TaxTMI 
TaxTMI 
2023 (2) TMI 1337
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.... Limited (hereinafter referred to as, "AFPL") for financial support to carryout financial activities effectively by giving loans to different individual entities and Joint Liabilities Groups and agreeing with the proposal, AFPL, accordingly, sanctioned two term loans amounting to Rs. 3crores and Rs. 2crores, total Rs. 5crores @ interest 15.50% per annum with condition of repayment in 12 equal monthly installments starting from two months after disbursement of the amount in favour of SFPL on execution of two agreements by SFPL(borrower) and AFPL(lender) on 28thSeptember, 2020 at Bhubaneswar and accordingly, Rs. 5 crores was credited to the account of SFPL, but subsequently AFPL coming to know about the fiscal fraud committed by SFPL, approached the petitioner to repay the loan, to which the petitioner only repaid Rs. 50 lakhs with assurance to pay back the balance loan amount and thereafter, the petitioner did not repay the rest of the amount even after one year. It is also 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....
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....e of Maharashtra & Others; (2021) 2 SCC 427 (iv)Satendra Kumar Antil Vrs. Central Bureau of Investigation; (2021) 10 SCC 773 and (v)Mitesh Kumar J.Sha Vrs. the State of Karnataka & others; AIR 2021 SC 5298. 4. Mr. S.S.Pradhan, learned AGA in reply by placing the facts of the case has submitted the followings:- (i) Initially on being approached, AFPL had sanctioned two term loans to SFPL for an amount of Rs. 5 crores @ interest 15.50% per annum with a condition for repayment in 12 equal monthly instalments on execution of two agreements, but the petitioner being the MD of SFPL intending to embezzle the entire loan amount with dishonest intention had deceived AFPL by not repaying its loan by diverting the amount to other sister entities of SFPL namely, Diya Dairy and Agro Processing Unit (DDAPL), Kshamata Foundation, Krushi Shakti, Diya Cattle Feeds and Deepak Kindo Enterprises. (ii) In the course of investigation, it was ascertained that the petitioner has misappropriated an amount of Rs. 109 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,....
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....hers on the allegation of cheating by using forged documents, records and also committing criminal breach of trust by entering into conspiracy and after such FIR being registered by EOW, Orissa in FIR No. 17 dated 31.12.2021, the investigation commenced in the course of which the investigating agency found the petitioner as CEO & MD of "SFPL" and others for misappropriating Rs. 109 crores by cheating the lenders and investors and misutilizing their funds by committing forgery. It is also alleged in the FIR that SFPL availed two term loan of Rs. 5 crores by producing fake bank statement of accounts of the company showing inflated bank balance of Rs. 17,51,33,609/-as against actual balance Rs. 15,28,829/-at the instance of the petitioner. It is, however, argued by learned Senior Counsel that the FIR allegation disclose inter corporate dispute between two companies for an amount of Rs. 4.5 crores as the petitioner has already paid an amount of Rs. 50 lakhs as against term loan of Rs. 5 crores which was obtained on execution 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 su....
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.... is no bar created in the relevant enactment passed by the legislature nor does the bail jurisprudence provides for it. This Court is definitely alived with the principles laid down by the Apex Court in P.Chidambaran(supra) wherein the Apex Court at Paragraph-16 has held as under:- "Though we have heard the matter elaborately and also have narrated the contention of both sides in great detail including those which were urged on the merits of the matter we are conscious of the fact that in the instant appeal the consideration is limited to the aspect of regular bail sought by the appellant under Section 439 of Cr.PC. While stating so, in order to put the matter in perspective it would be appropriate to take note of the observation made by us in the case of this very P.Chidambaran vs. CBI, in Criminal Appeal No. 1603/2019 which reads as hereunder; "21.The jurisdiction to grant bail has to be exercised on the basis of the well-settled principles having regard to the facts and circumstances of each case. The following factors are 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 o....
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....rest of the public or the State as some of the factors amongst others while considering the bail to the applicant. 10. In Mahimananda(supra), the Apex Court in Paragraph-16 has held that at the time of considering an application for bail, the Court must take into account certain factors such as:- (i) existence of a prima facie case against the accused; (ii) the gravity of the allegations; (iii) position and status of the accused (iv) the likelihood of accused fleeing from justice and repeating the offence. (v) the possibility of tampering with witnesses and obstructing the Court (vi) criminal antecedent of the accused. In this case, it is not disputed by any of the parties about registration of five number of cases of similar nature against the petitioner in three different States as well as his apprehension in this case after issuance of lookout circular, in addition to the other allegations of committing financial defalcation and, thereby, these factors appear to be significantly adverse against the conduct of the petitioner. 11. This Court is also conscious of the fact that personal liberty of an individual cannot be taken away, except in accordance with the procedu....
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.... every member of the society lives peacefully in a society to achieve his individual as well as social interest. That is why Edmond Burke while discussing about liberty opined, "it is regulated freedom". 12. Chapter "V" of the Cr.P.C. provides for arrest of persons, but such provision does not command for routine arrest of persons even for commission of cognizable offence, however, if the police officer is satisfied that such arrest is necessary to prevent such person from committing any further offence which is one of the grounds as provided in Section 41(1)(b)(ii)(a) of the Cr.P.C., in such event, the police officer is authorised to arrest by recording the reasons in writing. Similarly, Section 437(3)(b) of the Cr.P.C. provides that when a person accused or suspected of the commission of an offence punishable with imprisonment which may extend to seven years or more or of an offence under Chapter VI, Chapter XVI or Chapter XVII of the IPC or abetment of, or conspiracy or attempt to commit any such offence, is released on bail under sub-section (1), the Court shall impose the condition that such person shall not commit an offence similar to the offence of which he is accused, or ....
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....se factors cumulatively weighed heavily against the petitioner to suggest for his non-cooperation with the investigation as well as reasonable apprehension for avoiding trial and there also appears from the record about keeping up investigation open U/S. 173(8) of Cr.P.C. 15. In Mohanlal Jitamalji(supra), the Apex Court in Paragraph-5 has held as follows:- "The entire Community is aggrieved if the economic offenders who ruin the economy of the State are not brought to books. A murder may be committed in the heat of moment upon passions being aroused. An economic offence is committed with cool calculation and deliberate design with an eye on personal profit regardless of the consequence to the Community. A disregard for the interest of the Community can be manifested only at the cost of forfeiting the trust and faith of the Community in the system to administer justice in an even handed manner without fear of criticism from the quarters which view white collar crimes with a permissive eye unmindful of the damage done to the National Economy and National Interest. 16. In Y.S.Jagan Mohan Reddy(supra), the Apex Court at Paragraphs-34 and 45 has held as under:- "34.Economic offenc....
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....rovisions of Section 436A, cannot be accepted as valid. Besides the provisions of Sections 415 and 420 read with Section 120-B and Section 8 of the PC Act, the petitioner is alleged to have committed offences under Section 467 IPC which is punishable with up to life imprisonment. In this backdrop, the provisions of Section 436A would not stand attracted in the present case." 19. It is of course true that at the stage of grant or refusal of bail, a detailed and meticulous examination of evidence and elaborate documentation of the merit of the case should not be undertaken, however, there is need to indicate sound reasoning for the order and any order devoid of any reasoning would suffer non-application of mind. It is imperative for the Court to evaluate the materials on record to checkout whether prima facie case is there against the accused applying for bail or not while granting or refusing bail and one of the dominant consideration in granting bail to prevent repetition of the crime or offence. A careful perusal of record in this case would go to disclose prima facie allegation against the petitioner for commission of economic offence and the conduct of the petitioner poses a fl....