Full Judgment Text
* IN THE HIGH COURT OF DELHI AT NEW DELHI
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% Reserved on: 27 July, 2018
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Decided on: 20 August, 2018
+ W.P.(CRL) 2230/2018
SUKHMEET SINGH ANAND ... Petitioner
Represented by: Mr.S.S.Jauhar with Mr.Deepak
Bashta, Advocates
versus
STATE OF NCT DELHI ... Respondent
Represented by: Ms.Richa Kapoor, ASC for the State.
Mr.Ramesh Gupta, Sr.Advocate with
Mr.Saif Khan, Mr.Niraj Singh and
Mr.Achutan Sreekumar, Advocates
for complainant.
CORAM:
HON'BLE MS. JUSTICE MUKTA GUPTA
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1. Aggrieved by the order dated 26 March, 2018 dismissing the
application of the petitioner seeking cancellation of non-bailable warrants
issued against the petitioner, petitioner prefers the present petition through
his power of attorney, Manit Jauhar.
2. Brief background of the case is that a complaint was filed by M/s
Samsung Gulf Electronics FZE (in short ‘Samsung’) through its authorized
representative Wookjoong Yoon before the learned Metropolitan Magistrate
alleging that its Financial Controller S.C. Baek was found involved in
certain fictitious transactions shown to have been entered during 1992-2002
between Samsung and M/s Sky Impex, a company owned and held by
Sukhmeet Singh Anand, the petitioner herein and Pradeep Kumar Ghatania.
The modus operandi adopted by these persons was that on the request of
Sukhmeet Singh Anand, S.C. Baek would place fictitious orders on M/s Sky
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Impex for products such as HT cable, aluminum metal, coke calcinations
packages etc. which were not even required by Samsung and the products
were never even received. On the basis of fictitious orders placed by S.C.
Baek, M/s Sky Implex raised false invoices and bills of exchange payable
within 90-210 days and S.C. Baek misusing his official position as Financial
Controller of Samsung would sign off and accept the bills of exchange. M/s
Sky Impex by discounting these fictitious bills of exchange with the help of
related documents would generate cash flows in its favour taking advantage
of the credit extended by Samsung. In the year 2003 when S.C. Baek left
UAE without permission, internal inquiries and independent audits revealed
the fraud committed. Thus Samsung filed a complaint against S.C. Baek,
M/s Sky Impex owned by Sukhmeet Singh Anand and others at a Police
Station in Dubai. After a proper investigation and trial, the Court at Dubai
came to the conclusion that Sukhmeet Singh Anand and Pradeep Ghatania
dishonestly and fraudulently misappropriated a total amount of USD
85,99,757 from Samsung by fraudulent means. The accused were convicted
and awarded imprisonment followed by deportation.
3. Samsung in the present complaint alleges that faced with the
conviction after the trial at Dubai, Sukhmeet Singh Anand and Pradeep
Kumar Ghatania established a false claim against Samsung by forging and
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fabricating a bill of exchange bearing No. SM 1 C dated 1 February, 2002
which forgery and fabrication allegedly took place in the jurisdiction of PS
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R.K. Puram or PS Shakarpur. Besides the bill of exchange dated 1
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February, 2002, documents, such as purchase order dated 25 November,
2001 issued by M/s Sky Impex in favour JCE Consultancy [India], delivery
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receipt dated 28 January, 2002, issued by Sukhmeet Singh Anand in favour
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of JCE Consultancy stating that they had received goods as per the contract
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dated 1 December, 2001 and a performance certificate dated 1 February,
2002 issued by S.C. Baek were also forged and fabricated. To intimidate
Samsung and its officials and by forging the documents as noted above
Sheikh Allaudin Pakir Maiddin filed a false civil case before the Dubai
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Court which was rejected on 24 September, 2008 and a false complaint was
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filed before the ACJM, Ghaziabad, Uttar Pradesh on 5 January, 2005. In
the said complaint at Ghaziabad summons were issued against Samsung and
its officials including the officials of parent company. Accused is also
alleged to have sent fax messages generated from Delhi threatening
Samsung to withdraw proceedings at Dubai and on failure to do so illegal
and criminal intimidation was extended.
4. Samsung filed a petition for quashing of the complaint filed at
Ghaziabad on the ground that Courts in India had no jurisdiction to entertain
the complaint, which petition was first dismissed by the High Court at
Allahabad and Special Leave Petition preferred against the same was also
dismissed noting that the Courts in India have jurisdiction. For the reason
that the complaint at Ghaziabad was filed on the strength of forged and
fabricated documents as noted above, Samsung filed a complaint with DCP,
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EOW on 26 February, 2014. As no action was taken on the said complaint,
Samsung filed a complaint as noted above before the learned CMM, Patiala
House wherein on the directions of the learned ACMM under Sections 156
(3) Cr.P.C. FIR No.93/2014 under Sections 384/420/467/468/471/120B IPC
was registered at PS Economic Offences Wing against the petitioner and
other co-accused. During the course of investigation the petitioner did not
join the investigation.
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5. It is the case of the investigating agency that Sukhmeet Singh Anand
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prior to registration of FIR left India on 1 June, 2005 and thereafter
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obtained Indian passport bearing No. K0702366 dated 10 November, 2011
from Embassy of India, Spain and for that purpose gave his local address as
Carrer De Anquines, 18 B-1, Sitage 08870, Barcelona, Spain. It was found
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that on 16 January, 2004, at the time of applying for the new passport
petitioner informed the Regional Passport Officer that his previous passport
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No.Z1149012 valid upto 5 April, 2013 has been lost at Delhi and on the
strength of this misrepresentation obtained a new passport. During
investigation it was found that the previous passport of Sukhmeet Singh
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Anand being Passport No.Z1149012 valid upto 5 April, 2013 was retained
in the Police Station of Dubai and thus while applying for the new passport
wrong information was supplied and offence under Section 12 of the
Passport Act was also added to the investigation.
6. Since the petitioner was not available and as per the record of
immigration had not arrived back in India thus the Investigating officer
sought open non-bailable warrants against the petitioner from the learned
Trial Court which were allowed through Ministry of External Affairs and
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red corner notice was also issued against the petitioner vide order dated 25
October, 2017.
7. During the investigation, the fax numbers from which alleged
threatening letters were sent to Samsung and its officials were also examined
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and it was found that no calls/fax were sent on 4 July, 2005 or 8 July,
2005 from fax No.26522922. Further fax No.26564012 was found
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disconnected w.e.f. 22 November, 2004.
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8. Challenging the impugned order, contention of learned counsel for the
petitioner is that the claim of the complainant for jurisdiction vested in Delhi
police to register the FIR or the two Courts to try at Delhi is bogus. Charge
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sheet has been filed on 8 November, 2017 in FIR No.93/2014 without
arrest however, no cognizance has been taken till date. Admittedly, till date
the petitioner has not been served with a notice in the absence whereof no
non-bailable warrants could be issued against the petitioner. The notices
were sent at Som Vihar, Delhi address of the petitioner when admittedly the
Investigating Officer was aware that the petitioner is not in India and has
been residing in Spain. The issuance of non-bailable warrants is contrary to
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the guidelines of the Ministry of Home Affairs dated 11 February, 2009.
Thus the non-bailable warrants issued against the petitioner are required to
be set aside.
9. Learned Additional Standing Counsel for the State submits that the
petitioner has not joined the investigation till date. Petitions seeking
quashing of the FIR No.93/2014 were filed by the co-accused before this
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Court which petitions were dismissed by this Court on 27 March, 2018.
She further states that the petitioner filed an application seeking recalling of
the non-bailable warrants issued by the learned ACMM and placed before
the Court, order of the Hon’ble Supreme Court exempting the Managing
Director of Samsung stating that the petitioner Sukhmeet Singh Anand was
exempted from appearing by the order of the apex Court. The learned
ACMM thus cancelled the non-bailable warrants issued against the
petitioner and allowed the application filed by the petitioner. Later when
complete facts were brought to the notice of the Court that the order of
exemption from appearance only related to Mr. Lee Kun Hee, the Managing
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Director of Samsung who was a purported accused in the complaint filed at
Ghaziabad, fresh non-bailable warrants were issued and the application
seeking cancellation of non-bailable warrants was dismissed by the
impugned order. Learned Additional Standing Counsel for the State thus
claims that the petitioner is making false representation and false claims at
every stage and having not joined the investigation till date the non-bailable
warrants issued against him cannot be cancelled.
10. Contention of learned counsel for the petitioner that since no notice
has been served on the petitioner at his address at Spain, thus issuance of
non-bailable warrants against him is illegal deserves to be rejected. As
noted above the petitioner is an Indian citizen having an Indian passport
with his permanent residential address of Som Vihar, Delhi. Only when he
was convicted in Dubai and directed to be deported thereafter the petitioner
by misrepresenting facts got his new passport issued from the Embassy of
India at Spain giving a local address. Merely because the petitioner has not
visited India is no ground to come to the conclusion that the petitioner has
no connect with his permanent residential address at Som Vihar. As noted
above from the investigation carried out it is evident that the petitioner in
connivance with the co-accused has committed the alleged offences in India
and thus the learned Trial Court was within its jurisdiction to have issued
non-bailable warrants against him. Further the petitioner has submitted to
the jurisdiction of the Courts in India through his attorney.
11. The decision rendered by the Supreme Court reported as AIR 1965
SC 1251 State of Gujrat vs. Shyamlal Mohanlal Choksi: Manubhai Patel
followed by the High Court of Judicature at Madras in Crl. Original Petition
No.21724/2013 titled as M. Kalanithi Maran vs. State, by the Inspector of
W.P.(CRL) 2230/2018 Page 6 of 9
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Police decided on 28 July, 2003 has no application to the facts of the case
as the Courts therein were dealing with the interpretation of Section 91 of
Cr.P.C. and it was held that the word ‘person’ in Section 91 Cr.P.C. does not
include an accused and thus accused cannot be directed to be summoned to
produce documents. Non-bailable warrants have been got issued by the
investigating agency to arrest the accused petitioner in the present case. The
petitioner earlier got his non-bailable warrants cancelled by misrepresenting
facts which were then clarified by the subsequent application and no
exemption had been granted to the petitioner by the Supreme Court as
projected.
12. The main plank of argument of learned counsel for the petitioner is
that in the absence of service of notice to the petitioner, no non-bailable
warrants could be issued against the petitioner. The said argument is
fallacious and requires to be rejected. In the decision reported as (2009) 81
AIC 357 Yogendra Pratap Singh Vs. State the Allahabad High Court dealing
with the power to issue process under Section 82/83 of Cr.P.C. held :
“ 19. It may be observed here that as per the scheme of Criminal
Procedure Code once an FIR disclosing non-bailable offences is
registered against an accused the Police is empowered to interrogate
the accused and in that connection even to arrest him. However, if an
accused tries to evade the arrest Police can also ask for issuance of
non-bailable warrants. However, when non-bailable warrants are
also not executed because of avoidance of his arrest by the petitioner,
then the Court is empowered to issue process under Section 82/83 of
Cr.P.C. which is a process only to ensure appearance of the petitioner
before the Court so that the investigating agency can complete the
investigation by interrogating the accused.”
13. When an accused is not available for investigation, despite notice at
his permanent address in a case of cognizable and non-bailable offences, to
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the Investigating Agency and which is an offence/offences of serious nature
for arrest even without service of notice the Investigating Agency would be
within its jurisdiction to get an order seeking issuance of non-bailable
warrants for the arrest of the accused for the offence/offences allegedly
committed.
14. In the decision reported as 2012 Cri LJ 905 J.S.Bhatia Vs. CBI this
Court noting the judgment of the Division Bench of this Court in Ottavio
Quattrocchi Vs. Central Bureau of Investigation 75 (1998) DLT 97 (DB)
which followed the decision of the Supreme Court in State through CBI Vs.
Dawood Ibrahim Kaskar held:
“44. The Supreme Court considered the question that whether a
court can issue a warrant to apprehend a person during
investigation for his production before Police in aid of
investigation agency. The question was answered by the Supreme
Court holding that Section 73 of the Code confers a power upon
a Magistrate to issue a warrant and that it can be exercised by
him during investigation also. It was further held that Section 73
of the Code is a general application and that in course of
investigation a court can issue a warrant in exercise of power
thereunder to apprehend, inter alia, a person who is accused of a
non-bailable offence and is evading arrest. On the question
whether such issuance of warrant can be for his production
before the police in aid of investigation, it was observed by the
Supreme Court that a Magistrate plays, not frequently a role
during investigation, in that, on the prayer of the Investigating
Agency he holds a test identification parade, records the
confession of an accused or the statement of a witness, or takes
or witnesses the taking of specimen handwritings etc.
45. In nutshell the Supreme Court held that when an application
is moved by the Investigating Agency for arrest or apprehension
of a person, who is accused of non-bailable offence, such prayer
can be allowed by issuing a warrant for appearance before the
Court only and not before the police.”
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Thus, non-bailable warrants can be issued for procuring attendance of
a person before the Court and on police remand being granted
investigation can be carried out from such accused. The Petitioner
herein has been avoiding the process of the investigating agency and
the Court despite opportunities being given to him. Thus, the Court can
proceed to issue proclamation under Section 82 of Cr.P.C. Non-
bailable warrants being sine qua non for the issuance of action under
Section 82, it is thus essential to issue non-bailable warrants.”
15. In view of the discussion aforesaid, this Court finds no error in the
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impugned order dated 26 March, 2018.
16. Petition is accordingly dismissed.
(MUKTA GUPTA)
JUDGE
AUGUST 20, 2018
‘vn’
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