Delhi District Court
State vs Amarnath Etc. on 18 August, 2023
IN THE COURT OF MS. DEEKSHA SETHI, MM-03, SOUTH WEST DISTRICT, DWARKA COURTS, DELHI CNR No. : DLSW02-000010-2004 ID. No. : 424851/2016 FIR No. : 695/2001 U/s : 406/34 IPC P.S. : Najafgarh State v/s Amarnath etc. a) Name & address of the : Chander Bhan Mittal complainant R/o 309, Nawada Bazar, Najafgarh, Delhi. b) Name & address of :1) Amarnath accused S/o Sh Nihal Chand R/o WZ-1390/14B, Pankha Road, Nangal Rai, Delhi 2) Keshav Chand S/o Nihal Rai R/o WZ-1390/14B, Pankha Road, Nangal Rai, Delhi c) Date of Commission of : 24.12.2001 offence d) Offence complained of : 406/34 IPC e) Plea of the accused : Pleaded not guilty. f) Ld. APP for the State : Sh. Manish Kaushik g) Final Order : Acquitted. h) Date of Institution : 24.11.2004 i) Judgment Pronounced on : 18.08.2023 JUDGMENT
Brief facts
1. Vide this judgment, I shall dispose of an old case in which FIR was registered in the year 2001 and charge-sheet was filed in the year 2004.
State v/s Amarnath etc. Page 1 of 24 Cr. Case No. 424851/20162. The prosecution version in brief is that on 24.12.2001 at about 7:30 PM, at shop no. 309, Nawada Bazar, Najafgarh, Delhi, the accused persons Amarnath and Keshav Chand, in furtherance of their common intention, had bought the goods from mandi and fled away without paying the amount which is approximately Rs. 49,83,712/-. An FIR bearing no. 695/2001 was registered at PS Najafgarh u/s 406 IPC. Investigation of the case was first conducted by IO SI Gyanender Rana, SI SS Rathi and SI VP Kochhar.
Proceedings before the Court
3. On completion of investigation, a chargesheet u/s 406/34 Indian Penal Code, 1860 (hereinafter referred to as 'IPC') was filed against the accused persons Amarnath and Keshav Chand. After taking cognizance of the offence, the accused persons were summoned to face trial.
4. On their appearance, a copy of chargesheet along with documents was supplied to the accused persons in terms of Section 207 of the Code of Criminal Procedure (hereinafter 'CrPC'). On finding prima facie case against the accused persons, a charge under section 406/34 IPC was framed against them, to which they had pleaded not guilty and claimed trial.
5. During the trial, prosecution has examined seventeen witnesses. PW-1 Sh. Ramesh Jain has deposed that accused persons Amarnath and Keshav were owners of M/s Lachchu Mal Jai Narayan, B-12, New Anaj Mandi, State v/s Amarnath etc. Page 2 of 24 Cr. Case No. 424851/2016 Najafgarh. They were doing business of commission agents and they used to purchase grains. They had purchased grains between 11.11.2001 to 26.11.2001 from him worth Rs. 1,77,525.35/-. He was also having a shop at the mandi bearing no. B-18 under the name of Mehar Chand Sundar Lal Jain. The accused persons had also purchased grains from other shop owners of the mandi. They had purchased grains from 49 shop owners amounting to Rs. 49,83,000/- (approximately). They did not make payment to him nor to other shop owners. They fled away from the mandi without making payment. He had complained to the Vyapar Mandal, Najafgarh regarding the misappropriation of the said amount by the accused persons and he had also handed over to them a receipt which was exhibited as Ex. PW-1/A. The witness identified both the accused persons Amarnath and Keshav in court. This witness had brought the bill books regarding the purchase of grains from him by the accused persons under the name of M/s Lachchu Mal Jai Narayana. The relevant receipts were: (i) number 3242 dated 11.11.2001 of Rs.33116.15/-, (ii) number 3263 dated 16.11.2001 of Rs 21153.10/-, (iii) number 3298 dated 22.11.2001 of Rs 67092.75/-, (iv) number 3301 dated 23.11.2001 of Rs 31855.5/- (v) number 3307 dated 24.11.2001 of Rs 22761.30/- and (vi) number 3320 dated 26.11.2001 of 1546.5/-. Photocopies of all the above said receipts were exhibited as Ex. P-1 to Ex. P-6. This witness was thoroughly cross-examined by Ld. Defence counsel.
State v/s Amarnath etc. Page 3 of 24 Cr. Case No. 424851/20166. PW-2 Sh. Ashok Goyal has deposed that accused persons Amarnath and Keshav were owners of M/s Lachchu Mal, Jai Narayan, B-12, New Anaj Mandi, Najafgarh. They were doing business of commission agents and they used to purchase grains. They had purchased grains (paddy) between 11.11.2001 to 26.11.2001 from him worth Rs. 31,637/-. He was having a shop at A-12, New Grain Market, Najafgarh under the name of M/s Hardev Sahai Lal Chand. The accused persons had purchased grains from about 49 grain merchants from the mandi worth Rs. 50,00,000/- (approximately). They did not make payment regarding the purchased grains to him nor to any other grain merchants and they fled away from the mandi without making payment. He had complained to the department at Najafgarh. He had given receipt to Vyapar Mandal (Ex. PW-2/A), bearing signature of his father Late Sh. Bhola Ram at point A. The witness stated that he could identify the signature of his father as he has seen him writing and signing. The witness identified both the accused persons in court. This witness had brought the original bill books of the relevant period. Copy of two receipts (i) number 572 dated 25.11.2001 of Rs. 12,968.73/- and (ii) 599 dated 03.12.2001 of Rs 18,668.73/- and bearing the signature of his accountant namely Shyam Lal at point A were exhibited as Ex. P-7 and Ex. P-8 (OSR). This witness was thoroughly cross- examined by Ld. Defence counsel.
State v/s Amarnath etc. Page 4 of 24 Cr. Case No. 424851/20167. PW-3 Sh. Chander Bhan Mittal has deposed that he is the President of Vyapar Mandal, Anaj Mandi, Najafgarh since 1998. On 23.12.2001, he had made a complaint (Ex. PW- 3/A) against the accused persons namely Amarnath and Keshav. The witness identified both the accused persons in court. Accused persons had cheated the shopkeepers as mentioned in list Ex. PW-3/B (running into 02 pages). The said list was furnished by him along with aforesaid complaint. The accused persons were doing the business of commission agents in the Anaj Mandi and they used to purchase grains. They had purchased the grains worth of Rs. 49,83,712/- from different shopkeepers and that amount is due against the accused persons. Accused persons did not pay the said amount and fled away from the Anaj Mandi. They went to their house at Pankha Road, Janakpuri, but they were not at their home. Thereafter, they made the aforesaid complaint against them. He had sold his shop to M/s Lachchu Mal Jai Narain Firm, B-12, New Anaj Mandi, Najafgarh to the accused persons and he was the five percent sleeping partner but he did not have any business in the dealing of the firm. He made the complaint as President of Vyapar Mandal. The accused persons did not make any payment to the shopkeepers. IO had recorded his statement. This witness was thoroughly cross- examined by Ld. Defence counsel.
8. PW-4 Inspector Gyanender Rana has deposed that on 24.12.2001, he was posted at PS Najafgarh as a sub- inspector. On that day, a complaint on the letter-head of State v/s Amarnath etc. Page 5 of 24 Cr. Case No. 424851/2016 Vyapar Mandal, Najafgarh was received from complainant Chander Bhan. After going through the contents of the complaint, he made an endorsement (Ex. PW-4/A) on the complaint (Ex. PW-3/A). Thereafter, he gave the complaint to Duty Officer for registration of FIR. After registration, he gave a copy of FIR and started the investigation. He went to Anaj Mandi, Najafgarh where he met one Mr. Vinod who handed over thirty-eight receipts and seized the same vide seizure memo Ex. PW-4/B. He seized thirty- nine to forty-nine receipts vide seizure memo Ex. PW-4/C. I recorded the statement of Mr. Rajbir, Mr. Vinod, Mr. Raju and some other witnesses at Anaj Mandi. He also recorded the statement of Assistant Security Officer of Anaj Mandi who told him that fifteen vehicles had departed from accused Amarjeet's shop. He also recorded the statement of driver of one vehicle (truck). Thereafter, he searched for accused Amar Nath and Keshav but they could not be found. Thereafter, he was transferred and the file was handed over to MHC(R). The witness identified forty-nine receipts attached with the judicial file and the same were exhibited as Ex. P (colly). This witness was thoroughly cross-examined by Ld. Defence counsel.
9. PW-5 Sh. Rajbir Singh Sharma has deposed that he was working as a commission agent in Anaj Mandi, Najafgarh for the last sixteen years. At the relevant point of time, he was doing business under the name and style of M/s Mahender Pal Jain from shop no. 46 at Anaj Mandi, Najafgarh. The present incident occurred between State v/s Amarnath etc. Page 6 of 24 Cr. Case No. 424851/2016 04.11.2001 to 03.12.2001. At that time, he had sold paddy (dhaan) amounting to Rs. 1,89,515/ to accused Amarnath who was running his firm under the name of M/s Lachchu Mal Jai Narain. He further stated that he did not remember the quantity of dhaan. He prepared a receipt of due amount of different dates after taking entries from his different bill books. He demanded the due amount from accused but the accused did not pay any amount to him. Later on, he came to know that he was liable to pay the amount of others shop keepers of Anaj Mandi also. Thereafter, they (shopkeepers) lodged a complaint against the accused at PS Najafgarh. During investigation, he had handed over the receipt of amount due against the accused to the IO. Police also prepared seizure memos of the said receipts and the same are Ex. PW-4/B and Ex. PW-4/C. His entry is mentioned at serial no. 20 (point X) in Ex. PW-4/B. Accused Keshav is brother of accused Amarnath and doing business with the firm M/s Lachchu Mal Jai Narain. Both brothers were dealing with him on behalf of their firm M/s Lachchu Mal Jai Narain. The witness identified accused Amarnath and Keshav in court. He also identified the receipt issued by M/s Mahender Pal Jain Co. and it was exhibited as Ex. PW-5/1. He further stated that bill book numbers mentioned in his receipt was not available with him as he used to keep record for last six years only. This witness was thoroughly cross-examined by Ld. Defence counsel.
State v/s Amarnath etc. Page 7 of 24 Cr. Case No. 424851/201610. PW-6 Sh. Omvir Singh has deposed that he was running a shop located at B-8, New Anaj Mandi, Najafgarh, in the name Yadav Trading Company. He was working as Grain Merchant and Commission Agent. Both the accused persons namely Amarnath and Keshav Chand were working as Commission Agent at shop no. B-12 under the name of M/s Lachchu Mal Jai Narayan since three-four years from the present incident. From the period 09.04.2001 to 29.11.2001, both the accused persons had purchased dhaan/paddy from forty-nine companies including his company. They both had purchased dhaan/paddy from him worth Rs. 2,00,785.60, but they did not make payment of the same. They both fled away from Najafgarh Anaj Mandi and dhaan/paddy purchased by them from Najafgarh Anaj Mandi was sold by them in cash in Narela Anaj Mandi by showing themselves as farmers. One Sh. Chander Bhan, Pradhan of Najafgarh Anaj Mandi got the present FIR registered. Both the accused persons have cheated him as they have not paid the amount for the purchased dhaan/paddy and sold the same in Narela Anaj Mandi by impersonating themselves as farmers and received cash from there and did not make payment to the shop keepers at Najafgarh Anaj Mandi. Both the accused persons had intended to cheat him as Commission Agents did not use to purchase dhaan/paddy for direct sale to another Anaj Mandi. They are supposed to purchase dhaan/paddy for supply to rice mills. The witness State v/s Amarnath etc. Page 8 of 24 Cr. Case No. 424851/2016 identified both the accused persons in court. This witness was thoroughly cross-examined by Ld. Defence counsel.
11.PW-7 Sh. Madan has deposed that in the year 2001, he used to run truck of Shri Bhagwan bearing no. HR-26GA- 1302. He further stated that he did not know anything else about the present case and no police official had met him. This witness was declared hostile by Ld. APP for the State, who had cross-examined him after taking permission of the court. Ld. Defence counsel did not cross-examine the said witness despite having been given an opportunity to do so.
12.PW-8 Sh. Prakash Chand has stated that he was working as Assistant Secretary in APMC, Najafgarh till February 2002 and he had not given any statement to the police nor did he know anything about the present case. This witness was declared hostile by Ld. APP for the State, who had cross- examined him after taking permission of the court. Ld. Defence counsel did not cross-examine the said witness despite having been given an opportunity to do so.
13.PW-9 Sh. Naresh Kumar has deposed that he was running a shop of grains under the name of 'Khem Chand & Sons' for last thirty to thirty-five. The accused persons Keshav and Amar Nath used to buy grains from him. In 2001, they had brought grains from him but they had not paid the consideration amount. Till date, they have not paid the consideration amount. This witness was thoroughly cross- examined by Ld. Defence counsel.
State v/s Amarnath etc. Page 9 of 24 Cr. Case No. 424851/201614.PW-10 Shri Bhagwan has deposed that he was running a shop of food grains under the name of Johri Mal Satyanarayan for the last forty years. The accused persons Keshav and Amar Nath used to buy grains from him. In the year 2001, they had brought grains worth Rs. 1,90,000/- from him, but they did not pay the consideration amount. Till date they have not paid the consideration amount for the grains they had purchased from his shop. This witness was thoroughly cross-examined by Ld. Defence counsel.
15.Inadvertently, statement of two witnesses namely Sh. Mahesh and Sh. Ashok Kumar was recorded as PW-11 by my Ld. Predecessor.
16.PW-11 Sh. Mahesh has deposed that he used to deal in grains and he was running a firm under the name and style of Sh. Khem Chand and Sons at New Anaj Mandi, Najafgarh. Both the accused persons were having a shop under the name and style of M/s Lachchu Mal Jai Narayan at B- 12, New Anaj Mandi, Najafgarh and they were in the business of commission. They used to purchase paddy (dhaan) from them and further sell it in the market. In the year 2001 in the month of November-December, accused persons took paddy worth Rs. 3,11,000/- to Rs. 3,12,000/- from him but they did not make any payment to him for the aforesaid paddy. Accused persons promised to make the payment later on, but they did not make any payment and fled from Anaj Mandi. The witness identified both the accused persons in court. This witness was thoroughly cross-examined by Ld. Defence counsel.
State v/s Amarnath etc. Page 10 of 24 Cr. Case No. 424851/201617. PW-11 Sh. Ashok Kumar has deposed that he was working as a Commission Agent since 1980 and he was running a shop under the name of Haryana Trading Company situated at A-73, Nai Anaaj Mandi, Najafgarh. The incident had happened around year 2001, but he did not remember the exact year. In the said year, auction of Jiri (dhaan) was conducted in the Mandi by the auctioneer. His grains were purchased by accused Amar Nath, who was running his firm under the name of M/s Lachchu Mal Jai Naryana in Anaj Mandi. Amount of the grains was worth Rs.1,59,315/-. The bill was also issued in the name of firm of the accused persons. He had asked for money several times from the accused persons, but they did not pay the amount and they later on left the mandi and closed their shop. The letter pad of the issued bill of his firm is Ex. PW-11/A and it bears the signature of his brother Satish Kumar at point A. The said letter pad contained total six bills of total amount of Rs.1,59,315/-. He had handed over the letter head of his firm regarding the bill to the police during the investigation of the present case. Accused persons have not given the balance amount to him till date. The witness identified both the accused persons in court. This witness was thoroughly cross-examined by Ld. Defence counsel.
18.PW-12 ASI Rajbir Singh has deposed that on 24.12.2001, he was posted as duty officer in PS Najafgarh and his duty timings were from 4:00 PM to 12 (midnight). On that day, at about 07:30 PM, SI Gyanendra Rana had presented one State v/s Amarnath etc. Page 11 of 24 Cr. Case No. 424851/2016 tehrir on the basis of which he registered the present FlR (Ex. PW-12/A). He made an endorsement on the rukka which was exhibited as Ex. PW12/B. This witness was cross-examined by Ld. Defence counsel.
19.PW-13 Retd. SI Tejpal Singh has deposed that on 14.07.2003, he was posted at PS Najafgarh as ASI. On that day, he along with SI Ved Prakash had gone to Anaj Mandi, Najafgarh where they met the President of Market Association namely Sh. Chander Bhan Mittal and Ashok Goel. SI Ved Prakash interrogated them. Sh. Ashok Goel had handed over a compromise deed in their partnership between Pushpa Gupta w/o Amar Nath and Chander Bhan. SI Ved Prakash prepared the seizure memo of the documents. The seizure memo was exhibited as Ex. PW- 13/A. IO recorded his statement u/s 161 CrPC. This witness was cross-examined by Ld. Defence counsel.
20.PW-14 Sh. Naresh Kumar Gupta has deposed that he used to work as a wheat merchant and run a firm under the name and style of Murlidhar Mehar Chand situated at A-5, New Anaj Mandi Najafgarh. Accused persons took articles from his firm in the year 2001 worth Rs 1,13,000/- (approximately) and did not make the payment of the articles. He used to deal in wheat, dhaan, mustard seeds etc. This witness identified both the accused persons in court. He was thoroughly cross-examined by Ld. Defence counsel.
21.PW-15 Inspector Surender Singh Rathi has deposed that he was the second IO in the present case. The investigation in State v/s Amarnath etc. Page 12 of 24 Cr. Case No. 424851/2016 the present case remained with him from September, 2002 to June, 2003. During the aforesaid period, he made efforts to the arrest the accused persons, but in vain. Thereafter, he was transferred to PS Sarojini Nagar and he was relieved from the investigation of the present case. He had handed over the case file to MHC(R), PS Najafgarh. This witness was not cross-examined by Ld. Defence counsel despite having been given an opportunity to do so.
22. PW- 16 Retired SI V.P. Kochar has deposed that he was one of IO in the present case. On 04.07.2003, investigation of the present case was marked to him. On 05.07.2003, accused Keshav Chand surrendered at Patiala House Court and he was arrested vide memo Ex. PW-16/A. On 17.07.2003, accused Amarnath also surrendered in the court and he was arrested vide memo Ex. PW-16/B. He recorded the disclosure statement of accused Amar Nath vide memo Ex. PW-16/C. After completion of the investigation, he prepared the charge sheet and the same was filed in the court through SHO concerned. This witness identified both the accused persons in court. He was cross-examined by Ld. Defence counsel.
23.The prosecution evidence was thereafter closed and the statement of accused persons u/s 313 CrPC was recorded wherein all the incriminating evidence appearing on record against the accused persons was put to them but they denied the same and submitted that they are innocent and falsely implicated. The accused persons chose not to lead any defence evidence.
State v/s Amarnath etc. Page 13 of 24 Cr. Case No. 424851/201624.I have heard the Ld. APP for the State and Ld. Defence counsel at length, perused the record, gone through the relevant provisions of law and given my thoughts to the matter.
25.It is argued by Sh. Manish Kaushik, Ld. APP for the State that on the basis of statement of the prosecution witness and the documents appearing on record the prosecution has proved its case beyond reasonable doubt that accused persons Amarnath and Keshav Chand had purchased goods worth Rs. 49,83,712/- (approximately) from mandi from various shopkeepers and did not pay the consideration amount to them and, therefore, the accused persons are guilty of offence punishable u/s 406/34 IPC.
26.Per contra, Ld. Counsel for the accused has argued that the prosecution has miserably failed to prove the fact that accused persons had purchased the grains from various shop keepers and had fled away without paying the price of the same amounting to Rs. 49,83,712/-. In this regard, he has drawn the attention of this court to the statement of various witnesses which have been relied upon by the prosecution to prove its case beyond reasonable doubt. The Ld. Counsel has submitted that most of the shop keepers, who have alleged that they have sold their goods to the accused persons could not produce on record any document to prove the fact that grains were purchased by the accused persons and they had not paid the amount. Ld. Defence counsel has further argued that none of the bills bear the signatures of the accused persons which could State v/s Amarnath etc. Page 14 of 24 Cr. Case No. 424851/2016 prove the fact that they have bought the grains from various shop keepers who are witnesses herein and have failed to pay the amount. In these circumstances, the Ld. Counsel for the accused persons has submitted that prosecution has miserably failed to prove its case beyond reasonable doubt against the accused persons.
Findings of the Court
27.It is a well settled principle of criminal law, that the burden of proof is on the prosecution and it has to prove its case beyond reasonable doubt. The presumption of innocence of the accused has to be rebutted by the prosecution by adducing cogent evidence that points towards the guilt of the accused beyond reasonable doubt.
28.Perusal of the record reveals that FIR was registered on a written complaint dated 23.12.2001 given to the SHO signed by the President of the Vyapar Mandal as well as its secretary on a letter head of Vyapar Mandal, Najafgarh. On the basis of the said complaint, an FIR was registered and subsequently charge-sheet was filed under section 406/34 IPC against both the accused persons.
29.Perusal of the record further reveals that almost all the shop keepers who were examined as prosecution witnesses have failed to prove the fact that they have sold the goods to the accused persons, who have misappropriated the same and did not pay the price of the same to the shop keepers.
State v/s Amarnath etc. Page 15 of 24 Cr. Case No. 424851/201630.In this regard, let this court analyse the evidence appearing on record. In support of its case, the prosecution has first examined PW-1 Ramesh Jain. This witness has stated that accused persons had purchased grains from him between 11.11.2001 to 26.11.2001 worth Rs. 1,77,525.35/-. In this regard, he had given a complaint to the Vyapar Mandal which is Ex. PW-1/A. This witness has also referred to the bill books regarding the purchase of grains from him by the accused persons in the name of M/s Lachchu Mal Jai Narayan. The relevant receipts are exhibited as Ex. P-1 to P-6. Perusal of his cross-examination reveals that this witness has admitted that the receipts Ex. P-1 to Ex. P-6 do not bear the signatures of the accused persons. Thus, in the absence of the same, it cannot be said that the grains were sold to the accused persons. Thus, the possibility that the above receipts were prepared by PW-1 on his own, as argued by Ld. Defence counsel cannot be ruled out. In these circumstances, these receipts do not prove the fact that grains as alleged, were sold to the accused persons.
31.Similarly, PW-2 Ashok Goyal tried to prove the receipts Ex. P-7 and Ex. P-8 amounting to Rs. 12,968.73/- and Rs. 18,668.73/- respectively, bearing the signature of his accountant Mr. Shyam Lal. However, Mr. Shyam Lal has not been examined by the prosecution. Though, PW-2 Ashok Goyal has stated that he identifies the signatures of Sh. Shyam Lal, but secondary evidence could only have been led by the prosecution, if Shyam Lal had left the job and his present whereabouts were not known. It is not the State v/s Amarnath etc. Page 16 of 24 Cr. Case No. 424851/2016 prosecution case that Sh. Shyam Lal's whereabouts are not known or he is not working with PW-2 and, therefore, in the opinion of this court, Ex. P-7 and Ex. P-8, which are receipts showing purchase of grains worth Rs. 12,968.73/- and Rs. 18,668.73/- respectively by the accused persons does not stand proved on the basis of the statement of this witness. Moreover, these receipts also do not bear the signatures of accused persons and, therefore, it does not stand proved that they had purchased the grain but did not pay the price.
32.PW-3 Sh. Chander Bhan Mittal is the complainant. He is the President of Vyapar Mandal, Anaj Mandi, Najafgarh. He had made the complaint Ex. PW-3/A on 23.12.2001. He has stated that accused persons had cheated the shop keepers as mentioned in the list Ex. PW-3/B running into two pages. According to this witness, the accused persons were doing the business of commission agent in the Anaj Mandi and they had purchased grains worth Rs. 49,83,712/- from different shop keepers but did not pay the said amount and fled away. This witness was thoroughly cross-examined by the Ld. Defence counsel. In his cross- examination, this witness has admitted the fact that though he was in partnership with the accused persons in the firm of M/s Lachchu Mal Jai Narayan, but he was a sleeping partner. This witness was also shown the copy of partnership deed Ex. PW-3/D1. In the said partnership deed in para no. 6, it is mentioned that profit and loss of the firm shall be shared by the partner and this question State v/s Amarnath etc. Page 17 of 24 Cr. Case No. 424851/2016 was put to the witness, but he had answered that he was not aware about the contents of the same as he can neither write nor read English.
33.Perusal of the statement of PW-3 Sh. Chander Bhan Mittal thus, reveals that this witness, who has given the complaint, in fact was in partnership with the accused persons. In the opinion of this court, since at the time of making the complaint, this witness has not disclosed the true facts that he was also a partner (though a sleeping partner) in the firm named M/s Lachchu Mal Jai Narayan throws doubt on his version, i.e., the complaint given to the police. Moreover, as discussed in the coming paragraphs, the remaining witnesses have also not proved the fact that they had sold the grains to the accused persons. In these circumstances, the complaint Ex. PW-3/A loses its significance and does not help the prosecution in proving its case against the accused persons at all.
34.Let this court now analyse the statement of PW-4 Inspector Gyanender Rana, who was the investigating officer of this case. However, the statement of this witness also does not help the prosecution for the reason that main witnesses, who have been cheated, have not supported the prosecution case at all.
35.The next witness examined by the prosecution is PW-5 Sh. Rajbir Sharma. Analysis of his statement reveals that he has also failed to prove the fact that he had sold paddy (dhaan) amounting to Rs. 1,89,515/- to accused Amarnath, who was running his firm in the name of M/s Lachchu Mal State v/s Amarnath etc. Page 18 of 24 Cr. Case No. 424851/2016 Jai Narayan. In his cross-examination, this witness has admitted the fact that he did not have any bill book since more than seven year old record has been destroyed by him. Moreover, he has failed to place on record any document to prove that he had destroyed the records which were more than seven years old. This witness has also failed to prove the fact that he was the proprietor of the business being run under the name of M/s Mahender Pal Jain since he had not given any documentary evidence to the police during investigation to the said effect. In his cross-examination recorded on 16.03.2016, the witness was asked to go through the file and answer if he had placed on record any proof that he had sold the paddy worth Rs. 1,89,515/- to the accused persons and the witness had answered that he has placed on record Ex. PW-5/1, however, he has admitted that the said document is not the proof of purchase of paddy by the accused persons. He has also admitted the fact that there is no signature of accused persons on Ex. PW-5/1. In the opinion of this court, in the absence of the signatures of the accused persons on Ex. PW-5/1, the prosecution has failed to prove the fact that this witness had sold paddy worth Rs. 1,89,515/- to the accused persons.
36.PW-6 Sh. Omvir Singh has deposed that both the accused persons had purchased dhaan/paddy from him worth Rs. 2,00,785.60/-. However, he has failed to prove the said fact since in his cross-examination he has categorically admitted that he had not given any proof to the police that State v/s Amarnath etc. Page 19 of 24 Cr. Case No. 424851/2016 he had purchased any paddy from anyone. Since this witness has failed to prove the fact that he has purchased any paddy from the farmers, there is no question of selling the same to the accused persons. The statement of this witness thus, cannot be relied upon for convicting the accused.
37.PW-7 Sh. Madan Lal who was a truck driver and PW-8 Sh. Prakash Chand, Retd. Deputy Secretary have not supported the prosecution version at all and were declared hostile by the Ld. APP for the State. Though they were thoroughly cross-examined by Ld. APP for the State, but nothing beneficial to the prosecution has emerged out of the same and, therefore, their statements are not of any help to the prosecution. Though, it is a settled law that evidence of a hostile witness cannot be discarded completely as laid down by the Hon'ble Apex Court in Rohtash Kumar v. State of Haryana (2013) 14 SCC 434, however, in the present case, PW-7 and PW-8 have not stated anything incriminating against the accused persons and thus, their statement do not help the prosecution.
38.PW-9 Sh. Naresh Kumar has deposed that accused persons had purchased grains from him in the year 2001 but they did not pay the consideration amount. This witness has stated that the police has never approached him regarding this case and, therefore, there was no question of his giving any proof to the police regarding the fact that payment was due from the accused persons. Thus, statement of this witness also does not help the prosecution in proving its State v/s Amarnath etc. Page 20 of 24 Cr. Case No. 424851/2016 case against the accused persons as the factum of selling grains to the accused persons by him has not been proved.
39.PW-10 Shri Bhagwan has also stated that both the accused persons had bought grains from him worth Rs. 1,90,000/- in 2001 but they had not paid the consideration amount. The cross-examination of this witness reveals that this witness has not given any receipt to the police about the selling of grains worth Rs. 1,90,000/- to the accused persons. This witness has further stated that he had not given any proof to the police that he had any stock of grains which could be delivered to the accused persons. In view of the fact that this witness has failed to prove the fact that he had sold grains to the accused persons, no reliance can be placed upon his statement for the purpose of convicting the accused persons.
40.PW-11 Sh. Mahesh has also deposed that in the month of November - December, 2001, accused persons have taken paddy worth Rs. 3,11,000/- to Rs. 3,12,000/- from him. This witness has admitted the fact that he has not made any complaint to the police. He has also stated that he did not remember whether he had given any written proof of handing over of paddy to accused persons. This witness has further stated in his cross-examination that Ex. PW- 11/DX1 is a letter pad containing the details of paddy given to the accused persons which bears his signatures at point A. This witness has, however, categorically admitted that the said document does not bear the signatures of accused persons.
State v/s Amarnath etc. Page 21 of 24 Cr. Case No. 424851/201641. PW-11 is one Sh. Ashok Kumar. He has stated that in the year 2001, grains were purchased by accused Amarnath worth Rs. 1,59,315/- from him but he had not paid the amount. He has proved one letter pad regarding a bill issued by his firm which is Ex. PW-11/A and which bears the signature of his brother Satish Kumar. However, in his cross-examination, this witness has categorically stated that there are no signatures of accused persons on Ex. PW- 11/A. Thus, this witness has also failed to prove the fact that grains worth Rs. 1,59,315/- were sold by him to accused Amarnath.
42. PW-12 ASI Rajbir Singh is a formal witness who was working as duty officer in PS Najafgargh on 24.12.2001 and he had registered the FIR bearing no. 695/2001. This witness had also proved the endorsement on rukka as Ex. PW-12/B. Statement of this witness does not help the prosecution for the reason that the shopkeepers who have alleged to have sold the grains have failed to prove the said fact.
43. PW-13 is retired SI Tejpal Singh and has deposed that on 14.07.2003, he along with SI Ved Prakash had gone to Anaj Mandi, Najafgarh and met President of Market Association namely Chander Bhan Mittal and Ashok Goel. Ashok Goel had handed over certain compromise deed in their partnership deed between Pushpa Gupta w/o accused Amarnath and Chander Bhan which were seized vide seizure memo Ex. PW-13/A. The Ld. APP for the State has, however, failed to point out to this court as to how the State v/s Amarnath etc. Page 22 of 24 Cr. Case No. 424851/2016 statement of this witness helps in proving the prosecution version that the accused persons have misappropriated an amount of Rs. 49,83,712/- by purchasing the grains from shop keepers of Anaj Mandi, Najafgarh and not paid the purchase amount.
44. PW-14 Sh. Narender Kumar Gupta has deposed that accused persons have purchased grains in the year 2001 worth Rs. 1,13,000/- but had not made the payment. However, cross-examination of this witness reveals that he has admitted the fact that he had not given any proof to the police that he was having grain worth Rs. 1,13,000/- which he could have sold to the accused persons. This witness has also failed to place on record any document showing that he is running a firm in the name and style of Murlidhar Mehar Chand. Thus, the statement of this witness also does not help the prosecution in proving its case against the accused persons.
45. PW-15 Inspector Surender Singh Rathi is a formal witness.
He was the second IO in the case, but he had not done any investigation and, therefore, his statement does not help the prosecution in any manner.
46. PW-16 Retd. SI VP Kochar is one of the IO in the present case. He has deposed that accused Keshav Chand had surrendered in Patiala House Court and he was arrested vide memo Ex. PW-16/A. He has also deposed that on 17.07.2003, accused Amarnath had also surrendered in the court and he was arrested vide memo Ex. PW-16/B. This witness had prepared the charge-sheet and filed the same.
State v/s Amarnath etc. Page 23 of 24 Cr. Case No. 424851/201647.Perusal of the evidence appearing on record thus, reveals that none of the material witnesses have supported the prosecution version. They have failed to prove any document on record which may reveal that they had sold their goods to the accused persons, who had not paid the price thereof and misappropriated the same. In the absence of any documentary proof of purchase of grains or handing over of the same to the accused persons, no offence u/s 406/34 IPC is made out. In these circumstances, this court is of the opinion that prosecution has failed to prove its case against the accused persons beyond reasonable doubt. The accused persons are, therefore, acquitted of the offence u/s 406/34 IPC.
48. This judgment contains 24 pages and the same has been pronounced by the undersigned in open court today and each page bears my signatures.
49.Let a copy of the judgment be uploaded on the official website of District Courts, Dwarka forthwith.
Digitally
signed by
ANNOUNCED IN THE OPEN COURT Deeksha
Deeksha
Sethi
TODAY, i.e., ON 18.08.2023 Sethi Date:
2023.08.18
16:34:12
+0530
Deeksha Sethi
Metropolitan Magistrate-03
South-West District/New Delhi
18.08.2023
State v/s Amarnath etc. Page 24 of 24
Cr. Case No. 424851/2016