Orissa High Court

Prasan Kumar Patra vs State Of Odisha on 17 March, 2023

                     IN THE HIGH COURT OF ORISSA, CUTTACK

                                BLAPL No. 5982 Of 2022

       An application under section 439 of the Code of Criminal
       Procedure in connection with E.O.W., Odisha, Bhubaneswar P.S.
       Case No.17 of 2018 corresponding to C.T. Case No.14 of 2018
       pending on the file of Presiding Officer, Designated Court,
       O.P.I.D. Act, Cuttack.
                                      ---------------------------------

                Prasan Kumar Patra                .......                         Petitioner

                                               -Versus-

                State of Odisha                   .......                         Opp. Party


                    For Petitioner:              -                   M/s. Ashwini Kumar Das
                                                                     Sonali Das

                    For Opp. party:              -                   Mr. J. P. Patra
                                      ---------------------------------

       P R E S E N T:

                    THE HONOURABLE MR. JUSTICE S.K. SAHOO

--------------------------------------------------------------------------------------- Date of Hearing: 14.03.2023 Date of Order: 17.03.2023

---------------------------------------------------------------------------------------

S.K. SAHOO, J. The petitioner Prasan Kumar Patra has approached

this Court for the fourth time seeking for bail under section 439

of Code of Criminal Procedure in connection with E.O.W., Odisha,

Bhubaneswar P.S. Case No.17 of 2018 corresponding to C.T.

Case No.14 of 2018 pending on the file of Presiding Officer,

Designated Court, O.P.I.D. Act, Cuttack for offences punishable // 2 //

under sections 467, 468, 471, 420, 406 read with section 120-B

of the Indian Penal Code and section 6 of the Odisha Protection

of Interests of Depositors (in Financial Establishments) Act, 2011

(hereafter 'O.P.I.D. Act').

2. On 30.07.2018 one Manoranjan Mishra of Kanan

Vihar, Phase-II, P.S.- Chandrasekharpur, Bhubaneswar lodged

the first information report before the Superintendent of Police,

E.O.W., Odisha, Bhubaneswar alleging therein that during

November 2012 after going through the advertisement of M/s. Z-

Infra Construction Pvt. Ltd. (hereafter 'the company') about

availability of plots under Jatani Tahasil near IIT relatively at a

lower price in the Pragyan Vihar Project, he contacted the

petitioner who was the Managing Director of the company at his

office located at IRC Village, Nayapalli to purchase a plot

measuring an area of 2400 sq. ft. in the project. The petitioner

along with his officials showed the project site to the informant

and assured him to give absolute right and title of the land after

conversion and making boundary wall around the plot with

approachable road to the plot. They also told the informant that

the total project area has been purchased by them. The cost of

the plot was Rs.3,60,000/- and they charged Rs.35,000/- for

conversion of the land and Rs.60,000/- for constructing

// 3 //

boundary wall around the plot. The informant paid an amount of

Rs.10,000/- (rupees ten thousand only) on 11.08.2012 as

booking amount and obtained a receipt from the company. It is

the further case of the informant that on 05.11.2012 he paid

another sum of Rs.3,50,000/- (rupees three lakh fifty thousand

only) and obtained a receipt whereafter the petitioner registered

the land on 06.11.2012 in favour of the informant by way of a

registered sale deed. The land corresponds to Mouza-

Kansapada, P.S.-Jatani, Khata No.76, Plot No.154, Sub Plot

Nos.441 and 442, Area-Ac.0.055 dec. out of Ac.0.730 decimals.

Thereafter, the informant paid a sum of Rs.95,000/- (rupees

ninety five thousand only) on different dates for conversion and

boundary wall of the plot. It is the further case of the informant

that though the registration of the plot was made in November

2012 but there was no approach road to the said plot and the

petitioner and others of his company falsely told the informant

that they have right and title over entire Pragyan Vihar Project.

They had the knowledge that they were not having right, title

over the area and in spite of that they had received the payment

from the informant with an intention to deceive him and thus in

spite of registration of the land in favour of the informant, the

same served no purpose. It is stated that the petitioner and

// 4 //

other officers of the company deceived the informant an amount

of Rs.4,55,000/- on the basis of false and fabricated documents.

It is stated that in spite of repeated approach by the informant to

the petitioner and other officials of the company, they did not

construct the boundary wall around the plot as promised even

though they received the amount since last six years. It is

further stated that the petitioner as the Managing Director and

others have cheated about five hundred persons and

misappropriated an amount of rupees twenty crores. In some

cases, registration of a plot has been done but there is no

approach road and in some cases, registration has not been

made even though payment has been received and in some

cases, a particular plot has been sold to number of persons

creating problems in mutation of land. The accused persons after

misappropriating the amount absconded by closing their office.

3. On the basis of such first information report, E.O.W.,

Odisha, Bhubaneswar P.S. Case No.17 of 2018 was registered

under sections 420, 406, 467, 468, 471 read with section 120-B

of the Indian Penal Code and section 6 of the O.P.I.D. Act

against the petitioner and Soumendra Narayan Dalabehera, Chief

General Manager and others.

// 5 //

During course of investigation, it was found that the

company was registered under the Companies Act by ROC,

Odisha, Cuttack on 07.05.2009 having registered office at Plot

No.209, Saheed Nagar, Bhubaneswar. One Smt. Rasmita Patra

was the Director and the petitioner who is her husband was the

Managing Director of the Company. During November 2012, the

company made wide publicity about the availability of plots near

IIT under Jatani Tahasil in lower price. Being induced by the

advertisement of the Company, the informant contacted the

petitioner to purchase a plot in the project. The Directors of the

Company along with their officials showed the project site to the

informant and assured him to give absolute right and title over

the land after conversion and making boundary wall around the

plot with approachable road. The informant paid Rs.4,55,000/- to

the Company and the petitioner registered land on 06.11.2012 in

favour of the informant knowing very well that the company had

not purchased the land which was required for construction of

approach road to the plot. It was found that in some cases,

registration of a plot has been made even though there was no

approach road, in some cases registration was not made even

though payment had been received and in some cases, excess

lands were sold in a plot to many persons creating problems in

// 6 //

mutation of land. The petitioner and other accused persons

absconded by closing their office after misappropriating the

amount.

Investigation further revealed that in the similar

fashion, the petitioner and others of the company cheated about

six hundred persons and misappropriated an amount more than

twelve crores. The documents/registers seized from the

petitioner showed that the company had collected cash of

Rs.12,27,31564/- from six hundred sixty two investors. The

documents such as brochures, money receipts, sale deeds,

agreement etc. were seized from the witnesses. The office of

petitioner located at Nayapalli was searched and many

incriminating documents, investors entry registers were seized.

Investigation further revealed that the petitioner was sixty

percent share holder in the company whereas his wife Smt.

Rashmita Patra was forty percent share holder in the company.

It was also found during investigation that the

company represented through the petitioner and Director Smt.

Rasmita Patra with an intention to defraud the investors,

collected more than rupees twelve crores from them in a pre-

planned manner under false assurance to provide plotted land in

Bhubaneswar area at a reasonable rate with boundary and

// 7 //

approaching road under different schemes but subsequently

cheated them by not providing the same as promised.

It was also found during investigation that petitioner

as Managing Director of the company and others have collected

huge amount from the prospective buyers and executed sale

deeds of plots over which the company had no right, title,

interest or possession. In some cases, they had not registered

any plot in favour of the investors. In this process, the Directors

of the company have defaulted to return the deposits and also

failed to render service for which the deposits were made and as

such the petitioner and other Directors of the Company being

responsible for the management of the affairs of the financial

establishment were also liable for prosecution under section 6 of

O.P.I.D. Act, 2011.

During course investigation, on scrutiny of bank

account statements in favour of the company and its Directors, it

was found that cash of Rs.8,42,10,203/- had been entered in the

accounts of the petitioner and cash of Rs.6,66,748/- have been

entered in the account of Rasmita Patra during this period. Cash

of Rs.3,38,000/- had also been transferred from the company's

account to the account of Rasmita Patra.

// 8 //

During investigation, it further revealed that the

money receipts, agreements etc. issued by the company in

favour of the investors were fake and fabricated and the same

were prepared in order to cheat the investors. The petitioner

along with others had collected more than rupees twelve crores

from the informant as well as other investors.

The investigating officer came to hold that the

company represented through the petitioner and others, with an

intention to defraud the investors, collected crores of rupees

from them in a pre-planned manner under the false assurance to

provide plots with boundary wall and approachable road at

Kansapada area at reasonable rate under different schemes but

subsequently cheated them by not providing the same as

promised. The petitioner and others connived with each other,

created fake documents and issued fake agreement, money

receipts to the investors by not giving them plot with boundary

wall and approach road at Kansapada area.

The investigating officer found prima facie evidence

against the petitioner and others under sections 467, 468, 471,

406 read with section 120-B of the Indian Penal Code and

section 6 of the O.P.I.D. Act and accordingly, he submitted

charge sheet on 29.11.2018 against them keeping further

// 9 //

investigation open under section 173(8) of Cr.P.C. to trace out

movable and immovable properties of the company so also its

Directors and associates, for scrutinisation of the bank accounts,

to ascertain the money trailing and to collect the certified copies

of sale deeds pertaining to the landed property standing in the

name of the company and its Directors and to examine many

more witnesses.

4. The petitioner approached this Court first time in

BLAPL No.439 of 2019 and vide order dated 06.03.2019, the

prayer for bail was rejected on the ground that the petitioner

was the Managing Director of the company and as prima facie it

appeared that the petitioner along with his wife and others had

collected huge amount of deposits in a pre-planned and

organized manner in the name of providing developed plots to

the depositors and then cheated them and misappropriated more

than twelve crores of rupees and that the money receipts,

agreements etc. issued by the company were found to be fake

and fabricated during investigation. This Court also took into

account the manner in which the offence has been committed,

the nature and gravity of the accusation, the nature of

supporting evidence, the severity of punishment in case of

conviction, the manner in which the innocent poor persons were

// 10 //

cheated of their hard earned money, availability of documentary

evidence relating to money trailing from the company's accounts

to the accounts of the petitioner and his wife, reasonable

apprehension of tampering with the evidence and the fact that

further investigation on some important aspects was under

progress and accordingly, in the larger interest of public and

State, rejected the bail application.

The petitioner again approached this Court in BLAPL

No. 5727 of 2019 for interim bail on the ground of his ailment,

but vide order dated 28.08.2019, after going through the

medical documents as well as the reports produced, this Court

held that there was no allegation of any negligence relating to

the treatment of the petitioner. While rejecting the prayer for

bail, this Court directed the Senior Superintendent of Circle Jail,

Cuttack at Choudwar to take steps for treatment of the petitioner

as was taken earlier in case any health complication is reported.

Challenging the aforesaid order dated 28.08.2019

passed by this Court in BLAPL No. 5727 of 2019, the petitioner

moved the Hon'ble Supreme Court of India in Special Leave to

Appeal (Crl.) No.9116 of 2019, but the same was dismissed as

the petitioner withdrew the same with liberty to move this Court

for regular bail.

// 11 //

Then the petitioner approached this Court for the

third time in BLAPL No.8813 of 2019. During pendency of the

said application, the petitioner moved an interim application

bearing I.A. No. 840 of 2020 for interim bail on the ground of

attending the obsequies ceremony of his deceased mother and

this Court vide order dated 14.09.2020, granted him interim bail

for the period from 15th September 2020 to 28th September

2020 with certain terms and conditions. When the matter came

up on 11.12.2020, it was submitted on behalf of the petitioner

that due to order of the Division Bench of this Court extending

the interim orders at different times on account of the situation

arising out of Covid-19 pandemic, the petitioner did not

surrender on the date fixed. Since the petitioner did not

surrender on the date fixed, this Court as per order dated

11.12.2020 called for a report from the trial Court as to what

steps have been taken to arrest the petitioner. Challenging the

said order dated 11.12.2020, the petitioner again moved the

Hon'ble Supreme Court of India in Special Leave to Appeal (Crl.)

No.1349 of 2021 and vide order dated 10.03.2021, while setting

aside the portion of the order calling for the report from the

learned trial Court regarding the steps taken for the arrest of the

petitioner, disposed of the Special Leave Petition requesting this

// 12 //

Court for early disposal of the bail application. However, the

petitioner surrendered before the learned trial Court on

18.02.2021. Finally, this Court vide order dated 23.08.2021

disposed of BLAPL No.8813 of 2019 rejecting the prayer for bail

of the petitioner.

Challenging the said order dated 23.08.2021 passed

in BLAPL No.8813 of 2019, the petitioner moved the Hon'ble

Supreme Court of India in Special Leave to Appeal (Crl.) No.8858

of 2021 and the Hon'ble Supreme Court of India vide order dated

15.12.2021, while dismissing the Special Leave Petition, directed

the learned trial Court to complete the trial within a period of six

months from that date and granted liberty to the petitioner to

renew his application for bail in case the trial is not completed

within the said period.

Since the trial could not be completed within the time

stipulated, the petitioner moved the learned trial Court for bail

and the learned trial Court vide order dated 24.06.2022 rejected

the bail application. Against the said order, the petitioner moved

this Court in the present bail application and this Court vide

order dated 02.09.2022 taking into account the period of

detention of the petitioner in judicial custody for more than four

years and slow progress of trial and non-compliance of the order

// 13 //

of the Hon'ble Supreme Court to conclude the trial within the

time stipulated, this Court while disposing of the bail application,

granted interim bail to the petitioner for a period of three

months.

Challenging the said order dated 02.09.2022 passed

in the present bail application, the petitioner moved the Hon'ble

Supreme Court of India in Criminal Appeal No.201 of 2023 (SLP

(Crl.) No.10422 of 2022) and vide order dated 24.01.2023, the

Hon'ble Supreme Court while allowing the appeal, made the

following observation:-

"xx xx xx xx xx xx xx xx Having gone through the record, we find that the application was made for grant of regular bail and thus it was incumbent upon the High Court to have considered the same on merits but the High Court after granting an interim bail, disposed of the bail application itself. In our considered opinion, the regular bail application of the appellant is required to be considered on merits by the High Court.

Considering the aforesaid facts and circumstances, we dispose of this appeal by directing that the bail application of the appellant shall be restored to its original number before the High Court and heard and decided in accordance with law on merits as expeditiously

// 14 //

as possible. The interim protection granted by this Court shall continue to remain in operation till the disposal of the bail application by the High Court."

5. Mr. Ashwini Kumar Das, learned counsel appearing

for the petitioner contended that the petitioner was taken into

judicial custody since 7th August 2018 and the charge was

framed on 06.01.2020 and till now, only ten witnesses have

been examined out of sixty eight charge sheet witnesses and

their evidence is also not complete and the trial of the case has

been stalled by the order of the Hon'ble Supreme Court and the

petitioner is now on bail in view of the order passed by the

Hon'ble Supreme Court on 24.01.2023 and since there is no

chance of absconding of the petitioner or tampering with the

evidence and the petitioner has not misutilised his liberty while

on interim bail, on the ground of delayed trial, his bail application

may be favourably considered.

Mr. J. P. Patra, learned Special Counsel appearing for

the State of Odisha in OPID Act matters on the other hand

vehemently opposed the prayer for bail and contended that the

bail application of the petitioner has been rejected on merit

earlier and there is no change in the circumstances and since the

trial of the case has been stayed, no fault can be found with the

// 15 //

trial Court and the petitioner has enjoyed liberty for sufficient

period by interim orders passed by this Court and by the Hon'ble

Supreme Court and the petitioner is a white-collar offender and

crores of rupees have been cheated from the poor investors and

the petitioner's key role in the commission of economic offence is

prima facie apparent and there was deep rooted criminal

conspiracy to cheat public with an eye on personal profit, large

number of innocent depositors have been duped of their hard-

earned money and important witnesses are yet to be examined

in the trial Court and at this stage, if the petitioner is enlarged on

bail, there is every likelihood of tampering with the evidence and

therefore, the bail application should be rejected.

6. In the case of State of M.P. -Vrs.- Kajad reported

in (2001)7 Supreme Court Cases 673, it is held that

successive bail applications are permissible under the changed

circumstances, but without the change in the circumstances, the

second application would be deemed to be seeking review of the

earlier judgment which is not permissible under criminal Taw. In

the case of State of Maharashtra -Vrs.- Captain Buddhikota

Subha Rao reported in A.I.R. 1989 S.C. 2292, it is held that

once the bail application is rejected, there is no question of

granting similar prayer. That is virtually overruling the earlier

// 16 //

decision without there being a change in the fact-situation and

the change means a substantial one which has a direct impact on

the earlier decision and not merely cosmetic changes which are

of little or no consequence. In the case of Kalyan Chandra

Sarkar and Ors. -Vrs.- Rajesh Ranjan reported in (2005)

30 Orissa Criminal Reports (SC) 455, it is held that even

though there is room for filing a subsequent bail application in

cases where earlier applications have been rejected, the same

can be done if there is a change in the fact situation or in law

which requires the earlier view being interfered with or where

the earlier finding has become obsolete. This is the limited area

in which an accused who has been denied bail earlier, can move

a subsequent application.

Thus an accused has a right to make successive

applications for grant of bail under the changed circumstances

and such change must, be substantial one having direct impact

on the earlier decision and not merely cosmetic changes which

are of little or no consequence. Without the change in the

circumstances, the subsequent bail application would be deemed

to be seeking review of the earlier rejection order which is not

permissible under criminal law. While entertaining such

subsequent bail applications, the Court has a duty to consider

// 17 //

the reasons and grounds on which the earlier bail applications

were rejected and what are the fresh grounds which persuade it

warranting the evaluation and consideration of the bail

application afresh and to take a view different from the one

taken in the earlier applications. There must be change in the

fact situation or in law which requires the earlier view being

interfered with or where the earlier finding has become obsolete.

This is the limited area in which the application for bail of an

accused that has been rejected earlier can be reconsidered.

In the case in hand, there is no change in the

circumstances after rejection of the earlier bail application on

merit except that the trial could not be completed within

stipulated period as fixed by the Hon'ble Supreme Court. It

appears from the status report submitted by the learned trial

Court that the Hon'ble Supreme Court vide order dated

15.12.2021 in SLP (Crl) No.8858 of 2021 was pleased to direct

to complete the trial within a period of six months from the date

of order. The Hon'ble Supreme Court vide order dated

27.07.2022 passed in Misc. Application No. 1167 of 2022 in SLP

(Crl) No.8858 of 2021 extended the period to four months and

ten witnesses have been examined and on account of the stay

// 18 //

order dated 20.07.2022 passed by the Hon'ble Supreme Court in

SLP (Crl) No. 4910 of 2022, trial is not progressing.

It is a case of economic offence. Economic offences

are always considered as grave offences as it affects the

economy of the country as a whole and such offences having

deep rooted conspiracy and involving huge loss of public fund are

to be viewed seriously. Economic offences are committed with

cool calculation and deliberate design solely with an eye on

personal profit regardless of the consequence 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 offence and its

impact on the society are always important considerations in

such a case and those aspects must squarely be dealt with by

the Court while passing an order on bail applications.

In the case of State of Gujarat -Vrs.- Mohanlal

Jitamalji Porwal reported in A.I.R. 1987 S.C. 1321, it is

held as follows:

"5......The mere fact that six years had elapsed, for which time-lag the prosecution was in no way responsible, was no good ground for refusing to act in order to promote the interests of justice in an age when delays in the Court

// 19 //

have become a part of life and the order of the day......The entire community is aggrieved if the economic offenders who ruin the economy of the State are not brought to books......A disregard for the interest of the community can be manifested only at the cost of forfeiting the trust and faith of the community in the system to administer justice in an even handed manner without fear of criticism from the quarters which view white collar crimes with a permissive eye unmindful of the damage done to the National Economy and National Interest."

Therefore, in my humble view, in the facts and

circumstances, without any change in the circumstances, merely

on ground of the period of detention particularly when the

petitioner has enjoyed interim bail for a long time on different

occasion and even though the right of speedy trial is a

fundamental right under Article 21 of the Constitution of India

and denial of this right corrodes the public confidence in the

justice delivery system, but when the trial of the case could not

progress on account of stay order passed by the Hon'ble

Supreme Court, taking into account the manner in which the

offence has been committed and the innocent poor persons were

cheated of their hard earned money, availability of documentary