Orissa High Court
BLAPL/9639/2019 on 23 March, 2021
Author: P. Patnaik
Bench: P. Patnaik
BLAPL No.9639 of 2019
O R D E R
18. 23.03.2021 Heard Mr. Debashis Panda, learned counsel for the petitioner and Mr. A.K. Nayak, learned counsel for the OPID.
This is an application under Section 439 of the Code of Criminal Procedure filed by the present petitioner, who has been charge-sheeted in C.T. Case No.03 of 2019 arising out of EOW Bhubanswar P.S. Case No.09 of 2019 pending in the court of learned Designated Court OPID, Cuttack for commission of offences under Sections 420, 467, 471, 406, 120-B of the Indian Penal Code read with Section 6 of the OPID Act. His bail application was rejected by the learned Designated Court OPID, Cuttack by its order dated 02.11.2019.
The prosecution case, in brief, is that the petitioner, who was the Secretary of the Andhra Bank Employees' Housing Cooperative Society launched a plotting scheme at village Madanpur and insisted the employees of the Andhra Bank and other persons to have a residential litigation free plot. The informant booked a plot in the said plotting scheme project, namely, Hindustan Valley at Madanpur including others through cheques and Bank Drafts. It is alleged that after receiving huge amounts from the investors, the petitioner engaged Hindustan Builder to provide five acres of land in that area and in that regard, a MoU was signed and Sale Deeds were executed in the name of the customers of the Project on the direction of the petitioner but unfortunately, it is alleged that the petitioner failed to deliver possession of plots to the investors and did not take any steps to deliver possession of 2 the land to customers. In spite of several approaches made by the informant along with other investors for return of their money, when the petitioner avoided them on different pleas, they understood that the petitioner along with other co- accused persons by collecting huge amounts cheated them and misappropriated their hard earned money.
Learned counsel for the petitioner submitted that the petitioner is no way connected with the allegation made by the informant and this case has been foisted against the petitioner falsely due to some dispute between the petitioner and the informant relating to possession of plot in a corner area. It is his submission that the money collected from the investors has been given to the builders, which is evident from the Bank statement of the Society Account and the petitioner has not misappropriated anything as alleged in the F.I.R. by the informant. He also submitted that from the statements of the witnesses recorded by the police during investigation, it would be seen that no where they have stated that the petitioner has misappropriated any amount or forged any document of the investors nor he has cheated by inducing them to purchase the land. After completion of investigation charge-sheet has been submitted against the petitioner on 21.10.2019 under the aforesaid offences. There is no material on record that the petitioner cheated the customers. The allegation that the petitioner has received Rs.1,00,000/-(Rupees one lakh) from each of the Sale Deed is found to be false since no scrap of papers has been seized by the police during investigation.
3From the statement of witnesses, it clearly transpires that the amount was not misutilized by the petitioner for his personal gain with an intention to cheat the customers. It is also seen from the statements of the witnesses that the petitioner has not collected a single pie in his name with an intention to cheat the customers. The materials collected by the police during investigation do not implicate the petitioner for committing the offence as alleged and also no materials so far collected to make out a prima facie case against the petitioner in the said offences. There is also no evidence or materials collected during investigation to show that the petitioner has misappropriated the customer's money or cheated them or forged any of the documents for his personal gain. With regard to misappropriation of the money collected from the investors, it is the submission of learned counsel for the petitioner that when the builder delayed the matter on taking different pleas for handing over possession of the plot, the petitioner made correspondence with the DCP, Bhubaneswar for taking action against the builders and also a complain case has been instituted in the court of the learned S.D.J.M., Bhubaneswar which was later on registered as F.I.R. in the Air Field P.S. The petitioner also approached this Court by filing a CRLMP for taking prompt action against the builders for inaction of the builder in providing land and execution of Sale Deed and this Court in the said CRLMP directed the DCP, Bhubaneswar to direct the IIC, Air Field P.S. to investigate the matter expeditiously against the builder which indicates the 4 interestedness of the petitioner in favour of the investors for getting a residential plot under the aforesaid project. With regard to health condition of the petitioner, it is submitted by learned counsel for the petitioner that the petitioner is suffering inside the jail and since no adequate treatment is available in the jail and the authority did not take any interest to take him to S.C.B. Medical College and Hospital for his treatment. Hence, to get better treatment from specialized physician, on humanitarian ground, his prayer for bail deserves sympathetic consideration.
Learned counsel for the petitioner vehemently submitted that money collected has already been deposited in the society's account and not a single penny has come to the coffer of the petitioner. In support of his contention, learned counsel for the petitioner has referred a case reported in (2012) 1 SCC 40 in the case of Sanjay Chandra vrs. C.B.I. On the other hand, learned counsel for the OPID vehemently objected the prayer for bail on the ground that the petitioner along with the builders cheated innocent customers and misappropriated huge money and since charge-sheet has not yet been submitted, it is not the appropriate time to release the petitioner on bail when some important materials are yet to be collected. It is also submitted by learned counsel for the OPID that since the petitioner has misappropriated the hard earned money of the customers, his prayer for bail deserves no sympathetic consideration. Learned counsel for the OPID further submitted that considering the involvement 5 of the petitioner in such type of economic offences where public interest largely involved and when such type of offences where public interest largely involved and when such type of offences are rampant no-a-days no leniency can be shown in favour of the petitioner so as to enlarge him on bail.
Learned counsel for the OPID has further submitted that the nature and seriousness of economic offence and its impact on the society are always important consideration in such a case and those aspects must squarely be dealt with while passing an order on bail application. In this respect, learned counsel for the OPID has referred to:-
1. (2013) 55 OCR (SC) 825 - Y.S. Jagan Mohan Reddy vrs. C.B.I.
2. AIR 1987 SC 1321 - State of Gujarat vrs.
Mohan Lal Jitamalji Agrawal.
3. (2013) 7 SCC 466 - Nimmadadda Prasad vrs.
C.B.I. In view of the above submissions, learned counsel for the OPID opposed the prayer for bail of the petitioner.
The allegation against the petitioner pertains to commission of economic offences, which are considered to be grave offences and are to be viewed seriously. Such offence use to have deep-rooted conspiracy and it involves huge loss of public funds. It is committed with cool calculation and deliberate design solely with an eye on personal profit regardless of the consequences to the community. In such type of offences, while granting bail, the Court has to keeping 6 in mind inter alia, the larger interest of public and State. The nature and seriousness of an economic offences and its impact on the society are always important consideration in such a case and those aspects must squarely dealt with while passing an order on bail application.
The decisions in the following cases have dealt with the economic offence Y.S. Jagan Mohan Reddy vrs. C.B.I. reported in (2013) 55 OCR (SC) 825, State of Gujarat vrs. Mohan Lal Jitamalji Agrawal reported in AIR 1987 SC 1321 and Nimmadadda Prasad vrs. C.B.I. reported in (2013) 7 SCC 466.
In the case of Rajesh Ranjan Yadav vrs. C.B.I., reported in (2007) 36 Orissa Criminal Reports (SC) 183, it is held that it is true that the Article 21 of the Constitution of India is of great importance because it enshrines in fundamental rights to individual liberty, but at the same time a balance has to be struck between the right to individual liberty and the interest of society. No right can be absolute and reasonable restriction can be placed on them. while it is true that one of the considerations in deciding is whether to grant bail to an accused or not is whether he has been in jail for long time, the Court has also to take into consideration other facts and circumstances, such as the interest of the society. In the case of Ash Mohammad vrs. Shiv Raj Singh, reported in (2012) 9 SCC 446, it held as follows:-
"17. We are absolutely conscious that liberty of a person should not be lightly dealt with, for 7 deprivation of liberty of a person has immense impact on the mind of a person. Incarceration creates a concavity in the personality of an individual. Sometimes it causes a sense of vacuum. Needless to emphasize, the sancrosanctity of liberty is paramount in a civilized society. However, in a democratic body polity which is wedded to Rule of Law an individual is expected to grow within the social restrictions sanctioned by law. The individual liberty is restricted by larger social interest and its deprivation must have due sanction of law. In an orderly society an individual is expected to live with dignity having respect for law and also giving due respect to others' right. It is a well accepted principle that the concept of liberty is not in the realm of absolutism but is a restricted one. The cry of the collective for justice, its desire for peace and harmony and its necessity for security cannot be allowed to be trivialized. The life of an individual living in a society governed by Rule of Law has to be regulated and such Regulations which are the source in law subserve the social balance and function as a significant instrument for protection of human rights and security of the collective. It is because fundamentally laws are made for their obedience 8 so that every member of the society lives peacefully in a society to achieve his individual as well as social interest. That is why Edmond Burke while discussing about liberty opined, "It is regulated freedom".
18. It is also to be kept in mind that individual liberty cannot be accentuated to such an extent or elevated to such a high pedestal which would bring in anarchy or disorder in the society. The prospect of greater justice requires that law and order should prevail in a civilized milieu. True it is, there can be no arithmetical formula for fixing the parameters in precise exactitude but the adjudication should express not only application of mind but also exercise of jurisdiction on accepted and established norms. Law and order in a society protect the established precepts and see to it that contagious crimes do not become epidemic. In an organized society, the concept of liberty basically requires citizens to be responsible and not to disturb the tranquility and safety which every well-meaning person desires. Not for thing J. Oerter stated:
"Personal liberty is the right to act without interference within the limits of the law."
19. Thus analyzed, it is clear that though liberty is a greatly cherished value in the life of 9 an individual, it is a controlled and restricted one and no element in the society can act in a manner by consequence of which the life or liberty of others is jeopardized, for the rational collective does not countenance and anti-social or anti-collective act.
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30. We may usefully state that when the citizens are scared to lead a peaceful life and this kind of offences usher in an impediment in establishment of orderly society, the duty of the Court becomes more pronounced and the burden is heavy. There should have been proper analysis of the criminal antecedents. Needless to say, imposition of conditions is subsequent to the order admitting an accused to bail. The question should be posed whether the accused deserves to be enlarged on bail or not and only thereafter issue of imposing conditions would arise. We do not deny for a moment that period of custody is a relevant factor but simultaneously the totality of circumstances and the criminal antecedents are also to be weighed. They are to be weighed in the scale of collective cry and desire. The societal concern has to be kept in view in juxtaposition of individual liberty. Regard being had to the said parameter, we are inclined to 10 think that the social concern in the case at hand deserves to be given priority over lifting the restriction of liberty of the accused."
The above observation of the Hon'ble Apex Court also find due reflection in the case of Ram Narayan Popply vrs. CBI; (2003) 3 SCC 641 wherein it is further observed as follows:-
"Unfortunately in the last few years, the country has seen an alarming rise in white-cotton crimes which has affected the fiber of the country's economic structure. These cases are nothing but private gain at the cost of the public and lead to economic disaster."
Coming to the case in hand, it appears that the allegation leveled against the petitioner has got serious economic ramification. As per allegation, the petitioner has cheated the investors by receiving huge money and in connivance with the Secretary of the society has committed crime for his personal gain. The materials collected that the money has been transferred on various dates. That apart, the some amounts have been transferred from the account of Andhra Bank Housing Co-operative Society to the personal account of the petitioner, which was withdrawn by him. Despite several approaches made by the investors, the petitioner did not pay heed to them rather his conduct shows his connivance with other accused persons. In collecting huge amount of money by executing false deeds with a dishonest 11 intention, petitioner had misappropriated a huge amount of money and the petitioner also failed to give possession of the purchased plots to the investors/depositors. The aforesaid conduct of the petitioner speaks volumes of his complicity in the alleged crime.
Considering the above facts and circumstances of the case, keeping in mind the ratio of the above case laws and taking into account the nature and gravity of offences and its wide ramification, the bail application deserves no merit for consideration at this stage. Accordingly, the bail application stands rejected.
However, in case of any changed circumstances in his favour, the petitioner would be at liberty to move a fresh bail application before the learned trial court which would be considered on its own merit without being influenced by any observations made hereinabove.
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P. Patnaik, J.
R&JB