2021 (9) TMI 933 - HC - Indian Laws

Seeking grant of anticipatory bail - Bribery - defalcation of huge amount of the University - section-438 of the Code of Criminal Procedure - HELD THAT - The legislative extent behind the introduction of the section-438 of the Code of Criminal Procedure is to safeguard the individual personal liberty and the protect him from the possibility of being humiliated and from being subjected unnecessary police custody. However, the Court has to keep in mind that a criminal offence is not an offence against an individual; rather the larger societal interest is on stake. Therefore, the delicate balance is required to be established between two rights safeguarding the personal liberty of an individual and the societal interest, depending upon the facts and circumstances of the case. The prosecution case is that the Petitioner is one of the Founder Trustees of the University and the other accused namely, Ashutosh Padhy who is said to be an associate of the Petitioner and present at the spot is the Senior Manager of the Accounts attached to GTET attached to the GTET, the social entrepreneurial outreach of the University. As per the F.I.R., the CBI Officials received the informations from the reliable source that M/s. Centurion Institute of Technology (CIT) had received the notice from the Commissioner, Audit, GST and Central Excise for conduct of audit for the financial year, 2017-18 and it is said that during audit inspection, accused-A.B. Kar, Superintendent, GST with his team had informed the accounts section of the said Institute about the violations with respect to GST with their accounts. So, it is the case of the prosecution that there was demand of bribe from the side of the leader of the team comprising of GST Officials entrusted with the audit work and all the members of the team had their approval so as to have pecuniary gain. The CFO having stated of being not aware of the GST avoidance issue has also gone to say that he had his indulgence in the matter with GST Officials and then however says that he was against that. The statements of all those witnesses to the trap laid have already been recorded. The Petitioner is having his root at Bhubaneswar and the Institutions including the CIT under the University are running within the State of Odisha. The materials so far said to have been collected against this Petitioner-Trustee is that he had engaged that accused-Ashuthosh Padhy to resolve the GST issues and thus had the approval in the matter of meeting the demand of the bribe advanced from the side of the GST Officials entrusted in the audit of the accounts of the CIT. Taking into account the surrounding circumstances and in the absence of any such material as suggestive of the fact that the Petitioners release on prearrest bail shall cause hindrance to free and fair investigation in which the Petitioner expresses to cooperate; it is directed that in the event of arrest of the Petitioner in connection with the above noted case, he be released on bail by the Arresting Officer on executing bonds for a sum of ₹ 1,00,000/- with two sureties of the like amount with further conditions that he will appear in person before the Investigating officer on 22nd March, 2021 in between 10 am to 1 pm and on such other date/s and time as would be so required by the Investigating Officer and co-operate with the investigation. Application disposed.

Summary

Issues Involved:
1. Anticipatory Bail Application
2. Allegation of Bribery and Corruption
3. Involvement of Petitioner in GST Audit Issues
4. Prosecution's Evidence and Arguments
5. Petitioner's Defense and Arguments
6. Court's Consideration and Decision

Detailed Analysis:

1. Anticipatory Bail Application:
The petitioner filed an application under Section 438 of the Code of Criminal Procedure (Cr.P.C.) seeking anticipatory bail, apprehending arrest in connection with an FIR registered for alleged commission of offenses under sections 7A, 8, and 9 of the Prevention of Corruption Act, 1988, and section 120-B of the IPC.

2. Allegation of Bribery and Corruption:
The prosecution alleged that the petitioner, a Founder Trustee of a University, was involved in a bribery case where a GST Superintendent demanded a bribe of ?10 lakh from the University's CFO and GST Consultant to settle GST issues. It was claimed that the petitioner directed the Senior Finance Manager to handle the matter, implicating him in the bribery scheme.

3. Involvement of Petitioner in GST Audit Issues:
The petitioner's counsel argued that the petitioner was not involved in the day-to-day affairs of the University, especially in GST matters, as he was abroad since October 2020. The counsel emphasized that the petitioner had no knowledge of the GST audit and that the CFO and other officials were responsible for financial matters. The petitioner had left the country for professional engagements and had requested virtual interrogation, which was denied.

4. Prosecution's Evidence and Arguments:
The Special Public Prosecutor for CBI argued that the petitioner was directly involved in the bribery case, citing the presence of the Senior Finance Manager at the spot with the bribe money and the petitioner's telephonic conversation with him. The prosecution submitted statements from the CEO and CFO of the University indicating the petitioner's involvement and argued that granting anticipatory bail could hinder the investigation.

5. Petitioner's Defense and Arguments:
The petitioner's counsel contended that the allegations were baseless and aimed at defaming the petitioner and the University. It was argued that the CFO and other officials were trying to divert attention from their own misdeeds of defalcation. The petitioner had consistently shown willingness to cooperate with the investigation upon his return to the country and had no role in the alleged bribery.

6. Court's Consideration and Decision:
The court considered the legislative intent behind Section 438 of Cr.P.C. to protect individual liberty while balancing societal interests. It referred to the principles laid down by the Supreme Court in Siddharam Satlingappa Mhetre vs. State Of Maharashtra And Ors. The court noted the petitioner's absence from the country since October 2020, his willingness to cooperate with the investigation, and the lack of direct evidence implicating him. The court directed that in the event of the petitioner's arrest, he should be released on bail with conditions to ensure his cooperation with the investigation and prevent any tampering with evidence or influencing witnesses.

Conclusion:
The court granted anticipatory bail to the petitioner, directing his release on bail upon arrest with specific conditions to ensure his cooperation with the investigation. The ABLAPL was disposed of accordingly.