Delhi District Court
State vs . Prem Nath @ Prem Gill & Ors. on 8 April, 2021
IN THE COURT OF SH. AKASH JAIN
ADDITIONAL CHIEF METROPOLITAN MAGISTRATE-1
NEW DELHI DISTRICT, PATIALA HOUSE COURTS:
NEW DELHI
CC No:- 48714/16
FIR No. 324/11
PS : IGI Airport
U/s : 420/468/471/120B IPC & 12 PP Act
State Vs. Prem Nath @ Prem Gill & Ors.
JUDGMENT
1. S. No. of the Case : 48714/16
2. Date of commission of offence : 07.04.2011
3. Name of the complainant : ACIO-II,
H. B. Sharma
PIS No. 16960215
Shift-D, BOI, IGI
Airport, New Delhi
4. Name, parentage & address :(i) Prem Nath @ Prem
of accused Gill S/o Sh. Shinder Pal
R/o V.P.O. Kingra
Chowala, Block and
P. S. Bhogpur
Dist. Jalandhar, Punjab.
(ii) Gurkanwal Singh
S/o Sh. Gurdarshan
Singh, R/o H. No. 1063
V.P.O. Rayya
Teh. Baba Bakala
District Amritsar (PB)
(iii) Parwinder @
Parminder Singh
S/o Sh. Varinder Singh
R/o Flat No. 1-2
Ashirwad Appartment
Near S.B.I., Rani Bagh
Amritsar (PB) (Declared
absconder on 22.01.2013
5. Offences complained of : U/s 420/468/471/120B
IPC & 12 PP Act
FIR No:- 324/11 State v. Prem Nath @ Prem Gill & Ors. Page No. 1 of 20
6. Plea of Accused : Pleaded not guilty
7. Order reserved on : 05.03.2021
8. The final order : Accused no. 1 convicted
and accused no. 2
acquitted
9. The date of judgment : 08.04.2021
BRIEF REASONS FOR THE DECISION OF THE CASE
1. In the present case, charge sheet was filed by the State under Sections 420/468/471/120B of Indian Penal Code, 1860 (hereinafter referred to as "IPC") and Section 12 of The Passports Act, 1967 (hereinafter referred to as "PP Act") against the accused persons namely Prem Nath @ Prem Gill, Gurkanwal Singh and Parwinder @ Parminder Singh on 09.07.2013.
2. The case of the prosecution is that on 07.04.2011, pax/accused Premnath arrived as deportee from Malaysia on his passport no. H-6164944. On verification of his travel documents, the Malaysian visa affixed on page no. 9 of his passport was found doubtful. Thereafter, his passport was seized and sent to the concerned authority for verification of Malaysian visa. Vide letter no. (032)IMND/5/2 AJLD7(87) dated 18.07.2011, High Commission of Malaysia confirmed that visa sticker VB3042995 appearing on page no. 9 of passport of pax/accused Prem Nath respectively is not genuine. Since, pax/accused cheated the immigration officials by travelling on forged Malaysian Visa, a case under relevant sections of law was registered against him. Rukka in this case was prepared on 27.07.2011 after receipt of letter from FRRO and Embassy of FIR No:- 324/11 State v. Prem Nath @ Prem Gill & Ors. Page No. 2 of 20 UAE. During investigation, pax/accused Prem Nath disclosed that his journey was arranged by accused Gurkanwal Singh with the help of agent Parminder Singh. Accused Gurkanwal Singh was thus, apprehended at the instance of accused no. 1. Accused Parwinder Singh, though could not be traced, as such, he was declared absconder on 22.01.2013.
3. On the basis of the aforesaid charge sheet, Ld. Predecessor Court took cognizance of the offences punishable under Sections 420/468/471/120-B IPC and Section 12 of PP Act. Both accused persons (Prem Nath @ Prem Gill and Gurkanwal Singh) appeared before the Court on 08.11.2013 and copy of charge sheet and documents were supplied to them. Accused no.3 Parwinder @ Parminder Singh had been already declared absconder/proclaimed offender. Arguments on the point of charge were heard and vide order dated 05.05.2015, Ld. Predecessor Court framed charges under Section 420 r/w Section 468/471/467/120-B IPC against the accused no. 1 and 2 to which they pleaded not guilty and claimed trial. Thereafter, matter was fixed for prosecution evidence. It may not be out of place to mention that vide separate order dated 26.09.2018, additional charge under Section 12(1)(b) r/w Section 12 of Passport Act, 1967 was further framed against the accused persons by Ld. Predecessor Court to which they pleaded not guilty and claimed trial.
4. In support of its case, prosecution examined as many as 9 witnesses. PW-1 is Sh. Gurpreet who is brother of accused no. 1 Prem Nath. He correctly identified accused no. 2 FIR No:- 324/11 State v. Prem Nath @ Prem Gill & Ors. Page No. 3 of 20 Gurkanwal Singh in the Court and deposed that accused no. 2 assured to send accused no. 1 to Malaysia for consideration of sum of Rs. 1.05 lakhs and for that purpose they took loan and handed over the amount to accused no. 2. However, on landing in Malaysia, the Immigration department found Visa affixed on passport of accused no. 1 as forged and thus, accused no. 1 was deported back to India. During cross-examination by Ld. Counsel for accused no. 2, PW-1 stated that he did not have any documentary proof of payment made to accused no. 2, as it was made in cash.
5. PW-2 is Sh. Amarjeet Singh who deposed on the same lines of PW-1 and was cross-examined by Ld. Counsel for accused no. 2. During cross-examination, PW-2 stated that he did not remember date of payment of consideration amount to accused no. 2.
6. PW-3 is SI Ved Prakash, who brought official record of accused no. 1 bearing Sr. No. 5470 dated 03.09.2012 and passport no. H-6164944. During cross-examination by Ld. Counsel for accused no. 2, PW-3 affirmed that passport of accused no. 1 is genuine.
7. PW-4 is Hari Bilas Sharma, ACIO-I, IV FRT, Shastri Park, New Delhi, who deposed that on 07.04.2011, he was posted at BOI, New Delhi as ACIO-II Immigration Officer and during course of his duties, travel documents of pax/accused no. 1 were given to him for clearance. On scrutiny, it was found that the Visa of Malaysia affixed on passport of accused no. 1 was FIR No:- 324/11 State v. Prem Nath @ Prem Gill & Ors. Page No. 4 of 20 doubtful. Passport in question was thereafter, seized and sent to Malaysian High Commission through FRRO for confirmation. The report from the Malaysian Embassy was received to the effect that the visa sticker in question was not genuine. Accordingly, he made a complaint in this regard vide Ex. PW 4/A. PW-4 further handed over the seized travel documents along with letter received from Malaysian High Commission to the police. He correctly identified accused no. 1 Prem Nath in the Court. During cross-examination by Ld. Counsel for accused no. 1 and 2, PW-4 stated that he had sent letter dated 07.04.2011 to FRRO for verification of Visa of accused person. The deportation documents including document dated 05.04.2011 issued by Malaysian Immigration office is Ex. PW 4/D1. PW-4 further stated that the letter dated 07.04.2011 was written by him in his own handwriting bearing his signatures at point A. PW-4 further stated that letter dated 18.07.2011 issued by High Commission of Malaysia was received by FRRO and the attested copy of same was sent to him vide Ex. PW 4/D3. PW-4 stated that he did not write any letter to Malaysian Immigration Authority for clarification as to whether the Visa in question had been issued by their Consulate General at Chennai. PW-4 denied the suggestion of Ld. Counsel for accused no. 1 that accused no. 1 was not travelling on forged Visa.
8. PW-5 is W/SI Sunil Yadav, who deposed that on 27.07.2011, she was working as duty officer at PS IGI Airport and on the same day, she received rukka/tehrir from complainant Sh. H. B. Sharma, ACIO-II. PW-5 made endorsement on the rukka as Ex. PW 5/A and got the FIR registered, copy of which is FIR No:- 324/11 State v. Prem Nath @ Prem Gill & Ors. Page No. 5 of 20 Ex. PW 5/B (OSR). PW-5 seized travel documents of accused no. 1 vide seizure memo Ex. PW 4/B. After registration of FIR, copy of FIR, original rukka and seizure memo along with other documents were handed over to SI Inder Lal as the investigation of the case was marked to him.
9. PW-6 is ASI Parmal Singh, who deposed that in May, 2012, he was posted as SIC at IGI Airport, New Delhi. He had been handed over NBWs with respect to case FIR No. 324/11 and 325/11, IGI Airport by ACP/SIC pursuant to which, he went to VPO, Rayya, Punjab on 17.05.2012 where he found accused no. 2 Gurkanwal Singh. On inquiry, accused no. 2 revealed that he had an office of Visa Consultancy and he arranged Malaysian Visa for accused no. 1 Prem Nath with the help of agent Parminder. PW-6 thereafter arrested accused no. 2 vide arrest memo Ex. PW 6/A and recorded his disclosure statement vide Ex. PW 6/C. Later on, PW-6 brought accused no. 1 to Delhi and handed over him to IO SI Inder Lal.
10. PW-7 is Charanjeet Singh, who deposed that he had come to Delhi to handover the clothes of accused no. 2 being his relative. Since, witness resiled from his previous statement, Ld. APP for the State was permitted to cross-examine him. During cross-examination by Ld. APP for State, PW-7 submitted that accused no. 2 does not run any consultancy office. He denied the suggestion of Ld. APP for the state that accused no. 2 had paid Rs. 1,80,000/- to Parminder Singh in his office for Visa.
FIR No:- 324/11 State v. Prem Nath @ Prem Gill & Ors. Page No. 6 of 20
11. PW-8 is IO Inspector Inder Lal, who deposed that on 27.07.2011, he was posted at PS IGI Airport as SI and investigation of the present case was marked to him. He received the copy of FIR Ex. PW 5/B, original complaint Ex. PW 4/A, seizure memo Ex. PW 4/C, verification report of High Commission of Malaysia received from FRRO Ex. PW 4/D-3, passport No. H-6164944 issued in the name of accused no. 1 (on which the fake Malaysian visa was affixed) vide Ex.PZ1, copy of the seizure memo of passport which is Mark X-1 and the attested photocopy of deportee papers Ex. PW-4/D-2. PW-8 deposed that during investigation in the present case, he went to the residence of accused Prem Nath at Rayya, Punjab. However, accused was not found there. Later on, accused no. 1 filed an application for anticipatory bail and Hon'ble Sessions Court directed the accused to join investigation. Accused no. 1 joined investigation and PW-8 interrogated him with the permission of Ld. ACMM and recorded his disclosure statement who disclosed that alleged fake Visa was arranged by accused no. 2 in lieu of Rs. 1,05,000/-. PW-8 deposed that he along with HC Satish went to Village Rayya, Punjab in search of accused no. 2 but he was not found there. Thereafter, PW-8 obtained NBWs against accused Gurkanwal Singh and endorsed the same in the name of HC Parmal Singh who had travelled there and accused was found at the village and he arrested accused Gurkanwal Singh vide arrest memo Ex. PW 6/A and his personal search is memo Ex. PW 6/B. PW-8 further deposed that HC Parmal brought the accused to Delhi and handed over custody of accused no. 2 to him along with arrest memo, personal search memo and disclosure statement Ex. PW 6/C. It was disclosed by accused no. 2 that FIR No:- 324/11 State v. Prem Nath @ Prem Gill & Ors. Page No. 7 of 20 accused Parminder Singh had actually arranged the fake Visa. PW-8 then went to Amritsar in search of accused Parminder Singh but he was not found there. PW-8 thereafter, obtained NBWs against accused Parminder Singh, which could not be executed. PW-10 thereafter, moved an application under Section 82 Cr.P.C. for issuance of proclamation against accused Parminder Singh and he was consequently declared proclaimed offender. After completion of investigation, PW-10 filed charge- sheet in the present case. During cross-examination by accused persons, PW-10 admitted that he did not conduct any investigation qua other persons who had travelled along with accused Prem Nath to Malaysia. He further admitted that accused persons informed him that other person had also travelled along with them to Malaysia who were not deported by the Malaysian Authorities. PW-10 further admitted that he did not compare Visa of said persons with those of accused person and that he did not conduct any investigation with respect to Visa in question of accused Prem Nath @ Prem Gill after receiving verification report from Malaysian High Commission. He also admitted that Ex. PW 4/D-1 neither mentions reason of deportation of accused no. 1 nor did it say anything about its genuineness. He submitted that he is not an expert for comparing or verifying about genuineness of Visa and also did not asked from Malaysian Immigration Authorities about process adopted by them to verify the genuineness of Visa of the accused person. He also did not ask for genuine Visa sticker from Malaysian Immigration Authorities to be compared with the alleged fake Visa of the accused person.
FIR No:- 324/11 State v. Prem Nath @ Prem Gill & Ors. Page No. 8 of 20
12. PW-9 is Sh. A. K. Sharma, who deposed that in September 2013, he was posted as Deputy Secretary, (Passport), Home Department, Delhi Secretariat, GNCT of Delhi. He further deposed that he received the request from the Deputy Commissioner of Police Head Quarters, Delhi for issuance of sanction under Section 15 of Passport Act and after completion of formalities, sanction under Section 15 PP Act was issued in the present case vide letter no. F.7/44/2013/PS/PPI-10694-10697 dated 11.09.2013 vide Ex. PW 8/P (colly) (OSR).
13. All the aforesaid witnesses got duly cross examined by Ld. counsel for accused persons and discharged. Thereafter, prosecution evidence was closed by this Court and the matter was fixed for recording of statement of accused persons. Statement of both the accused persons under Section 313 r/w 281 Cr.P.C was recorded on 17.01.2020 wherein incriminating circumstances were put to them which they denied. Both accused persons submitted that the Visa issued to accused no. 1 was genuine and case was not properly investigated by the IO. Both the accused persons did not choose to lead any defence evidence.
14. Thereafter, matter proceeded for final arguments. It was argued on behalf of Ld. APP for the state that prosecution has been able to prove all the necessary ingredients of offences in question against both the accused persons beyond reasonable doubt. Per contra, it was argued on behalf of Ld. Counsel for accused persons that the Malaysian Visa in question was genuine and reason given by Malaysian High Commission in its report FIR No:- 324/11 State v. Prem Nath @ Prem Gill & Ors. Page No. 9 of 20 vide Ex. PW 4/D3 is absolutely false. It is further argued that the case was not properly investigated by the IO and Visa was not sent to FSL for obtaining its opinion about its genuineness.
15. I have heard the submissions on behalf of both parties and carefully perused the record. It is a settled principle of law that in criminal proceedings, prosecution has to prove its case beyond reasonable doubt. In the present case, both accused persons are charged for the offfences punishable under section 420/468/120-B IPC, Section 471 r/w Section 467/120-B IPC and Section 12 of PP Act. Before recording any finding on the facts, it is imperative to discuss the essential ingredients of each of the offences:-
Section 120 B IPC reads as under :-
120B. Punishment of criminal conspiracy.-
(1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence.
(2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both.
Section 420 IPC reads as under :-
420. Cheating and dishonestly inducing delivery of property.-
Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, FIR No:- 324/11 State v. Prem Nath @ Prem Gill & Ors. Page No. 10 of 20 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, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
Section 468 IPC reads as under :-
468. Forgery for purpose of cheating.-
Whoever commits forgery, intending that the 1[document or electronic record forged] shall be used for the purpose of cheating, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
Section 471 IPC reads as under:-
471. Using as genuine a forged document or electronic record.-
Whoever fraudulently or dishonestly uses as genuine any document or electronic record which he knows or has reason to believe to be a forged document or electronic record, shall be punished in the same manner as if he had forged such document or electronic record.
Section 467 IPC reads as under :-
467. Forgery of valuable security, will, etc.- Whoever forges a document which purports to be a valuable security or a will, or an authority to adopt a son, or which purports to give authority to any person to make or transfer any valuable security, or to receive the principal, interest or dividends thereon, or to receive or deliver any money, movable property, or valuable security, or any document purporting to be an acquittance or receipt acknowledging the payment of money, or an acquittance or receipt for the delivery of any movable property or valuable security, shall be punished with imprisonment for life, or with imprisonment of either description for a FIR No:- 324/11 State v. Prem Nath @ Prem Gill & Ors. Page No. 11 of 20 term which may extend to ten years, and shall also be liable to fine.
Section 12(1)(a)(b) of Passport Act, 1967 reads as under:-
12. Offences and penalties.--
(1) Whoever--
(a) contravenes the provisions of section3: or
(b)knowingly furnishes any false information or suppresses any material information with a view to obtaining a passport or travel document under this Act or without lawful authority alters or attempts to alter or causes to alter the entries made in a passport or travel document; or
(c) ***
(d) ***
(e) *** shall be punishable with imprisonment for a term which may extend to [two years or with fine which may extend to five thousand rupees] or with both.
**** Findings qua accused no.1 Prem Nath @ Prem Gill
16. It is the case of the prosecution that accused no. 1 Prem Nath @ Prem Gill was deported from Malaysia on 07.04.2011 and on scrutiny of his documents, Malaysian Visa affixed on his passport was found doubtful, thereafter, the passport of accused no. 1 was sent to the Malaysian Embassy for verification of Visa and as per Visa verification report received from Malaysian High Commission vide Ex. PW 4/D3 the Visa sticker was not found to be genuine. It is primarily argued by Ld. Counsel for accused no. 1 that applicant/accused was deported from Malaysia without any reason as is also affirmed by star witness of prosecution i.e PW-4 vide Ex. PW 4/D1. It is further argued that applicant/accused had gone to Malaysia with 5 other persons and only 2 persons including accused no. 1 were deported while no action was taken against other 4 persons. It is FIR No:- 324/11 State v. Prem Nath @ Prem Gill & Ors. Page No. 12 of 20 further argued that visa and air tickets of all the 6 persons travelling to Malaysia were obtained together, as such, Visa of accused was not properly scrutinized by Malaysian Immigration Authority. It is further argued that the reason given by Malaysian High Commission vide letter Ex. PW4/ D-3 i.e. ".... Visa sticker VB 3042995 on page 9 Indian Passport which appear on page 9 Indian passport no. H 6164944 belong to Mr. Prem Nath, were not issued by the Malaysian Immigration authority in Malaysia, hence, it are not genuine", clearly shows that the Visa sticker of accused was not properly scrutinized as the Visa in question was issued to accused from Consulate General, Malaysia in Chennai, India. It is further argued that the IO of this case i.e. Inspector Inder Lal had admitted in his cross-examination that he did not conduct any investigation qua genuineness of Visa of accused no. 1 Prem Nath @ Prem Gill after receiving report from Immigration Authorities, as such, the offences alleged against the accused could not be proved by the prosecution beyond reasonable doubt.
17. Suffice it to say, the fact that accused no. 1 had been deported from Malaysia is not in dispute, moreover, the fact that PW-4 i.e. Immigration Officer posted at BOI, New Delhi had sent passport of the accused for verification to Malaysian High Commission is also duly proved from record. Now, the report dated 18.07.2011 received from Malaysian High Commission clearly provides that Visa sticker VB no. 3042995 appearing on page no. 9 of Indian Passport H6164944 belonging to Prem Nath @ Prem Gill (i.e. accused no. 1) was not issued by Malaysian Immigration Authorities in Malaysia, hence, it was not genuine.
FIR No:- 324/11 State v. Prem Nath @ Prem Gill & Ors. Page No. 13 of 20 The said report was duly received by FRRO and was consequently sent to PW-4 which was duly proved by him on record. In terms of illustration (e) attached to Section 114 of Indian Evidence Act, 1872, this Court may presume that official acts wherein letter dated 18.07.2011 had been forwarded by Malaysian High Commission to FRRO have been regularly performed. Nothing substantial is brought by accused no. 1 on record to suggest otherwise. The arguments of Ld. Counsel for accused no. 1 that Visa sticker of accused was not properly scrutinized by Malaysian High Commission and the report given by them Ex. PW 4/D3 is false, are thus, not tenable.
18. It is argued by Ld. Counsel of accused no. 1 that Visa in question is genuine as it was issued from Chennai Office of Consulate of Malaysia, which is in India, as such, the report given by Malaysian High Commission vide Ex. PW 4/D3 is without any consequence. Accused no. 1 though, failed to lead any evidence in defence to prove the said contention. Section 106 of Indian Evidence Act, 1872 provides that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. The alleged fact of obtaining Visa in question from Chennai, India was within the special knowledge of accused no. 1, thus, accused no. 1 failed to discharge this burden.
19. For the sake of arguments, even if it is assumed that Visa in question had been obtained by the accused from Chennai office of Consulate of Malaysia, then also the Visa verification report of High Commission of Malaysia Ex. PW 4/D-3 would FIR No:- 324/11 State v. Prem Nath @ Prem Gill & Ors. Page No. 14 of 20 hold precedence as the Consulates/High Commissions of foreign counties in another state are considered as their own territories. Thus, Visa purportedly issued by Immigration Authorities of Malaysia in India would be deemed to have been issued in Malaysia.
20. No doubt, the IO of this case had been imprudent by not conducting any investigation with respect to Visa in question after receiving documents from Immigration Authorities. However, the said omission is not substantial to entail benefit of doubt to accused no. 1, especially in the light of specific report from Malaysian High Commission Ex. PW 4/D-3. Also, nothing credible is brought on record by accused no. 1 to show that the said Visa verification report is false. The argument of Ld. Counsel for accused no. 1 that IO failed to examine fellow passengers of accused no. 1 and failed to compare their Visa stickers with that of accused is also not tenable as the accused no.1 himself did not care to examine the said passengers and bring their Visa stickers for comparison on record during defence evidence. Thus, it stands proved beyond shadow of reasonable doubt that Malaysian Visa in question affixed on the passport of accused no. 1 is fake/false.
21. Another defence raised on behalf of accused no. 1 was that even if the Visa in question is presumed to be forged, accused no. 1 had no dishonest intention or knowledge. Hence, he cannot be said to have used the forged Visa as genuine knowingly. The accused has tried to assume the mantle of an innocent victim stating he himself was cheated and deprived by FIR No:- 324/11 State v. Prem Nath @ Prem Gill & Ors. Page No. 15 of 20 the agent who arranged visa for him. However, this defence does not hold water in the facts and circumstances of this case and cannot efface criminality on the part of accused. It is the own case of accused that he did not apply to the concerned authorities for obtaining visa but had admittedly handed over his passport to an unauthorised person. This suggests that the accused was aware that he may not be able to procure Malaysian Visa through legal means so he gave it to an unauthorized person to procure it through illegal means. Journey was arranged for the benefit of the accused, thus accused is particeps criminis and he cannot absolve himself from the offence. Reasons are obvious; first and foremost involvement of unauthorized persons who have no official connection with the RPO for obtaining Visa and secondly acting upon the same i.e. intending to go abroad on the fake Malaysian Visa.
22. Knowledge is a state of mind that cannot be proved by way of direct evidence. Knowledge is to be gathered from attending circumstances proved on record. As already discussed above, prosecution has proved that Visa on page no.9 of the passport of the accused was forged. Accused had obtained a valid passport earlier and thus it can be assumed that he was aware what was required to be done for obtaining a visa to travel abroad and for making an entry in the passport. The accused was not naive who could have been cheated by someone under the garb of obtaining Visa for him. This is not the case of defence that the agent to whom accused no.1 allegedly gave his passport was the concerned Government Official of the Embassy and therefore accused had reasons to believe that Malaysian Visa provided to FIR No:- 324/11 State v. Prem Nath @ Prem Gill & Ors. Page No. 16 of 20 him was genuine. Thus, essential ingredients of Section 471 IPC are duly proved against the accused no. 1 as he dishonestly used his forged visa sticker, which he knew or had reasons to believe to be a forged document for travelling to Malaysia.
23. Accused has also been charged for the offences punishable under Section 467 and 468 IPC. However, nothing credible is brought on record to prove that accused no. 1 had committed forgery or affixed fake/false Visa sticker on his passport. Not a single witness has been examined by the prosecution who had seen accused no. 1 committing forgery or getting the visa Sticker forged from some third person. Moreover, IO of the case i.e. Inspector Inder Lal/PW-8 admitted during his cross-examination that he did not conduct any investigation with respect to fake/forged Visa sticker on passport of accused no. 1 and merely relied upon the report of Malaysian High Commission. Thus, prosecution has failed to establish beyond reasonable doubt that accused no. 1 had committed forgery of Visa sticker on his passport. The essential ingredients of Section 467 and 468 of IPC are thus, not made out.
24. With respect to offence of cheating under Section 420 of IPC, first of all "cheating" as defined in Section 415 IPC has to be proved. The essential ingredients of offence of cheating are as follows:
a) deception of any person;
b) whereby fraudulently or dishonestly inducing that person to deliver any property to any person or to consent that any person shall retain any property; or, FIR No:- 324/11 State v. Prem Nath @ Prem Gill & Ors. Page No. 17 of 20
c) intentionally inducing that person to do or omit to do anything which he would not do or omit to do if he was not so deceived;
d) which act or omission has caused or is likely to cause damage or harm to that person in body, mind, reputation or property;
25. In the present case, the accused no. 1 Prem Nath @ Prem Gill had approached the Immigration Department to travel to Malaysia on the basis of a forged Malaysian Visa and managed to deceive the officials by flying to Malaysia on the said forged Visa, only to be deported back by Malaysian authorities later on. Thus, accused no. 1 had cheated the concerned Immigration authorities and ingredients for committing an offence of cheating under Section 420 IPC are clearly made out.
26. No credible evidence qua hatching of criminal conspiracy between accused no. 1 and accused no. 2 and co- accused Parminder though could be brought on record by the prosecution, as such, no offence under Section 120-B IPC is made out. However, in lieu of findings above qua offence under Section 420 and 471 IPC, it is clear that the Visa sticker affixed on passport of accused no. 1 was fake/forged and that he had travelled to Malaysia from India on the strength of said Visa. Since, accused no. 1 contravened provisions of Section 3 of Passports Act by departing to Malaysia without a valid travel document i.e. genuine Malaysian Visa, essential ingredients of offence punishable under Section 12(1)(a) of Passports Act are proved by the prosecution against accused no. 1 beyond reasonable doubt.
FIR No:- 324/11 State v. Prem Nath @ Prem Gill & Ors. Page No. 18 of 20 Findings qua accused no. 2 Gurkanwal Singh @ Kanwal:
27. In order to bring home, guilt of accused no. 2, prosecution was required to prove that both accused no. 1 and accused no. 2 had hatched the criminal conspiracy to do the alleged act of forgery and cheating. However, nothing substantial is brought on record by the prosecution to show that when and how the passport of accused no. 1 was taken by accused no. 2 and to whom the said passport is handed over by accused no. 2. It further could also be not proved as to whether forged Visa sticker was affixed on the passport of accused no. 1 by accused no. 2 or some other person. None of the witnesses examined have been able to establish that there was any agreement between the parties to do illegal act of affixing forged Visa sticker on passport of accused no. 1 to facilitate his journey abroad. The prosecution merely examined brother and friend of accused no. 1 i.e. PW-1 and PW-2 respectively who deposed that accused no. 2 assured that he would send accused no. 1 to Malaysia and took Rs.1,05,000/- in cash from him. No proof of payment of said amount to accused no. 2 though could be adduced on record by PW-1 and PW-2 as the payment was reportedly made in cash. No independent witness was also examined to prove the said transaction. PW-7, who was independent public witness did not support the case of the prosecution and resiled from his statement recorded under Section 161 Cr.P.C. He denied the suggestion of Ld. APP for the state that accused no. 2 paid Rs.1,80,000/- to agent Parminder Singh.
FIR No:- 324/11 State v. Prem Nath @ Prem Gill & Ors. Page No. 19 of 20
28. There is no other incriminating evidence available on record against accused no. 2 Gurkanwal Singh except disclosure statement of co-accused Prem Nath @ Prem Gill. However, as no recovery pursuant to disclosure statement had been effected, the same is not admissible in terms of Section 25 and 26 of Indian Evidence Act. Thus, the prosecution has failed to establish essential ingredients of offences under Section 420 r/w Section 468 r/w Section 120-B IPC and Section 471 r/w Section 467 r/w Section 120-B IPC against accused no. 2 beyond reasonable doubt.
Conclusion
29. Keeping in view the totality of facts, circumstances of the case and findings as above, it is held that accused no. 1 Prem Nath @ Prem Gill is convicted for the offences under Section 420, 471 IPC and Section 12(1)(a) of Passports Act. Since, no credible evidence qua offences against accused no. 2 Gurkanwal Singh @ Kanwal is brought on record by the prosecution, accused no. 2 is acquitted of all the offences charged against him.
30. Arguments on the point of sentence be heard separately qua convict Prem Nath @ Prem Gill. Copy of judgment be supplied to convict free of cost.
31. Ordered Accordingly.
ANNOUNCED IN THE OPEN COURT DATED: 08.04.2021 (AKASH JAIN) ACMM-01, NEW DELHI DISTRICT PATIALA HOUSE COURTS, NEW DELHI FIR No:- 324/11 State v. Prem Nath @ Prem Gill & Ors. Page No. 20 of 20