Case: Ajay Aggarwal Vs. Union of India &amp; Others

2. The appellant, accused 2 in P. Ch. (CBI) No. 40/2, dated February 18, 1985, FIR No. RC No. 2-4/1983, dated March 4, 1983 and P. S. SPE/CBI/CTU(E) I/New Delhi, District Delhi and four others 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 PNB 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 fifth accused, Manager of PNB, 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 PNB was sent to M/s. Sales International By PNB, Chandigarh for confirmation of discrepancy. The appellant had confirmed correctness thereof in the name of V. P. Anand. Placing reliance thereon authority letter was issued by PNB, 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, 12981 at Dubai and at this instance the Emirates National Bank, Dubai informed the PNB, 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 PNB was cheated of an amount of Rs. 40, 30, 329. Accordingly charge-sheet was laid against the appellant and others for offences punishable under Section 120-B read with Sections 420 (Cheating), 468(Forgery) and 471 (using as genuine forged documents) IPC. 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, 1972 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 IPC, are all triable at Chandigarh without previous sanction of the Central Government. 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 Article 136 of the Constitution

Court's reasoning:
Therefore, the provisions in Chapter VIII are elastic and not peremptory. In consequence therewith Sections 218 to 223 of the Code would also deal with exceptions engrafted in the Code. Therefore, they do permit inquiry or trial of a particular offence along with other offences at a common trial in one court so that the court having jurisdiction to try an offence gets jurisdiction to try other Offence committed or consequences thereof have ensued. The procedure is handmaid to substantive justice, namely, to bring the offenders to justice to mete out punishment under IPC or special law as the case may be, in accordance with the procedure prescribed under the Code or special procedure under that Act constituting the offence13. Thus, this Court, though not in the context of jurisdictional issue, held that the agreement though not illegal at its inception would become illegal by subsequent conduct and an agreement to do an illegal act or to do a legal act by illegal means, must be viewed as a whole and not in isolation. It was also implied that the agreement shall be continuing till the object is achieved. The agreement does not get terminated by merely entering into an agreement but it continues to subsist till the object is either achieved or terminated or abandoned24. Thus, an agreement between two or more persons to do an illegal act or legal acts by illegal means is criminal conspiracy. If the agreement is not an agreement to commit an offence, it does not amount to conspiracy unless it is followed up by an overt act done by one or more persons in furtherance of the agreement. The offence is complete as soon as there is meeting of minds and unity of purpose between the conspirators to do that illegal act or legal act by illegal means. Conspiracy itself is a substantive offence and is distinct from the offence to commit which the conspiracy is entered into. It is undoubted that the general conspiracy is distinct from number of separate offences committed while executing the offence of conspiracy. Each act constitutes separate offence punishable independent of the conspiracy. The law had developed several or different models or techniques to broach the scope of conspiracy. One such model is that of a chain, where each party performs even without knowledge of the other a role that aids succeeding parties in accomplishing the criminal objectives of the conspiracy. An illustration of a single conspiracy, its parts bound together as links in a chain, is the process of procuring and distributing narcotics or an illegal foreign drug for sale in different parts of the globe. In such a case smugglers, middlemen and retailers are privies to a single conspiracy to smuggle and distribute narcotics. The smugglers knew that the middlemen must sell to retailers and the retailers knew that the middlemen must sell to retailers and the retailers knew that the middlemen must buy of importers of someone or another. Thus the conspirators at one end of the chain knew that the unlawful business would not and could not stop with their buyers and those at the other end knew that it had not begun with their settlers. The accused embarked upon a venture in all parts of which each was a participant and an abettor in the sense that, the success of the part with which he was immediately concerned, was dependent upon the success of the whole. It should also be considered as a spoke in the hub. There is a rim to bind all the spokes together in a single conspiracy. It is not material that a rim is found only when there is proof that each spoke was aware of one anothers existence but that all promoted in furtherance of some single illegal objective. The traditional concept of single agreement can also accommodate the situation where a well-defined group conspires to commit multiple crimes so long as all these crimes are the objects of the same agreement or continuous conspiratorial relationship, and the conspiracy continues to subsist though it was entered in the fist instance. Take for instance that three persons hatched a conspiracy in country A to kill D in country B with explosive substance. As far as conspiracy is concerned it is complete in country A. One of them pursuant thereto carried the explosive substance and hands it over to third one in the country B who implants at a place where D frequents and got exploded with remote control D may be killed or escape or may be diffused. The conspiracy continues till it is executed in country B or frustrated, therefore, it is a continuing act and all are liable for conspiracy in country B though first two are liable to murder with aid of Section 120 B and the last one is liable under Section 302 or 307 IPC, as the case may be. Conspiracy may be considered to be a march under a banner and a person may join or drop out in the march without the necessity of the change in the text on the banner. It the comity of International Law, in these days, committing offences on international scale is a common feature. The offence of conspiracy would be a useful weapon and there would exist no conflict in municipal laws and the doctrine of autrefois convict or acquit would extend to such offences. The comity of nations are duty-bound to apprehend the conspirators as soon as they set their feet on the countrys territorial limits and nip the offence in the bud25. A conspiracy thus, is a continuing offence and continues to subsist and committed wherever one of the conspirators does an act or series of acts. So long as its performance continues, it is a continuing offence till it is executed or rescinded or frustrated by choice or necessity. A crime is complete as soon as the agreement is made, but it is not a thing of the moment. It does not end with the making of the agreement. It will continue so long as there are two or more parties to it intending to carry into effect the design. Its continuance is a threat to the society against which it was aimed at and would be dealt with as soon as that jurisdiction can properly claim the power to so, The conspiracy designed or agreed abroad will have the same effect as in India, when part of the acts, pursuant to the agreement are agreed to be finalised or done, attempted or even frustrated and vice verse27. Thus we hold that sanction under section 188 is not a condition precedent to take cognizance of the office. If need be it could be obtained before trial begins. Conspiracy was initially hatched at Chandigarh and though itself is a completed offence, being continuing offence, even accepting appellants case that he was at Dubai and part of conspiracy and overt acts in furtherance thereof had taken place at Dubai and partly at Chandigarh and in consequence thereof other offences had ensued, since the offences have been committed during the continuing course of transaction culminating in cheating PNB at Chandigarh, the need to obtain sanction for various offences under proviso to Section 188 is obviated. Therefore, there is no need to obtain sanction from Central Government. The case may be different if the offences were committed outside India and are completed in themselves without conspiracy. Perhaps that question may be different for which we express no opinion on the facts of this case. The ratio in Fakhrulla Khan 1935 AIR(Mad) 326 : 68 MLJ 415 : 1935 MWN 325 ) has no application to the facts in this case. Therein the accused were charged for offences under Sections 420, 419, 467 and 468 and the offences were committed in native State, Mysore, As a result the courts in British India i.e. Madras province had no jurisdiction to try the offence without prior sanction Equally in Verghese case the offences charged under Section 409 IPC had also taken place outside British India Therefore, it was held that the sanction under Section 188 was necessary. The ratio in Kailash Sharma case is not good at law.