IMPORTANT POINT
Pre-arrest bail – Liberty as guaranteed under Article 21 of Constitution of India being one of cherished objects of our Constitutional ideals, cannot be curbed on mere suspicion.

JUDGMENT

Sashikanta Mishra, J.—Both these applications seeking pre-arrest bail arise out of the same case and involve identical facts for which both were heard together and are being disposed of by this common judgment.

2. The petitioners are apprehending their arrest in connection with EOW Bhubaneswar P.S. Case No. 19 of 2023 corresponding to C.T. Case No. 5 of 2023 pending in the Court of learned Special Judge, OPID Court, Cuttack for the alleged commission of offence under Sections 419/420/467/468/471/120-B of IPC read with Sections 66(C)/66(D) of IT Act and Section 6 of OPID Act, 2011.

3. The prosecution case is that one Sasmita Sahoo being the Inspector of Police, EOW CID-CB, Bhubaneswar lodged a written complaint before the Khordha EOW, Bhubaneswar on 13.06.2023 stating therein that in course of investigation into an allegation of online financial fraud in relation to a website called www.smsmvip.com, she found that several companies were involved in cheating and misappropriating public money by inducing customers to invest in their companies with assurance of higher returns. One Bijay Kumar Nath of Puri had submitted a written report on 25.04.2023 that being thus lured, he had invested some money in the aforementioned website and initially got some return but subsequently he suspected that some fraud had been committed. On further investigation, huge amounts of money were found to have been transacted by several companies through gaming apps on mobile phones. It was thus found that the creator of the website and developer of the application and the Directors, proprietors of the companies/firms named in the complaint, had committed serious financial fraud. The present petitioners have not been named in the FIR. Their apprehension of being arrested stems from the fact that in course of investigation, one S. Chitravel, an employee of Byrontec Solutions Pvt. Ltd. was arrested. He was a colleague of petitioner-Sanjeev Govindaswamy. Moreover, the bank accounts of Sanjeev Govindaswamy held in IDFC Bank and IDBI Bank were frozen. The other petitioner- Sathy Govindaswamy apprehends arrest as he was a Director of Byrontec Solutions Pvt. Ltd.

4. Heard Mr. S. Palit, learned Senior Counsel with Mr. S.S. Pattanaik, learned counsel for the petitioner-Sanjeev Govindaswamy; Mr. D. Panda, learned counsel for the petitioner-Sathy Govindaswamy and Mr. B. Bhuyan, learned counsel appearing for the State in OPID matters.

5. Learned Senior Counsel, Mr. S. Palit would argue that the offence under Section 6 of the OPID Act is not made out inasmuch as the ingredients necessary to constitute such offence are nonexistent. Mr. Palit has referred to Section 6 of the OPID Act to submit that unless money has been deposited either in lump sum or by installments with the financial establishment it would not partake the nature of ‘deposit’ as defined under Section 2(b) of the OPID Act. There is absolutely no evidence in the present case to show that either the initial complainant, Bijay Kumar Nath or any of the so called complainants had ever made any such deposit with any financial establishment much less with the petitioners. According to Mr. Palit therefore, the very basis of the case is misconceived and therefore, untenable. As regards the offences under the Indian Penal Code alleged against the petitioner, Mr. Palit would argue that even assuming the prosecution allegations to be correct on their face value, then also it is clearly borne out from the materials on record that investment by a person in a gaming app cannot be construed as deposit within the meaning of Section 2(b) of the OPID Act, since the participant is required to exercise skill while playing the game and winning is a precondition for getting returns. Mr. Palit has relied upon the judgment of this court in the case of Gajanan Property Dealer and Construction Pvt. Ltd. v. State of Orissa, 2018 SCC OnLine Ori 387 and the decision of the Madras High Court in D. Siluvai Venance v. State,