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2016 DIGILAW 387 (ORI)

Kabita Patra v. State of Orissa

2016-05-16

S.K.SAHOO

body2016
JUDGMENT : S.K. Sahoo, J. This is an appeal filed by the appellant Smt. Kabita Patra under section 13 of the Odisha Protection of Interests of Depositors (in Financial Establishments) Act, 2011 (hereafter for short ‘O.P.I.D. Act, 2011’) challenging the impugned order dated 6.10.2015 passed by the learned 1st Addl. District Judge-cum-Designated Court, Cuttack in Interim Application No. 02 of 2014 in rejecting her prayer for release of her bank accounts from provisional attachment and for permitting her to operate such accounts. 2. The appellant who is opp. party no. 23 in the said proceeding filed a petition on dated 31.7.2015 for releasing three of her bank accounts lying with Axis Bank from ad-interim order of attachment. It is the case of the appellant that she was employed under Vodafone Spacetel Ltd., Bhubaneswar till 14.2.2013, on which date, she resigned from her service on personal grounds and she had deposited her salary as well as income from other sources and cash gifts from her relatives in her A/c No. 910090022664584 in Axis Bank, Satya Nagar Branch, Bhubaneswar and A/c Nos. 438010100147217 and 909010032693543 in Axis Bank, Kalpna Square Branch, Bhubaneswar. It is the further case of the appellant that these accounts do not relate to intake of any money from any financial establishment and therefore, the accounts may be released from provisional attachment order and that she may be permitted to operate her bank accounts. The Presiding Officer of the Designated Court under O.P.I.D. Act, Cuttack considering the contentions raised by the learned counsel for the appellant as well as the learned Special Public Prosecutor has been pleased to observe that since investigation as prescribed under section 9 of the O.P.I.D. Act, 2011 is yet to be completed in respect of the ad-interim attachment made by the Government either to make the same absolute or vary the same, the petition filed by the appellant to verify the accounts regarding the source of the depositors etc. and to release the same from provisional attachment at that stage was held to be misconceived and accordingly, the petition was rejected. 3. Challenging the impugned order, it is contended by Mrs. and to release the same from provisional attachment at that stage was held to be misconceived and accordingly, the petition was rejected. 3. Challenging the impugned order, it is contended by Mrs. Chandana Panda, learned counsel for the appellant that the impugned order of rejection is illegal, perverse and not based on any acceptable evidence on record and the order has been passed without application of judicial mind to the facts of the case and that the order of ad-interim attachment passed against the appellant is without any evidence, proof or proper finding which is absolutely illegal and unjust. It is further contended that the money kept in the aforesaid bank accounts do not belong to any financial establishment as defined in section 2(d) of the O.P.I.D. Act, 2011 nor the amounts deposited in the bank accounts have been procured from any financial establishment or in the name of any other person or any deposit collected by any financial establishment to be liable for attachment under the said Act. It is further contended that the bank accounts of the appellant do not constitute any part of the movable properties of any Companies of AT group either as Manager, Director, Share holder or beneficiary to warrant the said bank accounts to be attached nor the money in question in deposit therein are part of deposits made by any depositor in any financial establishment. Learned counsel for the State opposed the contentions raised by the learned counsel for the appellant and submitted that there is no infirmity or illegality in the impugned order and therefore, the appeal should be dismissed. 4. Section 9 of the O.P.I.D. Act, 2011 reads as follows:- 9. Powers of Designated Court regarding attachment, sale, etc.- (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 subsection (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 or 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. It appears from the aforesaid section 9 of the O.P.I.D. Act, 2011 that when notice is issued by the Designated Court to the Financial Establishment or to any other person whose money or other property is attached by the Government by passing an ad-interim order under section 3 of the said Act calling upon the said Establishment or the said person to file show cause as to why the order of attachment should not be made absolute and properties so attached be sold in public auction, the concerned Financial Establishment or person has every right to file an objection before the Designated Court and thereafter it is the duty of the Designated Court to proceed with the investigation of the case and for conducting such investigation, the Court can follow the procedure and exercise all the powers of the Court in hearing a suit under the Code of Civil Procedure, 1908 and the person against whom notice has been issued and who has filed an objection has every right to adduce evidence to show that on the date of attachment, he had some interest in the property attached. Sub-section (6) of section 9 of the O.P.I.D. Act, 2011 categorically prescribes that only after completion of investigation under sub-section (5), the Designated Court can pass the following orders, namely:- (i) making the ad-interim order of attachment absolute; (ii) varying such ad-interim order by releasing a portion of the property from attachment; (iii) cancelling the ad-interim order of attachment; and (iv) directing the Competent Authority to sell the property so attached by public auction and realize the sale proceeds. Thus, on a bare reading of the aforesaid provision, it appears that there is no scope under section 9 of the O.P.I.D. Act, 2011 on the part of Designated Court, to vary the order prior to the completion of the investigation as prescribed under sub section (5). The words “after investigation” means at the close/end of investigation or subsequent to investigation. It cannot be conceptualized to include “prior to investigation” or “midst of investigation”. When legislature has intended a particular act to be done in a particular manner, it has to be done in that manner or not at all. Thus varying of an ad-interim order by releasing a portion of the property from attachment prior to the completion of the investigation is not permissible. 5. In this case after the prayer of appellant to afford an opportunity of hearing in the proceeding was allowed by the Designated Court and she was impleaded as opposite party no.23 vide order dated 02.05.2015, she filed the petition for releasing her bank accounts from provisional attachment. Since the investigation has not yet been completed, there was no scope for the Presiding Officer of the Designated Court to entertain such an application at the behest of the appellant and vary the order of ad-interim attachment and release the bank accounts. The Supreme Court in Sreenath and Another Vs. Rajesh and Others reported in AIR 1998 SC 1827 has ruled as hereunder: “In interpreting any procedural law, where more than one interpretation is possible, one which curtails the procedure without eluding justice is to be adopted. The procedural law is always subservient to and is in aid to justice. Any interpretation which eludes or frustrates the recipient of justice is not to be followed.” The Financial Establishment as defined under O.P.I.D. Act, 2011 or any person attached to or having interest in such establishment being backed by ingenious minds tries to drag the proceeding in a long circuitous routes making the State to take a very long arduous journey full of hurdles to achieve the object of enactment. The time frame fixed under the Act to conclude the investigation is very likely to be frustrated by entertaining frivolous and vexatious petitions with interim relief. The time frame fixed under the Act to conclude the investigation is very likely to be frustrated by entertaining frivolous and vexatious petitions with interim relief. In view of the above analysis, I am of the view that the Presiding Officer while passing the impugned order has not committed any illegality and therefore, at this stage, I am not inclined to entertain the prayer made by the learned counsel for the appellant to set aside the impugned order dated 6.10.2015 and to release her seized bank accounts from ad-interim order of attachment. However, after the completion of investigation, if any adverse order is passed against the appellant or her prayer as was made in the petition is not considered, she is at liberty to prefer an appeal under section 13 of the O.P.I.D. Act. Without expressing any opinion on the merits of the petition filed by the appellant before the Designated Court or on the investigation as such which is expected to be conducted by the Presiding Officer in accordance with law after affording reasonable opportunity of hearing to all the concerned parties, the claim made by the appellant shall also be dealt with on completion of investigation at the time of passing the final order. 6. In the result, the appeal is disposed of giving liberty to the appellant to raise all her contentions before the learned Presiding Officer of the Designated Court at appropriate stage of investigation. 7. For the reasons stated above, the Criminal Appeal is disposed of accordingly.