Chandraswami vs Cbi
1990 Latest Caselaw 302 Del

JUDGMENT

M.K. Chawla, J.

1. Sometime in the month of September, 1987, one Lakhubhai Pathak, a non-resident Indian, residing in London forwarded his complaint to the High Commissioner of India, against Shri Chandraswami and his associate/ Secretary Shri K. L. Aggarwal for dishonestly including him to part with two cheques totalling US $ 1,00,000/- in a New York hotel in January 4, 1984, as consideration for obtaining some contract for the complainant. The said complaint was forwarded to the Central Bureau of Investigation (CBI) in or about October 1987 on the basis of which an FIR under Section 420 read with Section 120B, I.P.C. was registered.

2. Both the accused persons were arrested and later on granted bail by the Court of the Addl. Chief Metropolitan Magistrate, New Delhi, on 17.2.1988, with the condition that they shall not leave the country without the prior permission of the Court. Later on, they moved an application for modification of the order to the extent that they be permitted to go abroad for teaching the tenets of Hinduism and Indian cultural values in various countries. The said application was rejected by the A.C.M.M. on 10.3.1988. Both the petitioners then moved this Court in Crl. M(M) 447/88 and 448/88 respectively for the same relief which application was allowed and they were permitted to travel abroad for a period of 2 months commencing from August 17, 1988, on certain terms and conditions incorporated in the order. Thereafter, from time to time, the petitioners have been moving such like applications for the extension of their stay abroad on number of grounds which applications have been allowed. The last extension for a period of six months was given by order dated 3.1.1990 in Crl. M. 119 and 120 of 1990. That period is coming to an end on 2nd August, 1990.

3. The applicant Chandraswami has moved the present petition seeking an extension of time for a period of one year from 2.8.1990 to remain abroad subject to any terms and conditions which this Court may like to impose. Though the respondent CBI has not filed the reply, but Shri Rajiv Nayyar, Advocate, appearing for the respondent has strongly opposed the prayer.

4. The sum and substance of the other petition [Crl. M(M) 1550/90] of the Enforcement Directorate is that the presence of Shri Chandraswami is required in connection with the investigation of the offences under FERA, 1973, relating to acquisition of foreign exchange of US $ 50 lakhs in association with one Shri K. L, Aggarwal. The Enforcement Directorate has not been able to serve the summons under Section 40 of the FERA, 1973 in spite of repeated attempts. It is alleged that Shri Chandraswami is taking undue advantage of the judicial discretion granted in his favor by allowing him to stay abroad vide various orders. Their submission is that Shri Chandraswami to directed to appear before the Enforcement Officer so that the law may take its own course for carrying forward the investigation of the case under FERA. In the alternative, the Court may permit the applicant-Enforcement Directorate, to serve the summons on Shri Chandraswami through his counsel. Shri Chandraswami has filed the reply to this petition praying for its straightaway dismissal being not maintainable.

5. It is not disputed that while granting permission to the applicant for going and staying abroad, one of the conditions was that in case the CBI needs his presence in India on any date during the period of his stay abroad, the petitioner shall make himself available at New Delhi, provided he is given 10 days' advance notice to that effect. The petitioner was also required to keep the CBI informed of the addresses of the places where he proposes to go and stay during his visits abroad. The submission of the learned Counsel for the respondent is that before the applicant asked for extension of his stay abroad, he must comply with the conditions which were imposed while granting him permission to remain abroad. According to the learned Counsel, the applicant cannot refuse to acknowledge the notice/summons for his presence and continue to flout the undertaking given by him to this Court. The submission is that during the course of further investigation, the CBI, in the month of February/March, 1990, has come to know of the existence of certain documents for which the presence of the applicant has become necessary, to seek certain clarification from him. With this end in view, the Deputy Superintendent of Police/CBI sent a letter to Shri Chandraswami through his counsel Shri Pinaki Misra, on 23.7.1990, requiring him to arrange the presence of Shri Chandraswami on the date, time and place mentioned in the notice. It is also mentioned that this communication has been issued in accordance with the directions passed by this Court while granting permission to Chandraswami for going abroad/to remain abroad. Another notice appears to have been sent to Chandraswami at his last known address at New Delhi, requiring his presence in connection with the investigation in another case (St. Kilts' case).

6. It is true that the applicant Shri Chandraswami cannot be allowed to remain abroad for an indefinite period thereby frustrating the investigation of the present case. He is also bound to comply with the terms and conditions imposed by the Court while allowing him to stay abroad.

7. The question posed before the Court is as to whether the applicant has intentionally disobeyed any directions of this Court disentitling him further indulgence. The respondents have nowhere been allowed to serve Shri Chandraswami through his Advocate. All along, the condition was that the applicant shall make himself available to the CBI as and when he is solved with a notice 10 days in advance. It appears that the respondents have not made any effort to send such a notice to Shri Chandraswami. Sending of the letter to his counsel is no service on Chandraswami in the eyes of law or as per the undertaking. The respondent shall always be at liberty to summon Shri Chandraswami as and when his presence is required for further interrogation. At this stage, we may note that Shri Chandraswami was interrogated before he was allowed to go abroad in August, 1988. Thereafter, no attempt was made to secure his presence for further interrogation for a period of two years except by addressing a letter to his counsel on 23.7.1990. During this interregnum period of 2 years, learned Counsel for the petitioner informs that Shri Chandraswami has been visiting Delhi on number of occasions. His last stay at Delhi was for a period of four months from August, 1989 to November, 1989. During this period, the CBI did not make any attempt to complete the investigation for reasons best known to them. They have woken up only after the applicant Chandraswami moved the present petition for extension of his stay abroad for which a notice was issued to them on 20th July, 1990. Be that as it may, the respondents cannot be deprived of their discretion of requiring his presence as and when they so require, particularly, when new facts have come to their knowledge which require some clarification from Shri Chandraswami, but for that also, they have to serve the applicant personally, with 10 days' notice in advance. If in spite of service, the applicant does not appear, the respondent CBI can take appropriate steps to force his presence in India.

8. I am afraid, no relief can be granted to the Enforcement Directorate in Crl. M(M) 1550/90, inasmuch as they have within their power, to summon any person to give evidence and/or to produce documents under Section 40 of the FERA, 1973. It is a Code by itself and while exercising powers under Section 40, the Gazetted Officer of the Enforcement is exercising judicial powers within the meaning of Sections 193 and 228 of the Indian Penal Code. This Court cannot be allowed to act as a process serving agency of the Enforcement Directorate to summon any person and effect service of the notice on him whose presence they consider necessary for the investigation of any case. Similarly, they cannot be allowed to serve the summons on Chandraswami through his counsel. Prima facie, Chandraswami is not an accused inasmuch as the Report has not been filed in any Court of competent jurisdiction. Their petition is misplaced and not maintainable.

9. Before parting with this case, I may advert to the offer of the learned Counsel for the applicant Shri Chandraswami that the CBI can interrogate Shri K. L. Aggarwal the associate/Secretary of Shri Chandraswami, who is presently in India and competent to make a statement for and on behalf of the applicant and that Shri Chandraswami will be bound and ratify the statement so made. I do not propose to make any comment on the said offer as it is for the CBI to accept or reject the same.

10. In view of the above discussion, I accept the application and allow the petitioner to remain abroad for a period of four months w.e.f. 2.8.1990 on the same terms and conditions as contained in the orders dated 4.8.1988, 10.10.1988, 28.12.1988 and 30.1.1990.

11. In the end, I may make it clear that in case the applicant Chandraswami intentionally avoids to receive the summons for his presence before the respondent, he shall not be entitled to any indulgence of this Court in future. Furthermore, if by any chance, Shri Chandraswami happens to be in India during this period, he shall inform the respondents and make himself available for further investigation in all the cases in which his presence is required.