Prasan Kumar Patra vs State Of Odisha

S.K. Sahoo, J

The petitioner Prasan Kumar Patra has approached this Court for the fourth time seeking for bail under section 439 of Code of Criminal Procedure in connection with E.O.W., Odisha, Bhubaneswar P.S. Case No.17 of 2018 corresponding to C.T. Case No.14 of 2018 pending on the file of Presiding Officer, Designated Court, O.P.I.D. Act, Cuttack for offences punishable under sections 467, 468, 471, 420, 406 read with section 120-B of the Indian Penal Code and section 6 of the Odisha Protection of Interests of Depositors (in Financial Establishments) Act, 2011 (hereafter ‘O.P.I.D. Act’).

On 30.07.2018 one Manoranjan Mishra of Kanan Vihar, Phase-II, P.S.- Chandrasekharpur, Bhubaneswar lodged the first information report before the Superintendent of Police, E.O.W., Odisha, Bhubaneswar alleging therein that during November 2012 after going through the advertisement of M/s. Z-Infra Construction Pvt. Ltd. (hereafter ‘the company’) about availability of plots under Jatani Tahasil near IIT relatively at a lower price in the Pragyan Vihar Project, he contacted the petitioner who was the Managing Director of the company at his office located at IRC Village, Nayapalli to purchase a plot measuring an area of 2400 sq. ft. in the project. The petitioner along with his officials showed the project site to the informant and assured him to give absolute right and title of the land after conversion and making boundary wall around the plot with approachable road to the plot. They also told the informant that the total project area has been purchased by them. The cost of the plot was Rs.3,60,000/- and they charged Rs.35,000/- for conversion of the land and Rs.60,000/- for constructing boundary wall around the plot. The informant paid an amount of Rs.10,000/- (rupees ten thousand only) on 11.08.2012 as booking amount and obtained a receipt from the company. It is the further case of the informant that on 05.11.2012 he paid another sum of Rs.3,50,000/- (rupees three lakh fifty thousand only) and obtained a receipt whereafter the petitioner registered the land on 06.11.2012 in favour of the informant by way of a registered sale deed. The land corresponds to Mouza-Kansapada, P.S.-Jatani, Khata No.76, Plot No.154, Sub Plot Nos.441 and 442, Area-Ac.0.055 dec. out of Ac.0.730 decimals. Thereafter, the informant paid a sum of Rs.95,000/- (rupees ninety five thousand only) on different dates for conversion and boundary wall of the plot. It is the further case of the informant that though the registration of the plot was made in November 2012 but there was no approach road to the said plot and the petitioner and others of his company falsely told the informant that they have right and title over entire Pragyan Vihar Project. They had the knowledge that they were not having right, title over the area and in spite of that they had received the payment from the informant with an intention to deceive him and thus in spite of registration of the land in favour of the informant, the same served no purpose. It is stated that the petitioner and other officers of the company deceived the informant an amount of Rs.4,55,000/- on the basis of false and fabricated documents. It is stated that in spite of repeated approach by the informant to the petitioner and other officials of the company, they did not construct the boundary wall around the plot as promised even though they received the amount since last six years. It is further stated that the petitioner as the Managing Director and others have cheated about five hundred persons and misappropriated an amount of rupees twenty crores. In some cases, registration of a plot has been done but there is no approach road and in some cases, registration has not been made even though payment has been received and in some cases, a particular plot has been sold to number of persons creating problems in mutation of land. The accused persons after misappropriating the amount absconded by closing their office.

On the basis of such first information report, E.O.W., Odisha, Bhubaneswar P.S. Case No.17 of 2018 was registered under sections 420, 406, 467, 468, 471 read with section 120-B of the Indian Penal Code and section 6 of the O.P.I.D. Act against the petitioner and Soumendra Narayan Dalabehera, Chief General Manager and others.

During course of investigation, it was found that the company was registered under the Companies Act by ROC, Odisha, Cuttack on 07.05.2009 having registered office at Plot No.209, Saheed Nagar, Bhubaneswar. One Smt. Rasmita Patra was the Director and the petitioner who is her husband was the Managing Director of the Company. During November 2012, the company made wide publicity about the availability of plots near IIT under Jatani Tahasil in lower price. Being induced by the advertisement of the Company, the informant contacted the petitioner to purchase a plot in the project. The Directors of the Company along with their officials showed the project site to the informant and assured him to give absolute right and title over the land after conversion and making boundary wall around the plot with approachable road. The informant paid Rs.4,55,000/- to the Company and the petitioner registered land on 06.11.2012 in favour of the informant knowing very well that the company had not purchased the land which was required for construction of approach road to the plot. It was found that in some cases, registration of a plot has been made even though there was no approach road, in some cases registration was not made even though payment had been received and in some cases, excess lands were sold in a plot to many persons creating problems in mutation of land. The petitioner and other accused persons absconded by closing their office after misappropriating the amount.

Investigation further revealed that in the similar fashion, the petitioner and others of the company cheated about six hundred persons and misappropriated an amount more than twelve crores. The documents/registers seized from the petitioner showed that the company had collected cash of Rs.12,27,31564/- from six hundred sixty two investors. The documents such as brochures, money receipts, sale deeds, agreement etc. were seized from the witnesses. The office of petitioner located at Nayapalli was searched and many incriminating documents, investors entry registers were seized. Investigation further revealed that the petitioner was sixty percent share holder in the company whereas his wife Smt. Rashmita Patra was forty percent share holder in the company.

It was also found during investigation that the company represented through the petitioner and Director Smt. Rasmita Patra with an intention to defraud the investors, collected more than rupees twelve crores from them in a pre-planned manner under false assurance to provide plotted land in Bhubaneswar area at a reasonable rate with boundary and approaching road under different schemes but subsequently cheated them by not providing the same as promised.

It was also found during investigation that petitioner as Managing Director of the company and others have collected huge amount from the prospective buyers and executed sale deeds of plots over which the company had no right, title, interest or possession. In some cases, they had not registered any plot in favour of the investors. In this process, the Directors of the company have defaulted to return the deposits and also failed to render service for which the deposits were made and as such the petitioner and other Directors of the Company being responsible for the management of the affairs of the financial establishment were also liable for prosecution under section 6 of O.P.I.D. Act, 2011.

During course investigation, on scrutiny of bank account statements in favour of the company and its Directors, it was found that cash of Rs.8,42,10,203/- had been entered in the accounts of the petitioner and cash of Rs.6,66,748/- have been entered in the account of Rasmita Patra during this period. Cash of Rs.3,38,000/- had also been transferred from the company’s account to the account of Rasmita Patra.

During investigation, it further revealed that the money receipts, agreements etc. issued by the company in favour of the investors were fake and fabricated and the same were prepared in order to cheat the investors. The petitioner along with others had collected more than rupees twelve crores from the informant as well as other investors.

The investigating officer came to hold that the company represented through the petitioner and others, with an intention to defraud the investors, collected crores of rupees from them in a pre-planned manner under the false assurance to provide plots with boundary wall and approachable road at Kansapada area at reasonable rate under different schemes but subsequently cheated them by not providing the same as promised. The petitioner and others connived with each other, created fake documents and issued fake agreement, money receipts to the investors by not giving them plot with boundary wall and approach road at Kansapada area.

The investigating officer found prima facie evidence against the petitioner and others under sections 467, 468, 471, 406 read with section 120-B of the Indian Penal Code and section 6 of the O.P.I.D. Act and accordingly, he submitted charge sheet on 29.11.2018 against them keeping further investigation open under section 173(8) of Cr.P.C. to trace out movable and immovable properties of the company so also its Directors and associates, for scrutinisation of the bank accounts, to ascertain the money trailing and to collect the certified copies of sale deeds pertaining to the landed property standing in the name of the company and its Directors and to examine many more witnesses.

The petitioner approached this Court first time in BLAPL No.439 of 2019 and vide order dated 06.03.2019, the prayer for bail was rejected on the ground that the petitioner was the Managing Director of the company and as prima facie it appeared that the petitioner along with his wife and others had collected huge amount of deposits in a pre-planned and organized manner in the name of providing developed plots to the depositors and then cheated them and misappropriated more than twelve crores of rupees and that the money receipts, agreements etc. issued by the company were found to be fake and fabricated during investigation. This Court also took into account the manner in which the offence has been committed, the nature and gravity of the accusation, the nature of supporting evidence, the severity of punishment in case of conviction, the manner in which the innocent poor persons were cheated of their hard earned money, availability of documentary evidence relating to money trailing from the company’s accounts to the accounts of the petitioner and his wife, reasonable apprehension of tampering with the evidence and the fact that further investigation on some important aspects was under progress and accordingly, in the larger interest of public and State, rejected the bail application.

The petitioner again approached this Court in BLAPL No. 5727 of 2019 for interim bail on the ground of his ailment, but vide order dated 28.08.2019, after going through the medical documents as well as the reports produced, this Court held that there was no allegation of any negligence relating to the treatment of the petitioner. While rejecting the prayer for bail, this Court directed the Senior Superintendent of Circle Jail, Cuttack at Choudwar to take steps for treatment of the petitioner as was taken earlier in case any health complication is reported.

Challenging the aforesaid order dated 28.08.2019 passed by this Court in BLAPL No. 5727 of 2019, the petitioner moved the Hon’ble Supreme Court of India in Special Leave to Appeal (Crl.) No.9116 of 2019, but the same was dismissed as the petitioner withdrew the same with liberty to move this Court for regular bail.

Then the petitioner approached this Court for the third time in BLAPL No.8813 of 2019. During pendency of the said application, the petitioner moved an interim application bearing I.A. No. 840 of 2020 for interim bail on the ground of attending the obsequies ceremony of his deceased mother and this Court vide order dated 14.09.2020, granted him interim bail for the period from 15th September 2020 to 28th September 2020 with certain terms and conditions. When the matter came up on 11.12.2020, it was submitted on behalf of the petitioner that due to order of the Division Bench of this Court extending the interim orders at different times on account of the situation arising out of Covid-19 pandemic, the petitioner did not surrender on the date fixed. Since the petitioner did not surrender on the date fixed, this Court as per order dated 11.12.2020 called for a report from the trial Court as to what steps have been taken to arrest the petitioner. Challenging the said order dated 11.12.2020, the petitioner again moved the Hon’ble Supreme Court of India in Special Leave to Appeal (Crl.) No.1349 of 2021 and vide order dated 10.03.2021, while setting aside the portion of the order calling for the report from the learned trial Court regarding the steps taken for the arrest of the petitioner, disposed of the Special Leave Petition requesting this Court for early disposal of the bail application. However, the petitioner surrendered before the learned trial Court on 18.02.2021. Finally, this Court vide order dated 23.08.2021 disposed of BLAPL No.8813 of 2019 rejecting the prayer for bail of the petitioner.

Challenging the said order dated 23.08.2021 passed in BLAPL No.8813 of 2019, the petitioner moved the Hon’ble Supreme Court of India in Special Leave to Appeal (Crl.) No.8858 of 2021 and the Hon’ble Supreme Court of India vide order dated 15.12.2021, while dismissing the Special Leave Petition, directed the learned trial Court to complete the trial within a period of six months from that date and granted liberty to the petitioner to renew his application for bail in case the trial is not completed within the said period.

Since the trial could not be completed within the time stipulated, the petitioner moved the learned trial Court for bail and the learned trial Court vide order dated 24.06.2022 rejected the bail application. Against the said order, the petitioner moved this Court in the present bail application and this Court vide order dated 02.09.2022 taking into account the period of detention of the petitioner in judicial custody for more than four years and slow progress of trial and non-compliance of the order of the Hon’ble Supreme Court to conclude the trial within the time stipulated, this Court while disposing of the bail application, granted interim bail to the petitioner for a period of three months.

Challenging the said order dated 02.09.2022 passed in the present bail application, the petitioner moved the Hon’ble Supreme Court of India in Criminal Appeal No.201 of 2023 (SLP (Crl.) No.10422 of 2022) and vide order dated 24.01.2023, the Hon’ble Supreme Court while allowing the appeal, made the following observation:-

“xx                         xx                          xx                           xx                           xx                           xx                          xx                           xx

Having gone through the record, we find that the application was made for grant of regular bail and thus it was incumbent upon the High Court to have considered the same on merits but the High Court after granting an interim bail, disposed of the bail application itself. In our considered opinion, the regular bail application of the appellant is required to be considered on merits by the High Court.

Considering the aforesaid facts and circumstances, we dispose of this appeal by directing that the bail application of the appellant shall be restored to its original number before the High Court and heard and decided in accordance with law on merits as expeditiously as possible. The interim protection granted by this Court shall continue to remain in operation till the disposal of the bail application by the High Court.”

Mr. Ashwini Kumar Das, learned counsel appearing for the petitioner contended that the petitioner was taken into judicial custody since 7th August 2018 and the charge was framed on 06.01.2020 and till now, only ten witnesses have been examined out of sixty eight charge sheet witnesses and their evidence is also not complete and the trial of the case has been stalled by the order of the Hon’ble Supreme Court and the petitioner is now on bail in view of the order passed by the Hon’ble Supreme Court on 24.01.2023 and since there is no chance of absconding of the petitioner or tampering with the evidence and the petitioner has not misutilised his liberty while on interim bail, on the ground of delayed trial, his bail application may be favourably considered.

Mr. J. P. Patra, learned Special Counsel appearing for the State of Odisha in OPID Act matters on the other hand vehemently opposed the prayer for bail and contended that the bail application of the petitioner has been rejected on merit earlier and there is no change in the circumstances and since the trial of the case has been stayed, no fault can be found with the trial Court and the petitioner has enjoyed liberty for sufficient period by interim orders passed by this Court and by the Hon’ble Supreme Court and the petitioner is a white-collar offender and crores of rupees have been cheated from the poor investors and the petitioner’s key role in the commission of economic offence is prima facie apparent and there was deep rooted criminal conspiracy to cheat public with an eye on personal profit, large number of innocent depositors have been duped of their hard-earned money and important witnesses are yet to be examined in the trial Court and at this stage, if the petitioner is enlarged on bail, there is every likelihood of tampering with the evidence and therefore, the bail application should be rejected.

In the case of State of M.P. -Vrs.- Kajad reported in (2001)7 Supreme Court Cases 673, it is 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 criminal Taw. In the case of State of Maharashtra -Vrs.- Captain Buddhikota Subha Rao reported in A.I.R. 1989 S.C. 2292, it is held 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. In the case of Kalyan Chandra Sarkar and Ors. -Vrs.- Rajesh Ranjan reported in (2005) 30 Orissa Criminal Reports (SC) 455, it is held that even though there is room for filing a subsequent bail application in cases where earlier applications have been rejected, the same can be done if there is a change in the fact situation or in law which requires the earlier view being interfered with or where the earlier finding has become obsolete. This is the limited area in which an accused who has been denied bail earlier, can move a subsequent application.

Thus an accused has a right to make successive applications for grant of bail under the changed circumstances and such change must, be substantial one having direct impact on the earlier decision and not merely cosmetic changes which are of little or no consequence. Without the change in the circumstances, the subsequent bail application would be deemed to be seeking review of the earlier rejection order which is not permissible under criminal law. While entertaining such subsequent bail applications, the Court has a duty to consider the reasons and grounds on which the earlier bail applications were rejected and what are the fresh grounds which persuade it warranting the evaluation and consideration of the bail application afresh and to take a view different from the one taken in the earlier applications. There must be change in the fact situation or in law which requires the earlier view being interfered with or where the earlier finding has become obsolete. This is the limited area in which the application for bail of an accused that has been rejected earlier can be reconsidered.

In the case in hand, there is no change in the circumstances after rejection of the earlier bail application on merit except that the trial could not be completed within stipulated period as fixed by the Hon’ble Supreme Court. It appears from the status report submitted by the learned trial Court that the Hon’ble Supreme Court vide order dated 15.12.2021 in SLP (Crl) No.8858 of 2021 was pleased to direct to complete the trial within a period of six months from the date of order. The Hon’ble Supreme Court vide order dated 27.07.2022 passed in Misc. Application No. 1167 of 2022 in SLP (Crl) No.8858 of 2021 extended the period to four months and ten witnesses have been examined and on account of the stay order dated 20.07.2022 passed by the Hon’ble Supreme Court in SLP (Crl) No. 4910 of 2022, trial is not progressing.

It is a case of economic offence. Economic offences are always considered as 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 offences are 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 State of Gujarat -Vrs.- Mohanlal Jitamalji Porwal reported in A.I.R. 1987 S.C. 1321, it is held as follows:

“5......The mere fact that six years had elapsed, for which time-lag the prosecution was in no way responsible, was no good ground for refusing to act in order to promote the interests of justice in an age when delays in the Court have become a part of life and the order of the day......The entire community is aggrieved if the economic offenders who ruin the economy of the State are not brought to books......A disregard for the interest of the community can be manifested only at the cost of forfeiting the trust and faith of the community in the system to administer justice in an even handed manner without fear of criticism from the quarters which view white collar crimes with a permissive eye unmindful of the damage done to the National Economy and National Interest."

Therefore, in my humble view, in the facts and circumstances, without any change in the circumstances, merely on ground of the period of detention particularly when the petitioner has enjoyed interim bail for a long time on different occasion and even though the right of speedy trial is a fundamental right under Article 21 of the Constitution of India and denial of this right corrodes the public confidence in the justice delivery system, but when the trial of the case could not progress on account of stay order passed by the Hon’ble Supreme Court, taking into account the manner in which the offence has been committed and the innocent poor persons were cheated of their hard earned money, availability of documentary evidence relating to money trailing from the company’s accounts to the accounts of the petitioner and his wife and in the larger interest of public and State, I am not inclined to release the petitioner on bail.

Accordingly, the bail application sans merit and hence stands rejected. I.A. No.219 of 2023 filed by the petitioner to extend the interim bail order granted by the Hon’ble Supreme Court in case of rejection of the bail application also stands dismissed. The petitioner shall surrender before the learned trial Court within one week from today failing which coercive step shall be taken against the petitioner for his arrest by the trial Court. A copy of the order be communicated to the learned trial Court.

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