Delhi District Court
State vs . Irshad Akhtar on 15 March, 2011
1 FIR No.349/99
PS: Ambedkar Nagar
IN THE COURT OF SH. SAMAR VISHAL, METROPOLITAN MAGISTRATE05,
SOUTHEAST DISTRICT, NEW DELHI
STATE VS. Irshad Akhtar
FIR NO: 349/99
P. S. Ambedkar Nagar
U/s 420 IPC
JUDGMENT
Sl. No. of the case and : 1102/2 (01.02.11) Date of its institution : 16.8.00 Name of the complainant : Azhar Hussain Date of Commission of offence : March 1999 Name of the accused : Irshad Akhtar Offence complained of : Section 420 IPC Plea of accused : Not Guilty Case reserved for orders : 14.2.2011 Date of Judgment : 15.03.2011 Final Order : CONVICTED BRIEF STATEMENT OF FACTS FOR THE DECISION: 2 FIR No.349/99 PS: Ambedkar Nagar
This is the prosecution of the accused Irshad Akthar upon a charge sheet filed by the police station Ambedkar Nagar u/s 420 IPC.
This criminal trial started upon the complainant of the complainant Azhar Hussain who has complained that he while having the exams of his daughter in the month of March 1999 and for that purpose he had gone to DTEA, Senior Secondary School, Laxmi Bai Nagar. There he met with one Irshad Akhtar, accused in the present case who had also came there for the examination of his daughter. Both of them were outside the school and were started taking to each other and Irshad Akhtar introduced him as an employee of the Embassy of Saudi Arabia and told that he as a matter of charity can send the complainant to Saudi Arabia and started insisting that the complainant will not get this opportunity to go to Saudi Arabia and earn handsome salary in future. He started inducing him with these words and said that the total expenditure of going to Saudi Arabia and getting a work will be around 27,000/. He gave the address of his house and phone number and mobile number and assured that he is a genuine person. He cautioned the complainant not to tell anyone that he can send him to Saudi Arabia as that will risk him with his job. After the exam of his daughter, the complainant came to his house and discussed with his relatives and later on he along with his relatives went to the house of the accused. There again, the accused Irshad Akhtar introduced them as the viza officer in Saudi Arabia Embassy and told them that without his approach nobody can get viza to Saudi Arabia. He started inducing the complainant and his relatives in the name of religion by showing that he is a muslim and want to help the muslims. He said that he has taken this risk so that his poor muslim brothers will be benefited from him and for him it will be a matter of charity. He also told that he is getting the mosque and madarasa constructed where the poor children will be given education and all of them will 3 FIR No.349/99 PS: Ambedkar Nagar have to contribute Rs.5,000/ when they will return after earning money from Saudi Arabia. He further induced that he has met with an accident and his life was saved when he was treated in Moolchand Hospital and now since his life has been saved, he has become more charitable and always tried to help the muslim brothers. He showed them his car Contessa DBG 1753 and told him that the car was given to him by Saudi Arabia Embassy and introduced his driver to them as Shyam. Seeing all these pomp and show and being induced by the big dreams shown by the accused, all of them caught in his trap and gave him money and some of them even their passports to him for getting service in Saudi Arabia. Later on when he told them that they will get the job of Electrician Helper and earn 1,310 reyal per month and free accommodation and when they refused he started making excuses on one pretext or another and ultimately refused to return back his money and thereby cheated them. In this way, it is alleged that he has cheated the following persons;
1. Mohd. Ifhtkhar, S/o Mohd. Abbas Rs. 26,450/
2. Mohd. Minnatullah, S/o Mohd. Noorjaan Rs.27,000/
3. Mohd. Shamim, D/o Mohd. Sagir Rs. 27,000/
4. Mohd. Taukir, S/o Mohd. Sagirul Hassan Rs.27,000/
5. Mohd. Rehmatullah, S/o Mohd. Shoaib Rs.7,500/
6. Mohd. Neyaz, S/o Waziur Rehmaan Rs.27,000/
7. Mohd. Tanveer, S/o Badrul Haq Rs.27,000/
8. Mohd. Shahabuddin, S/o Mohd. Naseer Ahmed Rs.27,000/
9. Mohd. Shokatullah, S/o Abdul Kayum Rs.26,400/
10. Mohd. Mukhtarul Haq, S/o Late Sh. Alimuddin Rs.5,000/
11. Abdul Kalam, S/o Abdul Mazid Rs.39,860/
12. Mohd. Shahid Hussain, S/o Mumtaz Ahmed Rs.39,860/ 4 FIR No.349/99 PS: Ambedkar Nagar After completing the formalities, the investigation was carried out by PS Ambedkar Nagar and a charge sheet was filed by the investigating officer indicting the accused u/s 420 IPC. The charge was framed against the accused u/ s 420 IPC to which he pleaded not guilty and claimed trial.
The trial started on framing of charge and to prove its case, prosecution examined as many as eleven witnesses.
PW 1 is ASI Karan Singh who was the duty officer of this case and proved the FIR as Ex.PW1/A upon a rukka as Ex.PW1/B. PW 2 is Mohd. Shamim who deposed that on 15.7.99 he was staying in Jama Maszid and doing some ready made garments selling business. One of his friend Azar Hussain met him and informed him that the accused Irshad Akhtar is working in Saudi Arabia Ambassy and can sent him abroad. As he was also interested in going abroad, he along with Azhar and 10/12 persons namely Mohd. Rehmatullah, Mohd. Tauquir, Minatullah, Mohd. Kalam, Shabuddin Arshey and others name he do not remember had met Irshad Akhtar at Madangir at H.No. B173/1. Accused had asked them to send Saudi Arabia and he demanded Rs. 27,000/ on 15.5.99 and then accused requested them to come next week and they kept on coming every week and used to meet the accused but he used to assure them that he would send them abroad soon. After about five weeks when they were not sent they started demanding their money. He requested for return of his money which accused did not return and kept on promising that viza would be ready in few days. He had handed over his passport to accused. The accused has not returned his passport and the money despite repeated request.
PW 3 is Mohd. Rehmatullah who deposed that on 26.5.99 he had met accused Irshad identified by him in the Court along with Azhar as their children were studying together. He 5 FIR No.349/99 PS: Ambedkar Nagar paid Rs.7,500/ to the accused Irshad Akhtar for going to Saudi Arabia but acused has asked for Rs.27,000/. 10/12 persons were with them namely Azhar, Taukir, Iftikhar , Tanveer, Kalam, Nisar, Shahid. The payment was made to the accused at India gate. He did not have the passport at that time but the accused had told him that he being visa officer, he will get his passport also. He was called after one week but thereafter, on one pretext or the other, he was sent back without sending abroad. When he could not send him abroad, he demanded his money but the same was not returned to him till date nor have been sent up abroad. Later on he came to know in the maszid that Irshad Akhtar is a fraud person and he is not working in any embassy.
PW 3 Shahbuddin Arsi deposed that in the month of March 1999, he used to sell ready made garments on the footpath of Jama Masjid. During those days one of his friend Azhar Hussain told him that one Irshad Akhtar send Indian Muslim to Saudi Arabia after arranging viza. On this he along with the said Azhar Hussain had gone to the house of accused at B1/371, Madangir whereon accused identified by him in the Court met them. He talked to him regarding sending him to Saudi Arabia. Accused told him that he would have to spent Rs. 27,000/ for going to Saudi Arabia with the assurance that he would also arranged the viza for the said purpose. Having been induced by the accused he somehow arranged Rs.27,000/ and handed it over to the accused on 26.5.99 in the presence of Azhar Hussain. After receiving money accused told him to contact him after a week to collect the viza. When he again contacted him after the said period, he again assured him that he would take one more week for the said purpose. He visited him ¾ times, probably he had lastly contacted him in the month of June 99 and at this time he requested him to return back the money but he blatantly refused to return it back. Police had recorded his statement. Accused had not issued any receipt in respect of the said money.
6 FIR No.349/99
PS: Ambedkar Nagar PW 4 Abdul Kalam deposed that in month of March 99,he used to sell the articles at near Jama Masjid Patri, his friend Azhar Hussain stated that one person namely Irshad Akhtar sent muslim candidates to Saudi Arabia. He stated that in sum of Rs.27,000/ he could also be sent to Saudi Arabia after obtaining the viza. He had taken guarantee after obtaining viza. On that day he made payment of Rs.5,000/ along with passport to him for obtaining viza. He directed them to come after one week along with rest of the amount. Next week they visited his house and made payments of Rs.22,000/. After receiving this amount, he assured them that he will arrange the viza on the next week. He also arranged the money and total Rs. 39,800/ were given to the accused. Payment was made through his friend Azhar. When accused did not arrange the working viza, he requested him to return his money and passport but he did not return the same.
PW 5 Mukhtiar Ul Haq deposed that in month of March 99, he used to sell the articles near Jama Masjid Patri, his friend Azhar Hussain stated that one person namely Irshad Akhtar sent muslim candidates to Saudi Arabia. He stated that in sum of Rs.30,000/ he could be sent to Saudi Arabia after obtaining the viza. He had taken guarantee after obtaining viza. On that day he made payment of Rs.5,000/ along with passport to him for obtaining viza. He directed them to come after one week along with rest of the amount. Next week they visited his house and made payment a sum of Rs.5,000/. After receiving this amount, he assured them that he will arrange the viza in the next week. When he did not arranged the working viza, he requested him to return his money and passport but he did not return the same.
PW 6 Mohd. Minnatullah deposed that in the year 99, he was holding a shop on a footpath at Jama Masjid. In the month of March 99, he met accused Irshad Akhtar identified in the court as the accused in the present case, through one Iftikhar who was from his native 7 FIR No.349/99 PS: Ambedkar Nagar place, and was also running a shop at Jama Masjid and his friend Azhar Hussain. They also told him that accused was doing the work of sending manpower to Saudi Arabia. Accordingly a meeting was arranged and he alongwith the said Iftikhar and 4/5 other persons had gone to B1/371, Madangir, new Delhi whereon accused himself introduced as a viza officer of Saudi Arabia. He had also showed him an identity card having photographs. When he asked about the expenditure to be incurred on the said account, accused demanded him Rs.27,000/. Having been induced by the accused, he arranged Rs.27,000/ and handed over the accused after 2/3 days from the said date at his house in the presence of Azhar Hussain and 5/6 other persons who also wanted to get viza for Saudi Arabia. Out of this amount he had arranged Rs.12,000/ from his sole earning and rest of the amount he had arranged after taking loan from his different acquaintance. But the accused neither sent his abroad neither returned back his money.
PW 7 is Mohd. Iftikhar who deposed that in the month of March, 99, he was holding a shop of fabric at the pavement of Jama Masjid. One of his friend Azhar Hussain told him that he had one friend namely Irshad Akhtar who was stated to have been doing the work of sending manpower to Saudi Arab after arranging viza. He also told him that he has been given a Contessa Car by the embassy of Saudi Arabia wherein he was stated to be working as viza officer. When he asked him about the expenditure to be incurred for the said purpose , he demanded him Rs.27,000/. He arranged Rs.27,000/ and handed it over to the accused on 26.5.99 at the house of the accused in the presence of Azhar Hussain and one person Minatullah who is from his native place alongwith 6 other persons who also wanted viza for Saudi Arabia and were present at the house of the accused. But the accused neither sent him abroad neither returned back his money.
PW 8 Ranvir Alam has deposed that in the month of March, 1999 he was selling cut 8 FIR No.349/99 PS: Ambedkar Nagar pieces of cloth on the pavement of Jama Masjid. One Iftikhar and Minnatullah were also holding their shops at the said address. One Azhar Hussain who was their friend told him about the accused and stated that he could arrange a viza for Saudi Arabia. He demanded Rs.27,000/ for arranging viza for sending Saudi Arab to him. He handed over Rs.27,000/ to the accused and his passport with the assurance that he would arrange a viza within 8/10 days. But the accused neither sent his abroad neither returned back his money.
PW 9 Mohd. Tauqir has deposed that in the month of March, 1999 he was selling cut pieces of cloth on the pavement of Jama Masjid. One Iftikhar and Minnatullah also holding their shops at the said address. One Azhar Hussain who was their friend told him about the accused and stated that he could arrange a viza for Saudi Arabia. He demanded Rs. 27,000/ for arranging viza for sending Saudi Arab to him. He handed over Rs.27,000/ to the accused and his passport with the assurance that he would arrange a viza within 8/10 days. But the accused neither sent him abroad neither returned back his money.
PW 10 is the complainant Azhar Hussain who deposed that he had gone with his daughter as she was to give her board exam at TTA Secondary School, Laxmi Bai Nagar where he had met with Irshad Akhtar ie. Accused. Accused told him that he is the viza officer at Saudi Arabia Embassy. Accused had asked about Rs.27,500/ for arranging the visa. He had also given him his address. He along with his relative had gone to the house of the accused. Accused had shown his card and had told that he was having only one card at that time. Accused had further told him to give Rs.5,000/ on returning back from Saudi Arabia for the purpose of Madarsa. Accused had told that after the accident he is doing the welfare for the muslim community. Accused had given time for meeting prior to 8.00 O' Clock in the morning or after 6 pm. Accused had also shown the vehicle bearing no. DBG 1753. Rs. 39,860/ approximately was given to the accused for sending his nephew Sahid Hussain and 9 FIR No.349/99 PS: Ambedkar Nagar Abdul Kalam but they were not sent to Saudi Arabia. And when they asked for passport or money back accused avoided the same. Thereafter he had given a complaint to the police Ex.PW10/A which bears his signatures at point A. List of relatives with money was also given to the police which is Ex.PW10/B. PW 11 is SI Anuj Aggarwal who deposed on 30.6.99 he was posted at PS Ambedkar Nagar. Investigation of the case was marked to him and a complaint Ex.PW10/A along with Ex.PW10/B was also handed over to him. He arrested the accused who was identified by the complainant. Personal search memo is Ex.PW10/C. Disclosure statement of accused is Ex.PW11/A. Accused produced before the Court and three days police remand was taken from the Court but no recovery could be effected from the accused. His supplementary disclosure statement Ex.PW11/B was also recorded. During investigation he had recorded the statement of witnesses.
After the prosecution evidence was recorded, the accused was examined u/s 313 Cr.PC and all the incriminating evidences were put to them as required by the provisions of that section to which he replied that he was innocent and has been falsely implicated in this case.
On one hand Ld. APP has argued that the persons who were cheated by the accused had categorically deposed in the Court about the manner in which the cheating took place. There is nothing in their cross examination which can impeach their credit or which can disregard their testimony. The overall evidence lead by the prosecution in this case is sufficient to convict the accused for offence u/s 420 IPC.
On the other hand, it has been argued by the counsel for defence that all the witnesses are related to each other which is clear from the testimony and the complaint of the complainant. There is no documentary evidence to show that the money was given to the 10 FIR No.349/99 PS: Ambedkar Nagar accused. There is no recovery of Contessa Car or any other thing which can show that the accused is induced by showing those articles to the cheated persons that he was an employee of Saudi Arabia Embassy and can send them to Saudi Arabia.
I have heard counsel for both the parties and perused the records of the case. Before proceeding to analyse the evidence in the present case, I must at the outset clearly mention that the whole case of the prosecution is based on the oral testimonies of the witnesses who are cheated in the present case. The contention of defence counsel that there is no documentary evidence in the nature of receipt etc to prove that the complainant and other persons have paid the money to the accused and consequently cheated is not tenable because it is not the case of the prosecution that the payment of the money was under some acknowledgment. When any documentary evidence do not exist, its non production does not create any adverse impact. The victims were hawkers and street venders. They probably might not have thought that they might be cheated and in trust they have given the money orally. It is clearly deposed by PW3 that accused has not issued any receipt of the said money On the record it is a worthless argument. The payment of money is evidence not from some paper but from the inducement and trust which the victims of the present case reposed in accused and is proved by oral evidence.
Now I come to oral evidence lead in this case. As per complainants case the total number of people cheated by the accused are 12. Out of these nine has graced the witness box to prove that they are cheated by the accused.
The manner of cheating has already been referred to above as that the accused took some money from these persons by misrepresenting that he is employed in Embassy of Saudi Arabia and will help their immigration to Saudi Arabia. But even after taking money these persons are neither sent to Saudi Arabia, nor it was found that he was working in Saudi 11 FIR No.349/99 PS: Ambedkar Nagar Arabia Embassy nor their money returned back.
The complaint was lodged by Mohd. Azhar Hussain has deposed in Court as PW 10. He deposed categorically how the accused induced him to part with his money on the pretext that he will sent him to Saudi Arabia as he was working in Saudi Arabia Embassy. He deposed that how he showed his identity card and he showed his Contessa car alleging that it is provided by embassy.
To corroborate this testimony PW 2 Mohd. Shamim, PW Mohd. Rehmatullah, PW 3 Shahabuddin, PW 4 Abdul Kalam, PW 5 Mukhtiar ul Haq, PW 6 Mohd. Minatullah, PW 7 Mohd. Iftikhar, PW 8 Tanvir Alam, PW 9 Mohd Taukir has deposed in court. All these persons are those who came into inducement and influence of the accused and parted/delivered their hard earned money to the accused in the hope of going to Saudi Arabia for employment and better life. There is nothing in their testimony to impeach their credibility or disbelieve their version. They all have given the money themselves to the accused except one or two who give money through the complainant. In view of these corroborative pieces of evidence, I find the edifice of prosecution very strong, without any visible dent in it.
The testimonies of all the nine witnesses who are the victims of misdemeanor of the accused has corroborated that of each other. It is a settled law and well accepted principle of law that conviction can be based on the sole testimony unless there are compelling reasons for seeking corroboration. The Court has to believe the testimony of natural witnesses. On the careful consideration of the evidence of the eye witnesses/victims of cheating, I do not see any reason at all for rejecting or disbelieving their testimony. On reading the testimony of eye witnesses/victims, I am satisfied that they are telling the truth.
In the present case the number of persons cheated were 13 out of which only 9 are examined. But does this effect the prosecution case. The answer is no. It is not necessary 12 FIR No.349/99 PS: Ambedkar Nagar that in all cases all the witnesses acquainted with the facts and circumstances of the case should be examined, that too on same points and to prove the same thing. Mere non examination of some eye witnesses/victims does not impair the prosecution case when the other witnesses are examined fully in support of prosecution case.
In this examination under section 313 Cr.PC, the accused has said that the documents are false and fabricated and he has been falsely implicated in the present case. As the prosecution story suggests the complainant and the accused even do not know each other and came into contact with each other during the examination of their children when they were standing outside the school. No other reason for their acquaintance with each other has been shown except that the accused induced him to send abroad for work. Therefore, any motive of false implication of the accused is ruled out and neither proved by accused in the present case The next question that comes for consideration is that weather the offence of cheating is made out in the present case or not. Section 415 of the Indian Penal Code reads thus :
"Section 415 Cheating Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat".
Explanation, A dishonest concealment of facts is a deception within the meaning of this section."
13 FIR No.349/99
PS: Ambedkar Nagar Section 415 of the Indian Penal Code is required to be read with the definition of the expression `dishonestly' as contained in Section 24 thereof in terms whereof something must be done with an intention of causing wrongful gain to one person or wrongful loss to another.
The question which arises for consideration is as to whether a case of cheating within the meaning of Section 415 of the Indian Penal Code has been made out or not.
11. Ingredients of cheating are :
(i) deception of a person either by making a false or misleading representation or by other action or omission; and
(ii) fraudulent or dishonest inducement of that person to either deliver any property to any person or to consent to the retention thereof by any person or to intentionally induce that person to do or omit to do anything which he would not do or omit if he were not so deceived and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property.
In the present case deception by fraudulent inducement by the accused is proved. The delivery of property by the victims of the offence , at least by those who have deposed in court have been proved. His misrepresentation was that he was working in Saudi Arabia Embassy which came out to be false. They have given the money in the belief that they will be sent to Saudi Arabia for employment but neither they were sent not their money returned, which proves wrongful loss to them and wrongful gain to the accused. Therefore the offence of cheating as defined under section 415 and punishable under section 420 IPC is clearly made out in the present case 14 FIR No.349/99 PS: Ambedkar Nagar The accused has cheated the innocent persons in this case by showing them lucrative dreams of better employment which turned out to be mirage and snatched their hard earned meager incomes. All those cheated persons were petty hawkers and people belonging to lower strata. These voiceless humble human beings when they have raised their voice, it should not went unheard. It is not hard to comprehend how they might have arranged that money and the extent of their suffering when they are openly cheated in the name of religion and deceptive dreams.
The act of accused is not pardonable. Offence of cheating has been proved against him and therefore, he is convicted of offence u/s 420 IPC.
Announced in the open court (Samar Vishal)
on 15 March, 2011 Metropolitan Magistrate05,
th
South East, New Delhi
15 FIR No.349/99
PS: Ambedkar Nagar
FIR No. 349/99
P.S. Amb. Nagar
15.03.2011
Present: Ld. APP for State
Accused with counsel
Vide separate judgment, accused is convicted of the charges u/s 420 IPC. Put up for arguments on sentencing on 22.3.2011.
(Samar Vishal) MM05(SE), New Delhi/15.03.2011