Delhi District Court
State vs . Rakesh Singh on 25 June, 2012
IN THE COURT OF MS. MONA TARDI KERKETTA, MM-08 (SE)
SAKET COURTS COMPLEX
STATE VS. RAKESH SINGH
FIR NO. : 368/2001
P.S. : Lajpat Nagar
U.S. : 120B/ 406/420 IPC
Unique ID No. 02403R0055102001
Serial No. 1232/5/11
Date of institution of case : 01.12.2001
Date on which case reserved : 25.06.2012
for judgment
Date of judgment : 25.06.2012
JUDGEMENT U/s. 350 Cr.P.C.:
a) Date of offence : During the month of Aug. 2000
b) Offence complained of : U/s. 120B/406/420 IPC
c) Names of accused persons, : 1. Sayeed Mohd. Masood
their parentage & residence S/o Sh. S.M. Masood
R/o 43, Maleer Tower, Cafe, Prade Mumbai.
(Discharged vide order dated 28.03.05 by
Ld. Sessions Court).
2. Abhijeet
R/o 15/80, Civil Lines, Kanpur, U.P.
(Discharged vide order dated 23.03.05 by
Ld. Sessions Court).
3. Saroj Kumar Jha
S/o S. N. Jha
R/o B-1/144, Nand Nagri, Delhi.
4. Rakesh Singh
S/o Amrit Singh
R/o 502, East End Apartments, New Ashok
Nagar, Delhi.
5. Baseer Ahmad Sheikh
FIR No. 368/01 PS-Lajpat Nagar State Vs. Rakesh Singh & Ors. 1/13
S/o Sh. Yasin Mohd. (P.O.)
6. Raeesa Basheer Sheikh
W/o Basheer Ahmad Sheikh
Both R/o Flat No. 201, B-Block, Alkhabar B.
Building Millat Nagar, Andheri (West), Mumbai.
(P.O.)
7. Zahida Q. Khan
D/o Sh. Qamar Khan
R/o Rahimabai Compound, Kapad Bazaar, Road
Opp. Khoja Jamat Khana, R. No. 19, Mahim (W),
Mumbai. (P.O.)
8. Mohd. Zabir Hussain
S/o Sh. Abdul Latif
R/o Shop No. 1, Sahabji Santakruj Lane, Marine
Line, Mumbai. (P.O.)
d) Plea of accused persons : Not Guilty
e) Final order : Acquitted
Counsels for the Parties:-
For the State :- Sh. Mayank Tripathi
For the Accused Persons:- Sh. D.K.Hira
BRIEF REASONS FOR THE DECISION OF THE CASE:-
1.In brief, the case of Prosecution is that complainants Mr. Sudershan Kumar Sharma, Ms. Nirmal Sharma and Ms. Mamta Sharma filed a complaint against M/s. Accord Tours and Travels Pvt. Ltd and its Directors alleging that the accused persons in collusion with each other , with a view to cause wrongful loss to the public at large, devised a unique modus operandi for cheating and playing fraud and got published an advertisement in Hindustan Times and other newspapers mentioning therein that M/s Accord Tours and Travels Private Ltd. Urgently required vehicles on 3 years contract basis on monthly payment promising high income in return and also mentioned that they FIR No. 368/01 PS-Lajpat Nagar State Vs. Rakesh Singh & Ors. 2/13 could arrange finance for the new vehicles. The complainants induced by such advertisement approached the accused persons, who painted rosy pictures regarding their business and persuaded the complainant to avail financial facility for purchase of car and give it on hire for a period of 3 years on the agreed terms and conditions . The complainant accordingly executed Agreement dated 14.08.2000, 15.11.2000 and 14.08.2000 and paid a margin money of Rs. 1,04,933, 1,21,437 and 1,04,933/- respectively besides other charges and insurance amount and agreed to receive Rs.5628/- each pm for a period of 36 months of the contract. It was also assured that accused persons would be responsible for proper maintenance and security of the vehicle. When the complainant did not receive the payment of hire, they contacted the accused persons but every time they postponed the issue on some pretext or the other. When they approached the accused in Nov.2000, they were shocked to know that their vehicles have been stolen and from other persons , they also came to know of the same thing who had also invested in the company. Complainants tried to contact the accused but they were not available and from newspaper reporting, they came to know that accused were indulged in fraudulent activities, who used to sell the vehicles on forged documents through out the country. One of the car was recovered in one of the case pertaining to Sh. A.S. Jaswal, which was sold 2/3 times by the accused and their associates. therefore all accused persons criminally conspired to do an illegal act of cheating and misappropriation by fraudulently or dishonestly inducing the complainants and thereby committed offence punishable U/s. 420/406/120B IPC. Accused persons were arrested being involved in non bailable offences, but later on they were released on bail by the court order.
2. After completion of investigation, charge sheet was filed against the accused persons. Cognizance of the offence was taken by court and accused FIR No. 368/01 PS-Lajpat Nagar State Vs. Rakesh Singh & Ors. 3/13 persons were summoned to face the trial for the offences allegedly committed by them. During trial accused Raeesa Bashir,Zahida Khan, Mohd. Tabu Hussain including Bashir Sheikh absconded and they were declared Proclaimed Offender. Charges U/s.420/406/120B IPC were framed against accused Rakesh and Saroj Kumar Jha on 05.05.02 and against accused Abhijeet and Sayyed Mohd on 05.10.04 to which they individually pleaded not guilty and claimed trial. However vide order dated 23.03.05 and 28.03.05, accused Abhijeet and Sayyed Mohd. Were discharged by the Sessions Court.
3. In order to substantiate its version, Prosecution filed the list of as many as Ten witnesses including the Complainant Sh. Sudershan Kumar Sharma, Ms. Nirmal Sharma and Ms. Mamta Sharma.
4. PW1 HC Rajpal, Duty Officer, proved the copy of FIR Ex. PW1/A and his endorsement on rukka vide Ex. PW1/B, bearing his signatures at points A.
5. PW2 Ms. Nirmal Sharma deposed that in the month of August 2000, she read an advertisement in the Hindustan Times, published by M/S Accord Tours and Travels Pvt. Ltd. having their office at Lajpat Nagar requiring the vehicles on contract basis on monthly installments and also stated that the vehicles shall also be financed to the party and after three years the vehicles shall be returned and during that period they shall receive Rs. 5628/- as monthly payment for renting said vehicles. She found the offer to be genuine and beneficial and agreed to the offer being induced. She agreed to avail the finance from the Co. and gave Rs. 1,21,437/- as initial payment for the purchase of Maruti 800 including the Insurance and registration charges. It was also agreed upon that after availing the finance from company and as per the FIR No. 368/01 PS-Lajpat Nagar State Vs. Rakesh Singh & Ors. 4/13 terms, the said vehicle shall be given to company on hire basis on receipt of Rs. 5628/- per month for 36 months. A Hire agreement Ex PW2/A was executed between them for renting out Maruti 800 Delux car for a period of 36 months on the payment of Rs. 5628 pm, bearing her signatures at point A. She was also handed over the quotation dated 15.12.2000 Ex PW2/B and receiving receipt by the company after making discount of Rs. 2437/- from the original amount of Rs. 121437/- i.e. the amount receipt of Rs. 119,000/- was Ex. PW2/C. She also handed over Ex. PW2/A, B and C in original to the police, which were seized vide memo Ex. PW2/D, bearing his signatures at point A.
6. She further deposed that on 26.08.02 she visited the office of M/s. Accord Tour and Travels at O-14 Lajpat Nagar-IV along with her husband SK Sharma after going through the said advertisement,where accused Saroj Jha briefed them about the scheme and showed a rosy picture regarding the monetary benefits and an agreement Ex PW2/A was entered into between them on 15.11.2000. She further deposed that money was handed over to accused Saroj Kumar Jha and accused Bashir, Masood and Rakesh Singh and Abhijeet were also present at that time in the office. Accused Saroj Kumar Jha informed that aforesaid persons were either the directors or authorized persons/signatories of the said company and he further assured them of Secured Investment with the company. She further deposed that she was also informed that accused Rakesh Singh was also an authorized person/director of the company, who also assured that company was genuine and their investment was safe and secured. It was also assured that their vehicle shall be fully maintained during that period by the company and shall be returned intact after the expiry of contract period. Accused Rakesh Singh and other accused also assured them in similar manner. She further deposed that in that way, she was cheated by accused persons namely Rakesh Singh, Saroj Kumar Jha, FIR No. 368/01 PS-Lajpat Nagar State Vs. Rakesh Singh & Ors. 5/13 Bashir Ahmad Masood and Abhijeet and on their assurances, she paid money for the purchase of Maruti 800 Delux and had she not been misrepresented by the accused persons for the investment, she would never have invested money. She also deposed that till date neither monthly installment of Rs. 5628/- as promised was given nor her car was returned by the accused persons. On 20.11.2000, when she approached, one Bashir Ahmad ( Since P.O.) met , to whom she could identify if shown, informed that her vehicle had been stolen and he was trying to trace it out and also assured that her payment will be released shortly. Later she also met with other investors, who informed that they have also been cheated in similar manner by accused persons. Thereafter on 30.12.2000, she gave a complaint mark X-1 and its original was Ex. PW2/E ,bearing his signatures at point A. she also identified the accused Saroj and Rakesh. Further examination-in-chief was deferred and could not be concluded during the trial as witness became untraceable.
7. PW3 Ct. Yatinder deposed that on 06.10.01, he joined the investigation of present case with ASI Major Singh with who he reached Patiala House Courts. In the Court, he moved an application for interrogation of accused Rakesh Singh, who was produced from J/C. Accused was interrogated and his disclosure statement was recorded, wherein he disclosed that he had started M/s. Accord Tours and Travels Pvt. Ltd. along with his other associates namely Shahid Masood, Bashir Ahmad and Saroj Jha .They had taken the vehicles on lease and also financed some of the vehicles and those were later on supplied to Bombay. He also disclosed that Some of the vehicles were sold and some were not even purchased, but they stopped paying installments to the clients. The acquired vehicles were further supplied by Mohd. Masood and Bashir Ahmad and they spent some of the money for the expenses of the company and remaining amount was distributed between them.
FIR No. 368/01 PS-Lajpat Nagar State Vs. Rakesh Singh & Ors. 6/13 He further disclosed that he could not tell the whereabouts of supplied vehicles. Thereafter accused was arrested. He also identified the accused in the court. Further examination-in-chief was deferred for want of disclosure statement of accused and it remained deferred and could not be concluded throughout the trial.
8. PW4 Sh. A.S. Jaswal deposed that in December 1999, he came across an advertisement in the newspaper regarding hiring of car on rental basis by Accord Tours & Travels and visited its office, where accused Abhijeet met and briefed about the scheme. He showed his interest in the scheme and opted to offer his two Maruti Zen Cars bearing Registration No. DL4CH8258 and DL2CN1376. He was informed that he would be paid Rs. 4,400/- per car on monthly basis and that company would pay the expenses of driver and fuel but he would have to pay maintenance charges of Rs. 20,000/- per car for three years and accordingly he paid Rs. 40,000/- in cash said cars. Accused Abhijeet further informed that first payment towards the rental amount would be given after 60 days. Later on he was handed over 3 post dated cheques of Rs 8,800/-each but same got dishonoured on presentment. On this, he went to the office of accused, where accused Abhijeet informed that due to some problem, said cheques were dishonoured and assured him that he would be paid the amount in cash and after one week Rs. 8,800/- was paid in cash and cheques were taken back. He further deposed that he was handed over three fresh post dated cheques drawn on HDFC Bank, which also on presentation dishonoured and it continued for 6 months. Thereafter he put his grievance before the MD of company Bashir Ahmad , to whom he apprised that he wanted to discontinue the contract due to irregular payment. He asked him to collect cash from office directly. In July, he was paid money on due date but afterwards no payment was made to him. In August, he again talked to Bashir Ahmad about FIR No. 368/01 PS-Lajpat Nagar State Vs. Rakesh Singh & Ors. 7/13 discontinuing the scheme due to irregular payment but Bashir Ahmad told him to serve one month advance notice for revocation of agreement. In August, 2000, he gave revocation notice to the company and after one month he went to the office of company to take back his vehicles. However, Bashir Ahmad sought 15 days time to return the vehicles. He noticed some other persons had also visited the office to take back their vehicles, on which he felt something wrong. On 20 September 2000, Bashir Ahmed informed him that one of his vehicles bearing no. DL4CH8258 had been stolen and second vehicle would be returned only after 30th September, 2000. In the first week of October, 2000, Sh. Bashir Ahmad handed over his vehicle bearing no. DL2CN1376 to him. He asked Bashir Ahmad to return his second vehicle, on which he kept on seeking time and never showed any FIR regarding theft of his vehicle. Ultimately his second car was not returned and no money in lieu of it was paid. Thereafter he approached to EOW and gave a written complaint. In the end of November, 2000, Bashir Ahmad informed that his car had been recovered by the police and was parked at PS Sola Road, Ahmadabad. On this he talked to SHO PS Sola Road, Ahmadabad, who informed that the vehicle was there in the PS. Therafter he got said vehicle released on superdari from Ahmadabad Court and brought it back to Delhi. He demanded his payment from Bashir Ahmed but he denied.
9. He pointed out towards accused Saroj and stated that he also used to work in said company and had seen him 2-3 times in the office. He further deposed that on 20th December, 2000, he had gone to the office and found some other persons had gathered there. Police also reached there , to whom he informed that Chairman of company Sh. Masood might be available at Charmwood Village, Surajkund. He again approached Bashir Ahmed over telephone for payment of dues then he asked him not to disturb as his vehicles FIR No. 368/01 PS-Lajpat Nagar State Vs. Rakesh Singh & Ors. 8/13 were restored to him. On being asked whether accused Saroj and Rakesh had informed him about the scheme, to which he replied in negative. He was cross examined by the Ld. Prosecutor after seeking the permission of court. During cross examination he denied that when he visited the office of company for the first time, he had met Mohd. Masood, Rakesh Singh, Saroj Jha, who had informed him regarding the scheme and induced and lured him to join the scheme. He also denied that he had stated so in his statement recorded by the police. He also denied that he was deposing falsely.
10. During cross examination he deposed that police had made inquiries from him only once in the month of December, 2009. He admitted that Police had recorded his statement and he had signed the same. He also admitted that one agreement was got executed between them but he never handed over the copy of said agreement to police. He also admitted that he was given receipt regarding the payment of Rs. 40,000/- by the company. He also admitted that he had not given any statement of account to Police regarding balance payment. He also admitted that he did not initiate any criminal prosecution under section 138 NI Act for dishonoured cheques. He also admitted that Saroj Jha had not entered into any conversation with him regarding the scheme. He also admitted that he had not handed over the copy of notice served by him upon the company. He also admitted that he had not given in writing to police that he had received both of his vehicles. He denied the suggestion that he was deposing falsely.
11. PW5 SI Major Singh deposed that on 23.06.01, investigation of the present case was marked to him. During investigation, he made efforts to search the accused persons. On 03.07.01 he seized the documents from the complainant Viz agreement, cash receipt and details of payment made and FIR No. 368/01 PS-Lajpat Nagar State Vs. Rakesh Singh & Ors. 9/13 received by the complainant as per seizure memo Ex PW2/D, bearing his signatures at point B. He also arrested accused Rakesh was arrested vide memo Ex. PW4/A and thereafter case was handed over to MHCR.
12. PW6 SI Bhopal Singh deposed that further investigation of case was marked to him in January, 2002. On 20.02.02, he arrested accused Saroj Jha vide memo Ex. PW3/A and supplementary charge sheet was prepared. He also arrested co-accused Rakesh Singh and Sayyed Masood, Abhijeet Narain vide memo Ex. PW3/B and C. He also recorded the statement of witnesses and investigated the matter at ROC Office, Mumbai and collected records Mark A of M/s. Tours and Travel Pvt Ltd. (running into 1 to 36 pages). On perusal of said record, he found Bashir Sheikh, Zahid Khan, Mohd. Zubair as the Directors of said company during the tenure when the offence of cheating was committed and were the beneficiary of company's funds. He further deposed that he made his best efforts to trace out them but no clue was found. He order to trace them ,the advertisements dated 14.10.03 and 15.10.03 were given in Mumbai and Delhi with their photographs in the leading newspapers MarkB1 to MarkB3. He also obtained the process U/s 82 and 83 CrPC but they could not be found out and were declared Proclaimed Offenders Vide order 15.10.03 and 05.11.03. He also deposed that he recorded the statement of witnesses, prepared the supplementary charge sheet and filed it in the court. He also identified the accused.
13. During cross examination he deposed that he arrested the accused on 20.02.2002 vide arrest memo but he did not remember who was the witness cited in the said case. He admitted that he never examined K.S. Jaswal in the pending cases as he was already examined by the previous IO. He filed the supplementary challan against the accused Saroj Jha and other accused vide FIR No. 368/01 PS-Lajpat Nagar State Vs. Rakesh Singh & Ors. 10/13 supplementary challan in the month of April, 2002. He admitted that after getting the record from office of ROC Bombay and on its perusal he was sure that accused Saroj Jha was not having any status in the said company. He admitted that he procured the documents from the office of Sub-Registrar only after the arrest of Sayyed Mohd. perhaps in the month of July, 2003. He admitted that he did not interrogate or made any inquiry from any witness with regard to the role of accused Saroj Jha and even did not file any document on record against accused Saroj Jha. He denied the suggestion that he was deposing falsely being a prosecution witness. He also denied the suggestion that he falsely implicated the accused Saroj Jha in the present case and when he was arrested in this case, he was already in custody in some other case. He admitted that he was aware that accused was involved in some other cases also and accused was arrested in different cases on different dates. He also admitted that he had not recorded the statement of A.S. Jaswal or the complainant of present case.
14. PW7 HC Rang Bahadur deposed that on 20.02.02, accused Saroj Kumar was arrested by the IO SI Bhopal Singh vide memo Ex. PW6/A, bearing his signatures at point B. He also correctly identified the accused Saroj Kumar Jha. During cross examination, he deposed that accused was formally arrested by the IO at PS Lajpat Nagar in the morning, but he did not remember the time. At the time of arrest one Ct. Jag Mohan along with him and IO were also present. IO did not record his statement and no other investigation was done in his presence. He denied the suggestion that he was deposing falsely.
15. Thereafter, case was listed for recording of testimonies of remaining Prosecution Evidence. Complainant Ms. Nirmal Sharma was partly examined in chief. She along with other complainants namely Sh. Sudershan FIR No. 368/01 PS-Lajpat Nagar State Vs. Rakesh Singh & Ors. 11/13 Kumar and Ms. Mamta Sharma were summoned but process sent to them received back unserved. Time and again summons were sent but there was consistent report to the effect that there were untraceable and their present whereabouts are not known. They were directed to be served even through IO, but they again remained unserved. Statements of IO to this effect was taken on record and his detailed report was exhibited as Ex CW1/A-Ex CW1/D. With these observations, court closed the Prosecution evidence as remaining witnesses were formal witnesses and their testimonies were of no avail in the absence of main witnesses. Even public witness Sh. A. K. Jaswal did not state anything against present accused persons which could connect them with the alleged offence. Since nothing incriminating against accused persons came on record hence statement of accused persons U/s313 CrPC was also dispensed with.
16. During the course of final arguments, Ld. Defence Counsel submitted that Prosecution has failed to prove its case against the accused persons beyond reasonable doubt. Complainants of present case are untraceable and public witness Sh. A.S. Jaisawal has not stated anything incriminating against the accused persons. On the other hand, Ld. APP has submitted that testimony of PW4 can not be discarded completely and it can be used to corroborate with other reliable evidence which have come on record.
17. The court has heard the arguments of both sides and also perused the entire record including the testimonies of witnesses and detailed report regarding service of summons upon the complainants. In the present case, only part examination in chief of one of the complainants has been recorded. Further examination in chief was deferred and the same could not be completed as complainants became untraceable. The object of examination-in-
FIR No. 368/01 PS-Lajpat Nagar State Vs. Rakesh Singh & Ors. 12/13 chief is to elicit the truth, to prove the facts which bear upon the issue in favour of the party calling the witness but if a witness after being partly examining in chief or even after being examining in chief does not appear to subject him to cross-examination his evidence becomes valueless and can not be looked into. Reference may be had to in case of Gopal Sarvan Vs. Satya Narayan, AIR 1988 SC 1141.
18. Even public witness Sh. A.S. Jaswal has not stated anything incriminating against the accused persons. He has been declared hostile and cross-examined by Ld. Public Prosecutor at length, but nothing incriminating against accused persons have come on record. During the course of recording his examination in chief, Ld. Prosecutor specifically asked if accused Rakesh and Saroj Jha had informed him regarding the scheme, to which he replied in negative. In his cross-examination by defence counsel, he has admitted that accused Saroj Jha had not entered into any conversation with him in respect of the scheme. His testimony is silent about the specific role of accused Rakesh. His testimony mainly discloses the name accused Bashir Ahmed. There is no other circumstantial evidence on record to connect the accused persons with the offence in question.
19. In view of foregoing discussions, the court has no hesitation in holding that Prosecution has failed to prove its case against present accused beyond reasonable doubt. Hence accused Saroj Kumar Jha and Rakesh Singh are acquitted from the charge framed U/s. 120B/406/420 IPC.
20. File be consigned to Record Room after due compliance with liberty to revive the case as and when accused persons, who have declared P.Os. Shall be apprehended.
Announced in the Open (MONA TARDI KERKETTA)
Court Today i.e. on 25.06.12 Metropolitan Magistrate-08 (SE)
Saket Courts, New Delhi
FIR No. 368/01 PS-Lajpat Nagar State Vs. Rakesh Singh & Ors. 13/13