Delhi District Court
State vs . Avdesh Kumar And Ors. on 13 January, 2012
IN THE COURT OF SH. DEEPAK SHERAWAT
METROPOLITAN MAGISTRATE, SOUTH DISTRICT
SAKET COURTS, NEW DELHI
FIR No. 539/99
P.S. Malviya Nagar
U/s 420/120-B IPC
State Vs. Avdesh Kumar and ors.
JUDGMENT :
a. Sl. No. of the case : 291/2
b. Date of Institution : 22.10.1999
c. Date of Commission of Offence : 14.02.1999
d. Name of the complainant : Kamaljeet Singh
S/o Harbhajan Singh
e. Name of the accused and his : (1.) Avdesh Gupta
parentage and address S/o Late Sh. L.N. Gupta
R/o B-78, Sarvodaya
Enclave, New Delhi
(2.) Upendra Singh
S/o Jeley Singh
R/o H-2, SS Housing
Society, Shalimar Garden,
Sahibabad Extension, U.P.
f. Offence complained of : U/s 420/120-B IPC
g. Plea of the accused : Pleaded not guilty
h. Order reserved : 13.01.2012
i. Final Order : Acquitted
j. Date of such order : 13.01.2012
1. Both the accused persons in this case were sent up
for trial for the commission of offence u/s 420/120-B IPC. FIR NO. 539/1999 PAGE 1 OF PAGE 6 PS MALVIYA NAGAR 2. The facts in brief are that on 14.02.1999, at B-78, Sarvodaya Enclave, New Delhi, both the accused persons entered
into criminal conspiracy and cheated the complainant Kamaljeet and Virender Pal Kaur dishonestly inducing them to deliver Rs. 9,60,000/- for the purpose of arrangement of VISA for America but both the accused persons did not arrange the same. Thereafter on the basis of statement of complainant, present case FIR was registered in PS. During the investigation site plan was prepared. Statement of witnesses were recorded. Both the accused persons were arrested. After completing other formal investigation the challan was presented before the court for trial u/s. 420/120-B IPC against both the accused persons.
3. A prima facie offence having been made out against both the accused persons, charge was framed against them on 19.07.2001 U/s. 420/120-B IPC to which they both pleaded not guilty and claimed trial.
4. During the course of trial, one of the complainant namely Kamaljeet Singh had compromised the matter with both the accused persons by moving an application u/s 320(2) Cr.P.C, vide order dated 03.06.2006.
5. To prove its case the prosecution has examined only three witnesses namely HC Sushil Kumar as PW1, Charanjeet Singh as PW2 and Paramjeet Singh as PW3.
FIR NO. 539/1999 PAGE 2 OF PAGE 6 PS MALVIYA NAGAR 6. PW1 Sushil Kumar has testified that on 26.08.1999, on
receipt of complaint through SI Mahinder Singh, he recorded the present case FIR which is Ex. PW1/A. Accused did not prefer to cross examine PW1.
7. PW2 Charanjeet Singh has testified that in the year 1999, they had to sent his sister to America for which they arranged about Rs. 4 lacs and gave the same to accused Avdesh Gupta. PW2 was cross examined by Ld. APP as he resigled from his earlier statement given to the police.
In his statement, he has testified that he had settled the matter with the accused persons and accused had also returned him Rs. 2 lacs as a settlement amount.
PW2 was also cross examined by Ld. Defence Counsel.
8. PW3 Paramjeet Singh has testified that he had lent Rs. 1.50 lacs to Charanjeet Singh for sending his sister to USA in front of Hardev Singh and Bhajan Singh.
Ld. Counsel for accused did not prefer to cross examine PW3.
9. Thereafter, several opportunities were afforded to the prosecution to adduce the evidence requisite to prove the case against the accused persons. It is pertinent to note that the matter is subjudice since the year 1999 and the charge against both the FIR NO. 539/1999 PAGE 3 OF PAGE 6 PS MALVIYA NAGAR accused persons was framed on 19.07.2001 for the offence punishable under section 420/120-B IPC. Thereafter despite several opportunities having been provided to the prosecution for leading the evidence, the prosecution has not been able to produce its entire witness. After giving sufficient opportunities for leading evidence, the right of the prosecution to lead further evidence was closed on 12.01.2012.
10. After closing of prosecution evidence, statement of the accused persons was recorded U/s 313 r/w. 281 of Code of Criminal Procedure Code, 1973. In their statement, accused persons denied to have committed the offence and claimed to have been falsely implicated in this case.
11. I have heard the Ld. APP for the State and Ld. Counsel for the accused persons and also perused the record.
12. To attract the provisions of section 420 IPC, there must be material to show that the accused played deception upon the complainant and thereby induced him to deliver some valuable property.
13. In the present case, accused Upender Singh has not been shown to have played any role in deceiving and inducing any of the complainant. He is also not alleged to be the recipient of the unlawful gain. In fact, there is no material at all against accused FIR NO. 539/1999 PAGE 4 OF PAGE 6 PS MALVIYA NAGAR Upender Singh. Even in the complaint his name does not figure anywhere. The contents of charge sheet also does not attribute any role to him. There is no material to show his connivance in the commission of the offence. He is not shown to have aided or assisted the other accused in cheating the complainants. It goes without saying that accused cannot be held guilty of any offence. In the absence of there being no substance against accused Upender Singh, the charge of conspiracy cannot stand.
14. Against other accused Avdesh also, the prosecution could not prove anything. In fact, the witnesses produced by the prosecution were willing to compound the offence. PW 2 Charanjeet has not supported the prosecution version of the case. He has resiled from his statement given to him earlier to the police. Ld APP has cross examined him. But he has not said anything to prove the charge against the accused. On the contrary, he has stated that he has compromised the case with the accused and received a sum of Rs 2 lacs from him. PW3 Paramjeet Singh has also not disclosed much to indict the accused. Other complainants who are witness in this case could not be produced in the court, since all of them have left the country and settled in foreign.
15. In the facts and circumstances of the case, it is needless to say that no charge is proved against the accused and he is entitled to be acquitted.
FIR NO. 539/1999 PAGE 5 OF PAGE 6 PS MALVIYA NAGAR
16. In the result, I find that Prosecution has failed to prove its case against the accused persons beyond reasonable doubt and they are given the benefit of doubt and therefore accused Avdesh Gupta and Upendra Singh are acquitted for the offence punishable U/s. 420/120-B IPC for which they both stand charged.
Announced in the Open Court (DEEPAK SHERAWAT)
On 13.01.2012 Metropolitan Magistrate
South District/New Delhi
FIR NO. 539/1999 PAGE 6 OF PAGE 6
PS MALVIYA NAGAR
FIR No. 539/1999
PS Malviya Nagar
u/s 420/120-B IPC
13.01.2012
Present: Ld. APP for the State.
Both accused are on bail with counsel.
Vide my separate judgment dictated and announced in the open court, both the accused persons are acquitted for the offence punishable U/s 420/120-B IPC for which they both stand charged.
Both the accused persons are re-admitted to bail on furnishing fresh bail bond in the sum of Rs. 10,000/- each with one surety each in the like amount. Bail bonds furnished. As per section 437-A of the Cr.P.C, as amended vide the Amendment Act, which came into force on 31.12.2009, the accused as well as the surety shall remain bound by the personal and the surety bond respectively for a period of six months from today.
File be consigned to Record Room.
(Deepak Sherawat)
MM/South Delhi/ 13.01.2012
FIR NO. 539/1999 PAGE 7 OF PAGE 6
PS MALVIYA NAGAR