Delhi District Court
State vs . Raj Kumar & Ors. on 5 September, 2018
IN THE COURT OF MM08 (CENTRAL DISTRICT)
TIS HAZARI COURTS COMPLEX, DELHI.
Presiding Officer: Dinesh Kumar, DJS.
IN THE MATTER OF :
State Vs. Raj Kumar & Ors.
FIR No. 229/07
PS : Hauz Qazi
U/s 406/420/34 IPC
Date of Institution : 13.06.2008
Date of reserving of order : 31.07.2018
Date of Judgment : 05.09.2018
J U D G M E N T
CNR No. DLCT020001522008
1. Serial No. of the case : 288289/16
2. Name of the Complainant : Balbir Kumar
3. Date of complaint : 13.05.2007
4. Name of accused persons :
1. Raj Kumar @ Kallu S/o Hari Singh,
2. Mahinder S/o Raj Kumar
3. Smt. Neena W/o Raj Kumar
All R/o 2152, Gali Sudama,
Bazar Sitaram, Hauz Qazi, Delhi.
5. Offence for which charge
has been framed : Under Section 406/34,
420/34 & 174A IPC.
6. Plea of accused : Not guilty.
7. Final Order : Acquitted
8. Date of Judgment : 05.09.2018
FIR No. 229/07 State Vs Raj Kumar & Ors. Page 1 of 30
PS : Hauz Qazi
Present : Sh. Santosh Kumar, Ld. APP for the State.
Sh. Pradeep Choudhary, Ld. Counsel for
accused.
BRIEF REASONS FOR ORDER:
1.Mr. Raj Kumar, Smt. Neena W/o Raj Kumar and Mr. Mohinder S/o Raj Kumar, the accused herein, have been chargesheeted for committing offences punishable under Section 406/420/34 IPC, Indian Penal Code (45 of 1860) (hereinafter referred to as "IPC"). During the Court proceedings, on 04.03.2008, accused Raj Kumar S/o Hari Singh was declared absconder by the order of the Court. Hence, accused Raj Kumar has also been chargesheeted for committing offence punishable under Section 174A IPC.
2. The case of the prosecution is that accused persons were running a Chit Fund Business at a shop. They had lured the complainant and other persons to invest their money in Chit fund business. They invested the money in the Chit fund run by the accused persons. However, they did not return the money and converted the same for their own use. On a complaint present FIR was registered. After completion of investigation 'final report' was filed by the Investigation Officer (IO) in the Court and FIR No. 229/07 State Vs Raj Kumar & Ors. Page 2 of 30 PS : Hauz Qazi the accused were chargesheeted for the offences as mentioned hereinabove.
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 offence punishable under Section 406/34 and Section 420/34 IPC was framed against the accused persons to which they pleaded not guilty and claimed trial. Charge for the offence punishable under Section 174A IPC was also framed against the accused Raj Kumar to which he pleaded not guilty and claimed trial.
4. The prosecution has examined as many as 20 witnesses to prove its case against the accused.
5. PW1 Sh Naresh Chander is one of the victim. He has deposed that accused Raj Kumar alongwith Mohinder and Pariksha used to run a committee since 1997 and they used to sit in a shop at Sita Ram Bazar. He was a member of committee. On 05.02.2007, one of his committee was matured and payment was due on 10.2.07, however, the accused did not make any payment and fled FIR No. 229/07 State Vs Raj Kumar & Ors. Page 3 of 30 PS : Hauz Qazi away. On one occasion, he had visited the house to recover the amount. However, instead of paying the money, accused persons had threatened to kill him. On 13.05.2007, PW1 Naresh Chander Gupta alongwith other 12 members of the said committee had made a written complaint which is Ex.PW2/A to PS : Hauz Qazi.
6. No witness was given number of PW2 during evidence. PW3 Balbir Kumar is the complainant. He has deposed that he had invested Rs.2,66,000/ in committee (chit fund) being run by accused Raj Kumar and accused Mahinder Kumar. They used to collect the money for chit fund committee. He was a member in four committees. One committee had matured on 15.02.05 but accused Raj Kumar left the home prior to the said date. He went to his house but they failed to pay the said amount. He had also made a complaint to the police when accused Raj Kumar was located in Sewa Nagar, Near Sai Baba Mandir, Lodi Road, where he was running a kirana shop in the name of Devender. Accused Neena also used to help the accused in the business of chit fund.
7. PW4 Vinod Kumar is one of the victim. He has deposed that he had been invested Rs.3500/ per month in a committee (chit fund) being run by accused Raj Kumar. Accused Mahinder Kumar also used to collect the FIR No. 229/07 State Vs Raj Kumar & Ors. Page 4 of 30 PS : Hauz Qazi money for chit fund committee. Accused Neena also used to help them in the business of chit fund. He was a member in one committee. One committee had matured on 15.02.07 but accused Raj Kumar left his home prior to the said date. Accused persons failed to pay the said amount. He had also made a complaint to the police, which is Ex.PW2/A.
8. PW5 Vikas Jain is one of the victim. He has deposed that he had been investing about Rs.7000/ Rs.9000/ per month in a committee (chit fund) being run by accused Raj Kumar. Accused Mahinder Kumar also used to collect the money for chit fund committee. Accused Neena also used to help them in the business of chit fund. He was a member in two committees. One committee had matured on 15.02.2007 but accused Raj Kumar left your home prior to the said date but accused failed to pay the said amount. He had also made a complaint to the police. On 19.07.2008, accused Raj Kumar was located in Sewa Nagar, Near Sai Baba Mandir, Lodi Road, where accused was running a kirana shop in the name of Devender.
9. PW06 Satpal Gupta is one of victim. He has deposed that in February, 2006, he had given a sum of Rs.75,000/ to accused Raj Kumar, accused Mahender and accused Meena. However, accused persons did not return FIR No. 229/07 State Vs Raj Kumar & Ors. Page 5 of 30 PS : Hauz Qazi the amount and fled away.
10. PW7 Deepak Gupta is the one of the victim. He has deposed that he had invested Rs.4,05,000/ in committees (chit fund) being run by accused persons. One committee had matured on 5th February and accused had promised to pay the amount on 10th February. He had also made a complaint to the police, which is Ex.PW2/A.
11. PW7 Sunil Kumar (wrongly mentioned as PW
07) has deposed that he had been investing Rs.5,000/ in a committee (chit fund) being run by accused Raj Kumar. Accused Mahinder and accused Neena also used to collect the money for chit fund committee. He had made the payment of all the installments of the committee. One committee had matured. On 15.02.07, accused Raj Kumar left his home. He had also invested Rs.60,000/ in another committee.
12. PW08 Mohan Kumar has deposed that he was a member of a committee run by accused Raj Kumar and his family member. He used to pay monthly installment of Rs.10,000/. He had paid 16 installments. However, accused Raj Kumar went missing before making any payment. He had made complaint to the police.
13. PW09 Gopal Das is one of the victim. He has deposed that he had invested his money in a committee FIR No. 229/07 State Vs Raj Kumar & Ors. Page 6 of 30 PS : Hauz Qazi run by accused Raj Kumar alongwith accused Mahender and accused Neena, wife of accused Raj Kumar w.e.f July, 2005. He had deposited Rs.80,000/ and he was supposed to get Rs.95,000/ in the Month of February, 2007. However, accused Raj Kumar ran away without paying the money.
14. PW10 Mahavir is one of the victim. He has deposed that he had deposited a total amount of Rs.2,75,000/ in a chit fund committee run by accused Raj Kumar, accused Mahender and accused Neena. However, they did not return his money. He had made the complaint to police Ex.PW2/A. He had submitted an affidavit to police, which is Ex.PW10/A. The amount was to be returned to him by 05.02.2007, which was not returned by the accused persons. He made a complaint dated 02.06.2007, which is Ex.PW10/B.
15. PW11 Dilip Kumar is one of the victim. He has deposed that he had invested Rs.25,000/ in a committee run by accused persons Raj Kumar, Mahender and Neena. However, they did not return the money. He had given statement to the police, which is Ex.PW11/A. He had given an affidavit, which is Ex.PW11/B.
16. PW12 Raj Kumari is one of the victim. She has deposed that she had invested Rs.1,75,000/ in a FIR No. 229/07 State Vs Raj Kumar & Ors. Page 7 of 30 PS : Hauz Qazi committee run by accused Raj Kumar, Mahender and Neena. They did not return the money. She had given statement to the police, which is Ex.PW12/A. She had given an affidavit, which is Ex.PW12/B. She had given a complaint, which is Mark "A".
17. PW13 HC Om Prakash is the DO. He has deposed that on 01.06.2007 at about 6:25 p.m., he received a rukka from SI Somvir and on the basis of which he registered the present FIR. He handed over the copy of FIR to SI Somvir. The FIR is Ex. PW13/A (OSR). He made endorsement on rukka which is Ex. PW1/B.
18. PW14 Jitender is one of the victime. He has deposed that he alongwith his brother had invested Rs.5,30,000/ in a committee run by accused Raj Kumar, accused Mahender and accused Neena. However, they did not return the money. He alongwith other investors had given statement to the police, which is Ex.PW2/A. He had also made statement vide Ex.PW14/A . He has further deposed till date he had not received the said amount.
19. PW15 WCt. Renu is the police official who has participated in the investigation with the IO. She has deposed that on 10.06.2008, she had joined the investigation of the present case with IO SI Sarvar Ali. They went to the house of accused Raja Kumar where FIR No. 229/07 State Vs Raj Kumar & Ors. Page 8 of 30 PS : Hauz Qazi accused Neena and accused Mahender were present at the house. They were inquired about the incident. They disclosed that accused Raj Kumar was absconding who used to keep the details of money in the committee and the register of the committee was not in their possession and only Raj Kumar could give details of that committee. They were arrested vide arrest memo Ex. PW15/A and Ex.PW15/B and their were personally searched vide memo Ex.PW15/C and Ex. PW15/D. Both the accused were released on bail.
20. PW16 SI Sarvar Ali is one of the IO. He has deposed that on 08.05.2008 the investigation of the present case was marked over to him. On 10.06.2008, accused Neena and Mahender were formally arrested arrested vide memo Ex.PW15/A and Ex.PW15/B respectively. They were personally searched vide memos Ex.PW 15/C and Ex. PW15/D. He did not find any incriminating evidence against Pariksha D/o Raj Kumar.
21. PW17 Harish Arora is one of the victim. He has deposed that he had invested Rs.2,96,000/ in a committee run by accused Raj Kumar, Mahender and accused Neena. However, they did not return the money. He alongwith other investors had given statement to the police, which is Ex.PW2/A. He has further deposed that FIR No. 229/07 State Vs Raj Kumar & Ors. Page 9 of 30 PS : Hauz Qazi till date he had not received the said amount.
22. PW18 HC Jeetpal is the police official who had apprehended the accused Raj Kumar in PO proceedings. He was arrested and brought at PS Krishna Nagar on 19.07.2008. PS : Hauz Qazi was informed about the arrest of the accused on 20.07.2008. The witness was cross examined by Ld. APP with the permission of the Court. During crossexamination the witness admitted the preparation of kalandara which is Ex. PW18/1.
23. PW19 Sushil Kumar Gupta is one of the victim. He has deposed that he had invested amount Rs.1,71,590/ in a committee run by accused persons. However, they did not return the money. He alongwith other investors had given statement to the police. He had also given an affidavit Ex.PW19/A.
24. PW20 Retd. SI Bihari Lal is one of the IO. He has formally arrested accused Raj Kumar after his arrest in PO proceedings vide memo Ex. PW20/A. Two days PC was taken. His disclosure statement was recorded, which is Ex. PW20/B. He had taken the affidavit from various victims. He prepared the challan and filed in the Court.
25. The witnesses were cross examined. The prosecution evidence was closed. Accused were examined U/s 313 Cr PC r/w Section 281 Cr. PC. The accused denied FIR No. 229/07 State Vs Raj Kumar & Ors. Page 10 of 30 PS : Hauz Qazi the incriminating evidence. They would state that they were falsely implicated and that they had not committed any such crime. Accused Raj Kumar would state that all the witnesses are interested witnesses. They are relatives of the wife of his son. On asking of wife of his son, they have falsely deposed against them. Accused Neena would also state similar. Accused Mahinder would state that the witnesses have deposed falsely against him. Earlier also they had filed false Criminal case under sEction 138 NI Act which was dismissed by the Court.
26. The accused did not lead any defence evidence. Therefore, matter was fixed for final arguments.
27. Ld. APP for the State would argue that the prosecution has proved its case beyond reasonable doubts. The identities of the accused persons have been established beyond reasonable doubts. The testimonies of the victims have proved beyond reasonable doubts that the accused persons, in furtherance of their common intention, had deceived the complainant and other victims and induced them to deliver money in the name of chit fund. it has also been proved that they had converted to their own use the hard earned money of the victims. Hence, all the ingredients of offences punishable under Section 406/420/34, IPC have been proved against the accused FIR No. 229/07 State Vs Raj Kumar & Ors. Page 11 of 30 PS : Hauz Qazi persons beyond reasonable doubts. The ingredients of the offence under Section 174A IPC has also been proved beyond reasonable doubts. Hence, it is prayed, the accused persons may be convicted.
28. Ld. Defence Counsel, on the other hand, would argue that the prosecution has failed to prove its case against any of the accused beyond reasonable doubts. There are various contradictions in the testimonies of the witnesses. The witnesses have failed to bring any evidence to prove that the accused had been running any chit fund company and that they had made any payment to the accused persons. All the witnesses are interested witnesses who have made false allegations against the accused persons to implicate them in collusion with the complainant. Their testimonies can not be believed. Further, the accused Raj Kumar was wrongly charged for offence punishable under Section 174A IPC. No publication of the process was ever done at the house of the accused and the Process Server had given a false report. Reasonable doubts have been raised on the case of the prosecution. Hence, it is prayed, the accused persons may be acquitted.
29. I have heard the rival submissions and carefully perused the material available on record.
FIR No. 229/07 State Vs Raj Kumar & Ors. Page 12 of 30PS : Hauz Qazi
30. 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.
31. Section 406, IPC provides punishment for committing offence of criminal breach of trust. Section 405 of the Code defines Criminal breach of trust as under:
"405. Criminal breach of trust.--Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits "criminal breach of trust".
"Explanation......"
32. In Chelloor Mankkal Narayan Ittiravi Nambudiri v. State of Travancore, Cochin AIR 1953 SC 478, Hon'ble Supreme Court of India has discussed the ingredients of the offence. It has held:
"to constitute an offence of criminal breach of trust, it is essential that the prosecution must prove first of all that the accused was entrusted with some property or with any dominion or power over it. It has to be established further that in respect of the property so entrusted, there was dishonest misappropriation or dishonest conversion or FIR No. 229/07 State Vs Raj Kumar & Ors. Page 13 of 30 PS : Hauz Qazi dishonest use or disposal in violation of a direction of law or legal contract, by the accused himself or by someone else which he willingly suffered to do. It follows almost axiomatically from this definition that the ownership or beneficial interest in the property in respect of which criminal breach of trust is alleged to have been committed, must be in some person other than the accused and the latter must hold it on account of some person or in some way for his benefit."?(emphasis supplied)
33. Hon'ble High Court of Delhi in Wolfgang Reim & Ors. vs State & Anr., Criminal M.C. No.1942 of 2004, decided on 2 July, 2012, has discussed the ingredients of the offence of criminal breach of trust as under:
"27. Sections 405 and 406 IPC defines the offence of "Criminal Breach of Trust". It is a well settled principle that before a person can be said to have committed criminal breach of trust within the meaning of Section 405 of IPC, it must be established that the accused was either entrusted with the property or entrusted with the dominion over the property which he is said to have converted to his own use or disposed off in violation of direction of law, etc. Further the petitioners herein were the Directors of the Joint Venture Company on behalf of the Draeger Group, one of the groups forming the joint venture.If that be so, they could not be said to be entrusted with the property in question or it could not be said that they were given dominion over the property as being the Directors, that was a natural thing to flow from the discharge of their duties. Accordingly, the petitioners cannot be charged for the offence under Section 405 IPC. As it FIR No. 229/07 State Vs Raj Kumar & Ors. Page 14 of 30 PS : Hauz Qazi is settled in the reported judgment of Ira Juneja (supra) that in the case of Joint Venture or Partnership, every partner has the dominion over the property by the reason of the fact that he is a partner. In Ira Juneja‟s case (supra) the following words are used: "The essential ingredients of the offence of criminal breach of trust are (1) entrustment with property or with any dominion over property and (2) dishonest misappropriation thereof. Partners of the firm do not hold property in trust for each other ............. In order to establish „entrustment of dominion‟ over property to an accused person the mere existence of that person‟s dominion over the property is not enough. It must be further shown that his dominion was the result of entrustment."
34. Section 420, IPC provides punishment for cheating and dishonestly inducing delivery of property. In order to constitute, offence under 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 FIR No. 229/07 State Vs Raj Kumar & Ors. Page 15 of 30 PS : Hauz Qazi property. Intention must be dishonest and there must also be mens rea.
35. Section 34, IPC provides that when a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.
36. In the present case, it has been alleged that the accused persons had been running chit funds and they had induced the complainant and other victims to invest their money in the said chit funds. They had taken the money from the victims. However they failed to pay the money to them as required under the chit fund.
37. First of all the question which comes to mind is 'what is a chit fund?' A Chit Fund is a saving scheme practiced in India. It is, in law, a contract between the subscribers and the foreman which provides that the subscribers shall subscribe a certain sum by periodical installments for a definite period. Each subscriber shall, in his turn, as determined by lot or auction or in such other agreed manner shall be entitled to the prize amount. The winning subscriber has to normally furnish security for the payment of the rest of the installments to the other FIR No. 229/07 State Vs Raj Kumar & Ors. Page 16 of 30 PS : Hauz Qazi members/chit group. There will be as many periodical installments as there are members. As there is mutuality of interest among the small number of subscribers to each chit fund, it constitutes a convenient instrument of combining savings and borrowings. The Chit Funds Act, 1982, regulates the chit funds. Section 2(b) of the Chit Fund Act, 1982 (hereinafter 'Chit Fund Act') defines a 'chit', as follows :
"Chit means a transaction whether called chit, chit fund, chitty, kuri or by any other name by or under which a person enters into an agreement with a specified number of persons that every one of them shall subscribe a certain sum of money (or a certain quantity of grain instead) by way of periodical installments over a definite period and that each such subscriber shall, in his turn, as determined by lot or by auction or by tender or in such other manner as may be specified in the chit agreement, be entitled to the prize amount".
38. The Act, interalia, provides for mandatory registration of chit fund companies, in addition to sanction with respect to each chit scheme individually. It also mandated a provision for minimum capital requirements for a company intending to organize a chit fund, written chit agreements between the foreman and the subscribers detailing their respective contractual obligations, and other similar regulations to protect investor's interest, FIR No. 229/07 State Vs Raj Kumar & Ors. Page 17 of 30 PS : Hauz Qazi apart from providing a selfcontained machinery for the settlement of disputes between a foreman and a subscriber by means of arbitration. As per the rules, a Chit fund company, in order to run business is required to first obtain a certificate of incorporation from the Registrar of Companies. Then the same needs to be registered with the Chit fund department of the government after compliance with the elaborate formalities including drawing up of bye laws and spot inspection by the registrar. As per the Scheme of things, therefore, in order to start and run a chit in Delhi, a prior registration is mandatory.
39. In the present case, as the record would reveal, there is no document on record to show that the accused persons had got registered any chit fund as provided under the law. The entire case of the prosecution is based on the assertion that the accused persons had been running unregistered chit fund.
40. As per the complaint Ex.PW2/A, total 13 persons were victims of the alleged offences. The prosecution has examined the victims to prove the allegations against the accused persons. Perusal of testimonies of the prosecution witnesses would show that their statements are not consistent about the dates when the committees started or date of monthly subscription or FIR No. 229/07 State Vs Raj Kumar & Ors. Page 18 of 30 PS : Hauz Qazi date of maturity or amount to be received on maturity.
41. In the present case, victim PW1 Naresh Chander has stated that he had invested Rs.3,09,745 in the committee of the accused persons and he had given Rs.30000 by way of cheque. However in cross examination, victim Naresh /PW1 has stated that he had invested amount of Rs.3,39,745 and he had given an amount of Rs.30000 to accused by cheque as a loan and he used to receive Rs.500/ monthly interest from the accused. The total amount stated by the PW1 in his examination in chief and in the crossexamination is contradictory. He has not brought the record of the payment made by him through cheque as contended. The witness has also not stated as to what was the monthly subscription of the chit and what was the duration of the committee. He has not deposed about the amount of each installment paid by him separately.
42. In the affidavits given to the IO during course of investigation by all the witnesses, they have stated about the starting date of chit fund, total amount, number of installments given, number of chits and total amount paid by them. However, none of them has stated as to how many subscribers were there in the committees and what was total duration of the committees. In the affidavits of FIR No. 229/07 State Vs Raj Kumar & Ors. Page 19 of 30 PS : Hauz Qazi Sushil Kumar, Harish Arora, Raj Kumari, Gopal Dass, Mahabeer Prasad, Naresh Chand Gupta, Vinod Kumar, Balbir Kumar & Jitender Kumar and Vikas Jain, it is stated that one committee started on 05.07.2005. However they have made contradictory averments regarding number of installments. Sushil Kumar, Vikas Jain, Rajkumari and Mahaveer Prasad have stated that they had paid 20 installments, however remaining have stated that they had paid 19 installments. It is difficult to believe that if all the victims are members of one committee, then how their paid installments were different.
43. Further, amount paid by Harish Arora for 19 installments was Rs.80,795/, however amount paid by Vinod Kumar for same chit for 19 installment was Rs. 95007/. This difference has remained unexplained. There is nothing on the record to show that these two witnesses had been mentioning two different chits. No such presumption can be raised by the Court in a Criminal case.
44. PW 17 Harish Arora has stated in his examination that he had invested a sum of Rs.2,96,000 in the committee. In the cross examination the witness has stated that his monthly income during the year 200506 was about Rs.7,000/ to 8,000/. He has stated that he was member of four committees at that time and he used to FIR No. 229/07 State Vs Raj Kumar & Ors. Page 20 of 30 PS : Hauz Qazi pay Rs. 20,000Rs. 25,000 per month as installment of those 4 committee. It is difficult to believe that a person earning only Rs.6000 or 7000 per month would be able to invest Rs.2000025000 in committee. He has not produced any document to show that any payment was made or that he was a member of any committee alleged to be run by the accused.
45. PW12 Rajkumari has stated that she had invested Rs. 175000/ in the committees and she had deposited two installments on 1st and 5th of the month of February 2007. As per PW 12, she had invested in two committees and the total investment of both committees was Rs.1,75,000/. However as per affidavit given by Raj Kumari to the IO, she had given only an amount of Rs. 1,65,937/. She has also stated in evidence that one committee was of Rs. 1 Lacs and another committee was of Rs.2 Lacs. However as per affidavit Ex.PW12/B, she had invested in two committees of Rs. 1 Lacs each.
46. Similarly, PW6 Satpal Gupta has stated in examination in chief that in the month of February 2006, he again gave a total amount of Rs. 75,000/ out of committee of Rs. 1 Lacs. As per statement of PW6 the amount of Rs.75,000/ was given in one go and not in installments. However in affidavit Ex.PW6/D1, given to FIR No. 229/07 State Vs Raj Kumar & Ors. Page 21 of 30 PS : Hauz Qazi the IO during investigation, he has stated that he had given amount in installments towards two committees of Rs. 1 Lacs and Rs.60,000/.
47. PW10 Mahavir Prasad has stated in examination in chief that he had deposited total amount of Rs.2,75,000/ in the chit fund committee run by the accused. However in affidavit Ex.PW10/A, given to the IO during investigation, he has stated that he had given total amount of Rs.3,73,225/ in the chits.
48. PW14 Jitender has stated in the examination that he had invested in two committee run by the accused, one committee of Rs.5000 per month for total amount of Rs. one lakh and another committee of Rs.10000 per month for a total amount of Rs. 2 lac. In the examination, his brother / PW3 Balbir has stated that he was a member of four committees. Thus as per statement made in examination in chief by Jitender and Balbir, they were member of total 6 committees. However in the common affidavit of Jitender and his brother Balbir Exhibit P1, they have stated that they were members of 8 chits.
49. PW4 Vinod Kumar has stated that he was a member of one committee and he had invested total Rs. 1 Lacs in the committee. He has further stated that he along with 12 members of said committee filed the complaint FIR No. 229/07 State Vs Raj Kumar & Ors. Page 22 of 30 PS : Hauz Qazi when accused fled away with the money. As per examinationinchief of PW4 there were total 13 members in the committee of Rs. 1 Lacs of which he was also a member. However in the affidavit, PW4 Vinod has stated that he was member of total 5 committees and he had invested a total sum of Rs. 3,42,080/ in the chit fund alleged to had been run by the accused.
50. In the examination, PW5 Vikas has stated that he was member of 2 committees and total amount invested by him in two committees was Rs. 1,71,000/. However he has stated in the cross examination that he used to maintain record of the amount invested in the committee and he had given affidavit to the IO. He has admitted that his name was not mentioned in the complaint which was filed by other members of the committee. He has also admitted that he had told to the police that he had not invested in any committee of the accused.
51. PW7 Deepak Gupta has stated that he was member of five committees. One committee was of 1st day of month, two committees were of 5th day of month and remaining two committees were of 10th day of month. He has also stated that he had put Rs. 4,05,000 in the aforesaid committees. In the crossexamination, the FIR No. 229/07 State Vs Raj Kumar & Ors. Page 23 of 30 PS : Hauz Qazi witness is not able to tell the month or year of commencement of the committees. He is also not able to tell the amount of the committee payable on 1 st or 5th or 10th of the month. He also did not remember the amount to be paid to him on maturity to each committee. He also did not remember the amount which he had given against the committees.
52. Perusal of the record would show that none of the prosecution witness has produced even a single document to show that the payment was made to accused Rajkumar or Mahendra or Neena at any point of time. The victims have also not produced any document to show that any such committee was run by the accused persons. The contradictions in the statements of the witnesses are material which create reasonable doubts over their allegations that they had invested any amount in committee run by the accused.
53. In the present case, surprisingly all prosecution witnesses have not stated about their monthly subscription for the committees alleged to be run by accused persons or number of subscribers or total maturity period. Mere vague allegations of the complainants without any positive proof is not sufficient to show that accused persons were running chit fund and that the FIR No. 229/07 State Vs Raj Kumar & Ors. Page 24 of 30 PS : Hauz Qazi complainants were members of chit fund. The testimonies of the witnesses gives impression that the accused persons had been running a lot of chits at the same time. It is highly unbelievable that there would not even be a single document created by the accused persons or the victims during transactions of alleged chits.
54. The accused persons can not be asked to bring negative evidence to show that they were not running any chit fund business and they had not taken any money from any of the complainant. No such evidence is possible to be produced. It was for the prosecution to prove beyond reasonable doubts that the accused persons had been running chit funds as alleged and further that the victims had invested their money in those chits. Mere self serving statements of the witnesses can not considered as sufficient evidence to prove these facts beyond reasonable doubts. The accused persons can not be convicted on the basis of conjectures and surmises. The nature of the transaction in question is such that it was easily possible for the victims to have some documentary evidence in support of their claims raised before the Court. However, none of the prosecution witness has been able to prove that he had made payment to the accused persons. Further, there is nothing on Court record to prove beyond FIR No. 229/07 State Vs Raj Kumar & Ors. Page 25 of 30 PS : Hauz Qazi reasonable doubts that the accused persons had deceived the complainant or any other person in any manner inducing them to deposit any money with the accused persons. Benefit of doubts is to be given to the accused persons as per law.
55. Accused Raj Kumar has also been charged with offence punishable under Section 174A IPC.
56. Section 174A of the Indian Penal Code, reads as under:
"174A. Nonappearance in response to a proclamation under section 82 of Act 2 of 1974.Whoever fails to appear at the specified place and the specified time as required by a proclamation published under subsection (1) of section 82 of the Code of Criminal Procedure, 1973 shall be punished with imprisonment for a term which may extend to three years or with fine or with both, and where a declaration has been made under subsection (4) of that section pronouncing him as a proclaimed offender, he shall be punished with imprisonment for a term which may extend to seven years and shall also be liable to fine."
57. Thus, the law is clear that to hold a person guilty of offence punishable under Section 174A of the Indian Penal Code, it is sine qua non that he must have been failed to appear at the specified place and the specified time as required by a proclamation published FIR No. 229/07 State Vs Raj Kumar & Ors. Page 26 of 30 PS : Hauz Qazi under subsection (1) of section 82 of Cr.P.C. Subsection (1) of section 82 of Cr.P.C. reads as follows:
"(1) If any Court has reason to believe (whether after taking evidence or not) that any person against whom a warrant has been issued by it has absconded or is concealing himself so that such warrant cannot be executed, such Court may publish a written proclamation requiring him to appear at a specified place and at a specified time not less than thirty days from the date of publishing such proclamation."
(emphasis added)
58. Further subsection (2) of section 82 of Cr.P.C., prescribes the manner in which the proclamation under subsection (1) of section 82 of Cr.P.C. is to be published. It reads as follows:
"(2) The proclamation shall be published as follows:
"(i) (a) It shall be publicly read in some conspicuous place of the town or village in which such person ordinarily resides; "(b) It shall be affixed to some conspicuous part of the house or homestead in which such person ordinarily resides or to some conspicuous place of such town or village;
"(c) A copy thereof shall be affixed to some conspicuous part of the Court house; "(ii) The Court may also, if it thinks fit, direct a copy of the proclamation to be published in a daily newspaper circulating in the place in which such person ordinarily resides." (emphasis added) FIR No. 229/07 State Vs Raj Kumar & Ors. Page 27 of 30 PS : Hauz Qazi
59. In the present case, the Court record would reveal that vide order dated 09.07.2007, NBWs were issued by Ld. Predecessor against the accused persons returnable for 31.08.2007. Vide order dated 14.09.2007 fresh NBWs were directed to be issued against accused Raj Kumar. Vide order dated 20.09.2007 Process under Section 82 Cr.PC was directed to be issued against accused Raj Kumar. Again vide order dated 03.12.2007 same process was directed to be issued against accused which was returnable for 23.02.2008. The process was returned to the Court. Statement of the Process Server was recorded on 04.03.2008. it was recorded in the statement that accused was not traceable at the given address. Thereafter, copy was pasted on the given address and one copy was also pasted on the notice board of the Court.
60. The process under Section 82 Cr.P.C., is shown to be executed by SI Sombir, No. D/3967, PS Hauz Qazi on 03.12.2007. The said proclamation in writing has not been tendered in evidence by the prosecution. The Process Server did not appear in the Court as a witness to prove the said publication. Thus the accused did not get an opportunity to crossexamine the said Process Server. The Process Server is stated to have expired. In these circumstances, the accused is entitled to benefit of doubt FIR No. 229/07 State Vs Raj Kumar & Ors. Page 28 of 30 PS : Hauz Qazi regarding the publication of the Proclamation.
61. Be that as it may, even if the proceedings conducted by the Process Server are considered to be done by him in discharge of his official duty, I am of the considered opinion that the Proclamation was not published as provided under Section 82 Cr.P.C. Perusal of the Statement of the Process Server SI Sombir recorded on 04.03.2008 in the Court would show that he had pasted a copy of the process at the given address and another copy was pasted on the notice board of the Court. However, the process server did not pronounce the proclamation in the area publically as provided under Section 82(2)(i)(a) Cr.P.C. Thus, one of the requirement of Section 82 Cr.P.C., for declaring the accused absconder necessary for prosecution under Section 174A IPC was not complied with. Therefore, it can not be said that the proclamation was published as provided under the law. It is the basic principle of law long settled that if the manner of doing a particular act is prescribed under any statute, the act must be done in that manner or not at all [(see: Babu Verghese v. Bar Council of Kerala, (1999) 3 SCC 422, Nazir Ahmad v. King Emporer, AIR 1936 Privy Council 253 and Taylor v. Taylor, (1875) 1 Ch D 426].
62. In the present case the proclamation under FIR No. 229/07 State Vs Raj Kumar & Ors. Page 29 of 30 PS : Hauz Qazi Section 82 of Cr.P.C. against the accused was not published as per law. Therefore, the prosecution has failed to prove its case against the accused. In such circumstances, I am of the opinion that the accused can not be held guilty of an offence punishable under Section 174A IPC.
63. In the light of the discussions hereinabove, I hold that the prosecution has failed to prove ingredients of any of the offence against any of the accused beyond reasonable doubts. The benefit of doubts is given to the accused persons as per law. They are acquitted.
64. The accused have already furnished bonds under Section 437A, with one surety along with photographs and copies of address proof.
Pronounced in the open Court on (Dinesh Kumar) this 5th day of September, 2018. MM08 (Central) Tis Hazari Courts, Delhi.
FIR No. 229/07 State Vs Raj Kumar & Ors. Page 30 of 30PS : Hauz Qazi