Delhi District Court
State vs Rajesh Kumar Sharma on 25 September, 2023
DLSE020000322004
IN THE COURT OF SH. GAURAV DAHIYA, METROPOLITAN
MAGISTRATE06, SOUTH EAST DISTRICT, SAKET COURTS, NEW
DELHI
STATE Vs Rajesh Kumar Sharma
FIR No. 845/2002
P.S. Kalkaji
U/s 420/471 IPC
Cr. cases no. 86106/2016
JUDGMENT
Date of institution : 05.06.2004
Name of the complainant : Sh. Sandeep Kumar
S/o Sh. Amarjeet Singh,
R/o VPO Bajitpur,
Thakra, Delhi110039.
Date of Commission of offence : 15.10.2002
Name of the accused : Rajesh Kumar Sharma
S/o Sh. Devi Chand
Dhiman R/o VPO Ramraj,
District Meerut, U.P.
Plea of accused : Not guilty
Case reserved for orders : 10.07.2023
Final Order : Convicted 420 &
Acquitted 471 IPC
Date of judgment : 25.09.2023
FIR No. 845/02 State Vs. Rajesh Kr. Sharma Page no.1/13
BRIEF STATEMENT OF FACTS FOR THE DECISION:
1. Vide this judgment, I seek to dispose off the case of the prosecution filed against the accused Rajesh Kumar Sharma for having committed the offences punishable u/s 420/471 of Indian Penal Code, 1861 (hereinafter referred as "IPC").
2. Briefly stated, as per the case of prosecution accused was running finance company and in pursuance of an advertisement in newspaper, complainant approached him for extending finance for bus. The accused deceived the complainant Sandeep Kumar S/o Sh. Amarjeet Singh by means of said advertisements and dishonestly induced him to apply for finance of a bus and on the false pretext of loan having been sanctioned to him, took a sum of Rs. 90,000/ from him by way of advance installments besides Rs. 16,000/ as processing charges which he would not have paid if he were not so deceived and such act caused him loss of property. Further, a cheque which was given by the accused to the complainant showing the loan sanctioned to him was found to be forged, though it was represented to be a genuine document and thus, complainant was duped.
3. After completion of investigation, chargesheet was filed against the accused for the offences punishable u/s 420/467/468/471 IPC. Thereafter, charge u/s 420/471 IPC was framed against accused Rajesh Kr. Sharma on 30.07.2005 to which he pleaded not guilty and claimed trial.
4. In order to prove the guilt of accused, the prosecution examined following eight witnesses:
Sh. Sandeep Kumar deposed as PW1; Sh. Dharamveer Singh Bhati deposed as PW2; HC Yunus Khan deposed as PW3;
Inspector Hanumant Singh deposed as PW4;
FIR No. 845/02 State Vs. Rajesh Kr. Sharma Page no.2/13 ASI Kulbeer Singh deposed as PW5; Sh. Atri Kumar deposed as PW6;
Sh. Animesh Raj deposed as PW7;
Retired Inspector Raj Kumar Atri deposed as PW8.
5. PW1 deposed that on 07.11.2002 accused namely Rajesh took money of Rs.1,06,000/ from him on account of purchase of one bus and accused handed over him one cheque and receiving slip of Rs.90,000/. He further deposed that he deposited the cheque in his account and the said cheque was found to be fake. Thereafter, he went to office of accused situated at Devika Tower, Flat No. 821, Nehru Place and when he reached the said office it was found to be closed. Thereafter, he made complaint to PP Nehru Place which is Ex. PW1/A.
6. This witness was asked some leading questions on some material point by ld. APP for State wherein he deposed that the office of the accused was situated at 8th floor HPO in the name of Finance India and they gave advertisement in the newspaper in the Punjab Kesari for Rs.100/. He further deposed that he deposited the documents regarding the same and after one month they told him that his loan was sanctioned. He further deposed that he handed over Rs.91,000/ and Rs.15,000/ for filing charges and accused handed over a cheque of Rs.4,50,000/ to him bearing no.173417/110237010, Bank of Punjab Ltd. B185, Sector 19, Noida201301, account no.2720 and the cheques are Ex.PW1/B and the HPO services slip is Ex.PW1/C.
7. PW2 deposed that in the year 2002 he was in the business of property dealing having his office at G4A, Vishal Bhawan, 95 Nehru Place along with his father. He further deposed that accused went to him for FIR No. 845/02 State Vs. Rajesh Kr. Sharma Page no.3/13 commercial flat on rent. He got accused accommodated at 821A at Devika Tower belonging to one Vijay Lakshmi. The lease agreement was prepared between both the parties. He further deposed that at the time of entering into the said lease agreement, he got assured about the identity of accused Rajesh as he had shown the documents. He came to know that the accused left the given premises after 45 months without telling anyone.
8. PW3 deposed that on 06.04.2004 he accompanied IO/SI Raj Kumar to Nehru Place bus terminal where they met with complainant Sandeep who pointed out towards accused. He further deposed that accused was formally arrested by IO and accused was personally searched vide memos Ex.PW3/A and Ex.PW3/B. IO recorded disclosure statement of accused vide Ex. PW3/C.
9. PW4 deposed that on 20.12.2002 on the complaint of Sh. Sandeep Kumar he got the present case registered by preparing a rukka vide Ex. PW4/A. During investigation, he recorded the supplementary statement of the complainant and made efforts to trace the alleged person and collected documents. He further deposed that on 30.05.2002, he was transferred from PS Kalkaji to PS Nizamuddin. Thereafter, case file was handed over to MHC(R).
10. PW5 deposed that on 27.05.2004, SI Raj Kumar had handed over him one envelope containing with the seal of RKA and asked him to submit at FSL, Kolkata. Thereafter, he took the same and submitted at FSL Kolkata by RC No.129/21/2004 and returned back along with RC and handed over the same to MHC(R). Thereafter, IO recorded his statement.
11. PW6 deposed that he had brought the copy of the record available in the bank of one Sh. Rajesh Kumar who had opened an account on FIR No. 845/02 State Vs. Rajesh Kr. Sharma Page no.4/13 18.09.2002 and closed the same on 25.11.2002. The copy of customer application form is Ex.PW6/A and photocopy of DL of accused is marked as Mark A which he had submitted at the time of opening of account. Four photocopies of all record brought by the record clerk is marked as Mark B to Mark E.
12. PW7 deposed that the detail of the cheque bearing no.173417 dated 31.10.2002 issued by Bank of Punjab Limited are not available. Bank of Punjab had merged with HDFC bank in the year 2006. Further, there is no record available regarding HPO services (I) Limited who was bearing account with the Bank of Punjab Limited.
13. PW8 deposed that the present case was marked to him and he received the case file from Malkhana Mohrar with the order of SHO for further investigation. He asked the complainant to join the investigation and served notice u/s 91 Cr.PC. In the meantime, complainant came at PS and handed over to him cheque bearing no.173417 amounting to Rs.14,50,000/ drawn with PNB Bank under the signature of Sunil Kumar, cash receipt of Rs.90,000/ and cheque book. He further deposed that he seized all documents which was provided by the complainant and prepared seizure memo which are Ex.PW8/A and Ex.PW8/B. He searched accused for a long time, lastly accused was arrested on 06.04.2006 at the instance of complainant at Nehru place terminal. Thereafter, he arrested the accused and conducted personal search of accused vide memos already Ex.PW3/A and Ex.PW3/B respectively. In the meantime, he also recorded disclosure statement of accused already Ex.PW3/C. In the meantime, he along with accused returned to PS and accused sent to lockup. He further deposed that on the next date, he produced accused before the court and sent to JC. Thereafter, after 34 days he took the FIR No. 845/02 State Vs. Rajesh Kr. Sharma Page no.5/13 permission from the court to obtain specimen signature and handwriting of accused. Signature and handwriting of accused were sent to FSL Kolkata.
14. After examination of all prosecution witnesses, at the request of Ld. APP, PE was closed on 15.07.2022. Thereafter, statement of the accused Rajesh Kr. Sharma was recorded on 13.10.2022 u/s 313 Code of Criminal Procedure, 1973 ("Cr.P.C") wherein he denied the allegations and claimed to have been falsely implicated and chose not to lead DE.
15. Learned APP for the State has argued that the testimonies of all prosecution witnesses have established guilt on the part of accused and that he be convicted for offences under Sections 420/471 IPC. Ld. APP has contended that the prosecution witnesses have brought forward complete prosecution version and their testimonies have remained unrebutted. Ld. APP has further contended that the testimonies of eye witnesses are sufficient to prove the guilt of the accused beyond reasonable doubt.
16. On the other hand, it has been argued by the learned counsel for accused that there are material contradictions in the cross examination of eye witnesses and State has failed in its duty to prove the case beyond reasonable doubt and has thus, failed to discharge the burden cast upon it.
17. I have heard the Ld. APP for the State and the Ld. counsel for the accused at length and perused the record carefully.
18. In a criminal trial, the onus remains on the prosecution to prove the guilt of accused beyond all reasonable doubts and benefit of doubt, if any, must necessarily go in favour of the accused. It is for the prosecution to travel the entire distance from 'may have' to 'must have'. If the prosecution appears to be improbable or lacks credibility the benefit of doubt FIR No. 845/02 State Vs. Rajesh Kr. Sharma Page no.6/13 necessarily has to go to the accused.
LAW INVOLVED IN THE PRESENT CASE
19. Section 420 of Indian Penal Code (hereinafter referred to as "IPC") provides for the offence of cheating and dishonestly inducing delivery of property. Simple cheating is punishable u/s 417 IPC. But where there is delivery or destruction of any property or alteration or destruction of any valuable security resulting from the act of person deceiving, the same falls under the ambit of section 420. It reads as under:
"S.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"
20. The essential ingredients to attract section 420 IPC are:
1. Cheating;
2. Dishonest inducement to deliver property or to make, alter or destroy any valuable security or anything which is sealed or is capable of being converted into a valuable security; and
3. Mens rea of the accused at the time of making the inducement.
21. It should also be noted that accused should have dishonest intention to cheat right at the time of making the promise or representation. If he does not have any such intention at the very outset FIR No. 845/02 State Vs. Rajesh Kr. Sharma Page no.7/13 and if he subsequently fails to fulfil the said promise, then he cannot be convicted for the offence punishable u/s 420 IPC. Reference can be taken from the decision of the Hon'ble Supreme Court in the case of Hira Lal Hari Lal vs. CBI (2003) 5 SCC 257.
22. Section 471 IPC provides for the offence of using as genuine a forged document. It reads as under:
"S.471. 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]."
23. The essential ingredients of section 471 IPC are:
(i) fraudulent or dishonest use of document as genuine; and
(ii) knowledge or reasonable belief on the part of person using the document that it is forged one. The act need not be both dishonest and fraudulent. The use of document contemplated by this provision must be a voluntary one.
24. It should be noted that section 471 is intended to apply to persons other than the forger himself, but the forger himself is not excluded from the operation of this provision. In order to attract this provision, it is not necessary that the person held guilty under the provision must have forged the document himself or that the person independently charged for forgery of the document must of necessity be convicted before the person using the forged document, knowing it to be forged one can be convicted, as long as the fact that the document used stood established or proved to be a forged one. Reference can be taken from the decision of the Hon'ble Supreme Court in the case of A.S. Krishnan and Others vs. State of FIR No. 845/02 State Vs. Rajesh Kr. Sharma Page no.8/13 Kerala (2004) 11 Supreme Court Cases 576.
25. The onus and duty to prove the case against the accused lies upon the prosecution and the prosecution must establish the charge beyond reasonable doubt. It is also a cardinal principle of criminal jurisprudence that if there is a reasonable doubt with regard to the guilt of the accused, the accused is entitled to the benefit of doubt resulting in acquittal of the accused.
APPRECIATION OF EVIDENCE
26. In the present case the complainant had made a complaint on 07.11.2002 making specific allegations against the accused which were reiterated by him during his evidence in the Court on being examined as PW1. He deposed that accused took amount of Rs.1,06,000/ from him on account of financing of one bus and handed over one cheque and a receiving slip of Rs.90,000/. He further deposed that when he presented the cheque it was found to be fake and when being aggrieved he reached at the office of the accused it was found to be closed. Complainant has exhibited his complaint as Ex.PW1/A identifying his signature on the complaint and also correctly identified the accused. He further deposed that he had approached the office of the accused person in pursuance of an advertisement in the newspaper.
27. Initially the witness was not cross examined despite opportunity however, application of the accused for resummoning of the witness was allowed and he was cross examined wherein he clearly deposed that he had given an amount of Rs.1,06,000/ to accused in cash and the whole FIR No. 845/02 State Vs. Rajesh Kr. Sharma Page no.9/13 amount was in denomination of Rs.100/ note. Nothing substantial came out of the cross examination of the witness.
28. Prosecution further examined Dharambir Singh Bhati as PW2 who deposed that he was a property dealer conducting his business at G4A, Vishal Bhawan, 95, Nehru Place. He further deposed that accused R.K. Sharma, whom he correctly identified in the Court had approached him for a commercial flat on rent and he was accommodated at A21A, Devika Tower belonging to one Vijay Laxmi, the witness also identified his signature at the lease agreement. He further deposed that the accused had left the rented premises after 45 months without telling anyone. He was not cross examined despite opportunity given to him.
29. Prosecution further examined HC Yunus Khan as PW3 and Inspector Hanumant Singh as PW4 who deposed about them being a part of investigation. Thereafter, ASI Kulbir Singh was examined as PW5 and he deposed about submitting the record in FSL and nothing substantial came out in their cross examination. Thereafter, Sh. Atri Kumar was examined as PW6 who brought the record of customer application form of the accused from Bank of India and the said form is Ex.PW6/A. Thereafter, Sh. Animesh Raj was examined as PW7 who deposed that no record regarding HPO services (I) Ltd. is available with the bank.
30. Prosecution lastly examined the IO of the case, retired Inspector Raj Kumar as PW8 and deposed that on notice u/s 91 Cr.P.C. complainant handed over to him cheque bearing no.173417 amounting to Rs.14,50,000/, cash receipt of Rs. 90,000/ and a cheque book. He further deposed that accused was arrested after a long gap on 06.04.2006 at the instance of the complainant.
FIR No. 845/02 State Vs. Rajesh Kr. Sharma Page no.10/13
31. He was cross examined at length and was questioned about his non joining of public persons during the arrest however, nothing substantial came out of his cross examination.
32. To prove the offence u/s 420 IPC the first essential ingredients which need to be proved is cheating. The prosecution has relied upon the testimony of complainant to prove cheating. It is clear from the depositions made by the complainant as discussed above in the preceeding paragraph of this judgment that complainant had acted upon the advertisement given in the newspaper by the accused and approached him for securing a loan to purchase a bus. The dishonest inducement which is a necessary ingredient of the offence of cheating is manifest from the fact that cheque sanctioning the loan was found to be fake when presented in the bank.
33. The complainant has proved that cash of Rs.1,06,000/ was given by him towards installment and filing charges for which receipt Ex.PW1/C has also been relied upon.
34. The next essential for the offence u/s 420 IPC is dishonestly inducing the person to deliver any property. This fact has been proved by the prosecution as the testimony of complainant has remained intact. In the paras immediately preceeding this paragraph it is proved that accused had cheated the complainant and the complainant had given him an amount of Rs.1,06,000/ in lieu of which a receipt Ex.PW1/C in the amount of Rs.90,000/ was given by the accused to the complainant. The FSL report which is on record and admissible in evidence u/s 293 Cr.P.C. is very much clear about the fact that the contents of receipt were written by the accused only as the handwritings of accused on the receipt have been found to be identical with his handwritings on the samples collected during investigation.
FIR No. 845/02 State Vs. Rajesh Kr. Sharma Page no.11/13
35. Mensrea required for the offence of Section 420 IPC may be inferred from the facts and circumstances of the case. The fact that accused was conducting his business from the rented premises has been proved by PW2 who identified the accused and deposed in the court in his presence that he had helped the accused to rent an accommodation for business purposes at the address mentioned on the receipt Ex.PW1/C which has been duly proved by the complainant.
36. The complainant has proved dishonest inducement to deliver the property as discussed above. The complainant has also very specifically deposed that when the cheque was found to be fake on being presented in bank and he visited the office of the accused the premises were found to be locked. This fact has also been proved by PW2 whose testimony remained unrebutted.
37. From the above made discussions, it may be safely concluded that the accused who was running finance business from 821A, Devika Tower, Nehru Place, New Delhi cheated the complainant and dishonestly induced him to apply for a loan and on the false pretext of the loan having been sanctioned took a sum of Rs.1,06,000/.
38. Complainant has also alleged that the cheque in amount of Rs.14,50,000/ which was given to him was found to be fake and accordingly, accused was also charged for offence u/s 471 IPC which covers the offence of using as genuine a forged document. The FSL report which is perse admissible in evidence u/s 293 Cr.P.C. and on record would show that the report is not conclusively establishing the cheque to be forged. The signatures on the cheque have not been found to be matching with the sample signatures of the accused collected during the investigation.
FIR No. 845/02 State Vs. Rajesh Kr. Sharma Page no.12/13
39. One essential element which need to be proved to establish the culpability of accused for offence u/s 471 IPC is that the document must be found to be forged. The FSL report is not conclusive to that effect and no bank official has been examined to prove the very existence of the cheque belonging to that particular bank.
40. Thus, when even it has not been proved that the cheque in question was forged, question of it being used as a genuine cheque settles in the negative because there is no oral or documentary evidence to prove this fact.
41. Accordingly, accused Rajesh Kumar Sharma stands convicted for the offence punishable u/s 420 IPC and stands acquitted for the offence u/s 471 IPC.
Announced in the open Court (Gaurav Dahiya)
on 25.09.2023 Metropolitan Magistrate06,
South East, New Delhi
It is certified that this judgment contains 13 pages and each page bears my signatures.
(Gaurav Dahiya) MM06, South East, New Delhi/25.09.2023 FIR No. 845/02 State Vs. Rajesh Kr. Sharma Page no.13/13