Delhi District Court
State vs . Pawan Kumar Gupta on 3 July, 2023
IN THE COURT SH. TUSHAR GUPTA
METROPOLITAN MAGISTRATE - 04: NORTH :
ROHINI COURT DELHI
Cr. Case 5289021/2016
STATE Vs. PAWAN KUMAR GUPTA
FIR No. 822 /2005
PS Prashant Vihar
U/s: 419/420/468/471/467/381 IPC
JUDGMENT
A Registration Number 5289021/2016
B Name of the State
complainant
C Name of the accused & Pawan Kumar Gupta
his parentage and S/o Sh. Hari Chand Gupta
address R/o H. No. 219, Sector 14, Karnal,
Haryana
D Offence Complained of 419/420/467/468/471/381 IPC E Date of commission of 16/09/2005 offence.
F Date of Institution 25/06/2007 G Offence Charged 420 r/w 511 IPC & 471/474/419/381 IPC H Plea of the accused Pleaded not guilty. person I Order Reserved on 06.06.2023 J Date of Pronouncement 03.07.2023 K Final Order Acquitted.
Vide this judgment the accused is being acquitted of the offence punishable under Section 420 r/w 511 IPC & 471/474/419/381 Indian Penal Code (hereinafter referred to as "the act") in this case FIR No. 822/2005 Police Station Prashant Vihar for the reasons mentioned below.
1. CASE OF PROSECUTION:
Cr. Case 5289021/2016 STATE Vs. PAWAN KUMAR GUPTA FIR No. 822 /2005 Page 1 / 17It is the case of the prosecution that on 16/09/2005, at 03:15 pm, at HDFC Bank, RG Complex, Sector 9, Rohini, Delhi, the accused Pawan Kumar Gupta cheated the complainant Deepak Gupta by inducing his cheque of HDFC Bank to deliver the sum of Rs. 06 lacs, out of his bank account. Further, the accused used the said cheque as genuine and he had in possession of said cheque, which was a valuable security. Further, the accused cheated Deepak Gupta by pretending to be bearer of the aforesaid cheque and inducing him to deliver Rs. 06 lacs. Further, the accused being the employee of Kundan Edible Oil Mills committed the theft of aforesaid cheque from the possession of the company.
That based on these facts, it is the case of the prosecution that the accused is stated to have committed an offence u/s. 419/420/468/471/467/381 IPC which led to registration of FIR No. 822/2005 at PS Prashant Vihar.
2. CHARGE:
In compliance of the procedural mandate u/s. 173 CrPC, charge-sheet against accused was filed in the present matter, upon completion of investigation.
Accused person was summoned to face trial and was supplied with the copy of the charge-sheet as per s. 207 CrPC.
Based on the charge-sheet, a charge for the offences punishable u/s. 420 r/w 511 IPC & 471/474/419/381 IPC was framed against the accused person, to which he pleaded not guilty and claimed trial.
3. PROSECUTION EVIDENCE: -
3(a). PW-1 ASI Shiv Charan has proved the registration of present FIR bearing No. 822/05 (Ex. PW-1/B). PW-1 further Cr. Case 5289021/2016 STATE Vs. PAWAN KUMAR GUPTA FIR No. 822 /2005 Page 2 / 17 stated that he made the endorsement on the rukka Ex. PW-1/A and handed over the original rukka and copy of FIR to Ct. Randeep Singh for further transmission to SI Praveen Kumar.
3(b). PW-2 Ms. Taruna Singh has deposed that in the year 2007, she was posted at HDFC Bank, DC Chowk, RG Complex Sec-9 Rohini and as far she remembers, she had written a letter to the police officers and after verifying from the bank record she had replied to the police vide letter Ex. PW-2/A. PW-2 further deposed that vide said letter she had mentioned that the cheque leaves from 131401 to 131500 was issued to the account Number 2722320000229 in the name of Kundan Rice Mills Ltd. on 02.12.2004.
In her cross-examination, PW-2 deposed that she has no personal knowledge of the present case as to when the cheque in question was presented in the bank as she was not working there that time in said branch.
In her re-examination (pursuant to allowing of application u/s 311 CrPC moved by State), PW-2 deposed that in the year about 2006-07, she had been transferred to the above stated branch of HDFC Bank and prior to her transfer, Sh. Subodh Kumar Tiwary was working as Branch Manager. Further, PW-2 has identified the signatures of Branch Manager Sh. Subodh Kumar Tiwary on the complaint Ex. PW-2/B, seizure memo of bank statement Ex. PW-2/C and seizure of Cheque No. 131412 Ex. PW-2/D at points A respectively.
In her cross-examination, PW-2 deposed that she does not know under what circumstances the complaint Ex. PW- 2/B was filed by Mr. Subodh Tiwari. PW-2 admits that Subodh Tiwari had not signed on the complaint and seizure memo in her presence, and she also don't know if any other person had signed Cr. Case 5289021/2016 STATE Vs. PAWAN KUMAR GUPTA FIR No. 822 /2005 Page 3 / 17 the same.
3(c). PW-3 Sh. Amar Singh has deposed that he was posted as Pantry boy at HDFC Bank, DC Chowk, RG Complex and on 16.09.2005 at about 3.30 p.m., he heard the noise of pakdo- pakdo of manager Sh. Subodh Tiwari and subsequently he along with his senior Aditya chased and apprehended the accused. PW- 3 has correctly identified the accused present in the court.
In his cross-examination, PW-3 deposed that the accused was apprehended at the second building around at the distance of 150 yards and he did not know about the reason of running of Pawan Gupta. PW-3 further stated that name of accused was disclosed by Aditya to him when police visited the bank after 20-25 minutes and his statement was recorded at the bank.
3(d). PW-4 Smt. Monica Sharma has deposed that on 12.09.2005, she was working as Backup Manager at HDFC Bank, Sec-9, Rohini and on that day, Ms. Ananditta Dass was working as Teller/Cashier and at about 3:30 pm, one person came to the seat of Ananditta Dass and presented the cheque bearing no. 131412 Ex. P1. PW-4 further deposed that Teller Ananditta Dass was suspicion of the signatures and she came to her with the cheque and they both went to the branch manager Subodh Tiwari and manager had verified the said cheque and the authorized signatories refused about issuance of the said cheque, thus the person who presented the cheque was apprehended by the bank officials. PW-4 further deposed that she cannot identify the accused as she had not seen him.
In her cross-examination, PW-4 stated that manager Mr. Tiwari had not given any complaint to the police in her Cr. Case 5289021/2016 STATE Vs. PAWAN KUMAR GUPTA FIR No. 822 /2005 Page 4 / 17 presence, and he didn't contact the signatories of Kundan Rice Mills in her presence. PW-4 further stated that at that time there was no system/practice to issue the tokens to the customers when they entered the bank. PW-4 admits that neither accused had presented the cheque to Ananditta Das in her presence nor accused was apprehended in her presence. PW-4 has denied all other suggestions made to her during cross-examination.
3(e). PW-5 Sh. Sanjeev Kumar has deposed that in the year 2007, he was working as Senior Scientific Officer (Documents) in FSL and on 02.03.2007, the documents of the present case were received in the lab and all the document bearing Mark Q1 to Q3 and S1 to S32 and signatures A1 and A2 were carefully and thoroughly examined by him and he had given following opinion:
I. Indicating that the person who wrote blue enclosed signature stamped and marked A1 did not write the red enclosed signature similarly stamped and marked Q1. II. Indicating that the person who wrote blue enclosed stamped and marked A2 did not write the red enclosed signature similarly stamped and marked Q2.
III. It has not been possible to express any opinion on Q3 based on materials at hand.
PW-5 further deposed that he had prepared detailed report no. F.S.L.2007/D-0786 dated 18.05.2007 ie Ex. PW-5/A. 3(f). PW-6 ASI Ravinder has deposed that on 02.03.2007, he was posted as Constable at PS Prashant Vihar and on that day, upon the directions of the IO, he deposited the documents in the FSL Rohini vide FSL no. 2007/D-0786.Cr. Case 5289021/2016 STATE Vs. PAWAN KUMAR GUPTA FIR No. 822 /2005 Page 5 / 17
3(g). PW-7 Sh. Pradeep Garg has deposed that he was not looking after the day-to-day operations of the firm, and he does not remember about the incident as the incident happened long time back.
In his cross-examination conducted by Ld. APP for the State, PW-7 deposed that he does not remember if he had given any statement to the police u/s 161 CrPC. PW-7 has denied the suggestion that on 16/09/2005, at about 03.30 pm he received a phone call from Branch Manager Subodh Kr. Gupta, HDFC bank regarding verification of issuance of cheque of Rs. 06 lacs. PW-7 has also denied the suggestion that after receiving the information he had visited the bank and whereat he identified the accused. PW-7, after seeing the cheque no. 131412 dated 12/09/2005 states that the said cheque belongs to firm, however, he cannot say about the signatures. Further, PW-7 has correctly identified the accused present in the court and stated that Pawan Kumar Gupta, RP Goel and Deepak Gupta were employees of his firm. PW-7 has denied all other suggestions made to him during cross-examination conducted by Ld. APP for the State.
3(h). PW-8 Sh. Aditya Uppal has deposed that in the year 2005, he was posted at HDFC Bank, Sector-9, RG Complex, Rohini as a Personal Banker and on the day of incident, he received a call from cashier Ms. Anandita Das regarding presentment of a cheque having doubtful signature and the person, who presented the cheque was trying to step out of the branch and cashier asked him/PW-8 to stop the said person and accordingly PW-8 had caught the accused and escorted him back to the branch. PW-8 further deposed that the client M/s Kundan Rice Mill informed Ms. Anandita that they have not issued any Cr. Case 5289021/2016 STATE Vs. PAWAN KUMAR GUPTA FIR No. 822 /2005 Page 6 / 17 such cheque and requested that the payment should not made, and the company's representative will visit the branch to see, who has presented the cheque. PW-8 further deposed that he cannot identify accused person as seventeen years have been passed.
In his cross-examination conducted by Ld. APP for the State, PW-8 deposed that he does not remember whether he had given any statement to the Police. Further, PW-8 has failed to identify the accused despite pointed out by Ld. APP for the State. PW-8 has denied all other suggestions made to him during cross- examination conducted by Ld. APP for the State.
3(i). PW-9 Rajender Prashad Goyal has deposed that in year 2005-2007, he was working at M/s Kundan Rice Mill as an Authorized Signatory, and he came to know that someone had tried to encash the cheque from Bank by putting forged signature of two authorized person and concerned Bank official had apprehended the above said person. PW-9 further deposed that he does not know about the present case, and he had not given any statement to police.
In his cross-examination conducted by Ld. APP for the State, PW-9 after seeing the statement u/s 161 CrPC stated that he had not given such statement to the police. Further, PW-9 denied his signatures on the cheque no. 131412 and stated that he does not remember whether account no. 2722320000229 mentioned on the cheque, belongs to company. PW-9 admitted his signatures on Ex. PW-9/A. PW-9 further stated that he does not know whether any person with named Pawan Kumar Gupta or P.K. Gupta was working as a employee of the company or not in year 2005-2007. Further, PW-9 has failed to identify the accused despite pointed out by Ld. APP for the State. PW-9 has denied all other suggestions made to him during cross-
Cr. Case 5289021/2016 STATE Vs. PAWAN KUMAR GUPTA FIR No. 822 /2005 Page 7 / 17examination conducted by Ld. APP for the State.
3(j). PW-10 Inspector Praveen Kumar has deposed that on 16.09.2005, he was posted at PS Prashant Vihar as SI and on that day, on receiving of DD No. 21A, he along with Ct. Randeep reached at HDFC Bank, DC Chowk, Sector-9, Rohini, and met the bank manager Subodh Tiwari along with other bank staff and manager Subodh Tiwari had produced one person namely Pawan Kumar Gupta and complainant/manager had given a written complaint i.e. Ex. PW-2/B. PW-10 further deposed that he made the endorsement on the complaint and handed over the rukka to Ct. Randeep for registration of the FIR and Ct. Randeep went to the PS and came back at HDFC Bank and handed over the copy FIR and original rukka to him. PW-10 further deposed that bank manager Subodh Tiwari handed over one cheque no. 131412 issued in the name of Anil Pahuja of Rs. 6 lacs and he seized the cheque vide seizure memo Ex. PW-2/D and prepared the site plan Ex. PW-10/A. PW-10 further deposed that he arrested accused Pawan Kumar Gupta vide arrest memo Ex. PW-10/B, personally searched him vide memo Ex. PW-10/C and recorded his disclosure statement i.e., Ex. PW-10/E. PW-10 further deposed that during the investigation he obtained the specimen signature and handwriting of accused and also obtained bank statement of concerned account mentioned in the said cheque and seized the bank statement vide seizure memo Ex. PW-2/C. PW-10 further deposed that he sent the documents i.e. cheque, specimen signature & handwriting to the FSL through Ct. Ravinder and recorded statement u/s 161 CrPC of Ct. Ravinder. PW-10 further deposed that he received the reply to Ex. PW-9/A from M/s Kundan Rice Mill Ltd regarding the details of authorized signatories of M/s Kundan Cr. Case 5289021/2016 STATE Vs. PAWAN KUMAR GUPTA FIR No. 822 /2005 Page 8 / 17 Rice Mills, which was replied by the Mr. Deepak Gupta and Mr. RP Goyal. PW-10 has correctly identified the accused present in the court and the cheque Ex. P1. PW-10 has also identified the signatures of Ct. Randeep on Ex. PW-2/C, Ex. PW2/D, Ex. PW10/B, Ex. PW10/C, Ex. PW10/E and specimen signature sheet on the basis of which FSL report was prepared.
In his cross-examination, PW-10 admits that Subodh Tiwari didn't produce any ID of accused Pawan Kumar Gupta on 16/09/2005 he had also not seized any ID of the accused. PW-10 further stated that he had not obtained the signature of the Subodh Tiwari on the site plan. PW-10 has denied all other suggestions made to him during cross-examination.
3(k). PW-11 Sh. Deepak Gupta (inadvertently mentioned as PW-10) has deposed that he does not remember anything about this case as this case pertains to year 2005 and he does not remember anything about his statement given to the police officials u/s 161 Cr.PC.
In his cross-examination conducted by Ld. APP for the State, after seeing the statement u/s 161 CrPC (Mark Z), PW- 11 has completely denied the same and states he does not know who Pawan Gupta is.
4. STATEMENT OF ACCUSED:
In order to allow the accused person to personally explain the incriminating circumstances appearing in evidence against him, the statement of the accused person was recorded without oath under Section 313 CrPC. In reply, the accused stated that he is innocent and has been falsely implicated in the present case and had no concern with M/s Kundan Rice Mill Ltd as he had never been the employee of said company. Accused further Cr. Case 5289021/2016 STATE Vs. PAWAN KUMAR GUPTA FIR No. 822 /2005 Page 9 / 17 stated that he was not caught by PW-8 and he has been wrongly apprehended by the bank officials under some misunderstanding and misconception and he was just a passer-by from the bank premises. Accused further stated that no PW (bank official or the company officials) has ever met him nor he met them at any point of time. It is further stated that none of the bank officials, have identified him at the time of alleged presentation of cheque in question. Further, the accused has denied to lead defence evidence.
5. APPLICABLE LEGAL PROVISIONS:
5(a). 381. Theft by clerk or servant of property in possession of master.--Whoever, being a clerk or servant, or being employed in the capacity of a clerk or servant, commits theft in respect of any property in the possession of his master or employer, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
5(b). 419. Punishment for cheating by personation.--Whoever cheats by personation shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
5(c). 420. Cheating and dishonestly inducing delivery of property.--Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be Cr. Case 5289021/2016 STATE Vs. PAWAN KUMAR GUPTA FIR No. 822 /2005 Page 10 / 17 punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
5(d). 511. Punishment for attempting to commit offences punishable with imprisonment for life or other imprisonment.--Whoever attempts to commit an offence punishable by this Code with [imprisonment for life] or imprisonment, or to cause such an offence to be committed, and in such attempt does any act towards the commission of the offence, shall, where no express provision is made by this Code for the punishment of such attempt, be punished with [imprisonment of any description provided for the offence, for a term which may extend to one-half of the imprisonment for life or, as the case may be, one- half of the longest term of imprisonment provided for that offence], or with such fine as is provided for the offence, or with both.
5(e). 471. 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].
5(f). 474. Having possession of document described in section 466 or 467, knowing it to be forged and intending to use it genuine.-- [Whoever has in his possession any document or electronic record, knowing the same to be forged and intending that the same shall fraudulently or dishonestly be used as genuine, shall, if the document or electronic record is one of the description mentioned in section 466 of this Code], be punished Cr. Case 5289021/2016 STATE Vs. PAWAN KUMAR GUPTA FIR No. 822 /2005 Page 11 / 17 with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine; and if the document is one of the description mentioned in section 467, shall be punished with [imprisonment for life], or with imprisonment of either description, for a term which may extend to seven years, and shall also be liable to fine.
6. APPRECIATION OF EVIDENCE AND MARSHALLING OF THE FACTS:
6(a)(i). This being the factual, evidentiary and the legal position of the present case, let us analyse whether the prosecution has been able to successfully prove the guilt of the accused persons on the touchstone of "beyond reasonable doubt". I will discuss all the offense one by one.
6(a)(ii). The accused has been charged with the offense of attempt of cheating u/s 420 r/w section 511 of the IPC. As per the story of prosecution, the accused went to the bank for encashment of the cheque by making forged signature on the cheque belongs to one Kundan Rice Mill (hereinafter "the Firm" ) and when suspicion arises, the bank confirmed from the official of Kundan Rice Mill who has denied issuing of any cheque. The first and foremost requirement for the offense of cheating is dishonest intention. Whether the accused was having dishonest intention to induce the bank has to be examined. In this regard prosecution has examined two witnesses i.e. PW-7 Pardeep Garg who was looking after day to day operation of the firm and second is PW-09 Rajinder Prasad Goyal who was the authorized signatory of the firm at the relevant time. Both the witnesses have not supported the story of the prosecution. PW-07 deposed that he has not given any statement to the police pertains to the present case. He further deposed that he had not received Cr. Case 5289021/2016 STATE Vs. PAWAN KUMAR GUPTA FIR No. 822 /2005 Page 12 / 17 any call from the bank regarding cheque in question. It is further deposed that he had not visited the bank on the date of incident. PW-09 deposed that he had not given any statement to the police pertains to the present case. He further deposed that he has no knowledge whether the accused was working for the Firm Kundan Rice Mill and has failed to identify the accused before the court. It seems that both the witness has turned hostile during the trial and do not want to depose anything against the accused. When the firm to which the cheque belongs is not affirming the fact that the cheque in question was not issued by them, then it cannot be said that the accused was having dishonest intention at the time of presenting of the cheque. To make it clear we discuss it in an another way. One person went to the bank for encashment of one cheque and a suspicion raised to the bank and the bank confirmed from the owner of the cheque to which the owner denies any issuance of cheque. Thereafter the owner submits that he didn't deny anything to the bank regarding issuance of cheque. The relevant question arises here is when the owner himself is not disputing the issuance of cheque then how the criminal intention to cheat be attributed to the accused. The owner/authorised representative was the best person to depose in this regard and their non deposition regarding the issuance of cheque has become fatal to the case of prosecution. It might be the possibility that the cheque was handed over to the accused by an official of the firm. In absence of any criminal intention the offense of attempt to cheat has not been made out against the accused. Therefore, in view of above discussion it can be squarely held that the offense of cheating has not been made out against the accused in the present case.
6(b)(i). Culpability u/s. 468/471/474 IPC:Cr. Case 5289021/2016 STATE Vs. PAWAN KUMAR GUPTA FIR No. 822 /2005 Page 13 / 17
In order to establish offence under s. 468/471/474 IPC, prosecution has placed on record the forensic report Ex. PW5/A and examined one scientific expert Sanjeev Kumar as PW-5. IO has conducted very interesting investigation in the present case. As per the story of prosecution the forgery was committed on the cheque in question Ex. P1 by forging the signature at point Q1 and Q2. The specimen of the accused were taken by the IO from S1 to S32 sheets. The admitted signatures of both the signatories is on document Ex.PW7/A at point A1 and A2. IO had got the forged signature matched with the admitted signature i.e. Q1 and Q2 were matched with A1 and A2. However the specimen handwriting of the accused has not been matched with forged signatures i.e. Q1 and Q2. I am not able to understand as to what kind of investigation has been done by the IO. The offense of forgery could only be established by matching the specimen handwriting of the accused with the forged signature i.e. Q1 and Q2. Scientific expert has given the report the that admitted signature are not matching with the forged signatures, but the question that who has committed the forgery is silent. Undoubtedly the admitted signatures and not matches with forged signatures, but who has put the forged signatures is the mystery which has been kept unsolved by the prosecution. This court is not able to understand as to what kind of filthy investigation has been conducted by the IO. Thus, from the above discussion it is clear that the offense of forgery has not been made out. Now, as discussed above the foundational ingredient to be satisfied in order to bring home the charge u/s.468 IPC is the commission of forgery. Forgery has been further defined under s. 463 IPC. The actus reus for commission of forgery is making of any false documents or false electronic record or part of a document or electronic record. In the present evidentiary Cr. Case 5289021/2016 STATE Vs. PAWAN KUMAR GUPTA FIR No. 822 /2005 Page 14 / 17 spectrum the prosecution has not brought any evidence on record that proves the factum that the accused was maker of the forged cheque. Mere physical possession of the forged document with the accused does not in itself establish the fact that accused is maker of the document as well. Thus, the ingredients of s. 463 IPC having not been satisfied the prosecution under s. 468 IPC would automatically fail, as a natural corollary.
Now, with respect to s. 471 IPC as well the prosecution has failed to satisfy beyond reasonable doubt as to sustaining guilt under the said section. The sine qua non for invoking culpability under the said provision is the usage of the forged document as forged. (See: Parshadi Lal vs. State of NCT of Delhi, DHC, Crl. Revision No. 424 / 2011) In the present facts there is no evidence on record with respect to "use" of the document, which is the actus reus of the offence. It is the case of the prosecution that the forgery on the cheque is duly established and has been seized from the accused. Undoubtedly the signatures on the cheque were forged, but how the prosecution is alleging that the same was within the knowledge of the accused. The question which remains unanswerable is how the accused was having the knowledge that the cheque is a forged cheque. It could be the possibility that the cheque has been handed over to the accused by any official of the firm by forging the signature of the authorized signatory. Had the prosecution witnesses supported the case of prosecution and able to prove the offense of forgery then the view of this court might be different. In addendum, the prosecution has also failed to show the requisite mens rea on the part of the accused, viz. knowledge of the accused as to the fact that the document was not genuine. Thus, the actus reus and the mens rea for s. 471 IPC having not been manifested on record, no culpability u/s. 471 IPC is made out in Cr. Case 5289021/2016 STATE Vs. PAWAN KUMAR GUPTA FIR No. 822 /2005 Page 15 / 17 the present factual matrix. With regard to the offence u/s 474 IPC, as discussed above the foremost ingredient of possession of aforesaid document has not been made out. The knowledge with regard to possession of forged document can not be attributed to accused in the present case. Thus, it can be squarely held that above said offences are not made out against the accused.
6(b)(ii). Culpability u/s. 419 IPC:
The offense of section 419 IPC has to be read with section 416 IPC. It is the case of the prosecution that the name Anil Pahuja has been written on the cheque in question and the accused has committed the offense of cheating by impersonation. The identity of the accused is not disputed in the present case as the accused was caught red handed on the spot by the bank officials present there and their deposition is on record in this regard. The presence of the accused on the spot has been duly established by the deposition of PW-3 Amar Singh. It is also not disputed that the name of the accused is Pawan Gupta. It is also established that the name Anil Pahuja is mentioned on the cheque Ex. P1. The first and foremost important ingredient to establish the offense of cheating by personation is to cheat by pretend some other person or by substituting one person for another. In the present matter accused has nowhere pretended himself as Anil Pahuja. The accused was merely carrying the cheque at the name of Anil Pahuja. The accused could have convicted for the present offense, had the IO have investigate on the point that there was no person at the name of Anil Pahuja and the same was well within the knowledge of the accused. As of now there is nothing on record which could have established that accused had pretended himself as Anil Pahuja or substitute himself as Anil Pahuja. Nevertheless the offense of attempt to cheat has not been made out against the accused. Had the offense of attempt of cheat Cr. Case 5289021/2016 STATE Vs. PAWAN KUMAR GUPTA FIR No. 822 /2005 Page 16 / 17 has been made out against the accused then the view of this court might be different. Thus, the offense of cheating by personation has not been made out against the accused.
6(b)(iii). Culpability u/s. 381 IPC:
The accused has charged with the offense of theft by being the employee of the firm from the possession of the firm. In the present case prosecution has miserably failed to produce any evidence to establish that the accused has stolen the cheque from the possession of the firm. PW-07 and PW-09 has nowhere deposed that the cheque has been stolen from the possession of firm. Nothing has come on record which could have established that the cheque was stolen from the possession of firm. There is no written complainant given by the owner of the firm pertains to the theft of the cheque. There is no iota of evidence pertains to the present case which could have bring home the guilt of the accused qua this offense.
7. CONCLUSION:
Thus, the unequivocal conclusion that comes forth is that the prosecution has failed to prove the case against the accused on the touchstone of "beyond reasonable doubt". The accused has been successful in pointing out the deficiencies in the case of the prosecution, thus entitling him to benefit of doubt. Accordingly, accused Pawan Kumar Gupta stands acquitted of the charges u/s. 420 r/w 511 IPC & 471/474/419/381 IPC.
TUSHAR Digitally signed by
TUSHAR GUPTA
Announced in open court GUPTA Date: 2023.07.03
14:51:13 +0530
on 03.07.2023 (TUSHAR GUPTA)
MM-04 (North) Rohini Courts
Delhi/03.07.2023
Certified that this judgment contains 18 pages and each page bears my signature. TUSHAR GUPTA Digitally signed by TUSHAR GUPTA Date: 2023.07.03 14:51:21 +0530 (TUSHAR GUPTA) MM-04 (North) Rohini Courts Delhi/03.07.2023 Cr. Case 5289021/2016 STATE Vs. PAWAN KUMAR GUPTA FIR No. 822 /2005 Page 17 / 17