Delhi District Court
State vs . Naresh Kumar & Ors on 22 February, 2012
IN THE COURT OF MS. MONA TARDI KERKETTA, METROPOLITAN MAGISTRATE-08 (SE), SAKET COURTS, NEW DELHI STATE Vs. NARESH KUMAR & ORS FIR NO. : 629/02 P.S. : Lajpat Nagar U.S. : 383/420/323/506/34 IPC Date of institution of case : 13.08.2003 Date on which case reserved : 22.02.2012 for judgment Date of judgment : 22.02.2012 JUDGEMENT U/S 350 Cr.PC.: a) Date of offence : 09.09.02 b) Offence complained of : U/s.383/420/323/506/34 IPC (Charge framed U/s.323/506-I/ 34 IPC) c) Name of accused Persons, their parentage : 1. Naresh Kumar S/o Sh. Shiv Ram R/o 150, RPS Colony, DDA Flats, Opp. Khanpur Depot, New Delhi. 2. Alok Kumar S/o C.L. Shrivastav R/o 113 F, Sector-4, Pushp Vihar (10/236, Amrit Puri, Garhi, Delhi), New Delhi. d) Plea of accused : Pleaded not guilty e) Final order : Acquitted Counsels for the Parties:- For the State :- Ms. Nidhi Bala For the Accused Persons :- Sh. Sandeep Goel BRIEF REASONS FOR THE DECISION OF THE CASE:- FIR No. 629/02 PS-Lajpat Nagar State Vs. Naresh Kumar & Ors. 1/13 1.
In brief the case of Prosecution is that the Complainant was working as a Delivery Man with the Gas Agency of accused Naresh Kumar, who had taken a refundable security deposit of Rs.40,000/- from the complainant at the time joining his service. Later on, complainant left the job of accused Naresh Kumar and requested the accused to refund his security deposits, on which accused Naresh Kumar issued a cheque to the tune of security deposit of Rs.40,000/-, but said cheque was got dishonoured on presentations. Thereafter, on 09.09.02, the Complainant along with one Sh. Babudin reached at the said gas agency, situated at 4/51, Gupta Market, Old Double Storey, Lajpat Nagar, New Delhi on the assurance of accused person to refund the said amount in cash on his return of said dishonoured cheque, but instead of refunding the security deposits, both accused in furtherance of their common intention snatched away the cheque, threatened them to cause death or grievous hurt and also caused simple injuries to the Complainant and thereby committed offences punishable under section 383/420/ 323/506/34 IPC.
2. After completion of investigation, charge sheet was filed against both accused persons in the court. Cognizance of the offence was taken and they were summoned to face the trial for the offence allegedly committed by them. Separate Charges for the offence punishable U/s. 323/506-I/34 IPC and 392/34 IPC were framed against them on 13.10.2004 and 20.04.2011, to which they individually pleaded not guilty & claimed trial. However during the trial, Sessions Court, vide its order dated 13.10.11, set aside the order of Ld. Predecessor for framing the additional charge U/s. 392/34 IPC.
3. In order to substantiate its version, prosecution filed the list of as many as five witnesses including Complainant and Public witness Babudin.
4. PW1 Sh. Ram Niwas deposed that in the month of February 1999, he was working as a Delivery Man with Sachin Gas Agency owned by the FIR No. 629/02 PS-Lajpat Nagar State Vs. Naresh Kumar & Ors. 2/13 accused Naresh Kumar, who had taken Rs. 40,000/- as security deposit to take the gas cylinders. He left the job after performing his work satisfactorily for about 42 months. On the completion of work, he requested the accused Naresh Kumar to refund the said security amount. On this accused issued one cheque, which was presented for encashment twice, but the same got dishonoured on both occasions. He telephonically informed the accused Naresh Kumar, who asked him to meet on 09.09.02. On that day he reached at the office of accused , where both accused and two other persons were also present. Accused Naresh asked him to return the said cheque, so that he could pay him the said amount in cash. But despite of it accused snatched cheque from his hand and gave him several beatings and even no money was paid. At the time of incident, accused Alok was also present and he was made to run from the office of accused. He further deposed that he got a complaint lodged with PP Amar Colony, but no action was taken. Thereafter, he filed a complaint before the Court and after hearing, Court passed the order directing the police to register a case against the accused persons.
5. He also proved his complaint Ex. PW1/A, Memo of dishonouring of cheque Mark 'B', Undertaking regarding the Security amount Mark 'C', Copy of RC of his TSR Mark 'D' and Seizure memo Ex. PW1/B, vide which Police had seized the said documents. He also deposed that on 09.09.02, his friend Babudeen had also accompanied him to the office of accused, where he was beaten by the accused persons and that he did not want to say anything. At that stage, Ld. Public Prosecutor sought the permission of court to cross examine him on some material facts as he was not supporting the statement, which he had earlier given to Police. During cross examination he admitted that the accused persons intimidated and threatened him to cause death or grievous hurt and admitted that due to lapse of time, he could not mention the above said facts in his examination of chief. He also identified the accused persons present in the court.
FIR No. 629/02 PS-Lajpat Nagar State Vs. Naresh Kumar & Ors. 3/13
6. During cross examination by Ld. defence counsel, he deposed that prior to filing of complaint, he had already worked with the accused Naresh, but he could not tell the exact date when he joined the gas agency of accused. He deposed that prior to that he used to drive the TSR of Chaudhary Randhir Singh, who was also working under the accused Naresh. Prior to his joining, 8 other delivery men including his brother were also working with the accused Naresh, who had also deposited security amount of Rs. 30,000/- each with the accused Naresh. He further deposed that he used to deliver 20-22 cylinders daily and worked for 6 days in a week and as per agreement accused Naresh had to pay commission of Rs. 5 per cylinder but accused had paid one month salary only during his 42 months employment, but he admitted that he had not mentioned about it in his complaint. He deposed that accused used to convert 24 cylinders out of 22 cylinders by transferring the gas in other empty cylinders with the help of pipe. He admitted that he used to sell said cylinders in black market for Rs. 270-280 but the actual cost the cylinder was of Rs.236 and used to retain the said with him and that is why accused Naresh did not pay him any commission as promised as he was already earning money from black marketing of cylinders. He also admitted that he had not mentioned about said fact in his complaint or supplementary statement given to police. He also admitted that accused never told him to sell the gas cylinder in black market and on his own he used to sell the cylinders in black market without informing the accused and without their knowledge. He also admitted that he did not lodge any complaint regarding the black marketing of gas Cylinders to Police. He further deposed that he could not tell the exact date when he had demanded his security money. He admitted that he had not enquired from any other delivery man, if accused was making regular payments of commission regularly. He could not tell the exact date when the cheque was given to him, but it was in the month of August, 2002. He admitted that there was no dispute with the accused at the time of releasing the said cheque. He admitted that on the first instance, he did not inform the accused when the FIR No. 629/02 PS-Lajpat Nagar State Vs. Naresh Kumar & Ors. 4/13 said cheque was bounced, but he telephonically informed him when it got dishonoured for the second time in month of Sept. 2002. He admitted that he was known to Babudin for last 3 years prior to the date of incident. He deposed that on the date of incident, they had reached the office of accused at about 09-10 am. He admitted that Babudin was standing outside the office and had not seen when the accused persons were giving beatings to him. He also admitted that he did not receive any visible injury or bleeding caused on getting beatings as accused persons had slapped him on his face. He admitted that Since Babudin was present outside therefore he was not beaten by the accused persons. He deposed that some residential houses were situated near the office of accused but no public persons were present when he was being beaten by the accused persons. He admitted that he had not gone to the hospital after the incident and straightaway gone to a lawyer, who prepared a complaint and told him to give it at PP-Amar Colony, but he could not tell the name of that lawyer. He denied the suggestion that he removed from the job as customers had made complaint against him for black marketing and short supply of gas cylinder and therefore he had held grudges against the accused. He also denied that he was not beaten or threatened by the accused persons and that he was already paid the cash payment of Rs. 40,000/- in lieu of said dishonoured cheque. He also denied that that he had taken the cash of Rs. 40,000/- from accused, in presence of one Munna Lal, who had signed the receipt as witness, but he reused to sign it and filed a false complaint in order to extort money from the accused persons.
7. PW2 Sh. Babudin deposed that Complainant was having visiting terms with him. He further deposed that the complainant used to work with the agency of accused and that he had deposited the security amount of Rs. 40,000/- with accused and for repayment of said security amount accused had issued a cheque. When the said cheque was presented for encashment, dishonoured. Complainant again presented the said cheque but it was again FIR No. 629/02 PS-Lajpat Nagar State Vs. Naresh Kumar & Ors. 5/13 dishonoured. He further deposed that on 09.09.02, he accompanied the complainant to the gas agency of accused where the accused persons asked the complainant to hand over the said cheque so that they could repay the said amount in cash but even after having it they did not pay the security amount in cash. He further deposed that he and Complainant were threatened to be beaten by the accused persons and were made to leave the place. After deposing as above, he stated that he did not want to say anything. At that stage, he was subjected to cross examination by the Ld. Prosecutor as he was resiling from his previous statement. During cross examination he admitted that accused persons had intimidated and threatened the complainant to cause death or grievous hurt and also beaten him. He denied the suggest that he is deposing falsely being won over by the accused persons.
8. During cross examination by Ld. defence counsel, he deposed that he entered into the office of accused along with complainant. Initially two persons were present in the office and later on 2-3 more persons also came there. He pointed out towards accused Naresh saying that he was the person, who had demanded the cheque from complainant. He also deposed that they remained there for about 10-15 minutes but when that accused persons were about to beat them, they ran away from the spot. He also deposed that they went to their respective houses and on the same day they went to Police for getting the complaint lodged against the accused persons, but Police did not record their complaint. He denied the suggestion that they had never gone to the office of accused persons or that he was deposing falsely. He denied having knowledge, if the accused persons had repaid the amount of Rs. 40,000/- to the complainant subsequently.
9. PW3 Inspector Ramesh Dahiya deposed that on 27.09.02, an order for registration of FIR was received at P.S. He made the endorsement Ex. PW3/A on the complaint, bearing his signatures at point A. FIR No. 629/02 PS-Lajpat Nagar State Vs. Naresh Kumar & Ors. 6/13 The complaint was sent through Ct. Sangram Singh for registration of FIR, who went to PS and came back with a copy of FIR Mark 'A' after registration of FIR and he carried out the further investigation in the case. During investigation he recorded the statement of complainant. Complainant also handed him over the photocopies of cheque of Rs. 40,000/- dated 25.8.02, Return Memo of PNB Bank, Receipt and RC of three wheeler Mark A to D, which were seized vide seizure memo Ex. PW1/B. He further deposed that he moved an application Ex. PW3/B for verifying the cheque No. 534744 of Account No. 22423. On his application, the Bank official supplied him the Bank Statement Mark E. On 29.03.03, both accused persons were arrested and their personal search was conducted vide memos Ex. PW3/C to Ex. PW3/F. The accused persons were already on anticipatory bail so they were released on furnishing bail bonds. He further deposed that accused persons had already given cash order No. 698620, dated 25.3.03 for a sum of Rs. 40,000/- of PNB Bank, Lajpat Nagar, New Delhi to the complainant without prejudice to their right at the time of grant of anticipatory bail. He also deposed that he recorded the statement of witnesses and placed all the relevant documents on record and thereafter on 22.04.03, he was transferred from PS Lajpat Nagar and Charge sheet was prepared by the SHO and was filed in the Court.
10. During cross examination he deposed that he had gone to Sachin Gas Agency 05-6 times to apprehend the accused persons, but he could not tell the exact dates when he visited their office. He admitted that once he met the complainant at the said gas agency, but did not remember the exact date. He admitted that 10-12 shops were also situated around the shop of accused, but he had not inquired from said shops about the incident. He deposed that he had recorded the statement of Complainant on 08.10.02 and 25.11.02 and the statement of Babu Deen on 18.2.03 but he also admitted that he had not taken Babu Deen to the place of occurrence. He admitted that the accused persons had come to the Police chowki in FIR No. 629/02 PS-Lajpat Nagar State Vs. Naresh Kumar & Ors. 7/13 pursuant to notice served upon them. He admitted that Complainant was not present when the accused persons were arrested. He deposed that the original cheque could not be recovered. He had inquired from the Manager of PNB Bank who informed that the original bounced cheque and return memo were returned to the complainant. He admitted that he had not procured the original or certified Bank Statement of accused Naresh from the bank. He also admitted that he had not got the complainant medically examined after lodging of FIR and that no Site Plan was prepared and even no photographs of the place of incident were taken. He denied the suggestion that the matter was not investigated properly. He also denied that the accused persons had already made the payment of Rs. 40,000/- to the complainant in lieu of said dishonoured cheque but despite of it the complainant with malafide intention in order to black mail, harass and extort money from the accused persons, got lodged a false case against them. He also denied that he had never visited the place of incident and had prepared all the documents in the PS. He admitted that SI Bhopal accompanied him to the place of incident once, but he was not cited as a witness in this case. On other five occasions, he visited the spot alone and no other Police Officials or Public Persons accompanied him.
11. PW4 Sh. ASI Prakash Singh, Duty Officer, proved the copy of FIR Ex. PW4/A and endorsement on the rukka Ex. PW4/B, bearing his signatures at point A.
12. PW5 Sh. Hukam Chand, CTO, Punjab National Bank, Lajpat Nagar Branch, had brought the copy of Account Number 22423 of accused Naresh Kumar. He also proved the copies of Specimen Signature of accused Naresh Kumar, Account Opening Form and Cheque Returning Register vide Ex. PW5/A to PW5/C, PW5/D1 and D2, bearing the signatures of Sr. Manager Sh. O.P. Paharia and Sh. V.K. Oberoi. During cross examination he admitted that all the aforesaid exhibited documents Ex. PW5/A to PW5/C, FIR No. 629/02 PS-Lajpat Nagar State Vs. Naresh Kumar & Ors. 8/13 PW5/D1 were not attested as per Bankers Book Evidence Act. He denied the suggestion that since the aforesaid documents were not attested as per Bankers Book Evidence Act, therefore, the same could not be read in evidence against the accused persons. He denied that he was deposing falsely and that he had brought the false record.
13. Thereafter, no other Prosecution witness was left to be examined hence, Prosecution Evidence was closed. Statements of accused persons u/s 313 Cr. P.C. were recorded, wherein the entire incriminating circumstances appearing on record against them were put, to which they denied as false & incorrect. However, they did not lead evidence in their defence.
14. The main arguments of Defence are:-
(1) The testimony of complainant is full of contradictions. It can not be relied upon as several discrepancies and improvements can be seen which are rendering the entire case of prosecution doubtful. Para 6 of the complaint Ex PW1/A, does not disclose the entire facts as testified by the complainant in his testimony.
(2) Testimony of Public witness Sh. Babudin also discloses altogether different facts. He has not supported the complainant in material particulars. He is an interested witness being the friend of the complainant.
No Public Persons have been made witness in the present case despite their availability which also casts a serious doubt over the truthfulness of Prosecution case.
(3) Complainant has filed a false case against accused persons as he was removed from the job when many customers started making complaints against him regarding selling of LPG in black by charging extra money and for supply of lesser quantity of gas and therefore he nursed grudge against the accused persons and filed a false and frivolous complaint FIR No. 629/02 PS-Lajpat Nagar State Vs. Naresh Kumar & Ors. 9/13 against them.
(4) Accused persons have already paid a sum of Rs.40,000/- in cash in lieu of dishonoured cheque in the presence of one Munna Lal who had signed the receipt as witness but the complainant refused to sign the same stating that he had already returned the dishonoured cheque and there was no requirement of execution of receipt for taking cash of Rs.40,000/- and that present case has been filed in order to blackmail and to extort money from the accused persons.
15. The main arguments of Prosecution are:-
(1) All the ingredients of offences which the accused persons charged with are fully satisfied.
(2) Contradictions appearing in the testimonies of Prosecution witnesses are minor in nature and these are bound to occur with the passage of time. All the Prosecution witnesses have supported each other in material particulars and their testimonies are quite convincing and trustworthy.
(3) Accused persons were involved in the black marketing of LPG and gas cylinders. When the Complainant raised this issue strongly then he was denied his commission and ultimately he was removed from the job.
16. Court has heard the submissions of both sides and has also perused the entire record including the testimonies of witnesses. After going through the entire record, the Court has no hesitation in holding the Prosecution has miserably failed to prove its case against both accused persons beyond reasonable doubt.
17. Ld. Defence Counsel has rightly argued that there are major contradictions and improvements in the testimonies of PW1 and 2, which are making the entire case of Prosecution doubtful. PW1 has not spoken FIR No. 629/02 PS-Lajpat Nagar State Vs. Naresh Kumar & Ors. 10/13 anything about the alleged threats and criminal intimidation extended by the accused persons. Even PW2 has not testified about it in his deposition and that is why they were declared hostile and were subjected to cross examination by the Ld. Public Prosecutor when they did not speak anything about the alleged threats extended. It is seen that the Para 6 of the complaint Ex. PW1/A, also does not disclose anything about the alleged threat and intimidation except that the accused persons had threatened the complainant of dire consequence. It also does not disclose as to what threats and intimidations were given by the accused persons to the complainant at the time of incident. However, in his testimony, complainant has alleged that the accused persons had threatened him of causing grievous hurt and also of his life. The complaint Ex. PW1/A, also does not disclose the fact of cheque having been snatched by the accused persons. The statements recorded U/s 161 IPC during the investigation are also silent about the said fact. Though PW2 has stated about the fact of snatching of cheque but his testimony can not be relied upon as he has not supported the version of complainant in material particulars. The allegation of the cheque having been snatched came for the first time during the statement of complainant which was recorded on 04.05.06 i.e. almost four years after lodging of the case and admittedly complainant did not get the complaint lodged immediately after the incident, but he preferred to go to an advocate, who drafted his complaint.
18. It is also seen that the complainant has alleged that he was beaten by the accused persons, but at the same time he is also admitting that no one except accused persons were present at the spot. He has admitted that even PW2 was standing outside the office when he slapped by the accused persons and PW2 had not seen the accused persons beating him. But PW2 has testified that they ran away from the spot fearing that the accused persons would beat them. PW1 has admitted that he did not receive any visible injuries and that he had not gone to the hospital for getting himself medically examined after being beaten by the accused persons and instead FIR No. 629/02 PS-Lajpat Nagar State Vs. Naresh Kumar & Ors. 11/13 of going to the hospital, he went to his advocate, who prepared the complaint on his behalf and he filed it before the Police post of Amar Colony. PW3 has also admitted that he did not get the complainant medically examined after registering of the case. Further, PW1 has also admitted that his real brother Vikram was also working with the accused persons and on the completion of work, he was refunded with his security deposits without any hitch. He has also admitted that there was no dispute with the accused persons at the time of releasing of cheque.
19. It is seen that the Complainant himself has admitted that he used to sell the cylinders in which LPG were extracted from the other filled cylinders with the help of pipe for Rs.270-280/- but the actual cost was of Rs. 236/- and that he used to retain the extra black money received from the customers and therefore accused Naresh did not pay him commission. He has also admitted that he has not mentioned about this fact in his complaint Ex PW1/A. He has alleged that accused persons were also involved in the black marketing of LPG but he did not file any complaint against the accused persons regarding their activities. Hence, complainant can not be allowed to be benefited from his own wrong doings. This fact fortifies the stand of accused persons that the complainant was removed from the job after the customers started making several complaints against the complainant. It is also noticeable that both the material witnesses have not testified anything against the co-accused Alok except his presence at the spot. They have stated about the specific role of said accused in the entire incident.
20. The testimony of PW2 can not be relied upon. It has disclosed many contradictions and does not support the testimony of complainant in material particulars. He has deposed that he had entered into the office of accused along with complainant and initially two persons were present in the office and later on 2-3 more persons also came there. He had pointed out towards accused Naresh stating that he was the person, who had demanded FIR No. 629/02 PS-Lajpat Nagar State Vs. Naresh Kumar & Ors. 12/13 the cheque from Complainant. He has also deposed that they remained there for about 10-15 minutes, but when that accused persons were about to beat them, they ran away from the spot and after the incident they went to their respective houses. However complainant has stated that PW2 was standing outside the office and he did not witness as to what was happening between him and accused persons inside the office.
21. In view of foregoing reasons, Court is of the view that the prosecution has failed to bring such materials on record which would have gone to prove the guilt of accused persons beyond reasonable doubt and holding them guilty for the offence allegedly committed by them. Hence , both accused persons are hereby acquitted from the charge framed U/s. 323/506- I/34 IPC.
22. File be consigned to record room after completion of necessary formalities.
ANNOUNCED IN THE OPEN COURT (MONA TARDI KERKETTA)
TODAY ON 22.02.2012 MM-08 (South-East)
Saket Courts, New Delhi
FIR No. 629/02 PS-Lajpat Nagar State Vs. Naresh Kumar & Ors. 13/13