Delhi District Court
State vs . Sukhvinder Singh And Anil Grover on 25 May, 2015
IN THE COURT OF SH. GAJENDER SINGH NAGAR, MM-04,
WEST DISTRICT, TIS HAZARI COURT,DELHI
STATE Vs. SUKHVINDER SINGH AND ANIL GROVER
FIR No. 292/92
PS: MOTI NAGAR
U/S: 407/408/34 IPC
Sr. no. of the case : 674/2/10
Unique Case ID no. : 02401R0274502003
Date of commission of offence : January-February, 1990
Date of institution of the case : 07.12.1993
Name of the complainant : Sh. Harsh Sehgal
Name of accused and address : 1. Sukhvinder Singh @
S.S. Bhasin, s/o Sh. Sardar
Sarbans Jeet Singh Bhasin,
r/o 71/10, Prem Nagar, PO
Janak Puri, New Delhi-15.
2. Anil Grover s/o Sh. O.P.
Grover, r/o A-4/J-12,
Navbharat Apartment,
Paschim Vihar, Delhi.
Offence complained of or proved : U/s 407/408/34 IPC
Plea of the accused : Pleaded not guilty
Final order : Acquitted
Date reserved for judgment : 14.05.2015
Date of judgment : 25.05.2015
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BRIEF STATEMENT OF THE REASON FOR DECISION:
THE FACTS :
1. Brief facts of the case are that accused S.S. Bhasin @ Sukhwinder Singh was an employee of M/s Johnson & Nicholson (India) Ltd., Shivam House, B-2 Karampura Complex, accused Anil Grover was a FIR No. 292/92, PS Moti Nagar Page 1/14 transporter / carrier who used to supply goods from the godown of the M/s Johnson & Nicholson (India) Ltd. to its customers. In the month of January- February 1992 accused S.S. Bhasin presented to the company certain orders purportedly booked by their various customers namely Pooja Paints, Sardar Paints, Nawab Paints, Ravinder Kumar Vijay Kumar etc. The total value of such orders was approximately Rs. 2.62 Lakhs. As per the purchase order on the instructions of accused S.S. Bhasin the godown has released the material on the basis of invoices raised against such orders. As per the practice of complainant company the goods were used to be delivered to the customers against delivery challans and signed copy of the delivery challan received from customers used to be kept with the store manager. During the month of April it was discovered that payments against aforesaid supplies were not received by the company. On further inquiry it was found that accused S.S. Bhasin have mutilated or misplaced the relevant signed challans from the store. It was further discovered that no goods were delivered to the customers named above. It was found that accused S.S. Bhasin in connivance with accused Anil Grover had received the goods from the godown of the company and without delivering the same had misappropriated the goods. Accordingly, after the investigation, police filed the present charge sheet against both the accused persons.
2. Complete set of copies were supplied to the accused persons. After hearing arguments, charge were framed against the accused persons for trial of offence U/s 407/408/34 IPC, to which they pleaded not guilty and claimed trial.
MATERIAL EVIDENCE IN BRIEF:
3. The prosecution in support of present case has examined following witnesses.
4. PW1 Amrit Pal deposed that he does not know anything about the case. It is stated by him that he is the owner of Narula Paints and used FIR No. 292/92, PS Moti Nagar Page 2/14 to have business with Johnson & Nicholson. It is stated that he does not know sales representative Sukhvinder Singh @ S.S. Bhasin. In his cross-examination by Ld. APP for State, he stated that police recorded his statement in the year 1992. He accepted that he had stated to the police that on 29.02.1992 no order of 100 box of RPEP was delivered to him. It is stated by him that neither the accused nor any articles vide receipt no.279 dated 29.02.1992 came to his shop. It is stated by him that he does not know about goods as no such goods had came to his shop. It is accepted by him that he did not receive the bill or the goods. It is accepted by him that he had stated to the police that goods against bill no.279 dated 29.02.1992 were received and only the driver of tempo and salesman can tell about it. In his cross-examination it is stated by him that no bill regarding above stated goods ever sent to him by M/s Johnson & Nicholson (India) Ltd. It is further stated by him that said company never raised any demand either in writing or orally regarding the alleged supply of goods. It is stated by him that he did not tell the police that tempo driver (i.e. accused Anil Grover) might knew about the case.
5. PW2 Bharat Bhushan Ghai stated that he was the owner of Pooja Paints. He stated that he does not know the accused Sukhvinder Singh @ S.S. Bhasin. This witness was cross-examined by Ld. APP for State. However, in his cross-examination he denied entire prosecution story.
6. PW3 Sh. Lalit Kumar stated that he was posted as Assistant Store Keeper at Johnson & Nicholson. It is stated by him that on receiving the bills from the office, he used to get goods loaded in the tempo for the customers. It is stated by him that he used to receive 3 copies of the bills, one of such copy used to be delivered to the customers and two copies were re-deposited in the company after endorsement by the customer. It is stated by him that accused Anil Grover used to drive the tempo to supply goods to the customers. It is stated by him that the accused Sukhvinder Singh @ S.S. Bhasin used to work as sales representative in the office of Johnson & Nicholson. It is stated that accused Anil Grover had supplied paints to the customers on different FIR No. 292/92, PS Moti Nagar Page 3/14 dates in the year 1992 but he could not tell the exact date. It is stated that after delivery of the goods accused Anil Grover used to hand over the receipts duly endorsed by the customers to Sh. C.N.P. Raman, who was the store incharge. It is stated that on 06.04.1992 the accused Sukhvinder Singh @ S.S. Bhasin came to the store and asked to show the file/godown bills file but Mr. Raman did not show the same to the accused Sukhvinder Singh @ S.S. Bhasin. It is further stated that thereafter they got busy in their work, during that time accused Sukhvinder Singh @ S.S. Bhasin took out 6 bills from godown store book/file. It is stated that the bills were in respect of Darbar Paints, Somnath & Sons, Rajender Kumar Vijay Kumar, Narula Paints, Pooja Paints. It is stated by him that thereafter, their office incharge asked about these bills, then they came to know that the same were replaced/removed from the office. It is stated by him that he was informed that the articles were not handed over to the customers. It is stated that the area in which said articles were to be delivered belonged to the accused Sukhvinder Singh @ S.S. Bhasin. In his cross- examination it is stated by him that store keeper used to keep one copy of the challan in the store and other copy showing the receipt of goods used to be sent to the office. It is stated by him that accused S.S. Bhasin had not removed any challan in his presence. It is stated by him that he came to know 2-3 months after 06.04.1992 that the challans were missing from the godown challan file. It is stated by him that though office concerned informed them about the missing of challan. It is stated by him that he did not report to any officer or to the police regarding missing challans.
7. PW4 HC Richpal Singh exhibited on record carbon copy of FIR as Ex.PW4/A (OSR).
8. PW5 Harsh Sehgal stated that in the year 1992 he was the Manager of Johnson & Nicholson at Karampura Complex. It is stated by him that accused Sukhvinder Singh @ S.S. Bhasin was posted as Sales Representative with the company. In the month of January & February, 1992 accused Sukhvinder Singh @ S.S. Bhasin presented to FIR No. 292/92, PS Moti Nagar Page 4/14 the company as per their system certain orders purportedly booked by some customers such as Pooja Paints, Sardar Paints, Nawab Paints, M/s Rajinder Kumar Vijay Kumar etc. It is stated that the total value of the execution of these orders was approx. Rs.2.62 Lacs, it is stated that as per the instructions of the accused, the godown had released the material on the basis of the invoices raised against the order submitted by the accused. It is stated that as per the system of the company the goods to be delivered against delivery challans and such challans required to be signed by the dealers/customers, to whom the material were delivered. It is further stated by him that sometime during the month of April, it was discovered that the payments against the aforesaid challan/invoices have not been received by the company. It is stated that on further investigation, it was discovered that accused Sukhvinder Singh @ S.S. Bhasin has been enquiring from the godown incharge and his assistant about the whereabouts of the challan. It is further stated that on checking of the records it was discovered that the receipted challans pertaining to the supplies stated above were either missing or mutilated. It is stated that on that, accused Sukhvinder Singh @ S.S. Bhasin was confronted and enquired about non-receipt of payment and mutilated challans. On that, the accused Sukhvinder Singh @ S.S. Bhasin admitted having collected the money against these supplies but did not deposit the same in the accounts department of the company. It is further stated that concerned parties were contacted and they all stated that they had not received the goods. It is further stated that later on they discovered that accused Anil Grover had delivered the goods on the instructions of accused Sukhvinder Singh @ S.S. Bhasin at destinations other than the addresses of the dealers, from whom the purported orders were received. It is stated by this witness that he reported the matter to police vide his complaint Ex.PW5/A. In his cross-examination he stated that store Incharge not made any report in writing against accused S.S. Bhasin. It is stated that he had not issued any memo to accused S.S. Bhasin on his default of non depositing the amount of goods allegedly delivered. He also FIR No. 292/92, PS Moti Nagar Page 5/14 admitted that the store keeper had not made any complaint regarding missing of challans.
9. PW6 Mohan Singh stated that he was working as Area Manager in Johnson & Nicholson Company. It is stated by him that accused Sukhvinder Singh @ S.S. Bhasin was working as sales representative under him. It is stated that certain material was supplied to Darbar Paints, Somnath & Sons, Narula Traders, M/s Rajinder Kumar Vijay Kumar and one more party. It is stated that though the goods were supplied to these parties, however, at the time of collection of money it came into the knowledge that no such material reached them. It is stated that when they asked the godown incharge to produce the receipted copies of challans to verify whether the parties had signed on the challan to confirm that they had received the material. On that it was found that the challans were partly torn and signatures and stamps of the parties could not be seen on the same. It is stated by him that accused Anil Grover was a transporter of the company, who was responsible for taking the material from godown to be delivered to the concerned parties. It is stated by him that customer orders from Nawab Paints dated 29.02.1992, Pooja dated 14.02.1992, Narula Paints dated 29.02.1992, Rajender Kumar Vijay Kumar dated 29.02.1992 and Darbar Paints dated 29.02.1992 were given to him by the representatives. In his cross-examination, he admitted that the challan copy of receipt of goods is used to be handed over to the godown keeper and the same used to be kept by him. It is also accepted by him that he had not issued any memo to S.S. Bhasin. It is admitted by him that alleged customer orders which are on judicial file do not bear the signature of any official of the company.
10. PW7 Ct. Surender Singh exhibited on record arrest memo of accused Sukhvinder Singh @ S.S. Bhasin and accused Anil Grover as Ex.PW7/A and PW7/B.
11. PW8 Ct. Gurdayal Singh stated that on 28.05.1992 he alongwith ASI Heera Lal reached Shivam House, where they recorded statement FIR No. 292/92, PS Moti Nagar Page 6/14 of witnesses and thereafter, accused persons were traced out at Prem Nagar, Janak Puri and Paschim Vihar. It is stated that thereafter the accused persons were arrested.
12. PW9 Vijay Kumar stated that he is/was the owner of Rajender Kumar Vijay Kumar. It is stated by him that he never received the paint from M/s Johnson & Nicholson (India) Ltd. It is stated that he does not know accused S.S. Bhasin or accused Anil Grover. In his cross examination it is stated by him that he never had any business transaction with M/s Johnson & Nicholson (India) Ltd.
13. PW10 Rajender Kumar stated that he is/was the owner of Somnath & Sons. He identified the accused Sukhvinder Singh @ S.S. Bhasin as sales representative of Johnson & Nicholson Paints. It is stated by him that he had not given any order to accused Sukhvinder Singh @ S.S. Bhasin and had also not received any goods in the year 1992.
14. PW11 SI Heera Lal stated that on 21.05.1992 complainant Harsh Sehgal gave one complaint to him, which is Ex.PW5/A, on which he made an endorsement, which is Ex.PW11/A and handed over the rukka to DO for registration of FIR, on which present FIR Ex.PW4/A was registered and copy of FIR and original rukka was handed over to him. It is stated that on 22.05.1992 Sh. Sushil Kumar Garg, office Manager of complainant company gave 7 invoices and name of the customers with amount, which were seized vide seizure memo Ex.PW11/B. This witness also exhibited 5 orders form which are Ex.PW11/C. It is stated that one register of the company was also handed over to him which was seized vide memo Ex.PW11/D. It is stated that he had also taken on record copy of appointment dated 10.11.1990. Same is Mark A. This witness marked the invoices as Ex.B1 to B7 and the bills form as C1 to C5. It is stated that on 29.05.1992 he arrested the accused persons vide memo Ex.PW8/A and PW8/B. It is stated that scooter bearing no.DL-4S-2017 taken into possession vide memo Ex.PW11/E. Disclosure statement of accused Sukhvinder Singh @ S.S. Bhasin and Anil Grover were recorded as Ex.PW11/F and PW11/G. He also marked FIR No. 292/92, PS Moti Nagar Page 7/14 on record daily godown expenses statements as Mark D1 to D8 respectively. In his cross-examination he admitted that the invoices mark D1 to D8 and C1 to C5 are not bearing signatures of the accused persons. It is accepted by him that there is no order number on the document mark C1 to C5. It is accepted by him that he could not recover the alleged misappropriated goods. It is stated by him that he had not contacted any director of the company. It is stated by him that he does not know if there was any contract between complainant company and accused no. 2 (Anil Grover). When a specific question was asked to the IO to whether he has filed on record any document on record to show that alleged misappropriated goods were handed over to accused no. 1. He replied that he had seized a godown register having signatures of accused no. 1 regarding handing over of the goods. (It is to be noted that certain documents including the alleged register are missing from the file and a fact finding inquiry is going on in that respect). It is stated by him that Ms. Manjula Sharma used to raise bills of the complainant company. It is stated by him that he has not sent the alleged register to FSL for comparison of the handwriting and signature of accused persons. Though he denied the suggestion that the alleged misplaced register is not bearing signatures of accused S.S. Bhasin.
15. PW12 S.K. Garg stated that on 22.05.1992 he was posted as office Manager at Johnson & Nicholson and he had handed over 7 invoices and the name of customers with amount to the IO, which were taken into possession vide memo Ex.PW11/B. It is stated that he had also handed over 5 order forms to the IO which were seized vide memo Ex.PW11/C. It is stated that he had also handed over a register containing entries of order form, which was taken into possession vide memo Ex.PW11/D. He marked invoices as Mark D1 to D7 and customer order forms as Mark C1 to C5. He identified both of the accused persons as they both were working with him. In his cross- examination it is stated by him that he has no knowledge whether there was any agreement between complainant company and accused no. 2 FIR No. 292/92, PS Moti Nagar Page 8/14 (Anil Grover).
16. No other PW was left to be examined, hence PE was closed.
THE DEFENCE :
17. Statement of both the accused persons were recorded U/s 313 Cr.P.C, wherein they pleaded innocence and stated that they are innocent and have been falsely implicated in the present case. They further stated that the complainant company had filed an appeal against them which was dismissed. It is stated that civil suit was dismissed vide order dated 22.01.2005 and the appeal was dismissed by Ld. ADJ Sh. Paramjeet Singh vide order dated 23.07.2007. Accused persons opted to lead defence evidence and examined Sh. Ghanshyam, JJA Record Room Sessions, Tis Hazari Court as DW1.
18. DW1 Sh. Ghanshyam, JJA, Record Room Sessions, Tis Hazari Courts stated that he had brought original file of original RCA no. 14/05 disposed off on 23.07.2007. Vide order of the then Ld. ADJ Sh. Paramjeet Singh, Delhi he have seen the certified copy of order dated 23.07.2007 along with judgment. The same is exhibited as DW1/1 (Colly) (OSR).
THE ARGUMENTS:
19. Ld. APP for State has argued that prosecution witnesses have supported the prosecution and their testimony has remained unrebutted. That on a combined reading of testimony of prosecution witnesses, offence U/s 407/408/34 IPC is proved beyond doubt.
20. On the other hand, Ld. Counsel for accused has stated that there is no legally sustainable evidence against the accused. The case is based on circumstantial evidence at best and there is no incriminating evidence against the accused. It is argued that even the civil case filed by the complainant company regarding alleged misappropriation has been dismissed.FIR No. 292/92, PS Moti Nagar Page 9/14
THE FINDINGS:
Offence U/s 407/408/34 IPC:
21. Arguments adduced by Ld. APP and Defence Counsel have been heard and evidence and documents on record are carefully perused.
22. The prosecution in this case had to prove the following:
1. Firstly, the accused S.S. Bhasin was a clerk or servant or an employee of the complainant and accused Anil Grover was a carrier;
2. Secondly, they were in any manner entrusted in such capacity with some property or with any dominion over property; and
3. Thirdly, they committed criminal breach of trust in respect of that property.
23. Though the prosecution witnesses more specifically PW3, PW5, PW6 and PW12 who were the employees of M/s Johnson & Nicholson Company have deposed against the accused persons, however, their testimony cannot be accepted as gospel truth. In the following paras this Court will analysis and appreciate the evidences led on behalf of the prosecution.
24. A material piece of evidence from the point of prosecution i.e. the register wherein accused S.S. Bhasin had allegedly signed at the time of receiving delivery of goods for further delivering the same to the customers has been misplaced from Court record. Fact finding Inquiry in respect of the same is pending. However, the register could not be found and the same could not be reconstructed as copy of the same is not available with the prosecution or the defence either. Furthermore, even if that register would have been on record the prosecution could not have proved beyond reasonable doubts that the alleged misappropriated goods were delivered to accused no. 1 S.S. Bhasin as it is admitted by the IO PW11 SI Heera Lal that he had not sent the alleged register to FSL for comparison of the handwriting and signatures of the accused persons. Thus, the IO had not collected any evidence to prove that accused S.S. Bhasin or Anil Grover were FIR No. 292/92, PS Moti Nagar Page 10/14 entrusted with the misappropriated goods.
25. There is no evidence on record to show that accused S.S. Bhasin has received the alleged goods as the storekeeper C.N.P. Raman could not be examined in prosecution evidence as he remained untraceable even through DCP concerned. PW3 Assistant of the Storekeeper namely Sh. Lalit Kumar, have given only a bald statement that accused no.2 Anil Grover had supplied the paints to the customers on different dates in the year 1992, however, he could not tell the dates and other specifications of goods so delivered. This bald statement made by the witness is not sufficient to implicate the accused persons for commission of the offence. This witness also made a bald statement that on 06.04.1992 accused S.S. Bhasin came to the store and asked to show the file/godown bill files, however, store incharge Mr. Raman did not show the same to the accused. Thereafter, it is stated by this witness that they were busy in their work then accused S.S. Bhasin took out 6 bills from godown store book. However, in his cross-
examination, it is stated by this witness that accused S.S. Bhasin had not removed any such bills/challans from the book in his presence. Thus, this witness is making bald statements on the basis of perception without being a witness of that event. Thus the testimony of this witness on the aspect that accused S.S. Bhasin had removed copies of challan from the record kept at store is at best a hearsay.
26. It is alleged that accused S.S. Bhasin had removed "received copy"
of the challans from the store. It is to be noted that there used to be two received copies of the challan, one of the same is used to be kept in the store and another one used to be kept in the office as stated by PW3 in his evidence. In such situation even if the copy kept in the store were removed by accused S.S. Bhasin then copies kept in the office have to be available with the complainant company. However, no such received copies showing delivery of goods on alleged customers have been filed on record. Even the mutilated copies of the challan have not been filed on record, though it is stated by PW5 that some of the challans were misplaced from the store and others were mutilated.FIR No. 292/92, PS Moti Nagar Page 11/14
27. The alleged customers order which are on record as Mark C1 to C5, on the basis of which invoices were allegedly raised and goods were dispatched from the godown are not bearing signatures of any of the customer or purported signature of any customer at all. Thus, these customer orders were not proper, hence, it is hard to believe that on the basis of such customer orders invoices were raised. Further the office copies of the invoices filed on record as Mark B1 to B7 have not been proved on record as per law as the person who had issued the invoices have not been examined as a prosecution witness as it is stated by the witnesses that one Smt. Manjula used to raise the invoices, however, she remained unserved even through DCP concerned, thus could not be examined.
28. It is stated by PW6 that it was found by the complainant company that payment has not been received from certain parties in respect of the goods supplied to them and on verification from the parties, it came into the knowledge that no goods were supplied to them. Similarly, PW5 has also stated that sometime during the month of April, it was discovered that payment against challans/invoices issued against Pooja Paints, Sardar Paints, Nawab Paints and M/s Rajinder Kumar Vijay Kumar etc. have not been received. In the present case, owner of Narula Paints has been examined as PW1, owner of Pooja Paints has been examined as PW2, owner of Rajinder Kumar Vijay Kumar has been examined as PW9, however, none of them have stated that the complainant company has raised any demand regarding the goods purportedly supplied to them. From the fact that no demand was raised in respect of such goods to any of the customer shows that the prosecution witnesses, who are employees of the complainant company are not telling the truth. As if as per the record of company goods would have been supplied to these customers then a demand letter or oral demand must have been made to these customers and its only on their refusal the company could have come to know that no goods were supplied to them or the same have been misappropriated by accused persons.
FIR No. 292/92, PS Moti Nagar Page 12/1429. None of the prosecution witness could tell specifically when the goods were delivered to accused no.2 Anil Grover. Furthermore, none of the prosecution witness could have specifically stated that goods were delivered to accused Anil Grover at the instructions or in presence of accused no.1 S.S. Bhasin.
30. The prosecution could not prove on record whether there is any contract between complainant company and accused no.2 regarding transportation of alleged goods which were misappropriated by accused no.1 and 2.
31. From the above stated discussion it can be safely held that the prosecution has failed to prove beyond reasonable doubt that any such customer orders were received by the company through accused S.S. Bhasin, that any invoices were raised in respect of such customer orders, that the goods were delivered to accused no.2 on the instructions of accused no.1, that the accused no.1 had removed the received copies of the challan from the store room.
32. It is a settled proposition of criminal law that in order to prove its case on judicial file, prosecution is supposed to stand on its own legs and it cannot derive any benefit whatsoever from the weaknesses, if any, of the defence of the accused. Further it is a settled proposition of criminal law that burden of proof of the version of the prosecution in a criminal trial throughout the trial is on the prosecution and it never shifts on to the accused. Also it is a settled proposition of criminal law that accused is entitled to the benefit of reasonable doubt in the prosecution story and such reasonable doubt entitles the accused to acquittal.
33. Thus, in the considered opinion of this Court, the prosecution could not prove beyond reasonable doubts that the accused persons were entrusted with the property in their capacity as an employee or a carrier. The evidence coming on record entitles the accused persons for the benefit of doubt. Therefore, both the accused persons namely Sukhvinder Singh @ S.S. Bhasin s/o Sh. Sardar Sarbans Jeet Singh Bhasin and Anil Grover s/o Sh. O.P. Grover are hereby acquitted of all the charges in present case.
FIR No. 292/92, PS Moti Nagar Page 13/1434. Fresh personal/surety bonds in the sum of Rs. 10,000/- each have been furnished by the accused persons in compliance of section 437A Cr.P.C. Same are accepted.
35. File be consigned to record room after due compliance.
ANNOUNCED IN THE OPEN (GAJENDER SINGH NAGAR) COURT ON 25.05.2015 MM-04 (WEST)/DELHI
Containing 14 pages all signed by the presiding officer.
(GAJENDER SINGH NAGAR) MM-04 (WEST)/DELHI FIR No. 292/92, PS Moti Nagar Page 14/14