Cheating and Fraudulent Representation.

IN THE HIGH COURT OF ORISSA, CUTTACK
BLAPL NO. 7367 of 2015

Surendranath Mishra
V
State of Odisha

P R E S E N T:-
MR. JUSTICE S.K. SAHOO
Date of order: 25.05.2016

Citation: 2017 CRLJ30

“ Guru Govind Dono Khade Kaa Ke Laagu Paaye Balihari Guru Aapne Govind Diyo Milaye” – Sant Kabir

This verse is penned down to glorify the significance of spiritual Guru. Sant Kabir asks, “If both, Guru and Govind (Lord Krishna) were to appear at the door, whose feet shall I worship first?” He answers, “It has to be the Guru’s feet first, because without him, how would I have known Govind?” I sacrifice my life to my Guru as it was he who has shown me Govind.

Spiritual Guru teaches the followers to experience the peak of happiness and to overcome their problems in day-today life in an intelligent manner. Hindu Sanatan Dharma portrays Guru as creator of spiritual knowledge for which he is called the ‘Brahma’; he rears the disciples like his own children, develops different skills in them such as perseverance, dedication and compassion etc., bestows spiritual experiences and restores serenity of mind for which he is called ‘Bishnu’ and he dispels the darkness of spiritual ignorance in life and enlightens the disciples for which he is called ‘Maheswar’ and it is believed that a glance of Guru is the manifestation of ‘Parabrahman’. 3 The relationship between a spiritual Guru and disciple is based on unconditional divine love and wisdom. A spiritual Guru is a living embodiment of truth who assists the disciple to attain salvation of life. His love is unselfish and above the material desires and satisfactions. A true devotee surrenders before his Guru completely and practises his teachings in a very faithful and obedient manner and does not hesitate in complying with any order of his Master without slightest hitch in the blink of an eye. A fake Guru creates a belief in the disciple that he has supernatural power and therefore plays upon the religious sentiments and misleads the disciple. Sometimes the blind faith of the disciple on the Guru gets disturbed when he does not get the desired result even after following all the advices of Guru. A shrewd Guru then changes his stand and tries to regain the confidence of the disciple by advising him to do something else and in this process the disciple is destroyed forever. The facts of the case is a glaring example of how a so-called spiritual Guru created a pseudo belief in the disciple to cure his mentally retracted son and thereby obtained valuable lands from the disciple in the name of his Trust. The disciple did not get the desired result nor his son was cured of his mental ailment and that is how he came forward with accusations 4 against the Guru for misguiding him, cheating him and depriving him of his valuable property.

The disciple is none else than Shri Mochiram Sahu of village Dharmanagar, Berhampur in the district of Ganjam who is the informant in the case and the spiritual portrayed Guru is accused petitioner Surendranath Mishra commonly known as ‘Sura Baba’.

2. By presenting the First Information Report on 03.09.2015 before Inspector in Charge, Chatrapur Police Station, the informant set the law into motion alleging therein that he had been to Trahi Achuta Asharam located in Jhinti Sasan, Balakati, Khurda in March 2013 for treatment of his mentally retracted son. The petitioner Surendranath Mishra @ Sura Baba kept him as well as his ailing son for about 3 to 4 days, performed puja and told the informant that his son would be cured if he gives something for the construction of a Branch of the Ashram at Chatrapur. On the assurance of petitioner Surendranath Mishra, the informant gave his consent to transfer the lands situated near Chatrapur bypass road appertaining to Sabik Khata No.441/42, Hal Khata No.441/1186, Plot No.271, Area Ac.0.515 decimal and another plot bearing Khata No.441/2657, Plot No.260, Area Ac.0.338 decimal, Khata No.441/2513, Plot No.258/4216, Area Ac.0.51 decimal, Khata 5 No.378, Plot No.227, Area Ac.0.50 decimal, Khata No.37, Plot No.262, Area Ac.0.52 decimal, all total Ac.0.455 decimal and Ac.0.970 decimal. Accordingly the petitioner Trilochan Mishra who is the son of petitioner Surendranath Mishra and one Devi Prasad Rath came to Chatrapur Sub-Registrar Office on 12.04.2013 to prepare the necessary documents. The informant was called and he was asked to put his signatures on the documents. As the informant and his son were simpletons, they put their signatures on the documents. Subsequently the informant came to know that instead of executing a gift deed, a sale deed was executed in which the sale price of the land was mentioned as Rs.26,84,570/-. It is the case of the informant that he had not received a single pie either from the petitioner Trilochan Mishra or from Devi Prasad Rath in connection with the transfer of his land. The ailment of the son of the informant was also not cured. Even though the informant complained before petitioner Surendranath Mishra in that regard but got no response from him, on the other hand petitioner Trilochan Mishra and Devi Prasad Rath threatened the informant with dire consequence in case he discloses the matter anywhere. After coming to know about the fraudulent activities of petitioner Surendranath Mishra, the informant came to Chatapur Police 6 Station and lodged the First Information Report and made a prayer therein to get back his lands.

On the basis of such First Information Report, Chatrapur P.S. Case No.119 of 2015 dated 03.09.2015 was registered under sections 420/423/467/468/471/506/120-B read with section 34 of the Indian Penal Code and the Inspector in charge himself took up investigation of the case. The Crime Branch assumed full control over investigation of the case as per the CID CB Office Order No.152/CID dated 04.09.2015 and the case was reregistered as CID, CB, Odisha, Cuttack P.S. Case No.28 of 2015 for offences punishable under sections 420/423/467/468/471/506/120-B read with section 34 of the Indian Penal Code and Inspector in Charge Shri R.N. Mohanty was requested to take up investigation by the Inspector in Charge CID, CB, Police Station.

3. During course of investigation of the case, it came to limelight that about thirty six years back, the petitioner Surendranath Mishra declared that he had received a POTHI of Mahapurusha Achyutananda from one SADHU Baba. He also organized a Yagyan to attract the public with a view to deceive and cheat them. Then he established an Ashram at Trahi Achyuta Nagar and started predicting future of persons consulting the so called Achyutananda POTHI. He was deceitfully 7 suggesting remedies and collecting huge money from the public by making false predictions and remedial measures. He proclaimed himself as a GURU and created disciples giving GURU MANTRA to them with a view to collect money by such deception for personal gain. He also formed a Trust named as SHREE SHREE SHREE MAHAPURUSHA ACHYUTANANDA TRUST in which he was the Founder Trustee. The Trust was registered in the office of Sub-Registrar, Balipatna on 29.11.1991. His eldest son accused petitioner Trilochan Mishra was the Chairman-CumManaging Trustee, his younger son Biranchi Narayan Mishra was the Vice-Chairman, Khetra Mohan Pattnaik was the Executive Trustee, Monaranjan Acharya was the Secretary and five others were the Trustees including accused Devi Prasad Rath.

Gradually, lakhs of people from different parts of the State and outside became his disciples and fell prey to the petitioner Surendranath Mishra. As a result of inducement, each disciple used to pay Rs.15/- per month as BATULI, etc., Rs.90/- in every one and half months during HABISHA and Rs.132/- during GURU DIKHYA. The devotees were also paying thousands of rupees in different festive occasions of Ashram. Petitioner Surendranath Mishra was also collecting Rs.20/- from each person for consulting the POTHI. In this manner, thousands of disciples including common people were cheated as a result of which they 8 delivered money to him to the tune of Crores. As such the accused persons acquired land to the extent of 88 acres at different places in the name of the Trust and in their names and in the names of their family members.

Investigation further revealed that the eldest son of the informant namely Binayak Sahu has been suffering from mental derangement since 2006. In spite of treatments by Psychiatrist, he was not cured. Getting information about the POTHI spiritual power acquired by petitioner Surendranath Mishra, the informant met petitioner Surendranath Mishra in his Ashram along with his ailing son to cure his son from mental infirmity. Surendranath Mishra consulted the POTHI and prescribed some herbal medicines which he purchased from the Ashram itself. After six months of treatment, the informant, his wife Laxmipriya Sahu son Binayak Sahu became disciples of petitioner Surendranath Mishra. They followed all the instructions given by Gurudev/Ashram including giving BATULI, KARA SEVA contributions towards the functions and construction of temples and buildings of the Ashram. About one hundred people of Berhampur and Chatrapur area also became his disciples. Since no improvement was marked in the condition of the son of the informant, he treated his son in Central Institute of Psychiatry, 9 Kamke, Ranchi, Jharkhand on 19.01.2012 by other doctors. However, they were continuing to visit the Ashram.

Investigation further revealed that in March, 2013, Surendranath Mishra induced the informant to donate some lands for construction of Branch of Ashram at Chatrapur. He assured to the informant that his son would be completely cured from mental derangement and accordingly, the informant agreed to donate his lands located at Jaya Durga Nagar, Chatrapur for the Branch of Ashram. On 12.04.2013 accused Trilochan Mishra, the Chairman-Cum-Managing Trustee and Devi Prasad Rath, the Trustee of Shree Shree Shree Mahapurusha Achyutananda Trust arrived at Chatrapur for registration of the said land in favour of the Trust. Informant had desired to execute a Gift Deed and had opted for it. The deed was executed in the office of SubRegistrar, Chatrapur in favour of the Trust in which the informant Mochiram Sahu signed as the transferor and his son Binayak Sahu signed as a witness. The informant had an impression that it was a Gift Deed through which his lands were being donated to a divine institution but a Sale Deed was executed instead of a Gift Deed. It came to light that the informant was not paid with any consideration money. Moreover, the informant had purchased non-judicial stamp papers paying about Rs.1,45,000/- from his pocket with a belief to cure his son. Since no 10 improvement was made in the mental condition of his son, he could realize that he was cheated by petitioner Surendranath Mishra. Being afraid of threat given by accused persons, he did not dare to raise his voice. When the informant came to know from television broadcast and news papers about the arrest of the petitioner Surendranath Mishra and his two sons for their illegal activities and cheating, he could muster courage and lodged the F.I.R. in Chatrapur Police Station on 03.09.2015. Investigation also revealed that the Trust had applied for mutation using the said forged sale deed and got the land recorded in name of the Trust and Khatian (PATTA) was issued by Tahasildar, Chatrapur. According to the Khatian (PATTA), the land is recorded in Khata No.441/3632 of Mouza-Chatrapur having plot No.258/4286 (Bila-2) with area Ac.0.041 dec., plot No.260 (Bila-2) with area Ac.0.338 dec. and plot No.261 (Gharabari) with area Ac.0.515 dec. (Total Ac.0.894 dec.) in the name of Shree Shree Shree Mahapurush Achytananda Trust, care of trustees petitioner Trilochan Mishra and Sri Devi Prasad Rath.

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During investigation, the Investigating Officer seized cash amount Rs.29,93,610/- in total, gold ornaments weighing 152 grams, silver ornaments weighing 1980 grams, land records, computer CPUs/Hard Disks from Trahi Achyuta Ashram along 11 with the palm leaf POTHIs used for cheating. Similarly gold ornaments weighing 342.99 grams and silver ornaments weighing 4.98 grams were seized from bank locker of petitioner Trilochan Mishra. Two four wheeled vehicles were also seized. Total amount to the tune of Rs.2,74,34,865/- were found to have been deposited in different Banks in 91 accounts in respect of Shree Shree Shree Mahapurusha Achyutananda Trust and petitioner Surendranath Mishra his family members. Large amount (total Rs.21,54,516/-) were also found deposited in 36 policies and 3 FDs in L.I.C. Rs.35,28,300/- was found deposited in HDFC Standard Life Insurance, Rs.1,97,000/- in HDFC Mutual Fund and Rs.1,14,000/- in Birla Sun Life Mutual Fund. That apart, land around 88 acres at different places were found recorded in the names of the Trust, petitioners Surendra Nath Mishra, Trilochan Mishra and their family members. The investigation further revealed that the accused persons misappropriated money of the Trust by making false declaration in Income Tax Returns. It was held to be an organized crime and the accused persons hatched out a criminal conspiracy to commit the crime. Proceeds of crime collected in this manner were deposited in their personal accounts and lockers in different banks.

The material evidence collected during investigation further revealed that the petitioners hatched out a criminal conspiracy to cheat the informant Mochiram Sahu and to grab his valuable lands. Accordingly, they managed to record the valuable lands of the informant in the name of the Trust by preparing forged sale deed on 12.04.2013 in place of a gift deed falsely mentioning payment of Rs.26,84,570/- to the informant (seller) as consideration amount. Thus, a false registered deed was prepared and the land was mutated by using the said false document as genuine. The petitioners made Sri Binayak Sahu, son of informant Mochiram Sahu as a witness to the deed knowing full well that Binayak Sahu is mentally unsound and unfit to stand as a witness. The Trust did not contribute anything towards purchase/acquisition of land for Branch Ashram and the disciples of Chatrapur and Berhampur area also did not arrange fund for the land. The investigation further revealed that it is falsely mentioned in the deed that consideration amount of Rs.26,84,570/- has been paid to Mochiram Sahoo earlier in the village in presence of deed witnesses, i.e., Binayak Sahu, the son of informant and G. Jawaharlal. On examination, these witnesses stated that they have no knowledge about payment of the consideration amount and besides the bank statements of the informant Mochiram Sahu also did not show the deposit of consideration money. The bank accounts of the Trust or accused persons did not disclose withdrawal of such amount for payment of consideration amount to the informant, as falsely claimed by the accused persons. From the statements of the witnesses and medical reports prescriptions, it was evident that Binayak Sahu, son of the informant Mochiram Sahu was mentally infirm and he has not recovered contrary to the promise/assurance made by the petitioner Surendranath Mishra. The petitioners fraudulently collected huge money valuables from thousands of people by cheating by using so-called palm leaf POTHI of Mahapurush Achyutananda.

The investigation further revealed that the petitioner Surendranath Mishra is the Founder Trustee of Shree Shree Shree Mahapurusha Achyutananda Trust and all the activities of Trahi Achyuta Ashram and of Trust were practically managed by the petitioners Surendranath Mishra and Trilochan Mishra and Trahi Achyuta Ashram was evaluated by a team of Assistant Engineers of R B Department and the value of built up structure of the Ashram was estimated at Rs.20,44,43,000/- and the petitioners could not account for those movable and immovable properties. The Investigating Officer came to the conclusion that there is reason to believe that most of those properties were acquired illegally by cheating the public including 14 the informant of the case with an intention to misappropriate for personal gains.

4. The petitioners moved an application for bail in the Court of learned Additional Sessions Judge, Chatrapur, Ganjam in Bail Application No.311 of 2015 which was rejected vide order dated 18.11.2015 on the ground that the petitioner Sura Baba was the founder of the Trust namely, “Shree Shree Shree Mahapurusha Achyutananda Trust” and his son was the Chairman–cum-Managing Trustee of the said Trust and the sale deed was executed in the name of the said Trust and that the statement of chartered accountant namely, Ajay Kumar Vardhan reveals that more than Rs.33,05,997/- were spent at the time of registration of the document in question which was shown in the balance-sheet of the said trust but no document was furnished by the petitioners showing prima facie that in fact such a huge amount of money was paid at the time of execution of the documents. The learned Court further observed that the investigation was under progress and at such a stage, if the petitioner would be released on bail, possibility of manipulating the records to escape from criminal liability cannot be ruled out.

5. Mr. Asok Mohanty, learned Senior Advocate appearing for the petitioners emphatically contended that though the alleged offences are stated to have taken place in the year 15 2013 but the First Information Report was lodged in the year 2015 and there is inordinate delay in lodging the F.I.R. which has not been explained by the informant. He further argued that the informant has voluntarily executed the document in favour of the Trust for which the trust has spent more than 33 lakhs for the registration of the sale deed and that the accusation that a gift deed was to be executed in the name of the Trust by the informant and that the informant was kept in darkness and his signatures were obtained in the sale deed under misrepresentation are not at all believable. The learned counsel further urged that the informant was at liberty to take steps in the Court of law for cancellation of the sale deed which he has not yet done and therefore, the allegations are all afterthought. It was further contended that the police hatched out a conspiracy to falsely implicate the petitioners and the informant has been set up for such purpose with an oblique motive and so far as the land transactions are concerned, in respect of the petitioners, the investigation is complete and further investigation has been kept open for arresting the absconding accused persons and to ascertain the complicity of other persons, if any and therefore, the release of the petitioners will no way hamper further investigation of the case in any manner. The learned counsel further contended that the ingredients of the offences are not 16 attracted and the Investigating Authorities have proceeded on the basis of conjectures and surmises and since there is no chance of absconding of the petitioners, the bail applications deserve favourable consideration.

Mr. Janmejaya Katikia, learned Additional Government Advocate filed an affidavit of Sri Rabindranath Mohanty, the Investigating Officer and opposed the prayer for bail. The learned counsel for the State submitted that apart from the present case, the petitioners are involved in Balipatna P.S. Case No.187 dated 30.08.2015 under sections 341/341/323/294/506/34 of I.P.C. read with section 3(1)(x) of SC ST (PA) Act, Balipatna P.S. Case No.189 dated 31.08.2015 under sections 294/506/120-B/420/509/34 of I.P.C., Balipatna P.S. Case No.190 dated 31.08.2015 under sections 341/342/294/506/34 of I.P.C., Balipatna P.S. Case No.191 dated 31.08.2015 under section 25 of Arms Act and 34 of I.P.C., Balipatna P.S. Case No.196 dated 01.09.2015 under sections 365/506/34 of I.P.C., Chatrapur P.S. CaseNo.119 dated 03.09.2015 under sections 420/423/467/468/471/506/120-B/34 of I.P.C., Balipatna P.S. Case No.219 dated 01.10.2015 under sections 342/347/323/466/467/468/294/506/420/34 of I.P.C. read with section 25 and 27 of Arms Act. He further contended that the petitioner Surendranath Mishra is the principal 17 conspirator of the crime and there is sufficient evidence to prove the charges against him and that the crime committed by the petitioner was preplanned in nature affecting socio-economic condition of thousands of common innocent people who have been victimized by inducement of the accused persons. Learned counsel further urged that the petitioner Surendranath Mishra is a very influential person who may bias and intimidate witnesses and tamper with the evidence, if released on bail. He further submitted that the petitioners may flee away from the jurisdiction of the Court, if released on bail and that there are chances of committing similar offences. He further contended that the co-accused namely Devi Prasad Rath has absconded and he is yet to be apprehended and release of the present petitioners on bail may be a hindrance in the arrest of the absconding accused. He further emphasized that it is strongly suspected that some valuable documents are kept concealed in the locker of Indian Bank, Mausima Temple Marg Branch held by Smt. Bidulata Mishra, who is closely related to the petitioners but Smt. Mishra is not co-operating in the opening of the locker for verification. He further contended that steps are being taken to open the locker with the help of the bank and that the petitioner Surendranath Mishra is a very influential person and once he is released on bail, he may cause disturbance/hindrance in the 18 opening of the locker. The learned counsel for the State further highlighted that one habeas corpus petition has been filed by one Jitendra Kumar Senapati vide CRLMP no.1175 of 2015 with a prayer to cause production of his son, who was working as an Accountant in “Trahi Achyuta Ashram” and was staying in the campus of the said Ashram. The petitioner Surendranath Mishra, his family members and other accused persons connected with the affairs of the management of the Ashram are reasonably expected of having knowledge about the whereabouts of the victim. Whether the victim is still alive or dead is yet to be ascertained and therefore, release of the petitioners would certainly affect the investigation to unearth the evidence regarding the missing of the said victim. The learned State counsel submitted that the investigation of the case is continuing for collection of much important evidence and to recover more proceeds of crime acquired by the accused persons. With regard to accumulation of huge assets (both movable and immovable), the exercise is also being undertaken by the Enforcement Directorate as well as the Income Tax Department and that investigation is continuing to unearth the involvement linkage of other persons in the racket/criminal conspiracy and to arrest them. The learned counsel contended that the release of the petitioners on bail would hamper the process of investigation to 19 a substantial extent. He emphasized that the petitioner Surendranath Mishra has played with the religious sentiments of general public and to grant him liberty of bail would definitely affect the faith of the common men on the justice delivery system. He placed the citation of the Hon’ble Apex Court in case of Neeru Yadav -Vrs.- State of U.P. reported in (2015) 62 Orissa Criminal Reports (SC) 771 and contended that the bail applications of the petitioners should be rejected on the ground of their involvement in number of cases which are under investigation.

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6. There is no dispute that the First Information Report was lodged in this case on 3.9.2015 and Crime Branch took over investigation of the case on 4.9.2015 and charge sheet was submitted on 20.1.2016 against the petitioners under sections 420/423/467/468/471/406/506/120-B read with 34 of Indian Penal Code and further investigation was kept open under section 173 (8) Cr.P.C. for arrest of absconding accused, to ascertain complicity of other persons, if any, collection of other evidence and to recover more proceeds of crime. It is also not disputed that the petitioners were taken on remand in this case on 24.09.2015 and in the meantime more than eight months have passed and the offences are triable by Magistrate.20

7. Mr. Asok Mohanty, learned Senior Advocate appearing for the petitioners made a scathing attack to the conduct of the investigating officer in submitting charge sheet under sections 467, 468 and 471 of the Indian Penal Code without any materials relating to commission of ‘forgery’. It is the contention of the learned counsel that when the informant voluntarily decided to part away with his lands for the construction of Branch of Ashram and executed the deed going to the registration office at Chatrapur, even if it was allegedly done under a wrong notion that his son would thereby be cured of his mental ailment, it cannot be said that the ingredients of the offences are attracted.

Mr. Janmenjaya Katikia Addl. Govt. Advocate on the other hand placed the relevant sections and countered the submission of Mr. Mohanty by contending that the investigating officer is quite justified in submitting charge sheet for such offences in the facts and circumstances of the case. ‘Forgery’ is sine qua non of offences under sections 467, 468 and 471 of the Indian Penal Code.

Section 467 of the Indian Penal Code, inter alia, prescribes punishment for forgery of a document which purports to be a valuable security or which purports to transfer any valuable security. The words ”valuable security” has been 21 defined under section 30 of the Indian Penal Code which denote a document which is, or purports to be, a document whereby any legal right is created, extended, transferred, restricted, extinguished or released, or whereby any person acknowledges that he lies under legal liability, or has not a certain legal rights. Thus there cannot be any dispute that registered sale deed is a ‘valuable security’.

Section 463 of the Indian Penal Code which defines forgery, inter alia, states that whoever makes any false documents with intent to cause damage to any person or to cause any person to part with property or with intent to commit fraud or that fraud may be committed is stated to have committed forgery. Section 464 of the Indian Penal Code which deals with making a false document which is one of the ingredients of forgery, inter alia, states that whoever dishonestly or fraudulently causes any person to sign a document knowing that such person by reason of deception practised upon him does not know the contents of the document can be said to have made a false document.

It is the prosecution case that deception was practised upon the informant by petitioner Surendranath Mishra that his son would be cured of his mental ailment and thereby the informant on good faith agreed to transfer his lands for the 22 purpose of construction of Branch of Ashram at Chatrapur. From the materials available on record, prima facie it appears that petitioner Surendranath Mishra dishonestly and fraudulently caused the informant to sign on the registered sale deed and by reason of deception practiced upon the informant, he could not know the contents of the document that it was not a gift deed but a sale deed and thereby parted with his property and therefore, it can be said that the ingredients of offence under section 467 of the Indian Penal Code are prima facie attracted. Similarly section 468 of the Indian Penal Code deals with forgery for the purpose of cheating. “Cheating” has been defined under section 415 of the Indian Penal Code. The available materials on record indicate that the informant was deceived by petitioner Surendranath Mishra and he was fraudulently/ dishonestly induced to deliver his valuable property to the Trust and the manner in which a registered sale deed was created instead of a gift deed indicating payment of huge consideration amount to the transferor (informant) even though nothing was in fact paid to him, prima facie makes out the ingredients of the offence under section 468 of the Indian Penal Code.

Section 471 of the Indian Penal Code deals with using a forged document as genuine. To constitute the 23 ingredients, it is required that there must be fraudulent or dishonest use of a document as genuine and knowledge or reasonable believe on the part the person using the document that it is a forged one. In this case, not only a false registered sale deed was prepared but also by using such forged sale deed as genuine, the land was mutated in the name of the Trust and Khatian was issued by Tahasildar, Chatrapur. Thus prima facie the ingredients of the offence under section 471 of the Indian Penal Code are also attracted.

8. It is contended by Mr. Asok Mohanty, learned Senior Advocate that the ingredients of the offence under section 420 of the Indian Penal Code are also not attracted as there is no element of ‘cheating’ as defined under section 415 of the Indian Penal Code. To butteress his contention, he submitted that when the informant had voluntarily come to the Ashram to cure the mental ailment of his son and he was advised to do something in accordance with recitals made in the Pothi, merely because it did not work, it cannot be said that the petitioner Surendranath Mishra deceived the informant. Similarly, it is the contention of the learned counsel for the petitioners that there was no fraudulent or dishonest inducement made to the informant to deliver the landed property rather for curing his ailing son, the 24 informant decided to part with the property in favour of the Trust.

Mr. Janmenjaya Katikia on the other hand contended that a false belief was created in the mind of a simpleton like the informant who had failed in his attempts to cure his son even after providing him prolonged medical treatment and such false belief created by none else than petitioner Surendranath Mishra prompted the informant to deliver his landed property in the name of the Trust in as much as curing his son was the paramount consideration for the informant than the landed properties and certainly the petitioners had taken advantage of such a situation and thereby deceived the informant. As far as section 420 of the Indian Penal Code is concerned, the prosecution must show that wrongful loss has been caused to the victim and that the accused has wrongfully gained. In this case, prima face materials indicate that the informant had sustained wrongful loss by parting with his valuable properties and the petitioners have gained such properties.

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In case of Sri Bhagwan Samardha Vrs. State of A.P. and others reported in (1999) 5 Supreme Court Cases 740, it is held as follows:-

“8. If somebody offers his prayers to God for
healing the sick, there cannot normally be any
element of fraud. But if he represents to another
that he has divine powers and either directly or
indirectly makes that other person believe that
he has such divine powers, it is inducement
referred to in Section 415 IPC. Anybody who
responds to such inducement pursuant to it and
gives the inducer money or any other article and
does not get the desired result is a victim of the
fraudulent representation. The Court can in such
a situation presume that the offence of cheating
falling within the ambit of Section 420 IPC has
been committed. It is for the accused, in such a
situation to rebut the presumption.

9. So the contention that the allegations do
not disclose an offence under Section 420 IPC
has to be repelled and we are of the opinion that
the Magistrate has rightly taken cognizance of
the said offence.”

Learned counsel for the State placed the statement of one Ajaya Kumar Vardhan who was the chartered accountant and prepared the balance sheet for the year 2013-2014 of the Trust and he stated that towards the cost of the land stated to have been purchased from the informant, purchase of stamp papers and registration expenses etc., Rs.33,05,997/- was shown in the balance sheet. It is contended by the learned counsel for the State that not a single pie has been paid to the informant in connection with the transfer of the land rather the informant himself purchased Stamp papers to the tune of Rs.1,45,000/- (one lakh forty five thousand) from Stamp vendor Manoranjan Patra which is also corroborated by Stamp Vendor Manoranjan patra and therefore, the ingredients of the offence under section 420 of the Indian Penal Code are clearly attracted. Considering the submissions made by the respective parties and looking at the statements of the informant Mochiram Sahu, chartered accountant Ajaya Kumar Vardhan and stamp vendor Manoranjan Patra and other materials available on record, I am of the view that prima facie the ingredients of offence under section 420 of the Indian Penal Code are attracted.

9. The contentions regarding delay in lodging the First Information Report which was raised by the learned counsel for the petitioners has been refuted by the learned Addl. Government Advocate on the ground that the informant was threatened by petitioner Trilochan Mishra and Devi Prasad Mishra with dire consequence for which he could not gather courage to complain before anybody and it is only when he came to know from the print and electronic media that the petitioners have been taken into custody for their illegal activities and cheating, he could muster courage and lodged the First Information Report. The learned counsel for the State contended that in the peculiar facts and circumstances of the case, it can be said that the delay in lodging the FIR has been properly explained by the prosecution.

Law is well settled that mere delay in lodging the FIR cannot be a ground by itself for throwing away the entire prosecution case. The Court has to seek an explanation for delay and check the truthfulness of the version put forward. If the Court is satisfied with such explanation, then the delay factor cannot be counted against the prosecution. In the present case, the informant has offered some explanation regarding delay in lodging the first information report. Whether such explanation is acceptable or not, it would be better adjudicated by the Trial Court at the appropriate stage. At this stage, I am of the view that such a contention does not cut much ice in favour of the petitioners.

10. The contentions raised by the learned counsel for petitioners that the allegations are afterthought as no steps have been taken by the informant for cancellation of the sale deed which is alleged to have been obtained by way of fraud have no substance in as much as the Court has to decide from the available materials on record as to whether forgery and cheating have been committed or not. Why no steps have yet been taken by the informant for the cancellation of sale deed can be deposed to by the informant at the appropriate stage and he may also take steps in that respect but that cannot be a ground 28 to arrive at a conclusion that the ingredients of the offences are not attracted.

11. The involvement of the petitioners in a series of cases is another factor which goes against them. In case of Neeru Yadav Vrs. State of U.P. reported in (2015) 62 Orissa Criminal Reports (SC) 771, it is held as follows:-

“13. We will be failing in our duty if we do not
take note of the concept of liberty and its
curtailment by law. It is an established fact that
a crime though committed against an individual,
in all cases it does not retain an individual
character. It, on occasions and in certain
offences, accentuates and causes harm to the
society. The victim may be an individual, but in
the ultimate eventuate, it is the society which is
the victim. A crime, as is understood, creates a
dent in the law and order situation. In a civilized
society, a crime disturbs orderliness. It affects
the peaceful life of the society. An individual can
enjoy his liberty which is definitely of paramount
value but he cannot be a law unto himself. He
cannot cause harm to others. He cannot be a
nuisance to the collective. He cannot be a terror
to the society.
xx xx xx xx
15. This being the position of law, it is clear as
cloudless sky that the High Court has totally
ignored the criminal antecedents of the accused.
What has weighed with the High Court is the
doctrine of parity. A history-sheeter involved in
the nature of crimes which we have reproduced
hereinabove, are not minor offences so that he
is not to be retained in custody, but the crimes 29
are of heinous nature and such crimes, by no
stretch of imagination, can be regarded as
jejune. Such cases do create a thunder and
lightening having the effect potentiality of
torrential rain in an analytical mind. The law
expects the judiciary to be alert while admitting
these kind of accused persons to be at large
and, therefore, the emphasis is on exercise of
discretion judiciously and not in a whimsical
manner.”

12. Adverting carefully to the tactical and enthralling contentions raised at the Bar and on perusal of the available records, it is apparent that there are prima facie materials regarding the involvement of the petitioners in the commission of offences which are having far-reaching effect on the society. The nature and gravity of accusations, the manner in which a simpleton disciple was duped by the petitioners of his valuable landed properties in the pretext of curing the mental ailment of his son, the oblique motive behind converting a gift deed to a sale deed, the manner in which the petitioners have amassed huge wealth playing upon the religious sentiments of thousands and thousands of persons in a pre-planned manner and taking into account the criminal proclivity of the petitioners and chance of tampering with the evidence particularly when the investigation is under progress and many important facets of the case are yet to be unearthed, at this stage, it would not be proper to release the petitioners on bail.

13. Before parting, I would humbly say that India is a land of Muni and Rishis. Their extraordinary wisdom and preaching have a lot of contribution for our peaceful coexistence in a stressful and hostile atmosphere. Our religion believes in simple living and high thinking which are the precious gifts of those sages. People around the globe are attracted towards our country because of its rich culture and traditions. However, in the recent past some fake Babas have created a lot of controversy. They do not practise any penance or achieve any siddhi or realization in life. They practise fraud in a cunning manner, trap the innocent followers, rob of their hard earnings and lead a licentious life. Their claim of having some miracular power to solve any kind of problematic situation in the life of a human being create a mesmerizing effect for some time and attract many a depressed persons towards them in search of fulfilment of their unending materialistic desires. Ultimately blind faith of the followers get shattered when the real faces of Babas get unveiled and they come to realize the reality. By that time much water flows under the bridge. It is rightly said that it is faith that works wonders, there is nothing like wonder. Accordingly, the bail applications filed by the petitioners Surendranath Mishra and Trilochan Mishra sans merit and hence stand rejected.

S.K. Sahoo, J.
Orissa High Court, Cuttack
The 25th May, 2016/Pravakar

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