Delhi District Court
State vs : Suraj Chaturvedi & Anr. on 5 May, 2015
IN THE COURT OF SH. SUDHANSHU KAUSHIK, ADDL. CHIEF
METROPOLITAN MAGISTRATE-01 : CENTRAL DISTRICT :
TIS HAZARI COURTS : DELHI
State Vs : Suraj Chaturvedi & Anr.
FIR No. : 199/1999
U/s : 407 IPC
PS : Paharganj
Date of Institution : 26.06.1999
Date of Judgment reserved on : 05.05.2015
Date of Judgment : 05.05.2015
Unique ID : 02401R0306132003
Brief details of the case
A) Sl. No. of the case : 000204/P
B) Offence complained of
or proved : U/s 407 IPC
C) Date of Offence : 30.03.1999
D) Name of Complainant : Ashok Kumar
R/o Block No.35/2B,
Sector-II, Gole Market,
New Delhi-110001
E) Name of accused : (1) Suraj Chaturvedi
S/o Sh. R.N.Chaturvedi
R/o 19A, Sector-2B,
Sadna Apartment, Vaishali,
Ghaziabad (UP)
(2) Praveen Sharma
S/o Laxmi Narayan
R/o H.No.685, Gali Kunde-
walan, Ajmeri Gate, Delhi
F) Plea of accused : Pleaded not guilty
G) Final order : Acquitted
H) Date of Order : 05.05.2015
FIR No.199/1999 State Vs Suraj Chaturvedi & Anr. Page 1 of 14
Judgment
On the accusation of entering into a criminal conspiracy and
committing criminal breach of trust by misappropriating two demand-drafts
and subsequently encashing those demand drafts by opening a fictitious bank
account, accused Suraj Chaturvedi (Proprietor of a courier company) and co-
accused Praveen Sharma were sent up to face trial for committing the offence
punishable under Section 407 IPC and Section 120B IPC.
Brief facts as disclosed in the charge sheet.
2. The case of prosecution is that accused Suraj Chaturvedi was
Proprietor of M/s Clark Couriers, a courier company having its office at
Premises No.2892/4, Paharganj, New Delhi (hereinafter referred to as ' the
company' ). The present FIR was registered on a written complaint dated
24.04.1999lodged by Ashok Kumar, a customer of the company (hereinafter referred to as ' the complainant' ) that two demand drafts dispatched from Goa for delivery to his wife Smt. Neelam Sharma at 35/2B, Sector-2, Gol Market, New Delhi have been misappropriated by the company. He informed the police officials that misappropriated demand drafts have been encashed from a fictitious bank account opened in Bank of Rajasthan, Greater Kailash-I Branch, New Delhi. It was revealed during investigation that the fictitious account was opened on the introduction of Praveen Sharma who was a frequent visitor at the bank His company (M/s AKG Industries & M/s AKG Brothers) was having bank accounts in this bank and he was looking after the banking transactions. Investigation further revealed that although, the bank FIR No.199/1999 State Vs Suraj Chaturvedi & Anr. Page 2 of 14 officials were reluctant in clearing the demand drafts as there was some discrepancy between the name mentioned on the pay-in-slip and the demand drafts but Praveen Sharma prevailed upon them and the drafts were cleared. Both the accused were arrested and the relevant documents were collected from the bank. Statement of witnesses were recorded and on completion of investigation, charge-sheet was put to the court.
3. Copies of the charge-sheet were supplied to both the accused and charge under Section 120B IPC was framed against them while an additional separate charge under Section 407 IPC was framed against accused Suraj Chaturvedi. Both the accused pleaded not guilty to the charges and claimed trial.
Witnesses Examined
4. Nine prosecution witnesses were examined.
Witnesses from the Bank PW-1 D.R.Garg (Dy. Manager of the Bank) stated that both the drafts were collected in account of Neelam Kumar Sharma but the account opening form was not traceable. He mentioned that the fictitious account was opened on the introduction of accused Praveen Sharma.
PW-2 Kamalkant (Computer Operator in the Bank) also stated that accused Praveen Sharma was introducer of the fictitious account which was opened in the name of Neelam Kumar Sharma.
PW-6 Pramod Kumar Aggarwal (Special Assistant in the Bank) stated that the computer operator handed over to him a demand draft in the FIR No.199/1999 State Vs Suraj Chaturvedi & Anr. Page 3 of 14 name of Neelam Kumar Sharma but the name in the cheque and the pay-in- slip was different. He seems to have suggested that inspite of discrepancy, on the assurance of accused Praveen Sharma, the demand drafts were sent for clearance. He stated that accused Praveen Sharma mentioned that the drafts were in the name of his cousin.
PW-7 Raghubir Singh (Peon in the Bank) stated that accused Praveen Sharma brought a person named Neelam Kumar in the bank and got opened his bank account.
PW-8 Ramesh Kumar Batra (Computer Operator in the Bank) stated about the discrepancies found in the names in the drafts and the pay- in-slip. He also stated that at the time of presentation of demand drafts, accused Praveen Sharma mentioned that the drafts were in the name of his cousin and it was on this assurance that the drafts were sent for clearance.
PW-9 Narender Kumar Nagpal (Asstt. Manager in the Bank) stated that accused Praveen Sharma was the introducer of the bank account. He mentioned that on 30.03.1999, account holder Neelam Kumar Sharma came to the bank and made withdrawal after filling the withdrawal slip. He stated that the specimen card of Neelam Kumar Sharma was found missing from the bank record.
Police witnesses PW-3 ASI Rashid Ahmed (Duty Officer) mentioned about the registration of FIR. The copy of FIR is Ex.PW-3/A. PW-4 SI Rasdhari Singh (Second Investigating Officer) stated FIR No.199/1999 State Vs Suraj Chaturvedi & Anr. Page 4 of 14 that he arrested the co-accused Praveen Sharma and submitted supplementary charge-sheet.
PW-5 SI Arun Kumar (Investigating Officer) justified the investigation carried out by him.
5. Separate statements of accused were recorded under Section 313 Cr.P.C wherein they denied all the allegations and stated that they have been falsely implicated. Accused Suraj Chaturvedi admitted that he was the Proprietor of the courier company but denied having misappropriated the demand drafts. He stated that after receiving complaint, preliminary inquiries were made and it was found that both the demand drafts were handed over for delivery to his employee Jitender. He mentioned that he produced Jitender before the police officials but no inquiries were made from him. Accused Praveen Sharma mentioned that he never introduced any person by the name of Neelam Kumar Sharma for opening the bank account. He admitted that he was employed with AKG Industries and used to frequently visit the bank but denied the allegations that he persuaded the bank officials for clearing the demand drafts. No defence witness was examined by either of the accused.
Arguments
6. I have heard Ld. APP for State as well as Ld. Defence Counsel and carefully gone through the entire material available on record.
7. Ld. Counsel for the accused Suraj Chaturvedi argued that prosecution has failed to establish its case. He contended that accused has FIR No.199/1999 State Vs Suraj Chaturvedi & Anr. Page 5 of 14 been falsely implicated by the police officials and there is not even an iota of evidence to suggest his involvement. He argued that accused can not be held liable for committing criminal breach of trust merely because he was the owner of the courier company. He stated that even if the prosecution' s case is established, still, it proves nothing beyond the point that the demand drafts were encashed from a bank account in the name of Neelam Kumar Sharma. He contended that complainant was not examined and there is no documentary evidence to prove the entrustment part. He argued that there is no evidence to establish that accused received any amount from the encashed demand drafts. Ld. Counsel for the accused Praveen Sharma argued that there is no documentary evidence that this accused was introducer of the account which was used for encashing the demand drafts. He contended that the testimony of bank officials is not reliable and it does not find corroboration from any independent source. Counsel contended that there is no evidence to establish that accused entered into a criminal conspiracy with accused Suraj Chaturvedi. On the force of these submissions, counsels have prayed that both the accused should be acquitted.
8. On the other hand, Ld. APP has countered the arguments of defence arguing that the prosecution' s case stands proved beyond reasonable doubt. He contended that there was no possibility of bringing on record direct evidence to prove criminal conspiracy. He argued that the testimony of witnesses, coupled with the documents seized by the Investigating Officer leaves no scope for doubt that both the accused were acting in furtherance of FIR No.199/1999 State Vs Suraj Chaturvedi & Anr. Page 6 of 14 criminal conspiracy. He contended that although there are minor contradictions in the testimony of bank officials but the same are inconsequential. It has been argued by him that invariably, conspiracy is hatched behind closed doors and the possibility of obtaining direct evidence is remote. He contended that although, original documents were not traceable but the photocopies were seized during investigation and the bank officials have proved the said copies.
Brief reasons for decision
9. I have perused the record in the light of respective arguments.
10. Both the accused were charged with offences punishable under Section 120B IPC and independent charge under Section 407 IPC was also framed against accused Suraj Chaturvedi. In order to bring home a charge under Section 120B IPC, prosecution has to establish that both the accused agreed to do an illegal act or an act which is legal by illegal means. The essential ingredient of the offence of criminal conspiracy is the agreement to commit an offence. The prosecution must demonstrate from evidence that there was meeting of mind between the conspirators. For establishing a charge under Section 407 IPC, prosecution was under an obligation to establish that accused while being entrusted with a property as carrier, committed criminal breach of trust in respect of such property. The term ' criminal breach of trust' has been defined under Section 405 IPC. It states that whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own FIR No.199/1999 State Vs Suraj Chaturvedi & Anr. Page 7 of 14 use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or willfully suffers any other person so to do, commits ' criminal breach of trust' .
11. The starting point of the offence under Section 407 IPC is the entrustment of the property. It is the prosecution' s case that complainant entrusted two demand drafts to the courier company of accused Suraj Chaturvedi with directions to deliver the demand drafts to his wife Neelam Sharma but the complainant did not step into the witness box to establish this fact. Summons issued to him were repeatedly received back with reports that he was not traceable. Summons issued through the Investigating Officer as well as the concerned DCP were also received back with similar reports. The trial lasted for 14 years and during the said period, inspite of being granted adequate opportunity, prosecution failed to examine the complainant. His testimony was essential to prove the fact of entrustment. In the absence of his testimony, the entrustment part has not been proved.
12. Ld. APP has argued that accused Suraj Chaturvedi has mentioned in his statement recorded under Section 313 Cr.P.C that upon preliminary inquiry, it was found that the concerned demand drafts were handed over to a person named Jitender who was working as a field boy in his company. He has mentioned that this statement of accused amounts to an admission on his part that demand drafts were entrusted to the company and FIR No.199/1999 State Vs Suraj Chaturvedi & Anr. Page 8 of 14 in these circumstances, the non-examination of complainant can not be termed as fatal. Defence Counsel has countered this argument arguing that the prosecution' s case must stand on its own legs. He mentioned that prosecution is duty bound to establish its case by leading independent evidence and for doing so, it can not bank upon the defence raised by the accused. I find force in the argument of defence counsel. The prosecution has to establish the ingredients of the offence by leading independent and cogent evidence. In order to rely upon the admission of accused, it must be established that the same was absolute and unequivocal. The argument of Ld. APP could have been appreciated, in case, there would have been some documentary evidence to establish the fact that the demand drafts were entrusted to the company. Admittedly, no documentary evidence has been collected or produced during trial. In these circumstances, it would be grossly unfair to conclude that the entrustment part stands established merely on the basis of the defence raised by the accused.
13. No documentary evidence was produced during trial. It is the prosecution' s case that accused Praveen Sharma introduced a person named Neelam Kumar Sharma as his cousin and on the basis of his introduction, a bank account was opened by the bank officials but there is no documentary evidence to establish this fact. None of the original document on which reliance has been placed by the prosecution was produced. It has been mentioned that the original documents including the account opening form and specimen card were not traceable in the bank. Investigating Officer SI FIR No.199/1999 State Vs Suraj Chaturvedi & Anr. Page 9 of 14 Arun Kumar (PW-5) has stated that original documents were not traceable in the bank. Officials from the bank have also given a similar version. They have mentioned that efforts were made to trace the relevant documents but the documents were not traceable. In these circumstances, the entire case of prosecution depends upon the oral testimony of witnesses. Let us peruse what bank officials have stated about the entire episode.
14. D.R.Garg (PW-1) stated that both the demand drafts were collected in account of Neelam Kumar Sharma. He stated that the account opening form was not traceable in the bank. He mentioned that although the account opening form was not traceable but he can tell that the account was opened on the introduction of Praveen Sharma. He stated in his cross examination that he does not know whether Praveen Sharma signed the account opening form. He stated that he never saw the account opening form of Neelam Kumar Sharma. Thus, the testimony of this witness that accused Praveen Sharma was introducer of the account of Neelam Kumar Sharma is not reliable. He seems to have suggested during his cross examination that he came to know that Praveen Sharma was introducer of the account after seeing the computerized record available at the bank but the said record was not produced during the trial. None of the other witnesses have deposed that there was any computerized record of the introducer of the account. The testimony of D.R.Garg is not convincing.
15. Kamalkant (PW-2) mentioned that on 26.03.1999, accused Praveen Sharma managed to deposit two demand drafts in the account of FIR No.199/1999 State Vs Suraj Chaturvedi & Anr. Page 10 of 14 sundry parties and on the same day, he made a withdrawal of Rs.16,000/- (Rupees Sixteen Thousand only) from his account. In the later part of his statement, he mentioned that accused Praveen Kumar was the introducer of an account opened in the name of Neelam Kumar Sharma. He stated that the original documents of the said account were missing from the bank.
16. Pramod Kumar Aggarwal (PW-6), Special Assistant of the Bank mentioned about discrepancy noted by him in the cheque and pay-in-slip. He mentioned that on noticing the discrepancy, he brought it to the knowledge of Ramesh Kumar Batra who used to work as a computer operator but in the meantime, accused Praveen Sharma came there and told him that the cheque was of his cousin. He mentioned that on the persuasion of Praveen Sharma, the cheque was sent for clearing. It appears from the testimony of this witness that he has made reference to a single cheque and discrepancy found between the cheque and the pay-in-slip while the matter under controversy pertains to the presentation of two demand drafts. Since, the witness is working at the bank, therefore, it can not be perceived that by making reference to cheque, he intends to convey about the demand drafts. Moreover, he has referred to a single cheque while there were two demand drafts in question which were simultaneously presented with the bank. His testimony does not advance the prosecution' s case. Similarly, the testimony of Raghubir Singh (PW-7) is also vague. He has stated that accused Praveen Sharma brought a person named Neelam Kumar Sharma to the bank and a new saving account was opened in the name of the said person. His FIR No.199/1999 State Vs Suraj Chaturvedi & Anr. Page 11 of 14 testimony demonstrates that there was a person who was introduced in the bank as Neelam Kumar Sharma. However, this person could not be traced. Investigating Officer SI Arun Kumar has stated this fact. He mentioned that he visited the address mentioned in the bank account of Neelam Kumar Sharma but the address was found fictitious.
17. Ramesh Kumar Batra (PW-8) also stated about the discrepancy found in the drafts and pay-in-slip. He mentioned that after noticing the discrepancy, the clearing incharge of the branch called for Neelam Kumar Sharma but at that time, accused Praveen Sharma came there and told that there was minor difference of names and they should not worry about it. He stated that on this assurance of accused Praveen Sharma, the clearing incharge referred the drafts for clearing. He admitted in his cross examination that the account was in the name of Neelam Kumar Sharma @ Neelam Sharma. Narender Kumar Nagpal (PW-9), Asstt. Manager of the Bank mentioned that accused Praveen Sharma introduced Neelam Kumar Sharma for opening the account. He stated that on 31.03.1999, Neelam Kumar Sharma came to the bank and withdrew the amount lying in the bank account. He mentioned that the specimen card of Neelam Kumar Sharma was found missing and it could not be traced.
18. On perusing of the testimony of bank officials, it is evident that they have stated about two aspects. First, that accused Praveen Sharma introduced a person named Neelam Kumar Sharma for opening a new account in the bank. The witnesses have mentioned that accused was FIR No.199/1999 State Vs Suraj Chaturvedi & Anr. Page 12 of 14 introducer of the new account. Second, that bank drafts were deposited in the new account and subsequently, withdrawal was made by the account holder Neelam Kumar Sharma. The witnesses have also deposed that accused Praveen Sharma used to frequently visit the bank as he was handling the banking transactions of his company. They have mentioned that accused was familiar with them. They have deposed that although, they noticed discrepancy in the bank draft and pay-in-slip but still on the assurance of accused Praveen Sharma, the drafts were sent for clearing. Even if the testimony of these witnesses is taken to be absolutely correct, still it does not establish the angle of conspiracy. Although, there is no documentary evidence to establish the fact that accused Praveen Sharma introduced Neelam Kumar Sharma for opening the new account but even if this fact in issue is taken to be proved, still it does not establish the involvement of accused. There is no evidence to show that accused Praveen Sharma and Suraj Chaturvedi were known to each other. How the misappropriated demand drafts landed in the hands of Praveen Sharma? Record is completely silent.
19. In view of the discussions made in the afore-stated paras, I have reached a conclusion that charges against the accused have not been proved. There are various missing links in the prosecution' s story. There is no evidence to show even remote involvement of accused Suraj Chaturvedi. It appears that he was made an accused merely because he was the proprietor of the courier company. The demand drafts were handed over to Jitender FIR No.199/1999 State Vs Suraj Chaturvedi & Anr. Page 13 of 14 Prasad but no investigation was done on this aspect. The prosecution failed to examine the complainant. Neither the entrustment nor the misappropriation part has been proved. There is nothing on record to suggest that either of the accused received share in the withdrawal made by Neelam Kumar Sharma. The Investigating Officer failed to trace Neelam Kumar Sharma who actually made withdrawals from the account. The original documents were untraceable and the relevant record from the bank was not proved. All these shortcoming lead to the inevitable conclusion that charges have not been established. The result is obvious. Accused Suraj Chaturvedi and Praveen Sharma stand acquitted from the charges framed against them.
Announced in open Court (SUDHANSHU KAUSHIK)
on 05.05.2015 ACMM-01, Central District,
Tis Hazari Courts, Delhi
It is certified that this judgment contains Fourteen (14) pages and each page bears my signatures.
(SUDHANSHU KAUSHIK) ACMM-01, Central District, Tis Hazari Courts, Delhi FIR No.199/1999 State Vs Suraj Chaturvedi & Anr. Page 14 of 14