Delhi District Court
Page 1 Of 10 State vs . Netra Pal Yadav & Ors on 10 January, 2014
Page 1 of 10 State Vs. Netra Pal Yadav & Ors
IN THE COURT OF SH. AMITABH RAWAT, MM-08 (SE)
SAKET COURTS COMPLEX: NEW DELHI
FIR No. : 27/2001
U/s : 380/420/468/471/511 IPC
P.S : Greater Kailash
State Vs. Netra Pal Yadav & Ors
Unique Case ID No.02403R0031982001
JUDGEMENT
1. Sl. No. of the case : 121/5
2. Date of institution of the case : 09.03.2001
3. Name of complainant : Sh. B N Bhatia, Bank Manager,
Bank of India, East of Kailash, r/o
B-41, Sector - 33, NOIDA, UP.
4. Date of commission of offence : 12.01.2001
5. Name of accused, parentage &
address : 1) Netra Pal Yadav s/o Sh Khoob
Singh, R/o 5/577, Shiv Durga
Vihar, Lakarpur, Faridabad, HR
2) Kalimuddin s/o Sh Nathu Khan
Gola Kuan, Tehkhand, Okhla
Phase- I, New Delhi.
6. Offence complained of or proved : 380/420/468/471/511 IPC
7. Plea of accused : Accused pleaded not guilty
8. Final order : Acquitted - Netra Pal
Convicted - Kalimuddin 420/511 &
411 IPC
9. Date of which order was reserved : 10.01.2014
10.Date of pronouncement : 10.01.2014 BRIEF REASONS FOR THE DECISION OF THE CASE FIR No.27/2001 PS Lajpat Nagar Page 2 of 10 State Vs. Netra Pal Yadav & Ors
1. The case of the prosecution against the accused persons in brief is that on 12.01.2001 accused Kalimuddin presented a forged cheque bearing No.662800 dated 12.01.2001 for Rs.4,000/- issued by M/s Kiran Metals for encahsing in Bank of India, East of Kailash, New Delhi which was issued form the cheque book issued for M/s Shivam Enterprises. The owner of the firm M/s Kiran Metals on telephone confirmed that the cheque has been stolen. The clearing clerk reported the matter to the complainant Sh B N Bhatia, who called the police and SI Anish Sharma reached at the bank and upon receipt of written complaint, he got the case FIR registered and arrested the accused Kalimuddin. Thus, thereby committed the offence punishable under Section 380/420/468/471/511 IPC. Accused Netra Pal Yadav was also arrested in this case. On completion of the investigation, charge sheet was filed in the Court.
2. Copies of documents were supplied to both accused persons. Vide order dated 03.11.2001 learned predecessor Court framed a charge punishable for the offence under Section 380/511/420/468/511 IPC against the accused to which they pleaded not guilty and claimed trial.
3. The prosecution examined eight witnesses in all. After conclusion of prosecution evidence, the statement of accused under Section 313 Cr. P.C. has been recorded on 02.02.2006 wherein they pleaded innocence, wherein they opted for DE. However, vide order dated 20.04.2006 DE has been closed as no witness examined.
4. I have heard arguments of learned APP for the State, learned FIR No.27/2001 PS Lajpat Nagar Page 3 of 10 State Vs. Netra Pal Yadav & Ors counsel for accused Netra Pal Yadav and learned counsel for accused Kalimuddin from LAC and have also perused the record carefully.
5. The witnesses number in all eight while appearing in the witness box deposed as under:-
6. PW1 Head Constable Satish , is the formal witness who proved on record the copy of FIR as Ex.PW1/A.
7. PW2 Sh B N Bhatia, is the complainant and a Manager of the concerned Bank of India. He deposed that on 12.01.2001 he was posted as Branch Manager at East of Kailash Branch and computer operator Sh Om Parkash came with a cheque to him with accused Kalimuddin. The cheque was having the stamp of M/s Kiran Metals, but it was not issued by said firm. He asked the accused, but he could not explain the possession of said cheque. The witness further deposed that he made a phone call to the owner of M/s Kiran Metal, who stated that the said cheque was stolen and does not bear his signatures thereon. The police was informed. It was learnt that the cheque book from which the cheque was issued had been issued to M/s Shivam Enterprises. The written complaint has been exhibited as Ex.PW2/A. The cheque was seized by police vide memo Ex.PW2/B.
8. PW3 Sh A K Sehgal is the owner of firm M/s Kiran Metal he deposed that on 12.01.2001 he received a phone call from Bank Manager about presentation of a cheque for Rs.4,000/- with his forged signatures. After seeing the cheque, he testified that cheque was not signed by him.
FIR No.27/2001 PS Lajpat Nagar Page 4 of 10 State Vs. Netra Pal Yadav & Ors However he was having three bank accounts with said branch in the name of M/s Kiran Metal, M/s Shivam Enterprises and M/s Bhagwan Chemicals. However, the cheque book was issued in the name of firm M/s Shivam Enterprises, but the said cheque was not signed by him. The cheque was seized vide memo Ex.PW2/B. Accused Kalimuddin was arrested vide memo Ex.PW3/A and accused Netra Pal Yadav was arrested vide memo Ex.PW3/B and other stolen cheques were seized from Netra Pal Yadav vide memo Ex.PW3/C.
9. PW4 Sh Om Parkash Budgujjar, concerned bank officer who was posted the cheque was presented to him for encashment by accused Kalimuddin and on suspicion he informed the concerned Branch Manager. Further he corroborated the version of PW2 & PW3.
10. PW5 Constable Vanktesh and PW6 SI Anish Sharma are the police officers who investigated the present case. They deposed that on receipt of call, IO reached at the bank and registered the FIR and elaborated the manner in which they investigated the matter.
11. PW7 Constable Deep Chand is the DD writer who proved the DD as Ex.PW7/A.
12. PW8 Sh Ami Lal Daksh is the FSL witness who proved the signature specimen examination report as Ex.PW8/C and documents.
13. After recapitulisation the testimonies of prosecution witness, let FIR No.27/2001 PS Lajpat Nagar Page 5 of 10 State Vs. Netra Pal Yadav & Ors us revert to the facts of the present case.
14. Accused have been charged for the offences punishable under Section 380/468/511/411 IPC. Section 411 IPC, which reads as under:-
"411. Dishonestly receiving stolen property.-- Whoever dishonestly receives or retains any stolen property, knowing or having reasons to believe the same to be stolen property, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both."
15. Section 420 IPC provides as under :-
"420. Cheating and dishonestly inducing delivery of property.-- Cheating and dishonestly inducing delivery of property Whoever cheats and thereby dishonestly induces the person deceived 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."
16. From the above, following important ingredients can be summed up as under:-
i) There was a theft committed of a property;
ii) Dishonest reception or retention thereof; and
FIR No.27/2001 PS Lajpat Nagar
Page 6 of 10 State Vs. Netra Pal Yadav & Ors
Iii) Such reception or retention must be with knowledge of the
accused or having reasons to believe that the property is stolen one.
17. In Trimbak V. State of MP : AIR 1954 SC 39 while reversing the judgment of the Hon'ble High Court of conviction under Section 411 IPC it was held by the Hon'ble Supreme Court that when the field from which the ornaments were recovered, was an opened one and accessible to all and sundry, it is difficult to hold that accused was in possession of these articles.
18. In AIR 1956 Patna 63 : State of Bihar Vs. Madan Lal Aggarwal and Ors it was laid down by the Hon'ble High Court that the stolen goods recovered in the presence of the accused, but there was no evidence to show that the room wherein the stolen articles were found was in exclusive possession of the accused. Thus, if conscious and exclusive possession of the stolen articles was not found, the accused could not be convicted.
19. Section 101 of Evidence Act,1872 states that "whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person."
20. In this regard in Dr. S.L. Goswami V/s State of Madhya Pradesh, 1972 Supreme Court Cases (Cri.) 258 it was held by the Hon'ble Supreme Court that "The onus of proving all the ingredients of an offence is FIR No.27/2001 PS Lajpat Nagar Page 7 of 10 State Vs. Netra Pal Yadav & Ors always upon the prosecution and at no stage does it shift to the accused. It is no part of the prosecution duty to somehow hook the crook. Even in cases where the defence of the accused does not appear to be credible or is pulpably false that burden does not become any the less." The Hon'ble Supreme Court of India in Sharad Birdhichand Sarda V. State of Maharashtra, reported in 1984 (4) SCC 116 held that "It is well settled that the prosecution must stand or fall on its own legs and it cannot drive any strength from the weakness of the defence. This is trite law and no decision has taken a contrary view. What some cases have held is only this: where various links in a chain are in themselves complete than a false plea or a false defence may be called into aid only to lend assurance to the Court. In other words, before using the additional link it must be proved that all the links in the chain are complete and do not suffer from any infirmity. It is not the law that where is any infirmity or lacuna in the prosecution case, the same could be cured or supplied by a false defence or a plea which is not accepted by a Court."
21. After going through the above testimonies of witnesses in the light of above settled proposition of law, it is observed that prosecution has failed to prove its case against accused Netra Pal Yadav beyond reasonable doubts, however accused Kalimuddin is convicted for the Sections punishable under Section 420/511 and Section 411 IPC for the following reasons:
Firstly, PW4 Sh Om Parkash deposed in his deposition that he was posted as Computer Operator on 12.01.2001 in Bank of India, East of Kailash, New Delhi and accused Kalimuddin presented one cheque bearing FIR No.27/2001 PS Lajpat Nagar Page 8 of 10 State Vs. Netra Pal Yadav & Ors No.662800 for account No.30090 for Rs.4,000/- drawn on M/s Kiran Metal and he issued the token to him and he got suspicious and informed the Bank Manager, who then informed the account holder of the said cheque Sh A K Seghal. The accused was stopped at the bank and police called and accused Kalimuddin was apprehended. The cross-examination of said witness also did not bring out anything in favour of the accused. PW2 Sh B N Bhatia, Bank Manager also testified that PW4 came on 12.02.2001 with a cheque with the stamp of Kiran Metal (though it was issued in the name of Shivam Enterprises) presented by the accused Kalimuddin. He then informed the owner of the said account, PW3 Sh A K Sehgal. Thereafter, PW3 Sh A K Sehgal testified that the said cheque was pertaining to M/s Shivam Enterprises and same bear the stamp of M/s Kiran Metals and had also not been signed by him. In the cross-examination of witness there is nothing to deny the credibility of above depositions made by PW3 and PW4. Thus, it is clear from the above testimonies that the accused Kalimuddin presented the cheque, having the stamp of M/s Kiran Metals on 12.01.2001; the cheque was issued to PW3 in the name of Shivam Enterprises and the said cheque, as presented by accused Kalimuddin, did not bear signature of the account holder; and nor it was issued by the account holder to the accused. While presenting the said cheque of the account holder without his authority or knowledge, accused Kalimuddin dishonestly tried to induce the bank to deliver the amount mentioned therein (Rs.4,000/-) to him and attempted to cause wrongful loss to the account holder and he was apprehended at the bank premises itself. Since, the money was not delivered to accused, thus, there is an attempt to cheat the account holder of said bank, thus, the offence punishable under Section 420/511 IPC has been proved against him beyond FIR No.27/2001 PS Lajpat Nagar Page 9 of 10 State Vs. Netra Pal Yadav & Ors reasonable doubt.
Secondly, the said cheque was not signed by account holder and accused presented it and retained the same after receiving it knowing it to be the property of the account holder and that too without his authority, hence, the offence punishable under Section 411 IPC has been proved.
Thirdly, there is no FSL report regarding the handwriting of either accused Kalimuddin or Netra Pal Yadav on the cheque seized in the bank itself or the cheques recovered at the instance of Netra Pal Yadav from his house, hence the offence punishable under Section 468 IPC cannot be proved against them.
22. Now, considering the case of Netra Pal Yadav, it is observed that he was not found with stolen cheque for Rs.4,000/- tried to be encahsed by Kalimuddin, who was apprehended at the spot itself. Since accused Netra Pal Yadav was not apprehended at the spot, nor did not he produce the said cheques before the bank for encashment and there being no testimony against him, hence, offence under Section 420/511/380 IPC have not been proved. As far as two other cheques recovered from the house of accused Netr Pal Yadav are concerned, there was not even a prior written complaint regarding theft thereof. In the absence of complaint of theft accused Netra Pal Yadav cannot be charged for alleged theft or retaining the alleged said stolen cheques. In any case, PW3 Sh A K Sehgal has not made any complaint of theft of said cheques or even in his deposition while appearing in the Court has not stated that the said cheques were stolen, hence, accused Netra Pal Yadav is entitled to benefit of doubt and liable to be acquitted.
FIR No.27/2001 PS Lajpat Nagar Page 10 of 10 State Vs. Netra Pal Yadav & Ors
23. To sum up, for the discrepancies as observed above, accused Netrapl Yadav is entitled to the acquittal by giving him benefit of doubt.
24. In view of above discussion, accused Netra Pal Yadav is acquitted for the offence punishable under Section 380/420/468/511 IPC giving him benefit of doubt. However, accused Kalimuddin is convicted for the offence punishable under Section 420/511 IPC and Section 411 IPC. Convict Kalimuddin be released, if not wanted in any other case.
25. File be consigned to Record Room.
Announced & dictated in (Amitabh Rawat) the Open Court on 10.01.2014. MM-08/South-East Saket Courts Complex, New Delhi FIR No.27/2001 PS Lajpat Nagar