Delhi District Court
State vs . Balbir Singh & Ors. on 10 April, 2012
IN THE COURT OF SHRI RAJINDER SINGH: METROPOLITAN
MAGISTRATE04 (SOUTH), SAKET COURTS:NEW DELHI
State Vs. Balbir Singh & Ors.
FIR No. 11/97
U/s 406/420 IPC
P.S. Kotla Mubarakpur
J U D G M E N T
Serial No. of the Case : 266/2
Unique Identification No. : 02406R0022051997
Date of Institution : 09.09.1997
Date on which case reserved for
judgment : 27.03.2012
Date of judgment : 10.04.2012
Name of the complainant : Sh. Ranjeet Kumar Pandit
s/o Sh. Triveni Pandit
C/o Sh. Mohinder Singh
r/o 736/7, G. G. N. Haryana
Date of the commission of offence: In the year 199596
Name of accused : (i) Balbir Singh
s/o Sh. Jaswant Singh
r/o C8, Subhash Park, Uttam Nagar
FIR No. 11/97
P.S. Kotla Mubarakpur Page No.1 of 26
New Delhi
Present address: B34, Jeewan Park,
Uttam Nagar, New Delhi
(ii) Kulwant Singh
s/o Sh. Karan Singh
r/o B51A, Tilak Vihar, New Delhi
(iii) Balwant Singh (since deceased)
s/o Sh. Didar Singh
r/o RZ280, Vishnu Garden,
New Delhi.
Offence complained of : U/s 406/420 IPC
Offence charged of : U/s 420 IPC read with Section 120B
IPC
Plea of the accused : Pleaded not guilty.
Final order : Convicted
Date of Institution : 09.09.1997
Date on which case reserved for
judgment : 27.03.2012
Date of judgment : 10.04.2012
BRIEF STATEMENT OF REASONS FOR
THE DECISION OF THE CASE
BRIEF FACTS:
During the year 199596 the accused Balbir Singh, accused Balwant FIR No. 11/97 P.S. Kotla Mubarakpur Page No.2 of 26 Singh (since deceased) and accused Kulwant Singh were running the office of Metro Travel Service Agency at House No.1897, 3rd Floor, Uday Chand Marg, Kotla Mubarakpur. The said premises was in the tenancy of accused Balbir Singh and Balwant Singh since 199394. The accused persons were running a business of sending people abroad for employment. In the year 1996 an advertisement to this effect was got published by the accused persons in the newspaper 'Punjab Kesari'.
All the accused persons in pursuance of a criminal conspiracy cheated a large number of persons. The victims were promised jobs abroad. For which the victims gave different sums of money to the accused persons. However, the victims were not given the placement as promised.
On 25.01.1996 the complainant Sh. Ranjeet Kumar Pandit gave a sum of Rs.30,000/ to the accused persons, the said sum was given to the accused persons for securing an employment (abroad) for the complainant.
Current account No.3753 in the name of the firm Metro Travel Service was opened in Indian Overseas Bank, Defence Colony Branch. Said account was operated by accused Balbir Singh as the authorized signatory.
2. The report U/s 173 Cr. PC against accused Kulwant & Balwant was filed on 09.09.1997. At that time the accused Balbir was proclaimed offender. Supplementary challan against the accused Balbir was filed on 26.09.2002. Cognizance of the offences was taken. Compliance of Section 207 Cr. PC was done. FIR No. 11/97 P.S. Kotla Mubarakpur Page No.3 of 26
3. Charge for the offence U/s 420 read with Section 120B IPC against the accused Kulwant Singh & Balwant Singh was framed on 31.07.1998. Charge for the offence U/s 420 read with Section 120B IPC against the accused Balbir Singh was framed on 04.10.2002. All accused pleaded not guilty and claimed trial. PROSECUTION EVIDENCE :
4. The prosecution to prove its case examined 16 (sixteen) PWs in all.
PW1 Sh. Sudhakaran stated, in the year 1996 I read an advertisement with regard to the job in Dubai, in the newspaper Punjab Kesari. I went to the Office of Metro Travel Services, run by both the accused persons present in the court today and one Balbir Singh. I talked to all the accused persons with regard to the job abroad. I was sent to Ashram for appearing in an interview. I appeared in the interview and again went to the aforesaid office. I handed over Rs.10,000/ at the aforesaid office to one person whose name I do not remember. Thereafter I was sent for medical examination. I was asked to come to the office after 40 days. A forged visa given to me. I again made a payment of Rs.10,000/ to accused Balwant.
(With permission of the Court, Ld. APP crossexamined the witness) PW1 stated, it is wrong to suggest that I gave Rs.15,000/ to accused Kulwant and Rs.15,000/ to accused Balbir. It is correct that I handed over one passport to the accused persons.
During crossexamination by Sh. M. S. Sahi, Ld. Counsel for FIR No. 11/97 P.S. Kotla Mubarakpur Page No.4 of 26 accused Balwant Singh, PW1 stated, I told the police that I paid Rs.10,000/ to accused Balwant Singh, confronted with statement U/s 161 Cr. PC Ex.PW1/DX, where it is not so recorded. It is wrong to suggest that I have seen the accused Balwant for the first time today in the court only.
PW2 Sh. Ranjit Kumar Pandit (the complainant) (examined on 11.05.1999) stated, about 2 and half years ago I received information from an advertisement in Punjab Kesari newspaper that the Metro Travel Services were providing placement for jobs abroad. I went to the office of the Metro Travel Service. Both the accused present in the court today along with another accused (who is not present in the court today) were found at the office. They promised to send me to Kuwait for plumber's job for a payment of Rs.30,000/. They took my passport and asked me to come after 2025 days. Thereafter at the said office my trade test was conducted and a certificate was issued. Accused Balwant took Rs.5,000/ from me and issued a receipt. He again took Rs.25,000/ from me and assured me a job in Dubai. The accused Kulwant took me to Bombay for getting a job. He lodged me in Mantoonga Bombay. They gave me a receipt on their visiting card which I have brought today. (The same however, is not exhibited in the testimony of PW). After 2025 days I was sent back to Delhi. I repeatedly visited the office of the accused persons. They did not refund my money nor did they get me a job. Subsequently, the accused persons were found absconding.
During crossexamination by Sh. M. S. Sahi, Ld. Counsel for FIR No. 11/97 P.S. Kotla Mubarakpur Page No.5 of 26 accused Balwant Singh, PW2 stated, all three accused persons were sitting inside the cabin. I do not remember the date when I made the first payment to the accused persons. At the time of first payment, two accused were present. Again said accused Kulwant and Balbir were present. At the time of second payment all three accused were present. Receipt for payment of Rs.5,000/ and Rs.30,000/ was issued. The same are Mark A & B. It is wrong to suggest that I have not made a payment of Rs.25,000/ to accused Balwant Singh. The payment was made by me to the accused persons at the Office of the Metro Travel Service.
PW3 Ct. Brijesh Kumar stated, on 18.01.1997 I joined the investigation of this case along with SI S. P. Gautam, HC Jasvinder Singh and Ct. Pramod. The accused Balwant took us to 1897 Udai Chand Marg Kotla Mubarakpur 2nd floor, there at the pointing out of the accused, 11 passports lying in the drawer of the table was recovered. The same were seized vide memo Ex.PW3/A. Thereafter the accused took us to his house at Vishnu Garden. There 7 more passports were recovered.
During crossexamination by Sh.M.S. Sahi, Ld. Counsel for accused Balwant, PW3 stated, on 18.01.1997 we went to the office of Metro Travel Service, in the morning the same was found locked. Again said I do not remember. It is correct that the key of the said office was with IO. On 18.01.1997 when we went to the house of accused Balwant his father and mother were also present there. It is wrong to suggest that neither I joined the investigation nor any recovery was effected FIR No. 11/97 P.S. Kotla Mubarakpur Page No.6 of 26 in my presence.
At the time of examination of PW3, accused Balbir was proclaimed offender. PW3 was recalled for examination in the presence of accused Balbir Singh.
PW4 ASI Jaswant (duty officer) is a formal witness. He proved the copy of FIR Ex.PW4/A. PW5 Sh. Darshan Singh (Asstt. Manager, Indian Overseas Bank) stated, I have brought the certified true copy of account opening form of account No. 3753 in the name of Balbir Singh, with the firm name Metro Travel Service, 1897, Udai Chand Marg Kotla Mubarakpur, bearing the date 03.07.1995. The account opening form is Ex.PA. The copy of nomination form is Ex.PB and the signature card is Ex.PC. I have also brought the certified copy of the statement of account of the said account for the period 23.07.1996 to 17.10.2003. Copy of the same is Ex.PD (original certified copy seen which were kept in judicial file of FIR No.724/96 (name of the Police station not mentioned).
During crossexamination by Ld. Counsel for accused Balbir, PW5 stated, I do not personally know the account holder.
PW6 Sh. Ravinder Kumar stated, in the year 199394 accused Balbir Singh and Balwant Singh were my tenants at 3rd floor H. No.1897, Kotla Mubarakpur. The accused were running their office at the said premises. They were in the business of Tour and Travel. One day the police came there and the accused were arrested. FIR No. 11/97 P.S. Kotla Mubarakpur Page No.7 of 26
(With permission of the Court, Ld. APP crossexamined the witness) PW6 stated, I am not aware about the business of the accused persons.
PW7 Ct. Pramod Kumar stated, on 12.01.1997 I was posted at P.S Kotla Mubarakpur. On that day I joined investigation with SI Suraj Bhan and HC Jasvinder. The accused Balwant was taken to Bombay. On 16.01.1997 we came back to Delhi. On 18.01.1997 at the pointing out of accused Balwant, 11 passports were recovered from his office i.e. Metro Travel Agency, at Udai Chand Marg and 7 passports were recovered from his house. The same were seized vide seizure memo already Ex.PW3/A. The recovered 13 passports are Ex.P1 collectively.
PW8 Sh. Raj Kapoor (Senior Manager, Indian Overseas Bank, Defence Colony Branch) stated, in the year 1999 current account No.3753 was opened in the name of Metro Travel Service Udai Chand Marg, Kotla Mubarakpur. The procedure of the said account was done mainly by one Sh. Balbir Singh. I have brought the bank statement of the said bank account for the period January 1997 to 10.03.2005. At present the balance in the said account is Re.1. No transaction have been entered in the said account since January 1997. The bank statement is Ex.PW8/A. PW9 Sh. Surender Singh (examined on 28.03.2005) stated, about 89 years ago I read in the newspaper about Metro Travel Services, having its office at Kotla Mubarakpur that they were sending persons abroad. I went to the said office. Both the accused persons present in the court today met me. They demanded money FIR No. 11/97 P.S. Kotla Mubarakpur Page No.8 of 26 for sending me broad. They retained my passport. Before I could make the payment I found that the said office has been closed. Accused persons did not return my passport.
PW10 Sh. Raj Kumar stated, in the year 1996, again said 1997 in the month of September or October, I along with one Bhawani gave Rs.40,000/ each, to one Wazir Singh for being sent to Dubai by accused Balbir and Balwant. The accused persons neither returned our money nor sent us abroad. The witness pointed to accused Balbir and stated that he might be the accused person. (at the time of incident he was a mona (non Sikh) .
During crossexamination by Ld. Defence Counsel, PW10 stated, on 2nd visit to the office of the accused persons I handed over Rs.40,000/ to them. No receipt was issued for this payment. I did not receive back my passport.
PW11 Sh. Bhawani stated, on 01.01.1997 I read a newspaper advertisement with regard to sending the tailors to Dubai. I applied for the same at the office of accused Balbir (correctly identified). I paid a total sum of Rs.40,000/ to the accused. My friend Raj Kumar also paid a sum of Rs.40,000/ to the accused. The accused Balbir assured us regarding the arrangement of tickets to send us to Dubai but he did not arrange the tickets. Later on we came to know that the accused Balbir has left the rented premises and gone to some unknown place. I also gave my passport to the accused.
During crossexamination by Ld. Defence Counsel, PW11 stated, I FIR No. 11/97 P.S. Kotla Mubarakpur Page No.9 of 26 did not get any receipt with regard to the payment of Rs.40,000/ to the accused nor did I get any receipt with regard to the handing over of the passport to the accused.
PW12 ASI Jasvinder stated, on 12.01.1997 I was posted as HC at P.S. Kotla Mubarakpur. On that day I along with SI Suraj Bhan, Ct. Pramod and accused Balwant (since deceased) went to Bombay for recovery of case property and for arrest of other accused persons. We returned on 18.01.1997. On the same day I along with SI Suraj Bhan, Ct. Brijesh, Ct. Pramod and accused Balwant reached at the office of the accused. Accused handed over 11 passports to SI Suraj Bhan. The same were seized vide memo Ex.PW3/A. We further went to the house of the accused. There 7 more passports were recovered and seized vide seizure memo Ex.PW3/A in case FIR No. 724/96 (name of the police station not mentioned). The 7 passports seized in the FIR No.11/97 are Ex.P1 collectively. The passports seized in FIR No.724/06 are Ex.P2 collectively.
PW13 Sh. Sahib Ram Chaudhary stated, on 19.08.1996 I met accused Balbir Singh with regard to going abroad. Initially I gave Rs.10,000/ to accused Balbir at his office at Kotla Mubarakpur. Subsequently accused gave me a duplicate visa and I paid a further sum of Rs.25,000/ to accused Balbir. I was sent to Bombay. I reached the office of a traveling agency AlVakeel Enterprises, there I came to know that the visa given to me by accused Balbir was forged. I was told by the manager of the said agency that they have not received any money on my behalf from accused Balbir. I returned from Bombay and demanded back my money from accused Balbir. He told me to wait for sometime. After repeated demands accused FIR No. 11/97 P.S. Kotla Mubarakpur Page No.10 of 26 Balbir gave me a cheque dated 08.11.1996 in the sum of Rs.35,000/ drawn on Indian Overseas Bank. However the same was dishonoured.
During crossexamination by Sh. S. K. Atri, Ld. Counsel, PW13 stated, I had personally given money to accused Balbir Singh. He did not issue any receipt for the said payment. The cheque given to me by accused Balbir Singh was not handed over by me to the police.
PW14 Sh. Mohd. Hassan stated, in the year 1996 I contacted accused Balbir Singh (correctly identified) for going to Saudi Arabia. The accused demanded Rs.38,000/ for sending me abroad. I gave Rs.11,000/ to accused Balbir at his office in Kotla Mubarakpur. At the direction of the accused Balbir I gave Rs.27,000/ to one Haroon Qureshi who was working with N. K. Travel Agency at Bombay. In September 1996 I went to Bombay, for going to Saudi Arab. I remained at Bombay for one month and spent Rs.52,000/ during my stay at Bombay. I contacted the N. K. Travel Agency, I was told that my passport had not reached them, my name was also missing from the list of candidates who were selected for going abroad. I returned to Delhi and met accused Balbir, he assured me that he would return my money. But he did not return the same. Later on I came to know that the accused Balbir has closed his office.
PW15 SI Ramesh Chand Kaushik stated, on 30.07.1997 I was posted at P.S. Kotla Mubarakpur. I received information about the arrest of accused Kulwant Singh. He was produced at Tis Hazari Courts. With permission of the Court I formally arrested the accused Kulwant and conducted his formal search vide memo FIR No. 11/97 P.S. Kotla Mubarakpur Page No.11 of 26 Ex.PW15/A. PW16 SI Suraj Bhan (IO of this case) stated, (it is observed that the exhibit numbers have been wrongly mentioned as Ex.PW15) on 05.12.1997 (date wrongly stated, actual date is 05.01.1997) I was posted as a SI at P.S. Kotla Mubarakpur. On that day I received a written complaint Ex.PW15/A from the complainant Sh. Ranjeet Kumar Pandit. I prepared the rukka Ex.PW15/B and got the case registered. On the rukka I have mentioned the name of the other aggrieved persons. I also received written complaints from other aggrieved person. I seized the visiting cards and money receipts vide Ex.PW15/C. The accused Balwant was arrested. 11 passports were seized vide memo Ex.PW3/A. I also visited Bombay in search of accused persons. The accused Balwant has expired. The recovered passports are Ex.P1 collectively.
Vide order dated 14.12.2005, PE was closed.
Thereafter vide order dated 20.04.2006 PW1, PW2 & PW4 were allowed to be recalled since they were examined while accused Balbir was a proclaimed offender. On 13.04.2007 PW1 Sh. Sudhakaran appeared but he was discharged unexamined and bound down for next date of hearing.
Vide order dated 13.04.2007 it was observed that PW Ranjit Kumar Pandit is untraceable. Summons were directed to be served upon Ranjit Kumar Pandit through some official not below the rank of ASI. Again on 10.07.2007 PW Sh. Sudhakaran was discharged unexamined. On 08.06.2011 PW Sh. Jardin, FIR No. 11/97 P.S. Kotla Mubarakpur Page No.12 of 26 Sh. Manwar Khan & Mohd. Izdal Haque were reported untraceable. They were directed to be summoned through DCP concerned. Despite service through DCP concerned they were reported untraceable.
Vide order dated 04.08.2011, again PE was closed.
STATEMENT OF ACCUSED :
5. On 20.08.2011, separate statements of both the accused Kulwant Singh & Balbir Singh U/s 313 Cr. PC were recorded. They denied all the allegations against them. They did not wish to lead defence evidence.
DEFENCE EVIDENCE :
6. No defence evidence was led by the accused persons.
ARGUMENTS :
7. Arguments were advanced by Ld. APP for the State and Ld. Counsel for accused persons.
It was argued by Ld. APP for the State that the complainant has fully supported the prosecution case. The other material witnesses have also supported the prosecution case. The bank account of Metro Travel Service is also proved. The FIR No. 11/97 P.S. Kotla Mubarakpur Page No.13 of 26 same was being operated through accused Balbir Singh. All the material PWs have stated that the accused persons were found at the office of the Metro Travel Service and money was handed over to the accused persons at their office. PW6 deposed that in the year 199394 the accused persons hired on rent the third floor at H. No.1897 Kotla Mubarakpur i.e. the office of the Metro Travel Service. PW6 was the landlord of the said house. The accused persons in pursuance of their criminal conspiracy have cheated large number of innocent persons. The prosecution has proved its case beyond reasonable doubt.
It was argued by Ld. Counsel for accused persons that the deceased accused Balwant was the owner of Metro Travel Service. Accused Balbir & Kulwant were the employees of accused Balwant. Accused Balwant used to take money from his clients. The passports seized vide seizure memo Ex.PW3/A were also recovered from accused Balwant. No payment was received by the accused Balbir & Kulwant. PW1, PW2, PW3 & PW4 were examined in the absence of accused Balbir. Their testimony cannot be read in evidence against accused Balbir. When the accused Balwant expired, the PWs examined thereafter started deposing against accused Balbir. The PWs did so because they were aware that accused Balwant has expired. The prosecution has failed to prove its case beyond reasonable doubt. REASONING :
8. Initially on 09.09.1997 the chargesheet was filed against accused FIR No. 11/97 P.S. Kotla Mubarakpur Page No.14 of 26 Balwant Singh & Kulwant Singh. The accused Balbir was proclaimed offender.
Accused Balbir was arrested and produced before the Court on 12.09.2002. Subsequently on 26.09.2002 supplementary chargesheet was filed against accused Balbir Singh.
On 31.07.1998 charge for the offences U/s 420 IPC read with Section 120B was framed against accused Kulwant Singh & Balwant Singh. In the order dated 31.07.1998 it is observed that the Ld. Counsel for accused persons Kulwant and Balwant argued that these accused persons were the employees of accused Balbir who was proclaimed offender at that time.
On 04.10.2002 charge for the offence U/s 420 IPC read with Section 120B IPC was framed against accused Balbir Singh.
During the period when accused Balbir Singh was proclaimed offender PW1, PW2, PW3 & PW4 were examined. Vide order dated 04.10.2002, when the charge was framed against accused Balbir Singh, the PWs examined in his absence were directed to be recalled. PW3 was recalled and crossexamined on behalf of accused Balbir Singh.
PW1 Sh. Sudhakaran upon being recalled, appeared before the Court. He was bound down for next date of hearing. Subsequently he could not be cross examined, since he did not appear despite being bound down for 13.04.2007. On 10.07.2007 again the Ld. Presiding Officer was on leave, PW1 Sudhakaran was discharged unexamined. Thereafter PW1 could not be served.
Vide order dated 13.04.2007 it was observed that the complainant PW FIR No. 11/97 P.S. Kotla Mubarakpur Page No.15 of 26 Sh. Ranjeet Kumar was reported untraceable. Despite repeated efforts he could not be traced.
Section 299 Cr.PC reads as under : "Record of evidence in absence of accused:(1) If it is proved that an accused person has absconded, and that there is no immediate prospect of arresting him, the Court competent to try (or commit for trial), such person for the offence complained of may, in his absence, examine the witnesses (if any) produced on behalf of the prosecution, and record their depositions and any such deposition may, on the arrest of such person, be given in evidence against him on the inquiry into, or trial for, the offence with which he is charged, if the deponent is dead or incapable of giving evidence or cannot be found or his presence cannot be procured without an amount of delay, expense or inconvenience which, under the circumstances of the case, would be unreasonable.
(2) If it appears that an offence punishable with death or imprisonment for life has been committed by some person or persons unknown, the High Court or the Sessions Judge may direct that any Magistrate of the first class shall hold an inquiry and examine any witnesses who can give evidence concerning the offence and any depositions so taken may be given, in evidence against any person who is subsequently accused of the offence, if the deponent is dead or incapable of giving evidence or beyond the limits of India".
As per provisions of Section 299 Cr.PC the testimony of witnesses recorded in the absence of the accused (under the circumstances mentioned in Section 299 Cr.PC) can be used against such accused where the deponent is dead or in capable of giving evidence or cannot be found or his presence cannot be procured without an amount of delay, expense or inconvenience which, under the circumstances of the case, would be unreasonable.
FIR No. 11/97 P.S. Kotla Mubarakpur Page No.16 of 26
In view of the above it is clear that since the testimony of the complainant PW2 was recorded during the period when accused Balbir Singh was absconding and later on PW2 was untraceable despite best efforts, the testimony of PW2 can be read in evidence against accused Balbir Singh. PW4, the duty officer is a formal witness.
EVIDENCE WITH REGARD TO EXISTENCE OF METRO TRAVEL SERVICE:
9. PW5 Sh. Darshan Singh, Assistant Manager, Indian Overseas Bank, produced the certified true copy of account opening form for the account No.3753 in the name of Metro Travel Service, 1897, Uday Chand Marg, Kotla Mubarakpur. The form is dated 03.07.1995. The same is Ex.PA. It is in the name of accused Balbir Singh. PW6 Sh. Ravinder Kumar, the landlord of H. No.1897, Uday Chand Marg, Kotla Mubarakpur stated that in the year 199394, the accused Balbir Singh and Balwant Singh were his tenants at the aforesaid address. They were in the business of Tour and Travel. PW8 Sh. Raj Kapoor, Sr. Manager, Indian Overseas Bank, Defence Colony Branch produced the bank statement of current account No.3753 in the name of Metro Travel Service Uday Chand Marg, Kotla Mubarkapur, for the period January 1997 to 10.03.2005. The bank statement is Ex.PW8/A. PW1, PW2 & PW9 also stated that they went to the office of Metro Travel Service and met the accused persons there. In view of above it is established that the office of the Metro Travel FIR No. 11/97 P.S. Kotla Mubarakpur Page No.17 of 26 Service was in existence during the relevant period at H. No. 1897, Uday Chand Marg, Kotla Mubarakpur.
EVIDENCE WITH REGARD TO ASSOCIATION OF THE ACCUSED PERSONS WITH METRO TRAVEL SERVICE:
10. PW5 Sh. Darshan Singh, Asstt. Manager, Indian Overseas Bank produced the copy of the account opening form for current account No.3753 in the name of Metro Travel Service. The photocopy of the said form is Ex.PA. Therein the name of the accused Balbir Singh is mentioned. It also bears the photocopy/impression of the photograph of accused Balbir Singh. PW8 Sh. Raj Kapoor produced the bank statement of current account No.3753, in the name of Metro Travel Service. PW8 further stated that the procedure of the said account was done mainly by Balbir Singh. PW6 Sh. Ravinder Kumar, landlord of premises No. 1897, Uday Chand Marg, Kotla Mubarakpur stated that in the year 199394 accused Balbir Singh and Balwant Singh were his tenants at the said premises. They were in the business of Tour and Travel. PW1 & PW2 were examined during the period when the accused Balbir was proclaimed offender. Both PW1 & PW2 identified the other accused persons before the Court and further stated that the accused persons were present at the office of the Metro Travel Service when these witnesses visited the said premises. PW2 also stated that the accused Kulwant Singh took him to Bombay for getting a job. The other material PWs examined on behalf of prosecution also FIR No. 11/97 P.S. Kotla Mubarakpur Page No.18 of 26 stated that during their visits to the office of the Metro Travel Service, the accused persons were found present at the said office.
In view of the above the association of the accused persons with Metro Travel Service is established.
11. In a case, titled as Yogesh @ Sachin Jagdish Joshi Vs. State of Maharashtra, reported in 2008(2) R.C.R.(Criminal) 896 : 2008(3) R.A.J. 391 :
2008 Cri.L.J. 3872 : 2008 A.I.R. (SC) 2991 : 2008(10) S.C.C. 394 : 2008(3) AICLR 256 : 2008(6) Scale 469 : 2008(6) J.T. 299 : 2008(6) SCR 1116, the Hon'ble Supreme Court held :
"The basic ingredients of the offence of criminal conspiracy are : (i) an agreement between two or more persons; (ii) the agreement must relate to doing or causing to be done either (a) an illegal act; or (b) an act which is not illegal in itself but is done by illegal means. It is, therefore, plain that meeting of minds of two or more persons for doing or causing to be done an illegal act or an act by illegal means is sine qua non of criminal conspiracy. Yet, as observed by this Court in Shivnarayan Laxminarayan Joshi & Ors. v. State of Maharashtra, (1980)2 SCC 465 a conspiracy is always hatched in secrecy and it is impossible to adduce direct evidence of the common intention of the conspirators. Therefore, the meeting of minds of the conspirators can be inferred from the circumstances proved by the prosecution, if such inference is possible.
In Mohammad Usman Mohammad Hussain Maniyar & Ors. v.
State of Maharashtra, (1981)2 SCC 443 it was observed that for an offence under Section 120B , the prosecution need not necessarily prove that the perpetrators expressly agree to do and/or cause to be done the illegal act, the agreement may be proved by necessary implication.FIR No. 11/97 P.S. Kotla Mubarakpur Page No.19 of 26
In Kehar Singh & Ors. v. State (Delhi Administration), (1988)3 SCC 609, the gist of the offence of the conspiracy has been brought out succinctly in the following words: "The gist of the offence of conspiracy then lies, not in doing the act, or effecting the purpose for which the conspiracy is formed, nor in attempting to do them, nor in inciting others to do them, but in the forming of the scheme or agreement between the parties. Agreement is essential. Mere knowledge, or even discussion, of the plan is not, per se, enough."
Again in State of Maharashtra & Ors. v. Som Nath Thapa & Ors., 1996(2) RCR(Criminal) 480 : (1996)4 SCC 659, a three-Judge Bench of this Court held that to establish a charge of conspiracy knowledge about indulgence in either an illegal act or a legal act by illegal means is necessary. In some cases, intent of unlawful use being made of the goods or services in question may be inferred from the knowledge itself. This apart, the prosecution has not to establish that a particular unlawful use was intended, so long as the goods or service in question could not be put to any lawful use.
More recently, in State (NCT of Delhi) v. Navjot Sandhu @ Afsan Guru, 2005(3) Apex Criminal 49 : (2005)11 SCC 600 making exhaustive reference to several decisions on the point, including in State Through Superintendent of Police, CBI/SIT v. Nalini & Ors., 1999(2) RCR(Criminal) 682 : (1999)5 SCC 253 Venkatarama Reddi, J. observed thus :
"Mostly, the conspiracies are proved by the circumstantial evidence, as the conspiracy is seldom an open affair. Usually both the existence of the conspiracy and its objects have to be inferred from the circumstances and the conduct of the accused (per Wadhwa, J. in Nalini's case at page 516). The well known rule governing circumstantial evidence is that each and every incriminating circumstance must be clearly established by reliable evidence and "the circumstances proved must form a chain of events from which the only irresistible conclusion about the guilt of the accused can be safely drawn and no other hypothesis against the guilt is possible." (Tanviben Pankajkumar case ((1997)7 SCC 156), SCC page 185, FIR No. 11/97 P.S. Kotla Mubarakpur Page No.20 of 26 para 45). G.N. Ray, J. in Tanibeert Pankajkumar observed that this Court should not allow the suspicion to take the place of legal proof."
Thus, it is manifest that the meeting of minds of two or more persons for doing an illegal act or an act by illegal means is sine qua non of the criminal conspiracy but it may not be possible to prove the agreement between them by direct proof. Nevertheless, existence of the conspiracy and its objective can be inferred from the surrounding circumstances and the conduct of the accused. But the incriminating circumstances must form a chain of events from which a conclusion about the guilt of the accused could be drawn. It is well settled that an offence of conspiracy is a substantive offence and renders the mere agreement to commit an offence punishable even if an offence does not take place pursuant to the illegal agreement.
12. As discussed above the Hon'ble Supreme Court has held that criminal conspiracy is hatched in secrecy. The conspiracy between the accused persons can be proved through circumstantial evidence, especially the conduct of the accused persons.
13. PW6 Sh. Ravinder Kumar stated that in the year 199394 accused Balbir Singh and Balwant Singh were his tenants at 3 rd Floor H. No.1897, Uday Chand Marg, Kotla Mubarakpur. The accused were running their office of Tour & Travels at the said premises. PW5 Sh. Darshan Singh, Assistant Manager, Indian Overseas Bank stated that current account No.3753 was in name of Metro Travel Service, 1897, Uday Chand Marg, Kotla Mubarakpur. The current account opening form was in the name of accused Balbir Singh. PW8 Sh. Raj Kapoor, Sr. Manager, FIR No. 11/97 P.S. Kotla Mubarakpur Page No.21 of 26 Indian Overseas Bank, Defence Colony Branch stated that the procedure of said current account No.3753 was mainly done by Balbir Singh. No transaction was entered in the said current account since January, 1997. Bank statement of the said bank account for the period 1997 to 10.03.2005 is Ex.PW8/A.
14. Around the time when present matter was reported to the police, the accused persons closed down the office of the Metro Travel Service at 1897, Uday Chand Marg, Kotla Mubarkpur. The accused Balbir absconded and was later arrested and produced before the Court. The accused Balbir was absconding up till 2002. PW15 SI Ramesh Chand Kaushik stated that on 30.07.1997 he received information about the arrest of accused Kulwant, PW15 went to Tis Hazari Courts and formally arrested the accused Kulwant. The FIR of this case was registered on 05.01.1997 and accused Kulwant was arrested on 30.07.1997. He was arrested by the local police of some other area. It shows that even accused Kulwant was evading arrest in this case. This being the subsequent conduct of the accused persons is relevant.
15. The prosecution has proved that "Metro Travel Service" was in existence, around the time of incident. The accused persons including the deceased Balwant Singh were directly associated with the Metro Travel Service. When the matter was reported to the police, the accused persons absconded and the office of Metro Travel Service was closed down abruptly. PW1 stated that he was sent by the accused persons, to appear in a interview at Ashram and he was also sent for medical FIR No. 11/97 P.S. Kotla Mubarakpur Page No.22 of 26 examination. PW2 stated that his trade test was conducted at the office of the accused persons.
A large number of persons including PW1, PW2, PW9, PW11, PW13, & PW14 gave money to the accused persons, for being sent abroad for employment. All these PWs stated that the accused persons inspite of receiving money did not send them abroad. Fake interviews & trade tests were conducted and a number of persons complained that the accused persons received money from them but did not send them abroad. These facts are indicative that the accused persons were working under a common preplanned design. The picture that emerges upon the basis of the evidence on record clearly shows that all the three accused persons had a meeting of mind to execute a common plan. In view of the facts as discussed above, the Court is left with no option but to arrive at the inescapable conclusion that all the three accused persons conspired to cheat public at large by falsely promising to send them abroad for gainful employment and jobs.
16. PW2 stated that he made a payment of Rs.30,000/ to the accused persons at their office. During crossexamination PW2 stated that at the time of first payment accused Kulwant and Balbir was present in the office. At the time of second payment all the three accused persons were present. The payment was made to the accused persons at the office of Metro Travel Service. PW11 stated that he made a payment of Rs.40,000/ to accused Balbir. The accused Balbir assured about the arrangement of tickets for going to Dubai but he did not arrange the tickets. PW13 FIR No. 11/97 P.S. Kotla Mubarakpur Page No.23 of 26 also stated that he made a payment of Rs.25,000/ to accused Balbir. Thereafter PW13 was sent to Mumbai. He went to Mumbai at the office of AlWakil Enterprises. He was told by the manager of the said agency that they have not received any money on his behalf from accused Balbir.
It shows that the accused persons did not make any payment to Al Wakil Enterprises on behalf of PW13. Whereas PW13 was given to understand that payment has been made on his behalf, out of the money which he gave to the accused persons.
PW14 also stated that at the direction of accused Balbir he gave Rs. 17,000/ to one Sh. Harun Qureshi for going to Saudi Arab. However, when he went to Mumbai, he found that his name was missing from list of candidates selected for going abroad.
17. Ld. Counsel for accused persons argued that the accused Balbir & Kulwant were the employees and accused Balwant was the owner of Metro Travel Service.
It is observed that on 31.07.1998 at the time of arguments on charge, it was argued on behalf of accused Balwant & Kulwant that the accused Balbir (since proclaimed offender at that time) was the master and the other accused persons were his employees.
It is clear that the accused persons have taken contradictory stands. In view of the same, the plea taken by the accused persons is not maintainable. Hence FIR No. 11/97 P.S. Kotla Mubarakpur Page No.24 of 26 this arguments on behalf of accused persons is rejected.
18. Ld. Counsel for accused persons also argued that when accused Balwant expired, the PWs started deposing that they have given money to accused Balbir.
If this contention raised on behalf of accused were true, there was ample opportunity and a legal right of the accused to confront the PWs with their statement U/s 161 Cr.PC. The same was not done. In view of this omission on behalf of accused, the Court does not find any merits in this arguments. Accordingly, this argument is rejected.
Section 15 of The Indian Evidence Act, 1872 reads as under : "Facts bearing on question whether act was accidental or intentional.When there is a question whether an act was accidental or intentional, (or done with a particular knowledge or intention,) the fact that such act formed part of a series of similar occurrences, in each of which the person doing the act was concerned, is relevant".
In the present case repeatedly one after the other the clients of the accused persons found out that they were given false assurances. The series of events/similar occurrences goes to show that the act of the accused persons were intentional and not accidental or due to any reasons beyond their control.
19. In view of testimony of PW1, PW2, PW9, PW11, PW13, & PW14, it FIR No. 11/97 P.S. Kotla Mubarakpur Page No.25 of 26 is clearly established that the accused persons in pursuance of the criminal conspiracy fraudulently induced the aforementioned PWs to deliver property, for which the accused persons from the very beginning never intended to provide any services to the aforementioned PWs.
20. In view of above, the prosecution has proved its case against all the three accused persons beyond reasonable doubt. The accused Balwant has already expired. The accused Balbir Singh & Kulwant Singh are convicted for the offences punishable U/s 420 IPC read with Section 120B IPC.
21. Let the parties be heard on the point of sentence.
Pronounced in open court (RAJINDER SINGH)
on 10.04.2012 MM04(South):Saket Courts:New Delhi
10.04.2012
FIR No. 11/97
P.S. Kotla Mubarakpur Page No.26 of 26