Delhi District Court
State vs Dhananjay Kumar Verma & Anr on 30 August, 2018
IN THE COURT OF MS. POOJA TALWAR
CHIEF METROPOLITAN MAGISTRATE (SOUTH)
SAKET DISTRICT COURTS, DELHI
In the matter of :
State
Vs.
Dhananjay Kumar Verma & Anr.
FIR No. 497/2006
P.S R.K. Puram (EOW)
JUDGMENT
1. Sr. No. of case 2039317/2016
2. Date of institution 26.02.2007
3. Name of the complainant Sh. Mathew Labban
S/o Sh. K.G. Labban
R/o Ravera Bhawan near
Ambala Kavadu,
Puthakanamathrth, Kerala, the
representative of M/s. St.
George Foods, Futhoor (PO),
Kollam Kerala.
FIR No. 497/2006 PS R.K. Puram (EOW) Page- 1 of 41
4. Date of commission of offence In the month of October, 2005
5. Name of accused 1. Dhananjay Kumar Verma
@ D.K. Verma
S/o Late B. Prasad
R/o 582, Iqbal Mansion,
Mango Chowk, Jamshedpur,
Jharkhand.
2. Sushant Puri
S/o Sh. Ashok Puri
R/o 78-B, Govind Nagar,
Ambala Cantt, Haryana (PO
vide order dated 23.03.2011)
6. Offence complained of U/s
406/419/420/467/468/471/34/1
20 B IPC.
7. Plea of accused Pleaded not guilty
8. Date of reserving the judgment 21.08.2018
9. Final order Convicted
10 Date of such judgment 30.08.2018
BRIEF STATEMENT OF REASONS FOR
THE DECISION OF THE CASE
1. The story of prosecution is that a complaint was received from the Authorized Representative of M/s St. George Foods FIR No. 497/2006 PS R.K. Puram (EOW) Page- 2 of 41 stating that one Sushant Puri approached them in Kerala in October, 2005. He represented that he had availability of raw cashew nuts from Nigeria. He informed them in February, 2006 that the cashew nuts were ready hence, they entered into a contract with Sushant Puri through his company named M/s. Indo Afric Marketing Impex. Documents including Shipping, Bill of lading, High Seas sale agreements and all documents for import were sent to them. As per the agreement, 80% of the total invoice value was paid by cheque to the account of Sushant Puri for Rs. 12,35,098/-. When the cargo got indefinitely delayed, an enquiry was conducted. It was found that the documents were forged. During the course of enquiry, three more complaints were received against the aforesaid accused. During investigation, it was found that the proprietor of M/s. Indo Afric Marketing Impex was one Dhananjay Kumar Verma. He was the authorized signatory of the account and the amount was received in the account of M/s Indo Afric Marketing Impex. The entire amount was withdrawn by the authorized signatory Dhananjay Kumar Verma by way of self cheques. Sushant Puri could not be traced and was subsequently declared as an absconder. Investigation qua Dhananajay Kumar Verma was FIR No. 497/2006 PS R.K. Puram (EOW) Page- 3 of 41 concluded and chargesheet was filed.
2. Provisions of Section 207 Cr.P.C. were complied with. On appearance of accused persons before Court and prima facie case having been made out, charge for the offence of under section 120B/420/468/471 IPC read with section 120B IPC was framed.
3. In order to prove its case, prosecution examined 19 witnesses in all.
4. Sh. Harbeer Singh was examined as PW1. He deposed that he was running business of hardware and sanitary fittings. He used to visit Kerala for last 40 years for business purpose. One Shri Kumar, who used to ran a shop in the name and style of Shri Kumar Hardware, was the brother-in-law of one Ranjit Kumar, who owns Vishu Cashew Factory in Kerala. When he visited Kerala once, he was apprised by Shri Kumar that some forgery had been done with him. When he returned back to Delhi, he received some documents from Shri Kumar through registered post. He was instructed by Shri Kumar to hand over the same to the IO of present case. On 23.08.2006, he handed over the registered post envelope containing documents to IO.
FIR No. 497/2006 PS R.K. Puram (EOW) Page- 4 of 41 IO seized the documents through seizure memo vide Ex.PW1/A. Documents are Ex.P1 to Ex.P4.
5. Sh. Mathew Laban was examined as PW2. He deposed in October, 2005 one Sushant Puri (since P.O.) came to Kerala with Mr. Dilip Kumar and met him. Both the persons told him that they were doing the business of raw cashew. Thereafter, a contract was entered in writing between St. George Foods and Lourdes Matha Cashew Industries and Thomsan Cashew Company. Thereafter, they paid 80 % payment of each viz., Rs.12,35,098/- from St. George; Rs.24,70,195 from Lourdes Matha Cashew and Rs.10,00,000/- of the total agreed amount from Thomsan Cashew Company, to Indo Afric Marketing Impex, Somdutt Chamber, Block-2, Bikaji Cama Place, 7th Floor. Thereafter, accused persons sent some documents (including shipping bill of lading, High Seas sales agreement and all other documents for import) through courier. Thereafter, they called the accused Sushant several times but he did not reply and they did not receive the raw cashew. Thereafter, they started inquiry regarding the Indo Africa Marketing Impex and found that the company had already been closed and accused Sushant was not found or available despite his best efforts. In FIR No. 497/2006 PS R.K. Puram (EOW) Page- 5 of 41 the meantime they came to know that the accused had cheated many other persons in Kerala and a total of Rs.1,26,00,000/- was taken by the accused from them. He made a written complaint to the Commissioner of Police vide Ex.PW2/A. Thereafter, he handed over some material documents to IO of the case viz, the authority letters from St. George Foods and Lourdes Matha Cashew Industries and Thomsan Cashew Company vide Ex.PW2/B to Ex.PW2/D. The details of St. George Foods (High Seas agreement Ex.PW2/E, High Seas invoices Ex.PW2/F, bill of lading Ex.PW2/G, weight certificate (packing list) Ex.PW2/H, certificate of origin Ex.PW2/I, phythocenetary certificate Ex.PW2/J and steamer line letter Ex.PW2/K. The details of Thomsan Cashew Company and the documents High seas Sale Agreement Ex.PW2/X1, packing list Ex.PW2/X2, High seas sale Ex.PW2/X3, bill of lading Ex.PW2/X4, phythocenetary certificate Ex.PW2/X5, certificate of origin Ex.PW2/X6, steamer/container line document Ex.PW2/X7, letter to custom house Cochin Ex.PW2/X8 and weight certificate Ex.PW2/X9. The details of documents of company Lourdes Matha Cashew Industries Ex.PW2/L. IO recorded his statement.
FIR No. 497/2006 PS R.K. Puram (EOW) Page- 6 of 41
6. Sh. S. Renjith Lal was examined as PW3. He deposed that during October, 2005 accused Sushant Puri with a local broker Mr. Dalip of Star Trading Company Kollam met them and discussed about purchase of raw cashew nuts from Nigeria. They agreed and asked him to contact during the session. During February, 2006 he put a contract for 100 MT in his company name Mahavishnu Cashew Factory further he sent all the original documents viz, High Seas Sales Agreement, High Seas Sales Invoice, Original bill of lading, weight certificates, certificate of origin, phythosanitary certificate, steamer line, customs letter, packing list and foreign invoice. On the basis of said documents as per the contract they prepared a DD in favour of M/s. Indo Afric Marketing Impex for 80 percentage of the high seas sales invoice amounted to Rs.11,07680/- which was given to above mentioned company account No. 032205000314 at ICICI Bank, Delhi as instructed by accused Sushant Puri. Cargo was indefinitely delayed and they were doubtful about this and started inquiry with their friends and other sources and found all the documents were forged and no such cargo was shipped. They tried to contact accused Sushant Puri but to no avail. He made complaint dated 23.05.2006 which is Ex.PW3/A. FIR No. 497/2006 PS R.K. Puram (EOW) Page- 7 of 41 He handed over all the material documents to IO vide letter dated 08.08.2006 vide Ex.PW3/B, documents which were sent by the M/s. Indo Afric Marketing Impex to their company vide Ex.PW3/C (bill of lading) and Ex.PW3/A1 High Seas Sales Agreement, steamer line Ex.PW3/A2, customs letter Ex.PW3/A3, packing list Ex.PW3/A4, foreign invoice Ex.PW3/A5, high seas sales invoice Ex.PW3/A6, phythosanitary certificate Ex.PW3/A7, certificate of origin Ex.PW3/A8 and weight certificates Ex.PW3/A9. The true copy of DD in favour of Indo Afric Marketing Impex to their account No. 032205000314 of ICICI Bank is Ex.PW3/A10. IO recorded his statement.
7. Sh. Ravi Chopra was examined as PW4. He deposed that he did not know anything about the present case. Witness was also cross-examined by Ld. APP. Witness correctly identified the stamp paper vide Ex.PW4/1 which was issued by his wife and the particulars regarding serial No.116323 dated 01.03.2006 was mentioned on the back side of the stamp paper.
8. Sh. Naresh Kumar was examined as PW5. He deposed that in the year 2006, he was working as Stamp Vendor at Flat No. QU/259-A/3, Peetampura. During that period he had sold stamp FIR No. 497/2006 PS R.K. Puram (EOW) Page- 8 of 41 paper of Rs.50/- in a blank condition and was bearing No. B- 437331. On the back side of stamp paper particulars of stamp paper were mentioned as serial No.96358 dated 08.02.2006 sold to M/s Indo Afric Marketing. The stamp paper Ex.PW5/1. The record pertaining to the above mentioned stamp paper was available at SDM/DC office, Kanjhawala. He further deposed that IO did not record his statement. He had sold blank stamp papers bearing No.B437331, B437333 and B437334 vide stamp register serial No.96358, 96360 and 96361 in the name of M/s Indo Afric Marketing Pvt. Ltd. vide Ex.PW5/1, Ex.PW5/2 and Ex.PW5/3. Stamp register containing serial number of the stamps as mentioned above was deposited at DC office, Kanjhwala by him. Police recorded his statement.
9. Sh. Deepak Rana was examined as PW6. He deposed that in the year 1997, his father Sh. Ram Kishan Rana helped Sh. Ashok Puri for procuring a plot at Khera Gaon. Accused Sushant Puri was son of Sh. Ashok Puri. Ashok Puri was working in Nigeria. Family members of Ashok Puri were residing in Shalimar Bagh. In the year 1997, Sh. Ashok Puri had established milk dairy on the said plot. He alongwith his father used to visit that dairy and there he used to meet with accused FIR No. 497/2006 PS R.K. Puram (EOW) Page- 9 of 41 Sushant Puri. Accused Sushant Puri got married in the farm house of their village. After sometime Sh. Ashok Puri closed the dairy and built up a house on that plot. Sh. Ashok Puri and accused Sushant Puri lived at Khera Goan till 2003 and thereafter, they sold the house at Khera Goan and shifted at PQ- 10 Pitampura. Thereafter, accused Sushant Puri used to meet him and they had a good relationship. In the year 2007, accused Sushant Puri went abroad and came back after few days. In the year 2006, he had sold his ancestral land for the sum of Rs.40 lakhs. Accused Sushant Puri advised him to invest his money in the business of cashew nut. He induced him that the business of cashew nut was very lucrative but his family members forbade him so he did not invest the money in the business. Accused Sushant Puri took Rs.2 lakhs from him on interest. In the month of April, 2006 accused Sushant Puri vacated the house at PQ-10 Pitampura and came to his house with a tempo loaded with his house hold articles and asked him to unload the articles in his house but he denied. Accused Sushant Puri did not give him documents of the vehicle. Accused Sushant Puri told him that he had brought a plot near Jammu Airport and also assured him that as soon as this plot is sold he shall return his money. Thereafter, FIR No. 497/2006 PS R.K. Puram (EOW) Page- 10 of 41 he is not in contact with accused Sushant Puri. He gave all the three dishonoured cheques which were given by accused Sushant Puri to police vide seizure memo Ex.PW6/A. Those cheques alongwith cheque return memo are Ex.PW6/A1 to Ex.PW6/A3.
10. Sh. Devender Bakshi was examined as PW7. He deposed that in the year 2006, he was running a car security system business from his house. Premises No.710, Kirti Shikhar District Centre Janakpuri was a joint property owned by him and his sister Satvinder Kaur. On 16.03.2006, they let out the above said property to Sh. Rakesh Aggarwal for office use at the rate of Rs.11,000/- per month. Rent agreement was executed in the name of Sh. Rakesh Aggarwal. The deal was executed through Mr. Gopal Sharma, proprietor of M/s. Janakpuri Estate Jain Tower-I. There was one another boy who used to come alongwith Sh. Rakesh Aggarwal i.e accused Sushant Puri. Police had also shown him his photograph and he identified him. The real name of Rakesh Aggarwal was later on revealed as Rakesh Kumar Gandhi. Rakesh Kumar Gandhi and accused Sushant Puri opened an office on the above said rented premises in the name and style of TNC Containers Lines Co. Ltd. which was FIR No. 497/2006 PS R.K. Puram (EOW) Page- 11 of 41 later on closed by them. Police recorded his statement. He had handed over photocopy of police verification form and original rent agreement to police vide seizure memo Ex.PW7/A. The police verification form and original rent agreement is Ex.PW7/A1 and Ex.PW7/A2.
11. Sh. Megh Raj Chugh was examined as PW8. He deposed that in the year 2005, he was working as Foreign Trade Consultant. Accused Sushant Puri who was known to him asked him to get import export certificate in the name of Indo Afric Marketing Impex. He obtained the requisite documents from accused Sushant Puri i.e. Pan number, photographs of applicant, bank certificate from his banker certify the identity of proprietor. The documents are Mark PW8/A. He processed these documents and filed the application in the office of Director General of Foreign Trade Indraprasth Bhawan. The application for license was made in the name of Indo Afric Marketing Impex and accused Dhananjay Kumar Verma was the proprietor of that firm. The import export license was issued by the Ministry of Commerce, Joint Director General of Foreign Trade. The license is Mark PW8/B.
12. Sh. Vivek Gupta was examined as PW9. He deposed that FIR No. 497/2006 PS R.K. Puram (EOW) Page- 12 of 41 accused Sushant puri was known to him since year 2000. He was the Director of Consultancy firm namely Third Eye Consultant Pvt. Ltd. He was having a current bank account in Canara Bank, Janakpuri Branch in the name of this firm. Accused Sushant Puri and Dhananjay Kumar Verma approached and requested him to introduce a current bank account in Canara Bank, Janakpuri Branch as it was required for getting sale tax registration by them. Thereafter, he introduced the current bank account. He exhibited account opening form as Ex.PW9/A.
13. Sh. Harish Aggarwal was examined as PW10. He deposed that in the year 1997 he was working as LIC Agent in Delhi. He was also the sub-agent of M/s. Karvy Brokers. Around in the year 2000 he made a policy for accused Sushant Puri and in this way he came in his contact. In the month of January, February 2006 accused Sushant Puri contacted him and told him that he had to get marine policy for his goods and stocks as he had started M/s. Indo Afric Marketing Impex. As he was not dealing in such kind of policies so he referred him to Deb Ashish. Mr. Deb Ashish visited the office of accused Sushant Puri and made marine insurance for him.
14. Smt. Vijay Prabha Khandelwal was examined as PW11. She FIR No. 497/2006 PS R.K. Puram (EOW) Page- 13 of 41 deposed that she was the Director of M/s. Khandelwal Consultants Pvt. Ltd. which was running a business centre at flat no.705 and 706, 7th Floor Somdutt Chambers-II, 9 Bikaji Cama Place. In 2005 accused Sushant Puri approached her for taking the cabin of flat no. 706 on rent. The said cabin was given to him on rent at the rate of Rs.7,500/- per month. He gave copy of his passport and a copy of rent agreement of his residential house. She got tenant verification done at P.S. R.K. Puram. After few months accused Sushant Puri introduced accused Dhananjay Kumar Verma as his employee and stated that he will be also using the office cabin. Her receptionist namely Sunita gave following documents to IO on her behalf Ex.PW11/A and some documents vide Ex. PW11/P1 (tenant verification form) Ex.PW11/P2(copy of passport of accused Sushant Puri), Ex. PW11/P3(two pay in slips regarding deposit of cheques of rent) and Ex.PW11/P4 (rent agreement given by accused Sushant Puri to them). In the year 2005, one chamber was given on rent to the accused Sushant Puri for a total sum of Rs. 7,500/- per month. He gave a cheque of Rs. 7,500/- in October 2005 drawn on ICICI Bank, Pitampura. PAN Card as ID proof of accused was taken. In January 2006, he gave one cheque no. 525704 drawn FIR No. 497/2006 PS R.K. Puram (EOW) Page- 14 of 41 on ICICI Bank, Safdarjung Enclave for Rs.7,500/- as a monthly rent. No one else apart from M/s Khandelwal Consultant Pvt. Ltd. was authorized to enter in any lease deed with regard to the property. She was the exclusive owner of the above said property.
15. Sh. Ravi Satija, Divisional Manager was examined as PW12.
He deposed that on 04.12.2006, he was working as an Assistant Manager at National Insurance Company Ltd. at DO-23, Palika Bhawan, R.K. Puram. That day, Mr. P.S. Bhatia was working as Dy. Manager in the office. Mr. N. Dutta was working as Senior Divisional Manager in this office at that time. Mr. P.S. Bhatia forwarded a letter on behalf of Mr. N. Dutta to IO of present case. He exhibited document i.e. the covering letter having reference No. 360900 dated 04.12.2006 vide Ex.PW12/A and three original receipt in respect of M/s. Indo Afric Marketing Impex issued from their company and on the companies official stationary vide Ex.PW12/B1 to Ex.PW12/B3.
16. Sh. Vikas Babu Chittiprolu, AGM, Andhra Bank was examined as PW13. He produced certified copies of account opening form in the name of Khandelwal Consultants Pvt. Ltd. Ex.PW13/A and Ex.PW13/B and statement of account of this FIR No. 497/2006 PS R.K. Puram (EOW) Page- 15 of 41 company from 01.08.2005 to 31.08.2006 vide Ex.PW13/C. He also produced certificate under Bankers Books of Evidence Act, 1891 which is Ex.PW13/D.
17. Sh. Rajeev Sehgal, Branch Manager, ICICI Bank was examined as PW14. He produced certified copy of account statement of account bearing No. 032205000314 from 18.01.2006 to 29.06.2016 which is Ex.PW14/A. He also produced certificate under Bankers Books of Evidence Act, 1891 which is Ex.PW14/B.
18. Sh. Surender Kumar was examined as PW15. He exhibited the CDR issued from Bharti Airtel Company as Ex.PW15/A.
19. ASI Ashok Kumar was examined as PW16. He deposed that on 01.12.2006, he was posted as Constable at EOW. That day, he joined the investigation alongwith IO/Inspector R.K. Gulia and HC Harish Chand. Accused Dhananjay Kumar Verma was present alongwith them. They reached at the residence of accused Dhananjay Kumar Verma i.e. House No. 176/4, FF-4, Vaishali, Ghaziabad. Accused got recovered at his instance from his abovesaid residence some documents i.e ICICI prudential life insurance documents, the premium of which was Rs.
FIR No. 497/2006 PS R.K. Puram (EOW) Page- 16 of 41 50,000/-. These documents were seized by IO in his presence vide seizure memo Ex.PW16/A. Documents relating to ICICI prudential life insurance for premium of Rs. 50,000/- which were recovered by IO from the abovesaid place and seized vide seizure memo Ex.PW16/B. He further deposed that on 07.12.2006, he again joined the investigation with IO. IO collected certain documents in the presence of other witnesses from one Sh. Vikram Singh Hooda, Branch Operation Manager, ICICI Bank, S.J. Enclave. These documents were original account opening form alongwith enclosures of M/s Indo Afric Marketing Impex. These documents were seized by IO vide seizure memo Ex.PW16/C. Photocopies of the abovesaid original documents which were seized by IO vide seizure memo Ex.PW16/C. These documents Mark PW16/A.
20. Retired Inspector R.K. Gulia was examined as PW17. He deposed that in the month of May, 2006 while he was posted in EOW Crime Branch, a complaint from Mr. Mathew Labban of St. George Foods, a cashew nuts processor in Kerala filed a complaint in the police headquarter which was marked to him for further investigation. Fact finding enquiry was conducted and he made endorsement which is Ex.PW17/A on which the FIR No. 497/2006 PS R.K. Puram (EOW) Page- 17 of 41 present case was registered. Few more complaints from other cashew nuts processors were also received which also attached with the case file. During the course of investigation, he visited the office of alleged firm M/s Indo Afric Marketing Impacts at 706, Som Dutt Chamber, Bhikaji Cama Place and some documents were seized from the receptionist of the said office. On 23.08.2006, local contact Mr. Harbir Singh visited the office of EOW and produced documents pertaining to the cashew nuts processors which were seized. During further investigation, he wrote letters to the various banks where alleged firm Indo Afric Marketing Impacts had opened its accounts. He took documents received from Andhra Bank i.e account opening form and certified copies of statement of account of Khandelwal Consultants Pvt. Ltd alongwith covering letter dated 02.08.2006 from Senior Manager (Operation) Andhra Bank. He marked the documents vide Mark PW17/A as the abovesaid covering letter and documents Mark PW17/A1 as the certified copies of account opening form and of bank account statement. He took bank account statements received from ICICI Bank, Pitampura Branch in respect of the account no.015401004092 alongwith covering letter for the same. He marked the documents vide FIR No. 497/2006 PS R.K. Puram (EOW) Page- 18 of 41 Mark PW17/B and Mark PW17/C as the abovesaid covering letter and documents Mark PW17/D bank account statement. On 03.09.2006, he seized the rent agreement and police verification from Sh. Devender Singh Bakshi. He seized three original cheques alongwith cheque return memo presented by Deepak Rana. On 12.01.2007, he seized original account opening form of 0154014092 alongwith its enclosure containing total 8 pages from Surjit Singh, Pitampura Branch of ICICI Bank vide seizure memo Ex.PW17/B. He exhibited documents as Ex.PW17/B1. He took account opening form alongwith letter of proprietorship in original and photocopy of PAN Card, statement of account since opening of account and documents regarding closing of account on 04.02.2006 alongwith covering letter dated 17.11.2006 received from Canara Bank, Janakpuri. He exhibited documents Ex.PW17/C and Ex.PW17/C1. During the course of investigation, he wrote letter to Joint Director General of Foreign Trades seeking documents in respect of Indo Afric Marketing Impex. Pursuant to his letter dated 16.11.2006, certain documents had been provided through letter no. F.NO. 004/AM-06/CLA-Vig.964 dated 28.11.2006 vide Ex.PW17/D. During the course of investigation, the consignment which was FIR No. 497/2006 PS R.K. Puram (EOW) Page- 19 of 41 found insured by the National Insurance Company. In order to verify the said fact, he met the concerned officer at Bhikaji Cama Place who provided a letter alongwith original/copies of receipt of National Insurance Company Ltd. During the course of further investigation, he alongwith HC Harish Chand and Ct. Ashok Kumar proceeded to ICICI Bank, Safdarjung Enclave where account of M/s. Marketing Impex was operational. He seized photocopy of the account opening forms and other relevant documents. On 30.11.2006 Branch Operation Manager, ICICI Bank, Safdarjung Enclave Branch handed over 12 original cheques which had been presented by accused Dhananjay Kumar Verma for the sake of cash withdrawal and the letter regarding the same is Ex.PW17/E. 12 original cheques are Ex.PX. These cheques were sent to Laboratory of the Government Examiner of Questioned Documents, Shimla with specimen signature and admitted signatures and opinion regarding the same had been obtained. As per the opinion of Laboratory of the Government Examiner of Questioned Documents, Shimla. These cheques were written and signed by accused Dhananjay Kumar Verma. On 05.01.2007, Sh. Manish Arora, the then Branch Manager, ICICI Bank, Safdarjung FIR No. 497/2006 PS R.K. Puram (EOW) Page- 20 of 41 Enclave handed over three original cheques vide letter Ex.PW17/F. Three original cheques Ex.PX1. On 09.01.2007, two more original cheques were seized by him vide document Ex.PW17/G. Both the original cheques Ex.PX2. He took bank statement of account of M/s. Indo Afric Marketing Impex bearing no. 032205000314 showing the transaction of cash withdrawal of amount Ex.PW17/H. He further deposed that on 30.11.2006 accused Dhananjay Kumar Verma was arrested and his personal search was conducted vide memos Ex.PW17/I and Ex.PW17/J. He interrogated the accused and recorded his disclosure statement which is Ex.PW17/K. On 30.11.2006, PAN Card as well DL and visiting card of accused Dhananjay Kumar Verma showing CEO of Indo Afric Marketing Impex were taken into police possession at the instance of accused vide memo Ex.PW17/L. On 01.12.2006 accused was interrogated and his supplementary disclosure statement was recorded vide Ex.PW17/M. PC remand of accused Dhananjay Kumar Verma was obtained from Court. Life Insurance Policy ICICI Prudential was recovered at the instance of accused and the same was taken into police possession vide seizure memo already Ex.PW16/A. During the course of investigation, he sent FIR No. 497/2006 PS R.K. Puram (EOW) Page- 21 of 41 all the questioned documents to the Laboratory of the Government Examiner of Questioned Documents, Shimla and expert opinion was received which is Ex.PW17/N. He made sincere efforts to trace the accused Sushant Puri but he could not be traced. He recorded statement of witnesses under section 161 Cr.PC. After completion of investigation, he prepared chargesheet and filed the same against accused Dhananjay Kumar Verma before Court. Witness correctly identified accused Dhananjay Kumar Verma before the Court.
21. Sh. Varun Rana, Probationary Officer, Canara Bank, Janakpuri, A-Block Branch was examined as PW18. He marked the proprietorship letter which is Mark PW18/A.
22. Sh. Abhimanyu Kumar, AGEQD (Scientist B), CFSL, Chandigarh was examined as PW19. He deposed that the document of this case was received from ADCP, EOW, Crime Branch vide their letter No.4404/SO/DCP/EOW/Crime Branch dated 26.12.2006. Questioned writing and signatures marked Mark Q1 to Q64, Q29/1, Q31/1, Q33/1, Q35/1, Q37/1, Q37/2, Q39/1, Q41/1, Q43/1, Q45/1, Q47/1, Q49/1, Q51/1, Q53/1 to Q57/1, Q59/1, Q61/1, Q63/1 & Q64/1 for comparison with the standard writing and signature marked as Mark S1 to S40 and FIR No. 497/2006 PS R.K. Puram (EOW) Page- 22 of 41 A1 to A13 purported to be written by accused Dhananjay Kumar Verma. After careful and thorough scientific examination and analysis, he expressed his opinion bearing No. CX-19/2007 dated 08.02.2007. As per his opinion, the writings in the enclosed portions stamped and marked Q1 to Q5, Q7, Q14 to Q18, Q26, Q29 to Q37, Q37/1, Q38 to Q64, S1 to S40 and A1 to A13 were written by one and the same person. His report is Ex.PW19/A. The reason given by him in support of his opinion is Ex.PW19/B. The document of this case was received from ADCP, EOW, Crime Branch vide their letter No.1729/SO/DCP/EOW/Crime Branch dated 21.05.2007. Questioned writing and signatures marked Mark Q29/1, Q31/1, Q33/1, Q35/1, Q37/2, Q39/1, Q41/1, Q43/1, Q45/1, Q47/1, Q49/1, Q51/1, Q53/1 to Q57/1, Q59/1, Q61/1, Q63/1, Q64/1 and Q65 to Q79 for comparison with the standard writing and signature marked as Mark S1 to S10, S41 to S87 and A1 to A13 purported to be written by accused Dhananjay Kumar Verma. After careful and thorough scientific examination and analysis, he expressed his opinion bearing No.CX-19/2007 dated 15.06.2007. As per his opinion the writings in the enclosed portions stamped and marked Q29/1, Q31/1, Q33/1, Q35/1, FIR No. 497/2006 PS R.K. Puram (EOW) Page- 23 of 41 Q37/2, Q39/1, Q41/1, Q43/1, Q45/1, Q47/1, Q49/1, Q51/1, Q53/1 to Q57/1, Q59/1, Q61/1, Q63/1, Q64/1, Q65 to Q79, S1 to S10, S41 to S87 and A1 to A13 were written by one and the same person. His report is Ex.PW19/C. The reason given by him in support of his opinion is Ex.PW19/D.
23. The entire incriminating evidence brought on record against the accused was put to him and his statement under section 313 Cr.PC was recorded separately. It is stated by accused that he is innocent and has been falsely implicated in the present case. He was not at all aware. He knew only accused Sushant Puri, owner of the Indo Africa Marketing Impax, who appointed him as Marketing Executive in the company.
24. I have heard Ld. APP for the State and Ld. counsel for the accused and have also perused the judicial file carefully.
25. The accused is charged with the offence under section 120B IPC, section 420 IPC read with section 120B IPC, 468 read with section 120B IPC and 471 IPC read with section 120B IPC.
26. It would be pertinent to first decide whether offence under section 120B IPC is made out against the accused or not.
Criminal Conspiracy:- Section 120B FIR No. 497/2006 PS R.K. Puram (EOW) Page- 24 of 41 punishment for criminal conspiracy and provides as under :-Whoever is a party to a criminal conspiracy to commit an offence punishable with death, (imprisonment for life) or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in the code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence.
27. Criminal conspiracy is an independent offence. It is punishable separately. The ingredients of the offence of criminal conspiracy are:
i). agreement between two or more persons.
ii). an agreement to do or cause to be done either an illegal act or an act which is not illegal in itself but is done by illegal means.
28. The legal position with regard to the offence of criminal conspiracy is being discussed as under:
In the judgment titled as Kehar Singh v. State (Delhi Admn.) reported as AIR 1988 SC 1883, the Hon'ble Supreme Court had observed that:
"38. Generally, a conspiracy is hatched in FIR No. 497/2006 PS R.K. Puram (EOW) Page- 25 of 41 secrecy and it may be difficult to adduce direct evidence of the same. The prosecution will often rely on evidence of acts of various parties to infer that they were done in reference to their common intention. The prosecution will also more often rely upon circumstantial evidence. The conspiracy can be undoubtedly proved by such evidence direct or circumstantial. But the Court must enquiry whether the two persons are independently pursuing the same end or they have come together to the pursuit of the unlawful object. The former does not render them conspirators, but the latter does. It is, however, essential that the offence of conspiracy requires some kind of physical manifestation of agreement. The express agreement, however, need not be proved. Nor actual meeting of two persons is necessary. Not it is necessary to prove the actual words of communication. The evidence as to transmission of thoughts sharing the unlawful design may be sufficient. [184D-E]. The relative acts or conduct of the parties must be conscientious and clear to mark their concurrence as to what should be done. The concurrence cannot be inferred by a group of irrelevant facts artfully arranged so as to give an appearance of coherence. The innocuous, innocent or inadvertent events and incidents should not enter the judicial verdict. FIR No. 497/2006 PS R.K. Puram (EOW) Page- 26 of 41 Section 10 of the Evidence Act introduced the doctrine of agency and if the conditions laid down therein are satisfied, the acts done by one are admissible against the co-conspirators. Section 10 will come into play only when the Court is satisfied that there is reasonable ground to believe that two or more persons have conspired together to commit an offence. There should be a prima facie that the person was a party to the conspiracy before his acts prima facie against his co-conspirator. Once such prime facie evidence exists, anything said, done or written by one of the conspirators in reference to the common intention, after the said intention was first entertained is relevant against the others. It is relevant not only for the purpose of proving the existence of conspiracy, but also for proving that the other person was a party to it...."
29. In the judgment titled as Suresh Chandra Bahri v. State of Bihar reported as 1995 Supp (1) SCC 80 it was observed by the Hon'ble Supreme Court:
"........In other words, where the conspiracy alleged is with regard to commission of a serious crime of the nature as contemplated in Section 120-B read with the proviso to sub- FIR No. 497/2006 PS R.K. Puram (EOW) Page- 27 of 41 section (2) of Section 120-A of the IPC, then in that event mere proof of an agreement between the accused for commission of such a crime alone is enough to bring about a conviction under Section 120-B and the proof of any overt act by the accused or by any one of them would not be necessary. The provisions in such a situation do not require that each and every person who is a party to the conspiracy must do some overt act towards the fulfillment of the object of conspiracy, the essential ingredient being an agreement between the conspirators to commit the crime and if these requirements and ingredients are established the act would fall within the trapping of the provisions contained in Section 120-B since from its very nature a conspiracy must be conceived and hatched in complete secrecy, because otherwise the whole purpose may be frustrated and it is common experience and goes without saying that only in very rare cases one may come across direct evidence of a criminal conspiracy to commit any crime and in most of the cases it is only the circumstantial evidence which is available from which an inference giving rise to the conclusion of an agreement between two or more persons to commit an offence may be legitimately drawn. The observations made by this Court in Noor Mohd. Mohd. Yusuf Momin v. State of Maharashtra [(1970) 1 SCC 696, FIR No. 497/2006 PS R.K. Puram (EOW) Page- 28 of 41 699 : 1970 SCC (Cri) 274 : AIR 1971 SC 885, 886] may be quoted with advantage which read as under: "Criminal conspiracy differs from other offences in that mere agreement is made an offence even if no step is taken to carry out that agreement. Though there is close association of conspiracy with incitement and abetment the substantive offence of criminal conspiracy is somewhat wider in amplitude than abetment by conspiracy as contemplated by Section 107 IPC. A conspiracy from its very nature is generally hatched in secret. It is, therefore, extremely rare that direct evidence in proof of conspiracy can be forthcoming from wholly disinterested quarters or from utter strangers. But, like other offences, criminal conspiracy can be proved by circumstantial evidence. Indeed, in most cases proof of conspiracy is largely inferential though the inference must be founded on solid facts. Surrounding circumstances and antecedent and subsequent conduct, among other factors, constitute relevant material. In fact because of the difficulties in having direct evidence of criminal conspiracy, once reasonable ground is shown for believing that two or more persons have conspired to commit an offence then anything done by anyone of them in reference to their common intention after the same is entertained becomes, according to the law of evidence, relevant for FIR No. 497/2006 PS R.K. Puram (EOW) Page- 29 of 41 proving both conspiracy and the offences committed pursuant thereto." [Para 96, Suresh Chandra Bahri v. State of Bihar].
30. In the judgment titled as Ajay Agarwal v. Union Of India reported as AIR 1993 SC 1637 the Hon'ble Supreme Court held that "it is not necessary that each conspirator must know all the details or the scheme nor be a participant at every stage. In the judgment titled as Shivnarayan Laxminarayan Joshi v. State Of Maharashtra reported as AIR 1980 SC 439 it was observed that "We may point out that under the principle contained in Section 10 of the Evidence Act, once a conspiracy to commit an illegal act is proved, act of one conspirator becomes the act of the other.....".
31. Looking at the facts of the case in light of the case law, as regards culpability of accused persons under S. 120 B IPC, the circumstances which have come to light during the perusal of the oral and documentary evidence are as under:-
(a) It is deposed by PW2 Mathew Labban, AR of the complainant that a contract was made in writing between complainant company and Indo Afric Marketing Impax. He also relied upon documents given by accused Sushant Puri FIR No. 497/2006 PS R.K. Puram (EOW) Page- 30 of 41 Ex.PW2/E to Ex.PW2/K and Ex.PW2/X1 to Ex.PW2/X9. Most of these documents have been proved to be signed by the present accused.
(b) It is deposed by PW3 that a contract was entered into between Indo Afric Marketing Impex and his company Maha Vishnu Cashew factory. A DD in favour of Indo Afric Marketing Impex in the sum of Rs. 1107680 was given which was credited in the account no. 032205000314 in ICICI Bank. He relied upon documents Ex.PW3/C, Mark PW3/A1 to Mark PW3/A9 and DD Mark PW3/A10.
(c) PW8 Meghraj Chugh deposed that he processed the application for issuance of import export license in the name of Indo Afric Marketing Impex and accused Dhananjay Kumar Verma was the proprietor of that firm.
(d) PW9 Vivek Gupta deposed that accused Sushant Puri and Dhananjay Kumar Verma approached him to introduce a current bank account in Canara Bank account, Janakpuri Branch as the same was required for getting sale tax registration. It is further deposed by him that accused Sushant Puri and Dhananjay Kumar Verma were working together.
FIR No. 497/2006 PS R.K. Puram (EOW) Page- 31 of 41
(e) PW14 Branch Manager from ICICI Bank produced statement of account of the firm Indo Afric Marketing Inpex showing cash withdrawal by accused Dhananjay Kumar Verma.
(f) PW17 IO Inspector R.K. Gulia exhibited document as Ex.PW17/E giving details of 12 cheques by virtue of which cash was withdrawn from the account of Indo Afric Marketing Impex by accused Dhananjay Kumar Verma. Three other cheques Ex.PW17/F also signed by accused Dhananjay Kumar Verma through which the cash was withdrawn by him. He proved through the documents that accused Dhananjay Kumar Verma was the proprietor of M/s Indo Afric Marketing Impex.
32. From the above oral and documentary evidence, it is established on record that accused Dhananjay Kumar Verma was the proprietor of M/s Indo Afric Marketing Impex. He was involved with accused Sushant Puri in day to day affairs of the firm which is evident from the fact that the money which was credited in the account of the firm was withdrawn by accused Dhananjay Kumar Verma by way of self cheques. He even accompanied accused Sushant Puri to obtain the export and import certificate which has come in deposition of PW8 Meghraj Chugh.
FIR No. 497/2006 PS R.K. Puram (EOW) Page- 32 of 41
33. It is argued on behalf of accused that he was an employee of Sushant Puri and did not have any knowledge about the acts done by accused Sushant Puri. He was paid a fixed salary by accused Sushant Puri being an employee. The said argument is untenable and unsustainable for the reason that all the documents through which the complainant was induced to enter into a contract with the firm M/s Indo Afric Marketing Impex bear signatures of accused Dhananjay Kumar Verma. It is not the defence of accused that the said signatures were obtained without his consent or by playing fraud upon him by accused Sushant Puri.
34. From the evidence as adduced by the prosecution, it is established beyond reasonable doubt that accused Dhananjay Kumar Verma was a party to criminal conspiracy with accused Sushant Puri in commission of illegal act against the complainant which is evident from the fact that accused Sushant Puri went to complainant induced it to enter into contract with a firm in which accused Dhananjay Kumar Verma was a proprietor. Accused Dhananjay Kumar Verma executed false documents i.e bill of lading, high seas agreement etc on the basis of which contract was entered into which were handed FIR No. 497/2006 PS R.K. Puram (EOW) Page- 33 of 41 over to complainant. On the basis of these documents, money was obtained from complainant in account of firm which was withdrawn by accused Dhananjay Kumar Verma by way of self cheques.
35. Accused has also been charged for the offence under section 420 IPC read with section 120B IPC.
The essential ingredient of Section 420 IPC are as follows:-
(a) Essential ingredients:- An offence under this section has following essentials:
(i) There must be deception i.e the accused must have deceived someone;
(ii) That by the said deception. The accused must induce a person;
(a) to deliver any property; or
(b) to make, alter or destroy the whole or part of valuable security or any thing which is signed or sealed and which is capable of being converted into a valuable property.
(iii) That the accused did so dishonestly.
36. It is deposed by PW2 Mathew Labban that his company St. George Food, Lourdes Matha Cashew Industries and Thomsan Cashew Company were induced by accused Sushant Puri by FIR No. 497/2006 PS R.K. Puram (EOW) Page- 34 of 41 sending the documents of shipping I.e bill of lading, high seas sale and agreement and other documents of import. Having received those documents, the companies entered into contract with M/s Indo Afric Marketing Impex and 80% of the total agreed amount into the amount of the aforesaid firm. The raw cashew was never received as agreed and despite best efforts, accused Sushant Puri could not be contacted. Hence, the complaint in the present case was filed.
37. Similarly, it is deposed by PW3 S. Renjith Lal that accused Sushant Puri sent original documents i.e high seas sale agreement, invoice, original bill of lading, weight certificates, phytho sanitary certificate etc on the basis of which his company entered into a contract and issued a draft in favour of Indo Afric Marketing for 80% of the high seas sale invoice. The product was never received by him and accused Sushant Puri could not be contacted.
38. On discerning the testimony of aforesaid two witnesses, it is established on record that their companies were induced by the accused persons by sending false documents which were duly signed by accused Dhananjay Kumar Verma and pursuant to such inducement, they parted with money. The agreed product FIR No. 497/2006 PS R.K. Puram (EOW) Page- 35 of 41 was never received and thereby a wrongful loss was caused to them and a wrongful gain to the accused.
39. It is argued on behalf of accused Dhananjay Kumar Verma that none of the witness has deposed that he was induced by accused Dhananjay Kumar Verma or that any wrongful gain has been caused to him.
40. As has already been decided that accused Dhananjay Kumar Verma conspired with accused Sushant Puri to commit an illegal act. The said fact is established from the document Mark PW3/A6, PW3/A1 to PW1/A4, PW2/X1, PW2/X2, PW2/X3, PW2/X7, PW2/X8, Ex.PW8/A and Ex.PW16/A.
41. Further, it has also come on record that the amount which was credited in the account of M/s Indo Afric Marketing was withdrawn personally by accused Dhananjay Kumar Verma by issuing self cheques Ex.PW17/E to Ex.PW17/G and also reflected in various bank statements Ex.PW14/A where cash has been withdrawn by way of self cheques from the account of the firm.
42. The withdrawal of amount by accused from the account of firm is sufficient to show that wrongful gain has been caused to FIR No. 497/2006 PS R.K. Puram (EOW) Page- 36 of 41 him.
43. PW2 and PW3 have not been cross examined on behalf of the present accused and hence, their testimonies stand unrebutted and uncontroverted.
44. It is not the defence of accused that cashew was actually imported from Nigeria as agreed in the contract and the same could not reach the buyers due to reasons beyond their control.
45. Having not taken the said defence, it is presumed that the accused had malafides from the very inception entering into contract and did not have intention to perform their part of contract.
46. As far as argument of accused Dhananjay Kumar Verma that he did not induce anyone to part with property hence, cannot be said to have committed offence of cheating is concerned, I would place reliance upon the judgment titled in the judgment titled as Ajay Agarwal v. Union Of India reported as AIR 1993 SC 1637 the Hon'ble Supreme Court held that it is not necessary that each conspirator must know all the details or the scheme nor be a participant at every stage. In the judgment titled as Shivnarayan Laxminarayan Joshi v. State Of FIR No. 497/2006 PS R.K. Puram (EOW) Page- 37 of 41 Maharashtra reported as AIR 1980 SC 439 it was observed that "We may point out that under the principle contained in Section 10 of the Evidence Act, once a conspiracy to commit an illegal act is proved, act of one conspirator becomes the act of the other.....".
47. Once it has been proved that accused Dhananjay Kumar Verma entered into criminal conspiracy with accused Sushant Puri, to commit an illegal act then even if he did not personally induce anyone from the complainant company would not absolve him of his liability of commission of offence under section 420 IPC read with section 120B IPC.
48. Moreover, the prosecution has also succeeded in proving that the money had been credited in the account of the firm of which accused Dhananjay Kumar Verma was the proprietor and even the money was withdrawn by him by way of self drawn cheques hence, wrongful gain ensued to him.
49. Accused has also been charged with the offenece under section 468 IPC read with section 120B IPC and section /471 IPC read with section 120B IPC.
50. In order to bring home the charge under section 468/471 FIR No. 497/2006 PS R.K. Puram (EOW) Page- 38 of 41 IPC, it would be essential to understand concept of forgery as defined under section 463 and 464 IPC.
The essential ingredient of Section 468 IPC are as follows:-
(a) Essential ingredients:- An offence under this section has following essentials:
(i) That the accused committed forgery;
(ii) That he did so intending that the document or electronic record forged shall be used for the purpose of cheating.
The essential ingredient of Section 471 IPC are as follows:-
(i) Fraudulent or dishonest use of a document as genuine;
(ii) The person using it must have knowledge or reason to believe that the document is a forged one.
51. In the instant case, accused has been charged for preparing fake documents I.e high seas sale agreement, high seas invoice, bill of lading, weight certificate, certificate of origin and packing list etc intending that the same shall be used for the purpose of cheating and thereby was charged for the offence under section 468 IPC. He was further charged for the offnece FIR No. 497/2006 PS R.K. Puram (EOW) Page- 39 of 41 under section 471 IPC for using the aforesaid documents fraudulently and dishonestly.
52. In order to prove the said charge, prosecution was required to prove that the aforesaid documents i.e high seas sale agreement, high seas invoice, bill of lading etc were forged or false.
53. The said documents have not been proved to be forged as the said documents have not got verified from the different departments from where the said had been alleged to have been issued. Though the prosecution has been able to establish on record that the said documents were prepared under signatures of accused Dhananjay Kumar Verma but no evidence has been led to prove that the said documents were forged.
54. In absence of any evidence having being led by prosecution to prove that the documents were either false or forged, the charge against accused cannot be said to have been proved.
55. From the aforesaid discussion, it is established on record that the prosecution has succeeded in proving the offence under section 120 B IPC and section 420 IPC read with section 120B IPC against the accused beyond reasonable doubt and he is accordingly convicted for the said offences. The prosecution has FIR No. 497/2006 PS R.K. Puram (EOW) Page- 40 of 41 failed to prove the offence under section 468 IPC read with section 120 B IPC and section 471 IPC read with section 120B IPC against the accused for which he is acquitted.
56. Copy of judgment be given to convict free of cost.
Announced in the open
Court on 30.08.2018 (POOJA TALWAR)
CMM (South), Saket Courts,
New Delhi
Certified that this Judgment contains 41 pages and each page is signed by me.
(POOJA TALWAR)
CMM (South), Saket Courts,
New Delhi
Digitally signed
by POOJA
POOJA TALWAR
TALWAR Date:
2018.09.01
10:33:54 +0530
FIR No. 497/2006 PS R.K. Puram (EOW) Page- 41 of 41