Delhi District Court
State vs . Sukhpal Singh Sandhu on 28 April, 2012
1
IN THE COURT OF MS. MANISHA KHURANA,MM11,
DWARKA COURTS, NEW DELHI
State vs. Sukhpal Singh Sandhu
FIR No. 174/06
P. S. Naraina
U/s. 408 IPC
1.Serial No. of the case : 05/12
2. Date of commission of offence : 27.04.2006
3. Name of the complainant : Sh. Rohit Malik S/o Late Sh. R. C. Malik, DGM, AOK Inhouse Factoring Services Ltd.
4. Name of the accused and his parentage and residence : Sukhpal Singh Sandhu @ Aman Sandhu S/o. Sh. D. S. Sandhu, R/o. D-9, Hari Nagar Ext., Phase-I, Badarpur, New Delhi.
5. Date when judgment was : 24.04.2012 reserved
6. Date when judgment was : 28.04.2012 pronounced
7. Offence complained of : 408IPC or proved State vs. Sukhpal Singh Sandhu FIR No. 174/06 P. S. Naraina U/s. 408 IPC Page No. 1/14 2
8. Plea of accused : Not guilty
9. Final Judgment : Convicted Brief Statement of reasons for the decision of the case The brief facts of this case are as follows:-
1. A complaint had been filed by AOK Inhouse Factory Services Ltd. under Section 408/420/467/468/471 IPC against the accused on the ground that accused had been employed by the complainant company as a Pick-up Executive since 15.01.2005 for collecting deposits from the customer of ABN Amro Bank against receipt. It is stated that one Sh. S. K. Swami informed the complainant that an amount of Rs. 86,400/- had been paid by him in cash to the accused against the credit card dues of of his son Gaurav Swami. However, the said cash payment did not reflect in Bank's account. Complainant further alleged that the accused did not deposit the said amount of Rs. 86,400/- with the bank and issued a forged settlement letter to the said Sh. S. K. Swami without any receipt. Therefore, it is alleged that the accused has committed cognizable offences under Section 408/420/467/468/471 of IPC.
2. Thereafter, an application under Section 156 (3) of Cr. P. C was moved by the complainant before the Ld. Predecessor, in pursuance of the same, vide order of Ld. Predecessor dated 02.09.2005, FIR was directed to be registered with PS Naraina.
State vs. Sukhpal Singh Sandhu FIR No. 174/06 P. S. Naraina U/s. 408 IPC Page No. 2/14 3 Thereafter, chargesheet was filed on 10.05.2007 and vide the said order of Ld. Predecessor cognizance of offence under Section 408 IPC was taken.
3. On appearance of accused, charge was framed against the accused under the said sections on 14.03.2008 to which the accused did not plead guilty and claimed to be tried. Thereafter, the matter was listed for prosecution's evidence.
4. In prosecution's evidence, seven witnesses namely PW-1 Sh. S. K. Swami, PW-2 HC Ramesh Chand, PW-3 ASI Mukti Tirki, PW-4 Rohit Malik, PW-5 Sanjeev Sahani, PW-6 Inspector Suresh Pal and PW-7 SI Sukhbir Malik were examined.
5. In his examination in chief, PW-1 Sh. S. K. Swami deposed on oath that in the year 2005, an amount of Rs. 86,400/- was due against the credit card of his son Sh. Gaurav Swami and in pursuance thereof, ABN Amro bank had sent a request letter for the payment of the said amount. PW-1 further deposed that he requested telephonically for sending any representative for collecting the payment of Rs. 86,400/- and consequently, the accused came to collect the said amount and produced a photocopy of his identity card issued by AOK as collecting agent alongwith the settlement letter purported to be issued by ABN Amro Bank. PW-1 correctly State vs. Sukhpal Singh Sandhu FIR No. 174/06 P. S. Naraina U/s. 408 IPC Page No. 3/14 4 identified the accused in the Court. Further PW-1 identified the said letter dated 09.08.2005 and I. Card placed on record as EX. PW. 1/A to EX. PW.1/C. PW-1 had also produced original computer generated settlement offer letter dated 09.08.2005. PW-1 has further testified that he had made the payment of Rs. 85,000/- in pursuance of the said settlement letter. Further PW-1 deposed that subsequently on another day a person who introduced himself as the brother of the accused came to the office of PW-1 to collect the balance amount of Rs. 14,00/-. PW-1 further deposed that he subsequently received telephonic information from ABN Amro Bank in respect of non-payment of the overdue amount. PW-1 has also deposed that on 02.02.2008 accused was arrested by the police and recovery of cash of Rs. 38,000/- was effected from his possession.
6. PW-1 was thereafter cross-examined by the counsel for the accused.
7. Thereafter, PW-2 & PW-3 were produced by the prosecution. PW-2 HC Ramesh Chand was the witness to the disclosure statement of the accused EX. PW. 2/B and also to the arrest memo and personal search memo EX. PW.2/C and EX. PW. 2/D. PW-3 SI Mukti Tirki had registered the FIR under Section 408 IPC against the accused on 27.04.2006 as EX. PW.3/A and had also made an endorsement on rukka as EX. PW. 3/B. PW-2 & PW-3 State vs. Sukhpal Singh Sandhu FIR No. 174/06 P. S. Naraina U/s. 408 IPC Page No. 4/14 5 were cross-examined by the counsel for accused.
8. Thereafter, PW-4 Rohit Malik, DGM in AOK company was also examined by the prosecution. In his examination in chief, PW-4 also corroborated the testimony of PW-1 and deposed that the accused was employed as pick-up executive since 15.01.2005 with AOK Company, and tht the said accused stopped coming to the office from 11.08.2005. PW-4 further deposed that on 23.08.2005 he received a call from Sh. S. K. Swami regarding non reflecting of cash deposit amount of Rs. 86,400/- in Bank Payments account. PW-4 further deposed on oath that the settlement offer letter placed on record as EX. PW. 1/ A is forged. PW-4 further deposed that during investigation they had handed over original bank statement of accused and photo I. D. Card i.e EX. PW. 1/B and EX. PW. 1/C to the police. Thereafter, PW-4 was cross-examined by the counsel for the accused.
9. Thereafter, PW-5 Sanjeev Sahni, General Manager of AOK Company was examined. PW-5 also correctly identified the accused and deposed that accused had been arrested at his instance on 28.09.2006 for which arrest memo was prepared in his presence as EX. PW. 2/C.
10. Thereafter, PW-6 Inspector Suresh Pal was examined State vs. Sukhpal Singh Sandhu FIR No. 174/06 P. S. Naraina U/s. 408 IPC Page No. 5/14 6 and he stated that he had recorded the statement under Section 161 Cr. P. C of Sh. S. K. Swami and had prepared and filed the challan.
11. The prosecution thereafter examined PW-7 SI Sukhbir Malik who deposed that he had arrested the accused from his house vide arrest memo EX. PW. 2/C and also recorded the disclosure statement of accused i.e. EX. PW. 2/B. PW-7 was thereafter cross- examined by counsel for accused whereby a suggestion was put to the said witness that Sh. S. K. Swami had already compromised the matter with the accused in PS New Friends Colony and had received the money. However, the said suggestion was denied by PW-7. Thereafter, prosecution's evidence was closed.
12. Statement of accused was recorded under Section 313 Cr. P. C whereby all the incriminating evidence was put to him. In the said statement, the accused has admitted that he was an employee of the complainant Rohit Malik, AOK Inhouse Factory services Pvt. Ltd. as a pick-up executive and that he had collected Rs. 86,400/- from Sh. S. K. Swami. The accused also stated in the said statement that he did not deposit the said amount with the company and misappropriated the same at the instance of Rohit Malik. The accused further also stated that the matter had been compromised with Sh. S. K. Swami at PS New Friends Colony. However, the accused chose not to lead any evidence. Therefore, the matter was State vs. Sukhpal Singh Sandhu FIR No. 174/06 P. S. Naraina U/s. 408 IPC Page No. 6/14 7 listed for final arguments.
13. I have heard the final arguments advanced by Ld. APP and counsel for accused and I have perused the record.
14. In the present matter, accused has been charged with the offence of Criminal breach of trust which has been defined under Section 408 IPC and is reproduced as under:-
Section 408 IPC Criminal breach of trust by clerk or servant - Whoever, being a clerk or servant or employed as a clerk or servant, and being in any manner entrusted in such capacity with property, or with any dominion over property, commits criminal breach of trust in respect of that property, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
Thus, the essential ingredients in order to constitute the offence of criminal breach of trust under Section 408 IPC are as follows:-
(i) the accused was, or was State vs. Sukhpal Singh Sandhu FIR No. 174/06 P. S. Naraina U/s. 408 IPC Page No. 7/14 8 employed as, a clerk or servant of the person reposing trust in him;
(ii) the accused, in the said capacity, was entrusted, in any manner, with the property in question or with domain over it; and
(iii) the accused dishonestly misappropriated that property, or converted it to his own use, or used it, or disposed it of, or willfully suffered some other person so to do, in violation of-
(a) any direction of law, prescribing the mode, in which such trust was to be discharged, or
(b) any legal contract, express or implied, which he had made, touching the discharge of such trust.
15. In the present matter the prosecution has examined PW-1 Sh. S. K. Swami, PW-4 Rohit Malik, PW-5 Sanjeev Sahni. In his testimony, PW-1 has stated that the accused had produced his I. Card issued by AOK Inhouse Factory Services Pvt. Ltd. Which has been placed on record as EX. PW. 1/B , EX. PW. 1/C alongwith the settlement offer letter purported to be issued by ABN Amro Bank as EX. PW. 1/A. PW-4 Rohit Malik who is the DGM in the complainant State vs. Sukhpal Singh Sandhu FIR No. 174/06 P. S. Naraina U/s. 408 IPC Page No. 8/14 9 company had also testified on oath that the accused was working as a pick up executive in the said company from 15.01.2005 till 11.08.2005. The said fact was also corroborated by PW-5 Sanjeev Sahni, GM of AOK Inhouse Factory Services Pvt. Ltd. Thus, from the said documents placed on records by PW-1 as well as from the testimony of PW-4 & PW-5, it is apparent that the accused was employed by AOK Inhouse Factory Services Pvt. Ltd. in the capacity of pick-up executive and he had been entrusted with the responsibility of collecting cash from the customers of ABN Amro Bank for depositing the same against their dues.
16. PW-1 has testified on oath that he had handed over a sum of Rs. 85,000/- in cash to the accused and Rs. 1,400/- were handed over to the brother of the accused. PW-1 has also deposed that the said amount did not reflect in the bank's payment account since the accused failed to deposit the same. In the cross- examination PW-1 has denied the suggestion of counsel for accused that a sum of Rs. 1,400/- was collected through the Manager of PW-1. Although the testimony of PW-1 is not reliable in respect of the person who had collected the sum of Rs. 1,400/-, however, the counsel for accused has not given any suggestion to PW-1 to the effect that accused had not collected the sum of Rs. 85,000/- on behalf of AOK Company from PW-1. PW-4 & PW-5 who are the officials of AOK Inhouse Factory Services Pvt. Ltd. have also State vs. Sukhpal Singh Sandhu FIR No. 174/06 P. S. Naraina U/s. 408 IPC Page No. 9/14 10 testified that the settlement offer letter EX. PW. 1/A which was issued by the accused was a forged letter. In their cross- examination, no suggestion has been put to PW-4 by the counsel for the accused to the effect that the accused had duly deposited the money with ABN Amro bank. PW-5 has not even been cross- examined by the counsel for the accused despite opportunity being given for the same. Thus, from the testimony of the said material witnesses, it is apparent that the accused being entrusted with the duty of depositing the collected cash amount by the collecting agency i.e. AOK Inhouse Factory Services Pvt. Ltd. dishonestly did not deposit the same in order to cause wrongful loss to Sh. S. K. Swami as well as to cause wrongful gain to himself. In his statement recorded under Section 313 Cr. P. C, the accused has stated that at the instance of Rohit Malik, the accused did not deposit the cash amount of Rs. 85,000/- that was collected by him. However, no evidence has been led by the accused to corroborate the same.
17. Be that as may, although a disclosure statement of accused has also been recorded by the police, however, in view of section 27 of Indian Evidence Act, the same cannot be read in evidence.
18. However, it is well settled that under Section 408 IPC the prosecution does not have to prove the precise manner in which the State vs. Sukhpal Singh Sandhu FIR No. 174/06 P. S. Naraina U/s. 408 IPC Page No. 10/14 11 money was misappropriated. Consequently, in the present matter, although it has not come on record as to how the accused used the said amount of Rs. 85,000/-, however, the fact that the accused has not led any evidence and has failed to account for the said money proves that the said amount was misappropriated by the accused.
19. Thus, in view of the aforesaid discussions, all the ingredients of Section 408 IPC as afore mentioned are fulfilled in order to bring home the guilt of the accused for the offence of Section 408 IPC.
20. Although from the evidence led by the prosecution, it is apparent that a forged settlement offer letter was issued by the accused to Sh. S. K. Swami, however, since no charge for the offence of forgery has been framed against the accused and therefore, accused cannot be convicted for the same.
21. In view of the aforesaid discussions, the prosecution has been able to prove its case beyond reasonable doubts. The accused is accordingly convicted for the offence under Section 408 IPC.
Put up for arguments on sentence on 03.05.2012.
Announced in the open Court (Manisha Khurana) on 28th April, 2012 Metropolitan Magistrate, Dwarka Courts,New Delhi State vs. Sukhpal Singh Sandhu FIR No. 174/06 P. S. Naraina U/s. 408 IPC Page No. 11/14 12 State vs. Sukhpal FIR No. 174/06 PS. Naraina 03.05.2012 Present:- Ld. APP for the State.
Accused alongwith Counsel.
Arguments on sentence heard.
Put up for orders on sentence on 05.05.2012 at 2 p.m. (Manisha Khurana) MM-11,Dwarka Courts, New Delhi/03.05.2012 State vs. Sukhpal Singh Sandhu FIR No. 174/06 P. S. Naraina U/s. 408 IPC Page No. 12/14 13 State vs. Sukhpal Singh Sandhu FIR No. 174/06 PS. Naraina 05.05.2012 Present:- Ld. APP for the State.
Sh. M K Singh counsel for convict along with convict. Arguments on sentence heard.
Counsel for convict has argued that the accused is a first time offender and has not been convicted previously in any case. It is further prayed that the accused be released on probation.
Ld APP for the State has prayed that convict be sentenced to maximum punishment.
Heard. The convict has been found guilty of an offence u/s 408 IPC. Keeping in view the severity of the offence, the case is not fit for grant of the benefit of probation. The accused is person of young age and is a first time offender. Therefore, the convict is sentenced to punishment of rigourous imprisonment for a period of six months and fine of Rs. 5000/-. In case of default in the payment of fine, convict shall undergo simple imprisonment for a period of one month.
The period of detention undergone by the convict, if any, shall be set off as per the provisions of section 428 Cr PC.
At this stage, counsel for accused has moved an application u/s 389 Cr PC for grant of bail on the ground that the convict intends to file an appeal. Heard. In view of the same, the convict is admitted to bail for a period of one month on furnishing a personal bond in the sum of Rs. Rs. 10,000/- and surety of the like amount. Bail bond and surety bond furnished and accepted till 05.06.2012. Bail bond be put up on 05.06.2012.
Copy of judgment and order on sentence be given to the convict, free of cost, forthwith. File be consigned to record room.
State vs. Sukhpal Singh Sandhu FIR No. 174/06 P. S. Naraina U/s. 408 IPC Page No. 13/14 14 (Manisha Khurana) MM-11,Dwarka Courts, New Delhi/05.05.2012 State vs. Sukhpal Singh Sandhu FIR No. 174/06 P. S. Naraina U/s. 408 IPC Page No. 14/14