Delhi District Court
State vs . Rakesh Kumar And Munni Lal on 18 April, 2012
IN THE COURT OF SH. SUDESH KUMAR
METROPOLITAN MAGISTRATE, NEW DELHI DISTRICT:
PATIALA HOUSE COURTS: DELHI
FIR No. : 315/2001
Police Station: Chanakaya Puri
U/S : 420/468/471/511 IPC
IN THE MATTER OF
STATE
VS.
(i) Rakesh Kumar @ Sonu
S/o Sh. Somraj
R/o H.No. 479, New Jawahar Nagar, Jalandhar, Punjab.
(ii) Munni Lal
S/o Late Sh. Sant Ram
R/o B-11, Ramprastha, Gaziabad, U.P.
Date of institution: 24.12.2003
Date of reserving judgement/Order: 18.04.2012
Date of Pronouncement of Judgement/Order: 18.04.2012
Final Order: Accused Munni Lal Ghai acquitted. Accused Rakesh Kumar @ Sonu is P.O.
Brief statement of reasons for such decisions:
1.It is the case of the prosecution that on or about 28.08.2001 at German Embassy, Chanakaya Puri accused Rakesh Kumar @ Sonu and Munni Lal Ghai in furtherance of their common intention attempted to cheat said Embassy for procuring visa for accused Rakesh Kumar on the basis of false and fabricated documents and / or averments in the visa application and accused used the said document, application and contents therein as genuine whereas the contents were false and fabricated and on this present case U/s 420/468/471/511 IPC was registered against both the accused persons.
2. Charge sheet in the matter was filed on 24.12.2003. Cognizance was taken by my Ld. Predecessor. Charge U/s 420/511/468/471 IPC was settled against both the accused to which both the accused pleaded not guilty and claimed trial.
STATE VS. Rakesh Kumar and Munni Lal FIR No. : 315/2001 Police Station: Chanakaya Puri U/S : 420/468/471/511 IPC 1 of 14
3. Thereafter prosecution has examined as many as 8 witnesses in support of its case.
(i) PW 1 ASI Ramesh Chand has proved on record the carbon copy of FIR as Ex. PW 1/A and endorsement on rukka as Ex. PW 1/B. This witness was not cross-examined by the Ld. Defence Counsel Mr. A.K. Sharma, despite opportunity being given.
(ii) PW 2 Sh. N.P. Aggarwal deposed (as recorded) in his examination in chief that he does not remember regarding the case due to lapse of long period. He stated that he was the Director of M/s Richi Rich Overseas Pvt. Ltd but he do not remember his tenure. He further deposed that Mr. Arun Rishi was also one of the Director of the above mentioned firm. He had not handed over any documents to anyone. He does not knew accused persent in the court.
After obtaining the permission from the Court, this witness was cross-examined by Ld. APP for State as the witness was resiling from his previous statement. In his cross-examination by Ld. APP for State, PW 2 deposed that he had not stated in his statement to the IO that accused M.L. Ghai came to their office and demanded copy of Income Tax return and statement of account for procuring a export order from Germany. The PW 2 was confronted with statement Ex. PW 2/A, where it was so recorded. The witness further stated that he had not stated in his statement to the police that accused persons were in the friend circle of owner of M/s Richi Rich Overseas Pvt. Ltd namely Sh. Sanjay Mohan who was Ex. Director that is why they had given photocopy of the above mentioned documents. The witness was again confronted with Ex. PW 2/A. He further admitted that he had not handed over letter head to Mr. Ghai. The witness deposed voluntarily that Mr. Ghai is not known to him. After hearing the statement Ex. PW 2/A, PW 2 denied having made so before the police. PW 2 denied the suggestion that he was not identifying the accused deliberately and intentionally as he has been won over by the accused. He further declined the suggestion that he was deposing falsely in order to save the accused.
In his cross-examination by Mr. A.K. Sharma, Ld. Counsel for accused PW 2 admitted that he was Director and sometime he was going and sometime he was not going to the firm. PW 2 stated that he does not knew how many employees were in the firm and who were the employees.
STATE VS. Rakesh Kumar and Munni Lal FIR No. : 315/2001 Police Station: Chanakaya Puri U/S : 420/468/471/511 IPC 2 of 14 (iii) PW 3 SI Ajit Singh deposed (as recorded) in his examination in chief that on
31.08.2001, he was posted at PS Chanakaya Puri and on that day he was on emergency duty in PS Chanakaya Puri. He further deposed that on receipt of DD No. 9-A mark X-1. He alongwith Ct. Surender reached at Visa Section German Embassy, Chanakaya Puri, New Delhi. After sometime police liaisoning officer Mr. Jurgen Reinwarth met them and gave a complaint which was mark X alongwith one passport in the name of Rakesh Kumar, one letter head of Richi Rich Overseas Pvt. Ltd alongwith some other documents and also handed over accused Rakesh Kumar who was present in the Court. They brought accused Rakesh to the PS. He prepared rukka vide Ex. PW 3/A and got the case registered at PS Chanakaya Puri, while he was interrogating accused Rakesh Kumar in the PS in the meantime one old person namely Munni Lal Ghai came there. After seeing Munni Lal accused Rakesh told that he is the same person who arranged the above mentioned documents for him. The disclosure statement of accused Rakesh was recorded which was Ex. PW 3/B. On interrogation accused Munni Lal also made disclosure statement which was reduced into writing and same is Ex. PW 3/C. All documents which were handed over to him were taken into possession and seized memo Ex. PW 3/D. Both the accused persons were arrested vide memo Ex. PW 3/E and F. Their Jamatalashi were conducted vide memo Ex. PW 3/G and H. Thereafter, specimen signatures of both accused persons were obtained. Thereafter, accused persons were detained in the Lock up after getting them medically examined and on the next day accused persons were produced before the Court.
On 03.08.2001, again said 09.09.2001, he went to Richi Rich Overseas Pvt. Ltd. Pahar Ganj where Mr. Arun Rishi who was the Director of said company. He was also shown the letter head of the Richi Rich Overseas Pvt. Ltd who told that it was the old letter head of the company, however, it does not bear his signature. He also told that Mr. Sanjay Mohan and N.P. Aggarwal may be aware regarding this letter head. On 09.09.2001, Ex. Director Mr. Sanjay Mohan and the then Director Mr. Arun Rishi and N.P. Aggarwal came to police station he recorded their statements and also obtained specimen handwriting of Mr. Arun Rishi which was Ex. PW 1/K-1 to K-3. Thereafter, passport in question was sent to RPO Jhallander which was Ex. PW 3/L. Thereafter, he was transferred and the further investigation of this case was assigned to SI Saroj Tiwari. He identified the accused Rakesh present in the Court. He further stated that he can also identify accused Munni Lal, if shown to him.
In his cross-examination by Mr. A.K. Sharma, Ld. Counsel for both accused persons, STATE VS. Rakesh Kumar and Munni Lal FIR No. : 315/2001 Police Station: Chanakaya Puri U/S : 420/468/471/511 IPC 3 of 14 PW 3 deposed that he does not remember when the DD 9-A was given to him. He does not remember at what time he reached the German Embassy in Chanakaya Puri. He does not remember the exact time when the police liaisoning officer from German Embassy met him and handed over the documents alongwith the accused Rakesh. He could not remember exactly at what time he came alongwith the accused at the PS. He could not remember at what time the rukka Ex. PW 3/A was prepared by him and he does not remember the time at what time the FIR was registered. He does not remember for how much time the case was interrogated. The witness further stated that Munni Lal Ghai came at about 06.00 pm. The PW 3 denied the suggestion that he made a telephonic call to M.L. Ghai. He further denied the suggestion that the signatures of accused Rakesh were taken on plain paper and then the disclosure statement was made which was Ex. PW 3/B and C. M.L. Ghai was interrogated for half- an-hour. He further denied the suggestion that the disclosure statement of M.L. Ghai was prepared after taking his signature on blank paper. The specimen signatures of both the accused persons were taken on said date. He stated that he does not remember at what time he reached in the office of Richi Rich. He met Rishi there. He had not verified the telephone numbers on the letter head of the Richi Rich overseas dated 24.08.2001 from MTNL whether the telephone numbers written on the letter head are the old numbers of Richi Rich overseas. Mr. Arun Rishi told him that the signatures on the letter head dated 24.08.2001, which was Ex. PW 3/DA were not signatures of Rishi and the other directors N.P. Aggarwal and Sanjay Mohan. He admitted that Sanjay Mohan came to the PS during investigation. The Ex. PW 3/DA was shown to Sanjay Mohan but he refused that Ex. PW 3/DA bears his signatures. He do not remember whether he had taken the specimen signatures of Sanjay Mohan or not. It is possible that the Ex. PW 3/DB was given to him by Richi Rich overseas during investigation. He does not remember the date when it was given. He does not remember on which date the statement of Arun Rishi, Sanjay Mohan and N.P. Aggarwal was recorded by him. The witness again said it was taken on 09.09.2001. He denied the suggestion that any statement was given by Arun Rishi, N.P. Aggarwal and Sanjay Mohan during investigation. He denied the suggestion that he was not called by the Liasion Police Officer of the German Embassy. He denied the suggestion that no paper were given by the Embassy's Liasion officer. He also denied the suggestion that he was deposing falsely.
(iv) PW 4 Mr. Jai Kant Baranwal LDC from Passport Office deposed (as recorded) in his STATE VS. Rakesh Kumar and Munni Lal FIR No. : 315/2001 Police Station: Chanakaya Puri U/S : 420/468/471/511 IPC 4 of 14
examination in chief that he had brought the record Scan Print out of the record of the passport bearing no. B-5307246 issued in the name of Sh. Rakesh Kumar S/o Sh. Som Raj. These print out/copies running into 28 pages have been attested by Assistant Passport Officer namely Bakshi Singh, Jalandar same was marked as Ex PW 4/A collectively bearing his signatures at point A on each page. He identified his signatures having been dealt with him during the course of his official duties. As per their record, a verification report in respect of the said passport has already been submitted by Smt. Pushpa Nijawan, the then Superintendent Passport Office, Jalandar. Now she has been transferred to Amritsar, Passport Office, however, he identified her signatures at Point A on the report Ex PW 3/L having been dealt with him during the course of my official duties.
In his cross-examination by Sh. A.K. Sharma, Counsel for both accused, PW 4 deposed that he was in the said office since November,2003. He cannot tell the exact date when Smt. Pushpa Nijawan was transferred from the said office. he had worked with Pushpa Nijawan for few days. He has not worked under her official duties. He had not seen her preparing documents in his presence as they were sitting in different rooms. There were three Assistant Passport Officers at the passport office, Jalandar and there was one Passport Officer. He was working under Smt. Krishna Rani, Assistant Passport Officer, Jalandar. He was not working under Sh. Bakshi Singh. The copies were given to them after getting the signatures of Assistant Passport Officer but they were not signed in his presence.
(v) PW 5 HC Brijmohan has proved on record the copy of DD No. 9-A as mark X-1.
This witness was not cross-examined by the accused despite opportunity being given.
(vi) PW 6 Sh. Rakesh Kumar, Record Clerk from RML Hospital deposed (as recorded) that he was working in this organization since 1991. He had seen MLC No. 105408/01 and 105407/01 both dated 01.09.2001 in respect of Muni Lal Ghai Male 72 yrs and Rakesh Kumar Male 25 yrs respectively who were examined by Dr. M. Kaushik. As per the MLC both of them were not having any external injuries. The witness deposed that Doctor M. Kaushik was on unauthorized absence since 3 years. He further deposed that he can identify the handwriting and signature of Dr. M. Kaushik as he had seen him writing and signing during the course of his job. The MLC were Ex. PW 6/A and EX.
PW 6/B bearing the signature of Doctor M. Kaushik at point A. STATE VS. Rakesh Kumar and Munni Lal FIR No. : 315/2001 Police Station: Chanakaya Puri U/S : 420/468/471/511 IPC 5 of 14
In his cross-examination by Sh. A.K. Sharma , Ld. Counsel for the accused, PW 6 admitted that he had not brought the record with regard to above MLCs. The witness voluntarily deposed that he can bring the same if required by the court.
(vii) PW 7 Mr. Arun Rishi deposed (as recorded) in his examination in chief that he was working in the company of Mr. Sanjay Mohan Aggarwal from year 1995 to 2002. In the month of August-September 2001, one Mr. M.L. Ghai has come to the office of Mr. Sanjay Mohan for grant of some Export order from Germany. It was revealed to him that Mr. M.L. Ghai had taken the statement of account and photocopy of ITR. It was further revealed to him that later on Mr. M.L. Ghai, misused the same. The name of the company of Mr. Sanjay Mohan Aggarwal was Richie-Richie overseas Pvt. Ltd situated at 1598, Main Bazar, Paharganj, Delhi. He had no designation in the said company. Again said, he was working as Director, however, the company was run by Mr. Sanjay Mohan Aggarwal who was the "Karta Dharta" of the company. Another Director was Mr. N.P. Aggarwal.
In his cross-examination by Mr. Jawahar Goyal, Ld. Counsel for accused Munni Lal Ghai, PW 7 deposed that he used to do miscellaneous work of the company since year 1995 to 2002. When he had went to the company for a job, company appoint him as a Director. He remained as Director in the company from year 1995 to 2002. Again said He was appointed as Director in year 2001. Again said he was appointed as Director in year 1995. The witness further stated that he does not know Mr. M.L. Ghai personally. He had seen Mr. M.L. Ghai once or twice during his visit to the company, however, he cannot tell the exact date, month or year when he saw him for the year. He do not remember the second time. The witness further deposed that he was drawing Rs. 5,000/- P.M. from the company as Salary. He do not know the export item for which Mr. M.L. Ghai was to order. He do not know whether any agreement was executed between Mr. Ghai and company. He do not know, who had handed over the said statement of account and ITR to Mr. Ghai. He came to know about the aforesaid documents when police came in the year. He do not remember the date on which police had come but it was in the month of August 2001. He came to know in the office that the accused used to come in the office to meet Sanjay Mohan. Police had taken his statement in the PS in the month August-September 2001. He had not received any notice from the PS. The witness denied the suggestion that he was deposing falsely or that he do not know STATE VS. Rakesh Kumar and Munni Lal FIR No. : 315/2001 Police Station: Chanakaya Puri U/S : 420/468/471/511 IPC 6 of 14 Mr. M.L. Ghai. This witness voluntarily deposed that he can identify the accused if shown to him, however, presently accused was in Germany. He further denied the suggestion that he had not seen Mr. Ghai taking the statement of account and the photocopy of the ITR. He do not remember the exact date, month and year. No person in the name of Mr. Rakesh Kumar was working in the said company. He further denied the suggestion that Mr. Rakesh Kumar was the employee of the said company. He do not remember whether he had seen the attendance register of the company.
This witness was cross-examined by the Ld. APP, in his cross-examination by Ld. APP for State, PW 7 deposed that the witness identified the accused M.L. Ghai present in the court. The witness further stated that accused present in the court is the father of Mr. Ghai.
(viii) PW 8 SI Saroj Tiwari deposed (as recorded) in his examination in chief that Further investigation of the present case was assigned to him in the year 2001. He examined Mr. Som Raj U/s 161 Cr. PC, thereafter, he received the passport verification report, FSL report and sent documents to FSL, GEQD Kolkatta who demanded admittedly genuine handwritings and signatures of accused as well witness and also some original documents as per requirement of the case. Accordingly, he tried to obtain the original documents from the complainant as well as accused person and witness by sending them letters but the same were not provided. On completion of the investigation, Charge-sheet in the matter was filed.
This witness was also not cross-examined by the Ld. Defence Counsel being opportunity being given.
4. No other PW was examined by the prosecution and the PE was closed. Statement of the accused was recorded on 27.02.2012 wherein the accused stated that he had not made any disclosure and accused Rakesh Kumar has nothing to do with him. IO and accused Rakesh Kumar have falsely implicated him in collusion. He further stated that he is 84 years old and ailing person facing trial for the last 11 years for no fault. Accused declined to lead DE. Thereafter the matter was posted for Final arguments.
5. I have heard Ld. APP for State and counsel for the accused and perused the record.
STATE VS. Rakesh Kumar and Munni Lal FIR No. : 315/2001 Police Station: Chanakaya Puri U/S : 420/468/471/511 IPC 7 of 14
6. Before appreciating the evidence coming up on record, it will be relevant here to mention the Provisions for which the accused has been charged.
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 468 IPC Provides:
Forgery for purpose of cheating:-
Whoever commits forgery, intending that the [document or electronic record forged] shall be used for the purpose of cheating, 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 [document or electronic record]:
Whoever fraudulently or dishonestly uses as genuine any [document or electronic record] which he 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].
Section 511 IPC Provides:
Punishment for attempting to commit offences STATE VS. Rakesh Kumar and Munni Lal FIR No. : 315/2001 Police Station: Chanakaya Puri U/S : 420/468/471/511 IPC 8 of 14 punishable with imprisonment for life or other imprisonment.: Whoever attempts to commit an offence punishable by this Code with [imprisonment for life] or imprisonment, or to cause such an offence to be committed, and in such attempt does any act towards the commission of the offence, shall, where no express provision is made by this Code for the punishment of such attempt, be punished with [imprisonment of any description provided for the offence, for a term which may extend to one-half of the imprisonment for life or, as the case may be, one-half of the longest term of imprisonment provided for that offence], or with such fine as is provided for the offence, or with both.
(7) On 28.08.2001, one complaint was lodged by Mr. Jurgen Reinwarth, Police Liaison Officer in Embassy of Germany to the SHO PS Chanakaya Puri therein submitting that the accused Rakesh Kumar has applied for a business visa to visit Germany with one the supporting document i.e. a covering letter from M/s Richie Rich Overseas Pvt. Ltd, 1598, Main Bazar, Pahar Ganj, New Delhi with phone numbers 7521615 and 7526885. It was reported that upon verification of the aforementioned numbers, it was found that the telephone numbers were not existing. It was alleged that accused was apparently trying to obtain the business visa by fraudulent means. On the basis of this complaint, present FIR U/s 420/468/471/511 IPC was registered in Police Station.
(8) Thereafter SI Ajit Kumar was handed over all the original documents alongwith the visa application form and alongwith letter written on behalf of M/s Richie Rich Overseas Pvt. Ltd to the Visa Officer and the accused was also handed over to the IO. After investigation IO has reported in the charge-sheet that the said covering letter on behalf of M/s Richie Rich Overseas Pvt. Ltd was found to be forged.
STATE VS. Rakesh Kumar and Munni Lal FIR No. : 315/2001 Police Station: Chanakaya Puri U/S : 420/468/471/511 IPC 9 of 14 (9) It is important to note here that during the course of trial, accused Rakesh Kumar
stopped appearing in the Court and subsequently he was declared P.O by this Court on 13.10.2011. It is only accused Munni Lal Ghai, who has faced the complete trial.
(10) The allegations against co-accused Munni Lal Ghai are that he was the person who has forged the alleged covering letter pertaining to M/s Richie Rich Overseas Pvt. Ltd and which was produced by co-accused Rakesh Kumar before the German Embassy for obtaining business visa.
(11) The prosecution, hence, to bring home conviction against the accused Munni Lal Ghai has to prove that accused has forged the alleged covering letter written on behalf of M/s Richie Rich Overseas Pvt. Ltd, which was produced by co-accused Rakesh Kumar before the German Embassy, Chanakaya Puri, New Delhi for obtaining business visa.
(12) To prove its case prosecution has examined Mr. N.P. Aggarwal, Director of M/s Richie Rich Overseas Pvt. Ltd as PW 2. This witness in his examination in chief has stated that he does not remember anything regarding the case. He deposed that he was one of the Director of M/s Richi Rich Overseas Pvt. Ltd and Mr. Arun Rishi was also one of the Director of the above mentioned firm. He stated that he had not handed over any documents to anyone. He further deposed that he does not knew the accused persent in the court.
(13) As the witness was resiling from his statement, hence, after obtaining permission from the Court, Ld. APP has cross-examined this witness. Even in his cross-examination by Ld. APP for State, he denied that he had made any statement to the IO that accused Munni Lal Ghai came to their office and demanded copy of Income Tax return and statement of account for procuring a export order from Germany. He further denied that he has stated to the police that accused was in friend circle of owner of M/s Richi Rich Overseas Pvt. Ltd namely Sh. Sanjay Mohan who was Ex. Director that is why he had given photocopy of the above mentioned documents. He specifically deposed that he does not knew the accused Munni Lal Ghai. He further denied his statement Ex. PW 2/A having made so before the police.
STATE VS. Rakesh Kumar and Munni Lal FIR No. : 315/2001 Police Station: Chanakaya Puri U/S : 420/468/471/511 IPC 10 of 14 (14) The PW 2 has totally turned hostile and deposed in favour of accused and denied his
entire statement having being made to the IO and also stated that accused present in Court is not the person who has approached his office.
(15) PW 3 ASI Ajit Singh also deposed in his examination that accused accused Munni Lal Ghai was arrested on the disclosure of the accused Rakesh Kumar only. He further stated that when he went to Richi Rich Overseas Pvt. Ltd. Pahar Ganj, New Delhi he was told by Mr. Arun Rishi that the documents i.e. covering letter does not bear his signature. He was further told that Mr. Sanjay Mohan and N.P. Aggarwal might be aware regarding the covering letter. The prosecution has not examined Mr. Sanjay Mohan as a witness. Whereas as discussed above, PW 2 Mr. N.P. Aggarwal in his testimony has not supported the case of the prosecution at all.
(16) In his cross-examination PW 3 IO Ajit Singh has stated that Mr. Arun Rishi one of the Director of M/s Richi Rich Overseas Pvt. Ltd has stated that alleged covering letter dated 24.08.2001 was not bearing signatures of Mr. Arun Rishi or Mr. N.P. Aggarwal or Mr. Sanjay Mohan. IO has further stated that he has not taken the specimen signatures of Mr. Sanjay Mohan for comparision. It becomes doubtful as to how the IO has come to the conclusion that the said document was forged without even comparing the signatures on the alleged forged covering letter and without obtaining the specimen signatures of the witnesses and without obtaining an experts opinion in this regard.
(17) Prosecution has examined Mr. Arun Rishi as PW 7, who has stated that Muni Lal Ghai has come to the office of Mr. Sanjay Mohan for grant of some export order from Germany. He further deposed that it was M.L. Ghai who had taken the photocopy of statement of account and photocopy of ITR. The witness has stated that he has no designation in the said company, however, he again said that he was working as Director, however, the company was run by Mr. Sanjay Mohan Aggarwal and Mr. N.P. Aggarwal. In his cross-examination, he stated that he does not know Mr. M.L. Ghai personally. He further deposed that he had seen Mr. M.L. Ghai once or twice during his visit to the company, however, he cannot tell the exact date, month or year when he saw him for the year. He deposed that he does not know the export item for which Mr. M.L. Ghai was to order. He could not tell whether any agreement STATE VS. Rakesh Kumar and Munni Lal FIR No. : 315/2001 Police Station: Chanakaya Puri U/S : 420/468/471/511 IPC 11 of 14 was executed between Mr. Ghai and company. He further deposed that he do not know as to who had handed over the statement of account and ITR to Mr. Ghai. He came to know about the documents when police came in the month of August 2001. He further deposed that in the office accused used to come to meet Mr. Sanjay Mohan. The witness, however, voluntarily deposed that he can identify the accused if shown to him but presently accused was in Germany. He further deposed that no person in the name of Mr. Rakesh Kumar was working in the said company. In his cross-examination by Ld. APP for State, the witness categorically stated that accused present in the court is the father of accused. This witness, hence, did not identify the accused present as the person who has collected the documents from their firm. He stated that the accused present in the Court was the father of the accused.
(18) No other witness has been examined by the prosecution, who could have proved the document Ex. PW 3/A. Even the FSL result is silent in regard to the signatures on the alleged forged covering letter Ex. PW 3/A. The prosecution has failed to examine Mr. Sanjay Mohan, whose signatures were allegedly forged on the covering letter. The IO has not taken the specimen signatures of the said witness Mr. Sanjay Mohan for comparision. Mr. Sanjay Mohan has not been examined as witness. FSL result is not supporting the case of the prosecution. Furthermore, despite ample opportunities being given the prosecution has failed to examine complainant Mr. Jurgen Reinwarth.
Process to complainant was repeatedly sent through MEA, however, despite service on the Embassy through MEA none has appeared on behalf of the complainant. In the absence of the examination of the complainant all the information given by him is not admissible as evidence in the present case as per provisions under Section 60 of the Indian Evidence Act.
(19) Even the maker of the Rukka has not been examined in the present case for the purposes of cross-examination. The genesis and origin of the prosecution case is hence, falsified and unreliable. The seizure memo produced on record does not mention that the said document was handed over to the IO by complainant nor does it bears his signatures as a witness, the same discredits the correctness and genuineness of the complaint as well as the seizure memo of the documents. In the absence of the complainant, there in no link to establish the guilt of the accused. The linking evidence is not produced on record. The testimonies of other witnesses in the absence of complainant is all hearsay and STATE VS. Rakesh Kumar and Munni Lal FIR No. : 315/2001 Police Station: Chanakaya Puri U/S : 420/468/471/511 IPC 12 of 14 insufficient to prove the guilt of the accused as alleged by the complainant. The non examination of the complainant results in non proving of the complaint itself. It was the complainant only who could have proved on record that it was the co-accused Rakesh Kumar who has produced the alleged forged document before him. It is well settled that non examination of the material witnesses adversely effects the case of the prosecution and an inference is to be drawn against the prosecution for the same and in case no witness is available or could not be produced then the benefit is to be given to the accused only and not to the Prosecution as was held in Nadeem Vs. State 2010 (4) JCC 2842.
(20) In view of the aforesaid, it was incumbent upon the prosecution to produce the complainant in the witness box for proving the complaint and also to prove that the co-accused has infact produced the documents as alleged. There being no connecting evidence the prosecution, hence, failed to substantiate the allegations raised by the complainant in its original complaint. The examination of IO and other PWs, hence, being hear-say is of no help to the prosecution. The prosecution has never stated that it was only the accused Munni Lal Ghai who has produced the visa application form. Furthermore, there is no iota of evidence coming up on record against accused Munni Lal Ghai. Even PW 2 and the FSL result has not supported the case of the prosecution.
(21) As observed above, the complainant being not examined, the fact of confirmation of the alleged forged document remains unproved. Even original complaint remains unproved. In this regard, the observations made by the Hon'ble High Court in Bhim Sain Vs The State (NCT of Delhi) 2001 (60) DRJ 489 can be relied upon wherein it was held that despite ample opportunities if the prosecution fails to produce the material witnesses, it calls for an adverse inference against the prosecution case. Further, it is well settled law that non production of the material witness certainly introduced infirmity in the prosecution case. The omission on part of the prosecution to examine complainant is certainly serious and fatal to the case of the prosecution.
(22) Hence, I am satisfied that the prosecution has totally failed to prove its case against the accused and the accused is entitled to an honourable acquittal. The accused Munni Lal Ghai hence stands acquitted for the offence alleged against him. His bail bond stands cancelled. His surety stands STATE VS. Rakesh Kumar and Munni Lal FIR No. : 315/2001 Police Station: Chanakaya Puri U/S : 420/468/471/511 IPC 13 of 14 discharged. Endorsements be cancelled.
File be consigned to Record Room and be retained and revived as and when co-accused Rakesh Kumar @ Sonu is arrested or surrender before investigating agencies / Court.
(ANNOUNCED IN THE OPEN SUDESH KUMAR COURT ON 18th April 2012) METROPOLITAN MAGISTRATE This Judgment contains 14 pages NEW DELHI DISTRICT and each paper is signed by me. PATIALA HOUSE COURTS, DELHI STATE VS. Rakesh Kumar and Munni Lal FIR No. : 315/2001 Police Station: Chanakaya Puri U/S : 420/468/471/511 IPC 14 of 14