Delhi District Court
State vs Hari Om Sharma on 20 February, 2023
DLSW020038182013
IN THE COURT OF METROPOLITAN MAGISTRATE-01,
SOUTH WEST, DWARKA COURTS, DELHI
- Presided by:
SH PARAS DALAL, D.J.S.
FIR No. 275/2009
PS Palam Village
U/S : 406 Indian Penal Code, 1860
State V/s Hari Om Sharma
Cr.C No. : 429331/2016
CNR No. : DLSW020038182013
Date of Institution : 28.09.2013
Name of complainant : Sada Ram Kadyan
S/o Late Gridhari Lal
R/o RZD-80, Gali No.4,
Mahavir Enclave, New Delhi
Name of accused, parentage and address : Hari Om Sharma
S/o Sh. Ram Prakash Sharma
R/o RZF-25A, Gali No.4,
Mahavir Enclave, New Delhi
Offence complained off : 406 IPC
Plea of accused : Not guilty
Date on which final arguments heard : 23.01.2023
Final order : Acquitted
Date of Judgment : 20.02.2023
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Argued by: Sh. Parvez Alam, Ld. APP for the State.
Mr. Mahesh Sharma, Ld. Counsel for accused.
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FIR No. 275 of 2009; P.S. Palam Village Pages 1 of 15 State v. Hari Om Sharma
JUDGMENT
1. The SHO, Police Station Palam Village has presented this charge-sheet against above named accused for initiation of trial u/S. 406 Indian Penal Code, 1860 (for short "IPC") after directions were issued by the Ld. Predecessor under Setion 156(3) Code of Criminal Procedure (for short 'CrPC') to register an FIR and investigate the allegations.
2. Briefly stated, the case of the prosecution is that one Sada Ram Kadyan alleged that in the month of December 2008 accused Hari Om Sharma alongwith his father approached him for entering into agreement of employee on commission basis. Complainant alleged that having known accused's father, he entered into contract dated 20.01.2009 w.e.f. 07.01.2009 for a period of 11 months for consideration of Rs.15,000/- as contract charges and further it was agreed that accused was allowed to use the shop/ office situated at the shop no.1, size 10.5x13 (approx), Ground Floor- D-3/249, Mahavir Enclave, Street No.9, New Delhi fully furnished (hereinafter referred to as 'the shop'). Complainant handed over keys of two office drawers and of main entrance gate and qua the usage accused was to pay Rs.15,000/- per month. Complainant further alleged in May 2009, he found some office furniture i.e. 2 single sofas, milton water jug/ bottle, 4 plastic chairs, tata landline cordless phone in the name of the complainant missing and also certain original property files, original BSES papers, some original agreements executed between the complainant and other parties missing. Complainant alleged that the accused changed lock of the drawers as well as main entrance gate without his consent and as such misappropriated above mentioned four properties as well as certain documents which were kept in complainant's drawers. During FIR No. 275 of 2009; P.S. Palam Village Pages 2 of 15 State v. Hari Om Sharma investigation, accused Hari Om Sharma denied executing any agreement with the complainant and as such complainant joined investigation and submitted two agreement dated 21.04.2008 and 20.01.2009 which were seized and sent to FSL for verification of signatures of accused. The FSL opined that agreement dated 21.04.2008 contained signatures of accused Hari Om Sharma however no opinion could be expressed on agreement dated 20.01.2009 although complainant's signatures on both documents were proved genuine. And upon completion of investigation, accused was charge-sheeted for offence punishable under Section 406 IPC.
3. After presentation of charge-sheet, cognizance of the offence was taken and accused was summoned. Copy of the charge-sheet were supplied to accused u/S. 207 of Code of Criminal Procedure, 1973 (for short "CrPC"). Thereafter, charge u/s. 406 IPC was framed against the accused on 08.01.2015 to which he pleaded not guilty and opted to contest.
4. In order to prove the guilt of the accused, prosecution examined 11 witnesses against accused Hari Om Sharma. However, before proceeding to discuss depositions, the exhibits of this case are as per the following table - Witness exhibiting Identification Description PW1 Phool Singh Ex.PW1/A Agreement dated 21.04.2008 between Sada Ram Kadian and Hari Om Sharma witnessed by Phool Singh bearing his signature at point A Ex.PW1/B Agreement dated 20.01.2009 between Sada Ram Kadian and Hari Om Sharma witnessed by Phool Singh bearing his signature at point A PW2 Sanjeev Kumar Ex.PW1/A Agreement dated 21.04.2008 between Sada Ram Kadian and Hari Om Sharma witnessed by Sanjeev Kumar bearing his signature at point A FIR No. 275 of 2009; P.S. Palam Village Pages 3 of 15 State v. Hari Om Sharma Ex.PW2/B Agreement dated 20.01.2009 between Sada Ram Kadian and Hari Om Sharma witnessed by Sanjeev Kumar bearing his signature at point A PW3 Prem Chand Mark C1 Agreement in March 2007 between Sada Ram Kadian and Hari Om Sharma witnessed by Prem Chand bearing his signature at point A PW4 Deepa Verma, Ex.PW4/A Admitted signature of Om Prakash Deputy Director Sharma marked as A1 FSL, Rohini, New Ex.PW4/B Admitted signature of Om Prakash Delhi Sharma marked as A2 Ex.PW4/C Report no. FSL/2011/D-1061 dated 10.01.2012 Ex.PW4/D1 to Specimen signature of accused D5 Ex.PW4/E Admitted signature of Om Prakash Sharma marked as A3 Ex.PW4/F FSL report no. 2012/d-3338 dated 03.07.2013 PW5 Babu Ram, Ex.PW5/A Authority letter by Branch Manager Clerk, Union Bank of Barkha Wadhwa in favour of PW5 India Babu Ram to depose in Court Ex.PW5/B Certified Account Opening Form of Hari Om Sharma PW6 SI Surjeet Ex.PW6/A Rukka dated 24.09.2009 Singh PW7 Insp. Chattar Ex.PW7/A Seizure memo of documents produced Singh by complainant Mark PW7/1 Copies of documents produced by to Mark complainant PW7/7 PW8 Sada Ram Ex.PW8/A Complaint u/S.156(3) CrPC r/w 200 Kadian (Colly) CrPC Ex.PW8/B Seizure memo bearing signature of Sada Ram Kadian at point A Ex.PW8/C Agreement of the year 2006 FIR No. 275 of 2009; P.S. Palam Village Pages 4 of 15 State v. Hari Om Sharma Mark C1 Agreement of the year 2007 PW9 Retd. SI Ex.PW9/A FIR 275/2009 u/S. 406 IPC Jagdish (OSR) Ex.PW9/B Endorsement of SI Jagdish on the rukka PW10 Ashok Kumar Ex.PW10/A Seizure memo of two cheques of accused Hari Om Sharma sent by PNB, Dwarka Branch Ex.PW10/B Letter forwarding the documents seized sent to FSL Ex.PW10/C Acknowledgement by the FSL of receipt of documents PW11 Insp. SS Ex.PW11/A Seizure memo of original signatures of Chahan the accused Ex.PW11/B Formal arrest memo of accused DW1 Hari Om Ex.DW1/X Local Commissioner Report in civil Sharma suit no. 329/2009
5. Prosecution Witness (hereinafter referred to as 'PW') 1 Sh. Phool Singh, PW2 Sanjeev Kumar and PW3 Prem Chand all deposed that they witnessed agreement dated 21.04.2008 and 20.01.2009 between complainant and the accused. All three were cross examined as nil by the accused.
6. PW4 Deepa Verma, Deputy Director, FSL Rohini deposed about receipt of questioned documents and admitted documents and further identified her report dated 03.07.2013 prepared after careful examination of the documents. PW4 was cross examined by the defence wherein she answered that all the documents were handed over to her in sealed condition. PW4 was also questioned as to microscopic photographs of the signature for comparison, however she answered that same was not always necessary FIR No. 275 of 2009; P.S. Palam Village Pages 5 of 15 State v. Hari Om Sharma and in the present case comparison was done by enlarging the two signatures. PW4 also denied that a perfect forgery is possible.
7. PW5 Babu Ram deposed that he was deputed by the Branch Manager to depose in the present case and he exhibited the bank account statement of accused bearing no. 5364201000269 along with his signature card. PW5 cross examined and he admitted that he had no authority letter from the Bank authorising him to depose before the Court and also admitted that documents produced by him were photocopy. PW5 even admitted that he was not posted in the Branch on 12.05.2012.
8. PW6 SI Surjeet Singh deposed that on 21.08.2009 in view of Order of the then Ld. MM he registered the present FIR and stated that since he was transferred on 24.09.2009, he handed over the file to MHCR.
9. PW7 Insp Chattar Singh deposed that on 04.11.2009 he was posted in the police station as SI and he was marked the investigation of the case wherein he issued notice to the complainant for production of documents and then seized the documents vide memo and even recorded statements of witnesses Sanjeev Kumar, Prem Chand and Phool Singh. PW7 also deposed about issuing notice to the concerned Bank to provide specimen handwriting and signature of accused, however same was not provided and by that time he was transferred from the police station.
10. PW8 Sada Ram Kadian is the complainant and he deposed in line of his complainant that he knew parents Sh. Om Prakash and Ms. Laxmi Sharma of accused since 10-15 years prior to the year 2007 and in March 2007, Om Prakash had approached him to employ his son. PW8 further deposed that in 2009 he inquired from his deed writer who opined to enter FIR No. 275 of 2009; P.S. Palam Village Pages 6 of 15 State v. Hari Om Sharma into mutual agreement and thus he signed agreement with accused in 2009. PW8 deposed that he furnished his office-cum-shop in 2006 which was earlier used by one Ramesh and now accused was using the same wherein the left drawer was used by him and right was used by the accused. PW8 stated that he used to work on 35 days rotation basis in Saudi Arabia since 2006. He further deposed that accused was independently doing his work but from March 2009 he failed to pay his commission fees. He further deposed that in the month of May 2009 he noticed that accused had changed lock of drawer and main gate of shop and he also found certain items in the shop missing i.e. furniture, plastic chairs, TATA landline cordless phone, water jug which were mentioned in the agreement entered with the accused along with certain documents like attorney of plot, agreement, BSES documents, ITRs, LIC documents. PW8 alleged that accused sought no permission from him before changing the lock and he misappropriated the papers. PW8 then deposed about his complaints to the police, their non-action and then his application before the Court. Before proceeding to state the substance of cross examination of PW8, it is relevant to note that PW8 deposed in examination in-chief for three dates and apart from the allegations, he even deposed about accused's failure to pay commission fees, also alleged electricity theft by accused from nearby shop's meters which also were owned by the complainant. PW8 in his cross examination admitted that the agreement Ex.PW8/B was not in continuation and admitted that he filed eviction suit against the accused. PW8 admitted that the IO never sought for invoices/ bills of missing articles from him and did not even take the list of articles already lying in the shop.
11. PW9 Retd. SI Jagdish deposed that on 21.08.2009 he was working as Duty Officer and also deposed about the receipt of application with Order FIR No. 275 of 2009; P.S. Palam Village Pages 7 of 15 State v. Hari Om Sharma of the Court for registration wherein he made endorsement and registered the present FIR.
12. PW10 Ashok Kumar deposed that on 25.08.2010 he received case file for investigation and he served notice to Manager PNB who provided him two cheques of the accused containing admitted signatures alongwith seized documents from the complainant which were sent to FSL for expert opinion.
13. PW11 Insp. S.S. Chanan was the one of the IO in the case and he deposed that under the permission of the Court he took specimen signatures of accused which were sent to FSL for expert opinion. PW11 also deposed about his investigation regarding theft of electricity meter however he found no evidence to support the allegation. PW11 also deposed about receipt of FSL result and formal arrest of the accused whereinafter he prepared the chargesheet and filed the same before the Court. PW11 in his cross examination admitted that there was no investigation as to the purchase of articles alleged to have been misappropriated and also that he asked for no bills from the complainant about the missing articles.
14. The prosecution evidence was closed on 11.08.2020.
15. The statement of accused under Section 313 of the Code of Criminal Procedure, 1973 was recorded on 27.11.2021 and he was put all the incriminating circumstances, appearing against him, in the prosecution evidence. He stated that present case was motivated and is only a pressure tactic by the complainant to get his property vacated. Accused further stated that he was in judicial custody in the year 2016-17 and during that FIR No. 275 of 2009; P.S. Palam Village Pages 8 of 15 State v. Hari Om Sharma period complainant took possession of the property and even took possession of his articles and misappropriated the same.
16. Accused wished to lead defence evidence and moved application under Section 315 CrPC for examine himself which was allowed. In his defence evidence accused as DW1 deposed that he took shop of complainant on rent in 2007 on monthly rent of Rs.1000/- which was increased to Rs.1500/- excluding electricity charges. DW1 further deposed that complainant never provided any rent receipt and did not even provide any furniture in the shop. DW1 stated that complainant provided no articles in the shop and he purchased articles for the shop and even in Civil Suit, the local commissioner filed report who prepared list of articles lying in the shop. DW1 was cross examined wherein he again denied his signatures on the agreement but admitted that eviction suit was decided against him. DW1 brought the copy of Local Commissioner report on record which was filed in Civil Suit no.329/2009.
17. Learned Assistant Public Prosecutor for the State argued that the prosecution has proved its case beyond all reasonable shadow of doubts by examining all the material witnesses who have supported the prosecution version in material aspects. Accordingly, conviction of accused was prayed.
18. On the other hand, learned counsel for the accused argued that the prosecution has failed to prove its case beyond all reasonable shadow of doubts and as per the deposition of the complainant himself, he had not entrusted any property to the accused Hari Om Sharma. Defence argued that there is no evidence that accused changed the locks as alleged and if that had been true than it is not clear how complainant managed to get inside the shop. Further it is alleged that complainant in his own civil suit FIR No. 275 of 2009; P.S. Palam Village Pages 9 of 15 State v. Hari Om Sharma proved by the report of Local Commissioner that all the articles alleged to be misappropriated were accounted for and therefore there was no merits in the allegations. Defence further pointed out that even if it is presumed that certain articles were missing, complainant admitted he was in joint possession and had clear ingress into the shop and to prove that articles were entrusted to accused who misappropriated would be nothing but wild accusations. Defence finally rested its case relying on the civil suit for eviction against accused that complainant filed and the present FIR was nothing but an effort to pressurise the accused to vacate the shop. Defence even relied on the judgment of Kailash v. State of Bihar, (2003) 7 SCC 399; S.W. Palanitkar v. State of Bihar, 2001 (2) JCC (SC) 361; Amar Singh v. State of Gujarat, R/Cr.MA/20083/2014; Deochand v. Madanlal, (1968) 70 BOMLR 280; and Prof. R.K. Vijaya v. Sudha Seetharaman, (Hon'ble SC) Crl. Appeal No. 238/2019 dated 15.02.2019 to support its case.
19. Before proceeding to discuss the ingredients in the present case, the first objection of the defence was that he never entered into any agreement with complainant. Prosecution moved to establish his signatures on the agreement Ex.PW1/A and Ex.PW1/B, all three witnesses - PW1, PW2 and PW3 deposed that agreement was signed by accused and complainant in their presence and the even the FSL report Ex.PW4/C establishes that signatures appearing on the agreement Ex.PW1/A are that of the accused. PW4 was even cross examined as to her report, however defence could not shake her veracity or that she failed to employee scientific methods to arrive at her conclusion. PW1, PW2 and PW3 were cross examined as nil by the accused despite opportunity being granted. Thus apart from denial from the accused, there is nothing to substantiate the defence against the FIR No. 275 of 2009; P.S. Palam Village Pages 10 of 15 State v. Hari Om Sharma overwhelming evidence to support that accused did enter into agreement with complainant.
20. After hearing ld. APP for the state and ld. counsel for the accused and having gone through the case file carefully and meticulously, this court is of the opinion that the point for determination in the present case is involving criminal breach of trust is -
(a) entrustment of property or with dominion over property; and
(b) dishonest misappropriation, conversion, use or dispossession of said property in violation of any direction of law or any legal contract, express or implied.
21. This Court is conscious of the cardinal principal of law that documentary evidences not only supersede ocular evidence but even excludes them and same is incorporated in the provisions of Section 91 and 92 of the Evidence Act, 1872.
22. The first ingredient thus is of 'entrustment'. Prosecution has already established the due execution of Ex.PW1/A and Ex.PW1/B and even accused admits to be using the shop of the complainant on rent. In his defence evidence, accused himself relied on the Civil Suit filed by the complainant against the accused for ejectment, where the status of landlord and tenant has been established.
23. Complainant has relied on the agreement Ex.PW1/A and Ex.PW1/B which in its annexures records the articles which were kept in the shop and was accessible to both the complainant as well as the accused. The terms of the agreement clearly stipulates that the accused was to occupy the office on commission basis, the said office was fully furnished and towards use, FIR No. 275 of 2009; P.S. Palam Village Pages 11 of 15 State v. Hari Om Sharma the accused was to pay Rs.15,000/- to the complainant. The usage of the articles of fully furnished office clearly shows entrustment of the properties with the accused. Admittedly, the complainant was also using the same office and both had the access to these articles, however it no where absolves the duty and care of the accused towards the said articles to be used in the manner prescribed in the agreement.
24. Once the entrustment is established, the prosecution was duty bound to prove that accused breached the said trust by misappropriating the property entrusted by selling the same, converting the same to own use or disposal against the covenants of the agreement between complainant and accused. The agreement clearly stipulated that articles were to be used by both complainant and the accused. Complainant however has alleged that when he returned from his work out of India, he found (1) two single sofas, (2) milton jug/ bottle, (3) four plastic chairs, (4) tata landline cordless phone missing, apart from (5) certain documents which were kept in his drawer to which the accused had no access. From the case on record, there is neither allegations of what documents were missing nor there is any proof of such documents being entrusted to the accused in the first place. Complainant had to prove the very identity of the articles/ documents stolen/ misappropriated by the accused. Complainant has mentioned that some property papers, files, etc. were missing, however the same no where establishes in clear term their identity or in fact the purpose for which the accused would take the same or benefit by converting those papers to his own use.
25. Qua the said unidentified documents alleged by complainant to have been taken by the accused, the prosecution has miserably failed to prove its case. The entrustment of said documents, files, papers, etc. is not established in FIR No. 275 of 2009; P.S. Palam Village Pages 12 of 15 State v. Hari Om Sharma the first place. Even if it is presumed that accused had keys to the locker of the complainant, there is no proof as to what accused stands to gain by misappropriating the said documents, files, papers, etc. Offence of criminal misappropriation is not without mens rea, prosecution is duty bound to prove that accused dishonestly misappropriated the property. Dishonest simply put is intention to cause wrongful loss to other or wrongfully gain to oneself. In the present case, without their being certainty as to the documents, files, papers, etc. missing or taken away by the accused, no intention of the accused can be gathered about wrongful gain or wrongful loss.
26. As regards the missing four articles i.e. (1) two single sofas, (2) milton jug/ bottle, (3) four plastic chairs, (4) tata landline cordless, it is pertinent to mention that Ex.PW1/B records in the agreement presence of item (1), (3) and (4), however there is no mention of item (2) i.e. milton jug/ bottle. Defence has relied on the report of the local commissioner in Civil Suit No. 329/2019 wherein local commissioner found item (4) on the centre table and even item (2), although not recorded in Ex.PW1/B. The only dispute remains is missing item (1) two single sofas and (3) four plastic chairs. Before proceeding further, reference is drawn to Ex.PW1/A and Ex.PW1/B wherein both the agreements do record usage of three out of four above such items with all due care and reasonableness, however there is no reference to criminal liability for any alleged misuse or missing of any of the item. Clearly, the complainant and the accused were in joint possession and had equal access to the property as well as articles in the property. Complainant alleges to have been gone for 35 days, however there is no proof of when he last went or returned before the four items were found missing. There is no direct proof that above two items (1) and (3) were misappropriated by the accused. There is good number of hours and even FIR No. 275 of 2009; P.S. Palam Village Pages 13 of 15 State v. Hari Om Sharma days before the missing articles were reported and there is no proof when the complainant noticed them first being missing.
27. From the averments as well as records, it is clear that the complainant wanted the accused to vacate the property and there is also no clear timeline when the items were first found missing. There is also no definite proof that complainant or any of his known had access to the office who could have removed the above items. Even if it is presumed that complainant immediately upon finding out the four missing items reported the case and it was accused who could have removed the articles from the property, the two agreements Ex.PW1/A and Ex.PW1/B contemplates no criminal liability.
28. The defence is correct in placing reliance on the judgments of Kailash v.
State of Bihar (supra); S.W. Palanitkar v. State of Bihar (supra); and Amar Singh v. State of Gujarat, (supra) to argue that not every breach of trust is criminal in nature or can attract the strict rigorous of criminal liability. None of the parties contemplated in agreement about criminal liability for breach of terms of the agreement. Further, the articles missing were not in exclusive possession of the accused and even complainant had access and therefore possibility that articles were removed by complainant himself or some third party cannot be ruled out.
29. It is trite in criminal jurisprudence that the prosecution is under an obligation to prove its case against the accused beyond reasonable doubt. The standard of proof to be adopted in criminal cases is not merely of preponderance of probabilities but proof beyond reasonable doubt on the basis of cogent, convincing and reliable evidence. In the present case, the FIR No. 275 of 2009; P.S. Palam Village Pages 14 of 15 State v. Hari Om Sharma first ingredient of entrustment has not been established and therefore the prosecution case shall fail.
ORDER: ACQUITTED
30. In view of the aforesaid discussion, this Court is of the considered opinion that the prosecution has failed to prove its case beyond all reasonable shadow of doubts and the benefit of doubt ought to be granted to accused, who is entitled to be exonerated of the charge against him in the present case. Accordingly, accused Hari Om Sharma is hereby acquitted of the offence punishable under Section 406 IPC.
Digitally signed by PARAS PARAS Date:
DALAL DALAL 16:27:53 2023.02.20 +0530 Announced in Open Court (Paras Dalal) on this February 20, 2022 MM -01, South West Dwarka Court, New Delhi FIR No. 275 of 2009; P.S. Palam Village Pages 15 of 15 State v. Hari Om Sharma