DR. KALANDI CH. MOHANTY Vs. UNION OF INDIA

JUDGEMENT

(1.) All these applications under Section 438 Cr.P.C. have been filed by the petitioners seeking pre-arrest bail in connection CBI/SPE Bhubaneswar Case No. RC. 04(A)/2014-BBSR (RC0152014A0004) dated 27.3.2014 for commission of offences punishable under Sections 420, 120-B Indian Penal Code and Section 13(2) read with 13(1) (d) of Prevention and Corruption Act, 1988. All the bail applications are heard analogously and a common order is passed.

(2.) The prosecution case as per the FIR lodged by one Mr. M.K. Sinha, Superintendent of Police, CBI, Bhubaneswar is that on 17.10.2013 M/s. D.N. Homes (P) Ltd. applied to Odisha Gramya Bank, Bhubaneswar Branch, Unit-IV, Bhubaneswar for availing term loan of Rs. 20 crores for completion of the left over works in the project "Northern Heights" at Kalarahanga, Bhubaneswar. Though the Head Office of Odisha Gramya Bank sanctioned the loan but the Branch Manager of Odisha Gramya Bank, Bhubaneswar did not disburse the said loan as he came to known that the construction of the building is under dispute with Bhubaneswar Development Authority (BDA) and BDA had issued notice for demolition of the building as the company had not obtained approval from BDA for construction of the building. The Law Officer of the Odisha Gramya Bank also gave a negative opinion regarding sanction of loan on the ground of pendency of litigation and suggested for seeking legal opinion from some advocate dealing with civil matters which was not done rather the Head Office of the Odisha Gramya Bank obtained opinion from their Panel Advocate. As the loan amount was not disbursed by the Branch Manager, Odisha Gramya Bank, Bhubaneswar Branch, M/S. D.N. Homes (P) Ltd., approached another branch of Odisha Gramya Bank situated at Tankapani Road, Bhubaneswar for availing term loan of Rs. 20 crores for the same project. Mr. Manoranjan Mishra (petitioner in BLAPL No. 6617 of 2014) who was the Branch Manager of the said Branch with dishonest intention initiated the pre-sanction process such as spot visit of the properties even prior to the receipt of application of loan i.e., on 21.11.2013 and on 22.11.2013, he sent the proposal to the Head Office seeking sanction of the term loan in favour of M/s. D.N. Homes (P) Ltd., which was ultimately sanctioned by Dr. Kalandi Charan Mohanty (petitioner in BLAPL No. 6216 of 2014), Chairman, Odisha Gramya Bank and it was recommended by Pravat Kumar Das (petitioner in BLAPL No. 6613 of 2014), Manager (Advance) and Makar Ketan Patra (petitioner in BLAPL No. 6314 of 2014), General Manager and other unknown persons of Odisha Gramya Bank Head Office on 25.11.2013 by taking additional collateral securities. It is further stated in the FIR that though it was within the knowledge of the officers of Odisha Gramya Bank Head Office that earlier sanctioned loan by them was not disbursed by the Branch Manager, Unit-IV, Bhubaneswar but with ulterior motive the loan of Rs. 20 crores was recommended/sanctioned/disbursed to M/s. D.N. Homes (P) Ltd. It is further stated in the FIR that the value of the properties were evaluated at a much higher side in as much as the properties which were purchased on 29.9.2012 for an amount Rs. 13.74 lakhs have been evaluated at Rs. 14 crores i.e., more than 100 times on 20.11.2013 i.e. after 11 months from the date of purchase of the properties. It is further stated that the project was already completed while the loan application of M/s. D.N. Homes (P) Ltd., was under process at Odisha Gramya Bank for the construction of the said project. It is further stated that Manoranjan Mishra (petitioner in BLAPL No. 6617 of 2014), Branch Manager of Odisha Gramya Bank, Tankapani Road by abusing his official position with an ulterior motive disbursed the sanctioned loan of Rs. 20 crores within a short period without obtaining supporting documents from M/s. D.N. Homes (P) Ltd., and not a single pie of the disbursed loan amount was utilized for the purpose it was sanctioned. It is further stated that M/s. D.N. Homes (P) Ltd., had availed loan from different banks like HDFC, Indian Overseas Bank and Bank of Baroda, out of which the loan of Bank of Baroda was closed by taking the loan from Odisha Gramya Bank and the remaining loans were outstanding against M/s. D.N. Homes (P) Ltd.

(3.) BLAPL No. 6254 of 2014 and BLAPL No. 6371 of 2014 The learned counsel Mr. Manoj Kumar Mishra, Senior Advocate appearing for the petitioners in BLAPL No. 6254 of 2014 and BLAPL No. 6371 of 2014 submitted his written note of argument and contended that Jagdish Prasad Nayak (petitioner in BLAPL 6371 of 2014) is the Managing Director and Miss. Ratnamala Swain (petitioner in BLAPL No. 6254 of 2014) is the Director of M/s. D.N. Homes (P) Ltd., He further contended that M/s. D.N. Homes (P) Ltd. is a huge construction company and it has constructed hundreds of flats and houses in and around Bhubaneswar City to the satisfaction of the customers. He further contended that the company has taken loan of Rs. 7.5 crores from Bank of Baroda and is making regular repayment. Similarly for the project of "Northern Heights", the company has taken loan to the tune of Rs. 10 crores from the Indian Overseas Bank and since the entire project cost was more than Rs. 80 crores, the company approached Odisha Gramya Bank for a finance of Rs. 20 crores. He further contended that the company had availed a sum of Rs. 40 crores as loan from HDFC Ltd. for construction of another project called "D.N. Oxypark" and the said loan is also being repaid. He further contended that the company provided security which is valued at 104.08 crores as against loan of 20 crores only and additional collateral security of Rs. 18.95 crores was also furnished for the very same loan. He further contended that the Board of Directors of the Bank wherein many high ranking Government officials are members including representatives from NABARD, Central Government, State Government, Sponsored Bank i.e., Indian Overseas Bank, considering all the aspects and securing the bank's interest to the fullest extent sanctioned loan of Rs. 20 crores. The learned counsel for the petitioners Mr. Mishra further contended that the petitioner's company challenged the decision of the BDA for stoppage of construction on the allegation of unauthorized construction which has been confirmed in appeal in W.P.(C) 22357 of 2011 and this Hon'ble Court vide judgment and order dated 27.3.2012 allowed the writ application and quashed the direction of the BDA holding that BDA had no authority or jurisdiction to include villages of Kalarahanga Gram Panchayat to construct the building and the lands involved in the writ application are the very same land involved in the case. It is submitted by Mr. Mishra that though BDA challenged the judgment of this Court before the Hon'ble Supreme Court in SLP No. 26071 of 2012 but the Hon'ble Supreme Court vide order dated 1.10.2012 issued notice on the SLP and passed interim order by staying operation of the impugned order so far as further construction are concerned which was made absolute vide order dated 17.10.2013. The learned counsel for the petitioners Mr. Mishra, submitted that the purchase value of property which is mentioned in the sale deeds was Rs. 1,05,20,720 and the stamp duty and registration fee was around 8 lakhs spent on the sale deed. He further contended that the allegation in the F.I.R. that the properties were purchased for about Rs. 13.74 lakhs and the same have been evaluated at Rs. 14 crores is nothing but a misnomer and contrary to the records available with C.B.I as well as Banks. The learned counsel for the petitioners Mr. Mishra further contended that the fund was diverted for any other purpose. He further submitted that the loan was sanctioned expecting early disbursement and to complete the work within the scheduled time to avoid wrath of the purchasers and to maintain good will in the market. He further contended that 'Northern Heights' is a huge residential complex consisting of 256 flats in different blocks in four towers. He further submitted that after getting interim order, the petitioners cooperated with the investigation by the CBI and they have never misutilised their liberty. He further contended that in the meantime the entire loan amount of the Gramya Bank has been repaid and in support of such contention the account statement has been submitted by way of a memorandum. BLAPL No. 6216 of 2014 The learned counsel for the petitioner Dr. Kalandi Ch. Mohanty (petitioner in BLAPL No. 6216 of 2014) Mr. Sisir Kumar Purohit also submitted his written note of argument and contended that the petitioner was the Chairman of Odisha Gramya Bank who joined on 15.7.2013 and stayed for 8 months only and during his tenure the Bank's business growth increased from 900 crores to 1000 crores and profit crossed 100 crores which the bank had never achieved earlier. He further contended that the petitioner had taken strong disciplinary action against the corrupt indiscipline staff and stopped fraud and unethical banking practice for which the staff union was very much aggrieved and the case has been foisted against the petitioner. The learned counsel further submitted that the petitioner has done anything by himself he has influenced the loan assessment process. He contended that the loan was proposed and assessed by the Branch Manager and the proposal was considered by the Advances Deptt., Credit Approval Committee through GRID and after due deliberation, GRID approved the proposal for sanction of loan. The learned counsel further submitted that the allegation that adequate security was taken is correct. He contended that apart from the land and construction made on the land, the Bank considered and assessed the cost/value of the equitable mortgage of property, the value of the property to be Rs. 104 crores. He further contended that legal opinion in respect of the mortgage was duly obtained from the Bank's approved lawyer. The collateral security shows property's forced sale value was Rs. 415 lakhs. The learned counsel further submitted that Credit Approval committee allowed the sanction by accepting further collateral security with forced sale value of Rs. 14.80 crores. The learned counsel further submitted that the sale deeds would indicate that the consideration amount is Rs. 1,05,20,720/- and the allegation in the FIR that the purchase value of the properties were Rs. 13.74 lakhs is totally false. The learned counsel further submitted that no wrongful loss has been caused to the Bank in as much as that Bank was earning interest for more than Rs. 21 lakhs per month. He further contended that the petitioner has misutilised his liberty and he has abided by all the conditions of interim bail. BLAPL No. 6613 of 2014, BLAPL No. 6617 of 2014 and BLAPL No. 6314 of 2014 The learned counsel for petitioner Pravat Kumar Das (petitioner in BLAPL No. 6613 of 2014) who was the Manager (Advance), Odisha Gramya Bank, Head Office, Bhubaneswar, petitioner Manoranjan Mishra (petitioner in BLAPL No. 6617 of 2014) who was the Branch Manager, Odisha Gramya Bank, Tankapani Road Branch, Bhubaneswar and petitioner Maker Ketan Patra (petitioner in BLAPL No. 6314 of 2014) who was the General Manager of Odisha Gramaya Bank, Head Office, Bhubaneswar adopted the arguments advanced by Mr. Mishra as well as by Mr. Purohit. The learned counsel for the CBI Mr. V. Narasingh while objecting to the prayer for anticipatory bail on instruction submitted that on the strength of search warrant issued by the learned Special Judge, CBI, search was conducted in the official as well residential premises of the FIR named accused persons and various documents have been seized and scrutinized. The learned counsel further submitted the status report of the case which was under the signature of Mr. S. Bhanja, Inspector/CBI, Bhubaneswar indicating therein that competent witnesses have been examined and further investigation of the case is under progress. He further submitted that so far as the status of the loan account is concerned, it has been intimated by the bank that the borrowers have recently made full payment of the loan. He submitted in view of serious allegations against the petitioners which is borne out of records, anticipatory bail should be granted.