Reddy Vrs. Cbi; (2013) 7 Scc 439' In ... vs Amarmani Tripathi; (2005) 8 Scc 21 on 3 February, 2021
Orissa High Court
Reddy Vrs. Cbi; (2013) 7 Scc 439′ In … vs Amarmani Tripathi; (2005) 8 Scc 21 on 3 February, 2021 BLAPL No.134 OF 2021
04. 03.02.2021 The matter is taken up through video conferencing mode.
The Petitioner being in c ustody in connection with a F . I . R . No . RC – 10A / 2020 – BBS (RC05520220A0010), CBI/SPE, SCB, Bhubaneswar giving rise to RC Case No.10A/2020 in the Court of learned Special Judge, CBI Court No.1, Bhubaneswar registered under section 7A, 8 and 9 of the Prevention of Corruption Act, 1988, (in short, ‘the P.C. Act’) and section 120-B of the IPC has filed this application under section 439 of the Code of Criminal Procedure (Cr.P.C.) for his release on bail.
- The Petitioner has been arrested in the case on 29th December, 2020. He had moved the learned Special Judge, Vigilance, Bhubaneswar in seisin of the case for his release on bail and that having been rejected on 6th January,2021; he has now moved this Court.
- Mr. Tapesh Roy, learned counsel for the Petitioner submitted that for no such justifiable reason, this Petitioner has been arraigned in the case.
Placing the F.I.R., he submitted that the Management of the M/s. Centurian University is looked after by the appointed Chief Executive Officer (CEO) and he handles the administration and one Himansu Sekhar Kabi was working as the Chief Financial Officer, (CFO) entirely looking after the {{ 2 }} financial aspects and under the above system in place, in the absence of any such document in support, the allegations that pursuant to the demand of the GST Officials, the Management of the Centurian Institute of Technology (CIT), Jatni or the Trustee/s directed the Chief Financial Officer (CFO) and GST Consultant to resolve the issue of the CIT with the Officials of the GST is per se not acceptable when those Officers attached to the Department of CIT themselves have all the authority to do the needful. In this connection, he has referred to a letter filed with the note of submission which has been given to the Petitioner in assigning him the position in Gram Tarang Employability Training Services Private Ltd. (GTET) indicating the jobs that he is to perform. It was submitted that said GTET is a social entrepreneurial outreach of the University and said establishment runs separately having independent administration. He further submitted that the documents so far available are to the effect of conducting audit by the GST personnel on in the 4th week of September, 2020 and that having not been finally completed nor any demand being made upon the CIT by the GST Department, now the prosecution allegations are not deriving that much of strength from the materials as to blatant violation of GST laws and the likelihood of giving rise to a very high demand on that score from the CIT. He submitted that the prosecution case is that accused A.B. Kar, Superintendent GST had demanded {{ 3 }} bribe of a sum of Rs.10.00 lakh from the Chief Financial Officer and the GST Consultant of M/s. Centurian Institute of Technology, Jatni to settle the GST issues at a lesser amount without pointing those violations leading to raising of demand of much higher amount. In this context, it was submitted that accused A.B.Kar is said to have demanded Rs.10.00 lakh from the CFO and the GST Consultant, but they have not been named in the F.I.R. to be there in picture thereafter and therefore in such situation, the allegation of offering the bribe
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Reddy Vrs. Cbi; (2013) 7 Scc 439′ In … vs Amarmani Tripathi; (2005) 8 Scc 21 on 3 February, 2021
pursuant to that needs consideration keeping in view the surrounding circumstances; important of which is that no demand had then been made and therefore, any such direction coming from the Trustees namely Prof. Mukti Kanta Mishra or Prof. D.N. Rao in that regard is not even inferable. He thus submitted that except the fact that the Petitioner was a Senior Finance Manager solely looking after the financial affairs of Gram Tarang Employability Training Services Pvt. Ltd (GTET), a social entrepreneurial outreach of the University, no material is forthcoming on the score that he had any knowledge as to that GST audit affair nor had gone to that restaurant in that reputed hotel situated in the posh locality of the city in order to bribe the GST Officials. According to him, none of the offences for which the case has been registered, prima facie stands against this Petitioner. It was submitted that simply for his presence at the restaurant sitting in a sofa with {{ 4 }} two others and in the absence of anything to show that he had the knowledge about such bribing affair, also having not been so directed by the Trustees concerning in support of which no such material has come to surface, he ought not to have been arraigned in the case, moreso, when even as per the prosecution case the bag containing the cash was not in his possession when raid was made. He submitted that just in order to implicate this Petitioner, it is alleged that he being asked he pointed out that the bag held by him being given to accused A.B. Kar was lying with him. He submitted that the facts as to phone call being made by the Petitioner to the Trustee who had been apprised of all these are all fabricated and said activity is clearly seen to be at the instance of the CBI officials under grave threat and coercion. It was submitted that the CBI officials have made raids in the Office of the Institute as also in the house of the present Petitioner and as yet no such document is being shown indicating the involvement of this Petitioner in offering the bribe in the matter or to have received the direction, save and except the development said to have taken place at the spot. He also submitted that the allegation made by the prosecution that this Petitioner had gone to the place i.e. restaurant open for general public having carried money as directed by the Trustees, is cooked up somehow to rope in the Petitioner and others. It was submitted that one of the Trustees Prof. M.K.
{{ 5 }} Mishra is away from the Country since October, 2020 for his professional engagement at Sydney (Australia) and he had not been able to return to the Country since then and for that, it cannot be said for a moment that he had any knowledge in these day to day matters especially, as to GST matters when robust system is in place with able and responsible personnels to handle all the affairs being posted for that and that apart when the Petitioner had left the Country after about a month of receipt of notice even having no knowledge of that and then the response to the notice was a challenge to the GST audit. He further submitted that pursuant to the notice for conducting Audit by the GST Officials; the Trust in the reply having sought for time had clearly stated that they challenge the audit and filing of return under GST and under the circumstance, to say that there was an attempt to settle the issue by accepting any demand is not prima facie acceptable that too with the knowledge of the Trustees or as per their instruction and then as to the alleged part of this Petitioner. He submitted that as against said Himansu Sekhar Kabi (CFO) for defalcation of huge amount of the University, an F.I.R. has been lodged at Jatni Police Station on 08.01.2021 and the investigation is going on. The Police has also seized incriminating materials in connection with the same; whereafter another supplementary F.I.R. has been given by the University and it has been detected that he has siphoned {{ 6 }} huge funds of the University to different fictitious accounts and those accounts have now been freezed by Police in that criminal case initiated by the University. It was submitted that the dubious role of that CFO in this matter just to divert the attention and focus
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Reddy Vrs. Cbi; (2013) 7 Scc 439′ In … vs Amarmani Tripathi; (2005) 8 Scc 21 on 3 February, 2021
from his misdeeds of defalcation is quite apparent. He submitted that in the above case, neither this Petitioner nor the Trustees had to play any role nor they played and somehow for the presence of the Petitioner at the spot through some purposeful and misleading informations alleging that he was so instructed by the Trustee; the case has been foisted to defame the Institute and this Petitioner has been a victim of all these plots. He submitted that it is completely false to say that the said Trustee, Prof. Mishra is absconding, when admittedly he is out of the Country althrough the period i.e. since October, 2020 and he in fact expressing his inability to come immediately, upon receipt of the notice, has made a request to the Investigating Officer for discussion with him through video conferencing. It was further submitted that the Petitioner has already remained in custody for more than one month and he being the permanent resident of the State, there remains no scope on his part to flee from justice; as also keeping in view the time elapsed and after the CBI raids in all said selected places, the apprehension as to tampering of evidence by this Petitioner is not there. With all these above and further placing the {{ 7 }} quantum of sentence prescribed for the offences under section-7A, 8 and 9 of the P.C. Act; he urged for grant of bail to the Petitioner.
Mr. Sarthak Nayak, learned Special Public Prosecutor, CBI, submitted that this Petitioner was very much present at the spot wherefrom cash of Rs.10.00 lakh kept in the bag has been seized and his very presence with the other accused A.B. Kar and P. Acharya, the GST officials in-charge of the GST Audit of the Institute is enough at this moment to say that a prima facie case against him for the offences for which the case has been registered stands. He submitted that when based on prior information sudden raid was made by the CBI Officials, the Petitioner being an employee of the University under the instructions from the Trustees in order to settle the GST issues, was there as the bribe giver to the GST officials. He submitted that at the spot, the conversation of this Petitioner with one Trustee over telephone makes the picture clear. He also submitted that the investigation is in progress and other materials are likely to be unearthed and it may come to light that it was a case of attempt of evasion of huge sum of GST by the Institution. He submitted that as per the source information, accused A.B. Kar, Superintendent, the leader of the team had given an information to the concerned accounts section of the Institute about the violation with respect to GST {{ 8 }} and during audit verification, he had pointed out all those for which there was a move from the Institute for resolution of the issues, so that huge demand towards GST and penalty would be avoided for which the bribe of Rs.10.00 lakh was demanded and this Petitioner was present at the spot as the giver of the said bribe under the instruction of the Authorities. He further contended that at this initial stage of investigation, since this case is different from the regular trap cases and there stands all the possibility of tampering the evidence, grant of bail to the Petitioner would not be proper.
He placed the decisions of the Apex Court in case of ‘B. Noha Vrs. State of Kerala & Others;(2006) 12 SCC 227; the State Rep. by Inspector Vrs. A. Parthiban in Appeal (Crl.) No.842 of 2003 decided on 09.10.2006 and Y.S. Jagan Mohan Reddy Vrs. CBI; (2013) 7 SCC 439’ in support of his contentions in opposing the move.
4. Both sides have also filed written notes of their submissions as well as the documents which have been taken on record. I have perused the F.I.R. and other materials placed on record as well as the given notes.
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Reddy Vrs. Cbi; (2013) 7 Scc 439′ In … vs Amarmani Tripathi; (2005) 8 Scc 21 on 3 February, 2021
5. Law is well settled that at the stage of consideration of the matter relating to grant of bail, elaborate examination of evidence and detailed reasons touched upon the merits of the {{ 9 }} case, which can prejudice the accused, should be avoided. The court at that stage is only called upon to give its reasons in exercise of discretion in granting or not exercising the discretion in refusing to grant bail as different from discussing the merits or demerits of the case. The detail examination of evidence, elaborate documentation of the merits of the case should be avoided.
In case of Niranjan Singh and Anr vs Prabhakar Rajaram Kharote & Ors: (1980)2 SCC 559, it was held that:-
“3……..Detailed examination of the evidence and elaborate documentation of the
merits should be avoided while passing orders on bail applications. No party should
have the impression that his case has been prejudiced. To be satisfied about a prima
facie case is needed but it is not the same as an exhaustive exploration of the merits
in the order itself.”
6. At this stage, it be also stated as regards the jurisdiction to the grant of bail. The Hon’ble Apex Court in case of Prahlad Singh Bhati Vrs. NCT, Delhi & Another; (2001) 4 SCC 280 has held that:-
“The nature and seriousness of the offence, the character of the evidence
circumstances which are peculiar to the accused persons and reasonable possibility of
the presence of the accused not being secured at the trial, reasonable apprehension of witnesses being tampered with a larger interest of the public or State or other similar factors which {{ 10 }} are relevant in the facts and circumstances of the case, are to weigh in the mind of the Court in the matter of grant of bail”.
7. In case of Kalyan Chandra Sarkar, in State of U.P. through CBI V. Amarmani Tripathi; (2005) 8 SCC 21, the Hon’ble Court observed that:-
“18. It is well settled that the matters to be considered in an application for bail are (i)
whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the charge; (iii) severity of the punishment in the event of conviction; (iv) danger of accused absconding or fleeing if released on bail; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being tampered with; and (viii) danger, of course, of justice being thwarted by grant of bail (see Prahlad Singh Bhati vs. NCT, Delhi 2001 (4) SCC 280 and Gurcharan Singh vs. State (Delhi Administration) AIR 1978 SC 179). While a vague allegation that accused may tamper with the evidence or witnesses may not be a ground to refuse bail, if the accused is of such character that his mere presence at large would intimidate the witnesses or if there is material to show that he will use his
liberty to subvert justice or tamper with the evidence, then bail will be refused……..”.
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Reddy Vrs. Cbi; (2013) 7 Scc 439′ In … vs Amarmani Tripathi; (2005) 8 Scc 21 on 3 February, 2021
- The first two decision cited by the learned Special Counsel CBI concern with the cases where conviction and sentence were under challenge. In case of Y.S. Jagan Mohan Reddy (supra),the Hon’ble Apex Court looking to the facts {{ 11 }} and circumstances of the said case relating to conspiracy distinctly involving seven entities as also huge magnitude of the case, then with the recording of statements of one hundred and forty (140) witnesses as also collection of three hundred and fifty two (352) document having all the possibility of steep rise; at that stage of investigation of the said case had declined to accept the prayer of the appellant for grant of bail.
- In the light of the above settled principles of law, keeping in view the submissions made, the case needs consideration.
The prosecution case is that the Petitioner is the Senior Manager of Accounts in Centurian Group of Institutions when the case of the Petitioner is that he was exclusively looking after of GTET, the social entrepreneurial outreach of the University having its office at different place with separate administration and financial management. As per the F.I.R., CBI officials had received the information from the reliable source that the M/s. Centurian Institute of Technology had received notice from the Commissioner, Audit, GST and Central Excise for conducting audit for the financial year, 2017-18 and during audit inspection, accused A.B. Kar, Superintendent, GST with his team had informed the Accounts Section of the said Institute about the blatant violations with respect to GST in their accounts. So, it is the {{ 12 }} case of the prosecution that in order to resolve the issue and avoid the payment of huge amount of GST & penalty, there was a demand of bribe of Rs.10.00 lakh from the leader of the team comprising of GST Officials entrusted with the audit work and all the members of the team had their approval and share. The Petitioner is not the Chief Financial Officer as to have been first informed about all those. It is stated that said Chief Financial Officer and GST consultant being told had then made the endeavour to settle the issue by informing this Petitioner. The information received from the source as finds mention in the F.I.R. is to the effect that said Chief Financial Officer and GST Consultant had then informed the Trustees about all these through this Petitioner which however derives no such support from any independent document save and except the so called later conversation over phone at the spot after the raid at the restaurant which had been initiated through the CBI Officials and the Petitioner is said to have been instructed by the Trustee to do the needful. Those are challenged as under threat and coercion and with a bid to see that somehow the case as laid stands and thus would stand for answer in the trial upon appreciation of evidence in the touchstone of the settled law holding the field. In support of any such instruction to have been given by the Trustees to this Petitioner on any earlier occasion as to the financial affair of the said Institute nor as to his indulgence in those matters {{ 13 }} is forthcoming. The recovery of the cash of Rs.10.00 lakh kept in a bag has been made from a restaurant. It is said that the Petitioner being asked informed the CBI Officials that he had given the bag to accused A.B. Kar; when the Trap Memorandum dated 29th December, 2020 reveals that it was lying with accused A.B. Kar. As noted in that Trap Memorandum, the Audit observation issued to M/s. Centurian School of Rural Enterprise Management Trust were there in that bag and the bill of the restaurant towards payment of lunch taken was with accused A.B. Kar with the office copies of those audit objection Memorandums having the Petitioner’s signature. The telephone call to the Trustee said to have been made by this Petitioner is under the direction of CBI Officials.
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Reddy Vrs. Cbi; (2013) 7 Scc 439′ In … vs Amarmani Tripathi; (2005) 8 Scc 21 on 3 February, 2021
10. On the other hand, the Trust has come up with an allegation as to defalcation against that very Chief Financial Officer that he had siphoned huge sum of money of the University to different accounts which are said to have been freezed in course of investigation of that case and he is not in this arena. The projected case of the prosecution is that the members of the audit team connived among themselves, demanded the bribe and accepted the same from this Petitioner who is also said to be having the connivance in the matter being the bribe giver.
{{ 14 }}
- In the facts and circumstances as indicated above and materials on record as touched upon for the purpose, the Petitioner has already remained in custody for more than a month. The offence under section 7A of the P.C. Act is punishable with imprisonment for a term not less than 3 years which may extend to seven years and fine whereas for the offence under section 8 of the Act, prescribes the punishment of imprisonment upto seven years or with fine or both and that under section 9 of the Act concerns as to commission by a commercial organization liable to be punished with fine. The CBI has conducted raids in different places including the house of this Petitioner in connection with the case and after lapse of one month, for the Petitioner with his assigned job to make any attempt to tamper the evidence appears to be too remote a possibility when by now the statements of all those witnesses to the Trap laid as also raids have already been recorded. The Petitioner being a permanent resident of the State and presently, in service in the City, scope of his fleeing from justice does not so surface.
- Considering all the above factors and the facts and circumstances of the case, I am of the view that the Petitioner be released on bail.
The Petitioner is ordered to be released on bail subject to the condition of his executing bail bonds for a sum of {{ 15 }} Rs.1,00,000/- (Rupees one lakh) with two sureties of the like sum to the satisfaction of the learned Court in seisin of the case, with further conditions that he shall cooperate with the investigation as and when so required; shall not directly or indirectly attempt to influence the prosecution witnesses; and shall not leave the Country without the leave of the Court in seisin of the case.
The BLAPL is accordingly disposed of.
13. As the restrictions due to the COVID-19 situation are continuing, learned counsel for the parties may utilize a soft copy of this order available in the High Court’s website or print out thereof at par with certified copy in the manner prescribed, vide Court’s Notice No.4587, dated 25th March, 2020.
…………………
D. Dash, J.
Narayan
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