Tuncay Alankus And Anr. vs Central Bureau Of Investigation
2002 Latest Caselaw 898 Del

JUDGMENT

S.K. Agarwal, J.

1. This is second petition of the petitioners under Section 439 read with Section 482 of the Code of Criminal Procedure, 1973 (for short "Cr.P.C."), for grant of bail in case RC No. 3(A)/96-ACU.I, under Sections 120B/409/420 of Indian Penal Code (for short "IPC") and Sections 7, 11, 13(2) read with Section 13(1)(c)(d) of prevention of Corruption Act, 1988. Their first petition (Crl.M.(M) No. 1458/99), for bail was dismissed by this court on 26.5.2000. Against this order petitioner's Special Leave to Appeal (Crl.) (No. 2359/2000) was dismissed by the Supreme Court on 11.8.2000. The case of the petitioners is that on 30.10.2000, while withdrawing another SLP (Cri.) in the Supreme Court against the order upholding framing of charge, they had sought permission to move the trial court for bail and that their trial has been unduly delayed, therefore, they are entitled for bail.

2. Briefly stated the allegations are : that in 1995, petitioners Tuncay Alankus, Chairman & Chief Executive Officer and Cihan Karanci, Vice-President of M/s. Karsan Ltd., in conspiracy with other accused persons defrauded National Fertilizers Limited, Delhi (for short, "NFL"), to the extent of US $ 38,000/- (then equivalent to Rs. 133.0 crores), in the matter of the supply of 2,00,000 MT of urea of the NFL @ US $ 190 PMT (Cost, Insurance and Freight basis) against 100% cash pre-payment, which was to be guaranteed by the Insurance Policy also covering M/s. Karsan's risk of non-performance and non-delivery. They obtained 1% of the contract value of US $ 380,000 on 2.11.95, for paying premium towards the above insurance policy. The contract was signed on 9.11.95 and they were required to obtain remaining amount of US $ 37.62 million only after the submission of the said Insurance Policy. However, the petitioners in pursuance of a criminal conspiracy dishonestly submitted only a cover note dated 6.11.95 of NHK Marine, London and obtained US $ 37.62 million on 14.11.95 and the same was credited to the account of M/s. Karsan, with Pictet Bank, Geneva, Switzerland on 30.11.95. Thereafter the amount was misappropriated and shared amongst various conspirators and their associates. The said cover note dated 6.11.95, covered only marine perils and it did not counter guarantee 100% cash pre-payment and also did not cover risks of M/s. Karsan's non-performance and non-delivery. After the conspiracy was exposed and the case was registered. Petitioners were extradited to India on 3.10.1997 only after all their appeals opposing extradition were dismissed. After completion of investigation, charge-sheet was filed on 26.12.1997 against all accused persons including the petitioners; the cognizance was taken and charges against the petitioners and co-accused persons have been framed and evidence is being recorded.

3. Mr. Harjinder Singh, learned counsel for the petitioners firstly argued that petitioners are innocent and have been falsely implicated. The transaction in question was nothing but a civil dispute, and even basic ingredients of the offence of conspiracy, cheating or breach of trust etc. are not made out. Petitioners had no dishonest intention and they were inclined to perform their part of the contract of supply of urea but because of climatic condition of Russia, the urea could not be dispatched. Thereafter the case was registered and petitioners were arrested. Sh. R.N. Trivedi, learned Additional Solicitor General, argued to the contrary.

4. In my view, petitioners cannot be permitted to urge that it was a civil transaction after the dismissal of their revision petition (Crl.R.No. 109/99) against the order framing charge passed by this Court on 26.5.2000 observing that the conspiracy was executed with ingenuinity and dexterity. It was further held:-

"As noticed earlier, the NFL had paid 38 million USD to M/s. KARSAN for import of 200000 MT urea. The documentary evidence on record prima facie shows that after receipt of the said amount the accused Tuncay Alankus hurriedly withdrew the substantial amount from the corporate account of M/s. KARSAN and remitted/transferred it to the key players of the alleged criminal conspiracy including himself. The prosecuting agency has also produced documentary evidence to show that out of the said amount the accused Tuncay Alankus purchased certain properties and also transferred some amount of the account of his minor daughter Ruyan. The evidence on record raises a strong suspicion in favor of the view that the accused Tuncay Alankus and Cihan Karanci had no intention to supply urea to the NFL from the day one and even prior to the execution of the contract. A person can be said to have misappropriated some property including money, if he has used it in a way different from what he was bound to do by virtue of a contract or as a result of a legal relationship created through some process of law. The 'entrustment' within the meaning of Section 405 IPC may arise in 'any manner whatsoever'. That manner may or may not involve fraudulent conduct of the accused. Section 409 IPC covers dishonest misappropriation in both types of cases; that is to say, those where the receipt of property is itself fraudulent or improper and those where a public servant, merchant, broker, ETC. misappropriates what may have been quite properly or innocently received. All that is required is what may be described as 'entrustment' or acquisition of dominion over property in the capacity of a public servant, banker, merchant, broker, attorney or agent, who as a result of it, becomes charged with a duty to act in particular way, or, at least honestly. That being so, in the facts and circumstances of the case, the learned Special Judge was fully justified in invoking the penal provision of Section 409-IPC against the said accused persons."

5. the petitioners' Special Leave Petition (SLP No. 3427/2000) against the above order was dismissed on 30.10.2000, by the Supreme Court. Therefore, there is absolutely no merit in the contention that no case against the petitioners is made out and the same is rejected.

6. Mr. Harjinder Singh next argued that petitioners are Turkish nationals. They were arrested on 16.9.96 in Switzerland and extradited to India on 3.10.97. The charge-sheet was filed against them and others on 26.12.97. That they are in custody for the last more than five years; out of more than 150 witnesses cited by prosecution only 4 witnesses have so far been examined; and that petitioners cannot be discriminated and denied bail merely on the ground that they are foreign nationals. He argued that petitioners were extradited strictly on the condition that they would not be discriminated on the ground of caste, religion or nationality and that they are supposed to be innocent until their guilt is proved. He submitted that petitioners have already surrendered their passports; their Embassy is ready to give an undertaking that they would not issue travel documents to them; that they would stay at the rented accommodation with their families, where some guard can be posted and other conditions can also be imposed. Therefore, they be released on bail, as the right to speedy trial guaranteed under Article 21 of Constitution of India stands violated.

7. Sh. R.N. Trivedi, learned ASG appearing on behalf of CBI frankly and rightly conceded that the petitioners are entitled to equality before law, and equal protection of laws as guaranteed under Article 14 & 21 of the Constitution of India including right of speedy trial, as enunciated by the Supreme Court. He, however, vehemently opposed the bail on the ground that prosecution is not responsible for the delay in the trial and from the conduct of the petitioners, the prosecution has a reasonable apprehension that if petitioners are released on bail, they would flee from justice. He argued that prosecution is ready to abide by any direction for expeditious trial.

8. The law with regard to speedy trial as part of fair, just and reasonable procedure is implicit in Article 21 and reflected in Section 309 Cr.P.C. The seven Judge Bench of the Apex Court in a recent decision in P. Ramachandra Rao v. State of Karnataka , approved the guidelines for speedy trial laid down by the Constitution Bench in A.R. Antulay and Ors. v. R.S. Navan and Ors., . It was held:

"The constitution bench, in A.R. Antulay's case, heard elaborated arguments. The court, in its pronouncement, formulated certain propositions, 11 in number, meant to serve as guidelines. It is not necessary for our purpose to reproduce all those propositions. Suffice it to state that in the opinion of the constitution bench (i) fair, just and reasonable procedure implicit in Article 21 of the Constitution creates a right in the accused to be tried speedily; (ii) right to speedy trial flowing from Article 21 encompasses all the stages, namely, the stage of investigation, inquiry, trial, appeals, revision and re-trial; (iii) who is responsible for the delay and what factors have been contributed towards delay are relevant factors. Attendant circumstances, including nature of the offence, number of accused and witnesses, the work-load of the court concerned, prevailing local conditions and so on - what is called the systemic delays must be kept in view; (iv) each and every delay does not necessarily prejudice the accused as some delays indeed work in his advantage."

(emphasis supplied)

9. Thus it is necessary to examine whether the prosecution is responsible for delaying the trial; To recall the facts at the risk of repetition, after registration of the FIR on 28.5.1996, petitioners did not surrender. They were arrested on 16.9.1996 by Swiss Authorities in Geneva. They opposed the extradition at all levels. They could be extradited only on 3.10.1997. After completion of investigation, challan was filed on 26.12.1997. On 12.1.1998, the petitioners moved an application for transfer of their trial from the court of Shri Ajit Bharioke, Special Judge, Delhi to some other court on the ground that they did not expect justice from that court. On 27.3.1998, the case was transferred to the court of Shri V.B. Gupta, Special Judge, Delhi. After supply of copies etc. arguments were heard on behalf of eight accused persons, the charge was framed on 1.12.1998. Petitioners and four other accused persons filed separate revision petitions against the order framing the charge. The trial court record was also summoned, on some dates of hearing. These petitions were ultimately dismissed on 25.5.2000. Thereafter, trial again began. The case was posted for prosecution evidence on 5.7.2000 and 30 witnesses were examined. In the meantime, the accused A.E. Pinto, who was absconding was arrested in London. He could be extradited from London on 24.8.2000. During this period he was petitioning various authorities for getting his extradition order reversed. After investigations, supplementary challan against him was filed. Copies were supplied. As the case against petitioners and A.E. Pinto Arises, out of same conspiracy, CBI moved an application for joint trial. This application was opposed by the petitioners and some other accused persons. On 11.2.2002, the Special Judge, allowed the application and framed charge against the co-accused A.E. Pinto. Thereafter as prayed by the accused persons, the witnesses, who were earlier examined are now being re-examined and four witnesses have so far been examined. Perusal of the various order-sheets clearly shows that the delay in the trial cannot be attributed to the prosecution. Taking into consideration the factors which have contributed to delay and the attending circumstances including nature of the offence, petitioners cannot be heard to say that because of undue delay their right to speedy trial is violated, entitling them for bail.

10. Shri R.N. Trivedi, learned ASG submitted that even otherwise, petitioners are not released on bail, in view of their post conduct and that there is every likelihood of their absconding and fleeing from justice. In support of this submission, he argued that petitioners, in support of their bail application before the trial court pleaded that they are ready and willing to give security of immovable property to the tune of Rs. 133.0 crores by way of collateral security by pledging the land of the same value. Copies of the documents of land sought to be pledged, and an affidavit of the attorney of the land owners were filed. In their application, inter alia, pleaded:-

"The applicants/accused without prejudice to their rights are prepared to give the security of the total amount of Rs. 133 crores by way of collateral security in the shape of pledging the land of the said value. The applicants respectfully submit that the land is situated at Kukatpally (Shamsiguda), Balanagar Mandal, Ranga Reddy District, Sy. Nos. 206 to 249, Sy. Nos. 250 to 274, Total Area 356 Acres. Shri Naveen Chandra Mohan Goud, Son of Shri Mohan Lingam Goud, age 35 years, R/o H.No. 23-6-161, Hari Bowli, Shahalibanda, Hyderabad, A.P. is a General Power of Attorney holder of the owners of the said land. A copy of the Power of Attorney is enclosed herewith and marked as Annexure A. The said Shri Naveen Chandra Mohan Goud is ready and willing to offer the above land as security to the tune of Rs. 133 crores and an affidavit to this effect is also enclosed herewith and marked as Annexure B. The said land is free from all encumbrances."

11. The title deed of the land on verification by the CBI were found to be false an fabricated. The attorney also filed another affidavit stating that the earlier affidavit was obtained from him, on misrepresentation and he withdrew the same. Learned counsel for petitioners in reply argued that the affidavit was withdrawn under the threat of the CBI and that the petitioners who were in custody, cannot be blamed for the same. I am unable to agree. Petitioners cannot feign ignorance or innocence and absolve themselves of such a conduct. The petitioners are represented by seasoned lawyers and on their instructions application seeking to pledge immovable properties must have been moved. It was only after enquiry that the documents were found to be false and fabricated. This clearly shows that petitioners did attempt to play fraud upon the court to secure bail on the basis of forged documents.

12. Not only that, during the pendency of this petition, on 12.7.2001, Shri Herjinder Singh, learned counsel for petitioners submitted that the petitioners are ready and willing to give Bank Guarantee to the satisfaction of the Investigating Agency towards all the amounts involved in the case; that the Investigating Agency has also seized some amount which was lying in foreign banks of the petitioners. The sought permission to hand over their application in the Court. Their plea was recorded and they were directed to file the same in the Registry. Advance copy was supplied to CBI. Relevant portion of the application dated 12.7.2001 reds as under:-

"1. The contract is for USD 38 million, for which a decree has been obtained by the N.F.L. from the Arbitration Tribunal, ICC and the matter is in appeal.

2. The Central Bureau of Investigation has attached money belonging to Karsans in foreign countries. They may disclose the amount of money attached by them.

3. The petitioners are prepared to give the security in the following form:-

i) Bank guarantee of the remaining amount to the satisfaction of the bank approved by the N.F.L. or any other agency this Hon'ble Court may decide.

ii) to vi) xxxx"

13. Surprisingly, on the next date petitioners moved another application (Crl.Misc.No. 3284/2001) seeking to withdraw the earlier statement, pleading that the submissions made by the counsel for petitioners that they are ready to give security of US $ 38 million was without instructions. In short the conduct of the petitioners in producing false and fabricated documents before the trial; offering to give bank guarantee for US $ 38.0 million and withdrawing the same on the next date pleading communication gap, does give rise to suspicion about their bona fide. Thus the apprehension of the prosecution that if the petitioners are granted bail, they are likely to flee, cannot be said to be unfounded. It may be mentioned here that CBI seized about 12 crores of rupees, lying in the foreign bank accounts of the petitioners, being part of the money obtained by fraud. The petitioners are even contesting the transfer of the said amount to India in the various courts abroad on the plea that it may affect their rights in civil suits.

14. To sum up, as per the allegation, petitioners through their company M/s. Karsan, which was listed in Ankara (Turkey) as Tour Operators having capital of US $ 200, in pursuance of a well hatched conspiracy with other high ups duped NFL of US $ 38 million in 1995. Not even a grain of urea was supplied. The entire defrauded amount has till date not been seized and it is still beyond the reach of justice. In the facts and circumstances of this case and keeping in view the nature of allegations, gravity of the offence and conduct of the petitioners no case for grant of bail is made out and the same is declined.

15. The fact, however, remains that petitioners are in custody for the last more than five years, and the trial is still at the initial stages; out of 153 witnesses cited by the prosecution only four witnesses have so far been examined. Expeditious trial is the soul of criminal justice. The Apex court in P. Ramachandra Rao (Supra) observed that the right to speedy trial is in public interest and fair, just and reasonable procedure implicit in Article 21 of the Constitution gives a right to the accused to be tried speedily. It was held that the criminal courts should exercise powers, such as those under Sections 309, 311 and 258 of Code of Criminal Procedure to effectuate the right to speedy trial and in appropriate cases, jurisdiction of High Court under Section 482 of Cr.P.C. and Articles 226 and 227 of Constitution can be invoked for suitable directions. In my view, it would be in the interest of justice to issue directions for holding day-to-day trial in the case.

For the foregoing reasons, Registrar General of this Court is directed to take appropriate steps for getting the above case assigned to a Special Judge, where day-to-day trial can be held. The Special Judge to whom the case is assigned would take up this case day-to-day and conclude the prosecution evidence preferably within six months from the date first fixed by him for evidence. If the prosecution fails to conclude its evidence during this period, on account of their fault, the trial court may consider the release of the petitioners subject to the condition requiring them to give the bank guarantee equivalent to the amount of US $ 38.0 million. The amount, if deposited, shall be kept in a nationalised bank in fixed deposit, and would be subject to the outcome of this case. This would be without prejudice to the rights and contentions of the petitioners. Trial Judge may impose such further condition as may be deemed fit and proper.

With the above direction, the petition stands disposed of. Any observations made herein shall not affect the merits of the case during the trial. Copy of the order be sent to the Registrar General for immediate action. Petition stands disposed of.