O R D E R vs Unknown
2021 Latest Caselaw 4006 Ori

                                 BLAPL No.1429 of 2020




                                           O R D E R

09. 23.03.2021 Heard Mr. Asutosh Mishra, learned counsel for the petitioner and Mr. A.K. Nayak, learned counsel of (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 Bhubaneswar P.S. Case No.09 of 2019 pending in the court of the learned Designated Court OPID, Cuttack for commission of offences under Sections 420,467,468,471, 406,120-B of the Indian Penal Code read with Section 6 of OPID Act. His bail application was rejected by the learned Designated Court OPID, Cuttack by its order dated 29.11.2019.

On the basis of F.I.R. lodged by one Ratikanta Samal before the Superintendent of Police Economic Offence Wing, Bhubaneswar on 04.06.2019 against the petitioner and two others, EOW Bhubaneswar P.S. Case No.09 of 2019 has been registered. It is the allegation that a memorandum of understanding was signed by the Managing Director of Hindustan Builder, the present petitioner, the Director, Ambika Prasad Mohanty and Prafulla Kumar Sarangi, Secretary of Andhra Bank Employees' Housing Cooperative Society, which was formed under the name and style of "Andhra Bank Employees' Housing Cooperative Society" with a view to provide housing plots to the Employees' of Andhra

Bank at Bhubaneswar, on 03.04.2009. It is further alleged that on the direction of the Secretary of Andhra Bank Employees' Housing Cooperative Society, the present petitioner and Ambika Prasad Mohanty have executed Sale Deeds in the name of investors during the year 2009-2011 on deposit of required money through cheques and Bank Drafts for booking housing plots but till filing of the F.I.R. nearly eight years no efforts have been made to give possession of the purchased land to the members of the society. Since the accused persons did not pay any heed to the approaches of the investors, present F.I.R. was lodged for taking legal action against the accused persons.

Mr. Ashutosh Mishra, learned counsel for the petitioner strenuously urged that the petitioner has no nexus with the Andhra Bank Employees' Housing Cooperative Society. The petitioner has never approached the investors/members of the society regarding deposit of money for purchase of housing plots, nor money was received by him from the investors. The only allegation made against the petitioner is that he agreed to provide five acres of land to the Secretary of the Society. No incriminating material is available on record to make out a case under the alleged offences against the petitioner. It is his further submission that despite innocence of the petitioner, he was arrested by the Investigating Officer and since then he is in custody.

The learned counsel drew the attention of this Court

with regard to the family condition of the petitioner, who are suffering a lot in his absence, since the son of the petitioner is a physically handicapped having 75% disability and the ailing wife of the petitioner, who is suffering from 2015 and no male member except him is in the family to look after the health condition of his son and wife.

It is further submitted on behalf of the petitioner that the allegations made against him though not admitted even if accepted to be true do not constitute a criminal case at all. The petitioner has provided possession of plots to 100 investors out of 160 applications. He has also initiated different legal proceedings against the encroachers for the eviction to provide peaceful possession to the customers. In this connection, learned counsel submitted that if the petitioner is released on bail, he will expedite the proceedings initiated against the encroachers for providing peaceful possession.

On the other hand, learned counsel appearing for the OPID submits that since the bail application of another accused has been rejected by this Court, it will not be proper to release the petitioner on bail. Since the petitioner has cheated the investors by receiving huge sum of rupees and in connivance with the Secretary of the Society has committed the crime for his personal gain. The contention of the petitioner with regard to not receiving money from the depositors directly is totally false since the materials so

collected reveals that money has been transferred from Andhra Bank Employees' Housing Cooperative Society to Hindustan Developers on various dates. That apart some amounts have been transferred from the account of Andhra Bank Employees' Housing Cooperative Society to the personal account of the petitioner, which has been withdrawn by him. It is his further submission that on several approaches made by the investors the petitioner paid no heed to them rather his conduct shows in connivance with other co-accused persons collected huge amount of money by executing false deeds with a dishonest intention and misappropriated a huge amount of money and failed to give possession of the purchased plot to the investors. In such circumstances, the petitioner does not deserve to be enlarged on bail.

Learned counsel for the petitioner strenuously urged that the allegations though not admitted even if accepted to be true does not make out any criminal case at all. It is purely civil in nature. The informant is trying to give a criminal colour. Learned counsel for the petitioner by relying upon the decision in the case of Gajanan Property Dealers and Construction Pvt. Ltd. and others vrs. State of Orissa and Others in CRLA No.231 of 2017 submitted that this Court has quashed the criminal proceeding in a very similar matter. In the aforementioned case, Hindustan Aeronautics Limited Housing Committee, Koraput to provide plots to employees of Hindustan Aeronautics Limited in Bhubaneswar

entered into contract with Gajanan Developers but later, the Developer was unable to provide dispute free lands. A Criminal Case under Section 420/406/467/468/120-B, I.P.C. read with Section 6 of the OPID Act was initiated. This Court quashed the criminal proceeding holding that it is not maintainable at all as the dispute is primarily civil in nature. The present case is squarely covered by that judgment. Learned counsel for the petitioner further submitted that a Real Estate Developer taking money to provide plots can never be said to run a financial establishment as defined under the OPID Act rather if the customers are unhappy against the promoter they have ample, effective and efficacious remedy under the Real Estate Regulation and Development Act, 2016 under Section 18 of the RERA Act, 2016, the customers can claim to get back their money with interest also. Therefore, the proceeding under the OPID Act is misconceived, and as an abuse of the criminal process. In support of his contention, learned counsel for the petitioner referred to the decision rendered by this Court in the case of Mahasweta Biswal vrs. State of Odisha and Another (BLAPL No.893 of 2020).

During course of argument, learned counsel for the petitioner stated that the petitioner has already handed over possession of plots to 100 out of 160 customers. The petitioner has also initiated different legal proceeding against the encroachers for their eviction to provide peaceful

possession to the customers. Under such circumstances, no criminal intent is attributable to the petitioner. Learned counsel for the petitioner also submitted that the rejection of bail to another co-accused is not tenable submission at all. "the law of parity is desirable rule. In the matter of release on bail to the co-accused may be applied where the case of the co-accused is in identically similar, but cannot be applied for rejecting the bail application of co-accused. A co-accused cannot be denied bail, merely on the ground that the bail of another accused has been rejected by the Court earlier, the obvious reason being that while the earlier bail order denying bail to another co-accused was passed, the latter co-accused applying for bail was not heard."

In that respect, learned counsel for the petitioner has referred to decision in a case of Yunis and another vrs. State of U.P., 1999 Criminal Law Journal 4094. It is also submitted that the petitioner is only an earning member of his family and the petitioner is ready to abide any terms and conditions to be enlarged on bail.

Per contra, learned counsel for the OPID vehemently opposed the instant application stating that the contention of the petitioner that the allegations made is civil in nature is not tenable.

Learned counsel for the OPID referred to a decision reported in 2019(74) OCR, Prasan Kumar Patra vrs. State of Odisha and the judgment dated 29.06.2020 passed in

CRLA No.32 of 2020 by this Court wherein this Court has been pleased to hold initiation of criminal case of Odisha Protection of Interest of Depositors (in Financial Establishment) Act, 2011 (hereinafter in short referred to as the "OPID Act") is justified. Learned counsel for the OPID further submitted that in the State of Maharashra "MPID Act" to protect the interest of depositors to the State of Maharashtra, A Nagpur Bench of Hon'ble Bombay High Court in Criminal Appeal No.720 of 2018 decided on 06.02.2020 in the case of Manohar Bhimraoji Mahalle and Others vrs. State of Maharashtra through PSO City Kotwali and Others held that the Real Estate is liable under MPID Act. Learned counsel for the OPID further submitted that a decision in the case of Maheswata Biswal has been challenged before the Hon'ble Apex Court in Special Leave to Appeal (Crl.) No(s).834 of 2021 and the Hon'ble Apex Court vide order dated 08.02.2021 has been pleased to inter alia hold that the discussions and observations with regard to the applicability or non-applicability of the Odisha Protection of Interests of Depositors (In Financial Establishments) Act, 2011 vis-à-vis the Real Estate (Regulation and Development) Act, 2016 was wholly unnecessary for the purposes of the present order. Hon'ble Apex Court further directed that the discussions contained in the said order cannot be used, relied upon or referred to in any other proceeding.

Further, it has been submitted that the contention of

the petitioner that the OPID Act has no prospective effect and the same is not applicable is not sustainable in view of settled principle of law laid down by this Court in CRLMC No.3965 of 2015 decided on 07.09.2016 (Gayadhar Jena vrs. State of Odisha).

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 keep 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 be 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 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 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 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.

xx xx xx xx

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 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 material collected discloses 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 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 submissions, the nature of alleged serious economic offences involving crores of rupees of gullible investors inside and outside the State and on the cumulative effect of the allegations, the criminal effect of the allegation, gravity of accusation, nature of supporting evidences available, a prima facie case against the petitioner and the severity of punishments it entails and looking to the larger interest of the gullible investors and it's wide ramification, this Court is not persuaded to accede the prayer of the petitioner for grant of bail. Accordingly, this Court is not inclined to grant the benefit of bail to the petitioner 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.

.........................

P. Patnaik, J.

R