GAGAN BIHARI MISHRA Vs. STATE OF ODISHA

JUDGEMENT

(1.) The petitioner Gagan Bihari Mishra has filed this application under section 439 of Code of Criminal Procedure seeking for bail in connection with E.O.W., Bhubaneswar P.S. Case No.03 of 2018 corresponding to C.T. Case No. 05 of 2018 pending on the file of Presiding Officer, Designated Court, O.P.I.D. Act, Cuttack for offences punishable under sections 420, 467, 468, 471, 406 and 120-B of the Indian Penal Code read with section 6 of the Odisha Protection of Interests of Depositors (in Financial Establishments) Act, 2011 (hereafter 'O.P.I.D. Act').

(2.) On 31.01.2018 one Priyabrata Parida of Pithapur, Buxi Bazar under Purighat police station in the district of Cuttack lodged the first information report before the Superintendent of Police, Economic Offences Wing, Odisha, Bhubaneswar stating therein that during October 2011, he came to know from the advertisement published in the local daily newspaper as well as from the brochures and leaflets circulated by the real estate company namely M/s. Shree Baladevjew Infrastructure (P) Limited, Cuttack (hereafter 'M/s. SBI (P) Ltd.') that one residential housing project in the name and style of 'Tulasi Gardens' located at Mouza Badkesharpur, Tangi in the district of Cuttack measuring Ac. 03.05 dec. has been floated by M/s. SBI (P) Ltd. for selling of flats to the customers. Being allured by the advertisement of M/s. SBI (P) Ltd., the informant visited its project site office and contacted Durga Prasanna Mishra, Director and during discussion, Shri Mishra and other officials of M/s. SBI (P) Ltd. assured the informant to handover a flat bearing no. C- 303 situated in the 3rd floor of the said residential housing project for a consideration amount of Rs.12,56,250/- within a period of thirty months. At that time, there was no construction at the project site except one office. The informant paid a total sum of Rs.4,90,000/- in three phases/instalments towards booking amount and he also received money receipt dated 12.11.2011 from M/s. SBI (P) Ltd. towards booking of a 2 BHK flat in his name. On 29.02.2012 M/s. SBI (P) Ltd. represented through its Director Shri Mishra executed an agreement with the informant wherein it was agreed to handover the flat to the informant within thirty months from the date of agreement. It is the further case of the informant as per the F.I.R. that he contacted Shri Mishra and other officials time and again to know about the progress of the work and asked them to handover the flat to him within the stipulated time as per agreement. M/s. SBI (P) Ltd. failed to commence as well as to complete the construction. When the informant requested Shri Mishra and the other officials to refund his money, they persuaded him to adjust his money by providing another flat in the said project but neither the informant nor other customers were provided with any flat despite the company taking advances from them as per agreements. Neither the construction work of the flat started nor any of the flats in the said project was handed over to any of the customers. The informant came to know that some of the flats in the project have been hypothecated to Dewan Housing Finance Corporation Ltd. (DHFL) during the year 2012. An amount of more than five crores was collected by M/s. SBI (P) Ltd. from more than 200 investors/customers with false assurance of providing flats in the said residential housing project and later the investors were cheated. Assurance was given to many investors in the name of providing plot/flat/duplex in the project as well as in other projects in and around Cuttack by executing agreements and issuing fake money receipts, giving false assurance of providing flats in cheap rates and later cheating them. It is further stated in the F.I.R. that Shri Mishra diverted the invested money for acquiring lands/flats and other movable/immovable properties in his name as well as in the name of his other family members.

(3.) On receipt of such F.I.R., the Superintendent of Police, E.O.W., Bhubaneswar registered the case against Shri Mishra as well as the company and directed Inspector Snehalata Mohanty of E.O.W. to take up investigation of the case. During course of investigation, it was ascertained that the petitioner is the father of accused Durga Prasanna Mishra. A project loan of rupees eight crores was sanctioned by DHFL on 17.05.2013 in favour of M/s. SBI (P) Ltd. as borrower and M/s. Tulsi Spices and Foods Ltd. (hereafter 'M/s. T.S.F. Ltd.') as co-borrower. As per the terms and conditions of the loan, the primary security of the loan amount was the entire project land of Ac.03.05 dec. owned by M/s. T.S.F. Ltd. and present and future constructions in the residential project 'Tulsi Gardens' and that after execution of loan documents, first disbursement of Rs.2.50 crores was to be made directly in favour of State Bank of Hyderabad towards payment of the outstanding loan amount against M/s. T.S.F. Ltd. The said sanctioned letter dated 17.05.2013 was signed by Durga Prasanna Mishra, Director of M/s. SBI (P) Ltd. as borrower and the petitioner who is the Director of M/s. T.S.F. Ltd. as co-borrower. During course of investigation, it was further ascertained that Mr. Ambika Prasad Mohanty, Auditor of M/s. SBI (P) Ltd. had audited the accounts of the company for the period of 2014-15 and submitted his report. As per his report, M/s. SBI (P) Ltd. received Rs.7.36 crores as loan from DHFL and Rs.5.22 crores as advance from the customers. Out of the said amount, the head of the company utilized an amount of Rs.3.01 crores in other companies of their groups. An amount of Rs.29,215,968/- was diverted to M/s. T.S.F. Ltd. and Rs.9,77,957/- to M/s. Tulasi Flour Mills, a proprietorship farm in which the petitioner was the Proprietor. As such, the aforesaid amount was diverted to the accounts of M/s. T.S.F. Ltd. and M/s. Tulasi Flour Mills, in which the petitioner was the Director and Proprietor respectively from the account of M/s. SBI (P) Ltd. which had collected deposits from public in the pretext of providing flats. Out of Rs.7.36 crores loan received from DHFL, an amount of Rs.2.5 crores was credited to the accounts of M/s. T.S.F. Ltd. for clearing the outstanding loan of State Bank of Hyderabad as the entire project land of 'Tulsi Gardens' was kept under mortgage with DHFL for obtaining loan. Out of the total amount of Rs.29,215,968/- shown to have been transferred to the account M/s. T.S.F. Ltd. from the account of M/s. SBI (P) Ltd., after deducting the aforesaid amount of Rs.2.5 crores which was utilised for clearing the outstanding loan of State Bank of Hyderabad, it comes to Rs.42,15,968/- which is nothing but the amount collected from intending purchasers of flats. Similarly, an amount of Rs.9,77,957/- which was transferred to the account of M/s. Tulasi Floor Mills from the account of M/s. SBI (P) Ltd. was also collected from the intending purchasers of flats. It also revealed from the statements of accounts standing in the name of M/s. T.S.F. Ltd. maintained in Axis Bank, Jagatpur Branch vide A/C no.911020064237878 and Central Bank of India, Pir Bazar Branch, Cuttack vide A/C no.1994618348 that as on 14.03.2015, the balance in Axis Bank account was Rs.00.00 and as on 30.09.2018, the balance in Central Bank of India account was Rs.2,036.96 paisa.