Delhi District Court
Duty" (Lake vs Simmons 1972 Ac 487). In Order That Money ... on 21 August, 2013
1
IN THE COURT OF MS. SAUMYA CHAUHAN,
METROPOLITAN MAGISTRATE, SOUTH EAST DELHI, SAKET
State v. Deepak Arora
FIR No. 326/10
PS Jamia Nagar
U/s 420/406 IPC
JUDGMENT
C C No. : 25/2/11
Date of Institution : 17.02.2011
Date of Commission of Offence : 01.07.2010
Name of the complainant : Naveen Verma
S/o Ram Dass Verma
R/o M-7, Sailing Club Road
Batla House, Jamia Nagar, Delhi
Name & address of the accused : Deepak Arora
S/o Suresh Arora
R/o Behind Gupta Sadan, Joshi
Bagh, Kalyan West, Mumbai
Offence complained of : 406/420 IPC
Plea of accused : Plead not guilty
Final Order : Convicted U/s. 420 IPC
Date of reserve for judgment : 16.08.2013
Date of announcing of judgment : 21.08.2013
BRIEF STATEMENT OF THE REASONS FOR THE DECISION
1. By this judgment, the court shall decide the present case under Section 406/420 IPC.
State v. Deepak Arora U/s 420/406 IPC FIR No. 326/ 10 PS Jamia Nagar 2
2. Briefly stated story of the prosecution is that on 06.09.2010 a complaint was filed by the complainant Naveen Verma who is the partner in M/s Newlee Publication having its office in Jamia Nagar. In the said complaint the complainant stated that he was running a business of publication. The accused Deepak Arora, who is a resident of Varanasi, Amit Arora and Sarla Arora were having business dealings with the complainant for last six months and had purchased books from the complainant on various occasions for their firm 'M/s Books and Books'. It was alleged that the said three persons had approached the complainant in his office on 25.06.2010 and stated that one of their firms was in Bhopal with the name of "Saras Enterprises" and they want to busy some books for the same. They stated that the books are needed by 01.07.2010. The complainant expressed his inability to supply the books so early. At this, they said that they would themselves pick up the books on 01.07.2010. On 01.07.2010 the accused Deepak Arora reached the complainant's office along with a truck and loaded all the books amounting to Rs.15,64,000/-. For the same, he gave a cheque of Rs. 5,00,000/- to the complainant and promised to make the remaining payment by 20.08.2010. However, when the accused failed to repay the remaining amount, the complainant went to Varanasi State v. Deepak Arora U/s 420/406 IPC FIR No. 326/ 10 PS Jamia Nagar 3 where he found that they have closed down their firm and were absconding. He lodged an FIR at PS Sigra, Varanasi under Section 419/420/406/34 IPC. The complainant tried to contact the accused many times but he did not pick the phone. When he tried to contact the address of the Saras Enterprises he came to know that there is no such firm on the said address. Even the cheque given by the accused was returned unpaid due to insufficient funds. On the basis of the said complaint, the FIR was registered. Investigation was carried out. The co-accused Amit Arora was arrested but discharged by order dated 17.03.2011 and Deepak Arora was arrested on 03.01.2011. Thus, the accused has committed an offence under Section 406/420 IPC.
3. Charge sheet was filed against the accused in the court. Documents were supplied to the accused and thereafter charge under Section 406/420 IPC was framed against him vide order dated 17.03.2011 to which he pleaded not guilty and claimed trial.
4. In order to prove the charge against the accused, the prosecution has examined 11 witnesses namely (1) Naveen Verma (2) SI Rajbir Singh (3)Ct. Pitambar (4) Shah Faisal (5) Ct. Pradeep (6) Ct. Dharmender (7) Ct. Vijay Singh (8) Mahesh Chand (9) Krishan Kumar Mathur (10) Ashish State v. Deepak Arora U/s 420/406 IPC FIR No. 326/ 10 PS Jamia Nagar 4 Gumat (11) ASI Omveer Singh.
5. PW-1 Naveen Verma deposed that he is a partner in the name and style of M/s Newlee Publication and was doing business along with Saras Enterprises, Bhopal. On 25.06.2010, the accused along with his brother Amit Arora and Sarla Arora met him and an agreement which Ex. PW1/A was executed between the accused and the complainant. An order of 100 x 24 books was placed by the accused, which is Ex. PW1/B to which invoice (Ex. PW1/C) of Rs. 15,64,500/- was generated. This order was to be fulfilled by 01.07.2010. The witness agreed to deliver the same and delivered it to the accused on the promised date. Accused handed over to him a cheque of Rs. 5,00,000/- which is Ex. PW1/D and promised to deliver the balance amount by courier. However, on presentation the cheque was returned unpaid for reason "insufficient funds". This incident was reported to the accused twice. The complainant himself went to Banaras to enquire into the matter and met the accused namely Amit Arora, Deepak Arora and Sarla Arora and they promised that the money would be delivered shortly. However, after two days he came to know that all the accused persons have left Banaras. He lodged an FIR in Banaras regarding promise to pay the balance amount. He also made a complaint State v. Deepak Arora U/s 420/406 IPC FIR No. 326/ 10 PS Jamia Nagar 5 in Delhi PS Jamia Nagar which is Ex. PW1/E.
6. The witness was cross examined by Ld. APP for State on the point of balance amount. During cross examination, the witness deposed that he could not recall whether he had sent any letter to the accused demanding the unpaid amount or not. He admitted that one letter was written to Deepak Arora but he could not remember the contents of the same. Letter is Mark 'P'. The witness deposed that no payment has been made till date. He identified the accused in the court.
7. In the cross examination, PW-1 deposed that he was having business terms with the accused Deepak Arora from last eight months, prior to the incident. This was the first time he had given the books in the name of Saras Enterprises. He deposed that he had signed the agreement Ex.PW1/A as partner of M/s Newlee Publication but could not recall whether alleged cheque bearing no. 605434 was mentioned in the same or not. The witness expressed ignorance as to whether he had filed any case under Section 138 NI Act for cheque bouncing. He denied the suggestion that the accused Deepak Arora is not a partner or proprietor of Saras Enterprises and no such firm exist. He denied the suggestion that he had a blank cheque with him and he had forged the signatures of the accused State v. Deepak Arora U/s 420/406 IPC FIR No. 326/ 10 PS Jamia Nagar 6 on the same and implicated him in the said case. He denied having accompanied the police to Jabalpur for the purpose of investigation. He admitted that he had supplied books to firm 'Books and Books' at Banaras shop earlier. He admitted that he had not received the complete payment of the said supply. He denied the suggestion that since the said payment has not been received that is why he had fabricated the documents/bill in the name of Saras Enterprises. He admitted that he had never issued any notice of demand to the accused before complaining to the SHO. He admitted that he had not issued any notice after the incident.
8. PW-2 SI Rajbir Singh deposed that on 06.09.2010 he was posted as Duty Officer at PS Jamia Nagar. He proved the FIR Ex.PW2/A and endorsement on Rukka Ex.PW2/B.
9. PW-3 Ct. Pitambar deposed that on 16.12.2010 he was posted at PS Jamia Nagar as constable. On that day, he along with ASI Ombeer and Ct. Dharmender went to Pune, Maharashtra for searching the accused namely Amit Arora. On 20.12.2010 Amit Arora was arrested from Deccan Hotel, Pune in his presence. He exhibited his arrest memo and his personal search as Ex. PW3/A and Ex. PW3/B respectively. He further deposed that the disclosure statement of the accused was also recorded State v. Deepak Arora U/s 420/406 IPC FIR No. 326/ 10 PS Jamia Nagar 7 vide memo Ex. PW3/C. Thereafter, they along with the accused returned back to Delhi PS Jamia Nagar.
10.During cross examination, PW-3 deposed that they had gone to Pune by road in scorpio car. He did not remember the number of the car or the owner of the car. He stated that they reached Pune on 19.12.2010 and stayed at PS Deccan of Pune District. He deposed that the Staff of the said PS had also gone for arrest of the accused along with them, however, he could not recall the name of the said staff of PS Deccan. He also did not remember as to whether the said staff had signed on the arrest memo and personal search memo of the accused. He could not recall whether any other public person were present at the time of arrest of the accused.
11.PW-4 Shah Faisal, a business partner of M/s Newlee Publication firm, deposed that on 25.06.2010 the accused namely Deepak Arora and Amit Arora along with their parents had come to their office at M-7, Sailing Club Road, Jamia Nagar, New Delhi. The witness along with Naveen Verma had made a deal with accused persons for books for an amount of Rs. 15,64,500/-. Accused Deepak had signed on the said agreement Ex. PW1/A on 01.07.2010 and on the same date they had delivered the said amount of books. Accused Deepak Arora had given a post-dated cheque of State v. Deepak Arora U/s 420/406 IPC FIR No. 326/ 10 PS Jamia Nagar 8 the said amount on 15.08.2010 which was dishonoured on presentation on 24.08.2010. During this time, they had contacted the accused Deepak Arora but he failed to make any payment. On 06.09.2010, his partner Naveen Verma made a complaint Ex. PW1/E to the police regarding non- payment by accused persons according to the agreement papers. He further deposed he had handed over the Original letter of term and condition, Duplicate copy of Sale Invoice dated 01.10.2007, Order dated 26.06.2010 of Saras enterpises, Returning Memo of Corporation bank and Original Cheque no. 605434 of Saras Enterpises, Photostate copy of Income Tax Return, photostate copies of documents related with FIR No. 228/10 of PS Sigra Varanasi, photostate copy of Rent Deed dated 30.06.2009, photostate copy of Partnership Deed of 'Newlee Publication' and Certificate of Firm Registration vide handing over memo Ex. PW4/A to the IO on 14.02.2011. He identified the said documents in the court. Said documents are Ex. PW1/A, Ex. PW1/B, Ex. PW1/C, Mark 4A to 4E and Mark P respectively.
12.PW-5 Ct. Pradeep deposed that on 03.01.2011, again said 2010, he was posted at PS Jamia Nagar. On that day, he along with ASI Ombeer, Ct. Vijay and two persons namely Shah Faisal and Ashish along with accused State v. Deepak Arora U/s 420/406 IPC FIR No. 326/ 10 PS Jamia Nagar 9 Deepak Arora went to Jabalpur. On 04.01.2010 they reached at Jabalpur. They went to the shop of a person Sanjeev Gupta in the Gorakhpur Market along with local police. Books given by the accused to the said person was checked in the godown but no book was recovered from there. Thereafter, they returned back to Delhi. IO recorded his statement.
13.This witness was cross examined by the Ld. APP after taking permission from the court. He admitted that Sanjeev Gupta had disclosed that the books which had been given by the accused had been sold from time to time and payment for the same was made. He admitted that the disclosure statement of Sanjeev Gupta was recorded vide memo Ex. PW5/A. Supplementary statement of the accused was recorded vide memo Ex. PW5/B. Recovery cum pointing out memo was prepared in his presence vide memo Ex. PW5/C.
14.During cross examination, PW-5 deposed that they went to Jabalpur by Scorpio car however he could not recall the number of the car. He could also not say whether it was a private vehicle or taxi or who is owner of the said car. He deposed that they had left for Jabalpur at about 5-6 pm, again said 7-8 pm. They reached Jabalpur in the evening of the next day. They stayed in a guest house, the name of which he could not recall. He State v. Deepak Arora U/s 420/406 IPC FIR No. 326/ 10 PS Jamia Nagar 10 could not say whether IO had collected any receipt of the stay in the said guest house. He deposed that they met Sanjeev Gupta on the next day but did not remember the time of the same. He voluntarily deposed that firstly they met with the local police and requested for their assistance. He did not know the name of the SHO or any other police official who had accompanied them. He did not go to the godown. He deposed that the disclosure statement was recorded in his presence. He deposed that during recording of disclosure statement by the IO, 2-3 public persons were present but he did not know the name of those public persons. He did not know if their statements were recorded or their signatures were taken on any document.
15.PW-6 Ct. Dharmender deposed that on On 16.12.2010 he was posted as Constable at PS Jamia Nagar. On that day, IO/ASI Omveer Singh received an information that the accused Amit Arora would come to Deccan Hotel in Pune to attend the deal on 20.12.2010. After permission he along with IO and Ct Pitambar reached at the Deccan Hotel in Pune on 20.12.2010. IO had informed the local police officers of the area about the raid. Thereafter, at about 11.30 am accused Amit Arora (already discharged) was apprehended by them. IO arrested the accused and conducted his State v. Deepak Arora U/s 420/406 IPC FIR No. 326/ 10 PS Jamia Nagar 11 personal search vide memo Ex. PW3/A and PW3/B. The accused was produced in the concerned court of the area. The accused was medically examined. IO got the address of the accused verified. He further deposed that the IO obtained journey remand of the accused till 24.12.2010. On 22.12.2010 he along with IO Ct. Pitambar and accused reached the PS Jamia Nagar. On 03.1.2011 the accused Deepak Arora was apprehended at the instance of secret informer. IO arrested the accused Deepak Arora and his personal search was conducted vide memo Ex. PW6/A and PW6/B. IO also recorded the disclosure statement of accused Deepak Arora vide memo Ex. PW6/C. Accused was produced in the court and his four days PC remand was obtained. Accused was medically examined. IO recorded his statement.
16.During cross examination, he deposed that the accused Deepak Arora was arrested near by the Aleena Masjid. He deposed that the secret informer not accompanied them to the spot. He admitted that at the time of arrest, some public persons were present but they refused to join the investigation. He denied the suggestion that the accused Deepak Arora has not been arrested from the Allena Majid, Jamia Nagar. He deposed that the accused was arrested at around 12.30 PM.
State v. Deepak Arora U/s 420/406 IPC FIR No. 326/ 10 PS Jamia Nagar 12
17.PW-7 Ct. Vijay Singh deposed that on 03.01.2011 he had joined the investigation with the IO/ ASI Omveer Singh and Ct. Pradeep. On that day, two other public persons namely Ashish and Shah Faisal had also joined the investigation. They along with accused reached at Jabal Pur on 04.01.2011. On 05.01.2011 the accused identified the place i.e Gupta Book Depot in the presence of local police and the said place i.e Gupta Book Depot was searched by the local police in the presence of the complainant. No case property was recovered from the spot. IO recorded the disclosure statement of the accused. On 07.01.2011 they returned back to Delhi and accused Deepak Arora was produced before the concerned court and he was sent to JC till 19.01.2011. IO recorded his statement.
18.During cross examination, he deposed that they had moved to Jabalpur in the evening of 03.01.2011 at around 7.00 PM by personal vehicle. The witness did not know about the ownership of vehicle nor did he remember the registration number of the same. He deposed that they reached at Jabalpur on 04.01.2011 at 4.00 PM again said at 06-07 PM. He did not remember the time when they reached at PS Gorakhpur. He did not remember the name of the local police who joined the investigation and State v. Deepak Arora U/s 420/406 IPC FIR No. 326/ 10 PS Jamia Nagar 13 was present at the Gupta Book Depot. He did not remember the exact time when they moved back to Delhi from Jabalpur on 05.01.2011. He denied the suggestion that neither they had gone to Jabalapur to investigate the matter nor any disclosure statement of the accused was recorded at Jabalpur. He deposed that they were total seven in numbers along with accused.
19.PW-8 Mahesh Chand, Assistant Manager, Corporation Bank, Branch nearby Purani Jail, Bulandshahar, UP. had brought the attested photocopy of the account statement of CBCA/01/000209, Preet Vihar Branch, in which the reason for dishonouring of the cheque no. 605434 was reported as "insufficient funds". Same is Ex. PW8/A. He also produced the certified account statement of the above said account and particular of the cheque is shown at point A1 and the same is proved as Ex. PW8/B.
20.During cross examination, he deposed that on 24.08.2010 he was posted at Aligarh. He deposed that he has no personal knowledge about the transaction. He admitted that in the memo Ex. PW8/B entry regarding deposition of cheque is not shown.
21.PW-9 Krishan Kumar Mathur deposed that he is a business partner in M/s Newly publications at M-7, Sailing Club Road, Batla House, Jamia Nagar.
State v. Deepak Arora U/s 420/406 IPC FIR No. 326/ 10 PS Jamia Nagar 14
He deposed that on 01.07.2010 they had delivered books to Deepak Arora for an amount of Rs.15,64,400/- and the said books were loaded in the presence of Deepak Arora. Deepak Arora had given a cheque of Rs. 5 Lacs which was later on bounced. Later on he contacted with Deepak Arora regarding payment but he did not pay the amount on the one pretext or another. Then, he along with his partners realized that they had been cheated by Deepak Arora. He deposed that on 01.07.2010 when delivery was given to Deepak Arora, his brother namely Amit Arora was also present there. On 14.02.2011 during investigation, he went to the PS Jamia Nagar where police officer of this case recorded his statement. He deposed that on the date of delivery i.e 01.07.2010 he had prepared one invoice of delivering the goods i.e invoice no. 130 and had signed as a authorised signatory. Witness had identified his signature at point A on memo Ex. PW1/C. He deposed that the same was also signed by Deepak Arora on behalf of Saras Enterprises in his presence.
22.PW-10 Ashish Gumat deposed that on 25.06.2010 Deepak Arora along with his brother Amit Arora and mother Sarla Arora came to the Jamia Nagar office of Newlee publication. At that time he was seated along with Naveen Verma who was a partner of the firm Newlee Publication. He State v. Deepak Arora U/s 420/406 IPC FIR No. 326/ 10 PS Jamia Nagar 15 deposed that in his presence, Deepak Arora and his associates had made a deal of Rs.15,64,500/- and had also stated that he had a firm in the name of Saras Enterprises in Bhopal, Madhya Pradesh. He had given an order on their letter Pad of Saras Enterprises. He deposed Deepak Arora had also given a postdated cheque of Rs.5,00,000/- to Naveen Verma and also assured that he would pay the due amount at the earliest, again said in the month of August. He deposed that later on he came to know that Deepak Arora did not make any payment to the Newlee Publication regarding above said deal. He also came to know that Deepak Arora and his family were also running a firm in Banaras in the name of 'Books and Books'. He also came to know that they had escaped from Banaras, and that they had cheated 17-18 other publication companies. He further deposed that in the month of November he was informed that Amit Arora was working in Aurangabad, Maharashtra in 'Viva Publication'. This information was given to the police. In December 2010 he along with police had gone to Pune where he had the information that a meeting of the Viva Publication was going to be held in the Deecan Hotel, Pune. There, Amit Arora was arrested in his presence. He had signed the arrest memo and personal search memo of Amit Arora i.e memo Ex. PW3/A and Ex. PW3/B. State v. Deepak Arora U/s 420/406 IPC FIR No. 326/ 10 PS Jamia Nagar 16
23.The witness did not remember the exact date when Deepak Arora was arrested by the police in his presence but deposed that it might have been 2-3 January of 2011. He had signed on the arrest memo and personal search memo of the accused Deepak Arora. He deposed that during investigation, Deepak Arora had disclosed that he had sold the supplied books to the 'Sangam Books and General Store' in Gorakhpur Market, Jabal Pur. Police recorded his disclosure statement in his presence vide memo Ex. PW6/C. Thereafter, he alone went to the Gorakpur Market, Jabal Pur, where police along with accused Deepak Arora met him. They went to the shop of Sangam Books and General Store and person namely Sanjeev Gupta met them. On searching the shop, no books of Newlee Publication were found in the shop. His statement was recorded by Police and is Ex. PW5/A.
24.Ld. APP was allowed to put leading question to the witness. In leading questions, witness admitted that disclosure statement of the accused Amit Arora was recorded in his presence vide memo already Ex. PW3/C. He further admitted that police had prepared report Ex. PW5/C regarding non recovery of books and he had signed the same. Police had seized copy of receipt of bill, letter of terms and conditions, letter to M/s Newlee State v. Deepak Arora U/s 420/406 IPC FIR No. 326/ 10 PS Jamia Nagar 17 Publication in his presence from the possession of Deepak Arora vide seizure memo Ex. PW10/A.
25.During cross examination, he stated that he had not seen as to how the accused persons had come to the office of M/s Newlee publication. He deposed that there are four partners in the Newlee publication namely Shah Faisal, Naveen Verma, K. K. Mathur and M. I. Shah. He deposed that he is not working in the Newlee publication but he used to come to the office of Newlee publication as he is a close friend of Mr. Shah Faisal. He deposed that Mr. Shah Faisal and Naveen Verma were also present at the relevant time. He further deposed that K. K. Mathur was also present at that time but he was present in another cabin. He stated that Mr. Deepak Arora had introduced himself for the first time in the office of Newlee publications on 25.06.2010 and prior to that no one knew the accused. He again deposed that Mr. Naveen Verma knew the accused Deepak Arora prior to this meeting as he used to supply books to his firm Books and Books. He deposed that all the four partners in the Newlee publication are partners in that firm since its establishment. He denied the suggestion that all the partners knew the accused person prior to 25.06.2010. He deposed that the books supplied to the accused were related to subject matter of State v. Deepak Arora U/s 420/406 IPC FIR No. 326/ 10 PS Jamia Nagar 18 drawing, computer, general knowledge etc. He admitted that letter head regarding purchase order bears the date of 26.06.2010. He denied the suggestion that no purchase order was given by the accused in his presence. He denied the suggestion that the letter head Ex. PW1/B has not been issued by the accused and the same was forged by the firm itself. He denied the suggestion that the accused had not given any cheque of Rs.5 Lacs as part payment. He denied the suggestion that the alleged cheque was actually a security cheque for the dealing of Books and Books enterprises.
26.He further deposed that the books were to be supplied in the Month of July 2010. The said books were supplied through truck brought by the accused, but he did not know the number of the said truck. He did not know whether any builty has been prepared for dispatching the goods. Witness deposed that he is engaged in the business of printing work having its office at Bulanshahar, UP. He denied the suggestion that Newlee publication also belong to him. He did not know whether any VAT has been charged on the said books or not. He did not know whether Deepak Arora sent the cheque regarding remaining payment or not. Mr. Shah Faisal had told him that the cheque was dishonoured. He came to know State v. Deepak Arora U/s 420/406 IPC FIR No. 326/ 10 PS Jamia Nagar 19 about the cheating done by the accused with 17-18 other publication companies at the time when he reached at the house of accused Deepak Arora and crowd gathered there was saying the same. He had told the IO that the accused Deepak Arora had cheated 17-18 other publication companies. The witness was confronted with his statement under Section 161 Cr.P.C where this fact was not recorded. He denied the suggestion that he had never visited the house of accused at Banaras where he met with the workers of the said 17-18 publications who were allegedly cheated by the accused thats why this fact was not recorded in his statement.
27.He further deposed that he came to know through Mr. Faisal that Amit Arora was working in Aurangabad, Maharashtra. This fact has been told to Mr. Faisal by his friend who was working in Viva Publications. However he did not know the name of the friend of Mr. Faisal. He admitted that this fact was told to him directly by the friend of Mr. Faisal.
28.He further deposed that he had gone to Pune in the month of January 2011 or December 2010. However he did not remember the exact date. He had gone along with Mr. Faisal by Qualis car and there was no other person with them. They reached Pune by 3.30 pm. The IO met him at Ferguesen State v. Deepak Arora U/s 420/406 IPC FIR No. 326/ 10 PS Jamia Nagar 20 College Road at Pune along with two other constables. On that day, he along with his friend Mr. Faisal stayed at the house of one Mr. Tarun Goel. He did not remember the exact address of Tarun Goel but his house was in Pashan area of Pune. He did not know as to where the IO and other two constables stayed. He further deposed that the next day they met the IO at 9.30-10.00 am at FC Road and they directly went to Deccan Hotel. IO did not take them to any other place. They reached the hotel at about 11.00-11.15 am. He did not know from which vehicle accused came at the hotel. He denied the suggestion that neither the accused Amit came at the hotel nor he had been arrested from the hotel. He did not remember who else had signed the arrest memo, personal search memo of the accused. He denied the suggestion that he did not know the name of other signatory of arrest memo and personal search memo as he was not present there. He denied the suggestion that the said two documents were signed by him at the PS at Delhi.
29.He further deposed that he came to know that Deepak Arora was in Delhi only after his arrest. He voluntarily deposed that he was called for identification. He was told by the IO that the accused Deepak Arora was arrested from the Khalilullah Masjid, Jamia Nagar. He admitted that the State v. Deepak Arora U/s 420/406 IPC FIR No. 326/ 10 PS Jamia Nagar 21 accused Deepak Arora was not arrested in his presence. He admitted that he had signed the arrest memo of accused Deepak Arora at the PS. He did not sign on any other paper in the PS. He denied the suggestion that the accused did not give any disclosure statement in his presence. He deposed that IO had only called him for identification of accused Deepak Arora as the partners of Newlee Publication were not available in Delhi. He deposed that he had gone to Jabalpur with his friend Mr. Faisal by Scorpio Car. He did not remember the date but stated that it was first week of January 2011. They had reached by 7.00 Pm. He did not know how the IO had reached Jabal Pur. They had met with the IO in the Guest House at around 8.30 pm, where he was staying. However, he did not remember the name of the same. The next day they went to Sangam Books & General Store, at Gorakpur Market, Jabalpur at 10.30-11.00 am. They had gone there with Faisal in his car. The IO had reached by the official vehicle along with local police. He did not remember how many police persons were in the said vehicle. He admitted that there were 2-3 public persons/ customers present at the shop but no request for joining the investigation was made by the IO to them in his presence. He admitted that books supplied by the Newlee Publication was not recovered from the shop of State v. Deepak Arora U/s 420/406 IPC FIR No. 326/ 10 PS Jamia Nagar 22 Sangam Books. He did not know whether any books supplied by Newlee publication were returned by the accused. He admitted that there was no document except disclosure statement of Sanjeev Gupta, Prop. Of M/s Sangam Books had been signed by him.
30.PW-11 ASI Omveer Singh deposed that on 06.09.2010 he was posted at PS Jamia Nagar as ASI. On that day, investigation of the present case was marked to him after registration of FIR. Thereafter, he searched for the accused persons namely Amit Arora and Deepak Arora. He searched him in Varanasi in his firm namely Books and Books and he also contacted with the Varanasi Police, Sigra in this respect. On 16.12.2010 he received a secret information that Amit Arora and Deepak Arora would participate in a meeting to be held in Deccan Hotel, Pune on 20.12.2010. On that information, he got permission for arresting the accused. He along with Ct. Pitamber and Ct. Dharmender went to Pune in the evening of 19.12.2010. This information was also given to the complainant who authorised one person namely Ashish for assisting them in Pune. He also met them in Pune in Deccan Hotel at about 11.00 am. At about 11.30 am, accused Amit was identified by Ashish and they apprehended him. On interrogation he disclosed the fact that he along with his brother was involved in the present State v. Deepak Arora U/s 420/406 IPC FIR No. 326/ 10 PS Jamia Nagar 23 case of cheating. He recorded his disclosure statement Ex. PW2/C. Accused Amit was arrested and his personal search was conducted vide memos Ex. PW3/A and Ex. PW3/B. He produced him before the concerned court for taking transit remand of four days and returned back at the PS Jamia Nagar along with apprehended accused person. He also searched for his brother in Mumbai on the address disclosed by the accused but could not find him there. On 03.01.2011 on the identification of the accused he had apprehended the accused Deepak Arora from Khalilullah Masjid. He also interrogated him and he disclosed his involvement in the present case. He recorded his disclosure statement Ex. PW6/C. Thereafter he arrested him and conducted his personal search vide memo Ex. PW6/A and Ex. PW6/B respectively. Complainant handed over him following three papers :-
1. Copy of the receipt of bill
2. Letter of term and condition.
3. Letter of M/s Newlee publication regarding return of damaged books.
31.He had seized these documents vide seizure memo Ex. PW 10/A. Copy of the bill is Mark 11A. Letter of term and condition is Ex. PW1/A. Letter of State v. Deepak Arora U/s 420/406 IPC FIR No. 326/ 10 PS Jamia Nagar 24 M/s Newlee Publication is Ex. PW4/A. He had produced the accused before the court and got four days PC remand of the accused. On the same date, he departed for Jabalpur for recovery of case property along with Ct. Vijay and Ct. Pradeep. He also directed Ashish to accompany them but he told him that he would be available there. Thereafter, on 05.01.2011 in the morning time they reached at Jabalpur, Gorakhpur Market at Sangam Book Depot situated in the area of PS Gorakhpur, Jabalpur and met with the owner of the Sangam book depot Sanjeev Gupta who disclosed that he had sold the books which came from Newlee Publications and he had already paid the accused Deepak Arora for this dealing. He recorded his disclosure statement Ex. PW5/A. He also prepared recovery and pointing out memo Ex. PW5/C. Thereafter, on 07.01.2011 he returned back at Delhi and accused was sent to JC. He had sent one cheque issued by the accused person Deepak Arora for FSL test. He also collected the result of FSL and prepared charge-sheet. The witness identified the accused Deepak Arora in the court.
32.During cross examination, he admitted that he had not visited personally the firm of the accused namely Books & Books at Banaras in order to search the accused or investigate the matter. He had sent his constable State v. Deepak Arora U/s 420/406 IPC FIR No. 326/ 10 PS Jamia Nagar 25 whose name he did not remember, to find out the firm as well as accused and to meet with Sigra police. However, witness again stated that he had not sent the constable at the stage of investigation. He deposed that he had only arrested accused Amit Arora from Pune and accused Deepak Arora was not found there. He had requested the local police of Deccan police station to join the investigation. However, he did not remember the name of the local police officials who had joined the investigation. He deposed that the representative of the complainant Ashish met them at Pune at around 11.00 am on 20.12.2010. He deposed that Ashish was the assistant of Newlee Publications. Mr. Ashish met them at the Deccan hotel. Prior to this meeting, Mr. Ashish met him in his office namely Newlee Publications on 16.12.2010. They had gone to Pune by Scorpio car. He reached at Pune on 19.12.2010 at around 6.00 pm. He informed the local police on the same day regarding the secret information. They had stayed in a private room came within the jurisdiction of PS Deccan, Pune. He went to the Deecan hotel on the next day at around 10.00 am. The secret informer did not accompany them in Pune and he did not disclose the personal appearance of the accused persons. He did not know as to how Ashish had reached at Pune. He recorded the disclosure statement of the State v. Deepak Arora U/s 420/406 IPC FIR No. 326/ 10 PS Jamia Nagar 26 accused at Deccan hotel. He requested the persons who were attending the meeting to join the investigation but they refused to join the investigation without disclosing their names and addresses. He had not given any written notice to them. He denied the suggestion that the accused had not given any disclosure statement and he obtained the signature of the accused on a blank paper. He further deposed that he left Pune on 20.12.2010 at about 2.00 pm and reached Delhi on 22.12.2010 at around 4.00 PM and produced the accused before the Ld. Duty Magistrate on the same date. They stayed in the night of 20.12.2010 at a place at the distance of 100-150 Km from the Mumbai. He did not remember the name of the said place. They reached Mumbai at around 6.00 pm and enquired about the accused persons at Joshi Bagh where the accused persons were residing on rent. Some local residents met them at Joshi Bagh near the house of the accused persons. He did not record the statement of any such public persons. He did not remember the house number where the accused was residing. He denied the suggestion that he had never visited Joshi Bagh, Mumbai nor make any efforts to find out the accused Deepak Arora. He deposed that he hd apprehended the accused Deepak Arora from Khalilullah Masjid on secret information. He denied the suggestion State v. Deepak Arora U/s 420/406 IPC FIR No. 326/ 10 PS Jamia Nagar 27 that he has improved his statement at this stage as he had not disclosed this fact in his examination in chief. He admitted that the secret informer did not tell them about the physical appearance of the accused Deepak Arora. The secret informer had not accompanied them at the time of apprehension of accused Deepak Arora. He had recorded the disclosure statement of accused Deepak at Khalillulah Masjid. He had requested the public persons at the spot but they refused to join the investigation without disclosing their names and addresses. He had not given any written notice to them. He denied the suggestion that the accused had not given any disclosure statement and he obtained the signature of the accused on a blank paper.
33.He deposed that they had gone to Jabalpur on 03.01.2011 at around 7.30
-8.00 PM by Innova Car. However, he did not remember the number of the car. He had taken the car on rental basis. Receipt of the same was not placed on record along with charge-sheet. He had accompanied with Ct. Vijay, Ct. Pradeep, driver as well as the accused to Jabalpur. Mr.Ashish met them at Jabalpur on 05.01.2011 in the evening time at about 4.00 pm at PS Gorakh Pur. He did not know as tp how they came at PS Gorakhpur, Jabalpur. They reached at Sangam Book Depot along with SHO PS State v. Deepak Arora U/s 420/406 IPC FIR No. 326/ 10 PS Jamia Nagar 28 Gorakhpur and complainant. He again deposed that he reached at Sangam Book Depot along with his team and accused and waited for the complainant to reached there on his own. He denied the suggestion that they never visited Jabalpur at Sangam Book Depot nor made any investigation at Jabalpur thats why no recovery of books was effected from the spot. He denied the suggestion that the accused never given any disclosure statement or made any pointing out of the spot. He denied the suggestion that he had taken the signature of the accused Deepak only on the blank papers to utilize the same for aforesaid purposes. They returned back to Delhi on 07.01.2011 at around 4.00 pm and produced the accused before the Ld. Duty Magistrate on the same date. He denied the suggestion that the accused has been falsely implicated in the present case.
34.Thereafter PE was closed. Statement of accused was recorded wherein accused pleaded innocence but did not lead any evidence in his defence. The accused has denied all the allegations alleged against him. The accused stated that he had placed an order with the complainant in the capacity of Manager of Proprietorship concern, books and books having its office at Varanasi. He stated that he is not concerned in any manner with State v. Deepak Arora U/s 420/406 IPC FIR No. 326/ 10 PS Jamia Nagar 29 'M/s Saras Enterprises'. He stated that payment for the order placed by his firm 'Books and Books' has already been made. He also stated that his signatures were forcibly taken on some blank papers and some other papers like agreement, order etc. He further stated that he had not signed on the cheque beairng no. 605434.
35.I have heard the arguments on behalf of Ld. APP for State as well as Ld. Legal Aid Counsel for accused.
36.Ld. Defence Counsel has submitted that the accused has been falsely implicated and true facts are that the dispute was already going on regarding returning of money between the complainant and the accused and the signature of the accused on cheque Ex. PW1/D are forged. He has relied upon the FSL report regarding the signatures of the accused on the cheque Ex. PW1/A and submits that no opinion could be given by FSL also. It is further submitted that the complainant has not filed any case under Section 138 NI Act. Further no recovery of the books or the alleged sale amount has been made. He has submitted that the person Sanjeev Gupta who has given disclosure statement Ex. PW5/A has not been made as prosecution witness as he is only a fictitious person. He also submitted that the testimony of PW-10 is not admissible being hearsay evidence. He State v. Deepak Arora U/s 420/406 IPC FIR No. 326/ 10 PS Jamia Nagar 30 also submits that as per the testimony of PW-8, no entry regarding deposition of the cheque in question has been made.
37.Ld. APP for state has submitted that the prosecution has proved its case beyond reasonable doubts. The accused has committed cheating and fraud against the complainant. He submits that despite the agreement Ex. PW1/A which bears the signature of the accused, the amount has not been paid by the accused. Also the cheque of Rs. 50,000/- got bounced. He submits that all the documents i.e invoice, cheque, bank return memo proved that the accused had taken the books to the tune of Rs.15 Lacs from the complainant and has malafidely not made the payment for the same.
38.Let us first discuss the necessary ingredients of the offences alleged against the accused are:-
39.Section 406 IPC prescribes punishment for criminal breach of trust and the same is defined under Section 405 IPC which is reproduced verbatim here:-
Whoever being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that State v. Deepak Arora U/s 420/406 IPC FIR No. 326/ 10 PS Jamia Nagar 31 property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits "criminal breach of trust".
40.The most important ingredient of Section 405 IPC is "entrustment of property to the accused". The expression 'entrustment' means that "the person entrusting, by some real and conscious volition has imposed on the person to whom he delivers the goods, some species of fiduciary duty" (Lake vs Simmons 1972 AC 487). In order that money be 'entrusted' to the accused person, it should be transferred to him in circumstances which show that notwithstanding its delivery , the property continues to vest in the prosecutor and the money remains in possession of the accused in capacity of a bailer only. This is further clarified by Illustration (b) to Section 405 IPC which is as under:-
"A is a warehouse keeper. Z going on a journey entrusts his furniture to A under a Contract that it shall be return on payment of stipulated sum for warehouse room. A dishonestly sells the State v. Deepak Arora U/s 420/406 IPC FIR No. 326/ 10 PS Jamia Nagar 32 good. A has committed criminal breach of trust".
41. In the case at hand, an agreement between the complainant and the accused for supply of certain books had been made and pursuant to the same, books were supplied by the complainant to the accused on 01.07.2010. On that day, the accused himself had got the books loaded in the truck and handed over a cheque of Rs.5 Lacs to the complainant. Thus, the books were handed over to the accused not in the manner of entrustment but as being sold to him. The accused did not hold the books in the capacity of a bailer. There was no agreement between the parties that the accused was to keep the said books with him only for a limited period and then return the same to the complainant as and when he demands the same. Hence, the necessary ingredients to attract the offence under Section 405 read with Section 406 IPC are not fulfilled. Hence, the accused is entitled to be acquitted under Section 406 IPC.
42.Section 415 of IPC defines cheating as under :-
"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, State v. Deepak Arora U/s 420/406 IPC FIR No. 326/ 10 PS Jamia Nagar 33 or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if her 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".
43.Thus the main ingredients to be proved to establish cheating are:-
1. Fraudulent and dishonest intention to deceive.
2. Inducement to the complainant to deliver any property or consent to deliver any property or to do or omit to do something which he would not otherwise do.
3. Such act/omission causes or is likely to cause damage or harm to the complainant in body/mind/reputation or property.
Explanation to Section 415 says that a dishonest concealment of facts in deception within the meaning of this section.
44.It has been held in "Dilip Kumar & Ors. V. Jagnor Singh & Ors." 2009(4) RCR (Criminal) 540 that an offence of cheating would be constituted when accused has fraudulent or dishonest intention at the time of making the promise. Pure and simple breach of contract does not constitute an offence State v. Deepak Arora U/s 420/406 IPC FIR No. 326/ 10 PS Jamia Nagar 34 of cheating. As our Hon'ble Supreme Court has held in "Kusum V. Ved Prakash Narayan" 2009(3)AD Delhi 78 that falling short of deceitful intention from very beginning cannot give rise to criminal prosecution for cheating. No ingredients are made out and it seems to be mere breach of contract. Mere failure to make payment is not sufficient to prosecute a person in the offence of the cheating (Anil Mahajan V. Bhor Industries Ltd 2006 (4) RCR (Criminal) 834.
45.It has been further held in the case of "Sarvjeet Mehto vs State through CBI" (2013 IV AD (CRM) (DHC) 17) that For establishing the offence under Section 420 IPC, the fraudulent and dishonest intention are a mandatory requirement which has to be proved on the part of the accused at the time of making promise or representation, however, for inferring guilt on the part of the accused it is not necessary that a false pretence should be in express words by the accused. It may be inferred from all the circumstances and the conduct of the accused."
46.In the case at hand, the fraudulent intention of the accused was present from the very beginning. This fraudulent intention can be gathered from his proposal given to complainant to buy books in the name of his another enterprise with the name of 'Saras Enterprises'. It is not disputed by either State v. Deepak Arora U/s 420/406 IPC FIR No. 326/ 10 PS Jamia Nagar 35 party that the accused was dealing with the complainant in the capacity of proprietor of his firm 'Books & Books' which was situated at Varanasi. However, the very fact that the accused asked the complainant to deliver books for his firm 'Saras Enterprises' at Bhopal which is not even in existence, in itself is a manifestation of the fraudulent intention of the accused. Not only this, to avoid detection, the accused himself took away the books in a truck from the office of the complainant. Further, the accused gave a cheque of Rs.5 Lacs to the accused which was returned unpaid for reason "insufficient funds". Despite repeated requests of the complainant, the accused did not make the payment to the complainant and ran away from Varanasi. All these circumstances indicate that the fraudulent and dishonest intention of the accused to wrongful loss to the complainant and wrongful gain to himself by taking away books amounting to Rs. 15 Lacs and not paying for the same was present from the very beginning. Ex. PW1/A, Ex.PW1/B, Ex. PW1/C and Ex. PW1/D prove the same.
47.The accused has taken the defence that his signature on cheque Ex.PW1/D was forged by the complainant as he had to make certain payments regarding their past dealings. However, the FSL report could not State v. Deepak Arora U/s 420/406 IPC FIR No. 326/ 10 PS Jamia Nagar 36 give any opinion whether the admitted signatures of the accused were any different from the one appearing on the cheque. Also, the cheque was returned unpaid not for the reason of difference in signature but for the reason insufficient funds. Also the fact that the alleged books were not recovered from the possession of the accused is immaterial as the 'Mens rea' of fraudulent and dishonest intention since the very inception has been proved.
48.The defence has not been able to shake the veracity or impeach the credibility of witnesses. There is no major contradiction in the testimony of prosecution witnesses.
49.In view of the above discussion, the court is of the view that the prosecution has proved its case beyond reasonable doubts against the accused under Section 420 IPC.
50.Accordingly, accused stands convicted under Section 420 IPC.
51.List for arguments on sentence on 29.08.2013.
Announced in the open court (SAUMYA CHAUHAN)
on 21st Day of August 2013 METROPOLITAN MAGISTRATE
SOUTH EAST/SAKET COURT/NEW DELHI
State v. Deepak Arora U/s 420/406 IPC
FIR No. 326/ 10 PS Jamia Nagar