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SUPREME COURT OF INDIA
K. RAMASWAMY AND R.M. SAHAI, JJ.*
Ajay Agarwal, Appellant
Versus
Union of India and others, Respondents.
Criminal Appeal No. 400 of 1993 (arising out of S.L.P. (Cri.) No. 2541 of 1992)
Decided on 5-5-1993.
As per Justice K. Ramaswamy
Held: 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 So long as its performance continues, it is a continuing offence till it is executed or rescinded or frustrated by choice or necessity.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 do 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 versa. (para 10)
As per Justice R.M. Sahai
Held: Language of the section is plain and simple. It operates where an offence is committed by a citizen of India outside the country. Requirements are, therefore, one - commission of an offence; second - by an Indian citizen; and third that it should have been committed outside the country. Out of the three there is no dispute that the appellant is an Indian citizen. But so far the other two are concerned the allegations in the complaint are that the conspiracy to forge and cheat the bank was hatched by the appellant and others in India. Whether it was so or not, cannot be gone into at this stage. (para 14)
What is the claim then? Two fold one the appellant was in Dubai at the relevant time when the offence is alleged to have been committed.
Second, since the bills of lading and exchange were prepared and were submitted to the Emirates National Bank at Dubai and the payment too was received at Emirates National Bank in Dubai, the alleged offence of forgery and cheating were committed outside India. Is that so? Can the offence of conspiracy or cheating or forgery on these allegations be said to have been committed outside the country? (Para 15)
Further held: What has to be examined at this stage is if the claim of the appellant that the offence under section 120B read with section 420 and section 471 of the IPC were committed outside the country. An. offence is defined in the Cr. P.C. to mean an act or omission made punishable by any law for the time being in force. None of the offences for which the appellant has been charged has resident as one of its ingredients. The jurisdiction to inquire or try vests under section 177 in the Court in whose local jurisdiction the offence is committed. It is thus the commission of offence and not the residence of the accused, which is decisive of jurisdiction. When two or more persons agree to do or cause to be done an illegal act or an act which is illegal by illegal means such agreement is designated a criminal conspiracy" under section 120A of the IPC. The ingredients of the offence is agreement and not the residence. Meeting of minds of more than two persons is the primary requirement. Even if it is assumed that the appellant was at Dubai and he entered into an agreement with his counterpart sitting in India to do an illegal act in India the offence of cops piracy came into being when agreement was reached between the two. The two minds met when talks oral or in writing took place in India. Therefore, the offence of conspiracy cannot be said to have been committed outside the country. (para 16)
Finally held: Preparation of bill of lading at Dubai or payment at Dubai were not isolated acts. They were part of chain activities between the appellant and his associates with whom he entered in to agreement cheat the bank at Chandigarh. Any isolated act or omission committed at Dubai was insufficient to constitute, an offence. The illegal act of dishonestly inducing the bank at Chandigarh was committed not by preparation of bill at Dubai but its presentation in pursuance of agreement to cheat. The submission thus founded was on residence or on preparation of bills of lading or encashment at Dubai are of no consequence. (para 17)
JUDGMENT
K. RAMASWAMY, J. :—Special leave granted.
2. The appellant, accused No. 2 in P.Ch. (CBI) No. 40/2, dated February 1, 1985, F.I.R. No. RC Nos. 2 to 4/1983 dated March 4,1983 and P.S. SPE/ CBI/CTU(E) I/New Delhi, Dist. Delhi and four other 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 P.N.B. 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 5th accused, Manager of P.N.B., 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 P.N.B. was sent to M /s. Sales International by P.N.B., Chandigarh for confirmation of discrepancy. The appellant had confirmed correctness thereof in the name of V. P. Anand. Placing reliance thereon authority letter was isued by P.N.B., 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, 1981 at Dubai and at his instance the Emirates National Bank, Dubai informed the P.N.B., 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 P.N.B. was cheated of an amount of Rupees 40,30,329/-. Accordingly charge-sheet was laid against the appellant and others for offences punishable under Sections 120 B read with Sections 420 (Cheating), 468 (Forgery) and 471 using as genuine (forged documents), I. P.C. 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, 1973 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, I.P.C., are all triable at Chandigarh without previous sanction of the Central Govt. 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 Art. 136 of the Constitution.
3. Sri Chidambaram, learned Senior Counsel contended th
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