Surjit Kumar Dhal vs State Of Odisha ... Opposite Party
2023 Latest Caselaw 15980 Ori

Orissa High Court

Surjit Kumar Dhal vs State Of Odisha ... Opposite Party on 13 December, 2023

                IN THE HIGH COURT OF ORISSA AT CUTTACK


                        ABLAPL NO.13808 OF 2023

                    (Application under Section 438 of Cr.P.C.)


                  Surjit Kumar Dhal            ...     Petitioner


                                       -versus-

                 State of Odisha                ...    Opposite Party


            Advocates appeared in the case through hybrid mode:


                 For Petitioner         : Mr.D. Nayak,
                                          Sr.Advocate

                                                   -versus-

                For Opp.Party          : Mr.J.Katikia, A.G.A,

                                          Mr.A.K.Budhia, Advocate
                                                  (For informant)
                                      ORDER

13.12.2023.

Order No.

03. 1. This matter is taken up through hybrid mode.

2. Heard Mr.D. Nayak, learned Senior counsel assisted by Ms. Bini Mishra, Advocate, for the Petitioner, Mr. J. Katikia,

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learned Addl. Government Advocate and Mr. A.K.Budhia, learned counsel appearing for the informant.

3. The Petitioner is apprehending arrest in connection with E.O.W. Bhubaneswar P.S. Case No.26/2023 corresponding to C.T. Case No.125/2023 pending in the court of learned O.P.I.D., Cuttack, for the alleged commission of the offence under Sections 420/467/468/471 of I.P.C.

4. The prosecution case is that one Kalinga Keshari Rath lodged F.I.R. before E.O.W., Bhubaneswar on 14th November, 2023 alleging therein that he has Real Estate Business at different places in Odisha and has been carrying out the same for the last 12 years. He came in contact with the Petitioner in the month of April, who wanted to book a Flat posing as a Senior Journalist and owner of a news portal 'Reporter's Today' and the newspaper 'Mahabharat'. The Petitioner wanted to book two flats and also gave out that he had good rapport with highly placed persons in Government and could get official works done. Believing him, the informant entrusted certain official works to the Petitioner such as obtaining Environment License, Pollution Certificate and Government approval etc. The Petitioner being in need of finance for launching a television channel managed to impress upon the informant to pay Rs.30 lakhs to him in cash and Rs.10 lakhs by way of account transfer. The informant also paid Rs.60 lakhs on different occasions and gave him two luxury cars to expedite his work,

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which the Petitioner used for his personal purpose. When the informant wanted to know about the progress of his work the Petitioner took time on some plea or the other. Subsequently, the Petitioner handed him a fake approval order of the BDA in respect of the informant's project for which he had taken money. On further inquiry, the informant came to know that the amounts were taken by the Petitioner from him deceitfully with the intention of cheating him.

5. Mr. D. Nayak, learned Senior counsel, would argue that the F.I.R. contains false and misrepresented facts though the Petitioner admits to have taken Rs.10 lakhs only from the informant but the same was for the purpose of financing his T.V. channel which was to be on a partnership between them. Out of the said sum, the Petitioner has taken only Rs.6.5 lakhs but the remaining amount of Rs.3.6 lakhs was paid to different agencies. The other allegations of the Petitioner taking Rs.30 lakhs by cash is absurd as the same is contrary to the provisions of Section 269 SS of Income Tax Act. Similarly, the allegation of payment of Rs.60 lakhs is also baseless inasmuch as it has been ascertained that the informant had only Rs.72 lakhs in his Bank account as per the auditor's report and therefore, could not have paid Rs.90 lakhs in all to the Petitioner. Moreover, there is no scrap of material to show that the Petitioner had ever taken money to obtain approval from the BDA. The actual fact of the matter is that a raid was conducted by the GST officials in the establishment of the informant, which was telecast on the

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web channel. The informant therefore, harbors grudge against the Petitioner. It is further submitted by learned Senior counsel that even accepting the prosecution allegations as correct, it would be evident that the dispute is basically civil in nature, which has been attempted to be given a criminal colour. Learned Senior counsel has referred to the judgments of the Supreme Court in the cases of Hridaya Ranjan Prasad Verma and others v. State of Bihar and another, (2000) 4 SCC 168, Arnab Manoranjan Goswami v. State of Maharashtra and others, AIR 2021 SC 1. Learned Senior counsel has also referred to a judgment passed by the Delhi High Court in the case of Ira Juneja and another v. State and another, 2004 (72) DRJ 207 and a judgment passed by the High Court Chhattisgarh in the case of Ashok Agrawal and another vs. State of Chhattisgarh through Station House Officer, 2020 SCC Online Chh 201.

6. Mr. J. Katikia, learned Addl. Government Advocate, who has produced the case diary for perusal of the Court, would argue that there is clear evidence in the form of electronic transfer of Rs.10 lakhs being paid by the informant to the Petitioner. It has further been ascertained during investigation that the B.D.A. approval letter dated 25th May, 2023 obtained by the Petitioner in favour of the informant is a forged document. The allegation regarding payment of Rs.30+60 lakhs by the informant to the Petitioner is currently under investigation. Several other incriminating materials have

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already been unearthed during investigation. It is quite likely that several other such materials may be unearthed in the ongoing investigation relating to the money trail for which custodial interrogation of the Petitioner is essentially required. Further, the possibility of similar fraudulent acts having been committed by the Petitioner cannot be ruled out for which investigation is also directed towards the same. Mr. Katikia has relied upon the decisions of the Supreme Court in the case of P. Chidambaram v. Directorate of the Enforcement, (2019) 9 SCC 24; Directorate of the Enforcement and another v. P.V. Prabhakar Rao, (1997) 6 SCC 647 and Y.S. Jagan Mohan Reddy v. CBI, Anti-Corruption Branch, (2013) 7 SCC 439.

7. Mr. A.K.Budhia, learned counsel appearing for the informant, submits that the Petitioner had a dishonest intention from the very beginning, which is evident from his conduct of obtaining a forged BDA approval letter for the informant after taking money from him. That apart, the Petitioner's act constitutes an economic offence, which has to be dealt with strictly. In the instant case enough materials have come out during investigation to show the complicity of the Petitioner and therefore, he should not be granted the benefit of pre-arrest bail particularly because, he being an influential person having several contacts, may attempt to tamper with the prosecution evidence, if allowed to roam freely.

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8. I have heard learned counsel for the parties at length and have also gone through the materials on record and the case diary produced by the learned State counsel. The first thing that strikes the mind of the Court is the admission of the Petitioner of having received Rs.10 lakhs from the informant. Of course, it has been argued that only Rs.6.5 lakhs was transferred to his account and Rs.3.69 lakhs was paid to different agencies at the instance of the Petitioner. But in view of the admission, the exact amount is immaterial. Nothing has been placed before this Court on behalf of the Petitioner to show that the amount so received was to finance a Television channel, which lends considerable supports to the allegation that the amount was taken for the purpose of getting the works of the informant done at the level of the Government. Another glaring aspect that attracts attention is the evidence relating to obtaining of forged approval letter of BDA in the name of the informant. This, by itself, shows the dishonest intention of the Petitioner. No doubt the conduct of the informant in paying money to an outsider 'to get things done' in Government does not appear to be above board, rather smacks of dubiousness of his own role, being unbecoming of an honest citizen, yet the overwhelming evidence showing complicity of the Petitioner, as narrated hereinbefore, over shadows the same.

9. Coming to the case laws cited at the bar, it is seen that in the case of Hridaya Ranjan Prasad Verma and others (supra), the Supreme Court interpreted the provision of Section

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415 I.P.C. wherein it was held that intentional deception must be shown to exist right from the beginning of the transaction. As already discussed, this Court is convinced that the Petitioner had a dishonest intention from the very beginning of the transaction. The case of Ira Juneja and another (supra) deals with the ingredients of Sections 420/406/405 of I.P.C. in an application for quashing of the F.I.R. In such context, it was held that mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown at the beginning of the transaction. As regards the case of Arnab Manoranjan Goswami (supra), this Court finds that the facts of the said case are entirely different inasmuch as in the said case the Petitioner therein had been arrested while the present case is one for pre-arrest bail. In the case of Ashok Agrawal and another (supra), on facts, the court held that the nature of the dispute was civil and that custodial interrogation of the applicant is not required.

10. Such is not the case here as would be evident from the foregoing narration of the conduct of the Petitioner in accepting money for getting 'things done' in the Government, which by itself is an illegal act and secondly, of producing a forged document.

11. In the case of P. Chidambaram v. Directorate of the Enforcement (supra), this Court held that investigation agency must be given sufficient freedom in the process of investigation

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particularly in economic offences. In the case of P.V. Prabhakar Rao (Supra), the Supreme Court took note of the magnitude of the criminal conspiracy hatched to reject the prayer for anticipatory bail. In the case of Y.S. Jagan Mohan Reddy (supra), the Supreme Court held that the economic offences constitute a class apart and need to be visited with a different approach in the matter of bail.

12. Undoubtedly, on the face of it, the dispute appears to be between two private individuals, but on deeper scrutiny and in particular on reference to the Bank account statements of the Petitioner as available in the case dairy and the forged approval letter of BDA allegedly obtained by the Petitioner in favour of the informant coupled with the possibility that investigation into the money trail may unearth further materials, this Court is of the considered view that this is not a fit case to extend the benefit of pre-arrest bail to the Petitioner. This Court also takes note of the fact that investigation is presently at a nascent stage and therefore, granting pre-arrest bail may thwart its effectiveness.

13. For the foregoing reasons therefore, I am not inclined to allow the prayer for grant of pre-arrest bail. The ABLAPL is therefore, rejected.

                                                                           (Sashikanta Mishra)
Signature NotAKB
              Verified                                                           Judge
Digitally Signed
Signed by: ASHOK KUMAR BEHERA
Reason: Authentication
Location: High Court of Orissa, Cuttack