AJAY AGGARWAL Vs. UNION OF INDIA

JUDGEMENT

(1.) Special leave granted.

(2.) The appellant, accused No. 2 in P.Ch. (CBI) No. 40/2, dated February 1, 1985, F.I.R. No. RC Nos. 2 to 4/1983 dated March 4,1983 and P.S. SPE/ CBI/CTU(E) I/New Delhi, Dist. Delhi and four other namely, V. P. Anand, Baldev Raj Sharma, Bansi Lal and Ranjit Kumar Marwah are accused in the said case. It is the prosecution case that the accused hatched a conspiracy at Chandigarh to cheat Punjab National Bank for short 'PNB'. In furtherance thereof V. P. Anand floated three New Link Enterprises and M/s. Moonlight Industries in the name of Baldev Raj Sharma, his employee and M/s. Guru Nanak Industries in the name of Bansi Lal, yet another employee. He opened current accounts in their respective names in the P.N.B. at Chandigarh. In furtherance of the conspiracy and in confabulation with V. P. Anand, the appellant, Ajay Aggarwal, a non-resident Indian at Dubai who is running M/s. Sales International, Dubai, agreed to and got credit facility by way of Foreign Letters of Credit Nos. 4069-p, 4070-p and 4084-p, issued pro forma invoices of the said concern and addresses to PNB through Guru Nanak Industries and New Link Enterprises. Ranjit Marwah, the 5th accused, Manager of P.N.B., in-charge of foreign exchange department confabulated with the accused, issued Foreign Letter of Credit in violation of import policy. The Bills of Lading were addressed to PNB at Chandigarh. The cable confirmation of P.N.B. was sent to M /s. Sales International by P.N.B., Chandigarh for confirmation of discrepancy. The appellant had confirmed correctness thereof in the name of V. P. Anand. Placing reliance thereon authority letter was isued by P.N.B., Chandigarh and cables, were sent subsequent thereto to remit the amounts to Emirates National Bank Ltd. through Irving Trust Company. V. P. Anand was present on September 16, 1981 at Dubai and at his instance the Emirates National Bank, Dubai informed the P.N.B., Chandigarh that the discrepancy in the document adaptable to V.P. Anand and claimed to have inspected the goods on board in vessel, M. V. Atefeh. On receipt of the information from the Sales International, Dubai, full amount in US Dollars 4,39,200 was credited against all the three Letters of Credit on discount basis. During investigation it was found that Vessel M. V. Atefeh was a non-existent one and three Foreign Letters of Credit were fabricated on the basis of false and forged shipping documents submitted by the appellant, Ajay Aggarwal to the Emirates National Bank, Dubai. Thus the P.N.B. was cheated of an amount of Rupees 40,30,329/-. Accordingly charge-sheet was laid against the appellant and others for offences punishable under Sections 120 B read with Sections 420 (Cheating), 468 (Forgery) and 471 using as genuine (forged documents), I. P.C. The Chief Judicial Magistrate, Chandigarh by his order dated January 11, 1990 discharged all the accused of the offences on the ground that conspiracy and the acts done in furtherance thereof had taken place outside India and, therefore the sanction under Section 188, Criminal Procedure Code, 1973 for short the 'Code' is mandatory. Since no such sanction was produced the prosecution is not maintainable. On revision, the High Court of Punjab and Haryana in Criminal Revision No. 443 of .1990 by order dated June 3, 1992 held, that the conspiracy had taken place at Chandigarh. The overt acts committed in pursuance of that conspiracy at Dubai constituted offences under Sections 420, 467 and 471, I.P.C., are all triable at Chandigarh without previous sanction of the Central Govt. The order of discharge, therefore, was set aside and the appellant and other accused were directed to be present through their counsel in person in the trial Court on July 17, 1992 to enable the Court to take further proceedings in accordance with law. This appeal has been filed by the appellant alone under Art. 136 of the Constitution.

(3.) Sri Chidambaram, learned Senior Counsel contended that the appellant was not a privy to the conspiracy. He was an N.R.I. businessman at Dubai. He never visited Chandigarh. Even assuming for the sake of argument that conspiracy had taken place and all acts committed in furtherance thereof were a1so at Dubai. The transaction through bank is only bank to bank transaction. Even assuming that some of the offences were committed in India since as per the prosecution case itself that part of the conspiracy and related offences were committed at Dubai, by operation of Section 188 read with the proviso thereto with a non obstante clause, absence of sanction by the Central Govt. knocks of the bottom of the jurisdiction of the courts in India to take cognizance of or to enquire into or try the accused. He placed strong reliance on T. Fakhrulla Khan v. Emperor, AIR 1935 Mad 326. In Re M. L. Verghes, AIR 1947 Mad 352; Kailash Sharma v. State, 1973 Cri LJ 1021 (Delhi) and K. Satwant Singh v. State of Punjab, (1960) 2 SCR 89: (AIR 1960 SC 266). Sri Goswami, the learned Senior Counsel for the respondents contended that the conspiracy to cheat PNB was hatched at Chandigarh. All the accused committed overt acts in furtherance of the conspiracy at Chandigarh and, therefore, the sanction of the Central Govt. is not necessary. The High Court had rightly recorded those findings. There is no need to obtain sanction under S. 188 of the Code.