Mr. Tuncay Alankus vs The Central Bureau Of ...
2010 Latest Caselaw 2951 Del

* IN THE HIGH COURT OF DELHI AT NEW DELHI

+               Criminal Revision Petition No. 126/2005

                                         Reserved on: September 04, 2009
                                         Date of Decision: June 04, 2010

        MR. TUNCAY ALANKUS                                    .....Petitioner

                       Through:    Mr.Amit Sibbal, Mr.Mahmood Alam and
                                   Mr.Vinay P. Tripathi, Advocates.

                            VERSUS

        THE CENTRAL BUREAU OF INVESTIGATION .....Respondent
                 Through: Mr.Sanjay Jain, Senior Advocate with
                          Mr.V.N.Ojha and Ms.Ruchi Jain,
                          Advocates.

                            AND

                Criminal Misc. Petition No. 1347/2008

        TUNCAY ALANKUS & ANR.                                .....Petitioners

                       Through:    Mr.Amit Sibbal, Mr.Mahmood Alam and
                                   Mr.Vinay P. Tripathi, Advocates.

                            VERSUS

        CENTRAL BUREAU OF INVESTIGATION .....Respondent
                 Through:  Mr.Sanjay Jain, Senior Advocate with
                           Mr.V.N.Ojha and Ms.Ruchi Jain,
                           Advocates.

%       CORAM:
        HON'BLE MS. JUSTICE ARUNA SURESH

(1)     Whether reporters of local paper may be allowed to see the
        judgment?




Crl.R.P. No.126/2005                                             Page 1 of 33
 (2)     To be referred to the reporter or not?                           Yes

(3)     Whether the judgment should be reported in the Digest?           Yes

                              JUDGMENT

ARUNA SURESH, J.

1. This revision petition has been filed by Tuncay Alankus,

accused No.4 in case „CBI Vs. C. K. Ramakrishnan & Others‟, challenging

the order of the Special Judge dated 11 th October 2004, whereby the

Learned Judge has restricted number of witnesses to be examined by the

petitioner in his defence. Petitioner has also challenged the order dated 17 th

November 2004, whereby the Learned Judge, while allowing witnesses to

be examined by video conferencing, directed the petitioner to bear the cost

thereof. Impugned is also an order dated 6 th December 2004, whereby the

Court had fixed the time schedule for examination of the witnesses, failing

which the defence evidence was to stand closed. Another order dated 8th

February, 2005 has also been impugned by the petitioner.

2. It is noted that before filing the revision petition, petitioner

had challenged the impugned orders of the Trial Court in a writ. The said

writ petition was disposed of with observations that petitioner should have

challenged the impugned orders in revision and not in a writ petition.

3. Revision petition was allowed by this Court vide its order

dated 14th July, 2005. The said order was challenged by the Central Bureau

of Investigation (for short „CBI‟) by way of a criminal appeal being Appeal

No.9250 of 2006 in the Supreme Court. Appeal was allowed by the

Supreme Court vide its order dated 14th December, 2006 and the order of

this Court dated 14th July 2005 was set aside. As regards question of

examination of witnesses by video conferencing at the cost of the petitioner,

it was left open to be decided by this Court.

4. In brief, case of the prosecution is that Karsan Danismanalik

Turzim Sanayi Ticaret Ltd. STI. (for short „Karsan‟), a company

incorporated under the laws of Turkey had entered into a contract with

National Fertilizers Limited (for short „NFL‟) on 9 th November, 1995 for

supply of 2,00,000/- metric tons of urea. An amount of US$ 38 lacs was

remitted to Pamuk Bank TAS, Ankara as per Karsan‟s instructions for

payment of insurance premium. The said amount was not accepted by the

Bank. An amount of US$ 37.62 million towards the balance consideration

was remitted to Karsan‟s account by State Bank of India on the instructions

of NFL on 29th November, 1995. The said amount was credited to the

account of Karsan in Piceet Bank, Geneva on 29th November, 1995.

Petitioner is the chairman of Karsan. Allegations are that Karsan

dishonestly induced NFL to pay the amount and thus committed offences

under Sections 120-B/409 and 420 of the Indian Penal Code (hereinafter

referred to as „IPC‟). Petitioner was extradited to India from Switzerland

on 3rd October, 1997 to face trial in the proceedings. A charge sheet was

filed. The Special Judge framed charges on 1st December, 1998. Petitioner

was enlarged on bail by an order dated 7 th June, 2003.

5. After prosecution evidence was concluded, petitioner along

with other co-accused persons was examined under Section 313 of the

Criminal Procedure Code (hereinafter referred to as „Cr.P.C.‟). Petitioner

filed a list of sixty three proposed defence witnesses. Vide order dated 11 th

December 2004, Special Judge permitted examination of seven defence

witnesses within the said list. Since some of the witnesses were foreigners

and beyond the reach of the Court, the Special Judge also recorded that

witnesses permitted to be examined, be produced by the petitioner on his

own expense or alternatively examine them through video conferencing.

6. By order dated 17th November 2004, the Special Judge

disposed of an application filed by the petitioner seeking permission to

examine the said seven witnesses on commission. While doing so, the Trial

Court referred to Section 243(3) Cr.P.C., which permitted the Court to

require the accused to deposit reasonable expenses incurred by defence

witnesses for attending the proceedings. Vide order dated 6th December

2004, request of the petitioner seeking extension of time for examination of

witnesses beyond the time granted, was declined.

7. In this revision petition, petitioner has sought examination of

twenty one additional witnesses, besides seven witnesses already permitted

by the Trial Court. Out of the said seven witnesses, one witness has already

been examined by the Trial Court and the other six witnesses have been

dropped. Out of twenty one additional witnesses, DW-1, Representative of

M/s GEO Chem, Laboratories (P) Ltd. has already been examined by the

Trial Court on 9th September, 2005 as DW-5. Similarly additional DW-7,

Mr. Sirzat Yahyayef, Inter Invest Bank, Republic of Kazakhstan was

examined by the Trial Court on 30th/31st August, 2005 as DW-4. Additional

DW-16, Mr.Valadimir S.V. Stepushikin expired on 3rd October, 2005.

Name of additional DW-11, Mr.Alexander Miailov Republic of Russia Gor,

Mosvewy, UL, Chernishivskog also finds mention at serial number 15.

Therefore, name of the witness appearing at serial numbers 11 and 15 is the

same. Hence, this list is now confined to remaining seventeen DWs, whom

the Trial Court did not find relevant for just and proper decision of the case.

8. Foremost question to be decided by the Trial Court is whether

Karsan dishonestly made a promise which they never intended to fulfill. In

other words, whether they entered into an agreement with NFL with a

dishonest intention not to perform the contract and at the same time,

cheated NFL of the money. Such an intention can be gathered from

attending circumstances. Therefore, only such witnesses can be considered

as relevant and permitted to be examined, who can throw some light on the

intention of the petitioner at the time of execution of the contract keeping in

mind that petitioner cannot be allowed to prolong the trial without any

meaningful purpose.

9. Mr. Amit Sibbal, learned counsel for the petitioner has

submitted that for an offence of cheating and criminal breach of trust,

fraudulent and dishonest intention must be shown to be existing from the

very beginning of the transaction. Mere failure to keep the promise at a

subsequent stage by the defaulting party does not make out an offence of

cheating. Substance of the complaint has to be seen. He further submitted

that breach of contract for supply of urea allegedly by the petitioner is a

civil breach of contract and the only defence available to the petitioner is to

prove that he had no fraudulent or dishonest intention to cheat the

Government at the time of execution of the contract and for that purpose he

is entitled to examine witnesses to prove that mensrea was missing in the

case when the contract was executed between Karsan and NFL. Petitioner

is entitled to examine witnesses to demolish the case of the prosecution that

petitioner had a dishonest intention in not supplying urea in time and for

that purpose subsequent events which took place become relevant and

petitioner is within his rights to examine the witnesses to prove his bona

fides. It is emphasized that the Trial Court under the circumstances went

wrong in declining the petitioner to examine other witnesses named in the

list of witnesses filed by the petitioner, except seven.

10. He has made it clear that by way of this revision petition, he

seeks permission to examine only twenty one additional witnesses. He has

referred to 'Anil Mahajan Vs. Bhor Industries Ltd. & Anr.' (2005) 10

SCC 228. In the said case, a complaint was filed by the respondent

invoking Sections 420, 415 and 418 IPC. Magistrate issued process against

the appellant which was challenged by him. While allowing the appeal,

Supreme Court considered the allegations made by the complainant in the

complaint to reach to a conclusion, if any offence under Sections 420, 415

and 418 IPC was made out justifying summoning of the appellant. This

judgment, therefore, is not of any help to the petitioner as charges in the

case have already been framed and prosecution has closed its evidence. The

case is at the stage of recording of defence evidence. It is for the Trial

Court to assess the evidence of the parties after trial is complete and decide

if or not petitioner is guilty of having committed any of the offences

charged for.

11. Section 311 Cr.P.C. confers power on the Court to elicit all

necessary materials by playing an active role in the evidence collecting

process. The object of the provision as a whole is to do justice not only

from the point of view of the accused and the prosecution but also justice

from the point of view of orderly society. Court is required to monitor the

proceedings in aid of justice in a manner that, something, which is not

relevant, is not unnecessarily brought on record.

12. Powers of the Court under Section 165 of the Indian Evidence

Act, to some extent are complimentary to its powers under Section 311

Cr.P.C. Section 311 Cr.P.C. consists of two parts. Firstly, it gives

discretion to the Court to examine the witness at any stage of inquiry, trial

or other proceedings under the Code by summoning the witness or, examine

any person present in the court or, recall and re-examine any person whose

evidence has already been recorded for the purpose of discovering relevant

facts or obtaining proper proof of such facts as are necessary to arrive at a

just decision in the case.

13. Second part is mandatory in nature and it compels the court to

examine a witness if his evidence appears to be essential to the just decision

of the case. Though the discretion given to the Court is very wide with no

limitation either with regard to the stage at which the power should be

exercised or with regard to the manner in which it should be exercised, that

widest power requires a corresponding caution that discretionary powers

should be invoked as and when the exigencies of justice require and

exercised judicially with circumspection and consistently with the

provisions of the Code. Second part of the Section does not permit any

discretion but, binds the Court to take necessary steps if a fresh evidence to

be obtained is essential for just decision of the case.

14. This Section, in no manner, confers any party a right to

examine, cross-examine and re-examine any witness. This is a power given

to the Court not to be merely exercised at the instance of any one party but,

the powers conferred and discretion vested are to prevent any irretrievable

or immeasurable damage to the cause of society, public interest and

miscarriage of justice. Reference is made to 'Zahira Habibulla H. Sheikh

& Anr. Vs. State of Gujarat & Ors.', (2004) 4 SCC 158.

15. Thus, it is clear that before exercising the power under

Section 311 Cr.P.C., Court must apply its judicial mind and consider the

necessity to permit summoning of the witnesses. Court is also required to

take due care of its powers under this Section so that the same are not used

to fill up the lacunae left by the prosecution or, by the defence or, to the

disadvantage of the accused or, to cause serious prejudice to the defence of

the accused or, to give an unfair advantage to the rival side and further

additional evidence should not be received as a disguise for retrial or to

change the nature of the case against either of the parties. The only factor

which should weigh in the mind of the Court while exercising its powers

under Section 311 Cr.P.C. is whether such material is essential for the just

decision of the case.

16. In this case, petitioner accused has sought examination of

twenty one additional witnesses, two of which have already been examined

by the Trial Court. Now it is to be seen if witnesses sought to be examined

are relevant for the just decision of the case.

17. Mr. Sibbal, appearing on behalf of the petitioner has

submitted that Bank Manager of Bank of Central Greece, Athens/Greece

(Serial No.2) is a relevant witness to prove that the amount of US$ 3.42

lakhs was transferred to the Bank of Central Greece by way of TT as

insurance premium for non-delivery and non-performance of the supply of

urea under the contract in 1995. It is argued that present dispute is purely

one of a possible breach of contract between the contracting parties, and in

these circumstances the allegations of fraud and conspiracy against M/s

Karsan made by NFL are totally unsupportable.

18. Mr.Sanjay Jain, Senior counsel appearing on behalf of CBI

has submitted that it is an admitted fact by the prosecution that the said

amount was transferred to Mediterranean Insurance Limited and therefore,

the factum of transfer stands proved vide document D-177. Since Bank

Manager sought to be examined cannot prove the performance of transfer,

therefore, he is an irrelevant witness. Trial Court vide impugned order

dated 11th October, 2004 declined the request of the petitioner to examine

this witness with the observations:-

"The accused also wants to examine witnesses from bank of Central Greece (S.NO. 3 and 4) and KZI Bank (S.NO 29) to show payments made by him to the Insurance Company. He wants to show that he made payment of USD 3.42 lakhs for the consolidated insurance and a further payment of USD 17,000 separately for shipment. The law of interpretation of document is well settled. If the language of document is clear, the terms and conditions of the document have to be construed from that document only. Therefore payments made by the accused to the Insurance Agent are totally ir-relevant."

19. Document D-177 dated 23rd November, 1995 is written by

Karsan and is an order of payment. It seems that this document has not

been proved in evidence as it is marked P-95/23. Unless a document is

proved in evidence, Trial Court cannot interpret and construe the terms and

conditions of the document. Document D-177 is silent regarding payment

of US$ 176,72. Under these circumstances, though factum of payment of

US $ 3.42 lakhs being transferred to Mediterranean Insurance Limited is not

disputed but the document is required to be proved for its interpretation.

Therefore, examination of the Bank Manager of the Bank of Central Greece

becomes relevant. There is no serious objection by the respondent if this

witness is allowed to be examined.

20. Petitioner has sought examination of Manager, Camboi

Bank of Central Greece (Serial No.3) to prove payment of US $ 17000 of

marine insurance premium related to the first shipment of 9000 MT of urea,

sent to the said bank to the account of the Insurance Company. This

shipment was sent to India in August 1996 and was subsequently rejected

on account of non-meeting the specification of the contract. Trial Court

refused to permit the petitioner to examine this witness. Respondent has

objected to the examination of this witness being irrelevant. To my mind,

this witness is also relevant as petitioner‟s endeavour is to prove his bona

fides from the testimony of this witness.

21. Another witness sought to be examined is Manager of Balasco

Instanbul Shipping Trading SA Istanbul Turkey (Serial No.4). It is

submitted by counsel for the petitioner that this witness is relevant to

depose that he had arranged the shipping consignment of 9000 MT of urea

to prove the intention of the petitioner to supply the shipment and the

company had to pay damages as the shipment was delayed for three weeks

at Bhavnagar Port and was returned back by NFL for the reason that the

shipment was not up to the standard of the contract. He further submitted

that examination of this witness is also relevant to reflect on the past

conduct and business dealings of Karsan with other companies and

customers. In short, this witness is sought to be examined to depose on the

charter party contract with Karsan for transportation of urea to NFL.

22. To emphasize the relevancy of this witness, my attention has

been brought to the submissions made by the petitioner while submitting

arguments on charge. Perusal of internal page 76 of the order on charge

indicate that petitioner had taken a plea that he was an honest, renowned

businessman and had entered into the impugned business transaction with

NFL with the sole object to further his business interest but, became victim

of certain political developments in India which took place during the

relevant time. Though respondent has objected to the examination of this

witness on the plea that he is irrelevant but, there is no serious objection to

his examination, he being a relevant witness in the facts and circumstances

of the case.

23. Another witness sought to be examined is Mr.Rafacel Leoni,

Financial Consultant, SBR, Trust Sielminger, Germany (Serial No.5) to

prove that first contract dated 27 th July, 1995 was a blocked fund method

contract and his examination is relevant to prove bona fide intention of the

petitioner and NFL was required to send funding instrument to SBR Trust

for supply of urea. Trial Court rejected examination of this witness on the

grounds that it was not necessary to examine any witness to prove trade

practice and to define practice fund method of payment in the Court and the

Court can take notice of such practice suo moto.

24. Counsel for the petitioner has submitted that purpose of

examination of this witness is not to explain blocked fund method. This

witness is relevant as he has personal knowledge about the first contract and

he is to depose on facts as well as documents and would also depose about

the reasons for second contract. There were two contracts with Karsan

dated 27th July, 1995 and 9th November, 1995 respectively. However, first

contract was not acted upon and the present suit is based on non-fulfillment

of the second contract. Under the circumstances, it has been argued by

counsel for the respondent that examination of this witness relating to the

first contract is inconsequential and hence is not required. However, there

is no vehement objection to the examination of this witness. To my mind

this witness is relevant to reflect on mensrea i.e. mental intention of the

petitioner at the time of execution of the contract.

25. Mr.S.Vepuri Murty of Mylyn Newton, USA (Serial No.6) is

sought to be examined to prove that the amount of US$ 37.62 was received

by him from M/s Karsan as a controlling authority of Mylyn Holdings Ltd.

which was for investment purposes and there was no dishonest transfer and

the purpose for which the money was paid. It is pointed out by counsel for

the petitioner that this witness also faced a criminal complaint filed against

him by NFL to recover the funds transferred to him, which according to

NFL were stolen funds, rightfully belonging to it and it had the right to

recover the same. Under the circumstances, this witness is relevant to be

examined by the petitioner to meet the allegations that this witness had held

the money of NFL deposited by Karsan with Mylyn Holding. There is

hardly a dispute to the examination of this witness.

26. Mr.Karpenko Alazander Efimovich (Serial No.8), Urea Ships

Captain, Russia and Mr.Ahmed Murad (Serial No.9), Captain M/s Sibir,

Russia are sought to be examined by the petitioner to prove that urea was to

be shipped to India but, as first shipment was refused at Bhavnagar Port by

NFL and in the meantime petitioner was arrested, no further shipment of

urea could be made. Examination of these witnesses is opposed by the

respondent alleging that as per the contract, each shipment of urea was to

consist of minimum of 25000 MT of urea whereas first shipment was sent

only of 9000 MT of urea and if Karsan had more than 9000 MT of urea, the

same could have been transported vide first shipment itself, and also that

since petitioner had purchased/ procured only 9000 MT of urea, he sent

only the said quantity and there was no occasion for any further dealing as

case had been registered against the petitioner on 28th May, 1996 and

petitioner had already been arrested. Trial Court refused to grant

permission to examine this witness on the ground that in view of the

admitted facts of the parties that only one shipment of 9000 MT of urea was

sent and there was no other shipment, examination of this witness was

unnecessary.

27. Counsel for the petitioner has argued that he was told not to

deliver other shipment of urea due to refusal by the complainant to accept

the shipment of 9000 MT of urea. He has referred to Bill of Lading mark

D-3/9A, sought to be proved in evidence, to prove as to why the ships were

diverted and at whose instance. The shipment which was diverted was of

June 1996. He has submitted that Trial Court went wrong in refusing the

petitioner to examine these witnesses. He has submitted that examination

of these witnesses is relevant to prove bona fide intention of the petitioner.

28. Ex.PW-38/L41 is a letter written by Karsan to NFL indicating

the shipment schedule and the quantity of urea which each shipment would

carry and also the Port from where this shipment would be dispatched. In

his statement under Section 313 Cr.P.C., in answer to question No. 283,

petitioner has deposed about shipping schedule and the loading Ports of

other shipments as contained in Bill of Lading. He also requested the Court

to summon these witnesses to testify and explain the preparations made by

Karsan for supply of urea as per the contract. Under the circumstance, a

fair opportunity has to be given to the petitioner to prove his defence and

examination of these witnesses is also relevant for just decision of the case.

29. To prove that Karsan had sufficient stock of urea to be

shipped to India in CIS Countries as well as with Karsan itself in Russia as

per the schedule of supply, which could not be shipped because of bad

weather conditions and was lying for long, petitioner seeks to examine Mr.

Michail Capuryan (Serial No.10), Russia and Mr. Alexander Miailov (Serial

No.11, this witness is also cited at Serial No.15), Russia. It is argued by

counsel for the petitioner that these two witnesses are required to be

examined to negate the intention not to send urea to India and also to prove

reasons why shipment was not in time. Mr. Michail Capuryan, who

happened to be the Port Manager, was personally aware of the terms

contained in Freight Forwarding Contract and his deposition is relevant in

view of Article 13 of the contract. He has emphasized that examination of

these witnesses is necessary to prove the photographs placed on record and

also when the same were taken. He pointed out that the Trial Court did not

deal with the relevancy of these witnesses in the impugned order.

30. It is argued by counsel for the respondent that these witnesses

are false and fabricated witnesses as their evidence is doubtful because NFL

had sent several letters to Karsan, to know the place of stock so that

inspection team could be sent for inspecting the quality and quantity of urea

as envisaged in the contract but, no such information was given by Karsan.

He further deposed that PW-40 Mr.N.K.Gupta, Executive Director of NFL

had visited Ankara, Turkey and questioned the petitioner about the stock of

urea but no information was given. He has submitted that shipment of 9000

MT of urea was purchased by the petitioner in July 1996 from Salvet

Company, which indicates that accused had no stock of urea at the relevant

time. Testimony of PW-40 Mr.Gupta do suggest that he was not given

information about availability of the stock. The fact remains, to controvert

the case of the prosecution that Karsan had dishonest intention at the time

of execution of the agreement not to supply urea in terms of the contract

and also to cheat NFL of money payable by it under the contract, petitioner

has to produce reasonable and relevant evidence. Some of these witnesses

become relevant to complete the chain of incidents as per defence of the

petitioner. Whether the witnesses are fabricated or false is a question which

cannot be determined at this stage. It is only during their examination and

cross-examination that their genuineness and honesty would emerge.

31. As regards documents indicating availability of stock,

petitioner was entitled to produce the documents at the relevant stage and

not when the charge sheet was filed. Even if there is no documentary

evidence regarding availability of stock of urea with the petitioner, he is

within his rights to defend his case by producing oral evidence. Thus for

the limited purpose of proving nature of intention of the petitioner, these

two witnesses become relevant.

32. Mr.Bartrand Grillon, Manager of Nimaco, Switzerland (Serial

No.12) is required to be examined by the petitioner on the plea that he

would depose regarding urea production certificate issued by Karsan and

given by him to various buyers in India. Trial Court has not considered the

relevancy of this witness in the impugned order. It is submitted that this

witness is required to be examined to prove past conduct and previous

supplies. This witness becomes relevant in view of the letter dated 25th

October, 1995 written by Mr.Vikram Srivastava, Director of J.P.Srivastava

Associates Trading (Pvt.) Limited to NFL, as this letter finds mention the

offer for 1,00,000 MT of urea from its principals M/s Nimaco Ltd. This

witness happened to be the Manager of Nimaco. Only objection raised to

the examination of this witness is that the purpose for which the witness is

required to be examined, stands achieved by deposition of other witnesses

such as witnesses No. 34, 65 and73. They are all prosecution witnesses.

This objection is not sustainable as petitioner is within his rights to rebut the

prosecution case. There is hardly any opposition to his examination as a

defence witness.

33. Another witness sought to be examined by the petitioner is

Manager, KZI Bank, Tolebi, Kazakhstan (Serial No.13) to prove transfer

made to Insurance Company related with marine insurance premium. Trial

Court refused examination of this witness holding that the law of

interpretation of documents was well settled and if the language of the

document was clear, the terms and conditions of the document would have

to be construed from that document only and therefore, according to the

Trial Court, payments made by the petitioner to the Insurance Agent were

totally irrelevant.

34. Counsel for the petitioner has argued that insurance premium

for all the ships including the one which arrived in India were paid by this

Bank. According to him, examination of this witness is relevant to

complete the circle. This witness would also prove the instructions given

for payment of each shipment‟s insurance premium , a disputed fact by the

prosecution and also the payments of other shipments as per the Bill of

Lading. To my mind, the Trial Court while disallowing the examination of

this witness did not separately consider the relevancy of this witness.

Rather it dealt with this witness along with other witnesses, namely, Bank

Manager of Bank of Central Greece and Manager, Camboi Bank of Central

Greece (Serial Nos. 2 and 3 respectively). Those two witnesses are related

to insurance premium payments pertaining to the first shipment. Unless a

document is proved in evidence, the terms and conditions contained therein

cannot be interpreted or construed by the Court from the document itself.

Hence, examination of this witness also becomes relevant for just and

proper decision of the case.

35. Mr.Ivanov Sheri Petrovich (Serial No.14), Urea Ships

Captain, Malta is another witness to depose on urea shipment effected

through his ship. It is submitted by counsel for the petitioner that

examination of this witness is required to prove certain facts leading to

rejection of the Cargo without any sample test and also to prove certain

documents placed on record which are yet to be proved in evidence. Trial

Court seems to have declined the permission to examine this witness while

considering the relevancy of witnesses appearing at serial Nos. 8 and 9 and

other witnesses appearing in the original list at serial Nos. 35 and 37 who

were later on dropped by the petitioner. Since this witness is to depose

about shipment of 9000 MT of urea, the only shipment which reached

Bhavnagar Port, India and the reasons for rejection of urea being not up to

the standards of the contract, his testimony becomes relevant for just and

fair decision of the case on merits. His examination cannot be refused

simply because witnesses appearing at serial Nos. 8 and 9 have also to

speak, about the urea shipment effected through their respective ships as

they have nothing to state about shipment of 9000 MT of urea arrived at

Bhavnagar Port, India through M.V. Ismail LN Ship.

36. Mr.G.A.Batalin, Director of Operation, Morskoj Port, Sea

Harbour, Petersburg Ltd., Port-I, Russia (Serial No. 17) seems to be a

formal witness in nature as he is sought to be examined to prove Karsan

Port Contract/Port Stock. It is submitted by Mr. Sibbal counsel for the

petitioner that this witness is relevant to be examined as he is to depose

regarding his relation to the supply of urea and to prove that payment was

made and that Trial Court has not given any reason why it rejected the

examination of this witness. Name of this witness also appears in the

statement of the petitioner recorded under Section 313 Cr.P.C. There is a

document, Ex. DW-3/E1 placed on record which indicates participation of

Mr.G.A.Batalin in shipment of urea. All the documents placed on record

relating to Karsan Port Contract and the role played or to be played by

Director Port Operation are required to be proved in evidence as some of

the documents could not be exhibited for want of evidence. Petitioner also

wants to prove on examination of this witness that the goods sent were in

conformity with the order placed. The Court had declined to examine this

witness observing that status of Karsan had no relevance. However, since

this witness dealt with the consignment at the Port, his testimony becomes

relevant. Besides during the course of arguments, counsel for the

respondent did not raise much objection to the examination of this witness.

I find no reason to refuse examination of this witness by the petitioner.

37. Petitioner sought permission to examine Dydk Georgly

Michailovich, Russia (Serial No. 18) to throw light on the operation of the

Karsan within first sector, St. Petersburg Port No.2. Trial Court has not

given any reason for rejecting this witness. Examination of this witness

becomes relevant for assessment of the conduct of the petitioner in his

business transactions.

38. Counsel for the petitioner has submitted that Manager SGS

Vostak Ltd., St. Petersburg, Russia (Serial No.19) is required to depose on

the analysis of urea at St. Petersburg Port during loading and the related

report. The report has already been proved in evidence as Ex. PW-40/DD5.

It is submitted that he is the person who has direct knowledge of the urea

which reached at Bhavnagar Port and was rejected as of sub-standard

quality and what had caused confusion to the quality of the supply, as per

specification in Article 1 of the contract. The court has not given any

reason for not permitting examination of the witness. It is pertinent that

prosecution itself has relied upon the report of SGS which has been proved

in evidence as Ex.40/DD5. Therefore, under the circumstances, when a

report is relied upon by both the parties, examination of this witness

becomes irrelevant.

39. Another witness sought to be examined is Manager Estrans

Services Ltd., Tallinn, Esdnia (Serial No.20) to depose regarding the

contract of Karsan with Tallinn Port. The said contract is marked D-3/11

on the record. Admittedly, nothing was shipped from Tallinn Port by

Karsan, nor any stock was presumably kept there because despite repeated

requests, petitioner did not allow inspection of the stock and if any stock

was lying at Tallinn Port, Mr. Gupta (PW-40) would have been allowed to

examine the same. Besides, name of Tallinn Port does not find mention in

any of the documents filed on record by the petitioner in support of his

defence, except a copy of the contract executed between Karsan and Tallinn

Port. May be that petitioner had contracted with Tallinn Port for shipment

of its goods to other places and may be that copy of this contract was sent to

NFL, the fact remains that services of Tallinn Port were never taken by

Karsan to enforce the contract.

40. It is argued by counsel for the petitioner that this witness has

direct knowledge of the reasons as to why the contract could not be

executed further and therefore, he is relevant to depose on adverse

conditions prevailing at the relevant time. As regards, bad weather

conditions prevailing at the relevant time, witnesses appearing at serial Nos.

9 and 10 have been considered as relevant for examination. Therefore,

examination of this witness, under the circumstance, becomes irrelevant as

not many witnesses are required to be examined to state the weather

conditions prevailing at the relevant time, which prevented further shipment

of urea to India in terms of the contract. Hence, examination of this witness

is declined being irrelevant.

41. Name of Mr. Child Obaid, Sponsor, Edible Food Stuff, Dubai

(Serial No. 21) does not find mention in the initial list disclosing names of

sixty three witnesses to be examined by the petitioner. Name of this

witness has been added subsequently by the petitioner. It is pertinent that

other partner of M/s Edible Food Stuff Trading, namely, Mr. Vasudev

Prayani, PW-46 has already been examined by the prosecution.

Examination of Mr. Child Obaid can in no manner improve upon the

statement of PW-46, who was the actual activator of M/s Edible Food Stuff.

Hence, examination of this witness cannot be allowed, firstly, being

irrelevant and secondly, in the revision petition, petitioner cannot be

allowed to add to his list of witnesses a name, which was not placed before

the Trial Court.

42. In view of my discussion as above, petitioner is allowed to

examine the following witnesses:-

Bank Manager of Bank of Central Greece, Athens/Greece, Manager

Camboi Bank of Central Greece, Manager of Balasco Instanbul Shipping

Trading SA Istanbul Turket, Mr.Rafacel Leoni, Financial Consultant, SBA,

Trust Sielminger, Germany, Mr. S. Vepuri Murty of Mylyn Newton, USA,

Mr.Karpenko Alazander Efimovich, Mr.Ahmed Murad, Mr. Michail

Capuryan, Russia and Mr. Alexander Miailov, Mr.Bartrand Grillon,

Manager of Nimaco, Switzerland, Manager, KZI Bank, Tolebi, Kazakhstan,

Mr.Ivanov Sheri Petrovich, Mr.G.A.Batalin, Director of Operation, Morskoj

Port, Sea Harbour, Petersburg Ltd., Port-I, Russia and Dydk Georgly

Michailovich, Russia (appearing at serial Nos. 2 to 6, 8 to 14, 17 and 18

respectively).

43. Other submission made by Mr.Sibbal is that State should be

asked to bear the cost of examination of the witnesses on video

conferencing. He has submitted that Trial Court went wrong, when it asked

the petitioner to bear the expenses of the witnesses to be examined by him

in support of his case.

44. Trial Court in the impugned order dated 11th October, 2004

observed:-

"According to Section 5 of the Prevention of Corruption Act, Special judge is required to follow the procedure prescribed by Cr.P.C. for trial of warrant cases by Magistrate. The procedure for such trial is laid down in Section 238 to 243 of Cr.PC sub section 3 of section 243 empowers the court to require the accused to deposit reasonable expenses incurred by witnesses for attending the court. As I noted at the very outset the witnesses are foreigners and they are beyond the reach of this court. Therefore, the accused will produce seven witnesses mentioned above at his own expenses by his own efforts. In the alternative he may coordinate with the said witnesses and find out

dates convenient to them in the first week of December 2004 for examination through video conference and the expenses of such video conference shall be borne by the accused."

45. Thereafter petitioner filed another application to recall the

order dated 11th October, 2004 and prayed for examination of the defence

witnesses on commission and not on video conferencing. This application

was dismissed by the Trial Court vide its order dated 17th November, 2004

observing that examination of witnesses by video conferencing would cut

short time and distance both and is a way of expediting the proceedings,

where foreign witnesses are involved. The Court also observed that video

conferencing would not only save time but also enable the Court to observe

the demeanor of the witnesses.

46. Prayer made before this Court is for examination of the

witnesses by video conferencing in view of amended provisions contained

in Section 275 Cr.P.C. and request for examination of the witnesses on

commission under Section 284 Cr.P.C. has not been pressed. However,

petitioner's grouse is that he should not be made to pay the expenses of the

witnesses sought to be examined by him on video conferencing. He has

referred to 'State of Maharashtra Vs. Dr. Praful B. Desai' (2003) 4 SCC

601, to emphasize that cost of video conferencing should be borne by the

State.

47. In 'Amitabh Bagchi Vs. Ena Bagchi', 2005 AIR (Calcutta) 11,

while referring to State of Maharashtra Vs. Dr. Praful B. Desai's case

(supra), the Court laid down various safeguards to be taken by the Court for

the purpose of recording evidence through audio-video link observing:-

"10. ........... Technology is definitely a tool. But the following safe guards are to be taken for purpose of recording evidence through Audio- Video Link : (1) Before action of the witness under Audio-Video Link starts the witness will have to file an affidavit or an undertaking duly verified before a Judge or a Magistrate or a Notary that the person who is shown as the witness is the same person as who is going to depose on the screen with a copy of such identification affidavit to the other side. (2) The person who wishes to examine the witness on the screen will also file an affidavit or an undertaking in the similar manner before examining the witness with a copy of the other side with regard to identification before hand. (3) As soon as identification part is complete, oath will be administered through the media as per the Oaths Act, 1969 of India. (4) The witness will be examined during working hours of Indian Courts. Plea of any inconvenience on account of time difference between India and other country will not be allowed. (5) The witness action, as far as practicable, be proceeded without any interruption without granting unnecessary adjournments. However, discretion of the Court or the Commissioner will be respected. (6) Witness includes parties to the proceedings. (7) In case of non-party witness, a set of plaint, written statement and/or other papers relating to proceeding and disclosed documents should be sent to the witness for his acquaintance and an

acknowledgement in this regard will be filed before the Court. (8) Court or Commissioner must record any remark as is material regarding the demur of the witness while on the screen and shall note the objections raised during recording of witness either manually or mechanically. (9) Depositions of the witness either in the question answer form or in the narrative form will have to sign as early as possible before a Magistrate or Notary Public and thereafter it will form part of the record of the proceedings. (10) Mode of digital signature, if can be adopted in this process, such signature will be obtained immediately after day‟s deposition. (11) The visual is to be recorded at both the ends. The witness alone can be present at the time of video conference, Magistrate and Notary is to certify to this effect. (12) In case of perjury Court will be able to take cognizance not only about the witness gave evidence but who induced to give such evidence. (13) The expenses and the arrangements are to be borne by the applicant who wants to this facility. (14) Court is empowered to put condition/s necessary for the purpose."

48. By virtue of Section 243 sub-section (2) Cr.P.C., a Magistrate

is required to issue the process on an application of the accused for

compelling the attendance of any witness for the purpose of examination or

cross-examination or the production of any document or other thing unless

it is of the view that such application should be refused on the ground that it

is made for the purpose of vexation or delay or for defeating the ends of

justice. I need not consider the provisions of Section 243 sub-section (2)

Cr.P.C. for the simple reason that petitioner has been permitted to examine

fourteen additional witnesses, whereas examination of three additional

witnesses, namely, Manager SGS Vostak Ltd., St. Petersburg, Russia,

Manager Estrans Services Ltd., Tallinn, Esdnia and Mr. Child Obaid,

Sponsor, Edible Food Stuff, Dubai appearing at serial Nos. 19 to 21

respectively has been rejected.

49. Section 243 sub-section (3) Cr.P.C. empowers the Magistrate

to ask the accused to deposit reasonable expenses incurred by the witnesses

in attending the court for the purposes of the trial.

50. Counsel for the petitioner has brought my attention to

Chapter 9 Witnesses - Criminal Courts, Part-A Expenses of the Delhi

High Court Rules, Practice & Procedure, Fifth Edition. Expenses of the

witnesses in session trials are to be paid by the Sessions Courts at the rate

per diem scheduled in Rule 3. This Rule is absolutely silent if the Court has

to bear the expenses of the witnesses to be examined on behalf of the

accused as defence witnesses. Of course, the term 'witnesses' used is to be

interpreted in the wider sense so as to include the defence witnesses to be

examined by the accused. An accused person in custody is not expected to

bear the expenses of the witnesses as per the schedule, for the reason that he

has no earning capacity and is not financially independent to bear their

expenses.

51. Note 2 sub-rule (iii) to the Rule leaves a discretion with the

Court as to the payment of witnesses. The circumstances of cases differ and

there are many criminal proceedings in which the prosecution is not called

for on public grounds. It is not in every case that the State has undertaken,

and is bound to provide the cost of the prosecution. Doubtful cases should

be interpreted liberally by the Court. Scheme of the Chapter indicates that

generally the witnesses appearing for the prosecution whether Expert,

official or other public witnesses are being paid for their traveling expenses

by the Court. There is no specific provision contained in the Chapter,

which makes it mandatory on the Court to pay or bear the expenses of

witnesses appearing for the accused.

52. Ordinarily, where the accused is financially capable of

bearing the expenses of the witnesses, the Courts put a liability on him to

bear their expenses. In this case, petitioner is the Chairman of M/s Karsan

Limited, a company dealing in international contracts and is financially

capable of meeting the expenses. Besides the witnesses sought to be

examined on video conferencing are all foreigners based in different

countries. They would be examined from the place where they are

stationed. Their expenses cannot be paid by the State beyond the schedule

prescribed in Delhi High Court Rules, which is silent about the expenses to

be borne by the State for examination of the witnesses, who are foreigners

and are stationed abroad.

53. Thus, it is clear that expenses for arrangements of audio-video

facility have to be borne by the person who wants to avail the said facility.

In the present case, petitioner has sought examination of his witnesses

through video conferencing and therefore, he is required to bear the

expenses to avail the said facility.

54. Hence, I find no reason to interfere in the order of the Trial

Court directing the petitioner to bear expenses of the witnesses to be

examined on video conferencing. Facility of video conferencing is

available in almost every Court Complex. Therefore, Trial Court can

examine the witnesses on video conferencing available at the place of his

posting, which is notified Court Complex. It shall proceed in accordance

with law for the examination of the witnesses as above. Trial Court shall

ensure that once examination of the witnesses commences, it holds day-to-

day trial and complete the examination of the petitioner‟s witnesses within

six months from the date of receipt of this order.

55. Under these circumstances and in view of my discussion as

above, revision petition is partly allowed. Parties shall appear before the

Trial Court on 2nd July, 2010. Registry is directed to send back the

complete record of the Trial Court, forthwith along with certified copy of

this order.

Criminal Misc. Petition No. 1347/2008

56. Since this criminal (MC) has not been pressed as prosecution

has closed its evidence and the case is pending examination of the defence

witnesses, assessment of any evidence by this Court for quashing the FIR

would mean pre decision of the case on merits to the prejudice of interest of

the parties. Therefore, it is dismissed.

ARUNA SURESH (JUDGE) JUNE 04, 2010 sb