Delhi District Court
State vs Narender Bahadur Singh on 29 November, 2019
FIR No. 366/2002
PS: Rajinder Nagar
U/s 408 IPC
State Vs Narender Bahadur Singh
IN THE COURT OF SH. VIPLAV DABAS ACMM (Special Acts)
CENTRAL TIS HAZARI COURTS DELHI
CIS No. 296106/2016
FIR No. 366/2002
PS: Rajinder Nagar
U/s 408 IPC
State Vs Narender Bahadur Singh
Date of Institution of case : 10.09.2003
Date of Judgment : 29.11.2019
JUDGMENT:
a) Date of offence : 26.11.2002 b) Offence complained of : U/s 408 IPC c) Name of Accused, his : Narender Bahadur Singh S/o Late Sh. Mahadev Singh R/o Village Kodra, District Rai Barelley, U.P. d) Plea of Accused : Pleaded not guilty e) Final order : Acquitted Page 1 of 38 FIR No. 366/2002 PS: Rajinder Nagar U/s 408 IPC State Vs Narender Bahadur Singh BRIEF FACTS AND REASONS FOR DECISION: Case of the prosecution in brief is as follows:
1. On 21.11.2002, at about 4:00 p.m, accused Narender Bahadur Singh was employed as the supervisor / clerk by the complainant Lalit Goyal and was entrusted with Rs. 68,350/ by M/s Chander Bhan Gupta & Sons and again at 5:15 p.m, accused was entrusted with Rs. 7 lakh by Mahesh Goyal, brother of complainant at Aman Chambers, Pusa Road, Old Rajinder Nagar, Delhi which was to be delivered at 148, Anand Vihar, Pritampura, Delhi in the capacity of such clerk / supervisor but accused neither delivered the abovesaid amount as directed nor returned to complainant and thereby committed the criminal breach of trust. On the basis of aforesaid facts, the present FIR was registered for offence punishable under Section 408 IPC against the accused and after usual investigation chargesheet was filed.
2. The Court took cognizance of the abovesaid offences and provisions of Section 207 Cr.P.C were complied. After hearing arguments, as a prime facie case was made out against the accused Narender Bahadur Singh for offence punishable u/s 408 IPC, charge was accordingly framed against the accused to which accused pleaded not guilty and claimed trail.
3. In order to prove the guilt of the accused u/s 408 IPC, the prosecution has to prove the following essential ingredients of the said Sections: a. Section 408 IPC: That the accused was a clerk or servant, that in such capacity accused was entrusted with certain property or had dominion over that property which was not his own and that accused committed criminal breach of trust in respect of such property by mis appropriating the property dishonestly.
Page 2 of 38 FIR No. 366/2002PS: Rajinder Nagar U/s 408 IPC State Vs Narender Bahadur Singh
4. During the course of the trial prosecution has examined 15 witnesses to substantiate the accusation.
5. PW1 Sh. Lalit Goel deposed that he runs a business of Edible Oil at 67, Kohinoor Building, Katra Bariyan, Delhi and accused Narender Bahadur Singh is his employee and was working as supervisor and that he also used to collect the payment from the parties and he was working with him for the last 56 years. PW1 Sh. Lalit Goel further deposed that on 21.11.2002 at about 4:00 p.m, he sent accused Narender Bahadur Singh to collect the payment of Rs. 68,350/ from M/s Chander Bhan Gupta & Sons at Karol Bagh on his scooter bearing no. HR 61C 9161 and he has asked him that after receiving the payment he should confirm him on telephone stating that the payment has been received by him from the party, that he also directed the accused to go to Aman Chamber at Pusa Road where his younger brother Mahesh Goel was sitting in the office of M/s Stelco Ltd Company to collect the payment from his brother and he asked him to confirm the payment after collecting the same and that accused was further directed to reach at Anand Vihar, Pritampura alongwith the whole collected amount. PW1 Sh. Lalit Goel further deposed that when he reached his home at about 7:30 p.m, he came to know that accused has not turned up with the payment, that when accused did not turn up with the amount he went for the search of accused at his room at Village Shahbad Daulat Pur where he came to know that he had not reached there, that at about 4:00 a.m, in the night / morning his brother Mahesh Goel received a telephonic call from the accused that he is calling from Muradabad and he will reach Delhi at about 10 or 11:00 a.m, that when the accused did not turn up till evening, he went to the police station and gave a written complaint Ex. PW1/A, that the accused Page 3 of 38 FIR No. 366/2002 PS: Rajinder Nagar U/s 408 IPC State Vs Narender Bahadur Singh neither returned the amount nor returned the scooter in which he collected the amount, that on 21.07.2003 he alongwith his brother Mahesh Goel, one Constable and ASI joined the investigation and went for the search of the accused but no information was received, that when they were returning at about 8:00 p.m at Nathu Sweet Shop, he saw the accused going towards the wine shop and he informed the same to the IO, that thereafter the accused was apprehended and he was interrogated, that disclosure statement of the accused was recorded vide memo Ex. PW1/B, that the pointing out memos were prepared at the instance of the accused Ex. PW1/C and Ex. PW1/D and that personal search of accused was conducted and he was arrested vide memo Ex. PW1/E and Ex. PW1/F respectively.
During the cross examination conducted on behalf of accused, the witness deposed that he himself alongwith his brother Mahesh Goyal, Ravi Goyal and father M.L.Goyal run the joint business, that he has not produced any accounts whatsoever about the collection of money which has allegedly been collected by the accused from two parties i.e M/s Chander Bhan Gupta & Sons and his younger brother Mahesh Goyal who was sitting at the office of M/s Stelco Ltd & that the accounts are not on the file, as he has not given the same to the police, however, he went with the police with the abovesaid parties for recording of their statements.
The witness denied the suggestion that he does not have any account at all nor there is any material available in order to show above such transaction of money as alleged in his complaint or in the deposition. The witness further deposed that he does not maintain any record about the employment of the persons of his company & again said that they keep a record of the employee as they pay salary to them and that he has not produced any such record to the police nor he has produced any such record. The witness denied the suggestion that he has not given any such record because he does not possess any such Page 4 of 38 FIR No. 366/2002 PS: Rajinder Nagar U/s 408 IPC State Vs Narender Bahadur Singh record. The witness further deposed that he does not remember the exact date about the employment of the accused, that he had not furnished any document to the police to the effect, that accused was employed on the recommendation of Kewal Bahadur and that there were various other employees present at his office on the day of incident and that they were knowing about the deputation of the job to the accused. The witness denied the suggestion that no such incident had taken place, therefore, he did not prefer to make inquiry from his employees. The witness further deposed that he has not got the statement of his employees recorded about the alleged factum of deputation of the accused to collect the payment. The witness denied the suggestion that it was not recorded due to the reason that the accused was not given any responsibility for such collection. The witness further deposed that he has asked the accused to collect the amount of Rs. 68,350/ from M/s Chander Bhan Gupta & Sons at Karol Bagh, that he has received a phone call from M/s Chander Bhan Gupta & Sons about the payment of the said amount, that he does not remember the name who had phoned him at his office from M/s Chander Bhan Gupta & Sons for collecting the amount & that he has not noted down the information which he had received about the collection of the payment, that he had received the information at about 2:30 p.m & that he made entry regarding recovery only after recovery is effected.
The witness denied the suggestion that scooter was not owned by him nor it was ever given to his any of the employee for use etc. The witness further deposed that he did not know from whom his brother had gone to make recovery, that his brother had gone to make recovery, that his brother had given the account of recovery made by him on the date of incident, in the evening & again said that account was not taken in the evening, that he did not tell the police about the persons from whom his brother had made collection on the date of incident, that they had gone to the house of the accused for his Page 5 of 38 FIR No. 366/2002 PS: Rajinder Nagar U/s 408 IPC State Vs Narender Bahadur Singh search, that the name of the landlord of the accused is Kaptan Singh, that he does not remember whether the police recorded the statement of Kaptan Singh or not , that he had not disclosed the name of Kaptan Sing to the police, that the R/C of the soocter is also not in his name, that he does not remember the exact date of the recovery of the scooter but it appears that the police had recovered the same on 24th or 25th November 2002, that he does not remember the date when he got the information about the recovery of the scooter and it was telephonic information, that he knows the address of the accused Narender Bahadur, that he went to the native place of Narender Bahadur after this incident to find him out, that he does not remember the exact date but he can say this much that he went after lodging of the complaint on 22.11.2002, that he went to the native village of accused on 23.11.2002 & again said evening of any of the date, that he does not remember the exact date, that he went there alongwith police of PS Rajinder Nagar alongwith SI Sansar Singh and one Sanjay Tiwari, whose designation he does not know, that they went by car and again said, his brother also went alongwith them and that thereafter they went to the accused's brother in law house at Village Anni Bhajail, District Gori Ganj. The witness further deposed that the accused was arrested on 12.07.2003 at Vikas Marg, Delhi, that they went to Pandav Nagar at the residence accused's brother in law to find out the accused, at about 7 or 7:15 p.m, that he pointed out the accused to his brother and police officials when he was going towards the wine shop and that he does not know whether the accused was arrested by the police at his native place on 09.07.2003 at 6:00 a.m. The witness denied the suggestion that an entry was made vide DD No. 10 at police station Lal Ganj, District Rai Baraily, U.P regarding the arrest of the accused on 09.07.2003. The witness further deposed that the spot was a public place but statement of accused was recorded in the car at about 8:00 p.m and that IO had asked 2/3 persons to join the investigation but they refused to participate in Page 6 of 38 FIR No. 366/2002 PS: Rajinder Nagar U/s 408 IPC State Vs Narender Bahadur Singh investigation. The witness denied the suggestion that at no point of time any money was handed over to the accused, therefore, the allegations that accused pointed out the place at Amar Chamber are incorrect & that accused is innocent and he has been falsely implicated. The witness further denied the suggestion that his brother from Aman Chamber directly came to their house, that there is no wine shop at Vikas Marg, nearby the place of Nathu Sweets, that accused was not interrogated in his presence nor he had made any disclosure, that signatures of accused were got by the police on blank papers and who prepared the false disclosure memo, recovery memo etc, that no money was given to the accused by anyone nor he was having any custody of any amount or there was no enstrutment of any amount and that a false case has been created in order to grab the money, as there is dispute among the family members.
6. PW2 HC Kishan Kumar proved the factum of registration of FIR Ex. PW2/A in the present case.
This witness was not cross examined by or on behalf of accused despite opportunity.
7. PW3 Vijay Kumar Goel deposed that he works as branch manager at Stelco Ltd at 401, Aman Chamber, Pusa Road, New Delhi, that on 21.11.2002, Sh. Mahesh Goel had come to collect payment from the company on which their company had given Rs. 18000/ to Mahesh Goel which was kept by him with the cash amount of Rs. 6,85,000/ which was included with the amount given by his company and thus the total amount was Rs. 7,30,000/, that accused had come to his office and he has given same amount which was collected by him to Mahesh Goel and that the amount of Rs. 7 lakh was given Page 7 of 38 FIR No. 366/2002 PS: Rajinder Nagar U/s 408 IPC State Vs Narender Bahadur Singh to the accused in his presence.
During cross examination the witness deposed that he has been working in Telco Company for the last more than 15 years & that he has not brought the proof of his employment in the company and voluntarily stated that he can produce his visiting card. The witness produced the visiting card Ex. PW3/D1. He deposed that he does not have any friendship with Lalit or Mahesh Goel, that Mahesh Goel reached to his company around 4:00 p.m on 21.11.2002, that normally they make payment to the parties in cheque and wherever applicable, they deduct the TDS at the time of payment, that no TDS was deducted on the payment made to Mahesh on 21.11.2002, that he has not produced any voucher or any document whatsoever either before the IO or before this Hon'ble Court pertaining to the alleged payment made to Mr. Mahesh Goel, that some voucher was prepared by the accountant, that he has not disclosed to the IO about such voucher as it was not asked for, that around 7:30 p.m he left his office for his residence to Vikaspuri and normally one hour is required to reach his home, that he does not remember exactly as to when police had recorded his statement but it may be next day, that the money which was allegedly collected by Mahesh Goel was not given in his presence, that Mahesh counted in his presence, therefore, he told him about the amount, that he was not counting the money which was allegedly counted by Mr. Mahesh, that he does not know and he is not aware about denomination of the alleged money collected by Mr. Mahesh Goel, that Mr. Mahesh Goel has asked him on telephone for visiting his office for collecting the payment, that he can not tell the date, time when the telephone call was made and that he does not know the denomination of the currency notes amounting to Rs. 18000/.
8. PW4 Sh. Mahesh Goel deposed on the similar lines as deposed by PW Page 8 of 38 FIR No. 366/2002 PS: Rajinder Nagar U/s 408 IPC State Vs Narender Bahadur Singh 1 and supported his version.
During cross examination conducted on behalf of accused, the witness deposed that he was asked by Mr. Lalit to collect the money on 21.11.2002 who had told him to collect information from the accountant regarding the person / party from whom the payment has to be collected, that he collected the information from the accountant Dinesh Kumar, that he does not remember whether he had told the police that he had collected information from the accountant regarding the persons, from whom the payment is to be collected, that the statement u/s 161 Cr.P.C has been shown to the witness and after going through the same he stated that it does not mention the fact regarding information being collected from accountant in his statement and same is Ex. PW4/DA, that all the transaction regarding cash are entered in the account books and that he can not tell how much he has taken from office and how much was taken from the parties but the total amount was of Rs. 6,85,000/. The witness further deposed that earlier also their firm and they received the payment from the M/s Stelco Ltd and it was also paid in cash, that earlier they received about Rs. 15,000/ something from M/s Stelco Ltd, that the bill was raised against the supply made to M/s Stelco Ltd and total amount was about Rs. 33,000/, that the abovementioned facts was not stated by him to the police as it was not asked by the police, that he has told only those things to the police whatever they have asked from him, that he left office of M/s Stelco Ltd at about 5.00 pm as he had to go to his friend, that he had not brought the record and volunteered that he is having the records in the office, that the said alleged record was also available at the time when his statement was recorded but he has not given the same to the police, as they have not asked for, that he participated in the investigation with the police and that he went to the village of accused alongwith police team and Lalit in the night of 31/11/2002.
Page 9 of 38 FIR No. 366/2002PS: Rajinder Nagar U/s 408 IPC State Vs Narender Bahadur Singh
9. PW5 HC Satish Kumar deposed that he was posted at PS Pahar Ganj as MHC(M) and on that day ASI Sushil Kumar had deposited one two wheeler scooter no. HR61C9161 in the malkhana, that he had deposited the same and made the relevant entries in register no. 19 Ex. PW5/A at serial no. 2879 & that on 27.11.2002, the said scooter was transferred to PS Rajinder Nagar vide RC No. 155/21 Ex. PW5/B, by Ct. Sanjeev.
This witness was not crossexamined by or on behalf of accused despite opportunity.
10. PW6 Ct. Sanjeev Kumar deposed that on 27.11.2002, he was posted at PS Rajinder Nagar, that on that day he had went to PS Pahar Ganj where one scooter no. HR61C9161 was deposited U/s 66 DP Act, which was got transferred and brought to PS Rajinder Nagar, that for the same RC No. 155/21 Ex. PW5/B was registered which bears his signatures at point B and that his statement was recorded by the IO.
This witness was not crossexamined by or on behalf of accused despite opportunity.
11. PW7 Sh. Vivek Gupta deposed that on 21/11/2002, the employee of Goyal Oil Mill namely Narinder Bahadur had come at his shop/office at 60/4291, Regar Pura, Karol Bagh and he had come on two wheeler for payment, that he had given payment of Rs. 68,350/ to him , that after receiving the said payment, accused Narinder Bahadur had telephonic conversation with Ravi Goyal and confirmed the receiving of payment from him, that on the next day he came to know that accused Narinder Bahadur had not handed over the payment received from him to Goyal Oil Mill and he also came to know that he had escaped with about Rs. 7,00,000/ of the payment Page 10 of 38 FIR No. 366/2002 PS: Rajinder Nagar U/s 408 IPC State Vs Narender Bahadur Singh and that the accused Narinder Bahadur also used to take the payment from him earlier.
During crossexamination, PW7 deposed that he maintained the record as regard the release of the payment, that he cannot say exact date from which the transaction started taking place between his firm and Goyal Oil Mills but he can say that the same started before 2/3 months of the incident, the transaction started, that he cannot say the date on which his statement was recorded by police, that none from the Goyal Oil Mills was present when his statement was recorded, that only two police officials came there to record his statement & that there is record as regard the release of payment.
12. PW8 HC Sukh Dev deposed that on 27.11.2002 the case property of case FIR No. 366/02, was got transferred from PS Pahar Ganj to PS Rajinder Nagar and was got deposited by Ct.Sanjeev Kumar, that the case property was one scooter LML No. HR61C9161, that the same was deposited in the malkhana by the then MHC(M) HC Balu Ram and relevant entries were made in the register no. 19 at serial no. 690 & that the scooter was released to the superdar vide Ex. PW8/A by the order of the Court for which the entry was made which is in the handwriting of HC Balu Ram which has been duly identified by him.
This witness was not crossexamined by or on behalf of accused despite opportunity.
13. PW9 HC Dhurender Pandey deposed that he joined the investigation of this case on 12.07.2003 alongwith ASI Joginder Singh and the complainant namely Lalit Goel and Mahesh Goel & that the accused was interrogated on which he had confessed about the commission of offence for which disclosure Page 11 of 38 FIR No. 366/2002 PS: Rajinder Nagar U/s 408 IPC State Vs Narender Bahadur Singh statement Ex. PW1/B was recorded bearing his signature at point A. This witness further proved pointing out memo Ex. PW1/C, PW1/D & search and arrest memo Ex. PW1/E and PW1/F & deposed that the memos bear his signatures at point C and that his statement was recorded by the IO.
During crossexamination conducted on behalf of accused, PW9 stated that they all went in the DTC bus to Pandev Nagar and reached there at about 2.00 to 2.30 pm & that they remained at Pandav Nagar at about 45 hours. He denied that Nathu Sweets does not come between the way from Pandav Nagar to PS Rajinder Nagar. He admitted that Nathu Sweets is situated on the opposite side of the road leading from Pandav Nagar to Rajinder Nagar. He further deposed that accused Narender Bahadur was first taken at Aman Chamber but he does not remember the address of Aman Chamber, that it is a multistorey building, that he cannot tell the exact floor/office where the accused was taken at Aman Chambery, that thereafter, accused had taken them to Paharganj where he has parked the Scooter, that the scooter was parked on the road outside, that he does not know the exact road number at Paharganj & that IO had not recorded statement of any person at the road side of Paharganj where the scooter was parked. He denied the suggestion that the accused has not been arrested on 12.07.2003 and that no disclosure statement has been made by the accused.
14. PW10 SI Sansar Singh (inadvertently mentioned as PW9) deposed that on 24.11.2002, further investigation of the present case was assigned to him, that he joined the complainant Lalit Mohan in the investigation and thereafter he alongwith him and Ct. Sasnjay Tiwari left and reached at PS Lal Ganj, Rai Bareli, U.P, where he informed the local police about the purpose of his visit and thereafter he also joined two police officials of local police and reached at Page 12 of 38 FIR No. 366/2002 PS: Rajinder Nagar U/s 408 IPC State Vs Narender Bahadur Singh the residential house of accused at Village Kodra, PS Lal Ganj, Rai Bareli but the accused was not available there, that he also inquired from the family members and local residents but the whereabouts of the accused was not known to anybody, that he collected some addresses of close relatives of the accused and on the very next day, he reached at Village Annibeja, Rai Bareli at the house of his brother in law and also inquired him about the whereabouts of the accused but he told him that the accused did not come there and that thereafter they came back to the police station Rajinder Nagar. PW9 SI Sansar Singh further deposed that on 10.12.2002, the further investigation was again marked to him, that he received the file and thereafter he obtained the warrants of accused from the concerned Court and same was entrusted with HC Charan Singh for execution who informed him that accused is not traceable and that thereafter process u/s 82 /83 Cr.P.C against the accused was issued and the same was entrusted with HC Charan Singh for execution PW9 SI Sansar Singh further deposed that on 21.02.2003 file of the present case was given to MHCR by him as he was transferred from PS Rajinder Nagar.
During cross examination conducted on behalf of accused, the witness deposed that he had not recorded the statement of any person who was inquired by him at village Kodra and that house was having no municipal number.
15. PW11 SI Gain Singh (inadvertently mentioned as PW10) deposed that he received the file from the MHCR, that thereafter the accused was declared proclaimed offender on the basis of report of process u/s 82/83 Cr.P.C executed by HC Charan Singh and that after investigation the challan was prepared by keeping the accused in coloum no.2.
This witness was not cross examined by or on behalf of accused despite opportunity.
Page 13 of 38 FIR No. 366/2002PS: Rajinder Nagar U/s 408 IPC State Vs Narender Bahadur Singh
16. PW12 Retired HC Charan Singh (inadvertently mentioned as PW11) deposed that in the year 20022003, he was posted at Head Constable at PS Rajinder Nagar, that he does not remember the exact date, that in the year 2003, arrest warrants against the accused Narender Bahadur Singh was marked to him for execution, that he reached at the address of the accused as given in the warrants i.e PS Lal Ganj, District Rai Bareli, U.P where he came to know that the accused was not residing there for the last many days, that he inquired from local residents who told him that the accused is not residing there and that thereafter he came back and filed his report in the Court.
This witness was not cross examined by or on behalf of accused despite opportunity.
17. PW13 SI Rajesh Kumar (inadvertently mentioned as PW12) deposed that on 22.11.2002, he received an application / complaint duly marked to him for necessary action by SHO concerned, that after going through the complaint he endorsed the same vide Ex. PW12/A, that he searched the accused and the case property but could not find him, that on 23.11.2002, on the order of SHO, he sent a team comprising of SI Sansar Singh and other police officials to search the accused at his native place in Rai Bareli, U.P but they also could not find the accused, that on 27.11.2002, he received an information that the scooter bearing no. HR 61 9161 involved in the offence was found at PS Paharganj in an abandoned position and the same was deposited in the Malkhana of the PS Paharganj on 23.11.2002 by ASI Sushil Kumar, that he alongwith Ct. Sanjeev Kumar went to the PS Pahar Ganj and inspected the place where the scooter was found abandoned but could not find any clue about the accused, that on 27.11.2002, he took the scooter from the Malkhana Page 14 of 38 FIR No. 366/2002 PS: Rajinder Nagar U/s 408 IPC State Vs Narender Bahadur Singh of PS Sadar Bazar and deposited it with Malkahana which was transferred from the PS Rajender Nagar to Anti Auto Theft Squad of Central District and that thereafter investigation of this case was transferred to SI Sansaar Singh.
During cross examination conducted on behalf of accused, the witness deposed that he conducted the investigation from 22.11.2002 to 27.11.2002, that he did not make any detailed inquiry before the investigation, that he traced the accused in nearby areas including railway station and bus stands, that he does not remember now the exact address of the accused and that he does not remember whether the address of the accused was noted down. The witness denied the suggestion that he had made no efforts to contact the accused.
18. PW14 Retired SI Joginder Singh (inadvertently mentioned as PW13) deposed that on 08.07.2003, he was posted at PS Rajinder Nagar as Sub Inspector and on that day, the file was handed over to him, that he had perused the documents and tried to search the accused present in the Court (correctly identified), that on 12.07.2003, the complainant informed him that the accused is present in Delhi and he is present in the house of his brother in law, that he alongwith complainant and his brother and Ct. Dhurender went to Pandav Nagar in search of accused but could not trace the accused as address of the brother in law of accused was not available, that when they were returning from Pandav Nagar and when he reached near Nathu Sweets Shop, Vikas Marg, complainant pointed out towards one person by stating that he is the accused Narender, that at the instance of complainant, they apprehended the accused and he was interrogated and arrested vide memo Ex. PW1/A, that he recorded the disclosure statement of the accused vide memo Ex. PW1/B, that on the next day, accused was produced before the concerned Court and he was Page 15 of 38 FIR No. 366/2002 PS: Rajinder Nagar U/s 408 IPC State Vs Narender Bahadur Singh taken into police custody, that during police custody he pointed out the place of occurrence from where he had taken the money, at Aman Chamber, Pusa Road and the place where he left the scooter at Sangartrasan, Paharganj, Delhi, that the pointing out memos are Ex PW1/C and Ex. PW1/D, that thereafter the accused was produced before the Court and further police remand was taken and that during the said remand, they made efforts to recover the case property from Pandav Nagar and even at Lucknow but could not find the same.
During cross examination conducted on behalf of accused, the witness deposed that during search of the accused they also went to the native place of accused, that he can not say whether he went to native village of accused on 09.07.2003, that he did not make any DD entry in PS Lal Ganj, Rai Bareli, U.P, that he does not remember that police personnel namely HC Nawal Kishore, HC Balkishan, HC Keshari Nand and HC Vijay Shankar accompanied them to the native residence of accused and that he does not know whether any GD No.2 was recorded regarding their visit. The witness denied the suggestion that he had arrested the accused on 09.07.2003 at about 7:00a.m from his residence at his native village, that after arresting of accused, he was brought in PS Lal Ganj and GD No. 10 was recorded to this effect and that from 09.07.2003 to 12.07.2003, the accused was kept in illegal confinement by him.
The witness further deposed that they usually used to make DD entry in the concerned police station when they visit the concerned area of said jurisdiction of said police station, that he visited the native village between 08 th July to 12th July, that DD entry was recorded in the police station Rajinder Nagar when they left for native village of accused, however, he does not remember the number of said DD entry, that they made an inquiry in the house of the accused regarding his presence and returned to Delhi, that DD entry was recorded in the police station Rajinder Nagar when they came back from native village of accused, however, he does not remember the number of said DD Page 16 of 38 FIR No. 366/2002 PS: Rajinder Nagar U/s 408 IPC State Vs Narender Bahadur Singh entry, that he did not record the statement of complainant to the effect that accused had come in Delhi, however, the said fact, he mentioned in the diary, that he did not make any public person to join the investigation at that time of arresting of accused, that complainant already disclosed in his complaint that accused took the cash amount from Aman Chamber, that the recovery of scooter has already been effected when the file was marked to him and that when they visited the Pandav Nagar, address of brother in law of accused was not known to them.
19. PW15 Raghbir Singh, Record Keeper brought the record pertaining to the vehicle bearing no. HR 07G 6852 maintained in the office of SDM, Thaneser, District Kurushetra, Haryana & the copy of the same is Ex. PW 15/A. This witness was not cross examined by or on behalf of accused despite opportunity.
20. Thereafter, Prosecution Evidence was closed as all the material witnesses were examined and on 23.06.2017 statement of the accused u/s 313 Cr.P.C was recorded wherein all the incriminating circumstances appearing in evidence were put to the accused who stated that he has been falsely implicated in the present case, that he had not received any money as alleged by the complainant & that all the documents prepared against him are false and fabricated and are made by the police officials in connivance with the complainant. The accused chose to lead defence evidence.
21. In his Defence, the accused examined himself as DW1 and brought five other witnesses as DW2 Sabita Singh, DW3 Kewal Bahadur, DW4 Gulshan Page 17 of 38 FIR No. 366/2002 PS: Rajinder Nagar U/s 408 IPC State Vs Narender Bahadur Singh Kumar, DW5 Home Guard Naval Kishore and DW6 Home Guard Kesri Nandan in his support of his case.
22. DW1 Sh. Narender Bahadur Singh deposed that he was working in M/s Durocell Chemical Pvt Ltd since September / October 1996, that Sh. Kewal Bahadur Singh referred him for the employment in this company, that Sh. Lalit Kumar Goel was the Director in the said company, that he has no relation with the said transactions, that he draw Rs. 2500/ towards salary from the said company & after some time it increased to Rs. 4500/, that the said company gave him Rs. 20,000/ salary amount through its bank i.e Oriental Bank of Commerce in June 2001, that Lalit Goel pressurized him for working in the M/s Goel Mill but he refused, that there after he terminated him from the service and refused to give the salary amount to him, that he did not withdraw the salary month by month but it was done by him when he used to go in his native village, that he has shifted in October 2002 to his native village from Delhi, that Delhi police arrested him from his native place on 09.07.2003 and came to Delhi but did not produce in the concerned Court and detained him for two days in the police station and also pressurized him to sign some plain papers in the police station, that he was not arrested from the Laxmi Nagar on 22.07.2003, that Lalit Goel did not give any scooter to him and neither he left any scooter in Paharganj area, that he has neither taken amount from the M/s Stelco Ltd Rajinder Nagar nor taken from Lalit Goel and that the statement of Oriental Bank of Commerce which was maintained by the M/s Durocell Pvt Ltd is Ex. DW1/A (running into three pages).
During cross examination conducted on behalf of state, the witness deposed that he is not sure whether he had made written complaint to the court regarding his illegal detention for two days in the police station, that he does Page 18 of 38 FIR No. 366/2002 PS: Rajinder Nagar U/s 408 IPC State Vs Narender Bahadur Singh not have any proof/ document which shows that he was present in his native village at the time of arrest and that he is not sure that he had filed application in the Court regarding his illegal detention when he was produced in the concerned Court after his arrest. The witness denied the suggestion that Lalit Geol gave a scooter to him and the same was left in Paharganj area by him, that he has received Rs. 68,350/ from PW7 Vivek Gupta for handing over to Lalit Goel, that he has received Rs. 7 lakh from Mahesh Goel for handing over to Lalit Goel, that he was having the aforesaid money and that is why he had shifted to his native village and that he had gone on scooter for collecting the aforesaid money.
23. DW2 Sabita Singh deposed that accused Narender Bahadur is her husband, that he was working in M/s Durocell Chemical Pvt Ltd at Delhi, that he worked there till 2002 to 2008 when he was terminated without clearing his accounts, that he was calling his exempoloyer with regard to the account, that the said exemployer had not cleared the dues, that thereafter on 09.07.2003, some police official came from PS Lal Ganj alongwith officials from Delhi police to their house and arrested her husband and took him with them to Delhi, that thereafter, she went to PS Lal Ganj where she was informed that her husband has been taken to Delhi in connection with some case and that thereafter she went to Rai Bareli Court and filed an application from where she got copy of one report which has been filed by her in the Hon'ble High Court of Delhi.
During cross examination conducted on behalf of state, the witness deposed that she does not know about the address of the office of M/s Durocell Chemical Pvt Ltd, that the name of the employer was Lalit Goyal, that she does not know what amount was due from the said employer of her husband, that Page 19 of 38 FIR No. 366/2002 PS: Rajinder Nagar U/s 408 IPC State Vs Narender Bahadur Singh two police officials each were from PS Lal Ganj and Delhi Police, that police person from PS Lal Ganj informed him about the official of Delhi Police, that she does not know the names of the police officials from PS Lal Ganj and Delhi Police, that her husband was taken by the official of Delhi Police, that regarding the arrest he had not signed any document, that she went to Lal Ganj Thana on 09.07.2003, that she does not remember the name of the police official of PS Lal Ganj who has informed him that her husband has been taken to Delhi by Delhi Police and that she had moved the application in Rai Bareli Court regarding the arrest of her husband.
The witness produced the copy of the said report which she had received from the Rai Bareli Court which is Mark A and deposed that she came to know that her husband has been taken to Delhi by Delhi Police & that on 26.09.2003 she received the aforesaid report from Rai Bareli Court. The witness denied the suggestion that she had not received any report from the said Court and that is why same was not filed in the case file initially, that she is deposing falsely at the instance of her husband in order to save him and that she has not filed any copy of the report in the Hon'ble High Court of Delhi and that is why she does not have any proof / receipt regarding filing of the same.
24. DW3 Sh. Kewal Bahadur deposed that he was working with M/s Durocell Chemical Pvt Ltd since 1992 till March 1996, that the said company was having office at 148, 1 st Floor, Anand Vihar, Pitampura, New Delhi, that Sh. Lalit Goel was the director of the said company, that he referred accused Narender Bahadur for the job of sales man in the said company on the request of Sh. Lalit Goel in the year 1996, that Sh. Lalit Goel appointed accused in his company, that he had met several times and had conversation with accused Narender Bahadur after his joining in said company, that accused told him that Page 20 of 38 FIR No. 366/2002 PS: Rajinder Nagar U/s 408 IPC State Vs Narender Bahadur Singh Lalit Geol had terminated him in the year 2002, that he has not stated any reason behind his termination to him, that he has not stated anything to him regarding his salary issue, that he does not know whether Lalit Goel was running any other company except M/s Durocell Chemical Pvt Ltd and that as per his knowledge the said company was having no relation with any other company of Sh. Lalit Goel.
During cross examination conducted on behalf of state, he deposed that he does not have any document / proof which shows that he was working with the M/s Durocell Chemical Pvt Ltd from the year 1992 till March 1996 and volunteered that no document was issued by the said company to him, that he does not know accused personally, that he had met with him through his known persons, that he does not know anything about the present case, that he had come only for one purpose i.e for deposing before the Court only one fact i.e he was working with the M/s Durocell Chemical Pvt Ltd from the year 1992 till March 1996 and that he does not know what circumstances occurred between accused and Lalit Goel by which Lalit Goel had terminated him, that accused informed him through telephone in the year 2002 regarding his termination & that he does not know his telephone number as well as of the accused by which he had called him in the year 2002 regarding his termination. The witness denied the suggestion that accused is having good relations with his known persons and at the instance of his known persons as well at the instance of the accused he had came before the Court to depose in his favour.
25. DW4 Sh. Gulshan Kumar Single Window Operator from Oriental Bank of Commerce deposed that the concerned bank tried to generate the statement of account w.e.f 01.04.2000 to 31.03.2002 of current account no. 000896 of M/s Durocell Chemical Pvt Ltd but failed as the server is showing error each Page 21 of 38 FIR No. 366/2002 PS: Rajinder Nagar U/s 408 IPC State Vs Narender Bahadur Singh time, that due to this problem the higher authorities are informed, that he is producing the letter and server report in this regard & that the letter issued by Senior Manager Sh. Harbhajan Singh and the server report is also attested by him which are Ex. DW4/A1 and Ex. Ex.DW4/A2. The statement made in excel form by the Senior Manager is Ex. DW4/A3. DW4 Sh.Gulshan Kumar further deposed that clarification regarding the statement of account no. CA000896 in the name of M/s Durocell Chemical Pvt Ltd was taken on record vide order dated 09.05.2018 from Harbajan Singh, Senior Manager, Original Bank of Commerce, that as per the clarification the statement of account on record shows the entry dated 06.06.2001, cheque no. 613373 debited for payment in cash Rs. 20,000/ to Narender, that this statement of account has been issued by their branch ND Pitampura (previously EC Pitampura) and generated from computer system by the staff member Mr. Ramesh Arora posted at that time and that branch was at ALPM computer system and after that the branch was shifted to fully computerized system in 2005.
During the cross examination conducted on behalf of state, the witness deposed that the statement of account on record already exhibited as Ex. DW 1/A only Narender is mentioned vide entry of cheque no. 613373 dated 06.06.2006 for Rs. 20,000/ and not in the name of accused & that statement of account in excel sheet already Ex. DW4/A3 does not show the name of accused in the entry dated 06.06.2001.
26. DW5 Home Guard Naval Kishore deposed that on 09.07.2003, he was posted at PS Lal Ganj and on that day one team of police officials comprising of SI Yogender Singh and two Constables visited PS Lal Ganj for inquiry in case under Section 408 IPC registered in the name of accused, that he alongwith three other home guard constables accompanied Delhi Police on the Page 22 of 38 FIR No. 366/2002 PS: Rajinder Nagar U/s 408 IPC State Vs Narender Bahadur Singh direction of SHO, that they alongwith Delhi Police went to the village Kodera of the accused and he was arrested by the Delhi Police, that entry was made in the PS Lal Ganj and that thereafter accused was taken to Delhi.
During cross examination conducted on behalf of state, the witness deposed that he does not have any document to show his presence at PS Lal Ganj on 09.07.2003, that he does not know the name of the then SHO on whose direction he along with three home guard constables accompanied the Delhi police as stated in his examination in chief, that the said house does not have any mark/ number, that he does not know the said entry number vide which the entry for coming back was made in the PS Lal Ganj, that he had not informed the higher police officials of Delhi police regarding his role as witness in the present case and that he does not know the name of the said two constables who were along with SI Yogender Singh, that he does not know the registration number of the said car in which he along with SI Yogender went to the village of accused Narender Bahadur Singh, that he does not know which day was on 09.07.2003, that copy of his Icard Ex.DW5/B shows that it had already expired on 31.12.2008 & that he does not have any document to show that he is working as home guard in district Rai Barelli. The witness further deposed that he does not know the ingredients of section 408 IPC and that he had not signed any document as witness to the arrest of accused Narender Bahadur Singh. The witness denied the suggestion that on 09.07.2003 one team of Delhi police officials, comprising of SI Yogender Singh and two constables visited PS Lal Ganj for inquiry in case under section 408 IPC registered in the name of Narender Bahadur Singh, that he along with three other home guard constables accompanied Delhi Police on the direction of the then SHO, that he along with the said Delhi Police team went to the village Kodera of accused Narender Bahadur Singh who was arrested by the Delhi Police from his house, that he along with the Delhi police team came back to the police station Lal Page 23 of 38 FIR No. 366/2002 PS: Rajinder Nagar U/s 408 IPC State Vs Narender Bahadur Singh Ganj and no entry was made in the PS Lal Ganj & that he has received consideration from accused Narender Bahadur Singh and therefore he has deposed in his favour.
27. DW6 Home Gaurd Kesri Nandan deposed that accused in the present case belongs to the village Kodera, which comes under the jurisdiction of PS Lal Ganj, that on 09.07.2003 one sub inspector and one constable from PS Rajinder Nagar visited PS Lal Ganj, that thereafter, the Munshi in the police station sent him along with three other police persons with the said sub inspector and one constable to village Kodera regarding the accused Narender Bahadur Singh, that they went to the house of Narender Bahadur Singh and came back at PS Lal Ganj along with accused Narender Bahadur Singh, that thereafter, the officials of PS Rajinder Nagar took accused Narender Bahadur Singh with them and that one DD entry was made by the Munshi in this regard at PS Lal Ganj.
During cross examination conducted on behalf of state, the witness deposed that he does not have any document to show his presence at PS Lal Ganj on 09.07.2003, that the police official wears name plate on the uniform, that said sub inspector and one constable were having name plates on their uniform, that he does not know the names of the said sub inspector and one constable, that he had not seen the identity cards of the said sub inspector and one constable regarding their details pertaining to PS Rajinder Nagar, that he does not know the house number of the accused which they visited on 09.07.2003, that he does not know the said GD entry number which he stated in his examination in chief and volunteered that the GD Number is made by Munshi only, that witness also stated that he is not allowed to see the GD entry, that he had seen the said GD entry, that he had not informed any of the Page 24 of 38 FIR No. 366/2002 PS: Rajinder Nagar U/s 408 IPC State Vs Narender Bahadur Singh police officials of Delhi police regarding his role as witness in the present case, that they had gone to the village of accused by car, that he does not know the registration number of the said car in which they went to the house of accused Narender Bahadur Singh, that he does not know the ingredients of Section408 IPC and that he had not signed any document which shows that he is a witness regarding taking of the accused from his village. The witness denied the suggestion that on 09.07.2003 he along with the said officials which he stated in his examination in chief that he went to the house of accused Narrender Bahadur Singh, that no police person from PS Rajinder Nagar visited PS Lal Ganj as stated by him in his examination in chief, that no such GD entry was made as stated in his examination in chief and that he received consideration from accused Narender Bahadur Singh and that is why he has come to depose in the court in his favour.
28. Thereafter, on 10.10.2018, vide a separate statement of the accused, the defence evidence was closed and the matter was listed for final arguments.
29. At the time of final arguments it is submitted by Ld. APP for the State that prosecution has proved its case beyond reasonable doubts and all the ingredients of relevant section are completed. In reply to this it is argued on behalf of accused that he has been falsely implicated in the present case, that he has not received any money as alleged by the complainant & that all the document prepared against him are false and fabricated and are made by the police in connivance with the complainant.
30. This Court heard the arguments advanced by the Ld. APP for the State, Ld.Counsel for complainant and Ld. Counsel for the accused and has perused Page 25 of 38 FIR No. 366/2002 PS: Rajinder Nagar U/s 408 IPC State Vs Narender Bahadur Singh the record of the case as well as the written arguments.
31. The version of the prosecution as depicted from the complaint and the evidence is that the complainant PW1 Sh. Lalit Goel was running a business under the name and style of M/s Goel Oil Mill and accused was appointed as supervisor by him and that the accused also used to collect payment from the parties on behalf of the complainant. On 21.11.2002, the complainant sent the accused to collect the payment of Rs. 68,350/ on his scooter qua the business transaction from M/s Chander Bhan Gupta at Karol Bagh as well as a sum of Rs. 7 lakh from the complainant's brother from Aman Chambers, Pusa Road, Old Rajinder Nagar where the complainant's brother had reached for realizing the payment from M/s Stelco Ltd after collecting payment from other clients. The accused did not return after receiving the said amount and thus mis appropriated the said amount. The version of the accused is that he has been falsely implicated in the present case by the complainant, that he had never been employee of M/s Goel Oil Mill, that he was actually an employee of M/s Durocell Chemical Pvt Ltd of which the complainant Lalit Kumar Goel was Director, that Lalit Kumar Goel pressurized him to work for M/s Goel Oil Mill but he refused and thereafter he was terminated from the services and his salary was also not given, that he had never taken any amount on behalf of the complainant from M/s Stelco Ltd and his brother, that he has no concern with the alleged transactions and that the accused never gave any scooter to him nor he had left the same in Paharganj area.
32. Considering the fact of this case and the nature of allegations levelled, it is relevant to discuss the ingredients of criminal breach of trust defined U/s 405 of Indian Penal Code, 1860. In para no.8 of the judgment titled Kailash Page 26 of 38 FIR No. 366/2002 PS: Rajinder Nagar U/s 408 IPC State Vs Narender Bahadur Singh Kumar Sanwatia Vs. The State of Bihar and Anr: AIR 2003 SC 3714, the Division Bench of Hon'ble Supreme Court has held: "What amounts to criminal breach of trust is provided in Section 405 IPC. Section 408 IPC is in essence criminal breach of trust by a category of persons. The ingredients of the offence of criminal breach of trust are :
(1) Entrusting any person with property, or with any dominion. (2) The person entrusted
(a) dishonestly misappropriating or converting to his own use that property ; or
(b) dishonestly using or disposing of that property or willfully suffering any other person so to do in violation
(i) of any direction of law prescribing the mode in which such trust is to be discharged ;or
(ii) of any legal contract made touching the discharge".
The ingredients of criminal breach of trust have been again discussed in para no. 10 of the judgment titled Parminder Jeet Singh v. Kuljit Singh reported in I (2009) DLT (Crl.) 730 :
"To make out an offence under Section 406 IPC following ingredients of criminal breach of trust are required to be made out in the complaint.
(a) A person should be entrusted with a property or with dominion over a property.
(b) The said person dishonestly uses or disposes of that property.
(c) Such user or disposal of the property was in violation of any direction of law prescribing the manner in which such trust is to be discharged or of any legal contract which such person had made touching the discharge of such trust.
(d) Such person is also liable for criminal breach of trust if he willfully suffers any other person so to do."
33. In view of the aforesaid judgments and version of the prosecution to Page 27 of 38 FIR No. 366/2002 PS: Rajinder Nagar U/s 408 IPC State Vs Narender Bahadur Singh bring home the guilt of the accused beyond reasonable doubts, it is imperative for the prosecution to prove the fact that an employeeemployer relationship existed between the accused and the complainant's concern M/s Goel Oil Mill, that there were some business transactions between the complainant's concern and M/s Chander Bhan Gupta from whom the accused received the alleged amount as well as with M/s Stelco Ltd and other clients from whom complainant's brother had collected the amount which was entrusted to the accused and that the complainant's scooter was also entrusted to the accused at the time of alleged offence.
34. Record shows that PW1 Sh.Lalit Goyal stated in his examination that he runs a business of Edible Oil at 67, Kohinoor Building, Katra Bariyan, Delhi under the name and style of M/s Goel Oil Mill which is a partnership firm and accused Narender Bahadur Singh is his employee and was working as supervisor and that he also used to collect the payment from the parties and he was working with him for the last 56 years. In the cross examination, PW1 stated that he does not maintain any record about the employment of the persons of his company & again said that they keep a record of the employee as they pay salary to them and that he has not produced any such record to the police nor he has produced any such record in the Court. PW1 further deposed in his cross examination that he does not remember the exact date about the employment of the accused, that he does not remember whether he had given any appointment letter to the accused, that he did not furnish any document to the police regarding the employment of the accused and that accused was employed on the recommendation of Kewal Bahadur. He further deposed that there were various other employees present in the office on the day of incident and they were knowing about the deputation of job to the accused and that he Page 28 of 38 FIR No. 366/2002 PS: Rajinder Nagar U/s 408 IPC State Vs Narender Bahadur Singh has not got the statement of those employees recorded before the police who were aware about the said fact.
35. Perusal of the aforesaid testimony of PW1 Sh. Lalit Goyal shows that no document regarding the employment of the accused with him was furnished by the complainant either before the police or during evidence in the Court. It is further evident that neither the details of the other employees in the office who were aware about the appointment of accused and assignment of the present work to the accused on the date of the incident have been produced nor the said employees were ever brought before the police for recording of their statements or before the Court for deposition. It is thus clear that the complainant did not bring on record any document or appointment letter or other material suggesting the appointment of accused in M/s Goel Oil Mill, a registered partnership concern, which is maintained in regular course by the business concern and the same being a material omission creates a doubt upon the very factum of appointment of the accused with the complainant or its concern. It is further evident that PW1 admitted that the accused was appointed on the recommendation of Kewal Bahadur who has deposed as DW 3 in defence evidence that he referred accused Narender Bahadur for the job of salesman in M/s Duracell Chemical Pvt Ltd of which PW1 Lalit Goel was a Director. This testimony of DW3 has gone unrebutted as it is nowhere suggested that accused was not appointed in M/s Durocell Chemical Pvt Ltd but was appointed in M/s Goel Oil Mill indicating that the factum of appointment of accused with M/s Duracell Chemical Pvt Ltd stands proved. It follows from the aforesaid testimonies and omissions that the factum of appointment of accused as per the version of the complainant has not been proved beyond reasonable doubts and thus the question of entrustment is also Page 29 of 38 FIR No. 366/2002 PS: Rajinder Nagar U/s 408 IPC State Vs Narender Bahadur Singh ruled out as there can be entrustment only when the status of accused is clerk/ servant / supervisor is proved beyond reasonable doubts.
36. It is further pertinent to mention that for establishing the entrustment of alleged amount to the accused, proving the existence of business transaction between the complainant and the parties / clients is necessary as in the absence of business transaction question of making / entrusting any payment to the accused or handing over of payment collected by brother of the complainant from the clients to the accused does not arise.
37. Perusal of testimony of PW1 reveals that he had instructed the accused to collect the payment from M/s Chander Bhan Company & Sons and his brother Mahesh Goyal who was present at M/s Stelco Ltd for realizing the dues after collecting funds from the other clients and that he even received a confirmation call from the accused after the amount was collected by him but he failed to establish this factum by any relevant document as no such document was filed in the Court or before the police. PW1 stated in the cross examination that he maintains the account about the business of the company, that he mentions all the transaction about the business with another businessman in the accounts and that he has not produced any account, whatsoever about the collection of money which was allegedly collected by the accused from the two parties i.e M/s Chander Bhan Gupta and his younger brother Mahesh Goel who was sitting in the office of M/s Stelco Ltd. He further admitted that the accounts are not on the file and he has not given the same to the police. He further admitted that he did not know from whom his brother had gone to make the recovery, that his brother had given the account of recovery made by him on the date of incident in the evening and again said Page 30 of 38 FIR No. 366/2002 PS: Rajinder Nagar U/s 408 IPC State Vs Narender Bahadur Singh that account was not taken in the evening and that he did not tell the police about the persons from whom his brother had made collection on the date of the incident.
The aforesaid testimony of PW1 shows that he never handed over any document / voucher to the IO regarding the collection of any such amount by the accused from the two abovesaid persons despite maintaining the accounts. Further, he even did not produce the said record, if any, available with him in the court during the trial which is a material omissions as no ordinary businessman would conceal such documents in these circumstances, if the alleged transactions with the said persons had actually taken place. In the cross examination, Sh. Lalit Goyal even did not depose anything about the source of money available with his brother namely Mahesh Kumar Goel. This again is a material omission and creates grave doubt as to availability of the amount of Rs. 7 lakh with Mahesh Kumar Goel.
The complainant had admitted that all the monetary transactions of the business were managed by his accountant, however, neither the accountant was examined nor any document / account statement was ever produced by the complainant during his testimony to prove any kind of business / monetary transaction with the parties from whom the money was collected by the accused or the parties from whom the brother of the complainant had collected the money which was handed over to the accused.
It follows from the aforesaid inconsistent testimonies of complainant and the omissions made on behalf of complainant that the existence of business transaction between the complainant and the parties / clients has not been proved beyond reasonable doubts and in the absence of business transaction question of making / entrusting any payment to the accused or handing over of payment collected by brother of the complainant from the clients to the accused does not arise.
Page 31 of 38 FIR No. 366/2002PS: Rajinder Nagar U/s 408 IPC State Vs Narender Bahadur Singh
38. Furthermore, PW4, Mahesh Goyal, who had given a sum of 7 lakh to the accused failed to depose on the point of source of said money. He simply deposed that the alleged amount was handed over to the accused in the presence of PW3 Vijay Goyal, Branch Manager of M/s Stelco Ltd. In the cross examination, he admitted that the record of every transaction is maintained by the accountant of the company and all the transaction regarding the cash are entered in the account books. Record shows that no documentary evidence in this regard was ever handed over to the police or brought before this court which being a material omissions creates grave suspicion upon the very existence of any transaction qua which the alleged amounts were received by PW4 from the clients which rules out the handing over / entrustment of the alleged amount to the accused.
39. PW7 Vivek Gupta from M/s Chander Bhan Gupta & Sons, deposed before this Court that on 21.11.2002, the accused had come to his shop located in Karol Bagh and he handed over a payment of Rs. 68,350/ to him and confirmed the status of payment with one Sh. Ravi Goel. In his cross examination, he also admitted that he maintained the record with regard to every release of payment, however, he admitted that he can not inform this Court about the exact date of payment made to the accused. He even did not bring any document / record/ voucher to show the factum of handing over of money to the accused. Though, he stated that he can produce the record relating to the payment made to the accused but no such document was ever produced by him or by the prosecution to confirm the said handing over of money to the accused. He also admitted that he had not obtained any acknowledgment receipt from the accused before handing over the payment to Page 32 of 38 FIR No. 366/2002 PS: Rajinder Nagar U/s 408 IPC State Vs Narender Bahadur Singh him. Record shows that he further deposed that the accused had come with the bill against which he had handed over the payment to the accused. It is very surprising that the complainant neither informed this Court about such handing over of bill to the accused nor he had brought any document reflecting the same. He was also confronted with his previous statement recorded u/s 161 Cr.P.C, where the factum of having the bill with the accused was not so recorded. It shows that PW7 is making a material improvement qua the presence of the bill with the accused and the same is not supported by the complainant which implies that nothing transpired between him and the accused on the alleged date and that there was no business transaction between PW7 and complainant which further suggests that question of entrustment of any amount to the accused does not arise.
40. Thus, the testimony of PW7 Vivek Gupta does not inspire confidence of this Court regarding the handing over of any money to the accused as the same is not supported with any relevant documents. Furthermore, the inconsistency in his testimony and in the testimony of the complainant regarding the carrying of bill by the accused gives rise to grave contradiction, thereby creating doubt on the very existence of any transaction between him and complainant qua which the accused had gone for collection of money. It further shows that there was no occasion for the accused to go to the PW7 Vijay Gupta for collection of money as the there was no transaction between M/s Chander Bhan Gupta & Sons and complainant.
41. PW3 Vijay Goyal Branch Manager of M/s Stelco Ltd deposed that a sum of rupees 18000 was handed over to the Mahesh Goyal by him but in the cross examination he also failed to establish the factum of existence of any Page 33 of 38 FIR No. 366/2002 PS: Rajinder Nagar U/s 408 IPC State Vs Narender Bahadur Singh transaction between him and the complainant. He even failed to produce any receipt issued by him after the payment was made to Mahesh Goyal which further makes the presence of Mahesh Goel at the office of PW3 on the alleged date and the factum of making of any payment by PW3 to Sh. Mahesh Goel highly doubtful as no relevant document depicting the transaction with the complainant was filed or proved as would have been done in ordinary case if the version of existence of transaction is correct. Moreover, he deposed that his company normally make payments by way of Cheques and whereever applicable also deduct the TDS at the time of payment however he deposed that the amount paid to Mahesh was not through cheque and no TDS deduction was made. This exceptional act of the Vijay Goyal does not inspire the confidence of this court as no justification has been given for deviation in the mode of conducting business dealings from cheque to cash as well as for non deduction of TDS. These omissions and testimonies of PW3 show that there was no transaction between the complainant and PW3 and thus there was no occasion for Mahesh Goel to go to the office of PW3 for collecting the money which further rules out the question of entrustment of Rs. 7 lakhs to the accused by Mahesh Goel in the office of PW3.
42. Record shows that as per the prosecution version, the accused had gone to collect the payment on the scooter of the complainant who admitted in the cross examination that registration certificate of the scooter is not in his name. It is further clear that no ownership document was ever brought on record or produced before this Court to establish the link between the alleged scooter and the complainant as even the superdarinama was not brought / proved on record. Furthermore, the investigation and entry made in register no. 19 reflects that the scooter was recovered from the Paharganj area in an abandoned condition Page 34 of 38 FIR No. 366/2002 PS: Rajinder Nagar U/s 408 IPC State Vs Narender Bahadur Singh and there is no material suggesting that the said scooter was abandoned at that place by the accused so as to connect him with said scooter. Thus, the prosecution failed to bring on record any material suggesting that the scooter belongs to the complainant which further makes the factum of entrustment of the scooter to the accused highly doubtful. In view of failure of the prosecution to bring any reliable evidence / document qua the ownership of the scooter in favour of the complainant as well as considering that the oral testimonies of the various prosecution witnesses are not cogent and consistent as discussed above, it follows that the factum of entrustment of the scooter to the accused by the complainant as well as its use by the accused at the time of collection of money is not proved beyond reasonable doubts.
43. It is evident from the record that neither any recovery was made from the possession or at the instance of the accused either at the time of arrest or pursuant to recording of the disclosure statement. Keeping in view the afore discussed facts, circumstances, analysis of testimonies, nonrecovery of any incriminating fact or circumstance and the record, it emerges that the testimonies of the prosecution witnesses are not cogent, creditworthy and consistent and the prosecution witnesses have not produced the relevant record regarding the appointment of accused as clerk / servant as well as the existence of transactions despite availability which is sufficient to give rise to an adverse inference against the version of the complainant as it is settled law that every party is bound to bring on record the best evidence available for proving its version and withholding the best evidence without any justification reflects the falsehood of the party so withholding the best evidence.
44. Record further shows that the accused in his statement recorded under Page 35 of 38 FIR No. 366/2002 PS: Rajinder Nagar U/s 408 IPC State Vs Narender Bahadur Singh section 313 Cr.P.C firmly denied his relationship of employeremployee with the complainant, the factum of entrustment and stated that at the time of alleged incident he was employed with a company namely M/s Durosil Chemical Pvt Ltd in which complainant PW1 Lalit Goel was a Director. In support of the same he even called DW3 Kewal Bahadur, who affirmed that accused was appointed by the complainant in M/s Durocell Chemical Pvt Ltd on his reference. Accused further brought DW4 Gulshan Kumar from Oriental Bank of Commerce as defence witness and brought on record the statement of account of M/s Durocell Chemical Pvt Ltd Ex. DW4/A1 wherefrom it is clear that accused has even received his salary by way of cheque from the said account from M/s Durocell Chemical Pvt Ltd. It is pertinent to mention that the complainant in paragraph 12 of the written arguments has admitted that the accused has received the said amount from the bank account of M/s Durocell Chemical Pvt Ltd but has taken a plea that the said amount has been withdrawn by the accused and paid back to M/s Durocell Chemical Pvt Ltd. However, the prosecution neither put any question to the accused, bank officials or the other defence witnesses regarding the factum of said withdrawal and payment to M/s Durocell Chemical Pvt Ltd nor any suggestion regarding the same was put to the defence witnesses. It is further clear that no evidence to establish the said version was led by the prosecution despite ample opportunities. It thus emerges from this discussion that instead of challenging the defence version, the prosecution has admitted the defence plea that accused was actually employed with M/s Durocell Chemical Pvt Ltd and did not have any concern with M/s Goel Oil Mills, thereby rendering the entire prosecution version nugatory.
45. Regarding the burden of proving the prosecution version it is pertinent to mention the case law reported as " Sadhu Singh Vs. State of Punjab :
1997 (3) Crime 55, wherein the Punjab & Haryana High Court had observed that Page 36 of 38 FIR No. 366/2002 PS: Rajinder Nagar U/s 408 IPC State Vs Narender Bahadur Singh " In a criminal trial it is for the prosecution to establish its case beyond reasonable doubts. It is for the prosecution to travel the entire distance from 'may have' to 'must have'. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused".
Following the aforesaid observations and considering the inconsistence testimonies of the prosecution as well as the omissions made by withholding the best evidence available, it is clear that prosecution has not been able to travel the entire distance from may have to must have and thus benefit of doubt also accrues in favour of accused. So, it is apt to say that prosecution has not been able to prove that an employeeemployer relationship existed between the accused and the complainant's concern M/s Goel Oil Mill, that some business transactions existed between the complainant's concern and M/s Chander Bhan Gupta from whom the accused received the alleged amount as well as with M/s Stelco Ltd and other clients from whom complainant's brother had collected the amount which was entrusted to the accused, that there was entrustment of alleged amount to the accused and that the complainant's scooter was also entrusted to the accused at the time of alleged offence which shatters the prosecution version.
46. It is a settled proposition of criminal law that in order to prove its case on judicial file, prosecution is supposed to stand on its own legs and it cannot derive any benefit whatsoever from the weaknesses, if any, of the defence of the accused. Further, it is a settled proposition of criminal law that burden of proof of the version of the prosecution in a criminal trial throughout the trial is on the prosecution and it never shifts on to the accused. Also, it is a settled proposition of criminal law that accused is entitled to the benefit of reasonable doubt in the prosecution story and such reasonable doubt entitles the accused to acquittal.
Page 37 of 38 FIR No. 366/2002PS: Rajinder Nagar U/s 408 IPC State Vs Narender Bahadur Singh
47. Considering the aforediscussed testimonies, this Court is of the view that arguments advanced by the Ld. APP for the State that the prosecution has proved all the ingredients necessary for completion of the alleged offences do not have any force whereas the arguments made on behalf of defence that the accused has been falsely implicated are found to be justified.
48. In view of the aforesaid discussion, this Court is of the view that the prosecution has not been able to prove its case against the accused beyond reasonable doubts. Accordingly, accused Narender Bahadur Singh S/o Late Sh. Mahadev Singh is hereby acquitted of the charge u/s 408 IPC levelled against him. Bail bond stands cancelled and Surety be discharged, if any. Documents, if any, be returned to the rightful person against receiving and after cancellation of endorsement, if any.
Fresh bail bond and surety bond in compliance of Section 437 (A) Cr.P.C filed on behalf of accused are furnished and accepted.
File be consigned to the Record Room after due compliance.
Digitally signed by VIPLAV VIPLAV DABAS
DABAS Date:
2019.12.03
Announced in open Court 17:19:12 +0530
on 29th November 2019 (VIPLAV DABAS)
ACMM(Special Acts) CENTRAL
TIS HAZARI COURTS DELHI
29.11.2019
Page 38 of 38