Orissa High Court
Narayan Chandra Nayak vs State Of Odisha ……. Opposite Party on 10 April, 2025
THE HIGH COURT OF ORISSA AT CUTTACK
CRLMC No.3237 of 2017
CRLMC No. 937 of 2018
CRLA No.532 of 2016
(In the matter of applications under Section 482 of the Criminal
Procedure Code, 1973)
CRLMC No.3237 of 2017
Narayan Chandra Nayak ....... Petitioner
-Versus-
State of Odisha ....... Opposite Party
For the Petitioner : Mr. Suresh Chandra Tripathy, Advocate
For the Opposite Party : Mr. Bibekananda Bhuyan,
Senior Advocate for OPID
CRLMC No.937 of 2018
M/s. Umamani Homes
Creation Private Limited &
another ....... Petitioners
-Versus-
State of Odisha &
another ....... Opposite Parties
For the Petitioners : Mr. Suresh Chandra Tripathy, Advocate
For the Opposite Party : Mr. Bibekananda Bhuyan,
Senior Advocate for OPID
Page 1 of 23
CRLA No.532 of 2016
Narayan Chandra Nayak ....... Petitioner/Appellant
-Versus-
State of Odisha &
others ....... Opp. Party(s)/Respondents
For the Petitioner : Mr. Suresh Chandra Tripathy, Advocate
For the Opposite Parties : Mr. Bibekananda Bhuyan,
Senior Advocate for OPID
CORAM:
THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA
--------------------------------------------------------------------------------------
Date of Hearing: 05.02.2025 Date of Judgment: 10.04.2025
---------------------------------------------------------------------------------
S.S. Mishra, J.
CRLMC No.3237 of 2017
The CRLMC No.3237 of 2017 has been filed by Shri Narayan
Chandra Nayak seeking quashing of the entire criminal
proceeding in Bhubaneswar EOW P.S. Case No.18 of 2013
corresponding to C.T. Case No.2133 of 2013 pending in the court
of the learned Presiding Officer, Designated Court under the
OPID Act, Cuttack.
Page 2 of 23
CRLMC No.937 of 2018
The CRLMC No. 937 of 2018 has been filed by M/s. Umamani
Home Creation Private Limited and Mrs. Sunita Narendra Singh
Director of accused M/s. Umamani Homes Creation Private
Limited, seeking quashing of the entire criminal proceeding in
Bhubaneswar EOW P.S. Case No.18 of 2013, corresponding to
C.T. Case No.2133 of 2013 (C.T. Case No.04 of 2015), pending
in the Court of the learned Presiding Officer, Designated Court
under the OPID Act, Cuttack.
CRLA No.532 of 2016
The instant Criminal Appeal has been filed by Shri Narayan
Chandra Nayak, challenging the validity of the judgment dated
08.09.2016 passed by the learned Presiding Officer, Designated
Court under the OPID Act, Cuttack in I.A. No.01 of 2015,
whereby the interim attachment order dated 04.12.2014 passed
by the Government has been confirmed and made absolute.
Since all three petitions are based on the same factual
foundation, therefore, all the petitions have been heard
analogously and are being decided by this common judgment.
2. Common factual foundation is that one M/s. Umamani
Home Creation Pvt. Ltd. was incorporated on 23.05.2008 under
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the Companies Act, 1956, with its registered office in Odisha,
Cuttack. The company was engaged in real estate business
activities and was primarily involved in developing residential
plots and housing projects. The Managing Director of the
company was Narayan Chandra Nayak (the Petitioner), and Sunita
Narendra Singh was one of the Directors. The company advertised
various housing projects, including “Chikun Garden,” “Prava
Paradise,” and “Limoon City House Site Complex,” through
brochures, leaflets, and other promotional materials, attracting a
large number of prospective buyers.
3. The case originated from a complaint filed by one
Sachidananda Mohapatra, who lodged an FIR on 03.06.2013 at
Bhubaneswar Economic Offences Wing (EOW) Police Station.
According to the complainant, he came across advertisements by
M/s. Umamani Home Creation Pvt. Ltd. regarding its housing
project “Chikun Garden” in Bhubaneswar. Persuaded by the
promotional materials and representations made by the accused
persons, he entered into an agreement to purchase 10 residential
plots. On 28.11.2011, he deposited ₹20,00,000 as a booking
amount and received a money receipt bearing No. 3531, signed by
the Petitioner and his wife.
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4. Despite multiple requests, the Petitioner and his company
neither registered the plots in the complainant‟s name nor refunded
the full amount. Initially, Rs.4,00,000/- was refunded in cash, and
the remaining amount was promised through cheques. However,
upon presenting the cheques, the complainant found that the
company had insufficient funds in the bank, leading to their
dishonor. Upon further inquiry, the complainant discovered that
several other buyers were in a similar situation, as they had also
paid significant sums for plots that were never delivered.
5. The Economic Offences Wing (EOW) initiated an
investigation into the allegations, during which several investors
and witnesses were examined. Documents such as agreement
papers, money receipts, brochures, computer hard disks, and other
related records were seized. The investigation revealed that the
Petitioner and his company had entered into multiple agreements
with intending buyers despite knowing that they did not possess
clear, marketable, or transferable ownership rights over the land in
question and therefore, Section 6 of Odisha Protection of Interests
of Depositors Act, 2011 was added besides other panel of offences
in the course of Investigation. Additionally, financial records
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showed that as of 31.03.2013, the company owed
Rs.13,10,89,455/- to 998 investors. It was also found that the
company required approximately 45.83 acres of land to fulfill its
commitments but possessed only 8.82 acres across all its projects.
6. The investigation further revealed that a significant portion
of the funds collected from investors had been diverted to the Odia
film industry and other non-real estate-related activities. A total of
Rs.47,77,960/- was found in 23 bank accounts operated by the
company and its Directors, which were subsequently frozen.
Additionally, the Petitioner had availed a loan of Rs.43,74,700/-
from Odisha Gramya Bank.
7. Based on the findings, the Investigating Officer submitted a
charge sheet on 04.05.2015, implicating the Petitioner and his wife
under Sections 420 (cheating), 406 (criminal breach of trust), 467
(forgery), 468 (forgery for the purpose of cheating), 471 (using
forged documents as genuine), 506 (criminal intimidation) and
120-B (criminal conspiracy) of the Indian Penal Code, along with
Section 6 of the Odisha Protection of Interests of Depositors (in
Financial Establishments) Act, 2011.
8. The learned Presiding Officer of the Designated Court under
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the OPID Act, Cuttack, took cognizance of the offences and
framed charges against the accused. The prosecution examined 19
charge-sheeted witnesses, including 14 investors and the
Investigating Officer, all of whom provided evidence linking the
Petitioner to the alleged fraud. Additionally, the movable and
immovable properties of the Petitioner and the company were
attached under Section 3 of the OPID Act.
9. Heard Mr. Suresh Chandra Tripathy, learned counsel for the
petitioners and Mr. Bibekananda Bhuyan, learned Senior Counsel
for the OPID.
10. Mr. Tripathy, learned counsel for the petitioners submits that
the Odisha Protection of Interests of Depositors (OPID) Act, 2011,
came into force on 17.08.2013, whereas the transactions in
question took place prior to that date. Since the alleged acts of
fraud and misrepresentation occurred before the enactment of the
OPID Act, the Petitioners contended that the law could not be
applied retrospectively to their case. He also submits that any
liability should be examined under the laws applicable at the time
of the transactions, and not under a statute that came into effect
later.
Page 7 of 23
11. It was further submitted by Mr. Tripathy, that M/s.
Umamani Home Creation Pvt. Ltd. was engaged in the real estate
business and was not a “financial establishment” as defined under
Section 2(d) of the O.P.I.D. Act. He contended that the company
did not accept deposits from the public for financial investment
purposes but merely received consideration for the sale of land
under agreements for sale. Since the business involved real estate
transactions and not deposit-taking activities, the provisions of the
OPID Act were not applicable. He further argued that the amount
received from the complainant and other investors did not
constitute a „deposit‟ under Section 2(b) of the OPID Act. The
payments were made under agreements for sale of residential
plots, which were contractual transactions under the Indian
Contract Act, 1872, and not deposit-taking activities. It was
submitted that the complainant had voluntarily entered into
agreements and were well aware that they were making payments
for acquiring immovable property. Therefore, the Petitioners
contended that the case did not attract the provisions of the OPID
Act.
12. Mr. Tripathy, learned counsel for the petitioners further
Page 8 of 23
submitted that the case was purely civil in nature and did not
constitute criminal offences under Sections 420/406/467/468/
471/506/120-B of the I.P.C. It was contended that there was no
dishonest intention (mens rea) from the beginning, as the company
had genuinely intended to provide the plots. The Petitioners
maintained that financial difficulties and legal impediments in land
acquisition had caused the delay in delivering the plots. He further
submitted that the partial refund of Rs.4,00,000/- to the
complainant showed bona fide efforts to resolve the matter.
13. Mr. Tripathy, learned counsel for the Petitioners further
contended that the criminal proceedings were initiated with mala
fide intent to harass him and the charge sheet was filed
mechanically without proper judicial application of mind. Since
the company‟s activities were already regulated under civil and
contractual laws, criminal liability should not be imposed.
Therefore, the Petitioners are seeking quashing of the entire
criminal proceedings under Section 482 CrPC, arguing that
continuation of the case would result in a gross miscarriage of
justice.
14. Mr. Bhuyan, learned Senior Counsel for the OPID on
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contrary submitted that the Petitioners and his associates had
fraudulently collected substantial sums from investors by falsely
promising to provide land. Despite repeated assurances, neither the
land was allotted nor the full amount was refunded, establishing a
prima facie case under the OPID Act and relevant I.P.C.
provisions. He further submitted that the accused had a dishonest
intent from the outset, as they induced investors with misleading
representations while lacking the resources to fulfill their
commitments. The failure to return the full amount despite
persistent demands further substantiated this claim.
15. It was further submitted by the learned counsel for the
Petitioners that engaged in forgery and fraudulent documentation
to deceive investors, attracting offenses under Sections 467, 468,
and 471 of IPC. The investigation revealed bank transactions,
investor complaints, and documentary evidence confirming the
fraudulent nature of the scheme. The prosecution emphasized that
a partial refund of Rs.4,00,000/- could not absolve the Petitioners
to the criminal liability, as the wrongful gain was much higher,
and mere repayment did not negate the fraudulent conduct.
16. Mr. Bhuyan, learned Senior Counsel also defended the
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legality of the investigation and subsequent charge sheet, asserting
that the Economic Offences Wing (EOW) had gathered strong
evidence justifying the prosecution. The attachment of properties
under Section 3 of the OPID Act was necessary to safeguard
investors‟ interest. Given the scale of the fraud, the authorities
acted well within their jurisdiction in prosecuting the Petitioners.
17. In conclusion, learned counsel for the OPID argued that the
petition seeking quashing of proceedings was baseless, as
sufficient material existed for trial. Premature interference by the
court would frustrate the objectives of the OPID Act, which aims
to protect depositors from financial fraud. Therefore, he prayed for
the dismissal of the petition, allowing the trial to proceed in the
interest of justice.
18. Dealing with the contentions with regards to penal offences,
as raised on behalf of the Petitioners, it can be safely held that the
same cannot be entertained at this stage by invoking inherent
jurisdiction under Section 482 of Cr.P.C. as that would amount to
appreciation of evidence in the midst of on-going trial. The
Hon‟ble Apex Court in catena of judgements have time and again
reminded that the inherent jurisdiction of High Courts enshrined
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under Section 482 of Cr.P.C. is to be exercised very sparingly and
should not be invoked for the purpose of venturing into
appreciation and qualitative evaluation of evidence relied upon by
the prosecution, particularly when the trial has proceeded
substantially, as the same would amount to interference in trial
which is in sole domain of the learned trial Court. Abruptly
shutting trial at the belated stage of proceeding is completely
forbidden by law under Section 482 of Cr.P.C.
19. This Court finds merit with the arguments advanced on
behalf of the prosecution that the trial has already proceeded
substantially, with 19 witnesses having been examined including
14 investors and the Investigating Officer and any intervention by
this Court at this stage would not meet the end of justice.
20. Thus, the contentions and the grounds agitated on behalf of
the Petitioners with regard to probative value of the evidence and
allegations made in the charge-sheet cannot be gone into at this
stage by this Court. Hence, this Court will refrain from
commenting upon the qualitative and evidentiary value of the
evidence that has been collected in course of investigation and
leave the same to be tested and evaluated by the learned trial
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Court, independently, in course of the trial.
21. The O.P.I.D. Act has been brought into force on 17.08.2013,
while the F.I.R. in the present case has been lodged on 03.06.2013
with regard to acts of commissions of crime, alleged to have been
committed prior to the date of F.I.R. Therefore, at the first glance,
it seems that, this is a case, where there has been retrospective
invocation of criminal and penal statutes. However, little
scratching on the surface would reveal that this argument is not
valid. The offence punishable under Section 6 of the OPID Act
does not get completed by simply taking deposits from the general
public, rather it is the very beginning and starting point of
commission of the said offence and offence continuous as long as
the investors do not get their promised return. In other words,
offence punishable under Section 6 of the O.P.I.D. Act is a
continuing offence, which continues till the point the investors get
back their promised returns.
22. In the present case, charge-sheet reveals that as far as the
informant is concerned a balance of INR 16,00,000/- is still
outstanding against the accused person after alleged return of cash
of Rs.4,00,000/-. However, the charge-sheet reveals that as on
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31.03.2013, total outstanding dues towards 998 intending buyers
and against the Petitioners is about INR 13,10,89,445/-, which by
any stretch of imagination is a huge amount of public money.
Therefore, contention raised on behalf of the Petitioners that the
OPID Act, despite being penal provisions have been invoked
retrospectively does not hold merit and deserves to be rejected.
Specifically noting the fact that the accused persons have been
alleged to have entered into large number of agreements with the
innocent buyers and collected deposit of more than Fourteen
Crores Rupees from such innocent buyers, despite the fact that the
accused persons did not own sufficient land with legally
marketable ownership or title. Over and above the allegation of
funds having been diverted to business other than real estate is also
to be looked into.
23. The Hon‟ble Apex Court in case of State Of Bihar vs
Deokaran Nenshi, reported in (1972) 2 SCC 890 has lucidly
differentiated the difference between and instantaneous offence in
following terms:-
“A continuing offence is one which is susceptible of
continuance and is distinguishable from the one which is
committed once and for all. It is one of those offences
which arises out of a failure to obey or comply with a rule
or its requirement and which involves a penalty, the
liability for which continues until the rule or its
Page 14 of 23
requirement is obeyed or complied with. On every
occasion that such disobedience or non-compliance,
occurs and recurs, there is the offence committed. The
distinction between the two kinds of offences is between an
act or omission which constitutes an offence once and for
all and an act or omission which continues and therefore.
constitutes a fresh offence every time or occasion on which
it continues. In the case of a continuing offence, there is
thus the ingredient of continuance of the offence which is
absent in the case of an offence which takes place when an
act or omission is committed once and for all.”
A few illustrative cases would help to bring out the
distinction between the two types of offences. In England
the Trade Union Act, 1871 by S.12 provided that if any
officer, member or other person being or representing
himself to be a member of a trade union, by false
representation or imposition obtained possession of any
moneys books etc. of such trade union, or, having the same
in his possession wilfully withheld or fraudulently
misapplied the same, a court of summary jurisdiction
would order such person to be imprisoned. The offence of
withholding the money referred to in this section was’ held
to be a continuing offence, presumably because every day
that the moneys were wilfully withheld an offence within
the meaning of s. 12 was committed. (Best v. Butler and
Fitzgibbon(1)].”
24. Relying upon the aforesaid judgment in the case of
Deokaran Nenshi (supra), the Hon‟ble Supreme Court in the case
of Gokak Patel Volkart Ltd. vs Dundayya Gurushiddaiah
Hiremath and Ors. 1991 (2) SCC 141 has held that as long as the
property of a company is wrongfully retained by the officer or
employee of a company, the offence under Section 630 of the
Companies Act would continue. The relevant portion of the
aforesaid judgment in the case of Gokak Patel Volkart Ltd.
(supra.) is extracted herein below:-
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“Applying the law enunciated above to the provisions
of section 630 of the Companies Act, we are of the view
that the offence under this section is not such as can be
said to have consummated once for all. Wrongful
withholding, or wrongfully obtaining possession and
wrongful application of the company’s property, that is,
for purposes other than those expressed or directed in the
articles of the company and authorised by the Company
Act, cannot be said to be terminated by a single act or fact
but would subsist for the period until the property in the
offender’s possession is delivered up or refunded. It is an
offence committed over a span of time and the last act of
the offence will control the commencement of the period of
limitation and need be alleged. The offence consists of a
course of conduct arising from a singleness of thought,
purpose of refusal to deliver up or refund which may be
deemed a single impulse. Considered from another angle,
it consists of a continuous series of acts which endures
after the period of consummation on refusal to deliver up
or refund the property. It is not an instantaneous offence
and limitation begins with the cessation of the criminal
act, i.e. with the delivering up or refund of the property It
will be a recurring or continuing offence until the
wrongful possession, wrongful withholding or wrongful
application is vacated or put an end to. The offence
continues until the property wrongfully obtained or
wrongfully withheld or knowingly mis-applied is delivered
up or refunded to the company. For failure to do so sub-
section (2) prescribes the punishment. This, in our view, is
sufficient ground for holding that the offence under section
630 of the Companies Act is not one time but a continuing
offence and the period of limitation must be computed
accordingly, and when so done, the instant complaints
could not be said to have been barred by limitation. The
submission that when the first respondent upon his
retirement failed to vacate and deliver possession of the
company’s quarter to the company the offence must be
taken to have been complete, has, therefore, to be
rejected.”
25. The Hon‟ble Supreme Court in their judgment in Bhagirath
Kanoria & Ors. Etc vs State Of M.P. & Ors. Etc., reported in
1984 (4) SCC 222, has specifically pointed out that while deciding
as to whether any offence is a “continuing offence” the object and
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purpose of the provision has to be looked into. In this case, the
Hon‟ble Supreme Court has held that withholding the employer‟s
contribution to the provident fund of the employee, is a continuing
offence as long as the same is withhold by the employer, the
relevant postulation of law is extracted herein below:-
“The question whether a particular offence is a continuing
offence must necessarily depend upon the language of the
statute which creates that offence, the nature of the offence
and, above all, the purpose which is intended to be achieved
by constituting the particular act as an offence. Turning to
the matters before us, the offence of which the appellants are
charged is the failure to pay the employer’s contribution
before the due date. Considering the object and purpose of
this provision, which is to ensure the welfare of workers, we
find it impossible to hold that the offence is not of a
continuing nature. The appellants were unquestionably liable
to pay their contribution to the Provident Fund before the due
date and it was within their power to pay it, as soon after the
due date had expired as they willed. The late payment could
not have absolved them of their original guilt but it would
have snapped the recurrence. Each day that they failed to
comply with the obligation to pay their contribution to the
fund, they committed a fresh offence. It is putting an
incredible premium on lack of concern for the welfare of
workers to hold that the employer who has not
paid contribution or the contribution of the employees to the
Provident Fund can successfully evade the penal
consequences of his act by pleading the law of limitation.
Such offences must be regarded as continuing offences, to
which the law of limitation cannot apply.”
26. In the light of aforesaid authorities of law, rendered by the
Hon‟ble Supreme Court, the purpose and object of the OPID Act
and the intent of the legislature behind the enactment has to be
considered. The object and purpose of the OPID Act is to secure
and protect the interest of innocent depositors, who are
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fraudulently entrapped by financial institutions by making false
promise. In this regard the Section 7 of the OPID Act acquires
significance which makes the offence punishable under Section 6
of the O.P.I.D. Act, compoundable on payment of entire amount
due to the depositors with or without interest. Moreover, under the
scheme of the OPID Act, the purpose of attachment and sale of the
attached property of the accused person is to restore the losses of
the depositors in equitable manner. Conjoint reading of Section 3,
Section 6 and Section 7 of the OPID Act leaves no room for
speculation that purpose and object of the OPID Act is two folds,
first to protect the interest of depositors prior to commission of
offence and second to restore the losses of the depositors at hands
of defaulting institutions in equitable manner.
27. Thus, it is crystal clear that considering the object and
purpose of the OPID Act and the legislative intent behind the
enactment, the offence punishable under Section 6 of the OPID
Act is a continuing offence as long as the defaulter financial
institution is withholding the deposits of the investors.
28. Learned counsel for the Petitioners has relied upon the ratio
of law laid down in the case of Soni Devrajbhai Babubhai V.
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State of Gujurat & Ors, by the Hon‟ble Apex Court in Criminal
Appeal No.533/1991 wherein the Hon‟ble Apex Court has held
that the offence punishable under Section 304-B of I.P.C. cannot
be invoked when the dowry death had occurred, prior to the
insertion of Section 304-B in the statute book and therefore,
presumption against the accused under Section 113-B of the Indian
Evidence Act cannot be drawn. The aforesaid ratio laid down by
the Hon‟ble Apex Court does not have any application in the facts
of the present case, simply for the reason that offence punishable
U/s.304-B of IPC is not a continuing offence and the same is
completed as soon as the deceased takes her last breath, in contrast
offence punishable under Section 6 of the OPID Act continues
until the investor is paid back the promised returns.
29. To buttress his argument, Mr. Tripathy, learned counsel for
the petitioners have further relied upon the judgement of High
Court of Delhi in the case of Mahanivesh oils & food Pvt Ltd V.
Directorate of Enforcement, wherein the learned Single Bench
has held that offence of money laundering cannot penalise the acts
of commission of schedule offence under the PMLA Act prior to
01.07.2005 i.e. when the PMLA was brought in force. The said
relied upon judgement is under challenge before the Division
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Bench of High Court of Delhi, in LPA 144 of 2016 and the learned
Division Bench in the interrogation has passed the following
orders:-
“Re-notify on 16.03.2017 under the same caption for
hearing.
We have observed that while allowing the writ petition
by the order under appeal certain findings were
recorded by the Ld. Single Judge with regard to
enforcement of the Prevention of Money Laundering
Act, 2002 on interpretation of the provisions of the said
Act.
We make it clear that the findings so recorded by the Ld.
Single Judge shall not be construed as conclusive and
binding precedent until further orders”
Thus, the ratio laid down by the learned Single bench does
not enure to the benefit of Petitioners. Moreover, factually the
ratio is very much distinguishable with the facts of the present case
and cannot be applied in facts scenario of present case.
30. Learned counsel for the Petitioners have also contended that
in view of stipulations made in Section 3 of the OPID Act, more
than one complainant is required for the purpose of invocation of
Section 6 of the OPID Act. This contention of the Petitioners is
nothing but a misplaced confidence as during the course of
investigation names of as many as 998 intending buyers, who have
either not been sold the land or have not been returned their
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deposits, have come into light and many of the intending buyers
have also made statements before the I.O. disclosing that how they
have been cheated by the accused persons. Therefore, it is not a
single instance of commission of offence punishable under Section
6 of the OPID Act. Hence, this ground also deserves rejection.
31. The petitioners have challenged the invocation of Section 6
of the OPID Act on the ground that real estate transactions have
already been declared to be beyond the purview of the OPID Act
vide judgement of the coordinate bench of this Court in the case of
Rashmita Patra V. State of Odisha & Ors. CRLMC No.1296 of
2021. However, Mr. Bhuyan on behalf of respondent-State, has
strongly opposed the contention of the petitioners and has relied
upon the judgment of another co-ordinate bench of this Court in
the case of Dusmanta Kumar Muduli v. State of Odisha, to
submit that the judgment passed in the case of Rashmita Patra
(supra) has been held to be per-incuriam. Mr. Bhuyan has
strenuously relied upon the following observation of the co-
ordinate bench in the case of Dusmanta Kumar Muduli (supra)
in support of his contention:-
“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
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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 SLP (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.”
32. In that view of the matter, the ratio laid down in the case
of Rashmita Patra (supra) does not come to rescue the accused/
Petitioners. Hence, the contention raised by the learned counsel for
the Petitioners that real estate transactions are beyond the purview
of the OPID Act is not sustainable.
33. In the light of discussions and analysis made in the
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preceding paragraphs, all the three petitions fail and accordingly,
CRLA No.532 of 2016, CRLMC No.3237 of 2017 and CRLMC
No.937 of 2018 stand dismissed.
(S.S. Mishra)
Judge
The High Court of Orissa, Cuttack
The 10th day of April, 2025/Swarna
Signature Not Verified
Digitally Signed
Signed by: SWARNAPRAVA DASH
Designation: Senior Stenographer
Reason: Authentication
Location: High Court of Orissa
Date: 17-Apr-2025 13:43:09
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