Delhi District Court
State vs . Sunil & Anr. on 21 January, 2022
IN THE COURT OF SH. AKASH JAIN
ADDITIONAL CHIEF METROPOLITAN MAGISTRATE-01
PATIALA HOUSE COURTS, NEW DELHI DISTRICT:
NEW DELHI
FIR No. 297/08
PS : IGI Airport
U/s : 420/468/471 IPC & 12 PP Act
State Vs. Sunil & Anr.
JUDGMENT
1. S. No. of the Case : 46304/16
2. Date of commission of offence : 18.08.2008
3. Name of the complainant : Pawan Kumar, ACIO-II
Shift C, Immigration
IGI Airport, New Delhi
4. Name, parentage & address : (1) Sunil S/o Sh. Tilak Raj
of accused person (s) R/o H. No. 3614/41
Sant Nagar, Basti Sheikh
Jalandhar (PB)
(2) Rajesh Sharma
S/o Sh. Ramdev Sharma
R/o H. No. EG-905
Mohalla Govindgarh
PS Div No. 3, Jalandhar
(PB) (declared as PO vide
order dated 22.01.2013)
5. Offences complained of : U/s 420/468/471 IPC
& 12 PP Act
6. Plea of Accused : Pleaded not guilty
7. Order reserved on : 23.12.2021
8. The final order : Accused no. 1 Sunil
FIR No:- 297/08 State v. Sunil & Anr. Page No. 1 of 16
AKASH JAIN Digitally signed by AKASH JAIN
Date: 2022.01.21 16:41:43 +05'30'
Convicted
9. The date of judgment : 21.01.2022
BRIEF REASONS FOR THE DECISION OF THE CASE
1. In the present case, charge sheet was filed by the State under Sections 420/468/471 of Indian Penal Code, 1860 (hereinafter referred to as "IPC") and Section 12 of The Passports Act, 1967 (hereinafter referred to as "PP Act") against the accused persons namely Sunil and Rajesh Sharma on 07.03.2013. Accused Rajesh Sharma had already been declared proclaimed offender vide order dated 22.01.2013 by Ld. Predecessor Court prior to filing of charge-sheet in this case.
2. The case of the prosecution is that on the intervening night of 18/19.08.2008, accused no.1 approached at Counter Number 19 in Departure wing of IGI Airport for Immigration clearance to depart to Germany by flight number AF-147. However, on scrutiny of his travel documents, visa sticker of Germany affixed on page no. 13 of his passport was found forged. On verification from Germany Embassy, the said visa sticker (in blank) was found to be stolen from Germany i.e. Foreign Department of Heilbronn. Accused no. 1 was thus, charge-sheeted for committing forgery, dishonestly using forged visa and sticker and cheating the immigration officials by producing the forged Visa for immigration clearance.
AKASH Digitally signed
by AKASH JAIN
JAIN Date: 2022.01.21
16:42:01 +05'30'
FIR No:- 297/08 State v. Sunil & Anr. Page No. 2 of 16
3. On the basis of aforesaid charge sheet, Ld. Predecessor Court took cognizance of the offences punishable under Sections 420/468/471 IPC and Section 12 of PP Act against the accused persons. Accused no. 1 appeared before the Court on 18.05.2013 and documents were supplied to him in compliance of Section 207 Cr.P.C. Arguments on the point of charge were heard and vide order dated 07.09.2015, Ld. Predecessor Court framed charges under Section 417 r/w Section 468 IPC, 12 PP Act, Section 471 r/w Section 467 IPC r/w Section 511 IPC and 120B IPC against accused Sunil to which he pleaded not guilty and claimed trial. Thereafter, matter was fixed for prosecution evidence.
4. In support of its case, prosecution examined as many as twelve witnesses. PW1 is ACIO-II, MHA, Pawan Kumar, who deposed that on 18.08.2008, he was performing his duties as clearing officer at departure left wing, IGI Airport. On that day, accused no. 1 approached at his counter for immigration clearance and on scrutiny of his travel documents, PW-1 got suspicious about residence permit of Germany. He further deposed that on clarifications from the Documents Advisor of Germany Police, it was found that the said residence permit/visa sticker was stolen from the Embassy. He proved his complaint as Ex. PW 1/A and letter from Germany Embassy as Ex. PW 1/B.
5. PW-2 is Devender Bhalla who deposed that he is the Director of Janta Travel Pvt. Ltd. and that on 18.08.2008, air ticket of flight no. AI-7147 was issued by their department for travelling FIR No:- 297/08 State v. Sunil & Anr. Page No. 3 of 16 AKASH Digitally signed by AKASH JAIN JAIN Date: 2022.01.21 16:42:13 +05'30' on 19.08.2008 in favour of pax Sunil. PW-2 proved the said e- ticket as Ex. PW 2/A. He further proved letter written by him to SHO Police Station IGI Airport dated 21.08.2008 in respect of said e- ticket as Ex. PW 2/B.
6. PW-3 is Balbir Singh, who deposed that he runs a jewellery shop in the name of M/s Deluxe Jeweller. He further deposed that in the year 2008, mother of accused no. 1 came to his shop in order to sell her ornaments and an amount of Rs. 39,000/- (approx.) in two terms was paid by him to her.
7. PW-4 is Sanjeev Mohindru, who deposed that he sent a letter Ex. PW 1/4 to SHO Police Station IGI Airport regarding issuance of one way ticket to Dusseldorf, Germany in the name of accused no. 2 i.e. Mr. Rajesh Kumar on 16.08.2008. He marked photocopy of e-ticket as Mark-A and photocopy of passport of Rajesh Kumar as Mark-B.
8. PW- 5 is Bhopal Dutt, Senior Superintendent, who was authorized to depose in Court by Section Officer, (PV-II, CPV Division, MEA). PW-5 proved the letter bearing no. VII/407/6/03 dated 26.09.2008 along with copy of verification report in respect of resident permit/visa sticker in question. The authority letter is Ex. PW 5/A and letter dated 26.09.2008 of Section Officer, PV-II to SHO concerned along with verification report is Ex. PW 5/B (OSR). The complete photocopy set of above documents is Ex. PW 5/C (colly) (OSR) (running into 8 pages).
FIR No:- 297/08 State v. Sunil & Anr. Page No. 4 of 16 AKASH Digitally signed by AKASH JAIN JAIN Date: 2022.01.21 16:42:26 +05'30'
9. PW-6 is Inspector Ashok Kumar, who deposed that he received the investigation of this case after the transfer of SI Sunil on 16.03.2012. He further deposed that he got declared the agent accused no. 2 Rajesh Sharma as proclaimed offender in this case. He proved application for issuance of NBWs against the accused no. 2 as Ex. PW 6/A and application for issuance of process under Section 82 Cr.P.C. as Ex. PW 6/B.
10. PW-7 is ASI Vijender Singh, who deposed that on 19.08.2008, he was working as Duty Officer at Police Station IGI Airport and at about 02:40 PM, he received Rukka/Tehrir along with accused from Ct. Satvinder. He made endorsement on the said rukka which is Ex. PW 7/A and on the basis of the same, he got registered the present FIR Ex. PW 7/B (OSR). He further seized travel documents of the accused vide seizure memo Ex. PW7/C. After registration of FIR, copy of FIR and original rukka was handed over by him to SI Sunil Kumar and custody of accused was also handed over by PW7 to IO.
11. PW-8 is HC Laxmi Kant, who deposed that on 19.08.2008, he was posted at Police Station IGI Airport. He further proved the arrest memo of the accused Ex. PW8/A, personal search memo Ex. PW8/B and disclosure statement of the accused as Ex. PW8/C. PW-8 correctly identified the accused in Court.
12. PW-9 is Constable Satvinder, who deposed that on FIR No:- 297/08 State v. Sunil & Anr. Page No. 5 of 16 AKASH Digitally signed by AKASH JAIN JAIN Date: 2022.01.21 16:42:39 +05'30' 19.08.2008, he was posted at Police Station IGI Airport and on that day ACIO-II, Sh. Pawan Kumar had handed over him one passenger Sunil along with his travel documents and passport. He further deposed that thereafter he handed over the said accused to the duty officer along with his travel documents and passport. He correctly identified the accused in Court.
13. PW-10 is Retired HC Ram Singh, who deposed that on 22.08.2008, he was posted at Police Station IGI Airport and that he along with IO took the accused Sunil to Jalandhar. At the instance of accused, they reached at House No. 905, Govind Garh, Division-3, Jalandhar in order to apprehend the co-accused Rajesh. Father of agent/accused Rajesh was found at the given premises who informed that accused Rajesh had already left for Germany. PW-10 proved the pointing out memo Ex. PW 10/A and photograph of accused Rajesh as Ex. PW 10/B.
14. PW-11 is Inspector Sunil Kumar, who deposed that on 19.08.2008 he was posted at Police Station IGI Airport and that this case was marked to him for further investigation and during investigation he arrested accused vide arrest memo Ex. PW8/A. He further conducted personal search of accused vide memo Ex. PW8/B and recorded disclosure statement of accused i.e. Ex. PW8/C. While deposing on the lines of testimony of other PWs, PW-11 stated that he obtained four days PC remand of accused Sunil and took him to Jalandhar, Punjab. He recorded statement of Balbir Raj (Jeweller) to whom jewellery was sold by mother of FIR No:- 297/08 State v. Sunil & Anr. Page No. 6 of 16 AKASH Digitally signed by AKASH JAIN JAIN Date: 2022.01.21 16:42:51 +05'30' accused Sunil for giving the money to agent. He further deposed that through one notice under Section 91 Cr.P.C. he obtained passport details regarding accused Rajesh Sharma from one Jumbo Tourism Co. Pvt. Ltd. and also called report from Janta Travel Pvt. Ltd. He further proved letter of Jumbo Tourism Co. Pvt. Ltd. and report from Janta Travel Pvt. Ltd. as Ex. PW 4/A and Ex. PW 2/B respectively. He also deposed that he obtained passport verification report from RPO, Jalandhar and report of German Embassy from MEA.
15. PW-12 is A. K. Sharma, who deposed that on 15.01.2014, he was posted as Deputy Secretary (Home) (Passport), GNCT, Delhi. He further deposed that he conveyed prosecution sanction under Section 15 PP Act and that the same was granted by Hon'ble Lt. Governor of NCT of Delhi. The same is Ex. PW 12/A.
16. All the aforesaid witnesses got duly cross examined by Ld. counsel for accused and discharged. Thereafter, prosecution evidence was closed by this Court on 12.11.2021 and the matter was fixed for recording of statement of accused. Statement of accused under Section 313 r/w 281 Cr.P.C was recorded on 16.11.2021 wherein incriminating circumstances were put to the accused which he denied. Accused further did not choose to lead any defence evidence.
17. Thereafter, matter proceeded for final arguments.
FIR No:- 297/08 State v. Sunil & Anr. Page No. 7 of 16
AKASH Digitally signed by
AKASH JAIN
JAIN Date: 2022.01.21
16:43:11 +05'30'
Final arguments were heard on behalf of Ld. APP for State and the accused. I have carefully gone through the record.
18. It is a settled principle of law that in criminal proceedings, prosecution has to prove its case beyond reasonable doubt. In the present case, the accused is charged for the offfences punishable under section 417 r/w Section 468 & 120-B IPC & Section 471 r/w Section 467 r/w Section 511 IPC and Section 12 of PP Act. Before recording any finding on the facts, it is imperative to discuss the essential ingredients of each of the offences:-
Section 120 B IPC reads as under :-
120B. Punishment of criminal conspiracy.-
(1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence.
(2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both.
Section 417 IPC reads as under :-
417. Punishment for cheating.-
Whoever cheats shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.
FIR No:- 297/08 State v. Sunil & Anr. Page No. 8 of 16
AKASH Digitally signed
by AKASH JAIN
JAIN Date: 2022.01.21
16:43:26 +05'30'
Section 468 IPC reads as under :-
468. Forgery for purpose of cheating.-
Whoever commits forgery, intending that the 1[document or electronic record forged] shall be used for the purpose of cheating, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
Section 471 IPC reads as under:-
471. Using as genuine a forged document or electronic record.-
Whoever fraudulently or dishonestly uses as genuine any document or electronic record which he knows or has reason to believe to be a forged document or electronic record, shall be punished in the same manner as if he had forged such document or electronic record.
Section 467 IPC reads as under :-
467. Forgery of valuable security, will, etc.- Whoever forges a document which purports to be a valuable security or a will, or an authority to adopt a son, or which purports to give authority to any person to make or transfer any valuable security, or to receive the principal, interest or dividends thereon, or to receive or deliver any money, movable property, or valuable security, or any document purporting to be an acquittance or receipt acknowledging the payment of money, or an acquittance or receipt for the delivery of any movable property or valuable security, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
AKASH Digitally signed
by AKASH JAIN
JAIN Date: 2022.01.21
16:43:38 +05'30'
FIR No:- 297/08 State v. Sunil & Anr. Page No. 9 of 16
Section 511 IPC
511. Punishment for attempting to commit offences punishable with imprisonment for life or other imprisonment.-
Whoever attempts to commit an offence punishable by this Code with imprisonment for life or imprisonment, or to cause such an offence to be committed, and in such attempt does any act towards the commission of the offence, shall, where no express provision is made by this Code for the punishment of such attempt, be punished with imprisonment of any description provided for the offence, for a term which may extend to one-half of the imprisonment for life or, as the case may be, one-half of the longest term of imprisonment provided for that offence, or with such fine as is provided for the offence, or with both.
Section 12 of Passport Act, 1967 reads as under:-
12. Offences and penalties.--
(1) Whoever--
(a) contravenes the provisions of section3: or
(b)knowingly furnishes any false information or suppresses any material information with a view to obtaining a passport or travel document under this Act or without lawful authority alters or attempts to alter or causes to alter the entries made in a passport or travel document; or
(c) ***
(d) ***
(e) *** shall be punishable with imprisonment for a term which may extend to [two years or with fine which may extend to five thousand rupees] or with both.
****
19. It is the case of the prosecution that accused no. 1 approached at Departure left wing of IGI Airport on the intervening night of 18/19.08.2008 for immigration clearance to AKASH Digitally signed by AKASH JAIN FIR No:- 297/08 State v. Sunil & Anr.JAIN Date: 2022.01.21 Page No. 10 of 16 16:43:53 +05'30' depart to Germany and that on scrutiny of his travel documents, fake visa sticker/permit of Germany was found affixed on page no. 13 of his passport. It is further the case of prosecution that on verification from German Embassy, it was found that the visa sticker in question having series no. D-59614033 is one of the blank visa sticker stolen from Germany i.e. Foreign Department of Heilbronn. It is thus, argued by Ld. APP for State that accused no. 1 committed forgery and used forged visa on his passport, while attempting to depart to Germany.
20. It is primarily argued by Ld. Counsel for accused no. 1 that accused no. 1 was duped by the agent i.e. accused no. 2 and that he had no knowledge that visa sticker in question was stolen or forged. It is further argued that no investigation has been carried out by the IO to establish that visa in question was either stolen or forged by accused no. 1. It is further argued that visa in question was not sent to FSL to obtain the opinion about its genuineness and that real culprit is accused no. 2/agent Rajesh Sharma who provided the visa in question to accused no. 1.
21. Suffice it to say, the fact that accused no. 1 had arrived at IGI Airport on the intervening night of 18/19.08.2008 to depart to Germany by flight number AF-147 on the strength of visa in question is not in dispute. PW-1 who was the concerned immigration officer at IGI Airport proved his complaint Ex. PW 1/A and letter from document advisor of The Federal Police of Germany, Germany Embassy, New Delhi, written to Indian FIR No:- 297/08 State v. Sunil & Anr. AKAS Digitally signed by AKASH PageJAIN No. 11 of 16 H JAIN Date: 2022.01.21 16:44:09 +05'30' Immigration, AFRRO as Ex. PW 1/B. In terms of Ex. PW 1/B, the visa sticker in question no. D-59614033 belonged to a series that was blank stolen on 25th January, 2006 from Department of Heilbronn, Germany. Furthermore, PW-5 who is Senior Superintendent, PV-II, CPV Division, MEA duly proved Verbal Note dated 22.09.2008 which was issued by Embassy of the Federal Republic of Germany, New Delhi in response to MEA Note No. VII/407/6/03 dated 25.08.2008. The same is Ex. PW 5/C (colly) (OSR). As per Ex. PW 5/C, it is clear that visa sticker/permit in question is forged.
22. In terms of illustration (e) attached to Section 114 of Indian Evidence Act, 1872, this Court may presume that official acts wherein Ex. PW 1/B had been sent by German Embassy, New Delhi to Indian Immigration, AFRRO and Ex. PW 5/C had been forwarded by German Embassy to MEA, have been duly proved. Nothing substantial is brought on record by accused no. 1 to rebut this statutory presumption. The argument of Ld. Counsel for accused no. 1 that visa in question should have been sent to FSL by the IO to verify its genuineness is thus, not tenable.
23. Another defence raised on behalf of accused no. 1 was that even if visa in question is presumed to be forged, accused no. 1 had no dishonest intention or knowledge that the same was stolen or forged. Hence, he cannot be said to have used the forged Visa as genuine knowingly. The accused has tried to assume the mantle of an innocent victim stating he himself was cheated and FIR No:- 297/08 AKAS State v. Sunil & Anr.
Digitally signed by AKASHPageJAIN No. 12 of 16H JAIN Date: 2022.01.21 16:44:21 +05'30' deprived by the agent who arranged visa for him. However, this defence does not hold water in the facts and circumstances of this case and cannot efface criminality on the part of accused. It is the own case of accused no. 1 that he did not apply to the concerned authorities for obtaining visa but had admittedly handed over his passport to an unauthorized person. This suggests that the accused was aware that he may not be able to procure German Visa through legal means so he gave it to an unauthorized person to procure it through illegal means. Journey was arranged for the benefit of the accused no. 1, thus he is particeps criminis and he cannot absolve himself from the offence. Reasons are obvious; first and foremost involvement of unauthorized persons who have no official connection with the RPO for obtaining Visa and secondly acting upon the same i.e. intending to go abroad on the fake German Visa.
24. Knowledge is a state of mind that cannot be proved by way of direct evidence. Knowledge is to be gathered from attending circumstances proved on record. As already discussed above, prosecution has proved that Visa in question on page no. 13 of the passport of accused was forged. Now, accused had obtained a valid passport earlier and thus, it can be assumed that he was aware what was required to be done for obtaining a visa to travel abroad and for making an entry in the passport. The accused was not naive who could have been cheated by someone under the garb of obtaining Visa for him. This is not the case of defence that the agent to whom accused no.1 allegedly gave his passport was a AKASH Digitally signed by AKASH JAIN JAIN 16:44:41 +05'30' FIR No:- 297/08 State v. Sunil & Anr. Date: 2022.01.21Page No. 13 of 16 government official or a personnel of the Embassy and therefore, accused had reasons to believe that German Visa provided to him was genuine. Thus, it stands proved that accused no. 1 fraudulently or dishonestly attempted to use the forged German visa sticker, which he knew or had reasons to believe to be a forged document to depart to Germany.
25. Accused has also been charged for the offences punishable under Section 467 IPC. Now, it is well settled that visa cannot be considered as a valuable security as it does not create any legal right but is only a permissive document which allows a person to visit any country. Moreover, nothing credible is brought on record to prove that accused no. 1 had stolen the blank visa or committed forgery or affixed fake/false visa sticker on his passport. Not a single witness has been examined by the prosecution who had seen accused no. 1 committing forgery or getting the visa sticker forged from some third person. Thus, prosecution has failed to establish beyond reasonable doubt that accused no. 1 had committed forgery of visa sticker on his passport. The essential ingredients of Section 467 IPC are thus, not made out. It is though pertinent to note that Section 471 IPC envisages that a person convicted for the said offence is liable to be punished in same manner as if he had forged such document. Thus, in view of findings above, accused no. 1 is liable to be punished for offences under Section 471 IPC r/w Section 468 r/w AKAS Digitally signed Section 511 IPC. by AKASH JAIN Date: H JAIN 2022.01.21 16:45:00 +05'30' FIR No:- 297/08 State v. Sunil & Anr. Page No. 14 of 16
26. With respect to offence of cheating under Section 417 of IPC, first of all "cheating" as defined in Section 415 IPC has to be proved. The essential ingredients of offence of cheating are as follows:
a) deception of any person;
b) whereby fraudulently or dishonestly inducing that person to deliver any property to any person or to consent that any person shall retain any property; or,
c) intentionally inducing that person to do or omit to do anything which he would not do or omit to do if he was not so deceived;
d) which act or omission has caused or is likely to cause damage or harm to that person in body, mind, reputation or property;
27. In the present case, the accused no. 1 Sunil had approached the Immigration Department to travel to Germany on the basis of a forged German Visa and attempted to deceive the officials to permit him to depart to Germany on the basis of said forged Visa. Thus, accused no. 1 had clearly attempted to cheat the concerned Immigration authorities at IGI Airport and is liable to be punished for offences under Section 417 r/w Section 511 IPC.
28. No credible evidence qua hatching of criminal conspiracy between accused no. 1 and accused no. 2 could be brought on record by the prosecution, as such, no offence under Section 120-B IPC is made out. However, in lieu of findings above, it is clear that the visa sticker affixed on passport of accused no. 1 was fake/forged and that he had attempted to travel to Germany from India on the strength of said Visa. Since, accused no. 1 contravened provisions of Section 3 of Passports Act by attempting to depart to Germany without a valid travel FIR No:- 297/08 State v. Sunil & Anr. Page No. 15 of 16 AKASH Digitally signed by AKASH JAIN JAIN Date: 2022.01.21 16:45:28 +05'30' document i.e. genuine German Visa, essential ingredients of offence punishable under Section 12(1)(a) of Passports Act are proved by the prosecution against accused no. 1 beyond reasonable doubt.
Conclusion
29. Keeping in view the totality of facts, circumstances of the case and findings as above, it is held that accused no. 1 Sunil is convicted for the offences under Section 417 r/w Section 511 IPC, Section 471 r/w 468 r/w 511 IPC and Section 12 (1) (a) of Passport Act.
30. Arguments on the point of sentence be heard separately qua convict Sunil. Copy of judgment be supplied to convict free of cost.
31. Ordered Accordingly.
ANNOUNCED IN THE OPEN COURT DATED: 21.01.2022 AKASH Digitally signed by AKASH JAIN JAIN Date: 2022.01.21 16:45:42 +05'30' (AKASH JAIN) ACMM-01, NEW DELHI DISTRICT PATIALA HOUSE COURTS, NEW DELHI FIR No:- 297/08 State v. Sunil & Anr. Page No. 16 of 16