BIBHUTI BHUSAN ACHARYA Vs. STATE OF ODISHA

JUDGEMENT

(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.

(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.1,35,00,000.00(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.1,49,60,000.00 (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.20,000.00 (Rupees Twenty Thousand) to the account of BD Associates formed by the Petitioner and thereafter, again transferred Rs.9,00,000.00(Rupees Nine Lakhs) to the complainant through RTGS. Accordingly, a writ petition in WP(C) No. 38939 of 2021 was filed which was withdrawn without the knowledge of the complainant and the complainant further came to know that the Petitioner had filed another case before Debts Recovery Tribunal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 28/2/2022, the complainant paid Rs.70,00,000.00 (Rupees Seventy Lakhs) in cash, out of which the Petitioner deposited Rs.68,00,000.00(Rupees Sixty-Eight Lakhs) in his account and retained Rs.2,00,000.00 (Rupees Two Lakhs) and thereafter, on 4/3/2022, on the request of the complainant, his uncle Madhab Charan Das transferred a sum of Rs.70,00,000.00 (Rupees Seventy Lakhs) to the personal account of the Petitioner through RTGS and subsequently, the complainant had sent Rs.40,000.00 to the Petitioner towards his legal expenses on 10/12/2021. After receiving the total sum of Rs.1,49,60,000.00 (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 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 5/9/2022 issued cheque No. 014878 for an amount of Rs.1,40,00,000.00(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.9,60,000.00 (Rupees Nine Lakhs Sixty Thousand) on or before 3/12/2022, but the cheque on deposit got dishonored with endorsement "account closed". It is further alleged that on 4/12/2023, 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 Ss. 25/27 Arms Act and the Petitioner was arrested on 14/4/2024 for commission of such offences punishable 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.

(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 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.