained before
debiting the loan account of the borrowers. Further, all the seven
housing loan proposals were processed by Shri Ashwini Kumar
Patra as Asst. Manager (Marketing) of the bank and Shri
Bhubaneswar Mohapatra sanctioned the loans in the capacity of
Branch Manager in favor of seven borrowers based on the
recommendations of Shri Ashwini Kumar Patra. The accused
bank officials, namely, Shri Bhubaneswar Mohapatra & Shri
Ashwini Kumar Patra had not complied with the banking norms
of UBI while processing, sanctioning and disbursing of the
alleged housing loans. Some of the deviations of extant
guidelines/procedures on the part of Shri Bhubaneswar
Mohapatra, the then Chief Manager, UBI, Nayapalli Branch and
Shri Ashwini Kumar Patra, the then Asst. Manager (marketing),
UBI, Nayapalli Branch revealed during investigation, were
summarized in the charge sheet.
Investigation revealed that out of the seven alleged
housing loans, the Bank has disbursed the loan amounts related
to one alleged housing loan account in the name of Shri Mithun
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Designation: Senior Stenographer
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 16-Aug-2024 13:55:24
Pradhan by way of demand draft of Rs.49,20,000/- favouring
M/s. Surnag Builders Pvt. Ltd., Bhubaneswar (represented by
Smt. Anuradha Patro, MD of Surnag Builders Pvt. Ltd.). As the
questioned flat/property is ready to occupy, a single
disbursement can be made as per the guidelines of the Bank
ensuring the payment of the margin money. However, the loan
was closed on 18.12.2019 by Shri Gajendra Prasad Das (known
person to the petitioner) paying full dues to the Bank. Similarly,
the Bank has disbursed the full loan amounts related to one
alleged housing loan account in the name of Shri Durga Prasad
Das by transfer to the bank account in the name of Smt.
Pushpanjali Patro with the Bank. As the questioned flat/property
is ready to occupy, a single disbursement can be made as per
the guidelines of the Bank ensuring the payment of the margin
money. However, the loan was closed on 18.12.2019 by Shri
Santosh Kumar Parida (known person to the petitioner) paying
full dues to the Bank. The liability of Smt. Anuradha Patro & Smt.
Pushpanjali Patro was ceased after registration of the ready to
occupy flats in the names of the accused borrowers. Further, the
registrations were found genuine and mortgage was valid.
Similarly, the Bank disbursed the full loan amounts related to the
remaining five housing loan accounts of respective accused
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Designation: Senior Stenographer
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 16-Aug-2024 13:55:24
borrowers to the bank account of M/s. GDS Builders Pvt. Ltd.
represented by its director (the petitioner herein) with Union
Bank of India on different dates from 24.05.2017 to 13.12.2017.
It is pertinent to mention here that two flats at Surya Nagar out
of the aforesaid five flats are in a state of ready to occupy and
remaining three at Jayadev Vihar are still under construction as
on date, only outer constructions completed, internal work &
finishing work is pending. Although the full amounts in the all the
alleged housing loans were disbursed during 2017 itself, the
constructions in respect of three flats at Jayadev Vihar are yet to
be completed. Moreover, housing loan in the name of accused
borrower Smt. Swapna Sikha (related to flat No.201 at Jayadev
Vihar, Bhubaneswar) has been closed by fully repaying the bank
dues by transfer of funds from the account of GDS Builders Pvt.
Ltd. on 13.08,2019. During the course of investigation, the Bank
carried out fresh valuation of the mortgaged properties (only in
respect of the loans in which outstanding dues exist on date)
during March 2020 and the total value of the said mortgaged
properties was evaluated by the empanelled valuer of the Bank
at Rs.2,53,80,000/- which is much lower than the total dues
outstanding in the alleged loan accounts.
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Signed by: SIPUN BEHERA
Designation: Senior Stenographer
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 16-Aug-2024 13:55:24
Contentions of the Parties:
5. Mr. Ashok Parija, learned Senior Advocate appearing
for the petitioner submitted that by order dated 16.11.2021, this
Court was pleased to direct the release of the petitioner on
interim bail for a period of six months in all the three bail
applications, inter alia, with the condition that he shall furnish
cash security of Rs.50,00,000/- (rupees fifty lakhs) at the time of
furnishing of bail bond and to give an undertaking before the
learned trial Court to the effect that he shall deposit a sum of
Rs.2,50,00,000/- (rupees two crores fifty lakhs) on five equal
installments of Rs.50,00,000/- (rupees fifty lakhs) each every
month and the first of such installments shall be deposited
before the learned trial Court between 6th to 10th December
2021. Thereafter, the petitioner filed applications for modification
of the orders dated 16.11.2021, which was declined by this Court
as per order dated 10.01.2022.
Challenging the orders dated 16.11.2021 and
10.01.2022 passed by this Court in the present three bail
applications, the petitioner preferred Special Leave Petitions
before the Hon'ble Supreme Court which were disposed of on
17.05.2022 with the following observations:
"In view of the above, the petitioner would be at
liberty to submit the relevant documents relating
to the immovable property offered by him in lieu
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Designation: Senior Stenographer
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 16-Aug-2024 13:55:24
of cash security. If the High Court is satisfied
with the same, it may consider accepting the
immovable property as a security in lieu of cash
security for releasing the petitioner on bail."
Pursuant the aforesaid order, the petitioner filed
interim applications for passing appropriate orders. Submission
was made by the learned counsel for the petitioner that in
pursuance of the order dated 16.11.2021, the petitioner was
released from custody after furnishing the bail bond so also the
cash security of Rs.50,00,000/- (rupees fifty lakhs) on
24.11.2021, but he voluntarily surrendered on 13.12.2021.
Taking into account the land documents and encumbrance
certificate with an affidavit of one Keshab Pradhan and the
instructions obtained by the learned Special Public Prosecutor for
C.B.I. on such documents, the interim applications were
disposed of vide order dated 22.07.2022 by modifying the order
dated 16.11.2021, the operative portion of which reads as
under:
"Considering the submissions made by the
learned counsel for the respective parties and
keeping in view the aforesaid order passed by
the Hon'ble Supreme Court on 17.05.2022 and
the instruction obtained by the learned Special
Public Prosecutor, the order dated 16.11.2021 is
modified to the extent that instead of filing an
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Designation: Senior Stenographer
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 16-Aug-2024 13:55:24
undertaking before the learned trial Court to the
effect that the petitioner shall deposit a sum of
Rs.2,50,00,000/- (rupees two crore fifty lakhs)
in five equal installments of Rs.50,00,000/-
(rupees fifty lakhs) each every month, if Keshab
Pradhan files the surety bond and produce the
original documents i.e. Record of Right and EC
which have been annexed as Annexure-1 series
to the memo dated 30.06.2022 filed before this
Court and verified by the learned Special Public
Prosecutor, the same shall be accepted and the
petitioner shall be released on interim bail for
the remaining period as per the order dated
16.11.2021. Copies of the documents which are
filed before this Court along with the memo
dated 30.06.2022 shall be sent by the Registry
to the Court of learned Addl. Sessions Judge
-cum- Special Judge, CBI Court No. I,
Bhubaneswar in T.R. Case No.07 of 2021 with a
copy of this order.'
Challenging the orders dated 22.07.2022 passed by
this Court in the present bail applications, the petitioner moved
the Hon'ble Supreme Court by filing Special Leave Petitions and
the Hon'ble Supreme Court by order dated 14.12.2022 while
issuing notice to the respondents, stayed the order of this Court
directing the petitioner to surrender before the learned trial
Court until further orders.
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Designation: Senior Stenographer
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 16-Aug-2024 13:55:24
Thereafter, the Hon'ble Supreme Court finally by
order dated 08.01.2024 disposed of the Special Leave Petitions
directing that the interim protection granted in favour of the
petitioner shall continue to operate in his favour till the bail
applications moved by him are disposed of on merits by this
Court.
Mr. Ashok Parija, learned Senior Advocate appearing
for the petitioner submitted that even though charge sheet has
been filed way back on 31.12.2020, till date no charge has been
framed and that apart, there are ninety six prosecution
witnesses to be examined and 457 documents are to be proved
by the prosecution in total in the three cases and thus, the trial
is not going to be concluded in the near future. He stressed that
the petitioner has been in judicial custody for more than
eighteen months. Further, it is submitted that pursuant to the
interim orders passed by this Court as well as the Hon'ble
Supreme Court, the petitioner while on bail has not flouted any
terms and conditions of the bail order and appeared before the
learned trial Court on each date and therefore, the petitioner
may be directed to be released on bail.
To substantiate his argument, the learned counsel
has relied upon the decisions of the Hon'ble Supreme Court in
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Designation: Senior Stenographer
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 16-Aug-2024 13:55:24
the cases of Javed Gulam Nabi Shaikh -Vrs.- State of
Maharashtra and another reported in (2024) SCC OnLine
SC 1693, Rafiq & another -Vrs.- Munshilal and another
reported in (1981) 2 Supreme Court Cases 788 as well as
this Court in the cases of Narendra Nayak and others -Vrs.-
State of Odisha reported in 2022 (II) Orissa Law Reviews
482, Smruti Ranjan Mohanty -Vrs.- State of Odisha
reported in 2022 (I) ILR-CUT-434.
6. Mr. Sarthak Nayak, learned Special Public Prosecutor
appearing for the C.B.I., on the other hand, vehemently opposed
the prayer for bail and submitted that while the present three
bail applications were subjudiced before this Court, the petitioner
filed three fresh bail applications i.e. BLAPL Nos. 11623 of 2021,
11625 of 2021 and 11627 of 2021 on 30.12.2021 by changing
advocate wherein a wrong certificate was furnished that the
present three bail applications have been disposed of vide order
dated 16.11.2021, however those subsequent bail applications
were disposed of as withdrawn as per the order dated
08.07.2022. It is further submitted that on 22.07.2022 when the
terms and conditions of the interim bail orders dated 16.11.2021
were modified in the present three bail applications, challenging
the orders dated 22.07.2022, the petitioner approached the
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Designation: Senior Stenographer
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 16-Aug-2024 13:55:24
Hon'ble Supreme Court in Special Leave Petitions and the
Hon'ble Supreme Court vide order dated 14.12.2022 was pleased
to stay the order of surrender of the petitioner as per the order
of this Court till the bail applications of the petitioner are
considered and disposed of by this Court. On 02.05.2023, when
the present three bail applications were listed for orders for final
adjudication, the order dated 06.01.2023 passed by the Hon'ble
Supreme Court was produced before this Court and a submission
was made by the learned counsel who was then appearing for
the petitioner that inadvertently in the orders of the Hon'ble
Supreme Court dated 06.01.2023, it has been mentioned that
the stay order was extended till the bail applications are
considered and disposed of by the High Court, but in fact it
should be the S.L.Ps. are considered and disposed of by the
Hon'ble Supreme Court and in that respect, learned counsel
appearing in the Supreme Court has been instructed to move
necessary applications for correction of the order dated
06.01.2023. According to Mr. Nayak, the submission that was
made on 02.05.2023 before this Court was to mislead the Court
for which this Court could not take up the hearing of the present
bail applications finally and the case was adjourned and the
petitioner enjoyed the liberty. On the next date i.e. on
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Designation: Senior Stenographer
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 16-Aug-2024 13:55:24
03.07.2023, when the matter was taken up, no one appeared on
behalf of the petitioner to move the bail applications for which
the bail applications were dismissed for non-prosecution and it
was restored on 25.08.2023 on the basis of restoration
applications. Mr. Nayak, learned Special Public Prosecutor placed
the order dated 07.08.2023 passed by the Hon'ble Supreme
Court in Special Leave to Appeal (Criminal) No.12474 of 2022
dated 07.08.2023 which indicates that Dr. Menaka Guruswamy,
learned Senior Counsel appearing for the petitioner submitted
that due to incorrect instructions given by the learned counsel
for the petitioner before the High Court to the effect that an
application shall be moved before the Supreme Court for
correction in the order passed on 06.01.2023, the petitioner has
withdrawn the power of attorney in favour of the said counsel
and has engaged a new counsel. Reliance was placed on the
judgment of the Hon'ble Supreme Court passed in the case of
Kusha Duruka -Vrs.- State of Odisha reported in (2024) 4
Supreme Court Cases 432, in which certain suggestions were
given with a view to streamline the proceedings and avoid
anomalies with reference to the bail applications being filed in
the cases pending trial and even for suspension of sentence.
Reliance has also been placed on the decision of the Hon'ble
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Designation: Senior Stenographer
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 16-Aug-2024 13:55:24
Supreme Court in Re: Perry Kansagra reported in 2022
LiveLaw (SC) 576 wherein it is stated that a person who makes
a false statement before a Court, attempts to deceive the Court
and interferes with the administration of justice, is guilty of
contempt of Court. The learned counsel further submitted that
the amount involved in all the three cases are huge and it is an
economic offence and even though there is delay in the
commencement of trial but since the petitioner is enjoying liberty
granted to him by this Court by way of interim bail and
subsequent orders passed by the Hon'ble Supreme Court, he
cannot be said to be prejudiced in any manner. It is vehemently
urged that on account of misleading and false statement before
this Court, the disposal of the present three bail applications got
delayed and the petitioner enjoyed liberty and therefore, in view
of the nature and gravity of accusations and the conduct of the
petitioner in playing tricks with the Court, the bail applications
should be dismissed.
7. In reply to the submissions made by the learned
Special Public Prosecutor, Mr. Ashok Parija, learned Senior
Advocate urged that there was no suppression or misleading of
fact either before this Court or before Hon'ble Supreme Court. It
is argued that though three bail applications were filed on
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Designation: Senior Stenographer
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 16-Aug-2024 13:55:24
30.12.2021 inadvertently with an incorrect certificate that the
present three bail applications were disposed of on 16.11.2021,
but coming to realise the mistakes committed, withdrawal
memos were filed on 18.02.2022 and on the basis of such
memos, this Court disposed of the bail applications as withdrawn
vide order dated 08.07.2022. The learned counsel argued that
merely because during the pendency of the present three bail
applications, fresh bail applications were filed which were
disposed of as withdrawn, the same cannot be a ground not to
consider the present three bail applications on merits. The
learned counsel emphatically contended that after release on the
interim bail vide order dated 22.07.2022, the petitioner has been
appearing before the learned trial Court without fail sixty eight
times and no application seeking for exemption from personal
appearance has ever been filed before the learned trial Court and
moreover the petitioner has not flouted any terms and conditions
of the bail orders dated 16.11.2021 and 22.07.2022 and
therefore, when there is no chance of early disposal of the trial in
the three cases, the bail applications of the petitioner should be
favourably considered.
8. Adverting to the contentions raised by the learned
counsel for the respective parties, it is apparent that on
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Signed by: SIPUN BEHERA
Designation: Senior Stenographer
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 16-Aug-2024 13:55:24
16.11.2021 the petitioner was granted interim bail for a period of
six months from the date of release taking into account his
period of detention in judicial custody as well as the affidavit
filed by the wife of the petitioner pursuant to order dated
09.11.2021. Several conditions were imposed, inter alia, to
deposit cash security of Rs.50,00,000/-(rupees fifty lakhs) at the
time of furnishing of bail bond and to give an undertaking before
the learned trial Court to deposit Rs.2,50,00,000/- (rupees two
crores fifty lakhs) in five equal installments of Rs.50,00,000/-
(rupees fifty lakhs) each on every month. After the modification
application of the order dated 16.11.2021 was rejected by this
Court on 10.01.2022, the petitioner approached the Hon'ble
Supreme Court and as per the order dated 17.05.2022 passed
by the Hon'ble Supreme Court, this Court vide order dated
22.07.2022 modified the condition of deposit of cash security
Rs.2,50,00,000/- (rupees two crores fifty lakhs) in five equal
installments and directed to accept property security in lieu of
that. On 22.07.2022, a submission was made by the learned
counsel for the petitioner that though as per the order dated
16.11.2021, the petitioner was released on interim bail
furnishing cash security of Rs.50,00,000/-(rupees fifty lakhs)
from 24.11.2021, but he voluntarily surrendered on 13.12.2021.
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Signed by: SIPUN BEHERA
Designation: Senior Stenographer
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 16-Aug-2024 13:55:24
There is no dispute that after passing of the order dated
22.07.2022, on furnishing property security, the petitioner has
been released from custody and till date he is enjoying liberty in
view of the orders passed by this Court and the Hon'ble Supreme
Court staying the order of surrender of the petitioner. The
submissions made by the learned Special Public Prosecutor has
substantial force inasmuch as when the petitioner was granted
interim bail as per orders dated 16.11.2021 for a period of six
months and the cases were directed to be listed on 20.06.2022
for filing surrender certificates and the petitioner was also
released from jail in pursuance of such orders on 24.11.2021, he
should not have filed three fresh bail applications i.e. BLAPL No.
11623 of 2021, 11625 of 2021 and 11627 of 2021 on
30.12.2021 and that to mentioning in the certificate portion that
the present three bail applications were disposed of on
16.11.2021. It is of course true that withdrawal memos were
filed by the petitioner's counsel on 08.02.2022 in those fresh bail
applications and ultimately those bail applications were disposed
as withdrawn as per order dated 08.07.2022. I am of the humble
view that there was an attempt to mislead this Court when the
matter was taken up on 02.05.2023 when a submission was
made by the learned counsel for the petitioner that instructions
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Signed by: SIPUN BEHERA
Designation: Senior Stenographer
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 16-Aug-2024 13:55:24
have been given to the learned counsel appearing in the Hon'ble
Supreme Court to move necessary applications for correction of
the order dated 06.01.2023 wherein it has been mentioned that
the stay order was extended till the bail applications are
disposed of by the High Court and it should be SLPs are
considered and disposed of by the Hon'ble Supreme Court. The
submission that was made by Dr. Menaka Guruswamy, learned
Senior Counsel appearing for the petitioner before the Hon'ble
Supreme Court on 07.08.2023 makes it very clear that incorrect
instructions were given by the learned counsel appearing for the
petitioner before this Court to the effect that an application shall
be moved before the Supreme Court for correction in the order
passed on 06.01.2023 for which the petitioner has withdrawn the
Power of Attorney in favour of the said counsel and has engaged
a new counsel. Statement made by learned Senior Counsel in the
Supreme Court shows that a misleading statement was made on
02.05.2023 to take adjournment and to allow the petitioner
enjoys liberty as much as possible. In fact, the record indicates
that one learned counsel moved all the three bail applications on
16.11.2021 when the interim bail for six months was granted,
I.A. Nos. 1041 of 2022, 1042 of 2022 and 1043 of 2023 were
filed in the three bail applications respectively and moved by
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Designation: Senior Stenographer
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 16-Aug-2024 13:55:24
another learned counsel for modification of order dated
16.11.2021 and the orders were modified on 22.07.2022 and
after the bail applications were dismissed for non-prosecution,
there was change of counsel and another new counsel entered
appearance for the petitioner. The change of counsel each time
seems to be deliberately made so as to shift responsibility.
Mr. Parija, learned Senior Advocate for the petitioner
placed reliance on Rafiq (supra) to argue that a party should not
be allowed to suffer for the fault of his Advocate. The following
observations were made in the aforesaid case:
"3. The disturbing feature of the case is that
under our present adversary legal system where
the parties generally appear through their
advocates, the obligation of the parties is to
select his advocate, brief him, pay the fees
demanded by him and then trust the learned
Advocate to do the rest of the things. The party
may be a villager or may belong to a rural area
and may have no knowledge of the court's
procedure. After engaging a lawyer, the party
may remain supremely confident that the lawyer
will look after his interest. At the time of the
hearing of the appeal, the personal appearance
of the party is not only not required but hardly
useful. Therefore, the party having done
everything in his power to effectively participate
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Designation: Senior Stenographer
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 16-Aug-2024 13:55:24
in the proceedings can rest assured that he has
neither to go to the High Court to inquire as to
what is happening in the High Court with regard
to his appeal nor is he to act as a watchdog of
the advocate that the latter appears in the
matter when it is listed. It is no part of his job.
Mr A.K. Sanghi stated that a practice has grown
up in the High Court of Allahabad amongst the
lawyers that they remain absent when they do
not like a particular Bench. Maybe, we do not
know, he is better informed in this matter.
Ignorance in this behalf is our bliss. Even if we
do not put our seal of imprimatur on the alleged
practice by dismissing this matter which may
discourage such a tendency, would it not bring
justice delivery system into disrepute. What is
the fault of the party who having done
everything in his power expected of him would
suffer because of the default of his advocate. If
we reject this appeal, as Mr A.K. Sanghi invited
us to do, the only one who would suffer would
not be the lawyer who did not appear but the
party whose interest he represented. The
problem that agitates us is whether it is proper
that the party should suffer for the inaction,
deliberate omission, or misdemeanour of his
agent. The answer obviously is in the negative.
Maybe that the learned Advocate absented
himself deliberately or intentionally. We have no
material for ascertaining that aspect of the
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Designation: Senior Stenographer
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 16-Aug-2024 13:55:24
matter. We say nothing more on that aspect of
the matter. However, we cannot be a party to an
innocent party suffering injustice merely
because his chosen advocate defaulted.
Therefore, we allow this appeal, set aside the
order of the High Court both dismissing the
appeal and refusing to recall that order. We
direct that the appeal be restored to its original
number in the High Court and be disposed of
according to law. If there is a stay of
dispossession it will continue till the disposal of
the matter by the High Court. There remains the
question as to who shall pay the costs of the
respondent here. As we feel that the party is not
responsible because he has done whatever was
possible and was in his power to do, the costs
amounting to Rs 200 should be recovered from
the advocate who absented himself. The right to
execute that order is reserved with the party
represented by Mr A.K. Sanghi.
In the case in hand, petitioner is neither a villager
nor belonged to a rural area. He is a resident of State Capital
and a builder and it cannot be said that he was having no
knowledge of this Court's order passed on 16.11.2021, on the
basis of which he was released from jail and he was asked to
surrender in the trial Court on expiry of the interim bail period
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Signed by: SIPUN BEHERA
Designation: Senior Stenographer
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 16-Aug-2024 13:55:24
and there was an order to produce the surrender certificate and
a date was fixed for such purpose.
So far as the misleading statement made by the
learned counsel for the petitioner on 02.05.2023 for which this
Court could not take up the bail applications on merits on that
day, it is a settled position of law that a party must not mislead
the Court nor should it suppress any material fact which may
derail the course of adjudication. False and misleading
statements in Court create obstacles in the dispensation of
justice. Indian judiciary is considered by the citizens in the
country with the highest esteem. The High Court is a protector of
the fundamental rights of the citizens and it is also endowed with
a duty to keep the other pillars of democracy i.e. the Executive
and the Legislature, within the constitutional bounds. Truth plays
pivotal role in the justice delivery system and the entire judicial
system exists for discerning and finding out the real truth. It is
often said that it is better to lose a case by making correct
statement in Court than to lose the confidence of the Court by
deliberately making false or misleading statements. In the case
of H.P. Scheduled Tribes Employees Federation -Vrs.- H.P.
Samanaya Varg Karamchari Kalayan Mahasangh reported
in (2013) 10 Supreme Court Cases 308, the Hon'ble
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Designation: Senior Stenographer
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 16-Aug-2024 13:55:24
Supreme Court underscored the sacrosanct faith placed upon the
submission made by counsel and observed:
"31. When a statement is made before this
Court, it is, as a matter of course, assumed that
it is made sincerely and is not an effort to
overreach the Court. Numerous matters even
involving momentous questions of law are very
often disposed of by this Court on the basis of
the statement made by the learned counsel for
the parties. The statement is accepted as it is
assumed without doubt, to be honest, sincere,
truthful, solemn and in the interest of justice.
The statement by the counsel is not expected to
be flippant, mischievous, misleading and
certainly not false. This confidence in the
statements made by the learned counsel is
founded on the assumption that the counsel is
aware that he is an officer of the Court."
A party forfeits to claim any leniency from the Court
after playing fraud on it or misleading it on questions of fact or
law. A false statement is a lie. Once a lie is told, it always starts
with a series of lies. If there is suppression of material facts or
twisted facts are placed before the Court, it can be a ground in
refusing relief. Unscrupulous litigants abuse the process of the
Court by deceiving it.
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Signed by: SIPUN BEHERA
Designation: Senior Stenographer
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 16-Aug-2024 13:55:24
9. Now coming to the merits of the case, no doubt the
submission of the learned Senior Advocate Mr. Parija is correct
that the charge sheet was submitted on 31.12.2020 and trial is
yet to commence, but when the petitioner was released from
judicial custody on 24.11.2021 as per the order of this Court
dated 16.11.2021 till he voluntarily surrendered on 13.12.2021
and again as per the order passed by this Court dated
22.07.2022, he was released from jail and as per the stay orders
passed by the Hon'ble Supreme Court, he has not been taken
into judicial custody thereafter, it cannot be said that he has
been in custody for such a long period particularly taking into
account the nature and gravity of the accusations against him.
Mr. Parija, learned Senior Advocate for the petitioner
argued that bail is the rule and jail is the exception and
therefore, bail cannot be withheld as a pre-conviction
punishment/incarceration. To that effect, he placed reliance upon
the judgment of this Court in this case of Smruti Ranjan
Mohanty (supra), wherein it was held as follows:
"8. Bail, as it has been held in a catena of
decisions, is not to be withheld as a punishment.
Bail cannot be refused as an indirect method of
punishing the accused person before he is
convicted. Furthermore, it has to be borne in
mind that there is as such no justification for
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Designation: Senior Stenographer
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Location: HIGH COURT OF ORISSA, CUTTACK
Date: 16-Aug-2024 13:55:24
classifying offences into different categories such
as economic offences and for refusing bail on the
ground that the offence involved belongs to a
particular category. It cannot, therefore, be said
that bail should invariably be refused in cases
involving serious economic offences. It is not in
the interest of justice that the Petitioners should
be in jail for an indefinite period. No doubt, the
offence alleged against the Petitioners is a
serious one in terms of alleged huge loss to the
State exchequer, that, by itself, however, should
not deter this Court from enlarging the
Petitioners on bail when there is no serious
contention of the Respondent that the
Petitioners, if released on bail, would interfere
with the trial or tamper with evidence."
Placing reliance upon Javed Gulam Nabi (supra) in
which case the appellant was in custody for four years, learned
Senior Advocate argued that the pre-conviction detention of the
petitioner in the custody infringes his invaluable right to life
under Article 21 of the Constitution. In the aforesaid case, the
Hon'ble Supreme Court held as follows:
"8. Having regard to the aforesaid, we wonder
by what period of time, the trial will ultimately
conclude. Howsoever serious a crime may be, an
accused has a right to speedy trial as enshrined
under the Constitution of India.
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Designation: Senior Stenographer
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 16-Aug-2024 13:55:24
xxx xxx xxx
19. If the State or any prosecuting agency
including the court concerned has no
wherewithal to provide or protect the
fundamental right of an accused to have a
speedy trial as enshrined under Article 21 of the
Constitution then the State or any other
prosecuting agency should not oppose the plea
for bail on the ground that the crime committed
is serious. Article 21 of the Constitution applies
irrespective of the nature of the crime.
20. We may hasten to add that the petitioner is
still an accused; not a convict. The over-arching
postulate of criminal jurisprudence that an
accused is presumed to be innocent until proven
guilty cannot be brushed aside lightly,
howsoever stringent the penal law may be.
21. We are convinced that the manner in which
the prosecuting agency as well as the Court
have proceeded, the right of the accused to have
a speedy trial could be said to have been
infringed thereby violating Article 21 of the
Constitution."
Reliance was further placed upon Narendra Nayak
(supra), wherein granting bail to an economic offender, this
Court held as follows:
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Designation: Senior Stenographer
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 16-Aug-2024 13:55:24
10. This Court is conscious of the law relating to
grant of bail in case of economic offences. The
Apex Court in the case of Y.S. Jagan Mohan
Readdy vs. CBI, reported in (2013) 55 OCR
(SC) 1321 held as under;
"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 accused at
the trial, reasonable apprehension of
the witnesses being tampered with, the
larger interests of public/State and
other similar considerations."
Recently, in the case of Manish Sisodia -Vrs.-
Directorate of Enforcement reported in 2024 SCC OnLine
SC 1920 the Hon'ble Supreme Court reiterated the age old
adage of criminal jurisprudence, i.e. "bail is the rule and jail is
the exception" in the following words:
"53. The Court further observed that, over a
period of time, the trial courts and the High
Courts have forgotten a very well-settled
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Date: 16-Aug-2024 13:55:24
principle of law that bail is not to be withheld as
a punishment. From our experience, we can say
that it appears that the trial courts and the High
Courts attempt to play safe in matters of grant
of bail. The principle that bail is a rule and
refusal is an exception is, at times, followed in
breach. On account of non-grant of bail even in
straight forward open and shut cases, this Court
is flooded with huge number of bail petitions
thereby adding to the huge pendency. It is high
time that the trial courts and the High Courts
should recognize the principle that "bail is rule
and jail is exception"."
The Judge while deciding an application for bail can
neither be unreasonably harsh nor be unduly sympathetic; rather
he has to be guided by judicial conscience. In the words of
eminent jurist Benjamin N. Cardozo:
"The Judge, even when he is free, is still not
wholly free. He is not to innovate at pleasure. He
is not a knight-errant roaming at will in pursuit
of his own ideal of beauty or of goodness. He is
to draw his inspiration from consecrated
principles. He is not to yield to spasmodic
sentiment, to vague and unregulated
benevolence. He is to exercise a discretion
informed by tradition, methodized by analogy,
disciplined by system, and subordinated to 'the
primordial necessity of order in the social life'.
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Designation: Senior Stenographer
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Location: HIGH COURT OF ORISSA, CUTTACK
Date: 16-Aug-2024 13:55:24
Wide enough in all conscience is the, field of
discretion that remains."
It is no more a res integra that Courts must be slow
in granting bail to persons accused in economic offences and the
Hon'ble Supreme Court has time and again held that economic
offences are crime against the society which affects very social
and economic fabric of the nation. In the case of P.
Chidambaram -Vrs.- Directorate of Enforcement reported
in (2019) 9 Supreme Court Cases 24, the Hon'ble Supreme
Court held as follows:
"80. Observing that economic offence is
committed with deliberate design with an eye on
personal profit regardless to the consequence to
the community, in State of Gujarat v. Mohanlal
Jitamalji Porwal : (1987) 2 SCC 364, it was held
as under:
"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
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Location: HIGH COURT OF ORISSA, CUTTACK
Date: 16-Aug-2024 13:55:24
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 collar crimes with a permissive eye
unmindful of the damage done to the
national economy and national interest."
81. Observing that economic offences constitute
a class apart and need to be visited with
different approach in the matter of bail, in Y.S.
Jagan Mohan Reddy Vs. CBI : (2013) 7 SCC
439 , the Supreme Court held as under:
"34. 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.
35. While granting bail, the court has to
keep in mind the nature of accusations,
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Date: 16-Aug-2024 13:55:24
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
accused at the trial, reasonable
apprehension of the witnesses being
tampered with, the larger interests of the
public/State and other similar
considerations."
The present three cases involve allegations of
commission of economic offences. The charge sheet accusations,
the manner in which fraud has been committed by the petitioner
in connivance with the other accused persons who are his close
associates or the relatives of such close associates and huge
amount of public money from the Bank has been siphoned off by
creating forged documents and there was wrongful loss to the
Bank and wrongful gain to the petitioner, on the sole ground of
detention for some period in judicial custody, it would not be
proper to release the petitioner on bail.
In view of the foregoing discussions, since the crime
seems to have been committed in a cool, calculated and
organized manner causing wrongful loss of crores of rupees to
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Date: 16-Aug-2024 13:55:24
the Bank and siphoning off public money and there are prima
facie materials showing involvement of the petitioner in the
deep-rooted conspiracy with other co-accused persons to cause
such a huge loss to the Bank, in my humble opinion, granting
bail to the petitioner in economic offences of this nature would
be against the larger interest of public and State particularly
when there are chances of tampering with the evidence.
However, taking into account the fact that the charge
sheet has already been submitted since 31.12.2020, the learned
trial Court shall do well to expedite the framing of charge if there
are no other impediments. A list of witnesses to be examined by
the prosecution shall be furnished to the Court by the learned
Public Prosecutor, CBI immediately after framing of charges and
accordingly summons to be issued. All possible steps shall be
taken to proceed with the trial by examining the witnesses on
day-to-day basis keeping in view salutary provision under section
309 of Cr.P.C. Since the learned trial Court is also dealing with
other cases for which it may not be possible on its part to give
more time to these particular three cases, the cases should be
taken up during a particular time slot on each day. If the defence
counsel after cross-examining a prosecution witness for some
time files a petition for time to defer the cross-examination, the
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Date: 16-Aug-2024 13:55:24
learned trial Court shall not grant adjournment by giving long
dates without realizing the inconvenience likely to be faced by
the witnesses in attending the Court again and again. The trial
Court shall do well to conclude the trial within a period of one
year from the date of framing of charge. The petitioner is at
liberty to renew the prayer for bail in case the trial is not
concluded within the said period.
The petitioner who is on bail shall surrender before
the learned trial Court within one week from today, failing which
the learned trial Court shall take all effective steps for his arrest
in accordance with law.
Accordingly, all the three bail applications sans merit
and hence dismissed.
Before parting, I would like to place it on record by
way of abundant caution that whatever has been stated
hereinabove in this order has been so said only for the purpose
of disposing of the prayer for bail made by the petitioner.
Nothing contained in this order shall be construed as expression
of a final opinion on any of the issues of fact or law arising for
decision in the case which shall naturally have to be done by the
trial Court at the appropriate stage of the trial.
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Designation: Senior Stenographer
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Location: HIGH COURT OF ORISSA, CUTTACK
Date: 16-Aug-2024 13:55:24
Issue certified copy as per Rules.
A copy of this order be communicated to the learned
trial Court for compliance.
...............................
S.K. Sahoo, J.
Orissa High Court, Cuttack The 16th August 2024/PKSahoo/Sipun Page 57 of 57