Delhi District Court
Cr. Case 426844/16 State vs Mathew @ Lucky & Anr on 28 September, 2020
Cr. Case 426844/16 State vs Mathew @ Lucky & Anr
IN THE COURT OF KAMRAN KHAN, METROPOLTAN
MAGISTRATE-01, SOUTH WEST, DWARKA COURTS.
DLSW02-002246-2014
State vs Mathew @ Lucky & Anr.
Case FIR No: 175/14
Under Sections: 420/406/34
Police Station: Palam Village
Cr.C No. : 426844/2016
CNR No. : DLSW02-002246-2014
Date of Institution : 10.06.2014
Name of complainant : Palwinder Singh
Name of accused, parentage and address : 1)Mathew @ Lucky S/o
Robin Masih, R/o VPO
Goraya, Distt. Hoshiyarpur,
Punjab.
2)Vijay S/o Harnam Singh,
R/o VPO Goraya, Distt.
Hoshiyarpur, Punjab
Offence complained off : 420/34 IPC
Plea of accused : Not guilty
Date on which final arguments heard : 14.09.2020
Final order : Acquitted
Date of Judgment : 28.09.2020
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Argued by: Sh. Anurag Kumar, APP for the State.
Sh. Rajat Sharma, counsel for both the accused.
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JUDGMENT
The SHO, Police Station Palam Village has presented this charge- sheet against above named accused for initiation of trial U/s 420/34 Indian Penal Code, 1860 (for short "IPC").
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2. Briefly, the case of the prosecution is that a DD no.47A dated 14.04.2014 was received on which SI Vikas Yadav along with Ct. Kapoor went to the spot wherein complainant Palwinder Singh S/o Sh. Harbhajan Singh handed over accused Vijay S/o Harnam Singh and Mathew @ Lucky S/o Robin Masih and got recorded his complaint. As per complainant Palwinder Singh, he is a farmer and knows accused Mathew @ Lucky for the past two years. Complainant Palwinder has a passport. As per the complainant, in the month of February, 2014 accused Mathew @ Lucky told him that he will secure his VISA for Australia and also told the complainant that he has sent various persons to foreign countries after arranging for their VISA's. Along with the complainant, his friend Gyandeep Singh S/o Gurmail Singh, Malik Grewal S/o Anthony and Kamaljeet Singh S/o Sukhwinder Singh talked to accused Mathew @ Lucky for their VISA. As per the complainant, accused Mathew @ Lucky has asked for Rs.5,70,000/- per VISA. On 27.03.2014, accused Mathew @ Lucky called the complainant and informed that his VISA has been arranged. On 07.04.2014, complainant gave cash of Rs.5,70,000/- to accused Mathew @ Lucky in Jalandhar and at that time accused Vijay was also present. Accused Mathew @ Lucky had informed the complainant that accused Vijay has secured his VISA from Delhi. On the same day i.e., 07.04.2014 complainant, accused Mathew @ Lucky and Vijay came to Guraya wherein Malik Grewal gave Rs.5,70,000/- to accused Mathew @ Lucky and Vijay in the presence of the complainant at the house of accused Mathew @ Lucky. On the same day evening, complainant, Malik Grewal and accused Vijay came to Delhi whereas accused Mathew @ Lucky informed them that he will come to Delhi along with Gyandeep and Kamaljeet. Next day morning i.e., 08.04.2014, accused Mathew @ Lucky along with Gyandeep and Kamaljeet came to Delhi and they all stayed in Royal Inn Hotel in Paharganj, Delhi. In the evening of 08.04.2014, a person came to meet CNR No. DLSW02-002246-2014 Page No. 2 of 16 Cr. Case 426844/16 State vs Mathew @ Lucky & Anr accused Mathew @ Lucky and accused Vijay. The name of the said person was told to the complainant as Kulwinder Singh @ Karan S/o Ajeet Singh R/o Bassi Kalan District, Hoshiyarpur, Punjab. They were informed by accused Mathew @ Lucky and accused Vijay that the said person will do their work. After some time Kulwinder @ Karan and accused Mathew @ Lucky went away alongwith cash of Rs.23Lacs. Next day morning, accused Mathew @ Lucky called accused Vijay and informed that Kulwinder @ Karan has ran away along with all the money and he is not picking up the phone. Thereafter, accused Vijay took the complainant to a flat in Palam wherein complainant was informed that Kulwinder @ Karan has ran away along with all the money and when Kulwinder @ Karan is contacted on telephone he says that he is coming. On 10.04.2014, on the saying of accused Vijay, complainant brought Gyandeep, Kamaljeet and Malik Grewal to flat in Palam and they all started searching for Kulwinder @ Karan but he was not found. As per the complaint, accused Mathew @ Lucky and accused Vijay started consoling them by saying that Kulwinder @ Karan will return the money.
On receiving of the complaint, investigation was started. During the investigation both the accused were arrested, their confessional statement was recorded. Co-accused Kulwinder @ Karan was searched but he could not be found and no money was recovered. CCTV footage of Hotel Royal Inn, Paharganj, Delhi was obtained. During the investigation it was found that co- accused Kulwinder @ Karan is in Malaysia and an application to MHA was sent for which report is awaited. Call details were obtained. The search of co- accused Kulwinder @ Karan and the money is still going on. Section 406 IPC was deleted after discussions with the senior officers, during the investigation and after completion of the investigation, final report was presented for trial against accused Mathew @ Lucky and accused Vijay.
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3. After presentation of charge-sheet, both accused were summoned. Copies of the charge-sheet were supplied to both the accused U/s 207 of Code of Criminal Procedure, 1973 (for short "CrPC"). Thereafter, charge U/s 420/34 IPC was framed against the both accused to which they pleaded not guilty and opted to contest.
4. In order to prove the guilt of both the accused, prosecution examined following witnesses:
PW-1 Sh. Kamaljeet Singh deposed that he is a farmer and a passport holder. Around 3-4 months prior to 06.04.2014, he along with Gyandeep had handed over their passports to accused Mathew @ Lucky through Sandeep, who he knows through his brother-in-law Manvinder Singh. He further deposed that on 06.04.2014 he received a call from accused Mathew @ Lucky informing him that he and Gyandeep have got approval of VISA for Australia and told him to come to Guraya, Jalandhar with money along with family. He further deposed that on 07.04.2014, he along with Gyandeep and his father and Sh. Harbhajan Singh (father of his brother-in
-law) went to the office of accused Mathew @ Lucky in Guraya and handed over cash of Rs.6,50,000/- to accused Mathew @ Lucky. He deposed that Gyandeep handed over Rs.5,70,000/- to accused Mathew @ Lucky. He further deposed that on the same night, he along with Gyandeep and accused Mathew @ Lucky came to Delhi and stayed at Royal Inn Hotel in Paharganj wherein they were introduced to accused Vijay and Sh. Palwinder and Sh.Malik Grewal. He further deposed that accused Mathew @ Lucky told them that Palwinder and Malik Grewal will accompany them to Australia. He further deposed that on same day evening, accused Mathew @ Lucky introduced him to one Karan and told him that Karan was doing the work of their VISA in Delhi. He further deposed that accused Mathew @ Lucky and Karan left the CNR No. DLSW02-002246-2014 Page No. 4 of 16 Cr. Case 426844/16 State vs Mathew @ Lucky & Anr Hotel. Accused Vijay and Sh. Malik Grewal made several calls to accused Mathew @ Lucky who told them that he will be coming soon after arranging air tickets. He further deposed that on 10.04.2014 accused Vijay and complainant Palwinder went to accused Mathew @ Lucky on the pretext of outing and thereafter, in the evening of 10.04.2014 complainant came and took him, Gyan Deep and Malik Grewal to a flat in Palam where accused Mathew @ Lucky and accused Vijay were present and accused Mathew @ Lucky told them that Karan had fled away by taking all the money which they had given to them and accused Vijay was having contact number of Karan who told that he is coming and will return the money or arrange for the tickets for Australia. PW1 further deposed that they informed the police and produced accused Mathew @ Lucky and accused Vijay to police. He further deposed that accused Vijay, Mathew @ Lucky and Kulwinder @ Karan have cheated them by taking money from them for VISA to Australia. PW-1 filed photocopy of notification of grant of E-Visitor as Mark A2, copy of VISA grant notice Mark A1 and copy of Jambandi as Mark A3. In the cross examination, PW1 has admitted that he had not personally handed over the passport to accused Mathew @ Lucky and had never met him before 06.04.2014. He further deposed to have not taken any receiving of amount given to accused Mathew @ Lucky. He further admitted that when the police was informed about the incident on 11.04.2014, both the accused were present at the spot. PW1 further admitted that he never verified the VISA documents.
PW2 Sh. Gyandeep Singh deposed that he knows accused Mathew @ Lucky since 07.04.2014 through his cousin brother Manminder Singh who resides in Australia and he had informed him that accused Mathew @ Lucky arranges VISA and work permit for Australia. PW2 further deposed that he alongwith Kamaljeet Singh, who is also his relative, had given their passport to one Sandeep, who is friend of Mathew @ Lucky, for arranging CNR No. DLSW02-002246-2014 Page No. 5 of 16 Cr. Case 426844/16 State vs Mathew @ Lucky & Anr VISA and work permit. PW2 further deposed that accused Mathew @ Lucky had called his Tayaji (Uncle) and informed that VISA for him and Kamaljeet Singh has been arranged and they have to pay money. On 07.04.2014, he alongwith Kamaljeet Singh, his father and Tayaji Harbhajan Singh went to the house of accused Mathew @ Lucky at Guraya and paid Rs.12,20,000/- to accused Mathew @ Lucky, Rs.5,70,000/- being his share and Rs.6,50,000/- was the share of Kamaljeet Singh. PW2 further deposed that accused Mathew @ Lucky showed their passport and told them that air tickets will be given in Delhi and on 09.04.2014 their flight is awaited for Australia from Delhi. PW2 further deposed that he along with Kamaljeet Singh and accused Mathew @ Lucky came to Delhi and stayed at Hotel Royal Inn, Paharganj wherein accused Mathew @ Lucky introduced them to accused Vijay and complainant Palwinder and Malik Grewal. PW2 further deposed that one more person namely Karan @ Kulwinder Singh came to their Hotel and accused Mathew @ Lucky told him that will take them to Australia in a group. PW2 further deposed that co-accused Karan @ Kulwinder Singh informed them that the work of permit and VISA is of one company so they will leave in a group. PW2 further deposed that in the evening, accused Mathew @ Lucky and Karan @ Kulwinder Singh went away with their money. Thereafter, PW2 deposed the incidents as disclosed by PW1. In the cross examination, PW2 deposed that he along with Kamaljeet handed over his passport to one Sandeep for applying of VISA in the month of December, 2013. PW2 further deposed to have received a call from Sandeep who told him that his VISA proceedings have been done. PW2 admitted that he never handed over his passport to accused Mathew @ Lucky and received the passport back from accused Mathew @ Lucky. PW2 further admitted to have received the documents pertaining to VISA from Sandeep. PW2 also admitted that co- accused Kulwinder Singh had received complete payment from them at Hotel CNR No. DLSW02-002246-2014 Page No. 6 of 16 Cr. Case 426844/16 State vs Mathew @ Lucky & Anr Royal Inn on 08.04.2004. PW2 further admitted that accused Mathew @ Lucky and Vijay had nothing to do with co-accused Kulwinder Singh, who took the payment. PW2 further admitted that he along with accused Mathew @ Lucky were present on the premises of co-accused Kulwinder Singh when they found that he had fled away with the money. PW2 also admitted that accused Kulwinder has cheated them and not accused Mathew @ Lucky and Vijay. In cross examination recorded on 02.04.2016, PW2 again deposed that he along with other persons /complainants had handed over the money to Kulwinder @ Karan. PW2 voluntarily deposed that accused Mathew @ Lucky had made 100 number call to the police.
PW3 Malik Grewal deposed that he knows accused Mathew @ Lucky since the year 2012. He further deposed to have met accused Mathew @ Lucky in December 2012, who assured that he will arrange VISA for Australia and told him that Rs.6-7Lacs will be required for arranging the VISA for Australia. PW3 deposed that he agreed to pay the amount. PW3 further deposed that in the month of January, 2014 accused Mathew @ Lucky came to his home wherein he paid Rs.1,00,000/- as advance and handed over his passport for the purpose of arranging VISA. PW3 further deposed that accused Mathew @ Lucky gave him one blank signed cheque (Mark B1) as surety for his VISA work. PW3 further deposed that in the month of March, 2014 he received a phone call from accused Mathew @ Lucky that his VISA has been arranged and told him to arrange the remaining money. On 07.04.2014, PW3 went to the house of accused Mathew @ Lucky for payment of balance amount of Rs.5,70,000/- and paid the same in cash. At that moment, PW3 was introduced to complainant Palwinder by accused Mathew @ Lucky as well as to accused Vijay. PW3 further deposed that besides payment of Rs.5,70,000/-, his father also paid 2000Euros to accused Mathew @ Lucky. PW3 also deposed that accused Mathew @ Lucky told him that flight to Australia has CNR No. DLSW02-002246-2014 Page No. 7 of 16 Cr. Case 426844/16 State vs Mathew @ Lucky & Anr been booked by him and also handed over a copy of air ticket (Mark B2 colly) and copy of VISA approval (Mark B3). PW3 further deposed that he along with accused Vijay and complainant Palwinder left for Delhi on 07.04.2014 wherein they met accused Mathew @ Lucky along with Gyandeep and one other boy. PW3 further deposed that on 08.04.2014 accused Mathew @ Lucky introduced them to Kulwinder and thereafter, accused Mathew @ Lucky gave their passport to them and he went with Kulwinder by saying that he is to arrange sponsorship letter and new air tickets. PW3 further deposed that on 09.04.2014 accused Vijay and complainant Palwinder also left the hotel and on next day complainant Palwinder came and took him, Gyandeep and another boy to a flat where accused Vijay was present and accused Vijay informed them that co-accused Kulwinder had fled away with all the money which was paid by them. PW3 deposed that accused Mathew @ Lucky did not return to flat on 10.04.2014. PW3 further deposed that on 11.04.2014, police came at the flat and took all of them along with accused Vijay to PS Palam where accused Mathew @ Lucky was already present. In cross examination PW3 deposed that he had not taken any document / receipts regarding payment of Rs.5,70,000/- to accused Mathew @ Lucky and he has checked for VISA online. PW3 further admitted that he had filed a complaint against accused Mathew @ Lucky in Punjab on same facts and he has mentioned consideration amount of Rs.10Lacs in regard to the present matter. He further admitted that in the said complaint he mentioned to have handed over the amount to father of accused Mathew @ Lucky. PW3 further admitted that he has no receipt of foreign exchange of 2000Euros and Mark B3 does not bear his passport number.
PW4 HC Kapoor Singh deposed that on 11.04.2014 he along with SI Vikas reached the spot and met complainant Palwinder along with his friend Gyandeep and Kamaldeep. He further deposed that IO recorded the CNR No. DLSW02-002246-2014 Page No. 8 of 16 Cr. Case 426844/16 State vs Mathew @ Lucky & Anr statement of complainant and other witnesses, prepared rukka and sent him to PS for registration of FIR. After getting the FIR registered through Duty Officer, he handed over the copy of FIR and original Rukka to IO / SI Vikas. PW4 proved disclosure statement of both the accused person as Ex. PW4/A and Ex. PW4/B, arrest memo Ex. PW4/C and Ex. PW4/D and personal search memo Ex. PW4/E and Ex. PW4/F. Lastly prosecution examined IO / SI Vikas Yadav as PW5 who deposed that on 11.04.2014 he received DD no.47A Ex. PW5/A and on receiving the same he along with Ct. Kapoor went to the spot and met complainant Palwinder Singh, who produced accused Mathew @ Lucky and Vijay. PW5 further deposed that he recorded statement of complainant Palwinder Singh Ex. PW5/B in his handwriting and made endorsement on the same Ex. PW5/C. He sent Ct. Kapoor to the PS for registration of FIR and on receiving the copy of FIR he carried out further investigation in which he arrested both the accused vide arrest memos Ex. PW4/C and Ex. PW4/D. He further proved personal search memos of both the accused as Ex. PW4/E and Ex. PW4/F and disclosure statements Ex. PW4/B and Ex. PW4/A. He further deposed on 13.04.2014 he went in search of third accused Kulwinder but no such person was found. He deposed to have recorded statement of Sarpanch and Panch. He proved DD no.15 made in PS Chabbewal, District Hoshiyarpur as Ex. PW5/C and statements of Panchayat members Ex. PW5/E and Ex PW5/F. PW5 also further deposed to have visited the house of one Jaswinder Kaur and proved her statement as Ex. PW5/G. PW5 further proved copy of arrival and departure register of Royal Inn Hotel, Paharganj as Ex. PW5/H and seized CD vide seizure memo Ex. PW5/J after giving notice Ex. PW5/I to the Manager. CD was proved as MarkD1. PW5 further proved application sent to MHA for verifying the mobile details as Ex. PW5/1.
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5. Despite various efforts complainant Palwinder Singh could not be summoned and accordingly he was dropped from the list of witnesses vide order dated 21.03.2018. PW Ct.Boota Singh and Ct. Ratan Singh were dropped from the list of witnesses vide order dated 16.05.2018 and PW Harbhajan Singh also dropped from the list of witnesses vide order dated 02.08.2018. Prosecution evidence was closed on 02.08.2018.
6. Thereafter, statement of both accused U/s 313 r/w Section 281 Cr.PC were recorded to which both the accused replied that they have been falsely implicated and they never took money from Malik Grewal, Gyandeep, Kamaljeet and Palwinder Singh for securing VISA to Australia and they were also cheated by co-accused Kulwinder @ Karan who took all the money taken from these persons and fled away to foreign country. They said that they have been falsely implicated for recovery of money by complainant and other three persons.
7. Accused did not lead any evidence and accordingly, defence evidence was closed on 16.03.2019.
8. Learned Assistant Public Prosecutor for the State argued that the prosecution has proved its case beyond all reasonable shadow of doubts by examining all the material witnesses who have supported the prosecution version. Accordingly, conviction of both the accused was prayed
9. On the other hand, learned counsel for both the accused argued that the prosecution has failed to prove his case beyond all reasonable shadow of doubts and the case of the prosecution is full of contradictions. He further argued that the main complainant i.e., Palwinder Singh was not examined by the prosecution and PW2 Gyandeep has specifically admitted that co-accused CNR No. DLSW02-002246-2014 Page No. 10 of 16 Cr. Case 426844/16 State vs Mathew @ Lucky & Anr Kulwinder Singh has received the complete payment from them on 08.04.2014. He further argued that PW3 admitted that the amount was not given to the accused Mathew @ Lucky but to his father and there is a contradiction in the amount given by him, as in the FIR it has been mentioned as Rs.5,70,000/- but in a complaint filed in Punjab the amount has been mentioned as Rs.10Lacs. Further, it was argued that the IO / PW5 had admitted that no documentary proof was found or provided to substantiate the allegation of inducement by both the accused to the complainant and other three persons for securing VISA and further no passport of any of the victims was taken during the investigation. With these arguments acquittal of both the accused was prayed.
10. After hearing ld. APP for the state and ld. counsel for both the accused and having gone through the case file carefully and meticulously, this court is of the opinion that the point for determination in the present case is whether the accused person along with Kulwinder @ Karan cheated the complainant Palwinder Singh, PW1, PW2 and PW3 for Rs.23Lacs on the pretext of securing VISA for Australia in furtherance of their common intention to cheat them.
11. In present case the accused have been charged u/s 420 IPC. Section 420 IPC involves the offence of cheating and dishonestly inducing delivery of property. Section 420 IPC reads as under :-
"420. Cheating and dishonestly inducing delivery of property- Whoever cheats and thereby dishonestly induces the person deceived any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either CNR No. DLSW02-002246-2014 Page No. 11 of 16 Cr. Case 426844/16 State vs Mathew @ Lucky & Anr description for a term which may extend to seven years, and shall also be liable to fine".
12. The Hon'ble Supreme Court of India in Ram Jas vs. State of U.P. (1970) (2) SCC 740 held that :-
The ingredients required to constitute the offence of cheating are-
(i) there should be fraudulent or dishonest inducement of a person by deceiving him;
(ii) (a) the person so deceived should be induced to deliver any property to any person, or to consent that any person shall retain any property; or (b) the person so deceived should be intentionally induced to do or omit to do anything which he would not do or omit if he were not so deceived; and
(iii) in cases covered by (ii) (b), the act or omission should be one which causes or is likely to cause damage or harm to the person induced in body, mind, reputation or property.(Emphasis added).
13. From above, the essential ingredients of Section 420 IPC are:- (i) cheating; (ii) dishonest inducement to deliver property or to make, alter or destroy any valuable security or anything which is sealed or signed or is capable of being converted into a valuable security, and (iii) mens rea of the accused at the time of making the inducement. In M/S. Medchl Chemicals & Pharma (P) Ltd vs M/S. Biological E. Ltd. & Ors, AIR 2000 SC 1869 the Honble Apex court has observed that mens rea is one of the essential ingredients of the offence of cheating under Section 420 IPC.
14. The Hon'ble Supreme Court in AIR 2000 Supreme Court 2341, Hridaya Ranjan Pd. Verma and others Vs. State of Bihar and another, has held that mere breach of contract or agreement to sell cannot give rise to CNR No. DLSW02-002246-2014 Page No. 12 of 16 Cr. Case 426844/16 State vs Mathew @ Lucky & Anr criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction. Relevant para 16 reads as under:-
"Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction, that is the time when the offence is said to have been committed. Therefore, it is the intention which is the gist of the offence. To hold a person guilty of cheating it is necessary to show that he had fraudulent or dishonest intention at the time of making the promise. From his mere failure to keep up promise subsequently such a culpable intention right at the beginning, that is, when he made the promise cannot be presumed."
15. The Hon'ble Supreme Court judgment in 2007(4) RCR (Criminal) 870, B. Suresh Yadav Vs. Sharifa Bee & Anr., has held that criminal proceedings are not short cut of other remedies available in law to get the agreement to sell executed. In paragarph 13 of the said judgment the Hon'ble Apex Court has observed as under:-
"13. For the purpose of establishing the offence of cheating, the complainant is required to show that the accused had fraudulent or dishonest intention at the time of making promise or representation."
16. Now, in the case in hand, the complaint as well as the testimonies of PW1, PW2 and PW3 shows that it has been alleged that accused Mathew @ Lucky and Vijay cheated all of them by inducing them to deliver Rs.23Lacs in total, for securing VISA to Australia.
17. So far as the testimony of PW1 Kamaljeet is concerned, it is to be noted that PW1 has specifically deposed that he never met accused Mathew @ CNR No. DLSW02-002246-2014 Page No. 13 of 16 Cr. Case 426844/16 State vs Mathew @ Lucky & Anr Lucky before 07.04.2014. Further, PW1 has specifically deposed that he never personally handed over the passport to accused Mathew @ Lucky and he along with PW2 Gyandeep had handed over passport to Sandeep. Hence, it is clear from the testimony of PW1 that neither accused Mathew @ Lucky nor accused Vijay induced PW1 before 07.04.2014 to handover money in exchange of the promise to secure VISA to Australia. Further, PW1 has specifically deposed that to have given cash of Rs.6,50,000/- to the accused Mathew @ Lucky contrary to the stand of prosecution that each of the victim had paid Rs.5,70,000/- each for their VISA.
18. Now, coming to the testimony of PW3 Malik Grewal. In the cross examination, PW-3 specifically admitted that he has filed a complaint in Punjab against accused Mathew @ Lucky on the same facts and in the said complaint he has mentioned the consideration amount of Rs.10Lacs, contrary to the stand of the prosecution that each of the victim paid Rs.5,70,000/- for securing VISA. Further, PW3 has specifically admitted that he had handed over the amount to the father of accused Mathew @ Lucky. Hence, from the testimony of PW3 it is clear that there is no delivery of property directly to accused Mathew @ Lucky.
19. Moving ahead, the case of the prosecution has been blown away completely by the cross examination of PW2 who has specifically admitted that Kulwinder Singh had received the complete payment from them at Hotel Royal Inn, Delhi on 08.04.2014 and accused Mathew @ Lucky and Vijay had nothing to do with Kulwinder Singh. Further, PW2 had specifically admitted that accused Kulwinder had cheated them and not the accused Mathew @ Lucky and Vijay.
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20. Further, it is also to be noted that despite availing number of opportunities, prosecution failed to examine the main complainant Palwinder Singh, on whose complaint FIR was registered. Accordingly, the main complaint Ex. PW5/B has remained unproved throughout.
21. More so, assuming for the sake of arguments that each of the victim has paid Rs.5,70,000/- to accused Mathew @ Lucky and Vijay, then also they cannot be held liable for the offence of cheating as it is an admitted case of the prosecution that Kulwinder @ Karan has ran away with all the money. As discussed above, intention to cheat is an essential ingredient of Section 420 IPC and the said intention to cheat should have existed at the time of making of promise. From the testimonies of PW1 to PW3 it cannot be said beyond all reasonable shadow of doubts that their existed intention to cheat at the time of alleged making of promise by accused Mathew @ Lucky and Vijay that they will secure VISA for Australia in return of Rs.5,70,000/- from each victim. Rather the testimonies of PW1 to PW3 shows that even accused Mathew @ Lucky and accused Vijay got shocked after coming to know that Karan @ Kulwinder Singh has ran away with all the money. If there was any dishonest intention on the part of accused Mathew @ Lucky and Vijay then after coming to know that Karan @ Kulwinder has ran away with all the money, they would also have tried to ran away. However, both the accused stood their ground. PW2 has specifically deposed in the cross examination that accused Mathew @ Lucky had called the police by dialing 100 number. There was no requirement on the part of accused Mathew @ Lucky to call the police if there was any dishonest intention on his part not to fulfill his alleged promise of securing VISA for Australia, for the victims.
22. It is trite in criminal jurisprudence that the prosecution is under an CNR No. DLSW02-002246-2014 Page No. 15 of 16 Cr. Case 426844/16 State vs Mathew @ Lucky & Anr obligation to prove its case against the accused beyond reasonable doubt. The standard of proof to be adopted in criminal cases is not merely of preponderance of probabilities but proof beyond reasonable doubt on the basis of cogent, convincing and reliable evidence. It is also well settled that in case of doubt, the benefit must necessarily be allowed to the accused.
23. In view of the aforesaid discussion, this Court is of the considered opinion that the prosecution has failed to prove its case beyond all reasonable shadow of doubts and the benefit of doubt ought to be granted to both the accused, who are entitled to be exonerated of the charge against them in the present case. Accordingly, accused Mathew @ Lucky and accused Vijay is hereby acquitted of the offence punishable under Section 420/34 IPC. Their bail bonds and surety bonds stand discharged.
24. Both the accused are directed to furnish bail bonds and surety bonds to the tune of Rs.20,000/- U/s 437-A CrPC. Bail bonds furnished and accepted. They shall remain enforce for the period six months from today.
ORDER: ACQUITTED
25. File be consigned to the record room after due compliance.
KAMRAN Digitally signed by
KAMRAN KHAN
KHAN Date: 2020.09.23
16:02:57 +0000
Announced in Open Court (Kamran Khan)
28.09.2020 MM -01, South West
Dwarka Court, New Delhi
Note: This judgment contains 16 pages and each page has been signed by me.
(Kamran Khan) MM -01, South West Dwarka Court, New Delhi CNR No. DLSW02-002246-2014 Page No. 16 of 16