A E PINTO Vs. C B I

JUDGEMENT

(1.) This order will dispose of two petitions filed by the- petitioners under Article 227 of the Constitution of India and 482 of the Code of Criminal Procedure, 1973 (for short, Cr.P.C.), praying for setting aside the order dated 30.9.2000, passed by the Special Judge, allowing application of the CBI for clubbing the case of A.E. Pinto with the main case and holding that the joint trial would be justified. Briefly stated the allegations are : that the petitioners Tuncay Alankus, Chairman & Chief Executive Officer and Cihan Karanci, Vice-president of M/s.Karsan Ltd., in conspiracy with other accused persons defrauded National Fertilizers Limited, Delhi (for short, NFL), to the extent of US $ 38,000,000/- (then equivalent to Rs.133.0 crores), in the matter of supply of 2,00,000 MT of urea to the NFL @ US $ 190 PMT (Cost, Insurance and Freight basis) against 100% cash pro-payment, which was to be guaranteed by the Insurance Policy also covering M/s.Karsan's risk of non-performance and non-delivery. They obtained 1% of the contract value of US $ 380,000 on 2.11.95, for paying premium towards the above Insurance policy. The contract was signed on 9.11.95 and they were required to obtain remaining amount of US $ 37.62 million only after the submission of the said Insurance Policy. However, the petitioners in pursuance of a criminal conspiracy dishonestly submitted only a cover note dated 6.11.95 of NHK Marine, London and obtained US $ 37.62 million on 14.11.95 and the same was credited to the account of M/s.Karsan, with Pictet Bank, Geneva, Switzerland on 30.11.95. Thereafter the amount was misappropriated and shared amongst various conspirators and their associates. The said cover note dated 6.11.95, covered only marine perils and it did not counter guarantee 100% cash pro-payment and also did not cover risks of M/s.Karsan's non-performance! and non-delivery. After the conspiracy was exposed, the case was registered. Petitioners did not join investigations. Tuncay Alankus and Cihan Karanci were arrested in Switzerland on. 16.9.96 and could be extradited to India on 3.10.1997 only after all their appeals opposing extradition were dismissed. After investigation charge-sheet was filed on 26-12.97, against nine accused persons. Including petitioners- Name of A-E.Pinto was shown at serial number nine, as till then he could not be extradited. The cognizance of the offence was taken by the Special Judge on 7.1.98. It was specifically stated that A.E.Pinto was one of the conspirators; and he unauthorizedly signed the contract. There is material on record showing his Involvement- He got his share of US $ 1.20 million out of the defrauded amount of US $ 38 million- He was arrested in London on 11.12.97. Charges on the basis of charge-sheet were framed against the remaining accused persons. Some of the accused persons filed revision petitions, against the order of charge.

(2.) The trial started and 30 witnesses were examined. A.E.Pinto could be extradited to India only on 24.8.2000, and after his arrest supplementary challan was also filed- On 31.8.2000, CBI filed an application praying that the case of A.E.Pinto, be clubbed with the main case, to avoid duplicacy in the recording of evidence. Accused persons namely, C.K. Ramakrishnan, D.S.Kanwar and P.C. Yadav, did not object to the clubbing of the cases. However, other accused persons including O.Malesham Goud, M.Sambha Siva Rao and B.anjiva Rao filed the reply opposing the prayer for clubbing. Learned trial court vide impugned order allowed the application of the CBI. This order is under challenge.

(3.) I have heard learned counsel for parties and have been taken through the record. Learned counsel for petitioners argued that there is no provision in the Cr.P.C.. for clubbing the case. There has to be separate trial for each offence. He argued that petitioners have not been extradited and charged for the offence punishable under the Prevention of Corruption Act, 1988. Thirty witnesses were already examined when trial of A.E.Pinto, was clubbed- The clubbing would prejudice them during the trial and their right for speedy trial is violated. Sh-R.N. Trivedi, learned ASG, appearing on behalf of CBI, argued that charges against the accused persons (Tuncay Alankus and Cihan Karanci and six others), were framed. They filed revisions (Crl..R.No.109/99) against the order framing charge. They had also challenged the jurisdiction of the Special Judge, to try the offences punishable under Sections 420/409/120-B IPC together with the offences punishable under the Prevention of Corruption Act, This contention was rejected and it was held: