Delhi District Court
State vs Veer Singh ("Acquitted") Page 1 Of 12 on 12 August, 2011
FIR No.340/1995: U/s 409 IPC: PS Subzi Mandi DOD: 12.08.2011 IN THE COURT OF VINOD YADAV: CHIEF METROPOLITAN MAGISTRATE: DELHI FIR No.: 340/1995 PS: Subzi Mandi U/s 409 IPC Unique ID No.: 02401R0018971997 J U D G M E N T:
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(a) S. No. of the case : 186/2
(b) Name of complainant : Shri Ajit Bharioke, Ld.CMM, Delhi.
(c) Date of commission of offence : Sometime between period from year 1989 to 16.08.1995.
(d) Name of the accused : Veer Singh,
S/o Shri Sher Singh,
R/o H.No.:418, Village Daryapur,
PS Narela, Delhi.
(e) Offence complained of : U/s 409 IPC
(f) Plea of accused : Pleaded not guilty.
(g) Final arguments heard on : 12.08.2011
(h) Final Order : Acquitted
(i) Date of such order : 12.08.2011
______________________________________________________________ State V/s Veer Singh ("Acquitted") Page 1 of 12 FIR No.340/1995: U/s 409 IPC: PS Subzi Mandi DOD: 12.08.2011 A. BRIEF FACTS & REASONS FOR SUCH DECISION:
The facts of the case in brief are that on 17.10.1995, Shri Ajit Bharioke, the then learned CMM, Delhi (as his Lordship then was), sent a complaint to SHO, PS Subzi Mandi, interalia stating therein that a CBI case being RC No.: 11/88, SIUVIII was registered against one Lalit Kumar Parmar on 11.11.1988 U/s 420 IPC. The said Lalit Kumar Parmar was ordered to be released on bail in the said matter on his furnishing a Personal Bond in the sum of Rs.1,00,000/ with one surety in the like amount. The Surety Bond in terms of the order of the court was furnished by one Shri Tilak Raj Bajaj, interalia annexing Indira Vikas Patra worth Rs.1,00,000/ (maturity value whereof was Rs.2,00,000/). The said bail bond was produced in the court of Shri S.L Khanna, the then learned CMM, Delhi. At that time, Shri G.K Goel was the Ahlmad in the aforesaid court. Subsequently, by an administrative order, all the pending criminal cases in the court of Shri S.L Khanna, Ld.CMM, Delhi were transferred to the court of Shri J.M Malik, the then learned ACMM (as his Lordship then was). In the process, the aforesaid bail bond containing the original Indira Vikas Patras were handed over by the Ahlmad Shri G.K Goel to Ahlmad Shri Veer Singh (accused in this case). On 06.09.1993, accused Lalit Kumar Parmar moved an application in the court of Shri O.P Gogne (the then learned CMM, Delhi), seeking permission to furnish fresh surety bond and for return of the aforesaid Indira Vikas Patra, as the same had attained maturity date by then. When the relevant records State V/s Veer Singh ("Acquitted") Page 2 of 12 FIR No.340/1995: U/s 409 IPC: PS Subzi Mandi DOD: 12.08.2011 were called, it transpired that the bail bond alongwith original Indira Vikas Patra was missing. By the orders of Ld.District & Sessions Judge, Delhi a departmental enquiry in this matter was entrusted to Shri I.C Tiwari, the then learned CMM, Delhi who vide his report dated 16.08.1995 concluded that the aforesaid Indira Vikas Patra were misplaced by the accused.
2. On the basis of aforesaid complaint of learned CMM, Delhi the present case FIR in the matter was registered. During the course of investigation, the investigating officer arrested the accused and recorded his disclosure statement, wherein he stated that he had taken the said Indira Vikas Patra and had not encashed the same by then. He further disclosed that he could get the same recovered from his residence, however, when his premises was raided, same were not found.
3. Thereafter, learned District & Sessions Judge, Delhi accorded sanction U/s 197 Cr.P.C against the accused for his prosecution in the matter. After completion of investigation, accused stood chargesheeted for offence punishable U/s 409 IPC.
4. After filing of the charge sheet in court, accused was supplied the documents in compliance of Section 207 Cr.P.C and after hearing arguments on charge, vide order dated 19.07.1999, charge U/s 409 IPC was framed against the accused, to which he pleaded not guilty and claimed trial. State V/s Veer Singh ("Acquitted") Page 3 of 12 FIR No.340/1995: U/s 409 IPC: PS Subzi Mandi DOD: 12.08.2011
5. In order to bring home the guilt of accused, prosecution examined 14 witnesses, whereafter PE in the matter was closed and statement of the accused U/s 313 Cr.P.C was recorded, wherein he abjured all the allegations against him, however, he did not examine any witness in his defence.
6. Learned APP has very vehemently argued that the accused being Ahlmad posted in the court of learned CMM from the period 1989 to 1992, had the entrustment of the entire judicial file of the aforesaid CBI case, including the bail bond and the original Indira Vikas Patras annexed along therewith. It is further argued that the said Indira Vikas Patras were encashed on 18.05.1993 by one Shri Khushi Ram from Vivek Vihar Post Office and as such, the prosecution has amply proved the factum of not only entrustment, but subsequent misappropriation of the Indira Vikas Patra on or behalf of accused, as the accused has not been able to discharge the onus upon him in terms of the provisions of Section 106 of the Indian Evidence Act, as to how the said Indira Vikas Patra came to the possession of Shri Khushi Ram, when the same should have been legally in the custody of accused. Per contra, the learned legal aid counsel for accused Shri Jitender Kumar, advocate has very vehemently argued that the present case is a case of circumstantial evidence, as there is no direct evidence linking the accused either with the entrustment of the said Indira Vikas Patras or misappropriation thereof by or on behalf of accused and there are many missing links in the prosecution case and as such, the accused is entitled to have the benefit of doubt. State V/s Veer Singh ("Acquitted") Page 4 of 12 FIR No.340/1995: U/s 409 IPC: PS Subzi Mandi DOD: 12.08.2011
7. Before adverting to adjudication upon the rival arguments, it would be appropriate to have a brief scrutiny of the evidence recorded in the matter, which is as under.
8. PW1, Ct.Sompal in his evidence stated that on 28.11.1995 he alongwith SI Om Prakash, HC Surinder and Ct.Ajay Pal had gone to the residence of accused to conduct search of the Indira Vikas Patras in question, however, the same were not found there.
9. PW2, Shri Ajit Bharioke (complainant), in his evidence stated that on 17.10.1995 when he was posted as CMM, Delhi, he found that the aforesaid Indira Vikas Patras were not there on record. He sent a complaint to SHO, PS Subzi Mandi for registration of FIR in this case. He proved his complaint to SHO, PS Subzi Mandi as Ex.PW2/A. In his crossexamination by accused, he however, admitted that he had filed the aforesaid complaint on the basis of information received by him through record and he did not have either personal knowledge or the occasion to peruse the original documents.
10. PW3, Ct.Ajay Pal in his evidence stated that on 28.11.1995, he was there with IO SI Dharampal Dahiya at the time of arrest of accused in the matter.
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11. PW4, Shri J.K Goyal, the previous Ahlmad in the court of Shri J.M Malik, Ld.ACMM at the relevant time in his evidence stated that when by way of an administrative order the cases of CBI, pending in the court of then learned CMM, Delhi, Shri SL Khanna were to be transferred in the court of learned ACMM, Shri JM Malik, he was lying posted as Ahlmad in the court of Shri JM Malik. He had prepared a list of cases, including the case in question and handed over the same to accused. He, however, did not state specifically as to whether he had handed over the original Indira Vikas Patra to the accused, but he stated that when he was posted as Ahlmad, he had taken the said original Indira Vikas Patra on judicial record alongwith the bail bond and had issued a receipt in this regard to the surety.
12. PW5, Shri Lilu Ram is the prosecution witness with regard to search at the residence of accused during investigation . He has not supported the case of prosecution at all.
13. PW6, HC Surender Kumar is again the witness of search of the house of accused.
14. PW7, Shri R.D Sharma, Public Relation Officer from Shahdara Post Office in his evidence stated that Indira Vikas Patra in question were got encashed from Vivek Vihar Post Office on 18.03.1995 (sic) by one Shri Khushi Ram.
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15. PW8, Shri Jaipal Singh, another witness of search of the residence of accused has proved his signatures on the Search Memo Ex.PW5/A.
16. PW9, SI Balbir Singh was posted as Duty Officer in PS Subzi Mandi at the relevant time and he has proved case FIR in the matter as Ex.PW9/A and endorsement on the rukka as Ex.PW9/B.
17. PW10, Shri Jagat Singh, the then Superintendent in Ld.District & Sessions Judge's Office has proved the letter of learned District & Sessions Judge, Delhi dated 24.10.1996, whereby sanction U/s 197 Cr.P.C was accorded against the accused for his prosecution.
18. PW11, Inspector Dharampal, the IO of the case has proved the investigation conducted by him in the matter after receipt of complaint from Ld.CMM, Delhi. He further stated that he collected the photocopies of relevant documents from the judicial record, recorded disclosure statement of accused, conducted search at his residence and recorded the statement of witnesses.
19. PW12, Shri Iqbal Khan in his evidence stated that on the directions of the then Ld.CMM, Delhi, he had handed over the copy of report of Shri I.C Tiwari to the IO.
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20. PW13, Inspector Rajesh Kumar in his evidence stated that he was lying posted as Incharge, PP Tis Hazari on 10.04.1996 and on that day, he had gone to Vivek Vihar Post Office and recorded statement of clerk Shri Kailash Chand there.
21. PW14, Shri I.C Tiwari, the then learned CMM, Delhi had conducted administrative enquiry in the matter and has proved his report in this regard as Ex.PW14/A.
22. This is all as far as prosecution evidence in the matter is concerned.
23. Learned APP has very vehemently argued that the prosecution has amply proved through evidence of PW4 Shri J.K Goyal, the Ahlmad posted in the court of Ld.CMM, Delhi at the relevant time, who had handed over charge of the files, including the file in question to the accused, the element of entrustment of the Indira Vikas Patras to the accused and through PW7 has proved the factum that the said Indira Vikas Patras were got encashed by somebody else, namely Shri Khushi Ram and not the surety, who had placed the same on record. It is further very vehemently argued that the conduct of the accused in the matter clearly shows his malafide intention as after having made endorsement on the Indira Vikas Patras and finding the same not to be on record, when the matter was enquired into, he did not file State V/s Veer Singh ("Acquitted") Page 8 of 12 FIR No.340/1995: U/s 409 IPC: PS Subzi Mandi DOD: 12.08.2011 any complaint with the learned Presiding Officer or with the learned District & Sessions Judge, Delhi with regard to missing of aforesaid Indira Vikas Patras. It is further argued that had the conduct of accused been bonafide, he would have challenged report Ex.PW14/A either on the administrative side to the higher authority or on judicial side. The same having not been done, there is presumption of admission of guilt on part of accused and the same goes against the accused in the matter. To buttress his aforesaid argument, he has relied upon one more fact that the accused was also convicted in another case of similar nature, wherein he had misappropriated the fine amount and as such, he had a propensity to commit such crimes. It is next argued that the accused had not crossexamined PW4 and PW7 and as such, their averments are unrebutted and deemed to be admitted by the accused and as such he is liable to convicted for offences punishable U/s 409 IPC.
24. Per contra, the learned legal aid counsel has very vehemently argued that the accused remained Ahlmad in the court of learned CMM, Delhi from the year 1989 to 1992 and during these four years, there was no complaint by anybody with regard to missing of aforesaid documents. It is further argued that the prosecution has not been able to establish through positive evidence that PW4 had handed over the said Indira Vikas Patras in original to accused alongwith the files. It is further argued that list "Mark C"
does not bear the signatures of accused anywhere and as such this document cannot be read against the accused to establish the factum of entrustment of State V/s Veer Singh ("Acquitted") Page 9 of 12 FIR No.340/1995: U/s 409 IPC: PS Subzi Mandi DOD: 12.08.2011 Indira Vikas Patras to him. It is next argued that the most important witness of the prosecution namely Shri Khushi Ram was never traced by the prosecution and as such, the prosecution case cannot be believed for want of testimony of the said person. It is next argued that the accused cannot be convicted in this matter merely on the basis of unrebutted testimonies of witnesses, particularly when the original documents in this case were never produced before the court. In the end, it is argued that the prosecution case rests on circumstantial evidence and it is settled law that in case of circumstantial evidence the chain of incriminating circumstance/evidence should be complete and each circumstance should be of definite nature and all the circumstances put together should form a complete chain, pointing out towards the hypothesis of guilt of accused and the same should not be inconsistent with his innocence.
25. I find substance in the argument of learned defence counsel to the extent that merely on the basis of "Mark C", which is a piece of paper where some figures have been scribbled on both sides and at S.No.24 thereof, there is mention of particulars of CBI case in which the bail bond was furnished in this case, does not in any manner prove the factum of entrustment of the original Indira Vikas Patras to the accused. I further agree with the submissions of learned defence counsel that the said document does not bear the signatures of accused, as such, this document cannot be read against the accused in the matter.
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26. I further find substance in the argument of learned defence counsel that the original bail bond was never produced in court before the witnesses, which is again a circumstance against the prosecution case.
27. An analysis of Section 405 IPC, which defines the offence of criminal breach of trust would show that this Section is in two parts:
(a) It has to be proved through cogent evidence that the accused was entrusted with the property or any dominion thereof;
(b) Secondly, he dishonestly misappropriated or converted it into its own use.
As far as first ingredient is concerned, the prosecution case has faltered at the first point itself. Now, let us see whether the second ingredient is getting satisfied in the matter or not. In this case, the prosecution has not led any positive evidence to establish on record that it was the accused who had either himself misappropriated the said Indira Vikas Patras or was instrumental in handing over the custody/dominion thereof to Shri Khushi Ram, who ultimately got the same encashed.
28. A perusal of the report of learned CMM (Ex.PW14/A) would also reveal that in the said report learned CMM had not held conclusively that it was the accused who was entrusted the custody of aforesaid Indira Vikas Patras and he had misappropriated the same.
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29. A perusal of evidence of PW13, Inspector Rajesh Kumar, the second IO of the case also further exculpates the accused as he stated that the concerned Post Office did not maintain the record of the particulars of the persons who got the said Indira Vikas Patras encashed.
30. Last but not the least, when Ex.PW7/A had the address of said Shri Khushi Ram, who got the aforesaid Indira Vikas Patras encashed, but who stopped the prosecution from tracing him and bringing him to the court for unearthing the truth in the matter. The same having not been done goes against the prosecution case.
31. In view of the above discussion, the undisputed conclusion is that there is virtually no evidence against the accused in the matter and the accused cannot be convicted on the basis of such a shaky material on record. He is accordingly acquitted of the charges in this case. Accused is in judicial custody, he be set free forthwith, if not required to be detained in any other case. File be consigned to record room after completion of necessary formalities.
Announced in the open court (Vinod Yadav)
on 12.08.2011 Chief Metropolitan Magistrate:
Delhi
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