- (1.) S. S. Kulshrestha, J. Heard the learned counsel for the applicant and also the learned A. G. A. and perused the materials on record.
(2.) THIS application under Section 482 of the Code of Criminal Procedure (in short 'the Code') has been brought for quashing the proceedings of the Complaint Case No. 6861 of 2003, Mashreq Bank Ltd. v. Om Hemarajani and Another, under Sections 415, 417, 418, 420 read with 120-B IPC, pending in the Court of Special Judicial Magistrate (CBI), Ghaziabad and also the impugned order dated 6-10-2003 taking cognizance of the offences alongwith non-bailable warrants issued against the applicant. Although in this petition only the questions of territorial jurisdiction of Ghaziabad Courts and the sanction for the prosecution of the applicant have been urged, but it is necessary to set out briefly some of the facts which led to the filing of the complaint case in the Court of Special Judicial Magistrate (CBI), Ghaziabad. Mashreq Bank, a public share holding company registered and incorporated at Dubari under the laws of United Arab Emirates (UAE), having its registered office at P. O. Box #1250, Dubai (UAE), which is also carrying on business all over the world, including India, brought a complaint against Sri Om Hemarajani (who is herein the petitioner) and Smt. Kavita Motwani with the allegations that they both having international project approached the complainant bank with the request to open an account and they represented that they were working for a company by the name of M/s. Tangerine Computers, which was carrying on business in trading and export of computers and its peripherals in UAE. They also represented for having full authority to open account and to avail credit facilities as they had power of attorney in their favour. They also executed various documents in proof of their ability to discharge the bank liability. Sri Om Hemarajani, the applicant also gave his personal continuing guarantee. But instead of discharging the same they absconded from UAE without liquidating their liability to the bank. They have cheated and defrauded the bank in obtaining the loan facilities knowing fully well that they had no intention to pay back the loan of the bank and fled from UAE. After absconding from UAE the applicant continued to make representation that he would repay the outstanding amount of the bank but those representations turned to be false. Consequently this complaint was brought for the offences under Sections 415, 417, 418, 420 and 120-B IPC in the Court of Chief Judicial Magistrate, Ghaziabad from where it was transferred to the Special Judicial Magistrate (CBI) Ghaziabad, who took cognizance of the offence and issued processes against the person arraigned in that complaint and also issued non- bailable warrants. It has been contended by the applicant that this is the admitted position that at the relevant time he was working in a company by the name of M/s. Tangerine Computers in UAE dealing in trading and export of computers and its peripherals. That was the proprietorship concern of which Sri Abdulla Mohd. Khamis Abdulla Mohd. was the proprietor. Applicant represented to the company only in the capacity of having power of attorney and not in personal capacity. He had falsely been dragged into this offence. No cause of action or any part thereof has occurred within the territorial jurisdiction of the Courts at Ghaziabad. Applicant is not residing within the jurisdiction of that Court nor the complainant had any office there at Ghaziabad. Thus Ghaziabad Court had no jurisdiction to take cognizance of the offences. In as much the cognizance is also barred for the want of legal sanction under Section 188 of the Code. The diverse contentions give rise to the preliminary questions that (i) whether the Special Judicial Magistrate (CBI), Ghaziabad had the jurisdiction to entertain the complaint for the offences indicated above against the Indian citizen who is said to have committed offence there at Dubai, UAE and (ii) whether the sanction of the Central Government for the prosecution of applicant is necessary. To appropriate an answer to these contentions it shall be useful to refer the relevant provisions as contained under Section 188 of the Code and also Sections 3 and 4 of the IPC. They read as under: "section 188 Cr. P. C. Offence committed outside India.-When an offence is committed outside India - (a) by a citizen of India, whether on the high seas or elsewhere; or (b) by a person, not being such citizen, on any ship or aircraft registered in India, he may be dealt with in respect of such offence as if it had been committed at any place within India at which he may be found: Provided that, notwithstanding anything in any of the preceding sections of this Chapter, no such offence shall be inquired into or tried in India except with the previous sanction of the Central Government. Section 3 I. P. C. Punishment of offences committed beyond, but which by law may be tried within, India.- Any person liable, by any India law, to be tried for an offence committed beyond India shall be dealt with according to the provisions of this Code for any act committed beyond India in the same manner as if such act had been committed within India. Section 4 I. P. C. Extension of Code to extra- territorial offences.- The provisions of this Code apply also to any offence committed by - (1) any citizen of India in any place without and beyond India; (2) any person on any ship or aircraft registered in India wherever it may be. Explanation.- In this section the word "offence" includes every act committed outside India, which, if committed in India, would be punishable under this Code. "
(3.) THE language of Section 188 of the Code and that of Sections 3 and 4 IPC plainly means that if at the time or the commission of the offence, the person committing is an Indian citizen, even if the offence is committed outside India, he is subjected to the jurisdiction of the Courts in India. THE rule enunciated in the section is based on the principle that qua citizen the jurisdiction of the Court is not lost by reason of the venue of the offence. This is not denied that the applicant is the citizen of India. Regarding the commission of the offence the plea had been taken by him that he has falsely been implicated. He simply represented to the bank as being the authorized representative for M/s. Tangerine Computers. From the allegations made in the complaint case prima facie offence is appearing against the applicant for the offences under Sections 415, 417, 418, 420 and 120-B IPC and so the provisions of Section 188 of the Code are applicable against him. Now the question arises as to how far Ghaziabad Courts had the jurisdiction to entertain the complaint brought by Mashreq Bank Ltd. The expression "at which he may be found" used in Section 188 of the Code for the purposes of launching prosecution/complaint for the offence, needs to be defined in the context of the allegations made in the complaint that the applicant had left UAE without liquidating his liability to the bank. The place of residence of the applicant in the complaint has been shown to be at (i) 419, Maker Chambers, Nariman Point, Mumbai - 400 021 and (ii) 18/4 Hem Kutir, R. A. K. Road, Bombay - 400 031. Summons were also issued to him but they came back with the endorsement that he had gone to USA. Identical plea has also been taken by the applicant in this application under Section 482 of the Code. Applicant is not available at the places of his residences so shown in the complaint. Even otherwise for the purposes of Section 188 of the Code the place of offence or residence has no significance. Decisive factor for invoking the jurisdiction of the Court would be the place where he is found. The applicant is not available at the places of residence so shown in the complaint and so the provisions of Section 188 cannot be made ineffective because of the non- availability of the applicant. In order to make the provisions to be effective a purposeful interpretation is required to be made as was also held by the Apex Court in the case of Director of Enforcement v. Deepak Mahajan and Another, 1994 JIC 774 (SC) ; AIR 1994 SC 1775: "normally Courts should be slow to pronounce the legislature to have been mistaken in its constantly manifested opinion upon a matter resting wholly within its will and take its plain ordinary grammatical meaning of the words of the enactment as affording the best guide, but to winch up the legislative intent, it is permissible for Courts to take into account of the ostensible purpose and object and the real legislative intent. Otherwise, a bare mechanical interpretation of the words and application of the legislative intent devoid of concept of purpose and object will render the legislature inane. In cases of this kind, the question is not what the words in the relevant provision mean but whether there are certain grounds for inferring that the legislature intended to exclude jurisdiction of the Courts from authorizing the detention of an arrestee whose arrest was effected on the ground that there is reason to believe that the said person has been guilty of an offence punishable under the provisions of FERA or the Customs Act which kind of offences seriously create a dent on the economy of the nation and lead to hazardous consequences. In given circumstances, it is permissible for Courts to have functional approaches and look into the legislative intention and sometimes may be even necessary to go behind the words and enactment and take other factors into consideration to give effect to the legislative intention and to the purpose and spirit of the enactment so that no absurdity or practical inconvenience may result and the legislative exercise and its scope and object may not become futile. ";