Delhi District Court
State vs Md Rehan on 16 September, 2023
IN THE COURT OF SH. ABHISHEK KUMAR,
ACMM-01, PATIALA HOUSE COURTS, NEW DELHI
FIR No. 423/2015
PS : IGI Airport
U/s : 420/468/471 IPC
State Vs. Md. Rehan & Anr.
JUDGMENT
1. S. No. of the Case : 16874/2018
2. Date of commission of offence : 24.09.2015
3. Name of the complainant : Sudhir Kumar
Constable, No.363/F
PIS No.28092385
Shift-D, CO departure
IGI Airport, T-3,
New Delhi.
4. Name, parentage & address : (1) Md. Rehan
S/o Abdul Lateef
(already convicted on
11.09.2021)
R/o Mohalla-Patti
Chauhan,
P.O.& Tehsil-Jaspur,
Distt. Udham Singh
Nagar (Uttrakhand)
(2) Khalil Ahmed
S/o Abdul Shakur
VPO-Raipur,
Tehsil-Jaspur,
Distt. Udham Singh
Nagar (Uttrakhand)
5. Offences charged of : U/s. 468 IPC r/w Section
120B IPC ABHISHEK
KUMAR
Digitally signed by
ABHISHEK KUMAR
Date: 2023.09.16
17:01:12 +0530
State Vs. Md. Rehan & Anr. Page No.1 of 13
FIR No.423/2015, PS IGI Airport
6. Plea of Accused : Pleaded not guilty
7. Order reserved on : 16.09.2023
8. The final order : Acquitted
9. The date of judgment : 16.09.2023
1. Succinctly, the case of the prosecution is that on 24.09.2015, accused Mohd. Rehan (already convicted through plea bargaining proceedings) had arrived as a deportee, while holding passport bearing no. M0190545 and during clearance at the arrival wing, it was found that the said accused had departed from IGI airport from Delhi to Dubai via Oman on 22.09.2015 on single short E-Tourist Visa no. 87286029/2015/208 by flight no. WY246 and on reaching Oman, he was refused entry by Oman immigration with report of "Forged Visa- as per immigration record visa has been already utilized." Thereafter, a formal complaint was made by immigration official and present FIR was registered.
2. During investigation, the convict Mohd. Rehan disclosed that one person Khalil Ahmed in his neighborhood promised to send him to Oman for work and took an amount of Rs.17,000/-. Thereafter visa and tickets were given to him. Accordingly, IO arrested accused Khalil Ahmed, who further disclosed that he got the fake visa arranged through an agent Aslam in Delhi (not traced). Then, chargesheet was prepared and filed in the court under section 420/468/471 IPC. ABHISHEK Digitally signed by ABHISHEK KUMAR KUMAR Date: 2023.09.16 17:01:33 +0530 State Vs. Md. Rehan & Anr. Page No.2 of 13 FIR No.423/2015, PS IGI Airport
3. After the filing of the chargesheet, the cognizance of the offence was taken for the offences and summons were issued to both the accused persons. Thereafter, accused persons appeared before the court and chargesheet was supplied to them. Then, charges were framed against the accused persons. The present accused Khalil Ahmed was charged for the offences under section 468 IPC read with section 120B IPC.
4. During the prosecution evidence, a total number of 5 witnesses. The testimony of the witnesses for reference in short is given as under:
PW 1: HC Sudhir Kumar deposed that on 24.09.2015, he was working as Counter officer in arrival wing, then One passenger namely Mohd. Rehan holding PP No. M0190545 arrived as a deportee and was handed over to him for clearance in arrival wing. He further stated that the pax departed from IGI Airport from Delhi to Dubai via Oman on 22.09.2015 on single Short E- Tourist Paper visa no 87286029/2015/208 by flight no. WY246 and on reaching at Oman, the passenger was refused entry by Oman Immigration giving report of "forged visa - as per immigration record visa has already been utilized. Thereafter, on instruction of senior officer, he made a complaint and went to PS IGI Airport along with pax for registration of the case and handed over complaint along with recovered document to duty officer. The witness identified his signatures on the complaint. (ExPW1/A. He also stated that the duty officer had prepared the seizure memo of Passport of Pax, copy of forged UAE visa, airline deportation paper, pride printout of the pax and departure confirmation report vide seizure memo PW1/B. PW 2: ASI Raj Kumar has deposed that on 24.09.2015, he was posted as Constable at PS IGI Airport, New Delhi Digitally signed ABHISHEK by ABHISHEK KUMAR KUMAR Date: 2023.09.16 State Vs. Md. Rehan & Anr. 17:01:45 +0530 Page No.3 of 13 FIR No.423/2015, PS IGI Airport and on that day, SI Arun arrested pax/passenger Mohd. Rehan after his interrogation vide arrest memo ExPW2/A. further, the IO also prepared personal search memo of accused Mohd. Rehan and recorded his disclosure statement vide memos ExPW2/B and ExPW2/C. The witness duly identified his signatures on the memos.
PW 3: HC Mukesh has deposed that on 27.09.2015, he was posted as Constable at PS IGI Airport and On that day, he joined investigation in the present case with IO/SI Arun. In the course of investigation, IO arrested accused Khalil Ahmed in the PS and prepared his arrest memo, personal search memo and recorded his disclosure statement vide memo Ex.PW3/A, Ex.PW3/B & Ex.PW3/C respectively.
PW 4: SI Arun has deposed that on 24.09.2015, he was posted as SI at PS IGI Airport and on that day, the Duty Officer HC Jagmal handed over to him copy of FIR, complaint, seizure memo annexed with all documents and pax namely Mohd. Rehan for investigation of the case. Thereafter, he interrogated pax Mohd. Rehan and arrested. He also prepared his arrest memo, personal search memo and recorded his disclosure statement vide memo already Ex.PW2/A, Ex.PW2/B & Ex.PW2/C. In the disclosure statement, accused Mohd. Rehan disclosed the name of agent namely Khalil Ahmed. Further, during PC remand of the accused, he went to home of the accused located at Udham Singh Nagar (Uttrakhand) and identified his address. Further, during PC remand accused handed over to him one stamp paper no M315300 of Uttrakhand and one photocopy of Election Voter Card of agent Khalil Ahmed no UP/04/016/003175. The same is Mark A1 and Mark A2 respectively. He also stated that on the stamp paper, it was written that the agent namely Khalil Ahmed had taken responsibility to send pax to Dubai for work. Thereafter, accused Khalil Ahmed was arrested by him and he prepared his arrest memo, personal search memo and recorded his disclosure statement vide memo already Digitally signed by ABHISHEK ABHISHEK KUMAR KUMAR Date: 2023.09.16 17:01:55 +0530 State Vs. Md. Rehan & Anr. Page No.4 of 13 FIR No.423/2015, PS IGI Airport Ex.PW3/A, Ex PW3/B & Ex.PW3/C. Then, after the conclusion of investigation, he had prepared the charge- sheet and filed the same before the Court.
PW 5: ASI Jagmal has deposed that on 24.09.2015, he was posted as Head Constable at PS IGI airport and on that day, he was working as Duty Officer from 08:00 a.m. to 08:00 p.m. At around 06:20 p.m., Ct. Sudhir Kumar along with complaint and document annexed with it and one pax namely Mohd. Rehan, came to PS and handed over to him, a complaint and document annexed with it along with the pax Mohd. Rehan. Thereafter, he had prepared seizure memo of the documents annexed with the complaint vide memo already Ex.PW1/B. Then, he made endorsement ExPW5/A on the rukka and got the FIR registered. He identified his signatures on the Copy of FIR which is Ex.PW5/B and on the Certificate U/s.65B of Evidence Act which is Ex.PW5/C.
5. After the prosecution evidence, the statement of the accused was recorded. The accused did not lead any defence evidence despite opportunity. Accordingly, the final arguments were heard on behalf of the state as well as on behalf of the accused and the matter was reserved for orders. Before proceeding further to give findings, it will be pertinent to discuss the relevant provisions of law involved in the present case and also analyze the facts in the light of evidence led by the prosecution.
6. For easy reference and understanding, the provisions of law involved in the present case have been divided into 3 categories i.e criminal conspiracy, cheating and forgery. Let us discuss these categories one by one hereinafter. ABHISHEK Digitally signed by ABHISHEK KUMAR KUMAR Date: 2023.09.16 17:02:22 +0530 State Vs. Md. Rehan & Anr. Page No.5 of 13 FIR No.423/2015, PS IGI Airport CRIMINAL CONSPIRACY
7. The criminal conspiracy is a punishable offence under section 120 B IPC, which is defined under section 120A IPC. In case titled as Rajendra alias Rajesh alias Raju v. State of NCT of Delhi (2019) 10 SCC 623, the hon'ble Apex Court has observed that it is trite law that the existence of three elements must be shown--a criminal object, a plan or a scheme embodying means to accomplish that object, and an agreement or understanding between two or more people to cooperate for the accomplishment of such object's.
8. Further in the case of Yogesh v. State of Maharashtra [(2008) 10 SCC 394], the Hon'ble Supreme Court of India in reference to criminal conspiracy has observed as follows:
"...25. Thus, it is manifest that the meeting of minds of two or more persons for doing an illegal act or an act by illegal means is sine qua non of the criminal conspiracy but it may not be possible to prove the agreement between them by direct proof. Nevertheless, existence of the conspiracy and its objective can be inferred from the surrounding circumstances and the conduct of the accused. But the incriminating circumstances must form a chain of events from which a conclusion about the guilt of the accused could be drawn. It is well settled that an offence of conspiracy is a substantive offence and renders the mere agreement to commit an offence punishable, even if an offence does not take place pursuant to the illegal agreement...".
9. To summarize, criminal conspiracy is an independent offence, which is punishable separately and can be proved either by direct proof or circumstantial evidence, only if essential Digitally signed ingredients as mentioned under section 120A IPC. ABHISHEK KUMAR by ABHISHEK KUMAR Date: 2023.09.16 17:02:32 +0530 State Vs. Md. Rehan & Anr. Page No.6 of 13 FIR No.423/2015, PS IGI Airport CHEATING
10. The offence of cheating is covered under chapter 17 of the IPC under the heading 'of offences against property' and is covered from section 415 to 420 IPC. Section 415 IPC defines the term cheating whereas section 416 i.e 'cheating by personation' and section 420 i.e 'cheating and dishonestly inducing delivery of property' are an aggravated form of cheating, which provides for enhanced punishment.
11. In the offence of cheating, a person deceives another person fraudulently or dishonestly to deliver any property or consent to the retention of any property or intentionally induces another person to do or omit to do anything which he would not have done if he was not so deceived and such act has caused or is likely to cause damage, or harm in body, mind, reputation or property.
12. In the case of Iridium India Tel oftenecom Ltd. v. Motorola Inc., (2011) 1 SCC 74 , the Hon'ble Supreme Court of India while refering to Section 415 IPC has observed as follows:
"...68. A bare perusal of the aforesaid section would show that it can be conveniently divided into two parts. The first part makes it necessary that the deception by the accused of the person deceived, must be fraudulent or dishonest. Such deception must induce the person deceived to either: (a) deliver property to any person; or (b) consent that any person shall retain any property. The second part also requires that the accused must by deception intentionally induce the person deceived either to do or omit to do anything which he would not do or omit, if he was not so deceived. Furthermore, such act or omission must cause or must be likely to cause damage or harm to that person in body, mind, reputation or Digitally signed ABHISHEK by ABHISHEK KUMAR KUMAR Date: 2023.09.16 State Vs. Md. Rehan & Anr. 17:02:43 +0530 Page No.7 of 13 FIR No.423/2015, PS IGI Airport property. Thus, it is evident that deception is a necessary ingredient for the offences of cheating under both parts of this section..."
13. Section 420 IPC is also an aggravated form of cheating, which provides for enhanced punishment. With reference to Section 420 IPC, Hon'ble Apex Court in Ram Narayan Popli v. CBI, (2003) 3 SCC 641 observed as follows:
"...366. Section 420 deals with cheating and dishonestly inducing delivery of property. The offence of cheating is made of two ingredients: deception of any person and fraudulently or dishonestly inducing that person to deliver any property to any person or to consent that any person shall retain any property. To put it differently, the ingredients of the offence are that the person deceived delivers to someone a valuable security or property, that the person so deceived was induced to do so, that such person acted on such inducement in consequence of his having been deceived by the accused and that the accused acted fraudulently or dishonestly when so inducing the person. To constitute the offence of cheating, it is not necessary that the deception should be by express words, but it may be by conduct or implied in the nature of the transaction itself..."
14. In other words, the basic ingredients of offence under section 420 IPC would be cheating with the intention to deceive from the very inception of the promise or representation.
FORGERY
15. Section 463 to 477A of the IPC deals with the offences relating to forgery, forged documents and making or possessing counterfeit seal etc. with the intent to commit forgery and is covered under chapter 18 of the code which pertains to 'of offences relating to documents and property Marks. Section 463 defines the term forgery which is punishable under section 465 Digitally signed by ABHISHEK ABHISHEK KUMAR KUMAR Date: 2023.09.16 17:02:54 +0530 State Vs. Md. Rehan & Anr. Page No.8 of 13 FIR No.423/2015, PS IGI Airport IPC. The offence of forgery is completed when a false document is prepared so that the same can be used as genuine. The making of false document is defined under section 464 IPC.
16. The Hon'ble Supreme Court Of India in case titled as Ram Narayan Popli v. CBI, (2003) 3 SCC 641 while referring to section 463 IPC has observed as follows:
"...371. In of order to constitute forgery, the first essential is that the accused should have made a false document. The false document must be made with an intent to cause damage or injury to the public or to any class of public or to any community.
372. The expression "intent to defraud" implies conduct coupled with an intention to deceive or thereby to cause injury. In other words, defraud involves two conceptions, namely, the deceit and injury to the person deceived, that is infringement of some legal right possessed by him but not necessarily deprivation of property. The term "forgery" as used in the statute is used in its ordinary and popular acceptation.
373. The definition of the offence of forgery declares the offence to be completed when a false document or false part of a document is made with specified intention. The questions are (i) is the document false, (ii) is it made by the accused, and (iii) is it made with an intent to defraud. If at all the questions are answered in the affirmative, the accused is guilty.
374. In order to constitute an offence of forgery the documents must be made dishonestly or fraudulently. But dishonest or fraudulent are not tautological. Fraudulent does not imply the deprivation of property or an element of injury. In order to be fraudulent, there must be some advantage on the one side with a corresponding loss on the other. Every forgery postulates a false document either in whole or in part, however small.
375. The intent to commit forgery involves an intent to cause injury. A person makes a false document who dishonestly or fraudulently signs with an intent or cause to believe that the document was signed by a person whom he knows it was not signed..." ABHISHEK KUMAR Digitally signed by ABHISHEK KUMAR Date: 2023.09.16 17:03:03 +0530 State Vs. Md. Rehan & Anr. Page No.9 of 13 FIR No.423/2015, PS IGI Airport
17. With respect to the creation of a false document in reference to section 464 IPC, the Hon'ble Apex Court of India in case titled as Mohd. Ibrahim v. State of Bihar, (2009) 8 SCC 751 observed as follows:
"...14. An analysis of Section 464 of the Penal Code shows that it divides false documents into three categories:
1. The first is where a person dishonestly or fraudulently makes or executes a document with the intention of causing it to be believed that such document was made or executed by some other person, or by the authority of some other person, by whom or by whose authority he knows it was not made or executed.
2. The second is where a person dishonestly or fraudulently, by cancellation or otherwise, alters a document in any material part, without lawful authority, after it has been made or executed by either himself or any other person.
3. The third is where a person dishonestly or fraudulently causes any person to sign, execute or alter a document knowing that such person could not by reason of (a) unsoundness of mind; or (b) intoxication; or (c) deception practised upon him, know the contents of the document or the nature of the alteration.
In short, a person is said to have made a "false document", if
(i) he made or executed a document claiming to be someone else or authorised by someone else; or (ii) he altered or tampered a document; or (iii) he obtained a document by practising deception, or from a person not in control of his senses.
18. Section 467 (forgery of valuable security, will etc.), Section 468(forgery for purpose of cheating) and section 471(using as genuine a forged document or electronically record) are the aggravated form of the offence of forgery and the condition precedent for these offences is the existence of forgery and the creation of false document or electronically record.
Digitally signed byABHISHEK ABHISHEK KUMAR KUMAR Date: 2023.09.16 17:03:13 +0530 State Vs. Md. Rehan & Anr. Page No.10 of 13 FIR No.423/2015, PS IGI Airport Section 470 IPC defines a forged document which is a false document made wholly or in part by forgery.
19. For the purposes of convicting an accused under section 471 IPC, it has to be shown that the accused knew or had reason to believe that the document was forged.
20. After understanding the relevant provisions of law involving the present case and evidence led by the prosecution, let us see if the prosecution has been able to establish its case beyond reasonable doubt against the accused.
FINDINGS
21. The cornerstone for initiating criminal prosecution against the accused Khalil Ahmed is the disclosure statement of accused Mohd. Rehan and the stamp pamper Mark A1 recovered from the possession of the said accused. It is a trite law that disclosure statements/confessions recorded by the police officers are not admissible in evidence except for the purposes of section 27 of the Indian Evidence Act. Further, disclosure statement of one accused cannot used against another co-accused. The disclosure statement of Khalil Ahmed is of no use to the prosecution as no incriminating recovery could be affected from the accused on the basis of it. Thus, it is found to be inadmissible in evidence.
22. Now coming to the relevancy of the stamp paper which IO states to have been purportedly issued by the accused Khalil Ahmed and bears his signatures on it. The said stamp paper Mark Digitally signed by ABHISHEK ABHISHEK KUMAR KUMAR Date: 2023.09.16 17:03:21 +0530 State Vs. Md. Rehan & Anr. Page No.11 of 13 FIR No.423/2015, PS IGI Airport A1 has not been proved as per law. The primary ground is that it was never forensically examined to compare the handwriting and signatures of the author of the document and the accused Khalil Ahmed. In the absence of the same, it cannot be said that the document has been issued and made by the accused. It was an important aspect of the investigation which the IO has neglected resulting into a shoddy investigation. Further, the contents of the stamp paper do not show that accused had promised in any way to send the pax/accused illegally.
23. Upon careful scrutiny of the prosecution evidence, I have arrived at the conclusion that no proof has come on record that the accused was the maker of the forged Visa and in the absence of the same, he cannot be held liable for committing the forgery of the document. The judgment in case titled as Sheila Sebastian Vs. R. Jawaharaj & Anr. (Crl. App No.359-360 of 2010) passed by the Hon'ble Apex Court, supports the defence of the accused that he had not forged the document as it was held by the Hon'ble Apex Court that the charge of the forgery cannot be imposed on a person who is not the maker of the false document.
24. There is no single piece of evidence brought on record by the prosecution to establish the fact that the accused had conspired with other co-accused person to prepare forged Visa. Accordingly, accused no.2 Khalil Ahmed S/o Abdul Shakur is acquitted for the offences U/s. 468 IPC r/w Section Digitally signed 120B IPC.
by ABHISHEK
ABHISHEK KUMAR
KUMAR Date: 2023.09.16
17:03:30 +0530
State Vs. Md. Rehan & Anr. Page No.12 of 13
FIR No.423/2015, PS IGI Airport
25. Accused is directed to furnish bail bonds under Section 437A Cr.PC.
26. Ordered Accordingly.
Announced in the open Court on 16th September, 2023 This judgment contains thirteen pages and each page is signed by me. ABHISHEK Digitally signed by ABHISHEK KUMAR KUMAR Date: 2023.09.16 17:03:42 +0530 ( Abhishek Kumar ) ACMM-01/PHC/New Delhi State Vs. Md. Rehan & Anr. Page No.13 of 13 FIR No.423/2015, PS IGI Airport