Delhi District Court
Cr. Case/5291273/2016 on 24 November, 2018
State v. Prahlad & Anr.
IN THE COURT OF MS. SADHIKA JALAN, MM06, NORTH
DISTRICT, ROHINI COURTS, NEW DELHI
State v. Prahlad & Anr.
FIR no. 73/2012 Date of Institution 19.07.2013
Police Station: Adarsh Nagar Judgement Reserved 22.09.2018
on
Sections 471, 420 read with Date of Judgment 24.11.2018
Section 34 IPC
JUDGMENT
a) Serial Number of the case 5291273/16
b) Date of offence 18.07.2012
c) Name of Complainant Assistant Sub Inspector Satya
Prakash
d) Name and address of the 1. Prahlad son of Jagdish Sharma accused 2. Mukesh son of Jagdish Sharma Both resident of E81, Vijay Vihar, Sector4, Rohini, Delhi.
e) Offences complained of Sections 471, 420 read with Section 34 IPC f) Plea of accused persons Not Guilty g) Final Order Acquitted of all charges h) Date of Order 24.11.2018 Brief reasons for the decision--
1. Succinctly stated, it is the case of the prosecution that on 18.07.2012 the accused Prahlad and Mukesh were found using a forged no entry permission certificate which was pasted on vehicle bearing no. DL 1LQ 4268. The accused persons used the no entry permission as genuine. On suspicion, when the vehicle was FIR no. 173/12 Adarsh Nagar Police Station Page 1 of 9 State v. Prahlad & Anr.
stopped and the no entry permission was verified by the complainant/traffic police officer, it was found to be forged.
2. Upon investigation, chargesheet was filed by the police. Thereafter, accused persons were supplied documents in compliance of Section 207 Code of Criminal Procedure (hereinafter referred to as CrPC). Charge for the offences punishable under Section 420, 471 read with Section 34 of the Indian Penal Code (hereinafter referred to as IPC) were framed against them. Accused persons pleaded not guilty and claimed trial.
3. In order to establish the guilt of the accused persons, prosecution examined seven witnesses. As the first witness, prosecution examined Constable Parvinder as PW1. He accompanied the investigating officer during investigation. He stated that on 19.07.2012, he joined investigation with investigating officer Sub Inspector Rajiv Kumar. Accused Mukesh Sharma was arrested in his presence. Arrest memo is Ex. PW1/A. He identified accused in court. He states that the accused Mukesh told them that the no entry permission certificate was given to him by one Suresh and he then led them to Budh Vihar in search of accused but he was not found. On 09.08.2012, he along with investigating officer arrested the accused from Rohini Court. Arrest memo is Ex. PW1/B. Disclosure statement of the accused Prahlad Sharma was recorded in his presence. This statement is Ex. PW1/C. He was cross examined at length by learned defence counsel.
FIR no. 173/12 Adarsh Nagar Police Station Page 2 of 94. Duty Officer Head Constable Ashok Kumar was examined as PW
2. He stated that on 18.07.2012, Sub Inspector Sanjeev handed over rukka to him. He recorded FIR based on the rukka. Copy of FIR is Ex. PW2/A.
5. Head Constable Satyavir Singh was also present with the complainant when the alleged forged no entry permission certificate was found to be used. He was examined as PW3. He stated that on 18.07.2012, he alongwith Assistant Subinspector Satya Prakash were on duty. At about 1:10 PM, one delivery van bearing registration no. DL1LQ4268 came there. This vehicle was being driven by accused Mukesh. Photocopy of one no entry permission certificate was found to be pasted on the same. Upon inquiry the driver could not give any satisfactory reply about it. He was sent by Assistant Sub Inspector Satya Prakash to verify it. Upon verification it was found to be fake since no such record exist. He came back alongwith verification report. Verification report is Ex. PW3/A. No entry permission certificate was seized. It was seized vide seizure memo Ex. PW3/B. Delivery van was also seized vide seizure memo Ex. PW3/C. Witness was cross examined.
6. Complainant Sub Inspector Satya Prakash was examined as PW4. He deposed on similar lines in regards manner of seizure of no entry permission and alleged vehicle as stated by PW3. He identified the no entry permission and accused in court. He was crossexamined by learned defence counsel. Witness was cross examined.
FIR no. 173/12 Adarsh Nagar Police Station Page 3 of 97. Investigating Officer Sub Inspector Rajiv was examined as PW5. He deposed on the same lines as regards manner of investigation, arrest of accused, seizure of alleged certificate and vehicles as stated by PW1 Constable Parvinder Kumar. He also identified the accused persons in court. He was crossexamined at length by learned defence counsel.
8. Second investigating officer Assistant Sub Inspector Parmal Singh was examined as PW6. He stated that on 19.04.2013, investigation of case was marked to him. He tried to search accused Suresh but his efforts were in vain. Suresh was declared proclaimed offender. He then prepared a challan and filed the charge sheet.
9. Lastly, Head Constable Sunil was examined by the prosecution as PW7. He was examined for production of duty roaster of the complainant. However, the said order was weeded out.
10.Thereafter prosecution evidence was closed and the accused was examined under Section 313 read with Section 281, CrPC on 30.06.2018. Accused opted not to lead any defence evidence.
11.Consequently, matter was fixed for hearing final arguments. Arguments of both the prosecution as well as the defence were heard at length. Record perused. Findings are as follows.
12.In order to sustain conviction under Section 420 Indian Penal Code, the prosecution is required to prove that a person has cheated another and thereby induced the other so deceived to deliver any property. The term 'cheating' has been defined under FIR no. 173/12 Adarsh Nagar Police Station Page 4 of 9 State v. Prahlad & Anr.
Section 415 of the Indian Penal Code. In every offence under Section 420, Indian Penal Code, the element of cheating must be present. The essential ingredients of cheating are--
1. The deception of any person.
2. Fraudulently or dishonestly inducing that person to:
a) deliver any property to any person; or
b) to consent that any person should retain any property; or
3. Intentionally inducing that person to do or omit to do anything which that person would not have done or omitted to do if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property.
13.In the instant matter, the defence counsel has argued that the offence of cheating is not made out as the prosecution has not shown any wrongful gain or wrongful loss, which is an essential ingredient to the occurrence of the offence. However, it is the considered opinion of the Court that intentional use of a false and fabricated no entry permission causes wrongful loss to the government and robs the government of revenue and results in wrongful gain to the user, giving him access to areas which he would otherwise not have had.
FIR no. 173/12 Adarsh Nagar Police Station Page 5 of 914.It is further argued that in the matter at hand, the verification report Ex. PW3/A, is the document which states that the noentry permission of the accused persons is false and fabricated. It is contended that this verification report was never verified by the investigating officer. The investigating officer admits in his cross examination that he never verified report Ex. PW3/A. The genuineness of the document and credentials of the signatory to the document were never checked. The creator of the document Ex. PW3/A was never examined, which implies also that the document was never proved before the court. If the documents are not proved, that it self calls into question the basis of the case, as if the permission cannot be shown to be false, then the ground for cheating would not survive. This contention of the defence thus carries weight and is a major drawback in the investigation conducted and severely weakens the case of the prosecution.
15.The investigating officer further made no enquiries as to whether any letter Ex. PW4/A was sent to the Transport Department for verification. Furthermore, no enquiries were made as to where in the vehicle the said permission was pasted by the accused persons when the checking was conducted. The present case is an example of shoddy and weak investigation.
16.Furthermore, the question as to whether that permission was being used at the time of the incident has neither been answered by the prosecution nor has been asked it seems by the investigative authority. The prosecution has no where stated that had it not been for this no entry permission the vehicle could not have plied on the FIR no. 173/12 Adarsh Nagar Police Station Page 6 of 9 State v. Prahlad & Anr.
road. For instance, if the accused in his vehicle could have anyway been present at the spot in question, whether he had a permission or not, would significantly change the outcome of the case. However no such determination has been made in the case. Neither the traffic police has stated anything in regard to the usage of the permission, nor has any investigation been done in that regard by the subsequent investigating officer.
17.In light of the above submissions, the court is of the considered opinion that the prosecution has not able to prove the charge of cheating under Section 420 IPC against the accused persons.
18.The accused persons have also been charged under 471 IPC. Section 471 IPC punishes use of a forged document as genuine. This offence is rooted in the offence of forgery, which has been defined in the IPC in Section 463. Section is produced hereunder for quick reference--
"Section 463: Forgery--Whoever makes any false document or part of a document with intent to cause damage or injury, to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery."
19.The Apex Court in two judge bench judgment in Sheila Sebastian v. R. Jawaharaj and Anr., Criminal Appeal Nos. 359360 of 2010 dated 11.05.2018 while referring to various case laws observed that a charge of forgery cannot be imposed on a person who is not FIR no. 173/12 Adarsh Nagar Police Station Page 7 of 9 State v. Prahlad & Anr.
the maker of the same and that making of a document is different than causing it to be made. "It is imperative that a false document is made and that the accused is the maker of the same, otherwise the accused person is not liable for the offence of forgery. The definition of "false document" is a part of the definition of "forgery". Both must be read together. Both must be read together. 'Forgery' and 'Fraud' are essentially matters of evidence which could be proved as a fact by direct evidence or by inferences drawn from proved facts," the bench said.
20.In the present matter, as per the factual scenario and the version of the prosecution, it is not the case of the prosecution the document was prepared by the accused persons in question. In fact, the prosecution got accused Suresh declared as a proclaimed offender, under the belief and assumption that it was Suresh who was in fact the author of the document. There is no evidence on record to show that the accused persons were placing reliance on the no entry permission and that they were aware that it was in fact a forged document.
21.It is further pertinent to note that no public persons were joined in the investigation by the investigating officer despite their presence. Arrest of the accused Mukesh after several hours of the incident, has also not been satisfactorily explained.
22.It is the cardinal principle of criminal justice delivery system that the prosecution has to prove the guilt of accused person beyond reasonable doubt. No matter how weak the defence of accused, the golden rule of the Criminal Jurisprudence is that the case of the FIR no. 173/12 Adarsh Nagar Police Station Page 8 of 9 State v. Prahlad & Anr.
prosecution has to stand on its own legs. Reference may also be made to the judgment titled as Nallapati Sivaiah v. Sub Divisional Officer, Guntur, VIII(2007) SLT 454(SC). In the instant matter, the prosecution has failed to prove its case. Prosecution has failed to prove its case beyond reasonable doubt. Accordingly, accused persons Prahlad and Mukesh are acquitted.
23.Surety bonds and personal bonds stand cancelled. Sureties' are discharged. Endorsement on sureties' documents if any be cancelled and original documents if any of the sureties' retained on record be returned to the person entitled legally.
24.As per section 437A of the CrPC, as amended vide the Amendment Act, which came into force on 31.12.2009, the accused persons as well as their sureties' shall remain bound by their personal and surety bond respectively for a period of six months from today.
25. File be consigned to record room after necessary compliance.
Announced in Open Court Digitally signed by
SADHIKA SADHIKA JALAN
on 24.11.2018 JALAN Date: 2018.11.24
16:42:43 +0530
Sadhika Jalan
MM06/North District
Rohini/24.11.2018
Certified that this judgment contains 9 pages and each page bears my Digitally signed by signature. SADHIKA SADHIKA JALAN JALAN Date: 2018.11.24 16:42:55 +0530 Sadhika Jalan MM06/North District Rohini/24.11.2018 FIR no. 173/12 Adarsh Nagar Police Station Page 9 of 9