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Allahabad High Court · body

2013 DIGILAW 1611 (ALL)

LEE KUN HEE v. STATE OF U. P.

2013-05-30

RAMESH SINHA

body2013
Ramesh Sinha, J. 1. Heard Sri Manish Tiwary, learned counsel for the applicant, learned AGA for the State and Sri D.K. Singh, learned counsel for opp. party No.2. 2. By means of the present application under Section 482 Cr.P.C., the applicant has prayed for quashing/setting aside and/or modify the Order dated 11.4.2013 ( "Impugned Order") passed by the learned I/c Sessions Judge in Criminal Revision No.157 of 2013 to the extent it direct the IInd Additional Chief Judicial Magistrate, Ghaziabad hearing Criminal Complaint No.1086 of 2009 filed under Sections 403, 405, 415, 418, 420 and 423 read with Sections 34 and 120-B of Indian Penal Code that "if any formality cannot be completed by the Complainant for non-availability of particulars, then learned trial court should not insist on this point and to pass order according to material produced by the complainant which can be possible for him to produce". 3. Brief facts of the case are that; 4. M/s. JCE Consultancy, opp. party No.2, ( hereinafter referred to as "the complainant")filed a complaint in the Court of Chief Judicial Magistrate, Ghaziabad against the Samsung Gulf Electronics ( FZE) and others including the applicant on the ground that a Bill of Exchange dated 1.2.2002 purportedly drawn by Sansung Gulf Electronics ( FZE) in favour of the one M/s. Sky Impex had been endorsed to them and that Samsung Gulf Electronics ( FZE) had failed to make payment in relation to the same and the complainant has been cheated of 1.4 million Dollar. 5. On 12.1.2005, the applicant along with other co-accused persons were summoned by the VIIth Additional Judicial Magistrate, Ghaziabad for facing trial for offence under Sections 403, 405, 415, 418, 420 and 423 read with sections 34 and 120-B of Indian Penal Code. As the applicant and other co-accused persons did not appear before the trial Court, hence, the trial Court on 3.2.2005 issued bailable warrants against the applicant and other co-accused persons. Thereafter, on 16.3.2005, the Court below issued non-bailable warrants ( NBW) against the applicant and other co-accused persons. 6. On 21.3.2005, the VIIth Additional Judicial Magistrate, Ghaziabad directed that the issuance of NBW against the applicant be executed through the Central Bureau of Investigation ( Interpol Wing). Thereafter, on 16.3.2005, the Court below issued non-bailable warrants ( NBW) against the applicant and other co-accused persons. 6. On 21.3.2005, the VIIth Additional Judicial Magistrate, Ghaziabad directed that the issuance of NBW against the applicant be executed through the Central Bureau of Investigation ( Interpol Wing). In the year 2006, the trial Court had issued NBW against the applicant which was sent to the Interpol for issuance RED CORNER NOTICE for ensuring extradition of the applicant and other co-accused persons. 7. Thereafter, the criminal revision filed by the applicant against the order issuing non-bailable warrants which was numbered as Criminal Revision No.154 of 2005, before the lower Revisional court was also dismissed by it. 8. Thereafter, the applicant along with other co-accused persons approached this Court and filed Criminal Misc. 482 Cr.P.C. Application No. 11404 of 2006 and challenged the proceedings of the complaint case which was filed by opp. party No.2 and the said 482 Cr.P.C. application of the applicant and other co-accused were dismissed by this Court vide order dated 13.11.2009 and directed the accused persons including the applicant to appear before the Court below within 30 days from the date of passing of the said order and seek bail. 9. Aggrieved by the order of this Court dated 13.11.2009, the applicant and other co-accused persons had filed Special Leave to Appeal ( Criminal) being SLP ( Crl.) No.9168 of 2009 before the Apex Court which converted into Criminal Appeal No. 304 of 2012 and the same was finally dismissed by the Apex Court vide order dated 1.2.2012 and directed that the accused persons are at liberty to raise all the objections before the trial Court. 10. On 1.4.2012, the applicant filed a Review Petition No.165 of 2012 before the Apex Court which was also dismissed on 18.4.2012 . The applicant and other co-accused persons had also filed Curative Petition No.35 of 2012 which was also rejected by the Apex Court judgment and order dated 30.10.2012. 11. It appears further that on 3.5.2012, the learned Magistrate passed an order in the complaint proceeding for execution of non-bailable warrants against the accused persons as per Rule 16 of the General Rules Criminal. Thereafter, on 16.5.2012 vide letter No.2518/XV, the learned Magistrate in correspondence with the Registrar General of this Court regarding service of warrant to the accused persons including the applicant who were residing abroad. Thereafter, on 16.5.2012 vide letter No.2518/XV, the learned Magistrate in correspondence with the Registrar General of this Court regarding service of warrant to the accused persons including the applicant who were residing abroad. This Court was requested to take appropriate steps under Rule 16 for the execution of NBW's against the accused persons. Thereafter, the Joint Registrar of this Court vide letter dated 28.5.2012 sent back the NBW's ( in Original) along with enclosures containing the instructions/circulars providing the requisite guidelines for service of judicial processes etc. on the accused residing abroad in criminal matters. 12. On 9.5.2012, a Criminal Misc.482 Cr.P.C. Application No.16421 of 2012 was filed by the complainant for quashing the order dated 3.5.2012. The said 482 Cr.P.C. application was disposed of by this Court on 16.5.2012 directing the opp. party No.2 to file appropriate application along with other relevant records before the concerned Magistrate. 13. On 18.5.2012, the complainant filed a fresh application before the learned Magistrate for issuance of NBWs to be forwarded to the Central Bureau of Investigation ( Interpol)["CBI ( Interpol)"] through Interpol Liaison Office in English language in terms of Ministry of Home Affairs Circular dated 11.2.2009. 14. The learned Magistrate vide order dated 15.6.2012 disposed of the aforesaid application directing that the accused persons be served through Ministry of Home Affairs ( "MHA") in terms of the relevant Circulars. 15. On 5.7.2012, the complainant challenged the order of the learned Magistrate dated 15.6.2012 by moving an application under Section 482 Cr.P.C. being Criminal Misc. 482 Cr.P.C. Application No.22837 of 2012, which was disposed of by this Court on 16.8.2012 directing the complainant to file a fresh application before the learned Magistrate which was to be decided strictly in accordance with law within a period of six weeks from the date of production of the said order. 16. In pursuance of the said order, complainant filed a fresh application before the learned Magistrate praying that the NBW's be issued again with Red Corner Notice ( "RCN") in English language against the accused persons including the applicant and the same may be sent to the C.B.I. Interpol Liaison Office, S.S.P., Ghaziabad with a instruction that Red Corner Notice be issued by C.B.I. Interpol Wing on the location of the accused persons and the learned Magistrate be informed accordingly. 17. 17. The said application of the complainant was disposed of by the learned Magistrate vide order dated 8.10.2012 wherein the learned Magistrate was pleased to pass an order that NBW's be issued against the accused persons including the applicant therein. It was further ordered that NBW's along with a request letter be sent to the MHA and the Ministry of External Affairs ( "MEA") to adopt the procedure in accordance with law for execution of the NBW against the accused persons. 18. Aggrieved by the order dated 8.10.2012 passed by the learned Magistrate, the complainant challenged the said order before this Court in Criminal Misc. 482 Cr.P.C. Application No.43717 of 2012 on 19.12.2012 and counter affidavit was filed on behalf of the applicant on 15.1.2013 in the aforesaid aforesaid 482 Cr.P.C. application. 19. In the meantime, the learned Magistrate vide letter dated 24.11.2012 requested the Ministry of Home Affairs ( "MHA") and Ministry of External Affairs ( "MEA:) to execute the NBW's against the accused persons including the applicant. Ministry of Home Affairs vide letter dated 2.1.2013in response to the letter dated 24.11.2012 issued by the learned Magistrate, returned the NBW's in original to the learned Magistrate stating that the execution of NBW's would amount to extradition and for the purposes of which the Ministry of External Affairs has laid down certain detailed guidelines which have to be complied with prior to commencing the process for extradition. The Ministry of Home Affairs annexed the guidelines issued by the ministry of External Affairs dated 22.1.2009 wherein the MEA has laid down the requirements and documents that are to be received by it in relation to commencing extradition requests of an individual from abroad. 20. The Ministry of External Affairs on 7.1.2013 also in response to the letter issued by the learned Magistrate on 24.11.2012 return the NBW's in original to the learned Magistrate and the Ministry of External Affairs stated that the Ministry of Home Affairs is the nodal agency that deals with service of judicial process and accordingly attached the relevant Notification. 21. On 24.1.2.2013,another application was filed by the complainant before the learned Magistrate in furtherance of execution of NBW's praying direction to Interpol wing of CBI to take cognizance of arrest warrants and issued Red Corner Notice against the accused persons including the applicant so that the process of extradition be completed. 22. 21. On 24.1.2.2013,another application was filed by the complainant before the learned Magistrate in furtherance of execution of NBW's praying direction to Interpol wing of CBI to take cognizance of arrest warrants and issued Red Corner Notice against the accused persons including the applicant so that the process of extradition be completed. 22. On 4.2.2013, the applicant submitted a reply to the application dated 24.1.2013 filed by the complainant before the learned Magistrate and it was pointed out that the complainant has been filing repeated applications seeking the same relief and the learned Magistrate was apprised of the fact that vide order dated 8.10.2012 dismissed the previoius application of the complainant seeking Red Corner Notice and the application which was filed seeking to achieve the same relief ought to be dismissed. 23. On 16.2.2013, the learned Magistrate disposed of the said application of the opp. party No.2 and while passing the said order the learned Magistrate directed that communications which were received from MHA and MEA and also observed that the address of the accused persons Nos. 2 to 8 which included the applicant were on record before the Court and hence no occasion arose for tracing the location of accused persons and accordingly the prayer made by the complainant was rejected. The learned Magistrate while relying on the aforesaid documents asked the opp. party No.2 to complete the formalities as per the MEA Guidelines within a week so that necessary documents along with the NBW's be presented to the authorities concerned for further action in this regard. 24. On 20.2.2013, Criminal Misc. 482 Cr.P.C. Application No.43717 of 2012 filed by the complainant was disposed of by this Court as the learned Magistrate has already passed an order on 16.2.2013, no further direction was required and if the complainant had any further grievance, he may move appropriate application as per law which may be decided by the learned Magistrate concerned strictly in accordance with law after hearing the parties. 25. On 6.3.2013, complainant in pursuance of t he order passed by this court, moved an application for extension of time to complete the formalities which was allowed by the learned Magistrate and the complainant was directed to complete the process in a week. 25. On 6.3.2013, complainant in pursuance of t he order passed by this court, moved an application for extension of time to complete the formalities which was allowed by the learned Magistrate and the complainant was directed to complete the process in a week. The complainant again filed criminal revision on 11.4.2013 before the Sessions Judge against the order dated 16.2.2013 passed by the learned being Magistrate being Criminal Revision No. 157 of 2013 and prayed to issue the Red Corner Notice against the accused persons for securing their presence before the learned Magistrate. In spite of the order passed by this Court on 20.2.2013 in Criminal Misc. 482 Cr.P.C. Application filed by which complainant, which was disposed of by the learned Magistrate. The said revision of the complainant was dismissed by the Lower Revisional Court on 11.4.2013 and the order dated 16.2.2013 passed by the learned Magistrate was confirmed by the Lower Revisional Court, but the Lower Revisional Court while dismissing the aforesaid revision of the complainant had made certain observations, which is quoted herein below: "However, learned trial court is directed that if any formality cannot be completed by the complainant for non-availability of particulars, then learned trial court should not insist on this point and to pass order according to material produced by the complainant, which can be possible for him to produce." 26. The applicant has challenged the aforesaid observation of the Lower Revisional Court passed in the order dated 11.4.2013 to that extent by means of the present 482 Cr.P.C. application. 27. It has been contended by the learned counsel for the applicant that firstly, the applicant was not made a party by the complainant in the aforesaid criminal revision which was filed by the complainant against the order dated 16.2.2013 passed by the learned Magistrate. Secondly, the complainant has concealed the material fact about the disposal of the Criminal Misc. 482 Cr.P.C. Application No.43717 of 2012 filed by the complainant before this Court against the order dated 16.2.2013 passed by the learned Magistrate and has filed the said criminal revision against the same very order passed by the learned Magistrate. Secondly, the complainant has concealed the material fact about the disposal of the Criminal Misc. 482 Cr.P.C. Application No.43717 of 2012 filed by the complainant before this Court against the order dated 16.2.2013 passed by the learned Magistrate and has filed the said criminal revision against the same very order passed by the learned Magistrate. Lastly, it has been contended that the aforesaid revision filed by the complainant before the Lower Revisional Court was not maintainable as it was filed against the interlocutory order passed by the learned Magistrate on 16.2.2013 and the observations which have been made while dismissing the revision by the Lower Revisional Court is wholly without jurisdiction and the Lower Revisional Court has made the said observation which is against the provision of law, as he has already dismissed the revision filed by the complainant by the impugned order dated 11.4.2013 and the said observation is wholly uncalled for. 28. Learned counsel for the complainant has vehemently opposed the prayer for quashing of the observation made by the Lower Revisional Court while dismissing the revision of the complainant and submitted that the said observation of the Lower Revisional Court is not prejudicial to the applicant. Moreover, the applicant is a absconder, he has not right to be heard or filing the present petition before this Court. He further submits that the summoning order passed on 12.1.2005 by the learned Magistrate against the applicant for his appearance before the trial Court for being tried for the offence under sections 403, 405, 415, 418, 420 and 423 read with Sections 34 and 120-B of Indian Penal Code, was challenged by the applicant before this Court in Criminal Misc. Application No.11404 of 2006 which was dismissed by this Court on 13.11.2009 by which the applicant was directed to appear before the Court below within 30 days and to seek bail, which has not been complied with. The applicant being aggrieved by the order dated 13.11.2009 passed by this Court dismissing the aforesaid 482 Cr.P.C. application against quashing of the complaint and the summoning order, preferred a SLP before the Apex Coaurt which was also dismissed on 17.12.2009 and the Review Petition was also filed by the applicant, which too was dismissed on 18.4.2012 and curative petition was also filed by the applicant was also dismissed by the Apex Court on 30.10.2012. He further submits that the Court below, this Hon'ble Court as well as the Apex Court after having dismissed the petition of the applicant on merits, the applicant was required to subject himself to the jurisdiction of this Indian Courts and Indian Laws under which he is to be prosecuted. The complainant is being only making efforts to secure the presence of the applicant who is an accused along with the other co-accused persons who are at abroad in accordance with the Rules and Regulations and the procedure laid down by the Indian Laws and the applicant who is a absconder and against whom NBW's has been issued is only creating hurdles since the year 2001 when the complaint was filed against him and other co-accused persons so that his presence may not be secured by the Courts in India. He further submits that the applicant being an absconder has no right to be heard by any Court of Law and only a casual observation which has been observed by the Lower Revisional Court is hardly prejudicial to the applicant. In support of his contention, learned counsel for the complainant has placed reliance of the judgment of the Bombay High Court as well as of the Apex Court reported in 1996 CRL L.J.2418, Iqbal Mohammed Memon Vs. State of Maharashtra, in which it has been held that the accused not putting in appearance in spite of proclamation issued against him and view of the conduct of the accused, he has no right to be heard unless he surrenders before the Court concerned. He has also placed reliance on the judgment of Bombay High Court in the case of R.Venkatesan Vs. Union of India and others, reported in 2005 ( 3) MhLJ 337 decided on 11.4.2005, in which the view taken by the Bomay High Court in the case of Iqbal Mohammed Memon ( supra) was followed. He further pointed out that in one of the case which was also from Bombay High Court, on the same issue, the Govt. of Maharashtra preferred a SLP before the Apex Court in the case against the order of Bombay High Court being SLP No. 4008 of 1994, in which the Apex Court has made observation on the issue which is mentioned in paragraph No.6 of the Iqbal Mohammed Memon ( supra) which is quoted herein below: "6. of Maharashtra preferred a SLP before the Apex Court in the case against the order of Bombay High Court being SLP No. 4008 of 1994, in which the Apex Court has made observation on the issue which is mentioned in paragraph No.6 of the Iqbal Mohammed Memon ( supra) which is quoted herein below: "6. The order dated 17-10-1994 passed by this Court in Writ Petition No. 904 of 1994 was taken offence to by the State of Maharashtra which challenged it in the Apex Court by means of Special Leave Petition No. 4008 of 1994. Grievance of the State of Maharashtra before the Apex Court was two-fold :- Firstly, it was improper and incorrect for this Court to have made an observation directing the Special Judge to dispose of the application of the applicant for discharge without insisting for his personal appearance. Secondly, the averment in the order of this Court that the learned Public Prosecutor did not oppose the prayer for the disposal of the discharge application of the applicant without his personal appearance was factually wrong. On 13-1-1995, the Apex Court decided the Special Leave Petition No. 904 of 1994 by the following order :- "The least that we can say in this matter is that the order made by the High Court directing the hearing of the application by the trial Court without the presence of the applicant, when admittedly he is outside the country is both unjustified and uncalled for. Since, however, the State has approached this Court belatedly and in the meanwhile, the learned Special Judge has heard the application and rejected the same, we do not purpose to say anything more in the matter. We are also informed that the learned Public Prosecutor is prepared to file an affidavit stating that he had in fact opposed the application although a statement appears in the impugned order that the learned public prosecutor did not oppose the prayer. In such cases, the advocates concerned must immediately file an application for review of the order to correct any wrong statement attributed to them. We close this matter since it has become infructuous. The Registry to send a copy of the order to the High Court immediately." 29. Considered the submissions advanced by learned Counsel for the parties. 30. In such cases, the advocates concerned must immediately file an application for review of the order to correct any wrong statement attributed to them. We close this matter since it has become infructuous. The Registry to send a copy of the order to the High Court immediately." 29. Considered the submissions advanced by learned Counsel for the parties. 30. It is apparent from the record that the prosecution of the applicant has been upheld by the Apex Court of the country in the pursuance of the complaint filed against him and other accused persons for the aforesaid offences. Not only this the review petition as well as curative petition filed by the applicant has also been dismissed by the Apex Court. The execution of non-bailable warrant against the applicant is pending and the law of the land is taking it's course to secure the presence of the applicant before the court. The applicant who is admittedly a South Korean citizen is abroad. He has no right to be heard by this court as he is absconder and he has no right to suggest or demonstrate the manner in which his presence is to be secured by the courts in India. From the present petition it is evident that the applicant has no intention to subject himself to the jurisdiction of the Court in India and he has been only delaying the proceedings of the trial since the year 2001 and creating obstacles for execution of non- bailable warrant issued against him way back on 16.3.2005. 31. From perusal of the judgment of the Bombay High Court as well as of the Apex Court, I have no hesitation to hold that by no stretch of imagination the accused who is fugitive, against whom NBW is pending and is also declared as offender, does not have any right to be heard on any question, as it would entail in granting premium to such accused. Suffice it to observe that the Court is obliged to hear only those accused who have subjected themselves before the Court. In Iqbal Mohammed Memon Vs. State of Maharashtra ( supra), a similar fact situation arose. It was a case of declining to hear the revision application preferred by an absconding accused. The legal position has been clearly spelt out in the judgment of Iqbal Mohammed Memon Vs. In Iqbal Mohammed Memon Vs. State of Maharashtra ( supra), a similar fact situation arose. It was a case of declining to hear the revision application preferred by an absconding accused. The legal position has been clearly spelt out in the judgment of Iqbal Mohammed Memon Vs. State of Maharashtra ( supra) which is in fact is following the opinion expressed by the Apex Court against the accused in that case, as can be discerned from the order of the Apex Court which is reproduced in paragraph no.6 of the decision. 32. In my opinion, when the applicant who is an accused and is absconding, who is fugitive from justice, who does not surrender to the jurisdiction of the Court and who disobeys and flouts the order of the court, has no right of being heard at this stage. 33. In view of the aforesaid, the present 482 Cr.P.C. application lacks merit. It is, accordingly, dismissed.