Delhi District Court
State vs . Sayeed Mohd. Maqsood on 22 June, 2012
IN THE COURT OF MS. MONA TARDI KERKETTA, MM-08 (SE)
SAKET COURTS COMPLEX
STATE VS. SAYEED MOHD. MAQSOOD
FIR NO. : 384/2001
P.S. : Lajpat Nagar
U.S. : 120B/406/420 IPC
Unique ID No. 02403R0055122001
Serial No. 1229/5/11
Date of institution of case : 05.12.2001
Date on which case reserved : 22.06.2012
for judgment
Date of judgment : 22.06.2012
JUDGEMENT U/s. 350 Cr.P.C.:
a) Date of offence : During the month of September-October,
2000
b) Offence complained of : U/s. 120B/406/420 IPC
(c) Names of accused persons, their : 1. Sayeed Mohd. Masood
parentage & residence S/o Sh. S.M. Masood
R/o 43, Maleer Tower, Cafe, Prade
Mumbai.
(Discharged vide order dated 28.03.05
by Ld. Sessions Court).
2. Abhijeet
R/o 15/80, Civil Lines, Kanpur, U.P.
(Discharged vide order dated 23.03.05
by Ld. Sessions Court).
3. Saroj Kumar Jha
S/o S. N. Jha
R/o B-1/144, Nand Nagri, Delhi.
4. Rakesh Singh
S/o Amrit Singh
FIR No. 384/01 PS-Lajpat Nagar State Vs. Sayeed Md. Maqsood 1/14
R/o 502, East End Apartments, New
Ashok Nagar, Delhi.
5. Baseer Ahmad Sheikh
S/o Sh. Yasin Mohd. (P.O.)
6. Raeesa Basheer Sheikh
W/o Basheer Ahmad Sheikh
Both R/o Flat No. 201, B-Block, Alkhabar
B. Building Millat Nagar, Andheri (West),
Mumbai. (P.O.)
7. Zahida Q. Khan
D/o Sh. Qamar Khan
R/o Rahimabai Compound, Kapad Bazaar,
Road Opp. Khoja Jamat Khana, R. No. 19,
Mahim (W),Mumbai. (P.O.)
8. Mohd. Zabir Hussain
S/o Sh. Abdul Latif
R/o Shop No. 1, Sahabji Santakruj Lane,
Marine Line, Mumbai. (P.O.)
d) Plea of accused persons : Not Guilty
e) Final order : Acquitted
Counsel For the Parties:-
For the State:- Sh. Mayank Tripathi
For the Accused Persons:- Sh. D.K.Heera
BRIEF REASONS FOR THE DECISION OF THE CASE:-
1.In brief, the case of Prosecution is that complainant Wing Commander A.S.Guglani filed a complaint against M/s Accord Tours and Travels Pvt. Ltd and its Directors alleging that accused persons in collusion with each other , with a view to cause wrongful loss to the public at large, devised a unique modus operandi for cheating and playing fraud and got published an advertisement in Hindustan Times and other newspapers mentioning therein FIR No. 384/01 PS-Lajpat Nagar State Vs. Sayeed Md. Maqsood 2/14 that M/s Accord Tours and Travels Private Ltd. Urgently required vehicles on 3 years contract basis on monthly payment promising high income in return and also mentioned that they could arrange finance for the new vehicles. The complainant induced by such advertisement and approached accused no.1 at its Delhi Office and met accused no.2,3,5 and 6, who painted rosy pictures regarding their business,turn over etc. and persuaded the complainant to avail finance facilities for purchase of Maruti Zen VX car and to give it on hire for period of three years on agreed terms and conditions. The complainant executed Agreement dated 30.10.2000 and paid margin money of Rs.1,55,108/- besides other charges i.e registration charges and insurance amount and agreed to receive Rs.8538/-pm for a period of 36 months of the contract. It was also assured that accused would be responsible for proper maintenance and security of the vehicle. When the complainant did not receive the payment of hire, he contacted the accused persons but every time they postponed the issue on one pretext or the other. When he approached the accused in the end of year 2000, he was shocked to learn that his car has been stolen and from other persons he came to know of the same thing who had also invested money in the company. Complainant tried to contact the accused but they were not available and from newspaper reporting , he came to know that accused were indulged in fraudulent activities , who used to sell the vehicles on forged documents throughout the country and one of the car was recovered in one of the cases related to Sh. A.S.Jaswal, which was sold 3-4 times by the accused and their associates and therefore all accused persons criminally conspired to do an illegal act of cheating and misappropriation by fraudulently or dishonestly inducing the complainant Wing Commander A.S.Guglani and thereby committed offence punishable U/s. 420/406/120B IPC. Accused persons were arrested being involved in non bailable offences, but later on they were released FIR No. 384/01 PS-Lajpat Nagar State Vs. Sayeed Md. Maqsood 3/14 on bail by the court order.
2. After completion of investigation, charge sheet was filed against the accused persons. Cognizance of the offence was taken by the court and accused persons were summoned to face the trial for the offences allegedly committed by them. During trial accused Raeesa Bashir,Zahida Khan, Mohd. Tabu Hussain including Bashir Sheikh absconded and were declared Proclaimed Offender. Charges U/s.420/406/120B IPC were framed against accused Rakesh and Saroj Kumar Jha on 06.05.02 and 19.12.2001 and 06.05.02 and against accused Sayyad Mohd.Masood and Abhijeet Narayan on 05.10.2004 to which they individually pleaded not guilty and claimed trial. However vide order dated 23.03.05 and 28.03.05, Ld. Sessions Court discharged accused Abhijeet Narayan and Sayyad Mohd. Masood respectively.
3. In order to substantiate its version, Prosecution filed the list of as many as Eleven witnesses including Complainant Wing Commander A.S.Guglani and Sh. A.S. Jaswal
4. PW1 SI Suresh Kumar deposed that he was involved in the investigation of present case along with ASI Major Singh. During investigation, on 17.08.01, they reached at the residence of complainant, who handed them over some cash receipt, del. Note, which were seized by the IO vide seizure memo Ex. PW1/A, bearing his signatures at point A. He also deposed that statement of complainant was recorded at Police Post. During cross examination he deposed that during investigation he had gone only at the place of complainant. He did not remember, if the receipts for seized documents were given to complainant or not. He admitted that few public persons were available FIR No. 384/01 PS-Lajpat Nagar State Vs. Sayeed Md. Maqsood 4/14 in that house, but neither their statement nor their signatures were obtained on the seizure memo. He denied that no recovery was effected in his presence and that he did not join the investigation. He also denied that he was deposing falsely.
5. PW2 Wing Commander A.S. Guglani deposed that in the month of August 2000, he read an advertisement in a daily paper of M/s. Accord Tours and Travels Pvt. Ltd. regarding finance and leasing of vehicles on hire-purchase basis and for monetary benefits. Thereafter he approached the accused, where employee of accused Sh. Gyaneshwar Jha took his signatures on certain papers. He handed over a cheque of Rs. 1,73,158/- drawn on OBC Bank, Sec-20, Noida Branch and rest of the money was to be paid by them for booking of a Maruti Zen car. He was also made to sign an agreement Ex. PW2/A and Ex PW2/B countersigned by some of employees as authorized signatory, whose name he did not remember and his signatures were appearing at point A-2 and at point A respectively. He further deposed that despite executing agreement he never received the said car nor amount paid by him was returned. He also visited the office but found the same locked. Thereafter, he filed the complaint Mark X-2. He also proved the photocopy of advertisement vide mark X-3. His further examination in chief was deferred for want of original complaint and his examination in chief remained inconclusive through out the trial as he beacme untraceable.
6. PW3 Ct. Yatender Singh deposed that he was also involved with the investigation of present case with ASI Major Singh. On 06.10 .01 they reached at Patiala House Courts, where accused was formally interrogated accused Rakesh with the permission of court. During interrogation, he disclosed FIR No. 384/01 PS-Lajpat Nagar State Vs. Sayeed Md. Maqsood 5/14 that he along with co-accused Sayyed Mohd. Massod, Bashir Ahmad, Abhijeet Singh and Saroj Jha had opened a company in the name and style of Accord Tours and Travel Company. They hired and financed vehicles but sold them at Mumbai without the knowledge of their owner. He also disclosed that some vehicles were not purchased even after executing finance deal with clients. He further deposed that after interrogation, accused was arrested vide memo Ex. PW3/A, bearing his signatures at point A. His statement was also recorded.
7. PW4 ASI Parkash, Duty Officer, proved the copy of FIR Ex. PW4/A and his endorsement on rukka vide Ex. PW4/B, bearing his signatures at points A.
8. PW5 Sh. A.S. Jaswal deposed that in December 1999, he came to notice of an advertisement in the newspaper about an invitation for hiring the car on rental basis by Accord Tours & Travels, Block O, Lajpat Nagar-II. Thereafter, he visited the office of said company, where one Abhijeet, the Sales Executive met him, who briefed him about the scheme. He showed his interest in the scheme and opted to offer his two Maruti Zen Cars, out of which one was bearing no. DL4CH8258 and another bearing no. DL2CN1376. He was informed that he would be paid Rs. 4,400/- towards one car per month and the company would pay the expenses of the driver and fuel. However, he would have to pay maintenance charges of Rs. 20,000/- per car for three years, which were to be paid in advance in cash. He paid Rs. 40,000/- in cash towards the two cars. Abhijeet further informed him that the first payment towards the rental amount would be given to him after 60 days. He was also handed over 3 post dated cheques for Rs 8,800/- drawn on Bank of America. When he deposited the cheques, they were dishonoured. He went to the office, where Abhijeet FIR No. 384/01 PS-Lajpat Nagar State Vs. Sayeed Md. Maqsood 6/14 informed him that due to some problem, the cheques were dishonoured and further assured him that he would be paid the amount in cash. After one week, he was paid Rs. 8,800/- in cash. The afore said cheques were taken back from him. He handed over three fresh post dated cheques drawn on HDFC Bank, which on presentation dishonoured. This story continued for 6 months. He met with the MD of that company Sh. Bashir Ahmad and told him about his grievance and to discontinue the agreement with the company as the payment by the company was irregular. He advised him about not depositing the cheques and come to the office when the date of payment became due and collect cash payment from the office.
9. He further deposed that in July, he was paid money on due date. Thereafter, no payment was made to him. In August, he again told Sh. Bashir Ahmad about discontinuing of agreement with the company due to irregular payment. Sh. Bashir Ahmad told him to serve one month advance notice of revocation of agreement. In August, 2000, he gave notice to the company. After one month, he went to the office of the company to take back his vehicles. However, Sh. Bashir Ahmad sought 15 days time to return the vehicles. Other persons had also visited the office to take back their vehicles, on which he felt something wrong. When on 20 September, 2000, he was informed by Bashir that one of his vehicles bearing no. DL4CH8258 had been stolen and the second vehicle would be returned after 30th September, 2000. He visited the office 3-4 times for collection of payments. In the first week of October, 2000, Sh. Bashir Ahmad handed over his vehicle bearing no. DL2CN1376 to him. He asked Bashir Ahmad to return his second vehicle, on which he kept on seeking time. Sh. Bashir Ahmad did not show any FIR in respect of theft of his vehicle. He was neither returned the second car, nor paid any money in lieu of the FIR No. 384/01 PS-Lajpat Nagar State Vs. Sayeed Md. Maqsood 7/14 second vehicle.
10. He further deposed that he approached to EOW and gave written complaint. In the end of November, 2000, Sh. Bashir Ahmad informed him that his second car was parked at PS Sola Road, Ahmadabad as the same had been recovered by the police officials as it was stolen. He talked to SHO PS Sola Road, Ahmadabad, who told him that the vehicle was there in the PS. He took car no. DL4CH8258 on superdari from Ahmadabad Court. He brought the vehicle back to Delhi. Thereafter, he demanded his payment from Bashir, but he denied. He had pointed towards the accused Saroj and had stated that he used to work in the said company. He also pointed out to accused Rakesh and stated that he had seen accused 2-3 times in the office of the said company. Around 20th December, 2000, he went to the office of the said company. Other persons had also gathered there. Thereafter, police came. He was informed by the police that the chairman of the said company Sh. Masood might be available at Charmwood Village, Surajkind. He again approached PS Lajpat Nagar with his complaint. Sh. Bashir had asked him on phone, not to disturb him as he had got both his vehicles. He asked him to make his due payment. The witness was asked whether accused Saroj or Rakesh had informed him regarding the scheme, to which he denied. On this he was subjected to cross examine by the Ld. Prosecutor, during cross examination he denied the suggestion that when he had visited the company for the first time, he had met Mohd. Masood, Rakesh Singh, Saroj Jha, who informed him regarding the scheme and induced and lured him to join the scheme. He denied that he had stated so in the statement recorded by the police. He denied that he was deposing falsely.
11. During cross examination by defence counsel he deposed that FIR No. 384/01 PS-Lajpat Nagar State Vs. Sayeed Md. Maqsood 8/14 police had made inquiries from him only once in the month of December, 2009. Police had recorded his statement and he signed the same. One agreement was got executed between him and the company. He admitted that he never handed over the copy of said agreement to the police. He also admitted that he was never given any receipt regarding the payment of Rs. 40,000/-. He had also not given any statement of account to Police pertaining to balance payment, which was to be recovered from the company. He admitted that he did not initiate any criminal prosecution under section 138 NI Act for the dishonoured cheques. He also admitted that Saroj Jha had not entered into any conversation with him in respect of the scheme. He also admitted that he had not handed over the copy of the notice served by him upon the company to police. He also admitted that he had not given in writing to EOW and to the police that he had received both of his vehicles. He denied that he was deposing falsely.
12. PW6 SI Bhopal Singh deposed that further investigation of the case was marked to him in January, 2002. On 20.02.02, he arrested accused Saroj Jha vide memo Ex. PW3/A and Supplementary Charge sheet was prepared. He also arrested co-accused vide memos Ex. PW3/B and C. He also recorded the statement of witnesses and investigated the matter at ROC Office, Mumbai and collected records Mark A of M/s. Tours and Travel Pvt Ltd. (1 to 36 pages). Accused Bashir Sheikh, Jahid Khan, Mohd. Jabor were the Directors of said company and during their tenure, the offence of cheating was committed and they were the beneficiary of funds of the company. He further deposed that he made his best efforts to trace out the money, but no clue was found. He also proved the photographs mark B1 to B-3 of leading Newspapers showing advertisement dated 14.10.03, 15.10.03 in Mumbai and Delhi. Subsequently, FIR No. 384/01 PS-Lajpat Nagar State Vs. Sayeed Md. Maqsood 9/14 process U/s. 82/83 CrPC were initiated and they were declared as P.Os. Vide order 15.10.03 and 05.11.03. He also identified the accused persons.
13. During cross examination of he deposed that he arrested the accused in the said case on 20.02.2002. The arrest memo was prepared, but he did not remember who was the witness cited in the said case. He never examined K.S. Jaswal in the pending cases as he was already examined by the previous IO. He filed the supplementary challan against the accused Saroj Jha and other accused vide supplementary challan in the month of April, 2002. He admitted that after getting the record from the office of the ROC Bombay and on its perusal he was sure that accused Saroj Jha was not having any status in the said company. He procured the documents from the office of the Sub-Registrar only after the arrest of Sayed Mohd. perhaps in the month of July, 2003. He did not interrogate or made any inquiry from any witness with regard to the role of accused Saroj Jha in the said case. He even did not file any documents on record against accused Saroj Jha. He denied the suggestion that he was deposing falsely being a prosecution witness. He denied the suggestion that he had got falsely implicated the accused Saroj Jha in the present case and when the accused Saroj was arrested in this case, he was already in custody in some other case. He admitted that he was aware that accused was involved in some other cases also and the accused was arrested in different cases on different cases. He had not recorded the statement of A.S. Jaswal or the complainant.
14. PW7 SI Major Singh deposed that on 04.06.01, further investigation of the present case was marked to him. He also made efforts to search the accused persons namely Saeed Mohd., Masood Bashir, Ahmad Sheikh, Abhijeet and Saroj. On 06.10.01 after interrogation, accused Rakesh was arrested vide FIR No. 384/01 PS-Lajpat Nagar State Vs. Sayeed Md. Maqsood 10/14 Ex. PW1/A. He also recorded the statements of witnesses. During cross examination he deposed that the delivery note, agreement and receipts were handed over by the complainant to him and the same were seized through memo. One head Ct. Rajpal stood as an attesting witness. The said proceeding regarding seizure of the documents continued for about 20 minutes. Thereafter, he got recorded statement of the complainant as well as HC Rajpal. The date he did not remember when he seized the documents and recorded the statement. In the said case, he also interrogated AS Jaiswal and Ct. jitender Kumar, but the date he did not remember. He remained in this case as an IO from 19.03.01 till mid December, 2001. He never went to the office of the Accord Tour & Travels to seize the records of the said company. He denied the suggestion that he was deposing falsely.
15. PW8 HC Narender Singh deposed that on 20.09.03, he along with IO SI Bhopal Singh went to Patiala House Court, where accused Abhijeet Narayan was interrogated with the permission of Court, who disclosed that he was working with Accord Tour and Travels company. He was arrested and his personal search was conducted. He also identified the accused.
16. PW9 HC Krishan Pal deposed that on 30.06.03, he along with IO SI Bhopal Singh went to Patiala House court. IO formally arrested the accused Sayyed Masood vide Ex.PW6/B and personal search was conducted vide Ex. PW9/A, bearing his signatures at points B and A. He also identified the accused.
17. PW10 HC Rang Bahadur deposed that accused Saroj was arrested vide memo vide Ex. PW6/A, bearing his signatures at point B. During cross examination he denied the suggestion that the accused was falsely FIR No. 384/01 PS-Lajpat Nagar State Vs. Sayeed Md. Maqsood 11/14 implicated in the present case. He was not aware as to whether Bhopal Singh, SI has effected the arrest of accused in the present case for the first time. At the time of arrest, he along with Bhopal Singh and one Ct. Jagmohan were preset at the police station. It was in the morning. The IO had not recorded his statement. He admitted that IO had not procured the signatures of said Jagmohan on the arrest memo. He denied the suggestion that he was deposing falsely.
18. Thereafter, case was listed for recording of testimonies of remaining Prosecution Evidence. Complainant was partly examined in chief. He was summoned but process sent to him received back unserved. Time and again summons were sent but he did not appear. Thereafter vide order dated 21.04.11, Ld. Predecessor of court closed the Prosecution Evidence and listed the matter for recording the statement of accused persons U/s313 CrPC. But this court observed that nothing incriminating against accused had come on record in the absence of testimony of complainant and testimonies of remaining witnesses were of no avail being formal in nature. Even public witness Sh. A. K. Jaswal did not state anything against present accused persons which could connect them with the alleged offence. Hence recording of statement of accused persons U/s. 313 Cr.PC was dispensed with.
19. During the course of final arguments, Ld. Defence Counsel submitted that Prosecution has failed to prove its case against the accused persons beyond reasonable doubt. Complainant of present case is untraceable and public witness Sh. A.S. Jaisawal has not stated anything incriminating against the accused persons. On the other hand, Ld. APP has submitted that testimony of PW4 can not be discarded completely and can be used to corroborate with other reliable evidence which have come on record.
FIR No. 384/01 PS-Lajpat Nagar State Vs. Sayeed Md. Maqsood 12/14
20. The court has heard the arguments of both sides and also perused the entire record including the testimonies of witnesses and detailed report regarding service of process upon the complainant. In the present case, only part examination in chief of complainant was recorded. Further examination in chief was deferred for want of original complaint but the same could not be completed as he did not appear before the court despite issuance of several process. The object of examination-in-chief is to elicit the truth, to prove the facts which bear upon the issue in favour of the party calling the witness but if a witness after being partly examining in chief or even after being examining in chief does not appear to subject him to cross-examination his evidence becomes valueless and can not be looked into. Reference may be had to in case of Gopal Sarvan Vs. Satya Narayan, AIR 1988 SC 1141.
21. Even public witness Sh. A.S. Jaswal has not stated anything incriminating against the accused persons. He was declared hostile and cross- examined by Ld. Public Prosecutor at length, but nothing incriminating came against the accused on record. During the course of recording his examination in chief, Ld. Prosecutor specifically asked if accused Rakesh and Saroj Jha had informed him regarding the scheme, to which he replied in negative. In his cross-examination by defence counsel, he has admitted that accused Saroj Jha had not entered into any conversation with him in respect of the scheme. His testimony is silent about the specific role of accused Rakesh. His testimony mainly discloses the name accused Bashir Ahmed. There is no other circumstantial evidence on record to connect the accused persons with the offence in question.
22. In view of foregoing discussions, the court has no hesitation in FIR No. 384/01 PS-Lajpat Nagar State Vs. Sayeed Md. Maqsood 13/14 holding that Prosecution has failed to prove its case against present accused beyond reasonable doubt. Hence, accused Saroj Kumar Jha and Rakesh Singh are acquitted from the charge framed U/s. 120B/406/420 IPC.
23. File be consigned to Record Room after due compliance with liberty to revive the case as and when accused persons, who have declared P.Os. Shall be apprehended.
Announced in the Open (MONA TARDI KERKETTA)
Court Today i.e. on 22.06.12 Metropolitan Magistrate-08 (SE)
Saket Courts, New Delhi
FIR No. 384/01 PS-Lajpat Nagar State Vs. Sayeed Md. Maqsood 14/14