Delhi District Court
(I) Nadeem vs . State 2010 (4) Jcc 2842 Wherein It Was ... on 28 January, 2013
IN THE COURT OF SH. SUDESH KUMAR
METROPOLITAN MAGISTRATE, NEW DELHI DISTRICT:
PATIALA HOUSE COURTS: DELHI
FIR NO.: 332 of 2000
POLICE STATION: CHANAKAYA PURI
U/S: 420/468/471/511 IPC
IN THE MATTER OF
STATE
VS
GURMEET SINGH
S/o Mr. Swaran Singh
R/o 32, Lajwanti Colony, Ambala Cantt, Haryana
Date of institution:20.12.2000
Date of reserving judgement/Order:21.01.2013
Date of Pronouncement of Judgement/Order:28.01.2013
Brief statement of reasons for such decision :
1.It is the case of the prosecution that on 20.10.2000 at German Embassy, Chanakaya Puri accused Gurmeet Singh attempted to cheat the said Embassy for procuring Visa for himself on the basis of a false and fabricated document dated 20.10.2000 purportedly written on behalf of 'Govind Engineering Works' claiming himself to the Proprietor of the same and also used the said document as genuine whereas the contents were false and fabricated and on this present case U/s 420/468/471/511 IPC was registered against accused.
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2. After investigations, charge sheet in the matter was filed on 20.12.2000 and on the same day cognizance was taken by my Ld. Predecessor. Charge U/s 420/511/468/471 IPC was settled against the accused on 13.03.2006 to which accused pleaded not guilty and claimed trial.
3. Thereafter, prosecution has examined as many as 4 witnesses in support of its case.
(i) PW 1 SI Shrikant has proved the copy of FIR as PW 1/A and his endorsement as PW 1/B. This witness was not crossexamined by the defence despite opportunity being given.
(ii) PW 2 D.S. Bhatti, Manager, Civil HSIDC, Haryana State Development Corporation deposed in his examination in chief that he does not knew anything about the case and he was never interrogated by the IO. He did not say anything about the present case.
After being declared hostile by Ld. APP for State with the permission of Court, in his crossexamination by Ld. APP for State, PW 2 admitted that in the month of December 2000 he was posted as a Assistant Manager Civil at HSIDC, Karnal; there was a industrial State office of HSIDC at Sec3, Karnal; plot no. 168 situated at Sec3 belonging to the M/s Panjab Boot House, Committee Chock, JT Road, Karnal. He further deposed that thereafter, the said plot was transferred to M/s Chamla Sabun Udhyog. He admitted that in the year 2000 Chamla Sabun Udhyog was running at the plot of 168 Sec3, Karnal Industrial Area; there was no Govind Engineering Works Firm at the Industrial Estate; there was no another industrial area at Karnal belonging to the FIR NO.: 332 of 2000 POLICE STATION: CHANAKAYA PURI U/S: 420/468/471/511 IPC 2 of 11 HSIDC; due to the lapse of time he had forgotten the facts.
In his crossexamination by Ld. Defence Counsel Sh. Bal Kishan, PW 2 deposed that he does not remember whether he has met the IO or not; he does not remember whether IO recorded his statement or not; the record was maintained in his office. He admitted that the allotment division was separate from his division; he was not concerned with the allotment division. He denied the suggestion that he was deposing falsely.
(iii) PW 3 A. Balasami, Deputy GEQD, CFSL deposed in his examination in chief that he had joined this Organization in the year 1989. He deposed that the documents of the present case had been received in their office on 02.04.2001 from the Deputy Commissioner of Police, New Delhi District vide their letter number 967/SO/A DCP1/NDD dated 26.03.2001; he had observed all these documents and found suitable for examination; the documents containing questioned writings stamped and marked as Q1 to Q4 and Q1/1 and the specimen writing and signatures of one Sh. Gurmeet Singh marked as S1 to S8. He further deposed that the documents which he has examined were bearing their office stamp impression; he had examined the questioned writings on one hand and the specimen writing on the other by using side by side comparison and utilizing the scientific aids available in the Government of India Laboratory at Hyderabad; he had arrived at the conclusion that the person who wrote the enclosed writing stamped and marked S1 to S8 did not write the enclosed writings similarly stamped and marked Q1 and Q1/A which was based upon the cummulative consideration of various dissimilarities observed between questioned and specimen writings.
He further deposed that the person who wrote the signatures in the blue enclosed parts stamped and marked S1 to S8 also wrote the red enclosed signatures similarly stamped and marked Q2, Q3 and Q4 was based upon the cummulative FIR NO.: 332 of 2000 POLICE STATION: CHANAKAYA PURI U/S: 420/468/471/511 IPC 3 of 11 consideration of various similarities observed between questioned and specimen writings. PW 3 proved his report in this regard as EX. PW 3/A bearing his signature at point A and submitted his reasons for his opinion as EX. PW 3/B bearing his signatures at point A. This witness was also not crossexamined by the Ld. Defence Counsel despite opportunity being given.
(iv) PW 4 Retired Ct. Dharambir deposed in his examination in chief that on 01.11.2000 he was posted at PS Chanakaya Puri and on that day he alongwith IO at about 04..00 PM were on patrolling in the area and when they reached in front of German Embassy, Mr. Jurgen, Police Liason Officer, met them and gave a written complaint to the IO. PW 4 further deposed that Mr. Jurgen Police Liason Officer had also produced accused Gurmeet Singh; IO made the endorsement and handed over the Rukka to him for the registration of FIR, PW 3 went to PS and got the FIR registred and came back at the spot alongwith copy of FIR and original rukka and gave the same to the IO. He further deposed that IO recorded his statement.
This witness was also not crossexamined by the Ld. Defence Counsel despite opportunity being given.
4. No other PW was examined by the prosecution and the PE was closed on 05.12.2012.
5. Statement of the accused was recorded on 17.01.2013 wherein the accused stated that he had not prepared the document pertaining to Plot no. 168, Mark A; he was falsely implicated in the present case as he had never tried to misrepresent or mislead; he had not prepared the forged document; two agents namely Parveen Kumar and Ajay Shukla provided the documents when he paid Rs. 2,50,000/ and these agents said that all FIR NO.: 332 of 2000 POLICE STATION: CHANAKAYA PURI U/S: 420/468/471/511 IPC 4 of 11 the documents were genuine documents for purpose of getting visa from German Embassy and there was no need to bother; he has stated the facts to the police officials but the said persons were not arrested. Accused further stated that all the witnesses deposed against him being interested witnesses. Accused refused to lead defence evidence. Thereafter the matter was posted for Final arguments.
6. I have heard final arguments on behalf of parties and perused the record. Before appreciating the evidence coming up on record, I find it relevant to refer here the provisions for the offences, which the accused has been charged with. Section 420 IPC Provides:
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. Section 468 IPC Provides:
Forgery for purpose of cheating:Whoever commits forgery, intending that the [document or electronic record forged] shall be used for the purpose of cheating, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
Section 471 IPC Provides:
Using as genuine a forged [document or electronic record]: Whoever fraudulently or dishonestly uses as genuine any [document or electronic record] which he knows or has reason to believe to be a forged [document or electronic record], shall be FIR NO.: 332 of 2000 POLICE STATION: CHANAKAYA PURI U/S: 420/468/471/511 IPC 5 of 11 punished in the same manner as if he had forged such [document or electronic record]. Section 511 IPC Provides:
Punishment for attempting to commit offences punishable with imprisonment for life or other imprisonment.: Whoever attempts to commit an offence punishable by this Code with [imprisonment for life] or imprisonment, or to cause such an offence to be committed, an in such attempt does any act towards the commission of the offence, shall, where no express provision is made by this Code for the punishment of such attempt, be punished with [imprisonment of any description provided for the offence, for a term which may extend to onehalf of the imprisonment for life or, as the case may be, onehalf of the longest term of imprisonment provided for that offence], or with such fine as is provided for the offence, or with both.
7. The present FIR was registered on a complaint dated 20.10.2000 lodged by Mr. Jurgen Reinwarth, Police Liason Officer in the German Embassy therein alleging that on 18.10.2000 accused Gurmeet Singh applied at German Embassy, Chanakaya Puri, New Delhi for grant of business visa and he had presented two letters as supporting documents alongwith his application, one of which was from a purported company 'Govind Engineering Works', Regd. Off: 168, Industrial Area, Karnal, Phs: 553194, 554584 of which accused claimed himself to be the proprietor. It has been alleged by the complainant that when the two above said phone numbers were called for verification, it was found that both does not exist and it was suspected that the company does not exist at all. The second document attached to the application was purportedly one fax confirmation of the accused's hotel booking, which was also a fake document since it has scores of uncharacteristic spelling mistakes, including the name of the hotel itself, which read "Marriott" instead of "Mariot". On the basis of this complaint the present FIR was registered against the accused.
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8. Despite ample opportunities being granted to the prosecution, the complainant Mr. Jurgen Reinwarth, Police Liason Officer could not be examined in the present case and process to the complainant was repeatedly received back unserved despite being sent through MEA / MHA. In the absence of the complainant hence original complaint filed on record remains unproved. The allegation that the alleged forged documents were presented by the accused before the German Embassy officials, which could not be proved in the absence of complainant. There is no linking evidence produced on record to connect the accused with the alleged offences . It was the complainant only who could have proved on record that the accused presented the alleged document before him.
9. Even the maker of the Rukka has not been examined in the present case for the purposes of crossexamination. The IO has not been examined despite ample opportunities for the same being given to prosecution. The genesis and origin of the prosecution case is hence, falsified and unreliable. The seizure memo produced on record does not mention that the said document was handed over to the IO by complainant nor does it bear his signatures as a witness, the same discredits the correctness and genuineness of the complaint as well as the seizure memo of the documents.The genesis and origin of the prosecution case is hence, falsified and unreliable. In this regard, the following Judgements can also be relied upon:
(i) Nadeem Vs. State 2010 (4) JCC 2842 wherein it was held that it is well settled that non examination of the material witnesses adversely effects the case of the prosecution and an inference is to be drawn against the prosecution for the same and in case no witness is available or could not be produced then the benefit is to be given to the accused only and not to the Prosecution.
(ii) Further, in Bhim Sen Vs State (NCT of Delhi) 2001 (60) DRJ 489, the
FIR NO.: 332 of 2000
POLICE STATION: CHANAKAYA PURI
U/S: 420/468/471/511 IPC 7 of 11
Hon'ble High Court observed that despite ample opportunities if the prosecution fails to produce the material witnesses, it calls for an adverse inference against the prosecution case. Further, it is well settled law that non production of the material witness certainly introduced infirmity in the prosecution case. The omission on part of the prosecution to examine complainant is certainly serious and fatal to the case of the prosecution.
10. Furthermore, FSL result produced on record also does not support the case of the prosecution. In the FSL result produced on record, however, it is coming up that the signature on the documents Q 2, Q 3, Q 4 matched with the specimen signatures S1 to S8 it has been reported that the signatures on the document Q 3 were also of the accused Gurmeet Singh. However on perusal of record, it is found that the said document Q3, as per the complaint, purportedly written on behalf of 'Govind Engineering Works' through its proprietor Mr. Gurmeet Singh. The alleged document is one letter written on behalf of Govind Engineering Works through Sh. Gurmeet Singh as proprietor therein submitting that he was the proprietor of Govind Engineering Works and he wishes to visit Germany to see the International Trade Fair for Machinery Equipment and on the basis of this a request has been made in the letter for issuance of visa for a short period. The accused himself submitted that he has signed the said document as the proprietor of the said firm. No evidence has been brought on record to show that the said document was not pertaining to the Govind Engineering Works or to the fact that Gurmeet Singh was not proprietor of the said firm. Furthermore, specimen signatures and handwriting of accused have been obtained by the IO without permission of the Court. In this regard, I rely upon the Judgment passed by the Hon'ble Supreme Court in Sukhvinder Singh's case, 1994 Supreme Court Cases (Cri) 1376 and that by the Hon'ble Delhi High Court in Rakesh Kumar's Case, 2004 (1) JCC 111. Relying upon the judgment pronounced by the Hon'ble Supreme Court in Sukhvinder Singh's case, the Hon'ble Delhi High Court in Rakesh Kumar's case held as follows:
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17. "Moreover, the alleged specimen signatures / handwriting / thumb / finger print impression of appellant Chandra Shekhar and Sri Chand were obtained during investigation by the IO without prior permission from the Court. Facts in the case of Sukhvinder Singh and others Vs. State of Punjab (1994) 5 SCC 152, were that specimen handwriting of the appellant were taken under the directions of the Executive Magistrate during the investigation when no inquiry or trial was pending in his Court. Accused persons did not raise any objection thereto yet "Hon'ble Supreme Court observed that such specimen writing of the accused person could not be made use of during the trial and the report of the handwriting expert is thus rendered of no consequence at all and could not be used against the accused to connect him with crime." In the present case the specimen signatures / writing / thumb impressions were obtained during the investigation without any permission from the Court. Therefore, the case in hand stands on a weaker footing than that of Sukhvinder Singh (Supra). Therefore, in view of the law laid down by the Supreme Court in the case of Sukhvinder Singh (Supra) it follows that the specimen writing / thumb impression / finger print impression of the appellant Sri Chand, Chandra Shekhar could not be made use of during the trial. The report of the handwriting expert / finger print Bureau is thus rendered of no FIR NO.: 332 of 2000 POLICE STATION: CHANAKAYA PURI U/S: 420/468/471/511 IPC 9 of 11 consequence at all and cannot be used to connect the appellants with crime."
11. Furthermore, it is settled proposition of law that expert's opinion is not a conclusive proof of the validity of the handwriting or document in question in the absence of any independent corroboration. The report of handwriting expert is not included in the list of documents which can be accepted as valid evidence without examining the author as per the scheme of Section 293 Cr. PC. Even otherwise, the said specimen handwriting of the petitioner was obtained without the permission of the Court by the investigating agency. In Ram Chandra v. State of Uttar Pradesh AIR (1957) SC 381, 388 it was observed that "the expert evidence as to handwriting is 'opinion evidence' and it can rarely, if ever, take the place of substantive evidence. In Shashi Kumar Banerjee v. Subodh Kumar Banerjee AIR (1964) SC 529 it was observed that acting on such evidence it is usual to see if it is corroborated either by clear, direct or by circumstantial evidence. In State of Gujarat v. Vinaya Chandra Chhota Lal Pathi Criminal Appeal No. 43 of 1964, it was held that "a court is competent to compare disputed writings of a person with others which are admitted or proved to be his writings. It may not be safe for a court to record a finding about a person's writing in certain document merely on the basis of comparison, but a court can itself compare the writings in order to appreciate properly the other evidence produced before it in that regard. The opinion of handwriting expert is also relevant in view of Section 45 of the Evidence Act but that too is not conclusive. It has also been held that the sole evidence of a handwriting expert is not normally sufficient for recording a definite finding about the writing being of a certain person or not." Hence, I am in agreement with the contention of the learned Counsel for the petitioner that the learned ASJ has gravely erred in not appreciating the fact that the opinion of an expert under Section 45 of the Indian Evidence Act is merely an opinion FIR NO.: 332 of 2000 POLICE STATION: CHANAKAYA PURI U/S: 420/468/471/511 IPC 10 of 11 and not a conclusive proof of the validity of the handwriting in question and the learned ASJ exceeded its jurisdiction by ordering the framing of charge against the petitioner merely on the report of the GEQD without corroboration.
12. Furthermore, even otherwise in the absence of complainant the prosecution has failed to prove that the said document Mark 'A' has been used by the accused for the purpose of cheating the complainant or with an intention to commit fraud on complainant. The offence U/s 468 IPC hence also could not be proved in the absence of the complainant. It was the complainant only who could have proved on record that it was the accused Gurmeet Singh, who produced the said documents before him for the purpose of cheating.
13. Taking into consideration the entire facts and circumstances and in the absence of complainant deposition of all hearsay witnesses in the circumstances of the present case is insufficient to prove the guilt of the accused and cannot be relied upon to upheld conviction. None of the witnesses has deposed anything which can prove any criminal act on the part of the accused. Accused Gurmeet Singh hence stands acquitted. Bail bond of accused stands cancelled. His surety stands discharged.
(ANNOUNCED IN THE OPEN SUDESH KUMAR COURT ON 28th January, 2013 ) METROPOLITAN MAGISTRATE This Judgment contains 11 pages NEW DELHI DISTRICT and each paper is signed by me. PATIALA HOUSE COURTS,DELHI FIR NO.: 332 of 2000 POLICE STATION: CHANAKAYA PURI U/S: 420/468/471/511 IPC 11 of 11