Delhi District Court
State vs . Krishan Kumar Sharma on 4 August, 2018
IN THE COURT OF MS SHEFALI BARNALA TANDON, MM-6 (C), TIS HAZARI
COURT, DELHI.
FIR No.133/2009
U/s. : 408 IPC
P.S. : Civil Lines
State Vs. Krishan Kumar Sharma
JUDGMENT
1. CIS number of the case : 302157-2016
2. CNR number of the case : DLCT02-001028-2010
3. The date of commission of offence : 24.06.2009
4. The name of the complainant : Sh. M.K. Gupta
5. The name & parentage of accused : Krishan Kumar Sharma
S/o Sh. Dharampal Sharma
R/o Village Behlba, PS Meham,
District Rohtak, Haryana.
Presently residing at Village and
Post Office Pehlva, District
Rohtak, Haryana.
6. Offence under which charge has been : 408 IPC
framed
7. The plea of accused : Pleaded not guilty
8. Final order : Acquitted of charge
U/s 408 IPC
Date of Institution : 10.06.2010
Judgment reserved on : 02.08.2018
Judgment announced on: 04.08.2018
FIR No.133/2019 State Vs. Krishan Kumar Sharma 1 of 10
PS Civil Lines
STATEMENT OF THE REASONS FOR THE DECISION :-
1. Briefly stated, the facts of the case as unfolded from the charge- sheet are that on 24.06.2009, at H.No.21C, Alipur Road, Civil Lines, Delhi, accused, being the employee of the complainant namely Sh. M.K.Gupta, was entrusted Rs.75,000/- by his wife Smt. Lalita Gupta to deposit the said amount in the bank but accused did not deposit the said amount in the bank of the complainant and misappropriated the said cash. On the basis of statement given by the complainant, the present FIR U/s 408 IPC against accused was registered at PS Civil Lines. On conclusion of the investigation, the present challan under the aforesaid section was filed by the IO, PS Civil Lines.
2. The copy of charge-sheet as well as its annexures were supplied to the accused in compliance of Section 207 Code of Criminal Procedure (hereinafter called as Cr.P.C.) and charge for the offence U/s 408 IPC framed against accused by the Ld. Predecessor of the Court vide order dated 06.05.2011 to which he pleaded not guilty and claimed trial.
3. The prosecution was thereafter given opportunity to prove the accusation against the accused and examined all the nine witnesses. Relevant portion of testimony of witnesses is discussed below:-
4. PW-1 Sh. M.P. Gupta (Complainant) deposed that accused K.K. Sharma was his employee since 2009 and he runs a transport business under the name and style M/s CTO Carriers Ltd. at Vijay Nagar, Delhi. Job profile/duty of the accused was to collect the payments from the clients from different parts of Delhi and also used to do field duties as and when assigned. Apart from the accused, there were some other employees. Accused used to hand over the payment received from clients in the late hours at his residence at 21C Alipur FIR No.133/2019 State Vs. Krishan Kumar Sharma 2 of 10 PS Civil Lines Road, Civil Lines Delhi. On 23.06.2009, the payment of Rs. 75,000/- which was collected from the clients was lying with his wife Smt. Lalita Gupta and he instructed his wife telephonically to hand over the said payment/collection to the accused so that the said amount can he deposited with his accountant/ cashier namely Navneet Aggarwal. He also telephonically instructed his wife to hand over the said payment/ collection to the accused, as he went out of Delhi in the morning of 24.06.2009 for the purpose of some official work. As per instruction, on 24.06.2009, at about 11.30 AM, his wife Lalita Gupta in the presence of his friend Arun Kaushik and his son Mohit Gupta, handed over the said amount i.e. Rs.75,000/- to the accused with direction to him to deposit the same with his accountant/cashier namely Navneet Aggarwal on the same very day. On that day in the evening, when he inquired from his cashier Navneet Aggarwal whether he had received the said amount from accused or not, he came to know that he had not received any such amount/payment from accused and also came to know that accused did not go to the office for the whole day. He further deposed that he tried to contact the accused on his mobile number but the same was found switched off. Despite his best efforts, they could not succeed to trace the accused. Thus, accused misappropriated Rs.75,000/-. He himself visited at the local address of accused at Rajiv Nagar, Niwaspur but accused was not found there. He also sent his employee at the native village Rohtak of the accused but accused was neither found at his local address nor at his native village. Thereafter, he got lodged a complaint against accused on 02.07.2009 and again he filed another complaint on 13.08.2009 on which FIR was registered, the same is proved as Ex. PW1/A. On 10.10.2009, police prepared the site plan at his instance. On 13.12.2009, accused was arrested at his instance and his personal search was also got conducted vide arrest memo and personal search memo Ex.PW1/B and Ex.PW1/C respectively. During investigation, his employee also handed over the photocopy of attendance record/ register of the accused proved FIR No.133/2019 State Vs. Krishan Kumar Sharma 3 of 10 PS Civil Lines as Ex.PW1/E to Ex.PW1/G as well as photocopy of cash book showing the payments received from the customers as well as the memorandum of articles of their company to the IO. He produced the original salary voucher of the accused of the month of April, May and June, 2009 proved as Ex.PW1/D (OSR), original cash book showing the receipt of payment proved as Ex.PW1/H (OSR) and memorandum of association proved as Ex.PW1/I (OSR).
5. PW-2 HC Ishwar Singh proved the present FIR as Ex.PW2/A and endorsement on rukka as Ex.PW2/B, being Duty Officer.
6. PW-3 Sh. Mohit Gupta deposed that on 24.06.2009, his mother Smt. Lalita Gupta handed over a sum of Rs.75,000/- to the accused Krishan Kumar Sharma to deposit the said amount in their office i.e CTO Carriers Ltd., G-17, Vijay Nagar, Delhi-09. Accused was present and correctly identified by him in the Court that day. Accused took the payment from his mother in his presence as well as in the presence of his uncle Arun Kaushik, but he did not deposit the said amount in their office, and thereafter, he did not turn up. The accused was employee in their office and he used to collect payments from their regular customers and if it is late hours, then he handed over the money to his mother at their residence i.e. at Civil Lines and on the next day, he used to take the payment from his residence and then deposited the same in the office. But, in this case after receiving the payment, he has not deposited the same and he took away the money and did not turn up. The payment in question of this case was collected by the accused from their dealers at Lajpat Rai Market on 23.06.2009 and as it was late hours, therefore he handed over the said payment to his mother at his residence. Later-on, police recorded his statement.
7. PW-4 Smt. Lalita Gupta deposed that in the year 2009, accused FIR No.133/2019 State Vs. Krishan Kumar Sharma 4 of 10 PS Civil Lines was their employee. Accused was present and correctly identified by her in the court that day. On 23.06.2009, accused handed over the said amount to her in between 8/ 9:00 PM at her residence which he collected from customers/client. On the next day, 24.06.2009, in the morning, she handed over the said money to the accused for depositing the same in their office but in the evening, she came to know from her husband that amount was not delivered by accused as per the direction and took away the same.
8. PW-5 Sh. Arun Kaushik deposed that on 24.06.2009, at around 11:00 AM, he was present in the house of his family friend Shri M.K.Gupta at his residence 21C, Alipur Road, Civil Lines. He was sitting in the bedroom of Mr. Gupta and in the meanwhile, accused came there to collect some money. Accused was present and correctly identified in the court by him on that day. In his presence, Ms. Lalita Gupta handed over Rs.75,000/- to the accused in his presence for delivering the same to their office.
9. PW-6 Sh. Shal Suman deposed that he has been working with CTO Carier Ltd. since 24.06.2009. Accused was present and correctly identified by him in the court that day. He handed over the photocopy of salary slip of the accused for the month of May to the IO. IO took into possession the said salary slip vide seizure memo proved as Ex.PW6/A. The photocopy of said salary slip already proved as Ex.PW1/D. After 24.06.2009, accused did not return at the office. Police officer recorded his statement in this regard.
10. PW-7 Sh. Navneet Aggarwal deposed that he was working as Accountant in CTO Carrier Ltd. and also looking the work of Administration. On 24.06.2009, complainant/ Sh M. K Gupta informed him that accused had collected Rs.75,000/- from his house and would deposit the same in the office.
FIR No.133/2019 State Vs. Krishan Kumar Sharma 5 of 10 PS Civil Lines Accused did not hand over the said amount on 24.06.2009 and also did not come to the office on that day and thereafter, he handed over the copy of attendance sheet showing accused as an employee which was taken into possession vide seizure memo proved as Ex.PW7/A and the copy of attendance sheet already as Ex.PW1/E and PW1/G respectively. He also handed over copy of cashbook and memorandum of article vide seizure memo Ex. PW7/B which were already proved Ex PW1/H and PW1/I respectively.
11. PW-8 HC Padam Singh deposed that in the year 2009, he was posted at PS Civil Lines as Constable. On 30.12.2009, he joined the investigation of the present case with SI Bhoop Singh and on that day, accused was arrested by the IO in the PS vide arrest memo Ex.PW1/B and personal search was also got conducted vide memo Ex. PW1/C. Accused made disclosure statement proved as Ex.PW8/A. He correctly identified accused, present in the court that day.
12. PW-9 Retired IO SI Bhup Singh deposed that one written complaint proved as Ex.PW1/A of M. K.Gupta was received at PS Civil Lines on 17.08.2009 and the same was assigned to him by the then SHO. He made preliminary inquiry and thereafter on 10.09.2009, he made endorsement proved as Ex.PW9/A and got the case registered on the complaint. After FIR, he made inquiry from complainant M.K.Gupta and recorded his statement and prepared the site plan proved as Ex.PW9/B. During inquiry, he visited the address of accused i.e. at Rajiv Nagar Libaspur, Delhi given by MK Gupta alongwith Ct. Padam Singh and complainant where he made inquiry from accused and gave the notice and call him at the police station. That after receiving the notice, accused went to PS where he was interrogated and arrested vide arrest memo Ex.PW1/B. Personal search of the accused was also got conducted vide memo proved as Ex.PW1/C. FIR No.133/2019 State Vs. Krishan Kumar Sharma 6 of 10 PS Civil Lines That Suman Prakash handed over him photocopy of salary voucher dated 08.06.2009 and seized the same vide memo proved as Ex PW6/A. Salary voucher proved as Ex. PW1/D. Navneet, Accountant also handed over him copy of attendance register of April, May and June which were seized. Navneet Aggarwal also handed over him copy of articles and memorandum of company which were seized vide memo already proved as Ex.PW7/B. He recorded the statement of witnesses. After completion of the investigation, charge-sheet was prepared and filed.
Afterwards, PE was closed.
13. Accused was examined U/s. 313 Cr.PC, wherein all the incriminating evidence on record alongwith documents were put to him to which he stated that he left the job from M/s CTO Carrier Ltd. on 26.05.2009 as the complainant removed him from services. He further stated that he has been falsely implicated in the present matter. The documents proved eon record i.e. salary voucher, attendance register and memorandum of association have been forged and manipulated by the complainant. Further, no offence as alleged, has been committed by him as on 01.06.2009, he joined another company namely M/s DRS Logistic Pvt. Ltd. and out of personal vendetta, complainant implicated him in the present matter as he had filed a case before Labour Court for recovery of his salary, which was due from complainant. The said case was settled and complainant paid him salary till 26.05.2009 only.
Accused opted to lead evidence in his defence and examined two witnesses in defence including himself as DW-1.
14. DW-1 Krishan Kumar Sharma deposed that he was working with M/s CTO Carriers Ltd. From 1990 to 26.05.2009 as a Field Worker. On 24.05.2009, when he asked his gratuity from his employer, he started using filthy FIR No.133/2019 State Vs. Krishan Kumar Sharma 7 of 10 PS Civil Lines language towards him and he refused to give his gratuity and other benefits to him. On 26.05.2009, he did not allow him to work and asked him not to enter in his office in future. On the same, he joined another company i.e. M/s DRS Logistic Pvt. Ltd. On 01.06.2009, vide his application dated 28.05.2009. Photocopy of his said application alongwith Guarantee Letter, offer letter, all dated28.05.2009 collectively marked as Mark-A. The photocopy of his appointment letter dated 01.06.2009 with M/s DRS Logistic Pvt. Ltd proved as Mark-B. The duty attested copy of attendance register for the month of June 2009 to December, 2009 of M/s DRS Logistic Pvt. Ltd. proved as Ex.DW1/1. The letter dated 05.02.2012 in respect of early increment with promotion issued by M/s DRS Logistic Pvt. Ltd. in his favour exhibited as DW1/2 while the appreciation letter dated 23.09.2011 proved as Ex.DW1/3. The certificate dated 01.07.2012 issued by M/s DRS Logistic Pvt. Ltd in his favour towards his hard work proved as Ex.DW1/4. The duly certified copy of his bank statement in which his salay was sent by M/s DRS Logistic Pvt. Ltd proved as Ex.DW1/5. He filed a petition before the Commissioner, Workmen Compensation with respect to his salary upto 26.05.2009 from M/s CTO Carriers Ltd. and the same was settled by the CTO Carriers and paid the settled amount of Rs.12,000/- with respect to his salary w.e.f. 1 st April, 2009 to 26.05.2009 through cheque. The certified copy of the order/ settlement dated 18.03.2010 in this respect proved as Ex.DW1/6. He is innocent and has been falsely implicated in the present matter by the complainant as he joined the another company I.e. M/s DRS Logistic Pvt. Ltd and the complainant was forcing him to leave the said company, otherwise he would implicate him in a false case.
15. DW-2 Sh. Prabhat Kumar (DGM, Aggarwal Packers & Movers Ltd.) proved the service record of accused which includes certified copy of his appointment letters, offer letter, bio data, application form, salary sheet, FIR No.133/2019 State Vs. Krishan Kumar Sharma 8 of 10 PS Civil Lines guarantee letter and attendance sheets as DW2/A. Thereafter, DE was closed.
16. Final arguments have been heard on behalf of prosecution as well as accused, during which, Ld. Defence Counsel has submitted that accused was not under employment of complainant on alleged date of offence. Further, there has been delay in lodging the present complaint which is nothing but an afterthought and as a counter blast to the recovery petition filed by the accused before Labour Court against the complainant. The entire record has been carefully perused.
17. It is the case of the prosecution that while the accused was under
employment of the complainant, he committed criminal breach of trust by misappropriating the sum of Rs.75,000/-, which was given to him to be handed over in the office to the Accountant. Hence, the first and foremost ingredient to be fulfilled by the prosecution is the employment of the accused under the complainant on the alleged date of incident and entrustment of alleged amount to him as such servant/ employee.
18. The prosecution witnesses have categorically deposed on oath that on 24.06.2009, the accused was handed over a sum of Rs.75,000/- by the wife of complainant, upon his instructions, in presence of his son and friend at complainant's house. In order to prove that the accused was complainant's employee at the alleged date of incident, prosecution has proved on record salary slip of accused as Ex.PW1/D, however, as per PW-6 the salary slip for month of May, which was seized by the IO and not of June, 2009.
19. The accused in his defence has proved on record the documents Ex.DW2/1 which shows that he joined another company i.e. M/s DRS Logistic FIR No.133/2019 State Vs. Krishan Kumar Sharma 9 of 10 PS Civil Lines Pvt. Ltd. on 01.06.2009 and he was in their continuous employment for the entire month of June, 2009. Further, accused has proved on record, the order of Labour Court as Ex.DW1/1 wherein the settlement has been arrived between accused and complainant and accordingly, complainant paid arrears of salary of accused from 01.04.2009 to 26.05.2009. In his cross-examination as DW-1, accused also admitted that he received the settlement amount through cheque.
20. Hence, as per record, the accused was under employment of M/s DRS Logistic Pvt. Ltd. during the period of June, 2009, therefore, the question of entrustment of cash of Rs.75,000/- on behalf of complainant as an employee is doubtful. There has been delay in making complaint to the police which seems to be an afterthought and personal vendetta cannot be rule dout in the present matter considering the facts and circumstances.
21. The cardinal principle of the criminal law is that the accused is presumed to be innocent till he is proved guilty, beyond any reasonable doubt. The burden of proving the guilt of the accused, exclusively lies on the prosecution and the prosecution is required to stand on its own legs. The benefit of doubt, if any, must go in favour of the accused.
22. With this background, it is held that in the present case the evidence put forward by prosecution on the record is not at all sufficient to hold the accused guilty of the charge beyond reasonable doubt. Accordingly, accused Krishan Kumar Sharma is acquitted for the offence U/s 408 IPC. Announced and dictated in the open Court today i.e. On 04.08.2018 (Shefali Barnala Tandon) MM-06, Central, Tis Hazari Court, Delhi All pages are duly signed.
FIR No.133/2019 State Vs. Krishan Kumar Sharma 10 of 10 PS Civil Lines