Delhi District Court
State vs Munna Kumar on 23 September, 2023
IN THE COURT OF SH. ABHISHEK KUMAR,
ACMM-01, PATIALA HOUSE COURTS, NEW DELHI
FIR No. 270/2014
PS : IGI Airport
U/s : 474 IPC & 12 PP Act
State Vs. Munna Kumar
JUDGMENT
1. S. No. of the Case : 8988/2017
2. Date of commission of offence : On or before 22.07.2014
3. Name of the complainant : Ct. Sonu Kadian PIS No.28092908 Immigration, IGI Airport, New Delhi.
4. Name, parentage & address : Munna Kumar S/o Nawal Thakur R/o Village Jataulia, Post-Tolam Muzanarwara, Distt. Muzaffarpur (Bihar)
5. Offences charged of : U/s. 417 r/w 511 Cr.PC, 468 r/w 116 r/w Section 474 and Section 12 of PP Act.
6. Plea of Accused : Pleaded not guilty
7. Order reserved on : 22.09.2023
8. The final order : Accused is acquitted for the offence under Section 417 r/w Section 511 IPC.
Accused is acquitted for
Digitally signed by
ABHISHEK
ABHISHEK KUMAR
KUMAR Date: 2023.09.23
18:16:38 +0530
State Vs. Munna Kumar Page No.1 of 14
FIR No.270/2014
the offence under
Section 474 IPC.
Accused is convicted for
offence under Section 12
PP Act.
Accused is acquitted for
offence under Section
467 IPC and 120B IPC
9. The date of judgment : 23.09.2023
BRIEF REASONS FOR THE DECISION OF THE CASE
1. The briefs facts of the case are that on 22.07.2014, at about 06:05 p.m., the accused approached counter no.3 at the departure wing of immigration, IGI Airport for departing to Abu Dhabi by flight no.AI-941 and during the scrutiny of the passport and travel documents by clearing officer at counter no.3, the sticker visa of Malaysia affixed at page no.7 of his passport was found to be doubtful. Upon questioning the accused, his passport bearing no.K-2546782 was seized and was sent to the Malaysian Embassy for verification of the visa. Thereafter, a letter no.(032) IMND/5/2-A Jld9(60) dated 25.07.2014 was received from High Commission of Malaysia confirming that the Malaysian visa sticker was fake. Thereafter, a formal complaint was made by immigration official and present FIR was registered.
2. During the course of investigation, accused disclosed that he came in contact with an agent Rajesh in Kolkata who arranged Malaysian visa for him in lieu of Rs.90,000/-. However, he had doubt on the said visa and therefore, never used it. Accused also produced his fresh UAE Work Visa, visiting card of Noor Travels Digitally signed by ABHISHEK ABHISHEK KUMAR KUMAR Date: 2023.09.23 18:17:03 +0530 State Vs. Munna Kumar Page No.2 of 14 FIR No.270/2014 & e-ticket, which were seized. Further, efforts were made to apprehend the agent Rajesh at the office of Noor Travels, Kolkata but the owner of said property revealed that Rajesh fled in the month of June, 2014 without any information. Therefore, further investigation could not be conducted in this regard and accused was released on police bail. Then, charge-sheet was prepared and filed in the Court under Section 474 IPC and Section 12 Passports Act.
3. After the filing of the charge-sheet and receipt of the sanction under Section 15 PP Act, the cognizance of the offence was taken and summons were issued to the accused. Thereafter, accused appeared before the Court and charge-sheet was supplied to him. Then, charges were framed against the accused and he was charged for the offences under Section 417 r/w 511 Cr.PC, 468 r/w 116 r/w Section 474 and Section 12 of PP Act.
4. During the prosecution evidence, a total number of 06 (six) witnesses were examined and he had admitted FIR No.270/2014 and accompanying Certificate U/s.65B of Indian Evidence Act (Ex.P-1 Colly); Malaysian High Commission report dated 25.07.2014 (Ex.P2) and seizure memo of documents of pax dated 05.08.2014 (Ex.P3). The testimony of the witnesses for reference in short is given as under:
● PW-1 Sh. Raj Kumar, ACIO-1, BOI, New Delhi deposed that he has been authorized by Assistant Director, Intelligence Bureau, MHA, Govt Of India, New Delhi to appear in this case vide authority letter Ex.PW1/A. He produced the arrival (Ex.PW1/B) and departure record (EX.PW1/C) pertaining to the present case. The witness identified the handwriting and signatures of Sh. Sanjeev Kumar Gupta as he had seen him writing and signing Digitally signed ABHISHEK by ABHISHEK KUMAR KUMAR Date: 2023.09.23 18:17:38 +0530 State Vs. Munna Kumar Page No.3 of 14 FIR No.270/2014 during ordinary course of his duty. He further deposed that no arrival record of accused was found in their record during that period and had brought departure record in printout form (Ex.PW1/D) duly attested by Asstt. Director and signed by him at point A and his stamp at point B supported with Certificate U/Sec.65B of Indian Evidence Act (Ex.PW1/E) duly signed and stamped by Asstt. Director at point A and B respectively.
● PW-2 Ct. Sonu Kadian deposed that on 22.07.2014, he was posted as Constable at FRRO and was performing duty of CO (Counter Officer) at departure counter No. 3 (Transfer Desk) and at 06.05 p.m., the accused holding Indian passport No.K2546782 approached for Immigration clearance with intention to depart to Abu Dhabi by Flight No. Al-941. He further deposed that during scrutiny of his passport and other travel documents, a sticker visa of Malaysia affixed at page no.7 on his passport was found to be doubtful and upon questioning, the pax revealed that the said visa was arranged by a travel agency named Noor Travels, by paying amount of Rs.90,000/-. He further deposed that the passport of the accused was seized and was sent to Malaysian Embassy for verification and vide letter No. (032) IMND/5/2-A dated 25.07.2014, it was informed that the visa sticker is fake. He further deposed that on 05.08.2014, he made complaint (Ex.PW2/A) to PS IGI Airport for registration of FIR against the above-said facts and also handed over passport of accused, embassy report and PRIDE print out alongwith seizure memo of passport.
The witness identified all the documents as mentioned above, which were exhibited as Ex.PW2/B, EX.PW2/C, Ex.PW2/D and Ex.PW2/E. ● PW-3 Ct. Ashok Kumar deposed that on 16.10.2014, he was posted at PS IGI Airport and joined the investigation of the case with SI Rajesh Kumar and on that day, accused Munna Kumar had come to PS and he was arrested in the present case vide arrest memo Ex.PW3/A. He further deposed that the accused was personally searched vide personal search memo (Ex.PW3/B), gave his disclosure statement (Ex.PW3/C) and produced certain documents. PW-3 correctly identified the documents i.e. e-visa, e- Digitally signed by ABHISHEK ABHISHEK KUMAR KUMAR Date: 2023.09.23 18:17:56 +0530 State Vs. Munna Kumar Page No.4 of 14 FIR No.270/2014 ticket and one visiting card of Noor Travels [Ex.PX1 (Colly)] shown to the him which were seized vide seizure memo (Ex.PW3/D).
● PW-4 Sh. Abhay Pathak deposed that on 17.10.2014, he was working as Deputy, GM(C), IGI Airport, T-3 and on behalf of Air India, provided the information (Ex.PW4/1) and passenger manifest of flight No.AI-941 dated 22.07.2014, PNR History, check-in history of accused Munna Kumar Ex.PW4/2 (Colly) regarding passenger Munna Kumar as sought by the IO.
● PW-5 Inspector Vipin Kumar deposed that in September, 2017, he was posted at PS IGI Airport as SI and during that period, the present case was marked to him for further investigation. He further deposed that after perusing the file, he found that Immigration Department had already verified the visa in question and investigation was complete, therefore, he prepared the charge-sheet.
● PW-6 Inspector Rajesh Kumar deposed that on 05.08.2014, he was posted as SI at PS IGI Airport and on that day, the concerned Duty Officer handed over to him copy of FIR, complaint along with seizure memo of one passport, verification letter of Malaysian High Commission and PRIDE detail of pax. He further deposed that during the course of investigation, on 16.10.2014 accused was called in the PS and was interrogated. Thereafter, the accused was arrested and his arrest memo (Ex.PW3/A), personal search memo (Ex.PW2/B) were prepared and he also recorded his disclosure statement (Ex.PW3/C) and accused was released on police bail. He further deposed that during the course of investigation, he found that letter has already been sent to Air India to know about the details of pax and reply of the same was received (Ex.PW4/1 & Ex.PW4/2) and that a letter was also sent to RPO Patna for verification of the passport of the pax, which was found to be genuine. He further deposed that during the course of investigation, he had collected arrival/ departure details (Ex.PW1/C) of pax from RPO, Delhi and as per the report, the pax off-loaded on 22.07.2014 and also he tried to arrest agent namely Rajesh, however, he could not be traced. He further Digitally signed ABHISHEK by ABHISHEK KUMAR KUMAR Date: 2023.09.23 State Vs. Munna Kumar 18:18:06 +0530 Page No.5 of 14 FIR No.270/2014 deposed that he got transferred from PS IGI Airport and deposited the case file of the present case to the concerned MHC(R) of the PS.
5. After the prosecution evidence, the statement of the accused was recorded. The accused did not lead any defence evidence despite opportunity. Accordingly, the final arguments were heard on behalf of the State as well as on behalf of the accused and the matter was reserved for orders. Before proceeding further to give findings, it will be pertinent to discuss the relevant provisions of law involved in the present case and also analyze the facts in the light of evidence led by the prosecution.
CHEATING
6. The offence pertaining to cheating is covered under Chapter 17 of the IPC under the heading 'of offences against property' and is covered from Section 415 to 420 IPC. Section 415 IPC defines the term cheating whereas Section 416 i.e 'cheating by personation' and Section 420 i.e 'cheating and dishonestly inducing delivery of property' are an aggravated form of cheating, which provides for enhanced punishment.
7. In the offence of cheating, a person deceives another person fraudulently or dishonestly to deliver any property or consent to the retention of any property or intentionally induces another person to do or omit to do anything which he would not have done if he was not so deceived and such act has caused or is likely to cause damage, or harm in body, mind, reputation or Digitally signed by ABHISHEK ABHISHEK KUMAR property. KUMAR Date: 2023.09.23 18:18:19 +0530 State Vs. Munna Kumar Page No.6 of 14 FIR No.270/2014
8. In the case of Iridium India Tel oftenecom Ltd. v. Motorola Inc., (2011) 1 SCC 74 , the Honble Supreme Court of India while referring to Section 415 IPC has observed as follows:
"...68. A bare perusal of the aforesaid section would show that it can be conveniently divided into two parts. The first part makes it necessary that the deception by the accused of the person deceived, must be fraudulent or dishonest. Such deception must induce the person deceived to either: (a) deliver property to any person; or (b) consent that any person shall retain any property. The second part also requires that the accused must by deception intentionally induce the person deceived either to do or omit to do anything which he would not do or omit, if he was not so deceived. Furthermore, such act or omission must cause or must be likely to cause damage or harm to that person in body, mind, reputation or property. Thus, it is evident that deception is a necessary ingredient for the offences of cheating under both parts of this section..."
9. Section 416 IPC defines cheating by personation, which is a punishable offence under Section 419 IPC. It is an aggravated form of cheating which consists of personating another by pretending to be some other person or knowingly substituting one person for another or representing to the any other person other than the said person really is. It is to be borne in mind that personation by itself is no offence but when a person fraudulently and dishonestly does a fraudulent act and represents himself as another person, Section 416 IPC will be attracted.
FORGERY
10. Section 463 to 477A of the IPC deals with the offences relating to forgery, forged documents and making or possessing counterfeit seal etc. with the intent to commit forgery and is covered under Chapter 18 of the Code which pertains to 'of offences relating to documents and property Marks'. Section Digitally signed by ABHISHEK ABHISHEK KUMAR KUMAR Date: 2023.09.23 18:18:28 +0530 State Vs. Munna Kumar Page No.7 of 14 FIR No.270/2014 463 defines the term forgery which is punishable under Section 465 IPC. The offence of forgery is completed when a false document is prepared so that the same can be used as genuine. The making of false document is defined under Section 464 IPC.
11. The Hon'ble Supreme Court of India in case titled as Ram Narayan Popli v. CBI, (2003) 3 SCC 641 while referring to section 463 IPC has observed as follows:
"...371. In of order to constitute forgery, the first essential is that the accused should have made a false document. The false document must be made with an intent to cause damage or injury to the public or to any class of public or to any community.
372.The expression "intent to defraud" implies conduct coupled with an intention to deceive or thereby to cause injury. In other words, defraud involves two conceptions, namely, the deceit and injury to the person deceived, that is infringement of some legal right possessed by him but not necessarily deprivation of property. The term "forgery" as used in the statute is used in its ordinary and popular acceptation.
373. The definition of the offence of forgery declares the offence to be completed when a false document or false part of a document is made with specified intention. The questions are
(i) is the document false, (ii) is it made by the accused, and
(iii) is it made with an intent to defraud. If at all the questions are answered in the affirmative, the accused is guilty.
374. In order to constitute an offence of forgery the documents must be made dishonestly or fraudulently. But dishonest or fraudulent are not tautological. Fraudulent does not imply the deprivation of property or an element of injury. In order to be fraudulent, there must be some advantage on the one side with a corresponding loss on the other. Every forgery postulates a false document either in whole or in part, however small.
375. The intent to commit forgery involves an intent to cause injury. A person makes a false document who dishonestly or fraudulently signs with an intent or cause to believe that the document was signed by a person whom he knows it was not signed..."
12. With respect to the creation of a false document in reference to Section 464 IPC, the Hon'ble Apex Court in case titled as Mohd. Ibrahim v. State of Bihar, (2009) 8 SCC 751 Digitally signed ABHISHEK by ABHISHEK KUMAR KUMAR Date: 2023.09.23 18:18:39 +0530 State Vs. Munna Kumar Page No.8 of 14 FIR No.270/2014 observed as follows:
"...14. An analysis of Section 464 of the Penal Code shows that it divides false documents into three categories:
1. The first is where a person dishonestly or fraudulently makes or executes a document with the intention of causing it to be believed that such document was made or executed by some other person, or by the authority of some other person, by whom or by whose authority he knows it was not made or executed.
2. The second is where a person dishonestly or fraudulently, by cancellation or otherwise, alters a document in any material part, without lawful authority, after it has been made or executed by either himself or any other person.
3. The third is where a person dishonestly or fraudulently causes any person to sign, execute or alter a document knowing that such person could not by reason of (a) unsoundness of mind; or (b) intoxication; or (c) deception practised upon him, know the contents of the document or the nature of the alteration.
In short, a person is said to have made a "false document", if
(i) he made or executed a document claiming to be someone else or authorised by someone else; or (ii) he altered or tampered a document; or (iii) he obtained a document by practising deception, or from a person not in control of his senses.
13. Section 467 (forgery of valuable security, will etc.), Section 468 (forgery for purpose of cheating) and Section 471 (using as genuine a forged document or electronically record) are the aggravated form of the offence of forgery and the condition precedent for these offences is the existence of forgery and the creation of false document or electronic record. Section 470 IPC defines a forged document which is a false document made wholly or in part by forgery. Section 474 IPC provides for the punishment with respect to a false document being in the possession of person and the intention to use the same as genuine fraudulently and dishonestly if the same is found to be of the description as mentioned in Section 466 or 467 IPC. ABHISHEK Digitally signed by ABHISHEK KUMAR KUMAR Date: 2023.09.23 18:18:57 +0530 State Vs. Munna Kumar Page No.9 of 14 FIR No.270/2014 PASSPORT ACT
14. Section 3 of the Passport Act provides that no person shall depart from, or attempt to depart from, India unless he holds in this behalf a valid passport or travel document.
15. Section 12 of the Act provides for offences and penalties and Section 12(1) states as follows:
Whoever-
(a) contravenes the provisions of section 3; or
(b) knowingly furnishes any false information or suppresses any material information with a. view to obtaining a passport or travel document under this Act or without lawful authority alters or attempts to alter or causes to alter the entries made in a passport or travel document; or
(c) fails to produce for inspection his passport or travel document (whether issued under this Act or not) when called upon to do so by the prescribed authority; or
(d) knowingly uses a passport or travel document issued to another person; or
(e) knowingly allows another person to use a passport or travel document issued to him, shall be punishable with imprisonment for a term which may extend to 7 [two years or with fine which may extend to five thousand rupees] or with both.
16. After understanding the relevant provisions of law involving the present case as well as the prosecution evidence, I shall now proceed to give findings hereinafter.
17. In the present case, the prosecution through the testimony of PW-1, PW-2, PW-4 and PW-6 has been able to establish that the accused was present at the IGI Airport on 22.07.2014 and his passport was seized by the immigration officials and was sent for verification with respect to the fake Malaysian sticker visa on his passport bearing no.K2546782. The prosecution has also established that the Malaysian sticker visa was fake on the Digitally signed ABHISHEK by ABHISHEK KUMAR State Vs. Munna Kumar KUMAR Date: 2023.09.23 Page No.10 of 14 18:19:07 +0530 FIR No.270/2014 strength of the report received from the Malaysian Embassy which is Ex.PW2/D. No contradiction could be brought on record by the accused with respect to the same.
18. Further, the prosecution has also established that the accused was arrested in the present case qua the testimony of PW-3 and PW-6. Also, the registration of the FIR is not in dispute. Thus, the entire investigation and the proceedings stands duly proved by the prosecution and there is no doubt with respect to the same. Now it is to be seen whether these facts as proved by the prosecution establishes the offences involved in the present case.
19. During the course of the arguments, the counsel for the accused has argued that offence under Section 417 IPC r/w 511 IPC could not be established by the prosecution as the essential requirements of the same could not be fulfilled. After going through the record, it is clear that the accused did not have the intention to dishonestly induce the immigration official in respect to the fake Malaysian sticker visa as he was travelling to Abu Dhabi and thus, the essential requirement under Section 415 IPC regarding the dishonest intention is not made out in the case and there is no attempt made by the accused with respect to the use of the fake Malaysian sticker visa which could constitute the offence of cheating. Thus, the prosecution has failed to establish the offence under Section 417 r/w Section 511 IPC. Accordingly, accused is acquitted for this offence.
20. Now coming to the second argument of the counsel for the Digitally signed ABHISHEK by ABHISHEK KUMAR KUMAR Date: 2023.09.23 State Vs. Munna Kumar 18:19:21 +0530 Page No.11 of 14 FIR No.270/2014 accused that Section 467 or 468 IPC cannot be attracted in the present case for the purposes of Section 474 IPC. He has emphatically argued that the fake visa sticker will not amount to valuable security as per the definition of "valuable security" and Section 468 IPC pertains to the forgery of record or proceeding of or in a Court of justice, register of birth, baptism, marriage or burial or a register kept by a public servant or a certificate or a document made by a public servant in his official capacity. The counsel for the accused has rightly argued in this regard as the visa cannot be termed to be a "valuable security" as per the definition provided under Section 30 IPC. The visa or passport can at max be termed to be a permissive document and not a valuable security. Further, from the bare perusal of Section 466 IPC, one would find that the visa will not fall in the description as enumerated in Section 466 IPC. There is no doubt that the accused was found in possession of the document i.e. fake Malaysian sticker visa but that is not sufficient to convict the accused under Section 474 IPC as the prosecution had to establish that the document involved pertains to the category as described under Section 466 or 467 IPC along with the pre- requisite that the accused had the intention to use the said forged document as genuine. The knowledge or intention is a state of mind which cannot be proved by direct evidence and there is nothing on record which could suggest that the accused was intending to use the fake Malaysian sticker visa as he was not travelling to Malaysia but to Abu Dhabi as per the prosecution story. Even if it is presumed that he had the knowledge or intention to use the fake visa as genuine will not be sufficient to bring home the guilt of the accused under Section 474 IPC as Digitally signed ABHISHEK by ABHISHEK KUMAR State Vs. Munna Kumar KUMAR Date: 2023.09.23 Page No.12 of 14 18:19:37 +0530 FIR No.270/2014 under that Section the document has to be a document as described in Section 466 or 467 IPC which is not the case in the present matter as it has already been discussed above that fake visa cannot be termed as a valuable security and does not fall within the description of documents as mentioned under Section 466 IPC. Accordingly, accused is acquitted for the offence under Section 474 IPC.
21. The counsel also argued that there is nothing on record which could establish that the accused was the maker of the forged document and the prosecution has miserably failed to prove the same. This argument of the counsel also has merits as the prosecution could not establish that the accused was the maker of the forged document. In the absence of the same, it cannot be held that the accused had prepared the false documents and therefore, he cannot be held liable for the offence of forgery. The judgment in case titled as Sheila Sebastian Vs. R. Jawaharaj & Anr. (Crl. App No.359-360 of 2010) passed by the Hon'ble Apex Court and relied upon by the accused supports the defence of the accused that he had not forged the document as it was held by the Hon'ble Apex Court that the charge of the forgery cannot be imposed on a person who is not the maker of the false document.
22. Now coming to the charge under Section 12 of the Passport Act. There is no doubt that the passport in question was issued to the accused and the same was having a fake Malaysian sticker visa which is in contravention to the provision of Section 3 of the Passports Act. Accordingly, the accused is found to Digitally signed ABHISHEK by ABHISHEK KUMAR KUMAR State Vs. Munna Kumar Date: 2023.09.23 18:19:46 +0530 Page No.13 of 14 FIR No.270/2014 have committed the offence under Section 12 of the Passport Act and hence, is convicted for the said offence.
CONCLUSION
23. In the backdrop of above discussion, it is held that prosecution has not been able to establish all the essential ingredients of the offences publishable under Section 417 r/w 511 IPC, Section 468 & 474 IPC for which the accused stands acquitted. However, the prosecution has successfully proved the offence under Section 12 of the Passport Act against the accused. Hence, he is convicted for the said offence.
24. Arguments on the point of sentence be heard accordingly.
25. Copy of judgment be supplied to convict free of cost.
26. Ordered Accordingly.
Announced in the open Court on 23rd September, 2023 This judgment contains fourteen pages and each page is signed by me. Digitally signed by ABHISHEK ABHISHEK KUMAR KUMAR Date: 2023.09.23 18:19:56 +0530 ( Abhishek Kumar ) ACMM-01/PHC/New Delhi State Vs. Munna Kumar Page No.14 of 14 FIR No.270/2014