Delhi District Court
State vs Ahmed Hasan on 25 March, 2013
IN THE COURT OF SH. SUDESH KUMAR
ADDITIONAL CHIEF METROPOLITAN MAGISTRATE01, NEW DELHI DISTRICT:
PATIALA HOUSE COURTS: DELHI
FIR NO.: 637 OF 2005
POLICE STATION: IGI AIRPORT
U/S: 420/468/471 IPC
IN THE MATTER OF
STATE
VS
AHMED HASAN
S/o Mr. Nagibul Hasan
R/o House No. 152, Sajjad Bag Colony,
Daulat Gang Chowk, Lucknow, UP
Date of institution:21.12.2006
Date of reserving Judgement/Order:23.03.2013
Date of Pronouncement of Judgement/Order:25.03.2013
Brief statement of reasons for such decision :
1.The case of the prosecution in brief is that on 26.11.2005 at 0750 hours at arrival right wing of Immigration at IGI Airport, the accused produced passport no. A 3926215 dated 16.09.1997 issued from Lucknow for immigration clearance which on scrutiny was found having forged employment visa copy no. 079174/02/2005/107 for UAE FIR NO.: 637 OF 2005 POLICE STATION: IGI AIRPORT U/S: 420/468/471 IPC 1 of 11 on which, he had left IGI Airport on 24.11.2005 to Abu Dhabi. As per original complaint dated 26.11.2005 Ex. PW 2/A, it was alleged that the accused was refused entry in UAE on the ground that he was carrying forged employment visa copy. On scrutiny of his documents, the photocopy of the employment visa copy no. 079174/02/2005/107 for UAE on which, he had left the IGI Airport on 26.11.2005 to Abu Dhabi was found forged. The accused revealed that the visa was managed by an agent on payment of Rs. 60,000/. The accused hence in connivance with his agent has cheated the Indian Immigration as well as Government of India. On these allegations, present case was registered against the accused for the offences u/s 420/468/471 IPC.
2. After investigations, charge sheet has been filed against accused for the offences u/s 420/468/471 IPC. On the basis of material on record, however, a charge was settled against accused for the offence punishable u/s 420 IPC only on 02.07.2007 by my Ld. Predecessor to which accused pleaded not guilty and claimed trial.
3. Thereafter, prosecution has examined as many as 6 witnesses to prove its case.
(i) The prosecution has examined Mr. Sushil Bhalla, Superintendent, Passport Office, Lucknow, UP as PW 1 who produced the original record pertaining to passport no. A3926215 dated 16.09.1997 in respect of the accused Ahmad Hassan. He deposed that as per their record, the said passport was issued in the name of Ahmad Hassan S/o Mr. Nazibull Hassan R/o Rasulpur, Ahmad Nagar and the report was prepared by the then Superintendent Mr. S.S. Mishra. He also identified his signature's as per record and stated that the report Ex. PW 1/A was correct.
FIR NO.: 637 OF 2005 POLICE STATION: IGI AIRPORT U/S: 420/468/471 IPC 2 of 11
(ii) The prosecution has examined the complainant Mr. Ram Kumar, ACIO II who was posted as Clearance Officer at IGI Airport on 26.11.2005 as PW 2. He deposed that at about 7.55 am, one passenger namely Ahmad Hassan came as a deportee from Abu Dhabi by flight no. JF 132 and was handed over to him by his IC Wing. The passenger was refused entry there as he was having a forged employment visa (only photocopy was produced on record). He further deposed that on scrutiny of his document's, it was revealed that he had purchased the aforesaid visa through an agent from Hyderabad against payment of Rs. 60,000/ and he has written his name in his complaint. He further deposed that he prepared his complaint Ex. PW 2/A and his travel document's i.e. One passport, deportee paper (running into two pages), airline letter, disembarkation card and air ticket were taken into possession which were Ex. P 1 to Ex. P 5 and photocopy of forged visa which was mark "A". He sent all the documents through Ct. Madhav Prasad for registration of the case. The witness identified the accused Ahmad Hassan present in the Court.
In his cross examination by defence Counsel for accused, he admitted that he could not investigate about the forged employment visa as it was only a photocopy. He stated that there was a letter from UAE which was Ex. P 2. He admitted that there was no stamp on this letter. He denied the suggestion that he had wrongly mentioned that the visa was fake while it was genuine. He denied the suggestion that he had deposed falsely.
(iii) The prosecution has examined Ct. Madhav Prasad as PW 3. He deposed that on 26.11.2005, he was handed over the pax Ahmad Hassan alongwith his document's and original complaint by the ACIOII Ram Kumar to took the same to PS and produced the accused alongwith his travel documents before the Duty Officer who seized the said document's vide seizure memo Ex. PW 3/A bearing his signature's at point A. FIR NO.: 637 OF 2005 POLICE STATION: IGI AIRPORT U/S: 420/468/471 IPC 3 of 11 In his cross examination by defence Counsel, he admitted that he was not aware of the facts of this case.
(iv) The prosecution has examined HC Omkar Mal who was duty officer as PW 4. He deposed that on 26.11.2005 at about 3 PM, he received rukka alongwith travel document and pax namely Ahmad Hassan through Ct. Madhur Prasad on the basis of which he recorded the present FIR. He proved the FIR on record as Ex. PW 4/A and rukka as Ex. PW 4/B. He seized the travel document's vide memo Ex. PW 3/A. He averred further that the investigation was assigned to SI T.R. Meena and carbon copy of FIR and tehrir, pax and travel document's were handed over to him.
(v) ASI Ved Prakash has been examined as PW 5. He deposed that on 26.11.2005, he joined investigation of the present case with IO SI Sube Singh. IO arrested accused Ahmad Hassan vide arrest memo Ex. PW 5/A and conducted his personal search vide memo Ex. PW 5/B. Thereafter, IO recorded disclosure statement of accused vide memo Ex. PW 5/C. He further averred that the IO recorded his statement. He identified his signature's on all the memo's. He identified the accused present in the Court.
In his cross examination by defence Counsel for accused, he admitted that he had not visited Hyderabad with IO. He could not remember as to whether the accused has stated in his disclosure statement that the visa in question was genuine which was obtained from the agent Mirza Ali to whom he paid a total of Rs. 1.6 Lakhs through bank transactions made from his account with ICICI Bank, Hyderabad. He denied that the accused has not confessed his guilt in his disclosure statement. He denied the suggestion that accused has been falsely implicated in this case or he was deposing falsely.
(vi) The prosecution has examined SI Sube Singh as PW 6. He deposed (as FIR NO.: 637 OF 2005 POLICE STATION: IGI AIRPORT U/S: 420/468/471 IPC 4 of 11 recorded) that on 26.11.2005, investigation of this case was assigned to him and he was handed over the original complaint already Ex. PW 2/A alongwith travel document's including copy of visa already Ex. P 1 to P 5 and Mark A and carbon copy of FIR already Ex. PW 4/A and seizure of document's already Ex. PW 3/A alongwith the passenger namely Ahmad Hassan present in the Court. He interrogated the accused and arrested him vide arrest memo Ex. PW 5/A and conducted his personal search vide memo Ex. PW 5/B. Thereafter, he recorded disclosure statement of accused vide memo Ex. PW 5/C. Thereafter, police remand of the accused was taken and search of accused/agent Ali Mirza was carried out however he could not be traced. He further deposed that thereafter, he got the passport and visa verified vide reports Ex. PW 1/A and Mark X. He recorded the statement of the witnesses during investigation and filed the challan.
In his cross examination by defence Counsel for accused, he deposed that he obtained 8 days PC remand of the accused. He admitted that during the course of investigation, he took accused to Hyderabad alongwith Inspector Jagat Singh, HC Devender, HC Rattan Lal and Ct. Ran Singh. He further deposed that there, they searched for the accused Ali Mirza and tried to ascertain his whereabouts. They had also verified the ICICI Bank account which was found to be in the name of one Abdulla. He further deposed that the address of said Abdulla was also found to be forged. He admitted that said Abdulla and Mirza have not been made accused in this case. The introducers in the Bank Account Form of Abdulla were also not found. He averred further that they also tried to find other clue regarding him but could not succeed. He has not filed any documents of Bank Account Opening form and details of introducer as the same were not relevant. He denied the suggestion that he never approached the bank manager nor obtained the account opening form. He further denied that he never searched for the agent. He deposed that he had got verified the visa in question. He had filed a letter sent by him for visa verification. He admitted that he has not filed any supplementary FIR NO.: 637 OF 2005 POLICE STATION: IGI AIRPORT U/S: 420/468/471 IPC 5 of 11 chargesheet in this case. He further admitted that the accused in his confession statement has stated that he had obtained a genuine visa from the agent Mirza to whom he paid a total amount of Rs. 1.6 Lakhs through bank transaction made from his account with ICICI Bank. He denied the suggestion that he had met Mr. Abdulla at Hyderabad in whose account the said money was remitted. He denied that the name of account holder in whose account the money was transferred was Mohd. Mazidulla. He admitted that in the disclosure statement the name of account holder has been disclosed as Mohd. Mazidulla and not Abdulla. He denied that the visa of the accused was genuine but he was deported as his employer had changed his mind about giving him employment. He denied that the accused has not confessed his guilt in his disclosure statement.
4. No other witness was examined in PE and PE hence, was closed and the matter was fixed for statement of accused u/s 313 Cr. PC.
5. The entire aforesaid incriminating evidence produced by the prosecution was put to the accused and his statement u/s 313 Cr. PC was recorded separately. The accused in his statement tendered u/s 313 Cr. PC denied that the employment visa was forged. He stated that the employment visa was genuine. He was deported back because his employer in Abu Dhabi no longer desired his services and has informed the airport authorities to send him back. He stated that the allegations levelled against him in the complaint regarding his obtaining false employment visa were false and incorrect. He further stated that it was a matter of record that his travel documents including passport, deportee papers, air line letter and disembarkation card, air ticket already Ex. P 1 to Ex. P 5, all were taken into possession and seized vide memo Ex. PW 3/A. He denied that his passport and visa were verified vide reports Ex. PW 1/A and Mark X. He stated that the IO has never verified the genuineness of the employment visa from the competent authority i.e. the concerned authorities of UAE and the Ex. PW 1/A and Mark X were FIR NO.: 637 OF 2005 POLICE STATION: IGI AIRPORT U/S: 420/468/471 IPC 6 of 11 based on false allegations against him in the complaint. He stated that Mark X does not contain any verification details regarding the employment visa in question. He further stated that it was a matter of record that he was arrested vide memo Ex. PW 5/A and his personal search was conducted vide memo Ex. PW 5/B and his disclosure statement was recorded vide Ex. PW 5/C. He further stated that a false case was registered against him simply because he was deported back from UAE on the instructions of his employer that his services were no longer required by him. The employment visa on the basis of which, he had travelled to UAE was genuine and was obtained legally. He further stated that the witnesses have deposed against him on the basis of presumption that his deportation was due to his travelling on a false visa which was incorrect. He declined to lead DE and DE hence was closed. Thereafter the matter was posted for Final arguments.
6. I have heard final arguments on behalf of parties and perused the record. Before appreciating the evidence coming up on record, I find it relevant to refer here the provisions for the offences, which the accused has been charged with.
Section 415 IPC Provides:
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.
FIR NO.: 637 OF 2005
POLICE STATION: IGI AIRPORT
U/S: 420/468/471 IPC 7 of 11
Section 420 IPC Provides:
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.
7. To bring home conviction against accused, the prosecution has to prove that the accused Ahmed Hassan left IGI Airport on 02.07.2007 to UAE on the basis of forged employment visa thereby cheating Indian Immigration as well as Government of India. To prove the same, the prosecution has examined only six witnesses. The witness PW 3 Ct. Madhav Prasad & PW 4 HC Omkar Mal are formal witnesses who had proved only registration of FIR and arrest of the accused on 26.11.2005. Again, PW 5 ASI Ved Prakash is also a formal witness who accompanied IO while accused was arrested.
8. PW 1 Mr. Sushil Bhalla, Superintendent, Passport Office, Lucknow, UP has produced on record one passport verification report as Ex. PW 1/A. PW 2 Mr. Ram Kumar, ACIO II who was posted as Clearance Officer at IGI Airport on 26.11.2005, complainant in the matter has proved his complaint as Ex. PW 2/A. In his complaint, he has mentioned that the accused was having one forged employment visa copy no. 079174/02/2005/107 for UAE on which, he had left IGI Airport on 24.11.2005 to Abu Dhabi.
9. Counsel for accused has vehemently argued that there was nothing to prove that accused has created any forged visa for his travel to Abu Dhabi on 24.11.2005.
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He pointed out that as the accused was deported back to his Country from UAE, it has been presumed by the police officials that his visa was invalid. He further submits that the IO has never visited the Embassy of UAE and ascertained that the said visa was forged. No witness has been examined from UAE Embassy who could have proved that the said visa was not proper.
10. I have gone through the record and considered the testimony of all witnesses. The prosecution has failed to prove that the alleged employment visa used by the accused on 24.11.2005 was a forged one. There is only one photocopy of verification report dated 22.05.2007 Mark X produced on record which mentions that the alleged 'entry permit' was not correct whereas the document in question is an employment visa. The document Mark X is a letter dated 22.05.2007 written on behalf of UAE Embassy to the Ministry of External Affairs wherein reference has been made to a letter dated 29.03.2007 written by the Ministry of External Affairs, Government of India in regard to the verification of genuineness of entry permit in the name of Ahmed Nazibul Hasan. Vide this letter, Ministry of External Affairs has been informed that the authorities in UAE vide their letter no. 6/4/2250 dated 15.05.2007 have informed the Embassy that the 'entry permit' was not correct. There is no mention of any employment visa in the letter which has been alleged to be fake. Even no number of the so called "entry permit" is mentioned in the said letter. Furthermore, the authority issuing the said letter is not identifiable. The IO has failed to produce on record the original visa verification report and even no explanation has been tendered about the non availability of the original visa verification report. The photocopy placed on record has not been proved by the authorized person from the concerned Embassy or by the Executor of this document. The genuinity of the document could have been ascertained through the maker of the document only. There is no evidence coming up on record to prove that the accused departed from India on the alleged forged visa.
FIR NO.: 637 OF 2005 POLICE STATION: IGI AIRPORT U/S: 420/468/471 IPC 9 of 11
11. Further, as per the case of the prosecution, in his disclosure statement Ex. PW 5/C, the accused has stated that the employment visa used by him was a genuine document which was legally obtained by him through agent Mohd. Mazidulla on payment of Rs. 1.6 Lakhs which was made through a bank transaction from his ICICI Bank account in Lucknow. The chargesheet filed by the IO is silent in regard to the proceedings against the alleged agent. No supplementary chargesheet has been filed in this regard. The IO has also failed to verify the money transaction made through the Bank. No investigations have been conducted in regard to the transfer of the money by the accused through his agent nor the introducers of the account were traced by the police. Further as per the report Ex. PW 1/A placed on record, passport of the accused was found to be genuine.
12. The IO in his cross examination has testified that the agent Abdulla and Mirza were not made accused in this case. He admitted that introducers in the Bank account have not been made accused in the case. He admitted that he has not filed any documents of Bank Account Opening form and details of introducer as the same were not relevant, however, he stated that he has verified the visa in question. He admitted that in the disclosure statement, the name of account holder was mentioned as Mohd. Mazidulla and not Abdulla. The IO has conducted no investigation in this regard.
13. As per the prosecution, the accused Ahmed Hasan was arrested at IGI Airport after he was deported from UAE on the ground that he was carrying forged employment visa copy. The prosecution however has totally failed to prove the deportation of the accused on the alleged forged visa on 25.11.2007. No documentary evidence to prove his departure has been placed on record. Neither any witness has been examined to prove the visa verification report nor any witness was examined from FIR NO.: 637 OF 2005 POLICE STATION: IGI AIRPORT U/S: 420/468/471 IPC 10 of 11 concerned Embassy of the United Arab Emirates and from Ministry of External Affairs who could have proved the visa verification report. The original visa verification report is not on the record and the IO has failed to tender any explanation in this regard. There is nothing coming up on record to prove that the accused Ahmed Hassan has deceived or induced any Immigration Official to allow him to travel on forged visa.
14. In view of the discussions hereinabove, considering the aforementioned discrepancies, I am satisfied that the accused is certainly entitled to the benefit of doubt. The prosecution has failed to prove its case beyond reasonable doubt's against the accused. The accused Ahmed Hasan hence stands acquitted for the charges alleged against him.
(ANNOUNCED IN THE OPEN SUDESH KUMAR COURT ON 25th March, 2013) ADDITIONAL CHIEF METROPOLITAN MAGISTRATE01 This Judgment contains 11 pages NEW DELHI DISTRICT and each paper is signed by me. PATIALA HOUSE COURTS,DELHI FIR NO.: 637 OF 2005 POLICE STATION: IGI AIRPORT U/S: 420/468/471 IPC 11 of 11