Delhi District Court
State vs . Vinod Parkash on 22 December, 2018
THE COURT OF SH. KAPIL KUMAR
METROPOLITAN MAGISTRATE05, CENTRAL,
TIS HAZARI COURTS, DELHI
CNR NO. DL CT020001472000
CIS No. 294015/16
State Vs. Vinod Parkash
FIR No. 231/99
PS. Rajender Nagar
U/s. 420 IPC
JUDGMENT
1) The date of commission of offence : between 30.04.1999 to
06.05.1999
2) The name of the complainants : 1. Sh B.D Chabbara
2. Sh Charat Singh
3. Sh Rakesh Bhandari
3) The name & parentage of accused : Vinod Parkash Sharma
S/o. Om Parkash Sharma
R/o. VPO Nahari, PS Rai,
District Sonipat,
Haryana.
4) Offence complained of : 420 IPC
5) The plea of accused : Pleaded not guilty
6) Final order : Acquitted
7) The date of such order : 22.12.2018
Date of Institution : 19.09.2000
Judgment reserved on : 21.12.2018
Judgment announced on: 22.12.2018
THE BRIEF REASONS FOR THE JUDGMENT:
1) The case of prosecution against the accused is that between
30.04.1999to 06.05.1999 at 15/59 Rajender Nagar, New Delhi he dishonestly induced the complainants B.D Chabra, Charat Singh and Colonel Rakesh Bhandari to pay him Rs 94,825/ Rs 70,050 and Rs 34,716 respectively as a margin money on the pretext of getting cars financed.
2) After completion of investigation, charge sheet was filed against the accused. In compliance of Sec. 207 Cr.PC, documents supplied to the accused. Arguments on point of charge were heard. Vide order dated 08.10.2003, a charge u/s. 420 IPC was served upon the accused Vinod Parkash Sharma, to which he pleaded not guilty and claimed trial.
3) In support of its case, prosecution has examined 10 witnesses. Statement of accused was recorded under section 313 Cr.P.C r/w Section 281 Cr.PC in which he denied all the allegations and wish to lead DE. However no defence evidence was led and the matter was fixed for final arguments.
4) I have heard the arguments of Ld. APP for State and Ld Counsel for accused. I have also perused the record carefully.
5) The testimony of prosecution witnesses is being touched upon, in brief, as follows: Complainant 5.1) PW1 Colonel Rakesh Bhandari deposed that he was approached by some agent of a finance firm namely Global Leasing situated at Rajender Nagar and he was assured that after making down payment the entire loan amount will be financed. He deposed that cross cheque of Rs 36,000/ was issued in the name of the said company but the car was not financed. He deposed that a cheque for the same amount was issued in his name by the said company but the same was got dishonored. Complaint Ex.PW1/A was filed in the police station. He deposed that the name of accused Vinod Sharma, the proprietor of the firm was mentioned in the complaint as the name of the accused came into his notice when the office of the firm was visited. He deposed that the accused made the payment of full cheque amount in cash to him later on in the police station. Witnesses to the investigation.
5.2) PW2 HC Chander Bhan proved the present FIR as Ex.PW2/A. 5.3) PW3 Constable Sanjeev deposed that on 10.08.1999 he joined the present investigation with IO SI MP Saini and at the instance of the accused some documents and articles were seized vide seizure memo. 5.4) PW5 HC Hari Singh deposed that on 09.08.1999 he joined the investigation with the IO and the disclosure statement of accused Vinod Kumar was recorded by the IO.
5.5) PW6 retired Inspector Kailash Chand deposed that on 20.08.1999 the present case filed was marked to him for further investigation. He deposed that he took the JC remand of the accused and sent the exhibits qua the signatures and handwriting of the accused to FSL. 5.6) PW8 Inspector M.P Saini deposed that on 10.09.1999 the investigation of the FIR no. 222/99 was marked to him. He along with Ct Sanjeev and accused who was in police custody went to the office of accused situated at 15/59, Basement Old Rajender Nagar, Delhi where the accused produced several cheques/cheque book which were seized vide Ex.PW8/A. Formal Witnesses.
5.7) PW4 Indeerjeet Singh Kholi deposed that he gave the basement of building no. 15/59, Old Rajinder Nagar to the accused Vinod Parkash Sharma on rent at rate of Rs 8000/ per month. He deposed that at the time of executing rent agreement accused told his name as Ranbir Singh. 5.8) PW7 Sh D.D Goel deposed that he examined the questioned signatures Q1 and Q2 on cheques number 639048 and 639049 with the specimen signatures of the accused and came at conclusion that the specimen signatures and the question signatures are of one person. His report was proved as Ex.PW7/A. 5.9) PW9 Sh Ravi Jain deposed that in the year 1999 he was working as manager in the office of newspaper Times of India situated at 10 Daryaganj. He deposed that he does not know about the facts of the present case and he did not make any statement to the police. 5.10) PW10 Sh Muskan Singh deposed that in the year 19992000 he was working as Executive Officer in HDFC Bank, situated at 79 Rajender Nagar. He deposed that he does not know any facts of the present case and he even does not remember whether he provided the certified copy of account opening form of account no. 0262000005987 along with other documents in FIR no. 227/99, PS Rajender Nagar to the police or not.
6) It is the cardinal principle of criminal justice delivery system that the prosecution has to prove the guilt of the accused beyond reasonable doubts. No matter how weak the defence of accused is but the golden rule of the criminal jurisprudence is that the case of prosecution has to stand on its own legs.
7) The present complaint Ex.PW1/A was given to the SHO PS Rajender Nagar by three persons namely Sh B.D Chabbra, Charat Singh and Lt Colonel Rakesh Bhandari against the accused as they were allegedly duped by the accused for different amounts by adopting the same modus operandi in the month of AprilMay 1999. However only one complainant Sh Rakesh Bhandari was examined during the prosecution evidence as PW1. Summons issued to another complainant Sh Charan Singh received back with the report that he got expired. The other complainant Sh B.D Chabra remained unserved. Summons were issued to him through concerned DCP also but of no avail. The report of DCP is on record vide letter no. 15433/legal Cell/Central District, Delhi dated 13.07.2015. Thus only one complainant have been examined during the trial.
8) The important witness of the present case is the complainant/PW1. The entire case of the prosecution revolves around his testimony. The evidences of handwriting expert, the owner of tenanted premises where the accused allegedly opened office, and other witness have only the corroborative value as they were not duped and not victims of the present case. It has to be appreciated by virtue of testimony PW1 as to whether the ingredients of offence U/s 420 IPC stands proved or not. The prime requirement is to prove the identification of accused being the offender and whether it was the accused who dishonestly induced the complainant to part with the money or not.
9) PW1 deposed that he was approached by some agent of finance firm in the name of Global Leasing situated at Rajender Nagar. He deposed that he was assured that after giving the down payment the entire remaining amount will be financed for the car in the name of car dealer. He deposed that a crosscheque of Rs 36,000/ approximately in the name of said finance company was issued but the car was not financed. He deposed that he approached the office of firm where he came to know that the proprietor of firm is Sh Vinod Sharma and thus he named the accused in the complaint. He deposed that the cheque which was handed over to him by the firm but the same was got bounced. He deposed that he was given the entire payment in cash by the accused in the presence of SHO PS Rajender Nagar.
10) The complainant not deposed that it was the accused who approached him with offer that after making the down payment of the car the entire loan amount will be financed. Complainant deposed that he came to know about the name of accused being the proprietor of Global Leasing from the office and thus he mentioned the name of accused in the complaint. The complainant not identified the accused even in the court as the person who approached him with the abovementioned offer. In the criminal trial, there is no concept of vicarious liability in case of offences by a individual. The accused cannot be held responsible for the act of another person. It is not proved by the prosecution as to whether the person who approached PW1 was really agent or employee of Global Leasing or not. What was said by that person to PW1 at the time of receiving the alleged cheque also not came on record. The dishonest inducement itself is not proved which is the sine qua non for the offence U/s 420 IPC. Reliance could be placed upon on this aspect on the judgment titled as Mahadeo Parsad Vs State of Bengal AIR 1954 SC
724.
11) If it is assumed that the inducement to the complainant was through the advertisement in the newspaper Times of India or any other newspaper than it was required to be proved by the prosecution that the relevant articles/advertisement in the newspaper was got published by the accused by approaching the office of the relevant newspaper. At this stage it is important to mention here that the prosecution got examined Sh Ravi Jain, the than Manager of The Times of India office at Daryaganj, Delhi as PW9 but PW9 did not support the case of prosecution at all. He denied to make any statement to the police. He was crossexamined by Ld APP for the State wherein his previous statement was put to him but he specifically denied to make such statement to the police. He deposed that he does not remember as to whether he had provided any copy of the newspaper to the IO or not. In the considered opinion of this court the advertisement allegedly published in the newspaper Times of India or any other newspaper not proved on record. Thus it is also not proved that any inducement was caused to the complainant by virtue of an advertisement got published in the newspaper allegedly by the accused.
12) At the risk of repetition it is to be observed that for the offence of cheating the prime requirement is the dishonest inducement. Nothing came in the testimony of the complainant as to the dishonest inducement by the accused personally and it is also not proved that any dishonest inducement was caused to the complainant/PW1 through a articles/advertisement in the newspaper. The case of the prosecution fails on this ground itself. Reliance could be placed upon judgment titled as Joseph Salvaraj Vs State of Gujarat AIR 2011 Supreme Court 2258 wherein it was held by Hon'ble Apex Court that there has to be a dishonest intention from the very beginning which is the sine qua non to hold the accused guilty of commission of offence of cheating.
13) There is nothing on record as to the circumstances also at the relevant time which even makes out any dishonest intention of the accused since inception or at the time when the alleged margin money was paid by PW1. The prosecution was required to prove specifically as to the circumstances in which it was beyond the capacity of the accused to honor the commitment as to the finance of the car. The case of the prosecution is silent on this aspect. Merely failure of a person to keep the promise or failure to comply the undertaking is not an offence in the Indian Penal Code. It was required to be proved that the accused was having dishonest intention since inception. The mensrea on the part of accused is not proved and this court is not deciding the civil dispute between the payment as to the payment of money.
14) Another missing link in the case of prosecution is that it is not proved on record that the accused was the proprietor of Global Leasing. PW1 deposed that they came to know about the name of accused as to the owner of Global Leasing when he visited the office of Global Leasing. Relying upon the basic law as to the criminal jurisprudence that this court cannot assume any fact. Each and every fact is required to be proved by the prosecution. There is no evidence on record as to whether the accused Vinod Parkash was the proprietor of Global Leasing or not. The prosecution could have summon the documents from the office of registrar of firms to prove this fact but this fact was not taken care of by the prosecution.
15) It is also not proved that any payment was credited in the account of Global Leasing firm. The bank account statement of the firm was required to be proved specifically. On this aspect the prosecution examined Sh Muskaan Singh the than Executive Office of HDFC Bank, Sh Muskaan as PW10 but did not support the case of the prosecution and deposed that he did not make any statement to the police during the investigation. He categorically denied to make any statement to the police when his alleged statement U/s 161 Cr.PC was put to him by Ld APP for the State during the crossexamination. He deposed that he does not remember as to whether he had provided the certified copy of the account opening form of account no. 0262000005987 related to FIR no. 227/99 PS Rajender Nagar. Thus PW10 even not deposed in affirmative as to giving of copy of bank account opening form. He did not depose that any statement of account was given to the police. In these circumstances it is not proved that any amount was transferred to the bank account of Global Leasing from the bank account of PW1 through a cheque.
16) The prosecution examined Sh DD Goel as expert witness qua the opinion as to the similarity of signatures appearing on cheques no. 639048 and 639049 marked S1 and S2. Sh DD Goel, examined as PW7, deposed that these signatures bears the signatures of accused. These cheques are in the favour of one Sh B.D Chabbara and Sh Charat Singh who are not examined during the trial. If it is taken as truth that acused issued these cheques in favour of Sh B. D Chabbara and Sh Charat Singh for any reason whatsoever than these cheques which were issued later to the alleged dishonest inducement by the accused does not make out the offence of cheating. By virtue of these cheques no presumption could be drawn as to the dishonest intention of accused since inception when the alleged margin money was allegedly received by the accused.
17) In view of the above discussion it is clear that there are gaping holes in the case of prosecution. It is well settled law that suspicion, however grave it may be, cannot take the place of proof and there is huge difference between something that 'may be proved' and 'will be proved'. In criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. The large gap between ' may be true' and 'must be true', must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution before the accused could be condemned as convict. Reliance could be place upon Judgments titled as Hanumant Govind Nargundkar & anr. Vs State of M.P., AIR 1952 SC 343; Shivaji Sahabrao Bobade & Anr. Vs. State of Maharashtra, AIR 1973 SC 2622; Sharad Birdhichand Sarda Vs. State of Maharashtra, AIR 1984 SC 1622; Subhash Chand Vs State of Rajasthan, (2002) 1 SCC 702; Ashish Batham vs State of MP AIR 2002 SC 3206; Narendera Singh & Anr Vs State of MP., AIR 2004 SC3249; State through CBI Vs Mahender Singh Dahiya, AIR 2011 SC 1017; and Ramesh Harijan Vs State of U.P AIR 2012 SC 1979.
18) Thus in view of above discussion, the prosecution is not able to discharge its burden of proof. Accordingly accused Vinod Parkash S/o Om Parkash Sharma is hereby acquitted from the present case. File be consigned to Record Room subject to furnishing of bail bonds as per section 437 A Cr.PC.
Digitally signed KAPIL by KAPIL
KUMAR
KUMAR Date: 2018.12.22
16:04:03 +0530
Announced in open court (Kapil Kumar)
on 22.12.2018 MM5/Central District
Tis Hazari Courts/Delhi,