M.KARPAGA VINAYAGAM, J. - (1.) THESE two appeals are filed against the order dated 13.10.2004 passed by the Special Judge making ad interim order of attachment absolute and for setting aside the order dated 18.10.2004 and 14.12.2004 appointing Receiver under Section 9(2) of the Ordinance, respectively.
(2.) THE short facts are as follows: In pursuance of the orders of the High Court and the Supreme Court, C.B.I, Patna, took up investigation in Fodder Scam cases on the allegation that one Gauri Shankar Prasad in conspiracy with the appellants defrauded the Government to the extent of several crores of rupees during the period 1995 to 1996. During the course of investigation, it transpired that fraud was the outcome of the conspiracy in which suppliers and officials of the Animal Husbandry Department connived with one another. The first appellant, Vijay Kumar Mallik, is also involved in R.C Case No. 28A/96, R.C Case No. 32A/96 and R.C Case No. 33A/96. Investigation conducted in these cases revealed that the first appellant, Vijay Kumar Mallik, acquired huge moveable and immoveable properties in his name and also in the names of his wife, children and others, the appellants. Since it is apprehended that first appellant, Vijay Kumar Mallik, and his relations will resort to withdrawing the amount by disposing of those moveable and immoveable assets, C.B.I filed an application under Section 3 of the Criminal Law (Amendment) Ordinance, 1944, praying therein for passing an ad interim order of attachment in respect of the properties detailed in Annexure - 2 and for making the order absolute, after enquiry. This application was filed on 29.8.1996 along with other documents. On the basis of the materials available on record, the court below passed an ad interim order of attachment on 30.8.1996 under Section 3 the Criminal Law (Amendment) Ordinance, 1944. The ad interim order of attachment was made absolute on 27.4.2001, after observing other formalities regarding enquiry. Thereafter the order appointing Receiver was also passed on 10.7.2001. Both the orders were earlier challenged in High Court in Cr. Appeal No. 388 and 343 of 2001. This Court ultimately, after hearing the parties, passed an order on 26.3.2003 remitting the matter to the court below with a direction to pass an order in accordance with law after hearing both the parties. Accordingly, notice was issued to the appellants by the court below. On receipt of the notices, they filed their show cause raising various points. In support of their show cause, the appellant examined four witnesses. Various documents were also filed in support of their plea showing that properties were purchased out of their own source of income. On behalf of C.B.I, two witnesses were examined. Ultimately, the court below passed an order dated 13.10.2004 allowing the application under Section 3 of the Criminal Law (Amendment) Ordinance, 1944, and making the interim order of attachment dated 30.8.1996 absolute. Consequently, on the application of C.B.I, orders were passed on 18.10.2004 and 14.12.2004 appointing Receiver under Section 9(2) of the said Ordinance. Challenging these orders, these two appeals namely Cr. Appeal No. 1931 of 2004 and Cr. Appeal No. 694 of 2005 have been filed. Several grounds have been urged by the counsel for the appellants. The gist of the contentions urged by the counsel for the appellants could be summarized as follows: Some of the opposite parties carry on business outside the jurisdiction of Ranchi court. Similarly Scheduled II properties are situated outside the jurisdiction. The properties in the schedule were purchased by the appellants out of their own source of income. The appellant Nos. 2 and 3 have got separate business and they are income tax assessees. Some of the properties were purchased long back even much before the commencement of supply by the first appellant. The witnesses have given explanation as to how those properties are purchased in their names. Therefore, it cannot be said that they are mere name -lenders. The application under Section 3 is not maintainable since the application was not in affidavited form. The appellants were not residing in Ranchi. They are residents of New Delhi. So Ranchi court had no jurisdiction.
(3.) IN reply to the above submissions, it is contended by the counsel for respondent C.B.I that appellant has already been convicted by the Special Judge in R.C Case No. 19(A)/1996, vide judgment dated 12.4.2006 and while convicting, learned Special Judge has gone into the case of the prosecution and of defence and has come to the conclusive finding that the appellant being the accused was doing business as Proprietor of Mallik Enterprises in the court's jurisdiction and received a sum of Rs. 60,40,320/ - from DAHO, Chaibasa and the said amount was deposited in the Bank at New Delhi. He has been convicted for various offences which prescribe for undergoing several years of imprisonment. With regard to the contention that the application dated 29.8.1996 as filed by C.B.I was not in the form of affidavit as required under Section 13(3) of the Ordinance, it is submitted that Hon'ble Supreme Court in the judgment as reported in : (1996)6SCC660 (United Bank of India v. Naresh Kumar and Ors.) has held that substantive right should not be allowed to be defeated on technical grounds on the basis of procedural error.;