Delhi District Court
State vs . Mohit Garg & Anr. on 7 November, 2020
IN THE COURT OF ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE-02, CENTRAL DISTRICT,
TIS HAZARI COURT, DELHI
PRESIDING OFFICER: SH. GAJENDER SINGH NAGAR
State Vs. Mohit Garg & Anr.
FIR NO. 210/2001
PS: Chandni Chowk
U/S: 420/120-B IPC
JUDGMENT
CIS No. : 288830/16
Date of commission of offence : April 2009 & 2000-2001
Date of institution of the case : 15.12.2001
Name of the complainant : Sh. Puran Chand Gupta
Sh. Sushil Wadhera
Name of accused and address : 1. Mohit Garg
S/o Late Sh. Suresh
Chand Garg,
R/o 7B, Toot Sarai, First
Floor, Malviya Nagar, New
Delhi-110017.
2. Naresh Goel
S/o Sh. Mahesh Chand
Goel,
R/o WZ-786, Rishi Nagar,
Rani Bagh, Delhi.
3. Sudhir Gupta
(Proceedings qua him
stood abated vide order
dated 01.12.2012).
Offence complained of or proved : U/s 420/120-B IPC
FIR No. 210/01, PS Chandni Chowk State Vs. Mohit Garg & Anr. Page 1/21
Plea of the accused : Pleaded not guilty
Final order : Acquitted.
Date on which reserved for judgment: 04.11.2020
Date of judgment : 07.11.2020
BRIEF STATEMENT OF THE FACTS FOR DECISION:
1. This is the prosecution of accused persons namely Mohit Garg, Naresh Goel and Sudhir Gupta (since deceased) pursuant to charge-sheet filed by P.S. Chandni Chowk U/s 420/120-B IPC subsequent to the investigation carried out by them in FIR No. 210/01.
2. Brief facts of the case are that a complaint was filed by Sh. Puran Chand Gupta alongwith his wife Smt. Pushp Lata qua fraud being committed with them by accused persons namely Mohit Garg, Sudhir Gupta (since deceased) and Naresh Goel as they purchased huge quantity of fabrics and failed to pay the consideration amount. During investigation, one more complaint was received by the IO from one Sh. Sushil Wadhera qua fraud being committed with him by accused persons namely Sudhir Gupta (since deceased) and Mohit Garg. The said complaint was clubbed with the present FIR and charge sheet was filed against the accused persons for commission of offences punishable U/s 420/120-B IPC.
3. Complete set of charge-sheet and other documents were supplied to the accused persons. At first instance, charges were framed against accused persons qua criminal conspiracy to cheat and fraud being committed with Sh. Puran Chand Gupta and his wife Smt. Pushp Lata only to which they pleaded not guilty and claimed trial. Later on after recording evidence of Sh. Sushil Wadhera charge was altered and additional charges were framed against accused Sudhir Gupta and Mohit Garg qua criminal conspiracy to cheat and defrauding Sh. Sushil Wadhera to which FIR No. 210/01, PS Chandni Chowk State Vs. Mohit Garg & Anr. Page 2/21 they also pleaded not guilty and claimed trial. It is to be noted that during trial accused Sudhir Gupta expired, hence proceedings against him stood abated vide order dated 01.12.2012.
MATERIAL EVIDENCE IN BRIEF:
4. The prosecution in support of present case has examined 13 witnesses in total.
5. PW-1 Sh. Shri Kant deposed that he used to work at Pehnawa Boutique till January, 2001. It is stated that accused Sudhir Kumar Gupta (now deceased) and accused Mohit Garg were owners of Pehnawa Boutique. It is stated that both Sudhir Gupta and Mohit Garg used to look after the business of Pehnawa Boutique. It is stated that accused Naresh Goel was the agent of Pehnawa Boutique. It is stated that goods were received from Mayur Textiles through Naresh Goel. It is stated that he used to deliver the fabric in the area of Rohini, Shanti Mohalla and Karol Bagh at the instance of accused Mohit Garg and Sudhir Gupta. It is stated that he used to bring payments from the said supplies. It is stated that Sudhir Gupta and accused Mohit Garg used to pay commission to Naresh Goel whenever payments were received. In his cross-examination, it is stated by him that he is an illiterate person and prior to joining Pehnawa Boutique, he was working as domestic servant in the house of accused Sudhir Gupta (since deceased). It is stated by him that accused Sudhir Gupta was the proprietor of Pehnawa Boutique. It is stated that accused Sudhir Gupta was also having a shop in Chandni Chowk with the name and style Kanhaiya Textile. It is stated by him that he used to bring fabrics from transport companies and used to sign on token of having taken the delivery. It is denied by him that accused Mohit Garg was not the proprietor of the firm. It is voluntarily stated by him that Mohit Garg and Sudhir Gupta both were proprietor of Pehnawa Boutique. It is admitted by him that he has filed a claim against Sudhir Kumar Gupta FIR No. 210/01, PS Chandni Chowk State Vs. Mohit Garg & Anr. Page 3/21 which is pending in the Court of Sh. P.K. Saxena. It is stated that he has also filed an another claim in the Labour Court. It is denied by him that he never worked at Pehnawa Boutique. Though, it is stated by him that he had received salary from Kanhaiya Textile also. It is stated by him that he used to work at Kanhaiya Textile and Pehnawa Boutique at the same time. It is stated by him that he had not made accused Mohit Garg a party in either of the case filed by him. It is stated by him that no cheque was given by accused Mohit Garg to Mayur Textile in his presence. He could not tell the exact amount of commission paid to Naresh Goel. It is stated by him that no document to the effect that Naresh Kumar was an agent of Pehnawa Boutique was prepared in his presence. It is stated by him that he did not go to the shop of Mayur Textile. It is stated that only Sudhir Gupta and Naresh Goel had gone to Mayur Textile. It is admitted by him that summons qua Kanhaiya Textile were sent to Sudhir Gupta only.
6. PW-2 SI Narain Singh exhibited carbon copy of FIR No. 210/01 as Ex. PW-2/A and endorsement on rukka as Ex. PW-2/B (OSR).
7. PW-3 Sh. Dev Anand deposed that he worked at Pehnawa Boutique from 1996 to January, 2001. Accused Sudhir Gupta and accused Mohit Garg were owners of Pehnawa Boutique. It is stated by him that the builties of the consignment were used to be received by him. It is stated that accused Naresh Goel was agent of Pehnawa Boutique. It is stated that accused Naresh Goel used to bring builty and bills from M/s Mayur Textiles and Export Tex. It is stated that accused Naresh Goel used to get the commission on the collection made by him. It is stated that he alongwith other workers used to take the goods for delivery to various persons. It is stated that accused Mohit Garg as well as accused Naresh Goel also used to take goods for delivery. It is stated that he used to deliver goods to DD Textiles in Karol Bagh. It is stated that he used to collect money and used to give the money collected to accused Sudhir Gupta as well as to accused Mohit Garg. It is stated by him that name of FIR No. 210/01, PS Chandni Chowk State Vs. Mohit Garg & Anr. Page 4/21 proprietor of Mayur Textile is Sh. Puran Chand and name of proprietor of Export Tex is Ms. Pushp Lata. It is stated that he had taken delivery of goods on some occasions from Indo Arya Transport as well as from M/s Supreme Transport. The gate pass dated 18.11.1999 of Indo Arya Transport is Mark-A. It is stated that the goods covered by gate pass, Mark-A were delivered by him to M/s J.D Textiles on direction of accused Mohit Garg. It is stated that accused Mohit Garg used to take care of the business when accused Sudhir Gupta used to be in Hungary where they were also having business. It is stated that receipts Ex. PW-3/A1 to Ex. PW-3/A-17 are the receipts of the fabrics received by him from Mayur Textiles and all of them bears his signatures at Point-A. In his cross- examination, it is stated by him that he is matriculate. He was appointed as driver in the year, 1996. It is stated that he was advised by accused Sudhir Gupta (since deceased) to learn the work of Pehnawa Boutique in spare time. It is stated by him that gate pass used to be given either by Sudhir Gupta or Mohit Gupta and his sign/ initials were obtained on the same. It is stated by him that he had orally asked accused Sudhir Gupta (since deceased) for a rise in his salary, but despite assurance his salary was not hiked. It is stated by him that he has no document to prove or substantiate the claim that accused Mohit Garg is an owner of Pehnawa Boutique with accused Sudhir Gupta.
8. PW-4 Sh. Puran Chand Gupta deposed that he is the proprietor of M/s Mayur Textiles and his wife Ms. Pushp Lata is the proprietor of M/s Export Tex. It is stated that business dealings with Pehnawa Boutique were started through one Sudarshan Kumar Sharaf who was broker in the market who came to their shop alongwith accused Sudhir Gupta, accused Mohit Garg and accused Naresh Goel. This witness correctly identified all the accused persons. It is stated that accused Mohit Garg and accused Sudhir Gupta introduced themselves to him on that day as Directors of M/s Pehnawa Boutique India having its showroom at Budapest, Hungary. It is stated that his first dealing started FIR No. 210/01, PS Chandni Chowk State Vs. Mohit Garg & Anr. Page 5/21 with accused Mohit Garg on 07.04.1999 and on 02.07.1999 with the firm of his wife Export Tex. It is stated that his total dealing with M/s Pehnawa Boutique were worth Rs. 39,00,000/- and with the firm of his wife were worth Rs. 49,00,000/-. It is stated that till today he is yet to receive Rs. 13,00,000/- for Mayur Textiles and Rs. 21,00,000/- in his wife's firm Export Tex from the accused persons. It is stated that the goods were sent to them under the bills raised in their names alongwith lorry receipts (i.e. builties). It is stated that these bills and lorry receipts were collected by their agent Naresh Goel and in terms the acknowledgement/ receipts were collected by the said agent which he handed over to this witness. It is stated that they have carbon copies of the bills in their records which are on judicial file. He exhibited carbon copies of bills of Mayur Textiles as Ex. PW-4/A-1 to Ex. PW-4/A-28 and the receipts issued by Pehnawa Boutique as Ex. PW-4/B1 to Ex. PW-4/B-12 as well as Ex. PW-3/A-1 to Ex. PW-3/A-17. It is stated that receipts Ex. PW-4/B1 to Ex. PW-4/B12 were bearing signatures of accused Sudhir Gupta and accused Mohit Gupta. It is stated that complaint, Ex. PW-4/C bears his signatures at Point-A and signatures of his wife at Point-B. It is stated that a cheque of Rs. 3,00,000/- was issued by accused persons in favour of Mayur Textiles and two cheques of Rs. 3,00,000/- each were issued in favour of Export Tex. However, all of them were dishonoured. It is stated that after dishonour of the cheques this witness approached the accused Sudhir Gupta at Hungary on telephone and accused Mohit Garg at Delhi for liquidating his entire dues including these cheques, on that accused Sudhir Gupta told him to approach accused Mohit Garg for payment of his dues. When he approached accused Mohit Garg, he refused to make the payment and apprised that he has got nothing from his uncle Sudhir Gupta from Hungary, so he refused to make the payment. This witness again approached accused Sudhir Gupta and requested him to make the payment on that accused Sudhir Gupta told him to wait and apprised that he would be sending more than Rs. 40,00,000/- to India to his nephew Mohit Garg, who will make the payment, however, no such payment was made. Again in August-September, 2000 Sudhir Gupta came to India and FIR No. 210/01, PS Chandni Chowk State Vs. Mohit Garg & Anr. Page 6/21 clearly refused to make the payment saying that he has never received the supplies. Thereafter, this witness lodged a complaint with DCP (Crime) on 16.01.2001, which is Ex. PW-4/D. In his cross-examination, it is admitted by him that his business is separate and independent business from the business of his wife. It is stated that he used to issue/ raise bills relating to concern of his wife. It is denied by him that firm of his wife was a fictitious firm which was created for the purpose to issue fictitious bill. It is stated by him that accused had issued one cheque for Rs. 3,00,000/- to him. It is stated that cheque in question was handed over to him by accused Sudhir Gupta. It is stated that he presented the cheque for encashment on several occasions, but cannot tell the exact numbers or dates. It is admitted by him that after dishonouring of the cheque he made a criminal complaint against the accused firm in P.S. Kalkaji and Chandni Chowk. It is admitted by him that the dispute was also referred for arbitration. It is admitted by him that in arbitration proceedings he made accused Mohit Garg and accused Sudhir Gupta as respondents. It is admitted by him that Ld. Arbitrator had mentioned in his award that accused Mohit Garg is not liable to pay this amount to him. He failed to remember about liability of accused Naresh Goel in the arbitration award. He could not tell if he had mentioned the role of Naresh Goel in the complaint lodged by him with P.S. Chandni Chowk and Kalkaji. It is admitted by him that he had filed a complaint in the Court of Ld. Metropolitan Magistrate U/s 420 IPC r/w Section 138 NI Act in October, 2000. He failed to remember whether summoning order in that complaint was passed only for offence U/s 138 NI Act. It is stated by him that accused Mohit Garg was earlier summoned in case U/s 138 NI Act but was later on discharged by the Court. It is stated by him that he had leveled an allegation of misrepresentation by accused Sudhir Gupta as MD of a Private Limited Company and Mohit Garg as Director of Private Limited Company. It is stated that this fact of misrepresentation came into his knowledge when the bounced cheque was received by him. It is admitted by him that receipt Ex. PW-4/A1 was signed by accused Sudhir Gupta. It is also admitted by him that the receipt is having a stamp FIR No. 210/01, PS Chandni Chowk State Vs. Mohit Garg & Anr. Page 7/21 showing Pehnawa Boutique India (proprietor). It is denied by him that he has falsely implicated accused Mohit Garg being related to accused Sudhir Gupta just in order to pressurize him to make the payment. It is admitted by him that accused Naresh Goel had not purchased any goods from him.
9. PW HC Jitender Kumar deposed that on 06.10.2001 complaint made by Sh. Puran Chand Gupta was handed over to him for registration of FIR. He went to P.S. Chandni Chowk and got the present FIR registered. Thereafter, he handed over the copy of FIR alongwith original rukka to SI Ashok Kumar.
10. PW-5 Sh. Sushil Wadhera, proprietor of Wadhera Import & Export deposed that about four years back he met accused Sudhir Gupta and accused Mohit Garg at a friend's function. Accused Mohit Garg and accused Sudhir Gupta told him that accused Sudhir Gupta was having business in Hungary. Both the accused persons namely Mohit Garg and Sudhir Gupta suggested him to export leather bags and ladies dresses. Both of them also allured him that a big profit can be earned by such export. This witness told accused Mohit Garg that he has no experience of export on that Sudhir Gupta assured him that accused Mohit Garg who is his nephew will cooperate with this witness in his business. Thereafter, both accused Mohit Garg and accused Naresh Goel took cheque book of this witness and cash amount of Rs. 2,50,000/- from him. It is stated that accused Mohit Garg (written as Mohit Gupta in evidence) prepared all the relevant documents. It is stated that firstly he sent goods worth 5,900 dollars through accused Mohit Garg to Sudhir Gupta in Hungary qua which part payment was made and thereafter they insisted for second consignment of ladies garments, on that he again sent consignment worth 11,800 dollars. It is stated that these consignments were sent in 2000- 2001. It is stated that when he insisted for payment accused Sudhir Gupta sent him a fax of Budapest Bank showing that payment was made to him FIR No. 210/01, PS Chandni Chowk State Vs. Mohit Garg & Anr. Page 8/21 of 1,300 dollars. When he confirmed the same from his bank, it is found that the said fax was fake, than he made complaints to Hungary High Commission and Delhi passport Office. On that accused Sudhir Gupta sent a payment of 1,500 dollars to him. However, in the meantime, accused Mohit Garg withdraw the money which was received by way of Duty Draw Back. On that he made a complaint to DCP (Crime). The said complaint is Ex. PW-5/A bearing his signatures at Point-A. It is stated that he has not received rest of the amount till date. It is stated that he handed over some documents including fraud fax and documents regarding payment of 1,500 dollars to the police. It is stated that seizure memo, Ex. PW-5/B bears his signatures at Point-A. It is stated that the seized documents includes bills. On the next day of evidence, it is stated by him that he has brought original documents i.e. original copies of consignments of 25 packages of readymade garments of amount US dollars 11,875 which were sent to M/s Fast Fashion BT. Photocopy of the same is Ex. PW-5/B. Copy of the Budapest Bank by which payment of 1,500 dollars was received from Fast Fashion BT is marked as B-1 to B-5. It is stated by him that since he received photocopies from accused Sudhir Gupta, hence he cannot produce the originals. He marked photocopies of various complaints made to DCP (Crime), Director CBI, Hon'ble Minister of Home Affairs as B-6 to B-9. The photocopy of complaint which was filed by him at DCP, Cheating Cell, Qutub Institution Area is marked as B-10. Copy of complaint made to Trade Commissioner is exhibited as Ex. PW- 5/11. The reply received by him from Hungarian Trade Commission is exhibited as Ex. PW-5/12. The reply from Office of Chief Minister is exhibited as Ex. PW-5/13. The letter from Ministry of External Affairs is exhibited as Ex. PW-5/14. He filed on record photocopies of Manohar Kahaniya which were in five pages. The same is exhibited as Ex. PW- 5/15. In his cross-examination, it is stated by him that he has no controversy or dispute with accused Naresh Kumar Goel. It is stated by him that he had filed no case against accused Naresh Kumar Goel. It is stated by him that he filed a civil case against Fast Fashion BT, Budapest, Hungary. It is stated that in the said case the defendants were Sudhir FIR No. 210/01, PS Chandni Chowk State Vs. Mohit Garg & Anr. Page 9/21 Gupta and Sushma Gupta being partners of that firm. It is stated that he had sent two consignments to M/s Fast Fashion BT. He exhibited certified copy of the civil suit as Ex. DA/5A. He admitted about filing an affidavit with civil suit Ex. DA/5A. It is admitted by him that in para no.03 of the plaint he had stated that the transaction had taken place between himself on the one side and Sudhir Gupta and his wife Sushma Gupta on the other side. It is stated that in the plaint he had not stated anywhere anything about Mohit Garg and Naresh Kumar Goel. It is stated that the civil case was dismissed for non-appearance of his Advocate in the Court. It is admitted by him that he had not filed any appeal or revision against dismissal of the suit. It is denied by him that in his statement U/s 161 Cr.P.C. he had stated nothing about accused Mohit Garg. His statement U/s 161 Cr.P.C. is marked as Mark-PW-5/X-1. It is admitted by him that he had lodged a separate complaint to ACP, Lajpat Nagar Crime Branch prior to the present complaint. It is admitted by him that he had not mentioned the fact of the first complaint in the present complaint. It is stated that a preliminary inquiry was conducted on his first complaint by ACP, Lajpat Nagar. He has shown his ignorance to the fact, whether the finding of the said preliminary inquiry has been placed on record or not. It is denied by him that Crime Branch Lajpat Nagar after inquiry had found that he own more than Rs. 15,000/- to Sudhir Gupta. This witness could not tell how many documents were required to be prepared at the time of sending consignment out of India. It is voluntarily stated by him that accused Mohit Garg had arranged the documents. He could not tell whether this fact has been stated by him in his statement U/s 161 Cr.P.C. It is denied by him that he had received the total amount of the first consignment sent to the accused. It is stated by him that he had received a payment of 1500 dollars in respect of the second consignment. It is admitted by him that he had received a cheque of Rs. 2,50,000/- from accused Sudhir Gupta, though it is stated that the same was received on account of a loan which was given by him to accused earlier in cash. It is stated that the said amount had no concern with the consignments. It is admitted by him that he had not mentioned this fact either in his complaint FIR No. 210/01, PS Chandni Chowk State Vs. Mohit Garg & Anr. Page 10/21 or in his statement given to the police. This witness had identified two cheques bearing no. 345704 and 345703 of UCO Bank. It is stated by him that both the said cheques were signed by him. It is alleged by him that the said cheques were stolen by accused Mohit Garg from his cheque book which was entrusted by him to the accused. It is stated that he had not mentioned regarding theft of the said cheques in his complaint given to the police or other authority as he had no idea about missing of the said cheques. It is admitted by him that the factum of the theft of the said cheques was not mentioned by him in his civil suit. It is stated that he had not lodged any police report regarding theft of the said cheques.
11. PW-6 Sh. Dharamvir Chaudhary deposed that he was the Manager of Indo Arya, Central Transport. It is stated that IO of this case had shown him gate pass no. 126234, on that it is stated by him that the said gate pass was issued in the name of Export Tex Company and the goods were delivered to Pehnawa Boutique India and one Mr. Dev Anand had received the goods through tempo no. DL1L4451.
12. PW-7 Sh. Baldev Singh deposed that on 10.12.2001 he used to run the business of Export under the name and style of Chawla Traders. It is stated that he used to take cloth materials from accused Sudhir Gupta and accused Mohit Garg, owners of Pehnawa Boutique. It is stated that during February-March he purchased cloth materials vide bill no. 437 and grey cloth vide challan no. 1476 from accused Sudhir Gupta. He made the payment by way of a cheque. The abovesaid bill and challan were seized vide seizure memo Ex. PW-7/A. The said bill and challan were exhibited as Ex. PW-7/B and Ex. PW-7/C.
13. PW-8 Sh. Vinod Kumar Aggarwal deposed that he used to work in J.D. Textile. It is stated that he know firm M/s Pehnawa Boutique. It is stated that they used to supply material to Pehnawa Boutique and FIR No. 210/01, PS Chandni Chowk State Vs. Mohit Garg & Anr. Page 11/21 also used to receive material from Pehnawa Boutique. It is stated that he knew Sh. Dev Anand and accused Mohit Garg as they used to come to their shop. It is stated that Sh. Dev Anand and accused Mohit Garg used to collect cash amount from their shop. It is admitted by him that Sh. Dev Anand and accused Mohit Garg used to supply material to them on behalf of M/s Pehnawa Boutique. In his cross-examination, it is stated by him that he does not know any person by the name Sushil Wadhera. He could not tell what transactions had taken place between Sushil Wadhera and the accused persons.
14. PW-9 Sh. Shailesh Kumar Gupta, Senior Manager, Oriental Bank of Commerce exhibited accounts details of Pehnawa Boutique bearing account no. 904 (new account no. 01441010000860) as Ex. PW-9/A.
15. PW-10 Sh. Pradeep Kukreti, Assistant Manager, Oriental Bank of Commerce brought account opening form of Pehnawa Boutique bearing account no. 30530. Same is exhibited as Ex. PW-10/A (Colly).
16. PW-11 Sh. Nirmal Pant, Chief Manager, Punjab National Bank brought report regarding cheques bearing no. 181140, 181141 and 181142 and stated that the said record has been destroyed. A report in this regard is Ex. PW-11/A.
17. PW-12 IO Inspector Ashok Sharma deposed that on 06.10.2001 he was posted as SI in CBT Section of Crime Branch. On that day he endorsed the joint complaint of Sh. Puran Chand Gupta and Ms. Pushp Lata Gupta and sent the rukka through Ct. Bhupender Singh for registration of FIR which is already Ex. PW-2/B bearing his signatures at Point-X. It is stated that in the evening he received the rukka and FIR, FIR No. 210/01, PS Chandni Chowk State Vs. Mohit Garg & Anr. Page 12/21 thereafter he initiated investigation in the matter. It is stated that on 08.10.2001 complainant Sh. Puran Chand Gupta produced the invoices/ bills of Mayur Textile. It is stated that all the invoices were taken into police possession and given serial number from A-1 to A-30 alongwith three more photocopies of the bills of Supreme and Indo Arya Transports which were already marked as P-4/G-1 to P-4/G-3 and Ex. PW-4/A-1 to Ex. PW-4/A-30. It is stated that he seized the same vide seizure memo which is already Ex. PW-4/D. It is stated that he also seized invoices/ bills of Export Tex which were produced by Ms. Pushp Lata Gupta and put serial number on them from B-1 to B-33. The same were seized vide memo already Ex. PW-5/C. It is stated that on 10.10.2001 Sh. Puran Chand Gupta also produced documents pertaining to his company Mayur Textile which were seized vide memo Ex. PW-4/E. Documents of Ms. Pushp Lata Gupta were seized vide memo Ex. PW-5/C. It is stated that during investigation one more complaint of Sh. Sushil Wadhera was received which is already Ex. PW-5/A. It is stated that on 06.10.2001 complainant Sh. Sushil Wadhera also produced some documents regarding transaction/ consignment. The same were seized vide memo Ex. PW-5/B. It is stated that during investigation bank details of account no. 904 has been obtained vide his requisition which is Ex. PW-12/A. The said documents have been placed on record which are already Ex. PW- 9/A. He also collected bank details of current account no. 30530. The same are already Ex. PW-10/A. It is stated that on 16.10.2001 two accused persons Sudhir Gupta and Naresh Goel were arrested. Their personal search were conducted vide memos Ex. PW-12/B, Ex. PW-12/C, Ex. PW-12/D and Ex. PW-12/E. He recorded their disclosure statements which are Ex. PW-12/F and Ex. PW-12/G. He got issued look out corner notice of accused Mohit Garg and thereafter, prepared the charge-sheet and submitted the same in the Court. It is stated that on 03.02.2002 accused Mohit Garg arrived at IGI Airport. Accused Mohit Garg was arrested from there vide memo Ex. PW-12/H. His personal search was conducted vide memo Ex. PW-12/I. His disclosure statement was recorded which is Ex. PW-12/J. His passport and all other travelling FIR No. 210/01, PS Chandni Chowk State Vs. Mohit Garg & Anr. Page 13/21 documents were seized vide memo Ex. PW-12/K. Thereafter, supplementary charge-sheet was filed by him in the Court. In his cross- examination, it is stated by him that he does not know whether Vadhera Imports Exports was a proprietor firm or a partnership firm. It is stated that he did not inquire about the same. It is stated by him that Sushil Wadhera did not inform him anything about loan transaction of Rs. 2.5 lacs between Sudhir Gupta and Sushil Wadhera. It is stated by him that Sh. Sushil Wadhera did not inform about cheating by accused Mohit Garg or about arranging and preparing of any document by accused Mohit Garg in his statement U/s 161 Cr.P.C. It is stated by him that he did not do any investigation from officials of Budapest Bank qua alleged fax sent by accused Sudhir Gupta. It is stated by him that document Mark X1 is statement U/s 161 Cr.P.C. of Sh. Sushil Wadhera.
18. No other witness was left to be examined, hence, PE was closed.
THE DEFENCE :
19. Statement of accused Mohit Garg was recorded U/s 313 Cr.P.C, wherein he pleaded his innocence and stated that Sh. Puran Chand Gupta and his wife have compounded the matter. Accused Sudhir Gupta was the proprietor of Pehnawa Boutique. He had nothing to do with the same. He has been falsely implicated just being a relative of accused Sudhir Gupta to mount pressure on him.
20. Statement of accused Naresh Goel was also recorded U/s 313 Cr.P.C, wherein he pleaded his innocence and stated that this is a false case filed under some misunderstanding. Infact, complainant Sh. Puran Chand Gupta as well as his wife Smt. Pushp Lata Gupta had compounded the case with him and made statements in the Court. He has been falsely implicated in the present case.
FIR No. 210/01, PS Chandni Chowk State Vs. Mohit Garg & Anr. Page 14/2121. Both the accused persons namely Mohit Garg and Naresh Goel opted not to lead defence evidence.
ARGUMENTS:
22. Ld. APP for State has argued that on a combined reading of testimonies of prosecution witnesses as well as complainants namely Sh. Puran Chand Gupta and Sh. Sushil Wadhera, offences of criminal conspiracy and cheating committed by accused persons Mohit Garg and Naresh Goel in connivance with accused Sudhir Gupta (since deceased) are proved beyond doubt.
23. On the other hand, Ld. Counsel for accused Mohit Garg has argued that no offence has been made out against accused Mohit Garg. He has been falsely implicated being relative of accused Sudhir Gupta (since deceased) just to pressurize accused Sudhir Gupta to make payment to the complainants. It is stated that the transactions between the parties were civil in nature, however just to pressurize the accused persons criminal case was registered. Hence, accused Mohit Garg is entitled to be acquitted. Ld. Counsel for accused reliance placed upon judgments delivered in AIR 1954 Kutch 33 (para 7); AIR 1971 Pat. 95 (para 8); 1987 Crl. L.J. 140 Para (16) (Raj.); AIR 2000 SC 754 (para 13.14); AIR 1931 Cal. 646 (P 647 C.1); AIR 1962 MAD 443 (para 2); 1963 KLT 548 (para 3); 1991 (1) DMC 284 (para 2) (P&H); 1987 (2) Recent Criminal Reports 263 (para 4 & 5) (P&H); 1988 (3) Crimes 600 (Kerala) (para 6); 1991 Crl. C.J. 1603 (Orissa) (para 9); 1995 Crl. L.J. 2011 (Cal) (para 6); 1998 Crl. L.J. 3189 (Mad) (para 7) and 2001 Crl. L.J. (Karnataka) 4301 (para 6).
24. It is argued by accused Naresh Goel that allegations of Sh. Sushil Wadhera are not against him. It is stated by him that he was only a commission agent and he had not committed any fraud with complainant FIR No. 210/01, PS Chandni Chowk State Vs. Mohit Garg & Anr. Page 15/21 Sh. Puran Chand Gupta or his wife Smt. Pushp Lata.
FINDINGS:
25. Arguments adduced by Ld. APP for the State and Ld. Defence Counsel for the accused Mohit Garg and accused Naresh Goel have been heard. Evidences and documents on record perused carefully.
26. In the present case, charges were framed against the accused persons qua entering into a criminal conspiracy and for actually cheating complainant Sh. Puran Chand Gupta, proprietor of M/s Mayur Textile and Smt. Pushp Lata Gupta, proprietor of M/s Export Tex. Further, charges were also framed against accused Sudhir Gupta (since deceased) and Mohit Garg qua criminal conspiracy to cheat and for actually cheating Sh. Sushil Wadhera.
27. In order to bring home guilt of the accused Mohit Garg and accused Naresh Goel, the prosecution was required to prove following ingredients :-
(a) The accused persons hatched a criminal conspiracy to receive consignments from complainants and not paid amount against the consignments to them.
(b) The accused persons in furtherance of their criminal conspiracy received consignments from complainants and not paid amount against the consignments to them.
(c) The accused persons since inception had no intention to pay the amount against consignments sent to them by complainants, hence thereby they committed fraud with the complainants.
(d) The accused persons cheated and thereby dishonestly induced the complainants for sending the consignments to them.FIR No. 210/01, PS Chandni Chowk State Vs. Mohit Garg & Anr. Page 16/21
28. It is to be noted that merely because a person failed to complete the contract entered into by him it cannot be presumed that his intention was fraudulent since inception. To hold a person guilty of cheating, it is necessary to show that he had fraudulent and dishonest intention at the time of making the promise. From his mere failure to keep up the promise subsequently, a culpable intention right at the beginning, that is, when he made the promise cannot be presumed (reliance being placed on the judgment of Hon'ble Delhi High Court titled as "Subhkaran Laharuka & Anr. Vs. State & Anr" DOD 09.07.2010).
Offence against complainant Sh. Puran Chand Gupta and Smt. Pushp Lata
29. As per PW-4 Sh. Puran Chand Gupta goods worth Rs.
39,00,000/- were supplied by him to Pehnawa Boutique and goods worth Rs. 49,00,000/- were supplied by his wife's firm and only a sum of Rs. 13,00,000/- towards his firm and Rs. 21,00,000/- towards his wife's firm were outstanding towards the accused persons. From these transactions itself, it appears that almost 2/3rd of the amount of transactions between complainants and the accused persons has been paid by the accused persons which clearly suggests that intention of the accused persons was not to defraud or cheat the complainants since beginning as they were duly conducting the business and making payment. The above-said admitted payments clearly suggests that there were due civil transactions between the parties, further theses payments suggest that there was no intention to cheat since beginning. Furthermore, accused Sudhir Gupta had given cheques to the complainant, though the same were dishonoured due to which case U/s 138 N.I. Act was filed by the complainants. It is to be noted that arbitration proceedings have also been conducted between the parties due to failure of Sudhir Gupta to pay the remaining payment. From these facts it is quite clear that there were genuine business transactions between the parties, nothing has been proved to show that there was malafide or intent to cheat since beginning. Further, accused FIR No. 210/01, PS Chandni Chowk State Vs. Mohit Garg & Anr. Page 17/21 Mohit Garg was not a partner or Director in Pehnawa Boutique to whom goods were supplied by complainant Puran Chand. Thus, the element of mensrea at the time of making promise is totally missing in the present case. It is for the prosecution to show that the alleged person had dishonest intention since beginning. The material on record does not show any such intention as Sh. Puran Chand Gupta himself admitted in his examination-in-chief that the accused person had paid a sum of Rs. 26,00,000/- towards his firm and Rs. 28,00,000/- towards firm of his wife. Since, no cheating has been proved to be committed against the complainant, than there cannot be any criminal conspiracy to commit any such perceived cheating. Thus, neither offence U/s 120-B IPC, nor offence U/s 420 IPC has been proved beyond reasonable doubt against accused persons namely Naresh Goel and Mohit Garg qua complaint of Sh. Puran Chand. Infact during the trial Sh. Puran Chand Gupta as well as his wife Smt. Pushp Lata compounded offence U/s 420 IPC against all the accused persons, however the matter was not settled as offence U/s 120-B IPC is not compoundable. Be that as it may, on the basis of above stated discussion it can be safely held that no offences U/s 420 IPC or 120-B IPC was committed by accused Mohit Garg and Naresh Goel qua complainant Sh. Puran Chand Gupta. It is to be noted that evidence could not be completed qua Smt. Pushp Lata due to her death, hence accused persons also deserve acquittal qua any such alleged conspiracy or cheating with Smt. Pushp Lata.
Offence against complainant Sh. Sushil Wadhera
30. Complainant Sh. Sushil Wadhera has simply stated that accused persons namely Mohit Garg and Sudhir Gupta (now deceased) had apprised him about their business they were having in Hungary and assured him that he would earn good profit by supplying goods to them. Accordingly, Sh. Sushil Wadhera supplied goods in two consignments to M/s Fast Fashion BT, Hungary. It is alleged by him that total amount of the two consignments was 17,700 dollars (5,900 dollars + 11,800 dollars), however he received only a sum of 1500 dollars from accused Sudhir FIR No. 210/01, PS Chandni Chowk State Vs. Mohit Garg & Anr. Page 18/21 Gupta. However, testimony of this witness cannot be accepted as a gospel truth due to the following facts :-
(i) Merely because a person failed to complete the contract entered into by him, it cannot be presumed that his intention was fraudulent since inception which is most essential ingredient required to prove offence of cheating.
(ii) There are a number of contradictions in the testimony of Sh. Sushil Wadhera.
a) In his cross-examination, it is admitted by him that he had filed a civil suit against M/s Fast Fashion BT and its partners Sh. Sudhir Gupta and Smt. Sushma Gupta. It is admitted by him that no allegation was made against accused Mohit Garg in the said civil suit.
b) It is also apparent from the reading of the said civil plaint that qua first consignment complainant Sh. Sushil Wadhera had received entire payment as mentioned in para no.3 of the complaint.
However, in the present criminal complaint it is alleged by him that he had not received full payment qua first consignment.
c) During cross-examination, it is admitted by Sh. Sushil Wadhera that he had received a sum of Rs. 2,50,000/- from accused Sudhir Gupta. This fact was not stated by him earlier in his complaint. Though, it is claimed by him that this amount of Rs. 2,50,000/- was against a loan transaction between him and accused Sudhir Gupta, however the factum of that loan transaction was also concealed by him from the Court. Even IO of the present case has stated that Sh. Sushil Wadhera did not inform him anything about loan transaction of Rs. 2.5 lacs between him and Sudhir Gupta.
d) The IO further stated that Sh. Sushil Wadhera did not inform him about cheating committed by accused Mohit Garg or about arranging and preparing of any document by accused Mohit Garg in his statement U/s 161 Cr.P.C.
e) Ld. Counsel for accused Mohit Garg put two signed cheques of this FIR No. 210/01, PS Chandni Chowk State Vs. Mohit Garg & Anr. Page 19/21 complainant to him. On seeing the said cheques, it is claimed by him that the said cheques were stolen by accused Mohit Garg. Though, factum of the said theft was never ever stated by him prior to that cross-examination either in his criminal complaint or civil suit. Appearently Sushil Wadhera is not disclosing his entire transactions with the accused persons.
f) Sh. Sushil Wadhera was running a business in the name and style M/s. Wadhera Import and Export, which clearly suggest that he was in the business of import & export, despite that he stated on oath that he had no knowledge of import export business.
g) Since, Sushil Wadhera was already running the business of import and export, hence it was highly unlikely that accused Mohit Garg used to prepare documents for export. Infact he did not state about preparation of the said documents in his statement under section 161 of Cr.P.C, further no such document alleged prepared by accused Mohit Garg has not been proved on record.
h) Accused Mohit Garg was not the proprietor/ partner / director of M/s.
Fast Fashion BT, and this fact was in the knowledge of Sh. Sushil Wadhera from the very first transaction.
31. From above-stated discussions, it appears that complainant Sh. Sushil Wadhera is hiding from court his complete transactions with the accused persons. He had not stated about availability of his signed cheques with accused Mohit Garg. He had not stated about receiving a sum of Rs. 2,50,000/- from accused Sudhir Gupta. He did not state about giving any loan to accused Sudhir Gupta earlier. All these facts clearly suggests that complainant Sh. Sushil Wadhera had business transactions with accused Sudhir Gupta and his firm M/s Fast Fashion BT. However, he could not receive entire payment qua goods supplied by him, but there is no an iota of evidence on record which would suggests that from very inception the intention of accused Sudhir Gupta or of accused Mohit Garg was to deceive the present complainant. Infact, apart from oral testimony of complainant Sh. Sushil Wadhera there is no evidence to suggest FIR No. 210/01, PS Chandni Chowk State Vs. Mohit Garg & Anr. Page 20/21 relation of accused Mohit Garg with the transactions between complainant Sh. Sushil Wadhera and accused Sudhir Gupta. Infact, in his civil suit Sh. Sushil Wadhera has not mentioned about role of accused Mohit Garg. Further, in his statement U/s 161 Cr.P.C. Sh. Sushil Wadhera had not stated about any inducement being given by accused Mohit Garg. As per statement U/s 161 Cr.P.C. of complainant Sh. Sushil Wadhera he only met Sudhir Gupta and on the representation of Sudhir Gupta only he agreed to supply goods to Sudhir Gupta's firm. Further, he has not leveled any allegation against accused Naresh Goel. Thus, it can be safely held that no offence of criminal conspiracy to cheat or actually cheating complainant Sh. Sushil Wadhera has been proved beyond reasonable doubt against accused Mohit Garg, hence he deserves acquittal qua alleged offences being committed with Sh. Sushil Wadhera.
32. In view of the above-stated discussions, it is hereby held that the prosecution has failed to prove its case against the accused persons beyond reasonable doubts. Therefore, the accused persons namely Mohit Garg and Naresh Goel are hereby acquitted from the charges levelled against them in the present case.
33. Requirements of Section 437-A Cr.P.C. have been complied with. File be consigned to Record Room after due compliance.
Digitally signed by GAJENDER GAJENDER SINGH NAGAR
SINGH NAGAR Date: 2020.11.10 09:40:30
-05'00'
ANNOUNCED IN THE OPEN (GAJENDER SINGH NAGAR)
COURT ON 07.11.2020 ACMM-02 (CENTRAL)DELHI
Containing 21 pages all signed by the presiding officer. GAJENDER
Digitally signed by
GAJENDER SINGH
NAGAR
SINGH NAGAR Date: 2020.11.10
09:41:26 -05'00'
(GAJENDER SINGH NAGAR)
ACMM-02 (CENTRAL)DELHI
FIR No. 210/01, PS Chandni Chowk State Vs. Mohit Garg & Anr. Page 21/21