Orissa High Court
Purna Chandra Rath vs State Of Orissa on 25 September, 2015
Author: S.K. Sahoo
Bench: S. K. Sahoo
IN THE HIGH COURT OF ORISSA, CUTTACK
BLAPL No. 3235 of 2015
Application under section 439 of the Code of Criminal Procedure,
1973.
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Purna Chandra Rath ........ Petitioner
-Versus-
State of Orissa ......... Opp. Party
For Petitioner: - M/s. Sanjit Mohanty
(Senior Advocate)
Digambar Mishra
Suryakanta Satapathy
For Opp.Party: - Mr. Deepak Kumar Pani
A.S.C.
For Informant - Mr. Bijan Ray
(Senior Advocate)
Mr. Rajat Kumar Rath
(Senior Advocate)
Mr. Chinmay Choudhury
B.Mohanty, S.Mohanty
B.Moharana
BLAPL No. 3236 of 2015
Purna Chandra Rath ........ Petitioner
-Versus-
State of Orissa ......... Opp. Party
2
For Petitioner: - M/s. Sanjit Mohanty
(Senior Advocate)
Digambar Mishra
Suryakanta Satapathy
For Opp.Party: - Mr. Deepak Kumar Pani
A.S.C.
For Informant - Mr. Bijan Ray
(Senior Advocate)
Mr. Rajat Kumar Rath
(Senior Advocate)
Mr. Chinmay Choudhury
B.Mohanty, S.Mohanty
B.Moharana
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P R E S E N T:-
THE HONOURABLE MR. JUSTICE S. K. SAHOO
........................................................................................................................
Date of Argument- 08.09.2015 Date of order- 25.09.2015
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S.K. SAHOO, J.The petitioner Purna Chandra Rath in BLAPL No. 3235 of 2015 is an accused in EOW, Bhubaneswar P.S. Case No. 16 of 2014 which arises out of Paradeep P.S. Case No.110 of 2014 registered under sections 420, 408, 409, 467, 468, 471 read with section 120-B of Indian Penal Code corresponding to G.R. Case No. 397 of 2014 pending in the Court of learned J.M.F.C (P), Kujang and he is in custody since 09.06.2015. He has approached this Court in an application under section 439 Cr.P.C. for bail as his prayer for bail was turned down by the learned 3 Asst. Sessions Judge, Kujang in BLAPL No. 25 of 2015 vide order dated 17.06.2015.
The very same petitioner Purna Chandra Rath in BLAPL No. 3236 of 2015 is also an accused in EOW, Bhubaneswar P.S. Case No. 17 of 2014 which arises out of I.C.C. Case No. 76 of 2014 (Paradeep P.S. Case No. 138 of 2014) registered under sections 406, 408 and 420 read with section 120-B of Indian Penal Code corresponding to G.R. Case No. 508 of 2014 pending in the Court of learned J.M.F.C (P), Kujang and he was taken on remand in this case after he was taken into custody since 09.06.2015 in G.R. Case No. 397 of 2014. He has approached this Court in an application under section 439 Cr.P.C. for bail as his prayer for bail was turned down by the learned Asst. Sessions Judge, Kujang in BLAPL No. 24 of 2015 vide order dated 17.06.2015.
Since in both these two bail applications, the petitioner is the same so also the informant and accusations in the two cases are also identical in nature which are being investigated by the same investigating agency and also pending in the same Court, with the consent of the parties, the bail applications were heard analogously and the same are disposed of this common order.
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2. So far as EOW P.S. Case No. 16 of 2014 is concerned, on 25.4.2014 one Amit Kumar Choudhury, Manager and Office- in-Charge of Karam Chand Thapar and Bros. (Coal Sales) Ltd. (hereafter for short "the company"), Paradeep lodged a First Information Report before Inspector-in-Charge, Paradeep Police Station stating therein that accused Rakesh Kumar Chopra was appointed in the company in the year 1980 and later he officiated in the capacity of Deputy Vice President at Paradeep Branch of the company. Though there was a condition for employment in the Company that the employee should not do his own business or any business related activity with any other company without the consent of the company but accused Mr. Rakesh Kumar Chopra breached the terms of employment and formed his own companies such as Avisons Works Pvt. Ltd, M/s. Maa Durga Logistics and cheated the company by diverting the company's business and also doing business with the business competitors of the company and diverted company's fund for his self illegal enrichment. It is further stated in the FIR that by wrongfully carrying out parallel business similar to that of company's business and illegal act of continued breach, there was significant financial loss to the company over a period of time. It is further stated that accused Rakesh Kumar Chopra forged and fabricated the bank statements of company's bank 5 account, forged the statement of Oriental Bank of Commerce, Paradeep Branch and sent forged statements to the Head Office at Kolkata. It is further stated that the forged statements were printed and manufactured by accused Rakesh Kumar Chopra.
It is further stated in the F.I.R. that the petitioner who was the Senior Manager, Administration was also running parallel business in the name of his own Companies i.e., S.R. Associates, Sonal Distributors and Aar Pee Carriers (accused Rakesh Kumar Chopra's Company) and diverting the company's fund by forging and tampering instruments such as cheques, bank advice notes and other related documents. It is further stated that there was mandate from the company that all the cheques/bank advices were to be signed by two signatories i.e. one from company's Head Office at Kolkata and the other from the Paradeep Branch Office. The bankers, in connivance with the two accused, i.e. Rakesh Kumar Chopra and the petitioner violated the said mandate and conducted fraudulent activities over the past many years. The bank officials who were hand in gloves with the two accused persons, with mala fide intention used to regularly honour/pass the interpolated cheques which facilitated misappropriation of company's funds over the years and the funds were diverted to co-accused Rakesh Kumar Chopra's firms as well as the firms of the petitioner, as a result of which the 6 company sustained huge financial loss. The internal auditor's report dated 19.03.2014 indicates that the two accused persons have misappropriated a sum of rupees ten crores in connivance with the bankers and accordingly the services of both the accused persons were terminated.
On the basis of such report, Inspector-In-Charge of Paradeep Police Station registered Paradeep P.S. Case No.110 of 2014 on 25.4.2014 and he himself took up investigation. Subsequently EOW, Bhubaneswar took up investigation of the case vide EOW P.S. Case No.16 dated 07.07.2014.
3. So far as EOW P.S. Case No. 17 of 2014 is concerned, on 07.05.2014 a complaint petition was filed by the company through its Manager-Logistics Mr. Amit Kumar Choudhury in the Court of learned J.M.F.C.(P), Kujanga against accused Rakesh Kumar Chopra and the petitioner which was registered as ICC Case No.76 of 2014 wherein it is stated that both the accused persons taking advantage of their employment at the local office of the complainant company at Paradeep and being custodian of the entire affairs of the complainant company cheated crores of rupees to the complainant company by way of diverting the money to their own companies. The services of co-accused Rakesh Kumar Chopra was terminated on 31.01.2014 and that of the petitioner was terminated on 20.03.2014 and both the 7 accused not only admitted to have committed the offences but also refunded a significant amount to the complainant company and assured that they shall compensate the loss. It is the further case that the petitioner was running a parallel business in the name of his own companies i.e. S.R. Associates and Sonal Distributors and in connivance with co-accused Rakesh Kumar Chopra indulged in the activity of forging/tampering the instruments such as cheques, bank advice notes and other related documents and committed offences like interpolation of financial instruments and in the process diverted the funds of the company for their personal gains which resulted in causing huge financial loss to the company. It is further stated that the accused persons caused wrongful loss to the company and committed criminal breach of trust for almost an amount of rupees thirty crores from time to time.
The complaint petition was sent by the learned J.M.F.C.(P), Kujanga to the Inspector-in-Charge, Paradeep Police Station under section 156 (3) Cr.P.C. for registration of F.I.R. and investigation, on the basis of which Paradeep P.S. Case No.138 of 2014 was registered on 21.05.2014 under sections 406, 408, 420 read with 120-B of Indian Penal Code. Subsequently EOW, Bhubaneswar took up investigation of the 8 case vide EOW, Bhubaneswar P.S. Case No.17 dated 07.07.2014.
4. The investigation of EOW P.S. Case No. 16 of 2014 and EOW P.S. Case No. 17 of 2014 were simultaneously conducted which indicated that the total amount of fraud is rupees thirty crores by the accused persons. During course of investigation, the statements of the witnesses were recorded, appointment orders of both the accused persons including the petitioner were seized. The bank statements from Oriental Bank of Commerce, Paradeep Branch, both forged and original documents were seized. The original financial instruments, bank cheques, advice slips from Oriental Bank of Commerce and Odisha State Co- operative Bank, Paradeep Branch were seized. The audit report presented by Saket Surolia, Finance Manager of the Company to the Head Office indicated that both the accused persons had diverted the company's fund to their own companies M/s. S.R. Associates, M/s. S.P.R. Associates, M/s. S.K. Associates, M/s. Sonal Distributors and M/s. Aar Pee Carriers though those companies had no link with KCT Group of Company either in business or otherwise. All the financial instruments presented in Oriental Bank of Commerce, Paradeep Branch were seized which indicated manipulation by using white eraser and the bank officials in connivance with the accused persons passed the 9 financial instruments without any objection and in that process huge amount was diverted to the bank accounts of different firms and companies owned by the accused persons in the name of their kith and kins. From the audit report of the company, it was ascertained that total of Rs.11,68,58,096/- have been diverted by accused persons to their own established Companies. The period of misappropriation is stated to be from April 2009 to December 2013.
Finding prima facie case against the accused Rakesh Kumar Chopra, charge sheet was submitted in both the cases on 07.05.2015 under sections 420, 408, 409, 467, 468, 471 read with section 120-B of Indian Penal Code keeping the investigation open under section 173 (8) Cr.P.C.
5. The learned counsel for the petitioner Mr. Sanjit Mohanty, Senior Advocate submitted that co-accused Rakesh Kumar Chopra was the Deputy Vice-president of Paradeep Branch of the Company and the petitioner being the Senior Manager, Administration was acting at the instance of the co- accused Mr. Chopra and discharged his duty on good faith. It is further contended that as per the report submitted by the company for the year 2010-11, 2011-12 and 2012-13, there was no allegations of any fraudulent action and it was also declared before the Registrar of Companies that there was no fraud 10 involved in the affairs of the company. The learned counsel further contended that the petitioner had filed a complaint case against the legal head of KCT, Kolkata and others in the Court of learned J.M.F.C. (P), Kujanga on 06.05.2014 which was registered as I.C.C. Case No. 72 of 2014 wherein he has stated that when co-accused Rakesh Kumar Chopra was terminated from his service on 01.02.2014, the petitioner was asked by his Head Office to be present at Kolkata on 27.02.2014 and after he reached at Kolkata, he was directed to make nil balance in the accounts opened in his name and to pay the money to the Head Office at Kolkata and accordingly he paid a sum of Rs.4.65 crores to the Head Office. It is the further case of the petitioner in the complaint petition that on 20.03.2014 the petitioner was taken forcibly into room no.204 at Hotel Golden Anchor, Paradeep where the accused persons named in the complaint petition were staying and on their demand the petitioner handed over a cheque of Rs.9.7 lakhs and bank deposits receipts amounting to 40.5 lakhs, in total 50 lakhs to them. It is the contention of Mr. Mohanty that after the petitioner filed the complaint case, on behalf of the company, a complaint case was filed vide I.C.C. Case No.76 of 2014 in the Court of learned J.M.F.C. (P), Kujanga. The learned counsel further urged that running of a parallel business by the petitioner violating the conditions of 11 company's employment contract may be a civil wrong but it would not attract the ingredients of the offences under which charge-sheet has been submitted. The learned counsel further submitted that all the material documents have been seized in the case and the offences are triable by Magistrate and therefore no useful purpose would be served in detaining the petitioner further in custody. The learned counsel further submitted that since the petitioner is no more in the employment of the company, there is no chance of tampering with the evidence. He further submitted that in both the cases, the co-accused namely, Rakesh Kumar Chopra has already been released on bail by this Court in BLAPL No.803 & 808 of 2015 vide a common order dated 13.7.2015 and petitioner stands in a better footing than the said co-accused. The learned counsel further submitted that the petitioner had already refunded substantial amount alleged to have been misappropriated which would be evident from the company's balance sheet dated 27.08.2014 and the same has not been taken note of while submitting chargesheet which reflects the mala fide intention of the investigating agency. The learned counsel further submitted that the chargesheet indicates that all the financial instruments of Oriental Bank of Commerce, Paradeep Branch have been seized and therefore the release of 12 the petitioner will no way hamper the further investigation in any manner.
6. The learned counsel for the State Mr. Deepak Kumar Pani, on the other hand submitted that in the present case the period of misappropriation is quite long and therefore it would take further time to unearth all the illegalities and irregularities committed not only by the petitioner but also by other accused persons. It is the further contention of the learned counsel for the State that larger conspiracy angle is involved in the case and relevant documents are yet to be seized and Paradeep Port Officials are to be interrogated and bank officials who are responsible in facilitating the misappropriation are to be taken into custody and therefore if at this stage the petitioner is enlarged on bail, he is likely to create hurdle in the path of the investigation and derail the same. The learned counsel further submitted that the complaint petition filed by the petitioner vide I.C.C. Case No.72 of 2014 which was forwarded to the Inspector- in-Charge of Paradeep Police Station under Section 156 (3) Cr.P.C. by the J.M.F.C.(P), Kujanga has also been taken over by EOW, Bhubaneswar for investigation and accordingly EOW Case No.20 of 2014 has been registered on 4.8.2014 and the investigation of the said case is also under progress. The learned counsel further submitted that since the petitioner had diverted 13 the company's fund to his three companies and his confessional letter prima facie makes out a case against him and when from the materials collected so far, the misappropriation amount involved is rupees thirty crores which may likely to go up, at this stage it would not be proper to grant him bail particularly when the economic offences are 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.
7. The learned counsels for the informant Mr. Bijan Ray and Mr. Rajat Kumar Rath, Senior Advocates vehemently opposed the prayer for bail and submitted that the petitioner filed applications under section 438 Cr.P.C. before this Court in BLAPL No.15154 & 15155 of 2014 in connection with Paradeep P.S. Case No.110 of 2014 corresponding to G.R. Case No.397 of 2014 and Paradeep P.S. Case No.138 of 2014 corresponding to G.R. Case No.508 of 2014, both pending in the Court of J.M.F.C. (P), Kujanga and vide order dated 05.12.2014 both the bail applications were disposed of by a common order rejecting the prayer for anticipatory bail and directing the petitioner to surrender before the learned J.M.F.C.(P), Kujang within twenty one days and to move for bail. The petitioner flouted the order of this Court and did not surrender within the prescribed period and 14 ultimately he was arrested by the investigating officer on 09.06.2015. It is the contention of the learned counsels that in view of such conduct of the petitioner, there is every chance of his absconding. It is the further contention of the learned counsels for the informant that even if it is taken that the petitioner has made the payment of the misappropriation amount in part, the same would not absolve him from the charges. The learned counsels further urged that the case of the co-accused Rakesh Kumar Chopra stands in a different footing than the petitioner inasmuch as huge amount have been diverted to the three companies of the petitioner and cheques have been issued under the signatures of the petitioner.
8. In view of the settled position of law as decided in case of Y.S. Jagan Mohan Reddy -v- C.B.I. reported in (2013) 55 Orissa Criminal Reports (SC) 825, State of Gujarat -v- Mohan Lal Jitamalji Porwal reported in AIR 1987 SC 1321 and Nimmagadda Prasad -v- C.B.I. reported in (2013) 7 Supreme Court Cases 466, it is clear that the economic offences are considered grave offences as it affect the economy of the country as a whole and such offences having deep rooted conspiracy and involving huge loss of public fund are to be viewed seriously. Economic offence is committed with cool calculation and deliberate design solely with an eye on personal 15 profit regardless of the consequence to the community. In such type of offences, while granting bail, the Court has to keep in mind, inter alia, the larger interest of public and State. The nature and seriousness of an economic offence and its impact on the society are always important considerations in such a case and those aspects must squarely be dealt with by the Court while passing an order on bail applications.
9. On going through the bail order passed in favour of co- accused Rakesh Kumar Chopra, it indicates that the Hon'ble Judge has mainly taken the following aspects into consideration:-
(i) The fate of the prosecution mostly depends on documentary evidence which are not in the custody of the present petitioner but with the custody of different banks and the company itself and therefore the plea that the petitioner is likely to tamper with the evidence if released on bail is found to be without sufficient force.
(ii) Though it is alleged that more than thirty crores has been defalcated, the investigation does not disclose as to what is the extent of defalcation detected so far.
(iii) The apprehension that the petitioner may abscond and avoid the investigating agency for the purpose 16 of investigation after being released on bail can be minimized if suitable conditions are imposed.
10. In case of Preeti Bhatia -v- Republic of India reported in (2015) 61 Orissa Criminal Reports 131: 2015 (1) Orissa Law Reviews 662, it is held as follows:-
"7............Parity cannot be the sole ground for grant of bail. It is one of the grounds for consideration of the question of bail. There is no absolute hidebound rule that bail must necessarily be granted to the co-accused, where another co- accused has been granted bail. Even at the stage of subsequent bail application when the bail application of the co-accused whose bail had been earlier rejected is allowed and co-accused is released on bail, even then also the Court has to satisfy itself that, on consideration of more materials placed, further developments in the investigations or otherwise and other different considerations, there are sufficient grounds for releasing the applicant on bail. If on careful scrutiny in a given case, it transpires that the case of the applicant before the Court is identically similar to the accused on facts and circumstances who has been bailed out, then the desirability of consistency will require that such an accused should also be released on bail. A Judge is not bound to grant bail to an accused on the ground of parity even where the order granting bail to an identically placed co-accused contains no cogent reasons or if the same has been passed in flagrant violation of well settled principle of law and ignores to take into consideration the relevant facts essential for granting bail. Such an order can never form the basis for a claim of parity. It will be open to the Judge to reject the bail application of the applicant before him as no Judge is obliged to pass orders against his conscience merely to maintain consistency. The grant of bail is not a mechanical 17 act. Merely because some of the co-accused, whom similar role has been ascribed, has been released on bail earlier and State has not moved the higher Court against the order in question for cancellation, the power of the Court cannot be fettered to act against conscience.
11. On going through the materials collected till submission of the first charge sheet on 07.05.2015 and the materials collected during further investigation and the documents produced by the learned counsel for the State in sealed cover, prima facie it indicates that the petitioner had formed three companies namely, M/s. S.R. Associates, M/s. Sonal Distributors and M/s. S.P.R. Associates and diverted company's huge fund to these companies. One of the companies stands in the name of the wife of the petitioner and the other two companies are in the name of the petitioner. It further reveals that the petitioner was absconding for about a year and with much difficulty, he was arrested only on 08.06.2015 from Howrah Railway Station. Though the petitioner while admitting his guilt deposited a part of the misappropriated amount in four installments but he has not complied with his undertaking given to the company to deposit the balance amount. The confessional statements of the accused are on record and those are to be sent to the handwriting bureau for the comparison. Not only the documentary evidence but also the ocular testimonies are 18 available on record to substantiate the allegations against the petitioner.
Considering the submissions made by the respective parties and perusing the materials available on record as well as the important documents submitted by the learned counsel for the State in sealed cover, I am of the view that the petitioner stands in a different footing than the co-accused Rakesh Kumar Chopra who has been enlarged on bail and the case of the petitioner is distinguishable from the co-accused and as such the contention of the learned counsel for the petitioner regarding claim of parity and equity is not acceptable and accordingly the same is rejected.
12. Bail is granted on the totality of the facts and circumstances of a case. Parity cannot be a sole ground but is one of the grounds for consideration of the question of bail. The principle of grant of bail on parity cannot be allowed to be carried to an absurd or illogical conclusion so as to put a Judge in tight and strait jacket to grant bail automatically. There may be cases where a Judge may not simply take a different view from the Judge who granted bail earlier to a co-accused but there may be exception where the conscience of the Judge revolts in granting 19 bail, in such a situation the Judge may choose to depart from the rule of parity by recording his reasons.
13. Even though the petitioner has been terminated from his service but one cannot shut his eyes to the fact that he must have been in close contact with the bank officials as well as the staff of the local branch of the Company Office at Paradeep where he worked for a number of years and therefore he must have got definite influence over them. No doubt the documents have been seized from the bank as well as from the local office at Paradeep but in a case of this nature where the investigation reveals a larger of conspiracy angle between the accused persons, bank officials and staff of Paradeep Port Trust authority and the confessional statements of the petitioner confirm such conspiracy, any kind of interference would create obstacle for the investigating agency to arrive at the truth. It is to be ascertained during course of further investigation as to what are those supporting materials to reveal the conspiracy angle. The role of the bank officials who passed the cheques, the role of Paradeep Port Trust staff as well as other company officials are to be ascertained which would substantiate the diversion of company's fund as well as its use. Prima facie materials are available on record to indicate that the petitioner being the Senior Manager, 20 Administration of the company, by taking advantage of his position has misappropriated huge amount of the company's fund by manipulating/tampering/forging the documents and thereby committed fraud causing huge pecuniary loss to M/s. KCT and brothers (Coal Sales) Limited to the tune of crores of rupees in connivance with the other accused persons. The conduct of the petitioner in absconding for more than a year and flouting the orders of this Court passed in the anticipatory bail applications are the factors which go against the petitioner. The other accused persons are yet to be identified and they are also to be prosecuted and there is sufficient force in the contention of the learned counsel for the State that the release of the petitioner would hamper the investigation and the petitioner may create obstacles in the path of collection of materials which are likely to come out against him. The period of misappropriation is quite long and therefore the collection of further documentary evidence are necessary.
14. Law is well settled that detailed examination of evidence and elaborate discussions on merit of the case need not be taken at the stage of consideration of the bail application. The discretion should be used in a proper and judicious manner and the Court must take note of the nature of accusation, the nature 21 of supporting evidence, the severity of punishment in case of conviction, reasonable apprehension of tampering with the evidence and criminal antecedent etc.
15. After bestowing my anxious, painstaking and careful consideration to the tactical and enthralling contentions raised at the Bar, I am of the considered view that the collected oral and documentary evidence prima facie shows the involvement of the petitioner in the crime. The investigation so far conducted suggest that the petitioner being the Senior Manager, Administration of the Company at Paradeep Branch has misappropriated huge fund of the company running to crores of rupees by diverting the same to his own companies namely, M/s. S.R. Associates, M/s. Sonal Distributors and M/s. S.P.R. Associates. The petitioner seems to be in hand in gloves with the bank officials and staff of Paradeep Port Trust so also with other accused persons and all of them have hatched out conspiracy to cheat the company M/s. KCT and Bros. (Coal Sales) Ltd. and to cause huge pecuniary loss to the company. The fraud amount which at present detected to be rupees thirty crores may go up during course of further investigation as it expands to a number of years and the investigating agency are yet to collect many relevant documents. The involvement of the petitioner in the 22 deep routed conspiracy in the commission of the economic offence causing huge loss to M/s. KCT and Bros. (Coal Sales) Ltd. is prima facie apparent. The conduct of the petitioner in not complying the order of this Court in the anticipatory bail applications and even not filing any application for extension of the date of surrender suggests that the petitioner has no due regard to the orders of this Court. When the petitioner is still in possession of huge amount of misappropriated money, the chance of using such money to influence the witnesses and tampering the evidence cannot be ruled out. The betrayal of trust of the employer and the manner in which documents have been forged clearly indicate that everything was done in a pre- planned, preordained, cool, calculated and deliberate manner for personal benefit.
Without detailed examination of evidence and elaborate discussion on merits of the case but considering the nature and seriousness of accusation, the manner in which the petitioner committed breach of trust and confidence reposed on him by the employer, the nature of supporting evidence, the severity of punishment in case of conviction, reasonable apprehension of tampering with the evidence and availability of prima facie material against the petitioner regarding his involvement in the 23 commission of the offences, I am of the view that even if the co- accused has been released on bail but taking into account the fact that further investigation of the case is under progress to unearth further evidence and other aspects of criminal conspiracy, it would not be proper at this stage to release the petitioner on bail.
Accordingly, the bail applications are devoid of merit and stand rejected.
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S.K. Sahoo, J.
Orissa High Court, Cuttack The, 25th September 2015/Sisir.