Delhi District Court
Fir No.560/01 Ps Janak Puri State vs . Vipin Kumar Handa Etc. on 8 October, 2012
FIR No.560/01 PS Janak Puri State Vs. Vipin Kumar Handa etc.
IN THE COURT OF SHRI PULASTYA PRAMACHALA
ADDL. CHIEF METROPOLITAN MAGISTRATE, WEST
TIS HAZARI COURTS, DELHI
F.I.R. No. 560/01
Police Station: Janak Puri
Under Section 420/467/471 IPC
(a) Case ID number : 02401R0531362002
(b) Date of commission of the : From August 1999 to April 2001.
offence
(c) The name of the complainant : Sh. Satish Madan, S/o Sh. Lal Chand
Madan, R/o. C3/142, Janak Puri, Delhi.
(d) The name of the accused : 1. Vipin Kumar Handa, S/o Sh. Dharambir
persons, their parentage and Handa, R/o 4, Bank Enclave, Rajouri
residence Garden, Delhi.
2. N.K. Handa, S/o Sh. Dharambir Handa,
R/o 4, Bank Enclave, Rajouri Garden,
Delhi.
3. Anita Handa, W/o Vipin Handa, R/o 4,
Bank Enclave, Rajouri Garden, Delhi.
(e) The offence complained of : Under Section 420/467/471 IPC
(f) The plea of the accused : Pleaded not guilty.
(g) The final order : Acquitted.
(h) Final argument concluded on : 1.10.2012.
(I) Judgment passed on : 8.10.2012.
(PULASTYA PRAMACHALA)
Addl. Chief Metropolitan Magistrate
West District, Tis Hazari Courts:Delhi
Page no. 1 of 12
FIR No.560/01 PS Janak Puri State Vs. Vipin Kumar Handa etc.
JUDGMENT
Briefly stated the case set up by prosecution is as follows:
1. On 9.07.2001, complainant Satish Madan made a complaint to DCP, EOW alleging that accused and his wife Smt. Anita Handa were on visiting terms with him and he was resident of Janak Puri. In the year 1999 during August/September, accused told the complainant that he was an approved UTI/LIC agent and allured him to invest money in UTI. Believing upon the rosy pictures given by accused, complainant parted with sum of Rs.13 lacs for buying UTI shares in his name or in the name of his family members. The complainant had to go to Canada, therefore he trusted the accused and handed him over the amount of Rs. 13 lacs. He made number of calls from Canada to accused and his wife to know about purchase of UTI shares but did not get satisfactory reply, except that accused had got master gain 92 shares by spending lot of time and that he would hand over the share scrips to the complainant whenever he returned back. For this purpose, accused obtained the signature of complainant on various forms of UTI. On 26.3.2001, complainant came back to India and thereafter visited the house of accused. Accused assured him to deliver the scripts in original and after some days on 9.4.2001, he handed over the UTI units in the name of complainant, wife of complainant and children of complainant. The complainant found that the names were inserted by rubbing the names of some body else and out of (PULASTYA PRAMACHALA) Addl. Chief Metropolitan Magistrate West District, Tis Hazari Courts:Delhi Page no. 2 of 12 FIR No.560/01 PS Janak Puri State Vs. Vipin Kumar Handa etc. suspicion, he took all the shares of UTI for verification. He was told that no such shares were issued by the UTI. Thereafter he took the shares to the accused at his house and told him that shares were forged. On this accused and his wife assured the complainant that they would give money on 10.4.2001. On 10.4.2001, complainant and his friends visited the house of accused and accused told them that he had spent Rs.1,21,400/on procuring the shares therefore, he would return Rs.11,88,000/ only. Accused took a paper and gave in writing that the shares were in the name of complainant and his family members worth Rs.11,88,600/ and he would return the same amount within two months. The complainant waited for two months but accused did not pay that amount.
2.On the basis of aforesaid complaint, present FIR was registered under Section 406/420/467/471/120B IPC in police station Janak Puri.
Thereafter investigation was conducted by EOW. After completion of the investigation, the charge sheet was filed against accused for the offences under Section 406/420/467/471 IPC on 22.6.2002. On 3.9.04, this Court framed charges against accused Vipin Kr Handa for offences punishable u/s 420/467/471 IPC, to which accused pleaded not guilty and claimed trial.
3.Prosecution examined 12 witnesses in support of its case. Two witnesses were examined giving same number of PW 9. Thereafter, statement of accused was recorded under Section 313 Cr.P.C. on 22.8.2012 in which he stated that he gave 21 UTI certificates of 100 (PULASTYA PRAMACHALA) Addl. Chief Metropolitan Magistrate West District, Tis Hazari Courts:Delhi Page no. 3 of 12 FIR No.560/01 PS Janak Puri State Vs. Vipin Kumar Handa etc. units each to complainant Satish Madan and complainant himself forged the certificates so as to recover the loss suffered by him. He also stated that PW 2 Gurvinder Singh Lamba was his customer and he handed over 9 certificates of 100 units each to him for onward sale. He also stated that only 34 lacs are proved to be paid by the complainant to him. However, despite given opportunities, accused did not lead any evidence in his defence.
4.On behalf of accused, oral as well as written arguments were made before the Court.
FINDINGS :
5.I find it appropriate to refer to charges framed against the accused so that law in question and evidence on record may be analyzed accordingly. Accused was charged with the allegation that in the month of August/September 1999, he met the complainant Satish Madan by claiming himself to be an approved UTI & LIC agent and induced him to invest in UTI scheme and on his assurances, complainant made payment of Rs.13 lacs to the accused but accused did not obtain genuine UTI scripts from UTI in lieu of that amount and thereby committed the offence under Section 420 IPC. Accused was also charged with the allegation that he handed over 22 forged certificates to the complainant and thereby committed the offence under Section 467 IPC and he fraudulently and dishonestly used the said 22 certificates as genuine and handed them over to the complainant and thereby committed the offence punishable under (PULASTYA PRAMACHALA) Addl. Chief Metropolitan Magistrate West District, Tis Hazari Courts:Delhi Page no. 4 of 12 FIR No.560/01 PS Janak Puri State Vs. Vipin Kumar Handa etc. Section 471 IPC.
6.In the present case, in order to bring home the guilt of accused for charges framed against him, prosecution was required to establish that accused cheated the complainant, forged the UTI certificates and used the forged UTI certificates as genuine, knowing the same to be the forged ones. For this, prosecution was also required to prove that accused Vipin Kr Handa dishonestly induced the complainant to make payment of Rs.13 lacs.
7.Complainant was examined as PW2, who deposed that in April 2001 accused gave approximately 22 certificates of UTI to show that he had invested his money. He further deposed that he was in need of some money and accused obtained his signatures on 34 forms and later on claimed that his signatures did not telly with specimen signatures. On suspicion, he visited UTI office at Bahadur Shah Zafar Marg and came to know about forgery. Receipt ExPW2/C was given by accused to father in law of complainant. Some payment was made through cheque and some was withdrawn by accused. ExPW2/DA was signed by him, but accused got signed 34 documents from him on the pretext that he would give the payment to the complainant. ExPW2/DC was old unit and amount was already withdrawn. He denied the suggestion that he forged the certificates which were given to him by the accused.
8.PW 1 deposed that units of UTI, which were given by accused were found fake and accused did not return the amount of Rs.13 lacs.
(PULASTYA PRAMACHALA) Addl. Chief Metropolitan Magistrate West District, Tis Hazari Courts:Delhi Page no. 5 of 12 FIR No.560/01 PS Janak Puri State Vs. Vipin Kumar Handa etc.
9.PW 5 Vinod Kr Gandhi deposed that 400 units were in the name of his father and mother, who used to purchase shares through accused. No dispute was raised by accused to this fact.
10.PW 7 Sh Gurminder Singh Lamba deposed that 1400 units were in his name and his wife. He sold those units through accused and accused gave bill of said units, which is ExPW7/A bearing the signature of accused at point A. The receipts were seized vide memo ExPW4/A. This witness further deposed that he was original allottee of 100 units in each of 14 certificates. In his cross examination,witness deposed that he gave original certificates to accused. Witness stated that he has no knowledge regarding the fact that whenever a person sells the original certificates, those are to be sold to the UTI office.
11.PW 8 Smt. Sarita Srivastava deposed that certificates mentioned by PW 7 were allotted in his name. Other unit holders of units given to complainant was also told by this witness.
12.PW 9 Sh Dharmender, an officer from Karvy Computer shares confirmed such allotment as stated by PW 8 and proved the statement of Account as ExPW9/A.
13.Another PW 9 Insp. Vinod Gandhi was the first IO of the case. He deposed that he issued one notice to Manager, UTI regarding details of registered holders of Master Gain 1992 units, which is ExPW9/A. The reply received from the UTI office in this regard is ExPW9/B.
14.PW 10 Insp. Ashok Sharma seized the 22 original certificates vide (PULASTYA PRAMACHALA) Addl. Chief Metropolitan Magistrate West District, Tis Hazari Courts:Delhi Page no. 6 of 12 FIR No.560/01 PS Janak Puri State Vs. Vipin Kumar Handa etc. seizure memo ExPW10/A. 22 original master gain UTI certificates are ExPW2/B1 to ExPW2/B22. He obtained the specimen hand writing of accused and sent to FSL for comparison with ExPW2/C. He also obtained the admitted hand writing of accused Vipin Kr Handa from Canara Bank from A/c No. 19768, which is mark PW10/PE vide seizure memo ExPW10/A1. In his cross examination, witness denied the suggestion that he fabricated the specimen documents and admitted documents. Witness also denied the suggestion that amount of Rs. 13 lacs was not paid by the complainant to accused though he admitted that evidence on record did not show payment of Rs. 13 lacs to accused and that he did not take permission of the Court before obtaining specimen signatures of the accused.
15.PW 11 Dr Deepa Verma Asstt. Director (Documents) FSL deposed that she compared the specimen and admitted hand writing with Q 23 dt. 10.4.2001 and gave report ExPW11/A. Witness denied the suggestion that there were more dis similarities in comparison with similarities in questioned writing and specimen writing.
16.The offence of cheating is defined in Section 415 IPC. Ingredients of Section 415 IPC can be divided into three following parts:
a. whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or b. intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and (PULASTYA PRAMACHALA) Addl. Chief Metropolitan Magistrate West District, Tis Hazari Courts:Delhi Page no. 7 of 12 FIR No.560/01 PS Janak Puri State Vs. Vipin Kumar Handa etc. c. which act or omission causes or is likely to cause damage or harm to that person in mind, body, reputation or property, is said to "cheat".
The aforesaid ingredients of cheating show that an act or omission as covered under head of (a) or (b) must be coupled with effect as covered under head of (c ) in order to complete the offence of cheating.
17.In the present case, from the perusal of evidence lead by the prosecution, I find that though the complainant i.e PW 2 complained that he paid Rs. 13 lacs to the accused, however, the prosecution has not proved the factum of delivery of Rs.13 lacs to the accused. Such claim of PW 2 has remained mere in the form of oral assertion without any specific evidence to show the transfer of such money from complainant to accused. Therefore, I do find that a major gap is existing in the evidence of prosecution so as to satisfy the ingredients of offence of cheating.
18.In the complaint ExPW2/A, PW 2 alleged that on 26.3.2001, he came back to India and after a week, he visited the house of accused. The accused assured him to hand over the original units but he did not do so before 9.4.01. On 9.4.01 PW 2 succeeded in getting the original units and on his examination, he found that names of unit holders were inserted by rubbing the names of some body else, which created doubt in his mind and he visited the office of UTI for verification. In the office, he was informed that units given to him were not tallying with the number of units and names recorded in the office. Thereafter he (PULASTYA PRAMACHALA) Addl. Chief Metropolitan Magistrate West District, Tis Hazari Courts:Delhi Page no. 8 of 12 FIR No.560/01 PS Janak Puri State Vs. Vipin Kumar Handa etc. took the units to the accused and told him that they were forged units. Then, accused told the complainant/PW 2 that he would give money on 10.4.2001. On 10.4.2001 PW 2 alongwith his friends visited the house of accused, then accused told him that he would return Rs. 11,88,000/ only and he took out a paper and gave in writing that the above noted shares were in his name and in the name of his family members worth Rs.11,88,600/ and that he would return the said amount within two months. When this complainant was examined in the Court, he deposed that in April, 2001 accused gave him approximately 22 units. Since complainant was in need of some money, he asked the accused to get some of those certificates redeemed and accused took his signatures on 34 forms but later on he claimed that signatures were not matching with specimen signatures of complainant. Thus, the complainant had doubt over the version of accused and he visited the office of UTI so as to be aware of forgery of those units. The complainant further deposed that when he was away to Canada, his father in law had also visited the accused and he had told the complainant that accused had given receipt of Rs. 13,68,000/. After going through the record, complainant pointed out to the receipt placed on record which was exhibited as ExPW2/C. This is the only receipt which has been placed by prosecution on record. The contents of this receipt ExPW2/C shows that this is the same receipt which has been referred by the complainant in his complaint to be given to him on 10.4.2001. Thus, I find that there is a contradiction to the facts stated by the complainant in his different (PULASTYA PRAMACHALA) Addl. Chief Metropolitan Magistrate West District, Tis Hazari Courts:Delhi Page no. 9 of 12 FIR No.560/01 PS Janak Puri State Vs. Vipin Kumar Handa etc. statements. A different version was given by the complainant in ExPW2/A, while in his statement before the Court he came up with another version regarding delivery of this receipt ExPW2/C to his father in law. Such contradiction shows that complainant has not projected all true facts before the Court and such scenario raises doubt over the claim made by the complainant regarding the cheating. It is also worth to note here that this receipt mentioned only 21 certificates though the complainant has later on handed over 22 certificates to the IO and has claimed in his statement before the Court that these 22 certificates were given to him by the accused after committing forgery. The opinion of expert i.e PW 11 can not be taken into account by this Court because the specimen hand writing of accused were taken by the IO without obtaining direction from the Court. In Sukhjinder Singh v State of Punjab (1994)5 SCC 152, the Hon'ble Supreme Court has held that the Court holding an inquiry under Cr.P.C is entitled under Section 73 of the Evidence Act to direct accused person appearing before it to give his specimen hand writing. The specimen hand writing of the accused obtained without direction/orders of the Court can not be used against the accused. Therefore, the suspicious/contradictory version regarding the delivery of such receipt by accused either to complainant or to his father in law and the aforesaid case law does not allow me to rely on this piece of paper. Rather, I find that the facts which could have been proved by the complainant as per claim made by him i.e regarding delivery of (PULASTYA PRAMACHALA) Addl. Chief Metropolitan Magistrate West District, Tis Hazari Courts:Delhi Page no. 10 of 12 FIR No.560/01 PS Janak Puri State Vs. Vipin Kumar Handa etc. Rs. 13 lacs in the form of cheque and cash withdrawn were not proved by him as well as prosecution. The delivery of the alleged receipt ExPW2/C is highly doubtful and can not be relied upon. PW 2 admitted that a transfer form i.e ExPW2/DA was signed by him. However, he claimed that accused had taken his signatures on 34 forms. It was onus of the complainant/prosecution to prove this fact so as to satisfy that this form is not filled in completely at the time of putting his signatures at point A & B. This form mentioned the certificate number and number of units of ExPW2/B8. This form was purportedly signed by PW 2 on 5.12.2000. This fact is not in consonance with the description of facts given by PW 2 in his statement before the Court as well as in his complaint ExPW2/A.
19.It is also to be seen that accused was taken into custody and police had allegedly recorded his disclosure statement in which accused informed that he had typed the name of unit holders as well as number of units and said type writer was kept by him at the house of his brother at Jaipur. However, investigating agency could not recover such type writer so as to connect the allegation of forgery with accused.
20.Thus, this whole scenario of the case raise serious question about the claim made by complainant PW 2 in his complaint. In these circumstances, I find that there are no sufficient evidence on the record so as to indicate towards the guilt of accused for offence u/s 420/467/471 IPC without any doubt. It is settled law that when there is (PULASTYA PRAMACHALA) Addl. Chief Metropolitan Magistrate West District, Tis Hazari Courts:Delhi Page no. 11 of 12 FIR No.560/01 PS Janak Puri State Vs. Vipin Kumar Handa etc. possibility of absence of culpability of the accused, then the view favourable to the accused has to be adopted by the Court. Hence, giving benefit of doubt, accused is acquitted of all the charges.
Judgment dictated and (PULASTYA PRAMACHALA) pronounced in the open Court Addl. Chief Metropolitan Magistrate On this 8th day of October, 2012. West District, Tis Hazari Courts:Delhi (PULASTYA PRAMACHALA) Addl. Chief Metropolitan Magistrate West District, Tis Hazari Courts:Delhi Page no. 12 of 12