M/s. Katloon Management & Financial Services Pvt. Ltd., Bhanjanagar & Others vs State Of Odisha

S. Pujahari, J.

In both these appeals, challenge having been made to the common judgment, i.e., the judgment dated 06.05.2017 passed by the learned Designated

Court under the OPID Act, Berhampur in I.A. No.2 of 2016, corresponding to EOW P.S. Case No.18 dated 22.07.2015, both these appeals have

been heard together and the impugned order to follow will dispose of both of them.

Buguda P.S. Case No.151 of 2015 registered under Sections 4, 5 and 6 of the Prize Chits & Money Circulation Schemes (Banning) Act, 1978 and

Section 6 of the Odisha Protection of Interests of Depositors (in Financial Establishments) Act, 2011 (for short “the OPID Actâ€) on the basis of

the F.I.R. lodged by one Ramakrushna Pani, was taken over by the Crime Branch for the purpose of investigation and the appellants in Criminal

Appeal No.809 of 2018 have been arraigned as accused persons therein. It is alleged that accused-company, namely, M/s. Katloon Management &

Financial Services Pvt. Limited incorporated as a Private Company under the provisions of Companies Act, 1956 and the Accused-Society, namely,

M/s. Katloon Credit Cooperative Limited through their Directors / Managing Director or Promoter, as the case may be, during the period from

November, 2010 to March, 2013 collected huge amount of money from the public unauthorizedly with assurance of refunding the same with interest,

and instead of honoring the commitment made by them to the depositors/ Investors, closed their offices in August, 2013. After completion of

investigation, charge-sheet has already been filed against them. As per the investigation, various properties were purchased by the Company and its

sister concerned through their Directors at different places with the money collected by them from the depositors in course of running illegal money

circulating scheme. It further appears from the record that in terms of Section 3 of the OPID Act, 2011 the State Government passed order of

provisional attachment of the movable and immovable properties of the appellants in CRLA No.809 of 2018 and thereafter the Addl. District

Magistrate-cum-Competent Authority under the OPID Act moved an application under Section 4(3) of the OPID Act registered as I.A. No.2 of 2016

before the Designated Court under the OPID Act, Berhampur seeking to make the aforesaid ad-interim order of attachment absolute and for a

direction to sell the attached properties by public auction and realize the sale proceeds. The present appellant nos.5 and 6 (opposite party nos.5 and 6

in the Interim Application) though contested the said Interim Application, did not choose to adduce any evidence during the hearing. The learned

Designated Court basing upon the oral evidence of two witnesses and documentary evidence produced by the applicant-competent authority, passed

the impugned judgment directing the competent authority to sell the attached properties by public auction and realize the sale proceed for the purpose

of equitable distribution of the same amongst the depositors.

The accused persons, who were arraigned as opposite parties in I.A. No.2 of 2016 before the Court below, have preferred Criminal Appeal No.809

of 2018 to set-aside the impugned judgment dated 06.05.2017, whereas Criminal Appeal No.810 of 2018 has been filed by the purchasers of different

parcels of land from M/s.Katloon Management & Financial Services Pvt. Limited, seeking to quash the impugned judgment to the extent the same

affected the property purchased by them under Ext.2 and more fully described in the CRLA.

I have heard the respective learned counsels appearing for the appellants in both the appeals as well as Shri Bibekananda Bhuyan, learned Special

Counsel engaged on behalf of the respondent-State.

The appellants in CRLA No.809 of 2018 question the legality and propriety of the impugned judgment on the grounds, inter-alia, that the proceeding

in question having been initiated on the complaint / F.I.R. of a lone individual said to be a depositor, the impugned judgment is not legally sustainable,

inasmuch as the OPID Act contemplates a class action when a number of persons are affected by the alleged criminality calling for remedial or penal

action under the OPID Act. In support of this contention, the accused-company and its Directors refer to Sections 4(4) and 9(7) of the OPID Act.

According to them, without undertaking any exercise of identifying the number of persons affected and amount of total money required to be

refunded, the order of attachment and/or sale of the total property of the appellants speaks of non-application of judicial mind by the learned Court

below. It is also contended by them that M/s. Katloon Credit Cooperative Limited registered under the Self Help Cooperative Act, 2002, being not

amenable to the OPID Act, the property of the said Cooperative Society cannot be brought within the order of attachment and sale under the OPID

Act, and the properties of the Accused-company and Accused-Society having not been bifurcated, the impugned judgment is not sustainable in law. It

is further averred by them that the OPID Act being prospective in application and the prosecution launched under the said Act for the offences

otherwise triable under the general penal statute, there is manifest illegality in the inception of the proceeding as well as the impugned judgment.

According to the appellants in CRLA No.810 of 2018, the appellants being bonafide purchasers of the property in question for consideration, the

said property is not liable to be brought under the purview of the OPID Act.

Though the appellants have challenged the impugned order on the aforesaid grounds, but during the course of hearing, learned counsel for the

appellants laid emphasis on the contention that the impugned order is unsustainable for the reason that neither the Competent Authority nor the Court

below has identified the number of persons allegedly affected and the total money required to be refunded. According to him, the purpose of making

the attachment absolute is to auction the property and make equitable distribution among the persons stated to have been duped and, therefore, it was

incumbent upon the Court concerned to determine on the basis of the evidence adduced as to what was the amount the Company have received, from

which of the depositors and thereafter, whether the property attached was sufficient enough to take care of the same before the attachment is made

absolute. In this case, virtually the aforesaid having not been done, the impugned order of attachment is liable to be quashed and the matter is required

to be remitted back for fresh adjudication.

Per contra, Mr. Bhuyan, the learned Special counsel engaged on behalf of the State would submit that the aforesaid is not the requirement of law

and that it is only in the event someone comes forward indicating the fact that the property attached is not liable for attachment, the Court is required

to make a determination before absolutizing an ad-interim order of attachment. In this case, admittedly, the appellants having never come forward

showing cause that in the property attached neither the Financial Establishment has any interest nor the same has been acquired by the ill-gotten

money of the Financial Establishment and they having not shown that the value of the property attached is much more than the value received by the

Financial Establishments, the impugned order cannot be questioned.

In order to appreciate the contentions of the parties, it would be apposite to have a look to the provisions of Sections 3, 4, 6, 9, 10, 11 and 12 of the

OPID Act which are quoted hereunder;

“3. Attachment of properties on default of return of deposit â€" Notwithstanding anything contained in any other law for the time being in force.-

(i) where, upon complaints received from a number of depositors that any Financial Establishment defaults the return of deposits after maturity or fails to pay interest

on deposit or fails to provide the service for which deposit has been made, or

(ii) where the Government have reason to believe that any Financial Establishment is acting in a calculated manner with an intention to defraud the depositors, andÂ

if the Government are satisfied that such Financial Establishment is not likely to return the deposits or to make payment of interest or to provide the service,

the Government may, in order to protect the interest of the depositors of such Financial Establishment, pass an ad-interim order attaching the money or other

property alleged to have been procured either in the name of the Financial Establishment, pass an ad-interim order attaching the money or other property alleged to

have been procured either in the name of the Financial Establishment or in the name of any other person from and out of the deposits collected by the Financial

Establishment, or if it transpires that such money or other property not available for attachment or not sufficient for repayment of the deposits such other property of

the said Financial Establishment or the Promoter, Director, Partner or Manager or Member of the said Financial Establishment to the extent of his default or such other

properties of that person whose name properties were purchased from and out of the deposits collected by the Financial Establishment, as the Government may think

fit and transfer the control over the said money or property to the Competent Authority.

Competent authority â€" (1) The Government may, by notification, appoint a District Magistrate or an Additional District Magistrate for such area or areas or for

such case or cases as may be specified in the notification as the Competent Authority to exercise control over the properties attached by the Government under

section 3.

Default in Repayment of deposits and interests honouring the commitment â€" Notwithstanding anything contained in section 3, where any Financial

Establishment defaults the return of the deposit or defaults the payment of interest on the deposit or fails to return in any kind or fails to render service for which the

deposit have been made, every person responsible for the management of the affairs of the Financial Establishment shall be punished with imprisonment for a term

which may extend to ten years and with fine which may extend to one lakh rupees and such Financial Establishment is also liable for a fine which may extend to two

lakh rupees.

Powers of Designated Court regarding attachment, sale, etc. â€" (1) Upon receipt of an application under section 4, the Designated Court shall issue to the

Financial Establishment or to any other person whose property is attached by the Government under section 3, a notice accompanied by the application and

affidavits and of the evidence, if any, recorded, calling upon the said Establishment or the said person to show cause on a date to be specified in the notice as to why

the order of attachment should not be made absolute and the properties so attached be sold in public auction.

(2) The Designated Court shall also issue such notice to all other persons represented to it as having or being likely to claim any interest or title in the property of the

Financial Establishment or the person to whom the notice is issued under sub-section (1), calling upon such person to appear on the same date as that specified in

the notice and make objection if he so desires to the attachment of the property or any portion thereof on the ground that he has an interest in such property or

portion thereof.

(3) Any person claiming an interest in the property attached or any portion thereof may, notwithstanding that no notice has been served upon him under this section,

make an objection as aforesaid to the Designated Court at any time before an order is passed under sub-section (4) or sub-section (6).

(4) If no cause is shown and no objections are made on or before the specified date, the Designated Court shall forthwith pass an order making the ad-interim order of

attachment absolute and direct the Competent authority to sell the property so attached by public auction and realize the sale proceeds.

(5) If cause is shown or any objection is made as aforesaid the Designated Court shall proceed to investigate the same and in so doing, as regards the examination of

the parties and in all other respects, the Designated Court shall, subject to the provisions of this Act, follow the procedure and exercise all the powers of a court in

hearing a suit under the Code of Civil Procedure, 1908 and any person making an objection shall be required to adduce evidence to show that on the date of the

attachment he had some interest in the property attached.

(6) After investigation under sub-section (5), the Designated Court shall pass an order, within a period of one hundred and eighty days from the date of receipt of an

application under sub-section (3) of section 4, either making the ad-interim order of attachment absolute or varying it by releasing a portion of the property from

attachment or cancelling the ad-interim order of attachment and then direct the Competent Authority to sell the property so attached by public auction and realize the

sale proceeds:

Provided that the Designated Court shall not release from attachment any interest, which it is satisfied that the Financial Establishment or the person referred to in

sub-section (1) has in the property, unless it is also satisfied that there will remain under attachment an amount of property of a value not less than the value that is

required for repayment to the depositors of such Financial Establishment.

(7) The Designated Court shall, on an application by the Competent Authority, pass such order or issue such direction as may be necessary for the equitable

distribution among the depositors of the money attached or realized out of the sale.

Attachment of property of malafide transferees â€" (1) Where the assets available for attachment of a Financial Establishment or other

person referred to in section 3 are found to be less than the amount or value which such Financial Establishment is required to repay to the depositors

and where the Designated Court is satisfied by affidavit or otherwise, that there is reasonable cause for believing that the said Financial Establishment

has transferred, whether before or after the commencement of this Act, any of the property otherwise than in good faith and for consideration, the

Designated Court may, by notice, require any transferee of such property, whether or not he received the property directly from the said Financial

Establishment, to appear on a date to be specified in the notice and show cause why so much of the transferee’s property as is equivalent to the

proper value of the property transferred should not be attached.

(2) Where the said transferee does not appear and show cause on the specified date or where after investigation in the manner provided in sub-

section (5) of section 9, the Designated Court is satisfied that the transfer of the property to the said transferee was not in good faith and for

consideration, the Designated Court shall order the attachment of so much of the said transferee’s property as in the opinion of the Designated

Court equivalent to the proper value of the property transferred.

Security in lieu of attachment â€" Any Financial Establishment or person whose property has been or is about to be attached under this Act

may, at any time, apply to the Designated Court for permission to give security in lieu of such attachment and where the security offered and given is,

in the opinion of the Designated Court, satisfactory and sufficient, it may cancel the ad-interim order of attachment or, as the case may be, refrain

from passing the order under sub-section (6) of section 9.

Administration of property attached â€" The Designated Court may, on the application of any person interested in any property attached under

this Act, and after giving the Competent Authority an opportunity of being heard, make such order as the Designated Court considers just and

reasonable for,-

(a) providing from such of the property attached as the applicant claims an interest in, such sum as may be reasonably necessary for the maintenance

of the applicant and of his family and for expenses connected with the defence of the applicant where criminal proceedings have been instituted

against him in the Designated Court under section 6;

(b) safeguarding so far as may be practicable, the interest of any business affected by the attachment and in particular, the interest of any partners in

such business.â€​

The aforesaid provisions thus go to show that under Section 3 of the OPID Act, on default being made by the Financial Establishments, when a

complaint is received from a number of depositors, the State Government on being satisfied that the Financial Establishment is not likely to return the

deposits for the protection of the interest of the depositors may order for ad-interim attachment of the money and other property alleged to have been

procured either in the name of the Financial Establishment or in the name of other persons from and out of the amount collected by the Financial

Establishment. So also, if the Government are convinced that such property is not available for attachment or not sufficient for repayment of the

deposits, control over such other property of the said Financial Establishment or the Promoter, Director, Partner or Manager or Member of the said

Financial Establishment or a person who has borrowed money from the Financial Establishment, may be transferred to the Competent Authority

appointed under Section 4 of the OPID Act. Thereafter, it becomes competent on the part of the competent authority under Section 4 of the OPID

Act to apply to the Designated Court for making ad-interim order of attachment absolute and for a direction to sell the property so attached by public

auction and realize the sale proceeds. Section 9 of the OPID Act contemplates that on receipt of such an application, the Designated Court shall issue

notice to the Financial Establishments or to any other person whose property is attached by the State Government. Sub-section (1) of Section 9 of the

OPID Act provides that the Designated Court shall issue notice to show cause to the Financial Establishment or the person whose property has been

attached, before making the attachment absolute. So also, sub-section (2) of Section 9 of the OPID Act contemplates that not only the Financial

Establishment or the person whose property is under attachment as per Section 3 of the OPID Act, but also such other persons as are shown to have

any claim or being likely to claim any interest or title in the property of the Financial Establishment or the persons noticed under sub-section (1), shall

be noticed to make objection to the attachment of the property or any portion thereof on the ground that he has an interest therein. Sub-section (3) of

Section 9 of the OPID Act extends scope to any such person claiming an interest in the property attached or any portion thereof to make an objection

as aforesaid at any time, but before an order is passed under sub-section (4) or sub-section (6), notwithstanding that no notice has been served on him.

Sub-section (4) of Section 9 of the OPID Act contemplates that if no cause is shown and no objections are made on or before the specified date, the

Designated Court shall forthwith pass an order making the ad-interim order of attachment absolute and direct the Competent Authority to sell the

property so attached by public auction and realize the sale proceeds. Sub-section (5) of Section 9 of the OPID Act speaks that if any cause is shown

or any objection is made to proceed with the investigation giving opportunity to the person making such objection to adduce evidence to show that on

the date of attachment he had some interest in the property attached and the property is not liable for attachment. Sub-section (6) of the Section 9 of

the OPID Act speaks of the time the order to be passed basing on such objection either to make ad-interim attachment absolute or vary it by releasing

a portion of the property from attachment or cancelling the ad-interim order of attachment. Sub-section (7) of Section 9 of the OPID Act speaks of

the Designated Court on the application of the competent authority pass such order and issue such direction as may be necessary for the equitable

distribution among the depositors of the money attached or realized out of the sale.

A perusal of the impugned order would reveal that it was only Aswini Kumar Nayak (Appellant No.5 in CRLA No.809 of 2018) who had filed

show cause in the proceeding before the learned Designated Court, and although Kailash Chandra Sethy (Appellant No.6 in CRLA No.809 of 2018)

entered appearance in the said proceeding by engaging his advocate, no show cause had been filed by him. Neither of them adduced any rebuttal

evidence as against the evidence, both oral and documentary, adduced by the State. The Competent Authority was examined as P.W.1 and the

Investigating Officer as P.W.2, and a good number of documents were also admitted into evidence by the State through those two witnesses.

It would further reveal from the lower Court record that in course of the proceeding in compliance with the provisions under sub-sections (1) and

(2) of Section 9 of the OPID Act, the learned Designated Court issued notice to the company office and its Directors / Promoters (Appellants in

CRLA No.809 of 2018) followed by the notice under Order-5, Rule-20 of C.P.C. which was also got published in “The Samajaâ€, an Odiya daily

newspaper, inviting objection from third parties having claim, if any, in the properties attached. Needless to mention that neither any of the appellants

in CRLA No.809 of 2018 filed any objection in the proceeding before the learned Designated Court nor participated in the hearing therein. To put in

other words, despite being afforded opportunity they refrained from contesting the proceeding before the Court below, and the contention that is now

raised on their behalf was not raised at the appropriate stage of the proceeding before the Court below under Section 9 of the OPID Act.

To reiterate, the appellant No.5 in CRLA No.809 of 2018 alone had filed show cause / objection in the proceeding under Section 9 of the OPID

Act, and a perusal of the same would reveal that he had shown his intention and inclination to clear the dues of the customers/depositors by disposing

of the Real Estate of the accused-company by making proper negotiation with prospective buyers/customers, and sought the proposed sale to be kept

in abeyance. To put in other words, the contention now raised on his behalf was alien to his objection / show cause that had been filed before the

learned Designated Court in the proceeding under Section 9 of the OPID Act.

This Court has also considered the case of the appellant no.6 (in CRLA No.809 of 2018) in isolation, inasmuch as he had participated in the

hearing before the OPID Court, albeit without filing any written show cause or objection. He is one of the Directors/Promoters of the Financial

Establishment and claims to have purchased the property vide Ext.22 with his own fund. But, while assailing the impugned order he has not produced

any material to show that if his property/interest is released from attachment, there will remain property of a value not less than the value that would

take repayment to the affected depositors. In the context, a reference may be made to the proviso to sub-section (6) of Section 9 of the OPID Act. In

absence of any such material on record much less at the instance of the appellant no.6, there remained no scope for the Designated Court to record

the requisite satisfaction as contemplated under the proviso to sub-section (6) of Section 9 of the OPID Act.

Further, sub-sections (6) and (7) of Section 9 of the OPID Act obligate and empower the Designated Court to pass order for sale of the attached

property and such other order as may be necessary for the equitable distribution of the money attached, or the sale proceeds of the attached property

among the depositors. These provisions do not require the Designated Court to identify the name or number of persons (depositors) allegedly affected

or to quantify the money required for equitable distribution among the depositors.

For the discussions made herein above, this Court finds no merit in either of these two Criminal Appeals. Hence, both the Criminal Appeals stand

dismissed.

L.C.R. received along with a copy of this judgment be sent back forthwith.

The parties may utilize the copy of this judgment as per the High Court’s Notice No.4587 dated 25.03.2020.