ORDER
1. This petition under [SECTION], [ACT] is directed against an order of a Metropolitan Magistrate dt. September 24, 1985.
2. [ENTITY], the petitioner, is as partner of M/s. [ENTITY]hers. This firm is engaged in the business of export. [ENTITY], [ENTITY] and their father, [ENTITY] are partners of M/s. Orient Enterprises. This firm is carrying on import business. M/s. Orient Enterprises, it is stated, entered into an agreement with M/s. Bentrex and Company, a Singapore firm, for the import of cloves (Zanzibar quality) of the value of Rs. 40 lacs. They lacked finances and consequently entered into an agreement, dt. July 26, 1979, with [ENTITY], Brothers. Under the agreement [ENTITY]hers agreed to open a letter of credit with its bankers at New Delhi for Rs. 40 lacs. They were to be paid 2% commission on the CIF value of the consignment of the value of Rs. 40 lacs. The agreement contained various other terms.
3. Pursuant to this agreement, two insurance covers one for Rs. 44 lacs insuring the risk regarding the consignment in question and the other for Rs. 16 lacs insuring the profit on the said goods were obtained on July 31, 1979 from the Oriental Fire and General Insurance Co. Ltd. (for short 'Insurance Company'). A sum of Rs. 19,378.40 was paid towards premium for the first policy and Rs. 7046.70 for the second. Insured in both the covers was M/s. [ENTITY]hers, New Delhi". Under the terms of these policies consignment was required to be shipped "per any first class and/or approved steamer (particulars of which to be declared hereafter)". [ENTITY]hers opened an irrevocable letter of credit with the Central Bank of India for Rs. 40 lacs on August 10, 1979. This amount was to be paid to M/s. Bentrex and Company at Singapore on shipment of the consignment to India and on presentation of the usual documents.
4. The shipment was effected per "[ENTITY]" on August 30, 1979. The documents were presented to the corresponding bankers of [ENTITY]hers at Singapore on the same day and letter of credit was encashed by Bentrex and Company.
5. '[ENTITY]' was not a first class/approved vessel. Shipment by this vessel, therefore, was not covered under the two insurance policies because of the above stipulation. Apparently, to overcome this difficulty [ENTITY] addressed a letter, dt. September 3, 1979, to the Senior Divisional Manager of the Insurance company. In this letter he referred to his personal discussions in which Senior Divisional Manager had required a payment of Rs. 14,250/- as additional premium to cover the shipment by an overaged ship '[ENTITY]' and sent a cheque for the said amount.
6. "[ENTITY]" sailed from Singapore on September 2, 1979 sank in the Bay of Bengal on September 8, 1979 resulting into total loss. [ENTITY]hers lodged a claim with the insurance company. The company repudiated its liability, inter alia for the reason that the goods had not been shipped by a first class/approved steamer and therefore the consignment was not covered. Mere payment of additional premium, asserted the Insurance company, could not result in the waiver of this important condition. This condition could be waived only on specific conformation in writing and delivery of amended cover notes.
7. On September 27, 1980 [ENTITY] the petitioner filed a complaint under [SECTION], [ACT], against [ENTITY]. [ENTITY], partners of M/s. Orient Enterprises, [ENTITY], [ENTITY], Smt. [ENTITY] and [ENTITY], Senior Divisional Manager, Field Officer/Inspector, agent and cashier respectively of the Insurance company. It was alleged that accused Nos. 4 to 7 entered into a criminal conspiracy with accused Nos. 1 to 3. The object of the conspiracy was to cheat the complainant of Rs. 40 lacs by dishonestly and fraudulently committing the breach of the principal condition of the original insurance policies which required shipment of the consignment per first class and/or approved steamer. In pursuance of this conspiracy [ENTITY], accused No. 6 accepted the proposal of Orient Enterprises to cover and over-aged ship '[ENTITY]' [ENTITY], accused No. 5, abetted [ENTITY] to accept the proposal for insurance; [ENTITY], accused No. 4, fraudulently accepted the additional premium of Rs. 14,250/- and accused No. 7 [ENTITY], accepted the payment of the said amount and issued a receipt. It was averred that the complainant opened the letter of credit on the assurances given by the first three accused that the goods would be shipped by a first class/approved steamer. [ENTITY], accused, had assured that he would be personally present in Singapore and see that a first class ship was engaged for this purpose. The insurance covers also provided the important stipulation of shipment by first class/approved ship. But for these assurances he would not have agreed to open the letter of credit. Even the Central Bank of India would not have agreed to open the letter of credit for Rs. 40/- lacs. The accused however in furtherance of the criminal conspiracy, without the knowledge of the complainant or his firm or the Central Bank of India, managed to commit the breach of the important condition relating to the shipment by a first class/approved steamer. Had this not been done he would have required [ENTITY] as well as Singapore party to ship the goods in a first class steamer and on their failure to do so required his bankers to withhold the amount of letter of credit.
8. All the accused were summoned for trial for offences under [SECTION] and [SECTION], [ACT], by the Metropolitan Magistrate by his order dt. July 21, 1981. [ENTITY], [ENTITY] and [ENTITY], accused Nos. 4, 5 and 7 respectively filed a petition under [SECTION], [ACT], for quashing the said order of the learned Metropolitan Magistrate. This was allowed by this Court on August 9, 1984. The petitioner filed a criminal appeal ([CASE NUMBER]) in the Supreme Court of India which was allowed on January 15, 1985. The order of this Court, quashing the complaint against the three insurance officials, was set aside.
9. The Central Bureau of Investigation (for short 'C.B.I.') on receipt of complaints on November 8, 1979 and November 22, 1979 from the Area Manager, New India Insurance Company Ltd., New Delhi and Manager, Oriental Fire and General Insurance Company New Delhi, respectively registered two cases [SECTION] and [SECTION] for offences under [SECTION], [ACT] and under [SECTION], [ACT], and started investigation. In view of this investigation [ENTITY], accused No. 3, moved an application dt. September 26, 1981 under [SECTION] of the [ACT] for staying the proceedings in the complaint and for calling for a report on the matter from the C.B.I. It was averred that the investigation of C.B.I. was in progress in respect of offences subject-matter of FIR [SECTION]. The said FIR and the present complaint were both under [SECTION], [ACT]. The applicant [ENTITY], was accused in both the cases. The FIR and the complaint both related to the shipment by the ship '[ENTITY]'. In both the cases M/s. Bentrex and Company, Singapore was a connected party and the subject-matter of the inquiry in the complaint and the investigation by the C.B.I. was the same.
10. The complainant, [ENTITY], contested this application. It was pleaded that his complaint was a separate case and had no connection with the case under investigation by C.B.I. C.B.I. case related to piracy and maritime fraud involving 35 to 40 crores of rupees. The accused in that case adopted new technique by arranging cargos that existed only on papers; forging bills of lading, inspection notes certificates etc. faked sinking of ships and collected huge amounts. His case was entirely local. The pith and substance of his case was that the accused in furtherance of a criminal conspiracy managed an additional forged cover, relating to shipment by an obsolete vessel '[ENTITY]' C.B.I. case simply formed the background of his case.
11. This application was dismissed by the learned Metropolitan Magistrate on February 3, 1982.
12. On completion of the investigation in respect of the two cases under [SECTION] and [SECTION] a report under [SECTION], [ACT], dt. July 6, 1984 was filed by the C.B.I. before the Metropolitan Magistrate, New Delhi for taking cognizance of the offence under [SECTION] read with [SECTION], [ACT] and [SECTION] read with [SECTION], alleged to have been committed by the accused [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY] and [ENTITY] and for their trial for the said offences.
13. The prosecution version is that the said accused were parties to a criminal conspiracy with [ENTITY], [ENTITY], [ENTITY], and [ENTITY], and agreed to do or caused to be done illegal acts by illegal means. The objects of the conspiracy was to cheat Indian insurance companies with which the conspirators and the other parties insured their goods intended to be imported from Singapore by lodging false claims with the said insurance companies on the basis of false shipping documents. The second object of the Indian conspirators was to cheat the other export houses who were dishonestly and fraudulently induced to open letters of credit in favor of Singapore exporters. In pursuance of this conspiracy the foreign conspirators - co-conspirators dishonestly and fraudulently managed to get fictitious/false documents showing the purchase, storage, packing, transportation, passage, bills of lading invoices, weight quality and packing certificates of PVC resin, cloves, brass scrap, copper scrap etc. These purchases were only paper transactions. These items were agreed to be imported by the accused from Singapore co-conspirators in two ships m.v. '[ENTITY]' and '[ENTITY]'. The accused dishonestly induced other Indian parties to import these items and paid license fee and insurance premium on their behalf. The letters of credit were opened and insurance cover notes were secured. The accused managed to get ships [ENTITY] and [ENTITY], managed transportation, loading and shipment of false goods like rice bran and water in place of cloves, PVC resin. Brass scrap etc. The ships were scuttled in high seas and the goods were declared to have been lost. Heavy false claims were thereafter lodged on the basis of insurance covers.
14. Learned Metropolitan Magistrate admittedly has taken cognisance of the offences.
15. The petitioner/complainant filed an application under [SECTION], [ACT] for referring the complaint case to the Metropolitan Magistrate trying the C.B.I. case for its trial along with that case. It was stated that the subject-matter of the offences in C.B.I. case included the offence subject-matter of the complaint and therefore the complaint case was required to be tried along with the C.B.I. case as if both the cases were instituted on a police report.
16. This application was dismissed by the learned Metropolitan Magistrate on September 24, 1985 for two reasons (1) that the applications for clubbing the two cases were pending before A.C.M.M. and (2) an order had already been made by his predecessor that the complaint case was not connected with the C.B.I. case, and this matter therefore could, not be reagitated.
17. Feeling aggrieved the complainant has filed this revision petition.
18. [SECTION] of the [ACT] which lays down the procedure to be followed when there is a complaint case and police investigation/police report under [SECTION], [ACT] in respect of the same offence reads as under :-
"210. Procedure to be followed when there is a complaint case and police investigation in respect of the same offence. - (1) When in a case instituted otherwise than on a police report (hereinafter referred to as a complaint case), it is made to appear to the Magistrate, during the course of the inquiry or trial held by him, that an investigation by the police is in progress in relation to the offence which is the subject-matter of the inquiry or trial held by him, the Magistrate shall stay the proceedings, of such inquiry or trial and call for a report on the matter from the police officer conducting the investigation.
(2) If a report is made by the investigating police officer under [SECTION] and on such report cognizance of any offence is taken by the Magistrate against any person who is an accused in the complaint case, the Magistrate shall inquire into or try together the complaint case and the case arising out of the police report as if both the cases were instituted on a police report.
(3) If the police report does not relate to any accused in the complaint case or if the Magistrate does not take cognizance of any offence on the police report, he shall proceed with the inquiry or trial, which was stayed by him, in accordance with the provisions of this Code."
19. This section is new and has been enacted to secure that private complaints do not interfere with the course of justice. The object of including these provisions has been stated by the joint committee as follows :- "If has been brought to the notice of the committee that sometimes when a serious case is under investigation by the police, some of the persons concerned file a complaint and quickly get an order of acquittal either by collusion or otherwise. Thereupon the investigation of the case becomes infructuous leading to miscarriage of justice in some cases. To avoid this, the committee has provided that where a complaint is filed and the Magistrate has information that the police is also investigating the same offence, the Magistrate shall stay the complaint case. If the police report is received in the case, the Magistrate should try together the complaint case and the case arising out of the police report. But if no such report is received, the Magistrate would be free to dispose of the complaint case.
20. If on a private complaint the Magistrate has taken cognizance of an offence and during the course of trial or inquiry in that case he comes to know that police investigation in relation to that offence is in process, he is required under Clause (1) to stay the proceedings in the complaint case and call for police report. This is a preventive measure. It is to avoid as far as possible taking cognizance of the offence again to avoid separate trial for the same offence. Provisions under Clause (2) provide for the trial of the complaint case and the police case together if cognizance of offence is taken on police report as well. The purpose is to avoid the anomalies arising from taking cognizance of the same offence more than once.
21. The conditions for clubbing together the two cases - One based on private complaint and the other on police report, are (a) there must be a case instituted otherwise than on police report pending inquiry or trial; (b) there must be a report made by investigation police office under [SECTION], [ACT] and (c) the Magistrate on such report has taken cognizance of any offence against any person who is an accused in the complaint case.
22. In the present case the petitioner [ENTITY], instituted a private complaint in which the accused have been summoned and it is pending trial. C.B.I. has admittedly submitted a report under [SECTION], [ACT] Thus conditions (a), (b) stand satisfied. It is also not disputed that the Magistrate has taken cognizance of the offences subject-matter of the police report. The contention of the respondents, however is that the offence/offences subject-matter of the private complaint and police report are not the same.
23. In Clause (2) the expression used is "on such report cognizance of any offences taken by the Magistrate". The words "any offence" used in this clause however do not and cannot mean an offence which is altogether different from the offence subject-matter of the private complaint. Clause (1) speaks of an investigation by the police in relation to the offence which is the subject-matter of inquiry or trial of the complaint case. Clause (2) has to be read in continuation with Clause (1). If so read the term "on such report cognizance of any offence is taken" would, in my view, mean taking cognizance of the same offence. The offence subject-matter of the inquiry or trial in the private complaint must also be the offence subject-matter of the police case. This is also clear from the marginal note to [SECTION] which reads "Procedure to be followed when there is a complaint case and police investigation in respect of the same offence." In [PRECEDENT] a learned single Judge of this Court in para 7 of the judgment observed : The respondents contend that he words "any offence" used in sub-section (2) show that the offence cognizance of which is taken on the basis of the police report should be the same which is being enquired into or tried in the complaint case. In my opinion, this contention is not well-founded. The word "any" does not denote or refer to a particular or a specific offence. On the other hand, it suggests that it is sufficient of cognizance of any offence is taken. The Concise Oxford Dictionary gives the meaning of 'any' thus : "one some (no matter which) as have you any wool ? have you any of them ? were any Frenchmen there ?" The Shorter Oxford Dictionary gives its meaning when used as singular equivalent to "a" thus : "no matter which or what ?" when used as plural equivalent to 'some' it means "no matter which if what kind or how many". It, therefore, follows that if on the basis of a police report cognizance of an offence though it may be different from the offence mentioned in the complaint, is taken, the first ingredient of sub-section (2) is satisfied." These observations however cannot be read in isolation. In the earlier part of the judgment it was observed "As long as the facts under investigation by the police include the facts mentioned in the complaint case, then it will make no difference if the police comes to the conclusion that offences not mentioned in the complaint have been committed by the accused. In the instant case bare reading of the police report and the complaint shows that the facts complained of are the same." Thus the facts constituting the offence or offences in the police case must include the facts constituting the offence/offences in the complaint case.
24. [ENTITY], petitioner, who argued the case in person, contended that the offences subject-matter of the complaint case were included in the police report as was clear from the application made by [ENTITY] accused on September, 26, 1981 for staying the proceedings in the complaint case under [SECTION], [ACT] He pointed out several common facts constituting the offence which have been given in a statement filed along with this petition as Annexure J. He urged that the application filed by [ENTITY] was dismissed by the Metropolitan Magistrate on February 3, 1982 because by that time the C.B.I. had not started the investigation qua the offences, subject-matter of his complaint, rather the petitioner was being treated by the C.B.I. as an accused. But now the circumstances had changed. Report submitted by the C.B.I. included the offences subject-matter of the complaint and therefore the learned Metropolitan Magistrate was not justified in dismissing his application for clubbing the two cases together only because of the earlier order dt. February 3, 1982.
25. Mr. [ENTITY], learned counsel for [ENTITY] and [ENTITY] and Mr. [ENTITY], learned counsel appearing for [ENTITY] and [ENTITY], on the other hand, argued that the two cases were destructive of each other. In the police case the accused in that case had entered into a criminal conspiracy to cheat the insurance companies who had lodged the complaints with the C.B.I. and in furtherance of that conspiracy they committed various acts mentioned in the report in detail. In the private complaint case, to the contrary, the officers of insurance company, which for all purposes meant the Insurance company itself, entered into a conspiracy with [ENTITY] and his two sons [ENTITY] and [ENTITY], to cheat the petitioner/complainant and in furtherance of that conspiracy committed certain acts which were not included in the police case. The offence in the private complaint argued the learned counsel related to entirely a separate and distinct conspiracy and such distinctive case could not be clubbed.
26. Mr. [ENTITY], learned counsel appearing for the C.B.I. pointed out that out of the seven accused in the complaint case five accused, namely, [ENTITY], [ENTITY], [ENTITY], [ENTITY] and [ENTITY], were witnesses in the police case. The purpose of getting the two cases clubbed was to deprive the C.B.I. to put these persons in the witness box which may prove disastrous. In view of the facts and circumstances of the case, argued the learned counsel for the C.B.I. the two cases could not be clubbed.
27. The private complaint is in respect of an offence under [SECTION], [ACT]. As noticed above, the complainant entered into an agreement with [ENTITY] and agreed to arrange the necessary letter of credit through his bankers at New Delhi against the import of cloves of CIF value of about Rs. 40 lacks. This import was to be arranged by [ENTITY]. In pursuance of this agreement two insurance policies one covering the goods and the other covering the profit were obtained. The premium of these policies was paid by [ENTITY]. Both these policies required shipment by a first class and/or approved ship. So far there is no grievance. The grievance started when the goods were shipped by an over aged ship "[ENTITY]" and for that reason an additional premium of Rs. 14,250/- was paid to cover the shipping by the said over aged ship which sank in the high seas. The complainant claimed the amount from the insurance company which denied its liability under the said policies taking the plea that they were not bound by the amendment or waiver of the condition requiring the shipment a first class and/or approved ship. The accusations levelled by the complainant in his private complaint were that [ENTITY], [ENTITY], [ENTITY] accused 1 to 3 conspired with [ENTITY], [ENTITY], [ENTITY] and [ENTITY], accused 4 to 7 the object of which was to commit breach of the principal condition it the two insurance policies originally obtained and also to commit the breach of the personal assurances given by the accused that [ENTITY], accused No. 3 would personally see that a first class/approved ship was engaged for the shipment of the goods in question (See paras 11, 12 and 13 of the complaint). In pursuance of this conspiracy [ENTITY], agent of the Insurance company, accepted the proposal of [ENTITY] to cover an over aged ship. [ENTITY], Field Officer of the Insurance company, accused No. 6 abetted [ENTITY] to book the proposal, [ENTITY], Sr. Divisional Manager accused No. 4 accepted additional premium of Rs. 14,250/- and [ENTITY], Cashier, accused No. 7 accepted the payment of the additional premium (see paras 4 to 8 of the complaint). It was further his case that Insurance company was now denying its liability and the conspiracy was patent and obvious. (See para 9). Thus the offence subject-matter of the complaint case consisted of dishonest and fraudulent acts alleged to have been committed by the accused in collusion with each other leading to the deletion or amendment or waiver of the important condition contained in the two insurance policies requiring the shipment of the goods to be imported by a first class and/or approved vessel. This is the substance and essence of the complaint case.
28. What are the acts or omission which constitute the offences subject matter of the police report ? As noticed above, the accused in that case were party to a criminal conspiracy with their foreign co-conspirators and had agreed to do or caused to be done illegal acts by illegal means. The object of that conspiracy was to cheat the insurance companies. The second object was to cheat other export houses. In pursuance of this conspiracy various acts were done. The averments which are relevant for the purpose of this case are contained in para 88 of the charge-sheet which reads as under :-
"88. Investigation has disclosed that the Oriental Fire and General Insurance company decided on 6-9-79 to impose overage extra on the ships [ENTITY] and [ENTITY] as they were very old and not first class vessels but in pursuance of conspiracy Sh. [ENTITY] (A-5) received overage extra in back dates putting date of receipt as 5-9-79 to 11-9-79. On such a short notice only [ENTITY] (A-3) and [ENTITY] (A-4) paid overage extra on behalf of the parties from 7-9-79 and onwards. In pursuance of the conspiracy even after the news of sinking of ship [ENTITY] and [ENTITY]. The overage extra was accepted by Sh. [ENTITY] dishonestly to cause wrongful gain to the parties and wrongful loss to the insurance company. Investigation has disclosed that Sh. [ENTITY] was informed by the Senior Divisional Manager on 7-9-79 about sinking of ship [ENTITY] and suspected sinking of ship [ENTITY], but in pursuance of the conspiracy overage extra was accepted by Sh. [ENTITY] (A-6) dishonestly without giving details and bringing it to the knowledge of the senior officers to take immediate steps about it."
29. On the basis of these averments, however, it cannot be said the offences subject matter of the two cases were common. The allegation of the C.B.I. in this para was that extra premium as accepted by [ENTITY] dishonestly to cause wrongful gain to the parties and wrongful loss to the Insurance company. In other words, the C.B.I. case was that extra premium, resulting into the deletion of the earlier condition requiring shipment by first class ship, was accepted to cause wrongful gains to the parties which would obviously include [ENTITY]hers, i.e. the complainant, also and to cause wrongful loss to the Insurance Company. The case of the petitioner partner of [ENTITY]hers, on the other hand, is that these acts were done to cause wrongful loss to him and gain to Insurance company who denied its liability. Thus the version in the complaint case was contrary to the version in the police case. These were in a way two cross cases. The relevant facts in the two cases being contradictory these could not be clubbed. See [PRECEDENT].
30. It is correct that several facts were common in the two cases but these are not the basic facts constituting the offence in the complaint case. The common facts so far as relevant to the complaint case were either introductory or provided the background and were not the basic facts constituting the offence.
31. As noticed above, five of the accused in the complaint case, namely, [ENTITY], [ENTITY], [ENTITY], [ENTITY] and [ENTITY], are witnesses in the police case. If the two cases were clubbed it is likely to affect the C.B.I. case which relates to a very serious offence. The clubbing of the cases together would deprive the prosecution in the police case of its right to examine the said five witnesses, they being accused in the complaint case. It may even prove fatal. It would amount to interference with the course of justice and would be contrary to the purpose for which [SECTION], [ACT] was enacted.
32. For all these reasons, in my considered opinion these two cases could not be clubbed together. I consequently dismiss this petition.
33. Petition dismissed.