Delhi District Court
Shyam Singh vs The State (N.C.T. Of Delhi) on 26 August, 2016
IN THE COURT OF SH. REETESH SINGH, ASJ-02/FTC
NEW DELHI DISTRICT PATIALA HOUSE COURTS, DELHI
Crl. Appeal No. 9 of 2016
I.D. No 02403R010061452016
Shyam Singh
S/o Sh. Nemi Chand
R/o H.No. 8/289,
East Gokal Pur,
New Delhi. ......Appellant
Versus
The State (N.C.T. of Delhi) ......... Respondent
Date of institution of the case : 28.06.2016
Date when the case reserved for judgment : 11.08.2016
Date of announcement of judgment : 26.08.2016
JUDGMENT
1. This appeal has been filed against the impugned orders dated 09.05.2016 and 30.05.2016 by which the appellant was convicted for the offences punishable under Sections 420 and 120 B of the Indian Penal Code (IPC). The appellant was sentenced to a term of imprisonment already undergone by him. In addition, fine of Rs. 50,000/- was imposed on the appellant for the offence under section 420 of the IPC and Rs. 10,000/- for the offence under section 120 B of the IPC. It was directed that in default of payment of fine the appellant would undergo further rigorous imprisonment for a period of three months and one month for the offence under section 420 and 120B IPC respectively.
2. Before this Court Sh. D.K. Sharma, Ld. counsel for the Shyam Singh vs. State Criminal Appeal No. 9 of 2016 1/14 appellant had argued that the Ld. Trial Court failed to appreciate that the majority of the material witnesses qua the appellant had not supported the version of the prosecution and had been declared hostile. The other witnesses, two in number, who had supported the prosecution version were closely related to each other and there were numerous contradictions in their versions which had cropped up in their cross examination. They therefore could not be relied upon. Sh. D. K. Sharma took this Court through the testimonies of PW 9, PW 10, PW 16, PW 18 and PW 23, who had been declared hostile by the prosecution as well as the statements of PW 8 and PW 20 who had supported the version of the prosecution but according to him were not reliable. Sh. D.K. Sharma submitted that the points of contradictions in the versions of PW 8 and PW 20 were enumerated in ground 'M' of the memo of appeal on which he relied upon. He further submitted that the ingredients of section 420 of the IPC were not made out in this case as no promise was made by the appellant nor was any inducement given by the appellant on the basis of which the complainant could be said to have been cheated.
3. Ld. Counsel for the appellant further submitted that the appellant had been in custody for 49 days. No further term of imprisonment was imposed upon him. However, the Ld. Trial Court while imposing sentence of fine had directed the appellant to undergo rigorous imprisonment for a period of three months and one month in default of payment of fine for the offences under sections 420 and 120 B IPC. He submitted that firstly rigorous imprisonment cannot be awarded in default of payment of fine as the nature of imprisonment in this regard has to be simple. It was further submitted that the term of further imprisonment in default of payment of fine was beyond the period of one Shyam Singh vs. State Criminal Appeal No. 9 of 2016 2/14 fourth of the term of imprisonment of 49 days already unergone by the appellant. In this regard he relied on the provisions of section 65 of the IPC.
4. On the other hand, the ld. Addl. PP for the State has argued that the impugned order did not call for any interference. He submitted that the appellant was part of a well organized racket which defrauded a large number of innocent persons by promising them employment on the basis of forged and fabricated lists and interview call letters of the employment exchange.
5. I have heard the counsel for the parties and have perused the record of the Trial Court. My findings are as under.
6. The records of the Trial Court reveals that FIR No. 288/99 PS Delhi Cantt. was registered on the complaint dated 12.01.1999 of the office of Sub-Regional Employment Exchange, Curzon Road, Kirbi Place, Govt. of NCT of Delhi through the Sub-Regional Employment Officer. It was alleged in the complaint that the said office had received a request for filling up six vacancies in Corporation Bank, Karol Bagh, New Delhi. Acting on the said request the office of the Employment Officer forwarded lists of suitable candidates to the said bank through three communications dated 13.11.1998, 24.11.1998 and 27.11.1998. However, the said bank vide its letter dated 30.11.1998 informed the Employment Officer that they had already conducted interviews of candidates on the basis of a list of 123 candidates which had been sent by the Office of the Employment Officer vide its covering letter dated 21.10.1998. An inquiry was conducted in the office of the Employment Officer and it was found that the alleged letter dated 21.10.1998 and list Shyam Singh vs. State Criminal Appeal No. 9 of 2016 3/14 of 123 candidates had been forged and fabricated as the same had never been sent by the Employment Officer. It was alleged that the signatures on the list were not of the officials of the Employment Exchange and the rubber stamps used were also fake.
7. Upon registration of the FIR investigation was conducted. The persons whose names had been included in the fake list were examined and it came to light that the present appellant Shyam Singh along with his associates Arun Kumar Sinha, Gauri Shankar Sharma, Madan Singh Rana, Yashwant Singh and Uma Shankar Singh had collected money from several of these candidates on the promise of securing them employment. They cheated these persons by preparing a fabricated list of candidates which they sent with a forged covering letter of the Employment Exchange to the Corporation Bank. On the basis of the same Corporation Bank had called the said candidates for interview which were conducted. All the said accused persons were arrested and they disclosed their involvement in the offence. Specimen handwriting of the accused persons were collected during the course of investigation and sent to the Forensic Sciences Laboratory (FSL) for comparison with the handwriting on the forged documents. As per the report of the FSL, the same matched with that of co-accused Yashwant Singh.
8. Upon completion of investigation, charge sheet arising out of the FIR was filed. By order dated 28.03.2007 charges were framed against the accused persons including the appellant for the offences under section 420, 468, 471 read with 120B. During the course of the trial the prosecution examined 30 witnesses in all. PW8, PW 9, PW 10, PW 16, PW 18, PW 20 and PW 23 pertain to the appellant.
Shyam Singh vs. State Criminal Appeal No. 9 of 2016 4/14
9. Ld. Counsel for the appellant had argued that except for PW 8 and PW 20, the other material witnesses had not supported the version of the prosecution. I have gone through the testimonies of these witnesses. I shall first deal with the testimonies of PW 9, PW 10, PW 16, PW 18, and PW 23.
10. PW 9 stated in his examination in chief that he knew nothing about this case and he thus completely resiled from the statement given to the police. In cross examination by Ld. APP for the State, he stated that he knew Shyam Singh as he was his neighbour who was working in a hospital. He admitted that he had gone for an interview to Corporation Bank.
11. PW 10 in his examination in chief stated that Shyam Singh was his first cousin and that he had gone to Corporation Bank for an interview. He stated that he was already registered with the Employment Exchange, but no talk took place between him and Shyam Singh regarding the said employment. In cross examination by the Ld. APP for the State, he admitted that the address given on his interview letter was incorrect and that he had gone for interview to Corporation Bank.
12. PW 16 in his examination in chief has stated that he had gone to Curzon Road for registering his name in the Employment Exchange where he met 6-7 persons including one person by the name of Shyam Singh, but he could not identify the said person in the Court. He stated that it was Shyam Singh who had given assurance to him to get his name registered in the Employment Exchange and for issuance of a call letter against payment of Rs. 1,000/-. He had received a call letter from the Corporation Bank. He had paid Rs. 1,000/- to some Shyam Singh vs. State Criminal Appeal No. 9 of 2016 5/14 person but that person was not amongst the accused persons present in the Court. Even after being specifically pointed out he could not identify Shyam Singh in the Court.
13. PW 18 in his examination in chief has not stated anything. In cross examination on by the Ld. APP for the State he only stated that he came to know later on that a bogus list of candidates for interview had been sent by Shyam Singh to the bank.
14. PW 23 in his examination in chief had stated that he did not know Shyam Singh. In cross examination by the State he only stated that he came to know about a forged list of candidates having been made for interview.
15. Even though PW 9, PW 10, PW 16, PW 18, and PW 23 may not have supported the version of the prosecution, PW 16 has stated that he had met a person by the name of Shyam Singh in the Employment Exchange.
16. Now coming to the statements of PW8 and PW20, PW 8 has stated that Sh. Shyam Singh is a relative of his neighbour who was working in Safdarjang Hospital. Shyam Singh was a regular visitor in their colony and offered employment to PW 8 against payment of consideration. He stated that payments were made to Shyam Singh who arranged for an interview later on. In cross examination by the accused, he stated that payment was made to Shyam Singh in the presence of one Nanak Chand Sharma. He had arranged the money by mortgaging gold pertaining to himself and his relative. The money was not distributed amongst the partners of Shyam Singh in his presence.
Shyam Singh vs. State Criminal Appeal No. 9 of 2016 6/14
17. PW 20 who is the brother in law of PW 8 has stated that PW 8 had disclosed to him that Shyam Singh could arrange employment for them against consideration. He then met Shyam Singh with PW 8 at Safderjang Hospital where Shyam Singh asked for consideration. He had stated that Arun Kumar and Uma Shankar, other co-accused persons were also present. He had paid Rs. 40,000/- to them. He did not receive any call letter mentioning that the interview of the list of candidates had been cancelled. In cross examination he had stated that he admitted that name of Uma Shankar was not mentioned in his statement given to the police and that the money was given only to Shyam Singh in the house of the father in law of PW 20.
18. In ground (M) of the memo of appeal, it has been submitted by the appellant that the following contradictions existed in the statement of PW8 and PW20:-
"i. PW-8 says that the money for himself and for Brahm Prakash (PW-20) was paid to the appellant at Sufdarjang hospital in presence of one Nanak Chand Sharma and Uma Shankar whereas PW-20 states that the money was paid to the present appellant at his in-laws house by his father-in- law.
It is worth mentioning that the said father-in-law was never examined as witness in Court.
ii. PW-8 states that he paid Rs.20,000/- at one time and Rs.5000/- each for himself and for PW-20 to the appellant herein whereas PW-20 states that he paid Rs.5,000/- once to the present accused and Rs. 40,000/- to accused Arun Kumar and Uma Shankar.
iii. PW-8 states that the appellant came to his house in August 1998 and told that Rs.40,000/- had to be spent fro one person. Whereas PW-20 states that he and PW-8 met with present accused in Sufdargung Hospital.
Shyam Singh vs. State Criminal Appeal No. 9 of 2016 7/14 iv. PW-20 states that "one day in the year 1999 Prem Pal who is my brother-in-law came to me and told that he knows one Shyam Singh who was working in Sufdarjung Hospital and arrange a call for employment....". However the alleged call letter of said witness as he has been filed by the prosecution bears the date of his interview as 26/11/1996. Thus the testimony of this witness is completely demolished and untrustworthy. "
19. It had also been argued that both PW 8 and PW 20 were related to each other and coupled with the contradictions in their versions, they could not be relied upon. Before proceeding further, it may be worthwhile to refer to certain observations of the Hon'ble Supreme Court relating to the manner in which the testimonies of the witnesses are ought to be appreciated. In the case of Mritunjoy Biswas v. Pranab reported in (2013) 12 SCC 796 the Hon'ble Supreme Court was pleased to observe as under:-:
"28. As is evincible, the High Court has also taken note of certain omissions and discrepancies treating them to be material omissions and irreconcilable discrepancies. It is worthy to note that the High Court has referred to the some discrepancies which we find are absolutely in the realm of minor discrepancies. It is well settled in law that the minor discrepancies are not to be given undue emphasis and the evidence is to be considered from the point of view of trustworthiness. The test is whether the same inspires confidence in the mind of the court. If the evidence is incredible and cannot be accepted by the test of prudence, then it may create a dent in the prosecution version. If an omission or discrepancy goes to the root of the matter and ushers in incongruities, the defence can take advantage of such inconsistencies. It needs no special emphasis to state that every omission cannot take place of a material omission and, therefore, minor contradictions, inconsistencies or insignificant embellishments do not affect the core of the prosecution case and should not be taken to be a ground to reject the prosecution evidence. The omission should create a serious doubt about the truthfulness or creditworthiness of a witness. It is only the serious contradictions and omissions which materially affect the case of Shyam Singh vs. State Criminal Appeal No. 9 of 2016 8/14 the prosecution but not every contradiction or omission (see Leela Ram v. State of Haryana, Rammi v. State of M.P. and Shyamal Ghosh v. State of W.B.)."
20. Further in the case of State of A.P. v. Kanda Gopaludu reported in (2005) 13 SCC 116 it was observed as under:-
"8. We have been taken through the evidence of PWs 1, 2 and 3 before whom extra-judicial confession has been made by the accused. The testimony of PWs 1, 2 and 3 is consistent. The learned counsel for the respondent pointed out that in the evidence of PWs 1 and 2 there is contradiction that the accused did not state before them that he came seeking protection from them. In our view, this discrepancy cannot be termed as a contradiction which would be fatal to the prosecution case. Every discrepancy in the statement of a witness cannot be treated as fatal to the prosecution case. A discrepancy which is not fatal to the prosecution does not create any infirmity. The incident had taken place on 24-1-1992 and PW 2 was examined on 22-1- 1996 after almost four years. Human memories are apt to blur with the passage of time. After lapse of almost four years, it cannot be expected that a witness can depose with mathematical precision."
21 It has been held in the above cases that after lapse of considerable time a witness cannot be expected to depose with mathematical precision. The said observation was made in a case where the gap between the date of the incident and the date on which statement of the witness was recorded was four years. In the present case, the incident is of the year 1998. PW 8 was examined in 2010 while PW 20 was examined in the year 2012 after a lapse of 12 and 14 years respectively from the date of incident. PW8 and PW20 cannot be expected to recollect each detail of the facts which were within their knowledge.
22. Further it has also been observed by the Hon'ble Supreme Court that the Court has to see whether the witness has stated the Shyam Singh vs. State Criminal Appeal No. 9 of 2016 9/14 material facts and is consistent. Contradictions on minor aspects which do not affect the case should be undue emphasis. In the present matter, it is to be seen that PW 8 and PW 20 are consistent with their statements that Shyam Singh had approached them with the promise of securing employment against payment and that they had paid consideration to him. On the basis of the said consideration, the names of PW8 and PW20 were included in the forged list and they had been called for interviews. Both PW8 and PW20 identified Shyam Singh in Court. The contradictions referred to in ground (M) of the memo of appeal are not material as they pertain to the place where they met the accused and where the money was paid, the installments in which they were paid and the dates of meeting and payment. These contradictions are bound to appear when a witness is examined 12 or 14 years after the incident. They are however consistent with the fact that Shyam Singh had promised them employment against consideration. Therefore the statements of PW8 and PW20 cannot be disregarded. They have been rightly relied upon by the Ld. Trial Court.
23. The statements of PW8 and PW20 are to be considered in the background of the facts that the list of candidates was proved to be forged and the same had the names of not only PW8 and PW20 but also of PW 9, PW 10, PW 16, PW 18, and PW 23. PW 9 is not unknown to Shyam Singh. PW 16 has stated that he had met a person named Shyam Singh in the office of the Employment Exchange but he could not identify Shyam Singh. Again it is to be kept in mind that PW 16 was examined in the year 2011 i.e. 13 years after the incident. It is understandable that due to passage of time his memory could have faded due to which he could not identify the appellant in the Court.
Shyam Singh vs. State Criminal Appeal No. 9 of 2016 10/14
24. It had been submitted that the ingredients of Section 420 of the IPC were not made out. It is to be seen that the names of PW8, PW 9, PW 10, PW 16, PW 18, PW 20, PW 23 and other witnesses are in the fake list of candidates forwarded to the Corporation Bank with a forged letter of the Employment Exchange. PW 8, PW 9 and PW 20 have deposed that their names were included in the said list upon payment of consideration. Section 415 defines cheating to be an act of deceiving any person in a fraudulent manner by which the person deceived delivers any property to any person. In the present case the allegations that have been proved are that employment was offered in Corporation Bank to the victims against demand of money. After taking money, the victims were issued interview call letters from Corporation Bank which acted on a fake list of candidates of the Employment Exchange. The allegations stand proved. Ingredients of cheating as defined under section 415 of the IPC and punishable under section 420 are clearly made out.
25. It had been submitted that the direction to undergo rigorous imprisonment in default of payment of fine was for a period beyond that permissible under section 65 of the IPC. It had been submitted that the appellant had already undergone imprisonment of 49 days and no further term of imprisonment was imposed upon him.
26. Section 65 of the IPC lays down that the term of imprisonment in default of payment of fine was not exceed one fourth of the term of imprisonment which is the maximum fixed for the offence. Thus this period cannot be reckoned with respect to 49 days of imprisonment already undergone, but has to be reckoned with the maximum sentence which can be imposed for a particular offence. In Shyam Singh vs. State Criminal Appeal No. 9 of 2016 11/14 the present case the maximum punishment which can be imposed for the offence under section 420 IPC is seven years. Hence, the period of imprisonment of three months against the default of payment of fine is well within the limit of one fourth of the said period. As regards period of imprisonment to be undergone in default of payment of fine for the offence under section 120 B of the IPC, it had been submitted that the said offence under section 120 B IPC do not attract any sentence of imprisonment. Section 120-B (1) of the IPC provides that where any person is a party to a criminal conspiracy to commit an offence punishable with death, imprisonment for life, or rigorous imprisonment for a term of two years or upwards shall, there is no express provision made in the Code for punishment for such a conspiracy be punished in the same manner as if he had had abetted such offence. As per Section 109 of the IPC, the punishment for abetment is the same as provided for the abetted offence. The conspiracy for which the appellant stands convicted is cheating under Section 420 of the IPC which attracts a maximum punishment of imprisonment of either description for a term which may extend to seven years and is also liable to fine. In this manner, the maximum sentence which can be imposed upon the appellant for the offence under Section 120B of the IPC will be guided by Section 420 IPC. Thus the sentence of imprisonment of one month in default of payment of fine is within the limit as prescribed under Section 65 of the IPC.
27. The last submission which was made was that in default of payment of fine, imprisonment which can be imposed is simple and not rigorous. Section 65 of the IPC does not prescribe rigorous imprisonment. Hence to this extent the appeal of the appellant can be allowed. The sentence of imprisonment in default of payment of fine will Shyam Singh vs. State Criminal Appeal No. 9 of 2016 12/14 be simple imprisonment and not rigorous imprisonment as directed in the order of sentence dated 30.05.2016. The order on sentence dated 30.05.2016 stands modified to that extent.
28. For the reasons recorded above, the appeal of the appellant is dismissed except to the extent as recorded above.
29. TCR along with copy of this judgment be sent back to the Ld. Trial Court. Appeal file be consigned to the record room.
Announced in the open Court (REETESH SINGH)
on 26th August, 2016 ASJ-02/FTC, PHC/NDD
26.08.2016
Shyam Singh vs. State
Criminal Appeal No. 9 of 2016 13/14
Shyam Singh vs. State
CA No. 9 of 2016
26.08.2016
Present: None for the appellant.
Vide separate judgment, the appeal of the appellant is dismissed except to the extent as detailed in para no. 27 of the judgment.
The Ld. Trial Court by the impugned orders dated 09.05.2016 and 30.05.2016 by which the appellant was convicted for the offence punishable under Section 420 and 120 B of the IPC and sentenced to a term of imprisonment already undergone by him. Fine of Rs. 50,000/- was imposed for the offence under section 420 of the IPC and Rs. 10,000/- for the offence under section 120 B of the IPC. It is was directed that in default of payment of fine the appellant would undergo imprisonment for three months and one month respectively.
The Trial Court record does not indicate whether the appellant has deposited the fine imposed upon him or not. The Ld. Trial Court is therefore called upon to ensure compliance of its judgment and sentence.
TCR be sent back along with copy of the judgment and this order. Appeal file be consigned to the record room.
(Reetesh Singh) ASJ-02/FTC, New Delhi District, Patiala House Courts, New Delhi 26.08.2016 Shyam Singh vs. State Criminal Appeal No. 9 of 2016 14/14