Delhi District Court
State vs . Upender Kumar on 19 July, 2023
IN THE COURT OF MS NEETI SURI MISHRA
ACMM (NORTH): ROHINI COURTS:NEW DELHI
Cr. Case no. 155/2018
STATE Vs. Upender Kumar
FIR NO 690/2016
PS Mukherjee Nagar
Date of Institution of case: 05.01.2018
Date of Judgment reserved: 08.06.2023
Date on which Judgment pronounced: 19.07.2023
Unique ID no. of the case : DLNT02-000199-2018
Date of commission of offence : 20.06.2012
Name of complainant : Dr. Joy N Tirkey
Name and address of accused : Upendra Kumar s/o Sh. Mahipal Singh
r/o VPO Sultanpur Hatana District
Bagpal Uttar Pradesh
Offence complained of : u/s 420/511 IPC & Section 468/471
IPC
Plea of accused : Pleaded not guilty
Date of reserving the order: 08.06.2023
Date of order : 19.07.2023
Final order : Acquitted u/s 420/511 IPC & Section
468/471 IPC
FIR No. 690/2016 State vs Upender Kumar page no. 1/30
JUDGMENT
1. In a nutshell, the facts of the present case are that in the year 2012 the Delhi Police had published an advertisement in two leading newspapers namely Hindustan Times and Employment News on 30/05/2012 and 02/06/2012, respectively, advertising 752 vacancies for the post of Constable (Driver) in the department of Delhi Police. It is alleged that in response to the said advertisements, accused Upendra Kumar applied for the post of Constable (Driver) on 20/06/2012 through an application form bearing registration no. 1340186188 and was allotted Roll No. 813429 to appear in the written test. It is prosecution's case that the terms and conditions of the advertisements mandated the candidates applying for the post, to have a valid license for driving a heavy motor vehicle at the time of submission of the application form. It is further alleged by prosecution that through this duly-filled application form submitted by him with the department, accused furnished details of a driving license bearing no. V-731/BPT/9 dated 09/02/2009 and claimed that the said driving license was issued to him by the Licensing Authority at Baghpat, UP. Relying on the information supplied by him in the application form regarding the driving license and the copy of his driving license, he was permitted to take the written test scheduled by the department for 11/11/2012. The result of the written test was declared on 17/12/2012 and the accused cleared the same. He was declared qualified for the trade test too.
2. Subsequently, when the said driving license details were got verified by the Special Branch of Delhi Police, the verification report revealed that the HTV/HMV driving license no. V-731/BPT/9 dated 09/02/2009 was FIR No. 690/2016 State vs Upender Kumar page no. 2/30 indeed issued by the Transport Authority, Baghpat and was also subsequently endorsed for driving heavy motor vehicles. But revelation was also made to the effect that HTV driving license no. V-731/BPT/9 was issued to drive and HTV/HMV by the Transport Authority, Baghpat on the basis of the driving license bearing no. 3274/Agra/05 dated 30/09/2005 which was issued by the Transport Authority, Agra and upon verification of the said license issued by the Agra Transport Authority, it was revealed to be forged/fake one. Verification report furnished by the Agra Transport Authority to the Special Branch confirmed that the license bearing no. 3274/Agra/05 was issued in favour of one Chander Prakash s/o Shri R. Chander and was never issued in favour of the accused Upendra Kumar. The verification report of the Transport Authority, Agra triggered the registration of FIR against the accused under Sections 420/468/471 IPC.
3. Lodging of FIR became the springboard for police investigation. After culmination of investigation, chargesheet was filed in court. Cognizance was taken by the court of the offences alleged to have been committed by accused. Accused was thereafter summoned by court as he had been served with Notice under Section 41A of the Crpc. for joining investigation by the investigating officer. He was admitted to regular bail on his appearance. Arguments on charge were heard and charge under Sections 420/511 and Section 468/471 IPC were framed against the accused. He did not plead guilty to the charge and claimed trial.
4. Prosecution commenced recording of evidence of its witnesses. An aggregate of nine prosecution witnesses were examined. Their testimonies are as under:
FIR No. 690/2016 State vs Upender Kumar page no. 3/30 PW-1: Dr. Joy N.Tirkey, DCP Crime Branch deposed that on 08.04.2016 he was posted as Aditional DCP, Recruitment Cell, Delhi. On that day, he had given a written complaint to DCP (North West) District Delhi, regarding taking of legal action against one Upender Kumar who had applied for the post of Constable (driver) in Delhi Police 2012 in pursuance to the advertisement issued. Witness deposed that Upender Kumar had qualified the trade test for the abovesaid post and had also furnished copy of a heavy transport vehicle driving license which was required for the abovesaid post. He deposed that on the basis of verification conducted by Special Branch of Delhi Police from the concerned issuing authority of the driving license, the said driving license was found to be forged/fake. He deposed that Upender Kumar had tried to seek employment with Delhi Police by adopting deceitful means through mala fide intention by submitting fake/forge driving license for which PW-1 gave his complaint proved by him as Ex. PW-
1/A for registration of FIR. Witness also identified his signature on the complaint.
PW-2: SI Jai Chand deposed that on 13.08.2016 he was posted as ASI at PS Mukherjee Nagar and on that day he was working as duty officer from 4:00 pm to 12:00 midnight. On that day at about 6:10 pm one typed complaint was handed over to him by the SHO for registration of FIR and on the basis of the same he got the present FIR registered, copy of the same was proved as Ex. PW-2/A (OSR). Witness stated that he made endorsement on the complaint proved as Ex. PW-2/B. He also proved certificate issued by him u/s 65 B of the Indian Evidence Act as Ex. PW-2/C and stated that after the registration of FIR he handed FIR No. 690/2016 State vs Upender Kumar page no. 4/30 over the copy of FIR and original complaint through SI Ram Mehar to whom the investigation of the case was assigned.
PW-3: Ms. Ritu Aggarwal, Senior Assistant, Regional Transport Office, District Agra, UP deposed that she has been deputed by the Regional Transport Officer, RTO, District Agra, UP to bring the relevant record relating to Driving license no. 3274/AG/05. She deposed that she has brought the record issued by the licensing officer, Regional Transport Office, Agra, UP in which it was specifically mentioned at serial no. 1 that driving license no. 3274/AG/05 has been issued in the name of one Sh. Chander Prakash, s/o Sh. R.Chand r/o Agra. Witness proved the report brought by her as Ex. PW-3/A (OSR) bearing the signatures of licensing officer, RTO, Agra. She deposed that she can also identify the signatures of Sh. Sudhir Kumar, Regional Inspector, RTO Agra as she has seen him writing and putting signatures. Witness proved the verification report as Ex. PW-3/B and also proved the attested copy of the relevant portion of the record as Ex. PW-3/C (OSR) bearing the seal and signatures of Sh. Sudhir Kumar.
PW-4: Sh. Dilip Kumar, Senior Assistant, Regional Transport Office, District Bagpat, UP deposed that he has been deputed by the Regional Transport officer, RTO, District Bagpat, UP to bring the relevant record related to driving license no. U-731/BPT/09. He deposed that as per the said record the abovesaid license was issued in the name of Sh. Upender Kumar, s/o Sh. Mahipal and the said license was renewed on 26.02.2006 for driving an HTV/HPV from RTO Baghpat, UP on the basis of an old driving license bearing no. 3274/Agra dated 30.09.2005.
Witness deposed that Sh. Rajesh Shrivastav, ARTO, Baghpat has been transferred from there and witness can identify the signatures of FIR No. 690/2016 State vs Upender Kumar page no. 5/30 Sh. Rajesh Shrivastav who was working as ARTO, Baghpat as he has seen him writing and putting signatures during course of his official duties. Witness deposed that the report bearing no. 816 dated 02.06.2017 is Ex. PW-4/A and bears the seal and signatures of Sh. Rajesh Shrivastav. Witness deposed that the said report also tallies with the original record relating to the abovesaid license brought by him. He also deposed to have appeared with the original record relating to the renewal of the original driving license from Baghpat Authority. He deposed that the photocopy of the relevant portion of the record relating to the abovesaid driving license is Ex. PW-4/B (OSR).
PW-5: Ct. Brijesh Kumar deposed that on 10.05.2017 he was posted at PS AHTU North-West and on that day he alongwith Ct. Deepak went to Agra Authority (RTO office) to serve a notice u/s 91 Cr.P.C to the concerned officer, Agra, UP and to verify the driving license of the accused. He stated to have served the notice u/s 91 Cr.P.C to one clerk who was authorised to receive the same and at the same time he gave the receiving to the witness and also handed over reply to the notice u/s 91 Cr.P.C. Witness proved the notice u/s 91 Cr.P.C as Ex. PW-5/A and its reply as Ex. PW-3/B. Witness deposed that the person who replied to the notice also annexed certified copy of the register alongwith the reply and said document had already been proved as Ex. PW-3/C (OSR). He deposed that thereafter he and Ct. Deepak came back to the DIU office and handed over all the documents to SI Ram Mehar and the IO recorded their statement.
PW-6: Ct. Deepak deposed that on 10.05.2017 he alongwith Ct. Brijesh had gone to Mathura and Agra Transport Authorities for driving license verification of accused Upender Kumar alongwith notice u/s 91 FIR No. 690/2016 State vs Upender Kumar page no. 6/30 Cr.P.C. He deposed that as per the report received from Agra Authority the driving license no. 3274/Agra/05 was issued for driving a motorcycle in the name of one Sh. Chander Prakash r/o Agra and not in the name of accused Upender Kumar. He stated that the said report was given to the IO to the office of DIU and notice u/s 91 Cr.P.C was also served at the Mathura Transport Authority and the said report was also received through post. Witness deposed that he obtained report from the Agra Licensing Authority and same has been proved as Ex. PW-3/B. PW-7: Inspector Kuldeep Singh stated to have appeared with the original file relating to letter no. 10259/Rectt.Cell (R-V1)/NPL dated 06.10.2016, the related documents including the copy of advertisement, employment news dated 30.05.2012 and 02.06.2012 containing the advertisement for the post of constable (driver) in Delhi Police and certified copy of the result related to the abovesaid post which was dated 17.12.2012.
The copy of letter no. 10259/Rectt.Cell (R-V1)/NPL dated 06.10.2016 was proved as Ex. PW-7/A bearing signature of Sh. S.S. Rana who was posted as Inspector at Recruitment Cell. Witness deposed that as per report the abovesaid letter was accompanied with original application form and original verification reports of driving license verification of the DL of candidate Upender Kumar. Witness proved the advertisement related to the vacancy in question published in Hindustan Newspaper on 30.05.2012 as Ex. PW-7/B (OSR) and the advertisement published in employment news on 02.06.2012 as Ex. PW-7/C (OSR). Witness also proved the result of the written test for the abovesaid post conducted on 11.11.2012 running into 14 pages as Ex. PW-7/D (colly) (OSR). He stated FIR No. 690/2016 State vs Upender Kumar page no. 7/30 that the roll number of the candidate Upender Kumar is 813429 at page no. 4 of the said result.
PW-8: ASI Vinod Kumar depoed that on 07.10.2016 on the request of the IO he handed over the original application form and the heavy driving license verification reports received from Agra and Baghpat Authority from the special branch relating to the candidate Upender Kumar s/o Sh. Mahipal Singh. He deposed that as per the said reports the driving license of candidate Upender Kumar was found to be fake. He deposed that seizure memo was prepared by the IO while seizing the abovesaid documents and the same is proved as Ex. PW-8/A. Witness also proved the original application form of the candidate Upender Kumar as Ex. PW-8/B. PW-9: Retd. IO/SI Ram Mehar deposed that on 19.08.2016 the investigation of the present case was handed over to him. He deposed that on 07.10.2016 he collected the application form and driving license verification reports vide seizure memo already exhibited as Ex. PW-8/A bearing his signature at point B alongwith one letter proved as Ex. PW- 7/A. Witness deposed that the original application form of the accused is already Ex. PW-8/B. He further deposed that the two driving license verification reports (which were placed on the judicial file by the Ld. APP for the State as they were placed in the police file only) were proved as Ex. PW-9/A and Ex. PW-9/B. Witness deposed that on 06.01.2017 he issued notice u/s 91 Cr.P.C Marked as Mark X-1 bearing his signature at point A to the accused who produced his original heavy driving license alongwith the ID proof that on 28.03.2017 accused appeared in the office of DIU and was interrogated vide interrogation report proved as Ex. PW-9/C. He deposed FIR No. 690/2016 State vs Upender Kumar page no. 8/30 that the accused also produced his original driving license to drive the heavy transport vehicle and the same was taken into police possession vide seizure memo Ex. PW-9/D bearing his signature at point A and of the accused at point B. The original driving license furnished by the accused was proved by witness as Ex. P-1.
He deposed that on 10.05.2017 he sent Ct. Brijesh and Ct. Deepak alongwith notices u/s 91 Cr.P.C issued to the concerned authorities at Agra for obtaining the verification report regarding the driving license of accused. On 14.05.2017 Ct. Brijesh handed over to the witness the verification report of driving license bearing no. 3274/AG/05 and as per the said report the said driving license was not issued from the transport/licensing authority, Agra, UP in favour of the accused rather the same was found issued in the name of one Chander Prakash s/o Sh. R.Chand. Witness deposed that the verification report of driving license of the accused issued from the transport/licensing authority, Baghpat, UP which is already Ex. PW-4/A was collected by him. He deposed that during the course of investigation he recorded the statement of witnesses u/s 161 Cr.P.C, collected the notifications issued in the newspapers for the recruitment of Constable Driver in Delhi Police which have already been proved as Ex. PW-7/B and Ex. PW-7/C. Witness also deposed that the result has also been proved as Ex. PW-7/D. Witness also deposed that accused tried to seek employment by furnishing forged and fabricated driving license to drive the heavy transport vehicle. Finally he deposed that after concluding the investigation he filed the chargesheet in the court.
All witnesses of prosecution were cross examined at length by the counsel for accused.
FIR No. 690/2016 State vs Upender Kumar page no. 9/30
5. On closure of prosecution's evidence, statement of accused in terms of Section 313 of the Code of Criminal Procedure was recorded. He denied the allegations levelled against him. He denied the incriminating aspects of prosecution's evidence and claimed innocence. Opportunity was afforded to him to lead evidence to prove his defence, however, he declined to lead evidence. Matter was thus fixed for final arguments.
6. Final arguments were heard from the rival parties. Ld. APP for the State contended that prosecution has successfully proved its case against the accused. He argued that the accused had attempted to deceive the department of Delhi Police by intentionally submitting details of the driving license issued by the Baghpat Transport Authority which was issued on the basis of a fake/forged driving license alleged to have been issued by the Agra Transport Authority in favour of accused, but in reality, the Agra Transport Authority had never issued any driving license in favour of accused. He urged that the Agra Transport Authority had actually issued driving license bearing no. 3274/Agra/05 in favour of one Shri Chander s/o Shri R. Chander. The license authorized Shri Chander s/o Shri R. Chander to drive only light motor vehicles. He further urged that verification reports submitted by the Special Branch of Delhi Police, unveiled that correct factual situation that the accused had intentionally and knowingly prepared the said fake/forged license alleged to have been issued by Agra Transport Authority and was continuously using the same till he got a new license issued from the Transport Authority, Baghpat on the basis of the previous one. It was further argued that it can be easily deduced that he aimed to deceive the Delhi Police in two ways, i.e. firstly by furnishing details of a fake license to wrongfully secure an employment and secondly to give an impression that he was authorized to FIR No. 690/2016 State vs Upender Kumar page no. 10/30 drive heavy transport vehicles, whereas in reality he did not have either the authorization or expertise to drive such vehicles. It was argued that the conduct of accused posed grave danger for the safety of public at large and hence his conduct is unpardonable. He further argued that since the first license allegedly issued by Agra Transport Authority was fake, consequently the driving license issued and later endorsed by the Baghpat Transport Authority on the basis of the previous fake one, ought also to be considered as fake and forged. He thus argued that accordingly, the accused is liable for conviction for the offence of Section 420/511 IPC as he made attempts to deceive the Delhi Police Department, but his attempt was thwarted and offence could not be culminated as the truth was unveiled well within time i.e. before confirmation of his employment. He lastly contended that there is ample evidence led by prosecution to convict accused even for the offences punishable under Section 468/471 IPC. Hence, Ld. APP for State prayed for conviction of the accused.
7. In contrast to the contentions of Ld. APP for the State, Ld. Defence counsel vehemently argued in favour of acquittal of accused. Several points of defence were raised. They can be summarized as:- Firstly, that the accused had furnished accurate details of his driving licence in the application form for employment of constable (driver) as the said license was issued to him by the Baghpat Transport Authority, and consequently the license cannot be termed as fake. Secondly, even the foremost license to drive an LMV, of the Agra Transport Authority was lawfully got prepared by accused by duly complying with the prescribed rules and procedures and prosecution's stand alleging that license of Agra Transport Authority is not substantiated by any concrete evidence. Thirdly, it was urged that if the driving license issued by the Agra Transport Authority to FIR No. 690/2016 State vs Upender Kumar page no. 11/30 drive a light motor vehicle had been fake/forged, then the Baghpat Transport Authority would not have issued a fresh license to accused to drive heavy transport vehicles and on the contrary would have cancelled his previous license too. It was argued that since the Baghpat Transport Authority had issued a fresh license to accused to drive heavy motor vehicles, the accused cannot be blamed for the offence of cheating or forgery, for merely furnishing details of the said license for seeking employment with Delhi Police. It was contended that accused would have been at fault, if the said driving license issued by Baghpat Transport Authority, had been a forged one. It furthermore contended that the Baghpat Transport Authority being a government department must have conducted its due diligence before issuing the license bearing no. V- 731/BPT/9 dated 09/02/2009 to the accused. It was contended that both the licenses issued in favour of accused were lawfully got prepared by him and none of them is either fake or got illegally prepared. It was lastly contended vociferously that entire case of prosecution against the accused is nothing but an attempt to frame the accused in a false case which was never committed by him. Ld. Defence counsel thus prayed for acquittal of accused in the present case.
8. Submissions were heard at length and record of the case was meticulously perused.
9. The cardinal principles of criminal jurisprudence which form the foundation of every criminal trial are that in every criminal trial, the accused is presumed to be innocent until he is proven guilty. Secondly, in every criminal trial, prosecution is duty bound to prove the case against the accused beyond all reasonable doubts and prosecution's case has to stand on its own legs. It cannot derive any benefit/ advantage whatsoever, FIR No. 690/2016 State vs Upender Kumar page no. 12/30 from the weaknesses in the defence of the accused. Lastly, if there exist reasonable doubts in the prosecution's story, then such reasonable doubts entitle the accused to be acquitted from the case.
10. In the case reported as Paramjeet Singh @ Pamma Vs. State of Uttarakhand, 2011CRI.L.J.663, the Hon'ble Supreme Court, held in para no. 11 and 12 as under:
"11. A criminal trial is not a fairy tale wherein one is free to give flight to one's imagination or fantasy. Crime is an event in real life and is the product of an interplay between different human emotions. In arriving at a conclusion about the guilt of the accused charged with commission of a crime, the court has to judge the evidence by the yardstick of probabilities, intrinsic worth and the animus of witnesses. Every case, in the final analysis, would have to depend upon its own facts. The court must bear in mind that "human nature is too willing, when faced with brutal crimes, to spin stories out of strong suspicions." Though an offence may be gruesome and revolt the human conscience, an accused can be convicted only on legal evidence and not on surmises and conjecture. The law does not permit the court to punish the accused on the basis of a moral conviction or suspicion alone." The burden of proof in a criminal trial never shifts and it is always the burden of the prosecution to prove its case beyond reasonable doubt on the basis of acceptable evidence." In fact, it is a settled principle of criminal jurisprudence that the more serious the offence, the stricter the degree of proof required, since a higher degree of assurance is required to convict the accused. The fact that the offence was committed in a very cruel and revolting manner may in itself be a reason for scrutinizing the evidence more closely, lest the shocking nature of the crime induce an instinctive reaction against dispassionate judicial scrutiny of the facts and law. (Vide: Kashmira Singh Vs. State of Madhya Pradesh, AIR 1952 SC 159; State of Punjab Vs. Jagir Singh Baljit Singh & Anr. AIR 1973 SC 2407; Shankarlal Gyarasilal Dixit Vs. State of Maharashtra, AIR 1981 SC 765; Mousam Singha Roy & Ors. Vs. State of West Bengal, (2003) 12 SCC 377; and Aloke Nath Dutta & Ors. Vs. State of West Bengal, (2007) 12 SCC 230)."
FIR No. 690/2016 State vs Upender Kumar page no. 13/30
12.In Sarwan Sigh Rattan Singh Vs. State of Punjab, AIR 1957 SC 637, this court observed (Para12):
"Considered as a whole the prosecution story may be true; but between 'may be true' and 'must be true' there is inevitably a long distance to travel and the whole of this distance must be covered by legal, reliable and unimpeachable evidence (before an accused can be convicted)."
11. Reverting to the factual matrix of the present case, the accused Upendra Kumar had been put on trial for allegedly attempting to deceive the Delhi Police department to gain employment for the post of constable (driver), by submitting details of a fake/forged driving license. Prosecution's stand is that Delhi Police department had advertised 752 vacancies in two leading newspapers of Delhi on 30/05/2012 and on 02/06/2012. In response to the advertisements the accused had applied for the post on 20/06/2012 vide registration number 1340186188 and subsequently roll no. 813429 was allotted to him which enabled him to write the written test scheduled for 11/11/2012. Prosecution alleged that the accused wrote the written test and qualified the same. He was declared eligible for the trade test too. But when the driving license details submitted in column no. 12 of the application/registration form by the accused were got verified by the Special Branch of Delhi Police, it was found that the driving license bearing no. V-731/BPT/9 dated 09/02/2009 was issued for driving heavy motor vehicle and the said license had been issued on the basis of an erstwhile driving license bearing no. 3274/Ag/05 dated 30/09/2005 which was purported to be issued by Agra Transport Authority, but in reality such license was never issued in favour of the accused. It is prosecution's case that license of the Agra Transport Authority, was found fake/forged. Allegations against the accused were FIR No. 690/2016 State vs Upender Kumar page no. 14/30 thus of committing offences punishable under Sections 420/511 and Section 468/471 IPC for which he was also charged.
12.An overall assessment of the prosecution's case, comprising the entire evidence brought on record, reveals that the following points have arisen for determination by this court:
I) Whether the accused had attempted to cheat the Department of Delhi Police by furnishing incorrect details of his driving license in column no. 12 of the application form for the post of constable (driver) and thereby committed offence punishable under Section 420/511 IPC?
II) Whether the driving licenses issued by Baghpat and Agra transport authorities for driving a heavy transport vehicle (an HTV) were forged by the accused for the purpose of cheating the Department of Delhi Police and thereby he committed offence punishable under Section 468 IPC?
III) Whether the accused used as genuine the forged driving license, knowing or having reasons to believe the same to be a forged document and thereby he committed offence punishable under Section 471 IPC?
IV) Conclusion
13.Whether the accused had attempted to cheat the Department of Delhi Police by furnishing incorrect details of his driving license in column no. 12 of the application form for the post of constable (driver) and thereby committed offence punishable under Section 420/511 IPC?
a) The allegations of attempt to cheat/deceive have been levelled against the accused in the present case. Accused was accordingly charged under Section 420/511 IPC. The term "cheating" has been defined FIR No. 690/2016 State vs Upender Kumar page no. 15/30 under Section 415 IPC and Section 420 IPC makes the offence punishable with imprisonment which may extend upto 7 years. Further, the attempt to commit an offence has been made punishable vide Section 511 IPC. All the relevant provisions with which the accused has been charged are reproduced as under:
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".
420. 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.
511. Punishment for attempting to commit offences punishable with imprisonment for life or other imprisonment.--Whoever attempts to commit an offence punishable by this Code with 2 [imprisonment for life] or imprisonment, or to cause such an offence to be committed, and in such attempt does any act towards the commission of the offence, shall, where no express provision is made by this Code for the punishment of such attempt, be punished with 3 [imprisonment of any description provided for the offence, for a term which may extend to one-half of the imprisonment for life or, as the case may be, one- half of the longest term of imprisonment provided for that offence], or with such fine as is provided for the offence, or with both.
b) In the landmark judgment titled as Prof. R.K. Vijayasarathy vs Sudha Seetharam, (Decided on 15 February, 2019), the Hon'ble Apex Court FIR No. 690/2016 State vs Upender Kumar page no. 16/30 enumerated the essential ingredients for proving the offence of cheating. It observed:
"i) A person must commit the offence of cheating under Section 415;
and
ii) The person cheated must be dishonestly induced to-
(a) deliver property to any person; or
(b) make, alter or destroy valuable security or anything signed or sealed and capable of being converted into valuable security.
Cheating is an essential ingredient for an act to constitute an offence under Section 420."
c) Further, even in the decisions titled as Archana Rana vs The State Of Uttar Pradesh, (Decided on 1 March, 2021), Dr. Lakshman vs The State Of Karnataka, (Decided on 17 October, 2019) the Hon'ble Apex Court discussed the essential ingredients for proving the offence of cheating. In Samir Sahay @ Sameer Sahay vs The State Of Uttar Pradesh Home, (Decided on 25 August, 2017), the Hon'ble Supreme Court while discussing the law related to cheating observed:
"18. According to Section 415 IPC, the inducement must be fraudulent and dishonest which depends upon the intention of the accused at the time of inducement. This Court had occasion to consider Sections 415 and 420 IPC in Hridaya Ranjan Prasad Verma and others vs. State of Bihar and another, 2000 (4) SCC 168. This Court after noticing the provisions of Section 415 and 420 IPC stated following in paragraphs 14 and 15:
"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 FIR No. 690/2016 State vs Upender Kumar page no. 17/30 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. ...
22. In G.V. Rao v. L.H.V. Prasad, 2000 (3) SCC 693, this Court has held thus: (SCC pp. 69697, para 7) "7. As mentioned above, Section 415 has two parts. While in the first part, the person must 'dishonestly' or 'fraudulently' induce the complainant to deliver any property; in the second part, the person should intentionally induce the complainant to do or omit to do a thing. That is to say, in the first part, inducement must be dishonest or fraudulent. In the second part, the inducement should be intentional. As observed by this Court in Jaswantrai Manilal Akhaney v. State of Bombay, AIR 1956 SC 575, a guilty intention is an essential ingredient of the offence of cheating. In order, therefore, to secure conviction of a person for the offence of cheating, 'mens rea' on the part of that person, must be established. It was also observed in Mahadeo Prasad v. State of W.B., AIR 1954 SC 724, that in order to constitute the offence of cheating, the intention to deceive should be in existence at the time when the inducement was offered."
d) A meaningful reading of the law discussed in the afore-given decisions indicates that for proving the offence of cheating, there must be cogent and convincing evidence to establish that the act of cheating committed by the accused was backed by his intention to cheat. It must be established beyond doubts that the intention to cheat had existed from the very inception of the act. It must further be proved that the penultimate act committed by the cheated person, was solely the result of his deception by the accused and such penultimate act would not have been committed by him, had he not been so deceived by the accused. Thus, intention to cheat being the sine qua non must FIR No. 690/2016 State vs Upender Kumar page no. 18/30 be established beyond all doubts by the prosecution for proving the offence of cheating, besides the actus reus constituting the offence.
e) Adverting now to the facts of the present case. For proving the offence of attempting to cheat against the accused Upendra Kumar, prosecution has examined nine witnesses in its favour. Of all the nine witnesses, the most crucial witnesses are PW1, PW3 and PW4. All remaining witnesses are merely formal witnesses. PW1 is Dr. Joy Tirkey, the then Additional DCP, Recruitment Cell. He is also the complainant of the present case, on whose complaint the FIR bearing no. 690/2016 proved as Ex.PW2/A was registered against the accused. The complaint has been proved by PW1 as Ex.PW1/A.
f) Perusal of the complaint Ex.PW1/A demonstrates that after accused was declared qualified in the written test held on 11/11/2012, a routine verification of the antecedents of the qualified candidates was got conducted through the Special Branch of Delhi Police. Verification exercise was also carried out by seeking reports regarding genuineness of the driving licenses, details of which had been furnished by the qualified applicants themselves. Verification of such details were sought from the concerned licensing authorities. Even in the present case, report was called from the Licensing Authority, Baghpat, UP regarding genuineness of driving license of accused bearing no. V- 731/BPT/9 dated 09/02/2009. Thereafter, report was also sought from the Transport Authority, Agra regarding genuineness of driving license bearing no. 3274/Agra/05 dated 30/09/2005. It is these verification reports which have been proved as Ex.PW9/A and Ex.PW9/B and constituted the foundation of criminal proceedings against the accused.
FIR No. 690/2016 State vs Upender Kumar page no. 19/30
g) To begin with, the admissibility of both the above-stated reports was challenged by the accused. It had been argued that prosecution had sought to prove both the reports in evidence at the fag-end of its case, that too through the investigating officer. It was argued that the concerned officials who had signed and attested the reports had not been summoned in its evidence by prosecution, hence both the reports can neither be relied on nor be read in evidence.
h) Perusal of both reports brought in evidence as Ex.PW9/A and Ex.PW9/B has revealed that both the reports are allegedly signed by the licensing officers of the Baghpat and Agra transport authorities. But said licensing officers were never cited as witnesses by the investigating officer. Consequently, they were never summoned as witnesses for proving the reports. Perusal of both reports proved as Ex.PW9/A and Ex.PW9/B shows that they are titled as PROFORMA and are merely verification reports prepared by the licensing officer concerned on the basis of the public records maintained by the said transport authorities. Both the reports by no stretch of imagination can be termed as certified copies of the public record preserved by the authorities concerned. A certified copy of a public document as per Section 76 of the Indian Evidence Act, 1872 is an as it is copy of the actual record maintained by the public department and is accompanied with a certificate written at the foot of such copy that it is a true copy of such document or part thereof. Such certificate is also dated and subscribed by such officer with his name and his official title. It is also sealed whenever such officer is authorized by law to make use of a seal. Only such copies so certified are called as certified copies. A certified copy also has the privilege of being admitted in evidence FIR No. 690/2016 State vs Upender Kumar page no. 20/30 even without always formally calling the witness from the public department for proving it. (Reliance is placed on Jaswant Singh vs. Gurdev Singh and others, 2011(4) Civil Court Cases 0738 and Madamanchi Ramappa & Anr vs Muthalur Bojjappa, 1963 AIR 1633, 1964 SCR (2) 673). But such privilege cannot be given to a mere report prepared by a government official on the basis of the record preserved by such department as the report is not the true and certified copy of the said public record. Since the verification reports could not be granted the privilege attached to a certified copy, the presumption regarding their genuineness, also could not be raised in terms of Section 79 Indian Evidence Act. Thus, both verification reports having not been proved through the proper mode i.e. through the attesting witnesses, remain inadmissible in evidence. Thus, in the considered opinion of this court, both reports can neither be relied on nor be read in evidence.
i) Proceeding further with analysis of the other pieces of evidence led by prosecution. The testimony of PW4 Shri Dilip Kumar, Senior Assistant, Regional Transport Office, District Baghpat, UP, proved in evidence the record of the Baghpat authority as Ex.PW4/A and Ex.PW4/B. Vide the said public record it was proved beyond doubts that accused Upendra Kumar was initially issued a license bearing no. V-731/BPT/9 which was issued to drive motorcycle and LMV. That license was later upgraded and he was authorized/ licensed to drive heavy transport vehicles. Ex.PW4/A further proved that the authorization to drive HTV issued on 26/02/2006 was valid till 25/12/2015. The automatic inference which can be drawn from such proof is that on 20/06/2012 i.e. the day on which the accused FIR No. 690/2016 State vs Upender Kumar page no. 21/30 submitted his application form filling details of license issued by Baghpat transport authority, he actually possessed the authorization to drive heavy transport vehicles issued from the Baghpat authority. The submission of details by him regarding his license was not incorrect or false.
j) This far, there exists no controversy. But going further, as the license purportedly issued by Agra transport authority bearing no. 3274/Agra/05 was got verified by the Special Branch, the same was found to be a forged one. Record proved as Ex.PW3/A and Ex.PW3/B by PW3 Senior Assistant, Regional Transport Office, District Agra, UP, established beyond doubts that the said license was a forged one as it was proved to never have been issued in favour of the accused. PW3 proved beyond all doubts that said license had been issued in favour of one Shri Chander S/o Shri R. Chander and never issued in favour of accused Upendra Kumar. Thus, the forged nature of the license purportedly issued by the Agra licensing authority stood proved beyond all doubts.
k) But, most significantly one cannot lose sight of the fact that when accused had submitted the application form for the post of constable (driver) proved as Ex.PW8/B, in column no. 12 of the form, he had mentioned details of the license issued to him by the Baghpat Licensing Authority which verily authorized him to drive heavy transport vehicles. He never mentioned any details of the license purportedly issued by the Agra licensing authority. Thus, regard should be had to the fact that when no details of the license of the Agra licensing authority were written in the application form filled by accused, it cannot automatically be deduced that he had furnished FIR No. 690/2016 State vs Upender Kumar page no. 22/30 details of a forged/fake license and hence he attempted to cheat Delhi police to gain employment with them. Most pertinently, at the relevant time when he had submitted details of license issued by Baghpat Authority, he was truthfully making submission of the genuine information possessed by him at that point of time. The offence of cheating would have been committed against the Delhi Police, if details of license purportedly issued by the Agra licensing authority had been stated in the application form by accused. But the Baghpat licensing authority had much prior to the filling of this application form proved as Ex.PW8/B, itself issued a valid license to accused, authorizing him to drive the heavy transport vehicles. Thus, merely because the erstwhile license was found to be fake/forged in the verification exercise, the offence of attempt to cheat does not stand to have been committed against the Delhi Police Department. Regard be had to the fact that offence had been committed against Delhi Police, if details of Agra license had been mentioned in the registration form as for the purpose of commission of offence with the Delhi Police, the relevant license was the one issued by the Baghpat licensing authority. It is immaterial that during verification, accused's erstwhile license was found to be forged. Offence of cheating if any has occurred, in the considered opinion of this court, has occurred against the Baghpat Licensing Authority, whose failure to conduct due diligence of the details of the accused's erstwhile license, led them to issue a fresh license to accused and even to subsequently endorse it from time to time. But no offence of attempt to cheat was committed against the Delhi Police Department.
FIR No. 690/2016 State vs Upender Kumar page no. 23/30
l) The prosecution has apparently failed to establish both the actus reus as well as the mens rea to cheat against the accused. Since prosecution has been unsuccessful in establishing all the essential ingredients for proving the offence of attempt to cheat against the accused, the accused is not found liable for the offence punishable under Section 420/511 IPC and he is entitled to acquittal for the said offences.
14.Whether the driving licenses issued by Baghpat and Agra transport authorities for driving a heavy transport vehicle (an HTV) were forged by the accused for the purpose of cheating the Department of Delhi Police and thereby he committed offence punishable under Section 468 IPC?
a) In the present case, the accused has been charged with Section 468 IPC for committing the offence of forgery for the purpose of cheating.
b) Section 468 IPC being the relevant provision herein, makes punishable the act of committing forgery if it is committed with the intention that the document or electronic record so forged shall be used for the purpose of cheating. To gain more clarity regarding the settled legal position relating to Section 468 IPC, the said provision is being reproduced, as under:
"468. Forgery for purpose of cheating.--Whoever commits forgery, intending that the [document or electronic record forged] shall be used for the purpose of cheating, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."
c) The provision of Section 468 IPC penalizes any act of forgery committed by a person for cheating another person. But what constitutes 'forgery of a document' has been defined under Section 463 IPC. According to Section 463 IPC, 'Forgery' is constituted when a person makes any false document or false electronic record or part of a document or electronic FIR No. 690/2016 State vs Upender Kumar page no. 24/30 record, with intention to cause damage or injury, to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed. The settled legal position is that when the above-mentioned ingredients are fulfilled, only then such person shall be said to have committed forgery and for proving offence against the accused, it must be proved beyond reasonable doubt by prosecution that the act of forgery or making of the false document was committed by the accused himself. Further, how can a false document/ electronic record be made has been enumerated under Section 464 IPC, which is reproduced as under:
"464. Making a false document-- [A person is said to make a false document or false electronic record-- First.--Who dishonestly or fraudulently--
(a) makes, signs, seals or executes a document or part of a document;
(b) makes or transmits any electronic record or part of any electronic record;
(c) affixes any [electronic signature] on any electronic record;
(d) makes any mark denoting the execution of a document or the authenticity of the [electronic signature], with the intention of causing it to be believed that such document or part of document, electronic record or [electronic signature] was made, signed, sealed, executed, transmitted or affixed by or by the authority of a person by whom or by whose authority he knows that it was not made, singed, sealed, executed or affixed; or Secondly.--Who without lawful authority, dishonestly or fraudulently, by cancellation or otherwise, alters a document or an electronic record in any material part thereof, after it has been made, executed or affixed with [electronic signature] either by himself or by any other person, whether such person be living or dead at the time of such alteration; or FIR No. 690/2016 State vs Upender Kumar page no. 25/30 Thirdly.--Who dishonestly or fraudulently causes any person to sign, seal, execute or alter a document or an electronic record or to affix his [electronic signature] on any electronic record knowing that such person by reason of unsoundness of mind or intoxication cannot, or that by reason of deception practised upon him, he does not know the contents of the document or electronic record or the nature of the alteration."
d) A close scrutiny of the above-mentioned provision further reveals that the proof of commission of 'forgery' by the accused himself is an essential pre-requisite/ ingredient for holding such person liable under Section 468 IPC. In the absence of the requisite proof having been brought on record and duly proved by prosecution, the accused cannot be held guilty of forgery. In the landmark judgment of Md. Ibrahim and Ors. vs. State of Bihar and Anr., (2009) 8 SCC 751, the Hon'ble Supreme Court, while discussing about making of a false document, reiterated the relevant portion of the provision and observed:
"A person is said to have made a `false document', if
(i) he made or executed a document claiming to be someone else or authorised by someone else; or
(ii) he altered or tampered a document; or
(iii) he obtained a document by practicing deception, or from a person not in control of his senses."
e) Also in Mir Nagvi Askari vs. Central Bureau of Investigation, (2009) 15 SCC 643, Hon'ble Supreme Court, after analysing the facts of that case, came to observed:
"A person is said to make a false document or record if he satisfies one of the three conditions as noticed hereinbefore and provided for under the said section. The first condition being that the document has been falsified with the intention of causing it to be believed that such document has been made by a person, by whom the person falsifying the document knows that it was not made. Clearly the documents in question in the present case, even if it be assumed to have been made dishonestly or FIR No. 690/2016 State vs Upender Kumar page no. 26/30 fraudulently, had not been made with the intention of causing it to be believed that they were made by or under the authority of someone else."
f) In Sheila Sebastian vs R. Jawaharaj, (Decided on 11 May, 2018) , the Hon'ble Supreme Court in para 20 of the judgment referred to the decision in Dickins v. Gill, (1896) 2 QB 310, where the Court was dealing with a case of fictitious stamps and observed "..an offence of forgery cannot lie against a person who has not created it or signed it." Going further, in para 25 of the said judgment of Sheila Sebastian (supra), the Hon'ble Supreme Court observed:
"Keeping in view the strict interpretation of penal statute i.e., referring to rule of interpretation wherein natural inferences are preferred, we observe that a charge of forgery cannot be imposed on a person who is not the maker of the same. As held in plethora of cases, making of a document is different than causing it to be made. As Explanation 2 to Section 464 further clarifies that, for constituting an offence under Section 464 it is imperative that a false document is made and the accused person is the maker of the same, otherwise the accused person is not liable for the offence of forgery."
g) Thus, the legal position being unambiguously clear, it needs to be scrutinized whether prosecution has been able to prove the offence of forgery for the purpose of cheating, against the accused or not.
h) The validity of license issued by Baghpat transport authority is undisputed and the same has also been proved in answer to the foregoing question. Also, for the purpose of proving cheating and forgery for cheating in the present case, the relevant license is the license issued by Baghpat Transport authority, as accused had furnished details of said license only to the Delhi police. Since license by Baghpat transport FIR No. 690/2016 State vs Upender Kumar page no. 27/30 authority was valid, the question of committing forgery for the purpose of cheating did not arise at all.
i) Prosecution's case is that accused had forged the license purportedly issued by Agra licensing authority, hence he is liable for the offence under Section 468 IPC. This stance of prosecution is totally misplaced. The foremost reason for this is that the relevant license details for the present case is the license issued by Baghpat transport authority and not the one issued by Agra transport authority. When license of Baghpat authority was found valid, the offence of forgery against accused is not made out. Secondly, even if for the sake of argument the details of license of Agra authority were in question, a bare and coalesced look at the evidence led by prosecution, has revealed that not even a single witness examined by prosecution testified that the said driving license was forged by the accused himself. Further no documentary evidence was also produced to establish the offence of forgery by accused himself. Thus, in the absence of any oral or documentary evidence to prove beyond all doubts that the offence of forgery has been committed by the accused, the accused cannot be convicted for the offence punishable under Section 468 IPC. The accused Rakesh Kumar is thus entitled to be given benefit of doubt for the charge of committing forgery and is not found guilty for the offence under Section 468 IPC.
15.Whether the accused used as genuine the forged driving license, knowing or having reasons to believe the same to be a forged document and thereby he committed offence punishable under Section 471 IPC?
a) In the present case, the accused Upendra Kumar has been charged with Section 471 IPC also. Section 471 IPC penalizes the act of using FIR No. 690/2016 State vs Upender Kumar page no. 28/30 as genuine a forged document or electronic record. Section 471 IPC is reproduced as under:
"Using as genuine a forged document or electronic record- Whoever fraudulently or dishonestly uses as genuine any 1[document or electronic record] which he knows or has reason to believe to be a forged 1[document or electronic record], shall be punished in the same manner as if he had forged such 1[document or electronic record]."
b) The term 'forged document' has been defined under Section 470 IPC as:
"A false [document or electronic record] made wholly or in part by forgery. is designated "a forged 1[document or electronic record]".
c) Prosecution's allegations are that accused had furnished details of his driving license which though had been validly issued by the Baghpat Transport Authority, but in the background the license on the basis of which this subsequent license was prepared, i.e. the license purportedly issued by the Agra Transport Authority, was fake/forged one, hence, the accused is liable for the offence of Section 471 IPC.
d) In this regard, it is pertinent to note that it is proved beyond all doubts that no license had ever been issued in favour of the accused by the Agra licensing authority. But most importantly, not even a single witness of prosecution has deposed that the accused had used the details of the Agra license for obtaining appointment with the Delhi Police. It is the prosecution's own case that the accused had furnished details of the license issued by the Baghpat Licensing Authority. Hence prosecution has failed to establish the use of forged license by accused for purpose of seeking employment with Delhi Police. The FIR No. 690/2016 State vs Upender Kumar page no. 29/30 accused therefore cannot be convicted even for the offence of Section 471 IPC.
Conclusion
16.In the wake of an all-inclusive examination and analysis of the facts, circumstances and evidence led by prosecution in the present case, this court is of the considered opinion that the prosecution has failed to establish its case against the accused Upendra Kumar for all the offences with which he was charged. The accused Upendra Kumar therefore is acquitted for the offences punishable under Sections 420/511 and Section 468/471 IPC.
17. File be consigned to record room.
A copy of the order be sent to the District Courts website.
(This judgment contains 30 pages and all have been signed by undersigned) (Neeti Suri Mishra) A.C.M.M. (North)/Rohini Courts Delhi/19.07.2022 FIR No. 690/2016 State vs Upender Kumar page no. 30/30