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TMI Blog2014 (4) TMI 1244X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 31st October, 2011; RC BD 1/2011/E/0010 dated 29th December, 2011; RC BD 1/2012/E/0007 dated 4th June, 2012 and RC BD 1/2013/E/0001 dated 1st January, 2013 of CBI, BS & FC, New Delhi filed before the Hon'ble 19th Additional Chief Metropolitan Magistrate, Esplanade, Mumbai on the complaint of Respondent Nos.3 to 5 and 7 respectively; (b) In the alternative this Hon'ble Court be pleased to direct that all the FIRs i.e. RC BD 1/2011/E/0009 dated 31st October, 2011; RC BD 1/2011/E/0010 dated 29th December, 2011; RC BD 1/2012/E/0007 dated 4th June, 2012 and RC BD 1/2013/E/0001 dated 1st January, 2013 of CBI, BS & FC, New Delhi filed before the Hon'ble 19th Additional Chief Metropolitan Magistrate, Esplanade, Mumbai on the complaint of Respondent Nos.3 to 5 and 7 respectively be clubbed together into RC BD 1/2011/E/0005 dated 25th April, 2011 filed by the Pubjab National Bank i.e. Respondent No.2 a consortium member in which investigations have commenced and all be treated as a single FIR; (c) This Hon'ble Court be pleased to restrain Respondent No.1 from registering new cases based on the complaints already received or to be received from the consortium membe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ether with the FIR filed by the Punjab National Bank i.e. Respondent No.2 and have also prayed for issuance of necessary directions for treating all the FIRs as a single FIR. The applicants have also prayed for issuance of necessary directions for restraining respondent no.1 from registering new cases based either on the complaints already received or which may be received from the consortium members. 2. At the out-set, we may point out that Criminal Writ Petition No. 3490 of 2011 had been filed by Vijay Madanlal Choudhary and another i.e. the applicant no.1 and another, under Article 226 of the Constitution of India for quashing the FIR registered by the CBI for offence punishable under Section 120-B read with Section 420 of the Indian Penal Code and other substantive offences. The Division Bench of this court by its order dated 9th July , 2012, came to the conclusion that it would be inappropriate to interfere in exercise of writ jurisdiction for quashing the FIR which prima facie made out a case for proceeding under Section 420 read with Section 120-B of the IPC and, therefore, dismissed the petition. While dismissing the petition, however, the Division Bench made it clear tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts while availing the credit facilities from the consortium. The applicants contend that the allegations in the FIRs form part of the same transaction and, therefore, registration of multiple FIRs by respondent no.1 is bad in law. In the light of this, therefore, what is prayed for by the applicants is for clubbing all the FIRs along with report filed by the Punjab National Bank and to treat all the FIRs as a single FIR. The applicants have also prayed for restraining the respondent no.1 from registering new offences / cases based either on the reports already received or yet to be received. The applicants, therefore, prayed that instead of multiple offences leading to filing of multiple cases, a single case ought to be registered on the basis of the various FIRs lodged by the respondents. 4. According to the applicants, the applicant no.2 was engaged in the business of providing Engineering, Design Development Service, Project Management, Asset Reconstruction and Infrastructure projects in India and abroad and the services were provided mainly to four Europe based clients known as "Aggregators". In 1997, the applicant no.2 on the basis of having reached broad understanding with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tee, deed of corporate guarantee and deed of equitable mortgage were executed by the applicants/mortgagors/guarantors in favour of all the members of the consortium banks. After entering into individual work contract, the applicant no.2 submitted the work contracts to any of the consortium bank wherever the limits were available and requested it to issue Foreign Bank Guarantees in favour of its Aggregators banks (emphasis supplied). Since the consortium banks were not International Banks, the consortium banks had issued the counter guarantees to foreign intermediary banks with whom they had arrangements and requested them to issue bank guarantees in favour of the banks of the Aggregators. Thus, the Foreign Intermediary Banks established bank guarantees in favour of the banks of the Aggregators and as per the clauses of the guarantees, the guarantees would come into force only upon receipt of the guarantee amount in the "nostro" accounts of the banks in India who were giving the counter guarantees. They were to be kept in force for the entire duration of the contract which, according to the applicants, was around 3 to 5 years. The consortium banks, however, established bank guarante ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r commission of cognizable offences. It is also the contention of the respondent no.1 that the cases are being presently investigated by different Investigation Officers and merely because the names of the accused being common in the FIRs, an inference cannot be drawn that all the conspiracies are part of the same transaction. 9. We have heard Mr. Amti Desai, learned Senior Counsel for the applicants and the learned Additional Solicitor General Mr. Kevic Setalwad on behalf of respondent no.1 - CBI and the other learned counsel representing the other respondents. 10. Mr. Amit Desai, learned Senior Counsel for the applicants has referred to the procedure of the consortium banking and has urged before us that the FIRs taken at their face value disclose about a single conspiracy. It is not the case of the respondents that the applicants entered into several different conspiracies in order to cheat the individual member banks of the consortium. The procedure which is highlighted by the applicants in their application clearly indicate that no representation was individually made to the members of the consortium banks and if at all an offence punishable under Section 120-B and 420 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... us, an agreement between two or more persons to do an illegal act or legal acts by illegal means is criminal conspiracy. If the agreement, is not an agreement to commit an offence, it does not amount to conspiracy unless it is followed up by an overt act done by one or more persons in furtherance of the agreement. The offence is complete as soon as there is meeting of minds and unity of purpose between the conspirators to do that illegal act or legal act by illegal means. Conspiracy itself is a substantive offence and is distinct from the offence to commit which the conspiracy is entered into. It is undoubted that the general conspiracy is distinct from number of separate offences committed while executing the offence of conspiracy. Each act constitutes separate offence punishable, independent of the conspiracy. The law had developed several or different models or techniques to broach the scope of conspiracy. One such model is that of a chain, where each party performs even without knowledge of the other a role that aids succeeding parties in accomplishing the criminal objectives of the conspiracy. An illustration of a single conspiracy, its parts bound together as links in a chain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity of the change in the text on the banner. In the comity of International Law, in these days, committing offences on international scale is a common feature. The offence of conspiracy would be a useful weapon and there would exist no conflict in municipal laws and the doctrine of autrefois convict or acquit would extend to such offences. The comity of nations are duty bound to apprehend the conspirators as soon as they set their feet on the country territorial limits and nip the offence in the bud." Mr. Amit Desai, learned Senior Counsel for the applicants has urged before us that perusal of the FIRs do not at all disclose that the case of the respondents - member banks is about multiple separate conspiracies. According to the learned Senior Counsel, the averments in the FIRs disclosed about one conspiracy and the other offences are flowing from the same conspiracy and, therefore, would be offences committed in the same transaction. A consortium is set up as a single window and consequently no individual representations are made to the member banks, but whatever representations are made, are made to the lead bank and, therefore, there would be one conspiracy and the other offen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Cr. P.C. No such information/statement can properly be treated as an F.I.R.and entered in the station house diary again, as it would in effect be a second FIR and the same cannot be in conformity with the scheme of the Cr. P.C. Take a case where an FIR mentions cognizable offence under Section 307 or 320 I.P.C. and the investigating agency learns during the investigation or receives a fresh information that the victim died, no fresh FIR under Section 302 I.P.C. need be registered which will be irregular; in such a case alteration of the provision of law in the first FIR is the proper course to adopt. Let us consider a different situation in which H having killed W, his wife, informs the police that she is killed by an unknown persons that W is killed by his mother or sister, H owns up the responsibility and during investigation the truth is detected; it does not require filing of fresh FIR against H- the real offender-who can be arraigned in the report under Section 173(2) or 173(8) of Cr.P.C., as the case may be. It is of course permissible for the investigating officer to send up a report to the Magistrate concerned even earlier that investigation is being directed against the pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection with Crime No. I-155 of 2008 would not stand arrested in connection with Crime No. I-154 of 2008. The Supreme Court also clarified that if during fresh investigation any incriminating material against any person was discovered, the Investigating Agency may proceed in accordance with law, leaving it open to the accused to approach the appropriate forum for any interim relief as per law. 15. Reliance is also placed on the judgment of the Supreme Court in Anju Chaudhary vs. State of U.P. And anr. [JT 2012 (12) SC 582]. The Supreme Court in said judgment, by referring to Section 154 of the Cr. P. C. has held that where the incident was separate; offences are similar or different, or even where the subsequent crime was of such magnitude that it did not fall within the ambit and scope of the first FIR, a second FIR could be registered. The Supreme Court further held that the merits of each case would be required to be examined whether the subsequently registered FIR was a second FIR about the same incident or offence or is based upon distinct and different facts and whether its scope of inquiry is entirely different or not. The Supreme Court in the said judgment, at paragraph 23 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uggest that every information relating to commission of a cognizable offence shall be reduced into writing by the officerin- charge of a police station. This implies that there has to be the first information report about an incident which constitutes a cognizable offence. The purpose of registering an FIR is to set the machinery of criminal investigation into motion, which culminates with filing of the police report in terms of Section 173(2) of the Code. It will, thus, be appropriate to follow the settled principle that there cannot be two FIRs registered for the same offence. However, where the incident is separate; offences are similar or different, or even where the subsequent crime is of such magnitude that it does not fall within the ambit and scope of the FIR recorded first, then a second FIR could be registered........" At paragraph 15, the Supreme Court has held thus :- "15. It has to be examined on the merits of each case whether a subsequently registered FIR is a second FIR about the same incident or offence or is based upon distinct and different facts and whether its scope of inquiry is entirely different or not. It will not be appropriate for the court to lay do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g communicated to the police during investigation. In the present case, the FIRs indeed disclose the existence of a conspiracy and the representations being made to the consortium. According to the respondents, each individual works contract, therefore, amounted to individual action of cheating of the concerned member banks of the consortium. We had called for the case diaries of the offences which have been registered and we find that in some of the cases, the investigation is complete. At this stage, it would certainly be a premature exercise to determine if the cheating of all the member banks was pursuant to only one conspiracy and, therefore, there should be only one FIR or the cheating of the individual banks is an individual offence which can be investigated by the police. The larger conspiracy appears to be of cheating the banks by suppression of certain vital information, particularly regarding the execution of the master agreement. Pursuant thereto, the individual works contract were executed by the applicants and on the strength of the works contract entered into between the Aggregators and the applicants and after individual apprisement of the assessment note and the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... produced before us for our perusal. However, since the charge-sheet has not been filed, according to us, it would be wholly inappropriate to make any reference to the investigation which has been carried out and particularly to the material which has been collected during investigation. In our opinion, therefore, it is clear that all the banks have been cheated and have been induced to give financial assistance to the applicants. The question is whether there was a single conspiracy or smaller splinter conspiracies and whether individual representations were made to the banks individually. Even if it is assumed for the sake of argument, because at this stage we cannot refer to the material which has been collected during investigation, that there was a single conspiracy and no representations had been made to the member banks individually, yet on the basis of the false representation, the individual banks have been cheated and have thus been induced into giving the financial assistance as per the individual works contract. Thus, in our opinion, therefore, though there is a single conspiracy, yet the act of individually cheating the member banks without there being actually an indiv ..... X X X X Extracts X X X X X X X X Extracts X X X X
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