Delhi District Court
State vs . Qusier Jamal @ Keshar Jamal & Anr on 11 July, 2018
IN THE COURT OF SH. MANISH KHURANA,
CHIEF METROPOLITAN MAGISTRATE, SOUTHEAST DISTRICT,
SAKET COURTS, NEW DELHI
FIR No. 397/1999 Digitally
PS : Badarpur (Crime Branch/EOW) signed by
U/s : 420/120B IPC & s. 24 Immigration Act MANISH
MANISH KHURANA
State Vs. Qusier Jamal @ Keshar Jamal & Anr
KHURANA Date:
2018.07.11
Unique ID No. 89635/2016 15:50:34
+0530
Date of institution of case : 18.01.2000
Date of reserving the judgment : 10.07.2018
Date of pronouncement of judgment : 11.07.2018
J U D G M E N T
1. S. No. of the Case : 15/1/09
2. Date of Commission of Offence : AugSept 1999
3. Name of the complainant : Sh. Shyamji Chobey
S/o Sh. Paras Nath Chobey
R/o H. No. 286, BBlock,
Gali No. 5, Om Nagar,
Mollarband School,
New Delhi.
4. Name, parentage & address of accused : (i) Qusier Jamal @ Keshar
Jamal
S/o Qutubuddin Ahmad
R/o 179, Budh Vihar Colony,
Taajpur Pahari, Behind
Sibbal Cinema, Badarpur,
New Delhi (Since PO)
(ii) Gulam Rasool
S/o Sh. Laddan Khan
R/o 68, Tikona Park, Zamia
Nagar, Okhla, New Delhi
FIR No. 397/99 State Vs. Qusier Jamal @ Keshar Jamal & Anr 1/12
5. Offence complained of : u/s 420/120B IPC
& u/s 24 Immigration Act
6. Plea of Accused : Pleaded not guilty
7. Final Order : Acquitted
Case of the Prosecution
1. The prosecution case is that in the month of AugustSeptember 1999 at Delhi the accused Gulam Rasool entered into a criminal conspiracy with coaccused Qusier Jamal (since PO) and other unknown persons in order to cheat the complainant Shyamiji Chobey, Subedar Ram, Irshad Ahmed, Mahipal Singh, Mohd. Haroon Murtaza, Arif Zubaidr, Bashir Ahmed and Malkeet Singh etc by inducing them to give money to him in lieu of sending them abroad and in pursuance of the said conspiracy, the accused Gulam Rasool obtained various amount ranging from Rs. 25,000/ to Rs. 40,000/ from the abovesaid persons by promising to send them abroad and thereby the accused caused wrongful loss to the abovesaid persons and wrongful gain to him and thereby accused committed offence u/s 420/120B IPC. It is also alleged that during the abovesaid period and time, the accused pursuant to the criminal conspiracy acted as a recruiting agent to send abovesaid persons abroad for the purpose of employment in contravention of the provisions of section 10 of Immigration Act and thereby the accused also committed the offence punishable u/s 24 of the Immigration Act, 1983.
2. Cognizance of the offence was taken and the accused persons were summoned to face the trial. During the proceedings accused Qusier Jamal absconded and he was declared proclaimed offender vide order dated FIR No. 397/99 State Vs. Qusier Jamal @ Keshar Jamal & Anr 2/12 17.05.2003. Copy of the charge sheet was supplied to accused Gulam Rasool. After hearing arguments on charge, primafacie case u/s 420/120B & s. 24 of Immigration Act was found to be made out against the accused Gulam Rasool and the charge for the aforesaid offences was framed against the accused Gulam Rasool vide order dated 12.05.2005 by Ld Predecessor to which accused Gulam Rasool pleaded not guilty and claimed trial.
3. Prosecution examined 07 witnesses in order to prove its case.
4. PW1 Mahipal Singh deposed that in the year 1998 he was plying TSR and one Shyamji Chobey was known to him. He further stated that one Qusier Jamal who used to travel frequently in his TSR from Badarpur to the Airport. He also stated that he came to know that Qusier Jamal could send any person abroad as it was his business and he also asked Qusier Jamal if he could send his known person abroad to which he consented. He stated that thereafter he took the residential address of Qusier Jamal as his friend Shyamji Chobey wanted to go abroad. He further stated that in the month of AprilMay 1998 Qusier Jamal came to his house and inquired about any known person who wanted to go abroad and thereafter Shyamji Chobey was introduced to him. He stated that after that they started talking with each other and Subedar Ram, a friend of Shyamji Chobey was also included in the talks. He further stated that in the month of May 1998 Qusier Jamal took passports of Shyamji Chobey and Subedar Ram alongwith Rs. 7080,000/ from them for sending them to Saudi Arabia. He further stated that after some time he came to know that Qusier Jamal was a cheater and he used to cheat people on the pretext of sending them abroad. This witness was not cross examined by Ld cousnel for accused Gulam Rasool.
5. PW2 HC Man Singh deposed that on 04.10.1999 he joined the investigation of this case with IO SI Ramesh Lamba and he deposed the manner FIR No. 397/99 State Vs. Qusier Jamal @ Keshar Jamal & Anr 3/12 in which the accused Qusier Jamal was apprehended and regarding the search of his house and seizure of passport of Shyamji Chobey from the house of Qusier Jamal. He also deposed that in his disclosure statement accused Qusier Jamal disclosed that he gave the passport of Subedar Ram and Shyamji Chobey to accused Gulam Rasool for procuring ticket and visa. This witness further deposed that a raid was conducted at the house of coaccused Gulam Rasool from where five passports and two air tickets were recovered which were seized vide memo Ex.PW3/D. He stated that thereafter the accused Gulam Rasool was also arrested in the present case and his disclosure statement was also recorded. This witness identified the accused Gulam Rasool in the Court. During his cross examination he admitted that the passports of Shyamji Chobey or Subedar Ram were not recovered from the possession or residence of accused Gulam Rasool. He also stated that the IO did not make any inquiry in his presence from the persons whose passports were allegedly recovered from the residence of accused Gulam Rasool. He also stated that no documents were found in the premises of S S International of Irshad Ahmed showing the signatures of accused Gulam Rasool regarding any transaction with the complainant/victims. He also stated that no original documents were seized from the premises of S S International. He could not tell as to why original documents were not seized during the investigation. He could not tell as to whether any person gave the statement against the accused Gulam Rasool that he paid any money to accused Gulam Rasool.
6. PW3 Subedar Ram deposed regarding the role of accused Qusier Jamal, who is PO, in the commission of alleged offence and he stated that his friend Shyamji Chobey came in contact with Qusier Jamal who assured him to send him for work in Saudi Arabia. He also deposed that he alongwith Shyamji Chobey went to Qusier Jamal and gave the sum of Rs. 40,000/ to him FIR No. 397/99 State Vs. Qusier Jamal @ Keshar Jamal & Anr 4/12 for the said work but no receipt was given to them by Qusier Jamal. He stated that Qusier Jamal did not arrange the visa and ticket for Saudi Arabia despite repeated requests, however, on 19.04.1999 he gave an acknowledgment letter Ex.PW3/A. He further stated that despite repeated request and pursuance Qusier Jamal neither arranged the visa and tickets nor he returned the money, hence, the police complaint Ex.PW3/B was filed and during the investigation passport of Shyamji Chobey alongwith copy of employment agreement was recovered from the house of accused Qusier Jamal which was seized by the IO during the investigation. He also deposed that accused Qusier Jamal led them to the house of accused Gulam Rasool for recovery of his (PW3) passport and on 04.10.1999 the raid was conducted at the house of accused Gulam Rasool where five passports of different persons were recovered from his house but his (PW3) passport could not be recovered from the house of accused Gulam Rasool. This witness stated that accused Qusier Jamal cheated him and he eloped with his passport. This witness identified accused Gulam Rasool in the Court, however, Ld APP for the State sought permission to cross examine this witness as he was resiling from his earlier statement u/s 161 Cr.PC recorded by the IO during investigation. During his cross examination he denied that he told the police in his statement u/s 161 Cr.PC that when he inquired accused Qusier Jamal regarding return of money and for providing his passport and visa, accused Qusier Jamal told him that he had given Rs. 40,000/ and his passport to accused Gulam Rasool for getting the work done. He denied that Qusier Jamal took him to the house of accused Gulam Rasool where accused Gulam Rasool assured him that he was having his passport or that he was trying to arrange the visa and ticket for Saudi Arabia. He denied that in his complaint he also complained against accused Gulam Rasool.
7. PW4 Malkeet Singh deposed that in the year 1999 he wanted FIR No. 397/99 State Vs. Qusier Jamal @ Keshar Jamal & Anr 5/12 to go abroad for employment and he got his passport prepared. He further stated that thereafter his uncle Gurcharan Singh (since deceased) came in contact with accused Gulam Rasool who promised his uncle that he would send him (PW4) to Malaysia for work. He stated that accused Gulam Rasool asked his uncle to give Rs. 50,000/ for the said work which was given by his uncle to him. He stated that thereafter his visa and ticket for Malaysia were arranged by the accused. He stated that he came to know that accused Gulam Rasool was arrested by the police and that his passport was seized from the possession of accused Gulam Rasool. He stated that he never personally met or spoke with accused Gulam Rasool regarding arrangement of his work visa for Malaysia. Ld APP for the State sought permission to cross examine this witness as he was resiling from his earlier statement u/s 161 Cr.PC recorded by the IO during investigation. During his cross examination he denied that he told the police in his statement u/s 161 Cr.PC that accused Gulam Rasool asked him to give Rs. 30,000/ for arranging his visa work for Malaysia. He denied that he handed over the amount of Rs. 25,000/ and his passport to accused Gulam Rasool at his house in the month of July 1999. He denied that in September 1999 accused Gulam Rasool further asked the amount of Rs. 20,000/ for the purchase of flight tickets which was given by him to accused Gulam Rasool. He denied that he personally met accused Gulam Rasool or that he could identify him. He denied that he was deposing falsely to save the accused. During his cross examination by Ld defence counsel he again stated that he never met accused Gulam Rasool and that he had no personal dealings with accused Gulam Rasool.
8. PW5 Amod Kumar Tiwari deposed that in the year 1999 he was posted as Section Officer in the office of Protector General of Immigrants, Ministry of Labour & Employment, Government of India. He stated that one letter Ex.PW5/A of IO SI Ramesh regarding verification of manpower licence to FIR No. 397/99 State Vs. Qusier Jamal @ Keshar Jamal & Anr 6/12 Qusier Jamal was received in his office and in pursuance thereto he gave the reply Ex.PW5/B mentioning therein that no firm by the name of M/s Qusier Jamal was registered with the department for deployment of workers abroad. This witness was not cross examined by Ld defence counsel for accused Gulam Rasool.
9. PW6 Inspector Ramesh Lamba is the IO who deposed regarding the manner in which the investigation of this case was conducted and he was cross examined at length by Ld defence counsel for accused Gulam Rasool.
10. PW7 ASI Randhir Singh deposed that IO SI Ramesh Lamba prepared the rukka Ex.PW6/A and handed over the same to him for registration of FIR. He stated that he took the rukka to PS Badarpur and got the FIR registered and handed over the copy of FIR and original rukka to the IO.
11. Thereafter, PE was closed and statement of accused was recorded u/s 313 Cr.P.C. wherein all the incriminating evidence were put to the accused which he denied in totality. Accused Gulam Rasool stated that he was falsely implicated and that in the year 1999 he was working in a firm Honey Handigraph situated at 150, Sarai Julena opposite Surya Hotel which was engaged in the business of air ticketing and he used to collect passport of different persons from Honey Handigraph for getting the tickets from AlArab. He also stated that there was another company in that area by the name of Al Heena which was also engaged in the business of air ticketing and he never worked in the said company. He stated that coaccused Qusier Jamal was also doing the business of travel agent in that area and he was doing illegal job of travel agent. He stated that he had no connection whatsoever with Qusier Jamal and accused Qusier Jamal being rival of his company was having animosity with him and he falsely implicated him in the present case. He stated FIR No. 397/99 State Vs. Qusier Jamal @ Keshar Jamal & Anr 7/12 that the passports which were recovered from him were genuinely acquired by him from Honey Handigraph for obtaining the tickets for its clients. He stated that he was falsely implicated. Accused Gulam Rasool examined Kadeer Ahmed as DW1.
12. DW1 Kadeer Ahmed deposed that he was working as a Receptionist in Honey Handigraph at 150, Sarai Julena opposite Surya Hotel, Delhi w.e.f year 1998 up till the year 2002. He stated that Mohd. Sadik was the owner of the said company and said company was engaged in the business of providing international air tickets to the passengers. He stated that he knew accused Gulam Rasool as he was also working with Honey Handigraph and he was assigned the work of preparation of air tickets for the passengers for the said company. He stated that during the abovesaid period police took into possession few passports from the possession of accused Gulam Rasool which belonged to passengers who had come to Honey Handigraph for booking their air tickets. He stated that accused Gulam Rasool was only doing the work for Honey Handigraph and there were several companies including AlHeena which was doing the same business. This witness was cross examined by Ld APP for the State.
13. I have heard Ld. APP for State as well as Ld. Counsel for accused Gulam Rasool and have gone through the record carefully.
Finding of the Court
14. The allegations against the accused are that in the month of AugustSeptember 1999 at Delhi the accused Gulam Rasool entered into a criminal conspiracy with coaccused Qusier Jamal (since PO) and other unknown persons in order to cheat the complainant Shyamiji Chobey, Subedar Ram, Irshad Ahmed, Mahipal Singh, Mohd. Haroon Murtaza, Arif Zubaidr, Bashir Ahmed and Malkeet Singh etc by inducing them to give money to him in FIR No. 397/99 State Vs. Qusier Jamal @ Keshar Jamal & Anr 8/12 lieu of sending them abroad and in pursuance of the said conspiracy, the accused Gulam Rasool obtained various amount ranging from Rs. 25,000/ to Rs. 40,000/ from the abovesaid persons by promising to send them abroad and thereby the accused caused wrongful loss to the abovesaid persons and wrongful gain to him and thereby accused committed offence u/s 420/120B IPC. It is also alleged that during the abovesaid period and time the accused pursuant to the criminal conspiracy acted as a recruiting agent to send abovesaid persons abroad for the purpose of employment in contravention of the provisions of section 10 of Immigration Act and thereby the accused committed the offence punishable u/s 24 of the Immigration Act, 1983.
15. Section 415 IPC defines the term cheating as 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, reputation or property, is said to "cheat".
16. As per the case of the prosecution the accused Gulam Rasool entered into a criminal conspiracy with accused Qusier Jamal (since PO) and that he cheated various persons on the pretext of sending them abroad and obtained different amount of money from them in lieu thereof. It is also alleged that accused also acted as a recruiting agent for sending various persons abroad for employment in contravention of provisions of Immigration Act.
17. PW1 Mahipal Singh, PW3 Subedar Ram and PW4 Malkeet Singh who were allegedly cheated, as per the case of the prosecution, have not deposed during their testimony that they were induced or persuaded by accused Gulam Rasool to give them money on the pretext of sending them abroad. The abovesaid PWs have categorically deposed regarding the role of coaccused FIR No. 397/99 State Vs. Qusier Jamal @ Keshar Jamal & Anr 9/12 Qusier Jamal who is already PO and perusal of the testimonies of the aforesaid witnesses nowhere reveals that accused Gulam Rasool was involved in the criminal conspiracy as alleged in order to cheat various persons including them. None of the PWs have deposed that any money was paid to accused Gulam Rasool by him or that accused Gulam Rasool induced anybody in order to cheat on the pretext of sending them abroad for employment.
18. So far as the offence of cheating is concerned, the said offence is established when the accused induces a person to deliver any property or to do or omit to do something which he would otherwise not have done or omitted.
19. In the judgment of S. W. Palanitkar & Ors Vs. State of Bihar & Anr, (2002) 1 SCC 241, Hon'ble Supreme Court observed that the making of a false representation is one of the essential ingredients to constitute the offence of cheating u/s 420 IPC. It is further observed that if it is established that intention of the accused was dishonest at the very time when he made a promise and entered into a transaction with the complainant to part with his property or money, then the liability is criminal and the accused is guilty of offence of cheating but not otherwise.
20. Section 10 of Indian Evidence Act, 1872 provides that where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by any one of such persons in reference to their common intention, after the time when such intention was first entertained by any one of them, is a relevant fact as against each of the persons believed to be so conspiring, as well as for the purpose of proving the existence of conspiracy as for the purpose of showing that any such person was party to it.
21. In the judgment of Jayendra Saraswati Swamigal Vs. State of Tamil Nadu, AIR 2005 SC 716, Hon'ble Supreme Court observed that if prima FIR No. 397/99 State Vs. Qusier Jamal @ Keshar Jamal & Anr 10/12 facie evidence of conspiracy is given and accepted, the evidence of acts and statements made by any one of the conspirators in furtherance of their common object is admissible against all.
22. In the judgment of State of Kerala Vs. P. Sugathan & Anr, 2000 (4) Crimes 41 (SC), Hon'ble Supreme Court while discussing the scope of offence of criminal conspiracy punishable u/s 120B IPC observed that as in all other criminal offences, the prosecution has to discharge its onus of proving the case against the accused beyond reasonable doubt. The circumstances in a case, when taken together on their face value, should indicate the meeting of the minds between the conspirators for the intended object of committing an illegal act or an act which is not illegal, by illegal means. A few bits here and a few bits there on which the prosecution relies cannot be held to be adequate for connecting the accused with the commission of the crime of criminal conspiracy. It was further observed that the Court must inquire whether the two persons are independently pursuing the same end or they have come together to pursue the unlawful object. The former does not render them conspirators but the latter does.
23. In the case in hand, no evidence has been brought on record to prove that there was any agreement between accused Qusier Jamal (since PO) and accused Gulam Rasool for the commission of alleged offence of cheating nor has it been proved that any act was done by accused Gulam Rasool for commission of alleged offences. Testimonies of PW1, PW3 and PW4 who are the complainants as well as victims in the present case nowhere reveal that accused Gulam Rasool ever induced them or cheated them on the pretext of sending them abroad. The IO during his testimony admitted that Shyamji Chobey and Subedar Ram contacted only accused Qusier Jamal and gave him money for going abroad and that they had never contacted the present accused Gulam Rasool. He also admitted that from the residence of accused Gulam Rasool the FIR No. 397/99 State Vs. Qusier Jamal @ Keshar Jamal & Anr 11/12 passports of Shyamji Chobey and Subedar Ram were not recovered. He also stated that no receipt was seized during the investigation to show that accused Qusier Jamal paid any money to accused Gulam Rasool nor any document was recovered during the investigation to show any connection between accused Qusier Jamal and Gulam Rasool.
24. The IO has relied upon the photocopies of refund bill and entry in the refund register regarding the refund of tickets of Subedar Ram and Shyamji Chobey by accused Gulam Rasool which are MarkPW6/X and PW6/X1. However, the original receipts were not produced before this Court and the photocopies of the receipts relied upon by the IO during his testimony are not admissible in view of section 64 of Indian Evidence Act. Further, mere copies of abovesaid receipts are not sufficient to prove the guilt of accused Gulam Rasool as alleged by the prosecution. No proof is brought on record to show that the accused Gulam Rasool was involved in the offence of criminal conspiracy with coaccused Qusier Jamal or that any act was done by accused Gulam Rasool towards the commission of alleged offences.
25. In view of the abovesaid discussion and the evidence on record, I have no hesitation to hold that the prosecution has failed to prove its case against the accused Gulam Rasool beyond reasonable doubts.
26. Accordingly, accused Gulam Rasool stands acquitted for the offence u/s 420/120B IPC & s. 24 Immigration Act.
Announced in the open court
Today on 11.07.2018 (Manish Khurana)
CMM/SE/District Court, Saket
New Delhi/11.07.2018
FIR No. 397/99 State Vs. Qusier Jamal @ Keshar Jamal & Anr 12/12