Delhi District Court
18. In Another Case Titled As Mousam ... vs . State Of West on 11 November, 2019
IN THE COURT OF METROPOLITAN MAGISTRATE-05 (SOUTH-WEST),
DWARKA COURTS, NEW DELHI
PRESIDED BY : SH. DEEPAK VATS
STATE V REHAN AND OTHERS
FIR No. 312/02
Police Station: VIKAS PURI
Under Section: 420/467/468/471/120B/34 IPC
Date of institution : 21.11.2002
Date of reserving : 02.11.2019
Date of pronouncement : 11.11.2019
JUDGMENT
a) Serial number of the case 7544/19
b) Date of commission of offence In the year 2002
c) Name of the complainant Sh. Umesh Rana
s/o Sh. Parvesh Rana
r/o WZ 60A Ground Floor,
Gali no. 9 Virender Nagar,
near Hari Nagar, Delhi.
d) Name, parentage and address 1. Mohd Arshad
of the accused s/o Sh. Abdul Sami
r/o D-110, Shaheen Bagh,
Jamia Nagar, New Delhi
2. Dinesh Chandel
s/o Sh. D. N. Chandel,
r/o A-23, Sector 55 Noida UP.
STATE V Rehan and Others PS : Vikas Puri FIR no. 312/02 1
3. Parmod
s/o Sh. Kalyan Das,
r/o Gali Pal Nagar Gangesh-
war Colony District Kashganj,
U.P.
4. Rehan
s/o Sh. Ghulam Jilani
r/o B-30, Street No. 10,
Fazalpur, Mandawali Delhi-92
e) Offence complained of U/s420/467/468/471/120B/34
IPC
f) Plea of the accused Pleaded not guilty
g) Final order Acquitted
h) Date of final order 11.11.2019
BRIEF REASONS FOR THE JUDGMENT
1. Briefly stated, the case of the prosecution is that in the year 2002 in Delhi all accused persons Rehan, Dinesh, Parmod and Mohd Arshad in further- ance of their common intention had conspired to cheat the complainant by inducing him to deliver 17 inverters in lieu of the valuable securities i.e. cheque with no inten- tion to pay the same and by giving false address of company. Thus, it is alleged that accused persons committed offences punishable u/s 420/467/468/471/120B/34 IPC STATE V Rehan and Others PS : Vikas Puri FIR no. 312/02 2
2. The crux of the case of the prosecution is that on 07.08.2002 accused Rehan @ Suraj and Dinesh @ Karan in connivance with the remaining two ac- cused persons went to the shop of the complainant/ PW 1 Sh. Umesh Rana and bought 17 inverters 650 VA at the rate of Rs. 7000/- per piece and asked the com- plainant to deliver the said inverters at their company Omega Enterprises, Delhi Gate, Delhi. The said inverters were delivered by the complainant at the given ad- dress through his employees PW2 Hardeep Singh and PW 3 Ram Kishan, where a cheque of Rs. 1,19,000/- was handed over by the accused persons to PW Hardeep Singh. When the said cheque was presented for payment, the same was dishon- ored due to insufficiency of funds. Thereafter, when the complainant inquired about the company of accused persons i.e. Omega Enterprises, he came to know that there is no such company at the given address and thus the complainant al- leged that he was cheated by the accused persons regarding which a complaint was made by him to the PS Vikas Puri, which resulted into registration of the present FIR.
3. Thereafter, on 15.08.2002 IO came to know from a secret informer that two boys had been selling some stolen inverters at Ashok Vihar. IO took the com- plainant at Ashok Vihar where the complainant identified one of the said two boys as accused Dinesh @ Karan, the other boy was accused Parmod Kumar. Both the accused persons were apprehended along with ten inverters, which allegedly be- longed to the complainant. Thereafter, two accused persons took the IO and com- STATE V Rehan and Others PS : Vikas Puri FIR no. 312/02 3 plainant and other persons accompanying them to another place at Nehru Place, where they found other two accused persons i.e. Rehan @ Suraj and Mohd Arshad along with remaining seven inverters. The inverters were seized. Accused persons were arrested and other formalities regarding the investigation were completed. Thereafter, charge sheet was filed.
4. Charges were framed against the accused Rehan, Dinesh, Parmod and Mohd Arshad u/s 420/467/468/471/120B/34 IPC vide order dated 23.01.2009 to which they pleaded not guilty and claimed trial.
5. In support of its case, the prosecution has examined Seven witnesses.
6. PW 1 Sh. Umesh Rana was the complainant in the present case. He deposed on the lines of the complaint made by him. He also proved the complaint Ex. PW 1/A. He deposed that he put is signatures on the confession statements of accused Parmod, Dinesh and Rehand vide memos Ex. PW 1/C, Ex. PW 1/D and Ex. PW 1/E respectively. He proved the seizure memos of ten recovered inverters belonging to his shop, seven recovered inverters belong to his shop along with 14 other inverters of Microtek Company and ten UPS of Luminous Company and Rs. 85,000/- recovered from accused Parmod Kumar vide Ex. PW 1/F, Ex. PW 1/G and Ex. PW 1/H respectively. He also proved the arrest memos and personal search memos of accused Dinesh, Mohd. Arshad, Rehan and Parmod vide Ex. PW 1/I, Ex. STATE V Rehan and Others PS : Vikas Puri FIR no. 312/02 4 PW 1/J, Ex. PW 1/K, Ex. PW 1/L, Ex. PW 1/M, Ex. PW 1/N, Ex. PW 1/O, Ex. PW 1/P and Ex. PW 1/Q. He also proved the site plan Ex. PW 1/R.
7. PW2 Sh. Hardeep Singh is the employee of the complainant's shop. He deposed on the lines of the statement of PW 1. He deposed that after the delivery the bill was signed by said Karan Verma vide receipt Ex. PW 2/A.
8. PW 3 Ram Kishan was the employee of the complainant, who along with PW2 allegedly delivered 17 inverters at the premises of Omega Enterprises. He turned hostile and did not support the case of the prosecution at all. He failed to identify the accused persons. He stated that he has not met any accused persons at any point of time.
9. PW 4 HC Rajinder Singh had joined the investigation.
10. PW 5 HC Balwan Singh was the duty officer.
11. PW 6 HC Rajender and PW 7 Inspt. Sunil Kumar were the IOs of the present case. PW 7 has deposed that he obtained the specimen handwriting and signatures of accused Dinesh and Rehan which was seized by him vide seizure memo Ex. PW 7/A. They deposed regarding the investigation conducted by them. After completion of investigation charge sheet was prepared and filed the same be- fore the court.
STATE V Rehan and Others PS : Vikas Puri FIR no. 312/02 5
12. Thereafter PE was closed. Statement of accused persons u/s 313 Cr. PC was recorded in which they denied the allegations made against them and claimed that they have been falsely implicated. Accused persons opted not to lead defence evidence and thereafter matter was listed for final arguments.
13. Final arguments were advanced by the parties. I have heard the sub- missions of Dr Yadvendra Singh, learned Assistant Public Prosecutor for the State and Sh. R. K. Mishra and Mohd Dilshad Usmani Ld counsels for accused persons and perused the record carefully.
14. During the course of arguments, Ld. APP submitted that the prosecution has proved its case against accused beyond reasonable doubts. He further submitted the prosecution has proved by cogent and reliable evidence that the accused persons forged the cheque and cheated the complainant. Therefore, accused persons be convicted as per law.
15. Ld. Defence counsel for accused persons has submitted that there is no conclusive evidence against the accused persons. He has also argued that the prosecution has not proved the documents as per the Indian Evidence Act and thus accused persons are entitled to be acquitted.
STATE V Rehan and Others PS : Vikas Puri FIR no. 312/02 6
16. It is a cardinal principle of criminal jurisprudence that prosecution has to prove its case beyond reasonable doubt by leading reliable, cogent and convinc- ing evidence. Since, there is a strong presumption of innocence in favour of the ac- cused and rebuttal of the same always lies upon the prosecution. It is a settled proposition of criminal law that in order to successfully bring home the guilt of the accused, prosecution is supposed to stand on its own legs and it cannot derive any benefits whatsoever from the weakness, if any, in the defence of the accused. Ac- cused is entitled to benefit of every reasonable doubt in the prosecution story and any such doubt in the prosecution case entitles the accused to acquittal.
17. Similar observations were made by the Hon'ble Apex Court in Kaliram vs State of Himanchal Pradesh, AIR 1973 SC 2773 and held that accused is presumed to be innocent till charges against him are proved beyond reasonable doubt.
18. In another case titled as Mousam Singh Roy & ors. vs. State of West Bengal (2003) 12 SCC 377, it was held that burden of proof in criminal trial never shifts and it is always the burden of the prosecution to prove its case beyond reasonable doubt on the basis of acceptable evidence.
19. Main allegations against the accused persons are of offence of cheating and forgery u/s 420/467/468/471 IPC. The offence of cheating has been defined in Section 415 IPC. Section 415 IPC provides as follows :-
STATE V Rehan and Others PS : Vikas Puri FIR no. 312/02 7 "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, mind, reputation or property, is said to cheat"
20. In the case of Ramjas v State of UP AIR 1974 SC 1811 Hon'ble Supreme Court of India held that the ingredients to constitute the offence of cheating are :-
(i) There should be fraudulent or dishonest inducement of a person by deceiving him;
(ii) (a) The person so deceived should be induced to deliver any property to any person, or to consent that any person shall retain any property ; or (b) The person so deceived should be intentionally induced to do or omit to do anything which he would not do or omit if he were not so deceived ;
and
(iii) In case covered by (ii) (b), the act or omission should be one which causes or is likely to cause damage or harm to the person induced in body, mind, reputation or property.
21. Further, Hon'ble Patna High Court in the case of Hemant Kumar Das and Anr. v. State of Bihar and Anr. (Crl. Misc. no. 905/2018 decided on 21.08.2018) opined that the offence cheating is different from mere breach of contract. Hon'ble High Court observed as follows :-
" 33. In Dalip Kaur and Others V. Jagnar Singh and Anr. (2009) 14 SCC 696), the question of determination before the Supreme Court was whether STATE V Rehan and Others PS : Vikas Puri FIR no. 312/02 8 breach of contract of an agreement for sale would constitute an offence under Section 406 or Section 420 of the IPC. After examining the fact of the case and relevant Sections of the IPC, the Supreme Court held that an offence of "cheating'' would be constituted when the accused has fraudulent or dishonest intention at the time of making promises or representation. A pure and simple breach of contract does not constitute the offence of "cheating ''. It further held that if the dispute between the parties was essentially a civil dispute resulting from a breach of contract on the part of the appellants for non-refunding the amount of advance, the same would not constitute an offence of "cheating" or " criminal breach of trust"
22. Further the offence of forgery has been defined in Section 463 IPC and 464 IPC. Section 463 IPC and 464 IPC are reproduced hereinbelow :
"Section 463 :- Forgery Whoever, makes any false documents or false electronic record or part of a document or electronic record, with intent to cause damage or injury, to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed commits forgery"
Section 464 Making a false document :- A person is said to make a false document or false electronic record First - Who dishonestly or fraudulently-
(a) makes sign, seals or executes a document or part of a document;
(b) makes or transmits any electronic record or part of any electronic record ;
(c) affixes any electronic signature on any electronic record ; STATE V Rehan and Others PS : Vikas Puri FIR no. 312/02 9
(d) makes any mark denoting the execution of a document or the authenticity of the electronic signature. , with the intention of causing it to be believed that such document or part of document, electronic record or electronic signature was made, signed, sealed, executed, transmitted or affixed by or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed, executed or affixed ; or Secondly - Who, without lawful authority, dishonestly or fraudulently, by cancellation or otherwise, alters a document or an electronic record in any material part thereof, after it has been made, executed or affixed with electronic signature either by himself or by any other person, whether such person be living or dead at the time of such alteration ; or Thirdly - Who dishonestly or fraudulently causes any person to sign, seal, execute or alter a document or an electronic record or to affix his electronic signature on any electronic record knowing that such person by reason of unsoundness of mind or intoxication cannot, or that by reason of deception practised upon him, he does not know the contents of the document or electronic record or the nature of the alteration"
23. In the case of Jibrial Diwan v. State of Maharashtra ( AIR 1997 SC 3424 ) Hon'ble Supreme Court of India explained the law governing the offence of forgery in the following words.
".......Section 471 enjoin that whoever fraudulently or dishonestly uses as genuine any document which he knows or has reason to believe to be a forged document, shall be punished in the same manner as if he had forged such document. Section 465 provides that whoever commits forger, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. Now the words 'dishonestly' and 'fraudulently' have been defined respectively in Section 24 and 25 of Indian Penal Code. Dishonestly' has been defined to mean that whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to STATE V Rehan and Others PS : Vikas Puri FIR no. 312/02 10 another person, is said to do that thing 'dishonestly'. The word 'fraudulently' has been defined to mean that a person is said to do a thing fraudulently if he does that thing with an intent to defraud but not otherwise. This court in Dr. S. Dutt v State of UP, has explained the words 'intent to defraud' as being not synonymous with the words 'intent to deceive'. It requires some action resulting in a disadvantage which but for the deception the person defrauded would have avoided. Here by the delivery of forged letters, there is neither any wrongful gain to anyone nor any wrongful loss to another. The act of the appellant could not thus be termed to have been done dishonestly. Likewise the appellant cannot be said to have any intention to defraud because his action resulted in no disadvantage to anyone which but for the deception the person defrauded would have acted otherwise. The basic ingredients of the act done 'dishonestly' or 'fraudulently' being missing, the charge under section 471 read with 465 IPC was totally misplaced and he High Court fell into an error in convicting the appellant on those charges."
24. Reverting to the facts of the case, first of all the court deems it appropriate to look into the role of accused Parmod Kumar and Mohd Arshad in the alleged incident. Complainant i.e. PW1 and his employees i.e. PW 2 Hardeep and PW 3 Ram Kishan have not deposed anything against both the aforesaid accused persons except the fact that the accused Parmod Kumar was allegedly found with the accused Dinesh @ Karan at Ashok Vihar selling the 10 inverters and accused Arshad was found with the accused Rehan at Nehru Place with the remaining seven inverters. PW 1 has categorically stated in his examination before the court that he cannot identify accused Parmod Kumar and Mohd Arshad. Further in is cross examination he stated that accused Mohd Arshad never came to his shop, neither he gave any cheque for any transaction.
STATE V Rehan and Others PS : Vikas Puri FIR no. 312/02 11
25. Apart from this, only evidence against accused Parmod and Arshad are the testimonies of official witnesses/Police witnesses/IO who were not the direct/eye witnesses of the alleged cheating or forgery. Thus, their evidence has limited value so far as the ascertainment of role of the accused Pramod and Mohd Arshad in committing the alleged cheating or forgery is concerned. Thus, the first conclusion that this court has drawn is that there is very limited evidence against accused Parmod and Arshad in the present case. So far as the alleged recovery from the above two accused persons is concerned, the evidence on record is dealt with in the later part of the judgment to see whether the said recovery has been proved as per the law.
26. Now the role of the main accused persons i.e. Rehan and Dinesh, who allegedly visited the office of the complainant to purchase the 17 inverters, is to be seen in the present case.
27. As per the prosecution a forged cheque of Rs. 1,19,000/- drawn on ICICI Bank Limited, Connaught Place Branch, was issued by the accused Rehan on behalf of Omega Enterprises in favour of M/s Inverter City i.e. the firm of the complainant. The issuance of said cheque has been admitted by the accused persons in their examination under section 313 Cr. PC. However, as per the version of the accused persons the cheque was not honoured because the delivery of the 17 inverters was never made by the complainant. Thus, first of all, it has to be seen whether the prosecution has proved that the cheque was forged or that the STATE V Rehan and Others PS : Vikas Puri FIR no. 312/02 12 accused Rehan did not have any authority to sign the cheque.
28. Here the testimony of PW 7 i.e. IO Inspt Sunil Kumar bears significance. In his cross examination he has admitted that he does not remember whether he has taken the said cheque to the bank verification. He further stated that he did not remember whether he had inquired about the address of Omega Enterprises from ICICI Bank Ltd. Most importantly, he admitted that he did not know whether the said cheque was genuine or not. He further stated that he did not know whether the account from which cheque was drawn was genuine or not. Surprisingly, he stated that he tried to contact the signatory of the said cheque i.e. Mohd. Rehan Jilani but he could not find him. The said Mohd Rehan Jilani is an accused in the present case. Thus, this statement of the IO/PW7 suggests that he was not even aware that the alleged forged cheque was signed by the accused Rehan.
29. Further, no witness has been examined by the prosecution from ICICI Bank to prove that the said cheque was forged or that cheuqe was signed by the accused persons without having any authority to sign the same.
30. Further, the fact that the cheque was returned dishonoured for insufficiency of funds suggests that Omega Enterprises had maintained its account with ICICI Bank and that the said cheque was issued by the accused no.1 in the capacity of an authorized person to sign the said cheque because had this not been STATE V Rehan and Others PS : Vikas Puri FIR no. 312/02 13 the case the cheque would have been returned dishonoured with the remark that no such account/account holder exists or that the signatures have not matched. Thus, in the opinion of this court there is nothing available on file to prove that accused persons has committed any forgery in issuing the said cheque. Thus, allegations regarding the forgery under section 467/468/471 IPC against any of the accused persons are not proved.
31. For the offence of cheating, as is apparent from the charge framed against the accused person dt. 23.01.2009, the accused persons allegedly cheated the complainant by (1) taking the delivery of the inverters without having any intention to pay and (2) by giving false address of their comapany/office. Thus, to prove the alleged cheating prosecution was required to prove 2 things I.e. the accused persons did not intend to pay for the inverters at very inception of the said sale of inverters and that their company i.e Omega Enterprises did not have its office at Delhi Gate.
32. Here, first of all, it has to be seen whether the prosecution has proved that Omega Enterprises did not have its office at Delhi Gate at the time the alleged transaction of sale of 17 inverters was entered into by the accused persons. PW 1 in his testimony stated that he went to the office Omega Enterprises at Delhi Gate after delivery of the 17 inverters, however, he found that Omega Enterprise did not have its office there. In his cross examination, PW 1 stated that he was given a visiting card of the Omega Enterprises by the accused no. 1 and 2 Rehan and STATE V Rehan and Others PS : Vikas Puri FIR no. 312/02 14 Dinesh. The said visiting card has not been placed on record by the prosecution. Had that visiting card being placed on record, it could have been ascertained whether Omega Enterprises had its office at Delhi Gate or not. But for best known reasons known to the IO / prosecution the said visiting card has not been placed on record.
33. Further, PW 7 /IO has stated in his cross examination that he visited the office of Omega Enterprises at Delhi Gate. There he found various shops but he did not find any office of Omega Enterprises. PW 7/ IO was strenuously cross examined regarding his alleged visit to Delhi Gate to find whether Omega Enterprises had any office there. He stated that he did not remember when he visited the Delhi Gate. He further stated that he did not remember whether he recorded the statement of the persons available to show that there was no office at Delhi Gate. Further, in his cross examination dated 20.11.2018 he admitted that after going through the case diary could not tell the date on which date he went to the office Omega Enterprises, Delhi Gate. He further admitted that it is nowhere mentioned in the case diary that he went to Delhi Gate for investigation. Thus, the statement of IO/ PW7 that he went to Delhi Gate and found that Omega Enterprise did not have any office there does not inspire much confidence.
34. In the opinion of this court the fact that Omega Enterprise did not have its office at Delhi Gate at the time of alleged incident could have been easily proved by the prosecution by examining Bank officials of ICICI Bank, by examining any STATE V Rehan and Others PS : Vikas Puri FIR no. 312/02 15 person who was available at Delhi Gate when the IO allegedly visited the Delhi Gate or by examining the person who was actually in possession of premises bearing no. 251, 1st Floor, Delhi Gate ( i.e. the address of Omega Enterprise) at the time of alleged incident. All these evidences not being produced before the court by the prosecution. The only conclusion that may be drawn is that prosecution has failed to prove that Omega Enterprise did not have its office at Delhi Gate at the time of alleged incident.
35. Secondly, the prosecution had to prove that the accused persons did not have any intention to pay for the sale of 17 inverters before entering into the said transaction. Whether the accused persons did not have any intention to pay for the 17 inverters before the alleged transaction could be gathered only from the circumstances as proved by the prosecution in the present case. The said intention could have been proved by the prosecution by proving that Omega Enterprise did not have its office at Delhi Gate as stated by the accused persons to the complainant at the time of said transaction. It is already recorded that prosecution has failed to prove this fact. The intention could have further been proved by showing that the cheque of Rs. 1,19,000/- was forged or that accused Rehan was not authorized signatory of the said cheque or that Omega Enterprise on behalf of which the said cheque was issued was not having the account at ICICI Bank at the time of issuance of the said cheque. As discussed earlier, all these facts regarding alleged forgery of the said cheque has also not been proved by the prosecution. STATE V Rehan and Others PS : Vikas Puri FIR no. 312/02 16
36. Looking at the entire evidence place by the prosecution the only fact that the prosecution has proved are that the said sale of 17 inverters was actually made by the complainant to accused Rehan and Dinesh. Prosecution has further proved that the accused persons issued a cheque of Rs. 1,19,000/- in lieu of the aforesaid purchase of 17 inverters. Both these facts have actually been admitted by the accused persons in their examination u/s 313 Cr. PC. The accused persons took the defence that the complainant did not deliver the 17 inverters however, documents Ex. PW 2/A sufficiently proves that the delivery of 17 inverters was made by the complainant. The accused persons have not led any DE to prove that the 17 inverters were not delivered. Thus, the prosecution has also proved that the delivery of 17 inverters was made by the complainant and the accused persons failed to make the payment for the same. Beyond this prosecution has not proved anything i.e. that the accused persons forged the said cheque or that they cheated the complainant or that they did not have any intention to pay the complainant for the sale of inverters from the very inception. Prosecution has also failed to prove that the signature of accused Dinesh @ Karan at invoice Ex. PW 2/A are forged as the prosecution has not placed on record any FSL report though, as per the charge sheet the same was to be filed through supplementary charge sheet. The only fault of accused persons that the prosecution has proved is that they have failed to make the payment for the sale of 17 inverters. It is settled law breach of contract and cheating are two different things. It is further a settled that mere dishonour of cheque or a mere issuance of cheque without having sufficient balance in account does not amount to cheating. In the case of C. Saseendran Nair V. General STATE V Rehan and Others PS : Vikas Puri FIR no. 312/02 17 Manager ( Operations), State Bank of Travenkore (1996 Cri LJ 4289) Hon'ble High Court of Kerla observed as follows :-
Para no. 6 we are of the view that an offence under Section 138 of the Act need not necessarily take within its wings the offence of cheating as defined in Section 415 of the Indian Penal Code a cause of action for a criminal prosecution under Section 138 of the Act will arise, not on the date of issuance of the cheque, but only when the drawer of the cheque fails to pay the amount within the statutory period after he is called upon b the payee through a notice. A person sometimes may issue a cheque knowing that there is no sufficient fund in his account but still with a hope that he would be able to make arrangements with his bankers to honour the cheque as and when it is presented by the drawee. Section 138 is in fact incorporated by the Negotiable Instruments Act only to give more credibility for cheques and not to cover the areas which are already within the jurisdiction of criminal court for the offence of cheating "
37. Thus, the prosecution has failed to prove the alleged cheating and forgery by the accused persons. The investigation was focused on the alleged recovery of the inverters from the accused persons. This recovery in itself cannot prove cheating or forgery allegedly committed by the accused persons. Moreover, the prosecution has not even prove the alleged recovery from the accused persons. As discussed above it was the case of prosecution that two of the accused Dinesh and Parmod were found on 15.08.2002 at Ashok Vihar. However, PW 1 i.e. complainant has stated before the court in his examination that he found only one accused i.e. Dinesh @ at Ashok Vihar. He further stated that all the documents regarding investigation i.e arrest memos, seizure memos were prepared at PS. However, as per the IO/ PW 7, documents regarding arrest of accused Karan @ Dinesh and Parmod and seizure of 10 inverters from them i.e Ex. PW 1/J and Ex. STATE V Rehan and Others PS : Vikas Puri FIR no. 312/02 18 PW1/M and PW 1/F respectively prepared at Ashok Vihar and those pertaining to accused Rehan vide Ex. PW 1/L and Mohd Arshad vide Ex. PW 1/ K and seizure (vide seizure memo Ex. PW 1/G) of remaining 7 inverters from their custody were prepared at Nehru Place. Further, IO has admitted in his cross-examination that arrest memo of all the four accused persons do not mention the place of their arrest. Mentioning of place of arrest was important as two accused persons were arrested at Ashok Vihar and two accused persons were arrested Nehru Place. Further, vide seizure memo Ex. PW 1/F and Ex. PW 1/G, 10 and 7 inverters were respectively seized from accused persons. It need not be mentioned that serial number of all the 17 inverters mentioned in the above two seizure memos should have been different to show that 17 inverters were recovered however, inverters having serial no. A1-0B969-0702 is mentioned in both the seizure memos Ex. PW 1/F and Ex. PW 1/G by the serial number of inverter has been mentioned in two different seizure memos has not been explained by the prosecution. Most importantly, the 17 inverters allegedly recovered from the accused persons was never produced before the court. Inverters were produced only through Photographs Ex.P1 and P2 by PW 1. The said production of inverters through photographs Ex. P1 and Ex. P2 was objected to by Ld. Counsel for accused. In the opinion of this court the identity of inverters has not been proved sufficiently as the photographs nowhere show the separate serial numbers of all the inverters. By looking at the photographs Ex.P1 and Ex. P2 it can hardly be said that these are the photographs of the inverters allegedly recovered from the accused persons. In the light of above discussion the alleged recovery from the accused persons has STATE V Rehan and Others PS : Vikas Puri FIR no. 312/02 19 not been proved and possibility of planting the inverters upon the accused persons cannot be rule out.
38. To sum up, the prosecution has failed to proved the alleged cheating or forgery by the accused persons. Prosecution has also failed to prove the alleged recovery of the inverters from the accused persons. Accordingly, accused Rehan, Dinesh, Parmod and Mohd Arshad not guilty. Accordingly, they are acquitted of all the charges punishable under section u/s 420/467/468/471/120B/34 IPC.
39. Bail bonds under section 437A Cr. PC of accused persons already furnished.
40. Documents, if any be returned to the rightful person. Endorsement, if any be cancelled. Bail bonds stand canceled. Superdignama if any, be cancelled.
41. File be consigned to record room.
Announced in open Court on 11.11.2019. DEEPAK Digitally signed by
DEEPAK VATS
VATS Date: 2019.11.12 23:03:58
-0500
(DEEPAK VATS)
Metropolitan Magistrate-05 (South-West)
11.11.2019
STATE V Rehan and Others PS : Vikas Puri FIR no. 312/02 20