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TMI Blog2023 (2) TMI 1337X X X X Extracts X X X X X X X X Extracts X X X X ..... njan Goswami [ 2020 (11) TMI 965 - SUPREME COURT ], but the allegation on record against the petitioner not only discloses a prima facie allegation against the petitioner for commission of fraud and cheating by forging documents, but also the enormity of amount of embezzlement involved in this case to the tune of Rs. 109 crores add to the worries of investors and depositors of the company which assumes further significance when investigation is kept open U/S. 173(8) of Cr.P.C. The offence alleged against the petitioner are U/Ss. 406/420/467/468/471/120-B of the IPC, out of which offence U/S. 467 is punishable with up to life imprisonment and the alleged manner in which the funds received by the petitioner were credited in a number of accounts created in the names of staff of the company of the petitioner to defraud different persons which prima facie speaks against the intention of the petitioner to cheat different persons. Taking into consideration the enormity of allegations levelled against the petitioner in committing fraud involving more than Rs. 100 crores and the alleged mode and manner of cheating the investors and lenders as well as the alleged involvement of the petitione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alleged that SFPL had not utilized the loan amount for lending loan to women joint liability groups and managed to embezzle the entire loan amount with dishonest intention and deceived AFPL in not paying the loan. On this issue, the head of Inorganic business of AFPL namely, Mr. Sabyasachi Rout lodged an FIR before the S.P., E.O.W., CID, C.B., Orissa, Bhubaneswar against the petitioner for deceitfully cheating AFPL by stating that prior to sanction of loan, SFPL had submitted one bank statement from 1st July, 2020 to 28th September, 2020 showing closing balance Rs. 17,51,33,609/-as on 25th September, 2020 by manipulating document instead of providing the actual correct balance of Rs. 15,28,829/-as on that day and thereby, such bank statement of SFPL was found to be fake and fabricated to avail the loan by producing forged documents deliberately. On receipt of the F.I.R., EOW, Bhubaneswar P.S. Case No. 17 dated 31.12.2021 was registered for offences U/Ss. 406/420/467/468/471/120-B of IPC and the matter was investigated into by DSP, Sasmita Sahoo and accordingly, the petitioner was arrested and forwarded to the Court and the investigation accordingly progressed. 3. Mr. G.Mishra, lear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... crores from DCB Bank and SIDBI, Diya Vikas Capital Private Limited. (iii) In securing the loan, the petitioner has forged document by showing inflated bank balance to the tune of Rs. 17,51,33,609/-as against the real balance of Rs. 15,28,829/-as on 25th September, 2020, which shows his dishonest intention to cheat by forging documents. (iv) Around 30 numbers of bank accounts had been created in the names of the staff of the company and the funds received were credited in such accounts to defraud different person which shows the prima facie intention of the petitioner to cheat different persons. (v) After registration of the case, the petitioner had absconded to evade police arrest and lookout circular was also issued to apprehend him and the petitioner was apprehended near Orissa-Chhatisgarh border while he was trying to flew away to Visakhapatnam. (vi) There is reasonable apprehension against the petitioner to influence the witnesses. (vii) Petitioner has travelled history of 11 countries and thereby, there is a reasonable apprehension of flight risk of the petitioner. (viii) The involvement of the petitioner in five other cases for similar offences of cheating and defrauding the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of agreements and, thereby, a mere breach of agreement or contract, which ipso facto does not constitute any offence of criminal breach of trust or cheating. In support of his contention, learned Senior Counsel has also relied upon Satischandra Ratanlal Shah(supra) wherein the Apex Court after taking note of the breach of dispute arising out of a loan transaction between the parties have quashed the FIR, but the Apex Court in that case in Paragraph-13 has held that mere inability of the appellant to return the loan amount cannot give rise to a criminal prosecution for cheating, unless fraudulent or dishonest intention is shown right at the beginning of the transaction, as it is this mens rea which is the crux of the offence. In this case, it is alleged in the FIR that SFPL has manipulated the bank statement at the behest of the petitioner by inflating the bank balance to the tune of Rs. 17,51,33,609/-as against the actual balance of Rs. 15,28,829/-as on 25th September, 2020 to avail the loan, as ascertained by the I.O. from the statement of one employee of SFPL namely, Sandip Mohanty and thereby, there is prima facie allegation appearing against the petitioner for cheating, of cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re to be taken into consideration while considering an application for bail:- (i) the nature of accusation and the severity of the punishment in the case of conviction and the nature of materials relied upon by the prosecution; (ii) reasonable apprehension of tampering with the witnesses or apprehension of threat to the complainant or the witnesses; (iii) reasonable possibility of securing the presence of the accused at the time of trial or the likelihood of his abscondence; (iv) character behaviour and standing of the accused and the circumstances which are peculiar to the accused; (v) larger interest of the public or the State and similar other considerations (vide Prahlad Singh Bhati v. State (NCT of Delhi). 22.There is no hard and fast rule regarding grant or refusal to grant bail. Each case has to be considered on the facts and circumstances of each case and on its own merits. The discretion of the court has to be exercised judiciously and not in an arbitrary manner. 9. What are the factors to be borne in mind while considering an application for bail has also been discussed in Prasanta Kumar Sarkar V. Ashis Chatterjee and another; (2010) 14 SCC 496 wherein the Apex Court afte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the fact that personal liberty of an individual cannot be taken away, except in accordance with the procedure established by law inasmuch as personal liberty is a constitutional guarantee, but criminal laws of this country authorises the law enforcement agency to take a person accused of non-bailable offences to custody during the pendency of investigation and trial, unless such person is enlarged on bail in accordance with law and such detention cannot be considered as a violative of Article 21 of Constitution of India. It is no doubt true, a person accused of non-bailable offences may also be entitled for bail if such person otherwise make out a case for grant of bail, even when there exists a prima facie case against such person, provided there is a need to release such person on bail where facts demand so. Personal liberty of a person is precious, but it is not absolute in every situation. In this context, it is considered apt to refer to the decision of Apex Court in Ash Mohammad Vrs. Shiv Raj Singh @ Lalla Babu and another; (2012) 9 SCC 446 wherein it has been held at Paragraph-17 as under:- 17. We are absolutely conscious that liberty of a person should not be lightly dea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndition that such person shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected. It is, therefore, clear that while considering the bail application of an accused for commission of offence as indicated, one of the dominant consideration is to prevent repetition of the offence, but the petitioner in this case has undisputedly found implicated for similar offences in five cases in three different States and, thereby, prima facie the same appears against the petitioner to prevent repetition of the offence. 13. The petitioner also heavily relies upon the decision in the case of Satendra Kumar Antil(supra) wherein the Apex Court in Paragraphs-1 and 12 has been pleased to hold as under:- The trial Courts and the High Courts will keep in mind the aforesaid guidelines while considering bail applications. The caveat which has been put by learned ASG is that where the accused have not cooperated in the investigation nor appeared before the Investigating Officers, nor answered summons when the Court feels that judicial custody of the accused is necessary for the completion of the trial, where further investigation in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (supra), the Apex Court at Paragraphs-34 and 45 has held as under:- 34.Economic offences constitute a class apart and need to be visited with a different approach in the matter of bail. The economic offence having deep rooted conspiracies and involving huge loss of public funds needs to be viewed seriously and considered as grave offences affecting the economy of the country as a whole and thereby posing serious threat to the financial health of the country. 35. While granting bail, the court has to keep in mind the nature of accusations, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public/State and other similar considerations. 17. In Nimmagadda Prasad (supra), the Apex court at Paragraph-24 has held as under:- 24. While granting bail, the court has to keep in mind the nature of accusations, the nature of evidence in support thereof, the severity of the punishment which conviction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of economic offence and the conduct of the petitioner poses a flight risk. This Court is conscious of the principle laid down by Apex Court in Arnab Manoranjan Goswami(supra), but the allegation on record against the petitioner not only discloses a prima facie allegation against the petitioner for commission of fraud and cheating by forging documents, but also the enormity of amount of embezzlement involved in this case to the tune of Rs. 109 crores add to the worries of investors and depositors of the company which assumes further significance when investigation is kept open U/S. 173(8) of Cr.P.C. Besides, the offence alleged against the petitioner are U/Ss. 406/420/467/468/471/120-B of the IPC, out of which offence U/S. 467 is punishable with up to life imprisonment and the alleged manner in which the funds received by the petitioner were credited in a number of accounts created in the names of staff of the company of the petitioner to defraud different persons which prima facie speaks against the intention of the petitioner to cheat different persons. 20. In view of the discussions made hereinabove and taking into consideration the enormity of allegations levelled against th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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