Petitioner, a co-director of a housing development company, applied for bail in an economic offence case alleging misappropriation of investor funds. The High Court rejected bail, citing the grave nature of the economic offence, the strong prima facie case, and the larger public interest.
Bail application rejected.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF ORISSA, CUTTACK
BLAPL NO. 3131 Of 2019
An application under section 439 of the Code of Criminal Procedure in connection with E.O.W., Bhubaneswar P.S. Case No.03 of 2018 corresponding to C.T. Case No. 05 of 2018 pending on the file of Presiding Officer, Designated Court, O.P.I.D. Act, Cuttack.
| ----- Gagan Bihari Mishra |
------------------ …..… -Versus- |
----- Petitioner |
|---|---|---|
| State of Odisha | …..… | Opp. Party |
| For Petitioner: | - | Mrs. Sujata Jena |
| G.B. Jena, B. Jena | ||
| For Opp. party: ----- |
- -------------------- |
Mr. Bibekananda Bhuyan ------ |
P R E S E N T:
THE HONOURABLE MR. JUSTICE S.K. SAHOO
--------------------------------------------------------------------------------------------------Date of Argument: 17.05.2019 Date of Order: 04.06.2019 ---------------------------------------------------------------------------------------------------
S. K. SAHOO, J . The petitioner Gagan Bihari Mishra has filed this
application under section 439 of Code of Criminal Procedure seeking for bail in connection with E.O.W., Bhubaneswar P.S. Case No.03 of 2018 corresponding to C.T. Case No. 05 of 2018 pending on the file of Presiding Officer, Designated Court, O.P.I.D. Act, Cuttack for offences punishable under sections 420,
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467, 468, 471, 406 and 120-B of the Indian Penal Code read with section 6 of the Odisha Protection of Interests of Depositors (in Financial Establishments) Act, 2011 (hereafter ‘O.P.I.D. Act’).
Buxi Bazar under Purighat police station in the district of Cuttack lodged the first information report before the Superintendent of Police, Economic Offences Wing, Odisha, Bhubaneswar stating therein that during October 2011, he came to know from the advertisement published in the local daily newspaper as well as from the brochures and leaflets circulated by the real estate company namely M/s. Shree Baladevjew Infrastructure (P) Limited, Cuttack (hereafter ‘M/s. SBI (P) Ltd.’) that one residential housing project in the name and style of ‘Tulasi Gardens’ located at Mouza Badkesharpur, Tangi in the district of Cuttack measuring Ac. 03.05 dec. has been floated by M/s. SBI (P) Ltd. for selling of flats to the customers. Being allured by the advertisement of M/s. SBI (P) Ltd., the informant visited its project site office and contacted Durga Prasanna Mishra, Director and during discussion, Shri Mishra and other officials of M/s. SBI (P) Ltd. assured the informant to handover a flat bearing no. C- 303 situated in the 3rd floor of the said residential housing project for a consideration amount of Rs.12,56,250/- within a
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period of thirty months. At that time, there was no construction at the project site except one office. The informant paid a total sum of Rs.4,90,000/- in three phases/instalments towards booking amount and he also received money receipt dated 12.11.2011 from M/s. SBI (P) Ltd. towards booking of a 2 BHK flat in his name. On 29.02.2012 M/s. SBI (P) Ltd. represented through its Director Shri Mishra executed an agreement with the informant wherein it was agreed to handover the flat to the informant within thirty months from the date of agreement. It is the further case of the informant as per the F.I.R. that he contacted Shri Mishra and other officials time and again to know about the progress of the work and asked them to handover the flat to him within the stipulated time as per agreement. M/s. SBI (P) Ltd. failed to commence as well as to complete the construction. When the informant requested Shri Mishra and the other officials to refund his money, they persuaded him to adjust his money by providing another flat in the said project but neither the informant nor other customers were provided with any flat despite the company taking advances from them as per agreements. Neither the construction work of the flat started nor any of the flats in the said project was handed over to any of the customers. The informant came to know that some of the flats in
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the project have been hypothecated to Dewan Housing Finance Corporation Ltd. (DHFL) during the year 2012. An amount of more than five crores was collected by M/s. SBI (P) Ltd. from more than 200 investors/customers with false assurance of providing flats in the said residential housing project and later the investors were cheated. Assurance was given to many investors in the name of providing plot/flat/duplex in the project as well as in other projects in and around Cuttack by executing agreements and issuing fake money receipts, giving false assurance of providing flats in cheap rates and later cheating them. It is further stated in the F.I.R. that Shri Mishra diverted the invested money for acquiring lands/flats and other movable/immovable properties in his name as well as in the name of his other family members.
During course of investigation, it was ascertained that the petitioner is the father of accused Durga Prasanna Mishra. A project loan of rupees eight crores was sanctioned by DHFL on 17.05.2013 in favour of M/s. SBI (P) Ltd. as borrower
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and M/s. Tulsi Spices and Foods Ltd. (hereafter ‘M/s. T.S.F. Ltd.’) as co-borrower. As per the terms and conditions of the loan, the primary security of the loan amount was the entire project land of Ac.03.05 dec. owned by M/s. T.S.F. Ltd. and present and future constructions in the residential project ‘Tulsi Gardens’ and that after execution of loan documents, first disbursement of Rs.2.50 crores was to be made directly in favour of State Bank of Hyderabad towards payment of the outstanding loan amount against M/s. T.S.F. Ltd. The said sanctioned letter dated 17.05.2013 was signed by Durga Prasanna Mishra, Director of M/s. SBI (P) Ltd. as borrower and the petitioner who is the Director of M/s. T.S.F. Ltd. as co-borrower.
During course of investigation, it was further ascertained that Mr. Ambika Prasad Mohanty, Auditor of M/s. SBI (P) Ltd. had audited the accounts of the company for the period of 2014-15 and submitted his report. As per his report, M/s. SBI (P) Ltd. received Rs.7.36 crores as loan from DHFL and Rs.5.22 crores as advance from the customers. Out of the said amount, the head of the company utilized an amount of Rs.3.01 crores in other companies of their groups. An amount of Rs.29,215,968/was diverted to M/s. T.S.F. Ltd. and Rs.9,77,957/- to M/s. Tulasi Flour Mills, a proprietorship farm in which the petitioner was the
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Proprietor. As such, the aforesaid amount was diverted to the accounts of M/s. T.S.F. Ltd. and M/s. Tulasi Flour Mills, in which the petitioner was the Director and Proprietor respectively from the account of M/s. SBI (P) Ltd. which had collected deposits from public in the pretext of providing flats.
Out of Rs.7.36 crores loan received from DHFL, an amount of Rs.2.5 crores was credited to the accounts of M/s. T.S.F. Ltd. for clearing the outstanding loan of State Bank of Hyderabad as the entire project land of ‘Tulsi Gardens’ was kept under mortgage with DHFL for obtaining loan. Out of the total amount of Rs.29,215,968/- shown to have been transferred to the account M/s. T.S.F. Ltd. from the account of M/s. SBI (P) Ltd., after deducting the aforesaid amount of Rs.2.5 crores which was utilised for clearing the outstanding loan of State Bank of Hyderabad, it comes to Rs.42,15,968/- which is nothing but the amount collected from intending purchasers of flats. Similarly, an amount of Rs.9,77,957/- which was transferred to the account of M/s. Tulasi Floor Mills from the account of M/s. SBI (P) Ltd. was also collected from the intending purchasers of flats.
It also revealed from the statements of accounts standing in the name of M/s. T.S.F. Ltd. maintained in Axis Bank, Jagatpur Branch vide A/C no.911020064237878 and Central
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Bank of India, Pir Bazar Branch, Cuttack vide A/C
no.1994618348 that as on 14.03.2015, the balance in Axis Bank account was Rs.00.00 and as on 30.09.2018, the balance in Central Bank of India account was Rs.2,036.96 paisa.
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Ltd. represented through its director accused Durga Prasanna Mishra by the Managing Director of M/s. T.S.F. Ltd. to deal with the property for getting the plan approved from C.D.A., for applying for electric and water pipe connection, to give advertisement in the newspapers and in any other media for sale of those flats, to negotiate with the prospective purchasers for alienating the land and the flats etc. It is contended that accused Durga Prasanna Mishra and the petitioner as borrowers took a loan of rupees eight crores from DHFL for construction of flats by mortgaging the land belonging to M/s. T.S.F. Ltd., out of which Rs.2.5 crores was first deposited with State Bank of Hyderabad towards the outstanding loan incurred by M/s. T.S.F. Ltd. None of the intending purchasers has alleged anything against the petitioner and the petitioner is also in no way connected with the receipt of money from the investors or in the construction of the flats. There is no material that the money which came to the account of the petitioner and withdrawn phase wise belonged to the intending purchasers. It is further submitted that the main allegation is against the son of the petitioner who is in judicial custody since 01.02.2018. The petitioner is an old man, aged about 71 years and he is suffering from various age related ailments and there is no male member in the family to take care
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of the ailing wife of the petitioner who is suffering from brain tumour so also his daughter-in-law and two minor grand children. It is contended that there is no possibility of either absconding or tampering with the evidence by the petitioner and he has also got no criminal antecedent and therefore, the bail application of the petitioner may be favourably considered.
Mr. Bibekananda Bhuyan, learned Special Counsel
appearing for the State of Odisha vehemently opposed the prayer for bail and submitted that the petitioner is the Director of M/s. T.S.F. Ltd. and there was an outstanding loan amount of Rs.2.50 crores of State Bank of Hyderabad against M/s. T.S.F. Ltd. Project loan of Rs.8.00 crores was sanctioned by DHFL on 17.05.2013 in favour of M/s. SBI (P) Ltd. as borrower and M/s. T.S.F. Ltd. as co-borrower keeping mortgage of the entire project land measuring Ac.03.05 dec. owned by M/s. T.S.F. Ltd. and the present and future construction thereon in the residential project ‘Tulsi Gardens’. The sanction letter was signed by the petitioner as the Director of M/s. T.S.F. Ltd. and his son co-accused Durga Prasanna Mishra, Director of M/s. SBI (P) Ltd. After such sanction of project loan, the loan agreement was executed on 21.05.2013 between the M/s. SBI (P) Ltd. and M/s. T.S.F. Ltd. as borrowers of the one part and DHFL on the other
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part and it was stipulated that the borrowers shall utilize the loan only for the purposes of developing the project and for no other purpose. Out of the project loan of Rs.8.00 crores, an amount of Rs.2.5 crores was utilized for repayment of the outstanding loan of State Bank of Hyderabad against M/s. T.S.F. Ltd. Mr. Bhuyan argued that the audit report of M/s. SBI (P) Ltd. indicated that Rs.5.22 crores was received from the customers as advance towards residential housing project. An amount of Rs.2,92,15,968/- was diverted to M/s. T.S.F.L. Ltd. and Rs.9,77,957/- was diverted to M/s. Tulsi Flour Mills. He emphasized that if Rs.2.5 crores which was utilized for repayment of the outstanding loan of State Bank of Hyderabad is deducted from the aforesaid amount of Rs.2,92,15,968/-, then it comes to Rs.42,15,968/- which was the amount collected from the intending purchasers of the flats. It is contended that huge amount collected from the intending purchasers was transferred from the account of the M/s. SBI (P) Ltd. to the accounts of M/s. T.S.F. Ltd. as well as M/s. Tulsi Flour Mills. The money was not available in the bank accounts of M/s. T.S.F. Ltd. when those were seized, which indicates that the money has been withdrawn and misappropriated. It is further contended that since it is an economic offence and the manner in which the son of the
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petitioner collected crores of rupees from the intending purchasers with false assurance of providing them flats and the petitioner signed the loan agreement with DHFL as authorized director of M/s. T.S.F. Ltd. and substantial amount was transferred to the accounts of M/s. T.S.F. Ltd. and M/s. Tulsi Flour Mills and the same was withdrawn and misappropriated by the petitioner, he does not deserve to be released on bail.
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reported in A.I.R. 1987 S.C. 1321 and Nimmagadda Prasad -Vrs.- C.B.I. reported in (2013) 7 Supreme Court Cases 466 ).
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and that of Central Bank of India is Rs.2036.96 paisa. Therefore, the petitioner has withdrawn almost the entire amount which had come to the accounts of M/s. T.S.F. Ltd. from M/s. SBI (P) Ltd. According to the prosecution case, the amount which was transferred from the accounts of M/s. SBI (P) Ltd. to the accounts of M/s. T.S.F. Ltd. was collected from the investors for giving them flats in the residential projects of ‘Tulsi Gardens’. It reveals that even though Rs.5.22 crores was collected from the customers as advance for providing them flats since long but not a single customer is able to get such flat rather the amount so deposited has been transferred to different accounts for obvious reasons and misappropriated. The dreams of the poor investors to get a flat in the residential project have remained unfulfilled and they have been cheated of their hard earned money. The role of the petitioner cannot be said to be negligible one in the entire transaction. Even though the petitioner has not executed any agreement with the investors nor received any money directly from them but such money has indirectly came to him through his son. The case against the petitioner relates to commission of the economic offence. The investigation is at a nascent stage. Submission of the learned counsel for the petitioner relating to the age related ailments of the petitioner is
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not supported by any medical documents. The medical documents filed in connection with the wife’s ailment of the petitioner are of April and May 2018. There is nothing to show relating to her present health condition. There is strong prima facie case available against the petitioner to show his involvement in the economic offence. Even though the petitioner is an aged person but taking into account the nature and gravity of accusation, likelihood of tampering with the evidence and above all in the larger interest of society, I am not inclined to release the petitioner on bail.
Accordingly, the bail application of the petitioner sans merit and hence stands rejected.
….……………………… S. K. Sahoo, J.
Orissa High Court, Cuttack The 04th June 2019/Pravakar/Sisir/Sukanta
3 issues framed by the court
Whether the petitioner, who signed as a co-borrower but received no funds directly, can be released on bail in an economic offence involving alleged misappropriation of investors’ money.
Whether the nature and gravity of economic offence and larger public interest outweigh the petitioner’s age and alleged health ailments for bail purposes.
Whether proximity of the trial stage and strong prima facie case justify rejection of bail for a director implicated in fund diversion.
Colour shows how this judgement treated each authority
Y.S. Jagan Mohan Reddy v. C.B.I.Referred¶42
Y.S. Jagan Mohan Reddy -Vrs.- C.B.I. reported in (2013) 55 Orissa Criminal Reports (SC) 825
State of Gujarat v. Mohan Lal Jitamalji PorwalReferred¶43
State of Gujurat -Vrs.- Mohan Lal Jitamalji Porwal reported in A.I.R. 1987 S.C. 1321 · Who else cites this
Nimmagadda Prasad v. C.B.I.Referred¶44
Nimmagadda Prasad -Vrs.- C.B.I. reported in (2013) 7 Supreme Court Cases 466
5 provisions across 2 enactments
Gagan Bihari Mishra
State of Odisha
S. K. SAHOO
As recorded by the court registry
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