Delhi District Court
State vs . Paramjit Singh And Ors. on 30 January, 2019
IN THE COURT OF Ms. SHIVALI SHARMA
CHIEF METROPOLITAN MAGISTRATE:EAST
KARKARDOOMA COURT: DELHI
FIR No. : 382/04
PS : Shakarpur
u/S : 420/468/471/34 IPC
STATE Vs. Paramjit Singh and Ors.
JUDGMENT
A Unique ID No. of the 4996/16
case
B Name of the SI Shalender Tomar D-1248, P/S
complainant No.16950/66 SIT/ Crime Branch, P.P.
Amar Colony, Lajpat Nagar, Delhi.
C Name of the accused & 1.Paramjeet Singh s/o Sh. Gurbax
his parentage and Singh r/o VPO Aur Distt Nawashahar,
address Punjab.
2.Baldev Singh s/o Surat Singh r/o
Village Sandalpur, Tehsil Batala, Distt
Gurdaspur, Punjab.
3. Ravinder Singh s/o Sh. Kuldeep
Singh r/o 25, Satnam Nagar,
Jallandhar, Punjab.
D Offence Complained of 420/468/471/34 IPC
E Date of commission of In the year 2004
offence.
F Date of Institution 25.07.2004
G Offence Charged 420/468/471/34 IPC
H Plea of the accused Pleaded not Guilty
I Order Reserved on 30.01.2019
Date of Pronouncement 30.01.2019
K Final Order Acquitted.
FIR No.382/04 State vs. Paramjit Sing and Ors. Page1 of 18
BRIEF STATEMENT OF THE REASONS FOR THE DECISION PROSECUTION'S CASE 1 The case of the prosecution is that in the year 2002 accused Paramjeet Singh had cheated Gurmukh Singh @ Jainti by dishonestly inducing him to deliver his passport on the pretext of arranging visa for him for sending him abroad. In a similar manner accused Baldev Singh and Ravinder Singh had cheated Nishan Singh and also taken Rs.60000/- from him for the said purpose. The allegations are also that accused Baldev Singh and Ravinder Singh had forged two blank Canada Visa Form without serial no. intending that they shall be used of th purposes of cheating and had also used as genuine the said blank visa Canada Forms. Thereby accused persons are alleged to have committed offence s/s 420/468/471/34 IPC. 2 On the basis of these allegations and on the rukka Ex. PW 8/A, present FIR No. 382/04 PS Shakarpur (Ex. PW2/A) under section 420/468/471 IPC was registered on 26.05.2004. CHARGE 3 After investigation, charge-sheet under section 173 Cr. P.C was filed on 25.07.2004.
4 On the basis of the charge-sheet and after compliance of Sec.207 Cr.P.C., a charge for the offence punishable under section 420 IPC was framed against accused Paramjeet Singh and charges for offences u/s 420/34 IPC and sections 468/471 IPC were framed against accused Baldev Singh and FIR No.382/04 State vs. Paramjit Sing and Ors. Page2 of 18 Ravinder Singh and were read out to them to which they pleaded not guilty and claimed trial on 12.10.2007.
PROSECUTION EVIDENCE 5 To bring home the guilt against the accused prosecution has examined 10 witnesses in all:
6 PW 1 is Ct. Sanjeev who deposed that on 26.5.2004 he was posted at SIT Section Crime Branch and had joined a raiding party alongwith SI Shailender Tomer/ PW 8, SI Rambir/ PW 3, HC Hari Om/ PW 5, Ct. Om Prakash and Ct. Satinder. At about 11 am they reached outside Shipra Hotel at Laxmi Nagar T Point. HC Hari Om was made a decoy customer and as per directions of the IO he went inside the hotel and they had taken their position outside the hotel. At about 12.20 pm accused Ravinder alongwith one another sikh person came alongwith the decoy customer HC Hari Om and they were discussing something. Ct. Hari Om received some documents and on his indication the raid was conducted and said two persons i.e. accused Ravinder and Baldev were apprehended. On the search of accused Ravinder one Visa Canada Form was found in his upper shirt pocket which was blank with glittering stamps on it with hologram and three horses engraved on it and one person riding on them. The said blank Canada Visa Form was kept in an envelope and was sealed with the seal of ST. From the pant pocket of Ravinder, four currency notes of Rs.500/-
FIR No.382/04 State vs. Paramjit Sing and Ors. Page3 of 18 denomination were recovered which were given to him by the decoy customer HC Hari Om. The said notes were also kept in a separate envelope and sealed with the seal of ST. From the possession of accused Baldev Singh two Visa Canada Stickers of similar types as recovered from accused Ravinder were recovered. The same were also kept in a separate envelope and sealed with the seal of ST. Seal after use was handed over to SI Ramveer/ PW 2. IO prepared the rukka and got the present case registered through HC Hari Om/ PW 5. Thereafter accused Ravinder was arrested and personally searched vide memos Ex. PW 1/A and B and accused Baldev was arrested and personally searched vide memo Ex. PW 1/B and C. At the instance of accused Ravinder and Baldev accused Paramjeet Singh was apprehended from the house of Om Prakash at Mohan Nagar, Sagarpur, Delhi. Accused Paramjeet Singh presented one bag in which passport of master Gurmukh Singh (Ex. P1) was found which was seized vide memo Ex. PW 1/E. From the search of accused Paramjeet Singh one passport of Paramjeet Singh (Ex. P-2) was also recovered which was seized vide memo Ex. PW 1/F. Accused Paramjeet made disclosure statement Ex. PW 1/G. Thereafter, accused Paramjeet was arrested and personally searched vide memo Ex. PW 1/H1 and H2. His house was also searched vide nil memo Ex. PW 1/I. He identified all the accused persons. He identified the other case property i.e. the four currency notes of Rs.500/- each and the blank Canada Visa Stickers recovered.
FIR No.382/04 State vs. Paramjit Sing and Ors. Page4 of 18 7 PW 2 HC Ashok Kumar is a formal witness being the duty officer who proved the registration of present FIR as Ex. PW 2/A and endorsement made on the rukka Ex. PW 2/B. 8 PW 3/ Retd. SI Rambir Singh, PW 5/ SI Hari Om and PW 8/ Inspector Shailender Tomer are the three other members of the raiding party examined by the prosecution. Their testimonies are in consonance with that of PW 1 except for the contradictions which shall be pointed out at appropriate stage. 9 PW 3 also deposed that prior to the raid HC Hari Om/ PW 5 was made a decoy customer and was handed over four currency notes of Rs.500/- each by the IO/ PW 8 with the instructions to make a deal for visa sticker with accused Ravinder. Handing over memo in this regard Ex. PW 3/A was also prepared. He also deposed that one sticker having the words Canada Visa written on it and the four notes of Rs.500/- recovered from the possession of accused Ravinder were seized vide memo Ex. PW 3/B and two stickers having the words Canada Visa written on them without particulars recovered from accused Baldev Singh were seized vide memo Ex. PW 3/C. He also identified accused persons and the case property.
10 PW 5 also deposed that on 25.5.04 on the asking of the IO/ PW 8 pursuant to receipt of secret information vide D.D. No. 7, he had performed as a decoy customer. He was waiting alongwith the secret informer near Shipra Hotel, Laxmi Nagar. At about 8.10 pm one sikh person came in front of the hotel and the secret informer gave him a designated signal of waiving his FIR No.382/04 State vs. Paramjit Sing and Ors. Page5 of 18 hand over his head. That sikh person was accused Ravinder Singh and as told by secret informer he went to Ravinder Singh and told him that he was sent by Gurnaam Singh and he wanted to go to Canada and wanted Visa for Canada. On this accused Ravinder Singh told him that he would charge Rs.150000/- for the purpose of Canada Visa and asked him to give an advance of Rs.10000/-. He gave Rs.2000/- (4 currency notes of Rs.500/- each) which was handed over to him by the IO/ PW 8 vide memo Ex. PW 3/A to accused Ravinder Singh. Accused Ravinder had asked him to come on next day i.e. 26.5.04 and assured him of Canadian Visa against the payment of Rs.150000/-. He had returned to the office and had informed IO / PW 8 in this regard. Thereafter, he had again joined raiding party on 26.5.04 as a decoy customer. At about 12.10 pm accused Ravinder Singh had come to Shipra Hotel alongwith accused Baldev Singh and when he asked him about his Canada Visa, accused Ravinder answered in affirmative and asked for the payment of money of Rs.150000/-. On this, he had made the designated signal of waiving his hand over his head to the raiding party and thereafter accused persons were apprehended. He also identified his signatures on the disclosure statements of accused Ravinder and Baldev which are Ex. PW 5/A and 5/B and identified the accused persons as well as the case property.
11 PW 8 is the IO of the case who deposed about the proceedings of 25.5.04 in consonance of deposition of PW 5. He FIR No.382/04 State vs. Paramjit Sing and Ors. Page6 of 18 also deposed that on 25.5.04 he had gone to the spot alongwith informer and PW 5. He proved the rukka prepared by him as Ex. PW 8/A. He identified all the accused persons and case property.
12 PW 4 Sanjay Kumar is the Asst. S uperintendent from Regional Passport Office Chandigarh who produced the summoned record pertaining to issue of passport in the name of Nishan Singh s/o Charan Singh. He proved the relevant record as Ex. PW 4/B and certificate u/s 65B of Indian Evidence Act as Ex. PW 4/C. 13 PW 6 Satpal is LDC from Passport Office Jalandhar who proved the record of passport application of Gurmukh Singh as Ex. PW 6/B and certificate u/s 65B Indian Evidence Act as Ex. PW 6/B. 14 PW 7 Gurmukh Singh deposed that he is resident of district Hoshiarpur Punjab. Many of his relatives were living abroad and he was also interested in going to Canada. His Uncle namely Beant Singh, a resident of Delhi, had told him about accused Paramjeet Singh resident of Mohan Nagar, Sagarpur, Delhi who used to arrange visa for going abroad. In the year 2004 he met accused Paramjeet Singh who had assured to arrange visa for Rs.12 lakhs and had also taken his passport but no visa was arranged. He did not pay any money. He identified his passport bearing no.B5576353 issued by RPO Jalandhar which is proved as Ex. PW 7/P1. He identified the accused Paramjeet Singh.
FIR No.382/04 State vs. Paramjit Sing and Ors. Page7 of 18 15 PW 9 Inspector Mahinder Lal is the second IO of the case who deposed that on 26.5.04, after registration of FIR investigation was marked to him. He reached at the spot i.e. Shipra Hotel, Main Road, Shakarpur, Delhi where SI Shailender, HC Hari Om, Ct. Sanjeev alongwith some other staff and two accused persons were present. HC Hari Om handed over copy of FIR and original Tehreer to him. SI Shailender handed over the sealed case property alongwith seizure memos Ex. PW 3/B and C. Thereafter he arrested and personally searched both the accused persons namely Ravinder and Baldev Singh vide memo Ex. PW 1/B to E. He also recorded the disclosure statement of accused persons Ex. PW 5/A and B. Thereafter both the accused persons led the police party to Mohan Nagar,Sagarpur, Delhi where co accused Paramjeet Singh was found at the house of Om Prakash. He was also interrogated. He produced passport in the name of Gurmukh Singh which was seized vide memo Ex. PW 1/E. On his search his own passport was also recovered which was seized vide memo Ex. PW 1/F. He took police custody of all the accused persons for 5 days. During PC remand, one passport was produced by accused Ravinder Singh from the Almirah kept in a room of his house at Jalandhar Punjab which was in the name of Nishan Singh. It was seized vide memo Ex. PW 5/A. Search was made at the house of Paramjeet Singh but nothing was recovered and accordingly nil seizure memo Ex. PW 1/I was prepared.
FIR No.382/04 State vs. Paramjit Sing and Ors. Page8 of 18 16 On 15.7.04 he had taken the case property from the Maalhana PS Shakarpur and went to Canadian Embassy. The case property was produced before Sh. Milic, Migration Integrity Officer, Canadian High Commission. He examined the case property i.e. Visa and Stickers and found them to be fake. A report in this regard alongwith the case property was handed over to him in a sealed envelope. He seized the envelope vide memo Ex. PW 9/A and placed the report Ex. PW 9/B on the file. He identified the case property as well as accused persons and also the envelope of Canadian High Commission which is Ex. PW 9/C. 17 PW 10 HC Ramesh is MHC(M) PS Shakarpur who proved the register no.19 in which vide Madh No.2262 case property of the present case was deposited by the IO SI Shailender Tomar. The relevant entry is proved as Ex. PW 10/A. 18 In addition to the above evidence accused persons admitted the correctness of passport no.B5576353 issued in favour of Gurmukh Singh which is Ex. PW 7/P1 and accordingly relevant witness to prove the issuance of said passport was not summoned.
STATEMENT OF ACCUSED 19 Statement of accused persons u/s 313 Cr. PC has been recorded on 26.09.2018 where in the entire incriminating evidence proved on record was put to them. They denied all the allegations and stated that they have been falsely implicated in this case and were innocent. They stated that no visa or FIR No.382/04 State vs. Paramjit Sing and Ors. Page9 of 18 passport were recovered from their possession or at their instance. Accused Paramjeet Singh also stated that he did not know any Gurmukh Singh nor he had ever taken his passport for any purpose.
DEFENCE EVIDENCE OF ACCUSED 20 Accused persons did not lead any evidence in their defence. 21 Final argument have been heard. Record carefully perused.
Judicial Resolutions 22 It is a settled proposition of criminal law that prosecution is supposed to prove its case on the judicial file by leading cogent, convincing reliable and trustworthy evidence beyond reasonable doubts. The case of prosecution has to fall or stand on its own legs and it cannot drive any benefit from the weakness if any, in the defence of the accused. It is not for the accused to disprove the case of the prosecution and onus to prove the case against the accused beyond reasonable doubts never shifts and it always remains on the prosecution. Further, benefit of doubt in the prosecution story always goes to the accused and it entitles the accused to acquittal.
23 In the present case, the accused persons are charged for the offence of cheating punishable under Section 420 IPC. The brief law as laid down by Hon'ble Supreme Court and Hon'ble High Courts in respect of said offence is discussed herein under. 24 The essential ingredients of the offence of cheating are as FIR No.382/04 State vs. Paramjit Sing and Ors. Page10 of 18 follows :-
(i) deception of a person either by making a false or misleading representation or by dishonest concealment or by any other act or omission;
(ii) fraudulent or dishonest inducement of that person to either deliver any property or to consent to the retention thereof by any person to either deliver any property or to consent to the retention thereof by any person or to intentionally induce the person so deceived to do or omit to do anything which he would not do or omit to do if he was not so deceived; and
(iii) such act or omission causes, or is likely to cause damage or harm to that person in body, mind, reputation or property.
(In Mohd. Ibrahim vs. State of Bihar 2009 (8) SCC 751.) 25 The Penal Code defines 'fraudulently', an adjective form of the word "fraud", in section 25, as follows : "A person is said to do a thing fraudulently if he does that thing with intent to defraud but not otherwise".
26 The term "fraudulently" is mostly used with the term "dishonestly" which is defined in section 24 as follows: "Whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person is said to do that thing "dishonestly". To 'defraud' or do something fraudulently is not by itself made an offence under the Penal Code, but various acts when done fraudulently (or fraudulently and dishonestly) are made offences.
27 In Devender Kumar Singla v. Baldev Krishan Singla, (SC) FIR No.382/04 State vs. Paramjit Sing and Ors. Page11 of 18 2004 (2) J.T.539 : 2004 Cri.L.J. 1774, it has been observed that, " Section 420 deals with the cases whereby the deceived person is dishonestly induced to deliver any property to any person or to make, alter or destroy, the whole or any part of a valuable security or anything which is signed or sealed and which is capable of being converted into a valuable security. Section 415 defines "cheating". The said provision requires, (i) deception of any person (ii) whereby fraudulently or dishonestly inducing that person to deliver any property to any person or to consent that any person shall retain any property or (iii) intentionally inducing that person 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. Deception of any person is common to the second and third requirements of the provision. The said requirements are alternative to each other and this is made significantly clear by use of disjunctive conjunction 'or'. The definition of the offence of cheating embraces some cases in which no transfer of property is occasioned by the deception and some in which no transfer occurs. Deception is the quintessence of the offence. The essential ingredients to atract Section 420 are : (i) cheating; (ii) dishonest inducement to deliver property or to make, alter or destroy any valuable security or anything which is sealed or signed or is capable of being converted into a valuable security and the (iii) mens rea of the accused at the time of making the FIR No.382/04 State vs. Paramjit Sing and Ors. Page12 of 18 inducement. The making of a false representation is one of the ingredients for the offence of cheating under Section 420, (also in Bashirbhai Mohamedbhai vs. State of Bombay (AIR 1960 SC 979)."
28 It was also observed in Shivanaryan Kabra vs. State of Madras (AIR 1967 SC 986) that it is necessary that a false pretence should be made in express words by the accused. It may be inferred from all the circumstances including the conduct of the accused in obtaining the property. In the true nature of things it is not always possible to prove dishonest intention by any direct evidence. It can be proved by number of circumstances from which a reasonable inference can be drawn. 29 In another judgment G.V.Rao vs. L.H.V. Prasad and Others, 2000 (2) RCR (Crl.) 290, the Hon'ble Supreme Court of India held as follows:-
" As mentioned above, Section 415 has two parts. While in the first part, the person must "dishonestly" or "fraudulently" induce the complainant to deliver any property; in the second part, the person should intentionally induce the complainant to do or omit to do a thing. That is to say, in the first part, inducement must be dishonest or fraudulent. In the second part, the inducement should be intentional. As observed by this Court in Jaswantrai Manilal Akhaney vs. State of Bombay, AIR 1956 SC 575, a guilty intention is an essential ingredient of the offence of cheating. In order, therefore, to secure conviction of a person for the offence of cheating "mens rea" on the part of FIR No.382/04 State vs. Paramjit Sing and Ors. Page13 of 18 that person, must be established. It was also observed in Mahadeo Prasad vs. State of W.B., AIR 1954 SC 724, that in order to constitute the offence of cheating, the intention to deceive should be in existence at the time when the inducement was offered."
30 The accused persons have also been charged for offence su/s 468 IPC which provides punishment qua the offence of forgery for the purpose of cheating and section 471 IPC which punishes use of forged documents or electronic record fraudulently or dishonestly knowing or having reason to believe it to be a forged document. The forgery is defined in section 463 IPC as making of a false document 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.
31 In the present case, accused Paramjit Singh has been charged for having cheated Gurmukh Singh by dishonestly inducing him to deliver his passport to him on the pretext of arranging visa for sending him abroad; and accused Ravinder and Baldev have been charged for having cheated Nishan Singh in a similar manner and also for having received an amount of Rs.60000/- from him on the basis of dishonest inducement offered. While Gurmukh Singh is examined as PW 7, Nishan Singh could not be examined due to his demise. In the absence of testimony of FIR No.382/04 State vs. Paramjit Sing and Ors. Page14 of 18 Nishan Singh, there is no evidence on record against accused Ravinder and Baldev Singh of having cheated Nishan Singh for offence punishable u/s 420/34 IPC as charged against them. 32 As regards allegations qua accused Paramjit Singh for offence u/s 420 IPC, PW 7/ Gurmukh Singh had categorically deposed that he had not paid any money to the accused Paramjit for arranging visa for him. Accordingly there has been no delivery of property consequent upon dishonest inducement and thus the offence of cheating is not complete as one of its essential ingredients is not made out. Moreover, neither any wrongful loss has been caused to PW 7 nor any wrongful gain is received by accused Paramjit Singh in the transaction. Thus, from the evidence on record, I have no hesitation in holding that the offence u/s 420 IPC as charged against accused Paramjit Singh has not been proved beyond any reasonable doubt. He is accordingly entitled to acquittal for the said offence. 33 Accused Ravinder Singh and Baldev Singh are also charged with offences u/s 468 & 471 IPC. It is alleged that forged one blank visa sticker of Canada without serial number was recovered from accused Ravinder Singh which he had used as genuine for the purpose of cheating. Similarly two such blank Canada Visa Stickers without serial number were recovered from accused Baldev Singh.
34 In order to prove the recovery of the said forged visa stickers prosecution has examined 4 witnesses i.e. PW 1, PW 3, PW 5 and PW 8. All these witnesses are police officials and FIR No.382/04 State vs. Paramjit Sing and Ors. Page15 of 18 accordingly there testimonies have to be closely scrutinised before they can be relied upon for convicting the accused persons.
35 Interestingly, none of the recovery witnesses have deposed about the D.D. No. vide which the raiding party was formed and had departed for the raid on 26.05.2004. While PW 1 deposed that the raiding party had gone to the spot in the private car of HC Hari Om/ PW 5, as per PW 3 they had gone in the private maruti Car of IO/ SI Shailender Tomer/ PW 8. PW 5 deposed that they had gone on two four wheelers. PW 1 deposed that recovery was effected from the upper shirt pocket of accused Ravinder and from the possession of accused Baldev. As per the deposition of PW 5 the recoveries were effected on cursory search of both the accused persons, however, he did not specify from which pocket the recovery was effected. PW 5, on the other hand, deposed that one plain Visa and one passport was recovered from the two front pockets of wearing shirt of accused Ravinder which is contradictory to the testimony of other witnesses who have not deposed about recovery of any passport from accused Ravinder at the spot. As regards accused Baldev Singh, PW 5 deposed that one visa form was recovered from his pocket on cursory search which is again contradictory to the testimony of other recovery witnesses who have deposed about recovery of two blank visa forms from the possession of accused Baldev. There is also contradiction in testimony of PW 5 and 8 regarding the pocket of accused FIR No.382/04 State vs. Paramjit Sing and Ors. Page16 of 18 Ravinder from which Rs.2000/- were recovered. While PW 5 deposed that they were recovered from left side pocket of his wearing pant,as per testimony of PW 8 they were recovered from the right side pocket of his wearing pant. It is also interesting to note that PW 8 deposed about recovery of one Canadian Plastic Card alongwith one Visa Sticker from accused Ravinder and two canadian plastic cards alongwith two visa stickers from the possession of accused Baldev Singh whereas none of the other recovery witnesses have deposed about recovery of canadian plastic cards from any of the accused persons. In these circumstances it is apparent on record that there are various contradictions in the deposition of recovery witnesses on material aspects which are sufficient to cloud the entire recovery proceedings with doubt. Admittedly, the recovery proceedings are not witnessed or supported by any independent public witness. This is despite the availability of public wintess at the spot which was a public place being a hotel and the alleged recovery were made during day time at about 11 am. All these contradictions and absence of public witnesses create doubt on the recovery proceedings and the benefit of this doubt has to be given to the accused persons.
36 In these circumstances, it is evident on record that the prosecution has miserably failed to prove on record beyond any reasonable doubt that the alleged fake blank visa forms and plastic cards of Canada were recovered from the possession of the accused persons on 26.5.04. In the absence of clear and FIR No.382/04 State vs. Paramjit Sing and Ors. Page17 of 18 undisputed evidence on record regarding the said recoveries, the accused persons cannot be convicted for the offences u/s 468/471/471 IPC as charged against them. Accordingly I have no hesitation in holding that the prosecution has miserably failed to prove the offences u/s 468/471 IPC as charged against accused Ravinder Singh and Baldev Singh beyond any reasonable doubt.
37 In view of the reasons given above and over all evidence on record, I have no hesitation in holding that prosecution has miserably failed to prove the offences as charged against the accused persons beyond any reasonable doubt. Benefit of doubt has to be given to the accused considering the insufficient and contradictory evidence on record. 38 The accused persons are accordingly acquitted for offence as charged against them. Accused Paramjeet is acquitted for offence u/s 420 IPC. Accused Baldev and Ravinder are acquitted for offence u/s 420/34 IPC and Section 468/471 IPC as charged against them.
Digitally signed byANNOUNCED IN THE OPEN COURT SHIVALI SHIVALI SHARMA Location: East District Karkardooma Courts Delhi ON 30.01.2019 SHARMA Date: 2019.01.31 12:54:05 +0530 (SHIVALI SHARMA) CMM (EAST)/KKD/ 30.01.2019 Certified that this judgement contains 18 pages and each page bears my signatures.
(SHIVALI SHARMA) CMM (EAST)/KKD/ 30.01.2019 FIR No.382/04 State vs. Paramjit Sing and Ors. Page18 of 18