Delhi District Court
State vs Sigara Lala on 4 October, 2023
IN THE COURT OF METROPOLITAN MAGISTRATE-02,
NORTH EAST DISTRICT, KARKARDOOMA COURTS,
DELHI
PRESIDED BY: SH. VIPUL SANDWAR
JUDGMENT
STATE Vs. SIGARA LALA & ANR.
FIR NO. : 182/2002, U/s 419/468/471 IPC
PS : SEELAMPUR
A. CIS No. of the Case : 460367/2015
B. Date of Institution : 02.04.2003
C. Date of Commission of : 28.06.1999
Offence
D. Name of the complainant : Inspector Ugesh Kumar, PS Kalkaji E. Name of the Accused, his (1) Sigara Lala S/o Jaithu Ram, Parentage & Addresses R/o Gurudwara Wali Gali, Gali no.5, Jagjeet Nagar, New Usmanpur, Delhi and (2) Kundan S/o Banarsi Lal, R/o H. No. 33, Om Vihar, Near Gandhi Nursing Home, Uttam Nagar, Delhi.
F. Representation on behalf : Ms. Amandeep Kaur, Ld. APP of State G. Offence complained of : U/s 419/468/471 IPC H. Plea of the Accused : Pleaded not guilty and claimed trial.
I. Order reserved on : 19.09.2023
J. Date of Order : 04.10.2023
K. Final Order : Acquitted
State vs. Sigara Lala & Anr. FIR No.182/02 PS Seelampur Page No. 1 / 14
Brief Statement of Reasons for Decision of the Case
1. The present FIR was filed on the complaint of Inspector Ugesh Kumar that in the year 1999 while he was posted at PS Seelampur and FIR bearing no.415/1999, under section 279/337 IPC was registered on the statement of Mohd. Nadeem. Accused Sharad Mishra was arrested and the challan of the case was filed. Later accused Sharad Mishra did not come to the Court and he was declared PO on 22.01.2002. On 23.01.2002, HC Satya Pal, PS Gandhi Nagar arrested accused Sharad Mishra where he stated that he was never arrested by the police and never did any accident. Directions were given to Inspector Ugesh by the Court to produce the actual accused. After lot of efforts the real accused was arrested on 23.05.2002 and his name was identified as Kundan S/o Banarsi. He had pasted his photographs and laminate it on the DL of Sharad Mishra. He produced the DL to Inspector Ugesh Kumar on 28.06.1999. He was released on bail on the surety of Sardari Lal on the bond of ₹5,000/-. Later summons issued to the surety were not served and it was discovered that the surety had used false name and his actual was Singara Lala S/o Jaithu Ram. The accused persons were chargesheeted for offence under section 417/419/468/471/34 IPC.
2. On the basis of the above facts FIR bearing no.182/2000 was registered at PS: Seelampur under Sections 417/419/468/471/34 India Penal Code (hereinafter referred to as "IPC") and was investigated by the officials of Police Station Seelampur and IO/Inspector Ugesh filed the charge sheet against the accused persons upon which cognizance was taken on 02.04.2003 by the learned Predecessor of this Court.
State vs. Sigara Lala & Anr. FIR No.182/02 PS Seelampur Page No. 2 / 143. Charge was framed vide order dated 24.07.2007 for the offence punishable Under Section 419/468/471 of the IPC against both the accused by the learned Predecessor of this Court, to which, both accused pleaded not guilty and claimed trial.
4. Thereafter, matter was listed for Prosecution Evidence. The Prosecution has examined witnesses in support of its case.
5. In nutshell, the testimony of the prosecution witnesses is as follows :-
(i) PW1 Pawan Kumar on the instructions of the Court regarding verification of DL no.94121274 produced the DL on behalf of PS Panchpal, MLO / West Zone-1. He annexed the photocopy of said DL duly attested with the seal. He also deposed that the DL belongs to Sh. Sharda Mishra and the date of issuing is 22.12.1994 and the date of expiry is 10.12.2020. The witness was not cross examined by accused persons despite being given an opportunity.
(ii) PW2 Ct. Aslam on 24.05.2002 on the instructions of ASI Arvind Kumar he joined the present investigation. IO has arrested the accused Sigara Lala. He intimated the relatives of accused regarding the arrest of accused. IO recorded the statement under section 161 Cr. PC. The witness was not cross examined by accused persons despite being given an opportunity.
(iii) PW3 HC Bhagwat Singh on 29.05.2002 he alongwith ASI Arvind Kumar came to the Court and formally arrested the accused Kundan. He has deposed that the said case belongs 279/337 IPC and accused had fraudulently taken bail from the Court through forged documents. In his cross-examination by Ld. counsel for accused persons he has stated that he does not State vs. Sigara Lala & Anr. FIR No.182/02 PS Seelampur Page No. 3 / 14 remember the name of the Court or the Court number from which was accused was formally arrested. He denied the suggestion that he had signed on blank papers and no arrest was conducted in his presence.
(iv) PW4 Retd. SI Satender Prasad was posted as Duty Officer on 24.05.2002 and at about 05:15 pm received a rukka handed over SI Ugesh for registration of FIR. He got the present FIR registered, made an endorsement on the rukka and handed over the original rukka and copy of FIR to ASI Arvind for investigation. He has deposed that SI Ugesh had produced accused Sigara Lala. He had handed over the custody of accused Sigara lala to ASI Arvind. The witness was not cross examined by Ld. counsel for accused persons despite being given an opportunity.
(v) PW5 Retd. ASI Arvind on 24.05.2002 the present FIR was marked to him by the concerned SHO for investigation. Custody of accused Sigara Lala was handed over to him by complainant SI Ugesh in presence of Ct. Aslam. He formally arrested the accused Sigara Lala and conducted his personal search. On 29.05.2002 he formally arrested accused Kundan in presence of Ct. Bhagwat. He took finger prints of accused Kundan and later he got transferred. In his cross-examination by Ld. counsel for accused he has stated that he took the finger prints of the accused at DCP office.
(vi) PW6 Inspector Ugesh is the complainant in the present matter. He has deposed that in the year 1999 an FIR bearing no.415/99, under section 279/337 IPC was registered qua accused Kundan who was arrested at that time under the name of Sharad Mishra as he had impersonated himself as Sharad Mishra.
State vs. Sigara Lala & Anr. FIR No.182/02 PS Seelampur Page No. 4 / 14Accused Kundan was initially declared PO, however, the PO staff in the aforesaid FIR had wronglly apprehended one Sharad Mishra under whose name accused Kundan had impersonated himself. Later Sharad Mishra was discharged in the said FIR and court had directed him to produce the accused Kundan before it. On 23.05.2002 he arrested accused Kundan and recovered the DL possessed by him at that time. On the next day, accused Kundan was produced in the Court and he was directed to file a report in this regard. In the said FIR directions were given to the concerned SHO to initiate action against accused Kundan by way of registration of FIR against him and another accused Sigara Lala who in the said FIR had stood surety using forged documents. The present FIR was registered against both the accused. He submitted the report in the Court on the basis of which present FIR was registered. His role was confined only to this aspect. In his cross-examination he has stated that he had arrested accused Kundan in FIR No.415/99 on the date of accident at the spot. He has obtained the DL of the accused at the time of arrest. He denied the suggestion that he has not seized the DL from the accused.
(vii) PW7 Yogender Kumar brought the case file FIR bearing no.415/99, PS Seelampur. In his cross-examination he has stated that he does not have any personal knowledge of the present case.
6. PE was closed on 10.07.2023 and on 24.08.2023 statement of accused persons under section 313 Cr. PC read with section 281 Cr. PC was recorded. Accused persons does not wish to lead DE and the matter was listed for Final Arguments on State vs. Sigara Lala & Anr. FIR No.182/02 PS Seelampur Page No. 5 / 14 18.09.2023.
7. Final arguments heard by Ld. counsel for accused as well as Ld. APP for the State. This Court has thoughtfully considered the material on record and arguments advanced with due circumspection.
8. Now this Court proceeds to appreciate the evidence brought on record by the Prosecution.
9. The ingredients of the offence of cheating are spelt out in Section 415 of the IPC. Section 415 is extracted below:
"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".
Explanation -- A dishonest concealment of facts is a deception within the meaning of this section."
10. The ingredients of the offence under Section 415 that emerge from a textual reading is as follows:
"Firstly, to constitute cheating, a person must deceive another. Secondly, by doing so the former must induce the person so deceived to
(i) deliver any property to any person; or
(ii) to consent that any person shall retain any property; or State vs. Sigara Lala & Anr. FIR No.182/02 PS Seelampur Page No. 6 / 14
(iii) intentionally induce 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
(iv) such an act or omission must cause or be likely to cause damage or harm to that person in body, mind, reputation or property."
11. Section 416 IPC defines the offence of cheating by personation. It reads as follows:
"416. Cheating by personation.--A person is said to "cheat by personation" if he cheats by pretending to be some other person, or by knowingly substituting one person for another, or representing that he or any other person is a person other than he or such other person really is. Explanation.--The offence is committed whether the individual personated is a real or imaginary person."
12. In Hridaya Ranjan Prasad Verma v. State of Bihar, (2000) 4 SCC 168 a two-judge bench of hon'ble Supreme Court interpreted sections 415 and 420 of IPC to hold that fraudulent or dishonest intention is a precondition to constitute the offence of cheating. The court observed:
"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.
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 State vs. Sigara Lala & Anr. FIR No.182/02 PS Seelampur Page No. 7 / 14 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." (emphasis supplied)
13. In Dalip Kaur v. Jagnar Singh, (2009) 14 SCC 696 a two-judge bench of hon'ble Supreme Court held that a dispute arising out of a breach of contract would not amount to an offence of cheating under section 415 and 420. The relevant extract is as follows:
"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."14. The High Court, therefore, should have posed a question as to whether any act of 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 State vs. Sigara Lala & Anr. FIR No.182/02 PS Seelampur Page No. 8 / 14 regard to its definition contained in Section 405 of the Penal Code." (emphasis supplied)
14. In the present case, the accused persons have been charged for offence punishable under section 419 IPC. It is the case of the prosecution that accused Kundan cheated SI Ugesh Kumar by pretending to be Sharad Mishra and handed him over DL of Sharad Mishra by pasting his photograph on it in FIR no.415/99, PS Seelampur. Similarly, prosecution has charged accused Sigara Lal with the offence of cheating by personation as he pretended to be Sardari Lal and cheated SI Ugesh Kumar by handing him over copy of ration card and stood surety for accused Kundan in FIR No.415/99, PS Seelampur.
15. PW7 Yogender Kumar, JA, Record Room brought the original case file of FIR No.415/99, PS Seelampur. This Court has perused the original case file with due circumspection. Chargesheet in FIR No.415/99, PS Seelampur was filed on 16.09.1999 by IO/ Ugesh Kumar against accused Sharda Mishra. During the trial, the accused Sharda Mishra was declared PO on 22.01.2002. On 23.01.2002, HC Satya Pal arrested accused Sharda Mishra and produced before the Court. Accused Sharad Mishra stated that he was never arrested by the police and has never done any accident. On the basis of his statement he was granted bail and IO was directed to produce the actual accused. IO had sought 15 days time. On 23.05.2002, IO arrested accused Kundan and produced before the Court. It was submitted by the IO that it was Kundan who had pasted his photograph on the DL of Sharad Mishra. IO also stated that at the time of his arrest on State vs. Sigara Lala & Anr. FIR No.182/02 PS Seelampur Page No. 9 / 14 28.06.199 he had produced the DL and accused was released on bail on surety of Sardari Lal by furnishing bonds in the sum of ₹5,000/- and photocopy of his ration card as proof of surety. IO later discovered that surety had used a false name and his actual name was Sigara Lal.
16. In the present case, PW1 has produced the attested copy of DL no.94121274 of Sharad Mishra. The alleged driving license wherein photograph of accused Kundan is pasted and the name of Sharda Mishra is shown is available on record in this file or the original case file of FIR No.415/99, PS Seelampur. IO in his statement given to the Court in case FIR No.415/99, PS Seelampur has stated that when he had originally apprehended the accused on 28.06.1999 he had produced the alleged DL which was recovered by him. In the present case IO/SI Ugesh Kumar in his deposition as PW6 has stated that " On 23.05.2002 I had arrested accused Kundan and recovered the DL possessed by him at that time". There seems apparent contradiction as to when the alleged DL was recovered from the possession of the accused Kundan. IO has given two different statements, one being that DL was recovered on the day of the accident when the accused was originally apprehended or when he was apprehended on 23.01.2002 after being declared a PO. There is even a contradiction on the date of arrest of the accused Kundan. As per the case file of FIR No.415/99, PS Seelampur accused was apprehended on 23.01.2002, however, as per the deposition of IO/PW7 in this Court in the present case it is stated to be 23.05.2002.
State vs. Sigara Lala & Anr. FIR No.182/02 PS Seelampur Page No. 10 / 1417. It is beyond the rational understanding of this Court as to when the chargesheet in FIR No.415/99, PS Seelampur filed before this court on 16.09.1999 which accused was produced before the Court. IO had failed to ascertain the identity of the accused driver in FIR No.415/99, PS Seelampur at the time of its investigation and no notice under section 133 M. V. Act was given to the owner. Moreover, it was only when accused Sharad Mishra was apprehended on 23.01.2002 it came to light that he was not the accused and some one else had pasted his photograph. IO sought 15 days time and produced accused Kundan as the accused who was driving the vehicle and had pasted the photograph on the alleged DL. There is no explanation whatsoever by the IO as to how did he link accused Kundan as the person who was driving the vehicle and had pasted his photograph. Similarly, IO has deposed that accused Sigara Lal had stood surety for accused Kundan by representing himself to be Sardari Lal. Nothing has been mentioned as to how this fact came to light.
18. In the present case, the prosecution had not made either Sharad Mishra or Sardari Lal a witness. The alleged DL is not available on record. In the circumstances, it cannot be stated that the accused persons have committed offence punishable under section 419 IPC.
19. The prosecution has also charged the accused persons for offence under section 468 and 461 IPC for forging and using the said documents. As discussed above, in the absence of the State vs. Sigara Lala & Anr. FIR No.182/02 PS Seelampur Page No. 11 / 14 alleged forged DL and the surety bond or any linkage of the forged documents with the accused it cannot be said that the above offences have been proved.
20. In a criminal trial, the burden on the prosecution is beyond reasonable doubt. The reasonable doubt is a rule of caution laid down by the Courts of Law in respect of assessing the evidence in criminal cases. In Awadhi Yadav v. State of Bihar , (1971) 3 SCC 116 at page 117, Hon'ble Supreme Court has observed that:
"Before a person can be convicted on the strength of circumstantial evidence, the circumstances in question must be satisfactorily established and the proved circumstances must bring home the offence to the accused beyond reasonable doubt. If those circumstances or some of them can be explained by any other reasonable hypothesis then the accused must have the benefit of that hypothesis. But in assessing the evidence imaginary possibilities have no place. What is to be considered are ordinary human probabilities."
21. In State of Haryana v. Bhagirath, (1999) 5 SCC 96 :
1999 SCC (Cri) 658 : 1999 SCC OnLine SC 577 at page 99 Hon'ble Supreme Court has observed that:
"But the principle of benefit of doubt belongs exclusively to criminal jurisprudence. The pristine doctrine of benefit of doubt can be invoked when there is reasonable doubt regarding the guilt of the accused. It is the reasonable doubt which a conscientious judicial mind entertains on a conspectus of the entire evidence that the accused might not have committed the offence, which affords the benefit to the accused at the end of the criminal trial. Benefit of doubt is not a legal dosage to be administered at every segment of the evidence, but an advantage to be afforded to the accused at the final end after consideration of the State vs. Sigara Lala & Anr. FIR No.182/02 PS Seelampur Page No. 12 / 14 entire evidence, if the Judge conscientiously and reasonably entertains doubt regarding the guilt of the accused. It is nearly impossible in any criminal trial to prove all the elements with a scientific precision. A criminal court could be convinced of the guilt only beyond the range of a reasonable doubt. Of course, the expression "reasonable doubt" is incapable of definition. Modern thinking is in favour of the view that proof beyond a reasonable doubt is the same as proof which affords moral certainty to the Judge."
22. Francis Wharton, a celebrated writer on criminal law in the United States has quoted from judicial pronouncements in his book Wharton's Criminal Evidence (at p. 31, Vol. 1 of the 12th Edn.) as follows:
"It is difficult to define the phrase 'reasonable doubt'. However, in all criminal cases a careful explanation of the term ought to be given. A definition often quoted or followed is that given by Chief Justice Shaw in the Webster case. He says:
'It is not mere possible doubt, because everything relating to human affairs and depending upon moral evidence is open to some possible or imaginary doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that consideration that they cannot say they feel an abiding conviction to a moral certainty of the truth of the charge."
23. In the treatise The Law of Criminal Evidence authored by H.C. Underhill it is stated (at p. 34, Vol. 1 of the 5th Edn.) thus:
"The doubt to be reasonable must be such a one as an honest, sensible and fair-minded man might, with reason, entertain consistent with a conscientious desire to ascertain the truth. An honestly entertained doubt of guilt is a reasonable doubt. A vague conjecture or an inference of the possibility of the innocence of the accused is not a reasonable doubt. A reasonable doubt is one which arises from a consideration of all the evidence in a fair and reasonable way. There must be a candid consideration of all the evidence and State vs. Sigara Lala & Anr. FIR No.182/02 PS Seelampur Page No. 13 / 14 if, after this candid consideration is had by the jurors, there remains in the minds a conviction of the guilt of the accused, then there is no room for a reasonable doubt."
24. Thus, in view of the above discussion, the Prosecution has not been able to establish beyond reasonable doubt the guilt of the accused. The requisite intention for the offence under S. 419 IPC has not been proved by the prosecution. No forgery as required for the offence of S. 468/471 IPC has been proved. Therefore, accused persons Kundan and Sigara Lal are found not guilty in the present case and resultantly, they stand acquitted in the present case.
25. Accused persons are directed furnish bail bond and surety bond in the sum of ₹10,000/- each u/s 437A. Same is accepted and they are directed to be present before the Ld. Appellate Court as and when directed.
Digitally signed by VIPUL SANDWAR VIPUL Date:
SANDWAR 2023.10.04
16:38:54
+0530
Announced in the open (VIPUL SANDWAR)
Court on 04 th October, 2023 MM-02/NE/KKD COURTS
State vs. Sigara Lala & Anr. FIR No.182/02 PS Seelampur Page No. 14 / 14