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2016 DIGILAW 753 (ORI)

Gayadhar Jena v. State of Odisha

2016-09-07

B.K.NAYAK

body2016
JUDGMENT B.K.NAYAK, J. - In this application under Section 482, Cr.P.C., the petitioner challenges the order dated 13.07.2015 passed by the learned Designated Court under OPID Act-cum-1st. Additional District & Sessions Judge, Cuttack in C.T. Case No.10 of 2015 (arising out of EOW Bhubaneswar P.S. Case No.9 dated 15.03.2015) taking cognizance of offences under Sections 467/468/471/406/420 of the I.P.C. read with Section 6 of the Orissa Protection of Interest of Depositors (in Financial Establishments) Act, 2011 against the petitioners. 2.During hearing the learned Counsel for the petitioner to confined his argument only with respect to cognizance under Section 6 of the Orissa Prevention of Interest of Depositors (in Financial Establishments) Act, 2011 (in short, ‘the OPID Act’). 3. The case arose on the basis of F.I.R. lodged by the Senior Professor and Dean, Indian Institute of Technology (IFT) Bhubaneswar alleging that the petitioner runs a Firm in the name and style M/s. Sarala Realcon Pvt. Ltd. and during the year 2010-11, he took an advance of Rs.4.00 lakh from the informant and entered into an agreement to provide a plot of land measuring 2000 sq. ft. having sub plot No.757 in his so-called project, namely, Sarala Nagar Phase-IX, Satyabhamapur, Bhubaneswar, in the name of the wife of the informant. Similarly, the petitioner also entered into an agreement with the brother-in-law of the informant to provide land measuring 1500 sq. ft to him in the same project area and received advance consideration of Rs.3.00 lakh, but even after the expiry of the agreement period, he neither executed any sale deed nor returned the consideration money received from the informant and his brother-in-law, even though they visited the office of the petitioner time and again over a period of four years. It appears that the petitioner did not have any land to be sold to the informant and his brother-in-law within the so-called project area. 4.Upon investigation, the Police submitted charge-sheet against the petitioner, keeping the investigation open under Section 173 (8), Cr.P.C. On consideration of charge-sheet, the learned Designated Court under OPID Act (1st. Additional District & Sessions Judge), Cuttack has passed the impugned order of congnizance. 4.Upon investigation, the Police submitted charge-sheet against the petitioner, keeping the investigation open under Section 173 (8), Cr.P.C. On consideration of charge-sheet, the learned Designated Court under OPID Act (1st. Additional District & Sessions Judge), Cuttack has passed the impugned order of congnizance. 5.In assailing the order of cognizance of offence under Section 6 of the OPID Act, the learned Counsel for the petitioner submitted that the OPID Act, 2011 came into force on 19.08.2013 and that the alleged offence under Section 6 of the Act, i.e., the failure of the petitioner to render the service ( to sell the land) as per the agreement executed in favour of the informant within the period stipulated having taken place prior to coming into force of the OPID Act, the said provision cannot have retrospective effect and also it would be violative of the provision of Article-20 of the Constitution of India. It is, therefore, his submission that since the petitioner cannot be held to be penally liable for an act when the OPID Act was not in force, the order taking cognizance of the offence under Section 6 of the Act is illegal and unsustainable. In support of his contention, the learned Counsel for the petitioner has relied upon some decisions of the Apex Court. Learned State Counsel, on the other hand, submits that the OPID Act has no retrospective application. But the offence alleged being in the nature of omission and it being continuing one, Article-20 (1) of the Constitution does not apply. 6.Section 6 of the OPID Act provides as under : “6. Default in repayment of deposits and interests honouring the commitment. - 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 falls 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.” 7.Article 20 of the Constitution of India runs as under : “20. Protection in respect of conviction for offences: (1) No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence. (2) No person shall be prosecuted and punished for the same offence more than once. (3)No person accused of any offence shall be compelled to be a witness against himself.” 8.Clause (1) of Article 20 of the Constitution in its broad import has been enacted to prohibit conviction and sentence under ‘ex post facto law. 9.In the case Soni Devrajbhai Babubhai v. State of Gujurat and others : AIR 1991 SC 2173 , the Hon’ble Apex Court held as follows: “9.... ...... Section 304-B is a substantive provision creating a new offence and not merely a provision effecting a change in procedure for trial of a pre-existing substantive offence. Acceptance of the appellant’s contention would amount to holding that the respondents can be tried and punished for the offence of dowry death provided in Section 304-B of the Indian Penal Code with the minimum sentence of seven years’ imprisonment for an act done by them prior to creation of the new offence of dowry death. In our opinion, this would clearly deny to them the protection afforded by Cl. (1) of Art. 20 of the Constitution.......)” 10.In the case of State of Maharashtra v. Kaliar Koil Subramaniam Ramaswamy : AIR 1977 SC 2091 , the accused was found in possession of disproportionate assets by the search, which was made on 17.5.1964, when possession of disproportionate was not an offence. While the matter was still under investigation, the Prevention of Corruption Act, 1947 was amended by Act 40 of 1964 and clause (e) was added to sub-Section (1) of Section 5 of the Act. The respondent in that case was convicted on trial for having committed offence, inter alia under clause (e) of sub-Section (1) of Section 5 of the P.C. Act, but in appeal he was acquitted of the said charge by the High Court in an appeal by the State, the Hon’ble Supreme Court held as follows “6. ......... The respondent in that case was convicted on trial for having committed offence, inter alia under clause (e) of sub-Section (1) of Section 5 of the P.C. Act, but in appeal he was acquitted of the said charge by the High Court in an appeal by the State, the Hon’ble Supreme Court held as follows “6. ......... So when there was no law in force at the time when the accused was found in possession of disproportionate assets by the search which was made on May 17, 1964, under which his possession could be said to constitute an offence, he was entitled to the protection of Cl. (1) of Article 20 and it was not permissible for the trial Court to convict him of an offence under Cl. (e) of sub-Section (1) of Section 5 as no such clause was in existence at the relevant time. The accused could not therefore be said to have committed an offence under Clause (e) of sub-Section(1) of Section 5 read with sub-Section (2) of that Section.” 11.However, where the act constituting an offence is of a continuous nature, it can be punished under a law passed during the continuance of the act, although at the commencement of the act, it was not punishable and was not an offence. This is more so where the offence consists of not doing a positive act, but of omission to do something which the offender is enjoined under law or otherwise legally bound to do. 12.In the case of Mohan Lal v.State of Rajasthan : (2015) 6 SCC 222 , it has been held by the Hon’ble Supreme Court that even if offence of possession of contraband opium was committed prior to commencement of NDPS Act when Section 9 of Opium Act was in operation, if opium remained in possession of accused on date of coming into force of NDPS Act, without anything to show that he was divested of it in meanwhile, possession being in continuum, Section 18 of the NDPS Act, instead of Section 9 of Opium Act would be applicable. In such situation, no question of retrospective imposition of higher punishment under Section 18 of the NDPS Act, instead of lower punishment under Section 9 of Opium Act, in violation of Article 20 (1) of the Constitution arises. In such situation, no question of retrospective imposition of higher punishment under Section 18 of the NDPS Act, instead of lower punishment under Section 9 of Opium Act, in violation of Article 20 (1) of the Constitution arises. It has also further held that Article 20 (1) of the Constitution of India prohibits conviction or sentence under an ‘ex post facto’ law and not the trial of offence thereof. 13.In the case in hand the service (execution of sale deed) in favour of the informant by the petitioner was agreed to be effected by a particular date. But by such date, the execution of sale deed was not done. Therefore though on the expiry of the date for omission/failure in rendering the service by the petitioner, no offence was committed, but the omission having continued at every moment till the date of OPID Act came into force, the bar under Article 20 (1) of the Constitution of India does not apply. Therefore, taking cognizance under Section 6 of the OPID Act by the impugned order for petitioner’s failure to execute the sale deed even on the date of coming into force of the penal provision of Section 6 of the Act cannot be said to be bad in law. Thus, I find no merit in this case, which is accordingly dismissed. Petition dismissed.