Delhi District Court
State vs Sameer Bhai Kishore Bhai Desai on 11 April, 2026
IN THE COURT OF MS. MANSI MALIK
ADDITIONAL CHIEF METROPOLITAN MAGISTRATE-02,
(CENTRAL DISTRICT), TIS HAZARI COURTS, DELHI.
CNR No. DLCT020002782005
FIR No. 158/2004
PS -Partap Nagar
State Vs. Sameer Bhai Kishore Bhai Desai
JUDGMENT
(a) Case No. 292675/2016
(b) Date of offence 14.08.2004
(c) Complainant HC Pramod Kumar
(d) Accused (1) Sameer Bhai Kishore Bhai Desai, S/o
Sh. Kishore Bhai Desai, R/o 333/1, Ram
Nagar, Kabilpur, Dist. Nav Sari, Gujrat.
(2) Bimal Bhai Bharat Bhai Patel,
S/o Sh. Bharat Bhai Patel, R/o H.No.8386,
1st Floor, Shanta Smriti Manak Lal Road,
Navsari, Gujrat.
(3) Sukhdev Singh,
S/o Sh. Gurnam Singh, R/o Village
Bainswan, Tanda, District Hoshiarpur,
Punjab.
(e) Offence U/s 467/468 r/w 120B IPC
(f) Plea of accused Pleaded Not Guilty
(g) Final Order Acquittal
(h) Date of Institution 07.01.2005
(I) Date when judgment 09.03.2026
was reserved
FIR No. 158/2004 State Vs Sameer Bhai Kishore Bhai Desai PS Pratap Nagar Pg No. 1 of 28 Digitally signed by MANSI MANSI MALIK MALIK Date:
2026.04.11 15:32:36 +0530
(j) Date of judgment 11.04.2026
1. Vide this judgment, the court shall dispose of the present case u/s 467/468 IPC r/w 120B IPC which has been in the judicial system for more than 20 years.
2. The prosecution version of the case is that at unknown time and place but before 14.08.2004 accused Sameer Bhai Kishore Bhai Desai and Bimal Bhai Bharat Bhai Patel (since PO) alongwith one another accused who is proclaimed offender entered into an agreement to commit an offence or do an illegal act (forgery of fake Canadian visa) which amounts to criminal conspiracy and thereby committed an offence punishable u/s 120B IPC. Further, that on 14.08.2004 at about 8.10 PM near Public Urinal, Railway Station, Subzi Mandi, Delhi, accused Sameer Bhai Kishore Bhai Desai was giving a passport bearing no. D3191058 to co-accused Sukhdev Singh s/o Gurnaam Singh (who is proclaimed offender) on which a forged visa of Canada has been affixed intending that the same shall be used for the purpose of committing the offence of cheating and thereby the accused persons committed an offence u/s 467/468 r/w 120 B IPC. Further, accused Bimal Bhai Bharat Bhai Patel (since PO) at the aforesaid time and place during his personal search was found in possession of one passport bearing no. A046688219 which was having a fake Canadian Visa affixed on it and thereby accused Bimal Bhai Bharat Bhai Patel (since PO) committed an offence u/s 467/468 IPC.
3. On the basis of a complaint, FIR was registered. After carrying out investigation, charge sheet was filed and the accused persons were FIR No. 158/2004 State Vs Sameer Bhai Kishore Bhai Desai PS Pratap Nagar Pg No. 2 of 28 Digitally signed by MANSI MANSI MALIK MALIK Date:
2026.04.11 15:33:02 +0530 summoned. After compliance of section 207 Cr.P.C, charges u/s 467/468 read with 120B IPC were framed against accused persons on 29.08.2011. Accused Bimal Bhai Patel and accused Sukhdev Singh have already been declared Proclaimed Offenders by the Court vide order dated 18.05.2017 and 06.11.2007 respectively. Therefore, the evidence on record only has to be appreciated qua accused Sameer Bhai Kishore Bhai Desai for the charges framed against him.
APPRECIATION OF EVIDENCE
4. In order to prove its case, the prosecution has examined nine witnesses in all.
5. PW-1/Ct. Surender Kumar deposed that on 18.09.2004, he was posted as HC at AATS, North District and the present investigation was marked to him regarding verification of passport of Hiran Kumar Mahender Bhai Patel from Ahmadabad and on 19.09.2004, he alongwith HC Jagbir Singh reached at Regional Passport Office, Ahmadabad, Gujarat in order to verify passport bearing no. A-6799150 and report (dated 20.09.2004) is Ex.PW1/A. PW-1 further deposed that he also verified the addresses of accused Sameer Bhai and Vimal Bhai and also verified the address of Hiran Kumar Mahender Bhai Patel at Vahera, District Anand, Gujarat but whereabouts of Hiran Kumar could not be traced out. PW-1 was not cross-examined by the Ld. Counsel for the accused despite opportunity given.
6. PW-2/ASI Ashok Kumar deposed that on 14.08.2004, he was posted as Head Constable at AATS, North District and that ACP FIR No. 158/2004 State Vs Sameer Bhai Kishore Bhai Desai PS Pratap Nagar Pg No. 3 of 28 MANSI MALIK Digitally signed by MANSI MALIK Date: 2026.04.11 15:33:12 +0530 Harender Singh received secret information regarding some persons being involved in preparation of forged visa and passport and ACP gave directions regarding the case. PW-2 deposed that he alongwith secret informer left for Subzi Mandi Railway and HC Pramod and Ct. Anil also came at the spot at about 07:05 pm and that he informed them regarding the information. PW-2 further deposed that HC Pramod constituted a raiding party consisting of himself, HC Pramod and Ct. Anil and that HC Pramod requested 4 to 5 public persons to join the investigation but none of them joined the investigation and left the spot without disclosing their names and addresses. PW-2 deposed that at about 07:30 pm, one person came near public toilet and after some time two other persons joined him and one person took out the passport from right side pocket of his trouser and handed over to another person. PW-2 further deposed that secret informer pointed out towards one person namely Bimal Bhai and that they apprehended abovesaid three persons and conducted formal search of accused persons and that one passport was recovered from Bimal Bhai Patel, same was seized vide seizure memo Ex.PW2/A and another passport which was being handed over by accused Bimal Bhai to accused Sukhdev was seized vide seizure memo, Ex.PW2/B and the same was found to be carrying forged visa of Canada. PW-2 further deposed that accused persons namely Bimal Bhai Patel, Sameer Kishore Bhai Desai and Sukhdev were arrested vide arrest memo Ex.PW2/C, Ex.PW2/D and Ex.PW2/E respectively and the personal search of accused persons was conducted vide personal search memo Ex.PW2/F, Ex.PW2/G and Ex.PW2/H and the disclosure statement of accused persons Bimal Bhai Patel, Sameer Kishore Bhai Desai and Sukhdev was recorded by IO vide disclosure memo, Ex.PW2/I, Ex.PW2/J and Ex.PW2/K respectively. The abovesaid two passports were shown to the witness and the same are FIR No. 158/2004 State Vs Sameer Bhai Kishore Bhai Desai PS Pratap Nagar Pg No. 4 of 28 MANSI MALIK Digitally signed by MANSI MALIK Date: 2026.04.11 15:33:18 +0530 Ex.P1(colly). PW-2 further deposed that accused Sameer Bhai Kishor was the person who handed over the passport in question having forged Canadian visa to accused Sukhdev and that HC Pramod prepared the rukka and handed over the same to Ct. Anil who got the FIR registered in the PS. PW-2 further deposed that SI Gajender came at the spot and thereafter Ct. Anil came at the spot alongwith copy of FIR and original rukka and handed over the same to IO/SI Gajender, who put the FIR number and other particulars of case on the seizure memo. PW-2 further deposed that IO prepared the site plan at the instance of HC Pramod and the case property was deposited in Malkhana and that IO recorded his statement. Witness correctly identified accused Sameer Kishore Bhai Desai in the court. PW-2 was duly cross-examined by the Ld. counsel for the accused.
7. PW-3/SI Jarnail Singh Gill deposed that on 26.10.2004, he was posted at Operation Cell, North as HC and on that day on direction of IO, he took a letter addressed to Superintendent, Passport Office, Jalandhar regarding the re-verification of the photographs of passport No. B-3191058. PW-3 further deposed that he got the same verified from the concerned Passport Office and handed over the verification report and copy of personal particular form to the IO. PW-3 further deposed that IO recorded his statement. PW-3 was duly cross-examined by the Ld. counsel for the accused.
8. PW-4/Sh. Tek Chand deposed that he had brought the summoned report i.e. record of passport bearing No. B-319058 in the name of Sukhdev Singh S/o Sh. Gurnam Singh already Ex.PW4/A (colly) and that the certificate u/s 65-B of Indian Evidence Act qua the record is Digitally signed by MANSI FIR No. 158/2004 State Vs Sameer Bhai Kishore Bhai Desai PS Pratap Nagar Pg No. 5 of 28MANSI MALIK MALIK Date:
2026.04.11 15:33:26 +0530 Ex.PW4/B. PW-4 was not cross-examined by the Ld. Counsel for the accused despite opportunity given.
9. PW-5/SI Vidyadhar deposed that on 14.08.2004, he was posted as Duty Officer at PS Gulabi Bagh and at about 9.50 PM, a rukka was received by him through Ct. Anil Kumar sent by HC Pramod Kumar for getting the case registered. PW-5 deposed that on the basis of rukka he registered the case vide FIR No. 158/04 which is a carbon copy and one original copy of FIR placed in the FIR register. PW-5 produced the original FIR Register containing the original FIR and that the carbon copy of FIR which placed in the judicial file is true and correct copy of the original and the same is already Ex. PW5/A (OSR). PW-5 further deposed that the carbon copy of FIR alongwith original rukka was handed over to Ct. Anil Kumar to hand over the same to SI Gajender for further investigation and that he also made endorsement on original rukka already Ex. PW5/B and that the certificate u/s 65-B of Indian Evidence Act qua the FIR is already Ex.PW5/C. PW-5 was duly cross-examined by the Ld. counsel for the accused.
10. PW-6/HC Pramod Kumar deposed that on 14.08.2004, he was posted as HC with Operation Cell, North District, Delhi and on that day, ACP, Operation Cell gave him instructions that some persons are taking money on the strength of forged Visa and they will be coming to Subzi Mandi Railway Station and at the spot he will be meeting with HC Ashok alongwith secret informer. PW-6 deposed that he alongwith Ct. Anil went to spot i.e. Subzi Mandi Railway Station where HC Ashok and secret informer met him and that the secret informer gave the information that FIR No. 158/2004 State Vs Sameer Bhai Kishore Bhai Desai PS Pratap Nagar Pg No. 6 of 28 Digitally signed by MANSI MANSI MALIK MALIK Date:
2026.04.11 15:33:35 +0530 the persons who are forging the Visa and taking money are bound to come on the railway station. PW-6 further deposed that he constituted a raiding party consisting of himself, HC Ashok and Ct. Anil alongwith secret informer. PW-6 further deposed that he requested 4-5 public persons to join the raiding team and investigation but none agreed and left the spot without disclosing their names and addresses and due to paucity of time, no notice could be served to those persons. PW-6 further deposed that the raiding team took possession near a wall by hiding under the wall and that at about 8.00 PM, one person came wearing glasses with medium structure having a bag near the bathroom and started waiting for someone and after about 10 minutes, two persons came from the side of Pratap Nagar Metro Station, one of whom was holding a bag and the said two persons went to the first persons and started talking. PW-6 further deposed that the secret informer pointed out that the first person who arrived at the spot is a person who will collect the fake passport and Visa and the two persons are those who had come to hand over the same. PW-6 further deposed that one of the persons from two persons took out one passport from his pocket and handed over the same to waiting person then the raiding team apprehended all the accused persons and their names were revealed as Sukhdev (since PO), who came to spot first, accused Sameer and accused Bimal Bahi (since PO). PW-6 deposed that he seized the said passport which was in the name of Sukhdev Singh vide seizure memo already Ex.PW2/B and also seized another passport recovered from accused Bimal vide seizure memo already Ex.PW2/A and on both the said passport, fake Visa of Canada was affixed. PW-6 further deposed that he prepared the rukka Ex.PW6/A and handed over the same to Ct. Anil for registration of FIR at PS Gulabi Bagh. PW-6 further deposed that after sometime, Ct. Anil alongwith SI Gajender returned FIR No. 158/2004 State Vs Sameer Bhai Kishore Bhai Desai PS Pratap Nagar Pg No. 7 of 28 Digitally signed by MANSI MANSI MALIK MALIK Date:
2026.04.11 15:33:42 +0530 with original rukka and copy of FIR and Ct. Anil handed over the same to SI Gajender for further investigation. PW-6 deposed that he handed over accused persons and recovered passports to SI Gajender, who prepared site plan at his instance and that IO recorded his statement. The case property i.e. two passports are already Ex.P1 (colly). PW-6 was duly cross-examined by Ld. counsel for accused.
11. PW-7/Sh. Kunal deposed that he had brought the certified copy of the record for the passport No. A6799150 issued on 18.12.1998 by RPO, Ahmadabad and the said passport was issued in the name of Hiren Kumar Mahendrabhai Patel. Copy of the same is Ex.PW7/A and that he had also produced the certified copy of Circular No. VIII/885/06/06 dated 10.03.2008 and the copy of the same is Ex.
PW-7/B. PW-7 was not cross-examined by the Ld. counsel for the accused despite opportunity.
12. PW-8/Sh. Rajpal deposed that he was summoned to produce the record of Visa No. A-034335452 and A-046688219, however, the record of said visas is not available in the office. PW-8 was not cross- examined by the Ld. counsel for the accused despite opportunity given.
13. PW-9/Retd. ACP Gajender Kumar deposed that on 14.08.2004, he was posted as SI with Operation Cell, North Dist and on that day, the present case was marked to him for further investigation. PW-9 deposed that he reached the spot i.e. Railway Station, Subzi Mandi where he met with HC Pramod, HC Ashok Kumar along with three FIR No. 158/2004 State Vs Sameer Bhai Kishore Bhai Desai PS Pratap Nagar Pg No. 8 of 28 Digitally signed by MANSI MANSI MALIK MALIK Date:
2026.04.11 15:33:52 +0530 accused persons, namely, Sameer Bhai Kishore Bhai Desai, Bimal Bhai Bharat Bhai Patel (already declared PO) and Sukhdev Singh (already declared PO). PW-9 further deposed that Ct. Anil came to spot and handed over him rukka and copy of FIR and that he prepared site plan Ex.PW9/A, interrogated all the accused persons and arrested them vide arrest memos already Ex.PW2/C, Ex.PW2/D and Ex.PW2/E respectively. He further searched the accused persons vide Search Memos already Ex.PW2/F, Ex.PW2/G and Ex.PW2/H respectively and he also recorded disclosure Statements of accused persons Ex.PW2/K, Ex.PW2/J and Ex.PW2/I respectively. PW-9 further deposed that he tried to find co- accused persons but all in vain and that the accused persons were put behind bars and on the next date, accused persons were produced before the Hon'ble Court and were sent to JC. PW-9 further deposed that he got Visas verified from Canada Embassy and collected the report Ex.PW9/B wherein the Embassy that said Visas bearing No.A034335452 and A046688219 purportedly issued to Hirenkumar Mahender Bhati Patel and Sukhdev Singh respectively were found to be fraudulent and that the passports of Hirenkumar Mahender Bhati Patel was verified from Gujarat and of accused Sukhdev Singh from Jalandhar, Punjab and same were found to be genuine, the said passports are already Ex.P-1 (colly). PW-9 further deposed that he recorded statement of witnesses and after completing investigation, he filed the chargesheet before the Hon'ble Court. Accused Sameer Bhai was correctly identified by the witness in the court. PW-9 was duly cross-examined by Ld. counsel of accused.
14. The prosecution evidence was closed vide order dated 19.01.2024. Thereafter, statement of accused U/s 313 Cr. PC was recorded on 06.05.2024 wherein the accused has pleaded innocence and FIR No. 158/2004 State Vs Sameer Bhai Kishore Bhai Desai PS Pratap Nagar Pg No. 9 of 28 Digitally signed by MANSI MANSI MALIK MALIK Date:
2026.04.11 15:34:00 +0530 opted not to lead DE.
15. Final arguments were heard from Ld. APP for state as well as Ld. Counsel for the accused. Written Submissions were also filed on behalf of the accused. The entire record including the written submissions filed on behalf of the accused have been perused carefully.
REASONS FOR DECISION
16. Accused Sameer Bhai Kishore Bhai Desai is facing trial for offence punishable u/s 467/468 IPC r/w 120B IPC on the allegations that he gave a passport bearing no. D3191058 to one of the co-accused persons namely Sukhdev Singh on which a forged visa of Canada was affixed knowing that the same shall be used for the purpose of offence of cheating and is thus alleged to have committed offence u/s 467/468 r/w 120B IPC. The other co-accused persons namely Sukhdev Singh and Bimal Bhai have already been declared as proclaimed offenders by the Court and hence, the evidence on record only needs to be appreciated qua accused Sameer Bhai Kishore.
17. PW-2/ASI Ashok Kumar entered the witness box and gave detailed account of the incident in question. He deposed that on 14.08.2004, secret information was received regarding some persons being involved in preparation of forged visa and passport. Thereafter, PW-2 alongwith secret informer left for Sabzi Mandi Railway Station and HC Pramod and Ct. Anil also came to the spot at around 07:05 PM where a raiding team consisting of the said persons was constituted. At 07:30 FIR No. 158/2004 State Vs Sameer Bhai Kishore Bhai Desai PS Pratap Nagar Pg No. 10 of 28 Digitally signed by MANSI MANSI MALIK MALIK Date:
2026.04.11 15:34:08 +0530 PM, one person came near the public toilet and two other persons joined him. One of the said persons took out a passport from the right side pocket of his trousers and handed it over to another person. Thereafter, the said persons were apprehended and one passport was recovered from accused Bimal Bhai Patel vide seizure memo Ex. PW-2/A and the other passport which was being handed over to accused Sukhdev was seized vide seizure memo Ex. PW-2/B. It was specified by PW-2 that it was accused Sameer Bhai Kishore who handed over the passport in question having a forged Canadian Visa to accused Sukhdev. The witness also deposed that all the accused persons were arrested and were personally searched in his presence. The said witness correctly identified accused Sameer Kishore Bhai and also correctly identified the two passports which are Ex. P-1(colly). PW-6/HC Pramod Kumar also corroborated the testimony of PW-2. He deposed that at about 08:00 PM, at Sabzi Mandi Railway Station, one person came wearing glasses and started waiting for someone. After 10 minutes, two persons came from the said of Pratap Nagar Metro Station and one of the said persons took out one passport from his pocket and handed over the same to the person who was waiting there. Thereafter, the raiding team apprehended all the three accused persons and the two passports were seized vide seizure memos Ex. PW-2/A and Ex. PW-2/B. PW-6 has further deposed that the accused persons and the recovered passports were handed over to SI Gajender who is the second IO in the present matter.
18. Retd. ACP Gajender Kumar, who is the second IO in the instant case, has been examined as PW-9. He has deposed that on 14.08.2004, the present case was marked to him for further investigation FIR No. 158/2004 State Vs Sameer Bhai Kishore Bhai Desai PS Pratap Nagar Pg No. 11 of 28 MANSI MALIK Digitally signed by MANSI MALIK Date: 2026.04.11 15:34:17 +0530 and when he reached the spot i.e. Subzi Mandi Railway Station, he met with HC Pramod and HC Ashok Kumar alongwith the three accused persons. He prepared the site plan, arrested the accused persons, personally searched them and also recorded their disclosure statements.
He further deposed that he got the visas in question verified from the Canadian Embassy and the report qua the same is Ex. PW-9/B. He further deposed that as per the report, Visa bearing no. A034335452 and A046688219 allegedly issued to Hiren Kumar Mahender Bhai Patel and Sukhdev Singh respectively were fraudulent but the said passports on which the visa were affixed were found to be genuine on verification. PW-1/SI Surender Kumar has deposed qua the verification of passport of Hiren Kumar Mahender Bhai Patel bearing no. A-6799150 from Regional Passport Office, Ahmedabad, Gujarat and the report qua the same is Ex. PW-1/A. PW-7/Kunal, Junior Passport Assistant, Regional Passport Office, Ahmedabad, Gujarat, also produced the certified copy of record for passport number A-6799150 issued on 18.12.1998 by RTO, Ahmedabad, and as per the record, the passport was issued in the name of Hiren Kumar Mahender Bhai Patel and copy of the said record is Ex. PW-7/A. Similarly, PW-4/Sh.Tek Chand, Senior Passport Office, RTO, Jalandar, Punjab, produced the record of passport no. B-319058 in the name of Sh. Sukhdev Singh, S/o Gurnam Singh and the same is Ex. PW-4/A(colly).
19. From the testimonies as reproduced above, it is clear that the seized passports bearing no. B-319058 in the name of Sukhdev Singh and A-6799150 in the name of Hiren Kumar Mahender Bhai Patel were genuine. However, the Canadian Visas which were affixed on the said Digitally FIR No. 158/2004 State Vs Sameer Bhai Kishore Bhai Desai PS Pratap Nagar Pg No. 12 of 28 signed by MANSI MANSI MALIK MALIK Date:
2026.04.11 15:34:24 +0530 passports are alleged to be fake. However, the whereabouts of the said Hiren Kumar Mahender Bhai Patel could not be traced. The prosecution has contended that the report from the Canadian Embassy, which is Ex. PW-9/B clearly states that the Canadian Temporary Resident Visas bearing no. A034335452 and A046688219 purportedly issued to Hiren Kumar Mahender Bhai Patel and Sukhdev Singh respectively were fraudulent. The said report has been exhibited during the testimony of IO/Retd. ACP Gajender Kumar who has been examined as PW-9. However, it is contended by counsel for the accused that the Visa Report, which is Ex. PW-9/B has not been proved in accordance with law as no official from the Canadian High Commission who prepared the said report has been examined in evidence. It is therefore argued by counsel for the accused that the said visa report cannot be read in evidence.
20. A scrutiny of the judicial record shows that reply was filed by the Canadian High Commission duly forwarded by the Ministry of External Affairs, New Delhi that the High Commission of Canada, New Delhi has immunity from Court Jurisdiction by virtue of the privileges/immunities accorded to a foreign mission under the Diplomatic Relations (Vienna Convention) Act, 1972. Further, Article 31(2) of the Act provides that "a diplomatic agent is not obliged to give evidence as a witness." Due to the protection provided under the said convention, it is argued by the State that no official appeared on behalf of High Commission of Canada to depose as a witness in the present matter. Be that as it may, the Court is of the considered opinion that the visa report stands duly proved by relying upon Section 74 r/w 78(6) of the Indian Evidence Act. Section 74 of the Indian Evidence Act defines public FIR No. 158/2004 State Vs Sameer Bhai Kishore Bhai Desai PS Pratap Nagar Pg No. 13 of 28 Digitally signed by MANSI MANSI MALIK MALIK Date:
2026.04.11 15:34:33 +0530 documents. Section 74 of the Indian Evidence Act is reproduced below for convenience:
74. Public documents.
The following documents are public documents :-
(1)Documents forming the acts or records of the acts -
(i)of the sovereign authority;
(ii)of official bodies and tribunals; and
(iii)of public officers, legislative, judicial and executive, [of any part of India or of the Commonwealth] or of a foreign country; (2) Public records kept [in any State] of private documents.
Therefore, as per Section 74(1)(iii), all the documents forming the acts or record of any of the acts of any sovereign authority are public documents. In the instant case, there is no doubt that the Canadian High Commission is a sovereign authority as it has no separate identity from that of the Government of Canada. Further, the report on the verification of the visas in question is a document forming the record of the acts of the Canadian High Commission i.e. a sovereign authority thereby making it a public document falling within the definition of public documents as envisaged under Section 74 of the Indian Evidence Act. Further, Section 78(6) of the Indian Evidence Act states as to how public documents maybe proved. The said section is reproduced below for convenience.
78. Proof of other official documents.
The following public documents may be proved as follows :
(6) Public documents of any other class in a foreign country - by the original, or by a copy certified by the legal keeper thereof, with a certificate under seal of a Notary Public, or of [an Indian Consul] or diplomatic agent, that the copy is duly certified by the officer having the legal custody of the original, and upon proof of the character of the document according to the law of the foreign country.
FIR No. 158/2004 State Vs Sameer Bhai Kishore Bhai Desai PS Pratap Nagar Pg No. 14 of 28 Digitally signed by MANSI MANSI MALIK MALIK Date:
2026.04.11 15:34:41 +0530 Therefore, Section 78(6) of the Indian Evidence Act clearly states that public documents of a foreign country can be proved by way of the original document. In the case at hand, the original visa report issued by the Canadian High Commission is on record and hence it can be said to be proved in accordance with law. However, even if the visa report is considered to have been proved as per law, it still has to be seen whether the prosecution has been able to establish that the passports in question bearing the fake visas of Canada were recovered from the possession of the accused persons.
21. The recovery of the passport in question from accused Sameer Bhai Kishore Bhai Desai is sought to be proved by the recovery memo and testimony of the witnesses. But the manner of conducting inquiry, seizure and search etc. on the spot at the time of arrest of the accused and alleged recovery of the passport in this case, makes the prosecution version highly doubtful. As per the testimony of PW-2/ASI Ashok Kumar Kumar, accused Sameer Bhai Kishore Bhai Desai was arrested on 14.08.2004 at about 11:20 pm at Sabzi Mandi Railway Station at the instance of a secret informer and that the passport in question was recovered from him when he was handing it over to co-accused Sukhdev.
It is further stated in his testimony that HC Pramod requested 4-5 persons to join the investigation but none of them joined the investigation and left the spot without disclosing their names. PW-6/HC Pramod Kumar, who was the first IO in the instant case, also reiterated the same and deposed that he requested 4-5 persons to join the investigation but none of them joined the investigation and left the spot without disclosing their names FIR No. 158/2004 State Vs Sameer Bhai Kishore Bhai Desai PS Pratap Nagar Pg No. 15 of 28 Digitally signed by MANSI MANSI MALIK MALIK Date:
2026.04.11 15:34:48 +0530 and that due to paucity of time, no notice could be served to those persons. In his cross-examination, he further states that there were vendors at the spot and he did not ask them to join the investigation, however, he deposed that he did request other public persons to join the investigation. Further, PW-9/Retd. ACP Gajender Kumar to whom the investigation was marked after registration of FIR, also deposed that he requested 4-5 persons to join the investigation but none of them joined the investigation citing their valid reasons. He also deposed that no notice was given to the public persons. It is then quite clear that no public witness was joined in the investigation at any point of time and no notice was also served upon any of the public persons to join the investigation. The failure of the any of the IO's to issue notice to the public persons cannot be accepted by the court since, they were under an obligation to issue notice in writing to the public persons, who refused to join the police investigation particularly in the background when the accused persons had already been apprehended by the police and there was no apprehension that the accused persons might escape. Moreover, the IO has not even placed on record the names of the passerby who were asked to join the investigation and neither have any reasons been mentioned by the IO for refusal by the people who were approached to join the investigation. In the facts and circumstances of the case, this court finds that the police has not made any sincere effort to join independent public witnesses during investigation. In this regard reliance is being placed on the following judgments:-
In a case law reported as "Anoop V/s State", 1992 (2) C.C. Cases 314 (HC), Hon'ble High Court of Delhi has observed as under:
"18. It is repeatedly laid down by this Court that in such cases it FIR No. 158/2004 State Vs Sameer Bhai Kishore Bhai Desai PS Pratap Nagar Pg No. 16 of 28 Digitally signed by MANSI MANSI MALIK MALIK Date:
2026.04.11 15:35:18 +0530 should be shown by the police that sincere efforts have been made to join independent witnesses. In the present case, it is evident that no such sincere efforts have been made, particularly when we find that shops were open and one or two shop-keepers could have been persuaded to join the raiding party to witness the recovery being made from the appellant. In case any of the shopkeepers had declined to join the raiding party, the police could have later on taken legal action against such shopkeepers because they could not have escaped the rigours of law while declining to perform their legal duty to assist the police in investigation as a citizen, which is an offence under the IPC".
In a case law reported as "Roop Chand V/s The State of Haryana", 1999 (1) C.L.R 69, the Hon'ble Punjab & Haryana High Court held as under:-
"3. I have heard the learned counsel for the parties and gone through the evidence with their help. The recovery of illicit liquor was effected from the possession of the petitioner during noon time and it is in the evidence of the prosecution witnesses that some witnesses from the public were available and they were asked to join the investigation but they refused to do do so on the ground that their joining will result into enmity between them and the petitioner.
4. It is well settled principle of the law that the Investigation Agency should join independent witnesses at the time of recovery of contraband articles, if they are available and their failure to do so in such a situation casts a shadow of doubt on the prosecution case. In the present case also admittedly the independent witnesses were available at the time of recovery but they refused to associate FIR No. 158/2004 State Vs Sameer Bhai Kishore Bhai Desai PS Pratap Nagar Pg No. 17 of 28 Digitally signed by MANSI MANSI MALIK MALIK Date:
2026.04.11 15:35:26 +0530 themselves in the investigation. This explanation does not inspire confidence because the police officials who are the only witnesses examined in the case have not given the names and addresses of the persons contacted to join. It is a very common excuse that the witnesses from the public refused to join the investigation. A police officer conducting investigation of a crime is entitled to ask anybody to join the investigation and on refusal by a person from the public the Investigating Officer can take action against such a person under the law. Had it been a fact that he witnesses from the public had refused to to join the investigation, the Investigating Officer must have proceeded against them under the relevant provisions of law. The failure to do so by the police officer is suggestive of the fact that the explanation for non-joining the witnesses from the public is an after thought and is not worthy of credence. All these facts taken together make the prosecution case highly doubtful".
In case law reported as "Sadhu Singh V/s State of Punjab", 1997 (3) Crimes 55, the Hon'ble Punjab & Haryana High Court observed as under:-
"5. In a criminal trial, it is for the prosecution to establish its case beyond all reasonable doubts. 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 has to go to the accused.
6. In the present case, the State examined two witnesses namely, Harbans Singh ASI who appeared as PW1 and Kartar Singh PW2. Both the witnesses supported the prosecution version in terms of the recovery of opium from the person of the petitioner, but there FIR No. 158/2004 State Vs Sameer Bhai Kishore Bhai Desai PS Pratap Nagar Pg No. 18 of 28 Digitally signed by MANSI MANSI MALIK MALIK Date:
2026.04.11 15:35:34 +0530 was no public witness who had joined. It is not necessary in such recoveries that public witnesses must be joined, but attempt must be made to join the public witnesses. There can be cases when public witnesses are reluctant to join or are not available. All the same, the prosecution must show a genuine attempt having been made to join a public witness or that they were not available. A stereo-type statement of non-availability will not be sufficient particularly when at the relevant time, it was not difficult to procure the service of public witness. This reflects adversely on the prosecution version".
22. Considering the aforesaid observations made by the Higher Courts, the omissions/failure on the part of investigating agency to join independent public witnesses create reasonable doubt in the prosecution story especially as there were bound to be number of public witnesses present at the spot, which was Sabzi Mandi Railway Station. Thus, the recovery of the passport in question from accused Sameer Bhai Kishore Bhai Desai is in doubt.
23. Arguendo, even if it is assumed that the passport bearing the forged visa of Canada was recovered while the same was being handed over by accused Sameer Bhai Kishore to co-accused Sukhdev, it still has to be ascertained whether the ingredients of the offences u/s 467/468 IPC are satisfied in the present matter. Both the said sections are being reproduced below:
Section 467 IPC Forgery of valuable security, will, etc- Whoever forges a document which purports to be a valuable security or a will, or an Digitally FIR No. 158/2004 State Vs Sameer Bhai Kishore Bhai Desai PS Pratap Nagar Pg No. 19 of 28 signed by MANSI MANSI MALIK MALIK Date:
2026.04.11 15:35:40 +0530 authority to adopt a son, or which purports to give authority to any person to make or transfer any valuable security, or to receive the principal, interest or dividends thereon, or to receive or deliver any money, movable property, or valuable security, or any document purporting to be an acquittance or receipt acknowledging the payment of money, or an acquittance or receipt for the delivery of any movable property or valuable security, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
Section 468 IPC Forgery for purpose of cheating- Whoever commits forgery, intending that the document or electronic record forged shall be used for the purpose of cheating, shall be punished with imprisonment of either de-scription for a term which may extend to seven years, and shall also be liable to fine.
Therefore, for an offence to be made out u/s Section 467 IPC as well as 468 IPC, it has to be proved that forgery of valuable security/will was committed by the accused or forgery for the purposes of cheating was done by the accused. For both the said offences, it is essential that it be established that forgery was committed by the accused. Forgery has been defined under Section 463 IPC as follows:
Section 463 Forgery- Whoever makes any false documents or false electronic record or part of a document or electronic record, with intent to cause damage or injury, to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery.
As stated in the aforesaid section, forgery is defined as the FIR No. 158/2004 State Vs Sameer Bhai Kishore Bhai Desai PS Pratap Nagar Pg No. 20 of 28 Digitally signed by MANSI MANSI MALIK MALIK Date:
2026.04.11 15:35:48 +0530 creation of any false document or false electronic record with intent to cause damage or injury to any third person. False document or false electronic record has further been defined under Section 464 IPC, which is reproduced below:
Section 464 Making a false document- A person is said to make a false document or false electronic record First-Who dishonestly or fraudulently
(a)makes, signs, seals or executes a document or part of a document;
(b)makes or transmits any electronic record or part of any electronic record;
(c)affixes any electronic signature on any electronic record;
(d)makes any mark denoting the execution of a document or the authenticity of the electronic signature, with the intention of causing it to be believed that such document or part of document, electronic record or electronic signature was made, signed, sealed, executed, transmitted or affixed by or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed, executed or affixed; or Secondly- Who, without lawful authority, dishonestly or fraudulently, by cancellation or otherwise, alters a document or an electronic record in any material part thereof, after it has been made, executed or affixed with electronic signature either by himself or by any other person, whether such person be living or dead at the time of such alteration; or Thirdly- Who dishonestly or fraudulently causes any person to sign, seal, execute or alter a document or an electronic record or to affix his MANSI FIR No. 158/2004 State Vs Sameer Bhai Kishore Bhai Desai PS Pratap Nagar Pg No. 21 of 28 MALIK Digitally signed by MANSI MALIK Date: 2026.04.11 15:35:56 +0530 electronic signature on any electronic record knowing that such person by reason of unsoundness of mind or intoxication cannot, or that by reason of deception practised upon him, he does not know the contents of the document or electronic record or the nature of the alteration.
It can then be inferred from the all the sections reproduced above that forgery is creation of false document or false electronic record by any person and a false document/electronic record has been defined under Section 464 IPC. In the instant case, the fake Canadian visa stickers are the false documents for which the accused is being tried for. Thus, for proving the offences u/s 467/468 IPC it was then imperative for the prosecution to establish that the accused Sameer Bhai Kishore forged the fake Canadian visas found to be affixed on the passports in question. However, not even an iota of evidence has come on record to show that it was the accused Sameer Bhai Kishore who forged the fake Canadian visa and affixed it on the passport of co-accused Sukhdev. At this juncture, it is pertinent to refer to the landmark judgment of the Hon'ble Supreme Court of India on the aspect of cheating/forgery titled as Md. Ibrahim & Ors vs State of Bihar & Anr (2010 AIR SCW 405). The relevant portion is being reproduced below:
"........The condition precedent for an offence under sections 467 and 471 is forgery. The condition precedent for forgery is making a false document (or false electronic record or part thereof). This case does not relate to any false electronic record. Therefore, the question is whether the first accused, in executing and registering the two sale deeds purporting to sell a property (even if it is assumed that it did not belong to him), can be said to have made and executed false documents, in collusion with the other accused.
10. An analysis of section 464 of Penal Code shows that it divides false documents into three categories:
10.1) The first is where a person dishonestly or fraudulently MANSI FIR No. 158/2004 State Vs Sameer Bhai Kishore Bhai Desai PS Pratap Nagar Pg No. 22 of 28 MALIK Digitally signed by MANSI MALIK Date: 2026.04.11 15:36:03 +0530 makes or executes a document with the intention of causing it to be believed that such document was made or executed by some other person, or by the authority of some other person, by whom or by whose authority he knows it was not made or executed.
10.2) The second is where a person dishonestly or fraudulently, by cancellation or otherwise, alters a document in any material part, without lawful authority, after it has been made or executed by either himself or any other person.
10.3) The third is where a person dishonestly or fraudulently causes any person to sign, execute or alter a document knowing that such person could not by reason of (a) unsoundness of mind; or (b) intoxication; or (c) deception practised upon him, know the contents of the document or the nature of the alteration.
11. In short, a person is said to have made a `false document', if
(i) he made or executed a document claiming to be someone else or authorised by someone else; or (ii) he altered or tampered a document; or (iii) he obtained a document by practicing deception, or from a person not in control of his senses."
In the case at hand, it was then necessary for the prosecution to establish that the false document i.e. the fake Canadian visa found to be affixed on the passport of co-accused Sukhdev was either made/executed/altered/tampered with by the accused for the essential ingredients of forgery to be made out. However, in the testimonies of all the witnesses examined by the prosecution in evidence not a single averment has been made that the fake visas found to be affixed on the passports in question were created or made by the accused Sameer Bhai Kishore. No witness has been examined by the prosecution who had seen the accused in question forging the visa sticker or getting the visa sticker forged from any third person. Infact, it is pertinent to observe here that FIR No. 158/2004 State Vs Sameer Bhai Kishore Bhai Desai PS Pratap Nagar Pg No. 23 of 28 MANSI MALIK Digitally signed by MANSI MALIK Date: 2026.04.11 15:36:10 +0530 the investigation agency has conducted shoddy investigation as no investigation has been conducted as to from where the said fake visas stickers were obtained by the accused persons or if any other persons were involved in the said process. The IO has merely stated that the recovery of the passports was effected on the information of a secret informer and no further efforts have been made to unravel the entire scam and find out where the said fake visas were being created/obtained from. Mere recovery of the fake visa stickers from the possession of any person does not lead to the assumption that they were also forged by the person from whom they were recovered. From the aforesaid discussion, it can be said that the prosecution has failed to establish that the accused Sameer Bhai Kishore committed forgery of the visa stickers found to be affixed on the passports in question. Therefore, the charges u/s 467/468 IPC framed against accused Sameer Bhai Kishore cannot be sustained.
24. It has already been held above that the charges u/s 467/468 IPC framed against accused Sameer Bhai Kishore cannot be sustained. However, it still has to be seen whether any minor offence is made out against accused Sameer Bhai Kishore on basis of the facts which have already been proved by the prosecution. Ld. APP for the State submits that the accused can be convicted for the offence u/s 471/474 IPC even though the charge has been framed u/s 467/468 IPC as all the facts required for proving the offence u/s 471/474 IPC have already been proved by the prosecution. The relevant Section for the said purpose is Section 222 Cr.P.C. which is being reproduced below:
Section 222. When offence proved included in offence charged.
(1)When a person is charged with an offence consisting of several MANSI FIR No. 158/2004 State Vs Sameer Bhai Kishore Bhai Desai PS Pratap Nagar Pg No. 24 of 28 MALIK Digitally signed by MANSI MALIK Date: 2026.04.11 15:36:17 +0530 particulars, a combination of some only of which constitutes a complete minor offence, and such combination is proved, but the remaining particulars are not proved, he may be convicted of the minor offence, though he was not charged with it.
(2)When a person is charged with an offence and facts are proved which reduce it to minor offence, he may be convicted of the minor offence, although he is not charged with it.
(3)When a person is charged with an offence, he may be convicted of an attempt to commit such offence although the attempt is not separately charged.
(4)Nothing in this section shall be deemed to authorise a conviction of any minor offence where the conditions requisite for the initiation of proceedings in respect of that minor offence have not been satisfied.
25. In the matter at hand, the charge has been framed u/s 467/468 IPC. As already discussed above, the ingredients for an offence to be made out u/s 467 IPC are that it has to be proved that forgery of a document has been committed, which purports to be a valuable security or will. For an offence to be made out u/s 468 IPC, it has to be established that forgery was committed for the purposes of cheating. Therefore, the committing of forgery by the accused is imperative in both the said sections. On the other hand, for an offence to be made out u/s 471 IPC, it has to be established that the accused fraudulently or dishonestly used as genuine any document or electronic record, which he knew or had reason to believe was forged. Similarly, for an offence to be made out u/s 474 IPC, it has to be established that the accused had in his possession any document or any electronic record described in section 466 or 467 IPC, knowing the same to be forged and intending that the same shall be used fraudulently or dishonestly as genuine. From a bare perusal of Sections MANSI FIR No. 158/2004 State Vs Sameer Bhai Kishore Bhai Desai PS Pratap Nagar Pg No. 25 of 28 MALIK Digitally signed by MANSI MALIK Date: 2026.04.11 15:36:24 +0530 467/468 IPC on one hand and Sections 471/474 IPC on the other hand, it is clearly discernible that the ingredients of section 471/474 IPC are not the same as section 467/468 IPC. The key ingredient of section 471 IPC is fraudulently or dishonestly using of any document or any electronic record knowing the same to be forged. Similarly, Section 474 IPC is only established when the accused has in his possession any document or electronic record knowing it to be forged and intending that the same shall be fraudulently or dishonestly be used as genuine. Using/intending to use a forged document as genuine is therefore essential for the offences to be made out u/s 471/474 IPC, which is not required for the offences u/s 467/468 IPC to be made out.
26. From the aforesaid discussion, it is amply clear that the ingredients required to prove an offence u/s 467/468 IPC are different from the ingredients required to establish an offence u/s 471/474 IPC. However, as the accused Sameer Bhai Patel has not been charged with the offences u/s 471/474 IPC, he cannot be now convicted of the said offences even though they may be made out in the matter. The court is of the view that the offences u/s 471/474 IPC are distinct offences from the offences u/s 467/468 IPC and cannot be categorized as minor offences as the ingredients required to make out these offences are different. Therefore, Section 222 Cr.P.C. does not help the case of the prosecution and the accused cannot be now convicted under Section 471/474 IPC without charges under the said sections being framed against him. The trial in the present matter has been ongoing since the past 20 years and thus the Court is of the view that the present litigation be now taken to its conclusion without further delay on basis of the charges already framed MANSI FIR No. 158/2004 State Vs Sameer Bhai Kishore Bhai Desai PS Pratap Nagar Pg No. 26 of 28 MALIK Digitally signed by MANSI MALIK Date: 2026.04.11 15:36:31 +0530 and the material already on record..
27. In case of Sharada Birdhi Chand Sharda Vs. State of Maharastra AIR 1984 SC 1622, the Apex Court had laid down the test which are pre-requisites before conviction should be recorded, which are as under:-
(1)The circumstances from which the conclusion of guilt is to be drawn should be fully established; (2)The circumstances concerned "must or should"
and not "may be" established;
(3)The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
(4)The circumstances should be of conclusive nature and tendency;
(5) They should exclude every possible hypothesis except the one to be proved; and (6) There must be a chain of evidence so complete as not to leave any reasonable ground for conclusion consistent with the innocence of the accused and must so that in all human probability the act must have been done by the accused.
28. Considering the totality of the circumstances, I am of the opinion that the prosecution has miserably failed to substantiate the FIR No. 158/2004 State Vs Sameer Bhai Kishore Bhai Desai PS Pratap Nagar Pg No. 27 of 28 MANSI MALIK Digitally signed by MANSI MALIK Date: 2026.04.11 15:36:38 +0530 allegations against accused Sameer Bhai Kishore Bhai Desai and he is accordingly acquitted for the charges u/s 467/468 r/w 120-B IPC as levelled against him. Ordered accordingly.
Digitally
signed by
MANSI MANSI MALIK
Date:
MALIK 2026.04.11
15:36:47
+0530
Announced in the open (MANSI MALIK)
Court on 11th April, 2026 Addl. Chief Metropolitan Magistrate-02
Central/Tis Hazari Courts, Delhi
FIR No. 158/2004 State Vs Sameer Bhai Kishore Bhai Desai PS Pratap Nagar Pg No. 28 of 28