Bijaya Krushna Mohapatra vs State Of Odisha (Vigilance)
2023 Latest Caselaw 2649 Ori

   IN THE HIGH COURT OF ORISSA AT CUTTACK

              CRLMC NO.4230 of 2016

 (In the matter of application under Section 482 of the
 Criminal Procedure Code, 1973).

 Bijaya Krushna Mohapatra    ...              Petitioner
                    -versus-

 State of Odisha (Vigilance)     ...    Opposite Party


 For Petitioner         : Mr. B.K. Ragada , Advocate


 For Opposite Party     : Mr. P.K. Pani, SC (Vig.)

        CORAM:
                 JUSTICE G. SATAPATHY

           DATE OF HEARING :24.03.2023
           DATE OF JUDGMENT :03.04.2023

G. Satapathy, J.

1. The prayer made in the CRLMC is to quash the

criminal proceeding against the petitioner in CTR

No.27 of 2015 corresponding to SBP Vig. G.R. Case

No.25 of 2013 arising out of SBP Vig. P.S. Case

No.28 of 2013.

2. The short facts involved in this case are an FIR

in Sambalpur Vigilance P.S. Case No.28 of 2013 was

came to be lodged against the petitioner alleging

that he being the Bank Manager of SDCC Bank,

Mahila Branch, Rourkela, sanctioned a loan of

Rs.4,00,000/- (Rupees Four Lakhs) to co-accused

Bikrant Keshari Samanta, the Proprietor of M/s.

Shivangnee Infotech, on execution of a mortgage

deed with him by the loanee and guarantor Sudhir

Kumar Dasgupta, but subsequently, co-accused

loanee applied for enhancement of loan amount

from Rs.4,00,000/- (Rupees Four Lakhs) to

Rs.12,00,000/- (Rupees Twelve Lakhs), which was

processed by the petitioner after observing other

formalities, but the co-accused loanee was

considered for sanction of additional loan of

Rs.4,00,000/- (Rupees Four Lakhs) on 19.01.2007.

On enquiry, it was revealed that the petitioner by

entering into criminal conspiracy with co-accused

loanee and guarantor had executed mortgage deed

with them in respect of Khata No.109, Plot No.316 of

Mouza-Jalda violating the provision of Section 28 of

the Registration Act, 1908. On registration of FIR,

the investigation ensued and in the course of

investigation, it was ascertained that Sudhir Kumar

Dasgupta was a fictitious guarantor as the photo,

thumb impression and signature as available in the

deed were not matching with the same in loan file

and no such person was available in the address

given in the mortgage deed as well as in the loan

application. On conclusion of investigation, charge-

sheet was submitted against the petitioner and

others for offence U/Ss. 13(2) read with Section

13(1)(d) of the P.C. Act, 1988 and Section

468/420/471/120-B of IPC. Hence, this CRLMC.

3. In the course of hearing the CRLMC, Mr. B.K.

Ragada, learned counsel for the petitioner by relying

upon the decision in the case of N.K. Illiyas Vrs.

State of Kerala; AIR 2012 SC 3790 and Nikhil

Merchant Vrs. CBI and Another; (2008) 41 OCR

(SC) 427 submits that for a moment, if the

allegations on record are taken into consideration,

the loanee having already cleared the loan amount,

the criminal liability of the petitioner is

foreclosed/extinguished, but notwithstanding to such

facts, the learned trial Court is proceeding against

the petitioner. It is also submitted by him that since

no wrongful loss has been caused to the Bank, the

criminal case against the petitioner is misnomer in

the eye of law and, thereby, the criminal proceeding

against the petitioner is an abuse of process of Court

and to secure the ends of justice, the criminal

proceeding against the petitioner may kindly be

quashed.

4. On the other hand, Mr. P.K. Pani, learned

Standing Counsel for the State-Vigilance Department

by referring to the facts of the case, submits that

the act of the petitioner is squarely covered under

penal provision of law inasmuch as the petitioner

has not only caused wrongful loss to the Bank, but

also has connived with the co-accused to grant loan

by taking fictitious guarantor as well as executing

mortgage deed with such fictitious guarantor and for

a moment, even if the loan amount has been cleared

by the co-accused loanee, but that would not

absolve the petitioner from the criminal liability.

Mr.P.K.Pani, learned Standing Counsel by relying

upon the decision in the case of Central Bureau of

Investigation Vrs. Maninder Singh; (2015) 62

OCR (SC) 397 submits that in economic offences,

Court must not only keep in view that money has

been paid to the Bank, which has been defrauded,

but also the society at large and in this case, the

petitioner having admittedly being a party to the

fraud and misappropriation of public money, no

sympathy can be extended to petitioner to quash the

criminal proceeding.

5. On taking into consideration the rival

submissions advanced for the parties, let us first

examine whether the repayment of loan in the

circumstance of the case would absolve the criminal

liability of the petitioner?. In this regard, it is

considered appropriate to refer to the decision in the

case of Maninder Singh (supra) wherein at

Paragraphs-11 and 12, the Apex Court has observed

as under:

"11. The inherent power of the High Court Under Section 482 Code of Criminal Procedure should be sparingly used. Only when the Court comes to the conclusion that there would be manifest injustice or there would be abuse of the process of the Court if such power is not exercised, Court would quash the proceedings. In economic offences Court must not only keep in view that money has been paid to the bank which has been defrauded but also the society at large. It is not a case of simple assault or a theft of a trivial amount; but the offence with which we are concerned is a well planned and was committed with a deliberate design with an eye of personal profit regardless of consequence to the society at large. To

quash the proceeding merely on the ground that the accused has settled the amount with the bank would be a misplaced sympathy. If the prosecution against the economic offenders are not allowed to continue, the entire community is aggrieved.

12. In recent decision in Vikram Anantrai Doshi (supra), this Court distinguished Nikhil Merchant's case and Narendra Lal Jain's case where the compromise was a part of the decree of the court and by which the parties withdrew all allegations against each other. After referring to various case laws under subject in Vikram Anantrai Doshi's case, this Court observed that cheating by bank exposits fiscal impurity and such financial fraud is an offence against society at large in para (23), this Court held as under:

23. ...Be it stated, that availing of money from a nationalized bank in the manner, as alleged by the investigating agency, vividly exposits fiscal impurity and, in a way, financial fraud. The modus operandi as narrated in the chargesheet cannot be put in the compartment of an individual or personal wrong. It is a social wrong and it has immense societal impact. It is an accepted principle of handling of finance that whenever there is manipulation and cleverly conceived contrivance to avail of these kind of benefits it cannot be regarded as a case having overwhelmingly and predominantingly of civil character. The ultimate victim is the collective. It creates a hazard in the financial interest of the society. The gravity of the offence creates a dent in the economic spine of the nation. The cleverness which has been skillfully contrived, if the allegations are true, has a

serious consequence. A crime of this nature, in our view, would definitely fall in the category of offences which travel far ahead of personal or private wrong. It has the potentiality to usher in economic crisis. Its implications have its own seriousness, for it creates a concavity in the solemnity that is expected in financial transactions. It is not such a case where one can pay the amount and obtain a "no due certificate" and enjoy the benefit of quashing of the criminal proceedings on the hypostasis that nothing more remains to be done. The collective interest of which the Court is the guardian cannot be a silent or a mute spectator to allow the proceedings to be withdrawn, or for that matter yield to the ingenuous dexterity of the accused persons to invoke the jurisdiction under Article 226 of the Constitution or under Section 482 of the Code and quash the proceeding. It is not legally permissible. The Court is expected to be on guard to these kinds of adroit moves. The High Court, we humbly remind, should have dealt with the matter keeping in mind that in these kind of litigations the accused when perceives a tiny gleam of success, readily invokes the inherent jurisdiction for quashing of the criminal proceeding. The court's principal duty, at that juncture, should be to scan the entire facts to find out the thrust of allegations and the crux of the settlement. It is the experience of the Judge comes to his aid and the said experience should be used with care, caution, circumspection and courageous prudence. As we find in the case at hand the learned Single Judge has not taken pains to scrutinize the entire conspectus of facts in proper perspective and quashed the criminal proceeding. The said quashment neither

helps to secure the ends of justice nor does it prevent the abuse of the process of the Court nor can it be also said that as there is a settlement no evidence will come on record and there will be remote chance of conviction. Such a finding in our view would be difficult to record. Be that as it may, the fact remains that the social interest would be on peril and the prosecuting agency, in these circumstances, cannot be treated as an alien to the whole case. Ergo, we have no other option but to hold that the order of the High Court is wholly indefensible".

6. It is of course true that the petitioner relies

upon the decision in N.K. Illiyas (supra) wherein

the Apex Court after taking note of temporary

misappropriation of office money, had granted the

benefit to the accused therein by extending the

provision of Section 95 of IPC, but the present case

cannot be taken as a temporary misappropriation

inasmuch as the allegation on record against the

petitioner prima facie unearth a situation about

petitioner entering into conspiracy and executing the

mortgage deed with a fictitious person and, thereby,

facilitating co-accused loanee to avail the benefit of

loan. Besides, the contentions of the petitioner as

advanced in this case are question of facts, which

can be ascertained in the course of trial and the

veracity of such allegation is subject to proof. A

careful perusal of the photocopy of charge-sheet as

produced on behalf of the petitioner would prima

facie goes to disclose some allegation against the

petitioner, no matter the petitioner harps on the

point of repayment of total loan dues of the Bank to

get rid of the case, but the nature of allegation

brought against the petitioner would definitely reveal

more than the personal or private wrong and its

implication has wider ramification, in view of the

allegation that the Bank which had advanced the

loan was affected by the alleged act of the petitioner

and the money so advanced by the Bank is definitely

public money and, therefore, the alleged act of the

petitioner would affect the society at large. It also

appears from the allegation on record that the

offences with which the petitioner are concerned,

have probably been committed with a deliberate

design for personal benefit, which of course, if

established on pedestal proof beyond reasonable

doubt, would betray the public trust affirmed with

the Bank.

7. In view of the discussion made hereinabove

and taking into consideration the alleged act of the

petitioner on the face of the rival submissions, this

Court is unable to accept the contentions of the

petitioner that the repayment/clearance of loan of

the Bank by co-accused would absolve the liability of

the petitioner and when there is prima facie

allegation against the petitioner for misappropriation

as well as cheating of public money lying with bank,

the criminal proceeding against the petitioner in this

case cannot be considered as an abuse of process of

Court enuring to the benefit of the petitioner by way

of quashment of the criminal proceeding against

him. This Court, however, clarifies that any

observation made hereinabove is purely for the

disposal of the CRLMC and the same in any

circumstance would not be considered as proof of

offence against the petitioner.

8. In the result, the CRLMC is dismissed, but in

circumstance there is no order as to costs.

(G. Satapathy) Judge

Orissa High Court, Cuttack, Dated the 3rd of April, 2023/Subhasmita