Delhi District Court
State vs . Kulwant Singh Etc. on 1 May, 2008
IN THE COURT OF SH. SATINDER KUMAR GAUTAM
METROPOLITAN MAGISTRATE : M.M. DELHI
STATE VS. KULWANT SINGH ETC.
FIR NO: 381/93
P. S. NDLS
JUDGEMENT U/S 355 Cr.P.C.:
a) Serial No. of the case : 693/03
b) Date of offence : In the year 1991
c) Offence complained of : 419/420/120B
d) Name of complainant : Inspector Jeewan Singh Gill
e) Name of accused, his : 1- Kulwant Singh S/o Kamikar
parentage & residence Singh R/o Village Bhikhampur,
P.S. Mond. Ahmadgarh, Distt.
Sangroor, Punjbab.
2- Jarnail Singh S/o Harbhajan
Singh R/o H. NO. 30, Subhash
Mohalla, Ahmadgarh, Distt.
Sangroor, Punjab.
(Declared PO in this case vide order dated 13.8.2007)
3- Kuldeep singh S/o Kartar Singh
R/o 640L Model Town ,
Ludhiana, Punjab.
(Discharged vide order dated 20.7.1996)
f) Plea of accused : Pleaded not guilty.
g) Final order : Convicted
h) Date of institution of case : 26.6.2003
i) Date on which case reserved : 1.5.2008
for judgment
j) Date of judgment : 1.5.2008 ( after lunch)
BRIEF FACTS AND REASONS FOR DECISION:
1- Briefly stating, as per case of prosecution, the present accused namely Kulwant Singh has been facing trial on the allegation that he in furtherance of criminal conspiracy with Travel Agent Jarnail Singh in the year Contd..........
/2/ 1991 applied for a Pass Port in the name of his uncle Mahender Singh on his Uncle address to the Pass Port Office, Chandigarh whereas he pasted his photograph on the application and got a passport in the name of his uncle Mahender Singh and for this act charged dishonestly Rs. 1200/- from him for obtaining the pass port in the name of Mahender Singh and nd thus a case for offence punishable u/s 419/420/120B IPC has been registered against the accused. The IO after completion of investigation has filed the chargesheet before the court.
2- The accused was supplied with copies of charge-sheet and on the basis of material on record, he was charged for offence punishable u/s 419/120 B IPC vide order of this court dated 10.6.1997 When the charge was readover and explained to accused, he pleaded not guilty and claimed trial.
3- To bring home the guilt of the accused, prosecution examined as many as 7 witnesses in support of its case.
4- PW1 is Inspector Jiwan Singh, who was the IO of the case and has deposed that on 9.7.93 he was posted at Insp. Operation Cell Lodhi colony, he has deposed that on a secret information received for informer he formed a raiding party consisting of SI Azad Singh, SI Devidutt, ASI Gulab Singh and apprehended the accused Kulwant Singh S/o Kamikkar Singh who was impersonating himself as Mahinder Singh. PW1 further proved the seizure of Contd..........
/3/ articles recovered from the possession of accused vide memo Ex. PW1/A like one slip, one passport one receipt and one AIR ticket of Malasia and further proved the disclosure statement of accused vide Ex. PW1/B, preparation of rukka Ex. PW1/C, site plan Ex. PW1/D, seizure of booking paper mark A vide memo Ex. PW1/E and disclosure statement of accused Kuldeep vide Ex. PW1/F. PW1 has further deposed that accused Kulwant Singh was arrested vide memo PW1/H and Gulmail Singh vide Ex. PW1/I. 5- Inspector Sanjeev Kumar, has deposed that on 9.8.93 IO of the case has recorded ihis statement and has further deposed that on 3.12.93 the accused Kulwant Singh has got issued a fake passport Ex. P-1 in the name of Mahinder Singh and the accused Kulwant Singh represented himself before him as Mahinder Singh.
6- PW3 Sardar Paramjeet Singh was the formal witness and he deposed that i8n the year 1992-93 he was working in M/s Mahavir Travel SC No. 131-132, First Floor Sector 34-A, Chandigarh and deposed that they used to receive about 50 application for the passport and other miscellaneous application and deposed that as the matter 8 years old and he had left the job in 1993 hence he do not remember facts of the case. 7- PW4 V.K. Khanna was the proprietor of M/s Khanna Enterprises 112, second Floor, Connaught place, New Delhi and deposed that accused Kuldeep Singh ( who has been discharged in this case) was their sub agent of Contd..........
/4/ Haryana and Punjabi and they used to get the reservation and other related services and had prove the receiving of two passport vide Ex. PW4/A and taking of the same in possession vide Ex. PW1/E and courier sheet vide Ex. PW4/B which was issued in favour of Mahinder Singh and Balbir Singh. 8- PW5 Insp. Rajinder Singh has deposed that he as posted as Immigration (FRRO) on 8.7.93 and was performing duties of clearing officer in the arrival left wing of Immigration and during clearance of flight NO. 152, I cleared one person namely Mohinder Singh S/o Bhagat Singh holding PP NO. I-737466 with stamp Number W-12C issued to him. 9- PW6 SI Santokh Singh has proved the registration of Fir in the present case vide copy of same Ex. PW6/A. PW7 ASI Mahinder Singh has reiterated the version of PW1 Inspector J.S. Gill and has proved the investigation done in the present case.
10- In his statement recorded on 10.4.2008 the accused has denied the allegation made against him and deposed that he has been falsely implicated in this case. However the accused did not prefer to lead any evidence in his defence.
11- I have heard the submission of Ld. APP and of accused in person and have carefully gone through the record.
12- Before proceed for any conclusion let be analyzed the charges framed against the accused Kulwant Singh. The charges framed against the accused if for the offence alleged u/s 419/120B IPC by alleging that accused Contd..........
/5/ Kulwant Singh have criminally conspired with accused Jarnail Singh in the year 1991 and applied for a pass port in the name of his uncle Mahender Singh on his uncle's address to the pass port office Chandigarh whereas he pasted his photograph on the application and got a passport in the name of his uncle Mahender Singh and thereby impersonated himself as Mahinder Singh. The section 416 defines the offence of cheating by personation.
" This is an offence of general nature under which a person pretends to be any one other than what he really is. This section requires both (i) Cheating; and (ii) personation. This section requires any of of the following essentials:-
1- Pretension by a person to be some other person. 2- Knowingly substituting one person for another. 3- presentation that the person representing or any other person is a person other than he or such other person really is.
13- "To ' personate' means to pretend to be particular person. The giving our o a false name amounts to personation but mere personation is not an offence under the Penal Code. A person cannot be convicted merely because he secured recruitment by giving out a fictitious name unless, it is established that he would not have been so Contd..........
/6/ recruited had he disclosed his correct name. The explanation to the section clarifies that the person personated may be a real or an imaginary person. Where an accused was found using a railway season ticket issued in the name of a different person by pretending to be that person, he was held guilty under this section"
14- Further in a case titled as Motty Philipose (2006) Cri LJ 2271 (Ker), wherein it was observed bny the Supreme Court that:
"It is not necessary that a false pretense should be made in express words by the accused. It may be inferred from all the circumstances including the conduct of the accused in obtaining the property. In the true nature of things it is not always possible to prove dishonest intention by any direct evidence. It can be proved by number of circumstances from which a reasonable inference can be drawn where on the proved facts it was seen that a cheque was handed over to the complainant which was dishonoured and in the receipt it was stated that the accused had received shares. The mere fact that the cheque was filled in by the complainant is not sufficient to take away the effect of the statement in the receipt. The High Court was h eld justified in convicting the accused of the offence. IN a case of dishonour of cheque. Knowing fully well that the prosecution cannot be maintained 30 days after the waiting period from the date of issuing of Contd..........
/7/ notice, the accused approached the complainant dishonestly making a request to wait promising that he would repay the amount. The court held that there was a prima facie case for the offence under section 420 IPC".
15- In another case titled as Dhas J S AIR 1940 Mad 155: (1940) 41 Cri L.J.388 wherein it has been observed by the Apex Court that :-
" A railway company offered some concession rates to student travelers, and a certificate was presented by somebody - not the accused- containing the names of students who had not applied for the certificate which the accused did not know and the endorsement of the railway official may be issued was made thereon. The company issued the pass and arrested the accused. IT was held that the accused being himself entitled to travel at the refused rate was not guilty of any fraudulent intention obtained a certificate from a Deputy Inspector of School by stating untruly that he had passed an examination in certain year, when another person of the same name had passed, it was held that he had acted fraudulently within the meaning of section 415, and was guilty of an offence punishable under this section. The ' mens rea ' on the part of the accused must be established before he can be convicted of an offence of cheating. Unless the complaint showed that the accused had dishonest or fraudulent Contd..........
/8/ intention at the time the complainant parted with the money. IT would not amount to an offence under section 420 and it may only amount to breach of contract. In order to constitute the offence of cheating, the intention to deceive should be in existence at the time when the inducement was offered. Where the accused charge for cheating pleads negligence and irregularity. IT is for the prosecution to prove that the act was not negligent or irregular but was deliberate and intentional. The prosecution has to prove every ingredient of the offence in question beyond a shadow of reasonable doubt including the burden of proving the mental state of accused where ever intention or knowledge the burden of proving the mental state of the accused where ever intention or knowledge forms one of the ingredients of the offence and that the act of the accused was intentional"
16- In the case in hand the prosecution to prove the charges leveled against the accused examined substantial witnesses out of which PW1 Insp. J.S. Gill was the complainant in this case who in his examination made categorically statement to prove the ingredient of section 419 and 120 B of IPC. PW1 has also proved the document by exhibiting the same during the course of investigation. From the personal search of accused one slip, one Contd..........
/9/ passport, one receipt of and one air ticket of Malasia was taken into possession vide memo Ex. PW1/A and further proved the disclosure statement of accused vide Ex. PW1/B, preparation of rukka Ex. PW1/C, site plan Ex. PW1/D, seizure of booking paper mark A vide memo Ex. PW1/E and disclosure statement of accused Kuldeep vide Ex. PW1/F. PW1 has further deposed that accused Kulwant Singh was arrested vide memo PW1/H and Gulmail Singh vide Ex. PW1/I. The passport was Ex. P-1 and ticket Ex. P-2. There is no cross examination by accused Kulwant Singh as such testimony of PW1 is unrebutted and unchallenged. The other PW2 Inspector Sanjeev Kumar , PW3 Sardar Paramjeet Singh , PW4 V.K. Khanna , PW5 Insp. Rajender Pal , PW6 Santokh Singh and PW7 ASI Mahinder Singh are supporting witnesses who corroborated the testimony of PW1 and from the examination of said witnesses I do not found in rebuttal on behalf of accused Kulwant Singh as such the examination of PS on record are to be unrebutted. Further the accused Kulawant Singh in his statement recorded u/s 313 Cr.P.C but not given any specific reply except to simply denial the evidence led by prosecution with the submission that he has been falsely implicated int his case. There is no ocular evidence to prove the fact of falsely implication of accused in this case. To this effect I reply upon Section 103 & 106 of Indian Evidence Act which provides as under :-
Contd..........
/10/ "103 Burden of proof as to particular fact:- The burden of prof as to any particular fact lies on the person who wishes the Court to believe in its existence, unless it is provided by any law that the prof of that fact shall lie on any particular person.
Illustration
(a) A prosecutes B for theft, and wishes the Court to believe that B admitted the theft to C. A must prove the admission. B wishes the Court to believe that, at the time in question, he was elsewhere. He must prove it."
"106. Burden of proving fact especially within knowledge :- When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him."
17- The accused Kulwant Singh has not made any statement with respect to the fixation of photographs on the pass port of the Mahinder Singh in connivance with accused Jarnail Singh and ticket of Malasia. PW6 Insp. Rajinder Pal who was postd as Immigration (FRRO) has deposed that on 8.7.93 and was performing duties of clearing officer in the arrival left wing of Imiigraion and during clearance of flight NO. 152, I cleared one person namely Contd..........
/11/ Mohinder Singh S/o Bhagat Singh holding PP NO. I-737466 with stamp Number W-12C issued to him. The stamp bearing NO. W-12 © within his signatures at P.A. In the passport Ex. P-1. IT is one of the crystal evidence on record which proved the charge levelled against the accused that the accused Kulwant Singh has made preparation to go abroad in the name of some other person by personating himself as Mahinder Singh with the criminal conspiracy of the other co accused.
18- To come to the ultimate Goal from the evidence led by the prosecution as well as statement of accused recorded u/s 313 Cr.p.C and other material document prepared during the course of investigation, the testimony of all the prosecution witnesses are corroborated, trustworthy and acceptable. There is no other evidence to disbelieve them. The evidence led by the prosecution has ring of truth and which cannot be discarded by stretch of imagination.
19. In view of the aforesaid discussion and facts & circumstances of the case , I come to the conclusion that prosecution successfully proved its case against the accused as such accused is liable to be convicted. Accordingly accused Kulwant Singh S/o Kamikar Singh is hereby convicted for offence punishable U/s 419/120B IPC.
ANNOUNCED IN THE OPEN COURT TODAY 1.5.2008 (SATINDER KUMAR GAUTAM) METROPOLITAN MAGISTRATE DELHI IN THE COURT OF SH. SATINDER KUMAR GAUTAM METROPOLITAN MAGISTRATE : M.M. DELHI STATE VS. KULWANT SINGH ETC.
FIR NO: 381/93 P. S. NDLS ORDER ON SENTENCE Present: APP for State.
Accused Kulwant Singh on bail.
The accused has been convicted for offence punishable u/s 419/120B IPC vide separate judgment of this court dated 1.5.2008.
Heard on the point of sentence.
The accused/convict submits that he belongs to a very poor family. He further submits that he remained in J/C in this case for few days. He further submits that he is the only earning member of his family and prayed for a lenient view.
Considering the nature of the offence and socio, economic condition of the accused, accused is sentenced for the period of imprisonment already undergone by him during inquiry, investigation and trial of this case in this case with fine Rs. 10,000/- U/s 419/120B IPC. Case property be disposed off in accordance with law.
File be consigned to Record Room. Copy of judgment as well as of this order be given to the accused free of cost.
ANNOUNCED IN THE OPEN COURT TODAY 1.5.2008 (SATINDER KUMAR GAUTAM) METROPOLITAN MAGISTRATE DELHI