The High Court
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK CRLMC No.2634 of 2023 (In the matter of an application under Section 482 of the Criminal Procedure Code, 1973) ----------- M/s. Orissa Homes Pvt. Ltd. & another ……. Petitioners -Versus- The State of Odisha & another ……. Opp. Parties For the Petitioners : Mr. Jaganath Patnaik, Senior Advocate along with Ms. S. Patnaik, Advocate For the Opp. Party : Mr. P.K. Maharaj, No.1 Additional Standing Counsel For the Opp. Party : Mr. Bibekananda Bhuyan & No.2 : Mr. Anil Kumar Nayak, Advocates CORAM: THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA JUDGMENT _________________________________________________________ Date of Hearing: 12.04.2024 : Date of Judgment : 30.04.2024 _________________________________________________________ S.S. Mishra, J. 1. In the present petition under Section 482 Cr. P.C, the petitioners explore for the following reliefs: 2 I) admit the Application, call for records and quash the entire criminal proceeding in C.T. Case No.03 of 2018 arising out of E.O.W. Bhubaneswar P.S. Case No.02 of 2018, Dated 30.01.2018 for commission of alleged offences under Sections 406/ 420/ 467/ 468/ 471/ 120-B IPC read with Section 6 of Odisha Protection of Interests of Depositors (in Financial Establishments) Act, 2011 which is now pending before the Court of the Learned Presiding Officer, Designated Court under The OPID Act, Cuttack. ii) And set aside the cognizance order dated 09.07.2018 in C.T. Case No.03 of 2018 by the learned Presiding Officer, Designated Court under The OPID Act, Cuttack.” 2. The petitioners are accused in C.T. Case No.3 of 2018 arising out of E.O.W. Bhubaneswar P.S. Case No.02 of 2018 for the offences under Sections 406/420/467/468/471/120-B IPC read with Section 6 of Odisha Protection of Interests of Depositors (in Financial Establishments) Act, 2011 (hereinafter referred to as the “OPID Act”). 3. The informant in the present case has alleged that the petitioners and the other Directors have entered into a criminal conspiracy and committed the offence as stated above. Complainant alleged that huge amount had been taken from him with a promise to deliver the Page 2 of 11 3 property/flat in a stipulated time frame. However, even the construction of the flat has not been taken up by the accused company. It is alleged that the agreement and the other documents given by the petitioners were all forged and fabricated documents. The petitioners have cheated many home buyers in the similar fashion. On the basis of the aforementioned allegation, case was registered, the investigation was carried out by the E.O.W. Cell, Bhubaneswar and the charge sheet was filed against the petitioners and other accused persons for commission of alleged offences as mentioned above. 4. On 09.07.2018, the Designated Court, OPID Act had taken cognizance of the offences. Subsequently thereafter, the petitioners
Facts
moved an application for discharging them before the learned trial Court, which was turned down on 08.08.2019. Thereafter the charges for the alleged offences under Sections 406/420/467/468/471/120-B IPC read with Section 6 of the OPID Act, 2011 were framed against the petitioners. 5. The petitioners appear to have challenged the order of charge by filing appeal under Section 13 of the OPID Act being Criminal Appeal No.711 of 2019 which is pending before this Court. Page 3 of 11 4 6. Apart from the aforementioned Criminal Appeal No.711 of 2019 pending before this Court, the petitioners had also filed CRLMC No.1126 of 2018 and CRLMC No.2497 of 2019 ventilating same grievances on the same/similar grounds. Both these CRLMCs were withdrawn by the petitioners. 7. The precise ground of challenge of the petitioners in all the aforementioned proceedings as well as in the present proceeding is that the petitioners company being engaged in the business of development and sell of the property is not a financial establishment as defined in the OPID Act. Therefore, the offence under the OPID Act fastens upon the petitioners is not sustainable under law. 8. To buttress their argument, the petitioners have relied upon the judgment of this Court passed on 24.09.2021 in the case of Rashmita Patra vs. State of Odisha & Others in CRLMC No.1296 of 2021
Legal Reasoning
wherein this Court has held as under: “17. The case at hand, it is evident that the alleged “deposit” was made as a part of the consideration for purchase of an immovable property. Subsequently, the plot was registered in the informant’s name but it came to light that there was alleged misrepresentation pertaining to whether or not the petitioner and co-accused had the absolute rights over the nearby plots which were essential for constructing a connecting road. These are the issues which is the subject matter of other legislations and not of OPID Act. 21. Without going into the question of legislative competence, it has to be borne in mind that the source of power for every legislation is derived from one of the three lists present in the Seventh Schedule of the Page 4 of 11 5 Constitution of India. That being the case, it is pertinent to note that in the case of New Horizon Sugar Mills Limited (supra), the Hon’ble Supreme Court has, in terms, observed that the power to enact the pari materia legislations of Tamil Nadu, Pondicherry and Maharashtra Act, is derived by the State from Entries 1, 30 and 32 of the State List, which involves the business of unincorporated trading and money-lending. In my view, the objective of the State legislature by enacting the OPID Act was aimed at protecting the interest of gullible depositors who were fraudulently conned into participating in a scheme or arrangement with unscrupulous financial establishments involved in the business or receiving such deposits. By no stretch of imagination could the provision of the OPID Act be contemplated to mean that the intendment of the State legislature was to bring simple transactions pertaining to sale/ transfer of immovable property within the purview of the Act.” 9. Eventually, this Court in the aforementioned judgment has held that the Real Estate Developer Companies are not the financial establishments as defined under the OPID Act. Therefore, no offence under the OPID Act could be alleged against the Real Estate Developer for having failed to deliver the property/flat. 10. This matter was taken up by the State to the Hon’ble Supreme Court by filing Petition (s) bearing Special Leave to Appeal (Crl.) No(s).2107 of 2022 (The State of Odisha & others vs. Rashmita Patra). The said SLP and many other connected matters raising the similar issue are pending determination by the Hon’ble Apex Court. 11. When the matter stood thus, the coordinate Bench of our own High Court, while dealing with the same issue in the similar matter in Dusmanta Kumar Muduli vs. State of Odisha in CRLMC No.3386 of 2022 vide its judgment dated 26.06.2023 opined that the judgment of this Page 5 of 11 6 Court passed in Rashmita Patra (supra) is per incuriam. The relevant part of the judgment reads as under: “8. Referring to the Apex Court decision in Ripa Sharma (supra) and other decisions cited herein above laying down the principles of binding precedence and that if a conflicting view is taken by a Co-ordinate Bench of the same Court in ignorance of earlier decisions, it shall have no binding effect and said to be a judgment per incuriam, Mr. Bhuyan, learned counsel for the OPID State submits that the earlier view of the Benches of equal strength was to be followed by the subsequent Bench of co-equal strength while dealing with similar matter. It is claimed that since the Co-ordinate Benches of this Court confirmed the orders of charge and initiation of criminal proceeding, the subsequent judgment in CRLMC No.1296 of 2021 without taking note of said decisions has lost its binding effect. However, it is argued by Mr. Das, learned Senior Advocate that the judgment in CRLMC No.2781 of 2019 is a non-speaking one which simply followed the judgment in CRLA No.32 of 2020 which was related to an order under Section 239 Cr.P.C. seeking discharge. It is contended by Mr. Das that RERA governs the field which is a complete Code in itself and therefore, the doctrine of occupied field squarely applies. On a reading of the judgment in CRLA No.32 of 2020, it is made to understand that the charge under Section 6 of the OPID Act was under challenge therein and the same did not find favour with this Court which was also followed in CRLMC No.2781 of 2019 and therefore, the only option which is now left open to conclude that the prosecution against the petitioner for the said offence shall have to continue, however, its fate being dependent on the final decision of the Apex Court in SLP (Crl.) No. 2107 of 2022 and SLA (Crl.) No.4910 of 2022 and as a necessary corollary, the decision in CRLMC No. 1296 of 2021 has to be held as a judgment per incuriam. Whether for other IPC offences, a prima facie case is made out against the petitioner or otherwise, in the considered view of the Court, it should be left for the decision of the learned court below during enquiry.” 12. Therefore, the moot question that arises for consideration before this Court is whether a real estate business could be dragged into the proceedings under Section 6 of the OPID Act, 2011, by classifying a Page 6 of 11 7 person paying in advance and booking a flat/property to be “depositor”, and necessarily entail the consequences under the OPID Act. 13. Heard Mr. Jaganath Patnaik, learned Senior Counsel appearing for the petitioners and Mr. Bibekananda Bhuyan & Mr. Anil Kumar Nayak, learned counsels appearing for the opposite parties. 14. At the outset, when the matter was taken up for hearing, Mr. Patnaik, learned Senior Counsel appearing for the petitioners has drawn the attention of this Court to the affidavit filed by the petitioners on 16.02.2024 and explained the reason for which his clients have approached this Court for the same relief time and again and withdrawn the cases. 15. Mr. Patnaik, learned Senior Counsel, by relying upon the judgment of this Court in Rashmita (supra) submits that the larger issue regarding the offence under the OPID Act being registered against his client is maintainable or not is pending determination before the Hon’ble Supreme Court. Therefore, till the case is finally decided, he seeks interim stay of the proceeding pending against the petitioners before the Designated Court. 16. Mr. Bhuyan and Mr. Nayak, learned counsels appearing for the opposite party no.2 submits as follows: Page 7 of 11 8 “The petitioner has taken sole ground that Section 6 of OPID Act is not applicable, relying upon the decision rendered in CRLMC No.1296 of 2021 dated 24.09.2021 (Rashmita Patra vs. State of Orissa). It is pertinent to mention here that this Hon’ble Court in Judgment dated 26.06.2023 passed in CRLMC No.3386 of 2022 (copy enclosed) hold that the decision rendered in Rashmita Patra case is per incuriam. Since the decision rendered in Rashmita Patra case has been declared as per incuriam by this Hon’ble Court, the said decision has lost its binding force. Hence, the contention made by the petitioners has got no merit and this petition is liable to be dismissed.” 17. Learned counsel for the opposite party no.2 has also contended that on 28.09.2021, the petitioners have withdrawn CRLMC No.1126 of 2018 without seeking liberty from the Court to file a fresh petition. CRLMC No.2497 of 2019 filed by the petitioner No.2 was also dismissed on 02.03.2021. 18. In view of the aforementioned orders of this Court dated 28.09.2021 and 02.03.2021 passed in CRLMC No.1126 of 2018 and Page 8 of 11 9 CRLMC No.2497 of 2019 respectively, the present petition is not maintainable. Moreover, the Designated Court, OPID Act vide its order dated 08.08.2019 has already framed the charges against the accused persons under Sections 406/420/467/468/471/120-B IPC read with Section 6 of the OPID Act, 2011. 19. The petitioners have already preferred Criminal Appeal No.711 of 2019, which is pending before this Court. In all the aforementioned three matters, the petitioners have precisely argued the same point. Therefore, no indulgence should be granted to the petitioners in the present proceeding being a repetitive petition for the same grievance. 20. I am persuaded by the argument advanced by learned counsel for the opposite party no.2. Therefore, instead of delving upon the merits of the present case and acceding to the prayer made by Mr. Patnaik, learned Senior Counsel for the petitioners, I prefer the petitioners to raise all their contentions in the pending appeal. 21. In so far as the interim prayer is concerned, it is also opened for the petitioners to make such prayer before the appellate Court. 22. I have formed the opinion by relying upon the judgment of the Hon’ble Supreme Court in the case of Bhisham Lal Verma vs. State of Page 9 of 11 10 Uttar Pradesh and another, reported in 2023 SCC OnLine SC 1399. Apt is to reproduce the following paragraphs: further point out “9. Mr. S. Nagamuthu, learned amicus curiae, would however point out that entertainment of the second petition in Mohan Singh (supra) was held permissible as the circumstances obtaining at the time of the subsequent petition were clearly different from what they were at the time of the earlier one and that was the distinguishing factor which saved that, the second petition. He would in Simrikhia v. Dolley Mukherjee and Chhabi Mukherjee, this Court cautioned that the inherent jurisdiction under Section 482 Cr. P.C. cannot be invoked to override the bar of review under Section 362 Cr. P.C. Reference was made to Sooraj Devi v. Pyare Lal which held that the inherent power of the Court could not be exercised for doing that which is specifically prohibited by the Criminal Procedure Code, 1973. He also drew our attention to R. Annapurna v. Ramadugu Anantha Krishna Sastry, wherein a quash petition under Section 482 Cr. P.C. was dismissed on 28.01.1995 and without mentioning the same, another petition was filed under Section 482 Cr. P.C. with a similar prayer. Noting that the second petition was not made on the strength of anything which had developed after 28.01.1995 but only on the facts which subsisted prior to that date, this Court held that the second petition was not maintainable, as the High Court did not have the power to upset the order dated 28.01.1995 which had attained finality. 10. In S. Madan Kumar v. K. Arjunan, the Madras High Court observed that a person who invokes Section 482 Cr. P.C. should honestly come before the Court raising all the pleas available to him at that point of time and he is not supposed to approach the Court with installment pleas. It was further observed that there may be a change of circumstances during the course of criminal proceedings which would give scope for the person aggrieved to invoke the inherent jurisdiction of the Court, but when he is posted with all the facts and circumstances of a case, he cannot withhold part of it Page 10 of 11 11 for the purpose of filing yet another petition seeking the same relief. 11. We are in complete agreement with these observations of the Madras High Court. Though it is clear that there can be no blanket rule that a second petition under Section 482 Cr. P.C. would not lie in any situation and it would depend upon the facts and circumstances of the individual case, it is not open to a person aggrieved to raise one plea after the other, by invoking the jurisdiction of the High Court under Section 482 Cr. P.C., though all such pleas were very much available even at the first instance. Permitting the filing of successive petitions under Section 482 Cr. P.C. ignoring this principle would enable an ingenious accused to effectively stall the interest and proceedings against him convenience, by filing one petition after another under Section 482 Cr. P.C., irrespective of when the cause therefore arose. Such abuse of process cannot be permitted.” to suit his own 23. In view of the aforementioned decision of the Hon’ble Supreme Court in Bhisham Lal Verma (supra), I am not inclined to entertain this petition. However, liberty is granted to the petitioners to argue all the issues before the appellate Court, when Criminal Appeal No.711 of 2019 is heard.
Decision
24. With the aforementioned liberty, the CRLMC is disposed of. ……………… S.S. Mishra (Judge) Orissa High Court, Cuttack The 30th April, 2024/Subhasis Mohanty, Personal Assistant Signature Not Verified Digitally Signed Signed by: SUBHASIS MOHANTY Designation: P.A. Reason: Authentication Location: High Court of Orissa, Cuttack. Date: 30-Apr-2024 19:21:13 Page 11 of 11