Delhi District Court
Judgments. In Case Law Reported As ... vs . State" on 3 October, 2018
IN THE COURT OF MS. POOJA TALWAR
CHIEF METROPOLITAN MAGISTRATE (SOUTH)
SAKET DISTRICT COURTS, DELHI
In the matter of :
Digitally
signed by
POOJA
State
POOJA TALWAR
TALWAR Date:
2018.10.04
Vs.
16:20:20
+0530
Victor Chidi & Ors.
FIR No. 228/2011
P.S. S.J. Enclave (AATS)
JUDGMENT
1. Sr. No. of case 2032586/2016
2. Date of institution 16.07.2012
FIR No. 228/2011 PS S.J. Enclave (AATS) Page- 1 of 39
3. Name of the complainant Smt. R.S. Raja Rajeshwari
S/o Sh. T.S. Venkatash
R/o Flat No. 825, Sector-XII
(Type-IV), R.K. Puram, New
Delhi.
Also at:
R/o Flat No. S-2, Plot No. Balaji
Balaji Avenue,
Ayyappanthangan, Kancheepura,
Chennai, Tamil Nadu.
4. Date of commission of offence Unknown time
5. Name of accused 1. Victor Chidi
S/o Mr. Okereke
R/o House No. 120, Mission
Road, Benin City, Edo State,
Nigeria. (declared PO vide
order dated 25.11.2013)
2. Destiny
Mr. Abhulimen
R/o House No. 15, Idumunegbon
Road, Benin City, Edo State,
Nigeria. (declared PO vide
order dated 25.11.2013)
3. Chinedu
S/o Mr. Nwokoro
R/o House No. 32, Ikpba Hill,
Ufumea Street, Benin City, Edo
State, Nigeria. (declared PO
vide order dated 25.11.2013)
4. Brijesh Tiwari
FIR No. 228/2011 PS S.J. Enclave (AATS) Page- 2 of 39
S/o Laxman
R/o House No. 16/45, Dakshin
Puri, New Delhi.
5. Ram Milan Sharma
S/o Sh. Siya Ram Sharma
R/o House No. 722, Main
Market, Chirag Delhi, New
Delhi.
6. Offence complained of U/s 420/468/471/120B IPC
7. Plea of accused Pleaded not guilty
8. Date of reserving the judgment 24.09.2018
9. Final order Accused Brijesh Tiwari
(convicted)
Accused Ram Milan Sharma
(acquitted)
10 Date of such judgment 03.10.2018
BRIEF STATEMENT OF REASONS FOR
THE DECISION OF THE CASE
1. The story of the prosecution is that a complaint was received from one Smt. R.S. Rajeshwari stating that on 31.07.2011 her daughter received a message on her mobile FIR No. 228/2011 PS S.J. Enclave (AATS) Page- 3 of 39 number 9500157944 that her mobile number has won 1 million pounds in Coco Cola lottery 2011. It was mentioned that the address be sent to David Wright e-mail [email protected] telephone number +448719741984. The said message was forwarded by daughter of complainant to her who contacted the concerned person. The said person started negotiating with her daughter from 03.08.2011 to deposit a sum of Rs. 25,000/- in the name of Mr. Kun Sang Lama in ICICI Bank account no. 071901506563. Repeated calls were made to daughter of complainant from the mobile number 9560784241. The complainant made a payment of Rs. 10,000/- to one person who disclosed his name as Steves Williams and claimed himself to be a diplomat on 04.08.2011. The said person repeatedly called her daughter to pay a sum of Rs. 65,000/- for custom clearance charges and his hotel expenses. He insisted that the amount be deposited in the name of Ms. Gracy Manngihikim in HDFC bank account no. 05441140014296 and sent a scanned copy of the payment through e-mail id [email protected]. The complainant insisted that she would make the payment at the same spot where she paid Rs. 10,000/- but the said person insisted on depositing the FIR No. 228/2011 PS S.J. Enclave (AATS) Page- 4 of 39 amount in the bank account. Hence, she got suspicious. In the meanwhile, he sent one RBI form to her daughter to fill up and send back. The last message received by her daughter was on 21.08.2011. Thereafter, diplomat Steves Williams told her daughter that he was going back to London to attend some urgent work and once he got the duly filled form, he would come back to India to deliver the lottery money. Upon the aforesaid complaint, FIR was registered and investigation was conducted. During investigation, the investigating team reached the house of Smt. Rano Devi on whose name mobile number 9560784241 was registered. She denied having obtained the said mobile number. She further stated that on 29.06.2011 she had taken one mobile connection number 9958677690 from M/s Manpreet Electronics. The photocopy of her ID proof was given to shopkeeper and there is a possibility that her ID proof has been misused. Thereafter, the investigation team reached M/s. Manpreet Electronics, one Swaran Singh was joined in investigation. He stated that he had sold one connection of Airtel No. 9958677690 to Rano Devi. Duly filled up Customer Application Form (hereinafter referred to as CAF) was handed over to one Brijesh Tiwari who was the Authorized FIR No. 228/2011 PS S.J. Enclave (AATS) Page- 5 of 39 Representative of distributor Om Traders. He expressed his ignorance about issuance of mobile connection 9560784241. Thereafter, they reached Girraj Communication where Ram Milan Sharma was found. He was asked to join the investigation as mobile number 9560784241 was issued from his shop. He admitted that he had never met Smt. Rano Devi and that this mobile connection was issued and given to Brijesh Tiwari of Om Traders. The photocopy of ID was provided by Brijesh Tiwari and he received extra amount from Brijesh Tiwari for this fake connection. He further admitted that he had given several such fake connections to Brijesh Tiwari. Accused Ram Milan Sharma was arrested. Rubber stamp of Girraj Communication was seized from the shop of accused Ram Milan Sharma which was affixed on CAF of mobile connection no. 9560784241. Thereafter, accused Brijesh Tiwari was arrested on pointing out of accused Ram Milan Sharma. He admitted that on 19.06.2011 he collected CAF and ID of mobile connection 9958767690 of Smt. Rano Devi from M/s Manpreet Electronics and the same was deposited with Om Traders. He retained a photocopy of ID of Smt. Rano Devi and a photograph was prepared with the help of photo affixed on FIR No. 228/2011 PS S.J. Enclave (AATS) Page- 6 of 39 CAF. On 01.08.2011 he got another mobile connection number 9560784241 by using the ID of Smt. Rano Devi from M/s. Girraj Communication and sold the same for Rs. 1,000/- to one Nigerian named Victor. Thereafter, accused Victor Chidi, Destiny and Chinedu were arrested. Victor Chidi was identified by complainant as the person who introduced her as Steves Williams and took Rs. 10,000/-.
Subsequently on 05.09.2011 one Smt. Shashi Kala Kumari also filed a complaint stating that she has also been cheated by the same gang for Rs. 5,83,000/-. She also received an SMS on her mobile number and was directed by Steves Williams to deposit certain amount on different dates. She deposited the amount in the accounts as directed. She was also contacted from the same mobile number 9560784241. Further investigation was carried out. Details of bank accounts in which the money was deposited were obtained. Evidence was collected which prima facie proved the involvement of accused Victor Chid, Destiny and Chinedu. Specimen signatures of the accused persons were sent to FSL. Reports were obtained. Investigation was concluded and chargesheet was filed.
2. Provisions of Section 207 Cr.P.C. were complied with. On FIR No. 228/2011 PS S.J. Enclave (AATS) Page- 7 of 39 appearance of accused persons before Court, prima facie case having being made out, charge for the offence under section 465/468/471 IPC was framed against accused Ram Milan and Brijesh Tiwari. Accused Victor Chidi, Destiny and Chinedu were declared PO vide order dated 25.11.2013.
3. In order to prove its case, the prosecution examined 16 witnesses in all.
4. Sh. Swaran Singh was examined as PW1. He deposed that in the year 2011, he was running a shop in the name of M/s. Manpreet Electronics for mobile SIM and recharge coupon. On 29.06.2011, he sold one Mobile SIM to Rano Devi on her ID. He got the application form filled by her. For activation of the SIM, he handed over the application form and documents of identity of Rano Devi to accused Brijesh Tiwari, who came from the Om Traders. He used to collect the documents i.e application forms and ID proof of the purchasers of SIM Cards for the purpose of SIM Activation from him. On the identity proof of Rano Devi, he got activated only one mobile phone through accused Brijesh Tiwari. Accused Brijesh Tiwari used to come on a bicycle to his shop. Witness correctly identified the accused Brijesh Tiwari before the Court.
FIR No. 228/2011 PS S.J. Enclave (AATS) Page- 8 of 39
5. Smt. Rano Devi was examined as PW2. She deposed that on 29.06.2011, she gave her identity proof to her sister-in-law (Jethani) namely Meera for purchasing mobile SIM Card. She got one SIM Card from M/s. Manpreet Electronic, 170, Savitri Nagar, Malviya Nagar. Her original ID proof or any other identity proof was never used for the purchasing of some other SIM Card. She further deposed that she never used any SIM Card mobile No.9560784241 nor had she purchased this SIM Card mobile number on the proof of any document including her identity proof. She denied her handwriting and signatures on the document Ex.PW2/A. She further denied her signatures on the document Ex.PW2/B.
6. Sh. Sanjay Gupta was examined as PW3. He deposed that he was running a recharge coupon, selling distribution firm of Airtel company since the year 2005 in the name of Om Traders at 118/1, Gautam Nagar. The same was closed in the year 2012- 2013. On 01.12.2016, he received a letter regarding distribution of fixed wireless phone (prepaid) from Bharti Airtel Ltd which is Ex.PW3/A. In the year 2011, accused Brijesh Tiwari was working in his firm as a form collector from market in Chirag Delhi, Savitri Nagar and Pushp Vihar. On 28.08.2011 he FIR No. 228/2011 PS S.J. Enclave (AATS) Page- 9 of 39 snapped accused Brijesh Tiwari on receiving complaints against him from market. From 29.08.2011, accused Brijesh Tiwari did not report to him. He gave a complaint to police regarding the same on 31.08.2011. Accused Brijesh Tiwari had a mobile phone, a bag of the firm and a rubber stamp alongwith the letter pad. He produced the copy of complaint received at PS Hauz Khas which is Ex.PW3/B. He also gave a written letter regarding accused Brijesh Tiwari to IO. The letter is Ex.PW3/C. He also produced two documents as a proof of receiving on the part of Airtel Company regarding SIM activation form (KYC Form). Photocopies of these documents are Ex.PW3/D and Ex.PW3/D1 for mobile number 9560784241 and 9958677690 respectively. He further deposed that on document Ex.PW3/D, the mobile number 9560784241 was mentioned at serial no. 55 and on document Ex.PW3/D1, mobile number 9958677690 was mentioned at serial no. 83. The original distributor tele calling feedback form regarding mobile no. 9560784241 is Mark PW3/A. Witness correctly identified accused Brijesh Tiwari before the Court.
7. Complainant Smt. Raja Rajeshwari was examined as PW4.
She deposed that on 31.07.2011, her daughter namely Aparna, FIR No. 228/2011 PS S.J. Enclave (AATS) Page- 10 of 39 who was in Chennai at that time received a message on her mobile as "Your mobile number has won 1 million pounds in Coco Cola Lottery 2011. Send address and phone number to David Wright. "In that message, one e-mail address and one telephone number were also mentioned. The message was also forwarded to her by her daughter. Thereafter, she contacted on the abovesaid e-mail address. The message was received from the mobile number 9500157944. The person with whom, she contacted on e-mail address started negotiation with her daughter from 03.08.2011 to deposit a sum of Rs. 25,000/- in the name of one Kun Sang Lama in ICICI bank account. The account is mentioned in the complaint. He was making repeated calls to her daughter to make the payment from a mobile already mentioned in the complaint. She made a payment of Rs. 10,000/- to a person who told his name as Steves Williams. He was a Nigerian. He claimed himself to be a diplomat. On 04.08.2011, the abovesaid payment was made in Arjun Nagar, New Delhi on her daughter's behalf. He further contacted her daughter telephonically in Chennai to pay a sum of Rs. 65,000/- for custom clearance charges and his hotel expenses for his stay in Delhi. He also insisted that the amount must be deposited in FIR No. 228/2011 PS S.J. Enclave (AATS) Page- 11 of 39 the name of one Ms. Gracy Manngihikim in HDFC bank account as mentioned in the complaint. He also asked to send the scanned copy of the payment on e-mail ID as mentioned in the complaint. She insisted that she would make the payment by cash as she paid Rs. 10,000/-. But he insisted on depositing the money in the above mentioned bank account. He also sent a RBI Form to be filled in and sent to his above mentioned e-mail ID. He sent messages to her daughter till 21.08.2011. The last message "Ok be fast to reply the RBI." I am waiting for your call. She also made a complaint on 30.08.2011 to DCP, South District, Delhi Police, Haus Khas. The complaint is Ex.PW4/A. She correctly identified accused Victor Chidi from his photograph on passport was the same person to whom, she made a payment of Rs. 10,000/-. This person met her with a name as Steves Williams. The passport copy is Ex.PW4/B.
8. Smt. Shashi Kala Kumari was examined as PW5. She deposed that on 31.07.2011, she received an SMS on her mobile number 09570119117. The SMS was mentioned "Your mobile number have won 1 million pounds in Coco Cola lottery 2011 send address, phone number to David Wright. E- mail:[email protected]. One mobile number of some foreign FIR No. 228/2011 PS S.J. Enclave (AATS) Page- 12 of 39 countries was also mentioned in the SMS. In continuation of the SMS, one Steve Williams introduced himself as a diplomat on behalf of Coco Cola Company and started negotiation with them. First he asked to deposit a total sum of Rs. 25,000/- towards customs clearance. He gave an account number in the name of Kabeendra Yadav. That account was of HDFC Bank. As per the inducement of a lottery, a total amount of 1 million pounds, the said amount of Rs. 25,000/- was deposited in the abovesaid bank account of Kabeendra Yadav. A further demand of Rs. 1,30,000/-towards airport custom charge was also made and the same amount was asked to be deposited in the abovesaid HDFC Bank account. The same was also deposited. Again, the abovesaid Steve Williams asked for depositing a total amount of Rs. 1,53,000/- in the same account towards currency conversion. This amount was also deposited. Again, he demanded a total sum of Rs. 2,75,000/- towards post of transfer charges. Due to the abovesaid inducement, this amount was also deposited in the same bank account. The abovesaid whole amount was demanded to be deposited in the aboveasid bank account of HDFC Bank. The abovesaid Steve Williams remained in constant touch with them through SMS on her FIR No. 228/2011 PS S.J. Enclave (AATS) Page- 13 of 39 abovesaid mobile phone on their e-mail id i.e [email protected]. He further asked for a total amount of Rs.
7,00,000/-. This amount was not paid by them. Meanwhile, they became suspicious and from newspaper, they came to know that a gang of Nigerians indulged in fraudulently amassing huge sums of money under the garb of a winning of huge amount of money through lottery in different mobile schemes were arrested by Delhi Police. Delhi Police contacted them on the basis of their phone number found in the mobile of arrested accused persons. She handed over the prints of e-mails sent by accused to them regarding the abovesaid purpose alongwith attached documents with the e-mails. The documents i.e prints of emails, one transfer application form, three official receipts on the letter head of Reserve Bank of India are Ex.PW5/A. The documents i.e total four receipts; one of Rs. 25,000/- dated 18.08.2011, one is Rs. 1,30,000/- dated 18.08.2011, one is Rs. 1,53,000/- dated 19.08.2011 and one receipt of Rs. 2,75,000/- dated 23.08.2011 are Ex.PW5/B.
9. Sh. Surender Kumar, Nodal Officer, Bharti Airtel Ltd was examined as PW6. He produced the original CAF of mobile number 9958677690 in the name of Rano Devi and the FIR No. 228/2011 PS S.J. Enclave (AATS) Page- 14 of 39 distributor tele calling feedback form. Photocopy of the same is Ex.PW6/A. Photocopy of ID card of Rano Devi is Mark PW6/A. He also produced the CDR of mobile number 9560784241 from 15.07.2011 to 30.08.2011, site address chart alongwith the certificate under section 65B Indian Evidence Act regarding the same. The documents are Ex.PW6/B. He further deposed that the CDR of mobile number 9958677690 was not available in the system of the company as the same was more than 1 year old.
10. Sh. Ajay Kumar, Branch Manager, Punjab National Bank, D-Block, Vasant Vihar, New Delhi was examined as PW7. He produced the copy of bank statement of account no.1067001500002280 of Samurailakpam Beneshowri Devi from 03.09.2011 to 04.09.2014. The same is Ex.PW7/A. The certificate under section 65B of the Indian Evidence Act is Ex.PW7/B.
11. Sh. Deepanshu Rastogi, Deputy Manager, HDFC Bank, D-
Block, Vasant Vihar, New Delhi was examined as PW8. He produced the bank statement of account bearing no. 05441140014296 of Gracy Manngaihkim from 27.04.2012 to 21.04.2018. The computer generated copy of the same is FIR No. 228/2011 PS S.J. Enclave (AATS) Page- 15 of 39 Ex.PW8/A. He also produced the bank statement of account bearing no. 03191530005510 of Kabeendra Yadav from 09.08.2011 to 20.04.2018 which is Ex.PW8/B. The certificate with respect to computerized copy of abovesaid accounts under section 65B of the Indian Evidence Act is Ex.PW8/C.
12. Sh. C.H. Vijay Kumar, Customer Assistant, State Bank of India, Vasant Vihar Branch, New Delhi was examined as PW9. He produced the bank statement of account no.31795809935 of Kabeendra Yadav from 28.05.2012 to 01.12.2015. Copy of same is Ex.PW9/A. The certificate with respect to computerized copy of abovesaid account under section 65B of the Indian Evidence Act is Ex.PW9/B.
13. Sh. Dinesh Chand Mathpal, Head Messenger, State Bank of India, Green Park Extension Branch, New Delhi was examined as PW10. He produced the authority letter authorizing him to depose in the present case is Ex.PW10/A. He produced the bank statement of account no. 31785900462 of Ebenezer R from 09.06.2011 to 31.03.2012 which is Ex.PW10/B. He also produced the bank statement of account no. 20078792734 of Ms. K. Hannah from 01.06.2011 to 31.03.2012 which is Ex.PW10/C. The certificate with respect to computerized copy FIR No. 228/2011 PS S.J. Enclave (AATS) Page- 16 of 39 of abovesaid accounts under section 65B of the Indian Evidence Act is Ex.PW10/D.
14. HC Ajay Tokas was examined as PW11. He deposed that on 31.08.2011, he was posted as Constable at AATS, South District. That day, he alongwith IO/SI Naresh Chander and HC Arvind, HC Sukhvinder, Ct. Amit, Ct. Joginder, Ct. Sanjeev, Ct. Rajesh, Ct. Kanwarpal, Ct. Aman and driver Ct. Naresh visited the Savitri Nagar at the address of Rano Devi i.e 169/A, Savitri Nagar, New Delhi where they met Rano Devi and IO made enquiry from her regarding mobile number 9560784241. She told that she had not taken this SIM number by giving her voter ID card. However, she had taken SIM number 9958677690 by giving her voter ID card from the shop of M/s. Manpreet Electronics, Malviya Nagar. Thereafter, they all visited at the shop of M/s. Manpreet Electronics, Malviya Nagar where they met the owner of the M/s. Manpreet Electronics namely Swaran Singh. After enquiry, Swaran Singh told that he had issued the SIM number 9958677690 on 29.06.2011 by voter ID card of Rano Devi. Swaran Singh also told that the concerned CAF Form/voter ID card, he had given to accused Brijesh Tiwari who was working at the shop of Om FIR No. 228/2011 PS S.J. Enclave (AATS) Page- 17 of 39 Traders, Gautam Nagar, for the activation of SIM number 9958677690. Thereafter, they visited Giriraj Communication at Chirag Delhi as the stamp at the CAF Form stamped where they met owner of the Giriraj Communication i.e accused Ram Milan. IO made enquiry from accused Ram Milan Sharma. Accused Ram Milan Sharma handed over two stamps namely Giriraj Communication to IO. IO prepared seizure memo of the same which is Ex.PW11/A. At this spot, IO arrested accused Ram Milan Sharma vide arrest memo Ex.PW11/B and also conducted his personal search vide personal search memo Ex.PW11/C. Thereafter, they took the accused Ram Milan Sharma and visited Om Traders, Gautam Nagar. At the Om Traders, accused Ram Milan Sharma indicated towards accused Brijesh Tiwari and told that this was the person who had brought the CAF Form in the name of Rano Devi to his shop and thereafter he issued the SIM number 9560784241. IO made enquiry from accused Brijesh Tiwari who told that he had given this SIM number 9560784241 to accused Victor Chidi (since PO) residing in Arjun Nagar. Thereafter, IO arrested Brijesh Tiwari and prepared arrest memo which is Ex.PW11/D and conducted his personal which is Ex.PW11/E. Thereafter, they FIR No. 228/2011 PS S.J. Enclave (AATS) Page- 18 of 39 took accused Brijesh Tiwari and Ram Milan Sharma and visited at Arjun Nagar at the address of accused Chinedu, Victor Chidi and Destiny and conducted their personal search vide Ex.PW11/F to Ex.PW11/K. IO also prepared 12 seizure memos regarding the abovesaid case property which are Ex.PW11/L to Ex.PW11/W. Thereafter, they came back to the office alongwith all accused persons. IO recorded the disclosure statement of all the accused persons vide memos Ex.PW11/X to Ex.PW11/ZB. He further deposed that his statement under section 161 Cr.PC was recorded by IO. The attested copy of order of Sh. Deepak Nanda, District Nazir, Revenue Department, Govt. of NCT of Delhi, Tis Hazari Court is Ex.PW11/ZC. Witness correctly identified accused Brijesh Tiwari and Ram Milan Sharma before the Court.
15. ASI Sukhvinder Singh was examined as PW12. He deposed that on 05.09.2011, one Sashi Kala from Ranchi met him and told that on 31.07.2011 one message was received on her mobile phone number 9570119117. It was mentioned in said message that she had won a lottery of One Million Pound and on their insistence she deposited Rs. 25,000/- in an account as told by the caller at HDFC bank. On several other occasions she FIR No. 228/2011 PS S.J. Enclave (AATS) Page- 19 of 39 was asked to deposit the money for releasing the amount at the instance of the caller in different accounts at different banks. She told that in total she had deposited Rs. 5,83,000/- in above said accounts. He recorded her statement under section 161 Cr.PC.
16. Sh. Parmod Kumar, Assistant Manager, ICICI Bank, Vasant Vihar Branch, New Delhi was examined as PW13. He produced the summoned record pertaining to account statement of account no. 071901506583 in the name of Mr. Kusang Lama from 16.01.2011 to 30.06.2018 and the account statement of account no. 002901554719 in the name of Kabeendra Yadav. The statements of account are Ex.PW13/A and Ex.PW13/B. The certificate under section 65B of Indian Evidence Act qua both the abovesaid statements is Ex.PW13/C.
17. Retired SI Mahender Singh was examined as PW14. He deposed that on 24.10.2011, the investigation of the present case was assigned to him. During investigation, he attended the bail matters in Hon'ble Sessions Court and before the Ld. MM. He also took the JC remand of accused Victor Chidi. On 23.01.2012, he was transferred and he submitted the case file to Incharge, AATS.
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18. Inspector Balihar Singh was examined as PW15. He deposed that on 30.08.2011, he was posted as Incharge, AATS, South District. That day, Mrs. R.S. Rajeshwari had made a complaint before DCP, South District. Same was marked to him by ACP, Operation on 30.08.2011. He made endorsement and prepared the rukka vide Ex.PW15/A. He got the FIR registered and the further investigation was assigned to SI Naresh Kumar. On 30.03.2012, the investigation of the present case was again marked to him. On 05.04.2012, he visited the office of Airtel alongwith Ct. Amit Kumar and collected the CAF of mobile no.9560784241 and the ID proof submitted by the subscriber. He seized these documents vide seizure memo Ex.PW15/B. On 10.04.2012, all the questioned documents and the specimen signatures and the rubber stamp were sent to FSL, Rohini through Ct. Amit. He prepared the chargesheet and filed before the Ld. MM. After getting the results from FSL, he also filed the supplementary chargesheet. On 10.04.2012, he prepared the specimen sheet bearing the stamp of Girraj Communication which is Ex.PW15/C. On 27.04.2012, he served notice under section 91 Cr.PC to HDFC Bank and on 28.05.2012, he also served notice under section 91 Cr.PC to State Bank of India, FIR No. 228/2011 PS S.J. Enclave (AATS) Page- 21 of 39 ICICI Bank and to the Nodal Officer, Airtel Bharti Limited which are Ex.PW15/D, Ex.PW15/E, Ex.PW15/F, Ex.PW15/G. On 16.07.2012 he filed the chargesheet in the present case. On 09.08.2012 he filed the FSL result through application which is Ex.PW15/H. On 03.03.2016, he filed the supplementary chargesheet containing the FSL result which is already Ex.A1.
19. Retired SI Naresh Chand was examined as PW16. He deposed that on 30.08.2011 complaint of R.S. Raja Rajeshwari on which present FIR was already registered was handed over to him by senior officers. The matter was assigned to him for investigation. He got the CAF and ID proof of subscriber of mobile number 9560784241 through Senior Officer which was allotted to one Rano Devi. He further deposed on the same lines as PW11. He further deposed that he called the complainant and joined her. The passports Ex.PW16/A. He also took the specimen handwritings of accused Brijesh Tiwari with the permission of Court on 03.09.2011 which is Ex.PW16/B. He also took specimen handwriting of accused Ram Milan which is Ex.PW16/C. He wrote a letter to Manager, HDFC Bank with respect to information of ATM Cards and account number. The letter is Ex.PW16/D. The Manager provided him the account FIR No. 228/2011 PS S.J. Enclave (AATS) Page- 22 of 39 statement which is Ex.PW16/E. He also wrote a letter to Manager, ICICI Bank which is Ex.PW16/F. The documents received from ICICI Bank is Ex.PW16/G. He also wrote a letter to SBI Bank which is Ex.PW16/H as well as one letter to Manager, PNB which is Ex.PW16/I. The documents received from PNB is Ex.PW16/J. On 24.10.2013, he was transferred and he deposited the case file to SI Balihar Singh. Witness correctly identified the accused persons before the Court.
20. The entire incriminating evidence brought on record against the accused persons was put to them and their statements under section 313 CrPC were recorded separately.
21. It is stated by accused Brijesh Tiwari that he is innocent and has nothing to do with the aforesaid offence. He has been falsely implicated in the present case. It is further stated that he was picked up by the police officials and arrested in this case from Chirag Delhi, Petrol Pump, New Delhi.
22. It is stated by accused Ram Milan Sharma that he is innocent and has been falsely implicated in the present case. No stamps were recovered from his possession. IO SI Naresh Chand never visited at his shop nor had he arrested him. He FIR No. 228/2011 PS S.J. Enclave (AATS) Page- 23 of 39 never went with IO SI Naresh Chand for searching Nigerians.
23. I have heard Ld. APP for the State and Ld. counsels for accused persons and have also perused the judicial file carefully.
24. Both the accused persons i.e Ram Milan Sharma and Brijesh Tiwari have been charged with the offence under section 465/468 IPC and section 471 IPC for preparing a false CAF reflecting name of Rano Devi using her photograph and other details. Accused Ram Milan Sharma affixed his rubber stamp of Girraj Communication on the false CAF and accused Brijesh Tiwari forged signatures of Smt. Rano Devi on the said CAF and used the same to obtain a SIM which was given to accused Victor Chidi, Destiny and Chinedu (since PO).
25. Prosecution in order to prove its case examined PW1 Sh.
Swaran Singh who deposed that CAF of Rano Devi alongwith her identity documents were handed over to Salesman of Om Traders. He identified accused Brijesh Tiwari as the Salesman of Om Trader.
26. PW2 Smt. Rano Devi was examined to prove that she had obtained one SIM Card of mobile number 9958677690 by FIR No. 228/2011 PS S.J. Enclave (AATS) Page- 24 of 39 furnishing her identity documents for obtaining the same. She only obtained one SIM Card. She denied her signatures on document Ex.PW2/A which is a Customer Application Form used for obtaining mobile number 9560784241. She also denied having filled the said form in her handwriting.
27. PW3 Sh. Sanjay Gupta was examined to prove that accused Brijesh Tiwari was working in his firm as a Form Collector. He also admitted that he was the distributor of Bharti Airtel Ltd. He further produced the copies of documents Ex.PW3/D and Ex.PW3/D1 which were received by him for giving mobile connection 9958677690 and 9560784241.
28. PW6 Sh. Surender Kumar from Nodal Officer, Bharti Airtel Ltd produced the CAF of mobile no. 9560784241 alongwith copy of Voter ID card of Rano Devi which was issued in her name.
29. PW11 HC Ajay Tokas was examined to prove that the CAF of mobile no. 9560784241 was forwarded by retailer Girraj Communication to Om Trader. Accused Ram Milan Sharma was the proprietor of Girraj Communication. Two stamps of Girraj Communication were seized from shop of accused Ram FIR No. 228/2011 PS S.J. Enclave (AATS) Page- 25 of 39 Milan Sharma. He deposed that accused Ram Milan Sharma pointed out towards accused Brijesh Tiwari and told that he had brought the CAF in the name of Rano Devi to his shop. Thereafter, he forwarded the same. He further stated that accused Brijesh Twari told the IO that SIM Card of mobile no. 9560784241 was given to Victor Chidi at his instance. Accused Victor Chidi, Destiny and Chinedu were arrested and mobile number 9560784241 was recovered from possession of accused Victor Chidi.
30. Testimony of PW11 HC Ajay Tokas is corroborated with the testimony of PW15 Inspector Balihar Singh and PW16 retired SI Naresh Chand.
31. Testimony of PW11 HC Ajay Tokas on the point that accused Brijesh Tiwari obtained the SIM Card of mobile number 9560784241 and handed over the same to accused Victor Chidi is undisputed and uncontroverted.
32. It has come on record in the testimony of PW11 HC Ajay Tokas that the CAF Ex.PW2/A was filled in the handwriting of accused Brijesh Tiwari and that FSL result proves the same. His testimony to this effect remains unrebutted and uncontroverted.
FIR No. 228/2011 PS S.J. Enclave (AATS) Page- 26 of 39
33. The FSL report is admitted by the accused persons under section 293 Cr.PC. Hence, the opinion given by the Forensic Expert is admitted. As per the said opinion, the CAF of mobile number 9560784241 was filled in the handwriting of accused Brijesh Tiwari.
34. It is the case of prosecution against accused Ram Milan Sharma that he was the proprietor of Girraj Communication and the CAF of mobile number 9560784241 was forwarded by him as a retailer on request of accused Brijesh Tiwari.
35. Testimony of all material witnesses who were allegedly part of raiding team i.e PW11 HC Ajay Tokas, PW15 Inspector Balihar Singh and PW16 retired SI Naresh Chand corroborated the testimony of each other. All these witnesses have stated that after examining Rano Devi they went to Girraj Communication where accused Ram Milan Sharma was present being the proprietor. None of the said witness has explained as to how they reached Girraj Communication when no address was mentioned on CAF. It is also not the case of the prosecution that address of Girraj Communication was furnished to them by Rano Devi. It is not understood that how the raiding team reached Girraj Communication of which accused Ram Milan FIR No. 228/2011 PS S.J. Enclave (AATS) Page- 27 of 39 Sharma was the proprietor.
36. PW15 Inspector Balihar Singh, who was the IO of the case was suggested that there can be many firms in the name of Girraj Communications, but the said witness could not give an explicit answer to the same.
37. It would also be pertinent to mention here that all the witnesses have deposed that the firm of accused Ram Milan Sharma was Girraj Communication of which the stamp was affixed on CAF. Whereas perusal of CAF Ex.PW2/A would show that the stamp is that of Sri Girraj Communication.
38. It is alleged against accused Ram Milan Sharma that two stamps were recovered from his shop which were allegedly impressed upon the CAF Ex.PW2/A. It is defence of the accused that the said stamps were later planted upon him. Discernment of testimony of the witnesses of the raiding team would reveal that there was a sheer non compliance of section 100 (4) Cr.PC which mandatorily require the public witness at the time of recovery.
Under these circumstances, there is absolute non compliance of Section 100 Cr.PC. Sub Sec (4) which FIR No. 228/2011 PS S.J. Enclave (AATS) Page- 28 of 39 specifically provides that whenever any search or seizure is effected by an investigating officer, the latter before making search or seizure shall join at least two independent respectable local inhabitants from the same locality in which search is to be effected. The word used in sub Sec (4) of Sec 100 is "shall" which makes it mandatory. An investigating officer is granted liberty to join independent witnesses from other locality only when the witnesses from the same locality are either not available or they refuse to become witness. It appears that no sincere effort was made to join respectable witnesses from the same locality.
In this regard reliance is being placed on the following judgments. In case law reported as "Anoop Joshi Vs. State"
1992(2) C.C. Cases 314(HC), High Court of Delhi had observed as under:
"18. It is repeatedly laid down by this Court in such cases it should be shown by the police that sincere efforts have been made to join independent witnesses. In the present case, it is evidence that no such sincere efforts have been made, particularly when we find that shops were open and one or FIR No. 228/2011 PS S.J. Enclave (AATS) Page- 29 of 39 two shopkeepers could have been persuaded to join the raiding party to witness the recovery being made from the appellant. In case any of the shopkeepers had declined to join the raiding party, the police could have later on taken legal action against such shopkeepers because they could not have escaped the rigours of law while declining to perform their legal duty to assist the police in investigation as a citizen, which is an offence under the IPC".
In a case law reported as Roop Chand Vs. State of Haryana 1999 (1) C.L.R. 69, the Punjab & Haryana High Court held as under:
"3. I have heard the learned counsel for the parties and gone through the evidence with their help. The recovery of illicit liquor was effected from the possession of the petitioner during noon time and it is in the evidence of the prosecution witnesses that some witnesses form the public were available and they were asked to join the investigation. The explanation furnished by the prosecution is that the independent witnesses were asked to join FIR No. 228/2011 PS S.J. Enclave (AATS) Page- 30 of 39 the investigation but they refused to do so on the ground that their joining will result into enmity between them and the petitioner".
4. It is well settled principle of the law that the Investigating Agency 19.01.2013 should join independent witnesses at the time of recovery of contraband articles, if they are available and their failure to do so in such a situation casts a shadow of doubt on the prosecution case. In the present case also admittedly the independent witnesses were available at the time of recovery but they refused to associate themselves in the investigation. This explanation does not inspire confidence because the police officials who are the only witnesses examined in the case have not given the names and addresses of the persons contacted to join it is a very common excuse that the witnesses from the public refused to join the investigation. A police officer conducting investigation of a crime is entitled to ask anybody to join the investigation and on refusal by a person from the public the Investigating Officer can take action against such a person under the law. Had it been a fact that the witnesses from the public had refused to join the investigation, the FIR No. 228/2011 PS S.J. Enclave (AATS) Page- 31 of 39 Investigating Officer must have proceeded against them under the relevant provisions of law. The failure to do so by the police officer is suggestive of the fact that the explanation for non-
joining the witnesses from the public is an after thought and is not worthy of credence. All these facts taken together make the prosecution case highly doubtful".
39. The prosecution has thus failed to prove as to how the address of Girraj Communication of accused Ram Milan Sharma was revealed to them. The evidence so led by the prosecution is not cogent and it cannot be proved beyond reasonable doubt that the stamp on the CAF was that of the firm of accused Ram Milan Sharma.
40. Sufficient evidence has come on record against accused Brijesh Tiwari both oral and documentary to prove that the identification card of Rano Devi was misused by accused Brijesh Tiwari by attaching the same alongwith the CAF Ex.PW2/A which was filled in his handwriting and was used for obtaining mobile connection of telephone number 9560784241.
41. Accused Brijesh Tiwari has been charged with the offence FIR No. 228/2011 PS S.J. Enclave (AATS) Page- 32 of 39 under section 465/468/471 IPC.
42. Punishment for forging has been provided under section 465 IPC and the essentials of Forgery as well as Making a false document has been defined under section 464 IPC which is reproduced herein under:-
Section 464:-A person is said to make a false document or false electronic record:-
First- Who dishonestly or fraudulently-
(a) makes, signs, seals or executes a document or part of a document;
(b) makes or transmits any electronic record of part of any electronic records;
(c) affixed any "electronic signature"
on any electronic record;
(d) makes any mark denoting the execution of a document or the authenticity of the "electronic signature", With the intention of causing it to be believed that such document or part of document, electronic record or "electronic signature" was made, signed, sealed, executed, transmitted FIR No. 228/2011 PS S.J. Enclave (AATS) Page- 33 of 39 or affixed by or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed, executed or affixed; or Secondly-Who, without lawful authority, dishonestly or fraudulently, by cancellation or otherwise, alters a document or an electronic record in any material part thereof, after it has been made, executed or affixed with "electronic signature" either by himself or by any other person, whether such person be living or dead at the time of such alteration; or Thirdly-Who dishonestly or fraudulently causes any person to sign, seal, execute to alter a document or an electronic record or to affix his "electronic signature" on any electronic record knowing that such person by reason of unsoundness of mind or intoxication cannot, or that b y reason of deception practised upon him, he does not know the contents of the document or electronic record or the nature of the alteration.
FIR No. 228/2011 PS S.J. Enclave (AATS) Page- 34 of 39
43. Documents Ex.PW2/A is proved on record to be a false document which is evident from the testimony of material witnesses i.e PW11 HC Ajay Tokas, PW15 Inspector Balihar Singh and PW16 retired SI Naresh Chand and also from the opinion of forensic expert. Recovery of SIM from the possession of accused Victor Chidi also substantiates that the SIM was not obtained by Rano Devi whose ID was attached alongwith CAF Ex.PW2/A and the said mobile number 9560784241 was not used by Rano Devi. Hence, it is proved that the said false document Ex.PW2/A was made by accused Brijesh Tiwari.
44. The accused has also been charged with offence under section 468 IPC for committing forgery for the purpose of cheating. The accused has been charged for dishonestly inducing the Airtel company to deliver SIM Card of mobile number 9560784241.
45. The essential ingredients of section 468 IPC are as under:-
(i) That the accused committed forgery;
(ii) That he did so intending that the document or electronic record forged shall be used for the purpose of FIR No. 228/2011 PS S.J. Enclave (AATS) Page- 35 of 39 cheating.
46. One of the requirement of the aforesaid offence is that the forged/false document should have been used for the purpose of cheating.
47. It is alleged against the accused that he dishonestly induced Airtel company to deliver SIM Card for mobile number 9560784241.
48. PW6 Sh. Surender Kumar, Nodal Officer, Bharti Airtel Ltd was examined to prove the allegations against the accused persons. In his cross examination, he admitted that when the form was handed over by the distributor, it had the stamp of the distributor. He further stated that it is not the duty of the company to do physical verification of address on CAF of the applicant. The said witness could not tell whether the CAF Ex.PW2/A was issued to Girraj Communication.
49. In absence of any evidence to the effect that Bharti Airtel was induced to deliver the mobile connection, offence cannot be said to have been committed as it is admitted by PW6 that the form which was submitted to the company should have been verified by the distributor and the one which was FIR No. 228/2011 PS S.J. Enclave (AATS) Page- 36 of 39 submitted had the stamp of the distributor. Hence, offence under section 468 IPC cannot be said to have been committed when one of the essential ingredients of inducement is missing.
50. Accused persons have also been charged under section 471 IPC.
51. It is the case of prosecution that a forged/false CAF was dishonestly or fraudulently used by the accused persons as genuine which they knew or had reason to believe to be forged before the Airtel company Ltd to obtain the SIM Card for mobile number 9560784241.
52. it has come on record that accused Brijesh Tiwari prepared a false CAF in the name of Rano Devi, got it forwarded by the retailer and submitted the same to the distributor for obtaining a SIM Card from Airtel.
53. The essential ingredients to bring home the charge under section 471 IPC are as under:-
(i) fraudulent or dishonest use of a document as genuine;
(ii) the person using it must have knowledge or reason to believe that the document is forged one.
FIR No. 228/2011 PS S.J. Enclave (AATS) Page- 37 of 39
54. The first requirement is the use of false document as genuine. It has been established on record that document Ex.PW2/A was prepared by accused Brijesh Tiwari by forging the signatures of Rano Devi. As per the forensic report, the form was filled by accused Brijesh Tiwari. Hence, he had requisite knowledge about the false document and still went ahead to use the same as genuine for obtaining the SIM Card of mobile number 9560784241. Hence, not only accused Brijesh Tiwari knew that the document was false/forged yet he went ahead to use the same.
55. All the requirements of the said section are fulfiled which prove the guilt of accused beyond reasonable doubt. Hence, the charge under section 471 IPC stands proved against accused Brijesh Tiwari.
56. As far as accused Ram Milan Sharma is concerned, absolutely no evidence has come on record that either he prepared the false document or used the same for obtaining the SIM Card. The allegation that the stamp of his firm was affixed on the CAF Ex.PW2/A stands unproved hence he cannot be said to have committed offence under section 471 IPC. FIR No. 228/2011 PS S.J. Enclave (AATS) Page- 38 of 39
57. In view of abovesaid discussion, accused Brijesh Tiwari is convicted for the offence under section 465/471 IPC and acquitted for the offence under section 468 IPC. Accused Ram Milan Sharma is acquitted for the offence under section 465/468471 IPC.
58. Copy of judgment be given to convict free of cost.
Announced in the open
Court on 03.10.2018 (POOJA TALWAR)
CMM (South), Saket Courts,
New Delhi
Certified that this Judgment contains 39 pages and each page is signed by me.
(POOJA TALWAR) CMM (South), Saket Courts, New Delhi FIR No. 228/2011 PS S.J. Enclave (AATS) Page- 39 of 39