Sonia Tripathy vs State Of Odisha

G. Satapathy, J

Since these two bail applications arise out of one and same case record, the same are heard together and disposed of by this common order with the consent of the learned counsel for the parties.

These are bail applications U/S.483 of BNSS by the petitioners for grant of bail in connection with EOW, Bhubaneswar PS Case No.11 of 2023 arising out of CT Case No.100(A) of 2023 pending in the Court of learned Presiding Officer, Designated Court under OPID Act, Cuttack, for commission of offences punishable U/Ss.406/420/465/467/468/471/294/506/ 120-B/34 of IPC r/w Section 66(D) of IT Act, 2008.

The facts in nutshell are that the petitioner-Mr.Rajeev Lochan Das the petitioner in BLAPL No.3732 of 2026, his wife Sonia Tripathy the petitioner in BLAPL No.4599 of 2025, Bimal Kishore Padhi and Usharani Panigrahi, were the partners of M/s. Lumex Resources, a partnership firm which was subsequently merged with company M/s. Lumex Resources Pvt. Ltd. on 27.09.2019, but during January, 2019, the petitioner-Rajeev Lochan Das and his wife Sonia Tripathy, Himanshu Sekhar Panigrahi (husband of the sister of informant), Usharani Panigrahi (sister of informant) and Bimal Kishore Padhi induced the informant and her husband Pragyana Prakash Nayak (victim) to invest money in M/s. Lumex Resources to fetch good returns by way of interest and believing such representation, the informant and her husband paid Rs.50 Lakhs on 03.01.2019 to the account of the partnership firm through RTGS followed by another Rs.50 Lakhs in May, 2019 with separate agreements and in the process, they paid total amount of Rs.2 Crores 34 Lakhs on promise of high returns. Further, M/s. Lumex Resources Pvt. Ltd.-the company took a loan of Rs.3 Crores 16 Lakhs from the informant and her husband making it total for Rs.5.5 Crores, but when no interest was received since February, 2020, the informant issued a loan recall notice on 03.06.2020 and, thereafter, a debt settlement agreement was stated to be executed between the parties with issuance of 9 cheques by the borrower- Rajeev Lochan Das, but such cheques on being presented dishonored due to insufficient funds and the informant came to know that the directors of the company had filed fraudulent rent agreement towards taking lease of office on rent. It is alleged by the informant that in this way, the present petitioners and others systematically cheated them and finding no way out, the informant instituted a complaint in the Court in 1CC Case No.4780 of 2021, which was subsequently sent U/S.156(3) of CrPC only to be registered vide Infocity PS Case No.252 of 2021, however, subsequently, the matter was taken up by the CID, Crime Branch, Odisha with re-registration of EOW PS Case No.11 of 2023.

On conclusion of investigation, charge-sheet was placed against the petitioners and the company-M/s. Lumex Resources Pvt. Ltd. represented through its Managing Director Rajeev Lochan Das, for commission of offences punishable U/Ss.406/420/465/ 467/468/471/294/506/120-B/34 of IPC r/w Section 66(D) of IT Act, 2008. This is how the criminal case traces its path with arrest of the two petitioners, who are before this Court now seeking for their release on bail.

In the course of hearing, Mr. Milan Kanungo, learned Senior Counsel, who is being assisted by Mr. Arun Kumar Acharya, learned counsel for the petitioner-Sonia Tripathy submits that although the petitioner was the partner in M/s. Lumex Resources, but after the merger of said partnership firm with the company M/s. Lumex Resources Pvt. Ltd. (in short, "the company"), all the liability and asset being transferred to the company, the liability of partnership firm seized to exist and the petitioner-Sonia Tripathy being not the director of the company, she has no role or liability and, thereby, she cannot be held liable for anything done by the company. Mr. Kanungo further submits that the loan agreement executed between Rajeev Lochan Das-the MD of the company as a borrower with the informant in terms of Annexure-4 to the additional affidavit and the financial debt settlement agreement executed between the company and the informant under Annexure-5 makes the liability of the petitioner-Sonia Tripathy in erstwhile partnership firm non-existent. Mr. Kanungo further submits that since the petitioner-Sonia Tripathy being in custody since 23.07.2024 and trial having not progressed with examination of witnesses and the case being mostly based on documentary evidence, there would be hardly any difficulty in granting bail to the petitioner and even the allegation on record is taken into consideration, a sum of Rs.60 Lakhs has only be transferred to the personal account of the petitioner, but the petitioner being a lady she is squarely covered under the proviso appended to Section 480 of BNSS for her release on bail. Accordingly, Mr. Kanungo prays to grant bail to the petitioner-Sonia Tripathy.

4.1. On the other hand, Mr. Sailaza Nandan Das, learned counsel for the petitioner-Rajeev Lochan Das submits by drawing attention of the Court to paragraph-16.6 of the charge-sheet that the dispute between the petitioner and the informant is purely civil in nature and at best the allegation against the petitioner would only make him contractual liable, but the petitioner is not criminally liable since the dispute between the petitioner and the informant is with regard to some financial transaction pursuant to loan agreements, but the petitioner is unnecessarily languishing in jail custody since 01.05.2023 and none out of 36 charge-sheeted witnesses has been examined till today, although charge has been framed. He further by referring to paragraph-16.09 of the charge-sheet submits that from the scrutiny of the bank accounts of the partnership firm and the company, it is found that the amount so received from the informant and her husband towards loan has not been utilized by the petitioners for their personal gain, but the same has been used for the purpose of the business of the company and, thereby, there is no liability of the petitioner against the dues of the informant and her husband. Mr. Das further submits that although the charge-sheet has been submitted against the petitioners for different offences, but the offence U/Ss.406/420 of IPC, cannot mutually co-exist and the implication of the petitioner for such offence is unsustainable in the eye of law and all the offences being traible by Magistrate, the petitioner may kindly be released on bail, even otherwise by invoking the provision of Sec. 480(6) of BNSS for trial having been not concluded within 60 days.

4.2. Mr. R.B. Mishra, learned Additional Public Prosecutor by referring to the allegation on record submits that there is serious allegation against both the petitioners for not only committing financial fraud, but also doing the same by forgery and the petitioners having some criminal antecedents, their prayer for bail may kindly be turned down.

4.3. In adding to the submission as advanced by the learned Addl. PP, Mr. Janmejaya Katikia, learned counsel for the informant submits that the last bail application of the petitioner-Rajeev Lochan Das has been disposed of just one month before, but there is no supervening circumstance to consider the bail application of the petitioner afresh, but the informant and her husband being cheated for around Rs.5.5 Crores by the present two petitioners, the allegation against them should not be considered lightly. Mr. Katikia further submits that no doubt the petitioners have referred to the loan agreement, but the entire copy of the loan agreement having not been given to the Court by redacting paragraphs-5 to 7 itself creates doubt on the conduct of the petitioners. Further, Mr. Katikia by taking this Court through the definition of consent, coercion, undue influence, fraud and misrepresentation submits that the agreement between the parties being obtained from the informant by misrepresentation is a voidable contract, since there is no valid consent of the informant to the agreement. Mr. Katikia by referring to the statement of the witness-Pragyana Prakash Nayak, Lopamudra Buxipatra, Ashok Kumar Behera and paragraph-16.15 of the charge-sheet submits that not only the petitioners have deceived the informant, but also they have forged the documents by making misrepresentation to the informant, but in reality, the company was never doing any import or export business since 03.01.2017, however, the petitioners had not only taken money from the informant and her husband to the tune of Rs.5.5 Crores in the year 2019, but also they have diverted the same for their own use only to deceive the informant and her husband by forging documents. Accordingly, Mr. Katikia prays to reject the bail application of the petitioner.

4.4. On the other hand, Mr. Rajat Kumar Panda, learned counsel for the victim-Pragyana Prakash Nayak (husband of the informant) submits that the petitioners have in fact not disclosed their criminal antecedents and, thereby, approached this Court with unclean hands and, therefore, they are not entitled to any discretionary relief. Mr. Panda further submits that the conduct of the petitioner- Sonia Tripathy is really an issue since the petitioner-Sonia Tripathy had absconded for 32 months and she has been charge-sheeted as an absconder. It is also submitted for the victim that the petitioner has fitted GPS device on the car of the informant to track and intimidate the victim. Accordingly, Mr. Panda by referring to the submission as advanced for the informant prays to reject the bail application of the petitioners.

After having considered the rival submissions upon perusal of record, there appears allegation against the petitioners for deceiving the informant and her husband for a sum of Rs.5.5 Crores by forging documents, but it cannot be denied that the petitioners are in custody for some time, however, witnesses are yet to be examined. The complaint so also the charge-sheet reveals that initially the informant and her husband allured by the petitioners and other to invest in the partnership firm, which was stated to be doing export business of mineral ores on the assurance of good returns and in the process, being induced, the informant and her husband initially invested Rs.50 Lakhs each on two occasions for total Rs.1 Crore followed by agreements. Further, it is also stated in the charge-sheet that the partnership firm subsequently merged into the company with petitioner-Rajeev Lochan Das as its Managing Director and Bimal Kishore Padhi and Usharani Panigrahi as directors, but Usharani Panigrahi is the sister of the informant and the company was stated to be carrying the same business of exporting mineral ores. The charge-sheet also reveals that the petitioner-Rajeev Lochan Das as managing partner of the partnership firm and the informant have entered into the two loan agreements, but the latter had advanced Rs.50 Lakhs each on two occasions as loan in the year 2019 on the assurance of high returns @ 40% interest p.a. and 10% on capital loan amount. The charge-sheet, however, does not refer to any loan agreement entered by the petitioner-Sonia Tripathy and it only reveals that the petitioner-Rajeev Lochan Das had allegedly issued 9 cheques as Managing Director of the company in favour of the informant, but the said cheques total amounting Rs.7.08.20,000/- was dishonored due to insufficient funds in the account of the company.

It is, however, claimed that the petitioner-Sonia Tripathy has not made true disclosure of her criminal antecedent, but she had in fact stated that while she was arrested in connection with Infocity PS Case No.368 of 2023, she was taken into custody in this case on 23.07.2024. The information as provided by the State discloses that another case in BBSR EOW PS Case No.12 of 2023 filed by the husband of the informant has been registered against the petitioner-Sonia Tripathy. In addition, the petitioner-Sonia Tripathy is a lady and is squarely covered under the proviso appended to Section 480 of BNSS. The State has, however, provided the information relating to the criminal cases registered against the petitioner-Rajeev Lochan Das, which are stated below:-

"1. EOW, Bhubaneswar PS Case No.12 dated 23.03.2023 U/s.420/506/34 IPC.

Nayapalli PS (UPD, Bhubaneswar) Case No.346 dt. 07.08.2023 U/s.420/34 IPC.

Infocity PS (UPD, Bhubaneswar) Case No.368 dt. 08.11.2023 U/s.419/420/467/468/ 471/120-B/34 IPC.

Cyber Crime & Economic Offence Police Station, Bhubaneswar FIR No.79 of 2023."

In addition to the above four cases, the petitioner-Rajeev Lochan Das is shown as a suspect in Cyber Crime & Economic Offence Police Station, Bhubaneswar FIR No.81 of 2023.

One of the important consideration in granting bail is to secure the attendance of the accused at the trial, but the tripod test is equally important and the petitioner-Sonia Tripathy herein being a lady might not be able to influence the witnesses or tamper the evidence, however, her apprehension of flight risk can also be equally addressed to by directing her to surrender her passport, if any, and in the event, she has no passport, she may be directed to file an affidavit before the learned trial Court towards the same. Further, the investigation having been completed, the statement of the witnesses cannot be tampered with and there being some documentary evidence, which cannot also be tampered by the petitioner-Sonia Tripathy.

In view of the above facts and taking into account the nature and gravity of the offences alleged against the petitioner vis-à-vis the materials so placed on record and regard being had to the pre-trial detention of the petitioner-Sonia Tripathy in custody since 23.07.2024 and there being no direct allegation against the petitioner-Sonia Tripathy for dealing with the informant for taking loan and mostly the allegation of financial fraud being directed against the petitioner-Rajeev Lochan Das and keeping in view the status of the petitioner-Sonia Tripathy as a lady and applying the first proviso appended to Section 480 of BNSS and the witnesses being not yet been examined and no material being collected to suggest that the petitioner-Sonia Tripathy would abscond or would pose threat to any witnesses, this Court while being not inclined to grant bail to the petitioner-Rajeev Lochan Das in BLAPL No.3732 of 2026, considers it proper to admit the petitioner-Sonia Tripathy in BLAPL No.4599 of 2025 to bail.

Hence, the prayer for bail of the petitioner-Rajeev Lochan Das in BLAPL No.3732 of 2026stands rejected, whereas the prayer for bail of petitioner-Sonia Tripathy in BLAPL No.4599 of 2025 stands allowed. Accordingly, the petitioner-Sonia Tripathy in BLAPL No.4599 of 2025 is allowed to go on bail on furnishing bail bonds of Rs.1,00,000/- (Rupees One Lakh) with two solvent sureties each for the like amount to the satisfaction of the learned Court in seisin of the case on such terms and conditions as deem fit and proper by it with following conditions:-

(i) the petitioner-Sonia Tripathy shall not leave the country and shall cooperate with the trial,

(ii) the petitioner-Sonia Tripathy shall surrender his passport, if any (if not already surrendered/seized), and in case, he is not a holder of the same, he shall swear an affidavit to that effect.

(iii) the petitioner-Sonia Tripathy shall inform the Court as well as the Investigating Agency as to her place of residence during the trial by providing her residential address, e-mail, if any, and other documents in support of proof of her residence. The petitioner shall not change her address of residence without intimating to the Court and Investigating Agency.

(iv) the petitioner shall not threaten/ influence/induce/ coerce any of the witnesses acquainted with the facts of the case so as to dissuade them disclosing such facts before the Court.

Accordingly, these BLAPLs stand disposed of. A soft copy of this order be immediately communicated to the concerned Court, who shall afterwards communicate the same to the concerned Jail through e-mail for reference.