Sri Braja Bhai vs State of Orissa

M.M. Das, J.—This is an application u/s 439 Cr.P.C. for grant of bail to the petitioner.

On 20.11.2006, one Shri Dandanirodha Mishra, the then General Manager of ""The Samaja"" lodged an F.I.R. in the Cantonment Police Station

alleging, inter alia, that a sum of Rs. 97,08,500/- has been mis-appropriated from the account of ""The Samaja"" in two phases. It was alleged that

the petitioner, who was the then General Manager, Printer and Publisher of ""The Samaja"" by resorting to fraud, forgery, cheating etc., at the first

phase, misappropriated a sum of Rs. 50.00 lakhs and in the second phase, the petitioner and Shri Sunil Poddar, Managing Director of M/s.

Poddar Global Ltd. misappropriated a sum of Rs. 47,08,500/- fraudulently. On lodging of the F.I.R., investigation was taken up. Two cheques

amounting to Rs. 15.00 lakhs each and another cheque amounting to Rs. 20.00 lakhs, being bearer cheques, under the joint signature of the

petitioner and Smt. Manorama Mohapatra, who is the life member of Servants of the People Society (in short ""SOPS"") and the Editor of the

Samaj, were drawn in favour of M/s. Poddar Global Ltd. The said cheques were encashed from the Punjab National Bank in its extension counter

within the premises of ""The Samaja"", Cuttack, by the bearers of the said cheques. It appears from the record that on a query being made by the

informant, M/s. Poddar Global Ltd. through the authorized signatory of the said company, sent-a fax message on 9.11.2006 intimating that the

company has no information regarding the cheques as it has neither been received by the said company nor it was encashed to the knowledge of

the said company. It also appears from the said record that pursuant to the above fax message, a letter dated 26.11.2006 was issued by ""The

Samaja"" to M/s. Poddar Global Ltd. making a query as to who is its authorized signatory and as to whether the bearers i.e. Sunil Jain and Binod

Jain, who were the persons, who got the cheque encashed, were the employees of the said company. Investigation discloses that the petitioner,

who was working as General Manager of ""The Samaja"" handed over such huge amount by bearer cheques and when the Manager and Cashier of

the bank had objection to pay such huge amount to the bearers of the cheques and wanted confirmation/identification by the General Manager, it is

alleged that along with the joint signatory, Smt. Manorama Mohapatra, the petitioner identified the said persons, who wanted to encash the

cheques, as Sunil Jain and Binod Jain. Upon such identification being made, the bank paid the amount to them.

The other transaction relates to a cheque for a sum of Rs. 47,08,500/-, which was issued in favour of M/s. Poddar Global Ltd., even though it is

alleged that nothing was due to be paid to the said company. The said cheques were jointly signed by the petitioner and Shri Satya Paul, Former

Executive Secretary, Board of Management, SOPS, Orissa Branch, they being the authorized signatory for operation of the bank account. Shri

Satya Paul was ordinarily residing at Delhi and in the F.I.R. it is admitted that Shri Satya Paul signed the cheques in good faith as the petitioner,

who was the General Manager of ""The Samaja"", already signed the cheques.

Mr. B. Mishra, learned senior counsel appearing for the petitioner vehemently argued that with regard to the bearer cheques totalling to Rs.

50.00 lakhs, the case of the prosecution is clear that the said amount was taken by the bearers of the said cheques, who were employees of M/s.

Poddar Global Ltd. and therefore, no fault can be found with the petitioner of having misappropriated the said amount. He further submitted

materials are available in the case diary to show that at the behest of the informant, in order to show that the newspaper ""The Samaja"" has the

highest circulation, the above amount of Rs. 47,08,500/- was paid to M/s. Poddar Global Ltd. by way of an arrangement and the said amount was

paid by Account Payee cheques, which were credited to the account of the said company.

Mr. S. Pradhan, learned Counsel for the State submitted that the allegations made and the materials collected during investigation clearly make

out a prima facie case of commission of offence under Sections 406/468/467/420/408/506/120B I.P.C. along with other Sections of the Penal

Code against the petitioner. He further brought to the notice of this Court that during investigation, it is revealed that the Manager (Finance) of ""The

Samaja"" is the custodian of the cheque books, but the petitioner as the General Manager took a cheque book from him out of which one cheque

was utilized for the fraudulent transaction. Mr. Pradhan also relied upon various decisions in support of his contention that in the event the petitioner

is released on bail, there is every likelihood of the petitioner absconding. He further submitted that the petitioner was residing in a house within the

premises of ""The Samaja"" and he has obtained and interim order from the Delhi High Court that he will not be evicted from the said house. He,

therefore, submitted that in the event the petitioner is released on bail, from the nature of allegations made against him, there is all possibility of the

petitioner indulging himself in criminal activities thereby disrupting the process of publication of the daily newspaper ""The Samaja"".

It is revealed from the records that the petitioner approached this Court in an application u/s 438 Cr.P.C. before he was apprehended and this

Court in the said application, being BLAPL No. 12457 of 2006, categorically came to the conclusion that the statements of the witnesses and the

documents collected during investigation make out a prima facie case against the petitioner with regard to commission of the alleged offences.

However, this Court while rejecting the said bail application granted liberty to the petitioner to surrender before the Court below and move for

regular bail, if he is so advised. (See 2007 (36) OCR 429).

The petitioner approached the Supreme Court in a SLP against the order of this Court refusing to grant anticipatory bail to him. The Supreme

Court, after hearing the case by order dated 23.2.2007 recording the prayer made on behalf of the petitioner to withdraw the SLP with leave to

move for regular bail, passed the following order:

The High Court while disposing of the petition has, however, granted liberty to the petitioner to surrender before the Court below and move for

regular bail, if he is so advised. In which event, the said Court shall dispose of the said bail application expeditiously in accordance with law.

In view of the above direction, the learned senior counsel seeks permission to withdraw the SLP with liberty to move for regular bail. If such an

application is field, the same shall be disposed of as expeditiously as possible.

The SLP is dismissed as withdrawn.

It further transpires from the records that as after passing of the aforementioned order, the petitioner did not surrender before the Court below,

a prayer was made before the Court below by the Investigating Agency to issue process against the petitioner under Sections 82 and 83 Cr.P.C.

The petitioner was thereafter declared as a proclaimed offender as he did not surrender in spite of issuance of notice. Process u/s 83 Cr.P.C. was

issued in accordance with law directing seizure of moveable and immovable properties of the petitioner. At this juncture, the petitioner surrendered

in the Court of learned S.D.J.M. (S), Cuttack on 25.6.2007 and was remanded to custody.

Mr. Pradhan, learned Counsel for the State relied upon the decision in the case of Gajanand Agarwal v. State of Orissa and Ors. 2007 (II)

OLR (SC) 215 : (2007) (3) SC 434. In support of his submission that once process under Sections 81, 82 and 83 Cr.P.C. was issued, there is all

likelihood that the petitioner will abscond, if he is released on bail. In the aforesaid decision, the Supreme Court, while dealing with the finding of

this Court that there was no likelihood of the accused absconding, held as follows:

The High Court was also not correct in saying that there was no likelihood of the accused persons absconding in view of what has been pointed

out by learned Counsel for the appellant about his not surrendering requiring issuance notice in terms of Sections 82 and 83 of the Act.

I have perused the order of the Court below by which the prayer for bail made on behalf of the petitioner has been rejected. Though Mr.

Mishra, learned senior counsel appearing for the petitioner vehemently argued that the petitioner is already in custody for more than three months

and the offences alleged are triable by the learned Magistrate, I do not find that the Court below has committed an error in refusing the prayer for

bail made on behalf of the petitioner. It would be profitable in this regard to refer to the relevant portion of paragraph-5 of the judgment in the case

of Ghanchi Rubina Salimbhai Vs. Metubha Diwansingh Solanki and Others, which reads thus.

....We think since the trial Court has assigned reasons for refusing bail which includes availability of material to establish prima facie case against the

respondent-accused, and looking to the gravity of the offence as also the apprehension of the complainant as to the possibility of interference by

the accused with the investigation and threat to the prosecution witnesses in the event of they being enlarged on bail, we think it would have been

more appropriate if the High Court could have at least briefly indicated the reasons which it thought entitled the respondent-accused to bail....

In the case of Himanshu Chandravadan Desai and Ors. v. State of Gujarat 2005 (9) SCALE, the Supreme Court, while dealing with the bail

application u/s 439 Cr.P.C. where similar offences were alleged, held as follows:

....The crime in which the petitioners are involved is very serious involving a conspiracy to cheat and defraud public institutions in a systematic

manner and the punishment is likely to be severe in the event of conviction.... Having regard to huge amounts involved in the systematic fraud, there

is'' a danger of the appellants absconding, if released on bail, or attempting to tamper with the evidence by pressurizing witnesses. In the

circumstances, we do not find any reason to interfere with the order refusing bail as grant of the relief sought may result in thwarting the course of

justice. The appeal, is therefore dismissed.

Keeping the above principles in mind, this Court, on closely scrutinizing the materials available in the case diary and finding of this Court in the

previous bail application filed by the petitioner for grant of anticipatory bail, is of the view that there is a prima facie case made out against the

petitioner in regard to commission of the alleged offences and there is also likelihood of the petitioner absconding and threatening the prosecution

witnesses, if he is set at liberty by way of granting bail.

In view of the above, this Court is of the opinion that this is not a fit case where the petitioner should be granted bail.

Accordingly, the BLAPL is dismissed.