Delhi District Court
Unknown vs Briefly Stated on 18 October, 2018
IN THE COURT OF METROPOLITAN MAGISTRATE-03,
SOUTH-EAST DISTRICT, SAKET COURTS, NEW DELHI
Presided by: Ms. Vasundhara Azad
State v. Sunil Kashyap etc.
FIR No. 496/06
Police Station: H.N. DIN
Under Section: 420/406 IPC
JUDGMENT
Cr Cases of the 1 87934/2016 case Date of 2 commission of 14.11.2003 offence Date of institution 3 08.06.2009 of the case Name of the 4 Ashok Kumar S/o Sita Ram complainant
1. Sunil Kashyap, S/o Dal Chand R/o Village - Kaked, Distt. Gautambudh Nagar, UP.
Present address: D-318, near Mother Name, parentage Dairy, Ganesh Nagar, Delhi - 5 and address of Proceedings abated vide order dated the accused 23.10.2015 on account of his death. persons
2. Raju @ Rajkishan S/o Chander Pal R/o D-627, Jaitpur, New Delhi.
Offence 6 complained or U/s. 420/406/34 IPC proved 7 Plea of accused Pleaded not guilty persons 8 Final order Acquitted 9 Date of final order 18.10.2018 Facts
1. Briefly stated, it the case of prosecution that on 14.11.2003, accused persons Sunil Kashyap and Raju in furtherance of their common intention induced the complainant Ashok Kumar to give them a loan of Rs. 5.15 Lacs which they failed to returned to the complainant and that they also issued cheques from the account of one Mr. Amit Kumar in order to repay this loan knowing very well that this account does not belong to them and that the said cheques were dishonored due to insufficiency of funds. Consequently, wrongful loss has been caused to the complainant and wrongful gain has been caused to both Sunil Kashyap and Raju.
2. After conclusion of investigation, the present challan u/s 420/406 IPC was filed against both the said accused persons.
3. In compliance of Section 207 CrPC., copy of challan and the documents annexed therewith were supplied to both the accused persons. Prima-facie charge under Section 420/406/34 IPC was made out against both the accused persons and accordingly, on 22.07.2033 charge was framed. Accused persons pleaded not guilty and claimed trial to the said charge. Thereafter, the case proceeded for prosecution evidence.
Evidence
4. Prosecution has examined in total 7 witnesses in order to bring home the guilt of the accused persons:
5. (i) PW1 Ashok Kumar has deposed that on 14.11.2003, accused Raju and Sunil Kashyap came to him alongwith money bond and asked him to keep the said money bond as security for a loan of Rs. 5.15 lacs in their favour. PW1 has stated that he agreed to give accused persons the aforementioned loan amount with the condition that they would repay the loan amount within one year with interest @ 18% per annum. However, it is stated by PW1 that the accused persons neither repaid the principal amount nor interest amount to him. PW1 has also deposed that accused persons gave him 5 cheques of Canara Bank which bore the signature of Sunil Kashyap which were later found to be belonging to Sh. Amit Kumar and ultimately dishonored on account of insufficiency of funds. PW1 has proved his complaint Ex.PW1/A, arrest memo of accused Sunil Kashyap as Ex. PW1/B, personal search memo of accused Sunil Kashyap as Ex.PW1/C and disclosure statement of accused Sunil Kashyap as Ex.PW1/D. In his cross-examination, PW1 has stated that the money bond Ex.P1 does not bear the signature of accused Raju and he had admitted the suggestion that no evidence has been found against Raju by the police.
(ii) PW2 Asha Devi has deposed that her brother Sunil Kashyap had taken a loan from someone and to her knowledge, her brother Sunil Kashyap has returned the loan amount to said person. She has also deposed that her brother Sunil Kashyap had taken five unsigned cheque leaves from her house and the same cheque leaves have not been returned by accused Sunil Kashyap despite repeated requests. She has further deposed that it was on the basis of afore mentioned 5 unsigned cheques that the accused obtained loan and that to her knowledge all the loan amount has been returned.
(iii) PW3 ASI Jitender has deposed with respect to arrest and personal search of accused Sunil Kashyap vide memo Ex.PW1/B and Ex.PW1/C respectively.
(iv) PW4 Rakesh Singh, Branch Manager, Canara Bank has proved the bank statement of account holder of Amit Kumar for the period between 07.02.2003 to 21.08.2017 as Ex.PW4/A.
(v) PW5 Ct. Anil has deposed that he alongwith ASI Jitender and complainant Ashok Kumar went to house of Amit Kumar situated at Hauz Khas where accused Sunil Kashyap was arrested and his personal search was conducted.
(vi) PW6 ASI Dinesh Tyagi has proved the FIR registered by him as Ex.PW6/A
(vii) PW7 SI Kuldip Singh is the IO in the present case. He has deposed with respect to investigation done by him. PW7 has essentially proved the seizure memo with respect to money bond handed over by the complainant as Ex.PW7/A, specimen signature of complainant as Ex.PW7/B and PW7/C, specimen signature of accused Sunil Kashyap as Ex.PW7/D, money bond as Ex.PW7/E and complaint u/s. 156(3) Cr.PC as Ex.PW7/F.
6. Proceedings against accused Sunil Kashyap were abated vide order-dated 23.10.2015 on account of his death.
7. Thereafter, statement of accused Raju was recorded u/s. 313 Cr.P.C on 06.11.2017 wherein he denied all the evidence, which was put to him and stated that he has been falsely implicated by the complainant. Accused Raju did not lead any defence evidence.
Arguments
8. I have heard Ld. APP for the State and Ld. counsel for accused Raju. I have carefully perused the case file. Ld. APP for State has submitted that the prosecution has succeeded in proving its case against accused Raju beyond reasonable doubt. On the other hand Ld. counsel for accused Raju has submitted that prosecution has failed to prove its case against the accused as the case of prosecution suffers from material infirmities and contradictions.
Analysis
9. Offence under Section 420 IPC pre-supposes that dishonest inducement/ representation has been made and acting upon the same, the opposite party/victim had parted with valuable consideration that caused wrongful loss to the victim and wrongful gain to the accused. With respect to offence punishable under Section 406 IPC, it is clear that Section 406 IPC is the punishing section for the commission of offence of criminal breach of trust under Section 405 IPC. Section 405 IPC defines criminal breach of trust as- I) entrusting any person with property, or with any domination over property II) that person (a) dishonestly misappropriates or converts to his own use that property, or
(b) dishonestly uses or disposes of that property or willfully suffers any other person so to do in violation of (i) any direction of law prescribing the mode in which such trust is to be discharged, or (ii) of any legal contract, express or implied, which he has made touching the discharge of such trust.
10. After careful perusal of the record and on consideration of the arguments advanced by ld. APP and ld. Counsel for the accused, I am of the considered view that there is no clinching evidence against accused Raju in order to hold him guilty of offences under Ss. 420/406 IPC. No evidence other than the testimony of PW1 supports the vey factum of taking of loan by the accused Raju. Corroboration on this point is essential to bring home guilt of accused Raju since although the money bond Ex PW7/E which highlights that loan has been taken by the accused persons from the complainant /PW1 and the exact rate of interest at which the accused persons are required to repay the loan amount of Rs. 5.15 lakhs to the complainant is in the name of both the accused persons, the same only bears the signature of accused Sunil Kashyap and not the signature of accused Raju. Further, PW1 in his testimony has unequivocally deposed that he does not have any documentary proof-containing signature of accused Raju that would reflect that he had taken loan from the complainant since the money bond in question only bears the signature of accused Sunil Kashyap. Additionally, PW1 has also admitted in his cross-examination that during investigation in the current matter, the police found no evidence against accused Raju.
11. PW7 SI Kuldeep Singh who is the IO in this case has also stated that during investigation, he never contacted or interrogated accused Raju or obtained his specimen signature for the purpose of sending the same to FSL as the money bond in question Ex PW7/E does not bear signature of accused Raju.
12. The cardinal principle of the criminal law is that the accused is presumed to be innocent till he is proved guilty, beyond any reasonable doubt. The burden of proving the guilt of the accused exclusively lies on the prosecution and the prosecution is required to stand on its own legs. The benefit of doubt, if any, must go in favour of the accused. Prosecution is under a legal duty to prove each ingredient of offence with which accused has been charged with beyond reasonable doubt. In the present matter, it can be safely observed that no evidence is brought on record to prove the guilt of the accused. In the light of the above discussion prosecution has not been able to prove its case against the accused beyond reasonable doubt. Therefore, accused Raju is acquitted from the charges framed against him.
Conclusion
13. In absence of any sufficient proof against accused Raju that would prove his guilt in the said case to the hilt, in my considered opinion, no offence u/s 420/406 is made out against accused Raju.
14. Accordingly, accused Raju is given benefit of doubt and is acquitted of offences under S. 420/406 IPC. File be consigned to Record Room.
Let copy of this judgment be placed on the District Court website. Announced in open Court on 18.10.2018.
(VASUNDHARA AZAD) Metropolitan Magistrate-03 (South-East), Saket Courts, New Delhi