Delhi District Court
State vs . Mohd. Akil @ Aman @ Lalla on 17 February, 2020
IN THE COURT OF MS. RICHA SHARMA METROPOLITAN MAGISTRATE07, NORTH, ROHINI COURTS, DELHI State Vs. Mohd. Akil @ Aman @ Lalla FIR No. 59/11 PS. Swaroop Nagar U/s. 420 IPC New Case No. 5284340 JUDGMENT
1) The date of commission : 10.04.2011 Of offence 2) The name of the complainant : Ms. Jyoti Sharma 3) The name & parentage : Mohd. Akil @ Aman @ Lalla Of accused S/o Sh. Gulshan 4) Offence complained of : U/s 420 IPC 5) The plea of accused : Pleaded not guilty 6) Final order : Acquittal 7) The date of such order : 13.02.2020 Date of Institution : 11.01.2012 Judgment reserved on : 17.02.2020 Judgment announced on : 17.02.2020 FIR No.59/11 State Vs. Mohd. Akil @ Aman @ Lalla 1/14 THE BRIEF REASONS FOR THE JUDGMENT: BRIEF SYNOPSIS OF THE CASE.
1. The case of the prosecution is that on 10.04.2011, at about 01:00 pm, at khasra No. 379/1, Kushak Road, Gali no. 1 ½, PS Swaroop Nagar, accused induced the complainant Jyoti Sharma to invest the money in purchasing the property and on such inducement, complainant carried Rs. 5 lakhs with her and from there, accused alongwith complainant and her son Gaurav Sharma went to locate the property and on the way, accused asked the complainant to hand over the above mentioned cash of Rs. 5 lakh on the pretext that carrying such a huge amount could cause mishappening as the area was marked by day light robberies and chain snatching etc and therefore , it would be better that the above mentioned cash be left at the house of the accused and on such inducement by the accused, the complainant handed over the above mentioned cash and thereafter, accused left away from there with the said money and thus accused cheated the complainant. FIR was registered and investigation was done in this case. Chargesheet u/s 420 IPC was filed. Accused was summoned. He was supplied the documents in compliance of section 207 Cr.P.C.
CHARGE
2. Thereafter, charge u/s 420 IPC was framed upon the accused on 08.02.2012, to which he pleaded not guilty and claimed trial.
3. Thereafter, the matter was listed for prosecution evidence. Prosecution examined following witnesses : FIR No.59/11 State Vs. Mohd. Akil @ Aman @ Lalla 2/14 PROSECUTION EVIDENCE
4. PW1 is HC Rang Bahadur No. 149/NW, PS Subhash Place. He deposed that on 16.04.2011, he was posted as Duty Officer at PS Swaroop Nagar. He registered the present FIR which is Ex.PW1/A and also made endorsement on the complaint, which is Ex.PW1/B. This witness was not cross examined by Ld. Defence Counsel.
STAR WITNESS
5. PW2 is Smt. Vinod Mehta. She is the only star witnesses in the present case. She deposed that she is residing at Khasra No. 379, Gali no. 1 ½ , Kushak Road, Swaroop Nagar for about 20 years and knows nothing about this case.
This witness was cross examined by Ld. APP for the State as she was resiling from her statement during the crossexamination conduced by Ld. APP for the State, she further denied having know the accused. She completely denied about the alleged incident of cheating as well.
COMPLAINANT
6. PW3 is Ms. Jyoti Sharma. She deposed that on 10.04.2011, Mrs. Vinod Mehta introduced her to Mr. Aman and told her that he deals in sale/ purchase business operating in Swaroop Nagar. Prior to the above mentioned date, a few months back, she had returned to India after staying for 1314 years in US. She intended to invest some money in property and due to this reason, she came in contact with the above mentioned lady i.e. Mrs. Vinod Mehta. She came in contact FIR No.59/11 State Vs. Mohd. Akil @ Aman @ Lalla 3/14 with Mr. Aman @ Mohd. Akil and he usually used to call her and inform her about the properties and made her several offers for purchase of the properties.
She further stated that on 10.04.2011, accused Mohd. Akil came to her residence in the morning and persuaded her to immediately go for a rare deal of plot available only for that particular day at Swaroop Nagar. Accused Mohd. Akil also asked her to bring some cash because the owner was in need of money and in hurry to sell the plot. She discussed the matter with her family members. After some time accused called and told her to bring Rs. 5 lakh in cash as there was no scope for delay as the seller was in extreme hurry to sell the plot and accused further told her to meet him at GTK Road near Swaroop Nagar on the same day. Thereafter, she alongwith her son Gaurav Sharma went at GTK Road for meeting with the accused. At that time, she was carrying Rs.5 lakh with her in cash in her car. At the time, when she alongwith her son reached at GTK Road, accused was already waiting for them. She alongwith her son and accused went to the proposed plot of the land. Thereafter, accused asked her to come to his house as it was taking time for the finalization of the deal. She alongwith her son and accused went to the house of the accused where one lady and one baby of 810 months of age were already present. Accused introduced the lady to her as his wife and thereafter went away to procure papers of property. After about 20 minutes, accused came back and said that the seller had gone back on his words and he is now demanding more money for the same plot. Accused proposed her to have a look at some other lucrative properties in that area. She was not interested in roaming around the area for new offers but accused said that there were only few deals near by and started walking. She had moved hardly a few meters, when suddenly accused stopped her FIR No.59/11 State Vs. Mohd. Akil @ Aman @ Lalla 4/14 and said that carrying such a huge amount of cash could lead to mis happening as the area is not good. Accused proposed her to leave the cash in the safe custody of his wife in his house until they returned. Thereafter, she gave the cash of Rs.5 lakh to his so called wife and they came out to have a look for some other property. After walking some distance, accused took a turn and entered in another lane, where accused stopped and started looking for his mobile phone. As accused did not find that his mobile phone, he asked her to wait for few minutes as he would fetch mobile from his house. Thereafter, he left immediately and she alongwith her son kept waiting for him. After 2025 minute, when accused did not return, she became apprehensive of foul play and immediately rushed to his house. Reaching there, she found the house was locked from the outside and no one was found present there. Thereafter, she panicked and called up at his mobile. Though, he picked up the call but immediately disconnected after 12 seconds. Subsequent calls were made his mobile but his mobile was switched off. Thereafter, she called her mother and several other person and informed them about the same. She was under depression. After that, her relatives and friends assembled at Swaroop Nagar to console her and helped her to take further action. Her mother called at 100 number and informed the police about the incident. Thereafter, she narrated the entire incident to police official at Swaroop Nagar. She gave written complaint to police officials regarding the fraud/ cheating of Rs.5 lakh by accused and complaint in this regard is Ex.PW3/A. She led the police official to the house of accused where she gave Rs. 5 lakh in cash to his so called wife at his instance. Police officials prepared a pointing out memo at her instance which is Ex.PW3/B, bearing her signature at point A. FIR No.59/11 State Vs. Mohd. Akil @ Aman @ Lalla 5/14 This witness was also cross examined by Ld. APP for the State as she was not narrating the entire facts. She admitted the police complaint i.e. Ex.PW3/A given by her. This witness was not cross examined by Ld. Defence Counsel.
IO in the present case.
7. PW4 is Inspector Sanjeev Kumar Verma, No. D319, ATO, PS Preet Vihar. He deposed that in the month of April, 2011, he was posted as SI at PS Swaroop Nagar. On 16.04.2011, case FIR no. 59/11 u/s 420 IPC was registered and the investigation was assigned to him. He carried out the investigation, recorded the statement of witnesses, made search of the named accused of the FIR and on 15.11.2011, he arrested the accused Akil @ Aman @ Lalla vide arrest memo, which is Ex.PW4/A, bearing his signature at point A. Thereafter, accused was personally searched vide personal search memo, which is Ex.PW4/B, bearing his signature at point A. Prior to the arrest of the accused, he prepared pointing out memo of the place of occurrence at the instance of the complainant and the same is already exhibited as Ex.PW3/B, bearing his signature at point B. After completing the investigation, he prepared chargesheet and filed in the same in the court.
This witness was also cross examined by Ld. APP for the State after seeking permission of the court during which he proved the disclosure statement Ex.PW4/C. This witness was also cross examined by Ld. Defence Counsel.
08. Thereafter, prosecution evidence was closed vide order dated 03.07.2019.
FIR No.59/11 State Vs. Mohd. Akil @ Aman @ Lalla 6/14 Statement under section 313 Cr.PC
09. Subsequently, statement of the accused under Section 313 r/w 281 Cr.P.C. was recorded on 19.08.2019, wherein accused stated that he has been falsely implicated in the present case. Accused stated that he wants to lead defence evidence but despite giving opportunity to the accused, accused did not lead DE, therefore, DE stands closed by the court order on 16.10.2019.
10. Thereafter the matter was fixed for final arguments. Accordingly, final arguments were advanced at length by both the parties. I have heard the final arguments and have given my careful and thoughtful consideration to the plethora of evidence on record.
REASONS
11. In the backdrop of the facts as above and before delving into the merits of the present case it becomes germane to canvass the ingredients obligatory to bring home the guilt u/s 420 IPC.
It is non elective to state that in order to make out an offence under this section, it is incumbent to establish the intent at the time of the alleged bargain. In order to bring the case within the offence of cheating, it is imperative to prove that at the time, the accused made the representation, he knew that it was false and it was made in order to deceive the person paying the money. In order to constitute an offence of cheating, the intention to deceive should be in existence at the time FIR No.59/11 State Vs. Mohd. Akil @ Aman @ Lalla 7/14 when the inducement was made. It is peremptory to show that a person had a fraudulent intention at the time of making the promise to say that he committed an act of cheating (S.N.Palanitkar Vs. State of Bihar, 2001 CLJ, 4765 (SC) ).
12. The essential ingredients to attract section 420 IPC are
(i). Cheating;
(ii) Dishonest inducement to deliver property or to make, alter or destroy any valuable security or anything which is sealed is capable of being converted into a valuable security and
(iii) Mens Rea of the accused at the time of making the inducement.
For a person to be convicted u/s 420 IPC, it has to be established not only that he had cheated someone but also that by doing so he has dishonestly induced the person cheated to deliver any property etc.
13. A person can be set to have done an act dishonestly if he does so with the intention of causing wrongful gain to one person or wrongful loss to another person. Wrongful loss is the loss by unlawful means of property to which a person is entitled while wrongful gain to a person means a gain to him by unlawful means a property to which the person gaining is not legally entitled.
14. Therefore, in the light of the brief backdrop of the ingredients of offence u/s 420 IPC required to be fulfilled by the prosecution to establish the guilt of the accused in the present case, it becomes luminary to anatomize the testimony of the FIR No.59/11 State Vs. Mohd. Akil @ Aman @ Lalla 8/14 prosecution witnesses examined in the present case. The most tectonic witness examined by the prosecution in the present case is PW3 Ms. Jyoti Sharma i.e. the complainant herself.
15 It is pivotal to state that PW3 categorically stated in her deposition before the court that on 10.04.2011, Mrs. Vinod Mehta i.e. PW2 introduced her to accused and further informed her that the accused deals in sale/ purchase business operating in Swaroop nagar area. She further deposed that the prior to said date, she had stayed in US for 1314 years and she was intending to invest some money in the property and owing to this reason PW2 i.e. Mrs. Vinod Mehta introduced her to the accused. She further stated that accused used to call and inform the complainant about several offers pertaining to the property. It is further pertinent to mention that PW3 stated that on the fateful day accused came to her residence in the morning and persuaded her to immediately accompany her for a rare deal of property available only on that day at Swaroop nagar. Pursuant to that she further stated that accused asked her to bring some cash because the owner is in a hurry to sell the plot and resultantly she discussed the said matter with her family and alongwith her son namely Gaurav Sharma, she met the accused near Swaroop Nagar on the same day. She further stated that she was asked to carry Rs.5 lakh in cash by the accused and in compliance of the same, she alongwith the money met the accused and alongwith him went to his house where she met one lady and a baby. It is further relevant to mention that the complainant stated that thereafter the accused informed her that the seller had refused to part away with the property and further persuaded the complainant to look around alongwith him for other lucrative properties in the vicinity. Thereafter, she alongwith her son and accused left from FIR No.59/11 State Vs. Mohd. Akil @ Aman @ Lalla 9/14 there to look out for another property and under the garb of the area not being safe, accused proposed to the handing over of the cash available with the complainant to the accused to ensure safe custody of the same as the accused stated that his wife would keep the same in the house safe, while they looked around for another property. Finally, the complainant stated that thereafter they left the house of the accused and after few minutes on the pretext of the mobile being left at home by the accused, the latter left to collect the same and never returned back. Thus, in the light of the deposition made by the complainant in the court, at the outset it becomes vital to state that in the very first place, the complainant has miserably failed to explain the source of funds from where the complainant got an amount of Rs.5 lakh, which she allegedly handed over to the accused. It is material to mention that there is no iota of whisper in the entire testimony of the complainant regarding the mode, means and the source from which the said funds were generated and in the absence of the same, it perse gives rise to a suspicion regarding the existence of any such fund/ amount with the complainant. This becomes more crucial and relevant in the circumstances of the present case as the complainant herself states that she had not been in India for past 13 to 14 years and had arrived here only few months prior to the said incident and so being the case, the question of such large amount being available at the disposal of the complainant comes under scanner. It is further not the case of the prosecution that the said amount was generated by the complainant out of her own income as there is no mentioning whatsoever regarding the complainant being employed somewhere or that she was prior to her arrival in India working in US and the said amount of Rs.5 lakh was a part of her savings while she was working back at US if FIR No.59/11 State Vs. Mohd. Akil @ Aman @ Lalla 10/14 at all. Therefore, in the absence of any explanation whatsoever being furnished with regard to the alleged cheated amount being available at the disposal of the complainant, the geneses of the entire case comes under scrutiny.
16 Apart from this it also becomes fundamental and decisive to state that PW3 ambiguously and precisely stated that during the entire alleged incident she was accompanied by her son Gaurav Sharma but the latter has not been examined by the prosecution to throw light on the aspect of what happened on the alleged day of the incident. This perse punctures the case of the prosecution as apart from the complainant the only climacteric witness that could have supported, substantiated and corroborated the version of the prosecution is Gaurav Sharma but neither has he been examined nor any plausible explanation has been furnished by the prosecution for not examining him as a prosecution witness despite he being a vital witness to the entire incident.
17 In annexation to the above it is necessary to augment further by highlighting that the complainant though states that she had accompanied the accused in the area of Swaroop nagar for looking out for property for the purpose of purchasing the same but no description of any property whatsoever has been given by the complainant or the prosecution in the present case. Further, it would not be out of place to mention that the complainant nowhere talks about the alleged deal bringing out its details and the name of the proposed seller who subsequently backed out from the alleged transaction. It is highly farfetched and dubious to perceive that a person who though on one hand is out to purchase a property but on the other hand has no details/ knowledge of the seller and the details of the FIR No.59/11 State Vs. Mohd. Akil @ Aman @ Lalla 11/14 property as no such facts have been brought to the notice of the court either through any documentation or through any oral testimony.
18 It is further corporeal to state that the complainant in her deposition states that "when accused did not return we became apprehensive of foul play and immediately rushed, to his house. Reaching there, we found the house was locked from outside and no one was found around. Thereafter, I got panic and called up at his mobile. Though, he picked up the call and immediately disconnected after 1 2 seconds, subsequent call were made to his mobile but his mobile was switched off", implying thereby that it was incumbent upon the prosecution to have examined the people residing in the vicinity of the house of alleged accused in order to know as to if at all the accused ever stayed there with his wife or child and further the details pertaining to the CDR of the calls made by the complainant to the accused ought to have been furnished by prosecution to corroborate its case but nothing of this sort has been done by the prosecution and this further perforates the case of the prosecution.
19 The last leg of the evidence which needs to be appreciated is the testimony of PW2 whereby she categorically and outrightly states that she knows nothing about the present case and on being cross examined by the ld. APP for the State, she further deposed that she does not know any lady with the name of the complainant. She further denied complainant staying in her neighbourhood. In addition to this PW2 i.e. Mrs. Vinod Mehta further stated that she did not make any statement to the police regarding the present case and in addition to this, she also failed to identify the accused and stated that she had never seen him. Thus, the star witness of the prosecution i.e. PW2 totally denied knowing the complainant or FIR No.59/11 State Vs. Mohd. Akil @ Aman @ Lalla 12/14 she being her neighbour and further she denied knowing the accused or introducing him to the complainant . Apart from PW2, prosecution neither examined any other witness to prove the fact that the accused was residing in the neighbourhood of PW2 i.e. Mrs. Vinod Mehta nor any other oral or documentary proof has been adduced to substantiate the case of the prosecution and therefore, cumulatively summarizing the above it can be safely deduced that: Firstly, the complainant miserably failed to explain the source of funds from where she generated alleged Rs.5 lakh i.e. the alleged cheated amount in question.
Secondly, no independent witness has been examined by the prosecution to prove its case.
Thirdly, Gaurav Sharma i.e. son of the complainant despite being present with the complainant all through the while when the alleged incident happened, has not been examined by the prosecution and no satisfactory explanation has been furnished for the same.
Fourthly, there are glaring inconsistencies in the entire case of the prosecution.
20 No doubt wrong acquittals are undesirable and shake the confidence of the people in judicial system, much worse, however, is the wrongful conviction of the innocent man. The consequences of conviction of innocent men are far more serious and its reverberation would be felt by an innocent all his life in a civilized society, therefore, it is the duty of the court to avoid any wrongful conviction and to grant benefit of doubt where ever the need arises. If two views are possible, one favouring the accused and the other against him, the benefit of doubt must be given FIR No.59/11 State Vs. Mohd. Akil @ Aman @ Lalla 13/14 to the accused and in the instant case, prosecution has failed to prove its case against accused beyond reasonable doubt.
21. At this stage, court further deems it fit to state that it is a settled principle of criminal jurisprudence that culpability cannot be established on surmises and conjectures but it should rest on cogent, reliable and clinching evidence, dispelling every doubt and bulwarking the fact that in all possibility, the offence must have been committed by the accused. In the present case, it is pellucid that the case of the prosecution suffers from several glaring loopholes as there are numerous inconsistencies in the testimony of the witnesses examined by prosecution.
22. Therefore, in light of the above observations and finding, it can be safely culled out that case of the prosecution suffers from several glaring loopholes as there are numerous inconsistencies in the testimony of the witnesses examined by prosecution.
23. Hence, in view of the aforesaid comprehensive discussion, the prosecution has miserably failed to prove the charges levelled against the accused persons and therefore, the accused Akil @ Lalla @ Aman is hereby acquitted from the offences u/s 420 IPC.
Announced in open court (Richa Sharma)
on 17th Day of February 2020 MM7/North District
Rohini Courts/Delhi
FIR No.59/11 State Vs. Mohd. Akil @ Aman @ Lalla 14/14