Delhi District Court
State vs Pramod & Ors. on 30 October, 2014
IN THE COURT OF MS RUCHIKA SINGLA
METROPOLITAN MAGISTRATE -04, ROOM NO.212
DWARKA, DELHI
STATE versus Pramod & Ors.
FIR No. 221/08
PS: Kapashera
U/s-419/420/511/468/471/120B IPC.
1. Serial No. of the case : 02405R0906822008
2. Date of commission of offence : 15.09.2008
3. Name of the complainant : Sh. R. Harikishan
4. Name of the accused, and their : 1. Shailender Kumar, s/o Sh. Ramesh Chand, r/o
parentage and residence A-2/514, Harsh Vihar, New Delhi.
2. Ramesh Kumar, s/o Ram Aghor, r/o Gali no. 16,
Gagan Vihar, Diwan Complex, Ghaziabad, UP.
3. Ravinder Kumar, s/o Vijaypal Singh, r/o
D-1/731, Gali no. 24, Harsh Vihar, New Delhi.
4. Ravinder Dinkar s/o Sh. Gure Lal Dinkar
r/o A-2/439, Harsh Vihar, New Delhi
5. Date of Reserving Judgment : 23.09.2014
6. Date when judgment was : 30.10.2014.
pronounced
7. Offence Complained of : Section 419/420/511/468/471/120B IPC
8. Plea of accused : Pleaded not guilty.
9. Final Order : Conviction
10. Date of Order : 30.10.2014
State v. Pramod & Or.
FIR no. 221/08
PS Kapashera Page 1 of 11
JUDGMENT
Brief Statement of the reasons for the decision of the case
1. Briefly stated, the facts of the case are that on 15.09.2008, accused Shailender, Pramod, Ramesh and Ravinder Kumar reached at 679, VPO Bijwasan, at the house of the complainant Sh. R. Hari Kishan, posing as Electricity Department officials and inspected his electricity meter declaring it faulty. They then asked for a penalty of Rs. 3 lacs and showed 2 I-cards to the complainant to prove their identity. On their perusal, the complainant found that they bore the same serial number but different photographs. Then, the complainant got the FIR registered. Accused Pramod was caught red-handed at the spot while the others managed to escape. The other co-accused were arrested later on. At the instance of these accused persons that the forged i-cards were prepared by accused Ravinder Dinkar, he was later on arrested. The accused persons, hence, have been sent to face trial for the offences punishable under Section 419/420/511/468/471/120B Indian Penal Code, 1860 (hereinafter referred to as IPC).
2. The investigation of the case commenced upon the complaint of the complainant Sh. R. Hari Kishan. An FIR was lodged. The investigation was completed and charge sheet was filed against the accused under Section 419/420/511/468/471/120B IPC on 22.05.2009. Cognizance was taken and provisions of Section 207, CrPC were complied with. Arguments were heard on charge. Prima facie case was made out against the accused and hence a charge for the offences under Section 419/420/511/468/471/120B IPC was framed against the accused persons on 21.11.2011, to which they pleaded not guilty and claimed trial. Thereafter, the matter was listed for Prosecution Evidence.
3. The prosecution examined as many as 12 witnesses. PW1 Sushil Kumar, Senior Manager, BSES RPL proved that the i-cards were found to be forged on verification. PW2 ASI Mahender is the DO. PW3 HC Raj Singh, PW5 Ct. Dhan Singh, PW6 Ct. Kamal Chand and PW9 Ct. Akhileshwar aided the IO in the investigation of the present case. PW4 R. Hari Kishan is the complainant in the present case. PW7 Kotwal Singh Rawat, Assistant Finance Officer, BSES YPL and PW8 Kumar Abhay, earlier posted as Executive (Operation), BSES proved the verification reports of the i-cards. PW10 HC Nar Singh proved the DD entry regarding the apprehension of one accused. PW11 Dr. Virender Singh proved the FSL report. PW12 ASI Ramesh Chand is the IO. PE was closed vide order dated State v. Pramod & Or.
FIR no. 221/08 PS Kapashera Page 2 of 1123.06.2014. The accused persons vide their separate statement under Section 294, CrPC recorded on 19.10.2013 stated that they did not dispute their TIP proceedings conducted by Sh. D.K.Sharma, the then Ld. MM, Dwarka. The TIP proceedings were hence proved as Ex. P/A/1 to Ex. P/A/3 respectively.
4. During the prosecution evidence, accused Pramod moved an application for plea bargaining under Section 265B, CrPC which was allowed and the proceedings against accused Pramod were disposed off in plea bargaining on 18.02.2013. The other accused persons faced the trial.
5. The statements of the accused persons under Section 313, CrPC were recorded on 04.07.2014 wherein they pleaded false implication. The accused persons were given an opportunity to lead defence evidence but they chose not to do so. Hence, DE was also closed vide order dated 06.08.2014. Thereafter, the matter was listed for final arguments. Arguments were advanced by the Ld. APP and the Ld. Counsel for the accused. Thereafter, the matter was reserved for orders.
Liability of accused Ravinder Dinkar
6. All the accused persons have been charged for the offences u/s 419/420/511/468/471/120B IPC. In the opinion of the court, the offences under Section 419/420/511/471 IPC are not made out against accused Ravinder Dinkar at all as accused Ravinder Dinkar was apprehended and arrested on the disclosure of other accused persons that he was the one who prepared the forged document. Here, a reproduction of the brief summary of the facts of the case is essential. It is the case of the prosecution that on 15.09.2008, accused Shailender, Pramod, Ramesh and Ravinder Kumar reached at 679, VPO Bijwasan, at the house of the complainant PW4 R. Hari Kishan, posing as Electricity Department officials and inspected his electricity meter declaring it faulty. They then asked for a penalty of Rs. 3 lacs and showed 2 I-cards to the complainant to prove their identity. On their perusal, the complainant found that they bore the same serial number but different photographs. Accused Pramod was caught red-handed at the spot while the others managed to escape and were apprehended later on. These facts have been reiterated by PW4 R. Harikishan on oath. From this it is clear that the accused Ravinder Dinkar was not present at the spot at the time of the alleged incident. Hence, from the prosecution story itself, it cannot be established that he cheated or attempted to cheat or used a forged document as genuine before the complainant. Hence, the offences under Section 419/420/511/471 IPC are not made out against him.
State v. Pramod & Or.
FIR no. 221/08 PS Kapashera Page 3 of 117. Next, he has been charged for the offence under Section 468, IPC which provides for punishment for forgery for the purpose of cheating. To prove the said offence against the accused, the prosecution has relied upon the recovery of a printer from his possession. He has admitted the recovery in his statement under Section 313, CrPC. However, the prosecution has not established any nexus between the recovered printer and the act in question. The IO should have seized the computer with the CPU to verify whether any forgery was being committed through that computer or not. Thereafter, the computer should have been sent to the IT Department/FSL for examination. But the same was not done. The Printer is a mere accessory to the computer. It cannot be proved that the alleged printer was used in any action of forgery. Apart from the recovery of this printer, there is no evidence against the accused. There is only the disclosure statements of the co-accused persons but the same is inadmissible in evidence. Hence, considering all these abovesaid circumstances, the Court is of the opinion that the prosecution has failed to establish that the accused committed forgery.
8. Lastly, the accused has been charged for the offence under Section 120B, IPC which provides for punishment for criminal conspiracy. As mentioned earlier, apart from the recovery of the printer and the disclosure statements of the co-accused persons, there is no evidence against the accused. Hence, even this offence is not made out against the present accused. In view of the above discussion, accused Ravinder Dinkar is acquitted for all charges levied against him.
Liability of accused Shailender, Ramesh and Ravinder Kumar
9. All the above mentioned accused persons have allegedly the same role in the present case. Their arrest is also under similar circumstances. Hence, for the purposes of convenience, their liability is discussed together. In the present matter, to prove the commission of all the offences, the prosecution has to prove that the i-cards allegedly used by the accused persons are forged. To prove the same, the prosecution has relied upon the statement of PW1 Susheel Kumar who was the Senior Manager (HR) of BSES RPL who deposed in the court that the identity cards seized by the IO were not issued by him or the contractor. The identity cards are Ex. P1 (colly.). Further to prove this fact, Ld. APP has relied upon the testimony of PW7 Kotwal Singh who is the official of BSES YPL who on the request of IO, verified one of the I-cards. His report is Ex. PW7/A wherein he stated that the said I-card was not issued by BYPL. The report regarding the second I-card was proved by PW8 Kumar Abhey and he also stated that in the said report that the I-card was not issued by his office. I have also perused the i-cards.
State v. Pramod & Or.
FIR no. 221/08 PS Kapashera Page 4 of 11The same bear the photographs of two of the accused persons. The accused persons have not led any evidence to prove that they were actually working in the BSES office. Further, they have not led any evidence to show that the i-cards were prepared by some other person to falsely implicate them in the present case. Hence, in view of the reports Ex.PW7/A, Ex.PW8/A and the testimonies of PW1 Susheel Kumar, PW7 Kotwal Singh and PW8 Kumar Abhay, it is proved that the I-cards are forged.
10. Hence, now, I shall proceed to discuss each of the charges framed against the accused persons one by one. The accused persons have firstly been charged for the offence u/s 419 IPC which provides for cheating by way of impersonation. To prove the commission of this offence, the Ld. APP has relied upon the testimony of PW4 R. Harikishan who is the complainant in the present matter. It is submitted that he has deposed very clearly on Oath that on the day of the incident, the accused persons came at his residence posing as employees of Electricity department and they showed him fake I-cards (which have already been proved to be forged and fabricated) and on the basis of these I-cards, they represented themselves to be officials of electricity department and hence they cheated the complainant. Further, the accused persons refused to participate in their judicial TIP. This gave rise to an adverse inference against the accused persons. Then, later on, they were correctly identified by PW4 R. Harikishan in his evidence. Hence, their identification is proved. Therefore, it is proved that they have committed the said offence.
11. Ld. Counsels for accused persons, on the other hand, have stated that the accused have been falsely implicated and the complainant has deposed falsely in the Court. It is stated that PW4 stated in his cross-examination that his son was also present at the spot and in fact, he apprehended accused Pramod with the help of his son. However, his son has not been made a witness in the present case. Further, he admitted that he was not aware of the contents of the FIR. Hence, it is submitted that the prosecution case is not worthy of reliance. It is stated that the accused have been implicated by the complainant at the instance of some unknown persons.
12. Admittedly, the son of the complainant has neither been joined in the investigation by the IO nor he has been examined as a witness by the prosecution. However, the accused persons have not shown as to why the complainant shall depose falsely against them. No previous enmity has been alleged or proved in this regard. No other basis has been suggested by Ld. Counsel for the alleged false State v. Pramod & Or.
FIR no. 221/08 PS Kapashera Page 5 of 11implication. It is implausible and highly improbable that the complainant shall get these I-cards prepared merely to implicate the accused persons when there is no enmity between them. Merely stating that the accused have been implicated at the instance of some unknown persons is not suffice. The accused should have led some independent, cogent evidence to this effect. But this is not the case. PW4 R. Harikishan remained firm on his testimony despite a lengthy cross-examination. Hence, in the opinion of the Court, there is no ground to dis-believe his testimony. Furthermore, the recovery of I- cards in the possession of the accused persons is also a contributory factor towards their guilt. However, in the opinion of the Court, the offence of cheating could not be completed. The offence would have been complete if the complainant had been swayed by their impersonation but the same is not the case. The accused persons tried to cheat the complainant but could not succeed as by checking their i-cards, the complainant came to know of their intention and before they could take the advantage of the situation, the complainant caught them. However, by reaching at the residence of the complainant and by using the said i-cards, the accused persons attempted to cheat the complainant impersonating as electricity officials. Hence, it is proved that the accused persons committed the offence under Section 419/511, IPC.
13. Secondly, the accused persons have been charged for the offence under Section 420/511, IPC on the ground that they attempted to induce the complainant to deliver a sum of money towards the negotiation of an alleged penalty of Rs.2-3 lacs. Section 420, IPC provides as under:
"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."
14. To bring home this charge, the prosecution must prove the following essential requisites:
a) that the accused had attempted to cheat the complainant
b) that by such an attempt, the accused had dishonestly induced the complainant:
i) to deliver any property to him, or
ii) to make the whole or any part of a valuable security, or
State v. Pramod & Or.
FIR no. 221/08
PS Kapashera Page 6 of 11
iii) to alter the whole or any part of a valuable security, or
iv) to destroy the whole or any part of a valuable security, or
v) to make anything which is signed or sealed, and which is capable of being converted into a valuable security, or
vi) to alter anything which is signed or sealed, and which is capable of being converted into a valuable security, or
vii) to destroy anything which is signed or sealed, and which is capable of being converted into a valuable security.
15. Cheating has been defined in Section 415, IPC as under:
"Cheating.- 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 to do if he were not deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind and reputation or property, is said to "cheat".
Explanation.- A dishonest concealment of facts is deception within the meaning of this section."
16. Hence, a person is said to cheat when:
a) he deceives any person
b) he fraudulently or dishonestly induces the person so deceived to deliver any property to
any person, or
c) he induces that person to consent that any person shall retain any property, or
d) he intentionally induces the person so deceived to do or omit to do anything which he
would not do or omit to do if he were not deceived
e) such act or omission causes or is likely to cause damage or harm to that person in body,
mind and reputation or property.
17. In the present case, the prosecution has proved, on the basis of the testimony of PW4 R. Harikishan, that the accused persons attempted to deceive the complainant by representing themselves State v. Pramod & Or.
FIR no. 221/08 PS Kapashera Page 7 of 11as electricity officials. It has also been proved that they tried to induce the complainant to deliver some money for avoiding a penalty of Rs.2-3 lacs. Hence the offence u/s 420/511 IPC is made out.
18. Next, the accused persons have been charged for the offence under Section 468, IPC which is forgery for the purpose of cheating. The section is reproduced as under:
"Forgery of purposes of cheating.- Whoever commits forgery, intending that the document or electronic record forged shall be used for the purposes 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."
19. For making out the offence u/s 468 IPC which deals with forgery for the purpose of cheating, prosecution must prove that:
(i) The accused persons committed forgery of a document.
(ii) such a document was forged with the intention to commit cheating.
20. Forgery has been defined under Section 463 IPC as under:
"Forgery.- Whoever makes any false document or false electronic record or part of a document or electronic record with intent to cause damage or injury, to the public or to any person, or to support any claim or title, or cause any person to part with property, or to enter into any express or implied contract, with intent to commit fraud or that fraud may be committed, commits forgery."
21. For making out this offence, the following essentials should be made out in the light of the facts and circumstances of the present case:-
a) That the accused made a false document or false electronic record ;
b) That such false document or electronic record was prepared with an intent to cause damage or injury to any person ;
c) that such false document or electronic record was prepared to commit fraud.
22. In the present matter, the forged document are 2 Identity card allegedly issued by BSES RPL. It has already been discussed that the prosecution has proved that the i-cards are forged. It is also proved State v. Pramod & Or.
FIR no. 221/08 PS Kapashera Page 8 of 11from the earlier discussion that the i-cards were instrumental for the commission of the offence in this case. It is also proved that the i-cards were forged for the purposes of cheating the complainant. However, the prosecution must prove that the forgery was committed by the accused persons. Admittedly none of the witness to this forgery has been produced by the prosecution. The forgery was sought to be proved by comparing the handwriting of the accused persons with the handwriting on the I-cards Ex. P1 (colly.). The samples of the handwriting of the accused persons were sent to FSL Rohini where the same were examined. PW11 Dr. Virender Singh prepared the report in this regard and opined that no definite opinion could be given on the said writings and that it was not possible to fix the authorship of the said writings. Hence, it cannot be proved as to which person had prepared the said I- cards. Hence, it cannot be proved that any of the accused persons committed the forgery of the i-cards. Hence, the accused persons are acquitted of the offence under Section 468, IPC.
23. The accused persons have also been charged for the offence u/s 471 IPC which pertains to punishment for using as genuine a forged document. The said provision is reproduced as under:
"Using as genuine a forged document.- 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."
24. As discussed earlier, it has been proved that the i-cards are forged. This has also been proved that the accused persons attempted to use these i-cards for cheating the complainant. The i-cards are on record and have been proved as Ex.P1 (colly). These I-cards bear the photographs of two of the accused persons. Hence, it is apparent that the accused persons were aware that the said i-cards were forged. The accused persons have not alleged that they were actually working with the electricity department. They have alleged that they have been falsely implicated. However, at the cost of repetition, it may be mentioned that they have not led any evidence to prove this fact. Hence, in the opinion of the Court, it is proved that the accused persons intentionally used the forged i-cards as genuine dishonestly to cheat the complainant. Therefore, the offence u/s 471 IPC is made out against the accused persons.
State v. Pramod & Or.
FIR no. 221/08 PS Kapashera Page 9 of 1125. Lastly, the accused persons have been charged for the offence u/s 120 B IPC i.e. criminal conspiracy. Criminal conspiracy is an independent offence and has been defined u/s 120 A IPC as under:
"When two or more persons agree to do, or cause to be done,-
(1)an illegal act, or (2)an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy:
Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof.
Explanation.-It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object."
26. To make out the said offence, the prosecution must prove that:
(i) two or more persons were involved in the said conspiracy.
(ii) they agreed or cause to do an illegal act or an act by illegal means.
(iii) some act besides this agreement was done by at least one of the parties in furtherance of
that agreement.
27. In the present matter, the prosecution has alleged that the accused persons committed a criminal conspiracy to cheat the complainant. In view of the earlier discussion, it is proved that at least 4 persons were involved in the said offence (as the involvement of accused Ravinder Dinkar is made out only on the basis of disclosure statement, hence it cannot be proved that he was the part of the agreement). Secondly, the agreement was for cheating the complainant by impersonating themselves as electricity department's officials. This is an illegal act, in fact an offence, as discussed earlier. Hence this ingredient is also made out. Lastly to make out the offence for criminal conspiracy, an overt act should be proved to have been committed in pursuance to such an agreement. When the accused persons went at the residence of the complainant and represented themselves to be officials of the electricity department and showed him the forged I-cards, then it can be safely stated that the overt act was committed. In fact the act was committed as soon as the I-cards were got prepared. However, in the present matter, there is no evidence on record to prove that the I-cards were got prepared by the State v. Pramod & Or.
FIR no. 221/08 PS Kapashera Page 10 of 11accused persons. Hence, in view of the facts and circumstances of the present case, the overt act would be when the I-cards were used. Hence, the offence of criminal conspiracy is complete and in light of testimony of PW4 and the electricity department's officials, this offence is also proved to have been committed by the accused persons.
28. In view of the above discussion, the accused Shailender, Ramesh and Ravinder Kumar are acquitted for the offence under Section 468, IPC but convicted for the offences under Section 419/511, 420/511, 471 and 120B, IPC.
List the matter for hearing on quantum of sentence.
ANNOUNCED IN THE OPEN COURT ON 30.10.2014 (RUCHIKA SINGLA) METROPOLITAN MAGISTRATE-04 DWARKA COURTS, DELHI State v. Pramod & Or.
FIR no. 221/08 PS Kapashera Page 11 of 11