1 IN THE HIGH COURT OF JDICATURE AT BOMBAY CRIMINAL APPELLTE JURISDICTION CRIMINAL APPLICATION NO. 3518 OF 2009 WITH CRIMINAL WRIT PETITION NO.1905 OF 2009 Marol Doodh Utpadak Welfare Association ...Applicants V. State of Maharashtra and others ...... Respondents Mr. M.V. Holamagi for the Petitioner Mr. Abad Ponda i/b Mr. Jahangir Khajotia for Respondent No.2 Mr. P.P. Pol in-charge P.P. CORAM : SMT. RANJANA DESAI AND A.A. SAYED, JJ. DATE : 13TH AUGUST, 2009. P.C. 1 These matters are not on board. They are taken on board by consent of the parties. 2 The applicant Marole Doodh Patpadhak Welfare Association claims to be an association of investors and depositors who had advanced money to Viravali Kanga and Hutoxi Kanga. (the said Kangas) According to the applicant the said Kangas raised not less than Rs. 30 crores from more than 2000 investors and depositors and they misappropriated the said amount. The GB,CB CID registered a crime against the said Kangas under the 2 Maharashtra Protection of Interest of Depositors in Financial Institutions Act, 1999 (MPID Act for short) being CR.No. 121 of 1999 which was later numbered as Case No. 2 of 2000. 3 On 9-12-2002 the applicant filed Criminal Application No. 4443 of 2002 making the following prayers:- "(a) That this Honourable Court be pleased to direct the reinvestigate the matter and rearrest the respondent Nos. 2 and 3 and recover all the properties which are under their control and belonging to them and their relatives which are also acquired by the funds invested by the Applicants and other investors and depositors and direct to distribute the said amounts received to the applicants, members and other proportionately; (b) That since the respondents failed to dispose off the properties and the applicant be given opportunity to find out viable solution to generate money and direct to hand over the properties to the applicants on such terms and conditions deem fit and proper. (c) Before passing any order by this Honourable Court, the investigating officer and the respondents be directed to remove the seal and to give inspection of the factory premises, machinery, etc. to the applicants forthwith and to pass such directions and orders as deem fit and proper. (d) That pending the hearing and final disposal of the application, the investigation officer and the Trial Court not to dispose of the property without calling open bid and not to proceed with the said sale of the property without giving inspection to the Applicant and without making proper arrangement for the consideration by this Honourable Court; and STAY further steps in the process of sale of the property." 4 On 13-3-2003 a Division Bench of this Court (D.G. Deshpande and Kakade JJ.) allowed the applicant to conduct the business of the 3 said Kangas for one year as there were no buyers for the said property. The applicant was directed to keep accounts. It appears that though the applicant was allowed to run the business for one year it continued to run it after one year. On 5-04-2007 Division Bench presided over by Justice D.G. Deshpande passed the following order:- "Mr. Holmagi agrees to make a statement on oath i.e. on affidavit of his client regarding the income derived from the running of the factory from the date it was handed over to them. The statement should be quarterly statement. i.e. for every three months. If there is any failure or non-compliance of this order the earlier order dated 12-03-2003 will stand automatically vacated." 5 Order passed by the same Division Bench on 20-04-2007 indicates that accounts submitted by the applicant were not signed by any person authorized by the applicant. The Division Bench directed the applicant to file a signed statement of accounts. 6 Thereafter this Court upheld the challenge to the Constitutional validity of the MPID Act. The MPID Act was struck down. A Special Leave petition was filed challenging the said judgment. On 18-11-2005 the Supreme Court issued notices to the respondents. The Supreme Court passed an interim stay order. It was interalia directed that as regards pending cases status quo as on date of order shall be maintained and there shall not be sale of attached properties. 7 On 16-04-2009 Criminal Application No. 4443 of 2002 was finally disposed of by the Division Bench of this Court presided over by Justice Nazki. The Division Bench vacated order dated 12-03-2003 4 by observing that there is no merit in the application. The Division Bench directed that the properties shall remain in the custody of the Court as attached properties and in the meantime if the applicant has any other grievance it may move the Special Court. The Division Bench directed the trial Court to make arrangement for selling the properties. 8 We are informed that the applicants filed Criminal Writ Petition No. 1905 of 2009 on 17-07-2009 requesting the same bench to interalia reconsider/review the matter in view of the Supreme Courts aforementioned order. We find from the farad of that petition that it was not moved for orders. 9 It appears that in the meantime in view of this Court's order dated 16.04.2009 the Economic Offences Wing moved the Special Court for order regarding attachment and sale of the said properties. The applicants Counsel Shri Holmagi appeared before the Special Court and pointed out that in view of the Supreme Court's order mentioned hereinabove properties cannot be sold. However, in view of this Court's order dated 16-04-2009 the Special Court directed sealing and sale of the property by its order dated 28-07-2009. 10 The said order was challenged by the applicant by filing Criminal Application No. 3518 of 2009. Surprisingly it was moved before learned Single Judge. Though the challenge was to the Special Judge's order dated 28-07-2009, in effect the grievance of the applicant was about order dated 16-04-2009 passed by the Bench Presided over by Justice Nazki. The contention of the applicant was that that the Bench 5 overlooked the Supreme Court's order. The applicant could never have raised such a challenge before learned Single Judge. In the circumstances learned Single Judge directed that the matter may be put before the Division Bench with Criminal Writ Petition No. 1905/2009. Status quo order was extended upto 10-08-2009 obviously for the applicant to agitate its grievance before the Division Bench. The application came up before the Division Bench presided over by Justice Nazki on 10-08-2009. On that day following order was passed. "List the matter before same other Bench as it is not possible to hear the matters objectively in view of the conduct of the Counsel appearing for the petitioners." It appears that thereafter the matters have been assigned to this Court. 11 We have heard Mr. Holmagi learned Counsel for the applicants. He reiterated that order dated 16-04-2009 needs to be modified because it is in the teeth of the Supreme Court's order preventing sell of the properties He submitted that the properties could not have been ordered to be sold. 12 We are amazed at this argument. The petition was argued by Mr. Holmagi. He should have pointed out the Supreme Court's order to the Bench presided over by Justice Nazki. He tells us that he was unaware of the Supreme Court's order. Grievance is now made that wrong order is passed and prayer is made that it be set aside. We told Mr. Holmagi that we cannot sit in appeal over coordinate benches order 6 and the applicants remedy is to challenge the said order in the Supreme Court if it so desires. Though writ petition seeking review/modification of order dated 16-04-2009 was filed that petition was not moved before the Bench and instead an application was filed before learned Single Judge. 13 Order dated 16-04-2009 disposes of Criminal Application No. 4443 of 2002 finally. In view of Section 362 of the Criminal Procedure Code this Court has become functus officio. We cannot set aside that order and pass a new order. 14 At this stage Mr. Holmagi states that the applicant will challenge order dated 16-04-2009 before the Supreme Court. He prays that that order may be stayed for six weeks. 15 In the peculiar circumstances of the case, considering the fact that this matter pertains to several depositors and investors, without expressing any opinion on the merits of the case of either side we stay order dated 16-04-2009 passed by Division Bench of this Court (Bilal Nazki & A.R. Joshi, JJ.) in Criminal Application NO. 4443 of 2002 for a period of six weeks. For a period of six week there shall be status quo as of today. We must note that Mr. Pol learned in-charge PP has told us that the properties are already sealed. 16 Application and Writ Petition are disposed of. A.A. SAYED J. SMT. RANJANA DESAI, J 7