Delhi District Court
Sh. Vinod Mehto vs State Of Nct Of Delhi on 11 January, 2018
IN THE COURT OF SHRI GURVINDER PAL SINGH
ADDL. SESSIONS JUDGE05, SOUTH WEST DISTRICT,
DWARKA COURTS, NEW DELHI.
Criminal Appeal No.: 16/2017
Sh. Vinod Mehto,
S/o Late Sh. Ambika Mehto,
R/o RZ26 P/60 B, Gali No.5,
Indira Park, Palam Colony,
New Delhi110045
.... Appellant/accused
Vs
State of NCT of Delhi .... Respondent
Appeal u/s 374 Cr.P.C. against the judgment of
conviction dated 03.12.2016 and order on sentence
dated 14.12.2016 passed by Ld. MM
Date of Institution : 11.01.2017
Arguments heard on : 16.12.2017
Date of Judgment : 11.01.2018
JUDGMENT
1. First appeal under section 374 of The Code of Criminal Procedure, CA No 16/2017 Vinod Mehto Vs State Page 1 of 10 1973 (in short Cr.P.C.) has been preferred by appellant/accused against impugned judgment of conviction dated 03.12.2016 and sentence dated 14.12.2016 passed by Trial Court of Sh. Rohit Gulia, Ld Metropolitan Magistrate01, SouthWest, Dwarka in case no. 02405R4309462016, titled State Vs Vinod Mahto, FIR No 77/2007, under section 420/471 IPC, PS Domestic Airport.
2. Vide impugned judgment, the Magisterial trial court has held the appellant/accused guilty of the offences under section 420 and 471 IPC. Vide impugned sentence, the Magisterial trial Court has sentenced the appellant to undergo simple imprisonment for a period of two years for the offence under section 420 IPC and to pay a fine of Rs.3,000/ and also sentenced the appellant to undergo simple imprisonment for a period of two years for the offence under section 471 IPC and to pay a fine of Rs.3,000/, in default of payment of fine, he has to undergo simple imprisonment of 90 days. Both sentences are to run concurrently.
3. I have heard the arguments of Ld. Counsel for appellant, appellant and Ld. Addl. P.P. for the State/respondent and have gone through the CA No 16/2017 Vinod Mehto Vs State Page 2 of 10 records of this case as well as requisitioned trial court record and have considered the rival contentions putfourth.
4. The appellant/convict has assailed the impugned judgment and sentence on the premise that appellant was appointed on the post of Helper (Engineering) on compassionate ground and on the basis of caste certificate whereby there was no reservation in compassionate appointment and the compassionate appointment was considered totally on the basis of financial position of the family members of the deceased employee. Also had been contended that the father of the appellant was scheduled caste and on compassionate ground, the appellant was appointed as Helper (Engineering) with the employer of father of appellant; hence, there was no dishonest and fraudulent intention of appellant nor was there 'MensRea' mensaria on the part of the appellant nor had the appellant had any intention to cheat anybody. It is contention of the ld. Counsel for appellant that the trial court erred to appreciate the evidence on record and documents viz. Ex. PW2/A, Ex. PW9/B, Ex. PW7/A and erroneously convicted the appellant. It has been contended that as per Ex. PW2/A the caste certificate in the name CA No 16/2017 Vinod Mehto Vs State Page 3 of 10 and address of the appellant had been issued but same had not been found favour with the trial court. Also had been contended that document Ex. PW9/B reveals that at serial number 260 i.e. dispatch number of caste issuing register (dispatch register) there is mention of issued caste certificate no. 585 whereas the caste certificate in favour of appellant bears number 260/st. In this matter the Investigating Officer did not go to the place of issuance of such certificate and investigation is not proper. It has been argued that there is no reliable nor credible evidence to prove the charges for offences under section 420/471 of IPC against the appellant/accused, so it has been prayed that the impugned judgment and sentence may be set aside and appellant be acquitted. Also has been contended that the General Manager of Indian Airlines Engineering Services Limited, the complainant had conducted disciplinary inquiry and finally accommodated the appellant due to his innocence.
5. Investigating machinery had come into motion on receipt of complaint of Vigilance Officer for Senior Manager (Vigilance), Vigilance Department, Indian Airlines Limited dated 09.06.2007, CA No 16/2017 Vinod Mehto Vs State Page 4 of 10 whereby it was mentioned that for implementation of directions of the High Court of Delhi in CWP no. 5976/2003 reverification of cases of persons who secured employment in Government of India and Government of NCT of Delhi and its agencies under the strength of forged/fake caste certificate had been done. The said complaint also embodied the fact that appellant/accused had gained employment in Indian Airlines as Helper (Engineering) on 13.08.2002 on compassionate grounds on the basis of the caste certificate. Also the said complaint embodied the fact that though initially the District Magistrate, Siwan in letter dated 21.01.2006 informed that the Schedule Tribe certificate in question had been issued to Vinod Mehto appellant but thereafter, vide another letter dated 19.02.2007 of District Magistrate Siwan, Bihar, it was intimated that the Caste Certificate in question had not been issued by their office and it appeared to be fake.
6. The appellant gained employment on compassionate ground but on the basis of caste certificate Ex. PW2/J bearing serial number 260/st dated 10.04.2002 purportedly issued from the office of District Magistrate, Siwan, Bihar. PW2 Sh. Shailesh Rana, Assistant Manager CA No 16/2017 Vinod Mehto Vs State Page 5 of 10 (Vigilance), Air India testified that said certificate Ex. PW2/J was verified and initially reply Ex. PW2/A bearing signatures with dated 21.01.2006 of District Magistrate, Siwan, Bihar was received finding mention of said certificate issued by District Magistrate, Siwan, Bihar. It is also the deposition of PW2 that on reverification of the said caste certificate, reply Ex. PW2/B dated 15.02.2007 was received from District Magistrate, Siwan, Bihar finding mention that caste certificate in question bearing serial number 260 was not issued in favour of Vinod Mehto and in the office record there is no mention of any certificate issued in favour of Vinod Mehto bearing serial number 260. As per PW2, the mother of appellant had applied vide application Ex. PW2/E to get the job on compassionate ground, interview call was given to accused asking him to produce original caste certificate vide Ex. PW2/F but accused requested for time vide Ex. PW2/G to produce original caste certificate. Later on accused submitted caste certificate Ex. PW2/J on the basis of which he was issued letter Ex. PW2/I and accused joined vide joining report Ex. PW2/K.
7. PW7 Inspector Atma Singh, testified that during investigation, he CA No 16/2017 Vinod Mehto Vs State Page 6 of 10 verified the caste certificate Ex. PW2/J and received letter Ex. PW7/A from District Magistrate, Siwan, Bihar. Ex. PW7/A finds mention of the fact that on 10.04.2002 from the office of District Magistrate Siwan not a single caste certificate was issued and at serial number 260 a caste certificate in favour of one Raju Kumar was issued on 16.04.2002. Also Ex. PW7/A finds mention that at Bhagwanpur Haat "khariya" community does not reside.
8. PW7 did not personally visit office of concerned District Magistrate at Siwan for investigation of the case but he had communicated to the District Magistrate office concerned and had received the report by post. PW9 Sh. Prakash Priyaranjan, Block Welfare Officer, Siwan, District Siwan, Bihar, testified before the trial court of having brought the summoned record vide authority letter Ex. PW9/A. The register containing Caste Certificate Issue Register of the year 2000 for period from January to June was produced and it contained no entry in the name of appellant but contained entry no. 260 pertaining to issuance of caste certificate no. 585 on 16.04.2002 in the name of Raju Kumar S/o Sh. Mathura Prasad Singh, R/o Village Elamadi Pur, Post Office CA No 16/2017 Vinod Mehto Vs State Page 7 of 10 Shankara, P. S. Tarvara, District Siwan belonging to "Kurmi" caste. Ex. PW9/B, the extract of the aforesaid register reveals that on 10.04.2002 no certificate was issued to any person including appellant. PW9 also elicited that caste certificate Ex. PW2/J was not issued from the office of District Magistrate, Siwan, as pertaining to that no entry was there in the aforesaid register brought by PW9. PW9 could not say anything whether letter Ex. PW7/A was issued from the Office of District Magistrate, Siwan or not.
9. Trial Court Record reveals that statement of accused of the appellant/accused under section 313 Cr.P.C. was recorded on 27.06.2014 by the Trial Court. Later thereto on application of Ld. Assistant P.P. for the State under section 311 Cr.P.C. for summoning District Magistrate, Siwan as witness with verification of caste certificate of accused, as per order of Trial Court dated 21.10.2014, District Magistrate, Siwan was summoned as witness with relevant record. Later thereto on 21.08.2015, Sh. Prakash Priyaranjan, Block Welfare Officer, Siwan, District Siwan, Bihar appeared and as per order sheet of trial court, the then ld. Presiding Officer was on leave that day CA No 16/2017 Vinod Mehto Vs State Page 8 of 10 and the first link Metropolitan Magistrate had conducted the proceedings. Following is the order sheet of 21.08.2015:
"21.08.2015 Ld. PO is on leave today.
Present: Ld. APP for the State.
Accused in person alongwith Ld. Counsel Sh. B D
Pandey.
Block Welfare Officer, Siwan Sh. Prakash Priyaranjan in person has produced the summoned record. He is discharged.
Now to come up for further proceedings on 08.09.2015.
Sd/ (Anurag Thakur) 1st Link MM: Dwarka Courts 21.08.2015"
10. On record also is the deposition of Sh. Sh. Prakash Priyaranjan, Block Welfare Officer, Siwan, District Siwan, Bihar as PW9 recorded by the aforesaid 1st Link Metropolitan Magistrate. Later to 21.08.2015, on 08.09.2015 matter was fixed by the trial court for final arguments but the incriminating facts borne out of the deposition of PW9 were not put to the appellant/accused, in further statement under section 313 Cr.P.C., so as to enable him to understand the incriminating evidence against him and respond to the same by answers of his choice and consequent thereto to lead defence evidence, if any, subsequent to the stated incriminating evidence coming on record from deposition of PW9. In this fact of the matter, serious prejudice has been caused to the CA No 16/2017 Vinod Mehto Vs State Page 9 of 10 accused as the impugned judgment interalia embodies the appreciation of deposition of PW9 and the conclusion arrived at to be on the basis of incriminating evidence surfaced in deposition of PW9.
11. In this fact of the matter, I find it expedient, in the interest of justice, to set aside the impugned judgment and sentence and remand back the matter to the trial court with direction to put all incriminating facts borne out from deposition of PW9 in further statement of accused under section 313 Cr.P.C. and after recording his answers, accused may be given choice to lead defence evidence, if he so wishes, and thereafter, after hearing final arguments, matter be decided afresh as per law.
12. Copy of the judgment and the trial court record be sent to the Magisterial Court concerned for information and necessary compliance.
13. Appellant/accused is directed to appear before the Ld. Trial Court on 23.01.2018 for further proceedings.
Announced in the open court (GURVINDER PAL SINGH)
on date 11.01.2018 ASJ05/SW/DWARKA COURTS,
NEW DELHI (pb)
CA No 16/2017 Vinod Mehto Vs State Page 10 of 10