Delhi District Court
Ct Cases/45417/2016 on 8 December, 2022
IN THE COURT OF MS. NABEELA WALI
ADDITIONAL CHIEF METROPOLITAN MAGISTRATE-01
NEW DELHI DISTRICT, PATIALA HOUSE COURTS:
NEW DELHI
In Re:
Union of India v. Mohan Lal Kapoor
CC No:- 45417/2016
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-413/18/2008 dated 02.06.2010 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 Mohan Lal Kapoor 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 10.05.2008, Mr. Abdul Sathar Aziz Tabah, Asst. Lawyer with AI Bahr & Associates Lawyers and Legal Consultants, who is the attorney of the complainant (Miwand General Trading) represented by their Manager Mr. Jasmith Singh Hakim Zadeh reported to Refa'a Police Station, that FC had issued 11 cheques with the total value of AED 3,896,517 in favour of complainant against business transactions. On Digitally signed by NABEELA NABEELA WALI WALI Date:
2022.12.08 17:14:56 +0530 CC No:- 45417/16 Union of India v. Mohan Lal Kapoor Page No:- 1 of 27 presenting the cheques to the bank, they were returned without payment as there was no funds to cover them.
3. On 16.06.2008 arrest warrants were issued against the FC for the crime of issuing dud cheques which is punishable as per the Article 401/1 of Federal Penal Code No. 3 of 1987 and Laws amended thereto.
4. It is pertinent to mention here that on receipt of the request of MEA, Ld. Predecessor Court issued warrants of arrest against FC under Section 6 of the Act on 07.07.2010 through Department/UOI. After issuance of warrants against the FC, he could not be found at the given address.
Thereafter, several opportunities were granted to Union of India for execution of the warrants.
5. On 21.09.2011, 27.02.2012 and 27.07.2012, Ld. Predecessor passed an order for issuance of process under Section 82 Cr.P.C. against the FC. However on 31.01.2013, on receiving of report that FC is residing in Dubai, the Predecessor of the court dismissed the extradition request of the Union of India and granted liberty to Union of India to file a fresh extradition request as and when FC is stated to be residing in India.
6. On 04.07.2016, FC was produced before Ld. Predecessor Court after his apprehension at Amritsar and thereafter he was sent to JC. Vide order dated 08.07.2016 of Ld. Digitally signed by NABEELA NABEELA WALI WALI Date:
2022.12.08 17:15:16 +0530 CC No:- 45417/16 Union of India v. Mohan Lal Kapoor Page No:- 2 of 27 Predecessor Court, FC was admitted to bail and inquiry proceedings got initiated against him.
Charges against FC
7. The Requesting State has sought extradition of FC, in United Arab Emirates for the crime of issuing dud cheques punishable under the following law:-
(a) Article 401/1 of the Federal Penal Code no. (3) of 1987.
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).
Allegations against FC
8. It is alleged against the FC that on 10.05.2008, Mr. Abdul Sathar Aziz Tabah, Asst. Lawyer with AI Bahr & Associates Lawyers and Legal Consultants, who is the attorney of the complainant (Miwant General Trading) represented by their Manager Mr. Jasmith Singh Hakim Zadeh reported to Refa'a Police Station, that FC had issued 11 cheques with the total value of AED 3,896,517 in favour of complainant against business transactions, Digitally signed by NABEELA NABEELA WALI WALI Date: 2022.12.08 17:15:26 +0530 CC No:- 45417/16 Union of India v. Mohan Lal Kapoor Page No:- 3 of 27 however, by presenting the cheques to the bank, they were returned without payment as there was no funds to cover them. The details of the said cheques are given below:-
S. Cheque Cheque Value Due Date The Drawn Bank No. No.
1. 171181 AED 1,327,446/- 13/01/2001 Citi Bank
2. 171183 AED 234,5253/- 05/05/2005 Citi Bank
3. 171184 AED 156,170/- 05/05/2005 Citi Bank
4. 171185 AED 156,170/- 05/05/2005 Citi Bank
5. 171186 AED 156,170/- 05/05/2005 Citi Bank
6. 171187 AED 109,319/- 05/05/2005 Citi Bank
7. 171188 AED 234,255/- 19/12/2004 Citi Bank
8. 171189 AED 058,564/- 05/05/2005 Citi Bank
9. 171190 AED 156,170/- 05/05/2005 Citi Bank
10. 171191 AED 941,000/- 05/05/2005 Citi Bank
11. 171191 AED 367,000/- 05/05/2005 Citi Bank Total Value AED 3,896,517/-
9. On 16.06.2008 arrest warrants were issued against the FC for the crime of Giving Dud Cheques which is punishable as per the Article 401/1 of Federal Punishments Law No. 3 of 1987 and Laws amended thereto, applicable legal provisions of the UAE by Advisor Ali Humaid Bin Khatem, 'Chief Prosecutor-Technical Office of Attorney General.' Treaty
10. The request for extradition of FC was made by Requesting State i.e. Government of United Arab Emirates through Digitally signed by NABEELA NABEELA WALI WALI Date:
2022.12.08 CC No:- 45417/16 Union of India v. Mohan Lal Kapoor Page No:- 4 of 27 17:15:35 +0530 diplomatic channels vide Note Verbale no. 6/4/26- 576/2008 dated 22.07.2008. 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
11. 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:-
1. Mark-A : Copy of Treaty between the Republic of India and United Arab Emirates which was notified in the Gazette of India vide Order GSR 653(E) dated 20.07.2000;
2. Mark-B : Copy of Diplomatic Note/Note Verbale bearing no. 6/4/26-576/2008 dated 22.07.2008;
3. Ex. CW 1/A : Request received along with Mark-B containing Public Prosecution, Dubai's request for extradition dated 16.06.2008;
4. Ex. CW 1/B : Arrest warrant in Cr Case No. 14858/2005 dated 16.06.2008 issued in the name of FC; NABEELA Digitally signed by NABEELA WALI WALI Date:2022.12.08 17:15:43 +0530
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5. Ex. CW 1/C : English Translation of investigation record dated 28.08.2005 summoning the victim Sh. Abdul Satar Azez Tayeh for hearing of investigation;
6. Mark-C : Copy of Arabic Version of Ex. CW 1/C;
7. Ex. CW 1/D : English Translation of Investigation record dated 04.09.2005 whereby the advocate representing victim Ms. Abdul Satar Azez Tayeh was examined;
8. Mark-D (colly) : Copy of Arabic version of Ex. CW 1/D;
9. Ex. CW 1/E : English translation of provisional police (colly) report dated 10.08.2005;
10. Mark-E (colly) : Copy of Arabic version of Ex. CW 1/E;
11. Ex. CW 1/F : English translation of legal notice sent (colly) by the complainant to the FC;
12. Mark-F (colly) : Copy of Arabic version of Legal Notice;
13. Mark-G (colly) : Copies of Cheques in question;
running upto Ex. CW 1/F;
11pages
14. Mark-H (colly) : Identity document of FC i.e. copy of
running upo passport of FC
4 pages
15. Ex. CW 1/G : English translation of Letter from
Advocate of the complainant to the
Public Prosecution Dubai to circulate to Interpol regarding the FC;
16. Mark-J : Arabic version of Ex. CW 1/G;
Digitally signed by NABEELA NABEELA WALI WALI Date: 2022.12.08 17:16:15 +0530 CC No:- 45417/16 Union of India v. Mohan Lal Kapoor Page No:- 6 of 27 17. Ex. CW 1/J : Order of MEA bearing No. T- 413/18/2008 dated 02.06.2010; 18. Ex. CW 1/K : Application under Section 6 of the
Extradition Act for issuance of arrest warrants filed before the Court on 07.07.2010.
12. CW-1 was duly cross-examined by Ld. Counsel for FC.
During his cross-examination, CW-1 admitted that he is not the signatory of the application which is Ex. CW 1/K filed before the court for extradition. He further submitted that alleged offence is for issuance of dud cheques/cheque bouncing in UAE committed by the FC and in India the offence is punishable under Section 138 Negotiable Instrument Act. CW-1 also admitted that copies of 11 cheques, subject matter of the present case marked as Mark- G (colly) does not bear the name of the FC. CW-1 also admitted that there is nothing on record to suggest that the FC was in any manner connected with Kabul Gulf General Trading LLC. CW-1 also admitted that no copy of judgment or the record of the trial conducted at UAE is available on record.
13. After cross-examination of CW-1, on request of Ld. SPP for UOI, evidence was closed. The matter thereafter, proceeded for final arguments.
Arguments
14. Ld. Counsel for FC argued that FC has been falsely implicated in the present case and that no case for Digitally signed by NABEELA NABEELA WALI Date:
WALI 2022.12.08
17:16:25
+0530
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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 has been sought from Requesting State for a de-novo trial of FC;
(iii) No copy of judgment or the record of the trial has been sent by the Requesting State;
(iv) The partnership firm i.e. Kabul Gulf General Trading LLC has not been made an accused in the present case;
(v) That there is nothing on record to show that the accused was either partner or in any manner responsible for the day to day functioning of the Kabul Gulf General Trading LLC;
(vi) Identity of the accused is disputed as father's name of the FC has been mentioned differently on the passport and in the investigation record;
(vii) That the documents furnished are not duly authenticated as per the articles of the Treaty;
(viii) The offence punishable against FC is not an extraditable offence in terms of Article 2 of the Treaty, as offence u/s 138 of NI Act is not punishable with minimum sentence of one year as per the requirement of the Treaty;
15. 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.
Digitally signed by NABEELA NABEELA WALI WALI Date: 2022.12.08 17:16:34 +0530 CC No:- 45417/16 Union of India v. Mohan Lal Kapoor Page No:- 8 of 27
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?
16. 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.
17. It is also argued by Ld. SPP for Union of India by way of written arguments that the FC has not been convicted by any court of law in Dubai as per the record available from the file.
18. It is further argued by Ld. SPP for UOI that the offence in question falls under the ambit of 'Extraditable Offence' under Article 2 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. Digitally signed by NABEELA NABEELA WALI WALI Date:
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19. It is also argued that the Hon'ble Delhi High Court in Suneel Sahni v. Union of India vide order dated 07.03.2022 had held that observation of this court regarding the extraditable offence being punishable with minimum sentence of one year in case titled 'Union of India v. Nilesh Ajmera' were to have no bearing in any other case.
20. It is further argued by Ld. SPP for UOI that the authenticity of the documents have not been challenged by the FC in any proceedings. However, difference in the name of father 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.
21. 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
22. 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 UOI.
23. The term 'Extradition' has not been defined under the Act.
However, a comprehensive definition of extradition has Digitally signed by NABEELA NABEELA WALI WALI Date: 2022.12.08 17:17:00 +0530 CC No:- 45417/16 Union of India v. Mohan Lal Kapoor Page No:- 10 of 27 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..."
24. 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.
25. 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 section 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 Digitally signed NABEELA by NABEELA WALI WALI Date: 2022.12.08 17:17:10 +0530 CC No:- 45417/16 Union of India v. Mohan Lal Kapoor Page No:- 11 of 27 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.
(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.
26. 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 petitioner. It is clear from the scheme of the Extradition Act that pursuant to a request made under section 4 of the Act, the order contemplated to be passed for a Magisterial inquiry under section 5 does not contemplate a pre-deci- sional 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 Central 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 re- questing State for trial or for undergoing the sentence passed or to be passed. The Act contains sufficient safe- Digitally guards in the procedure to be followed in the inquiry by the signed by NABEELA NABEELA WALI WALI Date:
2022.12.08 17:17:17 +0530 CC No:- 45417/16 Union of India v. Mohan Lal Kapoor Page No:- 12 of 27 Magistrate to protect the fugitive criminal. The Magistrate is to receive evidence from the requesting State as well as of the fugitive criminal. The fugitive criminal is entitled to show that the offences of which he is accused or convicted are offences of political character or not an extradition of- fence. Besides, the Magistrate, if he comes to a conclusion that a prima facie case is not made in support of the requi- sition by the requesting State, he is required to discharge fugitive criminal....
.... 11. We may notice here that upon receiving information with sufficient particulars from a requesting State that a fugitive criminal is wanted for any alleged offence commit- ted in the requesting State or for undergoing trial or sen- tence, the Central Government passes an order under sec- tion 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 reasonable suspicion exists of his having been so con- cerned in the offence, under section 41 of the Code. Accord- ingly, on credible information being received from a re- questing 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 Magisterial inquiry which is conducted pursuant to the request for extradition is not a trial. The said enquiry decides nothing 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 rea- sonable grounds which warrant the fugitive criminal be- ing sent to the demanding State. The jurisdiction is limited to the former part of the request and does not concern it- self with the merits of the trial, subject to exceptions, as outlined in the preceding paragraph 7, in which case the re- quest for extradition is denied by the Central Govern- ment..."
27. 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 Digitally signed by NABEELA NABEELA WALI WALI Date:
CC No:- 45417/16 Union of India v. Mohan Lal Kapoor 2022.12.08 17:17:29 +0530 Page No:- 13 of 27 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 considera- tion of materials is uncalled for. The persons who are not examined by the original investigating agency may be ex- amined by another investigating agency to make the investi- gation more effective. The materials so obtained could also be used at trial. The court is not required to appreciate the evidence and arrive at the conclusion that the materials produced are sufficient or not for convicting the accused. If the court is satisfied that a prima facie case is made out for proceeding further, then a charge has to be framed. The sift- ing 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 framing 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 am-
bit of inquiry under Section 7 is in fact narrower than Section 228 CrPC and is limited to find that the fugitive is not being targeted for extraneous reasons..."
28. 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;
29. 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 Digitally signed by NABEELA NABEELA WALI WALI Date: 2022.12.08 17:17:39 +0530 CC No:- 45417/16 Union of India v. Mohan Lal Kapoor Page No:- 14 of 27 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.
30. Whether a prima-facie case exists against the FC in support of the requisition of the Requesting State:
Firstly, it is argued by Ld. Counsel for the FC that accused has been sentenced in absentia whereas 'trial in absentia' is not recognized under the Indian legal system. In support of his submission Ld. Counsel for FC has drawn attention of this court to Ex.CW-1/A where penalty as per the judgment qua the said FC is mentioned as three years of imprisonment. It is further contended that CW-1 in his cross-examination has deposed that "as per the record the matter appears to have been decided ex-parte". It is further argued by Ld. Counsel for FC that as admitted by CW-1 in his cross-examination, no copy of the judgment or record of the trial conducted at UAE is available on record and there is no assurance from the UAE government for de- novo trial and neither any such request has been made so far by the Ministry of External affairs.
31. 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.
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Ld. Counsel has also relied upon the judgment of In re Athi Palayam & Ors., 1960 SCC OnLine Mad 33, in support of his arguments.
32. Ld. SPP for UOI on the other hand, has argued that no trial has been conducted qua the FC in absentia as per record. The said argument was though countered on behalf of FC on the ground that CW-1 examined on behalf of Union of India has deposed to the contrary.
33. In order to appreciate the rival contentions of both the parties, it is imperative to reproduce the relevant excerpts of request received from Dubai Public Prosecution dated 16.06.2008 which is Ex.CW1/A. The said document mentions the charges imposed upon the FC, the applicable law articles, " the penalty as per the judgment i.e. three years imprisonment", and the maximum penalty i.e. three years imprisonment etc. Ex.CW1/A has been signed by the Chief Prosecutor and also bears the signatures and stamp with certificate of the translator certifying the document to be correctly translated. It is pertinent to mention here that the other investigation record pertains to the year 2005.
34. Also it is an admitted fact by CW-1 that no sovereign assurance of a de-novo trial has been made by the requesting state and neither any request has been made by UoI.
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35. The criminal proceedings in our country is governed by the Code of Criminal Procedure, 1973 wherein Section 273 of the Code 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. Whereas in the present case the investigation record i.e. Ex. CW 1/C and Ex.CW 1/D makes it clear that the statement of the complainant has been recorded in the absence of the accused.
36. In the case of In re Athi Palayam & Ors., 1960 SCC OnLine Mad 33, relied upon by Ld. Counsel for FC, 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..."
37. 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 Digitally signed by NABEELA NABEELA WALI WALI Date:
2022.12.08 17:18:11 +0530 CC No:- 45417/16 Union of India v. Mohan Lal Kapoor Page No:- 17 of 27 an irregularity which could be cured subsequently as it is almost impossible that no prejudice thereby would be caused to the accused.
38. 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 record of the judgment has been received in the present case and neither any assurance of a de-novo trial has been requested for by MEA from competent authorities in the Requesting State.
39. It is further pointed by Ld. Counsel for FC that identity of the accused is disputed as name of the father of the FC has been mentioned differently on the passport and in the investigation record. On the other hand Ld. SPP for Union of India has stated that the same is merely a typographical error. Perusal of the record shows that copy of passport sent as identity proof which is Mark H as well as ExCW1/A and Ex.CW1/B mentions the name of the father of the accused as Jagganath Kapoor, however the investigation record ExCw1/D and Ex.CW1/E mentions the name of the father of the accused as Rajkan Nath Kapoor.
40. Also it is argued by Ld. Counsel for FC the cheques in question are in the name of Kabul Gulf General Trading Digitally signed by NABEELA NABEELA WALI WALI Date:
2022.12.08 17:18:20 +0530 CC No:- 45417/16 Union of India v. Mohan Lal Kapoor Page No:- 18 of 27 LLC and there is nothing on record to show that the FC was in any manner connected with Kabul Gulf General Trading LLC. Ld. Counsel for FC in support of his submissions has relied upon the judgment of Dilip Hiraramani v. Bank of Baroda in Criminal Appeal No. 767/2022 decided on 09.05.2022 (Hon'ble Supreme Court of India). Perusal of the record shows that it is an admitted fact by CW-1 that there is nothing on record to show that the FC was in any manner connected with Kabul Gulf General Trading LLC. CW-1 has also not identified the signatures on the cheques which are Mark G (colly) and could not confirm if the cheques Mark G (colly) were issued by the FC himself. Although, ExCW-
1/A mentions that the FC had issued the 11 cheques in question in favor of the complainant in lieu of business transactions, however, the investigation report is silent on the fact as to whether the said cheques were signed by the FC and the role of FC in Kabul Gulf General Trading LLC. Also Ex.CW1/A and Ex.CW1/B mentions the details of the FC wherein occupation of the FC is mentioned as 'Partner' however no further details of his occupation are mentioned. Furthermore, Ld. Counsel for the FC has submitted that as per Ex.CW1/A the said cheques were returned without payment as there were 'no funds to cover them', however as per Ex.CW-1/D the cheques were returned back as the 'account was closed'. It is further submitted by Ld Counsel for FC that out of 11 cheques alleged to have been issued by the FC, only one bears the name of the complainant as drawee and one cheque Digitally signed by NABEELA NABEELA WALI WALI Date: 2022.12.08 17:18:32 +0530 CC No:- 45417/16 Union of India v. Mohan Lal Kapoor Page No:- 19 of 27 bearing no. 171183 does not bear the name of any drawee and the other cheques are 'pay to the order of cash'.
41. No suitable justification could be given by Ld. SPP for Union of India regarding the above mentioned discrepancies in the record received from the Requesting State & neither any plausible explanation qua absence of name of complainant on the cheques as discussed above, was put forth by Union of India.
42. 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.
43. 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 11 dud cheques to the complainant resulting in their dishonor. It is contended by Ld. SPP for Union of India 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. It is also argued that UAE does not have any special Act for dealing with cheque bounce cases and Article 401 of the Federal Penal Code of UAE is akin to Section 420 of the Indian Penal Code. As such, the criteria of dual criminality is duly fulfilled in the present case.
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44. For a better understanding of the above argument, it is important to reproduce the relevant provision of law in both contracting states as under:-
Article 401 of Fedreal Penal Code of UAE"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.
Section 420 of Indian Penal Code reads as under :-
420.Cheating and dishonestly inducing delivery of property.-
Whoever cheats and thereby dishonestly induces the per- son deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
Section 138 of Negotiable Instruments Act Dishonour of cheque for insufficiency, etc., of funds in the account. -- Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be Digitally signed NABEELA by NABEELA WALI WALI Date: 2022.12.08 17:18:50 +0530 CC No:- 45417/16 Union of India v. Mohan Lal Kapoor Page No:- 21 of 27 punished with imprisonment for 19 [a term which may be extended to two years], or with fine which may extend to twice the amount of the cheque, or with both: Provided that nothing contained in this section shall apply unless--
(a)the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;
(b)the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, 20 [within thirty days] of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and
(c)the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice............"
45. On reading the above provisions it is clear that Article 401 of Federal Penal Code of UAE is a specific provision with respect to the dishonour of cheques issued in bad faith. Under the the Indian law such conduct is punishable under under Section 138 of the NI Act. Section 420 of the IPC is rather a general provision with respect to cheating. The 'dual criminality' rule requires that the conduct of the FC must constitute illegal or criminal act under law of both the requesting state and the requested state. Thus without doubt the relevant provisions under the Indian law for the purpose of dual criminality would be Section 138 of the NI Act.
46. Further, it is argued on behalf of FC that no legal demand notice has been issued to the FC and neither the partnership firm i.e. Kabul Gulf General Trading LLC has been made an accused by the Requesting State as is required under the law prevailing in our country. Ld. Digitally signed NABEELA by NABEELA WALI WALI Date: 2022.12.08 17:19:00 +0530 CC No:- 45417/16 Union of India v. Mohan Lal Kapoor Page No:- 22 of 27 Counsel for FC has relied upon the judgment of Dilip Hiraramani v. Bank of Baroda in Criminal Appeal No. 767/2022 decided on 09.05.2022 (Hon'ble Supreme Court of India) and Yogender Pratap Singh v. Savitri Pandey & Anr in Criminal Appeal No. 605/2012 decided on 14.09.2014 (Hon'ble Supreme Court of India) in support of his argument. It is thus argued by Ld. Counsel for FC that since no offence is made out in the Requested State in view of the above omissions, hence the offence in question is not extraditable in nature. Ld. SPP for Union of India has reiterated his submission that in view of the Section 420 IPC the criteria of dual criminality is duly fulfilled.
47. It is further 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 Indian law 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'.
48. 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 Digitally signed by NABEELA NABEELA WALI WALI Date: 2022.12.08 17:19:09 +0530 CC No:- 45417/16 Union of India v. Mohan Lal Kapoor Page No:- 23 of 27 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.
49. 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 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. Ld. SPP for Union of India has also relied upon the judgment of Hon'bel Delhi High Court in Suneel Sahni v. Union of India to argue that the observation made in extradition request titled as Union of India v. Nilesh Ajmera have no bearing in the case.
50. 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 Digitally signed NABEELA by NABEELA WALI WALI Date: 2022.12.08 17:19:19 +0530 CC No:- 45417/16 Union of India v. Mohan Lal Kapoor Page No:- 24 of 27 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. 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 Instruments Act quoted above, it is apparent that there is no compulsion 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 convicting 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 because 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 initiating 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 extraditable offence within the meaning of the said expression under Article 2(1) of the Extradition Treaty. The proceedings 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 prejudice 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 submissions Digitally signed NABEELA by NABEELA WALI WALI Date: 2022.12.08 17:19:29 +0530 CC No:- 45417/16 Union of India v. Mohan Lal Kapoor Page No:- 25 of 27 made on behalf of the petitioner therein and without adjudicating the issue as to whether the offence in question was extraditable offence or not. An order totally contrary 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 exercising its plenary jurisdiction to do the needful to wreck the wicked wrong. In the circumstances, the said order cannot be allowed to remain in force and hence, the petitioner is entitled for recall of the said order..."
51. Moreover in view of the submission of Ld. SPP for Union of India with respect to the observation in the Suneel Sahni (Supra) above is an independent finding of this court on the facts and circumstances of the present case without relying upon the observation made in Union of India v. Nilesh Ajmera by this court.
52. 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 need not be dwelled into.
Conclusion
53. 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:
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(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 and FC stands discharged under Section 7(3) of the Extradition Act, 1962.
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.
File be consigned to Record Room.
Announced in the open Court Digitally signed NABEELA by NABEELA WALI on 8th December, 2022 WALI Date: 2022.12.08 17:20:04 +0530 (NABEELA WALI) ACMM-01/NEW DELHI DISTRICT PATIALA HOUSE COURTS/NEW DELHI 08.12.2022 CC No:- 45417/16 Union of India v. Mohan Lal Kapoor Page No:- 27 of 27