S.K. Agarwal, J.

1. This order will dispose of two petitions filed by the petitioners under Article 227 of the Constitution of India and Section 482 of the Code of Criminal Procedure, 1973 (for short, Cr.P.C.), praying for setting aside the order dated 30.9.2000, passed by the Special Judge, allowing application of the CBI for clubbing the case of A.E. Pinto with the main case and holding that the joint trial would be justified.

Briefly stated the allegations are : that the petitioners Tuncay Alankus, Chairman and Chief Executive Officer and Cihan Karanci, Vice-President of M/s. Karsan Ltd., in conspiracy with other accused persons defrauded National Fertilizers Limited, Delhi (for short, NFL), to the extent of US $ 38,000,000/- (then equivalent to Rs. 133.0 crores), in the matter of supply of 2,00,000 MT of urea to the NFL @ US $ 190 PMT (Cost, Insurance and Freight basis) against 100% cash pre-payment, which was to be guaranteed by the insurance policy also covering M/s. Karsans risk of non-performance and non-delivery. They obtained 1% of the contract value of US $ 380,000 on 2.11.1995, for paying premium towards the above insurance policy. The contract was signed on 9.11.1995 and they were required to obtain remaining amount of US $ 37.62 million only after the submission of the said insurance policy. However, the petitioners in pursuance of a criminal conspiracy dishonestly submitted only a cover note dated 6.11.1995 of NHK Marine, London and obtained US $ 37.62 million on 14.11.1995 and the same was credited to the account of M/s. Karsan, with Picketet Bank, Geneva, Switzerland on 30.11.1995. Thereafter the amount was misappropriated and shared amongst various conspirators and their associates. The said cover note dated 6.11.1995, covered only marine perils and it did not counter guarantee 100% cash pre-payment and also did not cover risks of M/s. Karsans non-performance and non-delivery. After the conspiracy was exposed, the case was registered. Petitioners did not join investigations. Tuncay Alankus and Cihan Karanci were arrested in Switzerland on 16.9.1996 and could be extradited to India on 3.10.1997 only after all their appeals opposing extradition were dismissed. After investigation charge-sheet was filed on 26.12.1997, against nine accused persons, including petitioners. Name of A.E. Pinto was shown at serial number nine, as till then he could not be extradited. The cognizance of the offence was taken by the Special Judge on 7.1.1998. It was specifically stated that A.E. Pinto was one of the conspirators; and he unauthorizedly signed the contract. There is material on record showing his involvement. He got his share of US $ 1.20 million out of the defrauded amount of US $ 38 million. He was arrested in London on 11.12.1997. Charges on the basis of charge-sheet were framed against the remaining accused persons. Some of the accused persons filed revision petitions, against the order of charge. The trial started and 30 witnesses were examined. A.E. Pinto could be extradited to India only on 24.8.2000, and after his arrest supplementary challan was also filed. On 31.8.2000, CBI filed an application praying that the case of A.E. Pinto, be clubbed with the main case, to avoid duplicacy in the recording of evidence. Accused persons namely, C.K. Ramakrishnan, D.S. Kanwar and P.C. Yadav, did not object to the clubbing of the cases. However, other accused persons including D. Malesham Goud, M. Sambha Siva Rao and B. Sanjiva Rao filed the reply opposing the prayer for clubbing. Learned Trial Court vide impugned order allowed the application of the CBI. This order is under challenge.

2. I have heard learned Counsel for parties and have been taken through the record.

3. Learned Counsel for petitioners argued that there is no provision in the Cr.P.C. for clubbing the case. There has to be separate trial for each offence. He argued that petitioners have not been extradited and charged for the offence punishable under the Prevention of Corruption Act, 1988. Thirty witnesses were already examined when trial of A.E. Pinto, was clubbed. The clubbing would prejudice them during the trial and their right for speedy trial is violated.

4. Mr. R.N. Trivedi, learned ASG, appearing on behalf of CBI, argued that charges against the accused persons (Tuncay Alankus and Cihan Karanci and six others), were framed. They filed revisions (Crl. R. No. 109/99) against the order framing charge. They had also challenged the jurisdiction of the Special Judge, to try the offences punishable under Sections 420/409/120-B, IPC together with the offences punishable under the Prevention of Corruption Act. This contention was rejected and it was held :

In a last ditch attempt and indeed what appears to me an argument of desperation, learned Senior Counsel appearing for the accused Tuncay Alankus and Cihan Karanci contended that the learned Special Judge has no jurisdiction to try the offences punishable under Sections 420/409/120-B, IPC. In this context a reference to Sub-section (3) of Section 4 of the Prevention of Corruption Act has become indispensable. Sub-section (3) of Section 4 empowers a Special Judge to try any offence, other than an offence specified in Section 3 with which the accused may, under the Code of Criminal Procedure, be charged at the same trial. Under Section 220 of the Code of Criminal Procedure if in one series of acts so connected together as to form the same transaction, more offences than one are committed by some person, he may be charged with and tried at one trial for every such offence and under Section 223, Cr.P.C. persons accused of the same offence committed in the course of the same transaction, as well as persons accused of an offence and persons accused of abetment, or of an attempt to commit such an offence may be charged and tried together. Thus, in the facts and circumstances of the case the learned Special Judge has jurisdiction to try the offences punishable under Sections 420/409/120-B, IPC together with the offences punishable under the Prevention of Corruption Act.

The petitioners special leave to appeal against the above order was dismissed by the Supreme Court on 30th October, 2000. The trial thus began. Petitioners application for grant of bail Crl.M.(M) No. 1458/99 was also dismissed on the same day. Therefore, now petitioners cannot be heard to say that their trial alongwith the persons who have also been charged under the Prevention of Corruption Act, is not sustainable. This contention is rejected.

5. Learned Counsel for petitioners next argued that petitioners right to expeditious trial is being violated, as after clubbing of the trial; only four witnesses have been examined out of 150 witnesses cited by the prosecution. Learned ASG argued to the contrary and submitted that the persons accused of having committed different offences in the course of same transaction can be tried together. In order to appreciate rival contention it would be useful to refer to Section 223, Cr.P.C., which reads :

223. What persons may be charged jointly.The following person may be charged and tried together, namely :

(a) persons accused of the same offence committed in the course of the same transaction;

(b) persons accused of an offence and persons accused of abetment of, or attempt to commit such offence;

(c) persons accused of more than one offence of the same kind, within the meaning of Section 219 committed by them jointly within the period of twelve months;

(d) persons accused of different offences committed in the course of the same transaction;

(e) persons accused of an offence which includes theft, extortion, cheating, or criminal misappropriation, and persons accused of receiving or retaining, or assisting in the disposal of concealment of, property possession of which is alleged to have been transferred by any such offence committed by the first-named persons, or of abetment of or attempting to commit any such last-named defence;

(f) persons accused of offences under Sections 411 and 414 of the Indian Penal Code (45 of 1860) or either of those sections in respect of stolen property the possession of which has been transferred by one offence;

(g) persons accused of any offence under Chapter XII of the Indian Penal Code (45 of 1860) relating to counterfeit coin, and persons accused of any other offence under the said chapter relating to the same coin, or of abetment of or attempting to commit any such offence; and the provisions contained in the former part of this chapter shall, so far as may be, apply to all such charges :

Provided that where a number of persons are charged with separate offence and such persons do not fall within any of the categories specified in this section, the Magistrate may, if such persons by an application in writing, so desire, and if he is satisfied that such persons would not be prejudicially affected thereby, and it is expedient so to do, try all such persons together.

6. Law in regard to joint trials is settled by several authoritative pronouncements. The Supreme Court in Kadiri Kunhamammad v. State of Madras, AIR 1960 SC 661 [LQ/SC/1959/11] (V 47 C 106), after referring to several decisions held as under :

It is true that, in framing the charge against more persons than one and directing their joint Trial Courts should carefully examine the nature of the accusation; but if they are satisfied that prima facie the accusation made shows that several persons are charged of different offences and that the said offences prima facie appear to have been committed in the course of the same transaction, their joint trial can and should be ordered. This question was fully considered by the Privy Council in the case of Babulal Choukhani v. Emperor, 65 Ind. App. 158 : AIR 1938 PC 130 [LQ/PC/1938/13] ; and it has been held that the point of time in the proceedings at which it is to be determined whether the condition that the offences alleged had been committed in the course of the same transaction has been fulfilled or not is at the time when the accusation is made and not when the trial is concluded and the result known. Therefore, we cannot accept Mr. Purshottams argument that the framing of the charge of conspiracy was not justified and that the trial of the appellant jointly alongwith the other persons was either improper or illegal. (Emphasis supplied)

7. The joint trial is permitted to avoid the necessity of same set of witnesses giving same statement number of times in different trials, to avoid overlapping of evidence and also for better appreciation of evidence. It is more true in cases where in pursuance of one conspiracy several offences are committed by different persons. The Apex Court in State of Bombay v. Umarsaheb Buransaheb Inamdar and Ors., AIR 1962 SC 1153 [LQ/SC/1962/22] (V 49 C 161), held as under :

Where there is a conspiracy having a definite object in view, and several offences are committed in pursuance of such conspiracy, the several offences will generally form parts of the same transaction. This principle will also apply where the several offences were committed by different persons. (Emphasis supplied)

8. In this case trial of A.E. Pinto was separated because he was yet to be extradited. As noticed above, in the charge-sheet dated 26.12.1997, A.E. Pinto was named as one of the accused persons at serial No. 9. It was stated in the charge-sheet that A.E. Pinto has been detained in London with a view to extradite him to India for facing trial in the case. He could be extradited to India only on 24.8.2000. As per the allegation, in pursuance of the conspiracy he executed the agreement in the back date and also got the share of US $ 1.20 million, out of defrauded amount. In my considered view, looking into the nature of accusation, prima facie the offences appear to have been committed in the course of the same transaction. The conspiracy is one and the evidence of the conspiracy would have to be examined once and not time and again. Therefore, a joint trial can and should be held.

9. It may be mentioned here that for holding the day-to-day trial, necessary directions have been passed on the bail petition (Crl.M.(M) No. 45/2001), of the petitioners. No further orders are needed in this regard.

10. For the foregoing reasons, I find no merit in the above petitions and the same are dismissed.