Delhi District Court
State vs ) Asha Rani on 12 August, 2016
IN THE COURT OF SHRI SUSHIL KUMAR, METROPOLITAN
MAGISTRATE : WEST-05, TIS HAZARI COURTS, DELHI
FIR No. : 869/95
P.S. : Tilak Nagar
Unique Case ID No. 63822/2016
State
Vs.
1) Asha Rani, W/o Sh. Ashok Kumar,
R/o WZ-80 (S-311), Village Mahavir Nagar, Delhi.
2) Ashok Kumar, S/o Sh. Sohan Lal,
R/o WZ-80 (S-311), Village Mahavir Nagar, Delhi.
3) Narender Kumar, S/o Sh. Kasturi Lal,
R/o 17/29, Tilak Nagar, Delhi.
Date of institution of case : 15.11.1997
Date of reserving the judgment : 30.07.2016
Date of pronouncement of judgment : 12.08.2016
JUDGMENT
1. S. No. of the Case: 444/2/13.12.08/99
2. Date of Commission of Offence: 25.01.1999
3. Date of institution of the case: Not known
4. Name of the complainant: Smt. Krishna Pahwa
5. Name of the accused: Asha Rani, Ashok Kumar
and Narender Kumar
6. Offence complained or proved: 447/380/411 IPC
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PS Tilak Nagar
7. Plea of Accused: "Not Guilty"
8. Final Order: Acquitted
9. Date of Final Order: 12.08.2016
BRIEF FACTS AND REASONS FOR DECISION
1. This is the prosecution of accused persons namely Asha Rani, Ashok Kumar and Narender Kumar pursuant to a charge sheet filed by the Police Station Tilak Nagar under sections 380/448/506/420/468/471/34 Indian Penal Code, 1860 (hereinafter referred to as IPC) subsequent to the investigation carried out by them in FIR no. 869/95.
2. The case of prosecution is that in the year 1995, the present FIR was registered against accused persons namely Asha Rani and Ashok Kumar for the offences punishable u/s 380/448/506/34 IPC on a written complaint of Complainant Krishna Pahwa wherein she had made allegations that accused persons namely accused Asha Rani and Ashok Kumar had committed house trespass in shop no. 2 WZ-80, Old Mahavir Nagar, Tilak Nagar, Delhi and had also threatened complainant with dire consequences. It was also alleged in the complaint that the said shop was handed over to the husband of complainant by accused persons at the time of taking loan of Rs. 45,000/- from husband of complainant which was never repaid by the accused persons.
3. Investigation of the present matter was carried out by SI Rang Lal FIR No. 869/95 2 of 16 PS Tilak Nagar (PW-14). During investigation, IO collected the original pronotes and a pledge deed from complainant. IO also seized a receipt produced by accused Asha and Ashok whereby the accused persons claimed that they had already repaid the loan amount to the husband of complainant. The said receipt was found to be a forged document and the same resulted in filing a charge-sheet for the offences punishable under sections 380/448/506/420/468/471/34 IPC against accused persons.
4. Accused persons were summoned after the Court took cognizance of the offence. The copies of charge sheet and relevant documents were supplied to accused persons in compliance of Section 207 of Code of Criminal Procedure, 1973 (hereinafter referred to as Cr.P.C).
5. Prima facie case was made out and charge for offences punishable u/s 448/506/420/468/471/34 IPC was framed against accused persons namely Pardeep Kumar and Narender Kumar on 02.03.2001 to which they pleaded not guilty and claimed trial. However, charge for offences punishable u/s 448/506/34 IPC only was framed against accused persons namely Asha Rani and Ashok Kumar to which they also pleaded not guilty and claimed trial. Thereafter, the matter was fixed up for recording of prosecution evidence. It is important to mention that accused Pradeep Kumar died during the trial and therefore, proceedings against him were abated.
6. To prove its case, prosecution examined twelve witnesses in all.
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Thereafter, PE was closed and it was followed by recording of statement of accused u/s 313 Cr.PC. All the incriminating evidence was put to accused persons to which they pleaded innocence and false implication. Accused chose not to lead DE.
7. The Court has carefully perused the case record and have heard arguments advanced by Ld. APP for the state as well as by Ld. Defence counsel.
8. At the onset it would be appropriate to have glance at the gist of deposition made by prosecution witnesses :
PW-1 Smt. Krishna Pahwa is the complainant on whose complaint the present FIR has been registered. It is interesting to mention here that in her examination-in-chief, complainant made allegations against accused Asha Rani only and she did not utter a single word against rest of the accused persons. PW-1 has deposed that on 24.04.1990, accused Asha Rani had borrowed an amount of Rs. 45,000/- from her husband namely late Sh. Sai Das Pahwa who died on 20.06.1990. That accused Asha Rani signed two different pronotes of Rs.
20,000/- (Ex.P-1) and Rs. 25,000/- (Ex.P-2) and Pledge Deed (Ex.P-3) respectively with a promise to return the same on the conditions mentioned therein. That accused Asha Rani could not return the said money within one year and in lieu of that money, accused Asha Rani gave her the shop in question. That she locked that shop from outside and put some household articles therein. That one day, her daughter went FIR No. 869/95 4 of 16 PS Tilak Nagar to the said shop and tried unlock the lock with their key but lock could not be opened. That on enquirying from neighbours, it came to her daughter's knowledge that the locks have been changed. That she went to accused Asha Rani and enquired about the same where she came to know that the rear wall of the shop was broken by accused and the articles lying therein were removed by accused Asha Rani for her own use. That she reported the matter to the police but no action was taken by the police. That she approached DCP office which resulted in lodging of present FIR. That during investigation, on 21.01.96, she went to PS where IO had shown her a receipt whereupon somebody had mentioned Sai Dass. That she told that same is not signature of her husband and that it has been fabricated by accused persons to cheat her.
During cross-examination, PW-1 stated that she was not present at the time when the transaction of loan between accused persons and her husband had taken place in the market. She admitted that documents Ex.P-1 to P-3 were not prepared in her presence. She also stated that she does not know as to where the pronote and pledge deed was executed.
PW-2 Sh. Brij Mohan Kohli is a witness of the pledge deed Ex.P-3. However, initially, PW-2 did not identify his signature upon the pledge deed, however, he identified the same later on.
In cross-examination, PW-3 stated that the pledge deed was not executed in his presence. He also stated that he does not remember who was the first party and who was the second party. That he does not remember the time, date, month or year when he had signed the pledge FIR No. 869/95 5 of 16 PS Tilak Nagar deed. He further stated that he does not know to which property or to which connection this pledge deed was prepared and that he had not read the pledge deed nor it was read over to him by any other person.
PW-3 Sh. Rajesh Narula and PW-4 Sh. Sanjeev Kumar did not support the prosecution version. In their examination-in-chief, both of them stated that accused Ashok Kumar and his son were running the shop in question.
During cross-examination, PW-3 and PW-4 stated that they do not know Mrs. Krishna Pahwa and that they had not seen Krishna Pahwa or any other lady opening the lock of the shop in question or putting the lock on the shop in question.
PW-5 Ct. Yatender Singh deposed that he had collected the FSL result from FSL, Malwiya Nagar in sealed envelope at the directions of IO and that he had handed over the same to the IO.
PW-6 HC Phool Singh identified his signatures upon Seizure Memo which is Ex.PW-6/A. PW-7 Sh. Balbir Singh Chauhan, Depot Manager had handed over two documents having signatures of Mr. Sain Dass (Husband of Complainant) to the IO. PW-7 identified his signatures upon Seizure Memo which is Ex.PW-6/A. PW-8 Sh. Anil Khanna is a witness of the transaction of loan given by husband of the complainant. PW-8 corroborated the testimony of complainant and he testified on the lines of prosecution version.
PW-9 SI Ranglal is the investigation officer of the present case. He narrated all the steps taken by him during the investigation of the FIR No. 869/95 6 of 16 PS Tilak Nagar present case. PW-9 narrated on the lines of prosecution version.
PW-10 Inspector Rajveer Singh is the second Investigation Officer of the present case. He also narrated all the steps taken by him during the investigation of the present case.
PW-11 HC Vijender Singh Kadyan deposed that on 22.01.1996, IO had enquired accused Pradeep Kumar in his presence and had also recorded statement of accused Pradeep Kumar.
PW-12 Sh. Harshwardhan, Asstt. Director (Documents), FSL Haryana, Madhuban, Karnal proved the FSL Report as Ex.PW-12/A.
9. At the onset it would be appropriate to have glance at the ingredients of the offences charged :
Section 420 IPC. 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 destory 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 terms which may extend to seven years, and shall also be liable to fine. Section 448 IPC. Punishment for house-trespass. Whoever commits house-trespass shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both. Section 468 IPC. Forgery for purpose of cheating.
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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. 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 506 IPC . Punishment for criminal intimidation. Whoever commits, the offence of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both;
If threat be to cause death or grievous hurt, etc.- and if the threat be to cause death or grievous hurt, or to cause the destruction of any property by fire, or to cause an offence punishable with death or [imprisonment for life], or with imprisonment for a term which may extend to seven years, or to impute, unchastity to a woman, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.
Section 34 IPC. Acts done by several persons in furtherance of common intention.
When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the FIR No. 869/95 8 of 16 PS Tilak Nagar same manner as if it were done by him alone.
10. Before proceeding further, it is necessary to discuss the relevant legal propositions applicable to the facts of the present case. It is settled proposition of criminal law that the prosecution is supposed to prove its case on judicial file beyond reasonable doubt by leading reliable, cogent and convincing evidence and that in order to prove its case on judicial file, the prosecution is supposed to stand on its own legs whereby it cannot derive any benefit whatsoever from the weaknesses, if any, in the defence of the accused. It is also settled that primary burden of proof for proving offence in a criminal trial rests on the shoulders of the prosecution, which burden never shifts on the accused. It is no longer res integra that accused is entitled to benefit of every reasonable doubt appearing qua material facts of the prosecution story whereby such reasonable doubt entitles the accused to acquittal.
11. Coming back to the factual matrix of the present case. The FIR in question was registered on a complaint of PW-1 Smt. Krishna Pahwa. Initially, the FIR was registered against accused persons namely Asha Rani and Ashok Kumar only for committing house trespass and criminal intimidation. However, two more accused persons were arrested by IO during the investigation of the present case and the offences of cheating and forgery were also found to be committed by the accused persons by the IO. Accused persons namely Asha Rani and Ashok Kumar have been charged for committing offences punishable u/s 448/506/34 IPC only.
FIR No. 869/95 9 of 16 PS Tilak Nagar
Interestingly, complainant Krishna Pahwa (PW-1) did not utter a single word against rest three accused persons and she deposed against accused Asha Rani only. The whole testimony of PW-1 is vague. PW1 has made vague allegations against accused Asha Rani only. No witness who had seen the accused persons committing house trespass in the shop in question has been examined by the prosecution. No witness who had seen the accused persons criminally intimidating the complainant has been examined by the prosecution.
12. It has come in the testimony of two prosecution witnesses namely Sh. Rajesh Narula (PW-3) and Sh. Sanjeev Kumar (PW-4) that accused Ashok Kumar and his son Suraj were running the shop in question. Further, both the above-named prosecution witnesses stated in their cross-examination that they do not know Mrs. Krishna Pahwa (PW-1) and that they had not seen Krishna Pahwa or any other lady opening the lock of the shop in question or putting the lock on the shop in question. The two Pronotes and Pledge deed which are Ex.P-1 to P-3 are unregistered documents. Same does not bear any signature of complainant or her husband. Complainant has admitted in her cross- examination that the said documents were not executed in her presence. She could not tell the exact date when the accused persons had committed house trespass into the shop in question. No recovery of any article belonging to complainant has been effected from any of the accused persons.
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13. The prosecution has examined two prosecution witnesses namely Sh. Brij Mohan Kohli (PW-2) and Sh. Anil Khanna (PW-8) who had witnessed the execution of the Pledge Deed and Promisory Notes. However, PW-2 did not support the prosecution story. He failed to recall the date, time and place of signing the Pledge Deed. On the other hand, PW-2 stated in his cross-examination that he does not know anything about the parties to the said Pledge Deed. He further stated that parties to the said deed had not signed the said deed in his presence and that he does not know to which property or to which connection this pledge deed was prepared. That he had not read the said pledge deed not it was read over to him by any other person.
14. PW-8 Sh. Anil Khanna is a relative of complainant. He has stated in his examination-in-chief that accused Asha Rani and Narender had taken Rs. 45,000/- from the husband of the complainant and that they had executed two promisory notes of Rs. 20,000/- and 25,000/- and one Pledge Deed. He has also deposed that accused Asha Rani had signed on all the documents and that accused Ashok Kumar and one Mr. B.N. Kohli had signed the said documents in his presence. However, on perusal of the said documents, there is nothing in writing which shows that Mr. Anil Khanna (PW-8) was present at the time of execution of the said documents. PW-8 appeared to be an interested witness and his testimony appeared to be unbelievable. Thus, the prosecution has failed to establish that the shop in question was in possession of complainant Krishna Pahwa before commission of the alleged offences and that the FIR No. 869/95 11 of 16 PS Tilak Nagar accused persons had committed house trespass into the shop in question or that they had criminally intimidated the complainant.
15. The prosecution has also levelled allegations of cheating and forgery against accused persons. Accused persons namely Pradeep Kumar and Narender Kumar have been charged for committing offences punishable under sections 420/448/468/471/506/34 IPC. The term 'Cheating' has been defined in section 415 of the IPC. In case titled as "Bishan Das v. State of Punjab and another", (2014) 15 SCC 242, Hon'ble Supreme Court of India has observed that "The essential ingredients to attract section 420 IPC are : (i) cheating ; (ii) dishonest inducement to deliver property or to make, alter or destroy any valuable security or anything which is sealed or is capable of being converted into a valuable security; and (iii) mens rea of accused at the time of making the inducement".
16.The term 'Forgery' has been defined in section 463 of IPC. Fraudulent or dishonest inducement is one of the essential ingredient of the offence of cheating. Making forged document is defined in section 464 IPC. Forgery is the false making of any written instrument for the purpose of fraud or deceit. So fraud is an essential ingredient of forgery. The various elements and forms of forgery are elaborated in the IPC in provisions between sections 466 to 471 IPC, which prescribe varying terms of punishment depending on the severity of the effects of the forgery. Forgery or fraud are essentially matters of evidence which could FIR No. 869/95 12 of 16 PS Tilak Nagar be proved as a fact by direct evidence or by inferences from proved facts.
17. In the present case, initially the FIR was registered against accused Asha Rani and accused Ashok Kumar only for committing house trespass and criminal intimidation. However, during the course of investigation, IO also indicted accused persons namely Narender Kumar and Pradeep Kumar for committing cheating and forgery. To establish the commission of offences of cheating and forgery, the prosecution has relied on a document seized by IO during the investigation of the present case. The said document is Ex.PW-8/B. In his examination-in-chief, PW- 9 IO SI Ranglal has deposed that he had seized one receipt produced by accused Asha Rani and Ashok which is Ex.PW-8/B. However, on being cross-examined by Ld. Defence Counsel, PW-9 stated that document Ex.PW-8/B was received by him from Ld. Sessions Courts during bail matter. This contradiction in the testimony of IO has raised serious doubts on the prosecution story. No seizure memo was prepared by PW- 9 regarding the seizure of document Ex.PW-8/B. IO has given justification that the Ld. Sessions Court had passed an order regarding the handing over of the said document and that he had not placed that order on the Judicial file, but the said justification is not believable.
18. Further, the prosecution has relied on the FSL Report which is Ex.PW-12/A. As per the said report, the specimen handwritings and signatures of accused Pradeep Kumar (now deceased) have matched with the matter written on document Ex.PW-8/A. The said report also FIR No. 869/95 13 of 16 PS Tilak Nagar establishes that the specimen signatures of accused Narender have matched with the signatures done by accused Narender Kumar as witness on the document Ex.PW-8/A. It is also mentioned in the FSL Report that the revenue stamp having parts of a genuine signature has been lifted from some other document and affixed in the present position on document Ex.PW-8/B. As per the FSL report, the maker of document Ex.PW-8/A is accused Pradeep Kumar who had expired during the trial and the proceedings against him had also abated. It has been deposed by IO in his cross-examination that he had not made any application for seeking permission for obtaining specimen handwriting of accused persons.
19. PW-9 (IO) neither obtained permission of the Court for taking the speciment handwriting of accused persons nor he joined any independent witness while taking specimen handwriting of accused persons. Specimen signatures of accused persons namely Asha Rani and Ashok Kumar and of complainant Krishna Pahwa have not been taken by the IO for the reasons best known to him. Specimen signatures of the husband of complainant could not be obtained as he had already expired by then. IO has collected some documents from the office of Sain Dass (Husband of Complainant) for comparison of signatures on document Ex.PW-8/B which also appears to be done in a haphazard manner. No seizure memo at the time of seizure of document Ex.PW-8/B has been prepared by the IO. No order of Ld. Session Court regarding the handing over of same has been placed on record by the IO. All these these circumstances raises FIR No. 869/95 14 of 16 PS Tilak Nagar serious doubts on the prosection story and the document Ex.PW-8/B cannot be relied upon. The possibility of false implication of accused persons in fake case of cheating and forgery cannot be ruled out.
20. The prosecution has also not been able to establish that accused had committed criminal trespass in the shop in question or that they criminally intimidated the complainant. The prosecution has also failed to establish that accused persons had cheated the complainant or that document Ex.PW-8/B has been forged by them. The chain of circumstances is thus not complete and does not point unerringly towards the guilt of the accused. The prosecution has failed in proving the connection between the alleged offence and the complicity of accused therein. The absence of any definitive evidence renders prosecution story suspicious and unreliable.
21. In case titled Partap v. State, AIR 1976 SC 966 it has been observed by Hon'ble Supreme Court that "The right of accused to obtain the benefit of a reasonable doubt is the necessary outcome and counterpart of the prosecution's undeniable duty to establish its case beyond reasonable doubt and that this right is available to the accused even if he fails to discharge his own duty to prove fully the exception pleaded."
22. In case tited Sharad Birdhichand Sarda v. State, AIR 1984 SC 1622 it has been observed by Hon'ble Supreme Court that "Where on the evidence two possibilities were available, one which went in the FIR No. 869/95 15 of 16 PS Tilak Nagar favour of the prosecution and the other which benefited the accused, the accused was undoubtedly entitled to the benefit of doubt. The principle had special relevance where the guilt of accused was sought to be established by evidence."
23. In view of above discussion, this Court is of view that the evidence apparent on record is insufficient for basing the conviction of accused persons. The benefit of doubt goes in favour of accused persons and they are entitled to be exonerated. The burden to prove the case beyond reasonable doubt lies on the shoulder of the prosecution. Every accused is to be presumed innocent until proved guilty. The accused cannot be convicted on the basis of mere probabilities or presumptions. Suspicion howsoever grave may be, cannot take place of proof.
24. Accordingly, accused persons namely Asha Rani and Ashok Kumar are acquitted for the offences punishable under sections 448/506/34 IPC in the present case. Accused Narender Kumar is also acquitted for the offences punishable under sections 420/448/468/471/506/34 IPC in the present case. Bail bonds are cancelled and surety is discharged. Documents, if any be returned after cancellation of endorsement on the same. File be consigned to record room after due compliance. Bail Bonds in compliance of section 437 A of Cr.PC be furnished which shall remain valid for a period of six months.
Announced in open Court (SUSHIL KUMAR)
on 12th day of August 2016 Metropolitan Magistrate
West-05, Delhi
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PS Tilak Nagar