Delhi District Court
11. In This Regard, I Also Rely Upon The ... vs The State on 23 December, 2011
IN THE COURT OF SH. SUDESH KUMAR
METROPOLITAN MAGISTRATE, NEW DELHI DISTRICT:
PATIALA HOUSE COURTS: DELHI
FIR NO.: 208 of 2001
POLICE STATION: CHANAKAYA PURI
U/S: 420/468/471/511/120 B IPC
IN THE MATTER OF
STATE
VS
JAGMOHAN ETC.
(i) Jagmohan Jalhan
S/o Late Sh. Hari Parkash
R/o House No. 71, Gurdeep Nagar, Garha Road, Jallandhar, Punjab
(ii) Happy Chopra
S/o Late Sh. Yaga Dutt Chopra
R/o Mohalla Wadda Wahela, Sultan Pur, Lodhi Kapurthala, Punjab
Date of institution:20.01.2003
Date of reserving judgement/Order:23.12.2011
FIR NO.: 208 of 2001
POLICE STATION: CHANAKAYA PURI
U/S: 420/468/471/511/120 B IPC 1 of 11
Date of Pronouncement of Judgement/Order:23.12.2011
Brief statement of reasons for such decisions :
1.The present FIR has been registered on the complaint dated 13.06.2001 filed by the complainant Mr. Mark Polatajko, Entry Clearance Officer, UK Embassy, New Delhi. It is alleged that on 13.06.01 at Visa Section, British High Commission, Chanakaya Puri, New Delhi, the accused attempted to cheat the said High Commission for procuring visa for himself on the basis of false and fabricated documents mentioned in the complaint Mark X and he knowingly used the said forged document as genuine.
On the basis of the complaint, the present FIR No. 208/01 PS Chanakaya Puri was registered. Investigations were conducted and thereafter, chargesheet in the present matter was filed by IO u/s 420/468/471/511/120 B IPC against both the accused namely Jagmohan and Happy Chopra.
2. The accused Happy Chopra during the trial was declared PO by my Ld. Predecessor vide order dated 07.05.2008. After supplying copies, a charge for the offences U/s 420/511 IPC and 471 IPC was settled against the accused Jagmohan by my Ld. Predecessor on 25.07.2008 to which the accused pleaded not guilty and claimed trial. Thereafter, the matter was posted for prosecution evidence.
3. In order to prove its case, prosecution has examined as many as 8 witnesses.
(i) The prosecution has examined SI Ajit Kumar as PW 1 who was duty officer on the date of incident i.e. 13.06.2001. He proved on record the present FIR as Ex.
PW 1/A and also identified his signature's on the same at point A. FIR NO.: 208 of 2001 POLICE STATION: CHANAKAYA PURI U/S: 420/468/471/511/120 B IPC 2 of 11
(ii) The prosecution has examined Mr. Avdesh Kumar Aggarwal as PW 2. He deposed (on oath) that on 06.11.2001, he was working as Senior Manager with PNB, RO, Jhallandhar. On that day, he wrote a letter to SI Narpal Singh of PS Chanakaya Puri wherein he had informed that the FDR, certificate and the passbook which he had sent for verification, the verification could not be ascertained as there was no branch stamp on the said documents. He proved the FDR as mark Q2, the certificate mark as Q3 and the passbook as EX. P1.
The witness was not cross examined by Mr. Dhananjay Puri, Defence Counsel for accused Jagmohan despite opportunity being given.
(iii) The prosecution has examined Sh. Vishal Bhalla as PW 3 who stated that his name was Vishal and not Vikas as mentioned in some of the documents. He was a sub contractor by profession. On 21.11.2001, he alongwith Mr. Happy Chopra (P.O.) came to Delhi where IO had interrogated him and then he was arrested and his personal search was conducted vide memo EX. PW 3/A and EX. PW 3/B. He identified his signature's on the same at point A respectively. He stated that IO had recorded his statement.
The witness was not cross examined by Mr. Dhananjay Puri, Defence Counsel for accused Jagmohan despite opportunity being given.
(iv) The prosecution has examined Sh. Kamal Kishor as PW 4. He stated that he was a businessman. On 16.06.2001, police came to the house of Happy Chopra searched his house, however, nothing incriminating was recovered. His statement was recorded.
The witness was not cross examined by Mr. Dhananjay Puri, Defence Counsel for accused Jagmohan despite opportunity being given.
(v) The prosecution has examined Sh. Sanjeev Chopra as PW 5. He deposed that he was doing private job. On 16.06.2001, police came to the house of Happy FIR NO.: 208 of 2001 POLICE STATION: CHANAKAYA PURI U/S: 420/468/471/511/120 B IPC 3 of 11 Chopra who was declared PO in the matter and was his younger brother and searched his house vide memo EX. PW 5/A bearing his signature's at point A. He further stated that nothing incriminating was recovered and police recorded his statement.
The witness was not cross examined by Mr. Dhananjay Puri, Defence Counsel for accused Jagmohan despite opportunity being given.
(vi) The prosecution has examined HC Suresh Kumar as PW 6 who deposed that on 14.06.2001, he was posted at PS Chanakaya Puri. On that day at about 06.15 PM he made a departure entry in the PS as he had to go to Jhallandhar alongwith IO in search of accused Jaghmohan. They were in the process of leaving the PS. At about 07.15 PM, IO received a telephone call from one Mr. Hari Singh who had given the information that accused Jaghmohan was present near Safdarjung Tomb, therefore, he alongwith IO and Ct. Saroj Mishra went to Safdarjung Tomb, where they saw Jagmohan was coming out from the Tomb. They ran and apprehended him and he was brought to the PS. IO recorded his statement. Then they did not went to Jhallandhar. He identified the accused present in the court. He has stated that accused was arrested vide memo Ex. PW 6/A bearing his signature's at point A. The witness was not cross examined by accused Jagmohan despite opportunity being given.
(vii) The prosecution has examined SI Sudhir Kumar as PW 7 who has stated that on 14.06.2001, he was posted at PS Chanakaya Puri as SI on that day it came to his notice that the accused Jagmohan Singh has escaped from the custody, therefore, to search him a team was formed consisting of himself and IO of the present case. In search of the accused, he reached at Ajit Taxi Stand, Defence Colony, where he met Hari Singh, relative of the accused. There Hari Singh received a telephonic call from accused Jagmohan Singh that he was having no money and he was at Safdarjung Petrol Pump. He FIR NO.: 208 of 2001 POLICE STATION: CHANAKAYA PURI U/S: 420/468/471/511/120 B IPC 4 of 11 immediately shared the information with the IO and later on he also reached Safdarjung Petol Pump, from where the accused was apprehended. The IO recorded his statement. He identified the accused Jagmohan Singh present in the court.
In his cross examination by Mr. Dhananjay Puri, Ld. Counsel for the accused, the witness denied the suggestion that he was deposing falsely.
(viii) The prosecution has examined SI Narpal Singh as PW 8. He deposed (as recorded) that on 13.06.2001, he was posted at PS Chanakaya Puri as SI and on that day, he alongwith Ct. Surender was on patrolling in the area of PS Chanakaya Puri. At about 01.30 PM, when they reached near U.K. Embassy Visa Gate, Mr. Mark Poltaljko entry clearance Officer of U.K. Embassy met him there, who handed over a complaint alongwith documents and accused Jagmohan. He endorsed Ex. PW 8/A bearing his signature's at point A on this complaint and sent Ct. Surender to PS for registration of the case. He got the case registered and the witness carried out the investigation. He further deposed that he arrested the accused Jagmohan Jallan and later on during investigation accused Happy Chopra was also arrested on 21.11.2001. The witness prepared the personal search memo Ex. PW 8/C, arrest memo Ex. PW 8/B, recorded the disclosure statement of accused Ex. PW 8/D, all memos bearing his signatures at point A respectively. He had also taken the specimen signature of accused Jagmohan Jallan and Happy Chopra vide memo Ex. PW 8/E and 8/F bearing his signature at point A. He prepared the subsequent arrest memo of accused Jagmohan Jallan, which was already Ex. PW 6/A bearing his signature at point B. Subsequent personal search of accused Jagmohan was Ex. PW 8/G bearing his signature at point A. He prepared the arrest memo of accused Happy Chopra which was already Ex. PW 3/A bearing his signature's at point B. He recorded the disclosure statement of accused Happy Chopra and the same was Ex. PW 8/H. He also conducted house search of accused Happy Chopra vide memo already FIR NO.: 208 of 2001 POLICE STATION: CHANAKAYA PURI U/S: 420/468/471/511/120 B IPC 5 of 11 Ex. 5/A bearing his signatures at point A. During investigation, he sent the specimen to FSL Hyderabad and passport of accused Jagmohan Jallan was got verified from RPO Jhallandhar. He also verified the bank documents from Punjab National Bank. He also prepared the personal search memo of accused Happy Chopra, which was already Ex. PW 3/B bearing his signature's at point B. He obtained specimen signatures / handwriting of accused Jagmohan and Happy Chopra running into pages mark S1 to S21 collectively Ex. PW 8/I all bearing his signature at point A. After completion of the investigation, he prepared the chargesheet and sent the same to the court for trial. He identified the accused Jagmohan present in the court.
In his cross examination by Mr. Dhananjay Puri, Ld. Counsel for the accused, he denied the suggestion that this was a proforma case. He denied the suggestion that the accused was not handed over to him by the concerned Embassy. He denied the suggestion that the Embassy did not lodge any formal complaint. He denied the suggestion that the Embassy did not ask for any criminal proceedings against the accursed or that he was deposing falsely.
4. No other PW was examined by prosecution despite ample opportunities being given. PE was closed and matter was fixed for SA.
5. Statement of accused U/s 313 Cr. PC was recorded wherein all the evidence coming up on record was put up to him. Accused stated that he had no knowledge about the genuineness of the documents filed by the agent and coaccused for procuring visa. He stated that the FIR and endorsement on the rukka Ex. PW 1/A and Ex. PW 1/B respectively were the matter of record. He further stated that he has no knowledge about the FDR certificate and passbook exhibited as mark Q2, Q3 and Ex. P1. These were prepared / procured by the coaccused who also filed them before the FIR NO.: 208 of 2001 POLICE STATION: CHANAKAYA PURI U/S: 420/468/471/511/120 B IPC 6 of 11 High Commission. He has further stated that the arrest memo, PSM and house search memo of accused Happy Chopra Ex. PW 3/A, Ex. PW 3/B and Ex. PW 5/A respectively were the matter of record. He has further stated that it was a matter of record that PW 6 and PW 7 identified him in the court and exhibited his arrest memo as Ex. PW 6/A. He further stated that it was a matter of record that IO of the present case FIR exhibited the endorsement on the complaint as Ex. PW 8/A, arrest memo Ex. PW 8/B, PSM as Ex. PW 8/C, disclosure as Ex. PW 8/D, your specimen signature and specimen signature of accused Happy Chopra as Ex. PW 8/E and Ex. PW 8/F and handwriting of both of the accused running into two pages mark S1 to S21 collectively Ex. PW 8/I. He further stated that it was a false case and all the PWs have deposed against him as they all were police officials and interested in his conviction. He further deposed that he was innocent and was a victim at the hand of the police of PS Chanakaya Puri. He was a resident of District Jhallandhar Punjab, due to his poor financial condition, he wanted to go abroad to earn money. One travel agent took his passport and also procured his signature's on a blank visa form and another form. He further stated that he had applied for visa on his behalf on the basis of forged documents which came to his knowledge only when he came to the embassy for interview. He has been facing trial for more than 10 years. He is innocent and a victim of circumstances. He declined to lead DE and the matter was fixed for final arguments.
6. All concerned have been heard, including the final arguments led by Ld. APP for State as well as and Ld. Counsel for accused. Material on record has been perused and submissions considered.
7. The FIR in the present matter has been registered on the complaint dated 13.06.2001 lodged by complainant Mr. Mark Polatajko, Entry Clearance Officer who has alleged that the accused Jagmohan Jallan has filed an application for a British Visa on FIR NO.: 208 of 2001 POLICE STATION: CHANAKAYA PURI U/S: 420/468/471/511/120 B IPC 7 of 11 13.06.2001, however, during his interview, he confirmed that the Indian Official documents which he had provided were not genuine and he has paid Rs. 6,000/ for the same. The complainant Mr. Mark Polatajko, Entry Clearance Officer also provided to the IO the following documents which were alleged to be forged:
(i) Colour photocopy of a Fixed Deposit from the Punjab National Bank for Rs. 3 Lacs.
(ii) Mr. Jalhan's personal bank account with added entries to boost his financial standing from the Punjab National Bank.
(iii) A colour photocopy invitation from the United Kingdom that Mr. Jalhan claims is original but he obtained a forged copy of the original.
(iv) Mr. Jalhan's letter headed paper of his claimed company with forged details.
(v) 2 forged bank letters from Punjab National Bank. (vi) Forged income tax returns.
8. On perusal of record, it is found that numerous opportunities were granted to prosecution for examination of complainant Mr. Mark Polatajko, however, despite ample opportunities, prosecution has failed to examine the complainant. The process to the said witness was sent through MEA repeatedly, however, the said witness did not appear in the Court. It was incumbent upon the prosecution to prove that it was the accused Jagmohan who has produced the alleged forged documents before the complainant. The complainant is the only material witness in the present case who could have proved the presentation of the alleged forged documents before him. No other eye witness has been examined by prosecution or even cited by the IO in the present case.
9. Before appreciating the testimony of the witnesses coming on record it is relevant to discuss the necessary ingredients of the offences for which the accused has FIR NO.: 208 of 2001 POLICE STATION: CHANAKAYA PURI U/S: 420/468/471/511/120 B IPC 8 of 11 been charged.
Section 415 IPC provides: Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property is said to "cheat".
Section 420 IPC provides cheating and dishonestly inducing delivery of property: Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
Section 471 IPC provides using as genuine a forged: Whoever fraudulently or dishonestly uses as genuine any (document or electronic record) which he FIR NO.: 208 of 2001 POLICE STATION: CHANAKAYA PURI U/S: 420/468/471/511/120 B IPC 9 of 11 knows or has reason to believe to be a forged (document or electronic record) shall be punished in the same manner as if he had forged such (document or electronic record).
10. It is clear from the provisions itself that to prove that the accused has attempted to cheat the said Embassy to procure the visa on the basis of forged documents, it was incumbent upon the prosecution to produce and examine the complainant Mr. Mark Polatajko on record. It was the complainant only who could have proved on record that the accused Jagmohan has infact produced the said documents before him to procure the US visa. Furthermore, PW 2 Mr. Avdesh Kumar Aggarwal who was working as Senior Manager with PNB, RO, Jhallandhar has failed to prove on record that the FDR, certificate and the passbook which were sent to him for verification were forged documents. There is no other witness examined on record to prove that the documents allegedly produced before the complainant were forged. The prosecution has failed to prove on record any evidence connecting the accused Jagmohan with the offences as alleged. There is no connecting evidence. The prosecution has failed to substantiate the allegations levelled against the accused Jagmohan. The original complaint even is unproved. Even no official from GEQD Hyderabad has been examined to prove the FSL result on record. Even as per the report filed on behalf of FSL, the questioned documents forwarded vide letter no. AH 32/2002/969 dated 13.02.2002 have not been properly proved by the FSL. Even no witness from FSL has been examined. The opinion letter from FSL specifically says that except signature's marked Q 1 and 6 Q , it was not possible to express any opinion on the rest of the items.
11. In this regard, I also rely upon the Judgement Bhim Sain Vs The State (NCT of Delhi) 2001 (60) DRJ 489 wherein it was held that despite ample opportunities FIR NO.: 208 of 2001 POLICE STATION: CHANAKAYA PURI U/S: 420/468/471/511/120 B IPC 10 of 11 if the prosecution fails to produce the material witness, it calls for an adverse inference against the prosecution case and it can be said that if the said witness had been produced, he would have not supported the case of the prosecution. Further, it is well settled law that non production of the material witness certainly introduced infirmity in the prosecution case. Hence, I am satisfied that the prosecution has totally failed to prove its case against the accused. The accused Jagmohan Jalhan hence stands acquitted for the offences alleged. His bail bond stands cancelled. His surety stands discharged. Endorsements be cancelled.
File be consigned to record room and be revived as and when the accused Happy Chopra who is a PO in the matter appears or is arrested and produced.
(ANNOUNCED IN THE OPEN SUDESH KUMAR COURT ON 23th December, 2011 ) METROPOLITAN MAGISTRATE This Judgment contains 11 pages NEW DELHI DISTRICT and each paper is signed by me. PATIALA HOUSE COURTS,DELHI FIR NO.: 208 of 2001 POLICE STATION: CHANAKAYA PURI U/S: 420/468/471/511/120 B IPC 11 of 11