Delhi District Court
Fir No. 187/04 St vs . Kanhiya Lal Seth Ps: Nabi Karim on 23 September, 2011
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FIR no. 187/04 St vs. Kanhiya Lal Seth PS: Nabi Karim
IN THE COURT OF MS. TYAGITA SINGH: METROPOLITAN MAGISTRATE
CENTRAL05, DELHI
STATE VS. Kanhiya Lal
FIR NO: 187/04
P. S. Nabi Karim
Date of institution of case : 14.03.2005
Date on which case reserved for judgment : 21.09.2011
Date of judgment : 23.09.2011
Advocates appearing in the case :
Sh. Vakil Ahmad, Ld. APP for State
Sh. Vipin Kumar, LAC for accused
JUDGEMENT U/s 355
Cr.P.C
.:
a) Date of offence : 16.10.2002
b) Offence complained of : U/s 420 IPC
c) Name of complainant : Sh. Sunder Lal
d) Name of accused, his parentage, : Sh. Kanhiya Lal Seth
local & permanent residence S/o Sh. Mangal Sen
R/o B44, MIG Flat,
Motiya Khan, Paharganj
Delhi.
e) Plea of accused : He is falsely implicated.
f) Final order : He is convicted
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FIR no. 187/04 St vs. Kanhiya Lal Seth PS: Nabi Karim
BRIEF FACTS OF CASE OF PROSECUTION ARE AS FOLLOWS:
1. The case of prosecution is that present FIR no. 187/2004 u/s 420 IPC PS Nabi Karim was lodged on the complaint and application u/s 156(3) Cr.P.C. of complainant Sh. Sunder Lal that accused Kanhiya Lal Seth has committed cheating and forgery against him by forging the documents of slum and J.J. Department, MCD and misappropriating Rs. 1 lac of complainant on the pretext that damages of Rs. 1,03,320/ are required to be deposited to Slum and J.J. Department regarding damages in respect of property no. 6295, Ward no. 15, Nabi Karim belonging to complainant Sunder Lal and his brother Kishan Lal. After completion of investigation and arrest of accused Kanhiya Lal Seth and obtaining FSL report, chargesheet was filed against accused u/s 420/468/471 IPC.
2. On the basis of chargesheet, charge was framed against accused Kanhiya Lal Seth that between period 16.10.2002 to 02.11.2002 at office of Central Bank of India and slums Department at unknown time, accused dishonestly deceived and misrepresented the complainant to pay an amount of Rs. 1,03,320/ by voucher in respect of property no. 6295/15, Paharganj, Nabi Karim, New Delhi in pursuance of notice dated 08.02.2002 and on the basis of forged Notice and voucher, accused deposited only Rs. 3,320/ and misappropriated the remaining amount and thereby committed offence u/s 420 IPC. Accused pleaded not guilty & claimed trial.
3. Prosecution examined 11 PWs in support of its case. PW1 is complainant Sh. Sunder Lal who stated that in year 1988, his father had purchased property no. 6295 from Raj Kumar Gupta and on 17.04.2002, complainant had Page no. 3/9 FIR no. 187/04 St vs. Kanhiya Lal Seth PS: Nabi Karim received Notice from Slum Department which is MarkA. Complainant stated that accused K.L. Seth had family relation with him and he came to his house and complainant showed him the Notice and accused told him that he has good relation with officials of slum department and he will get the matter solved, so he took complainant to slum department at ITO and talked with one Mahender and one Sardar person and thereafter, accused assured complainant that the problem would be solved and he told complainant to bring the documents of property and photographs of complainant and his brother and photocopy of ration card, telephone bill and election I Card. Complainant stated that he collected all the documents and handed it over to accused K.L. Seth who took him to the office of Slum Department at ITO and handed over all the documents to one Mahender and Sardar person and assured complainant that problem would be solved very soon. Complainant further stated that on 08.10.2002, he again received Demand Notice in respect of his property from Slum and J.J. Department in which demand for deposit of provisional damage amounting to Rs. 1,03,320/ was made and it is MarkB. Complainant stated that he again showed the Notice to accused K.L. Seth who read the Notice and told complainant that he will have to deposit Rs. 1,03,320/. Complainant stated that he had only Rs. 50,000/ but accused stated that he will arrange the remaining amount and will deposit the entire amount in Slum Department on behalf of complainant, hence complainant handed over Rs. 50,000/ to accused K.L. Seth and on 16.10.2002, accused K.L. Seth took him and his brother Kishan Lal to Central Bank, Vikas Kutir and collected one form from the Bank and filled it up and obtained signatures of complainant and his brother and asked them to stand at a distance of 20 to 25 meters and himself went towards window and collected one yellow slip and went inside the Bank leaving complainant and his brother outside and after Page no. 4/9 FIR no. 187/04 St vs. Kanhiya Lal Seth PS: Nabi Karim sometime accused came out of the Bank and handed over one yellow slip of the Bank (Ex.P1) and told him and his brother that the amount of Rs. 1,03,320/ has been deposited on their behalf. Complainant further stated that after one month, accused came to his house and asked him to give remaining money and he obtained cheque of Rs. 33,000/ in name of accused K.L. Seth from his son Dharam Pal and handed it over to accused and accused got the cheque encashed from account of complainant's son and after some days accused again demanded the remaining money and complainant gave him the remaining Rs. 17,000/ in cash. Complainant stated that after some time, he came to know that accused has been arrested in some case and son of accused came to him with a letter from accused needing some money, so complainant went with son of accused to Tis Hazari and gave Rs. 3,400/ to the counsel of accused. Complainant further stated that he met the accused K.L. Seth in Tis Hazari Court Lockup where he assured complainant that he will come out of custody and meet complainant. Complainant stated that after about one week, he went to the Office of MCD where Mahender met him and he showed Bank challan of deposit of Rs. 1,03,320/ to Mahender and Mahender told him that only Rs. 3,320/ have been deposited by the accused. Complainant stated that after hearing this, he got shock and giddiness in his head and Mahender got him seated and arranged water for him and after one hour, he told him to leave for his house. Complainant stated that thereafter, he filed complaint with DCP, Vigilance which is Ex.PW1/A, jointly signed by complainant and his brother Kishan Lal. Complainant exhibited the Credit Voucher / Bank Challan as Ex.PW1/B and seizure memo of documents like MCD receipt, cheque no. 468551 dated 01.11.2002 and cheque book of Dharam Pal which were taken into possession by IO during investigation, as Ex.PW1/C and the documents and receipt of MCD as Ex.P1 to Ex.P4 and the Page no. 5/9 FIR no. 187/04 St vs. Kanhiya Lal Seth PS: Nabi Karim cheque and cheque book of his son as Ex.P5 and Ex.P6. Complainant stated that accused K.L. Seth cheated him to the tune of Rs. Rs. 1,03,320/ on the pretext of getting the property regularized from MCD and did not return any money thereafter. PW1 complainant was duly crossexamined and discharged. No material inconsistency was seen in his crossexamination.
4. PW2 is Sh. Mahender Kumar from Slum and J.J. Department, MCD who stated that he was working as UDC in MCD (Property Tax Section) Vikas Kutir on the date of incident and as per record of MCD, no Demand Notice was issued to Sh. Sunder Lal and Sh. Kishan Lal in respect of Property No. 6295/15. He stated that complainant had applied for damages and on 26.08.2002, Call Letter was issued to Sh. Sunder Lal and Sh. Kishan Lal but proceedings were kept in abeyance since new policy was in progress. He stated that Ex.P1 and Ex.P2 has not been issued by his office and the same documents are fake and as per record, only Rs. 3,320/ were deposited through the Bank Challan.
5. PW3 is Sh. Balvinder Singh, Head Clerk from Slum and J.J. Department, MCD who exhibited the Show Cause Notice served to Sh. Sunder Lal as Ex.PW3/A and stated that in reply to the Notice, Sh. Sunder Lal and Sh. Kishan Lal applied for damages vide Form no. 952, but the amount of Rs. 1,03,320/ was never deposited in MCD and only Rs. 3,320/ was deposited.
6. PW4 is Dharam Pal S/o complainant Sunder Lal who also deposed in support of complainant. He stated that he had issued cheque of Rs. 33,000/ on 02.11.2002 which had been encashed from his Bank account by accused. Page no. 6/9
FIR no. 187/04 St vs. Kanhiya Lal Seth PS: Nabi Karim
7. PW5 is Sh. Kishan Lal, the brother of complainant who deposed on same lines as complainant Sh. Sunder Lal and stated that accused K.L. Seth had cheated them of Rs. 1,03,320/. He stated that on 25.10.2004, he joined investigation and IO obtained signatures and specimen hand writing of accused K.L. Seth in his presence on 11 sheets which are Ex.P1 to Ex.P11.
8. PW6 is Sh. K.R. Bhatia, Head Cashier of Central Bank of India who exhibited the Credit Voucher Slip no. 20858 of amount of Rs. 3,320/ dated 16.10.2002 as Ex.PW6/A after bringing original record and stated that figure '10' was added before Rs. "3,320/" and 'one lac' in words was added before "three thousand three twenty" and the same was not in original receipt.
9. PW7 is Sh. Tilak Raj, Sr. Manager from Syndicate Bank who exhibited the certified copy of statements of account of Dharam Pal as Ex.PW7/A and certificate under Bankers Book of Evidence Act as Ex.PW7/B. PW8 is IO SI Ishwar Singh who stated that on 24.05.2004, the complaint of complainants Sunder Lal and Kishan Lal Under Section 156(3) Cr.P.C. was marked to him and he made endorsement Ex.PW8/A and got the FIR registered and after receiving copy of FIR from DO, he recorded statements of witnesses and on 25.10.2004, he arrested accused Kanhiya Lal Seth vide arrest memo Ex.PW8/B from his house and conducted personal search vide memo Ex.PW8/C and accused made disclosure statement Ex.PW8/D and on the same day, IO obtained specimen hand writing of accused on sheet Ex.P1 to Ex.P11 in presence of complainant. IO stated that during investigation, on 07.03.2005, he seized statement of account no. 19761 and one original cheque no. 196882 from Syndicate Bank vide seizure memo Ex.PW8/E Page no. 7/9 FIR no. 187/04 St vs. Kanhiya Lal Seth PS: Nabi Karim and during investigation on 01.11.2004, complainant Sunder Lal handed over him the documents i.e. one MCD letter, one MCD receipt and one original cheque and cheque book which were seized vide seizure memo already Ex.PW1/C. IO stated that during investigation, the specimen and questioned document were deposited to GEQD, Hyderabad vide RC no. 4321 and on receipt of opinion, chargesheet was filed.
10. PW9 is Sh. S.N. Gupta, Government Examiner of questioned documents who exhibited his report as Ex.PW9/A and stated that the person who wrote blue enclosed writings from MarkS1 to S11 also wrote Red enclosed writing MarkQ1, Q2 and Q3.
11. PW10 is Ct. Rajesh who stated that he had deposited the sealed sample, sealed with seal of 'ISM' in laboratory at Hyderabad vide RC no. 41/21/05 and case property was not tampered till it remained in his possession. PW11 is HC Ravinder who stated that he had accompanied IO SI Ishwar Singh on 25.10.2004 and accused Kanhiya Lal was arrested in his presence at the instance of complainant.
12. After closure of PE, statement of accused U/s 313 Cr.P.C. was recorded. Accused did not lead any defence evidence, hence case was fixed for final arguments. Final arguments were heard on last date and case was fixed for orders for today.
BRIEF REASONS FOR DECISION AND DECISION THEREOF
13. During final arguments, the LAC on behalf of accused argued that accused is innocent and he has not misappropriated any amount and he has been Page no. 8/9 FIR no. 187/04 St vs. Kanhiya Lal Seth PS: Nabi Karim falsely implicated in this case. Ld. APP argued that there is ample evidence on record to prove that accused has misappropriated the cash amount and cheated the complainant.
14. After hearing final arguments and perusal of above stated evidence, this court is of opinion that prosecution has proved the case beyond reasonable doubt against accused for cheating u/s 420 IPC. PW1 Sunder Lal and PW5 Kishan Lal have deposed against accused and have correctly identified the accused in court. PW2 Sh. Mahender Kumar from MCD Department has clearly stated that only Rs. 3,320/ was deposited in the MCD records and PW6 Sh. K.R. Bhatia from Central Bank of India has also brought original credit Voucher Slip and exhibited in court showing deposit Rs. 3320/ in the Bank and he stated that figure '10' was added before '3320' illegally. PW9 has exhibited the report of GEQD and stated that the person who wrote sample writings also wrote the red enclosed writings MarkQ1, Q2 and Q3. The documents MarkQ1, Q2 and Q3 are the Credit Voucher Slip of Central Bank, the Demand Notice of slum and J.J. Department, MCD dated 07.10.2002 and the earlier notice of Slum and JJ Department dated 02.08.2002. It is clear from GEQD report that it was accused himself who had written the particulars mentioned in the questioned documents and it is clear from the evidence of MCD officials and bank officials that only Rs. 3320/ was deposited in the Bank and rupees one lac was misappropriated by accused. Hence, it is clear that accused manipulated the documents and misappropriated the amount of rupees one lac obtained from complainant on various dates, for his own use and thus cheated the complainant. Hence, this is a fit case for conviction of accused u/s 420 IPC. Accused stands convicted for offence u/s 420 IPC. Fix for hearing on quantum of sentence today itself.
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FIR no. 187/04 St vs. Kanhiya Lal Seth PS: Nabi Karim ORDER ON SENTENCE Convict has been heard on quantum of sentence. The LAC states that convict has 5 young children and his wife and parents have expired, hence he prays for lenient view. In view of the circumstances put forward by convict, lenient view is taken in favour of convict and the convict is sentenced to simple imprisonment of one year. Benefit of Section 428 Cr.P.C. be given to convict. Notice be issued to Jail Superintendent with copy of this order for compliance. File be consigned to record room.
ANNOUNCED IN THE OPEN COURT ( TYAGITA SINGH ) TODAY ON 23rd September, 2011 MM05(CENTRAL),DELHI