VIJAY KUMAR MALLIK Vs. STATE OF JHARKHAND

JUDGEMENT

(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.

(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.