Bibhuti Bhusan Acharya vs State Of Odisha ... Opposite Party
2025 Latest Caselaw 7981 Ori

Orissa High Court

Bibhuti Bhusan Acharya vs State Of Odisha ... Opposite Party on 9 September, 2025

Author: G. Satapathy

Bench: G. Satapathy

     IN THE HIGH COURT OF ORISSA AT CUTTACK

    BLAPL No.4874 of 2024 & IA Nos. 380 and 381 of 2025

   (In the matter of application under Section 439 of the
   CrPC).

   Bibhuti Bhusan Acharya             ...        Petitioner
                          -versus-
   State of Odisha                    ... Opposite Party

   For Petitioner          : Mr. Y. Das, Sr. Advocate along
                             with Mr. N.C. Mohanty,
                             Advocate

   For Opposite Party      : Mr. C. Mohanty, Addl. PP
                             Mr. S. Palit, Sr. Advocate along
                             with Mr. S.S. Das,
                             Advocate(Informant)

       CORAM:
                   JUSTICE G. SATAPATHY

                DATE OF HEARING : 20.08.2025
                DATE OF JUDGMENT : 09.09.2025

G. Satapathy, J.

1. This is a bail application U/S.439 of CrPC by the

Petitioner for grant of bail in connection with Bhadrak

Rural Case No.77 of 2024 arising out of GR Case No.300

of 2024 for commission of offences punishable U/Ss.

420/467/468/294/506 of IPC pending in the Court of

learned SDJM, Bhadrak.

2. The complaint against the Petitioner which was

sent U/S. 156(3) of the CrPC to the Police and registered

as Bhadrak Rural PS Case No. 77 of 2024 discloses that

the Petitioner is an advocate and the complainant being

introduced by his friend had discussion with the Petitioner

to file case against Bank of Baroda under SARFAESI Act

as later had sold out his immovable mortgage secured

asset through E-auction sale on 26.11.2021 and on the

advice of the Petitioner, the complainant arranged Rs.

1,35,00,000/-(Rupees One Crore Thirty Five Lakhs) from

his friends and relatives for one time settlement (OTS),

however, the Petitioner advised him(complainant) to pay

Rs. 1,49,60,000/- (Rupees One Crore Forty Nine Lakhs

Sixty Thousand) towards bank dues, interest and his legal

fees and expenses including the OTS amount.

Accordingly, on 22.12.2021 the complainant transferred a

sum of Rs. 20,000/- (Rupees Twenty Thousand) to the

account of BD Associates formed by the Petitioner and

thereafter, again transferred Rs. 9,00,000/-(Rupees Nine

Lakhs) to the complainant through RTGS. Accordingly, a

writ petition in WP(C) No. 38939 of 2021 was filed which

was withdrawn without the knowledge of the complainant

and the complainant further came to know that the

Petitioner had filed another case before Debts Recovery

Tribunal (DRT), Cuttack in SA No. 6 of 2022, whereafter

on 28.02.2022, the complainant paid Rs. 70,00,000/-

(Rupees Seventy Lakhs) in cash, out of which the

Petitioner deposited Rs. 68,00,000(Rupees Sixty-Eight

Lakhs) in his account and retained Rs. 2,00,000 (Rupees

Two Lakhs) and thereafter, on 04.03.2022, on the

request of the complainant, his uncle Madhab Charan Das

transferred a sum of Rs. 70,00,000/- (Rupees Seventy

Lakhs) to the personal account of the Petitioner through

RTGS and subsequently, the complainant had sent Rs.

40,000/- to the Petitioner towards his legal expenses on

10.12.2021. After receiving the total sum of Rs.

1,49,60,000/- (Rupees One Crore Forty Nine Lakhs Sixty

Thousand), the Petitioner did not inform the status and

order of the case filed by him to the complainant, but

later in the month of September, 2022, the complainant

came to know from DRT that the Petitioner is not his

advocate and he has engaged another counsel and the

complainant later on verification came to know that the

Petitioner has not cleared up the outstanding dues of the

Bank and when the complainant protested, finding no

alternative, the Petitioner on 05.09.2022 issued cheque

No. 014878 for an amount of Rs. 1,40,00,000/-(Rupees

One Crore Forty Lakhs) in the name of the friend of the

complainant namely Khitish Chandra Jena who had earlier

introduced the complainant with the Petitioner and the

Petitioner had assured to pay the balance amount of Rs.

9,60,000/- (Rupees Nine Lakhs Sixty Thousand) on or

before 03.12.2022, but the cheque on deposit got

dishonored with endorsement "account closed". It is

further alleged that on 04.12.2023, the Petitioner and his

friends threatened and assaulted the complainant and his

friends near Gelpur Chhaka, but despite report to local

police and SP, Bhadrak, no action was taken and the

complainant presented the complaint which was sent and

registered as Police Case for commission of offences

punishable U/Ss.395/ 420/ 467/ 468 r/w Sections 25/27

Arms Act and the Petitioner was arrested on 14.04.2024

for commission of such offences punishable

420/467/468/294/506 of IPC. The Petitioner, thereafter,

unsuccessfully approached for bail to the learned SDJM as

well as the learned Addl. Sessions Judge-cum-Special

Court under POCSO Act, Bhadrak who rejected the bail

petition of the Petitioner by inter-alia observing that the

offence U/S.467 IPC provides punishment of

imprisonment for life and the investigation is going on.

This is how the Petitioner, is before this Court.

3. In the course of hearing, Mr. Yasobant Das,

learned Sr. Counsel who is being assisted by Mr. N.C.

Mohanty, learned counsel for the Petitioner has

vehemently argued and submitted that the criminal

proceedings are not meant for the realization of disputed

dues and the allegation on record in this case reveals an

immoral contract which is not enforceable in law, but the

Petitioner was initially arrested, but subsequently

released on interim bail and has continued with such

interim bail without having any adverse report. It is

further submitted that since Sec. 23 of the Indian

Contract Act, 1872 provides that every agreement of

which the object or consideration is unlawful is void and

in this case, the very object of the complainant was for

immoral purpose and, therefore, he cannot prosecute the

petitioner in criminal case. Accordingly, Mr.Das, learned

Senior counsel under aforesaid submissions has prayed to

admit the petitioner to regular bail.

3.1. On the other hand, Mr. Subir Palit, learned Sr.

Counsel who is being assisted by Mr. S.S. Das, learned

counsel for the Informant has submitted by referring to

IA Nos. 380 & 381 of 2025 that not only the Petitioner

has cheated the informant, but also has produced forged

documents in this Court and, therefore, he is liable to be

prosecuted for practicing fraud upon the Court in terms of

the provisions of Sec. 340(1) of CrPC/379 of BNSS. Mr.

Palit accordingly referred to the document filed under

Annexure-6 together with the affidavit of the Petitioner

dated 04.12.2024 to initiate a proceeding against the

Petitioner in the nature of Sec. 379 of BNSS. In opposing

the prayer for bail of the Petitioner, Mr. Palit has also

submitted that there is sufficient material to infer that the

Petitioner has cheated the complainant which is evident

from the payment of Rs. 50,00,000/- (Rupees Fifty

Lakhs) by the Petitioner to the complainant to secure his

release on interim bail in terms of the order passed by

this Court on 23.05.2024 and in consequence of the

mediation proceeding. Mr.Palit has further submitted that

the Petitioner is yet to refund the rest amount, but the

Petitioner has deceived the complainant by obtaining his

signature on plain paper and preparing document using

such signature and the conduct of the Petitioner itself

makes him not entitled to the benefit of bail. It is further

submitted that the Petitioner being a lawyer had misused

the trust of his client by committing the offences which

are not only serious, but also deplorable and he should

not be granted regular bail on this very score. On the

aforesaid submissions, Mr. Palit has prayed to reject the

bail application of the Petitioner.

3.2. Mr. C.Mohanty, learned Addl. Public Prosecutor,

however, has strongly opposed the bail application of the

Petitioner by inter-alia submitting that even though the

Petitioner is an advocate, but his conduct is not above

board and he having cheated the complainant, who was

his client, is not entitled to bail. Accordingly, Mr. Mohanty

has prayed to reject the bail application of the Petitioner.

4. The complainant-cum-Informant has filed an IA

Nos. 380 & 381 of 2025 to initiate a proceeding against

the Petitioner U/S. 379 of BNSS and call upon the

Petitioner to produce the original documents under

Annexure-6 to the affidavit 04.12.2024. The averments

made in IA No. 380 of 2025 makes it clear that the

Informant has sought for to initiate a proceeding U/S.

379 of BNSS on the ground that the Petitioner has filed

an affidavit on 04.12.2024 by annexing a forged

document under Annexure-6 for the purpose of evading

the liability to make payment to the complainant and it is

further alleged therein that the Petitioner while

conducting the case had taken so many signatures of the

Informant on blank papers and by using one of such

blank papers with the signature of the Informant, the

Petitioner had cheated him (Informant). It is, therefore,

understood that the complainant has termed Annexure-6

which has been produced in this Court to be a forged

document. A brief reference to Sec. 379 of BNSS makes it

ample clear that a proceeding may be initiated for any

offences referred to in clause-b of Sub-Section(1) of

Section 215 of BNS which appears to have been

committed in or in relation to a proceeding in that Court

or, as the case may be, in respect of a document

produced or given in evidence in a proceeding in that

Court, provided such Court is of the opinion that it is

expedient in the interests of justice that such inquiry

should be made into the offence as referred in Sec.

215(1)(b) of the BNS. In this case, the Petitioner claims

that Annexure-6 is a forged document, but a brief

reference to the Annexure-6, it appears that it is a photo

copy of a document under the heading "to whomsoever it

may concern" and it is stated therein about the informant

paying Rs. 9,00,000/- (Rupees Nine Lakhs) through

account transfer to BD Associates and Rs. 70,00,000/-

(Rupees Seventy Lakhs) from the account of Mr. Madhab

Charan Das to the Petitioner as his consultation fees,

legal expenses and charges. Whether Annexure-6 is a

forged document or not or what is its ramification, cannot

be examined in a proceeding in the nature of bail

application without full-fledged evidence being led, more

particularly when the informant/complainant has alleged

against the Petitioner for cheating him for some amount

of money. In a proceeding for grant of bail, the Court has

to see as to whether the Petitioner has made out a case

for grant of bail or not, but if in such proceeding, the

probative value of any document produced by either the

informant or the accused cannot be assessed without the

evidence. Besides, detail analysis of evidence on merit is

not permissible in a proceeding for grant of bail. The

informant in this case in fact by filing a petition has

sought for assessment of a document by terming it as

forged document, which this Court does not consider it

proper since the same may be in the domain of the

learned trial Court in the trial.

5. In the course of argument, the Petitioner has

also relied upon the decision in B.K. Gupta Vrs.

Damodar H. Bajaj and others; (2001) 9 SCC 742,

wherein the Apex Court has held that there are two pre-

conditions on fulfillment of which a complaint can be filed

against a person who has given a false affidavit or

evidence in a proceeding before a Court; Firstly, a person

has given a false affidavit in a proceeding before the

Court and, secondly, in the opinion of the Court it is

expedient in the interest of justice to make an inquiry

against such a person in relation to the offence

committed by him. For a moment, accepting the claim of

the informant, but not admitting the same on face of it, it

appears that the complainant has alleged against the

Petitioner for cheating him for a certain sum of amount,

but Annexure-6 only reveals about the payment made by

the complainant to the Petitioner which is yet to be

established by any evidence and this Court is neither

deciding the claim of the Informant/complainant nor

giving the Petitioner a clean chit and the allegation of the

Informant/complainant has to be decided in the criminal

case registered against the Petitioner in the trial by the

learned trial Court on the basis of evidence led before it.

Thus, it is in the domain of the learned trial Court to

decide on the basis of evidence as to whether the

Petitioner has committed any offence or not in the norm

of standard of proof beyond all reasonable doubt. Further,

this Court is not examining the dispute on merits; rather

this Court is being entrusted to adjudicate the bail

application of the Petitioner. It is, therefore, considered

neither relevant to examine the contents of Annexure-6

in this proceeding nor desirable to call upon the Petitioner

to produce the original documents at this stage.

6. Be that as it may, law is fairly well settled that

the Court is also not bound to make a complaint against

the Petitioner regarding commission of any offence

referred to in 215(1)(b) of the BNS. In this context, this

Court considers it useful to refer to the decision in Iqbal

Singh Marwah and another Vrs. Meenakshi Marwah

and another, (2005) 4 SCC 370, wherein a

constitutional Bench of five Judges of Apex Court has held

in paragraph-23 as under:-

"23. In view of the language used in Section 340 Cr.P.C. the Court is not bound to make a complaint regarding commission of an offence referred to in Section 195(1)(b), as the Section is conditioned by the words "Court is of opinion that it is expedient in the interest of justice." This shows that such a course will be adopted only if the interest of justice requires and not in every case. Before filing of the complaint, the Court may hold a preliminary enquiry and record a finding to the effect that it is expedient in

the interests of justice that enquiry should be made into any of the offences referred to in Section 195(1)(b). This expediency will normally be judged by the Court by weighing not the magnitude of injury suffered by the person affected by such forgery or forged document, but having regard to the effect or impact, such commission of offence has upon administration of justice. It is possible that such forged document or forgery may cause a very serious or substantial injury to a person in the sense that it may deprive him of a very valuable property or status or the like, but such document may be just a piece of evidence produced or given in evidence in Court, where voluminous evidence may have been adduced and the effect of such piece of evidence on the broad concept of administration of justice may be minimal. In such circumstances, the Court may not consider it expedient in the interest of justice to make a complaint. The broad view of clause (b)(ii), as canvassed by learned counsel for the appellants, would render the victim of such forgery or forged document remedyless. Any interpretation which leads to a situation where a victim of a crime is rendered remedyless, has to be discarded."

7. In view of the above discussion of facts and the

law laid down by the Apex Court, this Court does not find

any good reason to either initiate a proceeding U/S. 379

of BNSS or to call upon the Petitioner to produce the

original documents of Annexure-6. The IA Nos. 380 & 381

of 2025 are hereby dismissed.

8. On coming back to considering the plea of the

Petitioner for bail, it appears that there is allegation

against the Petitioner for cheating the informant by

forging documents, but the Petitioner has been admitted

to interim bail in this case by a Co-ordinate Bench of this

Court by ordering him to pay Rs. 45,00,000/- (Rupees

Forty Five Lakhs) in terms of the submission made for the

Petitioner and thereafter, the said Co-ordinate Bench has

also referred the parties for mediation after payment of

Rs. 45,00,000/- (Rupees Forty Five Lakhs) when the

liability of the Petitioner was disputed for the alleged

amount by way of submission that the Petitioner had only

taken a sum of Rs. 70,00,000/- (Rupees Seventy Lakhs)

and in such mediation proceeding, a further sum of Rs.

5,00,000/- was paid to the Petitioner as acknowledged by

the Informant/complainant in the written notes of

submission filed on behalf of him. The interim bail of the

Petitioner has been extended from time to time and still

now the Petitioner is on interim bail, but no adverse

report has come against the Petitioner either for

influencing the witnesses or tampering with prosecution

evidence. Whatever is the allegation against the

Petitioner, it is only the allegation, but it is to be subject

to trial and the dispute between the

Informant/complainant and the Petitioner is with regard

to monetary transaction, however, the Informant/

complainant is concerned only about refund of the

money, but it is to be remembered here that criminal

proceedings are not meant for realization of disputed

dues. Thus, a criminal Court, exercising jurisdiction to

grant of bail or anticipatory bail is not expected to act as

a recovery agent to realize the dues of the complainant

and that too, without any trial as held by the Apex Court

in Ramesh Kumar Vrs. State of NCT of Delhi; (2023)

7 SCC 461. It is also not in dispute that the law

presumes an accused to be innocent till his guilt is proved

and as a presumably innocent person, he is entitled to all

the fundamental rights including the right to liberty

guaranteed under Article 21 of the Constitution [Sumit

Mehta Vrs. State of (NCT Delhi); (2013), 15 SCC

570; para-12 Page-576]

9. A brief survey of allegations made by the

Informant against the Petitioner, it appears that the

Petitioner being an advocate had allegedly received

certain sum of money from the Informant as his client,

but wrong advice or promise made for favourable

outcome in litigation may be misconduct which is again

subject to trial and in this case, the Informant has

already approached the State Bar Council in this case.

Besides, one of the important considerations for grant of

bail is the satisfaction of tripod test by the accused; such

as (i) flight risk, (ii) influencing witnesses and (iii)

tampering evidence, but in this case, the dispute between

the parties presumably related to document and oral

evidence of the complainant/Informant and his witnesses

and, therefore, there is hardly any apprehension of

influencing witnesses or tampering evidence by the

Petitioner. Further, the apprehension of flight risk can be

curtailed by directing the Petitioner to surrender his

passport, if any and in the event, he is having no

passport, he may be directed to file an affidavit before

the learned trial Court towards the same. Moreover, the

investigation being complete, there is minimal chance of

influencing the witnesses. Law is also well settled that

bail should not be withheld as a pre-trial punishment and

the paramount consideration in granting bail is securing

the attendance of the accused at the trial. Since the

Petitioner is in interim bail and no adverse report has

come against him for misusing such liberty/concession.

10. On a cumulative consideration of facts and law

as discussed above and taking into account the stage of

the case, which by now may be ripen for hearing and the

allegation concerning dispute between the parties being

limited to monetary transaction as advocate and client

and out of the disputed amount, some amount having

already been paid to the informant/complainant and

keeping in view the law laid down by the Apex Court in

Satender Kumar Antil Vrs. Central Bureau of

Investigation; (2022) 10 SCC 51, this Court without

expressing any opinion on merits considers it proper to

admit the Petitioner to regular bail.

11. Hence, the bail application of the Petitioner

stands allowed and he is allowed to go on bail on

furnishing bail bonds of Rs.5,00,000/- (Rupees Five

Lakhs) with two solvent sureties each for the like amount

to the satisfaction of the learned Court in seisin of the

case on such terms and conditions as deem fit and proper

by it with following condition:-

(i) The petitioner shall surrender his passport, if any, and in case, he is not a holder of the same, he shall swear affidavits to that effect.

12. Accordingly, the bail application stands

disposed of. Issue urgent certified copy of the order as

per Rules.

(G. Satapathy) Judge

Signed by: PRIYAJIT SAHOOOrissa High Court, Cuttack,

ORISSAthe 9th day of September, 2025/Priyajit Date: 09-Sep-2025 18:55:55