Delhi District Court
State vs Santosh Bagla on 21 December, 2024
IN THE COURT OF MS. AAKANKSHA, JMFC-05, WEST DISTRICT,
TIS HAZARI COURTS, DELHI
DLWT020000782000
AAKANKSHA
Digitally signed
CNR No. DLWT020000782000
by AAKANKSHA Cr. Case No. 66588/16
Date: 2024.12.21 FIR No. 37/2000
12:05:17 +0530 PS Punjabi Bagh
State Vs. Santosh Bagla
JUDGMENT
(a) Sr. No. of the case 66588/16
(b) Date of offence First Week of April, 1999
(c) Complainant Pawan Kapoor S/o Sh. C. L. Kapoor,
R/o 6/68, Punjabi Bagh, West, Delhi.
(d) Accused person Santosh Bagla S/o Late Sh. Laxmi
Naryana Bagla R/o Y-14A, Green
Park, Delhi.
(e) Offences Under Section 420/406 IPC
(f) Plea of accused Pleaded not guilty.
(g) Final Order Acquittal
(h) Date of institution 09.10.2000
(i) Date of judgment 21.12.2024
BRIEF STATEMENT OF THE REASONS FOR DECISION
FIR No.37/2000 State V. Santosh Bagla Page No. 1 / 18
PS Punjabi Bagh
1. The prosecution story, in brief, is that in the first week of April, 1999, accused namely, Santosh Kumar Bagla cheated the complainant namely, Sh. Pawan Kapoor by inducing him to advance the loan of Rs. 1,00,000/- in exchange of Indra Vikas Patra bearing No. (44C-621556 to 621568) (44-C-621570 to 61583) and (44-C-621511) to the time of Rs. 1,40,000/- and later on, accused failed to return the loan amount of Rs. 1,00,000/- and misappropriated the same. When complainant made efforts to get the same IVP encashed, it transpired that the said IVP were stolen one in respect of which FIR was got registered by Sec. 'G' (DD) C- No. 452 dated 15.07.1999. On the basis of said information, the present FIR bearing number 37/2000 was registered under Section 420 Indian Penal Code, 1860 (hereinafter referred to as 'IPC').
2. Investigation was carried out and charge sheet was filed u/s 173 Code of Criminal Procedure, 1973 (hereinafter referred to as 'Cr.P.C.') in the Court on 09.09.2000 against accused who was stated to be absconding. Accused was declared proclaimed absconder vide order of the Court on 20.01.2001. PW-1/Pawan Kapoor and PW-2/Mahinder Tandon were examined u/s 299 Cr.P.C. and the file was consigned to record room on 03.11.2001.
3. Subsequently, upon appearance of accused the case file was recalled on 07.09.2002. Upon compliance of Section 207 Cr.P.C., charge was framed against the accused for offence punishable under Section 420/406 IPC on 24.11.2015 to which he pleaded not guilty and claimed trial. However, in compliance of order dated 27.07.2016 passed by Ld. FIR No.37/2000 State V. Santosh Bagla Page No. 2 / 18 PS Punjabi Bagh Revision Court, order on charge was passed afresh and charge was framed against accused for offence punishable under Section 420 IPC and in alternative under Section 406 IPC vide order dated 27.11.2018. The said charges were framed on 04.10.2019 to which accused pleaded not guilty and claimed trial. Thereafter, the matter was fixed for the trial.
4. In order to prove its case, the prosecution has examined total 08 witnesses i.e. (1) Pawan Kapoor/complainant, (2) Mahinder Tandon, (3) Retd. SI Kesar Singh, (4) W/SI Vidya Devi, (5) Inspector Koushik Singha, (6) Inspector Subhash Kumar, (7) Inspector Manohar Lal and (8) Inspector Sandeep Dabas. In brief, the deposition of prosecution witnesses is reproduced as below:
4.1. PW-1/Pawan Kapoor deposed that in 1999 accused came at his house requesting to lend him Rs. 1 lac against Indra Vikas Patra of Rs.
1,40,000/-, he gave Rs. 1 lac to accused in presence of Mahender Tandon, then he gave Indra Vikas Patra to J.G. Arora for encashment from concerned GPO Calcutta but it was found fake. He then made a complaint at PS Punjabi Bagh (Ex. PW-1/A) and also filed complaint in the Court (Ex. PW-1/B and copy is Mark A) for cheating, on the basis of which present complaint case has been lodged. During investigation he handed over to IO photocopy of charge sheet in FIR No. 452/99 dated 15.07.1999 u/s 120B/420/468/471/474/380/411/34 IPC PS Hare Street Calcutta and copy of six letters dated 16.06.2000, which were seized vide seizure memo Ex. PW-1/D. The identity of accused remained undisputed. The witness was duly cross-examined.
FIR No.37/2000 State V. Santosh Bagla Page No. 3 / 18PS Punjabi Bagh 4.2. PW-2/Mahinder Tandon deposed that in first week of April 1999 he went to the house of Pawan Kapoor where accused was sitting, accused was requesting the complainant for loan of Rs. 1 lac and gave complainant 28 Indra Vikas Patra of denomination of Rs. 5,000/- each with assurance that they can be redeemed at time of maturity at Kolkata in lieu of loan, complainant handed over Rs. 1 lac to accused in his presence, it was informed by accused that bearer will get Rs. 1,40,000/- and maturity time was about 2-3 years. The identity of accused remained undisputed. The witness was duly cross-examined.
4.3. PW-3/Retd. SI Kesar Singh deposed that on 13.07.2000 SI Subhash sent him for execution of process u/s 82/83 Cr.P.C. against accused, he got DD entry at Mumbai and took one police officer from PS Tad Dev Mumbai to visit the address of accused but the house was locked, he pasted one copy of process at gate of school and one at PS Tad Dev, process u/s 83 Cr.P.C. could not be conducted as house was locked. He also conducted local miyadi by speaking on mic but no clue of accused was found. The witness was duly cross-examined.
4.4. PW-4/W/SI Vidya Devi deposed that on 19.01.2000 she received a complaint at PS Punjabi Bagh from complainant Pawan Kapoor through SHO. He registered the case and handed over to SI Subhash Kumar for investigation. FIR is Ex. PW-4/A and copy is Ex. PW-4/B. The witness was not cross-examined despite opportunity.
FIR No.37/2000 State V. Santosh Bagla Page No. 4 / 18PS Punjabi Bagh 4.5. PW-5/Inspector Koushik Singha Roy placed on record copy of charge sheet of FIR No. 452/1999 dated 15.07.1999 u/s 120B/420/380/468/471/34 IPC PS Hare Street Kolkata against accused namely Amit Chand Singhal, Pawan Kapoor and Jay Gopal Arora which is Ex. PW-5/A (colly.). The witness was not cross-examined despite opportunity.
4.6. PW-6/ Inspector Subhash Kumar deposed that on 19.01.2000 the present case was marked to him for investigation, he examined complainant and Mahender on 20.01.2000 and Jai Gopal Arora on 03.02.2000, NBW were issued against accused on 05.04.2000, he alongwith Ct. visited Mumbai on 12.04.2000 for further investigation with local police where he met servant who stated that accused had gone to Delhi. Then they raided the office of accused at Mumbai and met his nephew who also told the same. Then they came to Delhi and moved application u/s 82/83 Cr.P.C. before the court. HC Kesar went to Mumbai but process u/s 83 Cr.P.C. but house was found locked, he then moved application before Court to declare accused PO. He filed charge-sheet on 20.08.2000. The witness was duly cross-examined.
4.7. PW-7/Inspector Manohar Lal (inadvertently referred to as PW-6) deposed that on 24.05.2012 further investigation ordered by the court was marked to him by SHO, he collected documents from complainant i.e. photocopy of charge sheet in FIR No. 452/1999 PS Hare Street (Mark A), photocopy of letter written by A.K. Haldar, GSB Lal Bazar with reply FIR No.37/2000 State V. Santosh Bagla Page No. 5 / 18 PS Punjabi Bagh from Govt. of India dated 16.06.2001 (Mark B), photocopy of other documents of charge sheet (Mark C). All these documents were taken into possession vide memo Ex. PD-1/D. He then interrogated complainant and Mahender Tandon and deposited the file with MHC(R) upon transfer. The witness was duly cross-examined.
4.8. PW-8/Inspector Sandeep Dabas deposed that on 01.10.2013 further investigation was marked to him, he inspected the file and found that all investigation has been completed. Accused was already made an accused in FIR at PS Hare Street. He removed Section 468/471 IPC from present case and concluded the investigation and submitted charge sheet before the court. The witness was duly cross-examined.
5. Statement of accused was recorded u/s 313 r/w 281 Cr.P.C. on 06.09.2024 wherein all the incriminating evidence was put to accused, to which he asserted his innocence and stated that he does not know any Mahender, he has been falsely implicated in the present case, complainant has concocted a false story in order to extract money from him. The accused chose not to lead any evidence in his defence.
6. At the stage of final arguments, Ld. APP for State assisted by Ld. counsel for complainant, submitted that prosecution has been able to successfully prove its case against accused beyond reasonable doubt, that as long as the genuineness of Indra Vikas Patra has not been disputed by defence during the testimony of prosecution witness, it's genuineness cannot be later disputed at the stage of final arguments and copy of the FIR No.37/2000 State V. Santosh Bagla Page No. 6 / 18 PS Punjabi Bagh same which is certified by police can be read in evidence. Further, the numbers of Indra Vikas Patra have been specifically enumerated by complainant in his evidence u/s 299 Cr.P.C. even if the case property was not exhibited by complainant or shown to complainant in subsequent evidence. He further submitted that evidence recorded u/s 299 Cr.P.C. is not hit by Section 273 Cr.P.C. which uses the expression "except as otherwise provided" so there is not conflict between the two provisions and thus evidence of complainant u/s 299 Cr.P.C can still be read to convict the accused even after subsequent testimony of complainant. When IO was examined, defence had the opportunity to cross-examine him on the identity of case property but defence did not ask any question disputing the identity of case property and thus identification of case property is complete. He further submitted that intention of accused was dishonest from the very beginning since he is fake supplier of Indra Vikas Patra who induced complainant to lend him money against fake Indra Vikas Patra and a case in Kolkata has also been filed in which he is absconder. Thus, it was prayed that accused be convicted for the offences he is charged with. Ld. Counsel for complainant relied upon the case laws of Shyam Narayan Ram v. State of UP passed by Hon'ble Supreme Court on 21.10.2024, Sonu @ Amar v. State of Haryana AIR 2017 SC 3441 and Nirmal Singh v. State of Haryana dated 30.03.2000 in favour of his submissions.
7. Per contra, it was vehemently argued by Ld. defence counsel that prosecution has been unable to prove the case property itself. The case property never came on record, which is stated to be on record in Kolkata FIR No.37/2000 State V. Santosh Bagla Page No. 7 / 18 PS Punjabi Bagh case. Only copy of Indra Vikas Patra was filed certified by police official which is not as per law and thus cannot be called secondary evidence. The copy of case property was never shown to complainant and complainant never identified the case property in his evidence. The serial number of Indra Vikas Patra was only testified in evidence of complainant led u/s 299 Cr.P.C. and since the examination was not adopted in subsequent testimony of complainant when accused cross-examined the said witness, the statement u/s 299 Cr.P.C. cannot be read in evidence. In subsequent testimony, the complainant never revealed the serial number of Indra Vikas Patra and thus no case is made out against accused. He further stated that it is admitted fact that there was friendship between complainant and accused but it has been alleged that friendly loan was given to accused. The question therefore is whether Indra Vikas Patra were handed over to complainant by accused. Prosecution has failed to prove that complainant lent a sum of Rs. 1 lac to accused. For charge u/s 420 IPC, dishonest intention should be proved since inception. There is no inducement in the present case since it is alleged that friendly loan was advanced by complainant to accused. Further, Indra Vikas Patra have not been proved as a case property in the present case, which are still stated to be in the charge sheet before Kolkata court, the originals never came on record of this court. Present accused is not even an accused before the Kolkata court, as on 06.07.2011 no charge-sheet was filed against accused in the Kolkata case. PW-5 was examined on 15.11.2022 to prove the charge sheet of FIR in Kolkata case, there also accused has not been charge-sheeted. Certified copy of Indra Vika sPatra has been placed on record in this case, which is not objected by defence as accused was not FIR No.37/2000 State V. Santosh Bagla Page No. 8 / 18 PS Punjabi Bagh charge-sheeted in Kolkata case and thus why would accused raise objection in this case. The Indra Vikas Patra is not admissible in evidence, it is a public document since it is part of charge-sshet, thus it has to be proved by copy certified by judiciary, thus the copy on record is only a photocopy and not certified secondary evidence. Thus there is n connection of accused with Indra Vikas Patra, even its copy was not confronted to complainant. Further, in 1999 Rs. 1 lac was a big amount, Indra Vikas Patra is as good as a travelling cheque, it is a bond by government which can be encashed in any GPO, then what was the reason that complainant sent someone else to encash Indra Vikas Patra in Kolkata. Complainant, in his examination in chief, never deposed that the amount was taken from his father and was given to accused in presence of his father. It was only in cross-examination of complainant that such fact was revealed. Still his father has not been examined in evidence. There is no proof of source of funds with complainant. It is alleged that no interest was charged from accused, but Indra Vikas Patra of Rs. 1,40,000/- are alleged to have been handed over against loan of only Rs. 1 lac which goes against the prosecution. There is no allegation of recalling of loan which got matured in July, there is no notice of repayment given to accused, therefore theory of Indra Vikas Patra is not related to loan of Rs. 1 lac. The testimony of PW-2 is contrary to that of complainant qua maturity period of loan and the interest charged. He further submitted that even Section 406 IPC is not proved against accused as it is settled law a breach of contract/agreement/promise does not constitute offence of criminal breach of trust and thus prayed to acquit the accused. He also relied upon his written submissions and following case laws in favour of FIR No.37/2000 State V. Santosh Bagla Page No. 9 / 18 PS Punjabi Bagh his submissions: Satishchandra Ratanlal Shah v. State of Gujarat (2019) 9 SCC 148, Hridaya Ranjan Prasad Verma v. State of Bihar (2000)4 SCC 168, Uma Shankar Gopalika v. State of Bihar (2005)10 SCC 336, Sarabjit Kaur v. State of Punjab (2023)5 SCC 360.
8. After hearing arguments and perusal of record, the appreciation of evidence and finding of this Court is as follows:
9. It is settled proposition of law that the prosecution has to prove beyond any reasonable doubt that the accused had committed the offence with the requisite mens rea; and the burden of proving that always rests on the prosecution from the beginning to the end of the trial. It is for the prosecution to travel the entire distance from 'may have' to 'must have'. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused. In the present case, accused Santosh Bagla has been charged with commission of offence u/s 420 IPC and in alternative Section 406 IPC.
10. Before appreciating evidence, it would be pertinent to mention the relevant provisions:
Section 420 IPC. 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.FIR No.37/2000 State V. Santosh Bagla Page No. 10 / 18
PS Punjabi Bagh Section 405 IPC (punishable u/s 406 IPC). Criminal Breach of Trust. --Whoever, being in any manner entrusted over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits criminal breach of trust.
11. In the present case, there are two prime witnesses i.e. PW-1/complainant and the eye-witness/PW-2. Remaining witnesses are only formal/police witnesses having role in the investigation of the case. The allegations forming part of the present charge-sheet are that in first week of April 1999, accused borrowed a sum of Rs. 1 lac from complainant against 28 Indra Vikas Patras (IVPs, in short) for a total sum of Rs. 1,40,000/- in presence of Mahender Tandon with promise of their encashment at GPO Calcutta upon maturity. However, when the said Indra Vikas Patras were presented by Mr. J.G. Arora (on behalf of complainant) at GPO Calcutta, they were found to be fake. It has also come in evidence of the formal witnesses that the said 28 Indra Vikas Patras were found to be belonging to a lot which was stolen by some miscreants some time ago. Thus, an FIR No. 452/1999 was registered at PS Hare Street and Charge-sheet Ex. PW-5/A (colly.) was filed in Calcutta against accused namely Amir Chand Singhal, J.G. Arora and Pawan Kapoor with prime accused as Santosh Bagla who was left untraced and proclamation was issued against him. Simultaneously, complainant initiated the present proceedings, with accused Santosh Bagla as the only accused. It has also come in evidence of FIR No.37/2000 State V. Santosh Bagla Page No. 11 / 18 PS Punjabi Bagh PW-8/Inspector Sandeep Dabas that since the present accused Santosh Bagla was already made an accused in FIR No. 452/1999 PS Hare Street, he removed Section 468/471 IPC from the present case and accordingly filed charge-sheet against the present accused.
12. Now coming to the defence raised by accused, the first and primary Objection of the defence has been that since the case property has remained unidentified, the accused cannot be convicted. The contentions raised by Ld. counsel for accused are that the case property i.e. Indra Vikas Patra (IVP), in original, never came on record of the present case. It was only a photocopy of such IVPs that came to be part of this case, which were brought on record by PW-5 and are part of Ex. PW-5/A (colly.). These are also as good as a photocopy only and cannot be called secondary evidence since they are certified by sub-inspector and not by judicial means. Further, it was contended that even these photocopies were not confronted or identified by complainant in his evidence and thus, remained unidentified.
13. To the contrary, it was contended on behalf of State that although the complainant never identified the IVPs in his subsequent testimony. However, complainant's former testimony u/s 299 Cr.P.C. clearly spells out the serial numbers of all the IVPs and such testimony can be read in evidence as there does not seem any conflict between Section 299 Cr.P.C. and Section 273 Cr.P.C. The State, thus, relied upon the case law of Shyam Narayan Ram v. State of UP passed by Hon'ble Supreme Court on 21.10.2024, Sonu @ Amar v. State of Haryana AIR 2017 SC 3441 and FIR No.37/2000 State V. Santosh Bagla Page No. 12 / 18 PS Punjabi Bagh Nirmal Singh v. State of Haryana dated 30.03.2000 to state that even otherwise, when the defence did not raise any objection to the tendering of photocopy of IVPs in evidence and chose not to cross-examine PW-5, such objection cannot be raised at the belated stage of final arguments.
14. Thus, the first point of consideration is whether evidence of PW-1/complainant recorded u/s 299 Cr.P.C. can be read in evidence despite his subsequent deposition after the accused was brought before the Court. The straight answer to this question would be in negative. Let us understand why.
15. The purpose of Section 299 Cr.P.C. is spelled out in the case relied upon by the State itself i.e. Nirmal Singh v. State of Haryana dated 30.03.2000 wherein it has been held as under:
"Section 299 of the Code of Criminal Procedure consists of two parts. The first part speaks of the circumstances under which witnesses produced by the prosecution could be examined in the absence of the accused and the second part speaks of the circumstances, when such deposition can be given in evidence against the accused in any enquiry or trial for the offence with which he is charged. This procedure contemplated under Section 299 of the Code of Criminal Procedure is thus an exception to the principle embodied in Section 33 of the Evidence Act inasmuch as under Section 33, the evidence of a witness, which a party has no right or opportunity to cross-examine is not legally admissible. Being an exception, it is necessary, therefore, that all the conditions prescribed, must be strictly complied with. In other words, before recording the statement of the witnesses, produced by the prosecution, the Court must be satisfied that the accused has absconded or that there is no immediate prospect of arresting him, as provided under first part of Section 299(1) of the Code of Criminal Procedure...When the accused is arrested and put up for trial, if any, such deposition of any witness is intended to be used as an evidence against the accused in any trial, then the Court must be satisfied that either the deponent is dead or incapable of giving evidence or cannot be found or his presence cannot be procured without an amount of delay, expense or inconvenience, which would be unreasonable."FIR No.37/2000 State V. Santosh Bagla Page No. 13 / 18
PS Punjabi Bagh
16. Section 273 Cr.P.C. mandates recording of evidence in presence of accused or his pleader, except as otherwise provided. Section 299 Cr.P.C. is though an exception carved out, yet its application is limited to the circumstances enumerated in the said provision itself. After recording of such depositions u/s 299 Cr.P.C., if the accused is brought before the Court or appears at a subsequent stage, such prosecution witnesses are again required to depose before the Court giving an opportunity to the defence to cross-examine them, unless for the reasons enumerated in the latter part of Section 299 Cr.P.C., their presence could not be procured. Only in such cases, deposition of any such witnesses whose presence cannot be procured, can be read in evidence against accused and can form part of his conviction. Thus, whereas prosecution witnesses could be examined in absence of accused u/s 299 Cr.P.C. in case the accused is declared a proclaimed absconder, yet for such deposition to be read in evidence it is necessary for the Court to reach a conclusion that such prosecution witness is either dead, or incapable of giving evidence or cannot be found or his presence cannot be procured without an amount of delay, expense or inconvenience, which would be unreasonable.
17. In the present case, accused was declared proclaimed offender vide order dated 20.01.2001 and PW-1/Pawan Kapoor and PW-2/Mahinder Tandon were examined u/s 299 Cr.P.C. However, upon production of accused, these witnesses were again examined in PE and opportunity was given to the defence to cross-examine them. In the subsequent examination, PW-1/complainant neither identified the IVPs (as they were FIR No.37/2000 State V. Santosh Bagla Page No. 14 / 18 PS Punjabi Bagh not on record at that stage) nor deposed their serial numbers so as to sufficiently identify them. The copies of such IVPs only came on record in the deposition of PW-5, who was not cross-examined by the defence. No objection to their admissibility was also raised by defence at that stage. Be that as it may, the mere fact that the case property was only identified by police witness and not by the public witnesses i.e. complainant and PW-2, it can be safely held that case property in the present case has remained unidentified. In such a case, by the import of Section 299 Cr.P.C. and the law laid down in the case of Nirmal Singh (supra), the former statement of PW-1 u/s 299 Cr.P.C. cannot be read in evidence to bring home the guilt of accused. Accordingly, this objection of the defence sustains.
18. Coming to the charge u/s 406 IPC, in the case of Satishchandra Ratanlal Shah v. State of Gujarat (2019) 9 SCC 148 also the dispute arose out of a loan transaction where the parties knew each other before the lending took place. It was observed that:
"The law clearly recognizes a difference between simple payment/investment of money and entrustment of money or property. A mere breach of a promise, agreement or contract does not, ipso facto, constitute the offence of the criminal breach of trust contained in Section 405 IPC without there being a clear case of entrustment. In this context, we may note that there is nothing either in the complaint or in any material before us, pointing to the fact that any property was entrusted to the appellant at all which he dishonestly converted to his own use so as to satisfy the ingredients of Section 405 punishable under Section 406 IPC."
Further, in the case of Hridaya Ranjan Prasad Verma v. State of Bihar (2000)4 SCC 168 it was held that:
"...It has to be kept in mind that the distinction between mere breach of contract and the offence of cheating is a fine one. It depends upon the FIR No.37/2000 State V. Santosh Bagla Page No. 15 / 18 PS Punjabi Bagh intention of the accused at the time of inducement which may be judged by his subsequent conduct but for this subsequent conduct is not the sole test. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction, that is the time when the offence is said to have been committed. Therefore, it is the intention which is the gist of the offence. To hold a person guilty of cheating it is necessary to show that he had fraudulent or dishonest intention at the time of making the promise. From his mere failure to keep up promise subsequently such a culpable intention right at the beginning, that is, when he made the promise cannot be presumed."
The ratio laid down in the case of Uma Shankar Gopalika v. State of Bihar (2005)10 SCC 336 and Sarabjit Kaur v. State of Punjab (2023)5 SCC 360 is also on the same lines as in Hridaya Ranjan Prasad Verma (supra).
19. Likewise in the present case, it is admitted fact that complainant and accused were known to each other prior to the alleged lending. The allegations of complainant are also to the effect that it was friendly loan that was advanced to accused against 28 IVPs. The complainant has urged dishonest intention of accused to be inferred from the fact that accused had dishonest intention at the very beginning when he handed over 28 fake IVPs which were found to be part of the stolen lot. Whereas defence pleaded that the present accused has not been charge-sheeted in the corresponding FIR No. 452/1999 lodged at PS Hare Street, Kolkata. The same is not true in its entirety as it has come on record that present accused is the prime accused in FIR No. 452/1999 PS Hare Street but has remained an absconder due to which he could not be charge-sheeted. Be that as it may, the prosecution has been unable to correlate accused with IVPs in the present case, inasmuch as the IVPs which are the case FIR No.37/2000 State V. Santosh Bagla Page No. 16 / 18 PS Punjabi Bagh property of the present case have remained unidentified by PW-1 and PW-2. Thus, it can be safely held that prosecution has been unable to prove the guilt of accused beyond reasonable doubts.
20. Coming to the case law relied upon by Ld. counsel for complainant, the case of Shyam Narayan Ram v. State of UP passed by Hon'ble Supreme Court on 21.10.2024, is related to admission of documents by defence counsel without it being admitted by accused and relates to Section 294 Cr.P.C. which is not the dispute in the present case. The case of Sonu @ Amar v. State of Haryana AIR 2017 SC 3441 , primarily deals with prospective and retrospective operation of a judgment and is thus not relevant to the present case.
21. In criminal jurisprudence, an accused is presumed to be innocent, until proven guilty, and the burden of proving the guilt of accused solely rests upon the prosecution by leading positive evidence. The guilt of accused is not to be proved by mere preponderance of probabilities but it has to be proved beyond all reasonable doubts. Suspicion, howsoever grave, cannot take the place of proof. In the present case, the evidence apparent on record is insufficient for bringing home the guilt of the accused and the prosecution story suffers from material infirmities, as already observed hereinabove. The mere fact of registration of FIR against present accused in Kolkata, cannot be the sole ground to convict the accused in the present case when the prosecution has been unable to connect the accused with the case property/IVPs in the present case.
FIR No.37/2000 State V. Santosh Bagla Page No. 17 / 18PS Punjabi Bagh
22. Accordingly, accused Santosh Bagla S/o Late Sh. Laxmi Naryana Bagla is held 'not guilty'. Accused is thus acquitted of the charges levelled against him u/s 420/406 IPC.
Announced in open Court
on 21st day of December, 2024
Digitally
[AAKANKSHA]
signed by Judicial Magistrate First Class-
AAKANKSHA 05(West)/THC
AAKANKSHA Date:
2024.12.21 THC/Delhi/21.12.2024
12:05:29
+0530
FIR No.37/2000 State V. Santosh Bagla Page No. 18 / 18
PS Punjabi Bagh