Crl.Rev.P. 407/2007 Page 1 of 36 * IN THE HIGH COURT OF DELHI AT NEW DELHI + Crl.Rev.P. 407/2007 % Date of reserve : 22.04.2009 Date of decision: 14.05.2009 A.J.K. FERNANDEZ …PETITIONER Through: Mr. KTS Tulsi, Sr. Adv. with Mr. Raj Kamal, Advocate Versus CENTRAL BUREAU OF INVESTIGATION ...RESPONDENT Through: Mr. P.P. Malhotra, ASG with Mr. Chetan Chawla, Advocate CORAM: HON’BLE MR. JUSTICE MOOL CHAND GARG 1. Whether the Reporters of local papers Yes may be allowed to see the judgment? 2. To be referred to Reporter or not? Yes 3. Whether the judgment should be Yes reported in the Digest? MOOL CHAND GARG, J. 1. This order shall dispose of the aforesaid Revision Petition filed by the Petitioner under Sections 397/401 read with Section 482 of the Code of Criminal Procedure for setting aside the order directing framing of charges and the charges framed pursuant thereto, against the Petitioner on 17.05.2007 under Sections 465, 467, 468, 471 and 420 read with Sections 109 and 120B of Indian Penal Code by the Chief Metropolitan Magistrate, Delhi in case RC No. 6(E)/2003/CBI/SPE/EOU.VII, P.S. New Delhi dated 27.10.2003 registered by CBI on the complaint of Shri Anand Kumar, who claims to be the constituted attorney of his son Mukesh Kumar, a resident of Ireland. 2. The Charges were framed by the CMM after the charge sheet was filed by the prosecution under Section 173 of the Code of Criminal Crl.Rev.P. 407/2007 Page 2 of 36 Procedure on 1.01.2004 after completing the investigation. In the charge sheet, besides the Petitioner, one K.Kadakasham, Deputy Manager of the State Bank of India, Nungambakkam Branch, Chennai, was also challanned as a co-conspirator. He also filed a separate revision but on account of his death, the same stands abated. 3. Briefly stating, the allegations made by the Complainant in his complaint dated 17.05.2007 can be enumerated as under: (i) Mukesh Kumar, a non-resident Indian, son of the Complainant after settling in Ireland took charge of the business of his grand father namely, Sh. Datt Sahai who was doing business in London since 1950 and was having bank accounts with large deposits. A decision was taken by the family to bring the deposits in the banks at London to India and to deposit the said amount in the form of Fixed Deposit Receipts in Indian Banks as the rate of interest was better in India. The complainant was appointed as power of attorney holder of Mukesh Kumar on 18.04.1992. He accordingly opened Bank account in Delhi with Federal Bank, New Delhi and funds were transferred. (ii) In the year 2000, Complainant came into contact with one Arun Jain who was an agent of AJK Fernandez, who had offered the complainant a deal to the effect, that if the deposits are made in South Indian Banks as suggested by AJK Fernandez, the complainant in addition to the higher rate of interest as prevailing in South Indian Banks would also get an incentive of 3.75% while 0.25% would come to Arun Jain. Accordingly on transfer of two deposits from Federal Bank Ltd. at New Delhi to Federal Bank of Nagercoil as suggested by accused AJK Fernandez in the month of August, 2000 to the tune of US $ 1729684.81 and US $ 97,141.24 respectively, the complainant got incentive of about 5 lakhs in advance by way of DD in the name of Mukesh Kumar. On that basis the transactions continued even subsequently. Various deposits were similarly transferred to SBI Nungambakkam Branch of Chennai belonging to Mukesh Kumar. The details of the said deposits are as follows: A. FDRs with Federal Bank, Nagercoil, Tamil Nadu: Crl.Rev.P. 407/2007 Page 3 of 36 S.No. Date of Deposit Amount in US $ FDR No. Maturity Value US $ Maturity Date 1. 21.08.00 17,29,684.81 37197/FCAB 43 2150995.50 21.08.2003 2.. 31.08.00 9,97,141.24 37197/FCAB 44 1234650.22 31.08.2003 B. FDRs with State Bank of India, Nungambakkam: S.No. Date of Deposit Amount in US $ FDR No. Maturity Value US $ Maturity Date 1. 11.12.00 2297415.79 962159 2832347.59 11.12.2003 2. 12.12.00 3,36,240 962158 4,14,530.34 12.12.2003 3. 26.12.00 2,00,142.88 508489 2,44,936.22 26.12.2003 4.. 29.12.00 5,21,014.50 508497 628,294.25 29.12.2003 5. 04.01.01 73,302.83 962156 88,396.29 04.01.2004. 6.. 19.01.01 8,81,840.79 962173 10,40,100.45 19.01.2004. 7. 16.03.01 4,69,571.53 962217 5,53,927.66 16.03.2004. 8. 19.03.01 28,24,927.11 962219 3332,410.87 19.03.2004. 9. 21.03.01 35,231.32. 962221 4,560.45 21.03.2004. 10. 10.04.01 3,85,047.72 962237 4,54,219.58 10.04.2004. 11. 15.05.01 29,752.06 962264 34,579.94 15.05.2004 12. 14.06.01 6,492.50 962442 7,490.16 14.06.2004 13. 25.07.02 2,31,079.76 813200 2,53,769.50 25.07.2005. S.No. Date of Deposit Amount in GB £ FDR No. Maturity Value GB £ Maturity Date 1. 10.09.01 3,18,160 419872 3,72,543.31 10.09.2004 S.No. Date of Deposit Amount in Exchange Rs. FDR No. Maturity Value Exchange Rs. Maturity Date 1. 02.07.02 2,28,92,679 845711 2,96,80,411 02.07.05. 2. 16.09.02 58,18,176 845742 72,71,070 16.09.05 (iii) It was further alleged, that for all these deposits the accounts, as per the instructions of the complainant, were to be opened only in the single name of Mukesh Kumar and for that purpose account opening forms were sent to the petitioner duly signed by Mukesh Kumar alongwith his forwarding letters and in those forms the column where second applicant and third applicant had to sign were either scored off or „xxxx‟ marks were put before sending the forms. However, the accounts were in fact opened by AJK Fernandez in the joint name by putting his own signatures on the aforesaid forms and in the third column and by forging the signatures of Mukesh Kumar. (iv) However, Shri AJK Ferndandez, the petitioner, with the help of his co-accused K. Kadaksham, the then Deputy Manager of SBI Nungambakkam branch in pursuance of conspiracy also opened a joint NRE SB account No.01192060511 based on forged letter dated 22.09.2000 purportedly to have been signed Crl.Rev.P. 407/2007 Page 4 of 36 by Sh. Mukesh Kumar and by stating to the bank officials that Mukesh Kumar and AJK Fernandez are business partners and that Mukesh Kumar had authorized AJK Fernandez to make deposits/withdrawal in joint account got the earlier mentioned two FDRs Number 43, 44 prematurely closed, and the amount of deposits which were to the tune of US $ 17,29,684 and 9,97,141 were transferred in the said bank to a joint NRE SB Account No.009206055, Nungambakkam Branch with a view to misappropiate the aforesaid amount. It is thereafter amount totaling nearly Rs.12.6 crores was fraudulently credited in the above mentioned joint account number i.e. 605011 on 10.10.2000. Almost the entire amount was siphoned off by AJK Fernandez on the very next day, i.e., on 11.10.2000 in the form of one STDR of Rs.1 crore in his own name two FCNB deposits for a total of US $ 4,05,000 in his own name, 19 DD totaling US $ 13,00,00 (approximately about 67.5 crores) transfer of Rs.80 lacs to another NRE SB account number 011920060536 for a closure of a loan of Rs.22.5 lacs which was obtained on 23.08.2000. (v) In view of the arrangement further 14 remittance in foreign currency (13 in US $ and 1 Sterling) were sent from the account of Sh. Mukesh Kumar through wire transfer to the bank, but the same were also fraudulently got converted into STDRs in the joint name of Mukesh Kumar and AJK Fernandez on the basis of forged letter as aforesaid. Furthur those STDRs were also prematurely closed and proceeds were credited in another joint NRE account and money was siphoned off by AJK Fernandez and Mukesh Kumar subsequently. To keep the complainant misinformed the petitioner also supplied 18 fake STDRs to Sh. Anand Kumar showing deposits in the name of Mukesh Kumar but by keeping the original STDRs issued in the joint name with him, i.e, 16 original FDRs issued from SBI Nungambakkam Branch Chennai and two original FCNB FDRs issued from Federal Bank, Nagercoil. Out of these 18 fake STDRs, one STDR No.TA/1, 962273 was sent to SBI Nungambakkam Branch, Chennai by Anand Kumar for correction believing it to be genuine, when the said branch issued another genuine STDR number Crl.Rev.P. 407/2007 Page 5 of 36 962242 after correction in lieu of above mentioned forged STDR. The complainant then came to know about the aforesaid fraud vide letter dated 23.10.2002 received from SBI, Nungambakkam Branch at Chennai, who informed Mukesh Kumar, the details of 6 TDRs one in single name and 5 in joint names of Mukesh Kumar and accused AJK Fernandez (Petitioner) accused, though the instructions were for the single name of Mukesh Kumar. It also transpired that against one TDR even a loan of Rs.1.50 crores had been obtained by AJK Fernandez. This information was shared by Mukesh Kumar with Anand Kumar, who in turn communicated with Nungambakkam Branch and sent photocopies of deposit application forms and 6 TDRs mentioned in the letter dated 23.10.2002, which were in the single name of Mukesh Kumar requesting them to confirm the status/genuinity of the same. It is also submitted that the State Bank of India Nungambakkam Branch did not give any reply despite various reminders. However, vide letter dated 18.02.2003, the bank informed that loan amount had been cleared against the said TDR but the bank refrained from confirming the status/genuinity of these 6 TDRs despite many requests. (vi) Thereafter the complainant contacted Mr. Muralidharan, the New Branch Manager of the SBI on 26.07.2003 on the bais of photocopies of the documents which were the basis of the frauds committed by the Petitioner, the Chief Manager got suspicious about the transaction and reported the matter to the higher authorities. As a result thereof vigilance inquiry was initiated by SBI. As soon as inquiry started accused AJK Fernandez sensed trouble and filed civil suits in Nagercoil Court praying for declaring the STDRs held by the complainant as null and void. This establishes his knowledge of STDRs in the possession of Anand Kumar which were supplied by him and were actually forged. This pressure tactics worked and the complainant was approached by AJK Fernandez who offered for out of Court settlement. As a result, on 01.09.2003 AJK Fernandez fraudulently induced the complainant into handing over the 18 STDRs held by him in lieu of fake Demand Draft of US $ 19.72 million purportedly Crl.Rev.P. 407/2007 Page 6 of 36 issued by the Canadian Imperial Bank of Commerce, Toronto and obtained two letters from Anand Kumar stating that his son would have no claim over the above mentioned 18 STDRs and that he would repay the excess amount of US $ 5 million after the encashment of the said DD which was when presented by Mukesh in HSBC Bank, New Delhi on 22.09.2003 were found to be forged as informed by the bank authorities as the said DD was never issued by the Imperial Bank of Toronto. In order to further pressurize the complainant, AJK Fernandez filed two more civil suits against Anand Kumar and his son Mukesh Kumar along with Arun Jain. Hence, he cheated the complainant and his son and misappropriated a sum of totaling approximately Rs.67.5 crores. 4. The allegations made in the complaint were verified by the prosecution after investigating the same and by taking into possession various records of the concerned banks, and by recording the statement of witnesses under Section 161 Cr.P.C. They also relied upon the report of FSL with respect to forging of documents on the basis of which joint accounts were opened by the Petitioner and thereafter funds belonging to Mukesh Kumar were siphoned off, which are to the tune of Rs.67.5 crores approximately. 5. A perusal of the impugned order goes to show that the charges were framed by the CMM after being satisfied that prima facie a case was made out against the Petitioner. The relevant observations made in this regard are reproduced hereunder: “From the statement of the witnesses and the documentary evidence collected by the prosecution, accused Fernandez was responsible for certain 18 fake STDR, i.e., two of Federal Bank and 16 of SBI Nungambakam Branch, Chennai to be sent to the complainant and caused pre-mature closure of 10 STDR in the SBI Nungambakam Branch and two STDRs of Federal Bank Nagarcoil by using forged signatures of Mukesh Kumar. Accused Fernandez also presented the authority letters purportedly signed by Mukesh Kumar dated 20.09.2000 for getting the NRE account open having full knowledge that the signature of Mukesh Kumar were Crl.Rev.P. 407/2007 Page 7 of 36 forged one and also with the intention that the same would be used for the purpose of cheating. The GEQD result which was procured after the specimen signatures of Mukesh Kumar were compared with the signatures present on the said STDRs and the above mentioned letters was conclusive that the said STDRs and the letters did not bear the signatures of Mukesh Kumar and that the signatures were forged though, positive opinion about Fernandez forging the same was not given. At this juncture it would not be out of place to refer to Bank of India Vs. Shankar Rao And Anr. 1987 Crl.L.J. 722 wherein the Hon‟ble Supreme Court observed that where money was withdrawn by an accused from an account by using forged signatures of the Account holder, and pocketed the same, an inference could safely be drawn that it was the accused who had got the signatures forged and hence convicted the accused for the offence under Section 467 r/w 109 IPC. Placing reliance of the said pronouncement, I am of the opinion that prima facie case under Section 467/468 IPC read with Section 109 IPC and Section 465 IPC read with Section 109 IPC is also made out against accused Fernandez. To conclude and for ready reference, it may be mentioned again that prima facie offences under Section 120B read with Section 465/467/468/471 IPC and 420 IPC read with Section 120B IPC and 471 IPC read with Section 120B are made out against both the accused Fernandez and K. Kadaksham. While offence under Sections 467/468 read with 109 IPC and 465 read with Section 109 IPC are made out against accused Fernandez alone. Both the accused persons are charged accordingly.” 6. The CMM also took note of the preliminary submissions made on behalf of the Petitioner that CBI had no jurisdiction to register FIR and to investigate the matter and made the following observations: 4. “To tackle first thing first, the issue of CBI not having jurisdiction to investigate the matter in Chennai needs to be dealt with at the outset. Section 5 of the Delhi Special Police Establishment Act, 1946 empowers the Central Government to pass any order extending the powers and jurisdiction of the members of Delhi Special Police Establishment for investigation of offences or class of offences specified by a notification and as submitted by PP for CBI vide notification dated 25/12/62/VD-II of Govt. of India dated 18.2.1963, such powers were extended for investigation in certain States including that of Madras, for certain offences including 420/465/467/468/471 IPC. No doubt, Section 5 of the Act is subject to Section 6 of the Act and consent of the said Government is to be taken by the members of the Delhi Special Police Establishment (which include CBI) for investigating the offence in the said State but if the said consent has not been taken the entire proceedings do not get vitiated so as to discharge the accused persons who have been arrayed as such, for the offence allegedly complained of. More so, in the instant case, it is and admitted fact that the accused Fernandez had moved a petition before Hon‟ble High Court for transferring the present matter from Delhi to Chennai Crl.Rev.P. 407/2007 Page 8 of 36 which petition was dismissed and more recently it was Hon‟ble Supreme Court‟s order that the matter be disposed of expeditiously by this Court. Therefore, on a procedural irregularity, discharging the accused persons, to my mind is a far fetched proposition which cannot be paid heed to.” 7. The Petitioner has assailed the order framing the charge and the charges, by raising hypothetical submissions that such transaction could not have taken place looking to the averments made in the complaint that his son was a multi billionaire. It is also his case: a) That a lot of amount had been paid by the Petitioner to Sh. Anand Kumar by preparing the Demand Drafts worth Rs. US$133472.68 and US $258009.96 in the name of Mukesh Kumar for the purpose of deposit in the India Millenium Deposit Scheme. He also claims to have further invested a sum of Rs.13 crores and having also paid Rs.26 crores to Mukesh Kumar, Anand Kumar and Arun Jain by way of drafts and cheques. Such payments have not been considered by CBI. (It may be mentioned here that no document to prove any deposits except the initial payments towards the incentive has been placed on record by the Petitioner.) b) That all investments were made by Anand Kumar on the basis of Indian Passsport of Mukesh Kumar which ceased to exist as he adopted an Irish Passport. It is also submitted that the draft which is sought to have been paid by the Petitioner to Sh. Anand Kumar was not sent by the Petitioner but was sent by his son Mukesh Kumar. c) That CBI had no jurisdiction to investigate the matter and that nothing happened in Delhi which could confer jurisdiction to Delhi Courts. d) It is also stated that no charge could have been framed against the Petitioner either under Section 420 or under Section 467 read with Section 109 IPC Crl.Rev.P. 407/2007 Page 9 of 36 inasmuch as it is Arun Jain who met the complainant in Delhi and induced the Complainant to transfer funds from Delhi and therefore cheating if any has been done by Arun jain and not by the Petitioner. It is also submitted that as per the FSL report the signature of Mukesh Kumar were forged, but there is no evidence that the forgery has been committed by the Petitioner. 8. The learned Senior Counsel appearing for the Petitioner, also made following additional submissions by way of the written submissions:- i. That the petitioner, Anand Kumar (Complainant) as well as his son Mukesh Kumar were friends since 1991 and have jointly carried on business in India, Ireland US & Canada in joint names. A formal agreement dated 16.08.2000 was entered into between them according to which joint account was opened between the Petitioner and Mukesh Kumar with the State Bank of India, Nungambakkam Branch, Madras and accordingly, was operated as per the agreement. The deposits bearing NO.TA/A/1-962159, TA/A/1-962158, TA/A/1-508489, TA/A/1-508497, TA/A/1-962156, TA/A/1-962173, TA/A/1-962217, TA/A/1-962219, TA/A/1-9622237, TA/A/1-419872 were cancelled and credited into the joint account of the Petitioner and Mukesh Kumar as per their directions. Three other deposits bearing Nos. TA/A/1- 845711, TA/A/1-813200 and TA/A/1-845742 were pledged for obtaining loan which was also credited to the said bank account. All the original deposit receipts except the two receipts bearing No. TA/A/1- 962221 and TA/A/1-962264 were in custody of the bank. (However, no document to prove friendship or any formal agreement has been filed on record except the plaint of the suits though denied by the respondents). ii. It is also alleged that on 11.11.2003, the investigating officer seized 7 documents from the Noida Branch of HSBC which contained a letter dated 14.09.2003, addressed by the Senior Vice President of the Advantage Technology to Mukesh Kumar forwarding a draft No.7849416 dated 12.09.2003, for an amount of 19,720,000.00 US$ in favor of the Crl.Rev.P. 407/2007 Page 10 of 36 complainant towards advance consultation for promoting the Petro Chemical project. By a letter dated 30.09.2003, Mukesh Kumar was informed that the draft was not issued by the issuing bank. (As per the prosecution the letter dated 14.09.2003 is a forged document and in fact the draft handed over by the petitioner was also not geneuie.) iii. That the Petitioner filed original Suit Bearing No.229/2003 on 18.08.2003 for declaration and possession of fake deposit receipt and the same was decreed on 29.12.2003. He also filed Original Suit bearing No.238/2003 on 18.08.2003 for rendition of account and the same was also decreed on 25.03.2004. Another suit bearing No.269/2003 was also filed on 29.09.2003 for restraining the complainant, his son Mukesh Kumar and others from misusing the demand draft in favour of Mukesh Kumar and the same was decreed on 29.04.2004. It is also alleged that upon learning from HSBC that the demand draft was a forged document, despite the fact that the demand draft had been supplied to the complainant by his son-Mukesh Kumar vide letter dated 14.09.2003 which was deposited in the bank by the complainant himself, the Petitioner has been made a scapegoat .(The third suit stands as withdrawn even after the same was decreed which, according to the Respondents, was based upon a compromise which the Petitioner wanted to enter into with the Complainant by making some payment by way of a Demand Draft, which itself was found to be ingenuine.) 9. It was also submitted that once the civil court decreed the suit of the Petitioner as aforesaid, the findings returned in those suits became binding even on the criminal court. CBI was aware of the filing of these suits before the registration of the FIR and, as such, it had no jurisdiction to register the FIR and even if it was registered in ignorance of the filing of the civil suits, after the suits were decreed, the FIR was liable to be quashed being inconsistent with the findings rendered in three decrees by the civil court. It is also submitted that the CBI has not at all cared to either examine the contents of the plaint or the decree despite having come to know about it during the course Crl.Rev.P. 407/2007 Page 11 of 36 of Investigation. They have conveniently adopted the specious plea of the complainant that the suits have been filed only for pressurizing the complainant not to report the matter to the police. Neither the factual matrix of the suit nor the findings of the Civil Court have even remotely been referred to in the entire chargesheet. The Petitioner has also relied upon the following judgments: a) Sardool Singh Vs. Nasib Kaur, (1987) Supp. SCC 146,Para2 b) Tukaram Annaba Chavan Vs. Machindra Yeshwant, (2001) 3 SCC 33, Para 10,11 c) Savita Vs. State of Rajasthan (2005) 12 SCC 338, Para 8 d) Shanti Kumar Panda Vs. Shakuntala Devi (2004) 1 SCC 488,Para 15 e) P.S. Rajya Vs. State of Bihar (1996) 4 SCALE 344, Para17,20 f) V.M. Shah Vs. State of Maharashtra (1995) 5 SCALE 191,Para11 g) Sunil Gulati Vs. R.K. Vohra (2007) 1 JCC 220,Para 25 h) D.K. Rastogi Vs. UOI, 2007 (217) ELT (Del) 26 i) G.L. Didwania Vs. IT Officer, 1955 Suppl. (2) SCC 724 j) Indian Oil Corp. Vs. NEPC, (2006) 6 SCC 736 10. The learned ASG who appeared for the Respondents submitted that no interference is called for in the order directing framing of charges and the charges framed accordingly against the Petitioner because at the stage of framing of the charges, the court has not to weigh the evidence and the stage of appreciating the evidence for the purpose of arriving at a conclusion whether the prosecution was able to bring home the charge against the Petitioner would arise only after the evidence is concluded. He also denied that in the facts of this case the filing of civil suit or the ex-parte judgments given in favor of the petitioner are binding in these proceedings. It is submitted that the Court at the stage of framing of charge exercises a limited jurisdiction and is only required to see that a prima facie case is made out or not. Reliance in this regard has been placed on : Crl.Rev.P. 407/2007 Page 12 of 36 (i) Hem Chand Vs. State of Jharkhand 2008 (5) SCC 113. (ii) Union of India Vs. Prafful Kumar (1979) 3 SCC 4. 11. On the question of binding nature of the civil court‟s decision, the respondents have submitted that mere pendency of a