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2014 Supreme(Ori) 379
IN THE HIGH COURT OF ORISSA, CUTTACK
S.K. SAHOO, J.
Aradhana Bisoyi & others – Petitioners
Versus
State of Odisha - Opp. Party
BLAPL NOS. 9806 & 10025 OF 2014
Decided on: 21.11.2014
Advocate Appeared:
For Petitioners: M/s. J.K. Mishra, P.C. Behera
For Opp. party: Mr. Karunakar Nayak & Mr. Jyoti Prakash Patra Addl. Standing Counsels
Headnote:1. CRIMINAL PROCEDURE CODE, 1973 - Sec. 438 - Power exercisable under the Section is somewhat extraordinary in character and it is to be exercised only in exceptional cases where it appears that the person may be falsely implicated or where there are reasonable grounds for holding that a person accused of an offence is not likely to otherwise misuse his liberty - A balancing act has to be made between free, fair and full investigation of the case vis-a-vis harassment, humilitation and unjustified detention of an accused. (Para-9)
2. BANK - ’Bearer Cheque’ - A bearer cheque is one that does no have the word ’bearer’ on the cheque cancelled - The cheque some time can be made payable to ’cash’ or bearer or made payable to a specific name - Details stated.
The cheque is payable by the drawee bank over the counter to the bearer or presenter of the cheque. A bearer cheque can be negotiated or passed to another person by mere delivery. In other words, the holder (or the transferor), when giving it to another person need not endorse the cheque. No identification is needed when a bearer cheque is presented for encashment. However, in normal banking practice, where the amount of the cheque is substantial, the identity of the encasher is insisted on. A bearer cheque can be collected by the Bank for the credit of anyone’s account. In banking practice, the need for encasher’s signature on the back of the cheque is merely to evidence that the encasher has received the money from the bank. The cancellation of the word "bearer" automatically makes the cheque an "order cheque". Identification is insisted by the Bank while encashing the "order cheque" for the presenter.
3. PROCEEDINGS - Civil and Criminal - Both proceedings are separate, independent and one cannot abate or defeat the other. (Para-7)
Judgment
S.K. Sahoo, J.
Since both the bail applications arise out of one case and they were heard together, a common order is passed.
These two bail applications have been filed under section 438 Cr.P.C. seeking pre-arrest bail in connection with Purushottampur P.S. Case No. 59 of 2014 registered under sections 420/120-B I.P.C. which corresponds to G.R. Case No.58 of 2014 pending in the court of learned J.M.F.C., Purushottampur.
The petitioner No.1 Aradhana Bisoyi and petitioner No.2 Dillip Kumar Sahoo in BLAPL No.9806 of 2014 are the Director and Managing Director of M/s. Rushikulya Ayurvedic Cluster Private Limited (hereafter in short “the Company) respectively. The petitioner No.1 Smt. Anita Nayak in BLAPL No.10025 of 2014 is another Director of the Company and petitioner No.2 Dhabaleswar Nayak in BLAPL No.10025 of 2014 is the husband of petitioner No.1.
2. On 13.4.2014 an F.I.R. was presented by one Sunil Kumar Basantia, son of late Sambaru Basantia of village-Sunathara, P.S.-Purushottampur, Dist-Ganjam before Inspector-in-Charge, Purushottampur Police Station alleging therein that the petitioners are the Managing Director and Directors of the company. In the year 2009 there was an agreement between petitioners Smt. Anita Nayak and Aradhana Bisoyi with the informant regarding purchase of his four acres of land of the informant situated in Mouza Nimapalli by the company. The land was registered on 24.12.2009 at a consideration amount of Rs.45 lakhs as per the direction of petitioners Dillip Kumar Sahoo and Dhabaleswar Nayak but only Rs.2 lakhs was given to the informant. As the informant was ill, he executed a Power of Attorney in favour of his son Santosh Kumar Basantia to execute the sale deed on his behalf. It is stated that the petitioners conspired between themselves and allured the son of the informant and executed the sale deed. The petitioners assured the informant to pay the balance amount after receipt of the financial aid from the Government of India. In this process though three years passed but the petitioners did not take any steps to pay the balance consideration amount and ultimately told the informant that since he had already executed the registered sale deed, he would not get any more money. The informant was also threatened with the help of the anti-socials not to ask for any money. The informant subsequently enquired into the matter and came to know that the petitioners have received the amount from the Government of India and by depositing six numbers of bearer cheques in the Bank of Baroda, Old Bus Stand, Berhampur for an amount of Rs.19.72 lakhs and by forging the signatures of the informant, they have misappropriated the amount. The informant came to know about the misappropriation on 14.11.2013 through RTI Act. Accordingly, he lodged the FIR to recover the balance of the consideration amount of Rs.43 lakhs from the petitioners who have cheated him and misappropriated his entitlement money from the Bank by forging his signatures.
3. The learned counsel for the petitioners Mr. J.K. Mishra, Senior Advocate submitted that the company was registered under Companies Act, 1956 having its registered office at Ajodhya Nagar, 2nd Line, Berhampur in the district of Ganjam and the company was constituted in the year 2009. He further submitted that the Company was included under Central Sector Scheme for development of common facilities for AYUSH Industries Clusters notified by the Government of India through its Ministry of Health and Family Welfare and one of the principal components of the Central Sector Scheme is the nonrecurring grant-in-aid in favour of the Company against the approved components of the projects viz., land development cost, physical infrastructure, common facility centers including plant and machinery etc. subject to the terms and conditions imposed upon as per guidelines of the Central Sector Scheme for the development of common facilities for AYUSH Industry Cluster approved by Government of
