Delhi District Court
State vs Anil Kumar Etc on 16 March, 2011
IN THE COURT OF SH. SUMEDH KUMAR SETHI
METROPOLITAN MAGISTRATE, NEW DELHI DISTRICT:
PATIALA HOUSE COURTS: DELHI
FIR NO.: 87/99
POLICE STATION: CHANAKAYA PURI
U/S: 120B/419/420/468/471/511 IPC & 12 PP Act
IN THE MATTER OF
STATE
VS.
ANIL KUMAR ETC.
(1) Anil Kumar
S/o Mr. Hari Chand
R/o 89, 4th Floor, Satya Niketan
Moti BaghII, New Delhi
(2) Rajeev Mehrotra
S/o Mr. Laxman Parsad Mehrotra
R/o 1211, SectorA, Pocket A, Vasant Kunj,
New Delhi
(3) Tarsam Singh
S/o Mr. Ranjeet Singh
R/o Village Ibrahim Pur
PS Miani District Hoshiar Pur
Punjab
FIR NO. 87/99
POLICE STATION: CHANAKAYA PURI
U/S: 120B/419/420/468/471/511 IPC & 12 PP Act 1 of 8
(4) Gurmeet Kaur
W/o Mr. Charanjeet Singh
R/o ODMOD Tanda, Hoshiar Pur
Punjab
Date of institution:12.10.2001
Date of reserving judgement/Order:16.03.2011
Date of Pronouncement of Judgement/Order:16.03.2011
1.The brief facts of the case as per the prosecution story are that on or about 01.03.1999 at the Embassy of United States of America, Chanakaya Puri, Delhi accused Rajeev Mehrotra entered into criminal conspiracy with Tarsem Singh (PO)and Gurmeet Kaur (PO) to cheat the said Embassy. It is further alleged against accused Rajeev Mehrotra that he alongwith coaccused Tarsem Singh (PO) and Gurmeet Kaur (PO) attempted to cheat said Embassy for procuring tourist visa for himself on the basis of false averments in the visa applications and had represented coaccused Gurmeet Kaur as his wife in the name of Anju Mehrotra and coaccused Tarsem Singh as his son in the name of Amit Mehrotra. It is further alleged against accused Rajeev Mehrotra that he knowingly used the forged passports as genuine. It is further alleged against accused Rajeev Mehrotra that he cause to alter the entries made in the passport as per report mark X given by Regional Passport Office, Delhi. Consequently, a chargesheet was filed on 12.10.2001 u/s 120B, 419, 420, 468, 471 & 511 of the Indian Penal Code (hereinafter referred to as the IPC for the sake of brevity) and u/s 12 Passports Act. Therreafter charges were frame against accused Rajeev Mehrotra on 11/12/2007 u/s 420/511, 471 and 120B IPC and 12 Passports Act, to which he pleaded not guilty and claimed trial.
2. Prosecution had examined following witnesses in support of its case: FIR NO. 87/99
POLICE STATION: CHANAKAYA PURI U/S: 120B/419/420/468/471/511 IPC & 12 PP Act 2 of 8 i. HC Ved Prakash was examined as CW 1. Report on Process U/s 83 Cr. PC in respect of accused Gurmeet Kaur is EX. P1 and Report on Process U/s 83 Cr. PC in respect of accused Tarsem Singh is EX. P2.
ii. Ct. Daljeet Singh was examined as CW 2. Report on Process U/s 82 Cr. PC in respect of accused Gurmeet Kaur is EX. P1 and Report on Process U/s 82 Cr. PC in respect of accused Tarsem Singh is EX. P2.
iii. Lady Ct. Veerwati was examined as PW 1. Arrest and personal search memo of accused Gurmeet was EX. PW 1/A. iv. Ms. Deepa Verma was examined as PW 2. Questioned documents Q1 to Q8 are EX.
PW 2/A (Colly). Detail of specimen documents are EX. PW 2/B. Detailed report of PW 2 is EX. PW 2/C. v. Mr. Yogesh Khurana was examined as PW 3. The letter for exemption of the then Deputy Secretary Passport and its sanction report U/s 15 Passport Act is EX. PW 3/A. vi. SI Shripal Singh was examined as PW 4. Copy of FIR bearing no. 87/99 is EX. PW 4/A (OSR) and entry on rukka is EX. PW 4/B. vii.HC Ramesh was examined as PW 5. Arrest memo, disclosure statement and personal search memo of accused Rajeev Mehrotra, Gurmeet Kaur and Tarseem Singh are EX. PW 5/A to EX. PW 5/I. viii.SI Narpal Singh was examined as PW 6. Rukka is EX. PW 6/A. EX. PW 6/B to EX. PW 6/D. Supplementary challan is EX. PW 6/E. Report regarding verification of passport on record are EX. PW 6/B to EX. PW 6/D and ix. Sh. Venu Gopalan T.K, Assistant Regional Passport Office, Bhikaji Cama Palace, New Delhi was examined as PW 7.
3. All concerned have been heard. Material on record perused. Submissions considered.
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4. Ld. Substitute APP has argued that the version of the events as portrayed in the chargesheet, as well as the prosecution witnesses' testimony is true. It has been submitted that all the prosecution witnesses have corroborated each other. It has further been contended that some of the PWs have not been cross examined by the defence, despite having the opportunity to do so. Thus, their testimony remains unopposed. In all, the prosecution has tried to make out a case against the accused.
5. Ld. Counsel for accused on the other hand has submitted that the original complainant who made the complaint has never appeared in the court to prove his complaint. He has further submitted that even the contents of the complaint are not clear about whether it was accused Rajeev Mehrotra who had delivered the applications for the visa at the concerned Embassy. He further submits that it was accused Anil Kumar and Satnaam Singh who were at the centre of the alleged offence. He further submits that if at all any thing was done, then it was done by these two accused persons and nothing is attributable to accused Rajeev Mehrotra. He further submits that accused Tarsem Singh and Gurmeet Kaur are already Proclaimed Offenders while accused Anil Kumar has already been discharged.
6. The facts of the present case are such that they do not warrant detailed deliberation. Before going into the material on record, it would be pertinent to note the ingredients of the offence with which accused Rajeev Mehrotra has been charged.
Section 120B Punishment of criminal conspiracy -
1. Whoever is a party to a criminal conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence.
2. Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six FIR NO. 87/99 POLICE STATION: CHANAKAYA PURI U/S: 120B/419/420/468/471/511 IPC & 12 PP Act 4 of 8 months, or with fine or with both.
Section 420 Cheating and dishonestly inducing delivery of property - Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
Section 471 Using as genuine a forged document -
Whoever fraudulently or dishonestly uses as genuine any document which he knows or has reason to believe to be a forged document, shall be punished in the same manner as if he had forged such document. Section 511 Punishment for attempting to commit offences punishable with imprisonment for life or other imprisonment -
Whoever attempts to commit an offence punishable by this Code with 1*[imprisonment for life] or imprisonment, or to cause such an offence to be committed, and in such attempt does any act towards the commission of the offence, shall, where no express provision is made by this Code for the punishment of such attempt, be punished with imprisonment of any description provided for the offence, for a term which may extend to one half of the imprisonment for life or, as the case may be, onehalf of the longest term of imprisonment provided for that offence, or with such fine as is provided for the offence, or with both.
Section 12 of the Passports Act: Offences and Penalties (1) Whoever
(a) contravenes the provisions of section 3; or
(b) knowingly furnishes any false information or suppresses any material information with a. view to obtaining a passport or travel document under this Act or without lawful authority alters or attempts to alter or causes to alter the entries made in a passport or travel document; or
(c) fails to produce for inspection his passport or travel document (whether issued under this Act or not) when called upon to do so by the prescribed authority; or
(d) knowingly uses a passport or travel document issued to another person;
or
FIR NO. 87/99
POLICE STATION: CHANAKAYA PURI
U/S: 120B/419/420/468/471/511 IPC & 12 PP Act 5 of 8
(e) knowingly allows another person to use a passport or travel document issued to him, shall be punishable with imprisonment for a term which may extend to 7[two years or with fine which may extend to five thousand rupees] or with both.
(1A) Whoever, not being a citizen of India,
(a) makes an application for a passport or obtains a passport by suppressing information about in nationality, or
(b) holds a forged passport or any travel document, shall be punishable with imprisonment for a term which shall not be less than one year but may extend to five years and with fine which shall not be less than ten thousand rupees but which may extend to fifty thousand rupees or with both.
(2) Whoever abets any offence punishable under 9[subsection (1) or sub section (1A)] shall, if the act abetted is committed in consequence of the abetment, be punishable with the punishment provided in that subsection for that offence.
(3) Whoever contravenes any condition of a passport or travel document or any provision of this Act or any rule made thereunder for which no punishment is provided elsewhere in this Act shall be punishable with imprisonment for a term which may extend to three months or with fine which may extend to five hundred rupees or with both.
(4) Whoever, having been convicted of an offence under this Act, is again convicted of an offence under this Act shall be punishable with double the penalty provided for the latter offence.
7. Upon perusal of the testimonies of the witnesses concerned it is seen that most of the witnesses are formal witnesses or are witness for proving sanction for prosecution. One of the witness who is material to the case is PW 2, who has given the opinion that the person who has written sample handwriting S1 to S12 has also written the question handwriting Q1 to Q3. The said handwriting is attributed by the Prosecution to accused Rajeev Mehrotra, however, it is equally pertinent to note that the original complainant of the case has never appeared to prove the execution of the complaint in question. The question documents from Q1 to Q3 that are on record are also alleged certified copies purportedly certified by the US Embassy. The complainant has also never appeared in the court to prove the certification. The other material witness FIR NO. 87/99 POLICE STATION: CHANAKAYA PURI U/S: 120B/419/420/468/471/511 IPC & 12 PP Act 6 of 8 is PW 7 who has deposed regarding the discrepancies in the passport on record. In this regard Ld. Counsel for accused has pointed out that the passport on record does not belong to accused Rajeev Mehrotra, who has his own passport in his possession. The remaining relevant witnesses are PW 6 i.e. the IO and PW 5 who accompanied the IO during the arrest of the accused. Perusal of record shows that Prosecution Evidence was closed after prosecution miserably failed to procure the appearance of some of the material prosecution witnesses for Eleven long years.
8. As regards the offence of cheating it is one of the prerequisites that there should be someone who has been cheated. The present case none has appeared on behalf of US Embassy to depose regarding any attempt of being cheated. Thus, the question of indicting accused Rajeev Mehrotra for the offence of cheating does not arise.
9. It is equally pertinent to mention here that the accused has not been charged with the offence of forgery. Even otherwise, it is relevant to mention here that the offence U/s 420 and 468 are connected and if at all forgery has to be alleged then the same has to be for the purpose of some cheating. As cheating cannot be prove in this case, the question of indicting the accused for forgery does not arise. Even otherwise, the complainant has never appeared in court to testify regarding the veracity of the questioned documents Q1 to Q3. Hence, the FSL report as well as testimony of PW 2 is not of much help to the prosecution.
10. Section 471 IPC requires use of a forged document with dishonest intention. In order to prove such use it is imparitive for the complainant to come in the witness box and depose regarding the use. The same has not been done in the present case.
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11. As regard Section 12 of Passports Act, the testimony of PW 7 and even the other material on record does not show in any manner that the accused Rajeev Mehrotra was responsible for submitting the passports to the complainant. At the same time there is nothing on record to show that it was Rajeev Mehrotra who got the alleged forged passport issued. Hence, the accused cannot be indicted for the same.
12. It is already on record that accused Tarsem Singh and Gurmeet Kaur are already P.O. and accused Anil Kumar has already been discharged. It is written in the Statue itself that Section 120B is attracted upon criminal conspiracy to commit an offence. It has been seen above that accused cannot be indicted for the substantial offences with which he is charged. Therefore, the question of convicting him for criminal conspiracy to commit such offences does not arise.
13. In view of the facts and circumstances of the case, this court is of the considered opinion that the testimonies of the prosecution witnesses cannot prove the case of the prosecution against accused Rajeev Mehrotra beyond reasonable doubt. At the same time, it goes without saying that the benefit of doubt, if any, must accrue to the accused. In these circumstances, this court hereby acquits accused Rajeev Mehrotra for the accusations U/s 420/511, 471 and 120B IPC and 12 Passports Act.
(ANNOUNCED IN THE OPEN
COURT ON 16th March, 2011 )
This Judgment contains 8 pages
and each paper is signed by me. SUMEDH KUMAR SETHI
METROPOLITAN MAGISTRATE
NEW DELHI DISTRICT
PATIALA HOUSE COURTS,DELHI
FIR NO. 87/99
POLICE STATION: CHANAKAYA PURI
U/S: 120B/419/420/468/471/511 IPC & 12 PP Act 8 of 8