Bibhuti Bhusan Acharya Vs State of Odisha

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.

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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

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was withdrawn without the knowledge of the complainant and the complainant further came to know that the Petitioner had filed another case before Debts Recovery Tribunal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

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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

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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.

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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

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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.

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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

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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.

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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

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his client, is not entitled to bail. Accordingly, Mr. Mohanty has prayed to reject the bail application of the Petitioner.

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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

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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

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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.

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5. In the course of argument, the Petitioner has also relied upon the decision in B.K. Gupta Vrs.

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Damodar H. Bajaj and others; (2001) 9 SCC 742, wherein the Apex Court has held that there are two preconditions on fulfillment of which a complaint can be filed

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against a person who has given a false affidavit or

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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,

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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.

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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:-

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“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

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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.”

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

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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.

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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

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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 ]

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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

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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.

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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.

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11. Hence, the bail application of the Petitioner

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stands allowed and he is allowed to go on bail on

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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:-

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(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.

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12. Accordingly, the bail application stands disposed of. Issue urgent certified copy of the order as

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per Rules.

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(G. Satapathy) Judge

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Signature Not Verified

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Digitally Signed Signed by: PRIYAJIT SAHOOReason: Authentication Orissa High Court, Cuttack, Location: HIGH COURT OF ORI Date SSA d t he 9^th day of September, 2025/Priyajit Date: 09-Sep-2025 18:55:55

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Bibhuti Bhusan Acharya v. State of Odisha

Case brief

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Bibhuti Bhusan Acharya v. State of Odisha

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