Delhi District Court
State vs Gaurav Tyagi (Att. Cc-561, Chander Bhan ... on 22 August, 2024
DLWT020004892012
IN THE COURT OF MS. SWATI BHARDWAJ, JUDICIAL
MAGISTRATE FIRST CLASS-06, DISTRICT- WEST, TIS HAZARI
COURTS, DELHI
State Vs. Gaurav Tyagi
FIR No. 64/09
PS - Hari Nagar
Under section 420 IPC
JUDGMENT
1) CIS No. : 62639/2016
2) The date of commission of offence : 01.06.2007
3) The name of the complainant : Chander Bhan
S/o Sh. Bhule Ram
4) The name & parentage of accused : Gaurav Tyagi
S/o Sh. Rajender Tyagi,
R/o Village Harsinpura, PS
Ghonda, District Karnal,
Haryana.
5) Ld. APP for State : Sh. Pravesh Kumar Vyas
6) Offence involved : Under section 420 IPC
7) The plea of accused : Pleaded not guilty
8) Final order : Acquittal
9) Judgment reserved on : 22.08.2024
10) Date of final order : 22.08.2024
State Vs. Gaurav Tyagi FIR No. 64/2009 1 of 15
BRIEF STATEMENT OF REASONS FOR DECISION:
1 Summarily stated, the allegations of the prosecution are that on
01.06.2007 at unknown time at GB-4, G-Block, Hari Nagar extension, Jail road, New Delhi-110018, within the jurisdiction of PS Hari Nagar the accused Gaurav Tyagi being the proprietor of JMD Finance Group at the above stated address assured the complainant Chander Bhan that the above-mentioned Sole Proprietorship firm is registered and he will provide a loan of Rs. 30,000/- to the complainant but the firm of the accused had not obtained registration certificate from RBI and was not registered with ROC. Thereby, accused Gaurav Tyagi deceived the complainant and took Rs. 60,750/- from the complainant for providing loan of Rs. 30 lakhs to him which was never provided to him by the accused and he never returned the said amount of Rs. 60,750/- to the complainant.
2. That in the similar manner, the accused also cheated Prakash Chand and received Rs. 8,250/- from him for providing loan of Rs. 4 lakhs to him but he never provided the said loan to him and never returned the said amount of Rs. 8,250/-. Thereby, the accused Gaurav Tyagi committed an offence punishable Under Section 420 IPC.
3. Investigation was conducted into the allegations. Upon completion thereof, charge-sheet was filed. The accused was summoned. Compliance of section 207 Cr.P.C was done by providing copy of the charge sheet and annexed documents to the accused.
4. Upon finding a prima facie case against the accused, a formal charge for offence punishable under Section 420 IPC was framed against State Vs. Gaurav Tyagi FIR No. 64/2009 2 of 15 the accused to which he has pleaded not guilty and claimed trial.
5. To substantiate the allegations, 12 witnesses were examined on behalf of the prosecution.
6. PW-1 Prakash Chand deposed that he resides at the above- mentioned address and ran a garments business. PW-1 asked Rahul Kaushik to arrange money for him. Thereafter PW-1 alongwith Rahul Kaushik came at Hari Nagar Delhi where he met with one Bhatia. He promised PW-1 that he will provide loan to PW-1 but PW-1 had to deposit Rs. 8500/- as file charges. PW-1 handed over Rs. 8500/- to Mr. Bhatia and he gave receipt to PW-1 for the same. Copy of the receipt is Ex. PW1/A. But after some time, PW-1 did not get the loan amount, therefore, he again visited the office of Bhatia where PW-1 also met with Gaurav Tyagi. When PW-1 asked them to return his money, accused Gaurav Tyagi (identity of accused is not disputed by Ld. LAC) handed- over one cheque of Rs. 5,000/- to PW-1. Copy of same is Ex. PW1/B (OSR). When he presented the said cheque in the bank, same got bounced. When PW-1 enquired from the accused persons, they told PW- 1 to present the cheque again. PW-1 presented the cheque again and again but in vain. Thereafter when PW-1 visited the office of accused and found the same empty.
7. PW-1 was cross-examined by Ld. LAC for accused. During his cross-examination he deposed that, he had met accused Gaurav Tyagi twice or thrice at his office. Accused Gaurav Tyagi had never told him that he will arrange loan amount for me. Vol. Mr. Bhatia had told the same. When he handed over Rs. 8500/- to Mr. Bhatia, accused Gaurav State Vs. Gaurav Tyagi FIR No. 64/2009 3 of 15 Tyagi was not present there. Mr. Bhatia has told him that accused Gaurav Tyagi was owner of the company. PW denied that he was only cheated by Bhatia and not by accused Gaurav Tyagi as he was never induced by accused Gaurav Tyagi nor he handed over money to him. Voluntarily stated, both have cheated him. That Bhatia had told him that he will arrange loan in two months.
8. PW-2 Retired ASI Brij Mohan deposed that on 24.04.2009, at about 2:00 PM, SI Ravinder Malik, handed-over one rukka for registration of FIR to PW-2. PW-2 made endorsement on said rukka which is Ex. PW2/A. Based on said rukka, PW-2 registered the present FIR which is Ex. PW2/B (OSR). After registration of FIR, PW-2 handed-over the copy of FIR and original rukka to SI Ravinder Malik, AF&C.
9. PW-3 Vishal Negi, Clerk, Bank of India, Vikas Puri Branch, Delhi brought the certified true copy of account opening form of account no. 603910110000068 in the name of Gaurav Tyagi alongwith the certified copy of account statement from the period of 17.06.2005 to 05.03.2014. Same are attested by Sh. Sheo Prasad, present Branch Manager. The account opening form is Ex. PW3/A and the account statement is Ex.PW3/B. At this stage, one letter dated 16.01.2010 by the then Manager Sh. S. R. Bhalla already available on record is shown to the witness. PW-3 identified the signatures of Sh. S. R. Bhalla on the basis of the record. The letter is in the hand writing of S. R. Bhalla. PW-3 has also brought the office copy of this letter. The original letter which is already on record is Ex. PW3/C which bears the signatures of Sh. S. R. State Vs. Gaurav Tyagi FIR No. 64/2009 4 of 15 Bhalla at point A.
10. During his cross examination by Ld. LAC for the accused, PW3 stated that as per record, cheque no.208066 dated 10.03.2008 was never presented in our bank for this account. He did not know the name of introducer of this account. He had been posted in the bank of India Vikaspuri Branch since 17.07.2013. He had been deputed by the Branch Manager for deposing. He was not in the service with Bank of India on 17.06.2005 when the said account was opened by Gaurav Tyagi.
11. PW4 Sh. Rakesh Mohan, Branch Manager Syndicate Bank, Badnoli Branch, District Hapur, UP stated that he had joined the Syndicate Bank as Clerk in 1980. In the year 2007, he was posted at Pilkhuwa Branch of the above said Bank. At that time, Sh. Sanjeev Verma was the Branch Manager at Pilkhuwa Branch. PW4 had seen him writing and signing so he can identify the handwriting and signature of Sh. Sanjeev Verma. He identified the handwriting and signature of Sh. Sanjeev Verma, the then Branch Manager on Letter dated 12.12.2007 on the letter head of Syndicate Bank i.e. Mark Al at point A. He stated that there was no record of this letter in the office of the Branch of the bank so cannot produce the original or the office copy of this letter.
12. During his cross examination by Ld. LAC for the accused, PW4 stated that he had worked under Sh. Sanjeev Verma for about period of 3-4 years at Pilkhuwa Branch. That the letter mark A-1 was not written by Sh. Sanjeev Verma in his presence.
13. PW5 Atma Sah, Assistant Registrar of Companies, deposed that State Vs. Gaurav Tyagi FIR No. 64/2009 5 of 15 he was posted as Assistant Registrar of Companies, NCT of Delhi and Haryana, their office received a letter from Inspector F & C Section EOW seeking information regarding the registration of declaration of ownership of M/s JMD Finance Group. As per their record, no such company existed in their list. His reply is Ex.PW5/A and list of companies with name JMD which were registered with them is Ex.PW5/B. Copy of letter with enclosure from EOW is marked X (colly).
14. PW-6 L. Vasu, Chief Manager, Corporation Bank, Vasant Kuni Branch, New Delhi deposed that he has been working in Corporation Bank since 30 years and he can identify the signature of Sh. Shiv Raj Mishra, the then Chief Manager, Vasant Kunj Branch, Corporation Bank, New Delhi as he has seen him signing and writing during official work. The letter dated 19.03.2009 is Ex.PW6/A bearing signature of Sh. Shiv Raj Mishra at point A and the enclosed document i.e. account opening form and statement of account of account no.SB01-7859 are Ex.PW6/B and mark PX1. The said account is in the name of Chander Bhan. PW-6 further stated that he can identify signatures and handwriting of Mr. Rout as he has seen him signing and writing during official work. The letter dated 12.11.2012 is Ex.PW6/C bearing signature of Mr. Rout, the then Senior Manager and the enclosed documents i.e. certified copy of cheques bearing no.549658 and 549659 are Ex.PW6/D and Ex.PW6/E both bearing signatures of Mr. Rout at point A. PW-6 cannot verify the signature on letter dated 12.11.2010 as he had not worked with the said official.
State Vs. Gaurav Tyagi FIR No. 64/2009 6 of 1515. During his cross examination by Ld. LAC for the accused, PW6 stated that he has been working in Vasant Kunj Branch of Corporation Bank since July 2014. He denied that he has wrongly identified and verified the signatures of officials of Corporation Bank or that he had not worked with them.
16. PW-7 Sh. Ravinder Singh, Head Clerk, Trade and Taxes Department, Vyapar Bhawan, New Delhi deposed that he was working as a Head Clerk in Special Zone, Trade and Taxes Department, Vyapar Bhawan, New Delhi. He brought the summoned dispatch register dated 16.03.2009 to 31.03.2010. As per their record, the letter no. F. Spl. Zone/2009/4791 dated 29.01.2010 which is Ex.PW7/A was dispatched from their office on 29.01.2010 vide entry no. 4791 in the dispatch register which was issued by N. K. Dass, VATO, Special Zone. The photocopy of the dispatch register of above-mentioned entry which is Ex.PW7/B(OSR).
17. PW-8 Parvesh Kumar, son of complainant Chander Bhan, deposed that on 15.06.2009 he had visited the police station where he had supplied the documents pertaining to the present case to the concerned IO. The documents were taken into possession by the IO and he also prepared seizure memo this regard mentioning the details of all the relevant documents supplied by PW-8. The said seizure memo is Ex- PW8/A. Statement of PW-8 in this regard was recorded by the IO. On 31.10.2009, PW-8 again visited the concerned PS where he again provided the remaining documents pertaining the IO. The list of documents mentioned in the seizure Memo Ex-PW8/B. Statement of State Vs. Gaurav Tyagi FIR No. 64/2009 7 of 15 PW-8 in this regard was recorded by the IO.
18. PW-9 Anoop Kumar, Assistant Manager, Allahabad Bank, Nawada Branch, Uttam Nagar, Delhi had brought the Account opening form of one "JMD Finance Group" which was opened for the branch of Allahabad Bank, Nawada Branch, Uttam Nagar, Delhi. As per the available record, the said proprietor of the said account was one Gaurav Tyagi, s/o Rajender Tyagi. The said account opening form is Ex-PW9/A (running into four pages). The same bears the seal of the bank alongwith the signature of the Manager of the Branch. PW-9 further deposed that he can identify the signature of the Branch Manager at point A as he had seen him signing in the ordinary course of his work as Assistant Manager. The statement of the abovesaid account is also brought by him today, the same is running into five pages and is Ex-PW9/B bearing the seal and signature of the Bank. As per the available record with the bank, the said account was closed in the year 2007. During his cross examination by Ld. LAC for the accused, PW9 stated that he had no personal knowledge of the present case.
19. PW-10 Mr. Nandan Ram deposed that he was posted as Manager at RBI Branch located at Parliament Street. On that day, he had sent one letter to ACP, EOW in reply to his letter dated 20.04.2010. In the letter, he had supplied the information relating to JMD Groups. After verifying the records of the JMD Groups from the Bank, he came to know that the said group had not obtained valid certificate of registration from RBI which is the mandate u/s 45IA of RBI Act, 1934. Therefore, this identity was not authorised to take deposits from public/ individual or others.
State Vs. Gaurav Tyagi FIR No. 64/2009 8 of 15PW-10 had also supplied the information about other queries raised by the ACP EOW in his above stated letter. The letter is Ex-PW10/A. The detailed reply is attached with it, same is Ex-PW10/B. During his cross examination by Ld. LAC for the accused, PW10 stated that he had no personal knowledge of the present case.
20. PW-11 Sh. Saifuddin, Civil Defence Volunteer, Sub-Registrar-I, Kashmere Gate, Delhi brought the summoned record of registration declaration of ownership which was executed by Anil Kumar (Advocate) on behalf of Gaurav Tyagi, S/o- Sh. Rajender Tyagi. As per the record, the said document was registered in the Office of Sub-Registrar, Kashmere Gate, Delhi vide registration no. 11471 in Book No. 04, Volume No.1967 on page 89-90 dated 15.12.2005. The true copy of the document is taken on record and the same is Ex.PW11/A (OSR).
21. PW-12 Inspector Ravinder deposed that he was posted at EOW as SI and one complaint filed by Chander Bhan was marked to him for enquiry. The complaint was regarding cheating which is Ex. PW12/A. After preliminary enquiry, he prepared the rukka Ex. PW12/B and handed-over the same to Duty Officer for registration of FIR. After registration of FIR, PW-12 called the complainant Chander Bhan to EOW office on 15.06.2009 and he handed-over the document i.e. GPA, Original cancelled guarantee documents, undertaking, I-card and the same were seized vide seizure memo already Ex. PW8/A. Later on, the complainant again came and handed-over the documents i.e. pronotes, cheques etc and the same were seized vide seizure memo Ex. PW8/B. PW-12 inquired from the office of VAT Officer, Special Zone, Vyapar State Vs. Gaurav Tyagi FIR No. 64/2009 9 of 15 Bhawan regarding registration of JMD Finance Group. In the reply i.e. Ex. PW7/A, they stated that the said firm was not registered. PW-12 also inquired from the RBI regarding registration of non-banking finance company and they replied that the company is not registered, and they cannot give and take the public money or individual fund. The reply letter is already an account in Ex. PW10/A. The accused Gaurav Tyagi was having Bank of India, Vikas Puri Branch. PW-12 asked the bank to provide account opening form and the statement of account. They provided the photocopy of account opening form and copies of statements of account vide letter already Ex. PW3/C. PW-12 asked Allahabad Bank advertised with Nevada Branch to provide account opening form, statements of account of JMD Finance and statements of bounced cheques and they provided these documents through a letter which is Ex. PW12/C. PW-12 inquired from Corporation Bank where the complainant Chander Bhan, was having his account regarding transfer of amount through cheques of Rs. 60,750/- and account opening form is provided the same through letter already Ex. PW6/C. The complainant has given newspaper cutting of advertisement for loan processing dated 11.05.2007 of Dainik Jagran and the same was taken in possession and the same is Ex. PW12/D.
22. PW-12 further deposed that he inquired from Sub-Registrar Office, Kashmere Gate regarding registration of declaration of ownership of JMD and it was replied that the same was registered in the name of Gaurav Tyagi vide registration no. 11471 dated 15.12.2005. The reply was given on the back of the letter dated 26.04.2010 and the same is Ex. PW12/E and reply at the back is Ex. PW12/F. The complainant State Vs. Gaurav Tyagi FIR No. 64/2009 10 of 15 Prakash Chand had given photocopies of receipts and cheques and letter to the bank. The receipts are already Ex. PW1/A and cheque Ex. PW1/B and photocopy of letter to the bank already Mark Al. PW-12 inquired from Registrar of companies regarding registration of JMD Finance and the same was not found to be registered. After completion of investigation, PW-12 prepared the charge-sheet against the accused without arrest and file accordingly.
23. During his cross examination by Ld. LAC for the accused, PW12 stated that he did not inquire from R. K. Bhatia mentioned in the complaint Ex. PW12/A as sole proprietor of the firm, Anil Kumar i.e. agent of the firm and Neera i.e. receptionist of the firm. Voluntarily stated that they were not traceable. He inquired from Dainik Jagran regarding the publication of advertisement which is Ex. PW12/D that who has published the said advertisement and they informed that the same was advertised through advertisement agency, but they did not disclose the name of agency. He did not inquire that which agency had published the said advertisement and who has given for advertisement to the agency. The complainant had not given any property document for hypothecation of the loan amount of Rs. 30,00,000/- except the guarantee. He inquired from the complainant regarding amount of loan processing fees. He was not aware that loan processing fees was non- refundable. He did not remember whether he asked the complainant on which date he applied for loan or the date on which the complaint Ex. PW1/A was filed. He did not inquire from the complainant that as per the statement of bank account whether he was competent to have loan of Rs. 30,00,000/- or not.
State Vs. Gaurav Tyagi FIR No. 64/2009 11 of 1524. After prosecution evidence was concluded, statement of accused was recorded under section 313 read with Section 281 Cr.P.C. wherein the accused refuted all the incriminating circumstances and evidence put to him and pleaded innocence. He further stated that he had refunded the fees to the complainant in cash after dishonor of the cheque.
25. Accused chose not to lead any evidence in his defence and the same was closed.
26. Final arguments were led on behalf of both the parties.
27. Rival submissions have been considered and record of case has been carefully perused.
28. It is trite that in a criminal trial, the prosecution must discharge twin burden of proving the identification of the perpetrator of the crime and the actual commission of the crime itself. The onus remains on the prosecution to prove the guilt of the accused beyond all reasonable doubt. It is for the prosecution to travel the entire distance from 'may' have to 'must' have. If the prosecution appears to be improbable or lacks credibility, the benefit of doubt necessarily must go to the accused.
29. To bring home guilt to the accused for offence punishable under section 420 IPC read with section 415 IPC, the prosecution must establish beyond reasonable doubt, existence of the following:
i. the accused intentionally induced the complainant/ victim;
ii. acting upon/ consequential to the inducement, the complainant/ victim delivered a property to someone State Vs. Gaurav Tyagi FIR No. 64/2009 12 of 15 and;
iii. the accused had dishonest intention at the time of making the inducement.
30. In the present case, what inducement was made to the victims Chander Bhan and Prakash Chand by the accused was within their special knowledge. Unfortunately, victim Chander Bhan passed away during the pendency of the trial before he could be examined as a witness. There was no other witness examined by the prosecution who might have witnessed the alleged inducement made by the accused to victim Chander Bhan and who could have deposed about the same. Even PW8 Sh. Pravesh i.e. the son of the victim Chander Bhan has not deposed about witnessing the alleged inducement. In such circumstances, even if the prosecution proves that there was a transfer of money from the account of victim Chander Bhan to the account of accused Gaurav Bhatia, it has not been proved what was the basis of such transfer. Thus, the primary ingredient of there being an intentional dishonest inducement by the accused to the victim Chander Bhan has not been proved.
31. Further, the other victim PW1 Prakash Chand has deposed that he had handed over Rs. 8,500/- to one Mr. Bhatia upon the inducement of the said Bhatia that he will provide loan to PW1 but PW1 had to deposit Rs. 8,500/- as file charges. The victim has not levelled any allegations of the dishonest inducement being made by the accused Gaurav to him. PW1 has only stated that when the loan was not given and he asked his money back, accused Gaurav Tyagi State Vs. Gaurav Tyagi FIR No. 64/2009 13 of 15 handed over a cheque of Rs. 5,000/- to him which later got dishonored. During his cross examination, PW1 categorically denied that any representation was made to him by accused Gaurav regarding arranging any loan for him. PW1 has also conceded that accused Gaurav was not even present when he handed over Rs. 8,500/- to Mr. Bhatia. In such circumstances, primary ingredient of there being an intentional dishonest inducement by the accused to the victim Prakash Chand has also not been proved.
32. Ld. APP for the State has argued that the accused had advertised to provide loan of 20,00,000/- to 50,00,000/- in Dainik Jagran newspaper dated 11.05.2007 i.e. Ex. PW12/D, while as per the deposition of PW10 i.e. the Manager, RBI, the company of the accused i.e. JMD Groups had never obtained the valid certificate of registration mandated u/s 45-IA of the RBI Act, 1934, thus, it was not authorized to take deposits from public/ individuals or others. Thus, the accused has at the very least committed the offence of attempt to cheat punishable u/s 511 IPC read with 420 IPC.
33. This court is of the considered view that the newspaper advertisement has not been proved by examining the concerned publisher. Even otherwise, the advertisement clip does not mention the name of the advertiser. The IO PW12 stated during his cross examination that when he inquired about the same from Dainik Jagran, they informed that it was advertised through an advertisement agency, but he did not inquire which agency or who gave the advertisement to the agency. Thus, there is nothing on State Vs. Gaurav Tyagi FIR No. 64/2009 14 of 15 record to prove that the accused Gaurav Bhatia had got the alleged advertisement published.
34. In view of the foregoing discussion, this court finds that the prosecution has failed to establish the main ingredient which is crucial to prove the commission of offence punishable under section 420 IPC. It has not proved beyond reasonable doubt that the accused Gaurav made the intentional dishonest inducement to the victims Prakash Chand and Chander Bhan regarding getting them loans, consequential to which the victims were made to pay the file charges to his company.
35. Thus, this court is of the considered view that the case of prosecution has not been able to stand on its own legs qua allegations of commission of offence under section 420 IPC.
36. Consequently, the accused Gaurav Tyagi s/o Sh. Rajender Tyagi is acquitted of the offence punishable under Section 420 IPC.
Digitally
signed by
SWATI SWATI GUPTA
Date:
GUPTA 2024.08.23
15:34:22
Pronounced in the open (SWATI BHARDWAJ)
+0530
Court on 22.08.2024 JMFC-06(West), Tis Hazari Courts, Delhi
This judgment contains 15 signed pages.
State Vs. Gaurav Tyagi FIR No. 64/2009 15 of 15