Delhi District Court
State vs . Gurjeet Singh Boparai on 28 March, 2018
IN THE COURT OF MS. GURMOHINA KAUR
ADDITIONAL CHIEF METROPOLITAN MAGISTRATE-01,
NEW DELHI
Case No. 46309/2016
FIR No. 148/2013
PS IGI Airport
State vs. Gurjeet Singh Boparai
JUDGMENT
a. ID No. of the case 46309/2016 b. Date of commission of offence 18.05.2013
c. Date of institution of the case 17.07.2015 d. Name of the complainant HC Rajender Singh e. Name & Address of the accused Gurjeet Singh Boparai S/o Sh. Sukhdev Singh R/o VPO Dhaler Kalan, Tehsil Maler Kotla, District Sangrur, Punjab f. Offence complained off Under Section 420/468/471 IPC and Section 12 of Passport Act g. Charge framed Section 420, 467 read with Section 471 IPC and Section 12 of Passport Act h. Plea of accused Pleaded not guilty and claimed trial i. Arguments heard on 08.03.2018 j. Final order Convicted - under Section 420, Section 471 read with Section 468 (as forged documents were prepared for cheating and accused being user, shall be punished as maker) and Section 12 Passport Act Acquitted - under Section 467 IPC k Date of Judgment 28.03.2018 State vs. Gurjeet Singh Boparai Page No. 1 of 20 Brief statement of reasons for such decision :
1. The facts as briefly stated in the charge-sheet that on 18.05.2013 the complainant HC Rajender Singh was performing his duty as CO in Shift-C at Counter No. 40 at Arrival Wing of Bureau of Investigation T-3, IGI Airport with Stamp No. C-57 when accused Gurjeet Singh Boparai was holding Passport No. G-6912787 was deported by Flight No. 9W-121 from London and on minute checking of his UK Visa No. 006927042 pasted on page No. 21 of his passport, which on suspicion regarding the expiry date of his visa which seemed to have been altered as 18.10.2014. Further as per the charge-sheet, the passport was seized and Verification Report was received from British High Commission on 31.05.2013 wherein it was mentioned that "UK Visa affixed on the passport had been altered subsequent to the issue namely expiry date have been illegally altered from the original expiry date of 08.10.2012 to 08.10.2014". On the basis of the Verification Report, FIR was registered and investigation was done wherein accused disclosed that on 07.12.2009 he had gone to UK on Student Visa which was valid till 18.10.2012 and on expiry of validity of the visa, he started working at Restaurant-7 Spices and Manager of the Restaurant gave him the inducement that he would extend the State vs. Gurjeet Singh Boparai Page No. 2 of 20 validity of his visa and that it is also alleged that the accused had illegally conspired with the Manager of the Restaurant and had altered the expiry date on his visa from 18.10.2012 to 18.10.2014.
2. On completion of investigation, the present charge-sheet was filed before the court on 17.07.2015 against the accused. Cognizance of the offence was taken and accused was summoned before the court.
3. On appearance of the accused before the court, copies of the charge-sheet and the documents attached therein were supplied in compliance of Section 207 Cr. P. C. and the matter was fixed for consideration on the point of charge.
4. Charges under Section 420 IPC, 467 r/w 471 IPC and 12 Passport Act was framed against the accused Gurjeet Singh Boparai on 19.02.2016. Thereafter the matter was fixed for prosecution evidence.
5. The prosecution has examined 07 witnesses in support of its case as under:
a) PW-1 is Ct. Kishan Kumar, who deposed that on 02.05.2014 accused was formally arrested in the State vs. Gurjeet Singh Boparai Page No. 3 of 20 case in his presence as hew as on anticipatory bail and disclosure statement of the accused Ex. PW-1/B was recorded in his presence.
b) PW-2 is HC Rajender Singh who deposed that on 18.05.2013 he was posted in Immigration at IGI Airport as HC and was performing his duty as CO Arrival Wing Immigration in Shift-C with Stamp No. C-57 at Counter No. 40, Terminal 3 IGI Airport and during performance of his duty, accused Gurjeet Singh Boparai holding passport No. G-6912787 was received as deported from London by Flight No. 9W-121. He further deposed that on checking the travel documents some suspicion arose regarding UK visa which was affixed on page No. 21 of the passport and there was a strong suspicion regarding the expiry date of the UK Visa. He added that the passport was seized vide Memo Ex. PW-2/A and Visa Verification Report Mark-2A was received, according to which the UK Visa was altered from 18.10.2012 to 18.10.2014. During his cross-examination, he stated that he had seen the photocopy of page No. 21 of the passport where visa was affixed and has seen the date 18.10.2014 which was the printed date and he had the doubt regarding the State vs. Gurjeet Singh Boparai Page No. 4 of 20 year 2014 in the original passport at page No. 21.
c) PW-3 is Sh. Govind Singh Rawat, who deposed that he had been authorised by Asstt. Director FRRO to depose on his behalf. He identified the handwriting of Sh. Amar Nath Verma in letter Ex. PW-3/B at point-A. He also placed on record copy of the Visa Verification Report received from British High Commission as Ex. PW-3/C (Colly). During his cross-examination he stated that he was not aware about the contents of the letter and the visa verification report was not received in his presence.
d) PW-4 is Retired SI Bhup Singh, who deposed that on 05.06.2013 he was posted as SI at PS IGI Airport and after registration of the FIR, the present investigation was marked to him. He deposed that he alongwith other officials raided the house of the accused but the accused was not found at the address. He further stated that he formally arrested the accused in the present case and recorded his disclosure statement. He added that he had applied to appropriate authorities for obtaining sanction under Section 188 Cr. P. C. and 15 Passport Act and after completion of investigation he filed the charge-sheet before the court. During his cross-
State vs. Gurjeet Singh Boparai Page No. 5 of 20examination he admitted that the accused had departed from India on genuine documents and he did not obtain the deportee documents during investigation as the documents were sent by FRRO. He also stated that he could not say that the complainant was not authorised to check the visa affixed on the passport of the passenger seeking clearance and he did not seize any instrument/ apparatus that could have been used for committing forgery. He also stated that he did not serve any notice upon the owner of the hotel, 7 Spices Glasgow, UK where alleged forgery was committed for joining the investigation.
e) PW-5 is ASI Bachu Ram deposed that on the intervening night of 04/05.06.2013 he was posted as DO and he received the rukka at about 07.00 am from HC Rajender alongwith the documents and on the basis of the rukka he registered the present FIR, copy of which is Ex. PW-5/B.
f) PW-6 is Sh. Manas Mandal, Under Secretary, MEA who deposed that in June, 2015 in the course of his official duty as Under Secretary in the Ministry of Home Affairs he had received documents pertaining to the present case for issuance of sanction under Section 188 Cr. P. C. and he had issued Sanction State vs. Gurjeet Singh Boparai Page No. 6 of 20 under Section 188 Cr. P. C. against the accused which is Ex. PW-6/B. During his cross-examination he stated that he had received the copy of FIR, copy of passport, arrest memo and copy of the charge-sheet etc. for issuance of sanction.
g) PW-7 is Vijay Kumar, Head Clerk, Deptt. of Home (Passport), GNCT of Delhi who had brought the copy of Sanction Order dated 18.03.2015 under the Passport Act issued in the present case. He stated that the photocopy of the office copy of the sanction order as Ex. PW-7/A. He admitted that the sanction order was not issued in his presence.
6. Thereafter prosecution evidence was closed and matter was fixed for recording statement of the accused under Section 281 read with Section 313 Cr. P. C., wherein accused Gurjeet Singh Boparai deposed that he had no knowledge regarding forgery of the date of visa. However, he admitted that he was deported back from UK as his visa had been altererd. He further stated that he had gone to UK on Student Visa in December, 2009 on a genuine UK Visa after taking loan and he started working for some time in Indian Takeaway owned by Mr. Zahir Bhatt who kept his passport as security during the period of employment. He added that when his visa was about State vs. Gurjeet Singh Boparai Page No. 7 of 20 to expire, he requested Mr. Zahir Bhatt to make arrangement to extend his visa to which Mr. Zahir Bhatt agreed to sponsor him and made him do certain documentation and he had paid 5000 pounds for the same. Accused also stated that he was informed by Mr. Zahir Bhatt that he had applied for his UK Visa extension, but his passport was never shown to him and one day when he was working in the Takeaway at Glassgo, there was a raid at the premises by UK Border Agency and his passport was confiscated by the authority from the Manager as it was in his possession and he was deported back. He further stated that he did not know what was the discrepancy in the passport and visa as he had never seen the same during his entire period.
7. Thereafter the matter was fixed for defence evidence and accused examined himself u/s 315 Cr. P. C. as DW-1. The accused stated as DW-1 that he had gone to UK on Student Visa in December, 2009 on a genuine UK Visa after taking loan and he started working for some time in Indian Takeaway owned by Mr. Zahir Bhatt who kept his passport as security during the period of employment. He added that when his visa was about to expire he requested Mr. Zahir Bhatt to make arrangement to extend his visa to which Mr. Zahir Bhatt agree to sponsor him State vs. Gurjeet Singh Boparai Page No. 8 of 20 and made him to do certain documentation and paid 5000 pounds for the same. The accused also stated that he was informed by Mr. Zahir Bhatt that he had applied for his UK Visa extension, but his passport was never shown to him and one day when he was working in the Takwawy at Glassgo there was a raid at the premises by UK Border Agency and his passport was confiscated by the authority from the Manager as it was in his possession and he was departed back. He further stated that he did not know what was the discrepancy in the passport and visa as he had never seen the same during his entire period and added that he was a victim in the present case and was cheated by Mr. Zahir Bhatt. During his cross-examination by Ld. APP for the State, the accused stated that he was fully aware that his visa was valid till October, 2012 and he denied that he was in collusion and conspiracy alongwith Mr. Zahir Bhatt to extend his stay in UK. Thereafter defence evidence was closed and matter was fixed for final arguments.
8. I have considered rival contentions and perused the record.
9. It is the settled principle of law that in criminal proceedings prosecution has to prove its case beyond State vs. Gurjeet Singh Boparai Page No. 9 of 20 reasonable doubt. This burden always lies upon prosecution and never shifts upon the accused. Evidence against the accused needs to be examined in light of the aforesaid principle of law. However, before appreciating the evidence available on record, it shall be relevant to refer to the legal provisions pertaining to the offences for which accused has been charged :
Section 420 IPC reads as under:
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.
Cheating has been defined in Sec. 415 IPC that reads as under :-
Section 415 IPC provides :
Cheating -- Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat". Explanation.--A dishonest concealment of facts is a deception within the meaning of this section.
Section 471 IPC provides:
Using as genuine a forged [document or electronic record]: Whoever fraudulently or State vs. Gurjeet Singh Boparai Page No. 10 of 20 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 punished in the same manner as if he had forged such [document or electronic record].
Section 468 IPC reads as under:
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 12 of the Passport Act, 1980 is as under:
12. Offences and penalties --
(1) 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 or with both.
(1A) Whoever, not being a citizen of India,--
(a) makes an application for a passport or obtains a passport by suppressing information about his nationality, or
(b) holds a forged passport or any travel document, shall be punishable with imprisonment State vs. Gurjeet Singh Boparai Page No. 11 of 20 for a term which shall not be less than one year but which may extend to five years and with fine which shall not be less than ten thousand rupees but which may extend to fifty thousand rupees. (2) Whoever abets any offence punishable under [sub-section (1) or sub-section (1A)] shall, if the act abetted is committed in consequence of the abetment, be punishable with the punishment provided in that sub-section for that offence. (3) Whoever contravenes any condition of a passport or travel document or any provision of this Act or any rule made thereunder for which no punishment is provided elsewhere in this Act shall be punishable with imprisonment for a term which may extend to three months or with fine which may extend to five hundred rupees or with both. (4) Whoever, having been convicted of an offence under this Act, is again convicted of an offence under this Act shall be punishable with double the penalty provided for the latter offence.
10. The point for determination in this case is whether the prosecution has been able to prove all the ingredients of the offences for which accused has been charged, beyond a reasonable doubt?
11. The case of the prosecution is that the accused was deported from UK and it has been verified that the visa affixed has been altered as per the Visa Verification Report. In his statement recorded U/Sec. 313 Cr.P.C. accused admitted that he was deported from UK at IGI Airport but raised the defence that he was unaware visa affixed on his passport had been altered and forged. PW-3 categorically deposed that it was the accused State vs. Gurjeet Singh Boparai Page No. 12 of 20 Gurjeet Singh Boparai, who was deported from UK with the passport having forged/altered UK Visa Stamp. PW-3 deposed that visa was altered and was fake and no cross-examination of PW-3 was done by the accused on this aspect. Infact, from the statement recorded under Section 313 Cr. P. C., it is clear that accused admitted the following facts:-
a) That he is the holder of Passport No. G-6912787.
b) That he was deported from UK and on scrutiny of his travel documents the visa affixed on page No. 21 of his passport was forged and altered.
12. Only defence of accused is that he was not knowing that the UK Visa was altered and hence, cannot be said to have used the forged/altered Visa as genuine knowingly. The accused has tried to assume the mantle of an innocent victim stating he himself was cheated and deprived by alleged person Mr. Zahir Bhatt. However, this defence does not hold water in the facts and circumstances of this case and cannot efface criminality on the part of the accused. It is the own case of the accused that he did not apply to the passport authority for obtaining any extension of visa but had admittedly handed over his passport to an unauthorised person. This suggests that the accused was aware that he may not be State vs. Gurjeet Singh Boparai Page No. 13 of 20 able to procure UK Visa through legal means so he gave it to an unauthorized person to procure it through illegal means. Journey was arranged for the benefit of the accused, thus accused is particeps criminis and he cannot absolve himself from the offence. Reasons are obvious; first and foremost involvement of unauthorized persons who have no official connection with the RPO for obtaining extension UK Visa and secondly acting upon the same i.e. beyond the period of his validity of UK Visa without confirmation was used as genuine.
13. Knowledge is a state of mind that cannot be proved by way of direct evidence. Knowledge is to be gathered from attending circumstances proved on record. As already discussed above, prosecution has proved that UK Visa on page No. 21 of the passport of the accused was forged/altered. PW-2 categorically deposed to this effect and proved the report Mark-2A. While being examined U/s. 313 Cr.P.C accused also admitted that he never applied UK Extension of his Visa personally and the same was done by his employer Zahir Bhatt. Accused had obtained a valid passport earlier and thus it can be assumed that he was aware what was required to be done for making any entry in the passport. The accused was not a naïve who could have been cheated by State vs. Gurjeet Singh Boparai Page No. 14 of 20 someone under the garb of obtaining extension of visa for him. It is the admitted case that accused did not appear before concerned UK Department for obtaining extension of UK Visa. This is not the case of the defence that Zahir Bhatt was the concerned Government Official of UK and therefore accused had reasons to believe that UK Visa extension provided to him was genuine.
14. Accused has also been charged for the offence punishable under Section 467 IPC, which reads as under:
Forgery of valuable security, will, etc.-- Whoever forges a document which purports to be a valuable security or a will, or an authority to adopt a son, or which purports to give authority to any person to make or transfer any valuable security, or to receive the principal, interest or dividends thereon, or to receive or deliver any money, movable property, or valuable security, or any document purporting to be an acquittance or receipt acknowledging the payment of money, or an acquittance or receipt for the delivery of any movable property or valuable security, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
15. To bring home guilt for the offence punishable under Section 467 it was to be proved by prosecution that the accused had forged a valuable security. It is clear that Section 467 IPC shall be attracted against the accused if she had forged a valuable security. UK Visa Stamp State vs. Gurjeet Singh Boparai Page No. 15 of 20 cannot be considered as valuable security as it does not create any legal right but is only a permissive document which allows a person to visit any country.
16. It has admittedly come on record that the accused entered into an agreement with his alleged employer Zahir Bhatt as has been his defence to obtain extension of UK Visa was found altered/forged and was therefore deported back as his UK Visa was found altered. Therefore, in lieu of the aforesaid discussion, the prosecution has been able to establish that forgery was committed with the intention to cheat the concerned UK officials to extend his stay in UK.
17. Coming to the offences of Cheating, Section 420 & Section 415 IPC have already been referred in preceding paragraphs. In order to attract the provisions of Section 420 IPC, first of all cheating as defined in Section 415 IPC has to be proved for which following ingredients are required to be established as held by Hon'ble Supreme Court in case titled as Devendra vs. Baldev, (2005) 9 SCC 15:
a) deception of any person;
b) whereby fraudulently or dishonestly inducing that person to deliver any property to any person or to consent that any person shall retain any property; OR State vs. Gurjeet Singh Boparai Page No. 16 of 20
c) intentionally inducing that person to do or omit to do anything which he would not do or omit to do if he was not so deceived;
d) which act or omission has caused or is likely to cause damage or harm to that person in body, mind, reputation or property;
18. In the present case, the accused Gurjeet Singh Boparai was deported as he had stayed in UK beyond his visa validity period on the basis of attached UK Visa and thereby cheated the concerned Government of UK that he had a valid UK Visa for his stay. Thus, ingredients for committing the offence of cheating under Section 420 IPC is made out.
19. Coming to the offence punishable under Section 12 of Passport Act 1967 that reads as under:
"(1) 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 State vs. Gurjeet Singh Boparai Page No. 17 of 20 which may extend to five thousand rupees or with both.
(1A) Whoever, not being a citizen of India,
(a) makes an application for a passport or obtains a passport by suppressing information about in nationality, or
(b) holds a forged passport or any travel document, shall be punishable with imprisonment for a term which shall not be less than one year but may extend to five years and with fine which shall not be less than ten thousand rupees but which may extend to fifty thousand rupees or with both. (2) Whoever abets any offence punishable under 9 sub-section (1) or sub-section (1A) shall, if the act abetted is committed in consequence of the abetment, be punishable with the punishment provided in that sub-section for that offence. (3) Whoever contravenes any condition of a passport or travel document or any provision of this Act or any rule made thereunder for which no punishment is provided elsewhere in this Act shall be punishable with imprisonment for a term which may extend to three months or with fine which may extend to five hundred rupees or with both. (4) Whoever, having been convicted of an offence under this Act, is again convicted of an offence under this Act shall be punishable with double the penalty provided for the latter offence."
20. To bring home guilt under this Section, prosecution had to prove that some alteration was made, or an attempt was made to alter, or holder caused to alter the entries made in the passport. The defence of the accused is that he handed over his passport to his employer Zahir Bhatt for extension of UK Visa which he knew had expired. Admittedly, the accused had been deported for having altered his UK Visa affixed on page No. 21 of his State vs. Gurjeet Singh Boparai Page No. 18 of 20 passport. The said altered visa was affixed on the passport, which is on record and his identity has not been disputed by the accused. Therefore, in my considered opinion, ingredients of the offence punishable under Section 12 Passport Act have been also been proved by the prosecution against the accused beyond reasonable doubt.
21. The FIR has been registered with promptitude. The police proceedings starting from registration of FIR till filing of charge-sheet have been duly proved by the police witnesses examined on record. All the documents including the verification report have been duly proved. No infirmity has been seen/pointed out in the testimonies of the witnesses. Nothing contrary/favouring the accused has come up during the cross-examination of these witnesses. There is no reason to disbelieve the testimonies of prosecution witnesses. Thus, prosecution has succeeded in proving its case beyond reasonable doubt against the accused Gurjeet Singh Boparai.
22. The accused Gurjeet Singh Boparai accordingly stands convicted for the offences punishable under Section 420, Section 471 read with Section 468 (as forged documents were prepared for cheating and accused being user, shall State vs. Gurjeet Singh Boparai Page No. 19 of 20 be punished as maker) and Section 12 Passport Act and acquitted for the offence punishable U/Sec. 467 IPC.
23. Ordered accordingly.
Announced in the open (Gurmohina Kaur) Court on 28.03.2018 ACMM-01/New Delhi District Patiala House Courts, New Delhi Code: DL-0427 This judgment contains 20 pages and each page is signed by me.
(Gurmohina Kaur) ACMM-01/New Delhi District Patiala House Courts, New Delhi Code: DL-0427 State vs. Gurjeet Singh Boparai Page No. 20 of 20