Delhi District Court
State vs . Shakil Ansari And Ors. on 6 September, 2011
1
IN THE COURT OF SH. DEEPAK SHERAWAT
METROPOLITAN MAGISTRATE, SOUTH DISTRICT
SAKET COURTS, NEW DELHI
FIR No. 412/94
P.S. Malviya Nagar
U/s 420/120-B IPC
State Vs. Shakil Ansari and ors.
JUDGMENT :
a. Sl. No. of the case : 185/2
b. Date of Institution : 01.11.1999
c. Date of Commission of Offence : June1994-August 1994
d. Name of the complainant : (1.) Nilot Pal Gupta
S/o R.P. Gupta
(2.) Anil Sharma
S/o Ram Prakash Sharma
(3.) Vineet Sharma
S/o Y.N. Sharma
(4.) Naveen Jindal
S/o Ravi Jindal
e. Name of the accused and his : 1) Nirmal Kapoor
parentage and address W/o Ajay Kapoor
R/o Flat no.87, Kalyani
Apartment, Plot no.31,
Sector-4, Dwarka, New
Delhi.
2) Ajay Kapoor
S/o Girdhari Lal
R/o Flat no.87, Kalyani
Apartment, Plot no.31,
Sector-4, Dwarka, New
Delhi.
2
3.) Shakeel Ansari
S/o Rashid Ansari
R/o 25, Press Enclave,
Saket, New Delhi
(Declared PO vide order
dated 05.03.1999)
f. Offence complained of : U/s 420/120-B IPC
g. Plea of the accused : Pleaded not guilty
h. Order reserved : 06.09.2011
i. Final Order : Acquitted
j. Date of such order : 06.09.2011
1. The FIR in this case has been registered on a joint
single complaint of complainants Naveen Jindal PW2, Vinit Sharma PW3, Anil Sharma PW4 and Neelotpal Gupta PW5 against three persons Shakeel, Ajay Kapoor and Nirmal Kapoor. It has been alleged that the accused had cheated the complainants by holding out assurance of arranging employment for them in abroad.
2. The facts according to the prosecution are that the three accused namely Shakil, Ajay Kapoor and Nirmal Kapoor in the year 1994 were running a racket luring and deceiving young boys and girls on the false pretense of procuring them jobs in USA and inducing them to pay money for such jobs. The four complainants on whose complaint this case has been registered also fell prey to their designs. All of them were given the offer of job in America at 3 a salary of 2000 dollars per month with free accommodation and each was required to pay a some of Rs. 50,000. In total, a sum of Rs. 2 lacs was collected by the accused persons on the pretext of providing employment to the complainants in USA. Obviously, the complainants were not given any job as assured and they lost their money too.
3. Information was lodged with the police. Investigation was undertaken and on completion thereof charge sheet was filed indicating commission of offence punishable under Sections 120B, 420 of the Indian Penal Code, 1860.
4. The accused Shakeel was declared during trial as absconding. The trial was accordingly separated as against him and was proceeded only as against the other two accused namely Ajay Kapoor and Nirmal Kapoor (who shall hereafter be referred to as present accused persons.)
5. The present accused persons denied the charge and claimed trial.
6. Six witnesses have been examined by the prosecution to prove the case. HC Anand Swaroop as PW1, Naveen Jindal as PW2, Vinit Sharma as PW3, Anil Sharma as PW4, Neelotpal Gupta as PW5 and Inspector Mukesh Kumar as PW6.
7. PW1 HC Anand Swaroop has testified that on 4 04.09.1994, he registered the present case FIR on the basis of tehrir sent by SI Mukesh Kumar thorugh Ct. Ram Phal which is Ex. PW1/A. Ld. Counsel for accused did not prefer to cross examine PW1.
8. PW2 Naveen Jindal has testified that in June,1994 his friend namely Nilu Gupta and Anil Sharma called him that there is one Mr. Shakil Ansari who was residing temporarily in Press Enclave, New Delhi and was the MD of Ansari Asia Ltd. of New York. He requires persons in USA for the job of Marketing and all. Thereafter Nilu Gupta, Anil Sharma and he were got selected by him and they three paid Rs. 50,000/- each to him. PW2 again testified that Nilu Gupta and Anil Sharma paid Rs. 50,000/- to Shakeel Ansari and then himself and one of his other friend Vineet Sharma went to Press Enclave and Mr. Shakil Ansari took their interview and they had been selected by him and then he asked for Rs. 50,000/- each which was accordingly paid by them to Shakil Ansari.
PW2 was cross examined by Ld. APP as he was resigling from his earlier statement given to the police. In his statement, he has testified that he had seen the complaint Ex. PW2/PX1. PW2 has further testified that a signed mutual agreement Ex. PW2/PX2 was produced by him to the IO and the same was taken into police possession and seized vide seizure memo Ex. PW2/PX3. He further testified that accused Shakil Ansari s/o Rashid Ansari was arrested from Press Enclave, C-25, Saket by 5 the IO of this case at the pointing out by himself, Nilu Gupta, Anil and Vineet Sharma, and his personal search was conducted vide memo Ex. PW2/PX4. He further testified that the disclosure statement of accused was also recorded vide memo Ex. PW2/PX5. The visiting card of Ansari Asia Ltd. produced by the accused Shakil Ansari was taken into police possession by the IO in his presence vide Ex. PW2/PX6. He further testified that on the same day, specimen signatures of Shakil Ansari were also taken by the IO in his presence vide memo Ex. PW2/PX7.
PW2 was also cross examined by Ld. Defence Counsel. In his cross examination, PW2 has testified that Ajay Kapoor and Nirmal Kapoor never talked or allowed them or they never paid any money to them nor the money was ever passed by Shakil to them in his presence.
9. PW3 Vinit Sharma has testified that in the year 1994, when he had gone to his friend's house namely Anil Sharma at Alaknanda, he told him that he had an offer for job in USA. And one Shakil Ansari had been stayed in the house of Mrs. Nirmal Kapoor w/o Ajay Kapoor at C-25, Press Enclave, Saket, New Delhi and he was in need of some employees for his company. He further testified that they had promised to Anil to get him job. PW3 further testified that Anil also told him that if he also wanted to do job in the company of Shakil at USA then he could met him with Mrs. Kapoor and Shakil Ansari at Press Enclave. PW3 further testified that after 1-2 days, he alongwith Anil Sharma went to C-25, Press Enclave where one person 6 namely Ansari met him. PW3 further testified that Mr. Ansari told him about his company in Newyork USA and also told him that he is the Director of the said company. He also told him about the work detail and duty hours and salary about 2000 dollar per month with accommodation. PW3 further testified that Shakil Ansari took his interview and said that he had been selected. Thereafter Mr. Shakil Ansari demanded Rs. 50,000/- for the purpose of document processing on which PW3 paid Rs. 40,000/- cash and Rs. 10,000/- by cheque in the favour of Mrs. Kapoor, present in the court, to Shakil Ansari.. PW3 further testified that during the process of whole transaction, he had never seen Ajay Kapoor. PW3 further testified that he could identify Shakil Ansari if shown to him. PW3 further testified that after not getting any response, he alongwith Naveen, Anil and 2-3 other persons who were cheated by Shakil Ansari and Mrs. Kapoor, went to ACP South District, Hauz Khas and complained against them which is Ex. PW2/PX1. He also handed over a mutual agreement dated 11.08.1994 to the IO of this case which is Ex. PW3/A and the same was seized by the police vide seizure memo Ex. PW3/B. The visiting card of accused Shakil Ansari is Ex. PW3/C. PW3 further testified that on 04.09.1994, the IO of this case had arrested the accused Shakil Ansari at his instance and also at the instance of Anil Sharma and other persons from C-25, Press Enclave Road, Saket and thereafter his personal search was also conducted and his specimen handwriting was also taken on some papers.
PW3 was cross examined by Ld. APP as he was resigling from his earlier statement. In his statement, PW3 has 7 denied the suggestion to this effect that his interview was done by Shakeel Ansari in the presence of accused Ajay Kapoor s/o Goverdhan Lal Kapoor.
PW3 was also cross examined by Ld. Defence Counsel. In his cross examination, PW3 has testified that he did not remember in whose favour the cheque of Rs. 10,000/- was issued.
10. PW4 Anil Sharma has testified that it was the month of June 1994. His friend Nilot Pal Gupta told him that he knows one Ajay Kapoor and his wife Nirmal Kapoor who reside at C-25, Press Enclave and one person by the name of Shakeel Ansari who send the people to America and the said Shakil Ansari was teh MD of Ansari Asia Ltd. Thereafter he alonwith his friend Nilot Pal Gupta went to the house of Ajay Kapoor and Nirmal Kapoor at C-25, Press Enclave where accused present in the court met them and they introduced to him with Shakeel Ansari. PW4 further testified that he was interviewed by Ajay Kapoor, Nirmala Kapoor and Shakeel Ansari and thereafter they told him they he had been selected for marketing training. PW4 further testified that on the same day, his friend Nilot Pal Gupta was also interviewed by the said accused persons for the same job and they both were asked for Rs. 50,000/- as they were selected. PW4 further testified that in the last week of June 1994, he paid Rs. 50,000/- to accused Shakeel Ansari in the presence of both accused present in the court, and his friend also paid Rs. 35,000/- to Nirmala Kapoor and Rs. 15,000/- to accused Shakeel Ansari. He further testified that he also introduced his friends Naveen 8 Jindal and Vineet Sharma to all the three accused persons. He further testified that accused Shakeel Ansari gave him a mutual agreement on Non-Judicial Paper and the same is Ex. PW4/A. The said agreement was signed by him as well as accused Shakeel Ansari. Thereafter he contacted accused persons but in the month of July, he came to know that accused Shakeel Ansari had fled away to Bombay. Thereafter he alongwith his friend lodged the complaint to the police which is Ex. PW2/PX1. On September 1994, accused Shakeel Ansari was arrested by police and in his presence, his personal search was carried out vide memo Ex. PW2/PX4. His disclosure statement was also recorded vide memo Ex. PW2/PX5. Police had obtained the specimen handwriting of accused Shakeel Ansari vide memo Ex. PW2/PX7. His friend Nilotpal Gupta also handed over mutual agreement to police which was seized in his presence vide memo Ex. PW4/B. The mutual agreements of Vineet Sharma and Naveen Jindal were also seized by the police in his presence vide seizure memo Ex. PW3/B and PW2/PX3. Police also prepared the seizure memo of his mutual agreement in his presence which is Ex. PW4/C. Police also seized one visiting card of Shakeel Ansari vide seizure memo Ex. PW2/PX6. PW4 further testified that visiting card Ex. PW3/C, mutual agreement Ex. PW4/A, Ex. PW3/A and Ex. PW2/PX2 were the same documents which were seized by the police in his presence.
PW4 was cross examined by Ld. Defence Counsel. In his cross examination, PW4 was confronted with the statement u/s 161 Cr.P.C which was recorded by the police.
911. PW5 Neelotpal Gupta has testified that in the month of July-August 1994, one friend of his sister namely Rekha Tanvir told him that a person namely Shakeel Ansari, a resident of USA came to India and was looking for some persons to work in his business of Export-Import of garments and the said Shakeel was staying at the house where Rekha Tanvir was residing as a paying guest. On receipt of said information, he went to the house of Ajay Kapoor and Nirmal Kapoor, present in the court, where accused Shakeel and accused Nirmal Kapoor and Ajay Kapoor met him. PW5 further testified that after 15-20 days of his interview he was asked to pay Rs. 50,000/- for documentation and as per their demand, he made the payment of Rs. 50,000/- to accused Nirmal Kapoor at their house and at that time, Shakeel was not present in the house.
12. PW6 Inspector Mukesh Kumar has testified that on 04.09.1994, he endorsed the complaint Ex. PW2/PX1 vide his endorsement Ex. PW6/A and got the case FIR registered which is Ex. PW1/A. He further testified that during the course of investigation, he collected original mutual agreement from the victims Naveen Jindal, Anil Sharma, Viineet Sharma and photocopy of the mutual agreement from Nilot Pal Gupta and the same were taken into possession and seized vide memos Ex. PW2/PX3, Ex. PW4/C, Ex. PW4/D and Ex. PW3/B respectively and the said mutual agreements are exhibited as Ex. PW4/A, Ex. PW3/A, Ex. PW2/PX2. He further testified that on the same day accused Shakeel Ansari who was not present in the court, met him at the 10 house of accused Ajay Kapoor and Nirmal Kapoor at C-25, Press Enclave, New Delhi where he seized visiting card from the possession of the accused Shakeel Ansari vide memo Ex. PW2/PX6 and the above visiting card is Ex. PW3/C. He also obtained specimen handwriting of accused Shakeel Ansari on three sheets which are Ex. PW2/PX7-1, 7-2 and 7-3 and the said specimen were taken into possession and seized vide memo Ex. PW2/PX7. Thereafter accused Shakeel Ansari was arrested and his personal search was conducted vide memos Ex. PW2/PX4. On interrogation accused Shakeel Ansari made disclosure statement which is Ex. PW2/PX5. The report of the handwriting expert was obtained vide Mark X. Both the accused persons did not prefer to cross examine PW6.
13. Thereafter, several opportunities were afforded to the prosecution to adduce the evidence requisite to prove the case against both the accused. It is pertinent to note that the matter is subjudice since the year 1994 and the charge against both the accused persons was framed on 16.10.2001 for the offence punishable under section 420/120-B IPC. Thereafter despite several opportunities having been provided to the prosecution for leading the evidence, the prosecution has been able to produce six witnesses. After giving sufficient opportunities for leading evidence, the right of the prosecution to lead further evidence was closed on 02.06.2011.
1114. After closing of prosecution evidence, statements of both the accused persons were recorded U/s 281 of Code of Criminal Procedure Code,1973 r/w 313 Cr.P.C. In their statements, both the accused persons have denied to have committed the offence and claimed to have been falsely implicated in this case. However, they did not lead any evidence in their defence.
15. The case against the accused persons before this court is in fact based on the criminal conspiracy that is hatched with a view to cheat the complainants and presumably other youngsters by dishonestly extracting money from them on false representations of facilitating employment for them in USA. What is to be seen is whether there is sufficient evidence to bring out the charge of criminal conspiracy and cheating against the two present accused.
16. The prosecution has sought to prove the charge against the accused persons both by oral testimonies and documentary evidence. Apart from the police officials, the complainants, all four of them, have been examined as witnesses. It is to be noted about them that they are all known to each other as friend or relative and that seems to be the reason why they preferred to lodge a joint complaint. Whatever each of them has deposed is quite material for the purpose of evidence, they being the victim of the crime. None of them had come into contact with accused directly which is clear from their testimonies. Each of them was introduced to accused by some other person. The record shows that first of all it was PW5 who came into contact with accused. Then 12 followed the chain of other complainants. However, it is not at all clear as to who introduced PW5 to the accused. In the joint complaint which is proved as Ex. PW2/PX1, it is stated that some Nishi Gupta, sister of PW5, contacted accused who was allured and she introduced PW5 and PW4 to accused. Interestingly, this Nishi Gupta herself stayed away from the offer of accused persons. She has not been cited as a witness by the prosecution, though her evidence was very material and relevant to prove the case. But as if was not enough, PW5 in his testimony before this court has ushered in new fact not disclosed in joint complaint PW2/PX1. According to him, one Ms. Rekha Tanvir who was friend of his sister informed him that accused Shakil Ansari was looking for persons to employ them in his firm in USA. But the prosecution has again not preferred to make this Rekha Tanvir a witness on its behalf.
17. Even the testimonies of all the complainants are so bulging with contradictions and improvements that it is but hard to say if the present accused persons had indeed connived with accused Shakeel Ansari to cheat them. PW2 on his own has revealed only scanty facts regarding the offence so much so that he had to be cross examined by the Ld. APP. All the leading questions put to him by Ld. APP has been replied by him in affirmative. But in his cross examination by the Ld. Defence Counsel, he categorically admits that the present two accused persons never had any contacts with him nor were they paid any money by him. PW3 complainant Vinit Sharma has stated that he met accused 13 Shakil Ansari on the advice of PW4 who took his interview for the job. He further stated that he handed over a cheque of Rs. 10,000/- issued in favour of accused Nirmal Kapoor to accused Shakil Ansari. But in his cross examination, he said that he did not remember as to in whose favour the said cheque was issued. Not only this, but he too had to be cross examined by Ld. APP regarding the role of present accused Ajay Kapoor whereafter he stated that his interview was taken by accused Shakil Ansari in the presence of present accused Ajay Kapoor. Obviously it is a material improvement.
18. PW4 Anil Sharma has given a long description of the chain of events, but not without certain discrepancies. As per his version, he went to the house of the accused persons alongwith PW5 Neelotpal Gupta where he was interviewed by all the three accused persons and on the same day PW5 was also interviewed. According to him, PW5 paid money to accused Shakil Ansari and Nirmal Kapoor.
19. However, PW5 has said nothing about the fact that he was accompanied by PW4 to the house of accused persons and he paid money to them in his presence. PW4 when subjected to cross examination by Defence Counsel stated too many facts on which he was confronted with his statement u/s 161 of Cr.P.C. The whole cross examination of PW4 is nothing but a list of facts which he omitted to state before the police. He has admitted that he never paid any money to either of the present accused.
14PW5, as already stated above, is not clear about the person who introduced him to accused, though he has stated that he paid Rs. 50,000/- to accused Nirmal Kapoor. He has stated nothing about the fact as to who completed the other formalities and took his interview.
20. Again, there is total lack of evidence regarding the respective sources from which the complainants arranged the money allegedly demanded by the accused. This is a missing link in the chain of evidence which was relevant and would have served to corroborate the versions made out by the complainants. The only brief reference in this respect is found in the deposition of PW3 who has stated that he gave a cheque of Rs. 10,000/- drawn in favour of accused Nirmal Kapoor to the accused Shakil Ansari, though he himself has denied this fact in his cross examination. There are no further details with regard to this cheque. It was not seized during investigation and therefore does not form part of the record. Thus the vital fact that payments were made to accused persons remained only an allegation without any proof thereof.
21. The prosecution has also relied upon certain documents to prove the charge. These documents are mutual agreements made between PW2, PW3 and PW4 and the accused Shakeel Ansari and are respectively exhibited as Ex. PW2/PX2, PW3/A and PW4/A. The bare perusal of these agreements would show that the present accused persons played no part in the execution of said 15 agreements since these agreements have neither been signed by them nor do the same contain anything to suggest that the present accused persons were party to the transaction. The transaction embodied in the agreement was entirely a matter between the concerned complainant and accused Shakil Ansari. The present two accused persons do not figure in any of these documents. Nor is there anything in the testimonies of any of the witnesses that these two accused had any role in the execution of these mutual agreements or any other document.
22. Then there is one visiting card belonging to accused Shakil Ansari which was seized during investigation and has been proved as Ex. PW3/C. But from this visiting card nothing can be inferred regarding the participation of the present two accused persons in the transaction which resulted into duping of complainants.
23. It is not the case of the prosecution that any recovery regarding the offence was effected from either of the present accused persons. The IO also did not record the disclosure statement of either of the present accused persons. There is only one disclosure statement which is exhibited as PW2/PX5 and the same has been made by accused Shakil Ansari. Neither of the present accused persons made any disclosure statement to the police. The Investigating Officer also obtained the specimen signature and handwriting of accused Shakil Ansari which are exhibited as Ex. PW2/PX7-1. This fact is hardly any indication 16 of the involvement of the present accused persons in the crime.
24. The criminal conspiracy consists in the agreement to do some illegal act which can be proved either by direct evidence or may be inferred from acts and conduct of the parties. An analysis of evidence, in the present case, makes it clear that it was main accused Shakil Ansari who carried out all the acts constituting the offence of cheating. It cannot be said beyond reasonable doubt that the present two accused persons shared any fraudulent or dishonest intention with him to cheat complainants. There is no reasonable ground to believe that the present accused persons had conspired together with accused Shakil Ansari to commit the offence of cheating. Nor is there any cogent and convincing material which may show any involvement of the present accused persons in deceiving and inducing the complainants to part with money.
25. In the result, I find that Prosecution has failed to prove its case against both the accused persons beyond reasonable doubt and they both are given the benefit of doubt and therefore accused Nirmal Kapoor and Ajay Kapoor are acquitted for the offence punishable U/s. 420/120-B IPC for which they both stand charged.
Announced in the Open Court (DEEPAK SHERAWAT)
On 06.09.2011 Metropolitan Magistrate
South District/New Delhi
17
FIR No. 412/1994
P.S. Malviya Nagar
U/s 420/120-B IPC
06.09.2011
Present: Ld. APP for the State.
Accused Nirmal Kapoor and Ajay Kapoor are on bail with counsel.
Vide my separate judgment dictated and announced in the open court accused both the accused persons are
acquitted for the offence punishable U/s 420/120-B IPC for which they both stand charged.
Both the accused persons are re-admitted to bail on furnishing fresh bail bond in the sum of Rs. 15,000/- each with one sureties each in the like amount. Bail bonds furnished. As per section 437-A of the Cr.P.C, as amended vide the Amendment Act, which came into force on 31.12.2009, the accused as well as the surety shall remain bound by the personal and the surety bond respectively for a period of six months from today.
File be consigned to Record Room.
(Deepak Sherawat) MM/South Delhi/ 06.09.2011