Delhi District Court
(I) Nadeem vs . State 2010 (4) Jcc 2842 Wherein It Was ... on 17 October, 2012
IN THE COURT OF SH. SUDESH KUMAR
METROPOLITAN MAGISTRATE, NEW DELHI DISTRICT:
PATIALA HOUSE COURTS: DELHI
FIR NO.: 97 of 1999
POLICE STATION: CHANAKAYA PURI
U/S: 420/468/471/511 IPC
IN THE MATTER OF
STATE
VS
Sanjeev etc.
(1) Sanjeev Kamboj
S/o Mr. Dharambir
R/o Fateha Bad Mohalla Sarai District Amritsar, Punjab
(2) Manohar Lal Bharadwaj
S/o Mr. Amar Nath
R/o NV72, Preet Nagar Sadal Road Industrial Area, Jallandhar, Punjab
Date of institution:06.03.2002
Date of reserving judgement/Order: 12.09.2012
Date of Pronouncement of Judgement/Order:17.10.2012
Final Order: Accused Sanjeev Kamboj pleaded guilty on 31.07.2009 and he was
convicted for the offences u/s 420/511 and 471 IPC and he was discharged for the
offence u/s 468 IPC by my Ld. Predecessor and accused Manohar Lal stands
acquitted vide this Judgment.
FIR NO.: 97 of 1999
POLICE STATION: CHANAKAYA PURI
U/S: 420/468/471/511 IPC 1 of 12
Brief statement of reasons for such decision :
1.The case of the prosecution in brief is that on 11.03.1999 at unknown time at the Embassy of Germany, Visa Section, the accused Manohar Lal alongwith co accused Sanjeev Kamboj attempted to procure a business visa from German Embassy by filing a visa application form for accused Sanjeev Kamboj on the basis of false and fabricated documents and the writing and signature's of accused Manohar Lal matched with the 'writing' on the said visa application form.
2. After supplying copies U/s 207 Cr. PC, a charge for the offences u/s 420 r/w 511 IPC and 34 IPC only was settled against the accused Manohar Lal by my Ld. Predecessor on 22.12.2009 to which the accused pleaded not guilty and claimed trial.
3. It is pertinent to note that the charge for the abovementioned offences was settled against accused Manohar Lal only as accused Sanjeev Kamboj had already pleaded guilty on 31.07.2009 and he was convicted for the offences u/s 420/511 and 471 IPC and he was discharged for the offence u/s 468 IPC by my Ld. Predecessor.
4. The prosecution in order to prove its case has examined as many as 4 witnesses.
(i) The prosecution has examined Retired ASI Banke Bihari as PW 1. He deposed that on 11.03.1998, he recorded FIR NO. 97/99 on the basis of rukka brought by HC Ram Niwas. He proved a copy of the FIR as Ex. PW 1/A and entry on rukka as Ex.
PW 1/B and also identified his signature's at point A. The witness was not cross examined by the defence Counsel for accused despite opportunity being given.
FIR NO.: 97 of 1999 POLICE STATION: CHANAKAYA PURI U/S: 420/468/471/511 IPC 2 of 12
(ii) The prosecution has examined HC Surender Singh as PW 2. He deposed that on 21.11.2000, he along with SI Mahesh were conducting investigation in this case and went to Jalandhar in Punjab. They went to the residence of accused Manohar Lal at Preet Nagar, H. No. NV72. The accused was present in the house and was arrested, his personal search was conducted, disclosure statement was recorded vide memo Ex. PW 2/A, B and C. The witness identified his signature's at point A on the said memo's respectively. The accused was brought to Delhi and the IO took his specimen signatures on several papers. He further deposed that IO recorded his statement. He identified the accused present in the Court.
The witness was not cross examined by defence despite opportunity being given.
(iii) The prosecution thereafter examined ASI Ram Niwas as PW 3. He deposed that on 11.03.1999, he alongwith IO SI Mahesh went to German Embassy, where they met Liason Police Officer. He had given a written complaint and had produced one Mr. Sanjeev Kamboj and had also given one passport, one letter head of 'Meghna Impex.' He further deposed that IO prepared the rukka and he got the case registered in the PS and then he came back at the spot and gave the copy of FIR and original rukka to the IO. He further deposed that the accused was arrested and his personal search was conducted vide memo EX. PW 3/A and EX. PW 3/B bearing his signature at point A respectively. He further deposed that accused was medically examined and sent to lock up. He stated that on 12.03.1999, the accused was taken out of lockup and produced before Ld. MM, Patiala House Courts, Delhi. Three days PC Remand was taken and then he was brought to PS and sent to Lock Up. He further deposed that on 13.03.1999, he alongwith the IO took accused Sanjeev Kamboj to Jhallandhar, Punjab, where he took them to the house of agent Manohar Lal at H. No. NV72, Preet Nagar, Sodal Road, Jhallandhar, Punjab, where FIR NO.: 97 of 1999 POLICE STATION: CHANAKAYA PURI U/S: 420/468/471/511 IPC 3 of 12 they met one Jagmohan servant of Mr. Manohar Lal. He told them that on 12.03.1999, Manohar Lal had left the house alongwith his family. He further deposed that IO searched the house. Then they came back to the Delhi and the accused was produced before the court and sent to JC.
In his cross examination by Mr. Sandeep Dhingra, Ld. Counsel for accused Manohar Lal, the witness deposed that at present he does not have the ticket of the bus which they had boarded for Jhallandhar. He further deposed that the house no. mentioned above belongs to Manohar Lal as was told by his servant Jagmohan. He denied the suggestion that he was deposing falsely.
(iv) The prosecution has examined Inspector Mahesh Prakash as PW 4. He deposed that on 11.03.1999, he was posted as SI at PS Chanakaya Puri and on day on receipt of complaint vide DD No. 13A, he alongwith HC Ram Niwas went to German Embassy, where complainant Mr. Jurgeon Reinworth handed over to him one complaint alongwith passport of Mr. Sanjeev Kamboj, his visa application, 'Magna Impex' letter and Fax copy of invitation letter from Fello and other documents. He also handed over to him accused Sanjeev Khamboj. He deposed that he got the case registered vide FIR No. 97/99 vide his endorsement Ex. PW 4/A. He arrested the accused Sanjeev Khamboj vide memo Ex. PW 3/A, personal search memo was Ex. PW 3/B. He further deposed that handwriting of accused Sanjeev Khamboj was taken on 12.03.1999 vide memo Ex. PW 4/B. He also recorded his disclosure statement Ex. PW 4/C, wherein he disclosed that all documents have been forged and fabricated by accused Manohar Lal Bahradwaj for a total sum of Rs. 3.5 lacs out of which Rs. 2 lacs were paid to him. He deposed that during the police custody, accused M.L. Bahardwaj was arrested on pointing out of accused Sanjeev Khamboj on 21.11.1999 vide memo Ex. PW 2/A and personal search memo Ex. PW 2/B. His sample handwriting was also taken. He further deposed that sample FIR NO.: 97 of 1999 POLICE STATION: CHANAKAYA PURI U/S: 420/468/471/511 IPC 4 of 12 handwriting and questioned documents were sent to FSL. He further deposed that he also got verified the passport of accused Sajeev Khamboj and documents of 'Magna Impex,' wherein it was revealed that no such company existed. He deposed that disclosure statement of accused M.L. Bahardwaj was Ex. PW 4/D. He also collected reports from Excise and Taxation Department Jhallandhar Ex.PW 4/E, which suggested that no company in the name 'Magna Impex' existed at the given address. He further deposed that he also collected FSL report by post. He recorded the statement of PW's and on completion of the investigation chargesheet was presented. He identified the accused M.L. Bharadwaj, present in the court.
In his cross examination by Mr. Sandeep Dhingra, Counsel for accused, he deposed that he did not remember as to whether during the course of investigation, it was revealed that one Mr. Vijay cousin brother of the Sanjeev Kamboj was residing in his close vicinity i.e. in the next gali to house of Manohar Lal. He further deposed that he cannot say as to whether telefax was genuine or not, however, it was complainant Mr. Jurgen Reinworth who himself stated to him that it was forged. He denied the suggestion that in good faith the accused filled in the visa form of Sanjeev Kamboj or that nothing was paid to him. He deposed that nothing in regard to three passports of Sanjeev Kamboj came to his knowledge, however, he came to know about his two passports. He was not aware as to whether accused Sanjeev Kamboj pleaded guilty on arrival from IGI Airport and he was PO prior to that. However, he admitted that these facts had come to his knowledge in due course. He denied the suggestion that no disclosure statement was made by Sanjeev Kamboj or accused Manohar or that he wrongly recorded their statement in order to make out a proforma cases.
5. No other PW was examined and hence, PE was closed and the matter was fixed for statement of accused u/s 313 Cr. PC.
FIR NO.: 97 of 1999 POLICE STATION: CHANAKAYA PURI U/S: 420/468/471/511 IPC 5 of 12
6. After the closure of prosecution evidence, an opportunity was given to the accused to explain all the incriminating circumstances that had appeared against him in the testimony of the PWs examined by the prosecution. He denied all the incriminating circumstances that had appeared against him. His statement u/s 313 Cr. PC was recorded separately wherein it was put to him that on or before 09.03.1999 he forged and / or used forged and fabricated documents i.e. Invitation letter by fax and letter of 'Magna Impexes' and receipt of holiday India in support of visa application for coaccused Sanjeev Kamboj for obtaining visa from German Embassy, Chanakaya Puri and on complaint of embassy official, the FIR No. 97/99 was registered and pursuant to the disclosure statement of co accused Sanjeev Kamboj, accused Manohar Lal was arrested and he made disclosure statement Ex. PW 2/A and his sample handwriting S19 to S39 were taken and same were sent to GEQD for handwriting examination and it was found that all documents were false and fabricated one. The accused replied that he has no concern with 'Magna Impex.' He further stated that Mr. Vijay, brother of accused contacted him, who was staying near his house contacted him to fill the form regarding this visa, as his plea was that his brother was 10th pass. He further stated that from the sources he has come to know that after this incident, he again applied for German visa and he was previously deported from the same country and he again contacted him to fill this form for applying for visa for the same country and he has falsely implicated him. He further stated that he was falsely implicated and the witnesses who have deposed against him were interested witnesses. He declined to lead DE and hence, DE was closed and the matter was fixed for final arguments.
7. I have heard final arguments on behalf of parties and perused the record.
8. Before appreciating the evidence coming up on record, it will be relevant here to mention the Provisions for which the accused Manohar Lal has been charged.
FIR NO.: 97 of 1999 POLICE STATION: CHANAKAYA PURI U/S: 420/468/471/511 IPC 6 of 12 Section 420 IPC Provides:
Cheating and dishonestly inducing delivery of property: Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. Section 511 IPC Provides:
Punishment for attempting to commit offences punishable with imprisonment for life or other imprisonment.: Whoever attempts to commit an offence punishable by this Code with [imprisonment for life] or imprisonment, or to cause such an offence to be committed, and in such attempt does any act towards the commission of the offence, shall, where no express provision is made by this Code for the punishment of such attempt, be punished with [imprisonment of any description provided for the offence, for a term which may extend to onehalf of the imprisonment for life or, as the case may be, onehalf of the longest term of imprisonment provided for that offence], or with such fine as is provided for the offence, or with both.
9. The present FIR was registered on a complaint lodged by the complainant Mr. Jurgen Reinwarth, Police Liaison Officer in the Embassy of Germany dated 09.03.1999. In this complaint, it was alleged that the accused Sanjeev Kamboj has applied for a business visa to visit Germany. He alongwith his visa application had presented a telefaxinvitation allegedly sent by the German company FELO on 26.02.1999. The complainant has stated that the said telefaxmessage was a complete fake as he was told during a telephonic conversation with Ms. FeuBner, Secretary to the real Mr. Rottke after he had sent her the incriminated invitation by telefax. She stated that the signature's on FIR NO.: 97 of 1999 POLICE STATION: CHANAKAYA PURI U/S: 420/468/471/511 IPC 7 of 12 the alleged invitation were not the handwriting of Mr. Rottke.
Ms. FeuBner, Secretary submitted that she had contacted Mr. Rottke on his mobile phone, however, he stated that he does not know any company namely 'Magna Impex' in Jalandhar nor any Sanjeev Kamboj and Sanjeev Kamboj was not invited by him. The complainant further alleged that Mr. Sanjeev Kamboj was trying to fraudulently obtain a business visa for Germany and hence, the present complaint was filed. On the basis of this complaint, FIR in the present case was registered against accused Sanjeev Kamboj and after investigation's on the statement of accused Sanjeev Kamboj, accused Manohar Lal was also arrested in the present case. The accused Sanjeev Kamboj however pleaded guilty for the offences u/s 420/511 and 471 IPC on 31.07.2009 and he was convicted for the said offences and he was discharged for the offence u/s 468 IPC by my Ld. Predecessor.
Thereafter, the accused Manohar Lal has faced the entire trial for the offences u/s 420/511/34 IPC. The complainant in the present case was never examined by the prosecution despite ample opportunities for the same being given. The process was repeatedly sent through MEA/MHA, however, complainant remained unserved.
10. In the absence of the complainant hence original complaint filed on record remains unproved. The allegation that the alleged forged documents were presented by the present accused before the Embassy officials could not be proved in the absence of complainant. There is no linking evidence produced on record to connect the accused Manohar Lal with the alleged offences.
11. The genesis and origin of the prosecution case is hence, falsified and unreliable. In this regard, the following Judgements can also be relied upon:
(i) Nadeem Vs. State 2010 (4) JCC 2842 wherein it was held that it is well settled that non examination of the material witnesses adversely effects the case of the FIR NO.: 97 of 1999 POLICE STATION: CHANAKAYA PURI U/S: 420/468/471/511 IPC 8 of 12 prosecution and an inference is to be drawn against the prosecution for the same and in case no witness is available or could not be produced then the benefit is to be given to the accused only and not to the Prosecution.
(ii) Further, in Bhim Sen Vs State (NCT of Delhi) 2001 (60) DRJ 489, the Hon'ble High Court observed that despite ample opportunities if the prosecution fails to produce the material witnesses, it calls for an adverse inference against the prosecution case. Further, it is well settled law that non production of the material witness certainly introduced infirmity in the prosecution case. The omission on part of the prosecution to examine complainant is certainly serious and fatal to the case of the prosecution.
12. It was the complainant only who could have proved on record that the accused presented the alleged document before him for the purpose's of getting the visa for the co accused. Even the FSL result only showed that handwriting of accused Manohar Lal was matching with the handwriting on the visa application. The FSL result pertaining to the alleged forged documents does not support the case of the prosecution.
13. On perusal of testimony of all PWs, no evidence has come up on record to show that the alleged documents were forged and were used by the accused Manohar Lal for the purpose's of getting the visa for the co accused.
14. The prosecution hence has failed to lead any evidence to prove the commission of substantive offence of cheating by use of forged documents by the accused. There is no material on record to prove that the accused had forged or fabricated any documents and also to prove that he had knowledge of the fact that the coaccused Sanjeev Kamboj had submitted any forged documents in support of his application for obtaining visa for Germany.
FIR NO.: 97 of 1999 POLICE STATION: CHANAKAYA PURI U/S: 420/468/471/511 IPC 9 of 12
15. Ld. APP for State however has vehemently argued that though the prosecution has not been able to lead any direct evidence to prove the case against the accused however the co accused Sanjeev Kamboj for whose use, the alleged document's were forged has voluntarily pleaded guilty in respect of the involvement in the present case to cheat the complainant Embassy, hence, the prosecution has indirectly proved that the accused Manohar Lal who was facing trial was involved in the conspiracy to cheat the complainant Embassy.
16. Ld. Counsel for the accused however has also argued that the prosecution has not led any evidence to prove the substantive offence of cheating by use of forged document's by the accused Manohar Lal and there is no material available on record to prove that the accused has forged or fabricated any document or to prove that the accused had knowledge of the fact that the co accused Sanjeev Kamboj has submitted any forged document in support of his application. He further argued that the prosecution cannot take the plea that the conspiracy to cheat has been proved against the accused facing trial merely on the ground that the co accused has admitted to have committed the abovementioned offences. In my considered view, although, conspiracies are hatched in dark and it is difficult for the prosecution to prove the same by leading direct evidence yet there should be sufficient indirect or substantive evidence to prove that an accused person had entered into a criminal conspiracy with other person by agreeing to do the same act at the same time. On perusal of the provision u/s 120 A IPC, it is evident that a criminal conspiracy is an agreement between two or more persons to do an illegal act or commit an act which is not illegal in itself but is committed by illegal means. Hence, in order to prove the offence of criminal conspiracy, the prosecution is required to prove that there was a meeting of minds between the accused persons who were a party to the conspiracy in question and the accused persons had agreed to do the same act at the same time.
FIR NO.: 97 of 1999 POLICE STATION: CHANAKAYA PURI U/S: 420/468/471/511 IPC 10 of 12
17. In the present case as already observed, the prosecution has failed to examine the complainant. The genesis and origin of the prosecution case is hence falsified. Even the FSL result produced on record does not support the case of the prosecution against the accused Manohar Lal. There is no evidence coming up on record to show that the alleged document's were forged and used by the accused Manohar Lal for procuring visa from the complainant Embassy for the co accused Sanjeev Kamboj. In these circumstances, hence, the argument advanced by Ld. Prosecutor regarding the indirect involvement of the accused cannot be sustained. In this regard, I rely upon the following Judgments also:
(a) The Hon'ble High Court of Gujrat in case of Kavit Vs. State of Gujrat High Court, while acquitting the accused persons had observed that to prove the commission of offence of criminal conspiracy the prosecution was required to prove that there was a meeting of minds between the conspirators to do an illegal act and mere fact that they had made a confession or disclosure wherein they had allegedly confessed that they had entered into a criminal conspiracy to procure counterfeit currency notes was not sufficient to establish a charge.
It was further observed that "to prove the criminal conspiracy, the prosecution must establish that there was meeting of minds between two persons to do an unlawful act. It is very difficult to get direct evidence to prove criminal conspiracy and it can be proved only by circumstantial evidence. However, it is not sufficient in order to convict a person under this section, merely to prove that he had been associating with the other accused at a certain place and on his arrest endeavoured to extricate himself from being accused of some thing connected with the conspiracy; and the prosecution cannot complete what is necessary in order to show that he was a person who concerted with others by proving that he was friendly with the other accused and was anxious to escape observation or even was doing his best to conceal his whereabouts. In cases of FIR NO.: 97 of 1999 POLICE STATION: CHANAKAYA PURI U/S: 420/468/471/511 IPC 11 of 12 conspiracy, the agreement between the conspirators cannot generally be directly proved, but only inferred from the established facts in the case. A conspiracy need not be established by evidence of an actual agreement between the conspirators and overt acts raise a presumption of an agreement and knowledge of the purpose of the conspiracy. The connection has to be established with the conspiracy and not with the separate acts of different conspirators which are the overt acts of the different individuals in proof of the conspiracy. Overt acts may properly be looked at as evidence of the existence of a concerted intention and in many cases it is only by means of overt acts that the existence of the conspiracy can be made out. But the criminality of the conspiracy is independent of the criminality of the overt act. To prove conspiracy it is not necessary that there should be direct communication between each conspirer and every other but the criminal design alleged must be common to all."
18. In view of the aforesaid, the argument advanced by Ld. APP cannot be sustained. The prosecution has pitted only the circumstances of plea of guilt of co accused which cannot be made basis for the conviction of the accused Manohar Lal for commission of offences u/s 420 IPC r/w 511 IPC and 34 IPC.
19. Hence, the prosecution has failed to prove its case against the accused Manohar Lal beyond reasonable doubt's and rather all the circumstances of the case put forward by the prosecution are more compatible with a hypothesis of innocence of the accused Manohar Lal. Accused Manohar Lal hence stands acquitted for want of sufficient incriminating evidence against him.
(ANNOUNCED IN THE OPEN SUDESH KUMAR COURT ON 17th October, 2012 ) METROPOLITAN MAGISTRATE This Judgment contains 12 pages NEW DELHI DISTRICT and each paper is signed by me. PATIALA HOUSE COURTS,DELHI FIR NO.: 97 of 1999 POLICE STATION: CHANAKAYA PURI U/S: 420/468/471/511 IPC 12 of 12