Delhi District Court
State vs . Virender Gupta Etc. Page 1 Of 28 on 21 April, 2018
IN THE COURT OF JITENDRA KUMAR MISHRA, SPECIAL JUDGE
(NDPS), NORTH DISTRICT, ROHINI COURTS, DELHI.
SC No. 58082/16
FIR No.500/13
U/s 420/328/34 IPC
P.S. Prashant Vihar
STATE
Vs.
1.Virender Gupta, S/o Sh. Nanu Mal Gupta, R/o H. No.599, Itwar Bazar Road, Chaman Vihar, Loni, Ghaziabad (U.P.). .....Accused No.1.
2. Sandeep @ Rahul, S/o Sh. Harpal Singh, R/o H. No. Q59, Bhagat Enclave, Uttam Nagar, Delhi. .....Accused No.2.
3. Devender @ Bablu, S/o Sh. Antram, R/o H. No. 43, SectorA, Bhagwati Vihar, Uttam Nagar, Delhi. .....Accused No.3.
Date of institution : 21.04.2014 Date of arguments : 15.03.2018 Date of judgment : 21.04.2018 JUDGMENT :
1. Accused persons were arrested by the Police of Police State Vs. Virender Gupta etc. Page 1 of 28 (FIR No. 500/2013 PS Prashant Vihar) Station Prashant Vihar, Delhi and was challaned to the Court for trial for commission of offences punishable under Sections 420/328/34 of the Indian Penal Code, 1860 (in short 'IPC').
2. The case of the prosecution, in brief, is that on 20.09.2013 between 11.00 AM to 8.30 PM outside Navyug Apartment, Sector9, Rohini, Delhi on the public road, within the jurisdiction of PS Prashant Vihar, accused persons in furtherance of their common intention made victim Amarnath Khurana to take cold drink laced with some intoxicating substance with intent to facilitate the commission of cheating of Rs.12,70,000/ and cheated Amarnath Khurana by dishonestly inducing him to deliver the abovesaid money of Rs.12,70,000/. Victim in his complaint had stated that on 20.09.2013 at about 11.00 AM, when he was standing outside the society, one person came there on a cycle and asked him the way towards Power House. In the meantime another person came there on a cycle and asked first cyclist why he was going towards Power House. First cyclist replied that he was going there to sell lottery tickets of Rs.1/ each. On the asking of second cyclist, he drew two lottery tickets on his behalf on which prize came out of Rs.200/. Second cyclist drew two lottery tickets but did not earn any prize. Second cyclist asked him to take out a ticket as he was lucky and on his asking, he took out two tickets but both went blank. Then, the first cyclist i.e. Virender told him that he had a new scheme wherein if the lottery tickets were found prize less, he would give him the cash State Vs. Virender Gupta etc. Page 2 of 28 (FIR No. 500/2013 PS Prashant Vihar) amount, which was shown credited in his passbook. He showed him a bag full of money saying that he was working in Mohan Mickens Company, was distributing prizes on behalf of company and he was getting commission @ 2% on the prize. In order to make him believe that they were not cheaters, the second cyclist went to his home to bring cash and returned with some money. He claimed that his pass book was lying at home and that his wife was not present at home. He further claimed that there was balance of Rs.14 lacs in his account in the passbook. In the meanwhile, third person came there and brought cold drink and gave to the victim. He took a little bit of it and thereafter, he went to his house to bring FDRs and passbook etc. After bringing the same from home, the victim went inside the bank, got the FDRs encashed and credited the amount of Rs.12,70,000/. He gave the amount of Rs.12,70,000/ to the first cyclist. Thereafter, the victim started feeling headache due to consumption of cold drink and all three persons ran away from there. He reached to his home at 8.30 PM in intoxicated state. He came in senses on the next day morning. Cash of Rs.12,70,000/ was found missing and only cheque book and passbook were there. On the basis of the complaint, FIR Ex. PW4/A was registered and the matter was investigated by the police. Accused persons were arrested. Statements of the witnesses were recorded. After completion of investigation and conducting other necessary formalities, chargesheet was filed in the Court.
3. After supplying copies of the documents to the accused State Vs. Virender Gupta etc. Page 3 of 28 (FIR No. 500/2013 PS Prashant Vihar) persons U/s 207 Cr.P.C., ld. Metropolitan Magistrate committed the present case to the Court of Sessions.
4. Charges U/s 328/420/34 IPC were framed separately against the accused persons Virender Gupta and Devender @ Bablu vide order dated 23.01.2015 and against accused Sandeep vide order dated 19.02.2015 to which they pleaded not guilty and claimed trial. All the three accused persons were accordingly put to trial.
5. Trial proceeded and in the course of trial, prosecution in order to substantiate its case against all the three accused, examined in all twenty witnesses.
6. After conclusion of prosecution evidence, statements of all the three accused persons were recorded separately under Section 313 Cr.P.C wherein all the incriminating evidence, which had come on record during trial against all three accused persons, was put to them and an opportunity was given to them to explain about the same. All three accused persons pleaded that they are innocent and have been falsely implicated in this case. They have been wrongly arrested in this case in order to solve a pending case. They have not made any disclosure statement and their signatures were obtained on blank papers by the police. They had not pointed out any spot. Cycles were already in the custody of police and were shown to the witnesses before their testimony before the Court. They submitted that PW2, State Vs. Virender Gupta etc. Page 4 of 28 (FIR No. 500/2013 PS Prashant Vihar) PW6, PW9 & PW13 are interested witnesses and have deposed falsely against them. Accused Sandeep & Devender submitted that they were arrested in a false case bearing FIR No.445/12 PS Subhash Palace and thereafter, falsely implicated in this case. They were not produced in muffled face and had been shown to the persons before appearing before the Court. Accused Devender submitted that the documents recovered from his house at Uttam Nagar, were not related to the present case in any manner whereas accused Sandeep submitted that the recovered amount of Rs.2 lacs alongwith some property documents from his house at Uttam Nagar were not related to the present case and also not recovered in the manner as stated by the witnesses. They did not lead evidence in their defence.
7. I have heard Sh. J. S. Malik, ld. Addl. PP for the State; Sh. A.K. Vashisht, ld. Amicus Curiae for accused Sandeep @ Rahul and Sh. Rahul Saraswat, ld. Counsel for accused Devender @ Bablu. Sh. Sharvan Shokeen, ld. Counsel for accused Virender Gupta has been given sufficient opportunities to argue the matter and even three days' time was given to him to advance his arguments but he did not avail this opportunity. Therefore, the Court has to refer arguments advanced on behalf of accused Virender Gupta as advanced by ld. Counsels for accused Sandeep @ Rahul and Devender @ Bablu. I have also perused the material on record.
8. Ld. Counsel for the accused persons have contended that State Vs. Virender Gupta etc. Page 5 of 28 (FIR No. 500/2013 PS Prashant Vihar) there is no direct evidence against the accused persons. They have been falsely implicated in this case. They further argued that there is no medical evidence brought on record which proves that there was any intoxication or any such substance was administered to the victim. It is further contended that PW9 i.e. victim had lost money in gambling and in order to save the reputation in the society, a false report was lodged and it is further contended that there is no recovery of amount from any of the accused.
9. Per contra, ld. Addl. PP for State has contended that there is not even an iota of doubt in coming to the conclusion that the accused persons have committed the offence, which is very serious in nature. They in connivance with each other, made the victim to take cold drink having mixed with some intoxicating substance, dishonestly induced him to deliver Rs.12,70,000/. The victim is an old aged person of about 72 years of age. Hence, all the three accused persons are liable to be convicted in this case.
10. The depositions made by the witnesses are as under :
i) PW1 is Ms. Rinki Jain, who deposed that she does not remember the facts of the present case. However, during cross examination conducted on behalf of State, PW1 admitted that on 20.09.2013, Sh. Amarnath Khurana had come to the branch of Karur Vysya Bank, Prashant Vihar, Sector14, Rohini, where she was posted State Vs. Virender Gupta etc. Page 6 of 28 (FIR No. 500/2013 PS Prashant Vihar) at that time, for withdrawal of Rs.12,70,000/ from his account through a self cheque. She further admitted that she had verified the said cheque as per banking procedure and thereafter, dealing hand Mr. Manisha Keshwani made payment to Sh. Amarnath.
Testimony of PW1 remained unchallenged during cross examination by ld. Defence Counsel.
ii) PW2 is SI Rajeev Ranjan, who deposed that he was Investigating Officer of another case FIR No.445/12, PS Subhash Palace. He deposed that on 13.12.2013, on the basis of secret informer, two accused persons namely Virender and Sandeep were apprehended. They made disclosure statements on 13.12.2013 & 19.12.2013 in FIR No.445/12, proved as Ex. PW2/1 & Ex. PW2/2 respectively. He further deposed that on 15.12.2013, accused Devender @ Bablu was arrested from his house; produced in muffled face on 16.12.2013 before the concerned Court and he refused to participate in judicial TIP. He has proved the supplementary disclosure statement made by accused Devender as Ex. PW2/3. He proved the pointing out memo of three cycles, which were used by the accused persons and seizure memo of the same was proved as Ex. PW2/4. PW2 further proved the pointing out and seizure memo as Ex. PW2/5 of property documents got recovered by accused Devender from his house in Uttam Nagar; seizure memo of property documents and cash of Rs.2 lacs as Ex. PW2/6 and Ex. PW2/7 respectively, got recovered at the instance of accused Sandeep; seizure State Vs. Virender Gupta etc. Page 7 of 28 (FIR No. 500/2013 PS Prashant Vihar) memo of lottery tickets and two bundles of paper notes as Ex. PW2/8 and seizure memo of a sum of Rs.1 lac in two bundles of Rs.50,000/ each from a box put in the Diwan in one of the rooms as Ex. PW2/9, got recovered at the instance of accused Virender from his house in Loni. He has further identified the bag as Ex.P2, parchies collectively as Ex. P3 and bundles of paper collectively as Ex. P4.
In crossexamination by the ld. Defence Counsel for accused Sandeep and Devender, PW2 denied the suggestion that both the accused had not made any disclosure statements dated 13.12.2013 or 19.12.2013 or that the same were false and fabricated or that nothing incriminating was recovered at the instance of any accused or that recoveries were planted upon them or that accused Sandeep and Devender had been lifted from their houses and then falsely implicated in this case as well as in many other cases or that the signatures of accused persons were forcibly obtained on many papers or that the accused persons were shown to the complainant in the office of PW2.
Testimony of this witness remained unchallenged during crossexamination on behalf of accused Virender Gupta.
iii) PW3 is HC Anil, who has joined the investigation of case FIR No.445/12 alongwith IO SI Rajeev Ranjan (PW2) and has deposed on the lines of deposition made by PW2.
During crossexamination, on behalf of accused Sandeep and Devender, PW3 denied the suggestion that he had never joined State Vs. Virender Gupta etc. Page 8 of 28 (FIR No. 500/2013 PS Prashant Vihar) the investigation of case FIR No.445/12 on 13.12.2013 or that both the accused had not made any disclosure statements in his presence or that nothing incriminating was recovered from the possession of accused persons.
Testimony of this witness also remained unchallenged on behalf of accused Virender Gupta.
iv) PW4 HC Dinesh Kumar is the Duty Officer, who has proved the copy of FIR as Ex. PW4/A, his endorsement on rukka as Ex. PW4/B and certificate U/s 65B of Evidence Act as Ex. PW 4/C. During crossexamination on behalf of accused Sandeep and Devender, PW4 denied the suggestion that he had seen the over writings at PointsX & X1 on the rukka when he made his endorsement or that no rukka was produced before him by SI Karan Singh or that the FIR is antetimed.
Testimony of this witness also remained unchallenged on behalf of accused Virender Gupta.
v) PW5 Constable Chet Ram is a formal witness, who on 21.09.2013 on receipt of rukka and copy of FIR from Duty Officer had gone to Navyug Apartments, Sector9, Rohini and handed over the same to SI Karan Singh.
During crossexamination on behalf of accused Sandeep and Devender, PW5 denied the suggestion that no rukka or copy of State Vs. Virender Gupta etc. Page 9 of 28 (FIR No. 500/2013 PS Prashant Vihar) FIR was handed over to him or that he had handed over the same to SI Karan Singh.
Testimony of this witness also remained unchallenged on behalf of accused Virender Gupta.
vi) PW6 is Smt. Dhanwanti Khurana, who is wife of the victim Sh. Amarnath Khurana and has supported the version given by her husband in his complaint though she was crossexamined by ld. Addl. PP for the State on some points.
During crossexamination on behalf of accused Sandeep and Devender, PW6 deposed that whatever had happened with her husband, had been so told to her by him after he returned home at around 8.00 PM and it did not take place in her presence. She deposed that her husband told her at about 6.00/6.30 AM after coming back in senses at around 5.30/6.00AM. She further deposed that she had seen her husband in that state for the first time and till date he had not told her as to how he returned home. She denied the suggestion that her husband had not gone to the bank for renewal of passbook on 20.09.2013 or that her husband lost money in gambling or that at the instance of her Jaith, a false report was lodged in order to save their reputation. A suggestion was given to her that no complaint was lodged by them on 20.09.2013 as no incident, as alleged, ever took place, which was denied.
Testimony of this witness also remained unchallenged on behalf of accused Virender Gupta.
State Vs. Virender Gupta etc. Page 10 of 28(FIR No. 500/2013 PS Prashant Vihar)
vii) PW7 SI Jai Singh is the Duty Officer, who has proved the FIR No.445/12 as Ex.PW7/1.
During crossexamination on behalf of accused Sandeep and Devender, he denied the suggestion that the FIR is antetimed.
Testimony of this witness also remained unchallenged on behalf of accused Virender Gupta.
viii) PW8 Constable Anurag deposed that he alongwith ASI Omender Kumar had gone to Rohini Court in order to arrest accused persons. He had proved the arrest memos of the accused persons as Ex. PW8/1, Ex. PW8/2 & Ex. PW8/3 and also proved their disclosure statement as Ex. PW8/1A, Ex. PW8/2A & Ex. PW 8/3A.
During crossexamination on behalf of accused Sandeep and Devender, PW8 denied the suggestion that he had never visited at any Court alongwith ASI Omender or that none of the accused made any disclosure statement or that he had only signed the documents at the instance of IO.
Testimony of this witness also remained unchallenged on behalf of accused Virender Gupta.
ix) PW9 Sh. Amaranath Khurana is the complainant/ victim. He has repeated the version given by him in his complaint. He further deposed that he had handed over photocopy of his bank passbook to police and had proved the seizure memo of the same as State Vs. Virender Gupta etc. Page 11 of 28 (FIR No. 500/2013 PS Prashant Vihar) Ex. PW9/1. He admitted that he had identified the accused persons in the Court on 02.01.2014 and at that time he came to know their names.
PW9 is crossexamined at length on behalf of accused Sandeep and Devender and accused Virender Gupta adopted the cross examination conducted on behalf of accused Sandeep and Devender.
x) PW10 HC Laltesh Kumar is the Duty Officer and has proved DD No.12A dated 21.12.2013 as Ex. PW10/1.
He was not crossexamined at all by the ld. Defence Counsel though opportunity was granted.
xi) PW11 Sh. Avnish Kumar Gupta is a formal
witness.
xii) PW12 Ms. Manisha Keshwani is a witness from
bank, who deposed that on 20.09.2013, a sum of Rs.12,70,000/ as cash withdrawal had been handed over by her to the account holder Sh. Amarnath Khurana.
During crossexamination on behalf of accused Sandeep and Devender, PW12 deposed that the account from which money was withdrawn, was a joint account. Cheque for withdrawal of the amount had only been signed by the first account holder. The second account holder i.e. wife of Sh. Amarnath was also present with him at the time of withdrawal. She had not given any separate 'No Objection'.
State Vs. Virender Gupta etc. Page 12 of 28(FIR No. 500/2013 PS Prashant Vihar) Ld. Counsel for the accused Virender Gupta adopted the crossexamination conducted on behalf of accused Sandeep and Devender.
xiii) PW13 is Sh. Munna, who deposed that in the year 2013, he used to work as attendant in Shakur Basti Railway Station parking and also used to reside there. He had worked there for 56 years. In the year 2013, police had come to him alongwith accused Virender Gupta and had asked him if accused used to park his cycle at the stand. He told the police that the accused was parking his cycle in the stand for the last about 56 months back.
During crossexamination on behalf of ld. Addl. PP, PW 13 admitted that police had brought three persons to him and he told police that all three accused persons were parking their cycles in the parking lot for the last about 56 months. He further deposed that he has no knowledge if cycles of those three accused persons had already been taken from the parking lot by the police of PS Subhash Place. He denied the suggestion that he has intentionally deposed falsely.
During crossexamination on behalf of accused Sandeep & Devender, PW13 deposed that police had brought accused to him only once in 2013. Cycles of accused persons were in the parking lot at that time. Thereafter, police officials took cycles with them. He further deposed that as the accused used to regularly park their cycles in the parking lot, he could not say since when cycles were parked when police brought the accused to him.
State Vs. Virender Gupta etc. Page 13 of 28(FIR No. 500/2013 PS Prashant Vihar) Ld. Counsel for the accused Virender Gupta adopted the crossexamination conducted on behalf of accused Sandeep and Devender.
xiv) PW14 is retired SI Karan Singh, who deposed that on 21.09.2013, he recorded statement Ex. PW14/1 of the complainant Amarnath Khurana regarding his complaint and also proved his endorsement as Ex. PW14/2 on the said complaint. He further deposed that he alongwith complainant went to the spot and on the pointing out of complainant, he had prepared site plan Ex.PW14/3.
During crossexamination on behalf of accused Sandeep & Devender, PW14 deposed that the complainant had refused for getting his medical examination claiming that he was alright. He denied the suggestion that he had registered a false FIR in connivance with the complainant and on the instructions of his senior officers.
Ld. Counsel for the accused Virender Gupta adopted the crossexamination conducted on behalf of accused Sandeep and Devender.
xv) PW15 Sh. Sunil, Ahlmad, posted in the court of Sh. Manoj Jain, ld. ASJ, Rohini Courts, Delhi is a formal witness.
xvi) PW16 HC Gajender is the MHC(M). He has proved entry No.3963 dated 21.11.2012 as Ex. PW16/1 written by HC Raj Kumar.
State Vs. Virender Gupta etc. Page 14 of 28(FIR No. 500/2013 PS Prashant Vihar) He has further proved entry No.5180 dated 13.12.2013 as Ex. PW16/2 and entry No.5186 dated 15.12.2013 as Ex. PW16/3 vide which SI Rajeev Ranjan deposited the articles recovered during personal search of accused persons Sandeep and Virender Gupta and accused Devender respectively.
He has further proved entry No.5201 dated 20.12.2013 as Ex. PW16/4 vide which SI Rajeev Ranjan deposited three sealed pullandas and three cycles.
He has also proved road certificate No.2/21 dated 13.01.2014 as Ex. PW16/5 vide which three pullandas alongwith sample seal of Max had been sent to FSL Rohini through SI Rajeev Ranjan and deposit receipt of the same with malkhan as Mark PW 16/A. He has further proved road certificate No.5/21 dated 13.01.2014 as Ex. PW16/6 vide which one sealed pullanda had been sent to PS Hari Nagar through ASI Ishwar Singh and road certificate No.14/21 dated 18.01.2014 as Ex. PW16/7 vide which one sealed pullanda had been sent to PS Prashant Vihar through Ct. Anil Kumar.
He has further deposed that nobody had tampered with the pullandas or the seals as long as same remained in his custody.
His testimony remained unchallenged during cross examination on behalf of accused Sandeep and Devender.
During crossexamination on behalf of accused Virender, PW16 deposed that he had handed over charge of malkhana to HC Dinesh Kumar and he had not worked with him. He denied the State Vs. Virender Gupta etc. Page 15 of 28 (FIR No. 500/2013 PS Prashant Vihar) suggestion that he had wrongly identified writings of HC Dinesh.
xvii) PW17 HC Inderjeet is also MHC(M), who has proved entry No.17/3170 dated 18.01.2014 as Ex. PW17/1.
He has further deposed that nobody had tampered with the pullanda or the seal as long as same remained in his custody.
His testimony remained unchallenged during cross examination by ld. Defence Counsel.
xviii) PW18 Ms. Yogita Jain is a bank official. She has deposed that during September, 2013 she was working at Fixed Deposit Counter in the Branch of Karur Vyasa Bank Ltd. Sh. Amarnath Khurana came to her counter alongwith three Fixed Deposits. He requested her to preclose the Fixed Deposits and to transfer the proceeds thereof to his Saving Bank account. As per the request of Sh. Amarnath Khurana, PW18 preclosed three Fixed Deposits and credited the amount to Saving Bank Account of Sh. Amarnath. Sh. Amarnath was requested to get his Passbook updated which he did from adjoining counter and verified credit amount of Sh. Amarnath.
Testimony of this witness remained unchallenged during crossexamination.
xix) PW19 is ASI Omender Kumar. He has deposed that on 20.12.2013, further investigation of this case was marked to State Vs. Virender Gupta etc. Page 16 of 28 (FIR No. 500/2013 PS Prashant Vihar) him and on 22.12.2013 he obtained relevant documents of this case from SI Rajiv Ranjan. He further deposed that on 24.12.2013 he had obtained photocopy of a cheque from bank employee Ms. Rinki Jain of Karur Vyasa Bank, Prashant Vihar and seized the same vide seizure memo Ex.PW19/1. He further deposed that on 28.12.2013, he formally arrested the accused persons vide arrest memos Ex.PW8/1, Ex.PW8/2 and Ex.PW8/3 after seeking permission from Court concerned and their disclosure statements Ex.PW8/1A, Ex. PW8/2A and Ex. PW8/3A were recorded. He further deposed that on 02.01.2014, he moved appropriate application before Court concerned, requesting TIP of three accused persons. All three accused persons refused to participate in TIP proceedings. He further deposed that while accused persons were being brought out of the Court Room, they were identified by the complainant as being culprits, as complainant was present outside the Court Room on that day. He further explained the steps taken by him for investigation of the case and had proved the pointing out memo Ex.PW19/2 in respect of the spot pointed out by the accused persons.
During crossexamination on behalf of accused Sandeep & Devender, PW19 denied the suggestion that there was some writing even on back side of the cheque or that he had intentionally not obtained photocopy of back side of the cheque. He deposed that no sketch of the culprits was on record when police file was received by him and even there is no application on record for preparing their sketches. He denied the suggestion that he prepared an incorrect State Vs. Virender Gupta etc. Page 17 of 28 (FIR No. 500/2013 PS Prashant Vihar) chargesheet to falsely implicate the accused persons in this case or that he did not investigate the matter properly or that he did not record statements of any of the witnesses U/s 161 Cr. PC or that the statements on record are his creation. He further denied the suggestion that when investigation was marked to him and he had received the police file, sketches of culprits were attached in the file or that as the same did not match the three accused persons, he deliberately took out the sketches from the file in order to falsely implicate the accused persons or that the accused persons had not made any disclosure statement or that their signatures had been forcibly obtained or that none of the accused had been identified by complainant in court premises.
Ld. Counsel for accused Virender Gupta adopted the crossexamination conducted on behalf of accused Sandeep and Devender.
xx) PW20 Sh. Sunil Kumar is a Metropolitan Magistrate. He deposed that on 02.01.2014 all three accused persons were produced before him in muffled faces by IO ASI Omender Singh. All three accused persons had refused to join TIP. He has proved the proceedings conducted by him as Ex. PW20/1; statement of accused persons recorded as Ex. PW20/2; application for conducting TIP was disposed of vide order Ex. PW20/3; certificate regarding correctness of proceedings as Ex. PW20/4 and order regarding handing over the copy of TIP proceedings as Ex. PW20/5.
State Vs. Virender Gupta etc. Page 18 of 28(FIR No. 500/2013 PS Prashant Vihar) Testimony of this witness remained unchallenged during crossexamination.
APPRECIATION OF EVIDENCE :
11. PW2 deposed that on 20.12.2013 all three accused, who were in PC at that stage, were taken for further investigation and for recovery. Accused persons firstly took them to parking of Shakur Basti Railway Station where they pointed out three cycles which were used by them. Those three cycles were seized vide pointing out and seizure memo Ex. PW2/4. PW2 further deposed that accused Devender took them to his house in Uttam Nagar from where he got recovered some documents regarding property and same were seized vide pointing out and seizure memo Ex. PW2/5. Similarly, accused Sandeep took them to his house in Uttam Nagar, from where some property documents and cash of Rs.2 lacs were recovered at his instance and same were seized vide seizure memo Ex. PW2/6 and Ex.
PW2/7 respectively. PW2 further deposed that accused Virender took them to his house at Loni where from a Matmala coloured thaila, hanging on back side of door of a room in the house, accused got produced lottery tickets and also two bundles of paper notes. Same were converted into cloth pullanda and sealed with the seal of RS and was seized vide memo Ex. PW2/8. Accused also got recovered a sum of Rs.1 lac in two bundles of Rs.50,000/ each from a box put in the Diwan in one of the rooms. Same were converted into a pullanda State Vs. Virender Gupta etc. Page 19 of 28 (FIR No. 500/2013 PS Prashant Vihar) and seized vide memo Ex. PW2/9.
Testimony of this witness remained unchallenged on behalf of accused Virender Gupta.
12. Similar testimony has been given by PW3. Testimony of this witness also remained unchallenged on behalf of accused Virender Gupta.
13. PW9, who is the victim, deposed about the prosecution story. He further deposed that he had no idea as to when and how he returned home. He was not in his senses even when he returned home. He came to his senses on the next day morning. Thereafter, he had gone to police station. Cash amount of Rs.12,70,000/ in his bag was missing.
14. During crossexamination on behalf of ld. Addl. PP for State, PW9 admitted that accused Virender told him about the scheme. He also told him that he was working on behalf of Mohan Meikens and used to get 2% commission. He also deposed that accused had taken his telephone number before he left for his home for getting his chequebook and passbook. He further admitted that he had also taken some colddrink brought by Devender at the Sports Complex. He further admitted that when he returned home in the evening, despite asking of his wife, he could not tell her anything as to what had happened with him. His wife subsequently told him that State Vs. Virender Gupta etc. Page 20 of 28 (FIR No. 500/2013 PS Prashant Vihar) there was no cash amount in the bag and it only contained cheque book and passbook. He had further admitted that he had taken the police officials and pointed out the spots where accused met him for the first time and also Karur Bank and the spot at Sports Club. He further admitted that he had also handed over photocopy of his bank passbook to the police, which was seized vide memo Ex.PW9/1.
15. During crossexamination on behalf of accused Sandeep and Devender, PW9 deposed that he had mentioned in his statement to the police that when he went to Sports club on rickshaw, Devender accompanied him on cycle. There was no CCTV Camera at the main gate. Accused Virender had first met him at a distance of 5060 yards from the main gate. It took about 3 to 4 minutes in walking down to his flat from the main gate. The winning lottery ticket with prize of Rs.200/ was retained by Virender. PW9 further deposed that cold drink had been served to him in a glass by Devender in the morning. He did not feel intoxicated after drinking it. He was not carrying his cheque book with him when he left his house for getting the passbook updated. He remained in the bank for about 15 minutes when he got the FDRs encashed and the amount credited in his account. He did not frequently visit the bank for the purpose of doing transactions. The concerned bank officials did not ask him to produce ID proof when he took cash of Rs.12,70,000/. He had telephonically called his wife to the bank. As far as he remembered, even his wife had not been asked to show her ID card. He had told his wife that the persons were now State Vs. Virender Gupta etc. Page 21 of 28 (FIR No. 500/2013 PS Prashant Vihar) asking for seeing the cash and not merely an entry. After coming to the bank, his wife did not ask him to show her the persons who were demanding to see cash. His wife told him that it was her wish that the cash is not withdrawn. Talk with his wife took place in presence of bank officials but they could not listen to their talks. Bank officials had asked him as to why he was getting the FDRs encashed. He told them that he would again get FDRs prepared on the next day. He did not tell them any other reason or the circumstances under which he was getting the FDRs encashed. He had endorsed the FDRs by signing the same before encashment. His wife was with him when he received cash of Rs.12,70,000/. He was carrying a thaila with him in which he had carried the FDRs and the passbook etc. and he had put the cash amount in the said thaila after receiving it. After coming out from the bank he went and sat outside the park near the bank. His wife was standing in front of him. Park was at a distance of about 40 to 50 yards from the bank. He further deposed that he had told the telephone number to the IO from which he had received call after coming out of the bank. His wife did not follow him when he went towards the Sports Club on a rickshaw and she had remained at the spot outside the park. When he had asked his wife to go back home from outside the park, she had not told him not to go anywhere or that she would accompany him wherever he would go. It was between 6.00 to 7.30 PM when he had received telephone call of his wife regarding his whereabouts when he told her that documents were being prepared in Court. As far as he remembered, he had returned State Vs. Virender Gupta etc. Page 22 of 28 (FIR No. 500/2013 PS Prashant Vihar) home on foot but he was not sure as he had lost his senses. He further deposed that second time when Devender gave him colddrink, was around 5.00 PM. As he was not in his senses he could not tell whether his wife had asked him about Rs.12,70,000/. After he regained senses on next day morning, the first person with whom he had a talk was his wife. He did not tell her anything regarding amount of Rs.12,70,000/. In fact when she herself checked the bag there was no money. He was not fully fit even when he came back to his senses on the next morning. He had no idea as to at what time he realized on the next day that he had lost Rs.12,70,000/. He had no recollection of any talk with any person after he started loosing his senses till the next day when he regained his senses. He had not handed over his pass book to police officials when he went to them on 21.09.2013. He had got prepared a duplicate copy of passbook from the bank and handed over photocopy thereof to the police. A suggestion has been given that he never withdrew any amount from the bank at the asking of accused persons. He further denied the suggestion that amount of Rs.12,70,000/ had been lost by him in gambling and when his wife confronted him with the same, the news spread out in the locality. He further denied the suggestion that in order to save his prestige in the society and amongst his relatives, he concocted a false story regarding being looted of the said amount. Thus, PW9 has given entire true account of the incidents happened with him during crossexamination.
16. No suggestion has been given to PW9 that none of the State Vs. Virender Gupta etc. Page 23 of 28 (FIR No. 500/2013 PS Prashant Vihar) accused had ever met him. A suggestion was given that PW9 lost amount of Rs.12,70,000/ in gambling which indicates that accused persons knew PW9 and they were aware that PW9 was having a huge amount of Rs.12,70,000/ at that time. If the accused persons would not personally known to victim then how the accused persons knew that he lost the money in gambling. No suggestion was given to contradict the testimony of PW9 that all the three accused persons came to the bank on cycles. A suggestion was also given that amount of Rs.12,70,000/ has been lost by PW9 in gambling and when his wife confronted him with the same, the news spread out in the locality. It comes out that the accused persons were visiting in the locality, where PW9 resides, after the incident and they were keeping vigil about the activities of PW9 carried out by him otherwise they would not have been aware about the locality where PW9 was residing and what was happening there.
17. PW6, who is wife of PW9, has also supported the version given by her husband. PW6 further deposed that she had seen her husband for the first time in that state. Her husband came back in senses at around 5.306.00 AM. After her husband returned home, she asked him about the money and he claimed that the bag was lying and she could check the money. Police was informed about the incident at around 9.30 AM on 21.09.2013. Till date, he has not told her as to how he returned home.
State Vs. Virender Gupta etc. Page 24 of 28(FIR No. 500/2013 PS Prashant Vihar)
18. PW12, who is a witness from bank, deposed that on 20.09.2013, a sum of Rs.12,70,000/ as cash withdrawal had been handed over by her to the account holder Sh. Amarnath Khurana.
During crossexamination, PW12 deposed that the account from which the money had been withdrawn, was a joint account. Cheque for withdrawal of the amount had only been signed by the first account holder. The second account holder i.e. wife of Sh. Amarnath was also present with him at the time of withdrawal. She had not given any separate 'No Objection'. They both left the branch together.
19. During crossexamination on behalf of State, PW13 admitted that police had brought three persons to him and asked if they used to park their cycles in the parking. He had also told police that all three of them were parking their cycles in the parking lot for the last about 56 months.
During crossexamination on behalf of accused, it is deposed by PW13 that police had brought accused to him only once in 2013. Cycles of accused persons were in the parking lot at that time. Police officials took cycles with them thereafter. He further deposed that as the accused used to regularly park their cycles in the parking lot, he could not say since when cycles were parked when police brought the accused to him.
20. PW18 deposed that during September, 2013 she was State Vs. Virender Gupta etc. Page 25 of 28 (FIR No. 500/2013 PS Prashant Vihar) working at Fixed Deposit Counter in the Branch of Karur Vyasa Bank Ltd. Sh. Amarnath Khurana came to her counter alongwith three Fixed Deposits. He requested her to preclose the Fixed Deposits and to transfer proceeds thereof to his Saving Bank account. As per his request, PW18 preclosed three Fixed Deposits and credited the amount to Saving Bank Account of Sh. Amarnath. Sh. Amarnath was requested to get his Passbook updated which he did from the adjoining counter and verified credit of amount of Sh. Amarnath.
21. PW19 deposed that on 02.01.2014, he moved appropriate application before Court concerned, requesting TIP of three accused persons. All three accused persons refused to participate in TIP proceedings. While the accused persons were being brought out of the Court Room, they were identified by the complainant as being culprits as complainant was present outside the Court Room on that day.
22. PW20, who is a Metropolitan Magistrate, deposed that on 02.01.2014 all three accused persons were produced before him in muffled faces by IO ASI Omender Singh. All three accused refused to join TIP.
23. In view of the testimony of prosecution witnesses and especially of PW9, who is the victim of this case, this Court comes to State Vs. Virender Gupta etc. Page 26 of 28 (FIR No. 500/2013 PS Prashant Vihar) the conclusion that prosecution is able to prove the case against all the three accused persons U/s 420 r/w Section 34 IPC. Withdrawal of amount of Rs.12,70,000/ by the victim is proved. Testimony of PW 6, who is wife of PW9, also inspires confidence in the mind of the Court. It is also proved by the prosecution that to facilitate the commission of offence U/s 420 IPC, accused persons administered colddrink, which was served to him in a glass by accused Devender in the morning. He further deposed that he was made to drink cold drink. He took a little bit of it. However, PW6, who is wife of PW9, deposed that she had seen her husband for the first time in the said state. Her husband came back in senses at about 5.306.00 AM. During arguments, ld. Defence Counsel took a plea that there is no medical record regarding such intoxication of the victim. As per the evidence on record, this Court agrees with the ld. Defence Counsel that the prosecution is not able to bring on record any medical document or evidence to substantiate the charge regarding intoxication of the victim. However, this Court is of the further opinion that no sensible person, especially in the middle age, would part with his entire life's savings to a third person. Moreover, PW9 duly identified the accused persons in the Court on 02.01.2014. Thus, testimony of PW9 and PW6 inspire confidence in the mind of this Court and, thus, all the accused are held guilty U/s 420 r/w Section 34 IPC. However, the prosecution is not able to prove the guilt of the accused persons for the offence punisbale U/s 328 r/w Section 34 IPC.
State Vs. Virender Gupta etc. Page 27 of 28(FIR No. 500/2013 PS Prashant Vihar) CONCLUSION :
24. In view of the facts and circumstances of the case and upon observations made herein above, this Court is of the considered view that the prosecution has successfully proved its case beyond any reasonable doubt against all the three accused persons namely Virender Gupta(A1), Sandeep @ Rahul(A2) and Devender(A3) for the offence punishable U/s 420 r/w Section 34 IPC and, thus, they are held guilty and convicted. However, all the abovenamed accused persons are acquitted for the offence punishable U/s 328 Digitally signed r/w Section 34 IPC. by JITENDRA JITENDRA KUMAR KUMAR MISHRA Date:
MISHRA 2018.04.25
10:50:40 +0530
Announced in open Court (JITENDRA KUMAR MISHRA)
today i.e. on 21.04.2018. Special Judge (NDPS)/North Rohini Courts, Delhi.
State Vs. Virender Gupta etc. Page 28 of 28(FIR No. 500/2013 PS Prashant Vihar)