Delhi District Court
State vs . Subhash Chander on 13 August, 2014
IN THE COURT OF MS. BHAVNA KALIA
METROPOLITAN MAGISTRATE06, SOUTH EAST DISTRICT
SAKET COURTS, NEW DELHI
FIR No. 880/2002
P.S. Kalkaji
U/s 420/34 IPC
STATE VS. SUBHASH CHANDER
JUDGMENT :
a. Sl. No. of the case : 358/2
b. Date of Institution : 07.04.2003
c. Date of Commission of Offence : 18.10.2002
d. Name of the complainant : Ajay Kumar Singh
e. Name of the accused and his : (1.) Subhash Chander
parentage and address S/o Ram Bharosey
R/o VillagePhuphai, PS
Ikdul, Distt. Itawa, U.P
(2.) Surya Pratap Singh
S/o Prabhu Dayal
R/o Sumer Pur, Distt.
Kannauj, U.P.
(Declared PO)
f. Offence complained of : U/s 420/34 IPC
g. Plea of the accused : Pleaded not guilty
h. Order reserved : 13.08.2014
i. Final Order : Acquitted
j. Date of such order : 13.08.2014
FIR NO. 880/2002 PAGE 1 OF PAGE 8
PS KALKAJI
At the outset, it is clarified that the present judgment is only with regard to accused Subhash Chander and not with regard to accused Surya Pratap Singh as he could not be arrested and a supplementary/PO charge sheet was filed against him in the court.
Case of the prosecution in brief:
It is the case of the prosecution that a complaint of complainant Ajay Kumar Singh was received in the office of DCP, EOW, Crime Branch stating therein that he had purchased four drafts for Rs. 1,66,560/ from State Bank of India, Palikalan on 11.10.2002 in favour of Ms B.S Enterprises, Delhi. The details of said DDs are DD no. 022787 for Rs. 40,000/,DD no. 022788 for Rs. 44560/, DD no. 022789 for Rs. 40,000/ and DD no. 022790 for Rs. 40,000/. The said drafts were sent to Delhi through Yogesh Courier, Palia for Delhi on 11.10.2002 vide receipt no. 21373. The above mentioned postage was reported misplaced by the courier companies office in Delhi on 24.10.2003. He immediately informed the State Bank of India , Paliakalan on 25.10.2002 and the bank forwarded request for stop payment of drafts to its service branch in Delhi by fax as well as by post .
It is further submitted that the bank in Paliakalan informed the complainant that the aforesaid four drafts had been encashed on 22.10.2002 by clearing on 07.11.2002. They further informed that the above drafts had been cleared through Kangra Cooperative Bank, Govind Puri branch, Delhi.
The complainant arrived to Delhi on 11.11.2002 and went to the concerned bank and informed the Manager, Kangra Cooperative Bank FIR NO. 880/2002 PAGE 2 OF PAGE 8 PS KALKAJI about the fraud committed. The Manager informed him that an account was opened on 18.10.2002 by Subhash. The Manager provided the complainant the photocopy of identity of accused as well as copy of his account statement which clearly shows that the above mentioned drafts were encashed in his account and cash was withdrawn on 23.10.2002 and 24.10.2002. The Manager further informed him that his account was introduced by Sh. Sanjay Sharma.
Thereafter the investigation was handed over to SI Ram Lal. During the course of investigation, accused Subhash Chandra was arrested. Coaccused Surya Pratap Singh could not be arrested as he fled away. Accused Subhash Chandra disclosed that on the instance of accused Surya Pratap, he got opened the account in the name of B.S Enterprises at Kangra Cooperative Bank, Govind Puri through Sanjay Sharma and only at his instance, he got issued the cheque book. Accused further disclosed that the cash amount was filled up in the cheque by Surya Pratap Singh and he had only signed the same. On the basis of investigation carried out by IO, challan was prepared under section 420/34 IPC and the same was filed in the court. Charge:
Prima facie offence was made out against the accused Subhash Chander and he was charged under section 420/34 IPC for dishonestly inducing bank officials of Kangra Cooperative Bank, Govind Puri to open bank account no. 4143 in the name of M/s. B.S Enterprises as proprietor and presented four stolen DDs bearing no. 22787, 88, 89 and 90 and fraudulently encashed the DDs from paid account causing the bank to deliver an amount FIR NO. 880/2002 PAGE 3 OF PAGE 8 PS KALKAJI of Rs. 1,66,560/.
Prosecution Evidence:
To prove its case, the prosecution has examined four witnesses. PW1 Sanjay Sharma stated that his brotherinlaw had leather factory at Tughlakabad. Accused was employed in the factory for stitching work. His brotherinlaw Pawan Sharma was asked by the accused for opening current account at Kangra Cooperative Bank, Govind Puri. As he was having already an account in the bank, his brotherinlaw asked him to help the accused for opening the account in the aforesaid bank. PW1 further stated that he introduced the accused in the bank on the account opening form for helping him to operate the account.
Police came to him for inquiry in this regard and he identified the accused. Police arrested the accused vide memo Ex. PW1/A and conducted his personal search vide memo Ex. PW1/B. Disclosure statement of accused was recorded vide Ex. PW1/C. PW1 correctly identified the accused in the court.
During his cross examination, PW1 stated that police got his signatures on the papers on different dates three times.
PW2 Ajay Kumar Singh stated that on 11.10.1992, two drafts were prepared by him. One draft was prepared in the name of Sunil Kumar and one draft was prepared in the name of Surinder Kumar by him. He had sent these drafts by Yogesh courier from Palia to B.S Enterprises in FIR NO. 880/2002 PAGE 4 OF PAGE 8 PS KALKAJI Delhi. The amount mentioned in the draft was in total as Rs. 1,66,560/. The draft could not reach the destination. He tried to stop the payment against the draft to SBI, Palikalan but by that time, he came to know that the draft had already been encashed on 22.10.2002. Then he reached Delhi and tried to obtain information through the police. PW2 further stated that he came to know that draft had already been encashed on 22.10.2002. Then they reached Delhi and tried to obtain information through the police. They came to know that one Subhash Chander had got an account opened in Kangra Cooperative bank, Govindpuri and had withdrawn Rs. 50,000/ on 23.10.2002 and Rs. 16,000/ on 24.10.2002. The account had been opened on 18.10.2002 and drafts were deposited in the account. He also came to know that the account was introduced by one Sanjay Sharma by asking his brotherinlaw Pawan Sharma. PW2 lodged complaint with the police regarding the same which is Ex. PW2/A. PW3 HC Raj Kumar stated that on 31.12.2002, on receipt of Rukka, he recorded the present case FIR which is Ex. PW3/A. PW4 SI Ram Lal stated that on 01.10.2003, he went to the bank, Kangra Cooperative at Govind Puri and obtained information about the account holder related to account no. 4143. He also met with the introducer of the said account namely Sanjay Sharma who produced accused Subhash. PW4 questioned Subhash and recorded his disclosure statement as Ex. PW1/C. Accused was arrested vide memo Ex. PW1/A and his personal search was conducted vide memo Ex. PW1/B. He obtained the statement of FIR NO. 880/2002 PAGE 5 OF PAGE 8 PS KALKAJI account from the bank for the period 01.10.2002 to 11.11.2002. He also obtained the counterfoils of deposit of money at SBI, Palikalan for preparing the DDs, the photocopies of the same are Mark A1. Those copies were obtained from the complainant. The statement of account, Govindpuri is Mark A2. PW4 further stated that he made efforts to trace the coaccused Surya Pratap Singh but could not found. Document were not sent to FSL. PW4 further stated that on 08.04.2003, he had seized one consignment note/slip number 21373 Ex. PA1 and photocopy of the slip of statement vide memo Ex. PW4/A. On 18.04.2003, he had seized the Station Manifest slip Mark X1 vide memo Ex. PW4/B. On 05.04.2003, he had seized two cheques bearing no. 517578 and 517579 along with statement of account 4343 of Kangra Bank along with account opening card Ex. PA2 vide memo Ex. PW4/C. On that day, Ct. Mahavir Singh also also joined the investigation with him. PW4 moved an application against accused Surya Pratap u/s 82/83 Cr.P.C and challan was prepared and the same was filed in the court. Accused Subhash was arrested on 05.02.2003 and notice regarding arrest was given to him vide memo Ex. PW4/D. Personal search of accused was conducted vide memo Ex. PW2/E. PW4 correctly identified the accused in the court.
PW5 Ct. Sudhir stated that on 31.12.2002, he joined the investigation with SI Ram Lal and IO recorded the statement of Sanjay and accused Subhash Chand was arrested at the instance of Sanjay. Accused made a disclosure statement vide Ex. PW1/C. Accused was arrested vide memo Ex. PW1/A and personal search was conducted vide Ex. PW1/B. FIR NO. 880/2002 PAGE 6 OF PAGE 8 PS KALKAJI Statement of the accused under section 313 Cr.PC:
The accused stated that he had been falsely implicated in this case. He did not know about any demand drafts. He was working with Anil Kumar in his leather factory and he had left the job due to some dispute and thereafter this false case was made against him.
Decision and Reasons:
The accused has been charged for offence under section 420/34 IPC for cheating the complainant/PW2. To constitute an offence under section 420 IPC there must essentially be the following:
1.Deceit, that is to say, dishonest or fraudulent misrepresentation;
2.Inducing the person deceived to part with property.
In order to see that the charge under section 420 IPC is made out or not, the statement of witnesses has to be perused and appreciated.
PW1 has stated that the accused was employee in the factory of his brotherinlaw/ Pawan Sharma for doing stitching work and at request of Pawan Sharma, he helped the accused in opening account in Kangra Cooperative Bank, Govind Puri. He merely stated that he had introduced the accused in the bank and helped him in opening the bank account.
PW2/ Ajay Kumar has stated that he had prepared two drafts on 11.10.2002 in the name of Sunil Kumar and Surender Kumar which he had sent by courier from Palikalan to B.S Enterprises, Delhi, but the drafts did FIR NO. 880/2002 PAGE 7 OF PAGE 8 PS KALKAJI not reach the destination. They tried to stop payment against the said drafts but by that time the drafts had already been encashed. PW2 only came to know that the drafts were deposited in the account of accused Subhash Chander. As per deposition of PW2, it appears that he had no personal knowledge about the present case and the information that he got was only hearsay which is not relevant and not admissible.
PW3 is only a formal witness.
PW4 being the IO investigated the case and recorded disclosure statement of the accused. He has not stated anything incriminating against the accused.
Nothing incriminating have been stated by any of the witnesses against the accused. Prosecution has failed to prove any intention on part of the accused to deceive anyone. Since the ingredients of the offence under section 420 IPC are not made out, hence accused Subhash Chander is acquitted for the offence under section 420 IPC. No common intention has been proved by the prosecution on part of the accused to commit any offence. The accused is also acquitted for the offence u/s 34 IPC.
ANNOUNCED IN THE OPEN COURT (BHAVNA KALIA)
ON 13.08.2014 METROPOLITAN MAGISTRATE06
SOUTH EAST/SAKET COURTS
FIR NO. 880/2002 PAGE 8 OF PAGE 8
PS KALKAJI