Delhi District Court
State vs . on 11 April, 2023
IN THE COURT OF METROPOLITAN MAGISTRATE-06,
SHAHDARA, KARKARDOOMA COURTS,
DELHI
Presided over by- Sh. Ankur Panghal, DJS
Cr. Case No. -: 2328/2017
CNR No. -: DLSH020057632017
FIR No. -: 41/2012
Police Station -: M.S.Park
Section(s) -: 408 IPC
In the matter of -
STATE
VS.
NAVEEN KUMAR
S/o Rajender Singh,
R/o H.No. 188, Village- Pandwala Khurd,
Delhi.
.... Accused
1. Name of Complainant :- Sonu Aggarwal
2. Name of Accused :- Naveen Kumar
3. Offence complained of or :- 408 IPC
proved
4. Plea of accused :- Not Guilty
5. Date of Commission of offence :- 01.03.2012
6. Date of Filing of case :- 07.03.2013
7. Date of Reserving Order :- 21.03.2023
8. Date of Pronouncement :- 11.04.2023
9. Final Order :- Convicted
Argued by -: Sh. Parmod Kumar, Ld. APP for
the State.
Mr. Braj Kumar, Ld. LAC for the accused.
ANKUR
PANGHAL
Digitally signed by
ANKUR PANGHAL
Date: 2023.04.11
18:23:05 +05'30'
Cr. Case No. 2328/2017 State vs Naveen Kumar Page 1 of 26
JUDGMENT
BRIEF STATEMENT OF REASONS FOR THE DECISION FACTUAL MATRIX
1. Briefly stated, the case of the prosecution against the accused is that the complainant is having a small business of transport and he had given his car make Mahindra Xylo bearing registration number UP-16-AT-4193 on hire to Ericson Company for carrying its employees. The said car was being driven by accused, namely Naveen Kumar, who used to take employees of abovesaid company from Noida to Gurgaon and drop the car at house of complainant, in evening. On 01.03.2012, the accused had taken above stated car at 05:00 am and came back with said car, at the house of accused, in evening on same day and accused told the complainant that he is taking the car for having dinner and will drop the car, after having dinner. When complainant called upon the phone number of accused, accused stated that he is coming in a while but despite repeated calls accused did not came back to the house of complainant along with above stated car. As such, it is alleged that the accused has dishonestly misappropriated and converted to his own use the property of complainant and has thereby committed the offence punishable under Section 408 of the Indian Penal Code (hereinafter, "IPC"), for which FIR No. 41/2012 was registered at the Police Station M.S.Park.
INVESTIGAION AND APPEARANCE OF ACCUSED
2. After registration of FIR, the investigating officer ANKUR Digitally signed by ANKUR PANG PANGHAL (hereinafter 'IO') conducted investigation and took NBWs Date: 2023.04.11 HAL 18:23:36 +05'30' Cr. Case No. 2328/2017 State vs Naveen Kumar Page 2 of 26 against the accused, which were not executed and subsequently proceedings under section 82 of The Code of Criminal Procedure, 1973, were initiated against the accused. The accused was apprehended at PS Chawla and subsequently arrested. Upon enquiry from the accused, accused made a disclosure statement that he had sold the above-stated car to a person named Nonu, whose address he does not know. On culmination of the same, chargesheet against the present accused was filed. After taking cognizance of the offence, the accused person was summoned to face trial. The accused appeared in court and he was supplied the copies of documents relied upon in the charge sheet in terms of section 207 of the Code of Criminal Procedure, 1973 (hereinafter, "CrPC").
3. On a finding a prima facie case against the accused, a charge was framed for the offence punishable U/s 408 IPC against the accused on 09.05.2013. The accused pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
4. During the trial, prosecution led the following oral and documentary evidence against the accused to prove its case beyond reasonable doubt: -
ORAL EVIDENCE PW1 :- HC Rakesh Kumar (Duty Officer) PW2 :- Sonu Aggarwal (Complainant) PW3 :- Preeti Aggarwal (Registered owner of Car bearing registration no. UP-16-AT-4193) PW4 :- Ct. Amit (Accompanied IO to PS Chawla) PW5 :- ASI Vijay Kumar (Went to Meerut for recovery of car in question along with SI Sachin) PW6 :- Manish Sharma (Neighbour of PW-3) ANKUR Digitally by ANKUR signed PANG PANGHAL PW7 :- SI Sachin Kumar Verma (IIIrd IO) Date:
2023.04.11 HAL 18:23:46 +05'30' Cr. Case No. 2328/2017 State vs Naveen Kumar Page 3 of 26 PW8 :- SI Manoj Kumar (IInd IO) PW9 :- Hari Om Maurya (To prover particulars of vehicle in question) PW10 :- Girish Sharma (Neighbour of PW-3) PW11 :- Ajay Yadav (Public witness) PW12 :- SI Kapil Khokhar (Ist and IVth IO) PW13 :- RajenderSingh (Father of accused to prove the proceedings under section 82 of The Code of Criminal Procedure, 1973) DOCUMENTARY EVIDENCE Ex. PW1/A :- FIR No. 41/12 PS M.S.Park and Ex.
PW12/B Ex. PW1/B :- Endorsement on Rukka by PW1 Ex. PW2/A :- Statement of complainant Ex. P1 :- Notice U/s 133 MV Act Ex. P2 :- Reply by PW3 of notice U/s 133 MV Act Ex. P3 :- Bail bonds of accused in FIR no. 22/12 PS Sunlight Colony U/s 323/341 IPC (objected to its mode of proof by the accused)
Ex. PW4/A :- Disclosure statement of accused Ex. PW4/B :- Arrest memo of accused Ex. PW4/C :- Personal search memo of accused Ex. PW5/A :- Supplementary statement of accused Ex. PW8/A :- DD bearing no. 14B dt. 06/01/13 PS M.S. Park Ex. PW9/A :- Copy of particulars of vehicle baring no.
UP-16-AT-4193 Ex. PW12/A :- Endorsement by PW12 on Ex. PW2/A Ex. PW12/C :- Site Plan
5. Sonu Kumar (PW-2) in his examination in chief stated on oath that in month of April, 2011 his sister purchased one car make Xylo Mahindra bearing registration no. UP-16-AT-4193. He further deposed that they had given that car on hire to Ericsson company for carrying their employees as cab ANKU Digitally signed by service. The car was being driven by a driver namely Naveen R ANKUR PANGHAL PANG Date:
2023.04.11 18:23:57 HAL +05'30' Cr. Case No. 2328/2017 State vs Naveen Kumar Page 4 of 26 Kumar. The accused was correctly identified by witness in court. He further deposed that, accused was employed by them and accused used to take the employees from Noida to Gurgaon and from Gurgaon, he used to bring them back to Noida. The car was being parked at their house in the night. On 01.03.2012, accused had taken the car, as per routine, and he came back from Noida in the evening at about 7 PM. Accused told sister of complainant that he is taking the car for having dinner and after having dinner, he will drop the car. PW2 further deposed that when he called the accused, he said that he is coming in a while and despite repeated calls, accused did not come back to the house and he was giving evasive answers. On the next day, they informed the police by calling at 100 number and thereafter they went to police station. His statement Ex. PW2/A, bearing his signature at point A, was recorded and police searched for above-stated car but in vain. PW2 produced certified copy of FIR No. 22/2012 U/s 323/341 IPC PS Sun Light Colony, in which his sister was served notice U/s 133 M.V. Act Ex. P1 to disclose about the onwer of vehicle bearing registration number UP-16-AT-4193. He further deposed that his sister had given reply Ex. P2 that said car was being driven by accused. PW-2 had identified the signatures of his sister at point A on Ex. P2. He further deposed that he stood surety for accused in FIR no. 22/2012 and bail bonds of accused are Ex. P3. (Objection was raised on behalf of accused regarding the mode of proof as neither the witness is executed of the document not the same were filed with the chargesheet and it was mentioned by Ld. predecessor that objection shall be considered at the final stage of argument.) 5.1. PW-2 was cross-examined by the accused person wherein he deposed that the accused was employed by his ANKUR Digitally signed by Cr. Case No. 2328/2017 State vs Naveen Kumar Page 5 of 26 PANG ANKUR PANGHAL Date: 2023.04.11 18:24:06 +05'30' HAL sister on 03.10.2011 and he used to grow a salary of ₹ 11,000/-
per month. He further deposed that accused used to reside in Najafgarh and used to come at the house of complainant at around 5 AM. He further deposed that accused used to come back with the vehicle at about 8-8:30 PM. He further deposed that accused used to go back home immediately and accused met him on the date of incident in evening at around 8:30 - 8:40 PM. He denied the suggestion that accused had demanded his salary and he refused to pay the same. He further denied the suggestion that he had told the accused that he will not give the salary prior to 7th of the month. He also denied the suggestion that accused told him that in case, he does not pay him the salary, he will not come for the job. He also denied the suggestion that he had given ₹ 3000/-to the accused as advance. PW2 further deposed that he did not employ any other driver when accused had come on the next day for the job. He denied the suggestion that he had asked the accused to collect the salary in two or three days, as he was no more required for the job. He also denied the suggestion that on 3rd March or 4th March accused had come to demand his remaining salary but he refused to entertain the accused. PW2 also denied the suggestion that he did not tell the accused about theft of car. PW2 voluntarily stated that since accused never came back, therefore, there is no question of telling the accused about theft of car. He further denied the suggestion that accused demanded his salary again on 06.03.2012 and he refused to pay and also threatened him that in case he come again, he shall implicate him in false case. PW2 stated that his car was installed with GPS system and because of trust, he handed over the vehicle to accused. He further deposed that accused had stated ANKU Digitally signed by that he wanted to go and have dinner and that is why, he had R ANKUR PANGHAL PANG Date:
2023.04.11 18:24:18 Cr. Case No. 2328/2017 State vs Naveen Kumar Page 6 of 26 HAL +05'30' given him the car. He denied the suggestion that accused had not stated to him that he wanted the car for going to have dinner. He also denied the suggestion that accused had parked the car and handed over the same to him on the day of incident. He also denied the suggestion that the fact of accused having stated that he wanted the car for having dinner is concocted story as accused used to leave for Najafgarh. He further deposed that accused never stayed with them and there is no fixed time when PW2 would come back from his duties.
5.2. Thereafter, vide order dated 17.09.2019 matter was fixed for final arguments and thereafter, an application U/s 311 CrPC, filed on behalf of accused, was allowed with respect to PW2. PW2 was subsequently further cross-examined on 06.03.2020, wherein he deposed that accused did not take the vehicle without informing them except prior to the date of incident of present case. He further deposed that he does not remember as to what salary was being paid to the accused and he voluntarily stated that long span of time has elapsed. He further deposed that GPS was also installed in his vehicle. He denied the suggestion that he have not paid the salary to accused for last seven months and when he demanded the same, he had falsely implicated accused in present case.
6. Preeti Aggarwal (PW-3) was examined-in-
chief on 03.08.2013, who deposed that she is the registered owner of UP-16-AT-4193 Xylo Mahendra and she had identified the accused in court. She further deposed that accused was the driver of said vehicle. She further deposed that she had purchased the said vehicle on loan from L&T Bank, Noida and she had paid the instalment of the same. She thereafter deposed that she had ANKUR Digitally signed by ANKUR PANG PANGHAL Date:
2023.04.11 Cr. Case No. 2328/2017 State vs Naveen Kumar Page 7 of 26 HAL 18:24:30 +05'30' handed over the vehicle to her brother Mr. Sonu Aggarwal, who is running a business of transport. She handed over the copy of RC to IO and her statement was recorded.
6.1. PW3 was cross-examined by Ld. Counsel for accused wherein she deposed that accused was appointed as a driver by her and she had taken particulars of the accused regarding address. Accused was living in Delhi at Najafgarh, as stated by the accused and her brother had verified the same. The GPS system was installed in her vehicle and accused used to come in morning from Najafgarh. Accused was living in Najafgarh in a rented house. She further deposed that she cannot tell where accused used to go after completing his duty. She further deposed that accused used to come in evening and park the vehicle at her house at about 8:15 PM. She further deposed that accused used to hand over the car to her brother namely Sonu Aggarwal and accused was paid salary by her brother. She further deposed that salary of accused was ₹ 12,000/- approximately. She further stated that she does not remember mobile number of accused and she used to return house from office after 9 PM. She further deposed that accused used to meet her at her office in Gurgaon. She further stated that on 01.03.2012, no conversation took place in her presence between accused and her brother. She stated that call details of accused might have been collected by the IO. Her statement was recorded at once and she has no knowledge whether accused was dismissed from his job by her brother on 01.03.2012 in evening. She denied the suggestion that she is deposing falsely or that the ANKU car has been stolen from a house and accused has been falsely R Digitally signed by ANKUR PANGHAL PANG Date: 2023.04.11 implicated in the present case. HAL 18:24:41 +05'30' Cr. Case No. 2328/2017 State vs Naveen Kumar Page 8 of 26 6.2. Thereafter, vide order dated 17.09.2019 matter was fixed for final arguments and thereafter, an application U/s 311 CrPC, filed on behalf of accused, was allowed with respect to PW3. PW3 was subsequently further cross-examined on 06.03.2020, wherein she deposed that they used to pay the salary of accused in cash. She further deposed that no agreement between them and the accused was ever executed in terms of his job with them. She further deposed that the aforesaid car was attached with Ericsson company, Gurgaon and an agreement for attachment of their car with Ericsson company was executed. She further deposed that said agreement was executed between her brother and the company. She further stated that she has not provided copy of any such agreement to IO. She voluntarily stated that same was not asked for. She further deposed that as per her knowledge, accused picked the employees of aforesaid company from Gurgaon and used to drop them in Noida. She further deposed that accused was having a valid driving license, when he was engaged by them. She denied the suggestion that they have not paid salary to the accused for last seven months and when accused demanded his salary, they have falsely implicated the accused in present case.
7. Manish Sharma (PW-6) stated in his examination in chief that he did not say anything to the police and Preeti Aggarwal is his neighbour. He further deposed that Preeti Aggarwal was having a Xylo Car no. UP-16-AT-4193.
7.1. PW-6 was cross-examined by Ld. APP for state wherein he denied the suggestion that he gave statement to police or that he is deposing falsely as he has been won over by ANKUR Digitally signed by ANKUR PANGH PANGHAL the accused. AL Date: 2023.04.11 18:24:50 +05'30' Cr. Case No. 2328/2017 State vs Naveen Kumar Page 9 of 26 7.2. PW-6 was not cross-examined by accused despite opportunity being given in that regard.
8. Hari Om Maurya (PW-9) deposed that he has been deputed by ARTO, G.B. Nagar, Noida, UP to depose on behalf of him and he had exhibited the particulars of vehicle number UP- 16-AT-4193 as Ex. PW-9/A 8.1. PW-9 was not cross-examined by the accused despite opportunity being given in this regard.
9. Girish Sharma (PW-10) in his examination-in- chief deposed that he does not of anything about the case but he knows the accused and he has correctly identified the accused in court.
9.1. PW-10 was cross-examined by Ld. APP for the state as he was resiling from the statement given by him to the police. He denied the suggestion that IO had enquired from him regarding the vehicle bearing number UP-16-AT-4193, which was in the name of his neighbour Preeti Aggarwal and driver of the same was accused. He denied the suggestion that accused was driving above stated vehicle since 2014. He also denied the suggestion that accused used to take above stated vehicle in morning and drop the vehicle in evening. He thereafter deposed that he cannot say if Preeti Aggarwal had given her vehicle in some Gurgaon Company on monthly basis. PW-10, again said, if on 01.03.2012, accused had taken above said vehicle from the house of Preeti Aggarwal but he had not come along with vehicle in evening. He denied the suggestion that he had been won over by the accused and has a settled this matter ANKU Digitally signed by R ANKUR PANGHAL outside the court. PANG Date:
2023.04.11 18:25:02 HAL +05'30' Cr. Case No. 2328/2017 State vs Naveen Kumar Page 10 of 26 9.2. PW-10 was not cross-examined by accused despite opportunity being given in that regard.
10. Ajay Yadav (PW-11) was examined-in-chief wherein he deposed that he is a farmer and accused is the younger brother of his brother-in-law (jija) namely Lehri @ Nehru. He further deposed that accused was a driver and in the month of May, 2012, accused came with Xylo vehcile but he does not remember the registration number. He further deposed that above said Xylo vehicle was a commercial vehicle and accused told him that he wants to dispose of the above said vehicle upon which he told the accused that Galat kaam ka Natija hota hai, upon which accused started using unparliamentary language with him. Thereafter, accused went with above said vehicle. Accused was correctly identified by the witness in court.
10.1. PW-11 was not cross-examined by accused despite opportunity being given in that regard.
11. SI Manoj Kumar (PW-8) was examined-in-chief, who is the second IO of present case, who deposed that on 06.01.2013, he was posted at PS MS Park as SI. On that day, case file was marked to him for further investigation from SHO concerned. After perusal of record, one DD entry bearing no. 14 B Ex. PW8/A was made and it was mentioned on said DD entry that accused has been detained in the PS Chawla, Delhi. Accordingly, he along with Ct. Amit went to PS Chawla. After formal interrogation from accused, they along with accused came back at the PS and interrogated the accused. Accused was arrested wide arrest memo Ex. PW4/B. Thereafter, disclosure statement of accused was recorded Ex. PW4/A. Medical Digitally ANKUR signed by ANKUR Cr. Case No. 2328/2017 State vs Naveen Kumar Page 11 of 26 PANG Date:
PANGHAL HAL 18:25:18 2023.04.11 +05'30' examination of accused was conducted and accused was sent to lock up of PS. Case file was handed over to SHO concerned and accused was correctly identified by the witness in court. He further deposed that his statement was recorded by IO SI Kapil on 13.01.2013.
11.1. PW-8 was not cross-examined by accused despite opportunity being given in that regard.
12. SI Sachin Kumar Verma (PW-7) was examined-
in-chief, who is the third IO of present case, wherein he deposed that on 07.01.2013, he was posted at PS MS Park as SI. On that day, case file was marked to him from SHO concerned. He along with CT. Jitendra produced the accused before court and moved an application for two days PC for the purpose of recovering the case property. Thereafter, one day PC was granted and after medical examination of accused, they took the accused to Meerut for recovery of case property. When they covered the distance of 25-30 KMs, accused disclosed that he had made false disclosure statement and had again disclosed that he had sold the above said case property to one Nanu. Thereafter, he recorded supplementary statement of accused Ex. PW5/A. Thereafter, they came back at PS and accused was put behind the lock up. On 08.01.2013, accused was produced before the court and an application for seeking two days PC was moved and one day PC was granted. Thereafter, he got further medical examination of accused conducted and went to Shankar Chowk, Gurgaon, Haryana, where he along with accused searched the above said Nanu and case property but no clue was found. Thereafter they came back at PS. On 09.01.2013, again he along with accused ANKUR went to Shankar Chowk, Gurgaon, Haryana but nothing was PANGHAL Digitally signed by Cr. Case No. 2328/2017 State vs Naveen Kumar Page 12 of 26 ANKUR PANGHAL Date: 2023.04.11 18:25:30 +05'30' recovered. Thereafter, he got the medical examination of accused conducted and produced him before the court. Witness has correctly identified the accused in court.
12.1. PW-7 was not cross-examined by accused despite opportunity being given in that regard
13. SI Kapil Khokhar (PW-12) was examined-in- chief, being the first and fourth IO of present case, who deposed that on 02.03.2012, he was posted at PS MS Park as SI and on that day, he was present on duty during which DD No. 29A dt, 02.03.2012 was assigned to him for investigation pursuant to which he along with CT. Suresh went to house no. 1/4649/92A, Gali No. 3, New Modern Shahdara, Delhi. There complainant appeared and narrated him the entire incident regarding the fact that his driver had left with his vehicle on 01.03.2012 and did not turn up till then. He was searching for him here and there. Complainant stated that he will make his statement later. After five days, on 07.03.2012 complainant came to him at PS and gave his statement Ex. PW2/A and he made endorsement on the statement of complainant Ex.PW12/A. He got FIR registered with DO. Thereafter, he visited the spot and prepared the site plan Ex. PW12/C. Complainant told him that his vehicle was registered in the name of his real sister namely Preeti Aggarwal. He further deposed that he recorded the statement of Preeti Aggarwal. He thereafter stated that accused could not be traced out despite best efforts made on his part. He got NBW issued against the accused and thereafter proceedings U/s 82 CrPC were also initiated against the accused. On 06.01.2013, he was on ANKUR leave and it was informed to the DO that accused has been PANGHAL Digitally signed by detained in PS Chawla in some criminal proceedings against him. ANKUR PANGHAL Date: 2023.04.11 18:25:42 +05'30' Cr. Case No. 2328/2017 State vs Naveen Kumar Page 13 of 26 Thereafter, the investigation of present case was marked to SI Manoj Kumar, who proceeded with the matter accordingly. Accused was brought to PS MS Park. The further investigation of case was marked to SI Sachin Kumar on 11.01.2013, the investigation of present case was again marked to him and he recorded statement of SI Sachin and SI Manoj Kumar on 13.01.2013. He recorded the statement of other witnesses also. The stolen vehicle could not be recovered during investigation. He identified the accused in court.
13.1. PW-12 was cross-examined by Ld. Counsel for accused wherein he deposed that he does not remember the exact time of receipt of information regarding the incident of present case. He further stated that name of Mukesh as mentioned in the chargesheet is due to inadvertent error. He further deposed that no Mukesh is concerned with the alleged incident. He thereafter stated that photo copy of RC of stolen vehicle has been placed on record and physical verification from authority concerned was made in this regard. He thereafter stated that he had verified the fact that stolen car was hired by Ericsson company but no documentary evidence was collected in this regard. He denied the suggestion that no such incident had taken place or that he had not carried out proper investigation of the case or that he is deposing falsely.
14. Rest of the prosecution witnesses supported the case of the prosecution and proved the documents mentioned in the table above.
STATEMENT OF ACCUSED
15. Thereafter, before the start of defence evidence, in ANKU Digitally signed by R ANKUR PANGHAL order to allow the accused to personally explain the incriminating PANG Date:
2023.04.11 18:25:54 HAL +05'30' Cr. Case No. 2328/2017 State vs Naveen Kumar Page 14 of 26 circumstances appearing in evidence against him, the statement of accused was recorded without oath on 17.09.2019 under section 313 CrPC in which he has accepted that he being the driver of complainant was entrusted with Mahindra Xylo Car bearing registration no. UP-16-AT-4193 and further stated that he is innocent and he has been falsely implicated in the present case. He further stated that on 27.02.2012, he was in need of money and as such he had requested to his employer to pay Rs. 3500/- for his personal use. His employer had stated that he will adjust the aforesaid part payment of Rs. 3500/- from his salary. Thereafter, he left for Mathura, UP. Thereafter, he was informed by complainant that somebody had taken away his Xylo car. He had responded that he is in Mathura. He was informed by his family members that some FIR has been registered against him for theft of some vehicle. He stated that he has not committed any offence.
15.1. Thereafter, supplementary statement of accused was recorded U/s 313 CrPC without oath on 25.01.2023 with respect to the incriminating circumstances appeared against him in further cross-examination of PW-2 and PW-3, after application U/s 311 of accused was allowed.
He stated that he is innocent and has been falsely implicated in present case. He further stated that he does not want to lead any defence evidence and matter was listed for final arguments. ARGUMENTS
16. I have heard the Ld. APP for the state and Ld. counsel for the accused at length. I have also given my ANKUR thoughtful consideration to the material appearing on record. PANGHAL Digitally signed by ANKUR PANGHAL Date: 2023.04.11 18:26:10 +05'30' Cr. Case No. 2328/2017 State vs Naveen Kumar Page 15 of 26
17. It is argued by the Ld. APP for the state that all the ingredients of the offence are fulfilled in the present case. He has argued that the prosecution witnesses have categorically deposed against the accused. It is argued by Ld. APP that PW-11, is a relative of accused and he had also deposed against the accused, who testimony has remained unchallenged by the accused. It is further argued by Ld. APP for the state that the complainant i.e., PW-2 had supported the story of prosecution completely. It is further submitted by Ld. APP for the state that no-where in cross- examination of PW-2 it is denied that accused did not take permission from the complainant. He contends that the accused is liable for the offence. He has argued that oral as well as documentary evidence has proved the offence beyond reasonable doubt. As such, it is prayed that accused be punished for the said offence.
18. Per contra, Ld. counsel for the accused has argued that the state has failed to establish its case beyond reasonable doubt. Ld. counsel submits that the accused has been falsely implicated by the complainant. It is submitted by the Ld. Counsel for accused that salary of accused was due. It is submitted on behalf of accused that case property has not been recovered from the accused. It is further submitted that complainant has lodged a false FIR against the accused and there is no CCTV footage of the incident. It is further submitted that whole prosecution story is based upon disclosure statement of accused. It is further submitted that PW-6 and PW-10 are two public witnesses who have turned hostile to the case of prosecution. Ld. Counsel has further submitted that there are material deficiencies in the case of the prosecution. It is further submitted that accused has been ANKUR Digitally signed by ANKUR PANG PANGHAL Date: 2023.04.11 HAL 18:26:22 +05'30' Cr. Case No. 2328/2017 State vs Naveen Kumar Page 16 of 26 falsely implicated in the present case. As such, it is prayed that accused be acquitted of the said offence.
INGREDIENTS OF THE OFFENCE
19. The accused has been charged for the offence under Section 408 IPC. Section 408 IPC prescribes punishment for criminal breach of trust by clerk or servant. However, section 408 IPC does not define criminal breach of trust. Criminal breach of trust is defined U/s 405 IPC. Section 408 IPC provides that if a clerk or servant was entrusted with any property and commits criminal breach of trust with respect to that property, he shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
20. It would be appropriate to reproduce sections 405 & 408 of IPC, which are as follows:
"405. Criminal breach of trust.--Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits "criminal breach of trust".
Explanation 1.--A person, being an employer of an estab- lishment whether exempted under section 17 of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 (19 of 1952), or not who deducts the employee's contribution from the wages payable to the employee for credit to a Provident Fund or Family Pension Fund established by any law for the time being in force, shall be deemed to have been entrusted with the amount of the contribution so deducted by him and if he makes default in the payment of such contribution to the said Fund in violation of the said law, shall be deemed to have dishonestly used the amount of the said contribution in violation of a direction of law as aforesaid.
Explanation 2.--A person, being an employer, who deducts the employees' contribution from the wages payable to the employee for credit to the Employees' State Insurance Fund held and Digitally signed ANKUR byPANGHAL ANKUR Cr. Case No. 2328/2017 State vs Naveen Kumar Page 17 of 26 PANG Date:
2023.04.11 HAL 18:26:32 +05'30' administered by the Employees' State Insurance Corporation established under the Employees' State Insurance Act, 1948 (34 of 1948), shall be deemed to have been entrusted with the amount of the contribution so deducted by him and if he makes default in the payment of such contribution to the said Fund in violation of the said Act, shall be deemed to have dishonestly used the amount of the said contribution in violation of a direction of law as aforesaid.
408. Criminal breach of trust by clerk or servant.--Whoever, being a clerk or servant or employed as a clerk or servant, and being in any manner entrusted in such capacity with property, or with any dominion over property, commits criminal breach of trust in respect of that property, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."
21. In order to prove the offences punishable under section 408 IPC, the prosecution has to prove beyond reasonable doubt, the following mandatory ingredients, viz., i. That there should be an entrustment by one person to another of the property (movable or immovable), or with any dominion over property;
ii. that such entrustment must be in the trust; iii. that there must have been a misappropriation or conversion to his own use by the person who received the property in trust;
iv. that such conversion or retention of the property must be against or in violation of nay direction, or law prescribing the mode in which such trust is to be discharged, or of any legal contract made touching the discharge of such trust, and v. that the person who received the property in trust has received it being a clerk or servant or employed as clerk or servant.
22. Section 405 IPC uses the word "entrusted". The IPC does not define this term. However, the ambit of this ANKUR Digitally signed term has now been settled by judicial pronouncements of by ANKUR PANG PANGHAL Date: 2023.04.11 HAL 18:26:47 +05'30' Cr. Case No. 2328/2017 State vs Naveen Kumar Page 18 of 26 superior courts. The Hon'ble Apex Court in the three judges bench case of Som Nath Puri vs. State of Rajasthan (1972) 1 SCC 630 has observed, inter alia, as under:
"7. .... Section 405 merely provides, whoever being in any manner entrusted with property or with any dominion over the property, as the first ingredient of the criminal breach of trust. The words 'in any manner' in the context are significant. The section does not provide that the entrustment of property should be by someone or the amount recieved must be the property of the person on whose behalf it is received. As long as the accused is given possession of property for a specific purpose or to, deal with it in a particular manner, the ownership being in some person other than the accused, he can be said to be entrusted with that property to be applied in accordance with the terms of entrustment and for the benefit of the owner..."
23. The five judges' bench of Apex Court in case titled as Chelloor Mankkal Narayan Ittiravi Nambudiri vs. State of Travancore-Cochin (1952) 2 SCC 392 observed as under:
"23. .... As laid down in Section 385, Cochin Penal Code, (corresponding to Section 405, Indian Penal Code) to constitute an offence of criminal breach of trust it is essential that the prosecution must prove first of all that the accused was entrusted with some property or with any dominion or power over it. It has to be established further that in respect of the property so entrusted, there was dishonest misappropriation or dishonest conversion or dishonest use or disposal in violation of a direction of law or legal contract, by the accused himself or by someone else which he willingly suffered to do. It follows almost axiomatically from this definition that the ownership or beneficial interest in the property in respect of which criminal breach of trust is alleged to have been committed, must be in some person other than the accused and the latter must hold it on account of some person or in some way for his benefit..."
24. The Hon'ble High Court of Bombay in case titled as State vs Dahyalal Dalpatram 1959 SCC Online Bom 1 held as under:
"11. ... But evidently S. 405 of the Penal Code, 1860 does not contemplate that the property in respect of which an offence of ANKUR Digitally by ANKUR signed criminal breach of trust may be committed must be property PANG Date:
PANGHAL 2023.04.11 HAL 18:27:00 +05'30' which belonged to the complainant. Provided there is Cr. Case No. 2328/2017 State vs Naveen Kumar Page 19 of 26 entrustment of property, it matters little whether the complainant on whose behalf the property is entrusted is the owner thereof or not...."
Thus, entrustment implies custody or management of property for some purpose but it does not imply conferring of any propitiatory right and the person entrusting the property need not be the owner of said property.
25. Another ingredient of the offence defined U/s 405 IPC is that the accused had dishonestly misappropriated/converted/used/disposed property in question. The mens rea required for the offence defined U/s 405 IPC is dishonest intention. The word "dishonest" has been defined U/s 24 of IPC as:
"24. "Dishonestly".--Whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person, is said to do that thing "dishonestly".
Thus, an accused is said to have committed offence under section 405 IPC if he had caused substantial or appreciable loss to the person by whom entrustment of property was made or gain to the accused.
26. Regarding burden of proof with respect to an offence defined U/s 405 IPC it was held by the Hon'ble Supreme Court of India in the judgment titled as State of HP vs Karanvir (2006) 5 SCC 381 as under:
"23. .... The actual manner of misappropriation, it is well settled, is not required to be proved by the prosecution. Once entrustment is proved, it was for the accused to prove as to how the property entrusted to him was dealt with in view of Section 405 of the IPC. If the respondent had failed to produce any material for this purpose, the prosecution should not suffer therefore.." ANKUR Digitally signed by ANKUR PANG Date:
PANGHAL 2023.04.11 HAL 18:27:15 +05'30' Cr. Case No. 2328/2017 State vs Naveen Kumar Page 20 of 26 APPRECIATION OF EVIDENCE
27. I have carefully gone through all the records at hand and testimony of the witnesses. After perusal, this court is of the opinion that the point for determination in the present case are:
I. Whether on 01.03.2012 accused was entrusted with Mahindra Xylo Car bearing registration no. UP-16-AT-4193 by the complainant, as accused was working as driver with complainant, and accused has dishonestly misappropriated and converted it to his own use and thereby committed an offence punishable U/s 408 IPC.
28. In criminal law, the burden of proof on the prosecution is that of beyond reasonable doubt. On a bare perusal of the above offence, it can be culled out that the prosecution has to prove that the accused was entrusted with vehicle in question, while working as servant of complainant and he had dishonestly misappropriated and converted it to his own use. Thus, it is essential to prove the entrustment and dishonest misappropriation if vehicle in question by the accused.
29. Now, I shall proceed to deal with the legal ingredients one by one and give my finding on whether the evidence both oral as well as documentary on record satisfy the legal ingredients in question or not.
i. First Ingredient: entrustment by one person to another of the property (movable or immovable), or with any dominion over property;
ii. Second Ingredient: such entrustment must be in the trust 29.1. As per the discussion made above, entrustment implies custody or possession of the property ANKUR Cr. Case No. 2328/2017 State vs Naveen Kumar Page 21 of 26 PANGHAL Digitally signed by ANKUR PANGHAL Date: 2023.04.11 18:27:29 +05'30' in question and it need not mean that ownership of the property has to be transferred. Furthermore, the person entrusting the property need not be the owner of property in question.
29.2. To prove the entrustment of property in question, to the accused, prosecution has examined PW1 and PW2. PW2 is the complainant in present case who stated in his examination in chief that on 01.03.2012 accused has taken the vehicle in question as per routine and returned back in evening at about 07 PM and thereafter, PW2 deposed that accused told sister of PW2 that he is taking the car and after having dinner accused shall drop the car. PW2 in his cross examination further stated in his cross examination that he handed over the vehicle to accused because of trust.
29.3. PW3 namely Preeti Aggarwal deposed that she is the registered owner of vehicle bearing registration number UP-16-AT-4193 and she had handed over the same to her brother i.e., complainant who was running a business of transport.
29.4. The Hon'ble Supreme Court of India in Mohd Firoz v. State of Madhya Pradesh (2022) 7 SCC 443 held that no conviction could be based on the statement of the accused recorded under section 313 of the Cr.P.C. and the prosecution has to prove the guilt of the accused by leading independent and cogent evidence, nonetheless when the accused makes inculpatory and exculpatory statements, the inculpatory part of the statement can be taken aid of to lend credence to the case of prosecution. However, if the prosecution evidence does ANKUR Digitally signed not inspire confidence to sustain the conviction of accused, by ANKUR PANGH PANGHAL Date: 2023.04.11 AL 18:27:41 +05'30' Cr. Case No. 2328/2017 State vs Naveen Kumar Page 22 of 26 the inculpatory part of his statement under S. 313 CrPC cannot be made the sole basis of conviction. 29.5. Accused in his statement recorded under S. 313 CrPC had accepted the fact that on 01.03.2012 at about 7 PM at GN3, New Modern Shahdara, being driver of complainant was entrusted with car in question. Thus, from the prosecution evidence lead by PW2 and PW3 as well as on the basis of inculpatory part of statement of accused recorded U/s 313 CrPC the first and second ingredients stands proved beyond all reasonable doubts. iii. Third Ingredient: there must have been a misappropriation or conversion to his own use by the person who received the property in trust;
29.6. Coming to the third ingredient in light of State of HP vs Karanvir (2006) 5 SCC 381 wherein it was held that once entrustment is proved, it is for the accused to prove as to how the property entrusted to him was dealt with in view of Section 405 of the IPC. If the respondent had failed to produce any material for this purpose, the prosecution should not suffer. Thus, once entrustment has been proved, who so has been done in present case by the prosecution, the burden of proof now shifts upon the accused to discharge it.
29.7. The Hon'ble Supreme Court of India in Ram Gopal S/o Mansharam vs State of Madhya Pradesh 2023 SCC OnLine SC 158 held that it is true that the burden to prove the guilt of the accused is always on the prosecution, however in view of Section 106 of the Evidence Act, when any fact is within the knowledge of any person, the burden of proving that fact is upon him. In present case the ANKUR Digitally signed by ANKUR PANG PANGHAL Date: 2023.04.11 accused has not led any evidence in his defence, to prove HAL 18:27:53 +05'30' Cr. Case No. 2328/2017 State vs Naveen Kumar Page 23 of 26 as to how property entrusted to him by the complainant was dealt by him.
29.8. Furthermore, PW-11, who is an independent witness and uninterested witness, has deposed against the accused wherein he had stated accused is younger brother of his brother-in-law and accused came in the month of May, 2012 i.e., approximately two months after the date of incident, with Xylo vehicle. However, PW-11 did not mention the registration number but testimony of PW-11 is a crucial nut to link the chain of circumstantial evidences against the accused. PW-11 further deposed that accused told him that he wants to dispose of said vehicle. Thus, it can be concluded that accused had the burden of proving that he had not misappropriated the property in question, but he has failed to discharge that burden. iv. Fourth Ingredient: such conversion or retention of the property must be against or in violation of any direction, or law prescribing the mode in which such trust is to be discharged, or of any legal contract made touching the discharge of such trust;
29.9. From the testimony of PW-2 it is manifestly clear that accused took the car in question on 01.03.2012 for having dinner but he did not come back despite repeated callings and was giving evasive answers. However, accused in his statement under section 313 CrPC stated that he left for Mathura, U.P. on 27.02.2012 and he was informed by complainant that somebody had taken away complainant's Xylo car and he informed complainant that he is in Mathura and he was thereafter informed by his family members that some FIR has been lodged against him for theft of vehicle. However, accused has not led any ANKUR evidence in his defense to show that he was at Mathura, PANGHAL Cr. Case No. 2328/2017 State vs Naveen Kumar Page 24 of 26 Digitally signed by ANKUR PANGHAL Date: 2023.04.11 18:28:07 +05'30' U.P. on the date of incident. Thus, from testimony of PW-2 it is evident that accused had retained the car in question despite repeated calls from complainant and gave evasive replies.
v. Fifth Ingredient: the person who received the property in trust has received it being a clerk or servant or employed as clerk or servant;
29.10. This ingredient is itself admitted by the accused in his statement recorded under section 313 CrPC wherein he has accepted that complainant was his employer. This fact is also corroborated from testimony of PW-3 who stated in her cross-examination that accused was paid salary of Rs. 12,000/- approx. by her brother. Furthermore, the suggestions given during cross- examination of PW-2 are suggesting only one thing that accused was employee of the complainant. Hence, fifth ingredient also stands proved beyond any reasonable doubt.
CONCLUSION
30. To recapitulate the above discussion, the prosecution was required to prove the ingredients of the offences beyond reasonable doubt. The testimony of star witnesses of the prosecution inspires confidence and cogently implicates the accused person. The other prosecution witnesses have corroborated the case set up by the prosecution and the documentary evidence on record has proved the offences under section 408 IPC beyond reasonable doubt against the accused person. The inconsistencies brought out by the accused in the Digitally signed ANKUR byPANGHAL ANKUR PANG Date:
2023.04.11 case of prosecution are minor and do not go to the root of the HAL 18:28:18 +05'30' Cr. Case No. 2328/2017 State vs Naveen Kumar Page 25 of 26 matter. The defence of the accused of false implication remains unproved.
31. Resultantly, the accused NAVEEN KUMAR S/o SH. RAJENDER SINGH is hereby found guilty and is CONVICTED of the offences under section 408 of the Indian Penal Code, 1860.
32. Copy of the judgement be provided free of cost to the convict, forthwith.
Announced in open court on 11.04.2023 in the presence of the accused. The judgment contains 26 pages and each page have been signed by the undersigned.
ANKUR Digitally by ANKUR signed PANGH PANGHAL Date:
(ANKUR PANGHAL) AL 2023.04.11 18:28:34 +05'30' MM-06, Shahdara District, Karkardooma Courts, Delhi 11/04/2023 Cr. Case No. 2328/2017 State vs Naveen Kumar Page 26 of 26