Delhi District Court
State vs . Mahesh Bhardwaj Etc. on 19 November, 2018
IN THE COURT OF MS. CHETNA SINGH: ACMM-02
(CENTRAL), TIS HAZARI COURTS, DELHI
STATE Vs. MAHESH BHARDWAJ ETC.
New Case No: 287730/16
FIR N0. : 405/04
U/S : 256/260/420/468/471/120-B IPC
PS : Railway Main Delhi
Date of Institution : 07.12.2004
Date on which case reserved for Judgment : 19.11.2018
Date of Judgment : 19.11.2018
JUDGMENT
1. FIR No. of the case : 405/2004
2. Date of commission of offence : 10.10.2004
3. Name of the accused :1. Mahesh Bhardwaj
S/o Sh. Sohan Lal,
R/o H.No. C-272 A, New Ashok
Nagar, Delhi-96.
2. Subhash Chand Thakur
Channa S/o Sh. Takur Dass,
E FIR No . 405/04 State Vs. Mahesh Bhardwaj etc. PS: RMD Page No. 1 of 18
R/o 511 A, Shiv Colony
Rewari, Haryana.
(Proceedings abated vide
order dated 02.07.2010).
3. Ram Sewak S/o Ram
Azad, R/o Zuggi Nehru Camp
E87, Patpat Ganj, Delhi.
(Discharged vide order dated
24.01.2012).
4. Raju Singh
S/o Sh. Jet Singh,
R/o C-81, South Ganesh
Nagar, Delhi. (Discharged
vide order dated 24.01.2012).
4. Offence complained of : 256/260/420/468/471/120-B
IPC
5. Plea of accused : Pleaded not guilty.
6. Final order : Acquitted.
BRIEF FACTS
1. It is allegation of the prosecution that on 10.10.2004, accused Mahesh Bhardwaj was in possession of a franking machine for the purpose of being used or knowing or having reason to believe that the same was E FIR No . 405/04 State Vs. Mahesh Bhardwaj etc. PS: RMD Page No. 2 of 18 intended to be used, for the purpose of counterfeiting postal stamps issued by the Government for the purpose of revenue and on 09.10.2004, accused had used as genuine the franked stamps from the above machine in his possession, knowing it to be a counterfeit of postal stamps issued by government for the purpose of revenue and accused cheated the railway mail department as well as its client Intime Spectrum Registry Limited (Unit Jindal Photo Limited) by putting unauthorized franking impression on their envelops, about 42000 in number carried in 22 bags and dishonestly induced or deceived them to deliver the said property to accused, which they had not done had they been not so deceived. And on or before 09.10.2004, accused made a false document i.e. List of Noida Post Office by getting its stamp on UPC photocopies, finding the same to be used for cheating and accused fraudulently or dishonestly used as genuine the said mail list and franked envelops, which accused knew or had reason to believe that the same were forged documents. Further on or before 09.10.2004, accused entered into a criminal conspiracy with co-accused S.T. Chanana (since expired) by agreeing with him to do the abovesaid illegal act by illegal means and thus committed offences u/s 256/260/420468/471/120-B IPC.
2. On the basis of a complaint, present FIR was registered. After carrying out the investigation, charge sheet was filed. Accused Mahesh Bhardwaj was summoned. After compliance of section 207 Cr. P.C, charge under Section u/s 256/260/420/468/471 IPC read with Section 120-B IPC was framed on 24.01.2012 against accused.
E FIR No . 405/04 State Vs. Mahesh Bhardwaj etc. PS: RMD Page No. 3 of 18 APPRECIATION OF EVIDENCE
3. In order to prove its case, the prosecution has examined eleven witnesses in total.
4. PW-1 Sh. Sanjeev Kumar deposed that the auto number UP- 16F-1794 make Vikram, TSR stood registered in his name which was taken on lease from Financier K. S. Motor. In the year 2004, the said vehicle was being driven by Ram Sewak. He had informed him that the vehicle had been hired for Rs.250/- to transport waste papers to Old Delhi Railway Station. On the next day in the morning , he came to know from his wife that Ram Sewak had been arrested and his vehicle had also been seized.
This witness was cross-examined by Ld. defence counsel, wherein he stated that he is not aware about the facts of the case and does not who hired the said auto.
5. PW-2 Sh. D.K. Vashist deposed that in the year 2004, he was posted as an Assistant in Mail Branch. His duty was to receive mails. On the day of incident his duty timings were from 18.00 hours to 6.40 hours. Inspector Achche Khan instructed him to show first to him any mail received from any private vehicle. On the day of incident mail was received through a private tempo and he showed the mail list to Inspector Achche Khan. The Inspector showed the said list to our Superintendent Sh. Saheb E FIR No . 405/04 State Vs. Mahesh Bhardwaj etc. PS: RMD Page No. 4 of 18 Singh. He came to his table and he did not know what happened thereafter. He cannot tell the registration number of the private vehicle in which the mail was brought to the office. He did not know the name of driver of the said vehicle. He deposed that the bags were opened and all were containing forged frankings on the envelopes. He deposed that those persons were namely Mahesh Bhardwaj, Raju Singh and Ram Sewak and he correctly identified them in the court.
This witness was cross-examined by Ld. APP for State as he was resiling from his earlier statement. During cross-examination, he stated that the bag containing the envelope was not opened and checked and he correctly identified accused Mahesh Bhardwaj. He admitted that accused Mahesh Bhardwaj was arrested in the present case in his presence. However, the franking machine was not seized in his presence and even though he has signed the disclosure statement Ex.PW2/E, however, the same was not recorded in his presence and he had put his signature on being asked by the IO to do the same. He also stated that even though the seizure memo of franking machine Ex.PW2/F bears his signature at point A, however, the franking machine was not seized in his presence and he had put his signatures on the same on the asking of the IO. He also did not identify the case property shown to him.
6. PW3 Sahab Singh deposed that in the year 2004, he was posted at Delhi RMS as Superintendent (Sorting). On 09.10.2004, one three wheeler closed type had come to Delhi RMS with bags in it containing mails. The concerned staff found the mails suspicious when it E FIR No . 405/04 State Vs. Mahesh Bhardwaj etc. PS: RMD Page No. 5 of 18 was compared with the mail list, the date stamps were found that of Noida office but same were not properly stamped and name stamps were not there on the Mail list. Mr. D.K. Vashist, the concerned mail agent brought the same in the notice of Inspector Achchan Khan and both of them checked the mail list and thereafter both of them came to his office. Accused came to his office and disclosed his name as Mahesh Bhardwaj and he told him that the mails were sent and also franked by him. Accused also admitted his fault. He had made a complaint to the police and his complaint is Ex.PW3/A, bearing his signatures at point A. Accused was arrested. He correctly identified 22 plastic bags and envelopes produced by MHCM in the court as Ex.P1.
This witness was cross-examined by Ld. APP for State, wherein he stated that he cannot recollect the registration of the TSR in which the franked mails were being carried. He further stated that he did not accompany the police and accused Mahesh Bhardwaj to his office at South Ganesh Nagar from where the franking machine was recovered vide memo Ex.PW2/F. He identified his signature at point B on memo Ex.PW2/F, however, he stated that the franking machine was not seized in his presence and his subordinate staff had accompanied the police for seizure of the franking machine. He further stated that his signature might have been obtained by the IO later on.
This witness was further cross-examined by Ld. defence counsel wherein he stated that he cannot say whether the name of the accused is Mahesh Bhardwaj or not.
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7. PW-4 Achchan Khan deposed that on 09.10.2004, he was posted as Inspector, RMS, Delhi. On that day at about 10/11 PM, he was present in his office when Mr. D.K Vashisht, Mail agent , came to his office and he told him that some mails were brought in a private vehicle and the mails looking suspicious. He procured the mail list from Mr. Vashisht and checked it and to him also it looked suspicious. There they went to the office of Mr. Sahab Singh the then Superintendent (Sorting) and briefed the facts to him and mail list was also shown to him. The mails were brought in a TSR bearing No. UP-16F-1794.
This witness was cross-examined by Ld. APP for State wherein he stated that police never made any interrogation from him nor his statement was recorded. He denied the contents of his statement mark A and denied that the bags containing mails and the TSR were seized in his presence. Even though he identified his signatures on arrest memo and personal search memo of accused, he denied that accused made any disclosure statement in his presence, even though he identified his signatures at point C on disclosure statement Ex.PW2/E. He stated that the signatures may have been obtained by the police later on. He also denied his signatures on seizure memo Ex.PW2/C, Ex.PW2/D and Ex.PW2/F and stated that the same were not prepared in his presence.
This witness was not cross-examined by Ld. defence counsel despite opportunity being given.
8. PW5 ASI Baldev Raj deposed that on 10.10.2004, he was posted at PS RMD as Duty Officer and his duty timings were from 8.00 AM E FIR No . 405/04 State Vs. Mahesh Bhardwaj etc. PS: RMD Page No. 7 of 18 to 4.00 PM. On that day at about 10.30 AM, SHO handed over the rukka/Tehrir to him and he registered the present FIR. Copy of the complaint which is Ex.PW5/B, bearing his signatures at point A. This witness was not cross-examined by accused despite opportunity being given.
9. PW6 HC Ishwar Prasad deposed that on 10.10.2004, he was posted as MHCM at RMD. ASI Bhoom Singh has deposited the case property (22 bags) and samples (one pullanda containing four frank letter and one pullanda containing forged frank machine) seal of the present case duly sealed with the seal of BS. One TSR Vikram bearing registration no. UP-16F-1794 has also been deposited at malkhana. He had mentioned the same in register no. 19 at serial no. 2127. He further deposed that he brought the original register no.19 regarding the said entries and a register no. 21 regarding RC alongwith photocopy of the same is Ex.PW6/A (OSR) and photocpy of RC Ex.PW6/B (OSR).
This witness was not cross-examined by accused despite opportunity being given.
10. PW7 Sh. Pramod Kumar Chauhan deposed that on 09.11.2004, he was working as Manager (Secretariat) of Jindal Photo Ltd. He obtained the case property on superdari. The police officer had de- sealed the case property and taken out the dividend warrant which were inside the envelope. The same were handed over to accused on behalf of his company MS Roopam Marketing Pvt. Ltd. The said dividend warrants E FIR No . 405/04 State Vs. Mahesh Bhardwaj etc. PS: RMD Page No. 8 of 18 were of different name and place were against dispatched by way of Pay order no. 982412 dated 20.11.2004 in the favour of post master Sarojini Nagar which are Mark 7/A. This witness was not cross-examined by Ld. defence counsel despite opportunity being given.
11. PW8 Ct. Mahender Singh deposed that on 30.11.2004, he was posted as Ct. at PS RMD. He was handed over a sealed pullandas carrying a franking machine by MHCM and he took both the pullandas to FSL Rohini and deposited them there. After depositing the pullandas in FSL, he came back to MHCM and returned the copy of RC to him. Till the time two pullandas were in his custody, the same were not tampered.
This witness was not cross-examined by accused despite opportunity being given.
12. PW9 SI Narender Singh deposed that on 12.10.2004, he was posted as HC at PS ODRS from 8.00 AM to 8.00 PM. ASI Bhoom Singh informed him that accused was present at RMS Building. He alongwith ASI Bhoom Singh and HC Ishwari Prasad reached at the spot. Post officials handed over the accused namely Subhash Chand Thakur Das (since expired) to them. ASI Bhoom Singh interrogated accused. Thereafter accused was arrested vide arrest memo Ex.PW9/A, bearing his signature at point A and his personal search were conducted vide personal search memo Ex.PW9/B, his disclosure statement was recorded vide memo Ex.PW9/C as per which R.s15000/- and one visiting car (Roopam E FIR No . 405/04 State Vs. Mahesh Bhardwaj etc. PS: RMD Page No. 9 of 18 Marketing Private Ltd., C-81, South Ganesh nagar) was recovered seized vide seizure memo Ex.PW9/D, all bearing his signatures at point A and sealed with the seal of BS.
This witness was cross-examined by Ld. defence counsel wherein he stated that he had no knowledge as regards the proprietor of M/s. Roopam Marketing Pvt. Ltd. and the visiting card and Rs.15000/- were recovered from iron almirah at railway mail Seva building, Old Delhi Railway Station.
13. PW10 retired ASI Bhoom Singh deposed that 10.10.2004, he was posted as ASI at PS ODRS from 8.00 PM to 8.00 AM. SHO handed over a complaint and copy of FIR to him for further course of action. He met complainant Sahab Singh. D.K. Vasghisth and Inspector Achhey Khan in the police station. Complainant handed over 22 plastic bags containing forged blank envelope and gave serial No. 1 to 22 and sealed with the seal of BS which were seized . Complainant also produced one TSR bearing No. UP-16F-1794. Accused Raju Singh and Ram Sevak were arrested vide arrest memo Ex.PW10/A and Ex.PW10/B, both bearing his signature at point A respectively and their personal search were conducted vide memos Ex.PW10/C and Ex.PW10/D, both bearing his signatures at point A respectively. Disclosure statements of accused Mahesh was recorded vide memo Ex.PW2/E, bearing his signatures at point D and disclosure statements of accused Raju Singh and Ram Sevak were recorded by him vide disclosure memos Ex.PW10/E and Ex.PW10/F, both bearing his signature at point A respectively. Thereafter, he alongwith D.K. Vashisth, E FIR No . 405/04 State Vs. Mahesh Bhardwaj etc. PS: RMD Page No. 10 of 18 Sahab Singh and Inspector Achche Khan went to south Ganesh Nagar and recovered the franking machine from C-81, South Ganesh Nagar and seized the same vide memo Ex.PW2/F. He further identified his signatures on arrest memo/disclosure memo/personal search memo of accused Subhash Chander (since expired) at point B and also identified his signatures on seizure memo Ex.PW9/D at point B. He correctly identified the the case property Ex.P1, Ex.P2, Ex. P3 and Ex.P4.
This witness was cross-examined by Ld. defence counsel wherein he stated that the franking machine Ex.P1 was recovered from the house of the accused Mahesh Bhardwaj, however, no ownership proof of the said machinery/franking machine was found. He further stated that he recovered the amount of Rs.15000/- and visiting cards from accused Subhash Chand (since expired). He further stated that he did not see the dye of the franking machine or if the franking machine had any dye installed in it. During his cross-examination, he further stated that he did not remember the number of envelopes and the house from which the franking machine was recovered belonged to accused Mahesh Bhardwaj. However, he has not filed any document regarding the ownership of the house from where the franking machine was recovered. He further stated that no public persons were joined in the investigation by him and he is not aware as regards the place of purchase of franking machine by the accused Mahesh Bhardwaj. He further stated that he did not make any enquiry from Achhe Khan as regards the apprehension of the accused. He further stated that all the envelopes given to the accused for franking belonged to Jindal company and he did not recover any documents to connect the handing E FIR No . 405/04 State Vs. Mahesh Bhardwaj etc. PS: RMD Page No. 11 of 18 over of envelopes by Jindal company to the accused.
14. PW11 Inspector A.K. Singh deposed that on 13.10.2004, he was posted as SI/IC PP railway Shahdara, Delhi. Accused (correctly identified by witness in the court) were in custody and was taken on PC remand and they went to Mumbai in search of other co-accused persons but they were not found there. They returned to Delhi and accused was put into custody.
This witness was not cross-examined by accused despite opportunity given being.
15. Upon completion of Prosecution Evidence, statement of accused Mahesh Bhardwaj u/s 313 Cr. P.C was recorded on 01.08.2018 wherein the accused has pleaded innocence and he had opted not to lead any defence evidence.
16. I have heard the rival submissions and carefully perused the record.
REASONS FOR DECISION
17. In order to prove its case, the prosecution has examined eleven witnesses in total including the complainant, Sahab Singh, who was the superintendent (Sorting), Delhi Railway Mail Service (RMS).
18. It is pertinent to mention that at the outset proceedings qua E FIR No . 405/04 State Vs. Mahesh Bhardwaj etc. PS: RMD Page No. 12 of 18 accused Subhash Chand stood abated vide order dated 02.07.2010 and accused Ram Sewak and Raju were discharged vide order dated 24.01.2012, hence the evidence on record is required to be appreciated only qua accused Mahesh Bhardwaj. It is to be seen whether accused Mahesh Bhardwaj conspired with accused Subhash Chand (since expired) to deceive the complainant's department by counterfeiting postal stamps issued by the Government and by using the same for making a false document and using it.
19. Before appreciating the testimony of the above mentioned witnesses, it is necessary to list out the essential ingredient of Sections 420/120-B IPC, which are as follows:
Essential ingredients of Section 420 IPC are as follows:
(1) Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security;
(2) Or anything which is signed or sealed, and which is capable of being converted into a valuable security.
20. Now I move on to analyse the material available on record for commission of offence of criminal conspiracy punishable under Section 120B IPC.
E FIR No . 405/04 State Vs. Mahesh Bhardwaj etc. PS: RMD Page No. 13 of 18
21. The offence of criminal conspiracy is statutorily defined under Section 120A IPC. Section 120A IPC is reproduced herein for ready reference:-
Section 120A Definition of Criminal Conspiracy- "When two or more persons agree to do, or cause to be done-
(1) an illegal act, or (2) An act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy;
Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof. "
22. The necessary ingredients required to bring home charge for commission of offence of criminal conspiracy is enlisted herein as under:-
(A) That there should be an agreement between the persons who are alleged to conspire:
(B) That the agreement should be: (i) for doing of an illegal act, or (ii) for doing by illegal means an act which may not itself be illegal.
23. For the purpose of proving criminality and conspiracy, the prosecution had to show corroborative circumstances which would have helped the court in deciding that accused Mahesh Bhardwaj was in E FIR No . 405/04 State Vs. Mahesh Bhardwaj etc. PS: RMD Page No. 14 of 18 conspiracy with accused Subhash Chand (since deceased) to deceive the complainant. This cannot be decided from the perusal of the testimony of all the material witnesses. None of the witnesses for the prosecution have stated that accused Mahesh Bhardwaj conspired with accused Subhash Chand (since expired) for committing the offences for which he has been charged. There is merely recovery of Rs.15000/- and a visiting card from accused Subhash Chand (since expired) and there is nothing on record to connect the said recovery to the counterfeiting by accused Mahesh Bhardwaj. There is nothing on record to suggest that accused Mahesh Bhardwaj acted in furtherance of common intention with accused Subhash Chand to deceive the complainant's department. There is no covert and overt act that can be imputed to accused Mahesh Bhardwaj to his complicity in cheating the complainant's department.
24. Even otherwise the main witnesses for the prosecution being PW2 Sh. D.K. Vashisth, PW3 Complainant Sahab Singh and PW4 Achhe Khan have resiled from their original statements. They denied their signatures on the seizure memo of the franking machine. Per contra, IO/ASI Bhoom Singh had stated that PW D.K. Vashisth, Sahab Singh and Inspector Achhe Khan had gone with him to C-81, South Ganesh Nagar for recovery of the franking machine. None of the witnesses have stated that they went to the abovementioned address or that the recovery was made in their presence. PW4 Achhe Khan denied that his signatures were obtained on the disclosure statement of accused in his presence or that the disclosure statement of accused Mahesh Bhardwaj was recorded in his E FIR No . 405/04 State Vs. Mahesh Bhardwaj etc. PS: RMD Page No. 15 of 18 presence. He further denied that the seizure memo Ex.PW2/C and Ex.PW2/D were prepared in his presence.
25. The complaint Ex.PW3/A was given by PW3 Sahab Singh, however, he denied the suggestion by Ld. APP for State that he accompanied accused Mahesh Bhardwaj to South Ganesh Nagar for recovery of franking machine. Per contra, he stated that he subordinate staff had gone and he denied that the franking machine was seized in his presence.
26. Even though, if it is presumed for the sake of arguments that the franking machine was recovered from the accused Mahesh Bhardwaj, however, the IO has not placed on record any document to show that the machine belonged to accused Mahesh Bhardwaj or that the place from where the machine was seized belonged to accused Mahesh Bhardwaj. There is no document of ownership of either the machine or of the place of recovery to connect the same to accused Mahesh Bhardwaj. As per the investigation carried out, the franking machine was purchased in the name of one Dinesh Sharma from Telepost India and when he was found out/traced, it was revealed that the said Dinesh Sharma was suffering from mental ailment and his younger brother Ravi Sharma gave the statement that the franking machine had been handed over to Arun Kumar Singh qua whom a supplementary chargesheet was filed and he was later discharged vide order dated 24.01.2012. Thereafter, there is no document to connect how accused Mahesh Bhardwaj got the custody of the franking machine E FIR No . 405/04 State Vs. Mahesh Bhardwaj etc. PS: RMD Page No. 16 of 18 from Arun Kumar Singh and for what purpose.
27. It is the case of the prosecution that franking machine was recovered from the house of the accused Mahesh Bhardwaj, however, there is no explanation as to why no public witnesses were joined in investigation by the IO. The witnesses who accompanied the IO for recovery of the franking machine have also denied their presence at the time of recovery of the same.
28. It is the case of the prosecution that packets were given by Intime Spectrum Registry Ltd. (Unit Jindal Photo Ltd) to the accused. However, no document has been put on record by the IO as regards the authorization of the accused to frank the 22 bags containing the envelopes belonging to Intime Spectrum Registry Ltd. (Unit Jindal Photo Ltd). IO was cross-examined in this regard by Ld. defence counsel wherein he admitted that he did not recover any document to connect the handing over of the envelopes by the Jindal company to the accused.
29. Thus, mere recovery of franking machine allegedly from the possession of accused Mahesh Bhardwaj does not prove the case of the prosecution as alleged. Even recovery of the franking machine from the accused Mahesh Bhardwaj has not been proved. It has not been proved that the accused Mahesh Bhardwaj conspired with accused Subhash Chand (since expired) to cheat the complainant's department of revenue by counterfeiting postal stamps and using the same as a result of which E FIR No . 405/04 State Vs. Mahesh Bhardwaj etc. PS: RMD Page No. 17 of 18 charges u/s 256/260/420/468/471/120-B of IPC have not been proved against accused Mahesh Bhardwaj.
30. It has been held in case of Sadhu Singh V/s State of Punjab 1997(3) Crime 55 the Hon'ble Punjab & Haryana High Court :-
"In a criminal trial, it is for the prosecution to establish its case beyond all reasonable doubts. It is for the prosecution to travel the entire distance from may have to must have. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused."
31. As a cumulative effect of the abovesaid discussion, I am of the opinion that a reasonable shadow of doubt is cast upon the prosecution version. Accused Mahesh Bhardwaj is acquitted of the charge framed for the offences punishable u/s 256/260/420/468/471/120-B IPC levelled against him.
32. Ordered accordingly. Digitally signed CHETNA by CHETNA SINGH SINGH Date: 2018.11.20 Announced in the open court 17:03:18 +0000 on 19.11.2018 (Chetna Singh) Addl. Chief Metropolitan Magistrate-02 Central/THC/Delhi/19.11.2018 E FIR No . 405/04 State Vs. Mahesh Bhardwaj etc. PS: RMD Page No. 18 of 18