Delhi District Court
State vs . Pawan Thakur And Ors. on 20 April, 2022
IN THE COURT OF DINESH KUMAR
THE CHIEF METROPOLITAN MAGISTRATE
(SOUTH-EAST), SAKET COURTS, NEW DELHI
IN THE MATTER OF :
CNR number. DLSE02-000061-2002
Cr. Cases Registration number. 86667/2016
State Vs. Pawan Thakur and Ors.
FIR No. 17/2002
PS : Kalkaji
U/s: 420/511/474/120-B IPC
Date of Institution : 05.03.2002
Date of reserving the judgment : 05.04.2022
Date of pronouncement of judgment : 20.04.2022
JUDGMENT
1. Serial No. of the case : 86667/2016 2. Name of the Complainant :
Sh. N. Bajindra Kumar, IAS, Deputy Director, Admin, AIIMS, Ansari Nagar, New Delhi.
3. Date of commission of offence : 04.01.2002
4. Name of accused persons :
(1) Pawan Thakur, S/o Sh. Jaipal Singh, R/o C-24, Delhi Police Apartments, Mayur Vihar, Phase-1, New Delhi.
(2) Shreekant Kumar, S/o Sh. Hari Narayan Pandit Singh, R/o Village Khakhuna PS Kari Parsuri District Nalanda Bihar.
(3) Mukesh, S/o Sh. Raj Dev Parshad, R/o Rahuwai PS Rahuwai, District Nalanda Bihar.
FIR No. 17/2002 P.S. Kalkaji Judgment dated: 20.04.2022 Page No. 1 of 47 (Dinesh Kumar/CMM/SED/ND)
5. Offence charged :
S. 120-B, 420/511/120-B, and 474/120-B IPC
6. Plea of accused : Not guilty
7. Final Order : Acquitted BRIEF REASONS FOR ORDER:
1. Mr. Pawan Thakur, Mr. Shreekant, and Mr. Mukesh, the accused persons herein, have been facing the trial for the offences punishable under Section 120-B, 420/511/120-
B and 474/120-B of the Indian Penal Code (Act 45 of 1960) (herein after referred the 'IPC').
2. Brief facts of the case, as per prosecution, are that one complaint was made to the police by Mr. N. Bajindra Kumar, Deputy Director (Admn), the All India Institute of Medical Sciences (hereinafter referred to as 'AIIMS') to the police. It was stated in the complaint that the All India PG Entrance Examination for MD / MS / MDS, was to be conducted by the AIIMS on behalf of the Government of India on 06.01.2002. His attention was drawn towards one advertisement published in the newspaper "Hindustan Times"
dated 29.12.2001 in the name of Shiksha Consultant Pvt. Ltd. for confirm admission in "MD / MS". The informer had also mentioned that when contacted, the said organization had demanded Rs. 10 lacs with an assurance that the question paper would be provided on the previous night of the examination date. The telephone number and the address of the organization State Vs. Pawan Thakur & Ors.
FIR No. 17/2002 P.S. Kalkaji Judgment dated: 20.04.2022 Page No. 2 of 47 (Dinesh Kumar/CMM/SED/ND) was mentioned in the advertisement. Request was made in the said complaint to take immediate action.
3. After receiving the said complaint / information, SI Virender Singh was deputed to develop the information on the said complaint. He made a call at the phone number 6424777 of Shiksha Consultant Pvt Ltd regarding admission in MD / MS. He talked to one person who introduced himself as Mr. Pawan Thakur, the Director of the company. He asked him to bring the original admit card to check his credentials, and post dated cheques of Rs.10.50 lakhs. Accordingly, he alongwith other police officials approached the office of Assistant Controller Examination and requested to provide a dummy admit card. Assistant Controller Examination provided a dummy admit card in the name of SI Virender Singh as Dr. Virender Singh which was seized by him. Thereafter, he alongwith the other members of the raiding team reached near office of Shiksha Consultant Pvt Ltd. He asked some public persons to join the raiding party. However, none agreed Therafter, he reached at the office of the company at second floor while the other members remained downstairs. He met with accused Pawan Thakur who introduced himself as the Director of the company. SI Virender Singh introduced himself as Dr. Virender Singh who wanted to appear in test of PG. Accused Pawan Thakur asked him to show admit card and asked several questions to ascertain his candidature for PG examination. After State Vs. Pawan Thakur & Ors.
FIR No. 17/2002 P.S. Kalkaji Judgment dated: 20.04.2022 Page No. 3 of 47 (Dinesh Kumar/CMM/SED/ND) satisfaction, he demanded Rs. 10.5 lacs and told that he would provide solved examination paper during night at 5/6-01-2002. Accused Pawan Thakur also asked him to prepare an agreement. He was also asked to provide current and post dated cheques of Rs. 10.5 lacs. It was agreed that the cheques would be returned after receiving the payment in cash after completion of examination. SI Virender Singh handed over 04 post dated cheques to accused Pawan Thakur. Thereafter, accused Pawan Thakur executed an agreement / undertaking signed by him and SI Virender as Dr. Virender. Thereafter, he came down and raided the office of accused Pawan Thakur alongwith raiding party. During search, the post dated cheques given by him to the accused, the undertaking signed by them were recovered from the office which were seized. SI Virender Singh prepared a rukka and sent the same to the PS for registration of the FIR. On the basis of the said information, the present FIR was got registered.
4. After registration of the FIR, the investigation was marked to Insp. Pratap Singh. During investigation, various documents were recovered from the office of accused Pawan Thakur including the photocopies of the admit cards, post dated cheques of various candidates, carbon copies of the various agreements, blank proforma and plain papers for agreements. The accused was arrested. During interrogation, he disclosed names of various persons who had to provide the question State Vs. Pawan Thakur & Ors.
FIR No. 17/2002 P.S. Kalkaji Judgment dated: 20.04.2022 Page No. 4 of 47 (Dinesh Kumar/CMM/SED/ND) papers. On the basis of said information, the IO arrested accused Mukesh, Shreekant and Nitesh Kumar (since PO). During the search of accused Shreekant, various rubber stamps of different schools and colleges, photocopy of admit cards of PG exams and 02 cheques were recovered. Similar documents were recovered during search of accused Mukesh. All articles were seized. The IO recorded statements of all the relevant witnesses. After completion of the investigation, the IO filed the final report under Section 173 of the Code of Criminal Procedure, 1973 against accused Pawan Thakur, Mukesh Kumar, Shreekant and Nitesh (since PO) for the offences punishable u/s 420/511/474/120B IPC.
5. The cognizance of the offence under Section 420/511/474/120B IPC was taken by Ld. Predecessor of this Court. The accused were summoned. Accused appeared. During the proceedings accused Nitesh stopped appearing. NBWs were issued against him which remained unexecuted. Process u/s 82 Cr.P.C. was also issued against him. He did not appear despite execution of the process under Section 82 Cr.P.C. Therefore, he was declared absconder vide order dated 08.07.2008.
6. After compliance of the provisions of Section 207 Cr.P.C, charge for the offences punishable under Section 120- B, 420/511/120-B, and 474/120-B IPC was framed against accused Pawan Thakur, Shreekant Kumar and Mukesh Kumar State Vs. Pawan Thakur & Ors.
FIR No. 17/2002 P.S. Kalkaji Judgment dated: 20.04.2022 Page No. 5 of 47 (Dinesh Kumar/CMM/SED/ND) to which the accused had pleaded not guilty and claimed trial.
7. The prosecution has examined 14 witnesses in support of its case.
8. PW1 N. Bajinder Kumar was the Complainant. He would depose that he was working as Deputy Director and Chief Vigilance Officer at AIIMS from May 2000 to February 2004. In December 2001, he received an anonymous complaint stating that for All India PG entrance examination, illegal practices were being done by one Shiksha Consultant Pvt. Ltd. The complaint also had photocopy of advertisement appeared in Hindustan Times dated 29th December 2001 for confirmed admission in MS/MD in the All India PG Examination scheduled to be held on 06.01.02 by AIIMS authorities. The photocopy of anonymous letter dated 31.12.01 is Mark A. He had informed the police through his complaint that one Shiksha consultant Pvt. Ltd. was taking Rs.10 lacs each from candidates assuring them confirm admission in MS / MD in All India PG examination and that Shiksha consultant had also assured the candidates that they would provide the actual question paper on the night before of the examination to the candidates who had paid Rs. 10 lacs to Shiksha Consultant Pvt Ltd. As the examination was to be conducted on 06.01.02, he had requested the Delhi Police to take immediate action considering the seriousness of the offence. After considering the seriousness of the complaint, he satisfied himself that there were reasons to State Vs. Pawan Thakur & Ors.
FIR No. 17/2002 P.S. Kalkaji Judgment dated: 20.04.2022 Page No. 6 of 47 (Dinesh Kumar/CMM/SED/ND) inquire into the matter by proper investigation. He had written a DO letter dated 02.01.2002 to DCP South of Delhi Police explaining the details and requesting him to to take immediate action.
9. PW2 Sh. Uma Dutt Bhargava, an employee of the AIIMS was examined by the prosecution. He would depose that in January 2002, he was working as Assistant Controller of Exam at AIIMS Hospital, New Delhi. An entrance exam for MD / MS was organized to be held on 06.01.2002. One complaint was received in AIIMS regarding leakage of question paper for the said exam and the same was available against the payment. The matter was reported to the police authorities by AIIMS Administrative Authorities. IO SI Vijender came to him and asked him to issue one admit card to be used as dummy Admit Card to procure the leaked question paper as the seller was demanding and none of the genuine aspirant was available. He issued one admit card bearing roll no. 2075454 in the name of Dr. Vijender Singh which was seized by the IO vide memo Ex.PW2/A. The dummy admit card is Ex.P-1.
10. PW3 Sh. Karan Singh was examined by the prosecution. He would depose that in the month of July 2001, he was running a chemist shop from his house. His son Sachin Chand who recently passed class 12 th had read a newspaper advertisement regarding MBBS admission in the medical State Vs. Pawan Thakur & Ors.
FIR No. 17/2002 P.S. Kalkaji Judgment dated: 20.04.2022 Page No. 7 of 47 (Dinesh Kumar/CMM/SED/ND) college. He went to the office of Shiksha Consultant at 68, Shiksha Consultant, Kalkaji. At the said office, he met Pawan Thakur. Pawan Thakur told him that he could get admission for his son in any of the medical college affiliated to the CBSE by procuring the entrance exam paper prior to the examination. He refused to such practice and asked him to get his son admitted in some private institute for MBBS. Pawan Thakur then demanded Rs. 09 Lakhs. Pawan Thakur further asked for advance of Rs. 2 lakh to which he showed his inability to pay without confirmation. In the month of November 2001, he again went to him and handed him over three post dated cheques of Canara Bank of Panipat Branch for Rs. 3 lakh each bearing nos. 227272, 227273 and 227274. The cheques are Ex.P-1 to Ex.P-3. An agreement was also executed on which Pawan Thakur had also signed. The agreement is Ex.PW3/A. In the month of January 2002, he saw an advertisement in a newspaper, therefore, he went to office of Crime Branch, Delhi.
11. PW4 Dr. Rajbir Singh was examined by the prosecution. He would depose that he had cleared his MBBS in the year 2000. In the year 2001, his father Sh. K. S. Chauhan saw an advertisement in the newspaper and responded to it and contacted Mr. Pawan Thakur. The deal was that Mr. Pawan Thakur would give them coaching and in return there would be an assured seat for Post Graduation. Initially, he was not knowing the exact nature of the deal since his father was State Vs. Pawan Thakur & Ors.
FIR No. 17/2002 P.S. Kalkaji Judgment dated: 20.04.2022 Page No. 8 of 47 (Dinesh Kumar/CMM/SED/ND) pursuing it. Later on, when he came to know about the details of the deal, he told him to come out of this deal since he was confident that he would be able to get admission through competition. He once went to the office of Pawan Thakur.
12. The witness was declared hostile by the State. The witness was cross-examined by the State. However, he denied all the suggestions given to him by the prosecution.
13. PW5 Dr. Ramesh Chabra was examined by the prosecution. He would depose that in the month of January 2002, his friend namely Surender came to him and told him that he could get his son a PG seat of All India Entrance Medical test through his friend Shreekant. On 03.01.2002, Surender asked him for the photocopy of entrance card of his son namely Rohit Chabra. On the next day, he came and asked for Rs. 10 lacs which he could not arrange so the talks were settled.
14. PW6 ASI Virender Singh was the Duty Officer. He has proved the copy of FIR and the endorsement on rukka which are Ex.PW6/A and Ex.PW6/B. The investigation was marked to Inspector Pratap Singh.
15. PW7 Sh. Kumar Surinder was examined by the prosecution. He would depose that he was running a shop of selling arms and ammunition in the name of Style of Fauji Gun House. The matter is related to year 2001-2002. At that time, Anupam, who is son of one of his friends namely DSP Gajjan Singh wanted to take admission in MBBS Course. From State Vs. Pawan Thakur & Ors.
FIR No. 17/2002 P.S. Kalkaji Judgment dated: 20.04.2022 Page No. 9 of 47 (Dinesh Kumar/CMM/SED/ND) someone, he came to know that there was a Santosh Medical College at Ghaziabad, U. P. which was offering admission for MBBS course. Thereafter, he alongwith Anupam went to Santosh Medical College, Ghaziabad and met its principal Mr. N. K. Shrivastava who told them that he could arrange admission of Anupam in his college in MBBS course under Management Quota for which they need to pay the college a donation of Rs. 10 lakhs and for which college will issue a receipt also. Thereafter, he and Anupam came out of the principal's office and they made enquiries from the other students of the college. Those students from whom they enquired, told them that the college was not having any affiliation / necessary permissions from MCI or other statutory bodies. Thereafter, he alongwith Anupam again met principal Mr. N. K. Shrivastava and he told him that he was having information that his college did not have necessary affiliation and permission to run MBBS Course. Upon this, Principal Mr. N. K. Shrivastava told him that the college would get necessary permission and affiliation in short span of time. Principal also asked for his mobile number and visiting card so that he could contact him in case he could arrange admission for Anupam in MBBS Course in some other college. In the month of December, 2001, he received a call from Mr. N. K. Shrivastava who told him that he alongwith one of his friends was coming to Ludhiana and wanted to meet him. He also enquired from State Vs. Pawan Thakur & Ors.
FIR No. 17/2002 P.S. Kalkaji Judgment dated: 20.04.2022 Page No. 10 of 47 (Dinesh Kumar/CMM/SED/ND) him whether Anupam had got admission in MBBS Course till then or not. He told him that Anupam had not got admissionin MBBS Course. After some time, Mr. N. K. Shrivastava alongwith one of his friends came to Ludhiana and met him. Mr. N. K. Shrivastava and his friend told him that they could arrange admission in MBBS Course in Patna for Anupam for which he refused as Anupam got admission in MBBS Course in Latoor. Upon this, the friend of Mr. N. K. Shrivastava told him if he had any candidate desirous to get admission in Post Graduate medical courses i.e. MD / MS, he could arrange for it. As the son of his friend Mr. Ramesh Chabra namely Rohit Chabra was desirous to take admission in P. G. Medical Course after completing MBBS, he told him about the same. Thereafter, he arranged meeting of Mr. Ramesh Chabra and Mr. N. K. Shrivastava and his friend in his office at Ludhiana. Mr. N. K. Shrivastava and the person accompanying him told Mr. Ramesh Chabra that they could get his son (Rohit) go through the P. G. Entrance Examination of MD / MS to be held on 06.01.2012 for which they require payment of Rs. 10 lacs. Mr. N. K. Shrivastava and person accompanying also asked for photocopy of admit card of Rohit for above said P. G. Entrance Examination. Thereafter, after few discussions, Mr. Ramesh Chhabra refused to avail services of N. K. Shrivastava and his friend Ramesh as he was not in a position to arrange Rs. 10 lacs as asked for. After that, N. K. Shrivastava or his above State Vs. Pawan Thakur & Ors.
FIR No. 17/2002 P.S. Kalkaji Judgment dated: 20.04.2022 Page No. 11 of 47 (Dinesh Kumar/CMM/SED/ND) mentioned friend never contacted him. Police had enquired him regarding the present case and recorded his statement. The person who accompanied Mr. N. K. Shrivastava and met him had told his name. He told police his name when police enquired him.
16. The witness was also cross-examined by the State as the witness was stated to be resiling from his statement. The witness denied all the relevant suggestions given to him by the prosecution.
17. PW8 Sh. Sunil Kumar was examined by the prosecution. He would depose that in the year 2001-2002, he was residing at 53/4501, Regar Pura, Karol Bagh, New Delhi alongwith his family, His younger brother Ajay Kumar had completed his MBBS Course in the year 2001 from Manipal University and was aspiring for taking admission in MD / MS Course (PG in Medical Course). In the month of December, 2001, he saw an advertisement in Hindustan Times Newspaper, Delhi Edition of Shiksha Consultants Pvt Ltd and met Pawan Thakur. He spoke to Pawan Thakur and asked him as to how he will prepare students for getting admission in PG Medical Courses. Pawan Thakur replied that there were certain management quotas in different medical institutes and he could help students getting admission in management quotas in PG Medical Courses or in alternative prepared students to get through the entrance examination through his coaching and get State Vs. Pawan Thakur & Ors.
FIR No. 17/2002 P.S. Kalkaji Judgment dated: 20.04.2022 Page No. 12 of 47 (Dinesh Kumar/CMM/SED/ND) admission. Pawan Thakur told him to enter into an agreement with him and give him some security cheques which could be realized in case of candidate getting admission through management quota / preparation through coaching. Consequently, he handed cheques bearing nos. 072060, 159182 and 072049 all dated 16.02.2002 which are Ex.PW8/B-1 to Ex.PW8/B-5. He also entered into an agreement / undertaking on 03.01.2002 with Pawan Thakur. The undertaking is Ex.PW8/A. On behalf of his brother Ajay Kumar, he had entered into the said agreement / undertaking with Pawan Thakur. After few days, he came to know that a raid was conducted at the office of Pawan Thakur and nothing could be materialized. They had suffered no monetary loss in the transaction with Pawan Thakur. Police had enquired from him regarding the present case and recorded his statement. He had told police the facts.
18. The witness was also cross-examined by the State as the witness was stated to be resiling from his statement. The witness denied all the relevant suggestions given to him by the prosecution.
19. PW9 Dr. Atul Kumar was examined by the prosecution. He would depose that around 15 years ago, in the year 2002, his sister Dr. Shashi came across an advertisement published in newspaper about arranging admission for MBBS Courses issued by Shiksha Consultants Pvt Ltd having office at State Vs. Pawan Thakur & Ors.
FIR No. 17/2002 P.S. Kalkaji Judgment dated: 20.04.2022 Page No. 13 of 47 (Dinesh Kumar/CMM/SED/ND) Kalkaji. As the daughter of his sister was studying in 10+2 standard, his sister Dr. Shashi showed interest in the advertisement. She wanted her daughter to join MBBS Course after 10+2 and, therefore, she alongwith one of her friends came to his house and insisted him to accompany her to the office of Shiksha Consultants Pvt Ltd. Thereafter, he alongwith his sister and her friend went to Kalkaji at the given address of Shiksha Consultant Pvt Ltd. They met Pawan Thakur who told them that they would provide expert coaching and accommodation to the candidate. Accused Pawan Thakur told that he would charge about Rs. 14 lakhs as professional fee and expenses. He asked to give post dated cheques. Thereafter, his sister handed over 04 post dated cheques to him. A written agreement was also executed between Pawan Thakur and his sister which was witnessed by him. The written agreement is Ex.PW9/A. The cheques are Ex.PW9/B to Ex.PW9/E. After that, he never visited office of Shiksha Consultants Pvt Ltd. The police had interrogated him regarding present case and recorded his statement.
20. The witness was cross-examined by Ld. APP. However, he denied all the relevant suggestions put by the Ld. APP to him.
21. PW10 ASI Pradeep Kumar was examined by the prosecution. He would depose that on 04.01.2002, he was posted as Constable at Anti Forgery Section, EOW Crime State Vs. Pawan Thakur & Ors.
FIR No. 17/2002 P.S. Kalkaji Judgment dated: 20.04.2022 Page No. 14 of 47 (Dinesh Kumar/CMM/SED/ND) Branch, New Delhi. On that day, He was member of the raiding party which was led by Inspector Pratap Singh and consisting Inspector Sanjeev Tyagi, Const. Subhash and SI Virender Singh and himself. At about 06:05 pm, they reached infront of the building wherein the office of Shiksha Consultant at A-68, 2nd Floor, Kalkaji, New Delhi was situated. First IO / SI Virender Singh left them infront of building and went alone to the office of Shiksha Consultant at 2 nd Floor. At about 06:50 - 06:55 pm, SI Virender Singh came down stairs out of the building and briefed the team about his deal with Pawan Thakur (as dummy customer) and execution of certain documents i.e. MoU between them and his handing over of cheques to Pawan Thakur. Thereafter, all the members of raiding party raided the office of Shiksha Consultant at 2 nd floor of the abovesaid building forthwith where Pawan Thakur was found sitting in the office. In the presence of Inspector Pratap Singh, himself and other staff. SI Virender Singh checked / searched the office of Pawan Thakur and seized one undertaking executed between him and Pawan Thakur and 04 cheques of Vijaya Bank in the name of Pawan Thakur. IO had seized the articles vide memo Ex.PW10/A. The undertaking is Ex.PW10/B. The 04 cheques are Ex.PW10/C to Ex.PW10/F. Thereafter, SI Virender Singh prepared the rukka and handed over the same to him for registration of FIR. He went to PS Kalkaji and got the FIR registered. After registration of the FIR, State Vs. Pawan Thakur & Ors.
FIR No. 17/2002 P.S. Kalkaji Judgment dated: 20.04.2022 Page No. 15 of 47 (Dinesh Kumar/CMM/SED/ND) he returned at the spot with the copy of FIR and original rukka. He handed over the documents to Inspector Pratap Singh for further investigation.
22. PW11 Dr. Ravinder Singh was examined by the prosecution. He would depose that in the year 2001, he had completed his MBBS course and was preparing for post graduation entrance examination in medical field (MS/MD). In that year, he went through an advertisement in newspaper for MD / MS seat in private medical colleges from management quota, got published by Shiksha Consultants Pvt. Ltd. Thereafter, he approached the office of Shiksha Consultant Pvt. Ltd. as given in the advertisement in Kalkaji, Delhi and met accused Pawan Thakur. He told accused that he was aspiring to get admission in private medical college on Management seat (on donation basis), to which Pawan Thakur assured him that he would try to help him to get admission in PG Medical course on Management quota in a private college. For this purpose, Pawan Thakur asked him to give post dated cheques of Rs. 16 lacs and accordingly, he handed over him four PDCs of Rs. 4 lacs which are Ex.PW11/A to Ex.PW11/D. He also handed over copy of his admit card of examination for the seat of MD / MS / PG diploma courses 2002 conducted by AIIMS, Delhi. Thereafter, he got admission in MGM Medical College, Navi Mumbai, MS Ortho on management seat through management of the college. Thereafter, he never met Pawan Thakur and his State Vs. Pawan Thakur & Ors.
FIR No. 17/2002 P.S. Kalkaji Judgment dated: 20.04.2022 Page No. 16 of 47 (Dinesh Kumar/CMM/SED/ND) cheques were never encashed.
23. PW12 Sh. V. C. Ganesh was examined by the prosecution. He would depose that in the month of February, 2002, he was working as an Advertisement Manager in the Hindustan Times newspaper having office at Kasturba Gandhi Marg, New Delhi. He had received a notice / letter bearing no. 94/ACP/AF/EOW/Crime Branch, New Delhi dated 15.02.2002 regarding investigation of present case about the publication of an advertisement published in the newspaper, Delhi Edition (English Newspaper) dated 29.12.2001, in favour of "Shiksha Consultant Pvt. Ltd". A-68, Double Storey, Kalkaji, New Delhi 110019. He checked the relevant records and replied to the letter of police vide reply Ex.PW12/A. As per record, the advertisement was published in page no. 3 of their newspaper dated 29.12.2001 on behalf of client M/s Shiksha Consultant Pvt. Ltd. through agency M/s Prastuti Advertisers (P) Ltd. 863, Joshi Lane, Karol Bagh, New Delhi. The newspaper is Ex.PW12/B.
24. PW13 Insp. Virender Dalal was examined by the prosecution. He would depose that in the month of January, 2002, he was posted as SI in Anti Forgery Section EOW/ Crime Branch, Delhi. A complaint dated 02.01.2002 of Mr. N. Bajindra Kumar, Deputy Administration, AIIMS was received which was marked to Insp. Pratap Singh for enquiry by then concerned ACP Sh. Harish Joshi vide his endorsement writing State Vs. Pawan Thakur & Ors.
FIR No. 17/2002 P.S. Kalkaji Judgment dated: 20.04.2022 Page No. 17 of 47 (Dinesh Kumar/CMM/SED/ND) and signature. As he had worked with Sh. Harish Joshi in EOW / Crime Branch, he had seen him writing and signing during usual course of their duty and identify his signature and hand writing. Insp. Pratap Singh directed him to join him in the enquiry. Accordingly, during enquiry of the complaint on 04.01.2002, he made a call to the given phone number of the Shiksha Consultant Pvt. Ltd. regarding admission in MD / MS (PG Medical Course) and spoke to Pawan Thakur who introduced himself as Director of Shiksha Consultants Pvt. Ltd. and directed him to bring original admit card and post dated cheques of Rs. 10.5 lacs and to meet him in his office. Pawan Thakur also made it clear that he would not entertain him about admission in MD / MS course in AIIMS for which the examination was going to be held on 06.01.2002, unless he would show him his original admit card for the examination. Thereafter, he alongwith Insp. Partap Singh, Insp. Sanjeev Tyagi, Const. Subhash reached in the office of Assistant Controller of examination Sh. U. D. Bhargav and told him about the facts and requested him to issue dummy admit card in his name with his photograph for the upcoming entrance examination of MD / MS / PG Diploma Course 2002 of AIIMS scheduled on 06.01.2002. Thereafter, Sh. U. D. Bhargav got issued an Admit Card bearing his photograph, name and other particulars for the said exam which he seized vide memo Ex.PW2/A. After receiving / seizing the dummy admit card in State Vs. Pawan Thakur & Ors.
FIR No. 17/2002 P.S. Kalkaji Judgment dated: 20.04.2022 Page No. 18 of 47 (Dinesh Kumar/CMM/SED/ND) his name, he alongwith staff in plain clothes reached at the given office of Shiksha Consultant Pvt. Ltd. at A-68, Second Floor, Double Story, Kalkaji, Delhi. Before reaching the office of Shiksha Consultant Pvt Ltd. when he reached at the spot, one SI Virender Jain, Incharge PP, Nehru Place also reached there and met him whom he joined in the raiding party. He left all the raiding party members outside the building in which office of Shiksha Consultant Pvt. Ltd. was situated and alone went to the office of Shiksha Consultant Pvt. Ltd. at second floor. It was about 6 pm when he reached there and met Pawan Thakur who introduced himself as the Director of Shiksha Consultant Pvt Ltd. He introduced himself to Pawan Thakur as Dr. Virender Singh and told him that he was wishing to appear in the PG admission test of AIIMS on 06.01.2002. On asking, he showed his admit card which is Ex.P-1 to accused Pawan Thakur who after assuring about his candidature told him that he would help him in getting admission in PG Medical Course in AIIMS. Pawan Thakur asked him to give him post dated cheques of Rs. 10.5 lacs for this purpose and assured him that he would provide him solved examination paper of AIIMS PG Medical Course Exam 2002 in the intervening night of 5-6 January, 2002. Pawan Thakur also told him that when he would be appearing in the examination, someone on his behalf with cash of Rs. 10.5 lacs would remain with him till he would finish exam and confirm about the authenticity of the examination State Vs. Pawan Thakur & Ors.
FIR No. 17/2002 P.S. Kalkaji Judgment dated: 20.04.2022 Page No. 19 of 47 (Dinesh Kumar/CMM/SED/ND) paper provided to him on foregoing night and thereafter Pawan Thakur would take cash of Rs. 10.5 lacs from them for helping them and for providing answer sheets before the examination. Pawan Thakur also told him that if he agreed to his demand, they would be required to execute an agreement for this purpose and he will have to hand over him post dated cheques of Rs. 10.5 lacs which he would return after receiving the cash amount. He handed over 04 post dated cheques which are Ex.PW10/C to Ex.PW10/F for a total amount of Rs. 10.5 lacs to accused Pawan Thakur. Accused Pawan Thakur executed an agreement Ex.PW10/B which was duly signed by both of them. After finalising the deal, he left the office of the accused and came downstairs. Thereafter, all the members of the raiding party raided the office of the accused. They searched the office of the accused. During search, he seized from the possession of the accused Pawan Thakur the undertaking Ex.PW10/B and the original cheques Ex.PW10/C to Ex.PW10/F vide memo Ex.PW10/A. Thereafter, he prepared a rukka Ex.PW13/A by endorsing the same on the complaint. He got the FIR registered through Constable Pradeep. After registration of FIR, investigation was marked to Insp. Pratap Singh. Thereafter, Inspector Pratap Singh arrested accused Pawan Thakur vide memo Ex.PW13/B and conducted his personal search vide memo Ex.PW13/C. Inspector Pratap Singh had also seized various documents mentioned in seizure memo State Vs. Pawan Thakur & Ors.
FIR No. 17/2002 P.S. Kalkaji Judgment dated: 20.04.2022 Page No. 20 of 47 (Dinesh Kumar/CMM/SED/ND) Ex.PW13/B(sic). The document / undertaking mentioned at serial no. 1 of seizure memo Ex.PW13/D is Ex.PW8/A and the cheques are Ex.PW8/B-1 to Ex.PW8/B-5. The document / undertaking mentioned at serial no. 2 of seizure memo Ex.PW13/D is Ex.PW13/E and the cheques are Ex.PW13/E-1 to Ex.PW13/E-4. The document / undertaking mentioned at serial no. 3 of seizure memo Ex.PW13/D is Ex.PW13/F and the cheques are Ex.PW13/F-1 to Ex.PW13/F-5. The document / undertaking mentioned at serial no. 4 of seizure memo Ex.PW13/D is Ex.PW13/G and the cheques are Ex.PW13/G-1 to Ex.PW13/G-6. The document / undertaking mentioned at serial no. 5 of seizure memo Ex.PW13/D is Ex.PW13/H and the cheques are Ex.PW13/H-1 to Ex.PW8/H-4. The document / undertakng mentioned at serial no. 6 of seizure memo Ex.PW13/D is Ex.PW13/I and the cheques are already Ex.P-1 to Ex.P-3 (dated 16.08.2012). The document / undertaking mentioned at serial no. 7 of seizure memo Ex.PW1/D is Ex.PW13/J and the cheques are Ex.PW13/J-1 to Ex.PW13/J-5. The document / undertaking mentioned at serial no. 8 of seizure memo Ex.PW13/D is already Ex.PW9/A and the cheques are already Ex.PW9/B to Ex.PW9/E. The document receipt mentioned at serial no. 9 of seizure memo Ex.PW13/D is Ex.PW13/K and the cheques and admit card mentioned at serial no. 10 at seizure memo Ex.PW13/D is Mark 13/X-1 and the cheques are Ex.PW13/K-3 to Ex.PW123/K-5. The document / State Vs. Pawan Thakur & Ors.
FIR No. 17/2002 P.S. Kalkaji Judgment dated: 20.04.2022 Page No. 21 of 47 (Dinesh Kumar/CMM/SED/ND) copy of admit card mentioned at serial no. 11 of seizure memo Ex.PW13/D is already Mark 11/X and Mark 11/Y and the cheques are Ex.PW11/A to Ex.PW11/D. The document / copy of admit card mentioned at serial no. 12 of seizure memo Ex.PW13/D is Mark 13/X-2 and the cheques are Ex.PW13/K-6 to Ex.PW13/K-8. The document / copy of admit cards mentioned at serial no. 13 of seizure memo Ex.PW13/D are Mark 13/X-3 (colly). The document / original cheques mentioned at serial no. 14 of seizure memo Ex.PW13/D are Ex.13/K-9 to Ex.PW13/K-12. The document / original cheques mentioned at serial no. 15 of seizure memo Ex.PW13/D are Ex.13/K-13 to Ex.PW13/K-16. The document / blank stamp papers / undertakings mentioned at serial no. 16 of seizure memo Ex.PW13/D are Ex.13/K-17 to Ex.PW13/K-20. The document / blank performa / undertaking mentioned at serial no. 17 of seizure memo Ex.PW13/D are Mark 13/X-14 (colly 03 performas). The document / original cheques mentioned at serial no. 18 of seizure memo Ex.PW13/D are Ex.13/K-21 to Ex.PW13/K-23. The copy mentioned at serial no. 19 at seizure memo Ex.PW13/D is Ex.PW13/L (containing 20 pages). On 05.01.2002, accused Pawan Thakur disclosed about his associates Shreekant, Mukesh and Nikesh. They were apprehended from Yuvraj Deluxe Hotel, Paharganj, New Delhi. Inspector Pratap Singh recorded disclosure statement of accused Pawan Thakur which is Ex.PW13/M. Inspector Pratap State Vs. Pawan Thakur & Ors.
FIR No. 17/2002 P.S. Kalkaji Judgment dated: 20.04.2022 Page No. 22 of 47 (Dinesh Kumar/CMM/SED/ND) Singh interrogated accused Nikesh, Mukesh and Shreekant and recorded their disclosure statements Ex.PW13/M-1 to Ex.PW13/M-3.
25. PW-14 Retd. ACP Pratap Singh was the IO of the case. However, his testimony could not be completed as he had expired before he was cross examined by the defence.
26. The witnesses were duly cross-examined by Ld. counsel for the accused. Thereafter, on the submissions of Ld. APP for the State, PE was closed. The statements of the accused persons under Section 313 Cr.P.C. r/w Section 281 Cr.P.C., after putting entire incriminating evidence against them, were recorded. The accused denied commission of the offence and stated that they had been falsely implicated in the present case. The accused did not examine any witness in defence. Therefore, the DE was closed and the matter was fixed for final arguments.
27. Sh. Sanjay Kumar Mishra, Ld. APP for State would argue that the prosecution has proved its case against the accused persons beyond reasonable doubts. It has been proved through the testimonies of the witnesses that the accused had entered into criminal conspiracy to commit an illegal act. All the ingredients of the offence punishable under Section 120B, 420/511/120B, and 474/120B, IPC have been proved against the accused persons. Hence, it is prayed, the accused persons may be convicted for the offences.
FIR No. 17/2002 P.S. Kalkaji Judgment dated: 20.04.2022 Page No. 23 of 47 (Dinesh Kumar/CMM/SED/ND)
28. On the other hand, Ms. Navneeta Sharma, Ld. counsel for accused Mukesh and Shreekant would argue that the prosecution has failed to prove its case against the accused persons. There is no evidence against the said accused persons. They have been falsely implicated. In the absence of any conclusive expert opinion the case of the prosecution is full of doubt and infirmities. The alleged recovered stamps were not used on any documents.
29. Sh. Pradeep Mahajan and Sh. Tushar Mahajan, Ld. Counsels for accused Pawan Thakur would argue that the prosecution has failed to prove its case against the accused beyond reasonable doubts. There are various contradictions in the testimonies of the witnesses of the prosecution which are sufficient to show that nothing was recovered from the possession or at instance of the accused. All the material had been planted upon him to create false evidence. No raid was ever conducted. No recovery was ever effected. The police officials never visited the office of the accused. All the papers were prepared in the police station. In the absence of any conclusive expert opinion the case of the prosecution is full of doubt and infirmities. The public witnesses have not supported the case of the prosecution. There is no public witness of the alleged recovery. There is no record produced by the prosecution to prove that the police officials had left the police station to conduct the raid. False documents were prepared at State Vs. Pawan Thakur & Ors.
FIR No. 17/2002 P.S. Kalkaji Judgment dated: 20.04.2022 Page No. 24 of 47 (Dinesh Kumar/CMM/SED/ND) the police station and accused were forced to sign documents at the police station.
30. On the basis of abovementioned arguments, it has been submitted by the Ld. Counsels that reasonable doubts have been created on the story of the prosecution. Hence, it is prayed, the benefit of doubts may be given to the accused persons and they may be acquitted.
31. I have heard the submissions on behalf of all the parties and carefully perused the material available on record.
32. It is a settled proposition of criminal law that the prosecution is supposed to prove its case beyond reasonable doubt by leading reliable, cogent and convincing evidence. The primary burden of proof for proving the offences in a criminal trial rests on the shoulders of the prosecution. Further, an accused is entitled to benefit of every reasonable doubt appearing qua the material facts.
33. The accused herein have been facing the trial for the offences punishable under Section 120B, Section 420, and Section 474, the IPC. Before, proceedings further, it would be relevant to discuss the law relating to these offences.
34. Section 120-B IPC provides punishment for the offence of criminal conspiracy. For the purpose of proving criminal conspiracy, the prosecution must establish the following: (1) that the accused agreed to do or caused to be done an act; (2) that such act was illegal or was to be done by State Vs. Pawan Thakur & Ors.
FIR No. 17/2002 P.S. Kalkaji Judgment dated: 20.04.2022 Page No. 25 of 47 (Dinesh Kumar/CMM/SED/ND) illegal means; and (3) that some overt act was done by one of the accused in pursuance of the agreement.
35. The Hon'ble Apex Court in Baliya Vs. State of Madhya Pradesh, 2012(9) SCC 696 has held that the offence of criminal conspiracy has its foundation in an agreement to commit an offence or to achieve a lawful object through unlawful means. Such a conspiracy would rarely be hatched in the open and, therefore, direct evidence to establish the same may not be always forthcoming. Proof or otherwise of such conspiracy is a matter of inference and the court in drawing such an inference must consider whether the basic facts i.e. circumstances from which the inference is to be drawn have been proved beyond all reasonable doubt, and thereafter, whether from such proved and established circumstances no other conclusion except that the accused had agreed to commit an offence can be drawn. Naturally in evaluating the proved circumstances for the purposes of drawing any inference adverse to the accused, the benefit of any doubt that may creep in must go to the accused.
36. Similarly, the Hon'ble Apex Court, again in Central Bureau of Investigation, Hyderabad Vs K. Narayana Rao, 2012(9) SCC 512 has held that the ingredients of the offence of criminal conspiracy are that there should be an agreement between the persons who are alleged to conspire and the said agreement should be for doing of an illegal act or for State Vs. Pawan Thakur & Ors.
FIR No. 17/2002 P.S. Kalkaji Judgment dated: 20.04.2022 Page No. 26 of 47 (Dinesh Kumar/CMM/SED/ND) doing, by illegal means, an act which by itself may not be illegal. In other words, the essence of criminal conspiracy is an agreement to do an illegal act and such an agreement can be proved either by direct evidence or by circumstantial evidence or by both and in a matter of common experience that direct evidence to prove conspiracy is rarely available. Accordingly, the circumstances proved before and after the occurrence have to be considered to decide about the complicity of the accused. Even if some acts are proved to have committed, it must be clear that they were so committed in pursuance of an agreement made between the accused persons who were parties to the alleged conspiracy. Inferences from such proved circumstances regarding the guilt may be drawn only when such circumstances are incapable of any other reasonable explanation. In other words, an offence of conspiracy cannot be deemed to have been established on mere suspicion and surmises or inference which are not supported by cogent and acceptable evidence.
37. Section 511 IPC provides the punishment for attempt to commit offences punishable under the IPC, where no express provision is made by the IPC for punishment of such attempt. There is no separate provision for punishment of attempt to cheat and, therefore, Section 511 has been used alongwith Section 420 IPC in relation to the offence of attempt to cheat. Section 420, IPC provides punishment for cheating State Vs. Pawan Thakur & Ors.
FIR No. 17/2002 P.S. Kalkaji Judgment dated: 20.04.2022 Page No. 27 of 47 (Dinesh Kumar/CMM/SED/ND) and dishonestly inducing delivery of property. In order to constitute, offence under Section 420 IPC, the prosecution has to establish that the accused had deceived the complainant/victim dishonestly inducing him to part with any property in his favour which he would not have parted but for the deception played on him. Thus, the essential ingredients of the offence is that there must be dishonest intention on the part of the accused at the time of making the representation to the complainant / victim on the basis which the complainant / victim part with his property. Intention must be dishonest and there must also be mens rea. Hon'ble Supreme Court of India in Samir Sahay v. State of U.P., (2018) 14 SCC 233 has discussed the ingredients and the law related to the offence of cheating under section 415 and 420, the IPC. It has been held as under:
"6.Before we proceed further to examine the contentions of the learned counsel for the parties, it is necessary to notice the ingredients for establishing a charge under Section 420 IPC. Section 415 IPC defines "cheating" which is to the following effect:
"415.Cheating.--Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat"
"17. Section 420 IPC is with regard to the cheating State Vs. Pawan Thakur & Ors.
FIR No. 17/2002 P.S. Kalkaji Judgment dated: 20.04.2022 Page No. 28 of 47 (Dinesh Kumar/CMM/SED/ND) and dishonestly inducing delivery of property which is to the following effect:
"420.Cheating and dishonestly inducing delivery of property.--Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
"18.According to Section 415 IPC, the inducement must be fraudulent and dishonest which depends upon the intention of the accused at the time of inducement. This Court had occasion to consider Sections 415 and 420 IPC in Hridaya Ranjan Prasad Verma v. State of Bihar [Hridaya Ranjan Prasad Verma v. State of Bihar, (2000) 4 SCC 168 : 2000 SCC (Cri) 786] . This Court after noticing the provisions of Sections 415 and 420 IPC stated the following in paras 14 and 15 : (SCC pp. 176-77) "14. On a reading of the section it is manifest that in the definition there are set forth two separate classes of acts which the person deceived may be induced to do. In the first place he may be induced fraudulently or dishonestly to deliver any property to any person. The second class of acts set forth in the section is the doing or omitting to do anything which the person deceived would not do or omit to do if he were not so deceived. In the first class of cases the inducing must be fraudulent or dishonest. In the second class of acts, the inducing must be intentional but not fraudulent or dishonest.
State Vs. Pawan Thakur & Ors.
FIR No. 17/2002 P.S. Kalkaji Judgment dated: 20.04.2022 Page No. 29 of 47 (Dinesh Kumar/CMM/SED/ND) "15. In determining the question it has to be kept in mind that the distinction between mere breach of contract and the offence of cheating is a fine one. It depends upon the intention of the accused at the time of inducement which may be judged by his subsequent conduct but for this subsequent conduct is not the sole test. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction, that is the time when the offence is said to have been committed. Therefore it is the intention which is the gist of the offence. To hold a person guilty of cheating it is necessary to show that he had fraudulent or dishonest intention at the time of making the promise. From his mere failure to keep up promise subsequently such a culpable intention right at the beginning, that is, when he made the promise cannot be presumed.
"19. Again in Dalip Kaur v. Jagnar Singh [Dalip Kaur v. Jagnar Singh, (2009) 14 SCC 696 : (2010) 2 SCC (Cri) 223] , this Court noticed the ingredients of Section 420 IPC. In paras 9 to 11 the following was stated : (SCC pp. 699-700) "9. The ingredients of Section 420 of the Penal Code are "(i) Deception of any persons;
"(ii) Fraudulently or dishonestly inducing any person to deliver any property; or "(iii) To consent that any person shall retain any property and finally intentionally inducing that person to do or omit to do anything which he would not do or omit.' "10. The High Court, therefore, should have posed a question as to whether any act of State Vs. Pawan Thakur & Ors.
FIR No. 17/2002 P.S. Kalkaji Judgment dated: 20.04.2022 Page No. 30 of 47 (Dinesh Kumar/CMM/SED/ND) inducement on the part of the appellant has been raised by the second respondent and whether the appellant had an intention to cheat him from the very inception. If the dispute between the parties was essentially a civil dispute resulting from a breach of contract on the part of the appellants by non-refunding the amount of advance the same would not constitute an offence of cheating. Similar is the legal position in respect of an offence of criminal breach of trust having regard to its definition contained in Section 405 of the Penal Code. (See Ajay Mitra v. State of M.P. [Ajay Mitra v. State of M.P., (2003) 3 SCC 11 : 2003 SCC (Cri) 703] ) "11. There cannot furthermore be any doubt that the High Court would exercise its inherent jurisdiction only when one or the other propositions of law, as laid down in R. Kalyani v. Janak C. Mehta [R. Kalyani v. Janak C. Mehta, (2009) 1 SCC 516 : (2009) 1 SCC (Cri) 567] is attracted, which are as under : (SCC p. 523, para 15) "(1) The High Court ordinarily would not exercise its inherent jurisdiction to quash a criminal proceeding and, in particular, a first information report unless the allegations contained therein, even if given face value and taken to be correct in their entirety, disclosed no cognizable offence.
"(2) For the said purpose the Court, save and except in very exceptional circumstances, would not look to any document relied upon by the defence.
"(3) Such a power should be exercised very sparingly. If the allegations made in the FIR disclose commission of an offence, the Court State Vs. Pawan Thakur & Ors.
FIR No. 17/2002 P.S. Kalkaji Judgment dated: 20.04.2022 Page No. 31 of 47 (Dinesh Kumar/CMM/SED/ND) shall not go beyond the same and pass an order in favour of the accused to hold absence of any mens rea or actus reus.
"(4) If the allegation discloses a civil dispute, the same by itself may not be a ground to hold that the criminal proceedings should not be allowed to continue.' "21. In the first information report even allegation of making assurance was not made against the appellant but was made against Major P.C. Sahay (Retd.), father of the appellant. There was no allegation that the appellant fraudulently or dishonestly induced the complainant to deposit money. This Court in Arun Bhandari v. State of U.P. [Arun Bhandari v. State of U.P., (2013) 2 SCC 801 : (2013) 2 SCC (Cri) 21] , has held that it is necessary to show that a person had fraudulent or dishonest intention at the time of making the promise. A mere failure to keep up promise subsequently cannot be presumed as an act leading to cheating. An earlier two-Judge Bench judgment of this Court in State of Kerala v. A. Pareed Pillai [State of Kerala v. A. Pareed Pillai, (1972) 3 SCC 661 : 1972 SCC (Cri) 705] , was quoted with approval in para
21. Paras 21, 22, 23 and 24 which are relevant are to the following effect : (Arun Bhandari case [Arun Bhandari v. State of U.P., (2013) 2 SCC 801 : (2013) 2 SCC (Cri) 21] , SCC pp. 811-12) "21. Before we proceed to scan and analyse the material brought on record in the case at hand, it is seemly to refer to certain authorities wherein the ingredients of cheating have been highlighted. In State of Kerala v. A. Pareed Pillai [State of Kerala v. A. Pareed Pillai, (1972) 3 SCC 661 : 1972 SCC (Cri) 705] a two-
Judge Bench ruled that : (SCC p. 667, para 16) "16. ... To hold a person guilty of the offence of State Vs. Pawan Thakur & Ors.
FIR No. 17/2002 P.S. Kalkaji Judgment dated: 20.04.2022 Page No. 32 of 47 (Dinesh Kumar/CMM/SED/ND) cheating, it has to be shown that his intention was dishonest at the time of making the promise [and] such a dishonest intention cannot be inferred from [a] mere fact that he could not subsequently fulfil the promise.' "22. In G.V. Rao v. L.H.V. Prasad [G.V. Rao v. L.H.V. Prasad, (2000) 3 SCC 693 : 2000 SCC (Cri) 733] , this Court has held thus : (SCC pp. 696- 97, para 7) "'7. As mentioned above, Section 415 has two parts. While in the first part, the person must "dishonestly" or "fraudulently" induce the complainant to deliver any property; in the second part, the person should intentionally induce the complainant to do or omit to do a thing. That is to say, in the first part, inducement must be dishonest or fraudulent. In the second part, the inducement should be intentional. As observed by this Court in Jaswantrai Manilal Akhaney v. State of Bombay [Jaswantrai Manilal Akhaney v. State of Bombay, AIR 1956 SC 575 :
1956 Cri LJ 1116] , a guilty intention is an essential ingredient of the offence of cheating. In order, therefore, to secure conviction of a person for the offence of cheating, "mens rea" on the part of that person, must be established. It was also observed in Mahadeo Prasad v. State of W.B. [Mahadeo Prasad v. State of W.B., AIR 1954 SC 724 : 1954 Cri LJ 1806] , that in order to constitute the offence of cheating, the intention to deceive should be in existence at the time when the inducement was offered.'
"23. In S.W. Palanitkar v. State of Bihar [S.W. Palanitkar v. State of Bihar, (2002) 1 SCC 241 : 2002 SCC (Cri) 129] it has been laid down that : (SCC p. 250, para 21) State Vs. Pawan Thakur & Ors.
FIR No. 17/2002 P.S. Kalkaji Judgment dated: 20.04.2022 Page No. 33 of 47 (Dinesh Kumar/CMM/SED/ND) "'21. ... In order to constitute an offence of cheating, the intention to deceive should be in existence at the time when the inducement was made. It is necessary to show that a person had fraudulent or dishonest intention at the time of making the promise, to say that he committed an act of cheating. A mere failure to keep up promise subsequently cannot be presumed as an act leading to cheating.' "24. In the said case while dealing with the ingredients of criminal breach of trust and cheating, the Bench observed thus : (S.W. Palanitkar case [S.W. Palanitkar v. State of Bihar, (2002) 1 SCC 241 : 2002 SCC (Cri) 129] , SCC p. 246, paras 9-10) "9. The ingredients in order to constitute a criminal breach of trust are : (i) entrusting a person with property or with any dominion over property, (ii) that person entrusted (a) dishonestly misappropriating or converting that property to his own use; or (b) dishonestly using or disposing of that property or wilfully suffering any other person so to do in violation (i) of any direction of law prescribing the mode in which such trust is to be discharged, (ii) of any legal contract made, touching the discharge of such trust.
"10. The ingredients of an offence of cheating are : (i) there should be fraudulent or dishonest inducement of a person by deceiving him, (ii)(a) the person so deceived should be induced to deliver any property to any person, or to consent that any person shall retain any property; or (b) the person so deceived should be intentionally induced to do or omit to do anything which he would not do or omit if he were not so deceived; and (iii) in cases covered by, (ii)(b) the act of omission should be one which causes or is likely to cause damage or harm to the person induced State Vs. Pawan Thakur & Ors.
FIR No. 17/2002 P.S. Kalkaji Judgment dated: 20.04.2022 Page No. 34 of 47 (Dinesh Kumar/CMM/SED/ND) in body, mind, reputation or property."
"23. We are, thus, of the considered opinion that in the present case ingredients of Section 420 IPC were not made out so as to frame any charge under Section 420 IPC against the appellant."
38. Section 474 IPC provides punishment for having possession of document described in section 466 or 467, knowing it to be forged and intending to use it as genuine. Section 463 IPC defines forgery while Section 464 IPC defines making a false document. The Sections read as under :-
"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.
"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 State Vs. Pawan Thakur & Ors.
FIR No. 17/2002 P.S. Kalkaji Judgment dated: 20.04.2022 Page No. 35 of 47 (Dinesh Kumar/CMM/SED/ND) 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 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.
"Explanation 1.--A man's signature of his own name may amount to forgery.
"Explanation 2.--The making of a false document in the name of a fictitious person, intending it to be believed that the document was made by a real person, or in the name of a deceased person, intending it to be believed that the document was made by the person in his lifetime, may amount to forgery.
"Explanation 3.--For the purposes of this section, the expression "affixing electronic signature" shall have the meaning assigned to it in clause (d) of sub-section (1) of section 2 of the Information Technology Act, 2000."
39. In view of the above discussed legal position, I shall proceed to decide the present matter.
40. It has been alleged by the prosecution that accused Shreekant and Mukesh had entered into a criminal conspiracy State Vs. Pawan Thakur & Ors.
FIR No. 17/2002 P.S. Kalkaji Judgment dated: 20.04.2022 Page No. 36 of 47 (Dinesh Kumar/CMM/SED/ND) with accused Pawan Thakur to cheat the public at large by assuring to provide solved question papers of MD / MS against money. It has also been alleged that in furtherance of the said conspiracy, accused Pawan Thakur had dishonestly induced SI Virender Singh to provide solved question papers against money. It is also alleged that various forged stamps of various institutions were recovered from their possession as per seizure memo.
41. Now, there is not even an iota of evidence on record to show that the accused persons had entered into a conspiracy with accused Pawan Thakur at any point of time. There is no evidence on record to even show that the accused persons were known to each other. None of the public witness has deposed regarding any conspiracy between the accused persons. The alleged disclosure statements made by the accused can not be considered as an evidence to prove the charge of conspiracy.
42. PW-1 Mr. N. Bajinder Kumar has proved the complaint / information sent by him to the police. He, however, does not have any personal knowledge of the raid and the recovery etc. made from the accused persons. PW-2 Sh. Uma Dutt Bhargav is also an official witness from the office of AIIMS. He has proved handing over the dummy admit card to SI Virender Singh. This witness also does not have any State Vs. Pawan Thakur & Ors.
FIR No. 17/2002 P.S. Kalkaji Judgment dated: 20.04.2022 Page No. 37 of 47 (Dinesh Kumar/CMM/SED/ND) knowledge of the facts regarding the raid and recovery etc from the accused persons.
43. PW-3 Sh. Karan Singh is a witness who has stated that he had met with accused Pawan Thakur in relation to his son's admission in MBBS course. He had also given the cheques to the accused and signed an agreement with the accused. However he has not made any allegation that the accused had promised to provide a solved question paper to him or his son for the admission in MBBS course. Further the allegation of the prosecution is that the accused had got published an advertisement in newspaper regarding the admission in MS/MD courses. The paper which was alleged to be attempted to be leaked was in relation to the PG courses and not the MBBS. Therefore his testimony is not able to prove anything in relation to the case of the prosecution.
44. PW-4 Dr. Rajbir Singh also did not make any allegation against accused Pawan Kumar. He has also denied all the relevant suggestions put to him by the prosecution. Testimony of PW-5 Dr. Ramesh Chabra is also not able to prove anything against any of the accused. He had not even met with any of the accused. PW-6 ASI Virender Singh is the police official who has only proved the FIR. PW-7 Kumar Surinder has also not deposed anything incriminatory against the accused. He has also has denied all the suggestions given to him by the prosecution. Similarly PW-8 Sunil Kumar, PW-9 State Vs. Pawan Thakur & Ors.
FIR No. 17/2002 P.S. Kalkaji Judgment dated: 20.04.2022 Page No. 38 of 47 (Dinesh Kumar/CMM/SED/ND) Dr. Atul Kumar and PW-11 Dr. Ravinder Singh have also stated that the accused had promised to get admission in management quota or through expert coaching. They have also not deposed anything incriminating against the accused persons.
45. PW-12 has proved the copy of newspaper.
However, the testimony of this witness is not able to prove that it was accused Pawan Thakur who had got the advertisement published in the newspaper. Be that as it may, the said advertisement is not able to show that the accused had promised to provide solved question papers before the entrance examination.
46. PW-10 ASI Pradeep Kumar and PW-13 Inspector Virender Dalal are the police officials who had been part of the raiding team. However PW-10 was not the witness of the dealing between decoy customer SI Virender Singh and accused Pawan Thakur. Thus, there is only witness .i.e. PW-13 SI Virender Singh who had deposed regarding his dealing with accused Pawan Thakur.
47. Perusal of the record would show that the case of the prosecution is that the information was received by the police from the senior officer of AIIMS regarding the advertisement in the newspaper. The inquiry was marked to SI Virender Singh and Inspector Pratap Singh. Thereafter, a raiding party was constituted. After talking to accused Pawan State Vs. Pawan Thakur & Ors.
FIR No. 17/2002 P.S. Kalkaji Judgment dated: 20.04.2022 Page No. 39 of 47 (Dinesh Kumar/CMM/SED/ND) Thakur on phone, the team had left to visit Assistant Controller of Examination and obtained a dummy admit card. Thereafter, the raiding party had reached the spot where the office of the accused was situated. PW11 and PW13 have stated that before going to the office of accused Pawan Thakur, SI Virender Singh had asked some public persons to join the raiding team. However, they had refused. Thus, the place of the alleged recovery and apprehension of accused Pawan Thakur is clearly shown to be located in an area where public persons were readily available. Similarly, accused Shreekant and Mukesh are also shown to be arrested from room of a hotel. It is not the case of the prosecution that no public person was present at or near the spot of arrest and recovery of the accused persons. From a perusal of the record, no serious effort for joining public witnesses appears to have been made. No steps are shown to be taken to note down the names and addresses of those persons who had refused to participate in the proceedings. No notice is shown to be given to those persons. It is a well settled proposition that non-joining of public witness shrouds doubt over the fairness of the investigation by police. Section 100 (4) of the Cr.P.C. also casts a statutory duty on an official conducting search to join two respectable persons of the society. Same has not been done in the present case. This casts a doubt on the fairness of the investigation. In the case titled as Nanak Chand Vs. State of Delhi, Crl. Revision No. 169/81, State Vs. Pawan Thakur & Ors.
FIR No. 17/2002 P.S. Kalkaji Judgment dated: 20.04.2022 Page No. 40 of 47 (Dinesh Kumar/CMM/SED/ND) decided on 07.11.1990, Hon'ble High Court of Delhi has observed as under:-
"The recovery was from a street with houses on both sides and shops nearby. And, yet no witness from the public has been produced. Not that in every case the police officials are to be treated as unworthy of reliance but their failure to join witnesses from the public especially when they are available at their elbow, may, as in the present case, cast doubt. They have again churned out a stereotyped version. Its rejection needs no Napoleon on the Bridge at Arcola.''
48. In the present case, non-joining of any public person as a witness creates doubt on the case of the prosecution. However, the fact of non-joining public witnesses is not the only ground to disbelieve the case of the prosecution. This Court is conscious that the prosecution case cannot be thrown out or doubted on the sole ground of non-joining of public witnesses as public witnesses keep themselves away from the Court unless it is inevitable. I get strength from the judgment of the Hon'ble supreme Court of India in Appabhai and another v. State of Gujarat, AIR 1988 SC 696. However, in the present case, it is not only the absence of public witnesses which raises a doubt on the prosecution but there are other circumstances too, as discussed hereinafter, which raise suspicion over the prosecution version.
49. Police officials are under a statutory duty to mark their departure and arrival in the register kept in the police station for the purpose as per the Punjab Police Rules. It is State Vs. Pawan Thakur & Ors.
FIR No. 17/2002 P.S. Kalkaji Judgment dated: 20.04.2022 Page No. 41 of 47 (Dinesh Kumar/CMM/SED/ND) relevant here to reproduce Chapter 22 Rule 49 of the Punjab Police Rules, 1934, which reads as under:
"22.49 Matters to be entered in Register No. II "The following matters shall, amongst others, be entered "(c) The hour of arrival and departure on duty at or from a police station of all enrolled police officers of whatever rank, whether posted at the police station or elsewhere, with a statement of the nature of their duty.
This entry shall be made immediately on arrival or prior to the departure of the officer concerned and shall be attested by the latter personally by signature or seal.
"Note: The term Police Station will include all places such as Police Lines and Police Posts where Register No. II is maintained."
50. In the present case, no DD entry record of the leaving of the police station for inquiry and to conduct raid has been brought on record. Hence, the fact of leaving of the police station by the raiding party to conduct raid as alleged by the prosecution has come under the clouds of reasonable doubt. As already stated the public witness who could have deposed regarding the presence of the witnesses on the spot have not been examined by the prosecution which also creates reasonable doubt on the case as projected by the prosecution.
51. Further, as per the case of the prosecution and the testimonies of the relevant witnesses, the raiding party had first reached at the office of the Assistant Controller of the Exam and obtained a dummy admit card in the name of Virender Singh which was seized by SI Virender Singh vide memo State Vs. Pawan Thakur & Ors.
FIR No. 17/2002 P.S. Kalkaji Judgment dated: 20.04.2022 Page No. 42 of 47 (Dinesh Kumar/CMM/SED/ND) Ex.PW2/A. It is also the case of the prosecution that after finalisation of the deal with accused Pawan Thakur, the SI / Decoy Customer had come downstairs and, thereafter, the raid was conducted. During raid, the undertaking signed by the decoy customer and accused Pawan Thakur and 04 blank cheques handed over by the decoy customer to accused Pawan Thakur were recovered which were seized vide memo Ex.PW10/A. Thereafter, SI Virender Singh had prepared the rukka and sent for registration of FIR. The FIR was, therefore, admittedly registered after the preparation of the memos Ex. PW-2/A and Ex.PW-10/A. Accordingly, it follows that the number of the FIR would have come to the knowledge of the investigating officer only after a copy of the FIR was brought to the spot. Thus, ordinarily, the FIR number should not find mention in the seizure memo which came into existence before registration of the FIR. However, interestingly, the seizure memos bear the FIR No. of the present case. The same indicates that FIR number was mentioned on the said documents while preparing the same. Hon'ble High Court of Delhi in Pawan Kumar v. The Delhi Administration, 1989 Cri. L.J. 127, has observed in paragraph 5 as under:
"... Learned counsel for the State concedes that immediately after the arrest of the accused, his personal search was effected and the memo Ex. PW11/ D was prepared. Thereafter, the sketch plan of the knife was prepared in the presence of the witnesses. After that, the ruqa EX. PW11/F was sent to the Police State Vs. Pawan Thakur & Ors.
FIR No. 17/2002 P.S. Kalkaji Judgment dated: 20.04.2022 Page No. 43 of 47 (Dinesh Kumar/CMM/SED/ND) Station for the registration of the case on the basis of which the FIR, PW11/G was recorded. The F.I.R. is numbered as 36, a copy of which was sent to the I.O. after its registration. It comes to that the number of F.I.R. 36 came to the knowledge of the I.O. after a copy of it was delivered to him at the spot by a constable. In the normal circumstances, the F.I.R. No. should not find mention in the recovery memo or the sketch plan which had come into existence before the registration of the case. However, from the perusal of the recovery memo, I find that the FIR is mentioned whereas the sketch plan does not show the number of the FIR. It is not explained as to how and under what circumstances the recovery memo came to bear the F.I.R. No. which had already come into existence before the registration of the case. These are few of the circumstances which create a doubt, in my mind, about the genuineness of the weapon of offence alleged to have been recovered from the accused."
52. In Mohd. Hashim v. State, 1999 VI AD (Delhi) 569, the Hon'ble High Court of Delhi has observed:
"... Surprisingly, the secret information (Ex. PW7/A) received by the Sub-Inspector Narender Kumar Tyagi (PW-7), the notice under Section 50 of the Act (Ex. PW5/A) alleged to have been served on the appellant, the seizure memo (Ex. PW1/A) and the report submitted under State v. Om Prakash Section 57 of the Act (Ex. PW7/D) bear the number of the FIR (Ex. PW4/B). The number of the FIR (Ex. PW4/B) given on the top of the aforesaid documents is in the same ink and in the same handwriting, which clearly indicates that these documents were prepared at the same time. The prosecution has not offered any explanation as to under what circumstance number of the FIR (Ex. PW4/ B) had appeared on the top of the aforesaid documents, which were allegedly prepared on the spot.
This gives rise to two inferences that either the FIR State Vs. Pawan Thakur & Ors.
FIR No. 17/2002 P.S. Kalkaji Judgment dated: 20.04.2022 Page No. 44 of 47 (Dinesh Kumar/CMM/SED/ND) (Ex. PW4/B) was recorded prior to the alleged recovery of the contraband or number of the said FIR was inserted in these documents after its registration. In both the situations, it seriously reflects upon the veracity of the prosecution version and creates a good deal of doubt about recovery of the contraband in the manner alleged by the prosecution."
53. In the present case also, there is no explanation available as to how the FIR No. was mentioned on the abovementioned two documents. The same leads to only one conclusion that either the said documents were prepared later on or that the FIR had been registered earlier in point of time. In both the aforesaid cases a reasonable doubt has been raised on the case of the prosecution.
54. Further, I have gone through the undertaking allegedly executed by accused Pawan Thakur and SI Virender Singh. This document does not show that the accused had assured to provide a solved question paper. It is also possible that the said undertaking was for providing admission in management quota as claimed by the accused and also by other public witnesses. It is settled position of law that whenever there are two views possible the view which favours the innocence of the accused has to be accepted by the Court.
55. Further, the alleged cheques given by decoy customer to the accused has not been proved as per law. It is not proved as in who had written the contents of the cheques and signatures on the cheques. It is also worth noting that there State Vs. Pawan Thakur & Ors.
FIR No. 17/2002 P.S. Kalkaji Judgment dated: 20.04.2022 Page No. 45 of 47 (Dinesh Kumar/CMM/SED/ND) is an amount of Rs.7,789/- stamped on all the four cheques. Therefore, it is highly unbelievable that a prudent person would accept those cheques for an amount more than what was stamped on those cheques. It appears, on preponderance of probability, that the said articles had been planted upon the accused to solve the case.
56. The recovery of the alleged stamps from accused Shreekant and Mukesh has also come under the clouds of reasonable doubts for the aforementioned reasons. Be that as it may, the alleged stamps recovered from the possession of the accused Mukesh and Shreekant were never produced before the Court. There is no evidence on record to show that those stamps were forged stamps and not the genuine stamps. Be that as it may, the prosecution has not led any evidence to prove that the accused persons or any of the accused had intention to use those stamps fraudulently or dishonestly as required under Section 474 IPC.
57. As already discussed, there is not even a single evidence on record to show that accused Pawan Thakur, Shreekant and Mukesh Kumar were in touch with each other at any point of time. Therefore, the material on record is not sufficient to prove that they had conspired with each other to do some illegal act or some act by illegal means. It is settled position of law that disclosure statement of an accused can not State Vs. Pawan Thakur & Ors.
FIR No. 17/2002 P.S. Kalkaji Judgment dated: 20.04.2022 Page No. 46 of 47 (Dinesh Kumar/CMM/SED/ND) be used against him or against any other co-accused except under Section 27 the Indian Evidence Act.
58. In the light of the discussion herein-above, it can be safely held that the prosecution has failed to prove beyond reasonable doubts any of the charge against any of the accused. The accused can not be convicted on the basis of conjectures and surmises. The burden was on the prosecution to prove the ingredients of the offences punishable u/s 420/511/120B, Section 120-B, and Section 474/120-B IPC against the accused beyond reasonable doubts. However, it has failed to discharge the burden. The accused are entitled to the benefit of reasonable doubts. Hence, the accused are given benefit of reasonable doubts and they are hereby acquitted.
59. Bonds in terms of Section 437-A, Cr.P.C. have already been furnished by the accused persons and they shall remain in force for a period of six months from today. Pronounced in the open court on this 20 th day of April 2022.
DINESH Digitally signed by
DINESH KUMAR
(Dinesh Kumar)
KUMAR Date: 2022.04.20
20:49:57 +05'30' Chief Metropolitan Magistrate
South East, Saket Courts: New Delhi.
State Vs. Pawan Thakur & Ors.
FIR No. 17/2002 P.S. Kalkaji
Judgment dated: 20.04.2022 Page No. 47 of 47 (Dinesh Kumar/CMM/SED/ND)