Delhi District Court
State vs . Nawal Kishore & Anr. on 7 August, 2018
IN THE COURT OF MM08 (CENTRAL DISTRICT)
TIS HAZARI COURTS COMPLEX, DELHI.
Presiding Officer: Dinesh Kumar, DJS.
IN THE MATTER OF :
State Vs. Nawal Kishore & Anr.
FIR No. 378/2006
PS : Kotwali
U/s 420/468/384/471, IPC
CNR No. DLCT020004892007
Date of Institution : 25.01.2007
Date of reserving of order : 09.07.2018
Date of Judgment : 07.08.2018
J U D G M E N T
1. Serial No. of the case : 295228/2016
2. Name of the Complainant : Sh. Jawahar Choudhary
3. Date of incident : On or before June 2005
4. Name of accused persons :
1.Nawal Kishore S/o Sh. Panna Lal Choudhary,
2. Nand Kishore S/o Sh. Panna Lal Choudhary, Both R/o H. no.24/8, Gali no.7, PartIII, Jharoda, Burari, Delhi.
5. Offence for which chargesheet has been filed : S. 420/468/471/384/506 IPC.
6. Offence for which charge has been framed : S. 420/468/471/384/506 IPC.
7. Plea of accused : Not guilty
8. Final Order : Acquitted
9. Date of Judgment : 07.08.2018 Present : Sh. Santosh Kumar, Ld. APP for the State.
Sh. P.S.Yadav, Ld. Counsel for accused .
FIR No. 278/06 State Vs Nawal Kishore & Anr. 1 of 23 PS : Kotwali BRIEF REASONS FOR ORDER:
1. Mr. Nawal Kishore Choudhary and Mr. Nand Kishor, the accused persons herein, have been chargesheeted for the offences punishable under Section 420/468/389/506/34, Indian Penal Code (45 of 1860) (hereinafter referred to as "IPC").
2. The case of the prosecution is that one complaint was made by complainant Jawahar Choudhary in the Court. One application under Section 156 (3), Cr.P.C., was also filed with the said complaint. The Ld. MM had passed direction to the SHO to register an FIR on the complaint of the complainant and to investigate the matter. Thereafter, present FIR was registered. It was contended by the complainant that accused Nawal Kishore had represented to him that he was head of Lok Jan Shakti Party of Chandni Chowk area. Both the accused had assured him that they would provide him permanent shop in the area if he pay money to them. Under the said assurance the complainant had made payment to them. They also used to take protection money from him. Similar complaint were made by various other persons also against the accused persons. After completion of investigation of the report, final report was prepared and the accused persons were chargesheeted for the offences punishable under section 420/468/471/389/506/34, IPC.
FIR No. 278/06 State Vs Nawal Kishore & Anr. 2 of 23 PS : Kotwali
3. After perusing the record, cognizance was taken by the Ld. Predecessor and summons were issued to the accused. Accused appeared in the Court. Compliance of Section 207, Criminal Procedure Code, 1973 (hereinafter referred to as 'Cr.P.C.) was done. After hearing the parties, charge for the offences punishable under Section 420/34, 468/34, 471/34, 384/34 IPC and Section 506/34 IPC was framed against the accused persons to which they pleaded not guilty and claimed trial.
4. The prosecution has examined as many as 15 witnesses to prove its case against the accused.
5. PW 1 Jawahar Chaudhary is the complainant. He has deposed that in year 2006, he used to sell clothes and shoes at the patri of Red Fort, Azad Market. In that year, accused Nawal Kishor had come to him and shown some printed letter heads and one ID card of Lok Jan Shakti Party headed by Sh. Ram Bilas Paswan. Accused Nawal Kishore told that he was the Head of the Chandni Chowk Block of Lok Janshakti Party. The visiting card is Ex. PW1/A. Accused Nawal Kishore had won his confidence by showing the abovementioned visiting card and other papers. Accused Naval Kishor told him that he would arrange one permanent shop by using his political influence. Accused Nawal Kishore had obtained Rs.10,000/ from him as well as from other persons, namely, Mohd. Tanveer, Mohd. Rabani, Chandan Kumar, Parvesh. The said payment was made in the presence of Kailash Chaudhary.
6. The witness was crossexamined by Ld. APP for the State with the permission of the Court. The witness admitted that accused Nawal Kishore again demanded Rs.10,000/ from him. He admitted that FIR No. 278/06 State Vs Nawal Kishore & Anr. 3 of 23 PS : Kotwali both accused had met with him and told that they were having political influence. He also admitted that Rs.10,000/ were delivered to accused. He has also admitted that the accused had assured to arrange a shop and that both the accused used to collect Rs.150/ per day from him as protection money. The witness admitted that both accused had promised him to use the collected money in administration for getting thiya and they used to say that money had to be given to Union Minister Sh. Ram Vilas Paswan for use of his political influence. However, they did not provide him any pakka thehbazari to him. Both of accused had threatened to implicate him in case he claimed money. Thereafter, he had reported the said matter to Union Minister Sh. Ram Vilas Pawan in this regard. The FIR was registered on his complaint. He complained the matter before police on 13.07.2006. The complaint is Ex.PW1/B. He also made complaint to Police Commissioner, President of India, which are Ex. PW 1/C & PW1/D. He also sent the photocopy of the complaint to Human Right Commission, which is Mark A. Both the accused were arrested vide memo Ex. PW1/E and Ex. PW1/F and their personal search was conducted vide memo Ex. PW1/G and Ex.PW1/H.
7. PW2 Ganesh, PW4 Nathu Lal Yadav, PW5 Chandan, PW6 Kailash Kumar, PW9 Md. Nanhe, PW12 Md. Hashim, PW13 Abdul Wahid & PW14 Tajul Rehman and PW15 Md. Yasin are stated to be the persons who had also made similar allegations against the accused persons. However, in their examination in the Court they have deposed nothing against the accused. They have stated that they did not know anything thing about the present case. The witnesses had been been crossexamined by the Ld. APP. However, in their crossexamination also they have denied the suggestions given by Ld. APP. FIR No. 278/06 State Vs Nawal Kishore & Anr. 4 of 23 PS : Kotwali
8. PW3 ASI Ombir Singh is the Duty Officer. He has deposed that he had registered the FIR on the basis of rukka, prepared by ASI Jai Prakash. The copy of FIR is Ex PW3/A. Endorsement on the rukka is Ex. PW3/B.
9. PW7 HC Yogesh Kumar is the police official who had joined the investigation with the IO on 12.11.2006. He has deposed that on 12.11.2006, he had joined the investigation with IO ASI Jai Prakash. He alongwith IO ASI Jai Prakash went to Azad Hind Market, where complainant met them. Thereafter, he alongwith IO and complainant went to H. No. 2403, Bihari Colony, Gali No.12, Shahadara, where both the accused were arrested and personally searched vide memos Ex. PW1/E, Ex.PW1/F, PW1/G and PW1/H. IO recorded the disclosure statement of both the accused, which are Ex. PW7/A and Ex. PW7/B.
10. PW8 Retd. SI Jai Prakash is the IO of the case. He has deposed that on 23.09.2006, the present case was marked to him for investigation. He received the copy of FIR, complaint or application under Section 156 (3) Cr. P.C., alongwith the order of the Court. He recorded the statement of the witnesses namely Firoz Ali, Jawahar Choudhary, Kailsh Choudhary, Chandan, Mohd Tanvi etc. There were 20 witnesses, who came forward and told that they were managing stalls near Red Fort in Lajpat Rai market at pavement. They told that a person namely Nawal Kishore used to collect money from them on the promise to get them status of the permanent there. Nawal Kishore used to present himself as the member of Lok Janshakti Party at Delhi in Chandni Chowk unit. He used to tell his connection with the higher authorities and dignitaries of political parties and on that pretext, he used to show his influence upon the pavement dwellers/hawkers. FIR No. 278/06 State Vs Nawal Kishore & Anr. 5 of 23 PS : Kotwali Accused Nawal Kishor alongwith his brother namely Nand Kishor, who was also managing a stall there used to collect the money for 3/4 years. They used to collect Rs.100 per stall from every staller. After recording the statement of complainant Jawahar Choudhary, he arrested both the accused Nawal Kishore and Nand Kishore vide arrest memo Ex. PW1/F and Ex.PW 1/E. Their personal search were conducted vide memo Ex. PW 1/G and Ex. PW1/H. Their disclosure statements were recorded vide memo Ex. PW7/A and Ex. PW7/B. The public witness namely Umed Singh Dabas had produced a visiting card which was taken by him vide seizure memo Ex.PW8/A. The card is Ex. PW1/H, which was showing the photo and introduction and connection of the accused with Lok Dalit Sena and Lok Janshakti Party. Umed Singh Dabas had informed him that the card was given by the accused to him and accused namely Nawal Kishore often used to show this visiting card to give impression upon the spectators about his connection with MP and MLAs of Lok Janshakti Party. On verification of the visiting card he found that the card was got printed without any authority from the party mentioned on the card and he had no connection with the political parties mentioned on the card and in this connection a letter was received from Lok Janshakti Party, which is Ex. PW8/B. As per the order of the High Court, accused had given Rs.25,000/ which was disbursed to the person involved in the complaint, the receipts are Ex. PW8/C (colly 21 pages). Supplementary challan was filed. Statement under Section 164 Cr.P.C. of Jawahar was recorded, the same is Mark PW 8/2. IO had recorded the statements of the complainant under Section 161 Cr. PC, which are Ex. PW8/C, Ex. PW8/D to Ex. PW 8/D20. He had prepared the challan and filed in the Court.
FIR No. 278/06 State Vs Nawal Kishore & Anr. 6 of 23 PS : Kotwali
11. PW10 Ashok Kumar is one of the person who had made allegations against the accused persons. He has deposed that in year 200506 both the accused used to come at his rehri patri in front of Red Fort, Chandni Chowk for demanding Kharcha Pani. He had given Rs.50/ to accused Nawal Kishore two three times. On 23.09.2006, accused Nawal Kishore had demanded Rs.2000/ for his thiya and threatened for dire consequences if money was not paid. Various letter pads and visiting cards of several leaders including Ram Vilash Paswan were shown to him. Accused Nawal Kishore had told that he was the Secretary of Hawkers of Parade Ground Parking. He had given Rs.2000/ to accused Nawal Kishore. The witness was crossexamined by Ld. APP with the permission of the Court. The witness admitted that he was threatened by the accused persons to kill him if he did not pay the amount of Rs.2000/.
12. PW11 Firoz Ali is one of the victim/complainant. He has stated that in the year 2005, accused Nawal Kishore had taken Rs.2000/ from him for continuation of his thiya at Parade Ground. He was also assured that thiya would be converted into permanent at the said place in lieu of Rs.2000/ However, his thiya would not be converted into permanent establishment. Thereafter, he alongwith 1520 complainants had made complaint to the police. The complaints are marked as Mark PW11/X1 to Ex. PW11/X4.
13. The witnesses were cross examined. The prosecution evidence was closed. Accused persons were examined under Section 313 Cr. P.C., r/w Section 281 Cr. P.C. The accused denied the incriminating evidence. They would state that they were falsely implicated. Accused Nawal Kishore would stated that the case was FIR No. 278/06 State Vs Nawal Kishore & Anr. 7 of 23 PS : Kotwali politically motivated. Umed Singh Dabas was the main person who wanted to become Chairman of Chandni Chowk Block of Lok Jan Shakti Party. However, the party official had refused to make him so. The party officials had appointed him as the Secretary of the Block. Therefore, he made a conspiracy against him to malign his reputation and he used his supporters for the said purpose. However, he still holding the post of District President in the abovementioned party, Chandni Chowk area. Therefore, he was falsely implicated.
14. The accused examined Sh. Gyan Chand Gautam as DW
1. He has deposed that he is the President of Delhi Pradesh Dalit Sena. Accused Nawal Kishore Choudhary is the president of Dalit Sena, Chandni Chowk District. He was appointed on the said post vide letter dated 24.03.2009 which is Ex. DW1/A (OSR). Intimation was sent to the DCP and the CP and the SHO vide letter dated 05.03.2010, which is Ex. DW1/B (OSR). Earlier also he was President of Dalit Sena during period starting from 19.12.2004. Even at present, he is the president as abovesaid. The letter of appointment of the witness as President of Delhi State of abovementioned organization is Ex. DW1/C (OSR).
15. The witness was crossexamined. The accused did not examine any other witness. Therefore, matter was fixed for final arguments.
16. Ld. APP for the State would argue that the prosecution has proved its case beyond reasonable doubts. The identities of the FIR No. 278/06 State Vs Nawal Kishore & Anr. 8 of 23 PS : Kotwali accused persons have been established beyond reasonable doubts. The prosecution witnesses have proved that the accused persons had deceived them and they had taken money from them under the pretext of protection money and to provide them permanent shop in the area even they did not have any such authority. They have misused the visiting cards of a political organization even though they did not have any authority to use such Visiting Card. Hence, the ingredients of the offences against the accused persons have been proved beyond reasonable doubts. Therefore, it is prayed, the accused persons may be convicted for the offences they are charged with.
17. Learned defence Counsel, on the other hand, would argue that the accused persons were falsely implicated in the present case at the instance of Umed Singh Dabas, who had political rivalry with the accused persons. There are various contradictions in the testimonies of the prosecution witnesses. Most of the alleged complainants have denied making any complaints against accused persons. Accused Nawal Kishore is the President of Dalit Sena for Chandni Chowk, District. He had not forged any document nor he had used any forged document as genuine. Nothing was recovered from his possession. No payment was ever made to him by anyone as alleged by the witness and therefore the said witnesses had not produced any documentary evidence to prove their contention. The accused had never threatened anyone. He never used any political influence upon anyone. There is no FIR No. 278/06 State Vs Nawal Kishore & Anr. 9 of 23 PS : Kotwali material on record to substantiate the charge. Hence, it is prayed that the accused may be acquitted.
18. I have heard the rival submissions and carefully perused the material available on record.
19. In a criminal case, the burden is on the prosecution to prove its case beyond reasonable doubts before the accused is asked to put his defence.
20. In the present case, the accused persons have been charged for committing offences punishable under Sections 384/34, 420/34, 468/34, 471/34 IPC and Section 506/34 IPC. I shall deal with each Section separately to reach at conclusion whether the prosecution has proved its case against the accused persons beyond reasonable doubts under all the heads of charge or under any of head of the charge.
21. First, I shall take the charge of the offences punishable under Section 468/34 IPC and Section 471/34 IPC. Section 468 IPC provides punishment for offence of forgery for the purpose of cheating. Section 463 IPC defines 'forgery' while Section 464 IPC defines 'making of false documents'. The Sections read as under : "463. Forgery.--Whoever makes any false documents or false electronic record or part of a document or electronic record, with intent to cause damage or injury, to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery.
FIR No. 278/06 State Vs Nawal Kishore & Anr. 10 of 23 PS : Kotwali "464 Making a false document. --A person is said to make a false document or false electronic record-- First --Who dishonestly or fraudulently--
(a) makes, signs, seals or executes a document or part of a document;
(b) makes or transmits any electronic record or part of any electronic record;
(c) affixes any electronic signature on any electronic record;
(d) makes any mark denoting the execution of a document or the authenticity of the electronic signature, with the intention of causing it to be believed that such document or part of document, electronic record or was made, signed, sealed, executed, transmitted or affixed by or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed, executed or affixed; or Secondly --Who, without lawful authority, dishonestly or fraudulently, by cancellation or otherwise, alters a document or an electronic record in any material part thereof, after it has been made, executed or affixed with electronic signature either by himself or by any other person, whether such person be living or dead at the time of such alteration; or Thirdly --Who dishonestly or fraudulently causes any person to sign, seal, execute or alter a document or an electronic record or to affix his electronic signature on any electronic record knowing that such person by reason of unsoundness of mind or intoxication cannot, or that by reason of deception practised upon him, he does not know the contents of the document or electronic record or the nature of the alteration."
22. In order to prove forgery, the prosecution must establish beyond reasonable doubts:
FIR No. 278/06 State Vs Nawal Kishore & Anr. 11 of 23 PS : Kotwali
1. that the document or electronic record or the part of it was false in fact;
2. that it had been made dishonestly or fraudulently within the meaning of the words used in Section 464, IPC; and
3. that the making of false document or electronic record was with intent to:
4. Cause danger or injury to: (i) the public, or (ii) to any person; or
5. Support any claim or title; or
6. Cause any person to part with property; or
7. Enter into any express or implied contract; or
8. Commit fraud or that fraud may be committed.
23. The term 'fraud' in Section 463 implies an infringement of someone's legal right though not necessarily connected with deprivation of property. Intent to defraud implies (a) an intention to deceive and (b) such deception involving the causing of legal injury. Unless there is an element of fraud, the making of a false document would not amount to a forgery. It is worth noting that intention to cause injury is not an essential ingredient of the offence of forgery. As per Section 463, intention to cause damage or injury to the public or person is only one of the five situations. The other situations being: (i) to support any claim or title (ii) cause any person to part with property; (iii) enter into any implied FIR No. 278/06 State Vs Nawal Kishore & Anr. 12 of 23 PS : Kotwali or express contract; or (iv) with intent to commit fraud. The first component, namely, intention to cause damage is intent complete in itself. The definition in Section 463 is itself subject to the definition in Section 464, in which the two essential elements are that the act should be done 'dishonestly and fraudulently'. In other words, whichever of the intents as provided in Section 463 are applicable, the act itself must be done dishonestly and fraudulently to sustain the allegation of forgery.
24. Section 471 IPC provides punishment for using as genuine any forged document knowingly or having reason to believe to be a forged document.
25. In the present case, as the record would reveal, there is not even a single piece of evidence to show that the accused persons had forged any document or that they were in possession of any forged document at any point of time. No such forged document is shown to be recovered from the possession of the accused or at their instance.
26. No doubt, some of the witnesses of the prosecution have deposed that accused Nawal Kishore used to show some visiting cards, letter heads and Icard of Lok Jan Shakti Party. However, no such documents have been brought on record by the prosecution. Only one visiting card, which is Ex. PW1/A is brought on record. However, perusal of record would show that the said visiting card was not recovered from the possession of any accused nor at their instance. In the chargesheet, it has been mentioned that FIR No. 278/06 State Vs Nawal Kishore & Anr. 13 of 23 PS : Kotwali the said visiting card was provided to the IO by one person named U. S. Dabas. However, the said person has not come in the witness box to prove that the said document was given to him by the accused persons. Admittedly, the said documents was not provided by PW1 to the IO. In any case, there is no material on record to show that the said visiting card was got prepared by accused Nawal Kishore Choudhary and further that it was a forged document.
27. In the document Ex. PW1/A accused Nawal Kishore Choudhary is shown as District President of Chandni Chowk, Dalit Sena.
28. DW1 Gyan Chand Gautam has entered into witness box and he has shown that accused Nawal Kishore is the District President of the said organization. He has also shown that he was the District President of the said Organisation in the year 2006 also. There is no complaint from the said organization so as to reach at a conclusion that Ex PW1/A was a forged document. There is no material on record which could be called a forged document found in possession of the accused or which was recovered at the instance of any of the accused. In these circumstances, I hold that the prosecution has failed to prove the charges of the offences punishable under Section 468/34 IPC and Section 471/34 IPC against any of the accused beyond reasonable doubts.
29. The accused have also been charged for offence punishable under Section 506/34 IPC. Section 506 IPC provides punishment for criminal intimidation. Section 503 IPC defines FIR No. 278/06 State Vs Nawal Kishore & Anr. 14 of 23 PS : Kotwali criminal intimidation as threatening another person with any injury to his person, reputation or property, or to the person or reputation of anyone in whom that person is interested, with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threat. The necessary ingredients of the offence of criminal intimidation are as under :
1. That there was a threat of injury to a person, his reputation or property,
2. That the threat was with intention to cause alarm to that person or to call that person that person to do an act which he was not legally bound to do and the means to avoiding the accused of such threat or to cause that person to omit to do any act which that person is legally entitled to do as means of avoiding the causing of such threat.
30. It is settled position of law that mere threat without causing any alarm does not amount to criminal intimidation. However, if the threat is made with intend to cause alarm to another person threatened, the offence will come into place, it is immaterial whether recipient of the threat caused alarm or not. I get strength from the Judgment of the Hon'ble Supreme Court of India in Manik Taneja Vs. State of Karnataka, 2015 AIR SCW 948 wherein it has been held that mere expression of any word without FIR No. 278/06 State Vs Nawal Kishore & Anr. 15 of 23 PS : Kotwali any intention to cause alarm would not be sufficient to attract Section 503 IPC.
31. In the present case, the prosecution has examined various witnesses. However, none of the witness in his examination had made allegation that any of the accused had threatened him and thereby criminally intimidated him. PW1 in his entire testimony did not make any such allegation. Only when he was crossexamined by Ld. APP and he was led, he admitted the suggestion that accused persons used to threaten him in case he claimed the money. Perusal of the testimony of PW1 would show that he did not provide any specific date, month or year when he was so threatened. The allegations is vague. In any case, which statement of the witness does not show as to what was the threat given by the accused persons. Therefore, it can not be decided whether the threat was sufficient to cause alarm.
32. Further, PW10 in his examination has stated that the accused had threatened with the words, 'Agar thiya lagana hai to do hazar dene padenge aur tumahar kam ho jayega nahi to tumhe fasa denge'. They has also said that 'ye bate kisi ko bolenge nahi'. During his crossexamination by Ld. APP, he admitted the suggestion that he had told the IO that both the accused had threatened to kill him if he did not pay the money of Rs.2000/. Perusal of the testimony of PW10 would show that his first part of statement made during examination of chief did not show that any threat was given so as to cause alarm to the witness. His admission FIR No. 278/06 State Vs Nawal Kishore & Anr. 16 of 23 PS : Kotwali of the suggestion that he had told the IO that accused persons had threatened to kill him if he did not pay the amount of Rs.2000/. Firstly, the witness did not state that the accused had threatened to kill him. Rather he only admitted that he had made such a statement to the IO. Secondly, the nature of the threat does not inspire confidence. It is hard to believe that the a person would threaten another to kill him if amount of rupees was not paid. The fact that the witness did not state the said contention in his examination in chief create reasonable doubts on any such threat.
33. Further, PW2, PW4, PW5, PW6, PW9, PW11, PW 12, PW13, PW14 & PW15, the other public witnesses, have also not made any allegation to the effect that any of the accused had ever criminally intimidated any of them. In such circumstance, the material on record is not sufficient to prove the charge of the offence under Section 506/34 IPC against any of the accused.
34. The accused persons have also been charged for committing offence punishable under Section 384/34 IPC. Section 384 IPC provides punishment for putting a person in fear of injury to commit extortion. Section 383 IPC defines extortion. The Section reads as under :
" Whoever intentionally puts any person in fear of any injury to that person, or to any other, and thereby dishonestly induces the person so put in fear to deliver to any person any property or valuable security, or anything signed or sealed which may be converted into a valuable security, commits "extortion".
FIR No. 278/06 State Vs Nawal Kishore & Anr. 17 of 23 PS : Kotwali
35. Thus, the law requires that there must be delivery of the property by the victim and the will to do so must be endangered by the fear which should have proceeded from the extortioner antecedent to the delivery. In the present case, however, none of the public witness has made allegations that the accused persons had put them under the fear of any injury. Some of the public witnesses have only contended that the accused persons had demanded money to provide them pakka thiya. During cross examination of PW1 by Ld. APP, on leading the witness, he has stated that both the accused persons had collected to Rs.50/ per day from him as protection money for temporary space. However, it is not on record as to what was the protection which was provided to him by the accused persons. Be that as it may, it can not be said by any stretch of investigation that the accused persons had put the witness in fear of injury while demanding the said money. This statement is not even sufficient to prove beyond reasonable doubts that the accused persons had put any person in fear of any injury to that person, or to any other and thereby dishonestly induced the person so put in fear to deliver to any person, any property or valuable security etc. Circumstances as described by the witnesses are not able to prove the ingredients of Section 383 IPC against any of the accused beyond reasonable doubts.
36. PW10 in his examination has stated that the accused persons used to come at his rehri patri for demanding kharcha panni. He had given Rs.50/ to accused Nawal Kishore two/three FIR No. 278/06 State Vs Nawal Kishore & Anr. 18 of 23 PS : Kotwali times. Accused Nawal Kishore had demanded Rs.2000/ for his thiya. He had threatened to implicate him if he did not pay the money. However, there is nothing on record to prove that the said witness had made any such payment to the said accused. Perusal of record would show that in his statement under Section 161 Cr.P.C., the said witness did not mention any date, month and year of making such payment. He did not state in his statement under Section 161 Cr.P.C., that he had made such payment of Rs.50/ to any of the accused. In his statement under Section 161 Cr. P.C., he had only stated that accused had taken Rs.2000/ from him. No date month or year had been mentioned by him in his statement. It is possible that the witness had made the said statement only to receive money which the accused persons had deposited by order of Hon'ble High Court of Delhi. The nature of the case and the circumstances create reasonable doubts on this contention of the witness.
37. None of the other public witness has made any allegations that the accused persons had put them under the fear of any injury and extorted money from them. In such circumstances, I hold that the prosecution has failed to prove charge of the offence punishable under Section 384 IPC.
38. The accused persons have also been charged for committing offence punishable under Section 420/34 IPC. Section 420, IPC provides punishment for cheating and dishonestly inducing delivery of property. In order to constitute, offence under FIR No. 278/06 State Vs Nawal Kishore & Anr. 19 of 23 PS : Kotwali Section 420 IPC, the prosecution has to establish that the accused had deceived the complainant/victim dishonestly inducing him to part with any property in his favour which he would not have parted but for the deception played on him. Thus, the essential ingredients of the offence is that there must be dishonest intention on the part of the accused at the time of making the representation to the complainant / victim on the basis which the complainant / victim part with his property. Intention must be dishonest and there must also be mens rea. The offence is made up of two ingredients. Deception of any person and fraudulently or dishonestly inducing that person to deliver any property to any person or two consent that any person shall retain any property. Therefore burden is on the prosecution to prove that the accused persons had deceived te complainant or any other witness and that the said person had delivered any property to accused or to some other person under such deception.
39. In the present case, PW1 has deposed that accused Nawal Kishore had come to him and told that he would arrange one permanent shop for him by using political influence. He had obtained Rs.10,000/ from him for the said purpose. However, no date of the said payment has been provided by the witness.
40. The accused persons can not bring any negative evidence to prove that they had not received any such money from the witness. It is for the prosecution to prove beyond reasonable doubts that the witness made any such payment to the accused. FIR No. 278/06 State Vs Nawal Kishore & Anr. 20 of 23 PS : Kotwali
41. During his crossexamination, PW1 was asked whether he had any documents in his possession to show that he was having such amount with him during the alleged period. However, the witness could not produce any such document. The witness also stated that in the year 2005, he did not have any bank account. The witness is a hawker. It is hard to believe that in the year 2006 he could have savings of Rs.20,000/ with him which he was keeping at his home. A reasonable doubt has been created on his testimony regarding the payment of money to the accused. Suggestion has been given to the witness that he had made a false complaint under the influence and in collusion with U.S. Dabas. The defence of the accused has also been the same that they were falsely implicated at the instance of said U.S. Dabas.
42. PW10 has stated in his examination that accused Nawal Kishor had demanded Rs.2000/ from him. He had given the amount of Rs.2000/ to the accused. However, this witness also did not bring any documentary evidence to show that he had paid such an amount to the accused. In his crossexamination the witness has stated that he had borrowed Rs.2000/ from someone. However, he does not disclose the name of the said person. All these circumstances create reasonable doubts on his testimony.
43. Witness PW11 has also made similar allegations. However, again, he also does not have any document to substantiate his claim that he had made payment of Rs.2000/ to the accused.
FIR No. 278/06 State Vs Nawal Kishore & Anr. 21 of 23 PS : Kotwali
44. Accused Nawal Kishore has shown on the balance of probabilities that he is politically active person and that on the relevant time also he was so active. In such circumstances, the testimonies of the public witnesses have to be read with caution. None of the prosecution witnesses who have stated that they had made payment of amount to the accused persons has any documents to show that any such payment was ever made. The nature of alleged transactions does not appear to be legal as no person could have provided a pakka thiya to anyone on payment of money to him. There is a procedure for allotting rights of hawking and squatting at a particular place. Application before the concerned authority is required to be made. In the present case none of the witness has stated that they had signed any application for such rights. In such circumstances, it is hard to believe that they would make the payment to the accused persons for a purpose which was impossible in the absence of any application. It is settled position of law that whenever there are two views possible, the view which favours the innocence of the accused is to be accepted by the Court. The prosecution has not proved, even on the preponderance of probabilities, that any of the prosecution had made any payment to any of the accused. In such circumstances, I hold that the prosecution has failed to prove the ingredients of offence punishable under Section 420/34 IPC against any of the accused beyond reasonable doubts.
FIR No. 278/06 State Vs Nawal Kishore & Anr. 22 of 23 PS : Kotwali
45. In the light of the discussions hereinabove, I hold that the prosecution has failed to prove its case against any of the accused. The benefit of doubts is given to the accused persons as per law. The accused persons are therefore acquitted of the offences punishable under Section 420/468/471/384/506 IPC.
46. The accused persons have already furnished bonds with one surety each under Section 437A, with photographs and copies of address proof.
Pronounced in the open Court on (Dinesh Kumar) th this 07 day of August 2018. MM08 (Central) Tis Hazari Courts, Delhi FIR No. 278/06 State Vs Nawal Kishore & Anr. 23 of 23 PS : Kotwali