Allowed

Abhay Kant Pathak v. State of Odisha

Orissa HC1 Mar 2021BLAPL/27/2021

Case brief

AI extract

What is this about?

The High Court granted bail to the accused in a cheating case accusing him of dishonest inducement and fraudulent intent, citing the need for recovery of outstanding dues does not convert a civil dispute into a criminal one, especially given the Magistrate's trial and the petitioner's conduct.

What did the court decide?

Release of the petitioner on bail by furnishing a bond of Rs.2,00,000 with two local solvent sureties each.

Abhay Kant Pathak Vs State of Odisha — Cheating and Forgery | Orissa HC (2021)

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BLAPL No. 27 of 2021 1

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Abhay Kant Pathak … Petitioner -VersusState of Odisha … Opp. party

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01.03.2021 This matter is taken up through video conferencing.

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Heard Mr. Pitambar Acharya, learned Senior Advocate for the petitioner and Mr. S. K. Nayak, learned Addl. Government Advocate for the State.

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This is an application under section 439 of Cr.P.C. in connection with C.T. Case No.5443 of 2020 arising out of Kharbel Nagar P.S. Case No.292 of 2020 pending in the Court of learned S.D.J.M., Bhubaneswar for offences punishable under sections 419/420/468/471/506/34 of the Indian Penal Code.

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The petitioner moved an application for bail before the Court of learned 3^rd Additional Sessions Judge, Bhubaneswar which was rejected on 23.12.2020.

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Learned counsel for the petitioner submitted that the petitioner was taken on remand in this case on 17.12.2020 and the F.I.R. was registered under sections 419/420/468/471/506/34 of the Indian Penal Code, which are all triable by Magistrate. He further submitted that the informant is one Prabhash Kumar Choudhary, who is the Managing Partner of M/s. Sky King and he has mentioned in the F.I.R. that the

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nature of business of M/s Sky King is to provide train/flight/chartered flight/hotel booking services. It is further stated that for the first time, Mr. Akash Kumar Pathak issued a requisition on 08.06.2020 for charter flight for his visit to Pune from Bhubaneswar via Jamshedpur for the period from 10.06.2020 to 12.06.2020 and a statement showing the invoice raised against different services and payments received from different account show that as on the date of lodging of the F.I.R., which is dated 01.12.2020, the total amount is Rs.2,78,39,087/(Two Crore Seventy-eight lakhs thirty-nine thousand eighty seven only) and an amount of Rs.2,13,22,854/(Two Crore thirteen lakh twenty two thousand eight hundred fifty-four only) has been received and an amount of Rs.65,16,233/- (Rupees sixty-five lakhs sixteen thousand two hundred thirty-three only) is still balance against Akash Kumar Pathak. It is further stated in the F.I.R. that the informant struggled a lot to get payment from Mr. Akash Kumar Pathak and on 15.11.2020 through e-mail, it was confirmed that the payment should be cleared by 19^th or 20^th November 2020 but the amount was not paid and in the last line of the F.I.R., a prayer has been made to the Inspector in-charge of Kharabel police station to take necessary action against Mr. Akash Kumar Pathak to recover of outstanding amount of Rs.65,16,233/- (Rupees sixty-

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five lakhs sixteen thousand two hundred thirty-three only).

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Mr. Acharya, learned Senior Advocate for the petitioner further submitted that the basic ingredients of the offence under section 420 of the Indian Penal Code are lacking in this case. According to him, merely because some outstanding amount is there to be paid to the informant, in absence of any material to show the dishonest intention from the beginning, such offence cannot be attracted. He further submitted that the Inspector in-charge is purported to be utilized as if he is recovery agent of the informant. He placed the decision of the Hon’ble Supreme Court in the case of Dilip Singh -Vrs.- State of Madhya Pradesh reported in 2021 S.C.C. Online S.C. 40 wherein the Hon’ble Supreme Court has observed as follows:-

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“4. By imposing the condition of deposit of Rs.41 lakhs, the High Court has, in an application for pre-arrest bail under section 438 of the Criminal Procedure Code, virtually issued directions in the nature of recovery in a civil suit.

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It is well settled by a plethora of decisions of this Court that criminal proceedings are not for realization of disputed dues. It is open to a Court to grant or refuse the prayer for anticipatory bail, depending on the facts and circumstances of the particular case. The factors to be taken into consideration, while considering an application for bail are the nature of

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accusation and the severity of the punishment in the case of conviction and the nature of the materials relied upon by the prosecution; reasonable apprehension of tampering with the witnesses or apprehension of threat to the complainant or the witnesses; reasonable possibility of securing the presence of the accused at the time of trial or the likelihood of his abscondence; character behavior and standing of the accused; and the circumstances which are peculiar or the accused and larger interest of the public or the state and similar other considerations. A criminal court, exercising jurisdiction to grant bail/anticipatory bail, is not expected to act as a recovery agent to realize the dues of the complaint, and that too, without any trial.”

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Learned counsel for the petitioner further submitted that in view of the nature of accusation against the petitioner, since the offences are triable by Magistrate and the investigation has made substantial progress and there is no chance of absconding, the bail application of the petitioner may be favourably considered.

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Mr. S.K. Nayak, learned Addl. Government Advocate appearing for the State, on the other hand, produced the case diary, opposed the prayer for bail and submitted that during course of investigation, offence under section 467 of the Indian Penal Code has

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been added, which carries sentence of life imprisonment. It is further submitted that there are criminal antecedents against the petitioner and therefore, the bail application of the petitioner should be rejected.

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It is the settled principle of law that in a case under section 420 of the Indian Penal Code, the intention to defraud or the dishonest intention must be present from the very beginning or inception. Intention of the accused at the time of inducement which may be judged by his subsequent conduct but this subsequent conduct is not the sole test. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction, that is the time when the offence is said to have been committed.

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Considering the submission made by the learned counsel for the respective parties, the nature of accusation against the petitioner, the progress of investigation and since it is a case where basically the informant is interested for recovery of certain outstanding dues against the co-accused and the offences are triable by Magistrate, taking into account the period of detention of the petitioner in judicial custody, I am inclined to release the petitioner on bail.

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Let the petitioner be released on bail in the

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aforesaid case on furnishing bail bond of Rs.2,00,000/(rupees two lakhs) with two local solvent sureties each for the like amount to the satisfaction of the learned Court in seisin over the matter with further conditions that the petitioner shall appear before the Investigating Officer as and when necessary and shall co-operate with the investigation and he shall not try to tamper with evidence.

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Violation of any conditions shall entail cancellation of bail.

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BLAPL is accordingly disposed of. Issue urgent certified copy as per Rules.

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…………………..……

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S.K. Sahoo, J.

Abhay Kant Pathak v. State of Odisha

Case brief

What is this about?

What did the court decide?

Abhay Kant Pathak v. State of Odisha

Case brief

What is this about?

What did the court decide?

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