Delhi District Court
Sc No. 5/2020 State vs . Pawan Singh on 23 November, 2022
SC No. 5/2020 State Vs. Pawan Singh
IN THE COURT OF SH. GAUTAM MANAN, ASJ-02
SOUTH WEST, DWARKA ,NEW DELHI
23.11.2022
ORDER ON CHARGE
1.By present order I will decide the question of framing of charge against the accused Pawan Singh Yadav in case titled as "State Vs. Pawan Singh" bearing FIR No. 89/2020 PS Dwarka South.
2. FIR in present case was registered on a hand written complaint filed by complainant which reads as under:
To The In-charge of police post Dwarka Court Delhi Police Dwarka District, New Delhi U/s 154 CrPC on behalf of ........against Shri Pawan Singh S/o Shri Om Prakash R/o A-98 Naveen Palace Kali Piaon, Jharoda Road, Najafgarh New Delhi-110043 for Lodging Of FIR U/s 3(2)(1)(II) of Scheduled Casts and Schedule Tribes (Prevention of Atricoties) Act 1989 read With Section 193 Of IPC "Respected Sir I under signed I am the complainant and also intimating you that above named accused Shri Pawan Singh has submitted a fraudulent complaint under Section 138 NI Act and also deposed off falsely before Hone'ble Court of Shri Puneet Nagpal, MM now handled by Shri Harjeet Singh Jaspal MM Dwarka while submitting the fraudulent affidavit by wrong of evidence and also disposed of falsely as the accused has sent a legal notice at complainant's residence vide quoted wrong name Rajkumar bajaj instead of Ram Kanwar Bajaj vide registered. Legal notice AD No. RD 3527-4345In on dated 16.09.2015 which was returned undelivered vide India Post Tracking Report on 23.09.2015. The Order on Charge Page 1 of 11 SC No. 5/2020 State Vs. Pawan Singh accused has submitted acknowledgment card after forging the signatures of the complainant in the above Court as an evidence the accused has committed forgery and disposed of falsely. As per record the said legal notice was sent back to the sender vide by hand and the said legal notice was not delivered to the complainant arising circumstances said legal notice was never revived by the applicant /complainant and fraud has been committed by accused Pawan Singh now the applicant has been requesting you, please lodge an FIR U/s 3(2)(1)(ii) SC ST Act and Section 139 IPC. The applicant is further intimating you that applicant/ complainant belongs to Scheduled Caste community and the accused is well known by the cast of the Complainant as he has deployed security guard in the Sh Keshav Kunj Appt., Pocket D Sec-17 Dwarka and the accused is the owner of Security Firm Name M/s Satyam Security Firm Regd.
Prayer it is humbly prayed for that an FIR U/s 3(2) (1) (II) SC ST Act 1989 and Section 139 IPC may be registered against the accused and further prayed for that a copy of FIR may be issued to the applicant/ complainant without any delay urgently."
3. During investigations of the case Caste Certificate of the complainant was obtained and verified as per which complainant belongs to Scheduled Caste. It also came on the record that in 2014, complainant was President of RWA of Shree Keshav Kunj Apartment and accused provided security service in the RWA. Witnesses Ashish Kumar, Bhuvan Chandra and Pancham Singh were examined and their statements were recorded U/s 161 Cr.PC.
Order on Charge Page 2 of 11SC No. 5/2020 State Vs. Pawan Singh
4. On the basis of allegations in the complaint, Section 193 Cr.PC. was added. It also came during investigation that in 2014 during some months, payment of Security Agency run by accused could not be made and the complainant then gave a cheque to accused Pawan Singh for which a complaint case U/s 138 N.I. Act was filed on behalf of accused.
5. After investigations charge-sheet has been filed against accused for the offence punishable U/s 3(1)(p)(q) and U/s 3(2)(ii) Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 and U/s 193 IPC.
Provisions of Section 3(1)(p)(q) of the Scheduled Tribes (Prevention of Atrocities) Act, are as under:
6. Section 3(1)(p) of Schedule Caste and Schedule Tribes (Prevention of Atrocities) Act, 1989 lays down that whoever, not being a member of scheduled caste or scheduled tribe, institutes false, malicious or vexatious suit or criminal or other legal proceedings against a member of a scheduled caste or a scheduled tribe shall be liable for punishment under the Act.
Section 3(1)(q) of the Act lays down that whoever, not being a member of scheduled caste or scheduled tribe, gives any false or frivolous information to any public servant and thereby causes such public servant to use his lawful power to the injury or annoyance of a member of a scheduled caste or a scheduled tribe shall be liable for punishment, Section 193 IPC punishes a person for giving or fabricating false evidence in judicial proceedings.
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7. Entire case of the complainant is that accused filed a case against him U/s 138 N.I. Act, titled as "Pawan Singh Vs Raj Kumar Bajaj" bearing CC No. 4990891/16 and in the said case, complainant stands acquitted vide judgment dated 05.01.2019. Complainant alleged that the said case was instituted by accused on false and malicious grounds being aware that complainant belongs to Schedule Caste community and during proceedings of the said case, accused forged signatures of complainant on a AD card.
8. Complainant has not disputed that he gave a cheque to the accused on the basis of which the complaint U/s 138 NI Act was filed. In this regard, statement of complainant dated 16.03.2021 was recorded U/s 161 Cr.P.C. Relevant part of statement of complainant reads as follows:
".....ASI on the advice of SHO said for settlement for which me and Pawan Singh agreed. Then I was asked to give a cheque as a security. On 27.04.2014, election was due for this reason RWA Bank Account was freeze and cheque could not be given. Then I gave a cheque from my personal account which was used by Pawan Singh in case under NI Act. By forging my signatures, he gave a false affidavit in the Court. I have been acquitted in that case."Order on Charge Page 4 of 11
SC No. 5/2020 State Vs. Pawan Singh
9. Above statement of complainant leaves no doubt that he gave a cheque to accused. It is another matter that the version of accused in the case U/s 138 NI Act was not believed.
Nonetheless, the judgment dated 05.01.2019, in the said case mentions that the accused was granted benefit of doubt and the accused was able to rebut presumption U/s 118 and 139 of NI Act and thus, the complainant was acquitted.
10. It is matter of record in the said case, complainant did not take a plea that the case was filed against him as the member of Scheduled Caste rather facts of the case shows that case was filed on the premise that a cheque was given by the complainant to the accused. Accused was cross-examined by the complainant in case under Section 138 NI Act and no suggestion was put to him that he filed case against complainant considering his caste or that accused was aware of the fact that complainant was a scheduled caste.
11. There is another facet to the case as well. Though accused during his cross-examination admits that he was Order on Charge Page 5 of 11 SC No. 5/2020 State Vs. Pawan Singh knowing complainant personally but there is no admission that accused was aware of the caste of complainant. Complainant in his name mentions his caste as "Bajaj'. In northern part of India members of "Bajaj' caste is commonly not associated with members belonging to Scheduled Caste nor there is any evidence on record that accused was aware that complainant belongs to scheduled caste.
12. Nonetheless, there is no finding in the judgment rendered in 138 NI Act case that complaint instituted by accused was false, malicious or vexatious nor there is any finding of the Court that accused gave any false information to the Court.
Hence, there is no ground to proceed against accused for the offence U/s 3(1)(p)(q) SC/ST Act.
13. Complainant has further alleged that accused gave false evidence before Trial Court and gave false evidence in judicial proceedings. In this regard, prosecution has invoked Section 3(2)(ii) Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 and U/s 193 IPC. Section 3(2)(ii) SC/ST Act lays down that if a person gives or fabricate false evidence with intent to cause or knowing that to be likely that it Order on Charge Page 6 of 11 SC No. 5/2020 State Vs. Pawan Singh will cause any member of a Scheduled Caste to be convicted of an offence, then he can be punished for such an offence.
14. As stated above, there is no finding of the Trial Court that accused gave any false and fabricated evidence nor there is any evidence on record which establishes that accused was aware of the caste of complainant, thus, the ingredients to establish offence under Section 3(2)(ii) are not met in this case.
15. Accused has also been charge-sheeted for the offence punishable U/s 193 IPC. Now, it will be useful to look to the scope of Section 193 IPC as well as Section 344 of the Criminal Procedure Code. Section 193 IPC reads as under:
"Punishment for false evidence--Whoever intentionally gives false evidence in any stage of a judicial proceeding, or fabricates false evidence for the purpose of being used in any stage of a judicial proceeding, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine; and whoever intentionally gives or fabricates false evidence in any other case, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine."
Section 344 of the Cr.PC reads as under:
16."Summary procedure for trial for giving false evidence.--(1) If, at the time of delivery of any judgment or final order disposing of any judicial Order on Charge Page 7 of 11 SC No. 5/2020 State Vs. Pawan Singh proceedings, a Court of Session or Magistrate of the first class expresses an opinion to the effect that any witness appearing in such proceeding had knowingly or wilfully given false evidence or had fabricated false evidence with the intention that such evidence should be used in such proceeding, it or he may, if satisfied that it is necessary and expedient in the interest of justice that the witness should be tried summarily for giving or fabricating, as the case may be, false evidence, take cognizance of the offence and may, after giving the offender a reasonable opportunity of showing cause why he should not be punished for such offence, try such offender summarily and sentence him to imprisonment for a term which may extend to three months, or to fine which may extend to five hundred rupees, or with both.
(2) In every such case the Court shall follow, as nearly as may be practicable, the procedure prescribed for summary trial.
(3) Nothing in this section shall affect the power of the Court to make a complaint under Section 340 for the offence, where it does not choose to proceed under this section.
Where, after any action is initiated under sub- section(1), it is made to appear to the Court of Session or Magistrate of the first class that an appeal or an application for revision has been preferred or filed against the judgment or order in which the opinion referred to in that sub-section has been expressed, it or he shall stay further proceedings of the trial until the disposal of the appeal or the application for revision, as the case may be, and thereupon the further proceedings of the trial shall abide by the results of the appeal or application for revision."
17. To satisfy the ingredients of Section 344, Criminal Procedure Code, it is necessary that before any proceedings can be initiated Order on Charge Page 8 of 11 SC No. 5/2020 State Vs. Pawan Singh against a person, the Court must give a finding that there was false and forged evidence brought before it.
18. In Balbir Singh v. State 1976 Cr.LJ. 1784 it was held that to prosecute a witness for perjury under Section 479 A, Criminal Procedure Code, the court must record its opinion whether the witness had acted intentionally, and secondly--it must also identify and determine the stage of judicial proceeding in which the witness committed it. It was held that the Trial Judge must record a judicial opinion on the question whether the statement made by the witness before the Magistrate was false or the statement made during the trial of the case was false, and in case no such opinion has been recorded by the Trial Judge, it will not be expedient in the interest of justice that there should be prosecution of the witness.
19. In the present case, no finding has been recorded by Trial Court that accused was guilty of forging any record or giving false evidence nor any complaint has been filed by Ld Trial Court in this regard. Hence, there is no ground to proceed against accused for offence punishable under Section 193 Cr.P.C as well.
20. In the case of Sajjan Kumar vs. CBI (2010) 9 SCC 368, Hon'ble Apex Court on consideration of the various decisions about the scope of Sections 227 and 228 of the Code, laid down the following principles:
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(i) The Judge while considering the question of framing the charges under Section 227 of the Cr.P.C. has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. The test to determine prima facie case would depend upon the facts of each case.
ii) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained, the Court will be fully justified in framing a charge and proceeding with the trial.
iii) The Court cannot act merely as a Post Office or a mouthpiece of the prosecution but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities, etc. However, at this stage, there cannot be a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.
iv) If on the basis of the material on record, the Court could form an opinion that the accused might have committed offence, it can frame the charge, though for conviction the conclusion is required to be proved beyond reasonable doubt that the accused has committed the offence.
v) At the time of framing of the charges, the probative value of the material on record cannot be gone into but before framing a charge the Court must apply its judicial mind on the material placed on record and must be satisfied that the commission of offence by the accused was possible.
vi) At the stage of Sections227 and 228, the Court is required to evaluate the material and documents on record with a view to find out if the facts emerging therefrom taken at their face value discloses the existence of all the ingredients constituting the alleged offence. For this limited purpose, sift the evidence as it cannot be expected Order on Charge Page 10 of 11 SC No. 5/2020 State Vs. Pawan Singh even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case.
vii) If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial Judge will be empowered to discharge the accused and at this stage, he is not to see whether the trial will end in conviction or acquittal.
21. In the light of aforesaid discussions, it is evident that there is no material on record which gives rise to grave suspicion that accused has committed the offences for which he has been charge-
sheeted. Accordingly, accused Pawan Singh stands discharged.
Accused is directed to furnish a bond U/s 437-A Cr. P.C. in the sum of Rs. 10,000/- with one surety in the like amount within one week from today.
File be consigned to Record Room.
Announced in the open court on 23rd day of November, 2022.
Digitally signedGAUTAM by GAUTAM MANAN MANAN Date: 2022.11.23 16:12:55 +0530 (GAUTAM MANAN) ASJ-02 /SOUTH WEST DWARKA: DELHI Order on Charge Page 11 of 11