Delhi District Court
State vs . Balbir Singh & Ors. on 12 September, 2013
IN THE COURT OF SHRI RAJINDER SINGH: METROPOLITAN
MAGISTRATE04 (SOUTH), SAKET COURTS:NEW DELHI
State Vs. Balbir Singh & Ors.
FIR No. 724/1996
U/s 406/420/34 IPC
P.S. Kotla Mubarak Pur
J U D G M E N T
Serial No. of the Case : 258/2
Unique Identification No. : 02406R0022041997
Date of Institution : 09.09.1997
Date on which case reserved for
judgment : 03.09.2013
Date of judgment : 12.09.2013
Name of the complainant : Sh. Raj Narain
C/o Sh. Krishan Mohan
s/o Sh. Vishwa Nath
r/o B724, New Sabzi Mandi, Azadpur
Delhi
Date of the commission of offence: In the month of August, 1994
FIR No. 724/1996
P.S. Kotla Mubarak Pur Page No.1 of 34
Name of accused : (i) Balbir Singh
s/o Sh. Jaswant Singh
r/o C8, Subhash Park, Uttam Nagar
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 406/420/34 IPC
Offence charged of : U/s 420 IPC read with Section 120B
IPC
Plea of the accused : Pleaded not guilty.
Final order : Accused Balwant Singh expired.
Accused Balbir Singh & Kulwant
Singh convicted.
Date of Institution : 09.09.1997
Date on which case reserved for
judgment : 03.09.2013
Date of judgment : 12.09.2013
FIR No. 724/1996
P.S. Kotla Mubarak Pur Page No.2 of 34
BRIEF STATEMENT OF REASONS FOR
THE DECISION OF THE CASE
BRIEF FACTS:
During the year 199596 the accused Balbir Singh, accused Balwant 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 including the complainant. 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 06.08.1995 the complainant Sh. Raj Narayan read an advertisement in the newspaper "Punjab Kesari", with regard to employment opportunity in Kuwait. On 10.08.1995 the complainant went to the Office of the accused persons. The complainant was interviewed. His passport No.739263 and some photographs were taken by the accused persons. In December, 1995 the complainant was asked to pay a sum of Rs.35,000/, the same was given by the complainant to the accused persons. Upon demand the accused persons refused to issue any receipt. The medical examination of the complainant was also got conducted. The accused persons assured FIR No. 724/1996 P.S. Kotla Mubarak Pur Page No.3 of 34 the complainant that he will be sent to Kuwait for employment. Subsequently he was told that he will be sent to Dubai. He was asked to come on 27.11.1996. On 28.11.1996 the complainant came to Delhi, the next day he went to the office of Metro Travel Service. The said office was found closed. In the complaint, the complainant has referred to accused Balbir Singh & Balwant Singh as "Maalik" i.e. the owner. He prayed that Balbir Singh & Balwant Singh be arrested and his passport and money be got recovered.
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.
The accused Balwant Singh expired during the pendency of the trial. His death was got verified. Vide order dated 13.03.2001 the proceedings against accused Balwant Singh stood abated.
2. The report U/s 173 Cr. P.C. 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 10.10.2002. Cognizance of the offences was taken. Compliance of Section 207 Cr. P.C. was done.
3. Arguments on charge on behalf of accused Balwant & Kulwant were advanced. Both the accused persons argued that they were the servants of accused FIR No. 724/1996 P.S. Kotla Mubarak Pur Page No.4 of 34 Balbir Singh (proclaimed offender) and they had no role in the acts committed by accused Balbir Singh.
Charge for the offence punishable 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 24.10.2002. All accused pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE :
4. The prosecution to prove its case examined 19 (nineteen) PWs in all.
PW1 Sh. Naresh Kumar (examined on 11.05.1999) stated, about three years ago I saw an advertisement regarding some vacancies in the newspaper 'Punjab Kesari'. I went to the given address at 1897, Kotla Mubarak Pur. There I met Balbir Singh, Kulwant Singh & Balwant Singh. I did not have any communication with Balwant Singh & Kulwant Singh. Accused Balbir agreed to send me to Dubai for job on payment of Rs.40,000/. The matter was settled at Rs.35,000/. I handed over Rs.35,000/ to accused Balbir at his house at Uttam Nagar. He did not issue any receipt. The accused Balbir kept befooling me.
(With permission of the court, Ld. APP crossexamined the witness.) PW1 stated that only accused Balbir Singh induced him to deliver money.
During crossexamination by Sh. S. M. Sahi, Ld. Counsel for FIR No. 724/1996 P.S. Kotla Mubarak Pur Page No.5 of 34 accused Balwant Singh, PW1 stated, I gave the entire amount of Rs.35,000/ to accused Balbir Singh. In my complaint Ex.PW1/A, I requested the police to get my money refunded from all the three accused. Vol. I also mentioned the name of accused Kulwant. I do not know how the same was not mentioned in my statement to the police. It is true that I never talked to accused Balwant & Kulwant in the office at Kotla Mubarak Pur.
On 16.10.2006 the accused was recalled for examination, since at the time of his earlier examination accused Balbir Singh was proclaimed offender, PW1 stated, I saw advertisement in the newspaper and went to the said office. I handed over my passport to accused Balbir and returned home. When I again visited the premises, it was found locked.
(With permission of the court, Ld. APP reexamined the witness.) PW1 stated, it is wrong to suggest that I handed over Rs.35,000/ to accused Balwant & Kulwant. It is wrong to suggest that accused Kulwant also met me at the office. It is wrong to suggest that I compromised the matter with the accused person outside the court.
PW2 Ms. Manjit Kaur stated, on 06.08.1996 I saw some vacancy advertisement in the newspaper. I went to the given address at 1897, Udai Chand Marg, Kotla Mubarak Pur. The accused persons Balwant Singh & Kulwant Singh (correctly identified) were present there. I inquired about the newspaper advertisement. The accused persons told me that if I had a passport I should go to Hari Nagar Ashram Chowk for interview. There I was interviewed by some persons whose FIR No. 724/1996 P.S. Kotla Mubarak Pur Page No.6 of 34 names I do not remember. They issued a certificate to me. I returned to the accused persons' office at Udai Chand Marg. I was told that I had qualified the interview. I was asked to come again with passport and Rs.40,000/. On 10.08.1996 I gave Rs.20,000/ and my passport to the accused persons. I was asked to come again after few days. On 30.10.1996 the accused persons showed me a list where my name was mentioned. I gave Rs.10,000/ to them. Later, on 30.11.1996 I gave Rs.10,000/ to the accused persons. When I again visited the office of the accused persons, nobody was found there. Upon inquiry, I came to know that the office was raided by the local police. My passport and the money was not returned by the accused persons. Receipts for the payment of Rs.10,000/ and Rs.20,000/ made to the accused persons, were issued by them. (The original receipts were produced by the witness. The same are Ex.P1 & Ex.P2). The accused persons took money from me for arranging a job which they did not do.
During crossexamination by Sh. M. S. Sahi, Ld. Counsel for accused Balwant Singh, PW2 stated, I met accused Balbir Singh at the office and handed over Rs.20,000/ to him. It is wrong to suggest that I never paid any amount to accused Balwant Singh at any time. The receipts Ex.P1 & Ex.P2 were issued by one person. It is wrong to suggest that these receipts were issued by different persons. I gave a written complaint to the police. At the time of lodging of complaint, the original receipts were not produced. It is wrong to suggest that I did not have the receipts with me at all. It is wrong to suggest that I have fabricated the receipts that is why I could not give the same to the police during investigation. During inquiry, the FIR No. 724/1996 P.S. Kotla Mubarak Pur Page No.7 of 34 neighbours told me that the accused persons vacated the office in November, 1996. I met accused Balbir Singh at the said office, on a number of occasions.
During crossexamination by Sh. S. L. Bhardwaj, Ld. Counsel for accused Kulwant, PW2 stated, I cannot say what job was assigned to accused Kulwant, he did not obtain my signatures on any document. I did not pay any amount to accused Kulwant. 1012 persons were employed at the said office. The accused Kulwant was not present during my interview. It is wrong to suggest that accused Kulwant was standing outside the room as he was only an employee. It is wrong to suggest that I never had any contact with accused Kulwant.
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 FIR No. 724/1996 P.S. Kotla Mubarak Pur Page No.8 of 34 wrong to suggest that neither I joined the investigation nor any recovery was effected 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 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. Certified true copy of the same is Ex.PD.
During crossexamination by Ld. Counsel for accused Balbir, PW4 stated, I do not personally know the account holder.
PW5 HC Inder Singh(duty officer) is a formal witness. He proved the copy of FIR Ex.PW5/A. PW6 Sh. Amarjeet stated, in the year 1996 I read an advertisement in the newspaper. Metro Travel Services advertised some vacancies for auto electricians. In the year 1995, I contacted the accused Balbir Singh (correctly identified) I also contacted other accused persons Balwant & Kulwant. The accused FIR No. 724/1996 P.S. Kotla Mubarak Pur Page No.9 of 34 persons verified my passport and my experience certificate. I was told that I had been selected and I will be sent abroad. The accused persons asked for Rs.35,000/. I paid Rs.33,000/ to accused Balbir. The accused Kulwant also collected some part payment from my house. They also showed me my visa documents. They sent a telegram to me, informing me about my selection. The accused persons took my passport and did not return the same nor did they sent me abroad for job.
PW7 Sh. Madan Lal stated, I read in the newspaper, an advertisement by Metro Travel Agency, for sending abroad, persons for employment. I went to the said office. Both the accused (correctly identified) along with another since expired met me and verified my passport. They demanded Rs.40,000/ from me. I paid the said amount to the accused persons. They also sent me for medical examination. At the instance of the accused persons I went to Bombay (sic) but I was not sent abroad. The accused persons did not return my money.
PW8 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.
PW9 Sh. Chiranji Lal stated, in the year 1996 I read an advertisement by Metro Travel Agency, for sending abroad, persons for employment. I went to the FIR No. 724/1996 P.S. Kotla Mubarak Pur Page No.10 of 34 said office. Accused Balwant & Kulwant met me. They saw my passport and asked for Rs.40,000/ for sending me abroad. I paid the amount to the accused persons in two installments. The accused persons did not send me abroad nor did they return my money and passport. Both the accused persons cheated me.
PW10 Sh. Raj Kapoor (Senior Manager, Indian Overseas Bank, Defence Colony Branch) stated, in the year 1994 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.PW10/A. PW11 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. However, the other accused persons and the case property could not be traced. 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 in FIR No.11/97 P.S. Kotla Mubarak Pur. We further went to the house of the accused. There 7 more passports were recovered and seized vide seizure memo Ex.PW3/A. The MHC(M) produced two bundles having 7 passports FIR No. 724/1996 P.S. Kotla Mubarak Pur Page No.11 of 34 and 6 passports respectively. The bundle containing seven passports, contained the passports of S/Sh. Mangal, Ramesh, Veru Ram, Anil Kumar, Madan Lal, Mohd. Mustaq & Om Prakash. The same are Ex.P1 collectively. The second bundle contained 6 passports belonging to S/Sh. Gopal Nayar, Ajeet Ram, Gurnam Singh, Karam Chand, Sukhvinder Singh and Ms. Manjit Kaur, the same are Ex.P2 collectively.
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.
PW12 Sh. Dara Singh stated, through an advertisement in Punjab Keasri newspaper I came to know about Metro Travel Agency. On the basis of advertisement I went to the Office of Metro Travel Agency. There I met accused Balbir Singh & Kulwant Singh. I identify the accused Balbir & Kulwant. All the accused persons interviewed me. They asked for Rs.40,000/ for sending me to Dubai, but agreed to receive Rs.37,000/. After about 15 days, I again went to the said office. All the three accused persons showed a document to me and told me that it was my visa. They asked me to arrange for the money. I arranged for the money and handed over Rs.37,000/ to accused Balwant, at that time he was alone. After two days, I again went to the said office and met accused Balbir & Kulwant. I told them about the payment. They told me not to worry as all of them were partners. They assured me that I will be sent to Dubai within 34 days. After 4 days, I again visited FIR No. 724/1996 P.S. Kotla Mubarak Pur Page No.12 of 34 the said office. All three accused persons met me and asked me to wait for one week. They kept me waiting for three months. When I demanded my money back, they returned Rs.12,000/ and assured me to return the balance amount. Later I came to know that the said office has been closed and the accused persons have left their office.
During crossexamination by Ld. Defence Counsel, PW12 stated, the accused persons did not issue any receipt for the payments which I made. There were 6 persons working in the office including the three accused persons. When I first visited the office, there were 12 candidates who were interested in going abroad. They came for interview. It is wrong to suggest that the accused persons present in the court today did not cheat me.
PW13 SI Ramesh Chand Kaushik stated, on 30.07.1997 I was posted at P.S. Kotla Mubarak Pur. 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. I identify the accused present in the court today.
PW14 SI Suraj Bhan (IO of this case) stated, on 01.12.1996 I was posted as an SI at P.S. Kotla Mubarak Pur. On that day, I received a written complaint Ex.PW14/A from the complainant Sh. Ran Narayan Prasad. I prepared the rukka Ex.PW14/B and got the case registered. On 11.01.1997 I arrested the accused Balwant and conducted his personal search vide memo Ex.PW14/C. On 18.01.1997 the other victims who were cheated by the accused persons also met me. I seized the FIR No. 724/1996 P.S. Kotla Mubarak Pur Page No.13 of 34 passports vide memo Ex.PW3/A. I also seized the receipt and photocopies of the cheques produced by the witnesses/victims. The receipts produced by witness/victim Chiranji Lal were seized vide memo Ex.PW14/E. Photocopies of the receipts are MarkA. Photocopies of the cheques are marked B, C, D & E. Seven passports seized in this case are Ex.P2 collectively.
PW15 Sh. Suresh Kumar Narula stated, in the year 1996 I was working as Assistant Manager at Richi Rich Restaurant Chankyapuri. In the year 1996 I saw an advertisement in the newspaper "Punjab Kesari'. It was got published by Metro Travel, for sending people abroad for job. I went to the office of the said travel agency at Kotla Mubarak Pur. Accused Balbir Singh, Kulwant Singh & Balwant Singh met me. I talked to accused Balbir Singh (correctly identified), in the presence of other accused persons. Accused Balbir Singh asked for Rs.50,000/. After one and half month I again contacted him. He told me that my visa for Abu Dhabi was ready. He asked me to make the payment. I paid Rs.50,000/ in three installments. He also signed two receipts. One receipt was signed by a lady. Copies of the same are Ex.P15/A1 to Ex.P15/A3 (OSR). The accused also gave me a visa, copy of the same is Mark15/B (OSR). On the assurance of the accused, I resigned from my previous job. He repeatedly assured me to send abroad. When I demanded back my money, the accused issued a cheque to me. The same was dishonoured twice on presentation. Copy of the said cheque and two memos are Ex.PW15/C1 to C3. The accused persons neither returned my money nor they sent me to Abu Dhabi. Except for accused Balbir (correctly identified) I did not talk to any other accused. FIR No. 724/1996 P.S. Kotla Mubarak Pur Page No.14 of 34
In reply to leading question by the Ld. APP, PW15 stated, it is true that I made the payments on 16, 18 & 19.09.1996.
During crossexamination by Sh. S. K. Atri, Ld. Counsel, PW15 stated, when I reached the office of the accused persons, one more client was there. He was talking to accused Balbir. It is wrong to suggest that I have fabricated the documents later on. I also gave the copies of these documents to the IO during investigation of this case.
PW16 Sh. Pyara Singh stated, I and my cousin brother handed over Rs.35,000/ to the accused persons present in the court today, for going abroad. The accused persons did not give any documents nor did they return the money. Upon demand, accused Balbir & Balwant promised to hand over passport and ticket but they did not fulfill their promise. The accused had written a letter that they will hand over passport and ticket to me but they did not hand over the same to me. I came to know that the accused persons were arrested in this case. I went to the jail to meet the accused. I identify accused Balbir present in the court today (Ld. Counsel did not dispute the identity the accused Balwant).
In reply to the leading questions put by Ld. APP, PW16 stated, Jagdish also handed over Rs.46,000/ to the accused.
PW17 Ct. Yogender Singh is formal witness. He accompanied PW14 during investigation.
PW18 Sh. Ram Varan (examined on 15.02.2012) stated, on 19.08, FIR No. 724/1996 P.S. Kotla Mubarak Pur Page No.15 of 34 the year I do not remember about 1516 years ago, I gave Rs.10,000/ & Rs.25,000/ to accused Balbir & Balwant at their office at Kotla Mubarak Pur, for sending me abroad. The accused persons handed over one passport to me. They took me to Hari Om Hotel Bombay (sic). I stayed there. The accused persons told me that on 12th I will board my flight. I was again informed that my flight is rescheduled for 16 th. Thereafter the accused persons went away from Bombay (sic). I returned to Delhi and went to the office of accused persons. The office was found abandoned.
In reply to the leading questions put by Ld. APP, PW18 stated, I handed over my passport and money to accused Balwant & Balbir. My passport number was 233834. The accused persons did not return the same to me.
During crossexamination by Sh. I. S. Kapoor, Ld. Counsel for both the accused, PW18 stated, the office of the accused was quite big. Accused Balwant Singh was head of the office. I gave the money to him. He issued a receipt to me, which I have lost. I did not hand over the receipt to the police. Accused Balwant took me to Hari Om Hotel at Bombay. He also took 1012 persons along with me.
PW19 Sh. Nirmal Singh stated, on 23.01.1997 I gave Rs.35,000/ cash to accused Balwant Singh (since expired) at his office at Metro Travel Kotla Mubarak Pur for sending my son abroad. Accused Balbir (correctly identifed) was also present there. Both the accused persons were running the office of Metro Travel Service at Kotla Mubarak Pur. Accused Balbir and Kulwant called us to Bombay (sic). We FIR No. 724/1996 P.S. Kotla Mubarak Pur Page No.16 of 34 went to Bombay. Both the accused met us there. He returned to Delhi. The said office of the accused persons were found locked. One cheque in the sum of Rs. 15,000/ was handed over to me by accused Balwant. The same were dishonoured on presentation.
During crossexamination by Ld. Defence Counsel, PW19 stated that it is true that Metro Travel was run by accused Balwant Singh. Accused Balbir and Kulwant never had any financial transaction with me.
Public witnesses Sh. Raj Narayan, Sh. Ram Dhyan, Sh. Shamsul & Sh. Anil Kumar were reported untraceable despite service through DCP concerned.
Vide order dated 14.12.2005, PE was closed.
Thereafter vide order dated 20.04.2006 PW1 & PW2 were allowed to be recalled since they were examined while accused Balbir was a proclaimed offender. On 16.10.2006 PW1 was recalled and examined. PW2 was unserved. She was summoned again. PW3 was also recalled and examined.
Vide order dated 15.12.2012, again PE was closed.
FIR No. 724/1996 P.S. Kotla Mubarak Pur Page No.17 of 34 STATEMENT OF ACCUSED :
5. On 17.01.2013, separate statements of both the accused Kulwant Singh & Balbir Singh U/s 313 Cr. PC were recorded. They denied all the allegations against them.
The accused Balbir Singh stated that the current account was opened in his name by Balwant Singh. Accused Balwant took all the money. He followed the instruction of accused Balwant. He did not wish to lead defence evidence.
The accused Kulwant stated that he was only an employee at the said office. He wanted to lead defence evidence.
Accused Balwant already expired.
DEFENCE EVIDENCE :
6. The accused Kulwant examined himself as defence evidence under Section 315 Cr.P.C, he produced the certified copy of judgment of Ld. District Judge (South), Saket Courts, passed in criminal appeal No.91/12 & 92/12 in FIR No. 11/97 P.S. Kotla Mubarak Pur. Copy of the said judgment is Ex.DW1/A collectively.
Vide statement dated 10.04,2013, the accused Kulwant closed his defence evidence.
FIR No. 724/1996 P.S. Kotla Mubarak Pur Page No.18 of 34 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 material prosecution witnesses have fully supported the prosecution case. The bank account of Metro Travel Service is also proved. The 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. 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 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. FIR No. 724/1996 P.S. Kotla Mubarak Pur Page No.19 of 34
The accused persons Balbir Singh & Kulwant were convicted by this court in FIR No.11/97 P.S. Kotla Mubarak Pur U/s 420 IPC read with Section 120B IPC. However, in the appeal Ld. Appellate Court acquitted the accused Kulwant Singh. It was held that accused Kulwant was only an employee in the Metro Travel Services and he had no role in the alleged conspiracy. The certified copy of judgment of Ld. Appellate Court is Ex.DW1/A. The passports were recovered from accused Balwant. None of the witnesses gave any money to accused Kulwant. The prosecution has failed to prove its case beyond reasonable doubt. REASONING :
8. Initially on 09.09.1997 the chargesheet was filed against accused Balwant Singh & Kulwant Singh. The accused Balbir was proclaimed offender.
Accused Balbir was arrested and produced before the Court on 10.10.2002. On the same day, supplementary chargesheet was filed against accused Balbir Singh.
On 31.07.1998 charge for the offences punishable 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. The accused Kulwant & FIR No. 724/1996 P.S. Kotla Mubarak Pur Page No.20 of 34 Balwant had nothing to do with the cheating.
On 24.10.2002 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 were examined. On 20.04.2006 the matter was fixed for statement of accused U/s 313 Cr.P.C. Ld. APP pointed out that certain PWs were examined during the period when the accused Balbir was proclaimed offender. Vide order dated 20.04.2006, PW1 & PW2 were directed to be recalled.
On 16.10.2006 PW1 was recalled and examined. Despite repeated efforts, PW2 Ms. Manjit Kaur could not be served and she could not be reexamined in the presence of accused Balbir Singh.
On 20.10.2003 PW3 Ct. Brajesh was recalled and examined in the presence of accused Balbir.
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 FIR No. 724/1996 P.S. Kotla Mubarak Pur Page No.21 of 34 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.
PW1, PW2 & PW3 were initially examined during the period when accused Balbir was proclaimed offender. As already observed above, PW1 & PW3 were recalled and reexamined in the presence of accused Balbir. In view of provisions of Section 299 Cr.P.C., it is clear that since the testimony of the PW2 Ms. Manjit Kaur was recorded during the period when accused Balbir Singh was absconding and later on PW2 could not be served despite best efforts, the testimony of PW2 can be read in evidence against accused Balbir Singh. FIR No. 724/1996 P.S. Kotla Mubarak Pur Page No.22 of 34 EVIDENCE WITH REGARD TO EXISTENCE OF METRO TRAVEL SERVICE:
9. PW4 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. The copy of Nomination Form is Ex.PB. The copy of signature card is Ex.PC. PW10 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.PW10/A. PW1, PW2, PW7, PW9, PW12, PW15 & PW19 also stated that they went to the office of Metro Travel Service, at Uday Chand Marg, Kotla Mubarak Pur and met the accused persons there. PW1, PW2, PW6, PW7, PW9, PW12 & PW15 also stated that they read an advertisement in the newspaper Punjab Kesari, the said advertisement was got published by Metro Travel Service, it was with regard to sending people abroad for employment. In view of above, it is established that the office of the Metro Travel Service was in existence during the relevant period at H. No. 1897, Uday Chand Marg, Kotla Mubarak Pur. FIR No. 724/1996 P.S. Kotla Mubarak Pur Page No.23 of 34 EVIDENCE WITH REGARD TO ASSOCIATION OF THE ACCUSED PERSONS WITH METRO TRAVEL SERVICE:
10. PW4 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. The copy of Nomination Form is Ex.PB. The copy of signature card is Ex.PC. Therein the name of the accused Balbir Singh is mentioned. It also bears the photocopy/impression of the photograph of accused Balbir Singh. PW10 Sh. Raj Kapoor produced the bank statement of current account No.3753, in the name of Metro Travel Service. PW10 further stated that the procedure of the said account was done mainly by Balbir Singh. PW1 stated that he went to the office of Metro Travel Service and met all three accused persons, Balwant Singh, Kulwant Singh & Balbir Singh. PW2 stated that she met accused Balwant & Kulwant at the office of Metro Travel Service. She further stated that she handed over Rs.20,000/ to accused Balbir Singh. PW6 stated that he met all the accused persons at the said office. They verified his passport and experience certificate. He was told that he has been selected for being sent abroad. PW7 also stated that the accused persons Balbir & Kulwant along with the other accused (since expired) met him and verified his passport. PW9 stated that accused Balwant & Kulwant saw his passport and demanded Rs.40,000/ for sending him abroad. PW12 stated that all the accused persons interviewed him and asked for Rs.40,000/ for sending him abroad. All the accused persons told him FIR No. 724/1996 P.S. Kotla Mubarak Pur Page No.24 of 34 that they were partners. When PW12 revisited the office of Metro Travel Service, all three accused persons asked him to wait for one week. PW15 stated that all three accused met him at the office of Metro Travel Service. PW18 stated that the accused Balbir & Balwant met him at the said office. PW19 also stated that the accused persons met him at the office of Metro Travel Service. Accused Balbir & Kulwant asked him to travel to Bombay (Mumbai), when PW19 went to Mumbai, both accused Kulwant & Balbir met him.
The abovementioned PWs identified the accused persons before the Court. All these PWs stated that the accused persons met them during their visits at the office of Metro Travel Service. PW12 categorically stated that all three accused persons claimed that they were partners.
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 FIR No. 724/1996 P.S. Kotla Mubarak Pur Page No.25 of 34 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.
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.
FIR No. 724/1996 P.S. Kotla Mubarak Pur Page No.26 of 34
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, 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 FIR No. 724/1996 P.S. Kotla Mubarak Pur Page No.27 of 34 proved through circumstantial evidence, especially the conduct of the accused persons.
13. PW4 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 Ex.PA was in the name of accused Balbir Singh. It bears the date 03.07.1995. The bank statement Ex.PD is for the period 01.01.1996 to 17.10.2003. PW10 Sh. Raj Kapoor, Sr. Manager, 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.PW10/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. PW13 SI Ramesh Chand Kaushik stated that on 30.07.1997 he received information about the arrest of accused Kulwant, PW13 went to Tis Hazari Courts and formally arrested the accused Kulwant. The FIR of this case was registered on 01.12.1996 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. FIR No. 724/1996 P.S. Kotla Mubarak Pur Page No.28 of 34 The accused Balbir was also absconding and he was arrested in the year 2002. This being the subsequent conduct of the accused persons is relevant. It indicates that the accused persons went missing in pursuance of a common designed plan.
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. PW2 stated that the accused persons told her that if she had a passport, she should go to Hari Nagar Ashram Chowk. She went to the said place where she was interviewed and a certificate was also issued to her. When she returned to the office of accused persons, she was told that she had qualified the interview. PW7 stated that the accused persons sent him for a medical examination. At the instance of accused persons he also went to Mumbai. PW12 stated that the accused persons showed him a document and told that it was his visa. PW19 stated that the accused persons asked him to go to Mumbai. He went to Mumbai. The accused persons also met him there.
Ld. Counsel for accused persons argued that after conviction in FIR No. 11/97 P.S. Kotla Mubarak Pur the accused persons preferred appeal against the said conviction. The Ld. Appellate court acquitted the accused Kulwant Singh. It was argued that the Ld. Appellate COurt came to a conclusion that accused Kulwant was only an employee at the office of Metro Travel Service. As such the accused FIR No. 724/1996 P.S. Kotla Mubarak Pur Page No.29 of 34 Kulwant cannot be held to have any control over the affairs of Metro Travel Services and he is not involved in the conspiracy alleged in this case.
With great respect, in my considered opinion the judgment of the Ld. Appellate Court in FIR No. 11/97 P.S. Kotla Mubarak Pur is not a judgment in rem. The said judgment is based upon the evidence led by the prosecution in FIR No. 11/97 P.S. Kotla Mubarak Pur. The question about the involvement of accused persons including accused Kulwant in the conspiracy alleged in the present case, is to be decided purely on the basis of evidence before the Court in this case.
As already observed, the material PWs stated that the accused Kulwant along with other accused persons met them at the office of Metro Travel Service. PW12 specifically stated that when he expressed his anxiety, all three accused persons asked him to rest assured, all three accused persons told PW12 that they were partners. It shows the nature of association which the accused persons had with each other in the background of their association with Metro Travel Services. PW12 & the other witnesses examined on behalf of prosecution are independent public witnesses. There is no history/allegation of any previous enmity between the accused persons and the material PWs. There is no cogent reason for the material PWs to falsely depose against the accused persons including accused Kulwant. The testimony of PW12 & other material PWs is clear and unblemished.
A large number of persons including PW1, PW2, PW6, PW7, PW9, PW12, PW15, PW16 & PW18 gave money to the accused persons, for being sent abroad for employment. PW19 also handed over Rs.35,000/ cash to accused Balwant FIR No. 724/1996 P.S. Kotla Mubarak Pur Page No.30 of 34 Singh (since expired) upon the promise that his son will be sent abroad for job. All these PWs stated that the accused persons inspite of receiving money did not send them abroad. Fake interviews were conducted and a number of persons complained that the accused persons received money from them but did not send them abroad. An advertisement was also got published through Metro Travel Service in the newspaper "Punjab Kesari". Although the copy of the newspaper was not placed on record, there is no reason to disbelieve the material PWs who stated that they read the said advertisement in the newspaper. 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. PW1 (examined on 11.05.1999) stated that accused Balbir talked to him and Rs.35,000/ was handed over by PW1 to accused Balbir. PW2 stated that on 10.08.1996 she handed over Rs.20,000/ to the accused persons. Again on 30.12.1996 she made payment of Rs.10,000/ to the accused persons. During cross examination, she denied the suggestion that she never paid any money to accused Balwant. PW6 stated that he paid Rs.33,000/ to accused Balbir. The accused Kulwant also collected some part of the payment. PW7 & PW9 paid Rs.40,000/ each FIR No. 724/1996 P.S. Kotla Mubarak Pur Page No.31 of 34 to the accused persons. PW12 gave Rs.37,000/ to the accused persons. PW15 paid Rs.50,000/ to the accused persons. PW16 along with his cousin brother handed over Rs.35,000/ to the accused persons. PW18 gave a total of Rs.35,000/ to the accused persons. The accused Balwant took PW18 to Hari Om Hotel at Mumbai. He also took 1012 other persons along with PW18. PW19 gave Rs.35,000/ to the accused Balwant (since expired).
All these PWs stated that despite having made the payment, the accused persons did not send them abroad for job.
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 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 FIR No. 724/1996 P.S. Kotla Mubarak Pur Page No.32 of 34 Balbir.
If this contention raised on behalf of accused Balbir was 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, PW6, PW7, PW9, PW12, PW15, PW16, PW18 & PW19, it 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.
FIR No. 724/1996 P.S. Kotla Mubarak Pur Page No.33 of 34
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 12.09.2013 MM04(South):Saket Courts:New Delhi
12.09.2013
FIR No. 724/1996
P.S. Kotla Mubarak Pur Page No.34 of 34