Delhi District Court
Cr. Case/292423/2016 on 27 May, 2019
IN THE COURT OF SH. ASHU GARG
CHIEF METROPOLITAN MAGISTRATE (CENTRAL)
TIS HAZARI COURTS, DELHI
New Case No. 292423/16
CNR No. DLCT02-000258-2005
FIR No.: 77/1998
PS: Shakarpur
U/s. 420/406/34 IPC,
sec. 4, 5 Prize Chits & Money Circulation Schemes (Banning) Act
State v. Banarasi Dass & Anr.
(a) S. No. of the case : 292423/16
(b) Name of complainant : Ms. Mamta Yadav
W/o. Sh. Anoop Yadav
R/o C-12, Ganesh Nagar,
Shakarpur, Delhi-92
and Others
(c) Date of commission of offence : 1996-1997
(d) Name of the accused : Sh. Banarasi Dass
S/o. Sh. Diwan Chand
[SINCE EXPIRED]
Smt. Asha Rani
W/o. Sh. Banarasi Dass
R/o.S-152, Sundar Block,
Shakarpur, Delhi
(e) Offence complained of : U/s. 420/406/34 IPC
r/w sec. 4, 5 Prize Chits &
Money Circulation Schemes (Banning) Act
Charges framed : U/s. 406/34 IPC
r/w sec. 4, 5 Prize Chits &
Money Circulation Schemes (Banning) Act
FIR No. 77/1998, PS Shakarpur Page No. 1 of 32
(f) Plea of accused : Pleaded not guilty
(g) Final arguments heard on : 13.05.2019
(h) Final Order : Convicted
(i) Date of such order : 27.05.2019
JUDGEMENT:
1. The present charge-sheet was filed against accused Sh. Banarasi (since expired) and his wife Smt. Asha Rani under section 406/420/34 IPC read with sections 4 and 5 of Prize Chits and Money Circulation Schemes (Banning) Act, 1978, with the allegations that during the period from year 1996 to mid-1997, both of them in furtherance of their common intention had cheated or committed criminal breach of trust with a large number of persons by unlawfully collecting money from them and running schemes whereby they were induced to pay specific amounts to them every month and that winner was to be declared every month under a draw who would collect the whole amount with prized chits and others shall continue as members (commonly called as "chit-fund transaction" or "a committee").
2. As per charge-sheets (records shows that multiple copies of same chargesheet have been filed together, with names of different complainants in their first column), a number of complaints were received by the police and finally, the present FIR was registered on FIR No. 77/1998, PS Shakarpur Page No. 2 of 32 the complaint dated 27.02.1998 made by Ms. Mamta Yadav, after obtaining opinion of the prosecution branch. Several such signed complaints given to the police are on record. The common grievance running in all such complaints has been, that the accused persons (Banarasi Dass and his wife Asha Rani) had initiated schemes called "Uphaar Lucky Draw Scheme" and "Naseeb Apna Apna". Under these schemes, various amounts of money were collected from specific number of people (members of the committee) every month. Duration of the schemes varied from scheme to scheme. Scheme cards used to be given to all such members and their monthly contributions used to be recorded in them. There used to be draw of lots on given date every month. The person in whose name the draw was awarded, was to be given the complete collected amount under discount and all the members continued to keep investing the money. At the end of the duration of the scheme, the collected amount of each member used to be returned either with additional money or with a prize from out of the profits generated from the discounts given to the persons in whose names chits had been drawn every month. A lot of money was thus collected by the accused persons by inducing the people of locality and assuring them of good returns and prizes. But subsequently, after collecting the money, the accused persons refused to pay back the money or prizes to the investors despite persistent demands and threatened the victims. It was alleged that the accused persons misappropriated the monies and converted the same to their own use by failing the pay back the same. Finally, after the present FIR was registered under the aforesaid provisions, the accused persons FIR No. 77/1998, PS Shakarpur Page No. 3 of 32 were arrested and booked in the present case. The cards given to the members were collected. From the house of the accused persons, several notebooks were recovered wherein the rough accounts of the schemes and collections were maintained. The specimen handwriting of the accused persons was taken and sent for forensic examination to be compared with the seized documents including the lucky draw cards and the notebooks. After completion of investigation, charge- sheet was filed on 21.07.2001.
3. Cognizance of the offences was taken on 21.07.2001 itself and both the accused persons were summoned. Vide order dated 02.05.2007, charge was framed against both the accused persons for commission of offences punishable under section 406/34 IPC and sections 4 and 5 of Prize Chits and Money Circulation Schemes (Banning) Act, to which they pleaded not guilty and claimed trial.
4. During the course of trial, the accused Banarasi Dass expired and proceedings against him stood abated. The trial was then faced only by his wife accused Asha Rani.
5. At the trial, prosecution examined thirteen witnesses in support of its case. PW-13, PW-1, PW-8 and PW-7 are the police officials who were part of the investigation and all other PWs are the public witnesses / victims against whom the offences were allegedly committed by the accused persons.
6. PW-13 Insp. D.K. Tejwan was the investigating officer (IO) of FIR No. 77/1998, PS Shakarpur Page No. 4 of 32 the case. He deposed that in the year 1997, a complaint Ex. PW-113/A was received from the office of the Joint CP against the accused persons, on which he wrote letter Ex. PW-13/B to the prosecution branch for opinion. In the meanwhile, in February 1998, lot of persons who had given money to the accused persons had gathered at PS Shakarpur complaining against them. One Smt. Mamta Yadav being one of the victims, her statement Ex. PW-1/B was recorded, on which the present FIR was registered. He prepared site plan Ex. PW- 13/C and searched for both the accused persons. He collected several scheme cards Ex. PW-13/D (collectively) printed under the name "Naseeb Apna Apna" which had been given by the accused persons to the victims. The accused persons were arrested and personally searched on 07.04.1998 and their disclosure statements were recorded. At the instance of accused persons, few notebooks Ex. PW-13/E, Ex. PW-13/F, Ex. PW-13/G and Ex. PW-13/H were recovered containing the records of committees, which were seized vide memo Ex. PW-7/A. He obtained specimen handwriting of the accused persons and admitted handwriting Ex. PX1 and Ex. PX2 and sent for expert opinion. After completion of investigation, he prepared the charge- sheet and filed the same in the Court. FSL opinion was subsequently received and filed on record.
7. PW-1 HC Suresh Kumar was Duty Officer at PS Shakarpur who had registered the present FIR Ex. PW-1/A on 27.02.1998, on the basis of the rukka Ex. PW-1/B sent by IO SI D.K. Tejawan.
FIR No. 77/1998, PS Shakarpur Page No. 5 of 328. PW-8 Ct. Attar Singh had joined the investigation after registration of FIR. He had witnessed preparation of site plan by the IO.
9. PW-7 Ct. Satish Kumar had participated in the investigation of the present case and had witnessed the arrest of the accused persons, conducting their personal search and recording their disclosure statements by SI D. K. Tejwan. He had also witnessed obtaining specimen handwriting of the accused persons and recovery of four copies/notebooks them.
10. PW-2 Smt. Yamuna Devi could not recall the complete facts of the case and only stated that she had deposited 20 installments of Rs. 100/- each under the promise that she would receive Rs. 2200/- but nothing was paid to her. She stated that she did not recall as to with whom she used to deposit the amount. During cross-examination by Ld. APP for the State, she could not recollect the facts mentioned in her statement Mark PW-2/A and could not recollect if the payments had been made to Banarasi Dass or his wife Smt. Asha Rani or if the payments were made under Uphaar Lucky Draw Scheme. She stated that she did not know accused Asha Rani and was not aware if she had met her before.
11. PW-3 Smt. Usha Devi deposed that a scheme under the name of Uphaar Lucky Draw was launched by accused Asha Rani and her husband Banarasi Dass and that she and some other persons had FIR No. 77/1998, PS Shakarpur Page No. 6 of 32 deposited installments in that scheme. She recollected that she had deposited about Rs. 20,000/- in the scheme out of which a sum of Rs. 4,000/- was repaid to her by accused Asha Rani and that Rs. 16,000/- were still owed to her with interest.
12. PW-4 Smt. Mamta Yadav is the complainant who had filed the complaint Ex. PW-4/A with SHO PS Shakarpur. She stated that in the year 1995, she came in contact with accused Banarasi Dass (since expired) and his wife Asha Rani (whom she correctly identified in the court) and came to know that they were organizing Uphaar Lucky Draw Scheme. She had deposited Rs. 100/- per month in her name and in the name of Master Gaurav, for 18 months and 16 months respectively and claimed to have also deposited Rs. 50,000/- and Rs. 1,00,000/- with the accused persons as committee, but said amounts were never returned to her. She stopped making further payments and when her amounts were not returned by the accused persons, she reported the matter to the police. She also identified the cards Ex. PW-4/B and Ex. PW-4/C issued by accused person. During cross- examination, she stated that Ex. PW-4/A was not in her handwriting but in the handwriting of some other person who was present at the house of accused persons when quarrel had taken place and they decided to approach the police. The complaint Ex. PW-4/A was written at the Police Station. She confirmed that one Poonam, her relative, had also made complaint to the police on the same day. She could not tell as to who had written the cards Ex. PW-4/B and Ex. PW-4/C. FIR No. 77/1998, PS Shakarpur Page No. 7 of 32
13. PW-5 Smt. Renu deposed that she had deposited a sum of Rs. 50,000/- with the accused persons Asha Rani and her husband Banarasi Dass by way of lottery for 20 months. She identified the accused Asha Rani in the court and stated that the amount of lottery was not given to her on the pretext that Banarasi Dass needed money and that the money would be given to her later. She continued to deposit the amount but money was not paid back to her despite repeated requests. She proved her complaint Ex. PW-5/A. During cross examination, she stated that she had met both the accused persons at Baba Balak Nath Mandir, Shakarpur. She informed that the accused persons did not issue any receipt of money and that she had no document as proof of joining the said committee as member. She could not tell if in-charge of Baba Balak Nath Mandir was one Devender Kumar or if any criminal case had been registered against him. She had visited the house of accused persons several times to make the payments. She however could not identify the handwriting of accused persons and denied deposing falsely.
14. PW-6 Smt. Kamlesh also deposed that she came into contact with the accused persons being a regular visitor of Baba Balak Nath Mandir, Shakarpur who had told her about the committee business. She claimed to have paid Rs. 1,000/- per month to the accused for a committee and Rs. 20,000/- for 20 months. She informed that the collected amount used to be entered in a register by accused Banarasi Dass. When the amount was demanded back, the accused persons FIR No. 77/1998, PS Shakarpur Page No. 8 of 32 refused to return the same. She proved her complaint Ex. PW-6/A given to the police.
15. PW-9 Smt. Pushpa Devi deposed that she and many other people had kept their money with accused Banarasi Dass for the purpose of committee. She had become member of the committee of Rs. 80,000/- but when asked about refund of money, accused Banarasi Dass refused to give the money, had threatened to kill her and to kidnap her son. During cross-examination by Ld. APP on some points, she admitted that she had initially invested Rs. 22,000/- for two committees and then invested Rs. 15,000/- in one committee and had taken the amount of the committee at a loss of Rs. 80,000/-. She had then again invested in two committees of Rs. 22,000/- each, then Rs. 50,000/- and then Rs. 20,000/-. She confirmed that accused Banarasi Dass used to write with regard to the said committee, for which no receipt was given by the accused persons. During cross-examination by the accused, she admitted that accused Banarasi Dass and Asha Rani used to visit Baba Balak Nath Mandir, Shakarpur. She stated that she had visited the house of accused persons for the purpose of committee only. She denied that due to pressure of Pujari of the said Temple for getting out of pending rape case, she was asked to lodge false complaint against the accused persons. She stated that all the entries with respect to deposit of the money were made in the register in possession of the accused persons. She denied that she had received the committee amounts which she had invested with the accused persons and denied lodging a false complaint.
FIR No. 77/1998, PS Shakarpur Page No. 9 of 3216. PW-10 Smt. Seema did not support the prosecution case and stated that she was very young at the time of incident and was not aware of the case. During cross-examination by Ld. APP, she stated that her mother Smt. Kalawati used to take cards of lucky draw schemes that were run by the accused Banarasi Dass and that she was not aware of anything about accused Asha Rani. She only confirmed that accused Banarsi Dass and Asha Rani used to occasionally visit her house and that she came to know through her mother that they had not returned the money they received under the lucky draw scheme.
17. PW-11 Smt. Mithlesh Gupta also did not support the prosecution case and stated that she had no knowledge of either the accused persons or about any lucky draw scheme in the name of her children. She denied all the suggestions given to her by Ld. APP. She denied having subscribed to the lucky draw schemes in the name of her children with the accused persons or deposit of Rs. 100/- against each card or the accused making entries in the card or failure on the part of the accused persons to return the money or her being threatened.
18. PW-12 Smt. Bimla Devi also did not support the prosecution case and stated that she was not aware of any lucky draw scheme in the name of her husband and son. During cross-examination by Ld. APP, she denied that she had subscribed to the lucky draw scheme cards at the instance of the accused persons or deposited the money FIR No. 77/1998, PS Shakarpur Page No. 10 of 32 therein or failure of the accused persons to return the money or to threaten her or making any complaint to the police.
19. Statement of accused Asha Rani under section 313 CrPC was recorded on 08.02.2019 wherein she denied the allegations and pleaded innocence. She claimed that her husband had started committee at the instance of some people but she had no role to play in them. She maintained that her husband used to pay back all the money to the person in whose name the committee draw came but stated she had no role in the same or in the lucky draw schemes. She stated that she used to remain present whenever the money was paid by her husband but when no money was given to them, there was no occasion to pay it to others. She stated that her signatures were never obtained by the police and that she was innocent. She chose not to lead evidence in defence.
20. It is in these circumstances that the Ld. APP for the State has argued that the prosecution has been able to prove its case against the accused Asha Rani beyond reasonable doubt as most of the witnesses have supported the prosecution case and there is no material contradiction in their version. It is submitted that testimony of many witnesses has remained unrebutted as many such witnesses were not cross-examined by the accused. It is then submitted that hostility of a few witnesses and untraceability of large number of witnesses on account of old age of the case, would not be reasons to give any benefit to the accused.
FIR No. 77/1998, PS Shakarpur Page No. 11 of 3221. On the other hand, Ld. Defence Counsel has argued that no case whatsoever is made out against the accused Asha Rani. It is pointed out that several prosecution witnesses have not supported the prosecution case on any count and most of the cited witnesses could not be examined by the prosecution. It is then submitted that whatever acts were committed in the present matter, they had been commitetd only by Late Sh. Banarasi Dass, husband of the accused Asha Rani, and that she had been falsely implicated in this case on because she happened to be his wife. It is claimed that accused Asha Rani is an illiterate lady and a housewife, who had no role to play in any of the chit-fund/committee transactions, in receipt or payment of monies or in maintenance of any record. It is pointed out that even the FSL result could not establish that she had any role in the offence or that she had signed any register or any notebook recovered from her house. It is then submitted that no offence punishable under section 420 IPC is made out in the absence of any inducement, fraud or deception (though it may be noted that no charge was framed against the accused under section 420 IPC). It is then argued that there was no entrustment of money in the present case and therefore, no offence under section 406 IPC would be made out. It is pointed out that no witness has produced any receipt or any other proof of payment of any specific amount of money to accused persons, and to accused Asha Rani in particular. Ld. Counsel has argued that merely on the basis of oral submissions, it cannot be assumed that accused Asha Rani had received any payments, and if so received then what payments were FIR No. 77/1998, PS Shakarpur Page No. 12 of 32 received. It is reiterated that accused Asha Rani had not made any entry in any notebook, made no assurance of repayment of money, and had no role to play in running of the said committees. It is thus submitted that if at all any role is to be attributed, that role would be that of her husband Sh. Banarasi Dass who has since expired.
22. I have considered the submissions made by the Ld. APP for the State and Ld. Defence Counsel and have perused the record.
23. Before proceeding to the merits of the case, it would be seen that most of the witnesses examined on record have not been cross- examined by the accused and their testimonies have remained unrebutted and unchallenged. Out of thirteen witnesses examined on record, only three witnesses (PW-4, PW-5 and PW-9) have been cross- examined by the Ld. Defence Counsel. The other witnesses have not been cross-examined at all, despite opportunity given to the accused as well as her Ld. Counsel.
24. At this stage, it may be noted that such omission on the part of the accused to cross-examine many prosecution witnesses is not due to her inability to get legal assistance or financial constraints. Record shows that the accused has been duly represented by her Ld. Counsel since very beginning of the case. Ld. Defence Counsel had appeared on several dates of hearing but chose not to appear many such dates of hearing. Though Ld Counsel had participated in cross-examination of three witnesses, yet he absented himself during the examination of FIR No. 77/1998, PS Shakarpur Page No. 13 of 32 many other witnesses. Therefore, it is not a case where witnesses could not be cross-examined by the defence due to lack of legal representation or inability of the accused to engage a counsel of her choice. It is rather the case where the accused failed to ensure presence of her Ld. Counsel on some dates of hearing and also omission on the part of Ld. Counsel to cross-examine the witnesses in his own wisdom.
25. In any case, even at the stage of final arguments, Ld. Defence Counsel never raised any objection with respect to his omission to cross-examine some witnesses. He never argued that those witnesses were required to be cross-examined or if failure on his part to cross- examine the witnesses has caused any prejudice to the accused. He never moved any application in his wisdom for recalling of any witness who had been earlier examined but not cross-examined. Ld. Defence Counsel has advanced final arguments on the basis of available material and on merits of the case, while pointing out deficiencies of the statements of the examined witnesses, whether cross-examined or not. Therefore, the court has to proceed on the basis of material available on record without being influenced by the failure of the accused to cross-examine most of the witnesses.
26. PW-1, PW-7 and PW-8 are formal witnesses who never witnessed any factual position as to commission of the offence, and merely deposed about registration of FIR, submitting copy of FIR to the IO, witnessing arrest of the accused, taking specimen handwriting FIR No. 77/1998, PS Shakarpur Page No. 14 of 32 and recording disclosure statements. PW-13 happened to be the IO of the case who also narrated the investigated steps. None of these witnesses had been cross-examined by the accused and therefore, their testimonies are deemed to have been accepted as correct. No questions have been asked to them with respect to the investigative steps. There is no dispute that complaints from several people were received at PS Shakarpur and that the present FIR was registered against the accused persons. The accused Asha Rani has not disputed the factum of her arrest or obtaining her specimen handwriting or filing of charge-sheet after completion of the investigation during the trial, though in her statement under section 313 CrPC she denied that her signatures had been obtained by the IO. Therefore, no benefit on any point from the investigation angle can be given to the accused. No defect or lapse or infirmity in the investigation has been pointed out by Ld. Defence Counsel. It has been however argued that the IO failed to collect any receipt of payment of money by any witness to the accused persons. But since it has come on record in the testimony of various witnesses that no such receipt used to be issued by the accused persons, the IO could not have collected any such receipt. There is no evidence to show that such receipts were in existence or were being issued so as to enable the IO to seize them or to attribute any infirmity in investigation on his 'failure' to seize such receipts.
27. At this stage, it may be noted that specimen handwriting of the accused was taken and such writing along with her admitted writings had been sent to the FSL for comparison with the recovered FIR No. 77/1998, PS Shakarpur Page No. 15 of 32 notebooks, cards etc. The FSL result was filed in court later, but no witness from the FSL has been examined by the prosecution to prove the said FSL report. Be that as it may, as far as the accused Asha Rani is concerned, there is nothing in the FSL result which could give any benefit to the prosecution. No definite opinion has been given by FSL with respect to the specimen writings of the accused Asha Rani in comparison to the questioned handwriting on the cards recovered from the accused persons or submitted by the victims or the notebooks recovered from the possession of the accused persons. Therefore, there is no need to even go into FSL result for any purpose.
28. It may also be noted that all the cited witnesses could not be examined on record. Only 13 witnesses could be examined by prosecution out of cited 35 witnesses. As per the reports received, many such witnesses remained untraceable when summoned and several witnesses expired before they could be examined. However, that would not in any way affect the prosecution case. There is no merit in the stand of Ld. Defence Counsel that 'failure' of the prosecution to examine all the cited witnesses should be taken adversely. It is not that some witnesses were deliberately not examined by the prosecution. The witnesses were duly summoned by the court but such summons returned unexecuted either due to death of the witnesses or due to their untraceability. Thus, non-examination of such witnesses cannot be taken adverse to the prosecution.
29. In any case, it is well settled that it is the quality of the FIR No. 77/1998, PS Shakarpur Page No. 16 of 32 witnesses that determines the fate of the case and not their quantity. In such cases involving a large number of victims, there is no requirement in law to examine each and every such person to prove the same facts. The facts can be proved by one or few witnesses and once a particular fact stands proved, there is no necessity to keep calling more witnesses to prove the same fact again and again. This is particularly in such cases where the acts of the accused persons during the period in question have been considered as a part of same transaction and they have been facing only one trial for all such transactions with a number of individual victims. The accused is not facing separate and individual trials for committing such offences qua each of the individual victims. Therefore, even if some victims were not examined due to their death or untraceability, that would not affect that prosecution case till the time the relevant facts are proved by the other witnesses on record.
30. After separating 4 police witnesses, it may be seen that out of the remaining 9 witnesses examined, 5 witnesses have supported the prosecution case, 3 witnesses have not supported the prosecution case and the evidence of 1 witness has remained inconclusive.
31. PW-2 Smt. Yamuna Devi deposed about investing money in the scheme whereby she deposited 20 installments of Rs. 100/- each under the promise that she would receive Rs. 2,200/- but no money was repaid to her. However, she was unable to identify the accused Asha Rani in the court and could not recollect if she had paid money to her FIR No. 77/1998, PS Shakarpur Page No. 17 of 32 or not. She rather stated that she did not know accused present in the court that day and could not say as to if she had even met before. Therefore, though the factum of her being part of the chit-fund transactions has been established, she has not deposed anything against accused Asha Rani and not assigned any role to her. No reliance can be placed on her testimony by the prosecution against the accused Asha Rani.
32. PW-10, PW-11 and PW-12 have not supported prosecution case on any count whatsoever. PW-10 was very young at the time of transactions and stated that she was not aware anything about the case. PW-11 and PW-12 simply denied any knowledge about the case or pf any lucky draw scheme in the name of their family members. All these witnesses were duly cross-examined by the Ld. APP for the State but there is nothing in such cross-examination which could help the prosecution. PW-10 could not depose anything with respect to card shown to her or about the involvement of accused Asha Rani. PW-11 and PW-12 also denied that they had deposited any money with accused Asha Rani or being part of chit-fund transactions or making any entry by accused or her failure to return money or there being any threat given by the accused. There is nothing in their statements on which the prosecution case could rest.
33. But, despite hostility of PW-10, PW-11 and PW-12, and the inconclusive nature testimony of PW-2 to establish identity of the accused, no automatic benefit can be given to the accused Asha Rani.
FIR No. 77/1998, PS Shakarpur Page No. 18 of 32These witnesses might have their own reasons or justification in not supporting the prosecution case. However, their hostility would, by itself, not negate or nullify the testimonies of other witnesses who have supported the prosecution case. The court is still required to appreciate whether the other witnesses who have supported the prosecution case are credible and trustworthy, so as to indict the accused. It is not that the PW-2, PW-10, PW-11 and PW-12 were to depose on the same fact which could be termed as a disputed fact on their failure to support the prosecution case. At most, their version would lead to conclusion that no money from these four witnesses had been taken by the accused for any purpose. But that would not establish or negate the fact if the accused had taken or not taken money from other persons.
34. It is well settled that testimony of even a single witness who is credible and trustworthy would be sufficient to convict an accused if there is no reason for the court to disbelieve his testimony given on oath in the court. Thus, the court has to ascertain if the testimonies of remaining 5 witnesses are trustworthy and creditworthy.
35. The record shows that many persons who had paid money to the accused persons had sent signed complaints to the police. Technically speaking, the offence was committed individually against each and every such person, but the present trial deals with all such complaints by treating them to be a part of single transaction.
FIR No. 77/1998, PS Shakarpur Page No. 19 of 3236. Out of the five witnesses who have supported the prosecution case, testimony of PW-3 and PW-6 has remained unrebutted and unchallenged. PW-3 and PW-6 have never been cross-examined by the defence and therefore, their evidence is deemed to have been accepted as correct. In the absence of any cross-examination, the court has virtually no reason to disbelieve these witnesses or to raise any question either on credibility or reliability or trustworthiness of these witnesses. These witnesses had no motive to falsely implicate the accused if she was not even otherwise known to them. No motive or previous enmity has been shown to exist by the accused so as to give any reason to these witnesses to depose falsely against her. Of course, being the victims of the offence, they would be interested in outcome of the case as they would want the actual offender to be brought to book, but that would not make these witnesses as interested witnesses or false witnesses so as to reject their testimony. This is particular when they have not even been cross-examined on any point by the defence. It is not that a single momentary incident took place at a specific point of time, where failure on the part of the police to join 'independent public witnesses' might be taken against the prosecution. When there were such monetary dealings running through a span of time, there can be no witnesses except the victims themselves.
37. Similar would be the position with respect to PW-4, PW-5 and PW-9. These witnesses supported the prosecution case on all material particulars and had also faced the test of cross-examination by the Ld. Defence Counsel. Even if the court chooses to ignore the testimonies FIR No. 77/1998, PS Shakarpur Page No. 20 of 32 of all the other witnesses on the ground that they were not cross- examined by defence, for any reason whatsoever, genuine or not-so- genuine, the prosecution case can still be decided on the testimonies of these three witnesses only, who have been duly cross-examined by the defence.
38. These three witnesses have duly identified the accused in the court and have categorically deposed that they had deposited money with her and her husband (since expired) under the Uphaar Lucky Draw Scheme. Such money used to be paid to the accused persons at their house or the accused persons used to collect them from victims. Necessary entries were made in cards given to the victims and also in the notebooks in possession of the accused persons.
39. All these witnesses categorically deposed about the such schemes wherein they were required to pay specific amount every month to the accused persons along with various other people of the committee / chit fund, and the name of the prized winner used to be announced every month by way of draw of lots. The witnesses informed that a large number of people had invested the money but their money was not returned by the accused persons and the victims were even threatened when they demanded their money from the accused persons.
40. Well, these witnesses have no reason to falsely implicate the accused in a criminal case of such nature. Such persons would not FIR No. 77/1998, PS Shakarpur Page No. 21 of 32 implicate innocent persons in false criminal case, without any motive or enmity, thereby also binding themselves for years together and also facing the risk of false prosecution. It does not appeal to senses that so many persons would connive together and join police officials, and be successful to falsely implicate an innocent person in a fabricated case by creating false story or manipulating documents. There is no reason given by the accused even in her statement under section 313 CrPC as to why such persons would depose against her. Thus, there is nothing before the court on the basis of which it may find any reason to disregard or discredit the testimony of these witnesses.
41. It has come on record that the lucky draw cards used to be given to the investors / victims and entries were made every month as and when they deposited money. All such original cards are on record as submitted by victims. It is nowhere the case of the accused Asha Devi, either at the trial or even in her statement under section 313 CrPC, that such cards are forged or fabricated, or were not so furnished by the victims to the police, or have been created to falsely implicate her. It is nowhere her stand that no such cards had been seized from the witnesses and other victims by the IO. No such suggestion was given to any PW at the trial. Similarly, several notebooks were recovered from the house of the accused persons which contained rough and unorganized records of money collected from various persons. Being unorganized and hand-made record, it is not very clear as to what exactly is mentioned in such notebooks, but perusal of the same would still give rise to a fair idea that such FIR No. 77/1998, PS Shakarpur Page No. 22 of 32 notebooks contain the details of the money received from various card holders on monthly basis. These notebooks also mention the details of the prizes given to the persons which mostly included household articles and utensils.
42. Though it is correct that there is nothing on record to show that the entries either in the cards or in the notebooks were made by the accused Asha Rani, primarily because the FSL could not attribute the questioned handwriting to that of the accused, yet the testimonies of witnesses examined in the court on oath would still be sufficient to prove the case against her. Even in the absence of FSL result or specific proof of her handwriting to show that she used to make entries in the cards or in the notebook, the fact remains that several victims have duly identified the accused in the court to be the one to whom money had been paid by them for specific purpose and under specific intent. The accused and her husband used to collect money from various persons under the pretext that were the organizers of investment schemes commonly called as committees or chit-fund transactions. Even the common intention which the accused Asha Devi shared with her husband is evident. She was staying with her husband in same house. She used to actively participate in collection of money, as deposed by the witnesses. For that matter, in her statement under section 313 CrPC, the accused never denied the factum of existence of such transactions, though she chose to put the entire blame on her late husband and claim that she had no role to play. But by taking such a stand, she also accepted that committees FIR No. 77/1998, PS Shakarpur Page No. 23 of 32 were being run by her husband. She never took stand that no such transactions were there at all or that they had been falsely implicated. She rather claimed that the money had been paid back to the persons entitled to. Thus, in view of the testimony of the prosecution witnesses and the stand taken by the accused in her statement under section 313 CrPC, it becomes clear that such schemes and transactions were in existence wherein the accused and her husband were the organizers. The defence of the accused Asha Rani, that she had no role to pay being an illiterate lady and a housewife, or that her husband only was responsible for all the acts, is not tenable. It may be noted that no such stand was taken by accused during entire trial and no such suggestion was given to any prosecution witness. Such a stand was taken by her for the first time only in her statement recorded under section 313 CrPC. Such a version in any case has remained not proved, because no witness in defence has been examined by the accused who could step into the witness box and face the test of cross- examination to prove the facts stated by her. Such a statement under section 313 CrPC is only in the nature of explanation given by an accused to the incriminating circumstances appearing against her, which is without oath and without any cross-examination. Mere averments made in such statement, without any evidentiary support, would not be taken as proof of existence of any particular fact. When several prosecution witnesses have deposed that the accused and her husband used to collect money from them regularly, there is no reason for the court to disbelieve them and there is no evidence to establish anything to the contrary, the court is bound to believe the witnesses.
FIR No. 77/1998, PS Shakarpur Page No. 24 of 32Their testimony is thus truthful and credible.
43. The stand of the accused taken during cross-examination of witnesses at the trial had been that she had been falsely implicated at the instance of other persons like one Poonam Devi (relative of PW-4 Mamta Yadav), or at the instance of Devender Kumar (being Pujari of Baba Balak Nath Mandir) against whom some criminal case was allegedly instituted by the daughter of accused. But no such stand was taken by her in her statement under section 313 CrPC. No details of any such case or even a complaint have been brought to the notice of the Court. No police official or any person from any authority has been examined who could prove existence of any such fact. There is nothing to show if any such person called Devender, who was pujari of Baba Balak Nath Mandir existed or not, who lodged complaint against him, what were the contents of the complaint, what was the outcome of the complaint and how that complaint had any concern with the present case. There is nothing to show that any such complaint would give so many persons a reason to falsely implicate the accused in such a criminal case. During the entire trial, the accused denied the existence of acts giving rise to the offence as alleged but it was only at the final stage of recording of statement under section 313 CrPC that she claimed that only her husband was responsible for the acts and that she had no concern with the same. At the same time, it is not a case of mistaken identity. It is not the stand of the accused that some third party might have started the committees or accepted the payments or failed to pay the money. She never FIR No. 77/1998, PS Shakarpur Page No. 25 of 32 claimed that she had been falsely implicated under some mistake or ulterior motive. No such stand had been taken by the accused at any stage of trial or even in her statement under section 313 CrPC. With such acceptance of existence of committees/schemes, which have been otherwise proved by the corroborative testimonies of PW-4, PW-5 and PW-9 and also by the unrebutted testimonies of PW-3 and PW-6, duly fortified by the investigation conducted by PW-13, it becomes clear that the accused Asha Rani and her husband Banarasi Dass (since expired) had been the organizers of such transactions or arrangements.
44. As already discussed, absence of any receipts showing payment of money to the accused would not adversely affect the prosecution case. The witnesses stated that no such receipt used to be issued by the accused persons. There is nothing to show that any receipts used to be issued by the accused persons, except making entries in the lucky draw cards. If the accused has accepted that her husband used to maintain committees, it was further for her to produce and prove necessary facts as to how the monies used to be received by them, if any receipts were being issued while collecting money and if any acknowledgment used to be taken while making payments. Thus, absence of receipts of payments made would not nullify or negate the oral testimony of the victims.
45. Section 3 of Prize Chits & Money Circulation Schemes (Banning) Act prohibits any person from promoting and conducting any prize chit or money circulation scheme. No person can enroll as a FIR No. 77/1998, PS Shakarpur Page No. 26 of 32 member of such scheme or participate in it otherwise or receive any money in pursuance of any such chit or scheme. Section 4 of the Act makes violation of section 3 a punishable offence. Section 5 of the Act also provides for penalty of other offences in connection with prize chits or money circulation schemes, like printing or publishing any ticket, coupon or other document for use in prize chits or money circulation schemes, being in possession of any such document for advertisement or offering for sale or distribution, or being in possession of any list of members of such chits or scheme, or in possession of any matter descriptive of or related to chits or scheme. No person can use any premises or cause or knowingly permit any premises to be used, for the purposes connected with the promotion or conduct of such chits or schemes.
46. As per section 2(e) of Prize Chits & Money Circulation Schemes (Banning) Act, "prize chit" includes any transaction or arrangement by whatever name called, under which a person collects whether as a promoter, foreman, agent or in any other capacity, monies in one lump sum or in installment by way of contributions or subscriptions or by sale of units, certificates or other instruments or in any other manner or as membership fees or admission fees or service charges to or in respect to any savings, mutual benefit, thrift, or any other scheme or arrangement by whatever name called, and utilizes the monies so collected or any part thereof or the income accruing from investment or other use of such monies for (i) giving or awarding periodically or otherwise to a specified number of subscribers as FIR No. 77/1998, PS Shakarpur Page No. 27 of 32 determined by lot, draw or in any other manner, prizes or gifts in cash or in kind, whether or not the recipient of the prize or gift is under a liability to make any further payment in respect of such scheme or arrangement, or (ii) refunding to the subscribers or such of them as have not won any prize or gift, the whole or part of the subscriptions, contributions or other monies collected, with or without any bonus, premium, interest or any other advantage by whatever name called, on the termination of the scheme or arrangement, or on or after the expiry of the period stipulated therein. Similarly, as per section 2(a) the Act, a "conventional chit" means a transaction whether called chit, chit fund, kuri or by any other name by or under which a person responsible for the conduct of the chit enters into an agreement with a specified number of persons that every one of them shall subscribe a certain sum of money by way of periodical installments for a definite period and that each subscriber shall, in his turn, as determined by lot or by auction or by tender or in such other manner as may be provided for in the chit agreement, be entitled to a prize amount. As per the Explanation, the prize amount shall mean the amount, by whatever name called, arrived at by deducting from out of the total amount paid or payable at each installment by all the subscribers, the commission charged as a service charges as a promoter or a foreman or as an agent, and any sum which the subscriber agrees to forgo, from out of the total subscriptions of each installment, in consideration of the balance being paid to him. As per section 2(c) of the Act, "money circulation scheme" means any scheme, by whatever name called, for the making of quick or easy money, or for the receipt of any money or FIR No. 77/1998, PS Shakarpur Page No. 28 of 32 valuable thing as a consideration for a promise to pay money, on any event or a contingency relative or applicable to the enrollment of members into the scheme, whether or not such money or thing is derived from the entrance money of the members of the scheme or periodical subscriptions.
47. In the present case as well, it is clear that the accused Asha Rani, in her own individual capacity as well as in furtherance of common intention with her husband Late Sh. Banarasi Dass, was conducting and promoting the prize chits or money circulation schemes in contravention of section 3 of the Act, as punishable under section 4 of the Act. They were receiving monies from a large number of persons in pursuance of such chits or schemes. They were printing the lucky draw cards, which fall in the meaning of "ticket, coupon or other document for use in such chits or money circulation schemes" as per section 5 of the Act. The clauses of the cards clearly show the manner in which the schemes were being operated, when the draw of lots were to be conducted, how the payments were to be made and what were the terms and conditions of the scheme. The police had recovered the notebooks in which the "lists of the persons" projected as members of such transactions were mentioned. The accused persons were using their own house as premises for and were causing and knowingly permitting such premises to be used for the purposes connected with the promotion and conduct of the prize chits or money circulation schemes.
FIR No. 77/1998, PS Shakarpur Page No. 29 of 3248. The witnesses have stated about the manner in which the payments were being received by the accused persons. They were all cash transactions. Such cash transactions are not mentioned in section 2(b) of the Act which states that "money" includes a cheque, postal order, demand draft, telegraphic transfer or money order. Such definition is only an inclusive definition and does not exclude cash. The terms and conditions mentioned on the lucky draw cards show the manner of arrangements in collecting and utilizing the money.
49. The transactions entered into by the accused were certainly in the nature of conventional chits or prize chits, whereby specific amounts of monies were obtained by them as contributions or subscriptions from the investors, for specified periods under arrangements that every one of them shall subscribe by way of periodical installments for definite periods and each such subscriber shall in his turn be entitled to a prize amount, as determined by draw of lots. Such prized amounts would include household articles, utensils or even excess amounts. The accused persons were collecting such monies as promoters or organizers in installments and the said monies were utilized for periodically giving to the winners of the chits the prizes or gifts in cash or in kind and also to refund to the subscribers who have not won any prize or gift, their subscriptions or contributions with some premium or interest or advantage. Therefore, the acts of the accused suddenly fell within the parameters of the Act.
50. At the same time, it is also clear that by not refunding the FIR No. 77/1998, PS Shakarpur Page No. 30 of 32 amounts to the investors, the accused committed criminal breach of trust. Such amounts were misappropriated by them to their own use as they were required to be utilized only for a specific purpose. The amounts were not paid to the accused persons for any sale or purchase of goods or services. Rather they had been given only for a specific purpose for being used as an investment in the manner projected. Therefore the said monies had been given under an entrustment and the accused persons were not entitled to misutilize the same somewhere else or convert the same to their own use or to divert it for any other purpose.
51. In view of this position, it can be said that the prosecution has been able to prove its case beyond reasonable doubt against the accused. It has been established that the accused Asha Rani, in her individual capacity as well as in furtherance of common intention with her husband Late Sh. Banarasi Dass, had committed criminal breach of trust with several public persons of the locality and had violated various provisions of the Prize Chits and Money Circulation Schemes (Banning) Act, 1978.
52. There is no need for the court to go into the arguments of Ld. Defence Counsel that there was no inducement, fraud or deception on the victims, as these ingredients were to be established for offence under section 420 IPC but no charge under this offence has been framed against the accused. When the accused is not facing trial for offence under section 420 IPC, the same need not be considered.
FIR No. 77/1998, PS Shakarpur Page No. 31 of 3253. The accused is accordingly held guilty and is convicted for the offences punishable under section 406/34 IPC as well as Section 4 and 5 of the Prize Chits and Money Circulation Schemes (Banning) Act, 1978.
54. Matter be listed for arguments on sentence.
Digitally signed Announced in the open Court ASHU by ASHU GARG Date: 2019.05.27 this 27th Day of May 2019 GARG 15:16:54 +0530 (Ashu Garg) Chief Metropolitan Magistrate (Central) Tis Hazari Courts, Delhi FIR No. 77/1998, PS Shakarpur Page No. 32 of 32