Delhi District Court
3. Title Of The Case : State vs . Vinod Kumar on 22 August, 2013
IN THE COURT OF SHRI RAKESH KUMARII: ACMM0I
(CENTRAL) : TIS HAZARI COURTS, DELHI.
1. Case No. : 1132/P/08
2. Unique I.D. No. : 02401R0366382003
3. Title of the Case : State Vs. Vinod Kumar
FIR No. 102/99
PS : Paharganj
U/s 408 IPC
4. Date of Institution : 08.06.1999
5. Date of reserving judgment : 22.08.2013
6. Date of pronouncement : 22.08.2013
J U D G M E N T :
a) The Sl. No. of the case : 1132/P/08
b) The name of complainant : Sh. Sunil Poddar, S/o Sh. Ram Karan
Poddar, R/o E52, Jhandewalan, Paharganj,
Delhi.
c) The name of accused Vimal Kumar Srivastava, S/o Raj Bahadur,
R/o Village Sirawala, PS Rajpur, Distt.
Chitrakut. U.P.
d) The offence complained of : 408 IPC
e) The offence charged with : 408 IPC
f) The plea of the accused : Pleaded not guilty
g) The final order : Acquitted
h) The date of such order : 22.08.2013
1. On receipt of DD No. 68B at around 9.35 pm, Inspector Richpal Singh FIR No. 102/99 " State Vs. Vimal Kumar Srivastav " Page 1 of 7 alongwth Ct. Dulichand reached at E52, Jhandewalan, where Sh. Sunil Poddar (complainant) met them and Inspector Richpal Singh recorded the statement of Sunil Poddar (Ex. PW1/A. After recording the statement of the complainant, present FIR was registered on the allegations that on 16.02.1999 at about 4.30 pm, the Cashier of the complainant namely Sehdev gave payment of Rs. 1,00,000/. to the accused Vimal Kumar to be made to Sh. Harjeet Arora, R/o 19/19, Old Rajender Nagar, Jhandewalan, Paharganj. At about 8.00 pm, the complainant inquired telephonically from Sh. Harjeet Arora about the receiving of payment and Harjeet Arora told that neither the accused Vimal Kumar came to him nor any payment had been received from accused Vimal Kumar by him. Thereafter the complainant Sunil Kumar Poddar inquired from his cashier Sehdev about the whereabouts of the Vimal Kumar who also told that accused Vimal Kumar had not come back. Thereafter the complainant searched the accused but to no gain. As per complaint of the complainant, the accused Vimal Kumar had fled away with the payment of Rs. 1,00,000/. A rukka (Ex.PW2/A)was prepared and sent to the police station for registration of the case through Ct. Duli Chand and the case was registered against the accused u/s 408 IPC.
2. The Prosecution had furnished list of 8 witnesses in order to prove its case and out of them only 7 witnesses were produced by the Prosecution.
3. Sh. Sunil Poddar is (PW1). He deposed that on 16.02.1999 at about 4.30 pm, the Cashier namely Sehdev gave a sum of Rs. 1,00,000/. to the accused FIR No. 102/99 " State Vs. Vimal Kumar Srivastav " Page 2 of 7 Vimal Kumar to be given to Sh. Harjeet Arora, R/o 19/19, Old Rajender Nagar, Jhandewalan, Paharganj. At about 8.00 pm, the he inquired telephonically from Sh. Harjeet Arora about the receiving of payment and Harjeet Arora told that neither the accused Vimal Kumar came to him nor any payment had been received from accused Vimal Kumar by him. Thereafter he inquired from his cashier Sehdev about the whereabouts of the Vimal Kumar who also told that accused Vimal Kumar had not come back. Thereafter the complainant searched the accused but to no gain and he reported the matter to the police.
4. Sh. Harjit Singh is PW2 to whom a sum of Rs. 1,00,000/ was to be paid.
5. HC Narin Singh is PW3 who recorded the FIR.
6. Sh. Sehdev is (PW4 is the cashier of the complainant.
7. SI Yograj is PW5 who arrested the accused vide arrest memo Ex. PW5/DA.
8. Inspector Richpal Singh ( PW6) is the IO of the case. It is stated by him that on 16.02.1999 he was posted at PS Paharganj and on that day he received DD No. 68B at around 9.35 pm and upon receiving the said DD, he alongwith Ct. Dulichand went at E52, Jhandewalan factory area, Paharganj where complainant Sunil Poddar met them and he made inquiry from him and recorded the statement Ex. PW1/A and got the case registered on the statement of the complainant through Ct. Duli Chand. He prepared the site plan Ex. PW6/A at the instance of the complainant.
FIR No. 102/99 " State Vs. Vimal Kumar Srivastav " Page 3 of 7
9. Ct. Manoj Kumar is PW7 who was with IO SI Yograj (PW5) at the time of arrest of accused after surrender by the accused.
10. No other PW was examined. PE was closed. Accused was examined under Section 281 Cr.P.C. read with Section 313 Cr.P.C. wherein he submitted in his statement that he is innocent and falsely implicated in the present case. Accused did not lead any defence evidence in his defence.
11. I have heard the Ld. APP for State and the counsel for the accused and perused the record carefully.
12. To prove the present case, the prosecution has examined Sh Sunil Poddar PW1, whose relevant portion of the cross examination is given as under : "I do not remember whether I had given any documents with regard to employment or salary slip of accused with our company to the police or not. I do not remember whether I had given any documentary proof with regard to misappropriate money amounting to Rs. 1 lac to the police or not. I do not remember whether I had given any documentary proof to the police with regard to payment to Harjeet Arora against the payment of material purchased by our company. I do not remember whether I had given any document to the police that my employee Sahdev had given one lack rupees to the accused Vimal Kumar for making payment to Harjeet Arora."
FIR No. 102/99 " State Vs. Vimal Kumar Srivastav " Page 4 of 7
13. From this statement, it is proved that Rs. 1,00,000/ was not entrusted to the accused and it is also not proved that whether the accused was working for the complaint or he was his servant, as the complainant has not placed on file any documentary proof to show that he was working with him or any money was entrusted to him. No salary slip/ documents has been placed by the complainant with regard to the employment of the accused with him.
14. Second Material witness of this case is Harjeet Singh (PW2) to whom a sum of Rs. 1,00,000/ was to be paid. The relevant portion of the cross examination of this witness is produced herein below: "I did not submit any document to the police regarding the bill raised towards Sunil Poddar. I do not know whether accused Vimal Srivastava was employee of Sunil Poddar. I do not know whether any documents has been submitted by Sunil Poddar with regard to bill raised by me against him. I do not visit the police Station Paharganj. Police did not record my statement I do now know whether Sunil Poddar had given sum of Rs. 1 lakh to accused Vimal Kumar for making payment to me"
15. From these statement of PW1 and PW2, it is proved that there was no entrustment of the money. No proof of entrustment of money has been placed on file by the prosecution and prosecution has also failed to prove that the accused was the servant of the complainant. To constitute an offence of criminal breach of by clerk or servant, It is essential the prosecution must prove first of all that the FIR No. 102/99 " State Vs. Vimal Kumar Srivastav " Page 5 of 7 accused was entrusted with some property or money or with any dominan or power over it. It has to be established further that in respect of the property so entrusted to a servant or cleark, there was dishonest misappropriation or dishonest conversion or dishonest use or disposal in violation of a direction or law or legal contract, by the accused himself or by someone else which he willingly suffered to do. It follows almost axiomatically from this definition that the ownership or beneficial interest in the property in respect of which criminal breach of trust is alleged to have been committed must be in some person other than the accused and the latter must hold it on account of some person or in some way for his benefit.
16. Before a conviction for criminal breach of trust, the prosecution must prove that the factum of entrustment, and the factum of misappropriation of the entrusted articles and without proof of entrustment there can be no question of the accused being found guilty for the offence for criminal breach of trust and reference can be made to Roshan Lal Raina Vs. State of Jammu & Kashmir, AIR 1993 SC 631.
17. The case of the prosecution is accused was working as a servant but not even a single document regarding his job, his salary and work agreement has been placed on file and in view of non production of the relevant documents with respect to the employment of the accused with the complainant, accused is entitled to be acquitted and reference can be made to Mukimuddin Vs. State; 1991 Crl. LJ 2903 ( Delhi). One independent evidence with regard to the entrsutment FIR No. 102/99 " State Vs. Vimal Kumar Srivastav " Page 6 of 7 is necessary for proving the case u/s 408 and in the absence of legal and independendent evidence with regard to the entrustment, it would be improper to convict a person and reference can be made to Jeewan Dass Vs. State of Haryana:
(1999) 2 SCC 530, AIR 1999 SC 1301, 1999 Crl. L. J 2034 and (1999) 2 SCJ 124.
18. Now since the prosecution has miserably failed to prove its case beyond all shadow of reasonable doubts, the only plausible finding which can be given against the accused is that of not guilty. Bail bond of accused is extended in terms of section 437A Cr.P.C. File be consigned to record room.
Announced in the open court (RAKESH KUMARII) on 22.08.2013 ACMM01 DELHI
It is certified that this judgement contains Seven (7) Pages and each page bears my signature.
(RAKESH KUMARII) ACMM01 DELHI FIR No. 102/99 " State Vs. Vimal Kumar Srivastav " Page 7 of 7