Orissa High Court

Chandrasekhar Pati And Another vs State Of Odisha And Others ....... ... on 10 April, 2025

           THE HIGH COURT OF ORISSA AT CUTTACK

                           CRLMC No.1616 of 2024
(In the matter of an application under Section 482 of the Criminal Procedure Code,1973)


  Chandrasekhar Pati and another                   .......             Petitioners

                                              -Versus-

   State of Odisha and others                      .......             Opposite Parties


          For the Petitioners              : Mr. Ashwini Kumar Das,
                                             Advocate


          For the Opposite Parties : Mr. Bibekananda Bhuyan,
                                     Advocate for OPID

  CORAM:

  THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA

  --------------------------------------------------------------------------------------------

Date of Hearing: 05.11.2024 :: Date of Judgment: 10.04.2025

---------------------------------------------------------------------------------------

S.S. Mishra, J. The present petition has been filed under Section 482

of the Code of Criminal Procedure, 1973 (Cr.P.C.) by the petitioners,

seeking quashing of the criminal proceedings in C.T. Case No.1 of 2019

and I.A. No.3 of 2015 arising out of EOW Bhubaneswar P.S. Case No.03

of 2019, pending before the learned Presiding Officer, Designated Court

(under OPID Act, 2011), Cuttack. The petitioners have been charge-

sheeted under Sections 420/406/467/468/471 and 120-B of the Indian

Penal Code (IPC) read with Section 6 of the Odisha Protection of Interests

of Depositors (OPID) Act, 2011.

2. Earlier a complaint lodged by one Purnachandra Rath, with the

Economic Offences Wing (EOW), Bhubaneswar Police Station registered

as EOW P.S. Case No.15 of 2014 against the petitioners. Following this,

an investigation was carried out and the charge sheet was submitted on

27.11.2015 in the said case.

This case emanates from the informant namely Tarini Ranjan Sahoo

alleging that he had purchased a piece of land admeasuring Ac.0.092 dec.

in Mouza-Ghangapatna, Khandagiri, Bhubaneswar from the petitioners on

27.04.2012 for a consideration of Rs.8.40 lakhs. He had obtained the

Record of Rights (ROR), converted the land for homestead use, and was

regularly paying land revenue. However, as the petitioners allegedly failed

to deliver possession of the land, he lodged a complaint with EOW,

Bhubaneswar.

Since the matter had already been investigated in EOW

Bhubaneswar P.S. Case No.15 of 2014 and charge-sheet have already

been submitted by the Investigating Agency on 27.11.2015, no fresh

F.I.R. was registered on the subsequent complaints. However, the

informant in the present case being dissatisfied with the same and

approached this Court by filing CRLMP No.162 of 2018, which was

disposed of on 19.12.2018 with a direction to register a fresh FIR.

Accordingly, EOW Bhubaneswar P.S. Case No.03 of 2019 was registered,

and the petitioners came to be arrested in connection with the same.

The petitioners challenged the subsequent FIR i.e. EOW P.S. Case

No.3 of 2019 by filing CRLMC No.640 of 2019, where this Court

directed that the charge sheet filed in EOW P.S. Case No.03 of 2019 be

merged with EOW P.S. Case No.15 of 2014 and should be treated as a

supplementary charge sheet. Subsequent thereto, the petitioners were

granted bail. Later, in CRLMC No.1388 of 2021, this Court quashed the

charges framed under Section 6 of the OPID Act but allowed the trial to

proceed for the offence under penal provisions.

3. Aggrieved by the said order, the State filed an appeal before the

Hon'ble Supreme Court in SLP (Crl) No.4129 of 2020. By its judgment

dated 02.04.2024, the Hon'ble Supreme Court held that all complaints are

to be registered as separate cases. Pursuance thereof, separate cases/F.I.R.

are registered for alleged commission of various penal offences including

offence under Section 6 of O.P.I.D. Act. The petitioners are aggrieved,

because of invocation of offences under Section 6 of the O.P.I.D. Act by

the prosecution having been earlier quashed by this Court in so far as the

said offence is concerned. In view thereof, having no other effective

remedy, the petitioners have approached this Court by filing the present

petition seeking quashing of the proceedings vis-à-vis the offence under

Section 6 of the O.P.I.D. Act.

4. Heard Mr. Ashwini Kumar Das, learned Counsel for the petitioners

and Mr. Bibekananda Bhuyan, learned Counsel for the OPID.

5. Learned counsel for the petitioners submitted that the allegations

against the petitioners arise from a real estate transaction, wherein the

informant purchased a plot of land and paid the agreed price. They

argued that this transaction does not amount to receiving a "deposit"

under the Odisha Protection of Interests of Depositors (OPID) Act. Since

there was no promise to return any money with interest or profit, the

OPID Act is not applicable to their case.

6. Learned counsel for the petitioners further contended that the

petitioners' company is engaged solely in real estate business and does

not fall under the category of a "Financial Establishment" as defined

under the OPID Act. Their business activities, as outlined in the

Memorandum of Association, pertain to the sale and purchase of land

and buildings. Since they do not accept deposits from the public for

financial returns, prosecution under the OPID Act is legally

unsustainable.

7. Learned counsel for the petitioners argued that the informant,

having purchased land, falls under the definition of an "Allottee" under

the Real Estate (Regulation and Development) Act, 2016 (RERA), while

petitioners qualify as "Promoters." As the transaction involves real estate

dealings, any grievances should be addressed under the provisions of

RERA, but in no case the OPID Act. The misclassification of a real

estate business as a financial establishment results in an erroneous

application of legal provisions. He has further submitted that invoking

the OPID Act against them is an abuse of legal process and a clear case

of jurisdictional overreach by the investigating agency. He argued that

the case does not involve financial fraud or public investment, which are

the core concerns of the OPID Act. By misusing the provisions of this

Act, the authorities have subjected the petitioners to unnecessary

hardship and legal consequences that are unwarranted in the given

circumstances.

8. In light of the above, the petitioners pray for quashing of the

criminal proceedings as they have been wrongfully implicated under the

OPID Act. Since the allegations do not pertain to a financial scam or

misappropriation of public deposits, continuing the proceedings under

the said Act would be a miscarriage of justice. Therefore, they seek

appropriate relief from this Court to ensure that the case is adjudicated

under the correct legal framework.

9. Mr. Bhuyan, learned counsel for the State-OPID contended that the

petitioners and their associates had fraudulently collected substantial

sums from investors by falsely promising to provide land. Despite

repeated assurances, neither was the land allotted nor was the full amount

refunded, establishing a prima facie case under the OPID Act and

relevant I.P.C. provisions. The prosecution argued that the accused-

petitioners had a dishonest intent from the outset, as they induced

investors with misleading representations while lacking the resources to

fulfill their commitments. Failure to return the full amount despite

persistent demands further substantiated this claim.

10. Learned counsel for the State further contended that the petitioners

were involved in forgery and fraudulent documentation to mislead

investors, thereby attracting offences under Sections 467/468/471 of the

I.P.C. The investigation uncovered bank transactions, complaints from

investors, and substantial documentary evidence confirming the

fraudulent nature of the scheme. In the present case, the petitioners

allegedly collected a sum of Rs.8,40,000/- from the informant, who is

considered a depositor.

11. Furthermore, Mr. Bhuyan, learned counsel for the OPID justified

the legality of the investigation and the subsequent filing of the charge

sheet, emphasizing that the Economic Offences Wing (EOW) had

gathered compelling evidence warranting prosecution. The attachment of

properties under Section 3 of the OPID Act was deemed necessary to

protect the interests of investors. Given the magnitude of the fraud, the

authorities asserted that they acted well within their jurisdiction in

initiating legal proceedings against the petitioners.

12. In conclusion, the learned counsel for the OPID maintained that

the petition seeking quashing of the proceedings was unfounded, as there

was sufficient material to warrant a full trial. Intervening at this stage

would undermine the objectives of the OPID Act, which is designed to

safeguard the depositors from financial fraud. Therefore, learned counsel

for the State urged the Court to dismiss the petition, allowing the trial to

proceed in the interest of justice.

13. Addressing the petitioners' contentions regarding the I.P.C.

offences, it is evident that such arguments cannot be entertained at this

stage by invoking the inherent jurisdiction under Section 482 of Cr.P.C.,

as doing so would amount to an evaluation of evidence during an

ongoing trial. The Hon'ble Supreme Court, through multiple judgments,

has consistently emphasized that the inherent powers of the High Court

under Section 482 of Cr.P.C. must be exercised sparingly and should not

be used to assess or analyze the prosecution's evidence, especially when

the trial has significantly progressed. Since such an intervention would

encroach upon the exclusive jurisdiction of the trial court, prematurely

halting the proceedings at an advanced stage of trial is strictly

impermissible under the law.

14. Thus, the arguments and grounds raised by the petitioners

regarding the probative value of the evidence and the allegations in the

charge sheet cannot be examined by this Court at this stage.

Consequently, this Court will abstain from making any observations on

the qualitative and evidentiary worth of the material gathered during the

investigation, leaving it to be independently assessed and scrutinized by

the learned trial court during the course of the trial.

15. The petitioners have challenged the application of Section 6 of the

OPID Act by relying on the judgment of a coordinate bench of this Court

in Rashmita Patra v. State of Odisha & Ors1, which held that real estate

transactions fall outside the scope of the OPID Act. However, the said

judgment has been deemed per incuriam by the coordinate bench of this

Court in the case of Dusmanta Kumar Muduli v. State of Odisha2, in

which the court held thus:-

"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

2021 SCC OnLine Ori 1641

(2023) ibclaw.in 1118 HC

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."

16. In view of the above, the legal principle enunciated in Rashmita

Patra v. State of Odisha & Ors. (supra) does not provide any relief to the

petitioners. Furthermore, the said judgment has been challenged before

the Hon'ble Supreme Court, which has stayed its operation.

Consequently, the petitioners' contention that real estate transactions do

not fall within the ambit of the OPID Act is untenable and cannot be

sustained. Additionally, such offenders cannot be permitted to shield

themselves behind the veil of real estate companies or exploit procedural

loopholes to evade legal consequences. Allowing such misuse would

undermine the purpose of the OPID Act and embolden fraudulent

practices. The law must take its course to prevent individuals from

repeatedly engaging in such offences under the pretence of legitimate