Orissa High Court
Shrikant Mohta vs Republic Of India ........ Opp. Party on 2 January, 2020
Equivalent citations: AIRONLINE 2020 ORI 19
Author: S. K. Sahoo
Bench: S.K. Sahoo
IN THE HIGH COURT OF ORISSA, CUTTACK
BLAPL No. 5450 Of 2019
An application under section 439 of the Code of Criminal
Procedure in connection with R.C. Case No. 39/S/2014-Kol
corresponding to SPE Case No. 34 of 2014 pending on the file of
Special C.J.M. (C.B.I.), Bhubaneswar.
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Shrikant Mohta ........ Petitioner
-Versus-
Republic of India ........ Opp. Party
For Petitioner: - Mr. Suresh Tripathy
For Opp. party: - Mr. Kali Charan Mishra
Special P.P., C.B.I.
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P R E S E N T:
THE HONOURABLE MR. JUSTICE S.K. SAHOO
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Date of Hearing: 24.12.2019 Date of Judgement: 02.01.2020
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S. K. SAHOO, J. The petitioner Shrikant Mohta earlier knocked the
doors of this Court for bail in an application under section 439 of
the Code of Criminal Procedure in BLAPL No.1983 of 2019 in
connection with R.C. Case No. 39/S/2014-Kol dated 05.06.2014
corresponding to SPE Case No. 34 of 2014 pending on the file of
Special C.J.M. (C.B.I.), Bhubaneswar which was rejected as per
2
order dated 13.05.2019. After submission of charge sheet
against the petitioner on 22.05.2019 for commission of offences
punishable under sections 420, 409 read with section 120-B of
the Indian Penal Code and sections 4, 5 and 6 of the Prize Chits
and Money Circulation Schemes (Banning) Act, 1978 (hereafter
'1978 Act'), he has again approached this Court for bail after his
prayer for bail before the learned Sessions Judge, Khurda at
Bhubaneswar in Bail Application No.854 of 2019 was rejected
vide order dated 18.06.2019.
2. The present case was instituted by clubbing three
First Information Reports of three different cases i.e. Buguda
P.S. Case No.75 of 2013, Jeypore Town P.S. Case No.71 of 2013
and Nuapada P.S. Case No.82 of 2013 in pursuance of the order
dated 09.05.2014 of the Hon'ble Supreme Court of India passed
in W.P. (Civil) No.401 of 2013 filed by Shri Subrata Chattoraj
and W.P. (Civil) No.413 of 2013 filed by Shri Alok Jena.
According to the prosecution case, Rose Valley Group
of Companies (hereafter for short 'Rose Valley') collected huge
amount of money from public enticing them with false promise of
paying higher rates of interest although Rose Valley was not
having any authorization from the Reserve Bank of India
(hereafter for short 'RBI') or the Securities and Exchange Board
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of India (hereafter for short 'SEBI') for carrying out such
activities and therefore, the company cheated the public.
Investigation revealed that 'Rose Valley Resorts and
Plantations Limited, Kolkata' was founded in the year 1997 and
in the year 2002, SEBI imposed ban on the teak based
investment schemes which the company was carrying out, for
which the schemes floated were stopped. The company was
renamed as 'Rose Valley Hotel and Entertainment Limited' in the
year 1999. Two more companies in the name of 'Rose Valley
Real Estates Constructions Limited' and 'Real Estate and
Landbank India Ltd.' were founded subsequently in the year
1999 and 2001 which were registered with the Registrar of
Companies (hereafter for short 'ROC'). Rose Valley started
expanding its spheres and a lot of new companies were formed
in between 1997 to 2012. The accused persons, namely Gautam
Kundu, Chairman of Rose Valley, Shibamoy Dutta, Managing
Director, Ashok Kumar Saha and Ram Lal Goswami, Directors of
Rose Valley in furtherance of criminal conspiracy by establishing
branches of the companies in different parts of India, collected
money from the public through multi-level agent network
system. They cheated the investors/depositors by way of
camouflaged schemes and false assurance about legal sanctity
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and false promise of higher rates of interest. The accused
persons also cheated the depositors as well as the agents by
making false assurance that the accused companies were legally
empowered to collect money from the public. They were running
ponzi schemes and circulating the money collected from the
depositors which was not disclosed to the depositors and agents.
The accused persons made false propaganda that Rose Valley is
having a big business empire and diversified business. They
fraudulently claimed that the money collected from the
depositors would be invested in those businesses and with the
help of high returns from those companies, they would be able to
pay back to the depositors their invested money with interest on
maturity. The accused persons deceived the depositors and
deliberately induced them to invest their hard-earned money in
the accused companies. It further revealed from the scrutiny of
the balance sheet of all the companies of Rose Valley that almost
all the companies were making loss and old depositors were paid
by using money of the new depositors since there was no income
generated by the companies from any source. It further revealed
that the total business model of Rose Valley was commercially
unrealistic/unviable and it was not in a position to pay to its
depositors the promised higher rates of interest and therefore, it
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was just rotating the money. Rose Valley not only collected
thousand of crores of rupees illegally from the depositors by
cheating them but they did not utilize the same for the purpose
for which the money was invested. The accused persons did not
return the money of lakh of depositors and thereby committed
criminal breach of trust. The total money collection of Rose
Valley according to the database up to the financial year 2012-
13 was Rs.1471,18,81724/- (rupees fourteen hundred seventy
one crores eighteen lakhs eighty one thousand seven hundred
twenty four only).
On 06.01.2016 first charge sheet was submitted
against accused Gautam Kundu, Shibamoy Dutta, Ashok Kumar
Saha, Ram Lal Goswami and three Rose Valley Companies under
sections 420, 408, 409, 120-B/34 of the Indian Penal Code and
sections 4, 5 and 6 of 1978 Act keeping the further investigation
open under section 173(8) of Cr.P.C. for ascertaining the role of
regulatory agencies like SEBI, ROC and RBI and other agencies
and also other influential persons involved in it and for probing
the larger criminal conspiracy and money trailing.
During course of further investigation, the roles of
Tapas Paul and Shri Sudeep Bandyopadhyay, both Members of
Parliament were examined and it was found that both the
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accused allowed their stature to be used to allure the investors,
agents and in return, they also gained wrongfully. In order to
promote the illegal money collection business of Rose Valley,
they grossly abused their respective official positions and overtly
certified the business of Rose Valley and their presence with the
company bestowed confidence in the minds of agents and
investors about the credential of the company. Thus, the two
accused M.Ps. also deceived the investors to deposit money in
the Rose Valley, cheated them and misappropriated the money
in conspiracy with other accused persons.
On 26.04.2017 second charge sheet was submitted
under sections 420 and 409 read with section 120-B of the
Indian Penal Code and sections 4 and 6 of 1978 Act and section
13(2) read with section 13(1)(d) of the Prevention of Corruption
Act, 1988 against the M.Ps. Tapas Paul and Shri Sudeep
Bandyopadhyay and others keeping the further investigation
open to look into the role of the regulatory authorities, larger
criminal conspiracy and money trailing.
During course of further investigation, materials were
found against accused Ramesh Gandhi, who was the Managing
Director of M/s. Rainbow Productions Limited. It was found that
having full knowledge that Rose Valley was collecting money
7
from the general public in an illegal manner and their activities
were under the scanner of law enforcement agencies, accused
Ramesh Gandhi, who was a producer of T.V. programmes and
was in electronic media business entered into business relation
with accused Gautam Kundu and an agreement was executed to
protect illegal money collection business of Rose Valley and to
gain wrongfully. The said accused Ramesh Gandhi projected
himself to be keeping control over the media channels/
newspapers of Assam for protecting the business of Rose Valley.
Huge amount was paid to M/s. Rainbow Productions Ltd. towards
the release of advertisements of the company from the account
of Rose Valley.
On 15.05.2018 third charge sheet was submitted
against accused Ramesh Gandhi, M/s. Rainbow Productions Ltd.
and M/s. Aarambh Advertising and Marketing Ltd. under section
120-B read with sections 420 and 409 of the Indian Penal Code
and sections 4 and 6 of 1978 Act keeping the further
investigation open.
During course of further investigation, it was found
that the petitioner is the Founder Director of M/s. Shree
Venkatesh Films Private Limited (hereafter 'SVFPL'). SVFPL
entered into an agreement with a sister concern of Rose Valley,
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namely, M/s. Brand Value Communication Ltd. (hereafter 'BVCL')
on 07.04.2010 for supplying the telecast rights of seventy
Bengali films for an amount of Rs.25 crores to be broadcasted
through the satellite channel of BVCL namely 'Rupashi Bangla'.
During telecast of Bengali films, publicity of Rose Valley was
made in the T.V. channel owned by Rose Valley for alluring the
investors to make investment which reflected the real purpose
behind the agreement for supply of seventy Bengali films to
BVCL. Nineteen films supplied by SVFPL to BVCL amounting to
Rs.6.84 crores were found to be technically not viable and as
such those films were returned to SVFPL but the amount of
Rs.6.84 crores was not returned back by SVFPL to BVCL.
Investigation further revealed that BVCL lodged a
First Information Report against SVFPL and its employees on
16.11.2011 at Baguiati Police Station, Kolkata in which charge
sheet was submitted against all the F.I.R. named accused
persons including the petitioner. The said charge sheet was
challenged by the petitioner and other accused persons before
the Hon'ble Calcutta High Court and the Hon'ble Court quashed
the charge sheet. BVCL challenged the matter before the Hon'ble
Supreme Court which upheld the decision of the Hon'ble Calcutta
High Court. Finally, as it was found that the SVFPL had not
9
supplied nineteen technically feasible films to BVCL, in an
arbitration proceeding, the learned Arbitrator vide order dated
13.06.2018 awarded a payment of Rs.6.84 crores by SVFPL to
BVCL. The award amount of Rs.6.84 crores passed by the
learned Arbitrator was not paid by SVFPL. Investigation further
revealed that the petitioner and accused Gautam Kundu,
Chairman of Rose Valley entered into a criminal conspiracy
amongst themselves to misappropriate the public fund illegally
collected by the Rose Valley on the garb of an agreement for
telecast right of films to the BVCL. The illegal financial business
activities of the Rose Valley Group of companies namely Rose
Valley Real Estates & Constructions Ltd., Rose Valley Resorts &
Plantations Ltd. (subsequently renamed as 'Rose Valley Hotels
and entertainments Ltd.'), Real Estates & Landbank India Ltd.
were banned by SEBI by its orders in the year 2002 and during
2010-11 respectively. The same was widely publicised through
media. The petitioner having full knowledge of banning of the
activities of Rose Valley by the regulatory authority SEBI,
entered into an agreement with BVCL. The petitioner through his
company SVFPL purchased paintings from an exhibition held in
Kolkata during 2011-13 for a declared amount of Rs.15 lakhs
from 'Jago Bangla'. According to the prosecution, the amount
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which was received by SVFPL from BVCL was the money
collected by the Rose Valley Group of companies from the
depositors by deceiving them with assurance of getting higher
returns without the permission of RBI. The money so collected
was diverted by the Rose Valley to its sister concern BVCL which
was further diverted to the accounts of SVFPL. It is the case of
the prosecution that the petitioner belonged to the community of
media and he was supposed to have the knowledge of the
banning of the activities of the Rose Valley by the regulatory
authority SEBI and in spite of that the petitioner's company
SVFPL entered into an illegal agreement with BVCL. During
course of investigation, as the petitioner did not cooperate with
the investigation and prima facie case relating to his involvement
in the crime was made out, he was arrested and forwarded to
Court on 25.01.2019.
After rejection of the earlier bail application of the
petitioner by this Court in BLAPL No.1983 of 2019, charge sheet
was submitted against the petitioner on 22.05.2019 under
sections 420, 409 read with section 120-B of the Indian Penal
Code and sections 4, 5 and 6 of the 1978 Act.
In the charge sheet dated 22.05.2019, it is
mentioned that SVFPL was registered with Registrar of
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Companies (ROC), Kolkata, West Bengal. The company was
renamed as M/s. SVF Entertainment Private Ltd. (hereafter
'SVEPL') on 16.03.2017. The Directors of the company were the
petitioner, Sri Mahendra Suni, Shri Bishnukanta Mohta and Sri
Jeeban Das Mohta. The main object of the company was to carry
out the business of exhibition, distribution of cinema TV, video
films and production of cinema TV, Video cassettes etc.
Investigation revealed that since the company M/s Rose Valley
Resort and Plantation was indulged in illegal deposit collection
business, SEBI had banned the collection of deposits in the name
of M/s. Rose Valley Resorts & Plantation Ltd. vide order dated
24.02.2002. SEBI had also directed the M/s. Rose Valley Resorts
and Plantation Ltd. to refund the money collected under the
schemes within one month from the date of the order. The order
passed by the SEBI was uploaded in the public domain. In
compliance with the order of the SEBI dated 24.02.2002, M/s.
Rose Valley Resorts and Plantation Ltd. wind up the CIS Scheme
and repaid money to the investors. Subsequently during an
enquiry by SEBI started from 08.01.2010, the company M/s.
Rose Valley Real Estate and Construction Ltd. was also found to
be engaged in running "Collective Investment Scheme" and
soliciting money from the public in the name of plot selling
12
without having any permission from the SEBI. In order to
prevent the activities of M/s Rose Valley Real Estate and
Constructions Ltd, SEBI banned the business of the company
vide order dated 03.01.2011 and the said order was also
uploaded in public domain and published in the newspaper "The
Times of India" dated 19.05.2013 for the awareness of general
public. Investigation further revealed that though SEBI had
banned the company M/s. Rose Valley Resort and Plantation
Limited, accused Gautam Kundu, Chairman of M/s. Rose Valley
Group continued with illegal deposit collection business with an
intention to cheat the public by changing the name of the
company M/s. Rose Valley Resorts and Plantation Ltd. to M/s.
Rose Valley Hotels and Entertainment Ltd. in the year 2007. In
addition to that, with an intention to promote the illegal chit fund
business of M/s. Rose Valley Group and to divert the money
received from public, accused Gautam Kundu set up media
business in the name of M/s. Rose Valley Films Ltd. and BVCL.
To carry on the media business with the ulterior motive to
promote illegal chit fund business, accused Gautam Kundu
wanted to purchase some good films and telecast those films
through 'Rupashi Bangla' Channel of BVCL. Investigation further
revealed that the petitioner was the chief promoter of SVFEPL
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which was engaged in production and distribution in the field of
media, music, digital cinema, exhibition since 1996. Though Shri
Mahendra Soni, Jeewan Das Mohta and Shri Vishnukant Mohta
were also the directors of SVFEPL, all the decisions were taken
by the petitioner since he was the main director of the company.
Despite being in the world of media, the petitioner was closely
associated with the Managing Director of M/s. Rose Valley Group
who was none else than accused Gautam Kundu and despite
having knowledge about the illegal business activities of the Rose
Valley Group, he entered into the business alliance which was in
the nature of criminal conspiracy to divert the ill-gotten money in
the guise of commercial ties.
Investigation further revealed that before entering
into an agreement with BVCL, the petitioner and Mahendra Soni,
both directors of SVFEPL company had joined in a meeting with
accused Gautam Kundu, Shri Satyajit Saha, Director and Shri
Kranti Kumar, staff of BVCL at Hotel Taj on 26.01.2010 and in
the said meeting, accused Gautam Kundu on behalf of Rose
Valley Group and the petitioner on behalf of SVFEPL discussed to
promote the actual business i.e Chit fund business of M/s Rose
Valley in the garb of business opportunity. In the said meeting,
accused Gautam Kundu disclosed about his actual chit fund
14
business in the name of M/s Rose Valley to the petitioner. He
further requested the petitioner to promote his media business
by supplying good films produced by SVFPL since during the
relevant period of time TRP of SVFPL was very high in
comparison to other production houses. Accused Gautam Kundu
disclosed that his company's actual source of income was deposit
collection from the public and he wanted to invest the said
money in the media business for branding and promotion of his
chit fund business. The petitioner knowing the facts that accused
Gautam Kundu was doing illegal chit fund business by collecting
the deposits from the public in the name of M/s. Rose Valley
agreed to enter into an agreement and other business alliance
with accused Gautam Kundu and finally both agreed mutually
and decided the agenda vide item numbers 1, 2 & 3 of the
minutes of the meeting which was sent by Mahendra Soni on
behalf of SVFPL. In a said meeting, Shri Satyajit Saha, Shri
Kranti Kumar of BVCL and Mahendra Soni were present.
Investigation further revealed that agenda item no. 1 was the
film deal i.e. M/s. Rose Valley principally agreed to acquire
satellite right of seventy films from SVFPL for a period of three
years. Agenda item no.2 was the fiction show i.e. SVFPL agreed
to produce one fiction show for M/s. Rose Valley for 9 p.m. slot.
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Rose Valley had suggested launching the show by the end week
of February. Further, M/s. Rose Valley approved the concept
given by SVFPL and for the said fiction show, M/s. Rose Valley
would provide the shooting floor. Agenda item no.3 was the film
distribution and M/s. Rose Valley had asked SVFPL to distribute
all their upcoming films and Shri Kranti Kumar was to further
coordinate with SVFPL on the way forward.
Investigation further revealed that the petitioner as
Director of SVFPL had entered into a criminal conspiracy with
accused Gautam Kundu to promote the illegal chit fund business
in the garb of business transaction with BVCL in spite of knowing
the facts that M/s. Rose Valley Group was indulged in an illegal
business activities i.e deposit collection from the public which
was already banned by the SEBI in the year 2002 and in
furtherance of that, an agreement dated 07.04.2010 was signed
by Shri Mahendra Soni, Director on behalf of SVFPL and Shri
Satyajit Saha, Director on behalf of BVCL for films assignment of
sole and exclusive satellite television broadcasting rights in
respect of seventy films through its channel 'Rupashi Bangla' at
mutually agreed consideration amount of twenty five crores.
Investigation further revealed that as soon as the
agreement was signed, total consideration amount of rupees
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twenty five crores after deducting a sum of Rs.2.5 crores on
account of Tax Deducted at source (TDS) i.e Rs 22.50 crores was
paid by accused Gautam Kundu to the petitioner by issuing
cheques under his own signatures. The total amount of Rs 22.50
crores was debited from the account of BVCL. The said amount
was diverted by accused Gautam Kundu in the account of BVCL
from M/s. Rose Valley Real Estate & Constructions Ltd. During
the relevant period of transaction i.e. 03.04.2010 to 01.07.2010,
the major amount credited into the account of BVCL was from
M/s. Rose Valley Real Estate & Construction Ltd. (Group
Company of M/s. Rose Valley). The Rose Valley Real Estate &
Constructions Ltd. was collecting investment from the public in
an illegal manner for which the company was banned by the
SEBI vide order dated 03.01.2011 and later on 06.01.2016 this
company was charge sheeted by C.B.I. in this case. Investigation
established that the amount received by SVFPL was actually the
ill-gotten money invested to Rose Valley Real Estate &
Constructions Ltd. which was transferred to BVCL by accused
Gautam Kundu. Investigation further revealed that an amount of
rupees nine crores was paid by BVCL by way of a cheque
credited on 28.06.2010 in the account of SVFPL (TV & Studio
Division). Another cheque for rupees nine crores was credited on
17
24.04.2010 in the account of SVFPL and another cheque for Rs
4.5 crores was credited on 05.05.2010 in the OD account of
SVFPL.
Investigation further revealed that the petitioner did
not supply films in spite of full payment received for supply of
the films. Out of the seventy films, SVFPL finally supplied only
fifty one films and the remaining nineteen films remained
unsupplied which showed the actual attitude and intent of the
said Company. The petitioner intended to receive the ill-gotton
money in the garb of a genuine business deal/agreement but
investigation established that by entering into a criminal
conspiracy in the form of a business deal with accused Gautam
Kundu, the petitioner conspired to cheat the general public since
the amount received by him on the guise of the business
transaction was the public money.
Investigation further revealed that apart from the
film assignment agreement, to promote the chit fund business of
M/s Rose Valley Group, SVFPL and BVCL had also entered into
another agreement on 23.05.2010 to produce TV Serial
"Suhashini" by SVFPL for BVCL @ Rs.1,45,000/- + Service Tax
per episode and the said TV Serial was telecasted from 'Rupashi
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Bangla' channel of BVCL. Further, BVCL also provided shooting
floor to SVFPL for the shooting of said TV serial.
Investigation further revealed that in order to bring
more and more advertisers for telecasting their advertisements
during the intervals of movies of SVFPL, one brochure was
designed by using SVF logo and 'Rupashi Bangla' logo so that the
advertisers might know that the films of SVFPL, a reputed
production house which was known for production of quality films
would be shown in the television channel of BVCL. The brochure
was shown to the intending advertisers so that they could
subscribe their advertisements during the programme which
would increase the revenue and prestige of BVCL. Further, in the
'Rupashi Bangla' channel of BVCL, the advertisement of Rose
Valley was used to be shown on a regular basis. By such
agreement, SVFPL helped BVCL to enhance their revenue
generation and also their prestige.
Investigation further disclosed that some differences
between BVCL and SVFPL culminated into registration of F.I.R.
No.689 of 2011. Finally, SVFPL and its inmate along with two
employees of BVCL were charge sheeted. However, the said
proceeding was quashed by the Hon'ble Calcutta High Court.
Investigation further disclosed that in respect of alleged amount
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of said agreement dated 07.04.2010 which was the subject
matter of the said proceeding, it was not surfaced at that time
that the said amount was actually the misappropriated property
of the general public invested with M/s. Rose Valley Real Estate
& Constructions Ltd. Accordingly, C.B.I. while tracing the trail of
money ascertained that SVFPL and its directors had conspired to
misappropriate the fund of ill-gotten money. Though in the
Baguiati P.S. case, the aggrieved party was BVCL but in the
instant case, the aggrieved parties are poor and gullible
investors and the public at large. In Baguiati P.S. case, whether
the money involved was actually the money invested by poor
investors or not, was never investigated.
Investigation further revealed that till 2010-11, the
M/s. Rose Valley Group of companies had already raised funds to
the tune of Rs.5357,92,82,699/- illegally. The payments made to
SVFPL by BVCL was nothing but the investments made by
gullible investors illegally collected by M/s. Rose Valley Group.
The petitioner despite being a high profile person in the world of
media, maintained his relationship with the Managing Director of
M/s. Rose Valley Group and entered into business alliance with
him, in spite of having fine knowledge about the illegal business
activities of the M/s. Rose Valley Group. It is further stated that
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the illegal act of the companies, conspiracy angle for promoting
the chit fund business under the guise of film supply, production
of TV Serial, all these factual criminal angles were not placed
before the Hon'ble High Court and instead of that, only
agreement part was highlighted for treating the matter as civil in
nature.
Investigation further revealed that a Divisional Bench
of Calcutta High Court appointed an Arbitrator to decide the
dispute between BVCL and SVFPL. During the arbitral
proceedings, the learned Arbitrator compensated BVCL for the
loss of title rights to telecast nineteen films for which it had paid
and accordingly, taking average valuation of each film,
compensation was awarded to the tune of Rs.6.84 crores to be
paid by SVFPL to BVCL along with an interest @ 8% per annum
w.e.f. 06.08.2013 to 13.06.2018 and further interest of 9% was
directed to be levied on the awarded amount plus the interest
amount from 14.06.2013 till the date of actual payment which
was to be paid by SVFPL.
3. The earlier bail application of the petitioner was
rejected by this Court considering the nature and gravity of the
accusation, strong prima facie case available against the
petitioner to show his involvement in the economic offence
21
committed by Rose Valley, likelihood of tampering with the
evidence when the investigation was at a crucial stage and
several bank accounts of the petitioner and his company were
under scrutiny to trace out any further money transactions with
Rose Valley and above all in the larger interest of society.
4. The learned Sessions Judge, Khurda, Bhubaneswar
while rejecting the bail application of the petitioner as per order
dated 18.06.2019 in BLAPL No.854 of 2019 has been pleased to
hold that the accusations are serious in nature and the evidence,
which had been collected, was also peculiar in the sense that the
same has origin in the activities of the accused firms. It was held
that the possibility of the petitioner trying to tamper with the
evidence collected cannot be ruled out, if he is granted bail. It
was further held that although charge sheet had been submitted,
but the investigation had been kept open and after rejection of
the bail application by this Court, there was no material change
in the circumstance to grant bail to the petitioner.
5. Mr. Suresh Tripathy, learned Senior Counsel
appearing for the petitioner contended that the petitioner is in
judicial custody since 24.01.2019 and in the name of carrying
out investigation, C.B.I. which is the premier investigative
agency in the country has taken away the liberty of petitioner,
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who is a respectable person in the society, for the reasons that
are patently oblique and the investigation is not fair and
impartial. He argued that SVFPL was formed way back in
18.09.1995 and it is a reputed Media and Entertainment
Company which was doing business in film production, film
distribution and television serial production and has produced
about one hundred and twenty films since its inception and it has
played a pioneer role in taking Bengali cinema to a global
platform. It has produced five national award winning films. He
argued that a film assignment agreement was executed between
SVFPL as assignor and BVCL as assignee on 07.04.2010 by
virtue of which the assignor assigned sole and exclusive satellite
television broadcasting rights of seventy feature films to the
assignee to be broadcasted through the satellite channel of BVCL
namely 'Rupashi Bangla' and the total consideration of the
assigned films was rupees twenty five crores. Dispute arose
between BVCL and SVFPL when some of the films supplied to
BVCL by SVFPL were found to be not technically feasible for
telecast and those were not replaced by SVFPL. BVCL launched a
criminal prosecution against the petitioner and other directors of
SVFPL at Baguiati police station and on completion of
investigation, charge sheet was submitted under sections 403,
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405, 406, 408, 418, 420 of the Indian Penal Code. The matter
was challenged before the Hon'ble Calcutta High Court in CRR
No.2927 of 2012 and CRAN No.1887 of 2013 by the petitioner
and others and the Hon'ble Court vide judgment and order dated
15.01.2014 quashed the charge sheet. BVCL challenged the
order of the Hon'ble Calcutta High Court before the Hon'ble
Supreme Court in SLP (Crl.) No.4271-4272/2014 which was
dismissed as per order dated 30.11.2015. A retired Judge of the
Hon'ble Supreme Court adjudicated the dispute between the
parties in an arbitration proceeding and passed an award on
13.06.2018 and directed SVFPL to pay Rs.6.84 crores to BVCL
with interest @ 8% per annum from 06.08.2013 till 13.06.2018
and the said award has been challenged by SVFPL before the
learned District Judge, Barasat taking recourse to section 34 of
the Arbitration and Conciliation Act, 1996 which is subjudiced. He
argued that if SVFPL fails, the amount with interest would go to
Rose Valley and if SVFPL becomes successful, then the award
gets set aside. It is contended that merely because the arbitral
award amount of Rs.6.84 crores plus interest which comes to
Rs.9.98 crores was not paid by SVFPL to BVCL since the
impugned award is under challenge before the proper forum, it
cannot be said that the non-refund of balance amount
24
constitutes any criminal offence. According to Mr. Tripathy, the
allegations levelled against the petitioner and SVFPL relating to
cheating, misappropriation and conspiracy have been
adjudicated conclusively by the Hon'ble Calcutta High Court and
by the Hon'ble Supreme Court and submission of charge sheet
against the petitioner is contemptuous on the face of the orders
passed by both the Courts. It is contended that the investigating
agency was not fair and impartial and it indirectly tried to defend
BVCL what BVCL could not achieve directly and merely because
the price of the painting was rupees fifteen lakhs which was paid
by way of a cheque and duly reflected in the books of accounts
of SVFPL, it cannot be said that the petitioner has committed any
criminal offence. It is strenuously argued that the petitioner had
neither collected any money from the public either himself nor as
an agent of Rose Valley and he had no concern with Rose Valley
as he and the company that he formed are independent entities
engaged in altogether different business activities. The petitioner
had not assured the public to refund money with higher interest.
Therefore, the accusation levelled by the C.B.I. against the
petitioner that he had cheated the public by not refunding the
public money is fallacious and lacks commonsense. A mere
meeting of the petitioner with accused Gautam Kundu for
25
commercial purpose cannot be termed as criminal conspiracy as
desperately sought to be made out by C.B.I. There was no illegal
act agreed to be committed. So far as the offence under section
420 of the Indian Penal Code, the petitioner has neither made
any representation to the public nor any demand or deception.
He was under no legal obligation to refund Rs.6.84 crores with
interest to the public. Thus charge of cheating fails and
consequently the criminal conspiracy fails. The business carried
out by the petitioner was neither illegal nor forbidden by law and
the agreement was also lawful. Once the agreement is
recognised as a legally valid document, the non-refund of
amount as alleged has to be dealt with in accordance with the
said agreement which is basically civil in nature. The learned
counsel further contended that the finding of the investigating
agency that the petitioner was aware of the illegal activities of
Rose Valley is based on no material. SVFPL's agreement was
with BVCL, an independent legal entity, duly incorporated under
the provisions of the Companies Act, 1956 that suffered no
stigma from any quarters then and even till date. As it was
authorised by Government of India to broadcast, SVFPL as a
business enterprise, entered into the transaction, strictly as per
its MOA noted in para 16.6 of the charge sheet. BVCL suffered no
26
restraint order from any quarter and it was legally entitled to
have its business with any entity regardless of whether accused
Gautam Kundu happened to be its chairman. The commercial
transaction of SVFPL was with BVCL by way of an agreement and
it was not expected on the part of the petitioner to enquire in
detail as to from which source the money came to BVCL or to
verify the status of BVCL. It is contended that the petitioner and
his company were in film business since 1995 and Rose Valley
came at a later point of time and there was no occasion on the
part of the petitioner to know that the money which was received
by SVFPL by virtue of a valid agreement from BVCL had flown
from Rose Valley. It is further contended that in pursuance of the
notices under sections 160 and 91 of Cr.P.C., the petitioner
appeared before the investigating agency on 29.08.2018,
27.11.2018 and 04.12.2018 and produced all the relevant
documents including judgment, order and award and the arrest
of the petitioner was illegal, capricious, unjustified and reflects
abuse of power. Learned counsel emphasised that it was not a
case of money trailing which means money parked unlawfully
and whose identity is undisclosed rather it is a case of valid
contract between the two parties. He argued that C.B.I. is now
stated to be probing the role of Shri Rajiv Kumar, I.P.S., who is
27
alleged to have destroyed evidence as SIT chief while looking
into chit fund scam. The said Rajiv Kumar is now armed with an
order of anticipatory bail granted by Hon'ble Calcutta High Court.
He argued that 'Jayo He' is an annual charitable event hosted by
Kolkata police in collaboration with W.B. Government. Star TV
had purchased the rights of the event and petitioner's company
was engaged by Star TV to produce the programme. According
to the learned counsel, there is no chance of absconding of the
petitioner or tampering with the evidence and the case is under
investigation since 2014 and four charge sheets have already
been submitted so far including the last one against the
petitioner and there is nothing left for further investigation so far
as the petitioner is concerned. Accused persons who were
M.D./Director of Chit Fund Companies have been released on bail
either by this Court or by Hon'ble Supreme Court. Investigation
is complete and C.B.I. has laid no material that petitioner would
not join the trial as and when it takes place. The petitioner is
suffering from different ailments and he has already suffered
brain strokes twice for which he was hospitalized at S.C.B.
Medical College & Hospital, Cuttack and AIIMS Hospital,
Bhubaneswar and therefore, the bail application of the petitioner
may be favourably considered. He placed reliance in the decision
28
of the Hon'ble Supreme Court in the cases of Shri P.
Chidambaram -Vrs.- Central Bureau of Investigation in
Criminal Appeal No. 1603 of 2019 delivered on 22.10.2019
and P. Chidambaram -Vrs.- Directorate of Enforcement
delivered on 04.12.2019.
Mr. Kali Charan Mishra, learned Special Public
Prosecutor for C.B.I. produced the case records and submitted
that though in the first three charge sheets, there was nothing
against the petitioner but in the fourth charge sheet, it is clearly
mentioned as to how the petitioner being a Director of SVFPL
entered into criminal conspiracy with accused Gautam Kundu,
Chairman of Rose Valley and others to misappropriate the public
fund illegally collected by Rose Valley in the garb of an
agreement for telecast right of Bengali feature films to the BVCL.
The petitioner was having knowledge about the illegal chit fund
business activities of Rose Valley Group and its Chairman
accused Gautam Kundu and in spite of that, he held meetings
with him secretly and entered into the business alliance with
such Group as a result of which after execution of an agreement,
ill-gotten money was diverted from BVCL to SVFPL in the guise
of commercial ties. He fairly submitted that even though the
petitioner was not holding any post in the Rose Valley Group but
29
since the Hon'ble Supreme Court has directed to investigate the
money trailing aspect, during investigation of the case, it came
to light that there has been money trailing from Rose Valley to
BVCL and then from BVCL to SVFPL and the public money
collected by Rose Valley illegally was utilised in an illegal way for
the sake of production of films to be telecasted in 'Rupashi
Bangla' channel and such telecast had also an illegal purpose to
promote chit fund business activities of Rose Valley Group. It is
argued that the role played by the petitioner in flourishing the
business activities of Rose Valley cannot be said in any way
minimal in nature rather by such telecast of films in the 'Rupashi
Bangla' channel and the advertisements of Rose Valley shown
during the telecast, allured the investors to make huge
investment that increased the collection of deposits from general
public which was the real purpose behind the telecast. He
submitted that from the record, it is evident that the total
collection of Rose Valley Group since beginning till 2010-11 was
Rs.5357,92,82,699/- only but during the year 2011-12, the total
collection raised to Rs.3322,67,60,290/- in a single year and
raised further in the year 2012-13. He further contended that
the submission of the learned counsel for the petitioner that
there was no fair investigation by C.B.I. is not correct inasmuch
30
as while submitting the fourth charge sheet, it is clearly
mentioned that prosecutable evidence against Kranti Kumar,
Satyajit Saha and Mahendra Soni was not found. He further
contended that on the report of accused Gautam Kundu, Baguiati
Police Station of Kolkata had registered a case of cheating
against the petitioner for not supplying all the films as per
agreement even after getting the full payments for the same and
for non-refunding of the money by SVFPL to BVCL. Though other
accused persons of the said case were duly arrested by the
police but the petitioner and his family members (who were the
directors of SVFPL) like his brother and father were not arrested
by police which indicates the influence of the petitioner over local
police. The police filed charge sheet against the petitioner and
others in the said case without bringing anything regarding the
criminality aspects like cheating and misappropriation of the ill-
gotten fund of Rose Valley for which the petitioner succeeded
before the Hon'ble Calcutta High Court and Hon'ble Supreme
Court of India in projecting the said case as a civil matter. He
submitted that the investigation in that case was in a different
context and not related to the source of money of BVCL which
led to the business activities between the parties and an award
has been passed against SVFPL in an arbitration proceeding
31
which is also under challenge before the appropriate forum. It is
submitted that further investigation is continuing in respect of
the charge sheeted accused persons, commission/omissions on
the part of the regulatory authorities, larger conspiracy and
money trailing and in fact the investigation is at a crucial stage
and the copies of ledger for the period from the year 2008 to
2011 were not provided by SVFPL till today even after much
persuasion. The petitioner and his company SVFPL were
associated with the arrangements of the annual programme of
Kolkata Police named 'Jayo He' which was sponsored by Star TV
as revealed from the statement of Shri Rajesh Bajaj, Vice
President of Star TV. Investigation regarding 'Jayo He' cultural
programme for Kolkata Police Family Welfare Centre arranged by
the petitioner is under investigation. This is quite significant,
since the investigation revealed so far that the petitioner was
having influence over the Kolkata Police/West Bengal Police and
high officers/politicians of the State of West Bengal. Similarly,
SVFPL has not provided the details of payment with supporting
documents in respect of organization of the aforesaid
programme 'Jayo He' for which it affected the smooth
investigation. The Call Data Records of the petitioner established
that he had called Chief Minister's office and Commissioner of
32
Police, Kolkata number of times during the period from
01.01.2018 to 29.01.2019. Even on the day of his arrest, the
petitioner used his contacts with high level personalities of West
Bengal as a result of which Kasba Police Station Officers visited
the office of the petitioner and unduly intervened in the job of
the C.B.I. team which had reached there. The statement of
Satyajit Saha recorded under section 161 of Cr.P.C. was placed
with regard to seeking help of the petitioner to promote business
of accused Gautam Kundu and to extend the help of State
administration including police to the Rose Valley Group. It is
further contended that the employees association of Tara TV,
owned by Sardha Group had filed a petition before the Hon'ble
Calcutta High Court with the intention of running the said
channel which was on the verge of collapse due to Sardha scam.
The State Government of West Bengal had stated before the
Hon'ble Court that they would support the survival of Tara TV. As
per the direction of the Hon'ble Calcutta High Court, the name of
the petitioner was proposed by the Government of West Bengal
as one of the members of the Committee to be constituted to
supervise the functioning of the Tara TV since the petitioner had
a close contact with political party in power of the State and also
with local administration including State police. While concluding
33
the argument, it is submitted by Mr. Mishra that whenever the
petitioner requiring any medical treatment, the same was
provided to him in Specialised Government Hospitals and there is
no negligence on the part of the jail authorities in that respect
and therefore, the ailment of the petitioner cannot be a ground
to grant him bail. He placed reliance in the cases of
Nimmagadda Prasad -Vrs.- C.B.I. reported in (2013) 55
Orissa Criminal Reports (SC) 833, C.B.I. -Vrs.- V. Vijay Sai
Reddy reported in (2013) 7 Supreme Court Cases 452,
Ram Chandra Hansdah -Vrs.- Republic of India reported in
(2015) 62 Orissa Criminal Reports 219, K.K. Jerath -Vrs.-
Union Territory, Chandigarh reported in (1998) 4 Supreme
Court Cases 80, State of Madhya Pradesh -Vrs.- Kajad
reported in (2001) 21 Orissa Criminal Reports (SC) 507,
State of Maharashtra -Vrs.- Captain Buddhikota Subha Rao
reported in A.I.R. 1989 S.C. 2292 and C.B.I. -Vrs.-
Ramendu Chattopadhyay passed by the Hon'ble Supreme
Court in Criminal Appeal No.1711 of 2019 decided on
19.11.2019.
6. There is no dispute that the case relates to
commission of economic offences which involves huge loss of
investors' money invested in the companies of Rose Valley. Large
34
number of innocent depositors invested their hard-earned money
with the hope of getting higher rates of interest which is stated
to have been misappropriated. In the case of Y.S. Jagan Mohan
Reddy -Vrs.- C.B.I. reported in (2013) 55 Orissa Criminal
Report (SC) 825, it is held as follows:-
"15. Economic offences constitute a class apart
and need to be visited with a different approach
in the matter of bail. The economic offences
having deep rooted conspiracies and involving
huge loss of public funds need to be viewed
seriously and considered as grave offences
affecting the economy of the country as a whole
and thereby posing serious threat to the
financial health of the country.
16. While granting bail, the Court has to keep in
mind the nature of accusations, the nature of
evidence in support thereof, the severity of the
punishment which conviction will entail, the
character of the accused, circumstances which
are peculiar to the accused, reasonable
possibility of securing the presence of the
accused at the trial, reasonable apprehension of
the witnesses being tampered with, the larger
interests of public/State and other similar
considerations."
35
In case of State of Gujarat -Vrs.- Mohan Lal
Jitamal Torwal reported in A.I.R. 1987 S.C. 1321, it is held
as follows:-
"5.........The entire community is aggrieved if the
economic offenders who ruin the economy of the
State are not brought to book. A murder may be
committed in the heat of moment upon passions
being aroused. An economic offence is
committed with cool calculation and deliberate
design with an eye on personal profit regardless
of the consequence to the Community. A
disregard for the interest of the community can
be manifested only at the cost of forfeiting the
trust and faith of the Community in the system
to administer justice in an even handed manner
without fear of criticism from the quarters which
view white colour crimes with a permissive eye
unmindful of the damage done to the National
Economy and National Interest".
In the case of Nimmagadda Prasad (supra), it was
held that economic offences have serious repercussions on the
development of the country as a whole. Such offences constitute
a class apart and need to be visited with a different approach in
the matter of bail. The economic offence having deep rooted
conspiracies and involving huge loss of public funds needs to be
viewed seriously and considered as a grave offence affecting the
36
economy of the country as a whole and thereby posing serious
threat to the financial health of the country.
In the case of Ram Chandra Hansdah (supra), it is
held that economic offences are considered grave offences as it
affects the economy of the country as a whole and such offences
having deep rooted conspiracy and involving huge loss of public
fund are to be viewed seriously. Economic offence is committed
with cool calculation and deliberate design solely with an eye on
personal profit regardless of the consequence to the community.
In such type of offences, while granting bail, the Court has to
keep in mind, inter alia, the larger interest of public and State.
The nature and seriousness of an economic offence and its
impact on the society are always important considerations in
such a case and those aspects must squarely be dealt with by
the Court while passing an order on bail applications.
In the case of Ramendu Chattopadhyay (supra), it
is held as follows:-
"8. This Court is conscious of the need to view
such economic offences having a deep-rooted
conspiracy and involving a huge loss of
investors' money seriously. Though further
investigation is going on, as of now, the
investigation discloses that the Respondent
37
played a key role in the promotion of the chit
fund scam described supra, thereby cheating a
large number of innocent depositors and
misappropriating their hard-earned money.
9......Moreover, it is relevant to note that the
investigating agency has not yet assessed the
exact total amount invested by the people of
Orissa in the accused company, so as to find out
the specific liability of the company in that
regard. However, it is argued by both the
Counsel that the amount may be about Rs. 350
Crores. Be that as it may, having regard to the
material on record, and since a huge amount of
money belonging to investors has been siphoned
off, as well as for the aforesaid reasons, the
High Court, in our considered opinion, should not
have released the Respondent on bail."
7. The case in hand not only involves public interest at
large as they are the real sufferers but also there is accusation of
criminal conspiracy between the accused Gautam Kundu and the
petitioner to expand the chit fund business activities of Rose
Valley and the petitioner has played his part whereby the illegal
object of huge investment by innocent people was fulfilled. In
the case of V. Vijay Sai Reddy (supra) while considering a case
of grave economic offence, Hon'ble Supreme Court held that if
there is specific allegation by the prosecution that an accused in
38
question was a party to the criminal conspiracy, neither the
Special Court nor the High Court would be justified in granting
bail to the said person.
In the case of K.K. Jerath (supra), it is held that in
considering a petition for grant of bail, necessarily if public
interest requires detention of citizen in custody for purposes of
investigation could be considered and rejected as otherwise
there could be hurdles in the investigation even resulting in
tampering of evidence.
8. This is the second or successive bail application of
the petitioner. The change in the circumstance is stated to be
submission of charge sheet within ten days of rejection of the
first bail application. The said charge sheet is not the final one
but it appears that further investigation on some important
aspect is still continuing. Filing of the charge sheet may be
treated as a changed circumstance enabling the accused to file a
fresh bail application after rejection of his previous one under
section 439 of the Cr.P.C. but unless the change is a substantial
one, the Court cannot take a different view particularly when the
accusation is serious one and further investigation relating to the
role played by the accused is still pending and more over public
interest is involved in the case. In the case of Kajad (supra),
39
Hon'ble Supreme Court held that successive bail applications are
permissible under the changed circumstances but without the
change in the circumstances, the second application would be
deemed to be seeking review of the earlier judgment which is
not permissible under the criminal law. In the case of Captain
Buddhikota Subha Rao (supra), it is that once the bail
application is rejected, there is no question of granting similar
prayer. That is virtually overruling the earlier decision without
there being a change in the fact-situation and the change means
a substantial one which has a direct impact on the earlier
decision and not merely cosmetic changes which are of little or
no consequence.
9. Keeping in view the aforesaid settled principle of law
and adverting to the contentions raised by the learned counsel
for the respective parties and on a careful scrutiny of the case
records and the documents submitted by the parties, the
following things emerge:
(i) The investigation of the case commenced in
the year 2014 after the order dated 09.05.2014 was
passed by the Hon'ble Supreme Court in W.P. (Civil)
No.401 of 2013 and W.P. (Civil) No.413 of 2013.
First charge sheet was submitted on 06.01.2016,
40
second charge sheet was submitted on 26.04.2017
and third charge sheet was submitted on 15.05.2018
but till submission of third charge sheet, there was
no accusation against the petitioner.
(ii) SEBI in its order dated 24.12.2002, in
exercise of its powers conferred under section 11B
read with section 4(3) of the Securities and Exchange
Board of India Act, 1992 (hereafter 'SEBI Act') and
regulation 65 of SEBI (Collective Investment
Schemes) Regulations, 1999 (hereafter 'CIS
Regulations'), directed M/s. Rose Valley Resorts and
Plantations Ltd., Kolkata to refund the money
collected under the collective investment schemes
with returns which was due to the investors as per
the terms of the offer within a period of one month
from the date of order, failing which consequential
actions, inter alia, like initiation of prosecution
proceedings under section 24 of the SEBI Act would
be taken against the company.
(iii) SEBI in exercise of its powers conferred under
section 11B of the SEBI Act and regulation 65 of CIS
Regulations in its order dated 03.01.2011 directed
41
M/s. Rose Valley Real Estates and Constructions Ltd.
not to collect any money from the investors or to
launch any scheme, not to dispose of any of the
properties or delineate assets of the Ashirbad
Scheme and not to divert any fund raised from public
at large kept in bank account and/or at the custody
of the company.
(iv) SEBI published an advertisement in the Times
of India on dated 19.05.2013 in the public interest by
cautioning the general public that none of the
companies of Rose Valley Group had obtained a
certificate of registration from SEBI to run a
collective investment scheme to raise money from
the investors.
(v) The whole time Member of SEBI in exercise of
the powers conferred under sections 11(1), 11B and
11(4) of the SEBI Act read with regulation 65 of CIS
Regulations in the order dated 10.07.2013 directed
M/s. Rose Valley Hotels and Entertainments Ltd. and
its Directors not to collect any more money from the
investors under the existing schemes, not to launch
any new schemes, not to dispose of any of the
42
properties or alienate any of the assets of the
schemes and not to divert any funds raised from
public which were kept in bank accounts and/or in
the custody of the company.
(vi) A film assignment agreement was executed
between SVFPL as assignor and BVCL, a sister
concern of Rose Valley as assignee on 07.04.2010,
by virtue of which the assignor assigned the sole and
exclusive satellite television broadcasting rights of
seventy feature films to the assignee to be
broadcasted through the satellite channel of BVCL
namely 'Rupashi Bangla' and the total consideration
of the assigned films was Rs.25 crores.
(vii) The petitioner being a Director of SVFPL
stated to have knowledge about the illegal chit fund
business activities of Rose Valley Group and in spite
of that he held secret meetings with accused Gautam
Kundu and entered into criminal conspiracy with him
and others to misappropriate the public fund illegally
collected by Rose Valley in the garb of such
agreement for telecast right of Bengali feature films
to BVCL.
43
(viii) There is allegation of money trailing from
Rose Valley to BVCL and then from BVCL to SVFPL
and the public money collected illegally was utilised
in an illegal way for the sake of production of films to
be telecasted in 'Rupashi Bangla' channel for
promoting chit fund business activities of Rose Valley
Group.
(ix) Dispute arose between BVCL and SVFPL when
some of the films supplied to BVCL by SVFPL were
found to be not technically feasible for telecast which
were not replaced by SVFPL and SVFPL also did not
refund the money to BVCL for which BVCL launched
criminal prosecution against the petitioner and other
Directors of SVFPL at Baguiati police station, in which
after completion of investigation, charge sheet was
submitted. The investigation in that case was in a
different context and not related to the source of
money of BVCL which led to the business activities
between the parties.
(x) Submission of charge sheet was challenged by
the petitioner and others before Calcutta High Court
in CRR No.2927 of 2012 and CRAN No.1887 of 2013
44
and the Hon'ble Court quashed the charge sheet as
per judgment and order dated 15.01.2014. BVCL
challenged the order of the Calcutta High Court
before the Hon'ble Supreme Court which was
dismissed as per order dated 30.11.2015.
(xi) A retired Judge of the Hon'ble Supreme Court
adjudicated the dispute between the parties in an
arbitration Proceeding and passed the award on
dated 13.06.2018 and directed SVFPL to pay Rs.6.84
crores to BVCL with interest @ 8% per annum from
06.08.2013 till 13.06.2018.
(xii) The total outstanding amount to be paid by
SVFPL to BVCL as per the award passed in the
arbitration proceeding is Rs.9.98 crores. The arbitral
award has been challenged by SVFPL before the
learned District Judge, Barasat taking recourse to
section 34 of the Arbitration and Conciliation Act,
1996 which is subjudiced.
(xiii) The petitioner through his company SVFPL
purchased paintings drawn by a powerful political
leader of West Bengal from an exhibition organized
by 'Jago Bangla' held in Kolkata during the year
45
2011-13 for a declared amount of Rs.15,00,000/-
(rupees fifteen lakhs), which according to the C.B.I.
came from the funds received from BVCL.
(xiv) The petitioner is stated to have close links and
influence over some of high level personalities
including the politicians of the State of West Bengal.
10. It is well settled principle of law that while dealing
with an application for grant of bail, the Court has to keep in
mind the nature of accusation, the nature of evidence in support
thereof, the severity of the punishment which conviction will
entail, the character of the accused, the 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. It has also to be
kept in mind that for the purpose of granting bail, the Legislature
has used the words "reasonable grounds for believing" instead of
"the evidence" which means the Court dealing with the grant of
bail can only satisfy itself as to whether there is a genuine case
against the accused and that the prosecution will be able to
produce prima facie evidence in support of the charge. It is not
46
expected, at this stage, to have the evidence establishing the
guilt of the accused beyond reasonable doubt.
Even though till submission of third charge sheet,
there was no material against the petitioner but thereafter
during course of further investigation, it was found out that the
petitioner was the chief promoter and main director of SVFEPL
and all the decisions of the company were taken by the
petitioner. The petitioner's close link with accused Gautam Kundu
was traced out and it was found that accused Gautam Kundu
being well aware that the petitioner is a top producer of Bengali
film industry known for production of quality films and wielding
considerable clout and influence on the television audience, he
wanted the Bengali films produced by the petitioner to be
telecasted in the channels of BVCL for capturing more and more
audience. The petitioner entered into the business alliance with
the accused Gautam Kundu which was in the nature of criminal
conspiracy to divert the ill-gotten money of Rose Valley in the
guise of commercial ties. Secret meetings were held between
them. Accused Gautam Kundu disclosed before the petitioner
about his actual chit fund business and requested him to
promote his media business by supplying good films produced by
SVFPL which would be utilised for branding and promotion of his
47
chit fund business. The petitioner knowing all the facts regarding
illegal chit fund business of Rose valley and that it was banned
by SEBI in the year 2002, entered into an agreement and other
business alliance with accused Gautam Kundu for films
assignment relating to sole and exclusive satellite television
broadcasting rights in respect of seventy films through channel
'Rupashi Bangla', a channel of BVCL for consideration amount of
twenty five crores. The agreed amount after deducting TDS was
diverted by accused Gautam Kundu in the account of BVCL from
M/s. Rose Valley Real Estate & Constructions Ltd. and then
credited in the account of SVFPL. The petitioner intended to
receive the ill-gotten money in the garb of a genuine business
deal/agreement with accused Gautam Kundu and conspired to
cheat the general public since the amount received by him on
the guise of the business transaction was the public money. One
brochure was designed by using SVF logo and 'Rupashi Bangla'
logo which was shown to the intending advertisers so that they
would subscribe their advertisements during the programme
which would increase the revenue collection and prestige of
BVCL. In the 'Rupashi Bangla', the advertisement of Rose Valley
was shown on a regular basis and in that process, SVFPL helped
BVCL to enhance its revenue generation and also its prestige.
48
The dispute between BVCL and SVFPL, lodging of
prosecution by BVCL against SVFPL and the petitioner, quashing
of the criminal proceeding, passing of award in the arbitration
proceeding and challenge to such award are not very much
relevant in adjudicating the bail application. The crux of the
matter is from which source money came to BVCL that passed to
SVFPL. What was the real purpose behind money trailing to
SVFPL? Why such an agreement was executed? What benefit
Rose Valley achieved due to such agreement? Who were the
sufferers? How the business activities of Rose Valley flourished in
spite of ban order imposed by SEBI? The investigation has
unearthed many vital links between the petitioner with accused
Gautam Kundu and also with other high level personalities and
politicians. Many more important areas of the case are still under
investigation.
11. Coming to the contention raised by the learned
counsel for the petitioner that the investigation is not fair and
impartial, it is not in dispute that a fair, impartial, truthful and
independent investigation is crucial to the preservation of the
Rule of law and in the ultimate analysis to liberty itself. Mere
accusation against the investigating agency is not acceptable.
Learned counsel has failed to bring any specific instances to
49
substantiate any kind of unfairness or impartiality committed by
the investigating agency rather I find that the investigation in
the present case is being conducted responsibly and impartially
by an officer of the rank of Deputy Superintendent of Police,
C.B.I. and that is how while submitting charge sheet against the
petitioner, the investigating agency mentioned that there is no
prosecutable evidence against three persons though initial
accusations were made against them.
The further contention made by the learned counsel
for the petitioner that submission of charge sheet against the
petitioner is contemptuous on the face of the orders passed by
the Hon'ble Calcutta High Court and Hon'ble Supreme Court is
not at all acceptable inasmuch as the investigation in Baguiati
police station case was in a different context and not related to
the source of money of BVCL and money trailing from Rose
Valley to BVCL and then to SVFPL which led to the business
activities between the petitioner and accused Goutam Kundu. It
was held in the said case that the dispute between BVCL and
SVFPL was civil in nature for which the criminal proceeding was
quashed.
On scrutiny of the case records, it is apparent that
there is no material collected till now that the petitioner had
50
either collected any money from the public himself or as an
agent of Rose Valley or had assured the public to refund money
with higher interest but the contention of the learned counsel for
the petitioner that the petitioner had no concern with Rose Valley
is very difficult to be accepted particularly in view of the
statements of witnesses that a meeting was held between the
petitioner and accused Gautam Kundu in the Hotel Taj where
discussion took place to promote the chit fund business of Rose
Valley and the petitioner was requested to promote the media
business of BVCL by supplying good films produced by SVFPL
which would be utilised for promotion of chit fund business of
Rose Valley. The petitioner's company SVFPL then entered into
an agreement to produce Bengali feature films for BVCL which
were telecasted in 'Rupashi Bangla' Channel and commercial
advertisement of Rose Valley shown during telecast boosted the
business of Rose Valley which led to huge investment made by
the public.
Contention was raised by the learned counsel for the
petitioner that prima facie ingredients for commission of offence
under section 420 of the Indian Penal Code against the petitioner
is not made out as he has neither made any representation to
the public nor any demand or deception and he has also no legal
51
obligation to refund any money to the public. It cannot be lost
sight of the fact the deception by Rose Valley was continuing
when the petitioner joined with accused Gautam Kundu and the
plan was chalked out secretly and the petitioner performed his
part successfully and thereby the investment in Rose Valley
increased substantially and the illegal object was achieved. It
was not a sheer commercial transaction between BVCL and
SVFPL but the crafty investigation raised the curtains to show
what the reality behind such transaction was. Even though this
Court is not supposed to adjudicate in this bail application
whether the object or consideration of the agreement between
BVCL and SVFPL was unlawful and opposed to public policy and
therefore void but certainly the materials collected during
investigation to show the consequence of such agreement and
after effects of telecasting of Bengali feature films produced by
SVFPL in the satellite channel of BVCL namely 'Rupashi Bangla'
and publicity of Rose Valley during the telecast, cannot be
ignored.
The further contention raised by the learned counsel
for the petitioner that there was no occasion on the part of the
petitioner to know that the money which was received by SVFPL
by virtue of a valid agreement from BVCL had flown from Rose
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Valley cannot be accepted at this stage. Cat closes its eyes while
drinking milk and thinks nobody is watching it. In view of the
communication made between the petitioner and accused
Gautam Kundu before execution of agreement which is stated by
the witnesses, such ignorance plea is not acceptable.
In the case of Shri P. Chidambaram (supra) cited
by the learned counsel for the petitioner, it is held that there is
no hard and fast rule regarding grant or refusal to grant bail.
Each case has to be considered on its facts and circumstances
and on its own merits. The discretion of the Court has to be
exercised judiciously and not in an arbitrary manner. In the case
of P. Chidambaram (supra) cited by the learned counsel for the
petitioner, it is held that even if the allegation is one of grave
economic offence, it is not the rule that bail should be denied in
every case since there is no such bar created in the relevant
enactment passed by the legislature nor does the bail
jurisprudence provides so. It is further held that ultimately the
consideration will have to be on case to case basis on the facts
involved therein and securing the presence of the accused to
stand trial.
12. Physical ailment of the petitioner is taken as a
ground for his release on bail. It appears that the petitioner was
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shifted to AIIMS, Bhubaneswar and S.C.B. Medical College &
Hospital, Cuttack whenever there was necessity. The treatment
papers were also produced by the parties. In absence of any
negligence on the part of the jail authorities in providing proper
treatment to the petitioner, bail cannot be granted on that
ground. It is expected that such facility will also be provided to
the petitioner in the Specialised Government Hospital in future at
the time of need.
13. Some of the co-accused persons have been released
on bail and the learned counsel for the petitioner produced the
copies of bail orders but when the petitioner has played a key
role in ensuring huge investment of public money in Rose Valley
and his part is still under investigation, he cannot claim parity
with others.
14. Considering the facts and circumstances of the case,
at this juncture, when the petitioner's key role in the commission
of economic offence by Rose Valley is prima facie apparent, there
is deep rooted criminal conspiracy to cheat the public with an
eye on personal profit, large number of innocent depositors have
been duped of their hard-earned money, there was cool
calculation and deliberate design by the accused persons to
flourish the illegal chit fund business activities of Rose Valley and
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further investigation is at a crucial stage and the release of the
petitioner who is a very influential person having close contacts
with high level personalities and politicians of West Bengal is
likely hamper such investigation, in the larger interest of public
and State, I am not inclined to release the petitioner on bail.
15. Rose Valley's lucrative offer and mirage of huge
outturn on investments as projected successfully during telecast
of Bengali feature films produced by the petitioner's company
in satellite channel 'Rupashi Bangla" mesmerised the gullible
investors and they could not realise that all that glitters is not
gold. For collecting pearl of high interest, they drowned
themselves in the sea of treachery. Before they could wake up
from their deep slumber, they had already been trapped and
squeezed and were left only with tears in their eyes which never
dried up. The incomprehensible pain and sufferings of those
hundreds and thousands of investors are apparent and nobody
knows when and how they would get back their money. Business
tycoons have played the game with people's money very
cunningly with active support of some of the high level
politicians, police officials and film personalities. It was bed of
roses for them but bed of thorns for the investors.
55
In view of the foregoing discussions, the bail
application of the petitioner sans merit and hence stands
rejected.
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.
Urgent certified copy of this order be granted on
proper application.
...............................
S. K. Sahoo, J.
Orissa High Court, Cuttack The 2nd January 2020/Pravakar/Sisir/RKM/Sukanta