A.P. and others reported in (1999) 5 Supreme Court Cases
740, it is held as follows:-25
“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.
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.
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.12
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 13
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.
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.
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:-25
“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 26
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.27
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 30
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.31
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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