Orissa High Court
Asok @ Ashok Mohanty vs Republic Of India on 26 October, 2022
IN THE HIGH COURT OF ORISSA, CUTTACK
CRLREV No. 618 of 2018
From the order dated 27.06.2018 passed by the Special C.J.M.
(C.B.I.), Bhubaneswar in S.P.E. No.42 of 2014.
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Asok @ Ashok Mohanty ......... Petitioner
-Versus-
Republic of India ......... Opposite Party
For Petitioner: - Mr. Santosh Kumar Mund
Senior Advocate
For Opposite Party: - Mr. Sarthak Nayak
Special Public Prosecutor
(C.B.I.)
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P R E S E N T:
THE HONOURABLE MR. JUSTICE S.K. SAHOO
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Date of Hearing: 20.09.2022 Date of Order: 26.10.2022
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S.K. SAHOO, J. The petitioner Asok @ Ashok Mohanty who is the
former Advocate General of Odisha has filed this criminal
revision petition under section 401 of the Code of Criminal
Procedure, 1973 (hereafter 'Cr.P.C.') to set aside the impugned
order dated 27.06.2018 passed by the learned Special C.J.M.
(C.B.I), Bhubaneswar in S.P.E. No.42 of 2014 in rejecting the
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petition filed by him under section 239 of Cr.P.C. for discharge
and posting the case for consideration of charge. The petitioner
has been charge sheeted under sections 120-B, 406, 409, 411,
420, 468, 471 of Indian Penal Code (hereafter 'I.P.C.') read with
sections 4, 5 and 6 of the Prize Chits and Money Circulation
Schemes (Banning) Act, 1978 (hereafter '1978 Act'). The said
case arises out of CBI, SPE, SCB, Kolkata F.I.R.
No.RC.47/S/2014-SCB/KOL dated 05.06.2014.
2. The aforesaid F.I.R. dated 05.06.2014 of the case
was registered by treating first information reports of eight cases
as original F.I.R. instituted in different police stations of the
State of Odisha against the Artha Tatwa (AT) Group of
Companies (hereafter 'Company') pursuant to the directions of
the Hon'ble Supreme Court dated 09.05.2014 passed in Writ
Petition (Civil) No.401 of 2013 filed by Shri Subrata Chattoraj
and Writ Petition (Civil) No.413 of 2013 filed by Shri Alok Jena.
In their first information reports, the informants of
those eight cases alleged, inter alia, that they along with the
other depositors paid huge amounts to the Company for getting
higher returns in terms of interests and incentives under various
schemes floated by the Company and cheap flats/plots under
various projects undertaken by the Company represented by its
// 3 //
Chief Managing Director Pradeep Kumar Sethy. The company
neither refunded the amount due to the depositors/investors as
agreed upon nor constructed the flats as per agreement and also
did not sell the alleged land to the investors/depositors. On being
asked by the depositors/investors to refund the money paid to
the company by them, accused Pradeep Kumar Sethy and other
Directors of the Company closed down the branch offices at
various places of Odisha as well as head office of the Company
located at SCR-29, Kharvelnagar, Unit-III, Bhubaneswar and fled
away and accordingly, the depositors have been cheated by the
Company.
In the said case, charge sheet was submitted on
11.12.2014 against the petitioner and other accused persons for
commission of offences as aforesaid keeping the further
investigation open under section 173(8) of Cr.P.C. In the charge
sheet, it is stated against the petitioner that he was the
Advocate General of Odisha during the period from June 2009 to
September 2014. He had purchased a building located at plot
No.11-3B/1332, Category-B measuring 4000 Sq.ft. in Sector-11,
Bidanashi, Cuttack from the accused Pradeep Kumar Sethy. As
per records, accused Pradeep Kumar Sethy had purchased the
said building from one of the Hon'ble Judge of this Court for
// 4 //
consideration of Rs.1,00,00,000/- (rupees one crore) during April
2011 out of the money flown from the accounts of the Company
and later, transferred the said plot to the petitioner. Though the
sale transaction was shown to be of Rs.1,01,00,000/- (rupees
one crore one lakh), but in fact an amount of Rs.70,00,000/-
(rupees seventy lakhs) only was paid by the petitioner to the
accused Pradeep Kumar Sethy. During the course of
investigation, two money receipts were seized from the official
premises of the petitioner indicating the payment of
Rs.1,01,00,000/- (rupees one crore one lakh) towards
consideration. The said money receipts bore the forged
signatures of accused Pradeep Kumar Sethy. During the relevant
period of time i.e. during October 2012, when the above
transaction took place, agitations were going on in Odisha
against the accused Pradeep Kumar Sethy so also against the
Company by the depositors which was evident from the
registration of the 1st F.I.R. against the Company on 06.10.2012
following which the accused Pradeep Kumar Sethy moved an
anticipatory bail application before this Court on 09.10.2012 and
during the relevant time, it is the prosecution case that the
petitioner entered into a criminal conspiracy with accused
Pradeep Kumar Sethy and in furtherance thereof, he extended
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his hospitality towards the said accused as a result of which
anticipatory bail was granted to the said accused on 18.10.2012.
During the course of investigation, two separate agreements for
sale of the said plots were recovered/seized from the possession
of the petitioner. In the said two agreements, the consideration
agreed upon was rupees one crore and one lakh which was
contrary to the consideration amount mentioned in the affidavit
dated 03.10.2012 submitted before the Cuttack Development
Authority (hereafter 'C.D.A.') for transfer of ownership of the
said property. It may be mentioned here that in the said affidavit
dated 03.10.2012, the consideration amount was mentioned as
rupees one crore and one thousand. As per the charge sheet, the
petitioner misappropriated the balance amount of rupees thirty
one lakhs that he was supposed to pay to the accused Pradeep
Kumar Sethy.
3. In the discharge petition and written notes of
submission filed before the learned trial Court, it was urged on
behalf of the petitioner that on a bare perusal of the police
papers supplied to the petitioner by the prosecution, it appeared
that the prosecution has relied upon the following materials:
(i) The statements of one Tapan Kumar Mohanty
and Umashankar Acharya to identify the false
// 6 //
signatures of Pradeep Kumar Sethy in the money
receipts seized from the office chamber of the
petitioner;
(ii) The statement of one Jibankanta Patnaik to the
effect that the accused Pradeep Kumar Sethy was
introduced by the petitioner to him and also to prove
that the petitioner was the Advocate General of
Odisha when accused Pradeep Kumar Sethy had
applied and got the anticipatory bail;
(iii) The statement of one Baisnab Ch. Das, the
Branch Manager of State Bank of India, Tulasipur
Banch to prove that Rs.70,00,000/- (rupees seventy
lakhs only) was withdrawn from the account of the
petitioner vide cheques mentioned in the money
receipts recovered from the office of the petitioner;
(iv) The statement of one Dillip Kumar Mohanty to
prove payment of Rs.70,00,000/- (rupees seventy
lakhs) by the petitioner to Pradeep Kumar Sethy;
(v) The file of Cuttack Development Authority
bearing No.Estt-LIC-BD-119/07 in respect of Plot
No.11-3B/1332 and the agreements for sale dated
// 7 //
28.12.2012 and 09.01.2013 between the petitioner
and Pradeep Kumar Sethy.
It was further urged on behalf of the petitioner that
from the sum total of the aforesaid materials, it would be seen
that the crux of the allegation against the petitioner is that
though the sale transaction was shown to have been made for
Rs.1,01,00,000/- (rupees one crore one lakh), but in fact an
amount of Rs.70,00,000/- (rupees seventy lakhs) was paid by
the petitioner to the accused Pradeep Kumar Sethy. It further
shows that during the course of investigation, some money
receipts were seized indicating the payment of Rs.1,01,00,000/-
towards the consideration, but on query, it was found that the
money receipts bore the forged signatures of accused Pradeep
Kumar Sethy. The prosecution has also tried to establish that
during the relevant period of time i.e. October 2012 when the
above transaction took place, agitations were going on in Odisha
against accused Pradeep Kumar Sethy so also against the
Company by the depositors which would be evident by
registration of the first F.I.R. against the Company on
06.10.2012, following which the accused Pradeep Kumar Sethy
moved an application for anticipatory bail before this Court on
09.10.2012 and during the relevant time, the petitioner was the
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Advocate General and he entered into criminal conspiracy with
the said accused Pradeep Kumar Sethy and in furtherance
thereof extended his hospitality towards the accused for which
his application for anticipatory bail was allowed on 18.10.2012.
It was further urged in the discharge petition that
during the course of investigation, the I.O. seized two separate
agreements for sale of the said plot from the possession of the
petitioner. In the said agreements, the consideration amount as
agreed upon by the parties was Rs.1,01,00,000/- (rupees one
crore and one lakh) which was contrary to the consideration
amount mentioned in the affidavit dated 03.10.2012 of the
accused Pradeep Kumar Sethy made in connection with transfer
of ownership of the said property in favour of the petitioner. In
the said affidavit dated 03.10.2012, consideration amount
mentioned was Rs.1,00,01,000/- (rupees one crore and one
thousand), but the petitioner paid only Rs.70,00,000/- (rupees
seventy lakhs) to the accused Pradeep Kumar Sethy and thereby
he had misappropriated the remaining amount of Rs.31,00,000/-
(rupees thirty one lakhs) which he was supposed to pay to
accused Pradeep Kumar Sethy.
It further urged in the discharge petition that though
the petitioner was the Advocate General of Odisha during the
// 9 //
relevant time, but it was humanly impossible for him to verify
each and every case and to know the facts and points of law
involved in the case and particularly in criminal cases, who were
the accused persons and what were the accusation against
them. The accused Pradeep Kumar Sethy was involved in a
criminal case and he filed an application for anticipatory bail
through his counsel which was duly opposed to by the State
counsel, but the bail application was disposed of. The allegation
made by the prosecution to the effect that the petitioner had got
acquaintance with the accused Pradeep Kumar Sethy before
filing of the case for which he had shown undue favour is nothing
but based on surmises and conjectures.
It was further urged in the discharge petition that
considering the case of the prosecution, none of the ingredients
of any of the offences alleged are made out against the
petitioner. Though in the concluding part of the charge sheet
filed against the petitioner, it was mentioned that the petitioner
misappropriated the balance amount of Rs.31,00,000/- (rupees
thirty one lakhs) that he was supposed to pay to the accused
Pradeep Kumar Sethy, in view of the definition of 'criminal
breach of trust' as per section 405 of the I.P.C., it would be seen
that to constitute an offence of criminal breach of trust, it is
// 10 //
essential that the prosecution should prove that the accused was
entrusted with some property and that in respect of such
property so entrusted, there was dishonest misappropriation or
dishonest use or dishonest conversion by the accused, that the
ownership of the property in respect of which criminal breach of
trust is alleged to have been committed, was with some persons
other than the accused and the later must held it on account of
some persons or in some way for benefit. In other words, there
must be an entrustment and the word 'any' occurring in the
section do not enlarge the meaning of term 'entrustment' and it
would arise whenever something whether be it money or any
other thing is given to someone with some direction, but the
same was not done in the same line. The person aggrieved is the
person, whose property has been misappropriated by the
accused and he should have set the law into motion to put an
accused in the ambit and scope of section 405 of the I.P.C.
Accused Pradeep Kumar Sethy with whom the petitioner
allegedly entered into an agreement to pay certain amount is not
the informant nor he had made any allegation that his property
was misappropriated by the accused on a wrong notion. Bereft of
that, the document seized by the prosecution from the office of
the petitioner to the effect that Rs.31,00,000/- (rupees thirty
// 11 //
one lakhs) has been paid to accused Pradeep Kumar Sethy was
not utilized by the petitioner in any manner and it was still lying
in the Bank, which would show that his intention was not
deliberate or dishonest to cheat or to misappropriate the money
of accused Pradeep Kumar Sethy. Thus, the ingredients of
section 405 of the I.P.C. are not attracted in the case inasmuch
as to attract this section, there must be entrustment plus
misappropriation and as such charge sheet under sections
406/420 of the Indian Penal Code against the petitioner is not
tenable either in fact or in law. Here, there is no allegation by
the prosecution as to who had entrusted the property to the
petitioner and to whom the money was not been paid as per the
contract.
It was further urged that there is no evidence that
prior to the execution of the agreements dated 28.12.2012 and
09.01.2013 and at the time of filing bail application by the
accused Pradeep Kumar Sethy, the petitioner had entered into a
criminal conspiracy with the accused. The allegation in the
charge sheet is that the petitioner entered into criminal
conspiracy with accused Pradeep Kumar Sethy to facilitate grant
of bail is totally misconceived. The grant of bail is a judicial order
passed by one Hon'ble Judge of this Court and therefore, it is
// 12 //
very difficult to suggest that the bail order was the outcome of a
criminal conspiracy and as such submission of chargesheet under
section 120-B of the I.P.C. is not tenable either in the fact or in
law. It was further urged in the discharge petition that the other
offences as per the charge sheet are not applicable against the
petitioner in the facts and circumstances of the case.
In appears from the impugned order that the learned
counsel for the petitioner cited certain decisions of the Hon'ble
Supreme Court in the cases of P. Vijayan -Vrs.- State of
Kerala reported in (2010) 2 Supreme Court Cases 398 and
Yogesh -Vrs.- State of Maharastra reported in (2008) 10
Supreme Court Cases 394 during course of hearing of the
discharge petition.
4. No objection to the discharge petition was filed by
the prosecution.
5. After hearing the learned counsel for both the
parties, the learned trial Court while rejecting the discharge
petition observed as follows:-
"Admittedly, the petitioner is raising the
aforesaid issues as averred in his petition for the
first time and that too much after submission of
charge sheet. Absolutely, not a single scrap of
paper is available with the case record to show
that if at all the petitioner has ever challenged
// 13 //
the propriety of the investigation from the day it
was registered under the above mentioned penal
sections of law. That apart, it is unascertainable
as to why and under what circumstance the
petitioner did not chose to challenge the order of
taking cognizance after submission of charge
sheet. Moreover, the alleged overtacts have
been committed in pursuance of criminal
conspiracy by the petitioner along with other
accused persons. Needless to say, this Court has
taken cognizance of the offences under sections
120-B, 406, 409, 411, 420, 468, 471 of I.P.C.
read with sections 4, 5 and 6 of the 1978 Act in
this case being satisfied with the existence of a
prima facie case. Further on perusal of the case
record, it is found that the above petitioner is
involved in the activities of M/s. Artha Tatwa
Group of Companies and there exists prima facie
materials to proceed against him.
In the above view of the matter, this Court
finds no material in the petition filed on behalf of
the accused-petitioner namely Ashok Mohanty as
such the same is liable to be rejected in the
facts and circumstances of this case for the
reasons herein before stated."
6. Mr. Santosh Kumar Mund, learned Senior Advocate
appearing for the petitioner challenging the impugned order
contended that the entire reasoning assigned by the learned trial
// 14 //
Court in rejecting the discharge petition are fallacious. The trial
Court seems to be thoroughly confused regarding the scope of
section 239 of Cr.P.C. for which it could not adjudicate the
contentions raised from the side of the petitioner properly and in
accordance with law. Certain documents were produced by the
learned Special Public Prosecutor in this Court during the hearing
of the criminal revision petition which were not available in the
trial Court at the time of consideration of discharge petition and
those documents are letter of the Investigating Officer dated
30.10.2017 addressed to Government Examiner of Question
Document, Forensic Examination Report dated 30.11.2017,
purported petition filed by the prosecution before the learned
trial Court on 21.05.2018 along with the documents annexed
thereto, 161 Cr.P.C. statement of one Pradyumna Keshari
Praharaj and 164 Cr.P.C. statement of Durga Prasad Dhal
recorded on 07.11.2017 and his 161 Cr.P.C. statements recorded
on 13.10.2017 and 26.10.2017. The learned counsel further
submitted that the additional documents submitted by the
prosecution in course of hearing of the criminal revision petition
though was produced on 21.05.2018 by the I.O. but those were
taken away and there is absolutely no reference to such
documents in the impugned order and therefore, when at the
// 15 //
time of consideration of the discharge petition under section 239
Cr.P.C., the trial Court was supposed to consider the police
report and the documents sent with it under section 173 of
Cr.P.C. and the additional documents produced here before this
Court were not available with the learned trial Court, the same
should not be taken into account at all. According to Mr. Mund,
entertaining new materials produced by the learned Special
Public Prosecutor before this Court in exercise of revisional
jurisdiction would not be proper and justified as the petitioner
got no scope to go through those documents at the time of
consideration of the discharge petition by the learned trial Court
to have his say. Learned counsel almost reiterated the
submissions which were made in the discharge petition and
written note of submission filed before the learned trial Court
and apart from the decisions which were relied upon in the trial
Court, he placed reliance in the cases of Dr. Vimla -Vrs.- Delhi
Administration reported in A.I.R. 1963 Supreme Court
1572, Rajendra @ Rajesh @ Raju -Vrs.- State (NCT of
Delhi) reported in (2019) 10 Supreme Court Cases 623,
Dalip Kaur and others -Vrs.- Jagnar Singh and another
reported in (2009) 14 Supreme Court Cases 696, Archana
Rana -Vrs.- State of Uttar Pradesh and another reported in
// 16 //
(2021) 3 Supreme Court Cases 751, M.N.G. Bharateesh
Reddy -Vrs.- Ramesh Ranganathan reported in 2022
Supreme Court Cases Online (SC) 1061, N. Raghavender -
Vrs.- State of Andhra Pradesh (CBI) reported in 2021
Supreme Court Cases Online (SC) 1232, State -Vrs.-
Siddarth Vashisth reported in 2001 Supreme Court Cases
Online Del 270 and Brij Ballabh Goyal -Vrs.- Shri Satya Dev
and another reported in A.I.R. 1960 Raj 213.
7. Mr. Sarthak Nayak, learned Special Public Prosecutor
appearing for the C.B.I., on the other hand, submitted that the
close nexus between the petitioner with co-accused Pradeep
Kumar Sethy is evident from the statements of Shri Jiban Kanta
Pattanaik, Senior Private Secretary to Advocate General along
with Shri Durga Prasad Dhal, Advocate and Shri Pradyumna
Keshari Praharaj. Shri Jiban Kanta Pattanaik has specifically
stated that the petitioner telephonically called him to his
residence during the evening hours on 11.01.2013 and asked
him to attest the signatures of accused Pradeep Kumar Sethy,
who was present at his residence at that time. This indicates that
the accused Pradeep Kumar Sethy, C.M.D. of the Company was
so close to the petitioner that he was even having access to the
residence of the petitioner. Witness Durga Prasad Dhal,
// 17 //
AQdvocate in his statement recorded under section 164 Cr.P.C.
has also clearly stated before the learned J.M.F.C., Bhubaneswar
that accused Shri Devasis Panda, the then Additional
Government Advocate, who was close to the accused Pradeep
Kumar Sethy, was also very close to the petitioner and similarly,
Shri Pradyumna Keshari Praharaj has stated that the property at
C.D.A., Cuttack was given to the petitioner free of cost so that
he would help the company at High Court in case any legal
problem arose in future. He has also stated that when series of
allegations were leveled against the petitioner for the above
property, the petitioner paid only Rs.70.00 lakhs during January-
March, 2013 through cheques and remaining amount were never
paid by the petitioner.
Mr. Nayak further argued that during the course of
investigation, searches were conducted at the residential as well
as office premises of the petitioner and two separate agreements
for sale of the said plot with building, both executed between the
petitioner and accused Pradeep Kumar Sethy were
recovered/seized from the possession of the petitioner. In the
said two agreements dated 28.12.2012 and 09.01.2013, the
consideration agreed upon was Rs.1,01,00,000/- (rupees one
crore and one lakh) which was contrary to the consideration
// 18 //
amount as mentioned in another affidavit dated 03.10.2012
submitted to the C.D.A. for transfer of ownership of the said
property.
The statement of account of the petitioner collected
from the bank during the course of investigation revealed that
only Rs.70.00 lakhs was paid by the petitioner to the accused
Pradeep Kumar Sethy and balance amount of Rs.31.00 lakhs
was never paid by the petitioner. Thus, it is clear that the
petitioner in criminal conspiracy with the accused Pradeep Kumar
Sethy misappropriated Rs.31.00 lakhs that he had in fact
collected from the victim depositors of company.
Mr. Nayak further submitted that the investigation
further revealed that the petitioner had submitted another
affidavit dated 05.01.2013 to the C.D.A. Though the said
affidavit was shown to have been sworn before the Executive
Magistrate, Sadar, Cuttack, but investigation revealed that the
signature of the Executive Magistrate on the affidavit was
forged. Relevant facts and the evidence to prove the offence of
forgery and using a forged document as genuine have already
been submitted as relied upon documents before the learned
trial Court. Therefore, the petitioner is liable for commission of
// 19 //
offences of using forged documents (valuable security) as
genuine knowing the same to be forged.
Mr. Nayak further submitted that during course of
investigation, the file relating to the transfer of the property
located at plot No.11-3B/1332, Category-B, measuring 4000
Sq.ft. in Sector-11, Bidanashi, Cuttack was seized from the office
of the C.D.A. and the said file contained affidavits dated
03.10.2012 sworn by accused Pradeep Kumar Sethy and another
affidavit dated 03.10.2012 sworn by the petitioner before the
Executive Magistrate, Sadar, Cuttack. Investigation revealed the
signatures of Shri Durga Prasad Dhal as well as the Executive
Magistrate on the affidavit dated 03.10.2012 sworn by the
petitioner are forged. This fact has also been proved from the
statement of Shri Durga Prasad Dhal, Advocate recorded under
section 164 Cr.P.C. This clearly indicates that the petitioner,
right from the beginning, got prepared forged documents namely
the affidavits and used the said forged affidavits for transfer of
the property from accused Pradeep Kumar Sethy in his name
knowing the same to be forged.
He further argued that during course of
investigation, searches were conducted at the residential and
office premises of the petitioner. During course of search, a
// 20 //
bunch of documents including two money receipts both dated
25.03.2013 towards receipt of total amount Rs.1,01,00,000/-
(rupees one crore and one lakh) through cheques indicating
cheques numbers (Rs.81.00 lakhs for land and building +
Rs.20.00 lakhs for furniture, fixtures in respect of plot No.113-
B/1333-2, Sector-11, Markat Nagar, Cuttack) were seized. The
said two money receipts bore forged signatures of accused
Pradeep Kumar Sethy. Shri Tapan Kumar Mohanty, a witness
who was acquainted with the handwritings of accused Pradeep
Kumar Sethy has stated that the signatures of the said accused
on both the money receipts dated 25.03.2013 were forged.
While supporting the impugned order, it was argued
that at the stage of framing of charge, a detailed inquiry and
detailed appreciation of defence argument is impermissible. The
Court is required to see whether a prima facie case regarding the
commission of certain offences is made out. The question
whether the charges will eventually stand proved or not can be
determined only after the evidence is adduced in the case.
Mr. Nayak further argued that as per the agreement
for sale dated 28.12.2012 and 09.01.2013 executed between
accused Pradeep Kumar Sethy and the petitioner, the total
consideration money for sale of the scheduled property has been
// 21 //
mentioned as Rs.1,01,00,000/- (rupees one crore and one lakh)
whereas investigation revealed that only Rs.70.00 lakhs was
paid by the petitioner. During the course of interrogation, the
accused Pradeep Kumar Sethy revealed before C.B.I. that the
remaining amount of Rs.31.00 lakhs was never paid and the
same was misappropriated by the petitioner.
It was further argued that the petitioner not only
prepared the forged affidavits dated 03.10.2012 and 05.01.2013
shown to be sworn before the Executive Magistrate, Cuttack
Sadar, Cuttack but also used those affidavits as genuine by
submitting the same to the C.D.A. authorities for transfer of the
property from the accused Pradeep Kumar Sethy to his name.
C.F.S.L. expert, after forensic examination, has opined that the
signature of the identifier is forged on the affidavit dated
03.10.2012 submitted by the petitioner and therefore, the
petitioner is liable for commission of offences punishable under
sections 468 and 471 of the Indian Penal Code.
Mr. Nayak emphatically argued that on holding the
post of Advocate General, it was the duty of the petitioner to
ensure that such a matter of grave public importance like the
anticipatory bail of accused Pradeep Kumar Sethy be properly
represented before this Court so that the accused, who had
// 22 //
allegedly cheated the innocent public at large, should not get
anticipatory bail. As Advocate General of the State, he cannot
take the plea that he was not having any knowledge about such
a case of grave public importance in which state-wide public
agitations were going on. The petitioner, as Advocate General,
was responsible for proper representation of the facts before this
Court so that the accused Pradeep Kumar Sethy would not have
got anticipatory bail, but in criminal conspiracy with the said
accused, the petitioner intentionally did not do it for which
anticipatory bail was granted to the accused by a cryptic order.
While concluding his argument, Mr. Nayak contended
that the impugned order is just and proper in the eyes of law
and hence, the revision petition filed by the petitioner should be
dismissed in the interest of justice. Reliance was placed upon the
decisions of the Hon'ble Supreme Court in the cases of State of
Orissa -Vrs.- Debendra Nath Padhi reported in (2005) 30
Orissa Criminal Reports (SC) 177, Superintendent and
Remembrancer of Legal Affairs West Bengal -Vrs.- Anil
Kumar Bhunja and others reported in A.I.R. 1980 S.C. 52
and State of Maharashtra -Vrs.- Priya Sharan Maharaj and
others reported in A.I.R. 1997 S.C. 2041.
// 23 //
8. Before adverting to the contentions raised by the
learned counsel for the respective parties carefully, on perusal of
the impugned order passed by the learned trial Court, it seems
that the discharge petition was rejected on the following
grounds:-
(i) The petitioner is raising the issues as averred in
his petition for the first time and that too much after
submission of charge sheet. Absolutely, not a single
scrap of paper is available with the case record to
show that if at all the petitioner had ever challenged
the propriety of the investigation from the day it was
registered under the above mentioned penal sections
of law;
(ii) This Court has taken cognizance of the offences
under sections 120-B, 406, 409, 411, 420, 468, 471
of I.P.C. read with sections 4, 5 and 6 of the 1978
Act on being satisfied with the existence of a prima
facie case. It is unascertainable as to why and under
what circumstance, the petitioner did not chose to
challenge the order of taking cognizance after
submission of charge sheet;
(iii) The alleged overtacts have been committed in
pursuance of criminal conspiracy by the petitioner
along with other accused persons;
(iv) On perusal of the case record, it is found that
the petitioner is involved in the activities of M/s.
Artha Tatwa Group of Companies.
// 24 //
The first two reasonings assigned in the impugned
order, in my humble view are quite fallacious. Non-challenging of
the propriety of investigation from the day the F.I.R. was
registered so also the order of taking cognizance after
submission of charge sheet, cannot be a ground to reject the
discharge petition. Obviously, when the F.I.R. was registered on
05.06.2014 treating the first information reports of eight cases
as original F.I.R. of the case in view of the direction of the
Hon'ble Supreme Court, the name of the petitioner was not there
in the first information report. Where was the necessity for the
petitioner to challenge the registration of the F.I.R. lodged on
05.06.2014 immediately after its registration when he was not
named as an accused in the said F.I.R.? An accused can
challenge the F.I.R. so also the submission of charge sheet and
taking of cognizance at different stages but merely because he
did not do that, he is not deprived in filing the petition for
discharge before the learned trial Court either under section 227
Cr.P.C. or under section 239 of Cr.P.C. at the appropriate stage.
In other words, it would be quite unjustified to hold that the
accused who challenges the F.I.R. after its registration and the
order of taking cognizance after submission of charge sheet can
only file the discharge petition in the trial Court. This scope of
// 25 //
interference with the criminal proceeding is different at different
stages. Both the sections 227 and 239 of Cr.P.C. confer valuable
right on the accused to file petition for discharge before the
learned trial Court. Obviously, if he files such a petition and
serves a copy of the same on the learned Public Prosecutor, the
latter is at liberty to file objection to such petition and even
without filing any written objection, the Public Prosecutor can
oppose the discharge petition filed by the accused. There is no
bar on the part of the Public Prosecutor in raising oral objection
to the discharge petition even though he has not filed the written
objection. Mere non-filing of written objection by the Public
Prosecutor cannot be a ground on the part of the learned trial
Court not to consider the oral objection raised in that behalf.
Therefore, I am of the humble view that the petitioner as an
accused is quite justified in law in filing a petition for discharge
under section 239 Cr.P.C. before the learned trial Court even
though earlier he did not challenge the F.I.R. or the order of
taking cognizance. Choice of challenging the proceeding at a
particular stage lies with the accused and if it is legally
permissible, then the Court has to entertain the same and
consider the same in accordance with law and cannot reject the
// 26 //
petition merely on the ground of not challenging the same
earlier.
So far as the fourth reasoning assigned by the
learned trial Court that the petitioner is involved in the activities
of M/s. Artha Tatwa Group of Companies, learned counsel for
both the sides fairly submitted there is no such material on
record in that respect.
The third reasoning assigned by the learned trial
Court that the alleged overtacts have been committed in
pursuance of criminal conspiracy by the petitioner along with
other accused persons, will be discussed later.
9. At the very outset, it would be apt to discuss the
scope and ambit of section 239 of Cr.P.C. which comes under
Chapter XIX of the Code and deals with the power of the
Magistrate to discharge the accused in the trial of warrant cases.
In the case of Debendra Nath Padhi (supra), it is
held that section 239 of Cr.P.C. requires the Magistrate, to
consider 'the police report and the documents sent with it under
section 173' and, if necessary, examine the accused and after
giving accused an opportunity of being heard, if the Magistrate
considers the charge against the accused to be groundless, the
accused is liable to be discharged by recording reasons thereof.
// 27 //
There can only be limited evaluation of materials and documents
on record and sifting of evidence to prima facie find out whether
sufficient ground exists or not for the purpose of proceeding
further with the trial, have so held with reference to materials
and documents produced by the prosecution and not the
accused. The material as produced by the prosecution alone is to
be considered and not the one produced by the accused. In our
view, clearly the law is that at the time of framing charge or
taking cognizance, the accused has no right to produce any
material.
In the case of Anil Kumar Bhunja (supra), it is held
that the case was at the stage of framing charges and the
prosecution evidence had not yet commenced. The Magistrate
was therefore, to consider the above question on a general
consideration of the materials placed before him by the
investigating police officer. At this stage, as was pointed out by
this Court in State of Bihar -Vrs.- Ramesh Singh 1977
Criminal Law Journal 1606, the truth, veracity and effect of
the evidence which the prosecutor proposes to adduce are not to
be meticulously judged. The standard of test, proof and
judgment which is to be applied finally before finding the
accused guilty or otherwise is not exactly to be applied at the
// 28 //
stage of section 227 or 228 of the Cr.P.C. At this stage, even a
very strong suspicion founded upon materials before the
Magistrate, which leads him to form a presumptive opinion as
the existence of the factual ingredients constituting the offence
alleged, may justify the framing of charge against the accused in
respect of the commission of the offence.
In the case of Priya Sharan Maharaj (supra), it is
held that at the stage of framing of the charge, the Court has to
consider the material with a view to find out if there is ground
for presuming that the accused has committed the offence or
that there is not sufficient ground for proceeding against him and
not for the purpose of arriving at the conclusion that it is not
likely to lead to a conviction.
In the case of P. Vijayan (supra), it is observed that
if two views are possible and one of them gives rise to suspicion
only, as distinguished from grave suspicion, the trial Judge will
be empowered to discharge the accused and at this stage, he is
not to see whether the trial will end in conviction or acquittal.
Further, the words "not sufficient ground for proceeding against
the accused" clearly show that the Judge is not a mere Post
Office to frame the charge at the behest of the prosecution, but
has to exercise his judicial mind to the facts of the case in order
// 29 //
to determine whether a case for trial has been made out by the
prosecution. In assessing this fact, it is not necessary for the
Court to enter into the pros and cons of the matter or into a
weighing and balancing of evidence and probabilities which is
really the function of the Court, after the trial starts. At the stage
of section 227, the Judge has merely to sift the evidence in order
to find out whether or not there is sufficient ground for
proceeding against the accused. In other words, the sufficiency
of ground would take within its fold the nature of the evidence
recorded by the police or the documents produced before the
Court which ex facie disclose that there are suspicious
circumstances against the accused so as to frame a charge
against him. Section 227 in the new Code confers special power
on the Judge to discharge an accused at the threshold if upon
consideration of the records and documents, he find that "there
is not sufficient ground" for proceeding against the accused. In
other words, his consideration of the record and document at
that stage is for the limited purpose of ascertaining whether or
not there is sufficient ground for proceeding against the accused.
If the Judge comes to a conclusion that there is sufficient ground
to proceed, he will frame a charge under Section 228, if not, he
will discharge the accused. This provision was introduced in the
// 30 //
Code to avoid wastage of public time when a prima facie case
was not disclosed and to save the accused from avoidable
harassment and expenditure.
In my humble view, when the allegations are
baseless or without foundation and no prima facie case are made
out, it is just and proper to discharge the accused to prevent
abuse of process of the Court. If there is no ground for
presuming that accused has committed an offence, the charges
must be considered to be groundless. The ground may be any
valid ground including the insufficiency of evidence to prove the
charge. When the materials at the time of consideration for
framing the charge are of such a nature that if unrebutted, it
would make out no case whatsoever, the accused should be
discharged. Appreciation of evidence is an exercise that this
Court is not to undertake at the stage of consideration of the
application for discharge. The truth, veracity and effect of the
materials proposed to be adduced by the prosecution during trial
are not to be meticulously adjudged. The likelihood of the
accused in succeeding to establish his probable defence cannot
be a ground for his discharge.
Keeping in view the ratio laid down by the Hon'ble
Supreme Court in the aforesaid cases, when so many points
// 31 //
were canvassed not only in the discharge petition and written
note of submission filed by the petitioner and contentions were
also raised during the hearing of the discharge petition citing
decisions, it was not proper on the part of the learned trial Court
to reject the same in a slipshod manner on some fallacious
grounds without even limited evaluation of materials and
documents and sifting the evidence to prima facie find out
whether sufficient grounds exist or not for the purpose of
proceeding against the petitioner. What prompted the learned
trial Court to hold that the alleged overt act have been
committed in pursuance of criminal conspiracy by the petitioner
along with other accused persons, is not borne out from the
impugned order. Failure to record reasons can amount to denial
of justice, as the reasons are live links between the minds of the
decision taker to the controversy in question and the decision or
conclusion arrived at. Requirement of a speaking order is
judicially recognized as an imperative. Reasons substitute
subjectivity by objectivity. The emphasis on recording reasons is
that if the decision reveals the 'inscrutable face of the sphinx', it
can, by its silence, render it virtually impossible for the Courts to
perform their appellate function or exercise the power of judicial
review in adjudicating the validity of the decision. Right to
// 32 //
reason is an indispensable part of a sound judicial system,
reasons at least sufficient to indicate an application of mind to
the matter before Court. Another rationale is that the affected
party can know why the decision has gone against him. One of
the salutary requirements of natural justice is spelling out
reasons for the order made, in other words, a speaking out.
(Ref:-State of Punjab -Vrs.- Bhag Singh : (2004) 1
Supreme Court Cases 547, Rajeev Suri -Vrs.- Delhi
Development Authority and others : 2021 SCC OnLine SC
7).
The conclusions arrived at by the learned trial Court
in the impugned order without assigning any cogent reasons
reflects non-application of mind. In view of fact that the learned
trial Court has passed the impugned order in a mechanical
manner, though I was contemplating of sending the matter on
remand to the said Court to decide the matter afresh by passing
a reasoned order discussing the contentions raised but as the
matter is pending in this Court since 2018 and the further
proceeding in the trial Court has been stayed and taking note of
the same, the Hon'ble Supreme Court in its order dated
12.09.2022 passed in SLP (Crl.) Nos.5366-5367 of 2022
requested this Court to dispose of this revision petition in an
// 33 //
expeditious manner, it would be proper on my part to deal with
the submissions raised by the respective parties in favour of
discharge and against it instead of remanding the matter to the
trial Court to cut short any further delay.
10. There is no dispute that the Hon'ble Supreme Court
in its order dated 09.05.2014 passed in the aforesaid two writ
petitions filed by Sri Subrata Chattoraj and Sri Alok Jena
superficially directed to C.B.I. to look into the larger conspiracy
aspect and money trail. The investigation revealed which is also
not disputed by the learned counsel for the petitioner that the
petitioner purchased a building located in C.D.A. Sector-11,
Bidanasi, Cuttack from the accused Pradeep Kumar Sethy who
had purchased the same from one of the Hon'ble Judge of this
Court during April 2011. The prosecution case is that the
purchase of the property was made from the money flown from
the accounts of the company which was latter transferred to the
petitioner. On 03.10.2012 an application for 3rd party transfer
was filed before C.D.A. by accused Pradeep Kumar Sethy and
petitioner also filed application before Secretary, C.D.A.
enclosing necessary documents and affidavit in prescribed
format for transfer of the plot. On 06.10.2012 Balasore P.S.
Case No.352 of 2012 was instituted against accused Pradeep
// 34 //
Kumar Sethy and others for commission of offences under
sections 420/506/34 of the I.P.C. along sections 4, 5 and 6 of
1978 Act. Accused Pradeep Kumar Sethy approached this Court
for anticipatory bail in BLAPL No.27162 of 2012 on 09.10.2012
and the bail application was allowed as per order dated
18.10.2012. An agreement was entered into by the accused
Pradeep Kumar Sethy with the petitioner for sale of property for
an agreed consideration of Rs.1,01,00,000/- (rupee one crore
and one lakh) only. In the said agreement, it was mentioned
that advance amount of Rs.20,00,000/- (rupees twenty lakh)
was paid vide cheque no.041990 dated 28.12.2012. Out of the
agreed consideration, Rs.81 lakhs was towards the cost of land
and building and Rs.20 lakhs was towards cost of furniture,
fixtures and electrical and electronic fittings. On 09.01.2013
another agreement was entered into between accused Pradeep
Kumar Sethy and the petitioner. The necessity for execution of
fresh agreement arose as the cheque bearing no.041990 dated
28.12.2012 could not be encashed and it was refunded for which
Rs.20 lakhs was paid as advance through two cheques bearing
nos.407101 and 407102 dated 09.01.2013. This amount of
rupees twenty lakh was debited from the account of the
petitioner on 11.01.2013 as per the statement of witness
// 35 //
Gouranga Charan Das, Branch Manager, S.B.I., Tulasipur
Branch, Cuttack. Another cheque bearing no.407103 dated
08.02.2013 amounting to Rs.10 lakhs was paid to the accused
Pradeep Kumar Sethy by the petitioner and on 11.02.2013 the
said amount was debited from the account of the petitioner. On
22.03.2013 C.D.A. allowed transfer and allotted the plot in
favour of the petitioner and on 25.03.2013 lease deed was
executed before the District Sub-Registrar, Cuttack between the
C.D.A and the petitioner. On 25.03.2013 the petitioner paid
rupees seventy one lakh through eight cheques to accused
Pradeep Kumar Sethy, out of which seven cheques were of the
value of rupees ten lakh each and another one was of rupees
one lakh. Accused Pradeep Kumar Sethy acknowledged the
receipt of eight cheques and sent a money receipt to the
petitioner, out of which he encashed the cheque bearing nos.
407107, 407108, 407109 and 407110 on 30.03.2013, but did
not encash cheque nos.407111, 407112, 407113 and 407114. It
is the prosecution case that though the said transaction between
the petitioner and the accused Pradeep Kumar Sethy were
shown to be Rs. 1,01,00,000/-, but in fact an amount of
Rs.70,00,000/- was paid by the petitioner to the said accused.
// 36 //
When a submission was made on the last date of
hearing of this revision petition that the documents which were
produced by the learned Special Public Prosecutor before this
Court were also produced before the learned trial Court, but
those documents were taken away by the Investigating Officer
for which those were not available with the Court at the time of
passing the impugned order, in order to ascertain the correct
state of affairs, this Court vide order dated 20.09.2022 called for
the relevant order sheets and the same was sent by the learned
trial Court which indicated on 21.05.2018 on the strength of an
advance petition filed by the learned Public Prosecutor, C.B.I.,
the I.O. filed a petition along with some documents in
compliance to the order dated 17.04.2018 and another memo
was filed by the learned Public Prosecutor with a prayer to take
back those documents/statements to keep in safe custody in
C.B.I. Malkhana after perusal of the same by the Court in order
to facilitate smooth investigation of the case. The learned trial
Court allowed the prayer and the I.O. was directed to supply
those documents/statements to the learned defence counsel
before 26.05.2018 and the original documents/statements were
handed over to the I.O. with a direction to keep the same in safe
custody. The learned Special Public Prosecutor produced
// 37 //
documentary proof to indicate that on 22.05.2018 the learned
counsel appearing for the petitioner in the trial court received
such documents. The learned counsel for the petitioner also did
not dispute the same. Therefore, the documents which were
produced before this Court by Mr. Nayak, the learned Special
Public Prosecutor were not only produced before the learned trial
Court and perused by the Court on 21.05.2018 but also the
copies were supplied to the learned defence counsel appearing
for the petitioner in the trial Court on 22.05.2018 which was
much prior to the passing of the impugned order on 27.06.2018.
Though the learned counsel for the petitioner placed
reliance in the case of Siddarth Vashisth (supra), wherein it
was held that the High Court while exercising revisional
jurisdiction must not admit further evidence which was not the
basis of the view taken by the learned trial Judge and also in the
case of Brij Ballabh Goyal (supra), wherein it was held that a
new question of fact cannot be allowed to be raised in revision,
but in my humble view, when certain important statements and
documents which were collected after submission of first charge
sheet during course of further investigation under section 173(8)
of Cr.P.C. were filed in trial Court and copies of the same were
also supplied to the learned defence counsel for the petitioner in
// 38 //
the trial Court prior to the consideration of discharge petition,
this Court can very well look into such statements and
documents at this stage when the rejection of the discharge
petition is under challenge as it cannot be said the filing of the
documents by the learned Special Public Prosecutor has taken
the petitioner for surprise and he has been seriously prejudiced
thereby.
The statements of witnesses Jibankanta Pattanaik,
Durga Prasad Dhal, Pradyumna Keshari Praharaj indicate about
close nexus between the petitioner and accused Pradeep Kumar
Sethy, C.M.D. of the Company. The consideration amount for
sale of property as mentioned in two agreements dated
28.12.2012 and 09.01.2013 was contrary to the consideration
amount mentioned in the affidavit dated 03.10.2012 submitted
to the C.D.A. authorities for transfer of ownership of the
property. It is strange that in the aforesaid affidavit dated
03.10.2012, accused Pradeep Kumar Sethy has mentioned to
have received the consideration money amounting to
Rs.1,00,01,000/- (rupees one crore and one thousand) only as
agreed between them. In fact, not a single pie had been paid by
the petitioner to the accused Pradeep Kumar Sethy as on
03.10.2012. The first cheque was paid by the petitioner to the
// 39 //
said accused Pradeep Kumar Sethy vide cheque no.041990
dated 28.12.2012 which is mentioned in the agreement dated
28.12.2012. The cheque bearing no.041990 dated 28.12.2012
could not be encashed and it was refunded for which another
two account payee cheques bearing nos.407101 and 407102
dated 09.01.2013 of rupees ten lakhs each were issued by the
petitioner in favour of the said accused which is mentioned in the
agreement dated 09.01.2013. This amount of rupees twenty
lakhs was debited from the account of the petitioner on
11.01.2013. A big question mark is raised as to why without
receiving a single pie towards the transfer of property, accused
Pradeep Kumar Sethy mentioned in his affidavit dated
03.10.2012 submitted to the C.D.A. authorities that he had
received consideration money amounting to Rs.1,00,01,000/-
(rupees one crore and one thousand) only from the petitioner as
agreed between them. Why in spite of receiving eight cheques
from the petitioner on 25.03.2013 for total amount of
Rs.71,00,000/- (rupees seventy one lakhs), he only presented
four cheques for encashment and not the other four cheques of
carrying total amount of Rs.31,00,000/- (rupees thirty one
lakhs). When search was conducted at the residential and office
premises of the petitioner, two money receipts, both were dated
// 40 //
25.03.2013 stated to have been issued by the accused Pradeep
Kumar Sethy, one for an amount Rs.81 lakhs and the other for
Rs.20 lakhs were seized, but as per the statement of Tapan
Kumar Mohanty, those money receipts bore the forged
signatures of accused Pradeep Kumar Sethy. An affidavit dated
05.01.2013 was submitted by the petitioner to the C.D.A.
authorities which was allegedly sworn before the Executive
Magistrate, Sadar, Cuttack but the investigation revealed that
the signature of the Executive Magistrate on the affidavit was
forged. Relevant documents and statements to that effect have
also been filed before the learned trial Court. The file relating to
transfer of property was seized the office of C.D.A. which
contained one affidavit dated 03.10.2012 of the accused Pradeep
Kumar Sethy and the other affidavit dated 03.10.2012 of the
petitioner, but investigation revealed that the signatures of
Durga Prasad Dhal as well as the Executive Magistrate on the
affidavit of the petitioner were forged. The statement of Durga
Prasad Dhal recorded under section 164 of Cr.P.C. substantiates
the same.
The charge sheet reveals that in view of the promise
of higher returns in terms of interest and incentives under
various schemes floated by the Company, the depositors
// 41 //
invested huge amount with the Company for the purchase of
cheap flats/plots under various projects/schemes undertaken by
the Company represented by its Chief Managing Director i.e.
accused Pradeep Kumar Sethy. The Company failed to deliver on
its promise and neither did it return the amount due to the
depositors/investors as agreed upon nor did it construct the flats
as agreed upon. When the investors/depositors attempted to
contact the representatives of the Company seeking refund of
the money, the accused Pradeep Kumar Sethy and others so
connected to the Company fled from the office, thereby cheating
the investors/depositors of their hard earned money and
savings. After collecting such deposits from the innocent
depositors for some period, the Company allegedly completely
stopped functioning and thus in that process many investors who
had invested money with the company were duped. When
agitations were going on against the Company and against the
accused Pradeep Kumar Sethy, in view of the close nexus
between the said accused with the petitioner, it is the
prosecution case that there was no stiff objection from the side
of the State during the hearing of the bail application and even
case diary was not called for and no prayer was made from the
side of the State before the concerned Court seeking time to call
// 42 //
for the case diary and that facilitated the accused Pradeep
Kumar Sethy to get anticipatory bail. What happened between
the petitioner and the accused Pradeep Kumar Sethy prior to the
grant of bail and after that are very much relevant for the
purpose of making out a prima facie case against the petitioner
relating to the offences under which charge sheet has been
submitted against him.
11. Coming to the accusation of criminal conspiracy
against the petitioner as per section 120-B of I.P.C., in the case
of Yogesh (supra), it is held that the basic ingredients of the
offence of criminal conspiracy are: (i) an agreement between
two or more persons; (ii) the agreement must relate to doing or
causing to be done either (a) an illegal act; or (b) an act which is
not illegal in itself but is done by illegal means. It is, therefore,
plain that meeting of minds of two or more persons for doing or
causing to be done an illegal act or an act by illegal means is
sine qua non of criminal conspiracy. It is manifest that the
meeting of minds of two or more persons for doing an illegal act
or an act by illegal means is sine qua non of the criminal
conspiracy but it may not be possible to prove the agreement
between them by direct proof. Nevertheless, existence of the
conspiracy and its objective can be inferred from the surrounding
// 43 //
circumstances and the conduct of the accused. But the
incriminating circumstances must form a chain of events from
which a conclusion about the guilt of the accused could be
drawn. It is well settled that an offence of conspiracy is a
substantive offence and renders the mere agreement to commit
an offence punishable even if an offence does not take place
pursuant to the illegal agreement.
In the case of Rajendra @ Rajesh @ Raju (supra),
it is held that in order to establish the charge of conspiracy,
three essential elements must be shown i.e. a criminal object, a
plan or scheme embodying means to accomplish that object, and
an agreement between two or more persons to cooperate for the
accomplishment of such object. Admittedly, the incorporation of
section 10 to the Indian Evidence Act, 1872, suggests that proof
of a criminal conspiracy by direct evidence is not easy to get.
There are important statements and material
documents which were collected during course of investigation
against the petitioner to substantiate criminal conspiracy aspect.
There are strong suspicion founded upon such materials which
lead this Court to form a presumptive opinion as to the existence
of factual ingredients constituting such offence. Whether those
statements and documents would be sufficient to hold the
// 44 //
petitioner guilty is not to be decided in this revision petition. In
view of the limited scope of evaluation of such materials and
documents on record and sifting of evidence at this stage and
since there is prohibition against meticulous assessment of truth,
veracity and effect of the evidence adduced by the prosecution,
it would not be proper to enter into that arena.
12. Coming to the offences under sections 468 and 471
of I.P.C., the basic requirements are 'forgery' as defined under
section 463 of I.P.C. and making a false document as defined
under section 464 of I.P.C. In the case of Dr. Vimla (supra),
while analysing the provisions under sections 463 and 464 of
I.P.C., it is held that the expression "defraud" involves two
elements, namely, deceit and injury to the person deceived.
Injury is something other than economic loss that is, deprivation
of property, whether movable or immovable, or of money, and it
will include any harm whatever caused to any person in body,
mind, reputation or such others. In short, it is a non-economic or
non-pecuniary loss. A benefit or advantage to the deceiver will
almost always cause loss or detriment to the deceived. Even in
those rare cases where there is a benefit or advantage to the
deceiver, but no corresponding loss to the deceived, the second
condition is satisfied.
// 45 //
I find that there are prima facie materials on record
to show how forged signatures of accused Pradeep Kumar Sethy
and an advocate and even the Executive Magistrate were made
in creating documents and utilised in connection with transfer of
the property in the name of the petitioner. The report of C.F.S.L.
expert also lends corroboration to the same. Therefore, there is
no dearth of material to prima facie constitute the ingredients of
such offences.
13. Coming to the offence under section 420 of the
I.P.C., it appears that such accusation is mainly against accused
Pradeep Kumar Sethy who allegedly cheated the innocent
depositors/investors of their hard earned money. The section
requires that a person must commit the offence of cheating as
defined under section 415 of I.P.C. and the person cheated must
be dishonestly induced to (i) deliver property to any person; or
(ii) make, alter or destroy valuable security or anything signed or
sealed and capable of being converted into valuable security.
In the case of Dalip Kaur (supra), while discussing
the provisions under sections 405, 415 and 420 of I.P.C., it is
held that an offence of 'cheating' would be constituted when the
accused has fraudulent or dishonest intention at the time of
making promise or representation. A pure and simple breach of
// 46 //
contract does not constitute an offence of cheating. The
ingredients of section 420 of the I.P.C. are: (i) Deception of any
persons; (ii) Fraudulently or dishonestly inducing any person to
deliver any property; or (iii) To consent that any person shall
retain any property and finally intentionally inducing that person
to do or omit to do anything which he would not do or omit.
In the case of Archana Rana (supra), it is held that
a fraudulent or dishonest inducement is an essential ingredient
of the offence under section 415 Indian Penal Code. A person
who dishonestly induced any person to deliver any property is
liable for the offence of cheating.
In the case of M.N.G. Bharateesh Reddy (supra), it
is held that the ingredients of the offence under section 415
emerge from a textual reading. Firstly, to constitute cheating, a
person must deceive another. Secondly, by doing so the former
must induce the person so deceived to (i) deliver any property to
any person; or (ii) to consent that any person shall retain any
property; or (iii) intentionally induce the person so deceived to
do or omit to do anything which he would not do or omit if he
were not so deceived and such an act or omission must cause or
be likely to cause damage or harm to that person in body, mind,
reputation or property.
// 47 //
There is no material against the petitioner that such
cheating to the innocent depositors/investors made by the
accused Pradeep Kumar Sethy was in connivance with the
petitioner and therefore, the ingredients of offence under section
420 of the Indian Penal Code are not attracted against the
petitioner.
14. Coming to the offence under section 406 and 409 of
the I.P.C., there is no dispute that while the former deals with
punishment for criminal breach of trust, the latter deals with
criminal breach of trust by public servant or by others as
mentioned in that section.
In the case of N. Raghavender (supra), it is held
that the entrustment of public property and dishonest
misappropriation or use thereof in the manner illustrated under
section 405 I.P.C. are a sine qua non for making an offence
punishable under section 409 I.P.C. The crucial word used in
section 405 I.P.C. is 'dishonestly' and therefore, it pre-supposes
the existence of mens rea. In other words, mere retention of
property entrusted to a person without any misappropriation
cannot fall within the ambit of criminal breach of trust. Unless
there is some actual use by the accused in violation of law or
contract, coupled with dishonest intention, there is no criminal
// 48 //
breach of trust. The second significant expression is 'mis-
appropriates' which means improperly setting apart for ones use
and to the exclusion of the owner. Unless it is proved that the
accused, a public servant or a banker etc. was 'entrusted' with
the property which he is duty bound to account for and that such
a person has committed criminal breach of trust, section 409
I.P.C. may not be attracted. 'Entrustment of property' is a wide
and generic expression. While the initial onus lies on the
prosecution to show that the property in question was 'entrusted'
to the accused, it is not necessary to prove further, the actual
mode of entrustment of the property or misappropriation
thereof.
It is the prosecution case that the accused Pradeep
Kumar Sethy was entrusted with public money which he had
collected from the depositors/investors of the Company under
various schemes. He was supposed to account for the same. It is
the further prosecution case that such money was utilised in
purchasing the property of one of the Hon'ble Judge of this Court
and subsequently sold to the petitioner. The documents and
affidavits utilised in connection with the transfer of property in
the name of the petitioner falsely indicate that the consideration
money was more than rupees one crore. It is the further
// 49 //
prosecution case that by making actual payment of Rs.71 lakhs,
the petitioner got the property worth of rupees more than one
crore and the paper transaction also falsely reflected the
valuation of the property to be more than one crore. When being
entrusted with the property or dominion over the property which
was purchased by utilizing the public deposits, without receiving
the full amount, accused Pradeep Kumar Sethy disposed of the
property by way of sale to the petitioner for his use for alleged
obvious reasons and thereby the petitioner was benefited by
Rs.31 lakhs and in that process, the public money of Rs.31 lakhs
was misappropriated and according to the prosecution, such
thing happened on account of criminal conspiracy between the
two and since the prosecution has collected materials to
substantiate such conspiracy, it cannot be said there are
complete absence of prima facie materials to constitute the
ingredients of the offence under section 409 of I.P.C. which is
the aggravated form of criminal breach of trust. The expression
'dishonestly' is defined under section 24 of the Indian Penal Code
which states that whoever does anything with the intention of
causing wrongful gain to one person or wrongful loss to another
person, is said to do that thing 'dishonestly'. In view of the
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materials on record, there has been wrongful gain of Rs.31 lakhs
to the petitioner.
15. In my humble view, however, there are no prima
facie materials against the petitioner for commission of offence
under section 411 I.P.C. which deals with dishonestly receiving
stolen money so also for the offences under sections 4, 5 and 6
of 1978 Act.
16. In view of the foregoing discussions, though not for
the reasons assigned by the learned trial Court, but on a careful
scrutiny, serious deliberations and analysis of the materials on
record, it cannot be said that the accusation levelled against the
petitioner by the prosecution particularly for the commission of
offences under sections 120-B, 409, 468 and 471 of the Indian
Penal Code are groundless and that there are no sufficient
grounds for proceeding against the petitioner for such offences.
17. Accordingly, the CRLREV petition being devoid of
merits, stands dismissed. Consequently, the stay order dated
14.08.2018 which was extended from time to time stands
vacated. The learned trial Court shall do well to expedite the
framing of charges if there are no other impediments. Since the
case is of the year 2014, the learned trial Court shall do well to
conclude the trial preferably within one year from the date of
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framing of charges keeping in view the provision under section
309 of Cr.P.C. which provides, inter alia, that in every inquiry or
trial, the proceedings shall be continued from day-to-day until all
the witnesses in attendance have been examined, unless the
Court finds the adjournment of the same beyond the following
day to be necessary for reasons to be recorded and that no
adjournments shall be granted at the request of a party, except
where the circumstances are beyond the control of that party.
Before parting, I would like to place it on record by
way of abundant caution that whatever has been stated
hereinabove in this order has been so said only for the purpose
of disposing of the prayer for discharge of the petitioner. Nothing
contained in this order shall be construed as expression of a final
opinion on any of the issues of fact or law arising for decision in
the case which shall naturally have to be done by the trial Court
at the appropriate stage of the trial.
Urgent certified copy of this order be granted on
proper application.
.................................
S.K. Sahoo, J.
Orissa High Court, Cuttack
The 26th October 2022/Pravakar/RKMishra
