Crl.R.P. No.126/2005 Page 1 of 33 * IN THE HIGH COURT OF DELHI AT NEW DELHI + Criminal Revision Petition No. 126/2005 Reserved on: September 04, 2009 Date of Decision: June 04, 2010 MR. TUNCAY ALANKUS …..Petitioner Through: Mr.Amit Sibbal, Mr.Mahmood Alam and Mr.Vinay P. Tripathi, Advocates. VERSUS THE CENTRAL BUREAU OF INVESTIGATION …..Respondent Through: Mr.Sanjay Jain, Senior Advocate with Mr.V.N.Ojha and Ms.Ruchi Jain, Advocates. AND Criminal Misc. Petition No. 1347/2008 TUNCAY ALANKUS & ANR. …..Petitioners Through: Mr.Amit Sibbal, Mr.Mahmood Alam and Mr.Vinay P. Tripathi, Advocates. VERSUS CENTRAL BUREAU OF INVESTIGATION …..Respondent Through: Mr.Sanjay Jain, Senior Advocate with Mr.V.N.Ojha and Ms.Ruchi Jain, Advocates. % CORAM: HON'BLE MS. JUSTICE ARUNA SURESH (1) Whether reporters of local paper may be allowed to see the judgment? Crl.R.P. No.126/2005 Page 2 of 33 (2) To be referred to the reporter or not? Yes (3) Whether the judgment should be reported in the Digest? Yes J U D G M E N T ARUNA SURESH, J. 1. This revision petition has been filed by Tuncay Alankus, accused No.4 in case „CBI Vs. C. K. Ramakrishnan & Others‟, challenging the order of the Special Judge dated 11th October 2004, whereby the Learned Judge has restricted number of witnesses to be examined by the petitioner in his defence. Petitioner has also challenged the order dated 17th November 2004, whereby the Learned Judge, while allowing witnesses to be examined by video conferencing, directed the petitioner to bear the cost thereof. Impugned is also an order dated 6th December 2004, whereby the Court had fixed the time schedule for examination of the witnesses, failing which the defence evidence was to stand closed. Another order dated 8th February, 2005 has also been impugned by the petitioner. 2. It is noted that before filing the revision petition, petitioner had challenged the impugned orders of the Trial Court in a writ. The said writ petition was disposed of with observations that petitioner should have challenged the impugned orders in revision and not in a writ petition. 3. Revision petition was allowed by this Court vide its order Crl.R.P. No.126/2005 Page 3 of 33 dated 14th July, 2005. The said order was challenged by the Central Bureau of Investigation (for short „CBI‟) by way of a criminal appeal being Appeal No.9250 of 2006 in the Supreme Court. Appeal was allowed by the Supreme Court vide its order dated 14th December, 2006 and the order of this Court dated 14th July 2005 was set aside. As regards question of examination of witnesses by video conferencing at the cost of the petitioner, it was left open to be decided by this Court. 4. In brief, case of the prosecution is that Karsan Danismanalik Turzim Sanayi Ticaret Ltd. STI. (for short „Karsan‟), a company incorporated under the laws of Turkey had entered into a contract with National Fertilizers Limited (for short „NFL‟) on 9th November, 1995 for supply of 2,00,000/- metric tons of urea. An amount of US$ 38 lacs was remitted to Pamuk Bank TAS, Ankara as per Karsan‟s instructions for payment of insurance premium. The said amount was not accepted by the Bank. An amount of US$ 37.62 million towards the balance consideration was remitted to Karsan‟s account by State Bank of India on the instructions of NFL on 29th November, 1995. The said amount was credited to the account of Karsan in Piceet Bank, Geneva on 29th November, 1995. Petitioner is the chairman of Karsan. Allegations are that Karsan dishonestly induced NFL to pay the amount and thus committed offences under Sections 120-B/409 and 420 of the Indian Penal Code (hereinafter Crl.R.P. No.126/2005 Page 4 of 33 referred to as „IPC‟). Petitioner was extradited to India from Switzerland on 3rd October, 1997 to face trial in the proceedings. A charge sheet was filed. The Special Judge framed charges on 1st December, 1998. Petitioner was enlarged on bail by an order dated 7th June, 2003. 5. After prosecution evidence was concluded, petitioner along with other co-accused persons was examined under Section 313 of the Criminal Procedure Code (hereinafter referred to as „Cr.P.C.‟). Petitioner filed a list of sixty three proposed defence witnesses. Vide order dated 11th December 2004, Special Judge permitted examination of seven defence witnesses within the said list. Since some of the witnesses were foreigners and beyond the reach of the Court, the Special Judge also recorded that witnesses permitted to be examined, be produced by the petitioner on his own expense or alternatively examine them through video conferencing. 6. By order dated 17th November 2004, the Special Judge disposed of an application filed by the petitioner seeking permission to examine the said seven witnesses on commission. While doing so, the Trial Court referred to Section 243(3) Cr.P.C., which permitted the Court to require the accused to deposit reasonable expenses incurred by defence witnesses for attending the proceedings. Vide order dated 6th December 2004, request of the petitioner seeking extension of time for examination of witnesses beyond the time granted, was declined. Crl.R.P. No.126/2005 Page 5 of 33 7. In this revision petition, petitioner has sought examination of twenty one additional witnesses, besides seven witnesses already permitted by the Trial Court. Out of the said seven witnesses, one witness has already been examined by the Trial Court and the other six witnesses have been dropped. Out of twenty one additional witnesses, DW-1, Representative of M/s GEO Chem, Laboratories (P) Ltd. has already been examined by the Trial Court on 9th September, 2005 as DW-5. Similarly additional DW-7, Mr. Sirzat Yahyayef, Inter Invest Bank, Republic of Kazakhstan was examined by the Trial Court on 30th/31st August, 2005 as DW-4. Additional DW-16, Mr.Valadimir S.V. Stepushikin expired on 3rd October, 2005. Name of additional DW-11, Mr.Alexander Miailov Republic of Russia Gor, Mosvewy, UL, Chernishivskog also finds mention at serial number 15. Therefore, name of the witness appearing at serial numbers 11 and 15 is the same. Hence, this list is now confined to remaining seventeen DWs, whom the Trial Court did not find relevant for just and proper decision of the case. 8. Foremost question to be decided by the Trial Court is whether Karsan dishonestly made a promise which they never intended to fulfill. In other words, whether they entered into an agreement with NFL with a dishonest intention not to perform the contract and at the same time, cheated NFL of the money. Such an intention can be gathered from attending circumstances. Therefore, only such witnesses can be considered Crl.R.P. No.126/2005 Page 6 of 33 as relevant and permitted to be examined, who can throw some light on the intention of the petitioner at the time of execution of the contract keeping in mind that petitioner cannot be allowed to prolong the trial without any meaningful purpose. 9. Mr. Amit Sibbal, learned counsel for the petitioner has submitted that for an offence of cheating and criminal breach of trust, fraudulent and dishonest intention must be shown to be existing from the very beginning of the transaction. Mere failure to keep the promise at a subsequent stage by the defaulting party does not make out an offence of cheating. Substance of the complaint has to be seen. He further submitted that breach of contract for supply of urea allegedly by the petitioner is a civil breach of contract and the only defence available to the petitioner is to prove that he had no fraudulent or dishonest intention to cheat the Government at the time of execution of the contract and for that purpose he is entitled to examine witnesses to prove that mensrea was missing in the case when the contract was executed between Karsan and NFL. Petitioner is entitled to examine witnesses to demolish the case of the prosecution that petitioner had a dishonest intention in not supplying urea in time and for that purpose subsequent events which took place become relevant and petitioner is within his rights to examine the witnesses to prove his bona fides. It is emphasized that the Trial Court under the circumstances went Crl.R.P. No.126/2005 Page 7 of 33 wrong in declining the petitioner to examine other witnesses named in the list of witnesses filed by the petitioner, except seven. 10. He has made it clear that by way of this revision petition, he seeks permission to examine only twenty one additional witnesses. He has referred to ‘Anil Mahajan Vs. Bhor Industries Ltd. & Anr.’ (2005) 10 SCC 228. In the said case, a complaint was filed by the respondent invoking Sections 420, 415 and 418 IPC. Magistrate issued process against the appellant which was challenged by him. While allowing the appeal, Supreme Court considered the allegations made by the complainant in the complaint to reach to a conclusion, if any offence under Sections 420, 415 and 418 IPC was made out justifying summoning of the appellant. This judgment, therefore, is not of any help to the petitioner as charges in the case have already been framed and prosecution has closed its evidence. The case is at the stage of recording of defence evidence. It is for the Trial Court to assess the evidence of the parties after trial is complete and decide if or not petitioner is guilty of having committed any of the offences charged for. 11. Section 311 Cr.P.C. confers power on the Court to elicit all necessary materials by playing an active role in the evidence collecting process. The object of the provision as a whole is to do justice not only from the point of view of the accused and the prosecution but also justice Crl.R.P. No.126/2005 Page 8 of 33 from the point of view of orderly society. Court is required to monitor the proceedings in aid of justice in a manner that, something, which is not relevant, is not unnecessarily brought on record. 12. Powers of the Court under Section 165 of the Indian Evidence Act, to some extent are complimentary to its powers under Section 311 Cr.P.C. Section 311 Cr.P.C. consists of two parts. Firstly, it gives discretion to the Court to examine the witness at any stage of inquiry, trial or other proceedings under the Code by summoning the witness or, examine any person present in the court or, recall and re-examine any person whose evidence has already been recorded for the purpose of discovering relevant facts or obtaining proper proof of such facts as are necessary to arrive at a just decision in the case. 13. Second part is mandatory in nature and it compels the court to examine a witness if his evidence appears to be essential to the just decision of the case. Though the discretion given to the Court is very wide with no limitation either with regard to the stage at which the power should be exercised or with regard to the manner in which it should be exercised, that widest power requires a corresponding caution that discretionary powers should be invoked as and when the exigencies of justice require and exercised judicially with circumspection and consistently with the provisions of the Code. Second part of the Section does not permit any Crl.R.P. No.126/2005 Page 9 of 33 discretion but, binds the Court to take necessary steps if a fresh evidence to be obtained is essential for just decision of the case. 14. This Section, in no manner, confers any party a right to examine, cross-examine and re-examine any witness. This is a power given to the Court not to be merely exercised at the instance of any one party but, the powers conferred and discretion vested are to prevent any irretrievable or immeasurable damage to the cause of society, public interest and miscarriage of justice. Reference is made to ‘Zahira Habibulla H. Sheikh & Anr. Vs. State of Gujarat & Ors.’, (2004) 4 SCC 158. 15. Thus, it is clear that before exercising the power under Section 311 Cr.P.C., Court must apply its judicial mind and consider the necessity to permit summoning of the witnesses. Court is also required to take due care of its powers under this Section so that the same are not used to fill up the lacunae left by the prosecution or, by the defence or, to the disadvantage of the accused or, to cause serious prejudice to the defence of the accused or, to give an unfair advantage to the rival side and further additional evidence should not be received as a disguise for retrial or to change the nature of the case against either of the parties. The only factor which should weigh in the mind of the Court while exercising its powers under Section 311 Cr.P.C. is whether such material is essential for the just decision of the case. Crl.R.P. No.126/2005 Page 10 of 33 16. In this case, petitioner accused has sought examination of twenty one additional witnesses, two of which have already been examined by the Trial Court. Now it is to be seen if witnesses sought to be examined are relevant for the just decision of the case. 17. Mr. Sibbal, appearing on behalf of the petitioner has submitted that Bank Manager of Bank of Central Greece, Athens/Greece (Serial No.2) is a relevant witness to prove that the amount of US$ 3.42 lakhs was transferred to the Bank of Central Greece by way of TT as insurance premium for non-delivery and non-performance of the supply of urea under the contract in 1995. It is argued that present dispute is purely one of a possible breach of contract between the contracting parties, and in these circumstances the allegations of fraud and conspiracy against M/s Karsan made by NFL are totally unsupportable. 18. Mr.Sanjay Jain, Senior counsel appearing on behalf of CBI has submitted that it is an admitted fact by the prosecution that the said amount was transferred to Mediterranean Insurance Limited and therefore, the factum of transfer stands proved vide document D-177. Since Bank Manager sought to be examined cannot prove the performance of transfer, therefore, he is an irrelevant witness. Trial Court vide impugned order dated 11th October, 2004 declined the request of the petitioner to examine this witness with the observations:- Crl.R.P. No.126/2005 Page 11 of 33 “The accused also wants to examine witnesses from bank of Central Greece (S.NO. 3 and 4) and KZI Bank (S.NO 29) to show payments made by him to the Insurance Company. He wants to show that he made payment of USD 3.42 lakhs for the consolidated insurance and a further payment of USD 17,000 separately for shipment. The law of interpretation of document is well settled. If the language of document is clear, the terms and conditions of the document have to be construed from that document only. Therefore payments made by the accused to the Insurance Agent are totally ir-relevant.” 19. Document D-177 dated 23rd November, 1995 is written by Karsan and is an order of payment. It seems that this document has not been proved in evidence as it is marked P-95/23. Unless a document is proved in evidence, Trial Court cannot interpret and construe the terms and conditions of the document. Document D-177 is silent regarding payment of US$ 176,72. Under these circumstances, though factum of payment of US $ 3.42 lakhs being transferred to Mediterranean Insurance Limited is not disputed but the document is required to be proved for its interpretation. Therefore, examination of the Bank Manager of the Bank of Central Greece becomes relevant. There is no serious objection by the respondent if this witness is allowed to be examined. 20. Petitioner has sought examination of Manager, Camboi Bank of Central Greece (Serial No.3) to prove payment of US $ 17000 of Crl.R.P. No.126/2005 Page 12 of 33 marine insurance premium related to the first shipment of 9000 MT of urea, sent to the said bank to the account of the Insurance Company. This shipment was sent to India in August 1996 and was subsequently rejected on account of non-meeting the specification of the contract. Trial Court refused to permit the petitioner to examine this witness. Respondent has objected to the examination of this witness being irrelevant. To my mind, this witness is also relevant as petitioner‟s endeavour is to prove his bona fides from the testimony of this witness. 21. Another witness sought to be examined is Manager of Balasco Instanbul Shipping Trading SA Istanbul Turkey (Serial No.4). It is submitted by counsel for the petitioner that this witness is relevant to depose that he had arranged the shipping consignment of 9000 MT of urea to prove the intention of the petitioner to supply the shipment and the company had to pay damages as the shipment was delayed for three weeks at Bhavnagar Port and was returned back by NFL for the reason that the shipment was not up to the standard of the contract. He further submitted that examination of this witness is also relevant to reflect on the past conduct and business dealings of Karsan with other companies and customers. In short, this witness is sought to be examined to depose on the charter party contract with Karsan for transportation of urea to NFL. 22. To emphasize the relevancy of this witness, my attention has Crl.R.P. No.126/2005 Page 13 of 33 been brought to the submissions made by the petitioner while submitting arguments on charge. Perusal of internal page 76 of the order on charge indicate that petitioner had taken a plea that he was an honest, renowned businessman and had entered into the impugned business transaction with NFL with the sole object to further his business interest but, became victim of certain political developments in India which took place during the relevant time. Though respondent has objected to the examination of this witness on the plea that he is irrelevant but, there is no serious objection to his examination, he being a relevant witness in the facts and circumstances of the case. 23. Another witness sought to be examined is Mr.Rafacel Leoni, Financial Consultant, SBR, Trust Sielminger, Germany (Serial No.5) to prove that first contract dated 27th July, 1995 was a blocked fund method contract and his examination is relevant to prove bona fide intention of the petitioner and NFL was required to send funding instrument to SBR Trust for supply of urea. Trial Court rejected examination of this witness on the grounds that it was not necessary to examine any witness to prove trade practice and to define practice fund method of payment in the Court and the Court can take notice of such practice suo moto. 24. Counsel for the petitioner has submitted that purpose of examination of this witness is not to explain blocked fund method. This Crl.R.P. No.126/2005 Page 14 of 33 witness is relevant as he has personal knowledge about the first contract and he is to depose on facts as well as documents and would also depose about the reasons for second contract. There were two contracts with Karsan dated 27th July, 1995 and 9th November, 1995 respectively. However, first contract was not acted upon and the present suit is based on non-fulfillment of the second contract. Under the circumstances, it has been argued by counsel for the respondent that examination of this witness relating to the first contract is inconsequential and hence is not required. However, there is no vehement objection to the examination of this witness. To my mind this witness is relevant to reflect on mensrea i.e. mental intention of the petitioner at the time of execution of the contract. 25. Mr.S.Vepuri Murty of Mylyn Newton, USA (Serial No.6) is sought to be examined to prove that the amount of US$ 37.62 was received by him from M/s Karsan as a controlling authority of Mylyn Holdings Ltd. which was for investment purposes and there was no dishonest transfer and the purpose for which the money was paid. It is pointed out by counsel for the petitioner that this witness also faced a criminal complaint filed against him by NFL to recover the funds transferred to him, which according to NFL were stolen funds, rightfully belonging to it and it had the right to recover the same. Under the circumstances, this witness is relevant to be examined by the petitioner to meet the allegations that this witness had held Crl.R.P. No.126/2005 Page 15 of 33 the money of NFL deposited by Karsan with Mylyn Holding. There is hardly a dispute to the examination of this witness. 26. Mr.Karpenko Alazander Efimovich (Serial No.8), Urea Ships Captain, Russia and Mr.Ahmed Murad (Serial No.9), Captain M/s Sibir, Russia are sought to be examined by the petitioner to prove that urea was to be shipped to India but, as first shipment was refused at Bhavnagar Port by NFL and in the meantime petitioner was arrested, no further shipment of urea could be made. Examination of these witnesses is opposed by the respondent alleging that as per the contract, each shipment of urea was to consist of minimum of 25000 MT of urea whereas first shipment was sent only of 9000 MT of urea and if Karsan had more than 9000 MT of urea, the same could have been transported vide first shipment itself, and also that since petitioner had purchased/ procured only 9000 MT of urea, he sent only the said quantity and there was no occasion for any further dealing as case had been registered against the petitioner on 28th May, 1996 and petitioner had already been arrested. Trial Court refused to grant permission to examine this witness on the ground that in view of the admitted facts of the parties that only one shipment of 9000 MT of urea was sent and there was no other shipment, examination of this witness was unnecessary. Crl.R.P. No.126/2005 Page 16 of 33 27. Counsel for the petitioner has argued that he was told not to deliver other shipment of urea due to refusal by the complainant to accept the shipment of 9000 MT of urea. He has referred to Bill of Lading mark D-3/9A, sought to be proved in evidence, to prove as to why the ships were diverted and at whose instance. The shipment which was diverted was of June 1996. He has submitted that Trial Court went wrong in refusing the petitioner to examine these witnesses. He has submitted that examination of these witnesses is relevant to prove bona fide intention of the petitioner. 28. Ex.PW-38/L41 is a letter written by Karsan to NFL indicating the shipment schedule and the quantity of urea which each shipment would carry and also the Port from where this shipment would be dispatched. In his statement under Section 313 Cr.P.C., in answer to question No. 283, petitioner has deposed about shipping schedule and the loading Ports of other shipments as contained in Bill of Lading. He also requested the Court to summon these witnesses to testify and explain the preparations made by Karsan for supply of urea as per the contract. Under the circumstance, a fair opportunity has to be given to the petitioner to prove his defence and examination of these witnesses is also relevant for just decision of the case. 29. To prove that Karsan had sufficient stock of urea to be shipped to India in CIS Countries as well as with Karsan itself in Russia as Crl.R.P. No.126/2005 Page 17 of 33 per the schedule of supply, which could not be shipped because of bad weather conditions and was lying for long, petitioner seeks to examine Mr. Michail Capuryan (Serial No.10), Russia and Mr. Alexander Miailov (Serial No.11, this witness is also cited at Serial No.15), Russia. It is argued by counsel for the petitioner that these two witnesses are required to be examined to negate the intention not to send urea to India and also to prove reasons why shipment was not in time. Mr. Michail Capuryan, who happened to be the Port Manager, was personally aware of the terms contained in Freight Forwarding Contract and his deposition is relevant in view of Article 13 of the contract. He has