Delhi District Court
Sh. Pawan Kumar Bansal vs State on 31 July, 2023
IN THE COURT OF SH. SATISH KUMAR,
ADDITIONAL SESSIONS JUDGE - 03, NORTH DISTRICT
ROHINI COURTS, DELHI
CNR No.DLNT01-006164-2022
Crl. Revision No.171/2022
Sh. Pawan Kumar Bansal,
S/o Sh. Jogi Ram,
R/o H. No.68, Vasudha Enclave,
Pitampura, Delhi-110034. ........Revisionist
Versus
1. State
2. Vijay Gupta,
S/o Sh. Ishwar Chand Gupta,
R/o A-2/228-229, Second Floor,
Sector-8, Rohini, Delhi-110085. .......Respondents
Date of filing of Criminal Revision : 12.07.2022 Date on which arguments were heard : 28.07.2023 Date of pronouncement of order on revision petition : 31.07.2023 ORDER ON REVISION UNDER SECTION 397, 398 & 399 OF CR.P.C. SEEKING SETTING ASIDE OF THE IMPUGNED ORDER DATED 21.04.2022 PASSED BY THE COURT OF LD. ACMM, NORTH, ROHINI COURTS, DELHI IN RELATION TO CASE FIR NO.24/2014, REGISTERED U/S 287/338/506 IPC WITH PS MAHENDRA PARK THEREBY TAKING COGNIZANCE OF OFFENCES PUNISHABLE U/S 467/468/471 OF IPC ALONGWITH THE CRIMINAL CASE BEARING NO.
5285137/16 TITLED AS 'STATE VS. PAWAN KUMAR BANSAL
1. Vide this order, I shall decide the revision petition being filed Crl. Revision No.171/2022 Pawan Kumar Bansal Vs. State & Anr. Page No. 1 of 16 by the revisionist/applicant seeking setting aside of the impugned order dated 21.04.2022 passed by the court of ld. ACMM, North, Rohini Courts, Delhi whereby cognizance had been taken by the court u/s 467/468/471 of IPC in addition to the Section 287/338 of IPC.
2. Succinctly, the brief material facts to decide the revision petition are that on the complaint made to the police by the respondent no.2 Sh. Vijay Gupta who used to work as Manager with the firm of the revisionist/applicant Pawan Kumar Bansal in the name of Shubham Steel as he was compelled to inspect a running machine despite his protest and when he went near the said machine, his left hand was pulled inside the machine and got crushed and consequently, the left hand of the respondent no.2 got crushed and was damaged and his left thumb and three fingers had to be amputated. The FIR bearing no.24/2014 dated 13.01.2014 u/s 287/338/506 IPC was registered against the respondent no.2, the owner of Shubham Steel and the employer of the complainant/injured. After carried out the investigation, the charge-sheet on the same section 287/338/506 IPC was filed before the court of ld. ACMM and cognizance of the offence u/s 287/338 IPC was taken by ld. ACMM and simultaneously, a complaint case u/s 200 of Cr.P.C. alongwith application u/s 156(3) of Cr.P.C. was also filed and was pending in some other court but the same was also sent to the court of ld. ACMM Crl. Revision No.171/2022 Pawan Kumar Bansal Vs. State & Anr. Page No. 2 of 16 where the charge-sheet for the offence u/s 287/338/506 IPC was filed and ld. ACMM court directed the investigating officer to further investigate the matter and the IO has filed the supplementary charge-sheet but the ld. Trial court was pleased to ignore the supplementary charge-sheet and has taken the cognizance of the offence u/s 467/468/471 of IPC.
3. That, aggrieved against the said impugned order passed by the ld. Court of ACMM to take cognizance of the offence u/s 467/468/471 IPC in addition to Section 287/338 IPC, the present revision petition has been filed by Sh. Pawan Kumar Bansal, employer of the complainant/injured and owner of the Shubham Steel on the ground that :-
a) That the ld. ACMM court has passed the impugned order which is bad in law as well as against the facts and the ld. Court of ACMM has failed to appreciate and ignore the response furnished by ESIC to the queries raised by the investigating agency as to the generation of second ESI Card in the name of one person. It is on record that in case, the employer has got the fresh ESI Card generated while being ignorant of the fact regarding existence of earlier ESI registration card of the employee, the second card would automatically get cancelled and when the second ESI card losses its existence, the moment previous ESI registration of the employee is surfaced, prosecution of the petition for making forged document or Crl. Revision No.171/2022 Pawan Kumar Bansal Vs. State & Anr. Page No. 3 of 16 usage thereof is not permissible.
b) That, the ld. Trial court has also failed and has exceeded its jurisdiction while taking cognizance of offence punishable u/s 467/468/471 IPC. The basic ingredients of section 463 and 464 of IPC are not fulfilled and there is no material on record to take the cognizance of the offence u/s 467/468/471 of IPC as no prima facie offence as alleged have been made out.
c) That, the ld. Trial court has also failed to consider the mismatch of the details pertaining to the complainant while generating the request for issuance of fresh ESI Card without realizing the fact that any variation/mismatching of the details given to a public authority for registration under ESI Scheme would at the max tantamount to incorrect information and does not qualify the requirement of Section 464 of IPC to sustain invocation of criminal prosecution under Section 467/468/471 of IPC.
d) That, the ld. Trial court has also failed that revisionist has not fraudulently or dishonestly prepared any 'forged documents' and the information which were furnished to the ESIC was only the incorrect information.
e) That, the ld. Trial court has also failed to consider the reply Crl. Revision No.171/2022 Pawan Kumar Bansal Vs. State & Anr. Page No. 4 of 16 of ESIC dated 27.02.2017 wherein the procedure for issuance of ESI Card has been elaborated. It is an admitted case of the prosecution that apart from applying of the ESI Card which the petitioner was duty bound to do in his capacity as an employer, the petitioner has committed no other overt act. Admittedly, the petitioner has not linked the online request with the Aadhar Card of the complainant and there is no evidence that the petitioner unauthorizedly linked the online request for generation of ESI Card with Adhaar Card of the complainant and there is no material on record for taking cognizance u/s 467 of IPC against the revisionist.
f) That, the ld. Trial court has also failed that the ingredient of Section 468 of IPC are not fulfilled as there are no allegations of cheating having been committed by the revisionist and the office of ESIC had clarified that even if another ESI Card is generated, it will automatically got cancelled and the details mentioned in the ESI Card will in no way affect the ESI benefits of the card holder in case of any factory related accidental injuries.
g) That, the ld. Trial court has also failed to appreciate that there is no material on record to take cognizance u/s 471 of IPC and revisionist has never done any act fraudulently/dishonestly knowingly used any forged document as genuine and the Crl. Revision No.171/2022 Pawan Kumar Bansal Vs. State & Anr. Page No. 5 of 16 respondent no.2/employer was already having the ESI Card bearing no.2212689235 in existence and the subsequent ESI Card no.2213832473 stood automatically cancelled and was never been used for making any claim to produce the said ESI Card number as genuine and as such, no offence u/s 471 of IPC is made out.
4. By way of the present revision petition, it is prayed that the impugned order dated 21.04.2022 to which the ld. Trial court has taken the cognizance of the offence u/s 467/468/471 of IPC in addition to Section 287/338 IPC against the revisionist may kindly be set aside.
5. That, upon notice of the revision petition to the State as well as respondent no.2, the respondent no.2 has filed the reply of this revision petition wherein it is stated that the revision petition being filed by the revisionist/owner of the Shubham Steel is not maintainable on the ground that the revisionist has illegally harassed the respondent no.2 and there is no irregularity or illegality in the impugned order passed by ld. ACMM to take cognizance of the offence u/s 467/468/471 of IPC and the ld. Trial court has not ignored the response furnished by ESI to the queries raised by the investigating agency as to the generation of the second ESI Card in the name of some person and the ESI official has nowhere stated that in case, the employer has got a Crl. Revision No.171/2022 Pawan Kumar Bansal Vs. State & Anr. Page No. 6 of 16 fresh ESI Card generated during the existence of earlier ESI Card, then, the subsequent ESI Card would automatically got cancelled and the revisionist is responsible for making forged documents and has committed the prima facie offence and on this ground also, the revision petition may kindly be dismissed.
6. It has also been stated by respondent no.2 that the ld. Trial court has not committed any illegality in taking the cognizance for the offence u/s 467/468/471 IPC inasmuch as the revisionist has fraudulently or dishonestly prepared forged documents i.e. second ESI card. By way of the reply being filed by the respondent no.2, it is prayed that the revision petition of the revisionist may kindly be dismissed.
7. Having heard the submissions made by ld. counsel for the revisionist, Ld. counsel for the respondent no.2 and after gone through the averments of the revision petition and after gone through the trial court record as well as the impugned order dated 21.04.2022, this court is of the considered view that initially, the FIR was registered u/s 287/338/506 IPC and keeping the accused in Col. No.12 on the allegations that on 28.06.2013, the complainant Vijay Gupta was working as Manager with the firm Shubham Steel to which Pawan Kumar Bansal was the owner and Sh. Vijay Gupta was compelled by Pawan Kumar Bansal to inspect the running machine despite Crl. Revision No.171/2022 Pawan Kumar Bansal Vs. State & Anr. Page No. 7 of 16 his protest and he went near the said machine and his left hand was pulled inside the machine and got crushed and as a result, his left thump and three fingers had to be amputated. The charge-sheet was filed for the offence u/s 287/338/506 IPC and the cognizance was taken by the court. A separate complaint u/s 200 Cr.P.C. with the application u/s 156(3) of Cr.P.C. was also pending in the court and the court has issued the directions to the IO to get investigate the matter particularly when there are the allegations against the revisionist that intentionally and fraudulently, he had put the forged signatures of the employee/injured Vijay Gupta on the documents and got registered his name in ESI and generated a new ESI Card bearing no.2213832473 showing the complainant to be working as Supervisor showing on very less salary and it has also been alleged that the complainant/injured/respondent no.2 was drawing salary of Rs.20,000/- as working as Manager from the revisionist firm and was out of the purview of ESI and was entitled to much higher compensation as per law but he could not get the compensation inasmuch as the revisionist has furnished the wrong information and making forged signatures on the documents for registration of the new ESI Card. That, on oral directions of Trial Court of dated 06.12.2016, the investigating agency has filed the supplementary charge-sheet and in the said supplementary charge-sheet, it has been mentioned by the IO which was forwarded by SHO and also Crl. Revision No.171/2022 Pawan Kumar Bansal Vs. State & Anr. Page No. 8 of 16 forwarded by ACP that in continuation of previous charge-sheet dated 25.08.2014 filed by SI Devender Kumar PS Mahendra Park and during the proceedings before the court of ld. MM with regard to the allegations of forgery with respect to the ESI Card of Sh. Vijay Gupta, IO/SI Devender Kumar and SHO Mahendra Park were summoned on dated 06.12.2016 and upon directions of ld. MM, further investigation was carried out. It is worth mentioning that in the supplementary charge-sheet itself, it has been mentioned by the IO that during the course of investigation and as per the verbal directions of ld. MM, Rohini Courts, Section 467/468/471 IPC were added and the copy of order dated 06.12.2016 is reiterated as follows :-
"Vijay Gupta Vs. Pawan Bansal Case No.18148/2016 06.12.2016 Present:- Complainant in person with Ld. Counsel.
Inspector Ajay Sharma PS Mahendra Park in person.
SI Devender Kumar, the then IO in person.
Submission heard. Record perused.
Perusal of the record reveals that aforesaid Inspector submitted that he would get the matter investigated further in respect of allegation for the offences u/s 467/468/471 IPC and would file the supplementary charge-sheet in the case FIR No.24/14 which is pending adjudication in the concerned court.
Considering the aforesaid submission made by the SHO PS Mahendra Park, time is granted to the Crl. Revision No.171/2022 Pawan Kumar Bansal Vs. State & Anr. Page No. 9 of 16 investigating agency to take necessary steps to carry out investigation and file the report in this Court on the next date.
It is pertinent to mention that the manner in which investigation has been carried out by the then IO SI Devender Kumar in the present case reflects his malafides.
Accordingly, notice be issued to the DCP concerned to initiate necessary action as per law under intimation to this Court.
Put up for filing of detailed status report on 01.02.2017.
(VIPLAV DABAS) MM-04 /North-West/ Delhi 06.12.2016"
8. It has also been mentioned in the supplementary charge-sheet that during the course of further investigation as per the directions of ld. MM, the complainant Sh. Vijay Gupta was called and as per his allegations M/s Shubham Steel Factory has got generated his ESI Card no.2212689235 whereas he was already having an ESI card bearing no.2213832473. The complainant has alleged that the particulars mentioned in the two ESI cards were different, although both the ESI Cards are in his name. He has specifically mentioned that the date of birth, family details etc. are not similar and the second card was generated only to devoid him from the ESI benefits by the Crl. Revision No.171/2022 Pawan Kumar Bansal Vs. State & Anr. Page No. 10 of 16 employer i.e. M/s Shubham Steel Factory, SMA Industrial Area, Delhi and notice was issued to the M/s Shubham Steel and ESI branch and as per the reply filed by the owner of M/s Shubham Steel Factory, it has been stated that the complainant Sh. Vijay Gupta was given employment by him on dated 24.06.2013 and as per the rules and regulations, he has got generated the ESI Card no.2213832473 in the name of Vijay Gupta and the owner of Shubham Steel Factory was not informed by Sh. Vijay Gupta about his previous ESI Card no.2212689235 at the time of appointment. The particulars on the ESI Card were filled after taking detail from Sh. Vijay Gupta but the record of the same is not available with them.
9. It has also been mentioned by the IO in the supplementary charge-sheet that during the course of the investigation, the office of the ESI was asked to give reply in respect of the queries for generating the new ESI Card and as per the reply of ESI (Rakesh Kumar, Assistant Director), it has been clarified that there cannot be two ESI Cards of the same person and if two cards have been generated in the name of same person, then, the subsequent generated card will be automatically cancelled. With these investigation, the IO has mentioned in the supplementary charge-sheet that as per the allegations of the complainant, offence u/s 467/468/471 IPC against Pawan Kumar Bansal, owner of Shubham Steel Factory could not be Crl. Revision No.171/2022 Pawan Kumar Bansal Vs. State & Anr. Page No. 11 of 16 substantiated but the ld. Trial court of ACMM has discarded the investigation carried out by the IO and has taken the cognizance of offence u/s 467/468/471 IPC. Having gone through the trial court record as well as the charge-sheet and supplementary charge-sheet and the documents collected by the IO during the course of the investigation particularly in respect of the details of two ESI Cards i.e. bearing no.2213832473 in the name of Vijay Gupta and subsequent ESI card bearing no.2212689235 in the name of Vijay Gupta, this court is of the considered view that there is a patent illegality in the impugned order passed by the ld. Trial court inasmuch as vide order dated 06.12.2016 passed by ld. MM-04, North-West District, it has been specifically mentioned that 'perusal of the record reveals that aforesaid Inspector submitted earlier that he would get the matter investigated further in respect of allegation for the offences u/s 467/468/471 of IPC and would file the supplementary charge-sheet in the case FIR No.24/14 which is pending adjudication. It is worth mentioning that if the SHO PS Mahendra Park has made his submissions before the court of ld. MM-04, North-West District, Delhi on dated 06.12.2016 that he would carried out the further investigation in respect of the allegations of the offences u/s 467/468/471 of IPC and after giving the due notice u/s 91 of Cr.P.C. to the owner of Shubham Steel Factory as well as to the complainant/injured and to the office of ESI and reply of the said notice has also been annexed Crl. Revision No.171/2022 Pawan Kumar Bansal Vs. State & Anr. Page No. 12 of 16 by the IO with the supplementary charge-sheet and Sh. Rakesh Kumar, Assistant Director, ESI Department, Sector-7, Rohini has also clarified in reply to the notice of Section 91 Cr.P.C. that as per their record, employer generated only insurance no.2213832473 in the name of Sh. Vijay Gupta through ESIC Portal on the basis of employer letter dated 25.03.2014 but as per their record, Sh. Vijay Gupta was already having ESI Smart Card vide No.2213832473 and the Valid Insurance number of Sh. Vijay Gupta is 2212689235 and as per their rules, if subsequent ESI Card was generated and during the existence of the previous one, subsequent card shall automatically stands cancelled. Sh. Rakesh Kumar, who is the responsible officer of ESI Department has also filed reply of the notice u/s 91 Cr.P.C. for perusal of documents furnished by the employer Shubham Steel Factory, there is no element of any cheating and no forgery has been committed by the employer. After going through the reply of Assistant Director of ESI Department, this court is of the considered view that the only case, if any, is made out against the employer to furnish incorrect information and the wrong information cannot be treated as making the offence of forgery.
10. As per the provisions of law, if any FIR has been registered and charge-sheet has also been filed and if any application u/s 156(3) of Cr.P.C. is pending, then, the court can issue the Crl. Revision No.171/2022 Pawan Kumar Bansal Vs. State & Anr. Page No. 13 of 16 directions and perusal of record, it reveals that vide order dated 06.12.2016, no directions were issued by Ld. MM-04, North- West District and it was only the submission of the SHO that he would carried out further investigation for the allegations u/s 467/468/471 IPC and the best legal remedy available with the complainant/injured is that he could have lead the pre- summoning evidence.
11. It is also worth mentioning that if the investigating agency has filed the supplementary charge-sheet and it has also been mentioned that no offence u/s 467/468/471 IPC is made out against the owner of factory as alleged by the complainant, then, the court cannot take cognizance of the said offence, particularly when no prima facie case is made out and there is no evidence collected by IO during investigation.
12. It is pertinent to mention that after considering the material available on record in the previous charge-sheet filed by the IO, the ld. Trial court vide order dated 14.05.2015 has served upon the notice u/s 251 of Cr.P.C. to Sh. Pawan Kumar Bansal, owner of Shubham Steel for the offence u/s 287/338 IPC.
13. Be that as it may, if any of the wrong information as alleged has been furnished by the revisionist to the ESI Department, then, the same was furnished for the benefit of the complainant/ Crl. Revision No.171/2022 Pawan Kumar Bansal Vs. State & Anr. Page No. 14 of 16 injured/ respondent no.2 and Hon'ble Apex Court of India has laid down the guiding principles governing the law of forgery that 'Simplicitor incorrect' information recorded in the document do not 'qualify' the ingredients of making forged documents. The penal code however defines 'fraudulently', an adjective form of the word 'fraud' in Section 25 as follows :-
'A person is said to do a thing fraudulently if he does that thing with intent to defraud but not otherwise". The term "fraudulently" is mostly used with the term "dishonestly" which is defined in Section 24 as follows:
Whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person is said to do that thing "dishonestly". To 'defraud' or do something fraudulently is not by itself made an offence under the Penal Code, but various acts when done fraudulently (or fraudulently and dishonestly) are made offences. Reliance is placed upon 'Md. Ibrahim & Ors. Vs. State of Bihar & Ors.' 1695 of 2009 Arising out of SLP (Crl.) No.6211 of 2007, decided on 04.09.2009 by Hon'ble Apex Court of India.
14. That, the further investigation carried out by the IO discloses that no offence u/s 467/468/471 IPC is made out. It appears that the ld. Trial court has passed the impugned order of dated 21.04.2022 to which cognizance of the offence u/s 467/468/471 IPC is taken against the revisionist and that order has been Crl. Revision No.171/2022 Pawan Kumar Bansal Vs. State & Anr. Page No. 15 of 16 passed in haste and the said impugned order is not passed in accordance with the provisions of law and same deserves to be set-aside. Therefore, in these facts and circumstances, the impugned order dated 21.04.2022 passed by the ld. ACMM court is hereby set-aside. However, the revisionist is directed to appear before the ld. Trial court for which the notice u/s 287 and 338 is served upon to him vide order dated 14.05.2017 to which he pleaded not guilty and claimed trial. With these findings, the revision petition stands allowed.
15. TCR be sent back to the ld. Trial court with copy of this order.
16. File be consigned to record room.
Announced in the open court (Satish Kumar)
on 31.07.2023 Addl. Sessions Judge-03, (North)
Rohini Courts, Delhi
Crl. Revision No.171/2022
Pawan Kumar Bansal Vs. State & Anr. Page No. 16 of 16