Delhi District Court
Crl. Appeal No. 8309/16 vs State on 18 December, 2017
IN THE COURT OF Ms. SUNENA SHARMA, ADDITIONAL
SESSIONS JUDGE-3 (SOUTH), SAKET COURTS, NEW DELHI
Crl. Appeal No. 8296/16
Rajender Singh @ Nitu
s/o Late Mala Singh
R/oHouse No.3/17,
18, Geeta Colony Jheel
New Delhi
&
Crl. Appeal No. 8309/16
Vivek Kumar
s/o Late Sh. Om Prakash
R/o House No.2/33, Geeta Colony,Jheel
New Delhi .... Appellants
Vs.
State .... Respondent
Date of Institution : 05.11.2016
Final arguments concluded on: 18.11.2017
Order pronounced on : 18.12.2017
JUDGMENT
1. Vide this common judgment, I shall decide two appeals filed u/s 374 Cr.PC against the judgment dated 05.10.2016 and the order on sentence dated 07.10.2016 passed by Ld.MM in case FIR No.105/2010. CA No.8296/16 has been preferred by the convict /appellant Rajender Singh @ Neetu, who was held guilty for the offence u/s 419/420 r/w section 34 IPC and for each of said offences he was sentenced to undergo RI for three years and fine of Rs.10,000/-each. In addition he was further held guilty for the offence punishable u/s 468 IPC for which he was sentenced for seven years CA No. 8296/16 & 8309/16 Rajinder Singh @ Nitu vs. State Page No.1/20 & Vivek Kumar vs. State and fine of Rs.30,000/-. In default of payment of fine, he was further ordered to undergo SI for one month each. CA No.8309/16 has been preferred by another convict/appellant Vivek Kumar, who was held liable for the offence u/s 419/420 rw section 34 IPC and for each of said offences he was sentenced to undergo RI for three years and fine of Rs.10,000/-each. For the sake of convenience, hereinafter, appellants shall be referred as accused.
2. Brief facts of the case as emanating from the chargesheet and the present appeal are that on 25.04.2010, ASI Devender and Ct. Ali Gohar were on patrolling duty, at 7pm when they were present near PVR Complex near Reebok showroom Saket, the Manager of the Reebok showroom namely Praveen Arora handed over two boys namely Vivek Kumar and Rajender Singh i.e. the convicts/appellants herein and upon inquiry complainant Praveen Arora stated that he was working in said Reebok showroom as Manager and at 5.30pm when he was present in the showroom, the said two boys came to the shop and started looking for pair of shoes and the boy with fair complexion handed over one debit card to check the balance and since the debit card showed balance, the boys selected one pair of shoes worth Rs.3299/- and got the debit card swapped and the card slip was signed by said fair complexion boy, who after signing the card slip handed over the card to his associate and while they were about to leave the showroom, complainant received a phone call from Chennai bank asking them as to whether the buyer was a Nigro. When the complainant informed that he was a north Indian, he was asked by the caller to stop the payment and to take back the articles.
CA No. 8296/16 & 8309/16 Rajinder Singh @ Nitu vs. State Page No.2/20 & Vivek Kumar vs. State Upon which, the complainant took back the pair of shoes from the boys and upon inquiry, the boys disclosed their names as Vivek Kumar and Rajender Singh. Complainant further stated that the boys had used the stolen debit card belonging to some foreigner for shopPang and he handed over the debit card with the swapped slip to the police.
3. On the basis of the above statement of the complainant, a kallandra u/s 102 Cr.PC was prepared and both the convicts/appellants were produced before Ld. MM on 26.04.2010. As per the directions of Ld. MM, the FIR was registered u/s 419/420/34 IPC and the investigation was handed over to ASI Virender. During investigation, IO arrested the accused, recorded their disclosure statement, prepared the site plan at the instance of the complainant and seized debit card and the card swap slip. During disclosure statement, the appellant informed that the debit card belonged to one Neha, a native of Calcutta, who had met appellant Vivek at 100 foota road, Chhatarpur extension and gave said debit card to him for shopPang. During investigation, despite efforts no clue of said girl Neha could be traced. On 27.04.2010, IO took the specimen signature of appellant/convict Rajender and sent the same to FSL for the purpose of expert oPanion. As per the chargesheet, no clue of the owner of the debit card could be traced till the filing of the chargesheet and the FSL result was also awaited. As per record, a supplementary chargesheet was filed for filing the FSL report wherein the handwriting in the specimen signature of the accused Rajender and the handwriting appearing on the swab slips of HDFC Bank were CA No. 8296/16 & 8309/16 Rajinder Singh @ Nitu vs. State Page No.3/20 & Vivek Kumar vs. State found to be of the same person.
4. After completing the investigation, IO filed the chargesheet before trial court on 11.09.2012 against both the convicts upon which cognizance was taken. Vide order dated 11.02.2015 charge for the offences punishable u/s 419/420 rw section 34 IPC was framed against both the accused and in addition charge for the offence u/s 468 IPC was also framed against accused Rajender Singh. Both the accused pleaded not guilty to the chage and claimed trial.
5. During trial, prosecution examined as many as 11 witnesses. After prosecution evidence, statement of both the accused were recorded u/s 313 Cr.PC, wherein they denied all the incriminating evidence and came up with the plea that they were falsely implicated as they had never visited the shop of the complainant nor they had purchased anything from there and their signatures were forcibly taken by the police on various documents. They both pleaded their innocence.
6. Both the present appeals have been preferred by the accused more or less on the similar grounds that Ld. Trial court passed the judgment based on surmises and conjectures without appreciating the fact that prosecution totally failed to prove its case beyond reasonable doubt; that Ld. Trial court failed to appreciate that the prosecution was not able to establish that the debit card allegedly used by the accused was a stolen debit card of Mr. Jin Pan which is CA No. 8296/16 & 8309/16 Rajinder Singh @ Nitu vs. State Page No.4/20 & Vivek Kumar vs. State evident from the testimony of PW9 ASI Devender Singh; that Ld. Trial court ignored the material fact that prosecution failed to adduce any evidence as to who had given the instructions for stopPang the payment of the card in question and on what basis; that Ld. Trial court failed to appreciate that no investigation was done on the aspect of phone call allegedly received from bank situated at Chennai nor the said phone caller was ever joined during investigation; that Ld. Trial court failed to appreciate that there was no evidence adduced from the prosecution side to substantiate the charges u/s 419 IPC as there is nothing on record to support the prosecution case that appellants impersonated as Mr. Jin Pan; that Ld. Trial court has fallen into grave error by convicting the accused u/s 420 IPC as there was no iota of evidence to show that any wrongful loss was caused to the complainant or any other person on account of alleged transaction as neither there was any delivery of property from the complainant to accused nor there is any monetary loss caused to complainant or wrongful gain to the accused; Ld. Trial court failed to appreciate that there was not any transaction of purchase of shoes as no invoice/bill of the same was ever placed on record by the prosecution nor there is any seizure memo showing that the shoes were recovered from the possession of accused; that Ld. Trial court overlooked the fact that even on swap slip, the alleged signature of appellant nowhere shows that he presented himself as Jin Pan in whose name the debit card in question was allegedly registered.
7. The appeal has been resisted by the State through oral submissions mainly relying upon the trial court record. Ld. Addl. PP CA No. 8296/16 & 8309/16 Rajinder Singh @ Nitu vs. State Page No.5/20 & Vivek Kumar vs. State rebutted the defence arguments by submitting that the allegations of impersonation, cheating and forgery were duly record by the prosecution through clinching evidence of the complainant and the owner of the Reebok shop who were examined as PW1 and PW2 respectively and there was no reason for them to falsely implicate the present convicts who were total stranger to said witnesses. It is further submitted by Ld. Addl.PP that Ld. trial court has rightly convicted the accused on the basis of the evidence adduced before it by giving correct reasoning and justification which is well in consonance with the settled proposition of law.
8. I have given my thoughtful consideration to the rival contentions raised from both the sides and also perused the entire record.
9. Out of 11 witnesses examined by the prosecution, PW1 Naveen Arora (Manager); PW2 Ashok Kumar (salesman); PW6 Harish Kumar, Sr. Manager HDFC Bank; PW9 ASI Devender Singh (1st IO) and PW10 SI Arvind Kumar( 2nd IO) are the material witnesses of the prosecution case.
10. As per the version of PW1 on 25.07.2010, he was working as Manager at Reebok Showroom PVR complex and at about 5.30pm, when he was present in the showroom, accused persons (correctly identified) visited their shop for purchase of shoe, both the accused selected a pair of shoes make Reebok costing Rs.3299/- and accused Rajender gave him a debit card for payment of said shoes. PW1 CA No. 8296/16 & 8309/16 Rajinder Singh @ Nitu vs. State Page No.6/20 & Vivek Kumar vs. State swapped the card and accused Rajender signed the charge slip and handed it over to PW1. The debit card was then handed over by accused Rajender to his associate i.e. the other accused and the purchase was complete and when both the accused were about to leave the showroom, in the meantime a phone call from Chennai bank was received whereby the complainant was informed that debit card used for above transaction was stolen and they were asked to stop the payment and take back the purchased article from the customer. Accordingly, PW1 asked the salesman Ashok i.e. PW2 and stock boy Lakhan i.e. PW4 (hostile witness), to stop the boys. Both the accused were apprehended, shoes were taken back and upon inquiry, their names were revealed as Rajender and Vivek. Thereafter, police officials were called in the showroom and the accused alongwith the debit card were handed over to police. PW1 gave a complaint Ex.PW1/A to the police and also handed over the swap slip Ex.P1 which was seized by the police vide seizure memo Ex.PW1/B. The police arrested the accused and also conducted the personal search vide memo Ex.PW1/C to Ex.PW1/F.
11. PW2, Ashok Kumar had also deposed on the lines of PW1 and corroborated his version to the extent that accused had visited the showroom on the date and time of alleged incident, purchased a pair of shoes, made payment through a debit card in respect of which an information was received on phone subsequent to which the payment was stopped and the accused were apprehended and later on handed over to police.
CA No. 8296/16 & 8309/16 Rajinder Singh @ Nitu vs. State Page No.7/20 & Vivek Kumar vs. State
12. PW6, Harish Kumar is Senior Manager HDFC Bank. As per his testimony which has gone un-rebutted, in the month of April 2010, while he was posted as Deputy Manager HDFC Bank Ansal Classic Tower, he had received a notice u/s 91 Cr.PC for providing the details of debit card number 4239530028130566 and upon checking the record the said card was found to be issued by Saint George Bank Limited Australia but no record was available with HDFC bank pertaining to said card. PW6 further deposed that he had given his reply Ex. PW6/A in this regard bearing his signature at point A.
13. PW9, ASI Devender Singh is the Ist IO of the case. As per his version, on 25.04.2010, he was posted as beat head constable at PVR Saket and at around 6-6.15pm when he alongwith Ct. Ali Gohar (PW7) was present at PVR complex, the Manager of Reebok showroom shop no.2, PVR complex, Mr.Praveen Kumar met them and he produced two persons before him and told them that said two persons had used debit card for purchasing Reebok shoes and on verification it was revealed that said card did not belong to them. Upon inquiry, the name of said persons were revealed as Rajender and Vivek, who during interrogation disclosed that said card belonged to one Ms. Neha, who handed over said card to them but they did not disclose the address of said person Neha.
14. PW9 recorded the statement of Manager Ex.PW1/A, seized the debit card vide memo Ex.PW2/A, arrested the accused, conducted personal search vide memo Ex.PW1/C to 1/F and prepared kallandra u/s 102 Cr.PC as Ex.PW9/A and produced the said accused before the CA No. 8296/16 & 8309/16 Rajinder Singh @ Nitu vs. State Page No.8/20 & Vivek Kumar vs. State court concerned on the next day. On the direction of the court concerned, he registered the FIR against the accused. The swap slip generated at the time of use of said debit card handed over by the complainant was also seized vide Ex.PW1/B. Thereafter, IO moved an application for seeking specimen signature and handwriting of the accused Rajender Singh. Later on he gave notice u/s 91 Cr.PC to HDFC Bank for obtaining the details regarding ownership of said debit card and upon the instructions of the bank officials he got said application forwarded through DCP. However, after that he got transferred to some other police station and on 18.01.2011, the investigation was handed over to 2nd IO PW10 SI Arvind Kumar.
15. Testimony of PW10 SI Arvind Kumar has gone unrebutted as he was also not cross examined. As per his examination in chief, the exhibits i.e. the disputed signature on the swap slip were sent to FSL through Ct. Ramesh on 08.03.2011. During investigation, he also recorded the statement of witnesses u/s 161 Cr.PC, gave notice u/s 91 Cr.PC to HDFC bank for obtaining the details of the employees who had given the information to complainant to stop the payment of the card in question. However, as per deposition of PW10, he did not receive any reply to said notice from the bank therefore, he himself visited HDFC Bank Rajouri garden branch and he was informed by Deputy Manager of said bank that they used to keep the record only for last six months. He further deposed that the Ist IO HC Devender had sent a request pertaining to debit card in question to Saint George Bank Limited Australia through proper channel but the reply of the same was still awaited.
CA No. 8296/16 & 8309/16 Rajinder Singh @ Nitu vs. State Page No.9/20 & Vivek Kumar vs. State
16. After filing of the chargesheet, the FSL report was received on record and the same was filed by way of supplementary chargesheet. The said report was proved on record by PW3 Virender Singh as Ex.PW3/A wherein he had oPaned that the person who had written red enclosed writing Q1 on the slip of HDFC bank also signed red enclosed writing from S1 to S4 i.e. the specimen signatures.
17. As already noted above, vide impugned judgment, convict/appellant Rajender Singh has been convicted for the offence under Section 419/420 read with Section 34 IPC & for the offence under Section 468 IPC, whereas convict/appellant Vivek Kumar has been convicted for the offence punishable under Section 419/420 read with Section 34 IPC. Before adverting to respective contentions urged on behalf of appellant and the respondent, I deem it appropriate to first glance through relevant provisions of law.
18. Section 415 IPC defines cheating as under:-
Cheating:- Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat".
Explanation.' A dishonest concealment of facts is a deception within CA No. 8296/16 & 8309/16 Rajinder Singh @ Nitu vs. State Page No.10/20 & Vivek Kumar vs. State the meaning of this Section.
19. Section 416 IPC defines cheating by personation as under:-
Cheating by personation.- A person is said to "cheat by personation" if he cheats by pretending to be some other person, or by knowingly substituting one person for another, or representing that he or any other person is a person other than he or such other person really is.
Explanation.- The offence is committed whether the individual personated is a real or imaginary person.
20. Section 419 IPC prescribes punishment for the offence of cheating by personation as under:-
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.
21. Section 420 IPC prescribes punishment for offence of cheating as under:-
Cheating and dishonestly inducing delivery of property.- Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with CA No. 8296/16 & 8309/16 Rajinder Singh @ Nitu vs. State Page No.11/20 & Vivek Kumar vs. State imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
22. Section 463 IPC defines forgery as under:-
Forgery.- Whoever makes any false documents or false electronic record or part of a document or electronic record, with intent to cause damage or injury, to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery.
23. Section 468 IPC prescribes punishment for forgery for the purpose of cheating as under:-
Forgery for purpose of cheating.- Whoever commits forgery, intending that the document or electronic record forged shall be used for the purpose of cheating, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
24. In order to prove the commission of offence u/s 468 IPC, it has to be prima facie shown that forgery was done with an intention to use the forged documents for the purpose of cheating. Offence of cheating as defined in section 415 IPC requires essential element of deception as well as fraudulent or dishonest inducement by accused. Hence, it is the intention which is the gist of offence of cheating. Forgery as defined u/s 463 IPC requires that making of any false CA No. 8296/16 & 8309/16 Rajinder Singh @ Nitu vs. State Page No.12/20 & Vivek Kumar vs. State document must be with an intent to cause damage or injury or with intent to commit fraud. As provided u/s 464 IPC, making of a false document for the purpose of forgery must be with dishonest or fraudulent intention.
25. Referring to statutory provision under IPC and judicial pronouncement, it was vehemently argued on behalf of appellants that fraudulent or dishonest intention being the most essential ingredient to constitute offences of cheating and forgery, it was incumbent upon the prosecution to place material before the court to prima facie satisfy that accused committed such offences with the requisite intention and mens rea. While there is no such material on record to remotely suggest any such intention on the part of accused to cause wrongful loss to the complainant and wrongful gain to themselves.
26. Thus, the essential ingredients for the offence of cheating are-
(1) Deception of any person, and
(2) Fraudulently or dishonestly inducing that person
(a) to deliver any property to any person, or
(b) to consent that any person shall not retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property.
Thus, fraudulent or dishonest intention is an essential ingredient CA No. 8296/16 & 8309/16 Rajinder Singh @ Nitu vs. State Page No.13/20 & Vivek Kumar vs. State for commission of offences of cheating and forgery.
27. Section 24 of IPC defines the expression 'dishonesty' as follows- Dishonestly - Whosoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person is said to do that thing dishonestly.
28. Section 25 of IPC defines the expression fraudulently' as follows ;
Fraudulently - A person is said to do a thing fraudulently if he does that thing with intent to defraud but not otherwise.
29. After adumbrating the facts narrated in the charge sheet, if the deposition of witnesses examined in this case is analyzed in the light of above provisions of law, I am of the view that even if the deposition of prosecution witnesses given in their examination in chief is taken to be true that is to say that even if their allegations are taken at their face value as true, the basic essential ingredients of alleged offence of cheating, forgery and cheating by impersonation are missing and Ld. trial court has committed a fundamental error in convicting the accused for said offences.
30. Before adverting to the evidence on record, I deem it necessary to refer to allegations raised against accused in the charges framed against them by the trial court on 11.02.2015. The allegations are that on 25.04.2010 at about 5:30 pm, at shop no.2, CA No. 8296/16 & 8309/16 Rajinder Singh @ Nitu vs. State Page No.14/20 & Vivek Kumar vs. State Reebok Showroom, PCR Complex, New Delhi, both the accused in furtherance of their common intention cheated complainant Sh. Praveen Arora (Manager) having purchased a pair of Reebok shoe worth Rs.3299/- by swapping Debit card no.4239530028130566 of St. George Bank Ltd., Australia issued in the name of Jin Pan for dishonestly inducing delivery of the pair of Reebok shoe, impersonating as real card holder and thereby they both committed offences punishable u/s 419/420 r/w Section 34 IPC. Additionally, it is further alleged against accused Rajinder Singh that on same date, time and place as above, he signed upon the slip of HDFC Bank in place of original card holder and thereby committed an offence of forgery for the purpose of cheating punishable u/s 468 IPC.
31. If the aforesaid provisions of law are applied to the facts of the present case then I have no hesitation in holding that no offence of section 419 IPC is made out as accused had never represented himself as Jin Pan. Even the signature appearing on swap slip does not show that accused Rajender had signed in the name of Jin Pan nor even the complainant has alleged that he represented himself to be Jin Pan. The accused appears to have initialed his own name on the swap card and nowhere has signed to represent himself as Jin Pan. Even otherwise, there is no requirement that only a registered card holder can do purchasing with the debit card as such cards can be used even by the person other than the registered holder provided he has been authorized to use it by the registered holder. In these circumstances, the fact that as per FSL report, the signatures appearing on swap slip got matched with specimen handwriting of CA No. 8296/16 & 8309/16 Rajinder Singh @ Nitu vs. State Page No.15/20 & Vivek Kumar vs. State accused Rajender, is of no consequence for proving the charges of alleged offences. The offence of forgery cannot be proved unless intention on the part of accused to cheat the complainant is established on record. While, in the present case there was no such intention to cheat the complainant because, if at all any wrongful loss was intended to be caused by the accused that would have been caused to the registered card holder on account of said alleged unauthorized use of debit card. While, in the present case, at the first instance, after the sale of the shoes to the accused the money got transferred which is also reflected in the swap slip allegedly signed by the accused Rajender and it is only after the complainant allegedly received a call from some bank at Chennai for cancelling the sale, the complainant cancelled the sale and generated another swap slip of void sale. As such, no loss was caused to the complainant on account of use of said debit card by the accused as the shoes were also taken back by the complainant after cancelling the sale.
32. In the light of aforementioned definitions of cheating, forgery and cheating by personation, it becomes amply clear that the intention of an accused must be to cheat somebody who shall be described as a victim at the hands of accused and only when necessary ingredients of an offence of cheating under Section 415 IPC are made out in a case, then only a person can be said to have committed an offence of cheating by personation punishable u/s 416 IPC or offence of forgery punishable u/s 468 IPC. Once, there was no attempt on the part of accused either to present themselves as the Jin Pan, or to cause wrongful loss to the complainant, then, in my opinion CA No. 8296/16 & 8309/16 Rajinder Singh @ Nitu vs. State Page No.16/20 & Vivek Kumar vs. State no offence at all was made out against any of the accused/appellants. Jin Pan, in whose name the card allegedly used by appellants for purchase of Reebok shoes has been issued, was never examined by the prosecution nor there is any iota of material to show that he had ever lodged any complaint to the concerned bank regarding theft of said debit card or he had ever issued any instructions to his banker for stopping the payment of said debit card on account of its unauthorized use. No witness has been examined by the prosecution from Saint George Bank, Australia, from where the card in question was issued, to prove any such fact on record.
33. The witness from HDFC Bank examined as PW6, was also unable to disclose on whose intimation or instruction, the complainant was asked to stop the payment. As per complainant, someone from Chennai bank telephoned and asked him to stop the payment. But, no witness from any such bank was ever examined by the prosecution. In view thereof, there is nothing on record to corroborate complainant's version that he had to cancel the sale transaction by stopping the payment, on the instruction of card holder's bank. Furthermore, from the swap slip it appears that transaction of transfer of money from the account of debit card holder into the account of seller had already taken place and it is complainant only who cancelled it after allegedly receiving a phone call from Chennai to stop the payment. Even if, it is assumed that said transaction of sale was complete, even in that case, no wrongful loss has been caused to the complainant as he never parted with his goods because as per his own version, the shoes were taken back from the accused.
CA No. 8296/16 & 8309/16 Rajinder Singh @ Nitu vs. State Page No.17/20 & Vivek Kumar vs. State
34. The material on record is totally lacking to prove that intention of accused was to cause any wrongful loss to the seller i.e. the complainant. It is a matter of common knowledge that debit cards can be used by the person other than the person to whom it is issued provided such person has been authorized by the card holder to use it by sharing the pin number/password of debit card. As already noted above, evidence on record is absolutely lacking in this regard as there is nothing on record to show that it was a stolen or fake/cloned debit card or that the same was unauthorizedly used by the accused as neither the registered holder of said debit card ever stepped into witness box nor any witness from Saint George Bank Ltd. Australia has been examined to depose in this regard. The circumstances proved on record nowhere reflects that on account of any deception, complainant had been induced to deliver the goods.
35. It is a cardinal principle of criminal jurisprudence that the onus is always upon the prosecution to prove the guilt of accused and accused has a right to remain silent as enshrined under Article 20 (3) of Constitution. In the light of said principle of law, Ld. Trial court has fallen into grave error by observing that :-
"Para 46:Though efforts were made to ascertain about the owner of debit card, but his particulars could not be obtained and therefore, he could not be joined in investigation. It is immaterial as to whether stop payment instructions were issued by owner of debit card, Ex.P2 or not as it has been established that the debit card, Ex.P2 neither belonged to either of the accused persons, nor they were authorized to use it.
Para 47: It is immaterial that bill/invoice issued against the CA No. 8296/16 & 8309/16 Rajinder Singh @ Nitu vs. State Page No.18/20 & Vivek Kumar vs. State transaction of sale of pair of shoes to the accused persons has not been produced and proved before the court. The complainant andPW2 Sh.Ashok Kumar have proved that both the accused persons had purchased a pair of shoes and made payment through the debit card, Ex.P2. The prosecution has been successful in establishing that accused Rajender Singh had forged the signatures of Jin Pan on swap slip, Ex.P1., Therefore, it has been established that both the accused persons had purchased a pair of shoes and made payment through debit card, Ex.P2.'
36. Here, it is surprising to note as to on what basis Ld. trial court concluded that accused were not authorized to use it. Simply because the debit card had been used by the person other than the registered holder, would not make its use unauthorized unless the registered card holder or the witness from issuing bank deposes in this regard or unless it is established that the card used was a stolen, fake or cloned card. Whereas, in the instant case, except the disclosure statement of accused, which is inadmissible in law, there is no other material even to remotely suggest that it was unauthorizedly used by the accused persons. Furthermore, none of the accused represented himself to be Jin Pan to the complainant either by verbally introducing himself to be Jin Pan or even by putting his name or signature as that of Jin Pan on the swap slip or any bill/invoice.
37. In Rajiv Singh v. State of Bihar and Anr. Reported in MANU/SC/1462/2015, the cardinal principles governing the criminal jurisprudence were discussed. The Hon'ble Apex Court held that:
"It is well entrenched principle of criminal jurisprudence that a charge can be said to be proved only when there is certain and explicit evidence to warrant legal conviction and that no person can be held guilty on pure moral conviction. CA No. 8296/16 & 8309/16 Rajinder Singh @ Nitu vs. State Page No.19/20 & Vivek Kumar vs. State Howsoever grave the alleged offence may be, otherwise stirring the conscience of any court, suspicion alone cannot take the place of legal proof. The prosecution case to succeed has to be in the category of "must be" and not "may be". The court has to essentially undertake an exhaustive and analytical appraisal of the evidence on record and register findings as warranted by the same."
38. Having regard to above discussion, I find the impugned judgments illegal and unsustainable in law. Appeal is hence, allowed. Both the impugned judgment as well as the sentence order are set aside.
39. A Copy of judgment alongwith trial court record, be sent to ld. Trial court. Appeal file be consigned to record room.
Announced in the open court (SUNENA SHARMA)
on 18.12.2017 Addl. Sessions Judge-03(South)
Saket Courts, New Delhi
CA No. 8296/16 & 8309/16
Rajinder Singh @ Nitu vs. State Page No.20/20
& Vivek Kumar vs. State