Delhi District Court
Ct Cases/25889/2016 on 15 December, 2021
IN THE COURT OF SH. AKASH JAIN
ADDITIONAL CHIEF METROPOLITAN MAGISTRATE-01
NEW DELHI DISTRICT, PATIALA HOUSE COURTS:
NEW DELHI
In Re:
Union of India v. Nilesh Ajmera
CC No:- 25889/2016
Extradition Inquiry Report
1.Vide this order, I shall dispose of the present inquiry initiated on receipt of a request from the Ministry of External Affairs, Government of India vide Order bearing No. T-413/36/2011 dated 21.10.2014 made under Section 5 of The Extradition Act, 1962 (hereinafter referred to as the 'Act') for inquiring into the allegations of commission of offences by Nilesh Ajmera i.e. Fugitive Criminal (hereinafter referred to as 'FC') within the territory of Government of the United Arab Emirates (hereinafter referred to as 'Requesting State').
Brief History of Proceedings
2. The case of Requesting State is that on 01.05.2009, the complainant Sh. Suneel Sahni Jagdish Sahni, British National reported to Naif Police Station, Dubai that FC had written 12 cheques with the total value of AED 11,042,519 in favour of complainant against property dealing and upon presentation of said cheques to the bank, same were dishonored due to non-availability of sufficient standing drawable balance and closing of the account.
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3. A circulated note was thereafter, issued against the absconding FC to arrest him. On 28.04.2010, the Dubai Public Prosecution had ordered to refer the case papers to the Misdemeanor Court to punish the FC (in absentia) according to the referred order.
4. On 30.05.2010, FC was summoned by the Bur Dubai Police Station to appear before the Court, pursuant to the Article no. (159) of the Federal Penal Code No. (35) of 1992 as per the criminal procedure.
5. On 16.06.2010, the Misdemeanor Court sentenced the FC in absentia for the period of 3 years imprisonment for the charge imposed on him and thereafter, a warrant of arrest had been issued against him.
6. On 30.12.2010, Public Prosecution, Dubai was intimated that the concerned Indian Authorities had come to know about the place of presence of FC. Vide Note Verbale reference no. 6/4/26-251/2011 dated 14.03.2011, the Requesting State made an extradition request of FC to Government of Republic of India (hereinafter referred to as 'Requested State') on the ground that FC was wanted by the Public Prosecution, Dubai for accusation of issuing dud cheques in bad faith of total value AED 11,042,519 which was then equivalent to Indian Rupees 13,25,10,228/-. Thereafter, few Note Verbales were sent on behalf of Requested Stated to the Requesting State regarding non recognition of trial in absentia under Indian Legal System AKASH Digitally signed by AKASH JAIN Union JAIN Date: 2021.12.15 CC No:- 25889/16 of India v. Nilesh Ajmera 17:22:03 +0530 Page No:- 2 of 29 and seeking sovereign assurance for de-novo trial in respect of FC.
7. Vide Note Verbale no. 6/4/26-672/2014 dated 05.08.2014, the Requested State appended a note of the Public Prosecution Department, Dubai regarding assurance of de- novo trial of the FC. Pursuant to same, vide order bearing No. T-413/36/2011 dated 21.10.2014, Ministry of External Affairs, Government of India (hereinafter referred to as 'MEA') made a request under Section 5 of the Act to this Court to conduct inquiry proceeding under the Act qua FC. On receipt of the request of MEA, Ld. Predecessor Court issued warrants of arrest against FC under Section 6 of the Act on 15.11.2014 through CBI (Interpol).
8. On 08.03.2016, FC was produced before this Court after being arrested on 05.03.2016 at Palasia, Indore (Madhya Pradesh). Thereafter, an application for bail under Section 437 of Code of Criminal Procedure (hereinafter referred to as 'Cr.P.C.') r/w Section 25 of the Act was moved on behalf of FC. Vide order dated 10.03.2016 of Ld. Predecessor Court, FC was admitted to bail and inquiry proceedings got initiated against him.
Charges against FC
9. The Requesting State has sought extradition of FC, so that he could face prosecution in United Arab Emirates for following offences: Digitally signed by AKASH JAIN AKASH Date:
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(a) Article 401/1 of the Federal Penal Code
no. (3) of 1987.
"Shall be punishable by confinement or fine any individual who, in bad faith draws a cheque which does not have a provision which could be withdrawn or which has a provision less than the amount of the cheque or who, in bad faith, after issuing a cheque, withdraws all or part of the provision and renders the balance insufficient to settle the amount of the cheque or, in bad faith, order the drawee not to pay the value of the cheque, or in bad faith, draws or signs a cheque in such a manner as to prevent it from being paid.
Shall also be liable to the same punishment any person who shows or delivers to another a cheque payable to bearer, with full knowledge that it does not have a provision which could be withdrawn or which has a provision less than the amount of the cheque.
The Criminal case will be terminated if paid or made assignment after occurring the crime and before dissolving therein by a decisive judgment. If it happened after becoming the judgment decisive, it shall be stopped.
If the Court orders to withdraw the cheque book from the accused person upon whom the judgment has been issued and prevented to give him new cheque book as per the provision of the Article (643) of the Commercial Transactions Law, the Public Prosecution will inform this matter to the Central Bank to memo it on all the banks.
If any bank violates the above matter, they are liable to pay a penalty of AED 1000,000/- (One Hundred Thousand Dirham).
(b) Article 29 Misdemeanors are those crimes punishable by one or more of the following penalties:
1. Confinement.
2. Fine exceeding one thousand dirhams.Digitally signed
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3. Payment of compensation.
(c) Article 69 Confinement is to detain the convict for the period specified by the sentence in one of the penitentiaries legally designated for this purpose. The period of confinement may neither be less than one month nor more than three years unless there is a provision in the law to the contrary.
(d) Article 71 Fine is to inflict, upon the convict, payment to the Public Treasury of the sum determined by the judgment. Such a mulct may neither be less than one hundred dirhams nor may it exceed the sum of one hundred thousand dirhams for crimes or the sum of thirty thousand dirhams for misdemeanors; all this unless there is a text of law to the contrary.
Allegations against FC
10. It is alleged against the FC that on 01.05.2009, the complainant Sh. Suneel Sahni Jagdish Sahni, British National reported to Naif Police Station, Dubai that FC had written 12 cheques with the total value of AED 11,042,519 in favour of complainant against property dealing and upon presentation of said cheques to the bank, same were dishonored due to non-availability of sufficient standing drawable balance and closing of the account. The details of the said cheques are given below:-
S. No. Cheque Cheque Value Cheque Due Drawn on Bank No. Date
1. 740247 3,642,519/AED 15/04/2009 Standard Chatered Bank
2. 42 200,000/AED 02/05/2009 National Bank of Digitally signed AKASH by AKASH JAIN Date: JAIN 2021.12.15 17:22:26 +0530 CC No:- 25889/16 Union of India v. Nilesh Ajmera Page No:- 5 of 29 Dubai
3. 43 300,000/AED 05/05/2009 National Bank of Dubai
4. 44 300,000/AED 12/05/2009 National Bank of Dubai
5. 45 1,000,000/AED 22/09/2009 National Bank of Dubai
6. 46 300,000/AED 22/05/2009 National Bank of Dubai
7. 47 300,000/AED 02/06/2009 National Bank of Dubai
8. 48 1,000,000/AED 23/06/2009 National Bank of Dubai
9. 49 1,000,000/AED 15/04/2009 National Bank of Dubai
10. 50 1,000,000/AED 07/08/2009 National Bank of Dubai
11. 53 1,000,000/AED 15/10/2009 National Bank of Dubai 12 54 1,000,000/AED 01/09/2009 National Bank of Dubai Total Value 11,042,519/AED
11. On 30.05.2010, FC was summoned by the Bur Dubai Police Station to appear before the Court, but FC never appeared before the said Court. Thereafter, on 16.06.2010, the Misdemeanor Court sentenced the FC in absentia for the period of 3 years imprisonment for the charge imposed on him under Article 401/1 of the Federal Penal Code number (3) of 1987.
Treaty
12. The request for extradition of FC was made by Requesting State i.e. Government of United Arab Emirates through diplomatic channels vide Note Verbale no. 6/4/26-251/2011 Digitally signed AKASH by AKASH JAIN Date: JAIN 2021.12.15 17:22:34 +0530 CC No:- 25889/16 Union of India v. Nilesh Ajmera Page No:- 6 of 29 dated 14.03.2011. On 20.07.2000, vide notification bearing no. G.S.R. 653(E) an Extradition Treaty between the Government of Republic of India and Government of United Arab Emirates was notified. The said treaty got signed at New Delhi on 25.10.1999 and got ratified at Abu Dhabi, United Arab Emirates on 29.05.2000.
Evidence
13. The Union of India (hereinafter referred to as 'UOI') examined one witness Sh. Sandeep Kumar, Deputy Secretary, (Extradition), Ministry of External Affairs as CW-1 in support of the request for Extradition. CW-1 exhibited following documents received from the Requesting State to make out a prima-facie case for Extradition as under:-
(i) Ex. CW 1/1 : Extradition treaty between Republic of India and UAE;
(ii) Ex. CW 1/2 : Note Verbale dated 14.03.2011;
(iii) Ex. CW 1/3 : Note Verbale dated 31.03.2014;
(iv) Ex. CW 1/4 : Note Verbale dated 05.08.2014;
(v) Ex. CW 1/5 : English translation of the note of the public prosecutor;
(vi) Ex. CW 1/6 (colly) : Extradition request along with English translation of all documents;
(vii) Ex. CW 1/7 : Arrest warrant dated 23.01.2011;
(viii) Ex. CW 1/8 : The file of criminal case no. 18359/2010 Dubai duly authenticated by the Public Prosecution, Dubai;
(ix) Ex. CW 1/9 : Copy of passport of the FC;
(x) Ex. CW 1/10 : Note Verbale No. T-413/36/2011 dated 21.10.2014.
14. CW-1 got duly cross-examined by Ld. Counsel for FC.
During his cross-examination, CW-1 stated that he had no personal knowledge of the present case and that he deposed Digitally signed by AKASH JAIN AKASH Date:
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on the basis of official records handed over to him. CW-1 admitted that vide letter Ex. CW1/3 an assurance was sought by Government of Union of India from the Government of United Arab Emirates that, if extradited, FC would be entitled to a de-novo trial. CW-1 further admitted that vide document Ex.CW1/DX2, MEA had informed the Requesting State that trial in absentia is not recognized in India. CW-1 denied the suggestion of Ld. Counsel for FC that no assurance was ever given by the Requesting State regarding de-novo trial of FC.
15. After cross-examination of CW-1, on request of Ld. SPP for UOI, evidence got closed. The matter thereafter, proceeded for recording of defence evidence. It was submitted by FC and his Counsel that they did not wish to lead any defence evidence, as such, the matter straightaway got fixed for final arguments.
Arguments
16. Ld. Counsel for FC argued that FC has been falsely implicated in the present case and that no case for extradition is made out against the FC on account of following grounds:-
(i) Trial in absentia is not recognized under the Indian Legal System;
(ii) No assurance was ever given by Requesting State for a de-novo trial of Digitally FC;
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(iii) The offence punishable against FC is not an
extraditable offence in terms of Article 2 of the Treaty;
(iv) Neither the entire official record had been placed before the Court nor the same was produced by the witness during his cross-examination;
(v) Non-application of mind in forwarding request for extradition of FC, by MEA as there are plenty of discrepencies in dates and name of the FC on various documents sent by the Requesting State.
17. Per contra, it is argued by Ld. SPP for UOI that scope of present extradition inquiry is very narrow and limited in terms of judgment of Hon'ble Supreme Court of India in Sarabjit Rick Singh v. Union of India, (2008) 2 SCC 417. It is argued that this Court has to examine only three requirements in present proceedings which are as follows:-
(i) Whether the offence involved is an extraditable offence?
(ii) Whether a prima-facie exists against the FC?
(iii) Whether the extradition request and documents received are duly authenticated?
18. It is argued by Ld. SPP for UOI that present case bears all relevant ingredients which are necessary to establish that a prima-facie case is made out for the purpose of recommending the extradition of the FC.
19. While admitting that FC had been convicted in absentia (which is not recognized by domestic laws in India) and sentenced to imprisonment for a period of 3 years by the Digitally signed AKASH by AKASH JAIN Date: JAIN 2021.12.15 17:22:57 +0530 CC No:- 25889/16 Union of India v. Nilesh Ajmera Page No:- 9 of 29 competent Courts in Requesting State, it is argued that the Requesting State had given a written assurance vide Note by Public Prosecutor dated 19.06.2014 that a fresh or de- novo trial shall be conducted by the Requesting State, if extradition of FC is granted by the Requested State.
20. It is argued by Ld. SPP for UOI that the offence in question falls under the ambit of 'Extraditable Offence' under Article 2(a) of Treaty executed between both the States as the offence in question is punishable for a period of imprisonment upto two years. It is further argued that the term 'at least' used in Article 2(a) of the Treaty refers to an offence which has maximum punishment of one year or more, which squarely covers offence under Section 138 of Negotiable Instruments Act, 1881 (hereinafter referred to as 'NI Act') within its purview.
21. It is contended that nomenclature of offence in UAE and India may be different, but the conduct of FC constitutes an illegal and criminal act under the laws of both the Contracting States. As such, the criteria of dual criminality is duly fulfilled in the present case.
22. It is further contended that the argument advanced on behalf of FC that 11 out of 12 cheques were dishonored only because of account closure is devoid of any merit as it is well settled that dishonor of a cheque due to closure of account is also considered as an offence under Section 138 Digitally signed AKASH by AKASH JAIN Date: JAIN 2021.12.15 17:23:03 +0530 CC No:- 25889/16 Union of India v. Nilesh Ajmera Page No:- 10 of 29 of NI Act. Moreover, this arguments could be raised by FC during the course of trial in UAE.
23. It is further argued by Ld. SPP for UOI that the discrepency in the name of FC in some of the documents sent by the Requesting State is merely a typographical error and identity of FC is not in dispute.
24. It is finally argued on behalf of UOI that no witness had been examined on behalf of FC in support of his case during the inquiry proceedings, which clearly establish that the contentions raised on behalf of FC are without any consequence.
Analysis and findings
25. I have heard rival contentions on behalf of both UOI as well as FC and carefully perused the record. I have also gone through the detailed written submissions filed on behalf of FC as well as UOI.
26. The term 'Extradition' has not been defined under the Act.
However, a comprehensive definition of extradition has been given in Gerhard Terlinden v. John C. Ames in which Chief Justice Fuller defined extradition as:-
"... the surrender by one nation to another of an individual accused or convicted of an offence outside of its own territory, and within the territorial jurisdiction of the other, which, being competent to try and to punish him, demands the surrender..."Digitally signed by AKASH JAIN
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27. In the case of Abu Salem Abdul Qayoom Ansari v. State Of Maharashtra & Anr, (2011) 11 SCC 214, Hon'ble Supreme Court of India had observed that though extradition is granted in implementation of the international commitment of the State, the procedure to be followed by the courts in deciding whether extradition should be granted and on what terms, is determined by the municipal law of the land.
28. The relevant legal provisions of the Act, for deciding the present inquiry proceedings are reproduced as under:
Section 5. Order for magisterial inquiry:- Where such requisition is made, the Central Government may, if it thinks fit, issue an order to any Magistrate who would have had jurisdiction to inquire into the offence if it had been an offence committed within the local limits of his jurisdiction directing him to inquire into the case.
Section 6. Issue of warrant for arrest:-
On receipt of an order of the Central Government under sec- tion 5, the magistrate shall issue a warrant for the arrest of the fugitive criminal.
Section 7. Procedure before magistrate:-
(1) When the fugitive criminal appears or is brought before the magistrate, the magistrate shall inquire into the case in the same manner and shall have the same jurisdiction and powers, as nearly as may be, as if the case were one triable by a court of Session or High Court.
(2) Without prejudice to the generality of the foregoing provisions, the magistrate shall, in particular, take such evidence as may be produced in support of the requisition of the foreign State and on behalf of the fugitive criminal, including any evidence to show that the offence of which the fugitive criminal is accused or has been convicted is an offence of political character or is not an extradition offence.Digitally signed by AKASH JAIN
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(3) If the Magistrate is of opinion that a prima facie case is not made out in support of the requisition of the foreign State, he shall discharge the fugitive criminal. (4) If the Magistrate is of opinion that a prima facie case is made out in support of the requisition of the foreign State, he may commit the fugitive criminal to prison to await the orders of the Central Government and shall report the result of his inquiry to the Central Government, and shall forward together with such report, any written statement which the fugitive criminal may desire to submit for the consideration of the Central Government.
29. The scope of inquiry to be conducted by a Magistrate under the Act was comprehensively discussed by Hon'ble Delhi High Court in the case of Smt. Nina Pillai and Others v. Union of India and Others, ILR 1997 Delhi 271. The relevant excerpts are reproduced as under:
"... 9. We have given our careful consideration and thought to the submissions made by the learned Counsel for the peti- tioner. It is clear from the scheme of the Extradition Act that pursuant to a request made under section 4 of the Act, the or- der contemplated to be passed for a Magisterial inquiry un- der section 5 does not contemplate a pre-decisional or prior hearing. Section 5 of the Act is an enabling provision by which, a Magistrate is appointed to inquire into the case. The Magistrate on the order of inquiry being passed by Cen- tral Government issues a warrant of arrest of the fugitive criminal. The whole purpose is to apprehend or prevent the further escape of a person who is accused of certain offences and/or is convicted and wanted by the requesting State for trial or for undergoing the sentence passed or to be passed. The Act contains sufficient safeguards in the procedure to be followed in the inquiry by the Magistrate to protect the fugi- tive criminal. The Magistrate is to receive evidence from the requesting State as well as of the fugitive criminal. The fugi- tive criminal is entitled to show that the offences of which he is accused or convicted are offences of political character or not an extradition offence. Besides, the Magistrate, if he comes to a conclusion that a prima facie case is not made in support of the requisition by the requesting State, he is re- quired to discharge fugitive criminal....
.... 11. We may notice here that upon receiving information with sufficient particulars from a requesting State that a fugi-Digitally signed by AKASH JAIN
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CC No:- 25889/16 Union of India v. Nilesh Ajmera JAIN 2021.12.15 17:23:22 Page No:- 13 of 29 +0530 tive criminal is wanted for any alleged offence committed in the requesting State or for undergoing trial or sentence, the Central Government passes an order under section 5 of the Act, appointing a Magistrate to inquire into the case. The Criminal Procedure Code also provides for the arrest of a person without warrant who is concerned in any cognizable offence or against whom a reasonable complaint has been made or credible information has been received or a reason- able suspicion exists of his having been so concerned in the offence, under section 41 of the Code. Accordingly, on credi- ble information being received from a requesting State, with sufficient particulars, about a person having been involved in any offence, the said person could be arrested in India without warrant. It is now fairly well-settled that the Magis- terial inquiry which is conducted pursuant to the request for extradition is not a trial. The said enquiry decides noth- ing about the innocence or guilt of the fugitive criminal. The main purpose of the inquiry is to determine whether there is a prima facie case or reasonable grounds which warrant the fugitive criminal being sent to the demanding State. The jurisdiction is limited to the former part of the request and does not concern itself with the merits of the trial, subject to exceptions, as outlined in the preceding paragraph 7, in which case the request for extradition is de- nied by the Central Government..."
30. Further, in the case of Kamlesh Babulal Aggarwal v. Union of India & another, 2008 (104) DRJ 178, it was observed:
"... 15. In our opinion, the power of the Magistrate in con- ducting an inquiry under Section 7 of the Act is akin to framing of the charge under Section 228 of the Code of Criminal Procedure, 1973. At the stage of the framing of charge even a strong suspicion founded upon material and presumptive opinion would enable the court in framing a charge against the accused. At that stage, the court possess wider discretion in the exercise of which it can determine the question whether the material on record is such on the basis of which a conviction can be said reasonably to be possible. The requirement of Section 228 also is of a prima facie case. Sufficiency of evidence resulting into conviction is not to be seen at that stage and which will be seen by the trial court. At that stage meticulous consideration of mate- rials is uncalled for. The persons who are not examined by the original investigating agency may be examined by an- other investigating agency to make the investigation more ef- fective. The materials so obtained could also be used at trial. The court is not required to appreciate the evidence and ar- rive at the conclusion that the materials produced are suffi- cient or not for convicting the accused. If the court is satis-
Digitally signed by AKASH AKASH JAIN CC No:- 25889/16 Union of India v. Nilesh Ajmera JAIN Date: Page No:- 14 of 29 2021.12.15 17:23:29 +0530 fied that a prima facie case is made out for proceeding fur- ther, then a charge has to be framed. The sifting of evidence at this stage is permissible only for a limited purpose to find out a prima facie case but the court cannot decide at this stage that the witness is reliable or not. At the stage of fram- ing of charge, evidence is not to be weighed. The court is not to hold an elaborate inquiry at that stage.
16. Section 7(3) and (4) of the Act in fact require a prima facie case only "in support of requisition". Reading the said provision Along with Section 29, we feel that the ambit of inquiry under Section 7 is in fact narrower than Section 228 CrPC and is limited to find that the fugitive is not be- ing targeted for extraneous reasons..."
31. A conjoint reading of aforesaid statutory provisions and judgments of Superior Courts, it is clear that this Court while conducting an inquiry under Extradition Act, 1962 has to examine following aspects:
(a) Whether a prima-facie case exists against the FC in support of the requisition of the Requesting State;
(b) Whether the offence for which extradition of FC is sought is an extraditable offence;
(c) Whether the extradition request and documents received are duly authenticated;
(d) Whether the offence for which extradition of FC is sought is a political offence.
32. It is also trite to say, that this Court does not have to decide that FC is innocent or guilty but only has to see that the material is sufficient to send the FC for trial. Scope of inquiry under the Act is very limited and court cannot sift the evidence against FC and decide its veracity and credibility.
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33. Whether a prima-facie case exists against the FC in support of the requisition of the Requesting State:
It is argued by Ld. Counsel for FC that it is the admitted case of Requesting State that FC had been sentenced in absentia for a period of 3 years by the Misdemeanor Court of Dubai. However, trial in absentia is not recognized under Indian legal system. In support of his contention, Ld. Counsel for FC relied upon Ex. CW1/DX-2 i.e. Note Verbale No. T 413/36/2011 dated 02.05.2011 and Ex. CW 1/3 i.e. Note Verbale No. T 413/36/2011 dated 31.03.2014, both being issued by MEA. Vide both these Note Verbales, UOI informed the Requesting State that as per Indian domestic laws, trial in absentia is not recognized and an assurance be given by Government of United Arab Emirates for a de-novo trial of FC.
34. Ld. Counsel for FC further relied upon Article 3(g) of the United Nations Model Treaty on Extradition according to which extradition of FC shall not be granted if the judgment of the Requesting State has been rendered in absentia and the convicted person had no sufficient notice of the trial or opportunity to arrange for his defence.
35. Ld. SPP for UOI on the other hand, has argued that vide Ex.
CW1/4 i.e. Note Verbale No. 6/4/26-272/2014 dated 05.08.2014, the Requesting State was pleased to forward a note by Public Prosecution (2) Dubai i.e. Ex. CW 1/5, according to which an assurance was granted by the competent authorities in DubaiDigitally for signed conducting a new trial AKASH by AKASH JAIN Date:
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qua FC in case of his extradition. The said argument was though countered on behalf of FC on the ground that the aforesaid note only gave right of review to the FC and the same was not an assurance for a de-novo trial.
36. In order to appreciate the rival contentions of both the parties, it is imperative to reproduce the relevant excerpts of note given by the Public Prosecution (2) dated 19.06.2014.
"... The judicial authorities of the United Arab Emirates represented by the Public Prosecution in the Emirates of Dubai, presents its best compliments to the competent judicial authorities in the Republic of India and appreciates the continuous communication and mutual judicial co-operation between the two countries.
With reference to the note from the Ministry of External Affairs, Republic of India, no. (T-413/36/2011) dated 31.04.2014, New Delhi regarding non providing the necessary guarantee by the Competent Authorities of the country about conducting new trial in cases of the extradition of the accused / NILESH AJMERA, Or waiver of limitation period.
We would like to inform Indian Judicial Authorities the following:-
1. Pursuant to the article (229) of the Code of Criminal Procedure No. (35) of 1992 and its amendments till year 2006, each of the convicted person and the one in charge of the civil rights are entitled to challenge the judgment by objecting the judgment issued in absentia for misdemeanor and violation cases, this can be done within seven days of informing him about the judgment and this is by giving report to the criminal case section which has issued the judgment. This section will set the date for hearing the objections and this will be considered as a summon to the convicted person even if the report was presented by his representative.
The objection results in re-looking into the case again before the court that has issued the judgment in absentia, and the objector may not be harmed due to his objection, if Digitally signed AKASH by AKASH JAIN Date:
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the convicted person didn't attend the first date of hearing set for looking into the objection, then the objection is considered as to be non-existent. After that any objections raised by the convicted person will not be accepted on the judgment issued in his absence. This means that the judgment issued in absentia for misdemeanor and violation case can be challenged by objecting the judgment issued against in absentia within seven days of informing him about the judgment. Whereas the wanted person was not informed about the judgment officially, therefore the seven days period fixed legally for official objections hasn't started yet to be calculated.
2. In case of extradition of the above-mentioned to the competent authorities of the country, at the beginning, he will be informed about the judgment issued against him in absentia, if he decided to challenge the judgment within seven days of period fixed by the law, then a date will be set for hearing his objections, this will result in re-looking into the case again before the court that has issued the judgment in absentia and hearing the defenses of the accused, the convicted person can also challenge against the judgment of conviction after its re-looking before the Court of appeal in accordance with the provisions of Article (230) of the Act referred to, and finally he has the right of appeal to the Court of Cassation (Supreme Court) in the verdict issued against him by the Court of Appeal under Article (244) of the above act.
3. In Based on above, the competent judicial authorities in the United Arab Emirates ensure conducting a new trial in case of the extradition of the above mentioned from the competent Indian authorities, and it also ensure his rights as prescribed by the law..."
37. A careful perusal of the aforesaid note reflects that the information furnished on behalf of Assistant Chief Prosecutor, Public Prosecution, Government of Dubai only provides for legal recourses available to the FC after being informed about the judgment passed against him in absentia. No sovereign assurance of a de-novo trial, though has been given by the Requesting State as demanded by the Requested State. The argument made by Ld. SPP for UOI Digitally signed by AKASH JAIN AKASH Date:
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that para 3 of Ex. CW 1/5 as above, clearly provides for the assurance of a new trial by the competent judicial authorities in Requesting State, is without any merit as para 3 of Ex. CW1/5 is subject to para 2 which provides that FC could either challenge the judgment passed against him in absentia within 7 days before the same Court under Article 229 of Code of Criminal Procedure no. (35) of 1992 or may challenge the judgment before Appellate Court under Article 230 of the Code. It further provides that FC had a right of appeal to the Court of Cassation (Supreme Court) against an order of Court of Appeal under Article 244 of the Act. However, no binding sovereign assurance of a de-novo trial had been separately given by the Requesting State despite several requests of Ministry of External Affairs, Government of India.
38. Section 273 of Code of Criminal Procedure, 1973 (India) clearly provides that all evidence taken in the course of a trial or other proceedings shall be taken in the presence of the accused or his pleader. Vide Ex. CW 1/DX2 i.e. Note Verbale No. T-413/36/2011 dated 02.05.2011 and Ex. CW 1/3 i.e. Note Verbale No. T 413/36/2011 dated 31.03.2014, MEA clearly flagged the issue of non-receipt of binding assurance of a de-novo trial of FC from the Requesting State, yet no such assurance was ever given by the competent authorities in Government of United Arab Emirates.
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39. In the case of In re Athi Palayam & Ors., 1960 SCC OnLine Mad 33, it was held as under:-
"... It is unnecessary to further buttress by citations the elementary point of the glorious Anglo Saxon Criminal Jurisprudence that we administer that firstly no one can be tried or sentenced in absentia (except in petty cases and when represented by a pleader) secondly, the judgment must be pronounced in open Court, signed and dated; and thereby that if these formalities are not strictly complied with, the conviction and sentence cannot be sustained and they become illegal and there is no question of any irregularity being cured because it is almost impossible that no prejudice there by will be caused to the accused. The irregularity will amount to an illegality vitiating the conviction and sentence, because, as I have just stated, it is one of the glorious principles of our criminal jurisprudence that we do not try or sentence people in absentia and we do not also convict and sentence people without judgments being pronounced in open Court and signed and dated then and there. It may be different in the continental system of criminal jurisprudence..."
40. The ratio of the aforesaid case was relied upon by Hon'ble Gujarat High Court in the case of Ratia Mohan v. State of Gujarat, 1968 SCC OnLine Guj 44 and it was reiterated that conviction in absentia is an illegality and not merely an irregularity which could be cured subsequently as it is almost impossible that no prejudice thereby would be caused to the accused.
41. Thus, pursuant to Section 273 of Code of Criminal Procedure, 1973, Article 3(g) of United Nations Model Treaty on Extradition and findings of Hon'ble High Courts of Madras and Gujarat as above, trial of FC in absentia cannot be recognized and accepted under Indian Law. Moreover, no binding assurance of a de-novo trial in clear Digitally signed by AKASH JAIN AKASH Date:
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terms had been shown to have received by MEA from competent authorities in the Requesting State.
42. It is further pointed by Ld. Counsel for FC that complete official record was not even brought by CW-1, Deputy Secretary, Ministry of External Affairs, Government of India, who was the sole witness examined on behalf of UOI. As a matter of practice, only single official witness is examined by UOI in support of its case during inquiry proceedings under the Act. Thus, it becomes all the more essential for the Department to bring necessary official record, including all the relevant Note Verbales exchanged between the Contracting States qua FC before the Court. In the present case, MEA failed to append Note Verbale no. T- 413/36/411 dated 02.05.2011 and Note Verbale no. 6/4/26- 26/2014 dated 06.01.2014 on official record along with request for extradition under Section 5 of the Act. These documents were later on put to CW-1 during his cross- examination by Ld. Counsel for FC and got exhibited as Ex. CW 1/DX2 and Ex. CW 1/DX1 (colly) respectively.
43. Similarly, documents viz order dated 28.04.2010 as mentioned in page no. 89 of Ex. CW 1/6 (colly) and statement of claimant as referred in Page no. 107 of Ex. CW 1/6 (colly) were not found on judicial record. Despite specific questions put to CW-1 during his cross-examination by Ld. Counsel for FC, no satisfactory answer was given regarding non-production of these documents. Moreover, on page 109 A of Ex. CW1/6 (colly) the reason for issuance Digitally signed AKASH by AKASH JAIN Date: JAIN 2021.12.15 17:24:47 +0530 CC No:- 25889/16 Union of India v. Nilesh Ajmera Page No:- 21 of 29 of cheque no. 740247 was mentioned as property deal, however, no document in respect of alleged property deal had been sent by the competent authorities of Requesting State along with the request of extradition. In these circumstances, the argument of Ld. Counsel for FC that adverse inference under Section 114(g) of Indian Evidence Act, 1872 be drawn against the Department, holds merit.
44. Ld. Counsel for FC further pointed out discrepancy in the name of FC on various documents furnished on behalf of Requesting State i.e. page no. 107, 109, 109-A and 111, where name of FC was mentioned as "Mr. Linnich Ajmera". During cross-examination, CW-1 stated that it could be a typographical error, however, he admitted that no clarification qua said error was ever sought by MEA from the Requesting State.
45. Ld. Counsel for FC further pointed out certain discrepancies in the dates in official documents furnished on behalf of Requesting State which are mentioned as under:-
(i) At page 89 of Ex. CW 1/6 (colly) i.e. summary of facts, it was mentioned that original complaint regarding dishonor of cheques was filed by the complainant Mr. Suneel Sahni Jagdish Sahni on 01.05.2009, however, in the judgment dated 16.06.2010 at page 107 of Ex. CW 1/6 (colly), it was mentioned that public prosecution department in Dubai charged the accused on 15.04.2008. It is hard to discern that when complaint was received on Digitally signed AKASH by AKASH JAIN Date: JAIN 2021.12.15 17:24:52 +0530 CC No:- 25889/16 Union of India v. Nilesh Ajmera Page No:- 22 of 29 01.05.2009, how, FC was charged by Public Prosecution Department on a prior date i.e. 15.04.2008.
(ii) At page no.109-A of Ex. CW 1/6 (colly), date of recording of statement of complainant is mentioned as 01.06.2009 as against 01.05.2009.
(iii) Similar discrepancies regarding date of complaint are also visible at page no. 111 of Ex. CW 1/6 (colly).
46. No suitable justification could be given by Ld. SPP for Union of India regarding discrepancy of aforementioned dates on record. Moreover, there is no plausible explanation qua absence of statement of complainant and details of property deal etc. on record.
47. Keeping in view the totality of circumstances and findings as above, no prima-facie case for extradition in support of the requisition of Requesting State is made out against the FC.
48. Whether the offence for which extradition of FC is sought is an extraditable offence:
It is the case of UOI that the FC is guilty of issuance of 12 dud cheques to the complainant Mr. Suneel Sahni Jagdish Sahni resulting in their dishonor by Standard Chartered Bank as well as National Bank of Dubai. It is argued that similar conduct of FC is punishable under Section 138 of Digitally signed AKASH by AKASH JAIN Date: JAIN 2021.12.15 17:24:58 +0530 CC No:- 25889/16 Union of India v. Nilesh Ajmera Page No:- 23 of 29 Negotiable Act, 1881 (hereinafter referred to as 'NI Act'). As such, the offence in question is extraditable.
49. Per contra, it is argued on behalf of FC that under the laws of Requesting State, the cheque has to be issued by an individual in bad faith to invoke punishment, while in Requested State the cheque has to be issued by an individual in discharge of his legally enforceable debt or other liability. Thus, the terminology of Article no. 401/1 of the Federal Penal Code (3) of 1987 is different from that under Section 138 of NI Act and that the offence in question is not extraditable.
50. In response to this argument, Ld. SPP for UOI argued that nomenclature of offences in UAE and India may be different, but the conduct of FC constitutes an illegal and criminal act under the laws of both the Contracting States. As such, the criteria of dual criminality is duly fulfilled in the present case.
51. It is alternatively argued by Ld. Counsel for FC that in terms of Section 2(c)(i) of the Extradition Act, 1962, an 'extradition offence', in relation to a foreign state, being a Treaty State, is an offence provided for in the Extradition Treaty with that State. Article 2 of the Extradition Treaty executed between both the Contracting States provides as under:-
(a) Persons accused of an offence punishable under the laws of both the contracting States by imprisonment for a period of at least one year or more. Digitally signed AKASH by AKASH JAIN Date:
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(b) Persons sentenced by the Courts of the requesting State with imprisonment for at least six months in respect of an extraditable offence.
52. It is argued by Ld. Counsel for FC that Article 2(a) clearly provides that for an offence to be extraditable, the punishment prescribed for the same under the Laws of both the Contracting States should be imprisonment for a period of at least one year or more. It is argued that no minimum sentence is prescribed under Article 401/1 of Federal Penal Code No. (3) of 1987 and offence under Section 138 NI Act is punishable for imprisonment for a period upto two years. Thus, the offence in question is not an 'extraditable offence'.
53. In support of his contention, Ld. Counsel for FC relied upon the judgment of Ravindra Narayan Joglekar v. Encon Exports Pvt. Ltd. Ors., 2008 All MR (Cri) 2032, wherein pursuant to extradition request for an offence under Section 138 of Negotiable Instruments Act, 1881 which is punishable upto two years, Hon'ble Bombay High Court held that since the offence in question did not prescribe the minimum imprisonment of more than one year, the FC was justified in contending that the authorities erred in initiating extradition proceedings against him.
54. Per contra, it is argued by Ld. SPP for UOI that in determination of 'extradition offence' with respect to treaty executed between both the Contracting States, the applicable threshold is imprisonment of period of one year Digitally signed AKASH by AKASH JAIN Date: JAIN 2021.12.15 17:25:11 +0530 CC No:- 25889/16 Union of India v. Nilesh Ajmera Page No:- 25 of 29 or more severe penalty. As Section 138 of NI Act is punishable upto imprisonment for a period of two years, the offence in question is an extraditable offence. It is further argued that the term 'at least' used in Article 2(a) of Treaty, refers to an offence which has a maximum punishment of one year or more and if the interpretation of Ld. Counsel for FC is applied, majority of the offences under Indian Penal Code and other Criminal laws would not be applicable to the Treaty executed between both the Contracting States.
55. While relying upon the judgment of Ram K Mahbubani v.
UOI & Anr., 2008 (106) DRJ 906, Ld. SPP for UOI argued that in the above case Section 420 of IPC was held to be an 'extraditable offence' and that Section 420 IPC does not prescribe mandatory minimum sentence of one year imprisonment.
56. A plain reading of Article 2(a) of Extradition Treaty, executed between both the Contracting States makes it manifest that for an offence to be an 'extraditiable offence' under the Treaty, it has to be punishable for imprisonment for a period of at least one year or more. Section 138 of NI Act clearly gives discretion to the Court to impose either fine or imprisonment for a term which may be extended upto two years or with both. In these circumstances, in the absence of prescribed minimum sentence of one year, the offence in question does not pass the qualification of 'extradition offence' under Article 2(a) of the Treaty.
Digitally signed AKASH by AKASH JAIN
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Reliance may be placed upon the judgment of Ravindra Narayan Joglekar (Supra), wherein it was held as under:-
"... 8. If we peruse section 138 of the Negotiable Instru- ments Act quoted above, it is apparent that there is no com- pulsion to impose an imprisonment as such for the offence under the said section 138 of the Act. It is in the discretion of the Court to impose penalty of imprisonment while con- victing the accused person under section 138 of the Act. If the Court decides to impose the imprisonment, it can extend it for a period of two years. The discretionary power given to the Court to impose or not the imprisonment, merely be- cause it can extend to a period of two years, that itself would not mean that the punishment prescribed for the said offence is an imprisonment for minimum period of one year or above. Being so, the petitioner is justified in contending that the offence for which the petitioner is sought to be prosecuted does not prescribe a minimum imprisonment for more than one year. On this count itself, the petitioner is justified in contending that the authorities erred in initiat- ing extradition proceedings against the petitioner.
9. Although the order in proceedings for extradition is sought to be challenged on various other grounds, it is not necessary to deal with those grounds, as the offence for which the petitioner is sought to be prosecuted is not extra- ditable offence within the meaning of the said expression under Article 2(1) of the Extradition Treaty. The proceed- ings for extradition are, therefore, not maintainable and on this ground itself the order dated 17th April, 2006 passed in Writ Petition No. 272 of 2006 is required to be recalled. It is settled law that in case the order passed by the Court is patently contrary to the provisions of law, the same cannot be allowed to remain in force as it can result in great preju- dice and irreparable loss to the parties. Plain reading of the order dated 17th April, 2006 would apparently disclose that the same was passed on the basis of uncontested sub- missions made on behalf of the petitioner therein and with- out adjudicating the issue as to whether the offence in ques- tion was extraditable offence or not. An order totally con- trary to the provisions of law, if allowed to remain in force, is bound to cause irreparable injury to the aggrieved party. No amount of technicalities can abstain this Court from ex- ercising its plenary jurisdiction to do the needful to wreck the wicked wrong. In the circumstances, the said order can- not be allowed to remain in force and hence, the petitioner is entitled for recall of the said order..."Digitally signed by AKASH JAIN
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57. The judgment of Ram K Mahbubani (supra) relied upon by Ld. SPP for UOI is respectfully not applicable to the facts of the present case as the Treaty in above case was between Government of Republic of India and United States of America and the definition of 'Extradition Offence' provided in the said Treaty is different from that in the present case i.e.:-
"... An offence shall be extraditable offence if it is punishable under the laws in both Contracting States by deprivation of liberty, including imprisonment, for a period of more than one year or by a more severe penalty..."
58. At this stage, it is alternatively argued by Ld. SPP for UOI that the case of the FC would fall under Article 2(b) of the Treaty as the FC had already been sentenced by the Courts of the Requesting State for a period of three years. However, this contention of Ld. SPP for UOI fails to pass any muster as vide Ex. CW 1/DX-2 and Ex. CW 1/3, MEA itself admitted that the trial in absentia is not recognized under the Indian legal system. Thus, Article 2(b) of the Extradition Treaty is not applicable to the facts of the present case.
59. In view of the findings as above, it is held that the offence in question is not an 'extraditable offence'. Since, UOI has failed to prove to the satisfaction of the Court, existence of prima-facie case against FC and offence in question being extraditable, the other aspects of authentication of documents and political nature of offence need not be adjudged. AKASH Digitally signed by AKASH JAIN Date: JAIN 2021.12.15 17:25:27 +0530 CC No:- 25889/16 Union of India v. Nilesh Ajmera Page No:- 28 of 29 Conclusion
60. After considering the entire facts, circumstances of the present case, documents received in support of the extradition request and provisions of Extradition Treaty executed between both Requesting and Requested State, I conclude my inquiry report with the following observations:
(i) That offence in question is not an 'extraditable offence' under Article 2 of Treaty executed between both the Contracting States;
(ii) That prima-facie case against FC is not made out in support of the requisition of Requesting State under Section 7(3) of the Extradition Act, 1962 and FC stands discharged.
61. A copy of this report be sent to the UOI through the Ld. SPP. The copy of this report be also uploaded on the website as per rules.
ANNOUNCED IN THE OPEN Digitally
signed by
COURT ON 15.12.2021 AKASH AKASH JAIN
Date:
JAIN 2021.12.15
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(AKASH JAIN)
ACMM-01, NEW DELHI DISTRICT
PATIALA HOUSE COURTS, NEW DELHI
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