Delhi District Court
State vs . Dimple on 27 February, 2012
IN THE COURT OF SH. SUDESH KUMAR
METROPOLITAN MAGISTRATE, NEW DELHI DISTRICT:
PATIALA HOUSE COURTS: DELHI
FIR No. : 116/02
Police Station: Chanakaya Puri
U/S : 420/468/471/511 IPC
IN THE MATTER OF
STATE Vs. Dimple
D/o Purshotam Ben Patel
R/o Ganga Ram Cottage, Mitha Kuan, Jalapore, Dist. Navsari (Gujarat).
Date of institution: 13.06.2003
Date of reserving judgement/Order: 27.02.2012
Date of Pronouncement of Judgement/Order: 27.02.2012.
Final Order: Acquitted.
Brief statement of reasons for such decisions:
1.It is the case of the prosecution that on or about 22.05.2002 at Canadian Embassy, Chanakaya Puri within the jurisdiction of PS Chanakaya Puri accused Dimple S. Patil attempted to cheat said embassy for procuring visa for herself on the basis of false and fabricated certificate from Gujarat Secondary Education Board, Gandhi Nagar and / or averments in the visa application and accused used the said application and contents therein as genuine whereas the contents were false and fabricated and on these allegations present FIR U/s 420/468/471/511 IPC was registered against the accused.
2. Charge sheet in the matter was filed on 13.06.2003. Cognizance was taken by my Ld. Predecessor. Charge U/s 420/471/511 IPC was settled against accused on 17.04.2006 to which accused pleaded not guilty and claimed trial.
3. Thereafter prosecution has examined 4 witnesses in support of its case.
(i) PW 1 ASI Deenanath Tiwari has proved on record the copy of FIR as Ex. PW 1/A and entry on rukka as Ex. PW 1/B both bearing his signatures at Point A. In his cross-examination by Sh. Sanjay Bhargava, Ld. Defence Counsel PW 1 STATE Vs. Dimple FIR No. : 116/02 Police Station: Chanakaya Puri U/S : 420/468/471/511 IPC 1 of 7 denied the suggestion that he had registered the FIR at later date and time at the instance of IO. He further denied the suggestion that the FIR was not recorded on true version.
(ii) PW 2 Mr. M.S. Chaudhari, Superintendent from Gujarat Secondary and Higher Secondary Education Board, Gandhi Nagar, Gujarat deposed (as recorded) in his examination in chief that he had been deputed to depose on behalf of Mr. B.T. Purohit, who has since retired as Exam Secretary, Gujarat Secondary and Higher Secondary Education Board, Gandhinagar, Gujarat. He had seen the letter dated 08.10.21002 bearing no. GSHSEB-K-5 issued by Sh. B.T. Purohit. As per record, the 12th Standard mark sheet of accused Patel Dimplebeen Purshotam does not match their official record. It was also on record that there was no such candidate in the school Index number 18.036 (Science Stream). So as per report the Xerox Copy of 12 th Mark Sheet was found False. The report was EX. PW 2/A bearing signatures of Mr. B.T. Purohit at point A. The coloured Xerox copy of the 12th Mark Sheet which was found to be false is EX. PW 2/B. He identified the signature of Mr. B.T. Purohit as he had seen him writing and signing during the course of his official duty.
In his cross-examination by Sh. Sanjay Bhargava, Ld. Defence Counsel, PW 2 deposed that he had worked with Mr. B.T. Purohit for approximately one year. He had visited his office only whenever he was called by him. No writing work ever done by him in his presence. He has never seen him writing and signing during the course of his official duty. He had appeared on the basis of an order of present Exam Secretary. Only Xerox copy i.e. EX. PW 2/B was sent to thier board for opinion. PW 2 denied the suggestion that he was deposing falsely and giving his above statement without verifying the actual facts and documents.
(iii) PW 3 Surender Kumar deposed (as recorded) in her examination in chief that on 22.05.2002, he was posted as Ct. at PS Chanakaya Puri and on that day he was on patrolling duty alongwith SI K.K. Yadav and Wct. Veena and at about 05.15 pm, while they were near Canada Embassy, one written complaint was handed over by Mr. A. Milik. IO made endorsement there upon. He took the rukka and got registered the case FIR. On return, he handed over the copy of the FIR and original rukka to the IO. Accused was arrested and medically examined. The witness identified the accused present in the court.
In his cross-examination by Mr. Sanjay Bhargava, Ld. Defence Counsel PW 3 STATE Vs. Dimple FIR No. : 116/02 Police Station: Chanakaya Puri U/S : 420/468/471/511 IPC 2 of 7 deposed that he remained on the spot for about two or two and a half hour. No identity of complainant was asked for or seen by the IO. Arrest memo was prepared in his presence at the spot. The documents were prepared outside the Canada Embassy, opposite Visa Gate while sitting on chair, brought by him from the Security Staff of the Embassy. PW 3 denied the suggestion that he was deposing falsely or that the accused was not arrested in his presence.
(iv) PW 4 Wct. Veena deposed (as recorded) in her examination in chief that on 22.05.2002, she was posted as WCt. at PS Chanakaya Puri and on that day she was on patrolling duty alongwith SI K.K. Yadav and Ct. Surender and after 04.00 pm, while they were near Canada Embassy, one written complaint was handed over by Mr. A. Milik. IO made endorsement there upon. Ct. Surender took the rukka and got registered the case FIR. On return, she handed over the copy of the FIR and original rukka to the IO. Accused was arrested and accused's handwriting was taken by the IO and accused was also medically examined. PW 4 identified the accused present in the court. Personal search memo of accused was Ex. PW 4/A, Disclosure of accused was Ex. PW 4/B and sample handwriting was already Ex. PW 3/B. In her cross-examination by Mr. Sanjay Bhargava, Ld. Defence Counsel PW 4 deposed that the complaint was written by the complainant outside the Canada Embassy in thier presence. IO has satisfied himself about the identity of the complainant by looking into the identity card of the complainant. She remained at the spot for more than two hours. She cannot tell the exact number of the documents prepared by the IO at the spot nor she can name them. But all the documents were prepared by the IO while sitting inside the security office. PW 4 denied the suggestion that she was deposing falsely or that the accused was not arrested in her presence.
4. No other PW was examined by the prosecution and the PE was closed. Statement of the accused was recorded on 22.12.2011 wherein the accused stated that she has been falsely implicated in the present case and she was falsely arrested. She has not submitted any forged certificate. It is a false case. Accused declined to lead DE. Thereafter the matter was posted for Final arguments.
5. I have heard Ld. APP for State and counsel for the accused and perused the record.
STATE Vs. Dimple
FIR No. : 116/02
Police Station: Chanakaya Puri
U/S : 420/468/471/511 IPC 3 of 7
6. Before considering the evidence coming up on record, it will be relevant here to mention the Provisions for which the accused has been charged.
Section 420 IPC Provides:
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 468 IPC Provides:
Forgery for purpose of harming reputation:-
Whoever commits forgery,[intending that the document or electronic record forged] shall harm the reputation of any party, or knowing that it is likely to be used for that purpose, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine.
Section 471 IPC Provides:
Using as genuine a forged [document or electronic record]:
Whoever fraudulently or dishonestly uses as genuine any [document or electronic record] which he knows or has reason to believe to be a forged [document or electronic record], shall be punished in the same manner as if he had forged such [document or electronic record].
STATE Vs. Dimple
FIR No. : 116/02
Police Station: Chanakaya Puri
U/S : 420/468/471/511 IPC 4 of 7
7. The present FIR was registered on the basis of a complaint dated 22.05.2002 filed by Mr. A. Milic, First Secretary, Canadian High Commission, Chanakaya Puri, New Delhi, wherein complainant has alleged that accused Dimpal Bahen Parsotambhai Patel has applied for Canadian student visa and in support of her visa application she has produced one certificate # 0314234 from "Gujarat Secondary Education Board, Gandhinagar" and on examination by the Embassy officials, it was revealed that it was counterfeit document. On the basis of this complaint, present FIR was registered against the accused.
8. The Prosecution has examined only four witnesses in support of its case out of the eight witnesses cited. Mr. A. Milic, complainant was never examined in the Court as he never appeared despite service. Process was sent through MEA / MHA, however, one report dated 08.03.2011 was received on behalf of Mr. Rick Shakespeare, Migration Integrity Officer, Canadian High Commission, Chanakaya Puri, New Delhi that complainant Mr. A. Milic has already departed India and no representative of the Canadian High Commission will attend the Court. In the absence of the examination of the complainant all the information given by him is not admissible as evidence in the present case as per Provision of 60 of the Indian Evidence Act.
9. Even the maker of the Rukka Ex. PW 1/B has not been examined in the present case for the purposes of cross-examination. The genesis and origin of the prosecution case is hence, falsified and unreliable. The seizure memo produced on record does not mention that the said document was handed over to the IO by Mr. A. Milic nor does it bears his signatures as a witness, the same discredits the correctness and genuineness of the complaint as well as the seizure memo of the documents. In the absence of the complainant, there in no link to establish the guilt of the accused. The linking evidence is not produced on record. The testimonies of other witnesses in the absence of complainant is all hearsay and insufficient to prove the guilt of the accused as alleged by the complainant. Due to non examination of the complainant, even the complaint filed by the complainant remains unproved. It was the complainant only who could have proved on record that it was the accused Dimpal who has produced the alleged forged document / mark-sheet before him. It is well settled that non examination of the material witnesses adversely effects the case of the prosecution and an inference is to be drawn STATE Vs. Dimple FIR No. : 116/02 Police Station: Chanakaya Puri U/S : 420/468/471/511 IPC 5 of 7 against the prosecution for the same and in case no witness is available or could not be produced then the benefit is to be given to the accused only and not to the Prosecution as held in Nadeem Vs. State 2010 (4) JCC 2842 despite that the fact that FSL result produced on record shows that the signatures on the visa application form were pertaining to the accused, however, it is not proved that the application form with the alleged certificate was produced before the complainant by the accused. There in no linking evidence to show as to who issued the mark-sheet to whom and how this mark-sheet reached the office of the complainant.
10. The only material witness which the prosecution has examined is PW 2 Mr. M.S. Chaudhari, Superintendent from Gujarat Secondary and Higher Secondary Education Board, Gandhinagar, Gujarat who has stated that the 12th Standard mark sheet pertaining to accused Patel Dimplebeen Purshotam does not match to their official record and the Xerox Copy of the said Mark Sheet was found to be false. In his examination in chief PW 2 has identified the signatures of Mr. B.T. Purohit on Ex. PW 2/A as he had seen him writing and signing during the course of his official duty. In his cross-examination, however, he has stated that he had worked with Mr. B.T. Purohit for about one year. He admitted that no writing work ever done by him in his presence. He has also admitted that he has never seen Mr. Purohit writing and signing during the course of his official duty. He admitted that only Xerox copy of EX. PW 2/B was sent to their office for opinion. In view of the testimony of the PW 2, it can be said that report Ex. PW 2/A which was prepared by Mr. Purohit has not been duly proved on record by the Prosecution.
11. The prosecution has also failed to examine the IO in the present case despite ample opportunity being given. The same also caused severe prejudice to the defence as the IO, who has investigated the present case could have explained all the circumstances, which were crucial to the case to reach just logical conclusion. In this regard, I rely upon Bhim Sain Vs The State (NCT of Delhi) 2001 (60) DRJ 489 wherein it was held that despite ample opportunities if the prosecution fails to produce the material witness, it calls for an adverse inference against the prosecution case and it can be said that if the said witness had been produced, he would have not supported the case of the prosecution. Both complainant and IO in the matter has not been examined by the Prosecution despite STATE Vs. Dimple FIR No. : 116/02 Police Station: Chanakaya Puri U/S : 420/468/471/511 IPC 6 of 7 ample opportunities being given. The omission on part of the Prosecution to examine the complainant and IO is certainly fatal to the case of the prosecution. Further, it is well settled law that non production of the material witness certainly introduced infirmity in the prosecution case. Hence, I am satisfied that the prosecution has totally failed to prove its case against the accused.
12. In this help can be taken from the following judgments:
(a) Bhim Sain Vs. The State (N.C.T. of Delhi) 2001 (60) DRJ 489, High Court of Delhi Crl. R. 107/2001 & Crl. M. 209/2001.
(b) Nadeem Vs. State, Criminal Appeal No. 647 of 2009, High Court of Delhi, 2010 (4) JCC 2842.
(c) Ghanshyam @ Bablu Vs. State, Crl. Appeal No. 757 of 2007, High Court of Delhi, 2010 (1) JCC 240 and
(d) Kalu Singh & Anr. Vs. State, Crl. A. No. 174 of 2001, High Court of Delhi 2011 (1) JCC 259.
13. In view of the aforesaid discussion, prosecution has failed to establish its case beyond reasonable doubts against the accused. In view of the same, accused stands acquitted for the offences alleged against her. Bail bond if any stand canceled. Surety, if any stand discharged. Documents, if any be released to the concerned persons after due identification against proper receipt. Endorsement, if any also be canceled.
(ANNOUNCED IN THE OPEN SUDESH KUMAR COURT ON 27th February, 2012) METROPOLITAN MAGISTRATE This Judgment contains pages NEW DELHI DISTRICT and each paper is signed by me. PATIALA HOUSE COURTS, DELHI STATE Vs. Dimple FIR No. : 116/02 Police Station: Chanakaya Puri U/S : 420/468/471/511 IPC 7 of 7