Delhi District Court
In Re: State vs Sunil Kumar Singh on 9 April, 2012
IN THE COURT OF GAURAV RAO: METROPOLITAN MAGISTRATE: SOUTH
DISTRICT: SAKET COURTS: NEW DELHI
In Re: STATE VERSUS SUNIL KUMAR SINGH
F.I.R. No: 307/97
U/s 420/471 IPC
P.S. Defence Colony
Date of Institution of Case : 06.07.2000
Judgment Reserved for : 30.03.2012
Date of Judgment : 30.03.2012
JUDGMENT:
(a) The serial no. of the case : 171/2/2000
(b)The date of commission of offence :18.03.1997
(c) The name of complainant : Vipin Gandhi S/o Sh. O.P.
Gandhi, R/o 29, Ground
Floor, SouthEx. PlazaII,
NDSEII, New Delhi.
(d) The name, parentage, of accused :Sunil Kumar Singh S/o Sh.
S.S. Singh, R/o A1403,
Magarpatta, Pune.
Present Address : As above
FIR No. 307/97 State Vs. Sunil Kumar Singh 1/28
(e) The offence complained of :U/s 420/471 IPC
(f) The plea of accused : Pleaded not guilty
(g) The final order : Convicted u/s 411 IPC
(h) The date of such order : 30.03.2012
Brief statement of the reasons for the decision:
In brief the case of the prosecution is that on 18.03.1997 accused gave a forged purchase order to SGS computer Consultants 426/427 ,South Extension, PlazaII, and also issued a Govt. cheque for Rs. 88737/ to the complainant firm and received delivery of a computer set on the basis of forged purchase order and by making payment through forged cheque knowing that both the documents were forged and thus thereby he dishonestly cheated the complainant firm and hence committed offences punishable u/s 420/471 IPC.
2. Charge sheet was filed in the court and in compliance of Section 207 Cr.P.C. accused was supplied the documents. Thereafter vide order dated 20.09.2003, charge u/s 420/471 IPC was framed against accused to which he pleaded not guilty and claimed trial.
3. In order to prove the charges against the accused, prosecution examined FIR No. 307/97 State Vs. Sunil Kumar Singh 2/28 five witnesses where after the PE in the matter was closed and the statement of accused u/s 313 Cr.P.C was recorded wherein he claimed himself to be innocent and having been falsely implicated in the case.
A brief scrutiny of the evidence recorded in the matter is as under:
4. PW1 HC Abdul Gayum deposed that on 26.3.1997 he was working as duty officer at PS Defence Colony and on that day at about 4.10 pm he recorded FIR No. 307/97 vide Ex. PW1/A.
5. During his crossexamination he admitted that he compared the formal FIR on the basis of the formal rukka i.e. Mark A and said rukka was given to him by the reader of the then SHO. He stated that he cannot say if the date on the rukka was converted from 25 to 26 by overwriting. He stated that the overwriting over appears at figure 5 made as 6.
6. PW2 Vinit Gandhi deposed that he is in business of computer selling and maintenance and his office is at 29, Ground Floor, South Ex. Plaza II, New Delhi. He deposed that on 18.3.1997 he received purchase order on a Govt. letter head pad to deliver the computer. He deposed that the said purchase order was in the name of one Mr. M.U. Despandey. He further deposed that the said order was received by post. One person was negotiating and he telephoned their office FIR No. 307/97 State Vs. Sunil Kumar Singh 3/28 more than 2/3 times who was stating himself M.U. Despandey. He deposed that he asked the said person to make payment through cheque in advance. He deposed that the order was of app. Rs. 88,000/. He deposed that the person stated to him that he will sent his employee with cheque on the date of delivery of computer. He deposed that on 22.3.1997, one person came to his shop claiming to be the Peon of office of AICTE. He deposed that he cannot identify that person. He deposed that he delivered him one computer set and sent their two Engineers with him for the installation of computer at the address given by him. He deposed that he does not remember the said address. He deposed that the computer sent from their office were kept at the said address of accused (correctly identified), as he was found there and his engineers delivered him the computer. He deposed that the aforesaid Peon who came to his office on the day of delivery of computers, handed over a cheque of Rs. 88,000/ app. He deposed that on the next day of delivery he made a telephonic call to Mr. M.U. Despandey and told him about his purchase order and delivery of bills receipts etc. He deposed that Mr. Despandey was not aware about any purchase order and he called him to his office and when he told him about the payment through cheque and he told that the said cheque was a stolen cheque from their office. He deposed that he did not show him the said cheque. He deposed that he also stated that he had not issued any purchase order for the purchase of computer set from their office. He deposed that he told to Mr. Despandey that the person FIR No. 307/97 State Vs. Sunil Kumar Singh 4/28 who had made telephonic calls to them regarding the said purchase of computers was a person who was stammering in speech. He deposed that thereafter, he along with his said two engineers who had delivered the computer set, went to the place where the delivery was effected. He deposed that one person was found there and he stated that he had not received any computer and he also stated that the computer might have received by his friend Sunil Kumar Singh who was present there on the last night. He deposed that on the next day, he along with his brotherinlaw Mr. Chirantan Dhingra went to AICTE where the Director of the office gave them the address of accused Sunil Kumar Singh. He deposed that they went to the house of the accused but he was not found there and thereafter, they came to the PS Defence Colony. He deposed that he made a complaint to the police i.e. Ex. PW2/A which is in handwriting of my brotherinlaw and bears his signature at point A. He deposed that in the evening of either 25 or 26.3.1997, he along with a Head Constable and Constable went to the house of the accused at Palam Colony where the accused was not found. He deposed that on the next day, after making inquiry through telephone, he along with police came to the office of AICTE and the accused was taken to the PS by the police. He deposed that he was sitting outside of the reception of PS and thereafter at 11.00 PM police told him that recovery is to be effected and asked him to accompany them. He accompanied to the police to the house of the accused and from there the computer set delivered by their office, FIR No. 307/97 State Vs. Sunil Kumar Singh 5/28 was recovered and same was seized vide Ex. PW2/B. He deposed that he got released his said computer set on superdari.
This witness correctly identify case property i.e. total 8 items i.e. Ex. P1/1 to 8.
7. During his crossexamination by the learned defence counsel he admitted that his company deals in assembling the computers after purchasing the parts. He stated that the person who said himself as R.R. Singh brought the quotation No. 121/131. The quotation was issued on the basis of telephonic message received by him from M.U. Despandey. He stated that he does not remember if he had mentioned that as per telephonic information received by M.U. Despandey, he was sending this quotation. He stated that he does not remember if he had told this statement to the police regarding the telephonic message just mentioned above by him. He stated that there was no prior dealing with this institute AICTE, that is why he has no acquaintance with M.U. Despandey. Likewise he has no dealing with the accused persons and he has no acquaintance with him. He stated that as per rule when they receive purchase order and the instructions given in it are act upon. He admitted that according to purchase order Ex. PW2/DA, the computer was to install at the residence of Sh. Remegaura. He admitted that he was bound to get the deal computer installed and that's why sent his two Engineers along with computer. He stated that he FIR No. 307/97 State Vs. Sunil Kumar Singh 6/28 does not remember which mode was used to deliver the computer. He admitted that whenever, a computer or any such good is sent out from the firm, its gate pass is made. He voluntarily stated that they do not issue gate pass and gate pass as mentioned above and they release the good on the basis of delivery. He stated that he has stated to the police that the persons who had come from office, was sent along with two Engineers and the computer. He stated that he does not remember if he had shown the purchase order i.e. Ex. PW2/DA to ascertain his opinion if the signature on it was his or not. Likewise he had not shown the cheque in question i.e. Ex. PW2/DB to Sh. Despandey to ascertain whether the signature of Despandey was on the cheque or not. It might be possible that he had not personally visited the institution AICTE to see Mr. M.U. Despandey. He voluntarily stated that he went there on the next day along with the police. He stated that he had stated to the police that he told Mr. Despandey that the person who used to telephone him was having a stammering voice. He stated that he had got no document, showing that the computer was install in any other place then the place mentioned in the purchase order i.e. Ex. PW2/DA. He stated that the computer was installed at the residence of Chairman on pointing out of one person who accompanied the Engineers. He stated that complaint i.e. Ex. PW2/A was prepared by his brotherinlaw Mr. Dhingra on his dictation and after going through the same he signed it. He stated that both the Engineers who installed the computer, was not with him at PS while the FIR No. 307/97 State Vs. Sunil Kumar Singh 7/28 complaint was made. He stated that he knew the names of both the Engineers who were sent for installation of the computer. He stated that he had not mentioned the names of both the engineers in his complaint. He stated that there was no specific reason for not mentioning the names of those engineers in the complaint. He admitted that both the Engineers whose names were omitted from the FIR, played a vital role. He denied the suggestion that the reason of with holding the names of Engineers, was that it was a false transaction or it was a cheating. He stated that he has produced both the Engineers before the police and their statements were recorded by the IO. He denied the suggestion that he disclosed the names of the said Engineers in the year 2001 after a gap of more than 3 years to the police. He stated that after about 34 days of day of occurrence perhaps 29 or 30.3.1997 he produced both the Engineers to the police and the police recorded their statement. He denied the suggestion that he gave the name of one engineer of Jitender Solanky after 3 years. He denied the suggestion that he told the police that one Engineer Mr. Chatterji, had left the job and his whereabouts were not known to him. He denied the suggestion that he had not produce Mr. Chatterji before the police. He stated that he cannot say that whether Mr. Chatterji has not been cited as witness nor he can say that his statement u/s 161 Cr.P.C. was recorded. He admitted that delivery challan i.e. Ex. PW2/DC does not bear the signature of the accused. He admitted that Ex. PW2/DC the delivery of the computer was not made to S.K. Singh. He admitted FIR No. 307/97 State Vs. Sunil Kumar Singh 8/28 that in Ex. PW2/DA the purchase order was made for 104 key board. He admitted that key board of the computer as per purchase order was not supplied. He stated that he cannot say whether the police has shown the forged letter and cheques to M.U. Despandey or not. He admitted that he has mentioned that the accused had forged both the said documents i.e. purchase order and cheque. He stated that he did not see the accused forging both the above said documents. He stated that he mentioned the name of the accused in the FIR on the basis of the identification of the accused of his both the Engineers. He stated that on the point of recovery only police officials told him that the accused has confessed before the police. He stated that the recovery was affected either on th 26th/27 , he does not remember the exact date. He stated that he has not stated to the police that he along with his two Engineers went to the house of accused. He admitted that he got recorded that he along with two Engineers went to the house of the accused who met them there, in his statement to the police. He stated that accused told him that he has no knowledge about any computer. He stated that they went inside the house of the accused. He voluntarily stated that both the Engineers remained outside the house of the accused. He stated that he does not remember the number of the house where he went. It was a single storey building. He stated that he did not notice the number of the rooms. He stated that he did not notice any computer in the room where he had gone. He stated that he has no idea where he saw both the rooms FIR No. 307/97 State Vs. Sunil Kumar Singh 9/28 of the house where the computer was not. He stated that he does not know how many person were working in that institute. He stated that he has not stated either on telephone or by meeting to Mr. M.U. Despandey and Mr. Negi that he was in a position to identify the person who had brought the purchase order. He stated that police did not record the statement of my brotherinlaw (jija). He stated that he did not make enquiry from above said both officer that one person claiming to be the Peon of this institute with the name of R.R. Singh had gone in his firm along with the cheque and purchase order. He denied the suggestion that the purchase order of part of the computers which were handed over to the police was false and bogus. He admitted that in bill i.e. Ex. PW2/DD, CST number is not mentioned, while it mentions the payment of CST at the rate of Rs. 10/ % i.e. amount Rs. 2500/. He denied the suggestion that as per purchase order 2.GB Hard Disk was to be supplied. Whereas the bill pertains to the purchase of 1.2 GB Hard Disk. He denied the suggestion that no computer set was supplied from his firm or that he along with M.U. Despandey and Mr. Negi entered into a conspiracy to grab the Govt. amount near about Rs. 88000/ on fictitious grounds. He denied the suggestion that the accused has been falsely implicated in this case because the accused was working as Asstt. Director, he had come to know about this bogus transaction and out of fear of leaking it, the accused was falsely implicated in this case.
FIR No. 307/97 State Vs. Sunil Kumar Singh 10/28
8. PW3 M.U. Despandey deposed that in the month of February, March, 1997, he was working as a Advisor in All India Council of Technical Education, Indraprastha State, New Delhi. He deposed that so far as he recollect, he received a telephonic call from some trader asked him to confirm if he had issued any cheque for Rs. 88,737/ to M/s S.G.S. Computers. He deposed that he informed that no such cheque was issued after checking the records. Later on, it was brought into his notice that a purchase order dated 18/3/97 was issued under his signatures. He deposed that however, after seeing the letter, the signatures on the letter i.e. Ex. PW3/A was not his signatures and was not received from his office. He deposed that he was also informed that a cheque i.e Ex. PW3/B on State Bank of Patiala from account No. C144 bearing No. 903379 was issued under his forged signatures and that of the Account Officer Mr. G.S. Negi. He deposed that on further enquiry, it was found that the leaf of the cheque book bearing the above mentioned number was missing and it was removed from the cheque book from the back part. He deposed that letters i.e. Ex. PW3/A and cheque i.e. Ex. PW3/B are not authentic and his signatures are forged. He deposed that no such order was placed in favour of M/s S.G.S. Computers. He deposed that the accused (correctly identified) has been working in his office under his control for quite some time and all records were accessible to him. He deposed that the cheque books were maintained and kept in the custody of the Accounts Officer and account is jointedly operated.
FIR No. 307/97 State Vs. Sunil Kumar Singh 11/28
9. During his cross examination he stated that only the accused was working as Assistant Director under him. There might be more than dozen Assistant Director at that time. He stated that the whole conversation was taken place between him and Mr. Gandhi on phone. He stated that Mr. Vipin Gandhi never met him in his office as well as anywhere during this case. He stated that no quotation regarding the purchase of computer was ever issued from his office. He denied the suggestion that to issue purchase letter or quotation by the Administration Department of which Mr. G.S. Negi was Incharge. He voluntarily stated that Mr. Negi was Account Officer and not Incharge of Administration Department. He stated that he does not recollect due to passage of time as to who was the Incharge of Administration Department. He denied the suggestion that he was deliberately and intentionally concealing these facts from the court. He stated that his statement was never recorded by the police in this case. He voluntarily stated that his statement was recorded by the police in his office by the IO but he does not recollect the the exact date and time but it was in the last week of March or First week of April, 1997. He stated that no police official has ever met him in his office during the investigations. He admitted that cheque book is valuable document. He admitted that the cheque book remained in the custody of the Accountant i.e. Mr. Negi. No written complaint or information was given to him by Mr. Negi regarding the missing of cheque in question, however, FIR No. 307/97 State Vs. Sunil Kumar Singh 12/28 he came to know later on when the complaint was received. He stated that he received the information about the missing of the cheque in the month of March, th th 1997 and date may be either or 25 or 26 March. He stated that Mr. Negi had informed him first about the missing of the cheque in question. He stated that he had not asked for any explanation from Mr. Negi for missing of the cheque, even he did not give any direction for holding any enquiry against Mr. Negi. He stated that he did not make any complaint directly to the police regarding missing of the cheque in question, however, he informed his Administrative Officer at that time but the same was not given in writing. He stated that he did not direct Mr. Negi to go in the P.S. and lodge the report. He admitted that he had not gave his statement to the police officer directly. He admitted that document i.e. Ex. PW3/DA is not in his handwriting. He stated that he can not tell who has written this document. He stated that he had put signatures on the aforesaid document after reading the same. He denied the suggestion that he in connivance with Administrative Officer and Mr. Negi gave the statement i.e. Ex. PW3/DA deliberately to implicate an innocent person. He stated that it was never told to him by Mr. Vipin Gandhi as to who has given him the purchase letter and the cheque in question. He denied the suggestion that he was deliberately telling lie. He denied the suggestion that it was told to him that purchase letter and the cheque in question was brought by R.R. Singh claiming to be Peon of the Institution. He stated that one Peon was working in the office during the relevant FIR No. 307/97 State Vs. Sunil Kumar Singh 13/28 period, however, he was common for twothree officers. He stated that he never called and asked Mr. Vipin Gandhi to tell him as to who is that person R.R. Singh who has given the purchase letter and the cheque in question to him. He stated that he had told to the police during his statement recorded in writing that the accused was having access to the purchase letter and cheque book in question. He denied the suggestion he had made the aforesaid improved statement to falsely implicate the accused. He stated that he had not seen the accused tampering the record. He stated that he had not stated before the police that the acts of the cheating etc. was done by the accused. He denied the suggestion that the cheque in question was neither missing nor stolen. He denied the suggestion that he, in connivance with Mr. Negi and Mr. Vipin Gandhi committed the act of cheating after hatching conspiracy to embezzle the amount in question. He denied the suggestion that accused has been falsely implicated when the conspiracy was brought into the notice of other persons. He stated that he does not know if the computer was never installed and it was never recovered. He stated that he does not remember who had brought the cheque in question and the purchase letter in his office after complaint to the police.
10. PW 4 Mr. M.L. Sharma deposed that on 26.03.1997 he was posted as Manager Accounts in State Bank of Patiala, Shastri Bhawan New Delhi and on that day, he put his endorsement regarding stop payment of a cheque bearing FIR No. 307/97 State Vs. Sunil Kumar Singh 14/28 no. 903379 drawn on State Bank of Patiala dated 22.03.1997 vide cheque return memo i.e. Ex.PW4/A. He further deposed that apart from this, he has no other role and statement was not recorded by the IO during the investigation.
11. PW 5 SI Rahul Sawhney deposed that on 04.08.1999 he was posted as SI at PS Defence Colony and on that day, he was entrusted with the investigation of the instant case. He deposed that he recorded the statement of the witnesses and collected the documents relating to purchase of computer i.e. Mark A to H and Ex.PW2/D. He deposed that thereafter, he filed the challan in the court.
12. During his cross examination he admitted that the said case was registered on 26.03.1997. He admitted that he recorded the statement of Jitender Solanki on 20.01.2000. He admitted that prior to it there is no statement of Jitender Solanki on the file. He admitted that the name of this witness namely Jitender Solanki does not appear in the FIR. He stated that he does not remember who produced witness Jitender Solanki at which place. He denied the suggestion that he did not record the statement of Jitender Solanki and at the instance of the complainant of this case whatsoever he has told he recorded the statement u/s 161 Cr.P.C.
13. I have heard the arguments advanced at bar by the learned Defence FIR No. 307/97 State Vs. Sunil Kumar Singh 15/28 counsel as also learned APP, carefully gone through the evidence recorded in the matter and perused the documents placed on record by the prosecution in this case.
14. After hearing the rival contentions raised at bar as well as on careful scrutiny of the material on record, I am of the considered opinion that the prosecution has not been able to prove/establish beyond reasonable doubts the essential ingredients of Section 420 & 471 IPC against the accused.
However, from the prosecution evidence and the other material on record it stands unambiguously established that accused Sunil Kumar Singh was in deed found in possession of the computer set which he had retained knowingly or having reasons to believe the same to be a stolen property.
15. The reasons for acquitting the accused u/s 420 & 471 IPC are the failure on the part of the prosecution to produce any eye witness or accomplice who could have testified in the court that it was accused Sunil Kumar Singh who had forged the purchase order and the cheque in question or that the purchase order or the cheque was forged at his instance and presented the same to M/s SGS Computer Consultants. In fact, it was not the case of the prosecution that it was Sunil Kumar Singh who had presented/handed over the pay order and the cheque in question to Mr. Vipin Gandhi. As per the prosecution story one person FIR No. 307/97 State Vs. Sunil Kumar Singh 16/28 namely R.R. Singh had done so on behalf of accused Sunil Kumar Singh. However, the said R.R. Singh could not be arrested and in fact could not be traced out during the investigation. Neither the use by the accused nor forgery could be proved. Reliance may be placed upon the law laid down in Kishan Pershad (1870) 2 NWP 202. Moreover, though, charge sheet was filed u/s 468 IPC however, the FSL report on record gave an absolute clean chit to the accused and the forgery could not be connected with the accused.
Similarly, the prosecution could not prove that the delivery of the computer set was given to accused Sunil Kumar Singh. Prosecution failed to examine any witness in this regard. Once, the delivery aspect could not be proved the essential ingredients of Section 420 IPC could not be made out. Neither inducement by the accused nor delivery to him could be proved by the prosecution. Reliance may be placed upon the law laid down in Hira Lal Hari Lal Bhagwati v. CBI 2003 SCC (CRI) 1121, State of Kerala v. K.V. Pallai AIR 1973 SC 426, S.W. Palaniktar v. State of Bihar 2002 SCC (CRI) 129 and Ramjas AIR 1974 SC 1811.
Hence, there is no iota of evidence of either Section 420 or 471 IPC against the accused.
16. None the less, from the testimony of complainant Mr. Vipin Gandhi as discussed above it stands squarely proved that the computer set belonging to his FIR No. 307/97 State Vs. Sunil Kumar Singh 17/28 company were recovered from the accused for which the accused failed to account for the possession.
17. PW2 (Mr. Vipin Gandhi) who was the star witness of the prosecution case deposed that after his telephonic conversation with Mr. M.U. Deshpandey on the next day of the delivery of the computer, who had told him that no purchase order or cheque was issued by him, he along with his engineers who had delivered the computer set went to the place of delivery where one person told him that he had not received any delivery but the delivery might have been received by his friend Sunil Kumar Singh (accused) who was present at his house on the last night i.e. day of delivery. The complainant further deposed that he along with his brother in law went to AICTE and collected the address of the accused and when he was not found at his house he gave his complaint to the police in this regard which is on record as Ex. PW2/A. He went on to depose that he along with the police officials went to the office of AICTE from where the accused was taken to the PS and at around 11.00 pm on being informed by the police that the recovery is to be effected he accompanied them to the house of the accused from where the computer set was recovered. His deposition regarding the recovery to that effect read as under: " I was sitting outside of the reception of PS and thereafter 11.00 pm police told me that recovery is to be effected and asked me to accompany them. I accompanied to the police to the house of the accused FIR No. 307/97 State Vs. Sunil Kumar Singh 18/28 and from there the computer set delivered by our office was recovered. The seizure memo of the computer set is Ex. PW2/B bears my signature at point A".
18. I have gone through the seizure memo Ex. PW2/B dated 27.03.1997. I find no reasons to disbelieve the above statement of the complainant regarding the recovery of the computer set from the house of the accused. This recovery of the computer set from the house of the accused makes him liable u/s 411 IPC r/s Section 114 (a) of the Indian Evidence Act, 1872. Reliance may be placed in this regard upon the law laid down in Virumal Mulchand AIR 1974 SC 334, Sadasiv Das AIR 1958 Ori 51 and Karnal Singh Uttam Singh AIR 1976 SC 1097.
Though, Ld. Defence Counsel during the course of arguments had argued that the accused had been falsely implicated by the complainant and no recovery was effected from him, but I do not agree with the contentions of the Ld. Defence Counsel as I have no reasons to disbelieve the complainant and I find no reasons why the complainant would falsely implicate the accused. There is nothing on record to suggest that the complainant was known to the accused prior to the incident. There is nothing on record to even remotely suggest that the complainant was inimical to the accused or had some personal rivalry/grudges against the accused to falsely implicate him. The defence miserably failed to FIR No. 307/97 State Vs. Sunil Kumar Singh 19/28 prove any motive which could be assigned to the complainant for falsely implicating the accused. In fact, during his cross examination PW2 categorically stated that "there was no prior dealing with this institute AICTE, that is why I have acquaintance with M.U. Deshpandey. Likewise, I have no dealing with the accused persons and I have no acquaintance with him". The defence failed to prove that PW2 was deposing falsely or that he had prior dealings with AICTE or Mr. M.U. Deshpandey.
19. The accused had also claimed that he had been falsely implicated in the present case on account of the fact that he did not become part of the conspiracy of certain employees of AICTE who were involved in certain illegal practices. In his statement recorded u/s 313 Cr.P.C. he had claimed that " During the year 1997, many illegal practices at AICTE and I was against them/ did not become part of the conspiracy of certain employees of AICTE regarding their illegal designs and hence, I was targeted and falsely implicated in this case". However, in my opinion it was a sham defence put up by the accused. Firstly, he failed to prove as to what were the illegal practices carried on in AICTE in the year 1997. Secondly, why and who wanted to make him part of the illegal practices could not be explained by him. Accused failed to give name of those "certain employees"
who had conspired to falsely implicate him for his not becoming part of their conspiracy. Nothing stopped the accused from disclosing their names. Even the FIR No. 307/97 State Vs. Sunil Kumar Singh 20/28 accused could not prove on record/could not bring on record during the trial any letter or complaint lodged by him in the year 1997 whereby he had brought the "illegal practices of the employees of AICTE" to the knowledge of senior officers or the police or any other department. None the less, why would the complainant collude with the employees of AICTE to falsely implicate the accused could not be explained by the accused. The accused could not prove that the complainant was in collusion with those "certain employees" whose illegal practices the accused objected to and who had falsely implicated him in this case. In my opinion, those "certain employees" never existed and it was a sham defence/after thought taken up by the accused to avoid his culpability.
20. The Ld. Defence counsel had also attacked the recovery claiming same to be a planted one. It was argued that from the disclosure statement and the recovery memo of the alleged computer which are on record it is evident that the disclosure statement was recorded after the recovery as the recovery memo (Ex. PW2/B) is of 27.03.1997 whereas the disclosure statement bears the date 28.03.1997. Hence, when the recovery has already been effected and the disclosure statement recorded later on, same becomes inadmissible in evidence in view of the provisions of Section 25 to 27 of the Indian Evidence Act, 1872. Reliance was placed in this regard upon the law laid down in 2002 (2) JCC 1385 Delhi titled as Montoo Shah v. State of Delhi. However, I differ and do not FIR No. 307/97 State Vs. Sunil Kumar Singh 21/28 agree with this line of arguments of the Ld. Defence Counsel. From the records, it is evident that after the FIR was registered and the investigation started it was revealed that the computer set in question might be available/can be got recovered from accused Sunil Kumar Singh. Complainant Vipin Gandhi (PW2) during his testimony categorically stated that after he gave his complaint to the police which is Ex. PW2/A and went to his house along with two police officials but the accused could not be found at his house. He further deposed that on the next day he along with the police went to the office of AICTE and the accused was taken to PS by the police and while he was sitting at the PS at around 11.00 pm in the night he was told by the police that the recovery is to be effected and accordingly he accompanied the police, went to the house of the accused and got the computer recovered. The relevant portion of his testimony in this regard read as " I was sitting outside of the reception of PS and thereafter 11.00 pm, police told me that recovery is to be effected and asked me to accompany them. I accompanied to the police to the house of the accused and from there, the computer set delivered by our office, was recovered. The seizure memo of the computer set is Ex. PW2/B bears my signature at point A". The above statement of the complainant makes it amply clear that the recovery was effected only in pursuant to the disclosure statement of the accused. The seizure memo bears the signatures of the complainant and I find no reasons to disbelieve his above testimony. As deposed by the complainant it FIR No. 307/97 State Vs. Sunil Kumar Singh 22/28 was at 11.00 pm that the police told him that he has to accompany them to the house of the accused for recovery of the computer set. From the recovery memo and the records it is evident that the computer set was recovered from the house of the accused which was situated at Saadh Nagar, Palam Colony, New Delhi. It is a matter of fact that Saadh Nagar, Palam Colony is situated at a distance of 1520 km. from PS Defence Colony where the disclosure was made by the accused. If the complainant as discussed above was informed at about 11.00 pm about the recovery to be effected it would have taken the police 45 minutes to one hour to reach the house of the accused. In this scenario by that time the police reached the house of the accused the next day must have started. May be the IO had forgotten to obtain the signatures of the accused at the PS and he took the signatures later on may be at his house or after coming back to the PS. Merely, because of this laxity/negligence on the part of the IO in obtaining the signatures cannot be formed a ground/basis to disbelieve the complainant. Moreover, the law is well settled that an accused should not be allowed to scott free or the prosecution story disbelieved merely on account of defect in investigation. Reliance may be placed upon the law laid down in Balwant Singh v. State of Haryana, (SC) 1995 A.I.R. (SC) 84 and Amar Singh Vs. Balwinder Singh 2003 AIR SCW 717).
Every faulty investigation or padding in evidence cannot by itself lead to total demolition of prosecution case if it can otherwise stand ignoring these FIR No. 307/97 State Vs. Sunil Kumar Singh 23/28 fallacies. Reliance may be placed upon law laid down in Lakshmi v. State of UP (SC) 2002 (4) R.C.R. (Criminal) 82, Ram Parshad v. State of Haryana, (P & H) (DB) 1992(3) R.C.R (Criminal) 231, Zahira Habibulla H. Sheikh v. State of Gujrat (SC), 2004 (4) S.C.C 158 and State of UP v. Jagdeo (SC) 2003 A.I.R. (SC) 660, (1999) 2 SCC 126; (1998) 4 SCC 517; AIR 2003 SC 1164; AIR 1996 SC 3035; 2000 SCC (Cri) 522; AIR 2002 SC 1937 and AIR 1996 SC 1393.
"To do so would tantamount to playing into hands of investigating officer if investigation is designedly defective" (Karnel Singh v. State of M.P. AIR 1995 SC 2472).
21. Hence, in view of my above discussion, I am of the firm opinion that the recovery of the computer set which was effected by way of Ex. PW2/B is not hit by Section 26 of the Indian Evidence Act, 1872.
22. During the course of arguments, Ld. Defence counsel had argued that the prosecution failed to examine the material witnesses namely Sh. G.S. Negi, T.R. Ken both employees of AICTE, the IO of the case namely SI R.D. Pandey and Engineer Jitender Solanki who had allegedly delivered the computer set to the accused. Even the owner of house no. 136, MPS Flats, South Avenue, New Delhi i.e. Mr. Alok Verma where the computer was delivered was not joined in the investigation though, he was the material witness. It was argued that non FIR No. 307/97 State Vs. Sunil Kumar Singh 24/28 examination of these witnesses itself casts serious doubt upon the prosecution case and renders it untrustworthy. It was also argued that the investigation remained absolutely silent regarding R.R. Singh the alleged office peon who had handed over the cheque and the pay order to the complainant on behalf of the accused and also accompanied the engineers to the place of delivery of the computer set. It was argued that no such R.R. Singh ever existed and the fact that he could not be traced during the investigation itself proves that the entire prosecution story was concocted one.
23. However, in my opinion non examination of these witnesses/failure on the part of prosecution to produce them during the trial has in no way effected the prosecution story. No doubt, they were important witnesses however, merely the failure of the prosecution to produce them during the trial does not render the testimony of the complainant unreliable/unbelievable. Moreover, it was because of the failure on the part of the prosecution to examine these witnesses that the accused has been acquitted u/s 420 & 471 IPC which are more serious offences and for which the accused had been facing trial all this while. Furthermore, nothing stopped the accused from examining Mr. Alok Verma or the two engineers in his defence so as to contradict the claims of PW2 and the prosecution.
FIR No. 307/97 State Vs. Sunil Kumar Singh 25/28
24. It is well settled principle of law that it is the quality of evidence that matters and not the quantity/number of witnesses. Section 134 of the Indian Evidence Act does not require any minimum number of witnesses to be examined for proving a particular fact ( Sunil Kumar V. State Govt. of NCT of Delhi SC 2004 (1) Criminal CC 524, Krishna Mochi and others Vs. State of Bihar, (2002) 6SCC 81). Further the court/judges cannot sit in an ivory tower of isolation and ignore the fact that there is a tendency amongst witnesses in our country to wash off their hands/desist from joining/assisting the investigation. Civilized people withdraw both from the victim and the vigilante and they keep them selves away from the Court unless it is inevitable. (Ambika Prasad and others Vs. State, (2002) 2 CRIMES 63 SC) and (AIR 1988 SC 696).
25. There is no requirement of law that everyone who has witnessed the oc currence, whatever there number be, must be examined as a witness. (Amar Singh V. Balwinder Singh (SC) 2003 (1) RCR Criminal 701). In Jawahar v. State, (Delhi) 2007(4) R.C.R.(Criminal) 336 it was further observed that (1) It is very hard these days to get association of public witnesses in criminal investiga tion and (2) Normally, nobody from public is prepared to suffer any inconve nience for the sake of society.
FIR No. 307/97 State Vs. Sunil Kumar Singh 26/28
26. None the less, I will take this opportunity to bring on record my displeasure towards the kind of investigation as has been conducted in the present matter. The investigation as is writ large from the records has been absolutely negligent, sloppy and shoddy. The allegations were too serious and required detailed inves tigation however, IO SI R.D. Pandey's investigation lacked professionalism. How ever as discussed above while dealing with the disclosure statement merely be cause the IO failed to discharge his duties diligently, the same cannot be formed the basis for acquitting the accused/disbelieving the complainant. The com plainant (PW2) had categorically stated during his testimony that he had pro duced both the Engineers before the IO. Once, the complainant had produced both the engineers before the IO it was for the IO to join them in the investigation/record their statement etc. and the complainant had no further role to play.
27. Accordingly, in view of my above discussion, accused is held guilty under section 411 IPC.
28. I order accordingly.
29. Copy of the judgment be given to the accused free of cost.
FIR No. 307/97 State Vs. Sunil Kumar Singh 27/28
30. Let he be now heard on the point of sentence separately.
Announced in the open (Gaurav Rao)
Court on 30.03.2012 MM (South)/Delhi.
FIR No. 307/97 State Vs. Sunil Kumar Singh 28/28
IN THE COURT OF GAURAV RAO: METROPOLITAN MAGISTRATE: SOUTH DISTRICT: SAKET COURTS: NEW DELHI In Re: STATE VERSUS SUNIL KUMAR SINGH F.I.R. No: 307/97 U/s 420/471 IPC P.S. Defence Colony ORDER ON SENTENCE 09.04.2012 Present: Ld. APP for the State.
Convict Sunil Kumar Singh is present along with counsel. Vide judgment announced on 30.03.2012 accused Sunil Kumar Singh was convicted u/s 411 IPC.
The learned defence counsel has submitted for the convict that convict has been facing trial for the last more than 15 years and the same itself has been enough punishment for him. It is submitted that he has been residing at Pune for the last 10 years and has been coming from Pune to face the trial which has financially drenched him. It was submitted that the convict has clean antecedents i.e. is not involved in any criminal activity and he has two minor children aged about 3 & 10 years to look after apart from old and ailing parents. It FIR No. 307/97 State Vs. Sunil Kumar Singh 29/28 was further prayed that accused/convict be given benefit of section 360 Cr.P.C. and either released on probation or after due admonition.
Per contra, learned APP has very vehemently argued that the act of the accused is unpardonable. It was submitted that the accused deserves no leniency.
After giving my thoughtful consideration to the submissions made at bar I am of the considered opinion that taking into account the overall facts and circumstances of the case it shall meet the end of justice if convict Sunil Kumar Singh is sentenced to undergo one year and 27 days simple imprisonment along with fine of Rs.1000/ for offence u/s 411 IPC. In default of payment of fine he shall undergo further SI of 10 days. As the accused has already undergone 27 days in custody, benefit of section 428 Cr.P.C. is given to the accused and the said period be deducted from the sentence so awarded today.
I am not inclined to give him benefit of Section 360 Cr.P.C. As accused Sunil Kumar Singh committed a very serious offence. His act is unpardonable and the manner in which the crime was committed shows the criminal bent of mind of the accused.
I order accordingly.
At this stage, an application u/s 389 Cr.P.C. has been moved by accused Sunil Kumar Singh for suspension of sentence. Considered. As the accused was on bail during trial he is admitted to bail on furnishing bail bond in FIR No. 307/97 State Vs. Sunil Kumar Singh 30/28 the sum of Rs. 10,000/ with one surety of the like amount for 30 days.
A copy of this order be given to the convict free of cost. File be consigned to Record Room.
Announced in the open court (Gaurav Rao)
on 09.04.2012 MM(South): Delhi
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