Delhi District Court
State vs Rakesh on 12 August, 2015
IN THE COURT OF MS. SAUMYA CHAUHAN,
METROPOLITAN MAGISTRATE-07, WEST, THC NEW DELHI
State
Vs.
Rakesh
FIR No.308/02
PS Paschim Vihar
ORDER ON CHARGE
1.By this order the court shall decide on the point of charge.
2. The briefly stated story as per the prosecution is that the complainant namely Vishwa Bandhu Banga was running a trading business of Chemicals at WZ/48, Jawalaheri Market, Paschim Vihar in the name and style of M/s Shikhar International. On 11.06.2002, he received a call at his mobile phone from one person who introduced himself as Jagmohan Indora from Priya Petro Foam, Hissar. He gave reference of one person namely Jagdish Arora who was known to the complainant. The said person enquired about the chemicals from the complainant and expressed willingness to purchase the same. On 21.06.2002, one person namely Ved Prakash came on behalf of the said Jagmohan Indora in a Tempo Tata-407 having registration no. HR-39A-9211 at about 4.00 pm. He purchased 12 drums of chemicals TDI and made payment for the same vide an account Payee DD No.007095 dated 17.06.2002 for Rs.5,50,00/- against the bill of Rs.3,99,360/-. On 03.06.2002, he again visited the office of the complainant at about 12.30 PM with the same Tempo and took the delivery of 8 more drums of chemical Polyol amounting to Rs.1,50,558.72/-. The complainant deposited the above- said draft on 22.06.2002 in his bank. However, the same was returned back on 25.06.2002 with the report that the said draft was a forged one. On basis of the compliant of Vishwa Bandhu Banga, FIR was lodged under Section 420/468/471 IPC.
3. During investigation, one person namely Narender was arrested and on his pointing out, on 17.07.2002, 20 drums of chemical were recovered from a godown at New Patel Nagar, Sonipat, Haryana. The accused Rakesh was also arrested alongwith the Tempo TATA-407 make Swaraj Mazada bearing no. HR-69-1031. Co-accused Amit who had allegedly represented himself to be Ved Prakash and had taken the delivery of drums could not be arrested despite efforts. The Tempo Tata-407 also could not be recovered as the same was re-seized by the financier for non-payment of the installments. During investigation, the accused Narender had expired and hence the proceedings against him were abated.
4. I have heard the submissions made by the Ld. Counsel for the accused Rakesh and by Ld. APP for State. Ld. Counsel for accused Rakesh has submitted that there is no incriminating evidence against the accused Rakesh. As per the charge-sheet, the Tempo Tata-407 which were allegedly use in the transaction has not been recovered. The case property i.e. the drums were recovered at the pointing out of accused Narender Kumar. Hence, no charge is made out against accused Rakesh.
5. On the other hand, Ld. APP for State has submitted that there is sufficient material on record to proceed against the accused Rakesh.
6. Let us first discuss the relevant provisions of law for the purpose of this case. Section 415 of IPC defines the offence of cheating as under:-
"Section 415. 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".
7. The main ingredients to be proved to establish the offence of cheating are:-
1. Deception of any persons;
2. Fraudulently or dishonestly inducing any person to deliver any property; or
3. To consent that any person shall retain any property and finally intentionally inducing that person to do or omit to do anything which he would not do or omit.
8. Section 463 IPC defines the offence of Forgery as under:-
"Section 463. Forgery.-Whoever makes any false documents or false electronic record or part of a document or electronic record, with intent to cause damage or injury, to the public or to any person, or to support any claim or title or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed commits forgery."
9. In the case at hand, the stolen property was recovered at the pointing out by the deceased accused Narender. Admittedly, the Tempo TATA-407 has not been recovered from the possession of any of the accused. In fact, as per the complainant, the vehicle used by the alleged Ved Prakash was having registration no. HR-39A-9211. However, the vehicle which was allegedly possessed by the accused Rakesh was having no. HR-69-1031. There is a letter dated 10.08.2004 on record, from 'Citicorp Finance(India) Ltd', wherein it is stated that the vehicle no. HR-69-1031 was financed to one Ram Kumar and the accused Rakesh was only a guarantor to the same. The same was repossessed by the financier due to non-payment of the due amount and was resold to M/s Vishal Motors on 30.07.2003. Even the said Tempo was never seized by the IO.
10. There is nothing on record to even remotely suggest that the said Tempo was used by the accused persons in commission of the offence.
11. Also, there is no evidence on record whatsoever to suggest that the forged DD was prepared or used as genuine by the accused Rakesh. There is no FSL report with respect to the handwriting of the accused. Hence, the court is of the view that there is no incriminating evidence against the accused Rakesh on record except for his disclosure statement. However, it is a settled principle of law that the disclosure statement is not admissible in evidence and hence it cannot be read against the accused.
12.In view of the above discussion, court is of the considered opinion that prima facie no offence is made out against the accused Rakesh Kumar. Nothing incriminating has come on record against the said accused. Hence, the court is of the view that the accused Rakesh is entitled to be discharged.
13.The accused Rakesh be released from custody immediately if not wanted in any other cases. Since the accused Narender has already expired and proceedings are abated against him, nothing remains in the case. File be consigned to Record Room.
(SAUMYA CHAUHAN) MM-07 (West) THC, Delhi/12.08.2015