Delhi District Court
Rajeev Thakur vs The State Of Nct Of Delhi on 20 February, 2020
IN THE COURT OF AJAY GOEL, ADDITIONAL SESSIONS
JUDGE/SPECIAL JUDGE (NDPS), DWARKA COURTS, NEW
DELHI.
Criminal Appeal No. 133/2019
In the matter of:
RAJEEV THAKUR,
S/o Sh. Ram Prahlad Thakur,
R/o Rew Road, Mujaffarpur, Yadav Nagar, Bihar.
.... Appellant
Versus
The State of NCT of Delhi.
.... Respondent
Date of Institution of the Appeal : 16.03.2019
Date of Assignment of case to this court : 26.11.2019
Date of Arguments : 22.01.2020
Date on which judgment was pronounced : 20.02.2020
JUDGMENT:
1. Vide this judgment, I shall dispose of the present appeal filed against the Judgment dt. 04.02.2019 and Order on Sentence dt. 18.02.2019 passed in case FIR No. 51/2011 PS Bindapur by Criminal appeal No.133/19 Page No. 1/22 the court of Sh. Kishor Kumar , Ld. MM03, Dwarka Courts, New Delhi in case titled as ''State Vs. Amar Thakur"' whereby Ld. Trial Court convicted the appellant/accused Rajiv Thakur along with his brother Amar Thakur for committing the offence U/s 420/468/471/120B IPC and both of them were sentenced to undergo SI for two years and to pay fine of Rs.10,000/ each for the offences U/s 420/468/471 IPC (totalling Rs.30,000/) and in default of payment SI for two months each. The appellant alongwith his brother was also further sentenced to SI for six months for offence U/s 120B IPC. Fine not deposited. Appeal by accused Amar Thakur is not before this court. It is not known that whether accused Amar Thakur has filed it or not.
2. Brief facts of the case are that appellant with another accused namely Amar Thakur entered into criminal conspiracy in the year 20092010 and dishonestly took money from victims Kishan, Raju, Anil, Jai Prakash and Manish amounting to Rs.13 lakhs and from Victims Raju Kumar Singh, Rajesh Kumar, Ajit Criminal appeal No.133/19 Page No. 2/22 Kumar and Sandeep Singh Rs.13 lakhs and from victims Praveen, Anil Kumar, Ajeet Kumar, Hemant Sushil and Satish Kumar Rs.24 lakhs by dishonestly inducing them to pay the said amounts on the pretext of getting them job in Indian Railways and BCCL which never existed. It is further stated that both the accused persons also forged various documents and used them as genuine i.e. appointment letters issued by Ministry of Railway and BCCL, Call letters for medical examinations, medical fitness certificates, training letters, sacrificing letter, identity cards, salary slips as well as residential proof certificates and used them as genuine and also created a false internet website www.rrbkolkatasq.org to show the candidature and result of the victims intending that same shall be used as genuine for the purpose of cheating the victims and grabbing the money. It is further stated that the complainants/victims made written complaint to the police on the basis of which present FIR was registered and investigation was carried out.
Criminal appeal No.133/19 Page No. 3/22
3. After completion of investigation, charge sheet was filed. Vide order dated 24.11.2012, notice U/s 420/468/471/120B IPC was framed by the Ld. Trial Court against accused to which he did not plead guilty and claimed trial. Thereafter, matter was posted for evidence.
4. In evidence, HC Karan was examined as PW1 and he deposed regarding registration of FIR. Ct. Brij Mohan was examined as PW2 and he deposed regarding collection of bank statement of Akhileshwar Singh from PNB and ING Vyasya Bank. Ct. Sudhir was examined as PW3 and he deposed regarding collection of bank statements of different banks of the accounts of accused Amar Thakur, Rajiv Thakur and Latus Mandal. Sh. Deepak, Nodal Officer from Vodafone was examined as PW4 and he proved the documents pertaining to mobile No. 9620692523. Sh. Shishir Malhotra, Nodal officer from Aircel Ltd. was examined as PW5 and he proved the documents pertaining to mobile No. 919738405498. HC Rohtash was examined as PW6 and he Criminal appeal No.133/19 Page No. 4/22 deposed that on 29.10.2010 one complaint of cheating was marked to him and he prepared the rukka and on 16.10.2011 he arrested accused Rajiv Thakur and on 20.12.2011 he arrested accused Amar Thakur. Sh. M.N. Vijayan, Nodal Officer from Tata Tele Services was examined as PW7 and he proved the documents pertaining to mobile no. 8951459903 and 7411348393. Sh. R.K. Tuteja was examined as PW8 and he proved the statement of bank account of Akhileshwar Singh. Sh. Rahul Ji Singh was examined as PW9 and he proved the statement of bank account of Akhileshwar Singh. Sh Pradeep Kumar Sinha was examined as PW10 and he deposed that the documents (letters) MarkA2 and A4 were not issued form their office. Sh. Kunal Mitra was examined as PW11 and he deposed that from 14.07.2010 to 17.07.2010 and 20.07.2010 to 28.07.2010 accused Amar Thakur had stayed in their hotel. Sh Inderdev Paswan was examined as PW12 and he deposed that accused Amar Thakur came at Jaapon Guest House and departed on 26.02.2010. Sh. Criminal appeal No.133/19 Page No. 5/22 Rajbir Sharma was examined as PW13 and he deposed that he met accused Amar Thakur in the year 20082009 and accused Amar Thakur told him that he has links in railways and accused Amar Thakur took Rs.1,80,000/ from his relatives Parveen, Ajeet Kumar, Anil Kumar, Sunil, Satish Kumar and Hemant and all the boys were sent to Calcutta through Amar Thakur. His brother Rajeev Thakur got them medically examined and they were provided with medical paper slips and some other documents. Sh. Praveen Kumar was examined as PW14 and he deposed that in the year 2010 he met with accused Amar Thakur and paid Rs.25,000/ for clearing the written test of Delhi Police but after some time accused Amar Thakur told him that he can not get him cleared in written test of Delhi Police but he can arrange service for him in Railway and accused Rajiv Thakur got him medically examined at Government hospital, Danapur. Sh. Rakesh Ranjan Singh was examined as PW15 and he deposed that in the year 2009 he came in contact with accused Rajiv Thakur and accused Criminal appeal No.133/19 Page No. 6/22 Rajiv Thakur told him that his brother Amar Thakur can provide him a government job and he has to pay Rs.25,000/ for medical test and remaining Rs.2,75,000/ were to be paid after getting the appointment. He further deposed that total Rs.12 lakhs were paid by him to both the accused persons. Sh. Sitam Chand was examined as PW16 he deposed that as per letter Ex.16/B no medical fit certificate was issued from Howrah Orthopedic Hospital, Eastern Railway. Sh. Haldhar Singh was examined as PW17 and he deposed that in the month of December 2009 he met with the accused Amar Thakur for getting appointment in Railway and paid Rs.50,000/ for medical examination and in January 2010 accused Amar Thakur called him at Howrah for the appointment in Railway and obtained his signatures on some documents. Sh. Niranjan Kumar Singh was examined as PW18 and he deposed that accused Amar Thakur told him that he would get him appointed in Railway and for this purpose accused took Rs.50,000/ from him and accused called him at Howrah for medical check and accused Criminal appeal No.133/19 Page No. 7/22 and one person namely Vikas took him to Railway Hospital where they obtained his signatures on some documents. Sh. Sandeep Kumar, Sh. Rajesh Kumar and Sh. Raju Kumar Singh were examined as PW19, PW20 and PW21 respectively and they deposed that they knew the accused persons through his uncle Sh. Akhileshwar Singh and he told them that accused persons could get a government job for them by paying money of Rs.3,25,000/ in the Railways and initially accused persons will take Rs.25,000/ at the time of medical examination and remaining amount was to be paid after securing the job. He further deposed that they reached Railway Hospital Howrah where their signatures were obtained on register and they were told that their medical examination had been done. They were further deposed that they have given Rs. 3 lakhs each to Akhileshwar and who gave the same to Accused Amar Thakur. Sh. Anil Kumar was examined as PW22 and he deposed that in 2009 he met with accused Amar Thakur and accused Amar Thakur told him that he has good Criminal appeal No.133/19 Page No. 8/22 relations with the Railway Authority and he can get his work as per procedure. He further deposed that accused asked for Rs.50,000/ each for getting their work done and he paid the said amount to the accused. He further deposed that accused Amar Thakur directed him to pay Rs.2.50 lakhs and he paid the said amount. Sh. Raju was examined as PW23 and he deposed that accused Amar Thakur told him that he could arrange job in railway for him and thereafter he along with Kishan, Manish, Jai Prakash, Anil and Rakesh met with the accused Amar Thakur, Rajeev Thakur and Arun Dubey and accused persons told them to pay Rs.3 lakhs each for getting the job in Railway. Sh. Akhileshwar Singh was examined as PW24 and he deposed that his son Rakesh Ranjan Singh was doing a computer course from Aptech Computers in the year 200910 and accused Rajeev Thakur met him and told that his brother accused Amar Thakur has approach in Railway and BCCL and he could arrange a job for him. He further deposed that negotiation was done for the Rs.3,25,000/. Criminal appeal No.133/19 Page No. 9/22 Sh. Ajit Kumar was examined as PW25 and he deposed that his father was colleague of Akhileshwar Singh and Sh. Akhileshwar Singh told his father that two persons namely Rajeev Thakur and Amar Thakur arranged job in railway and BCCL and they met with accused Amar Thakur and Rajeev Thakur and in the year 2009 he got appointment in Eastern Railway and went to Hawrah and stayed in Meghdoot hotel and accused Rajeev Thakur told him that medical examination would be conducted and for that he demanded Rs.25,000/. Sh. Kishan Kumar was examined as PW 26 and he deposed that in the year 2009 he met with Arun Dubey and he told that accused Rajeev Thakur and Amar Thakur used to get job for others in Railway and BCCL and they used to take Rs.4 lakhs for one person for getting job. He further deposed that accused Amar Thakur asked him to pay Rs.50,000/ for conducting medical examination in railway. Sh. Jai Prakash was examined as PW27 and he deposed that he got into touch with accused Amar Thakur through Krishan and Krishan told him that a job can be Criminal appeal No.133/19 Page No. 10/22 arranged for him in railway, if he afforded Rs.3 lakhs. He further deposed that for that purpose they met with accused Amar Thakur and accused Amar Thakur told him to Rs.3 lakhs and give Rs.50,000/ as advance. Sh. Manish Bhatia was examined as PW28 and he deposed that Kishan Kumar was his teacher and he introduced him to Arun Dubey and he came to know that accused Amar Thakur can arrange a job in the railways and for that he was required to pay Rs.4 lakhs. Inspector Jitender Kumar was examined as PW29 and he deposed that on 29.10.2010 complaint was marked to him regarding cheating committed by the accused persons and he prepared the rukka and got the FIR registered. Sh. A.N. Mishra was examined as PW30 and he proved the letter no. E/ Rect/ Misc/ Appointment / verification/2011 dt. 28.01.2011 Thereafter, evidence was closed.
5. Statement of accused U/s 313 Cr. P. C was recorded wherein he denied all the allegations levelled against him. He has not produced any witness in support of his case. Criminal appeal No.133/19 Page No. 11/22
6. After hearing the arguments, the Ld. Trial Court convicted the accused/appellant as aforesaid.
7. I have perused the appeal file and the TCR. I have considered the rival contentions of the Ld. Counsel for the appellant and Ld. APP for the state.
8. It is settled law that prosecution is required to prove its case beyond reasonable doubt, after leading cogent and reliable evidence.
9. As far as present case is concerned, the prosecution was supposed to prove the essential ingredients that cheating was done by the appellant/Rajeev Thakur in conspiracy with the accused Amar Thakur. In order to prove the above ingredients, the prosecution has produced 30 aforesaid witnesses in witness box.
10. In this case victims are PW13 Sh. Rajbir Sharma, PW14 Sh. Parveen Kumar, PW15 Sh.Rakesh Ranjan Singh, PW17 Sh. Haldhar Singh, PW18 Sh. Niranjan Kumar Singh, PW19 Sh. Criminal appeal No.133/19 Page No. 12/22 Sandeep Kumar, PW20 Rajesh Kumar, PW21 Raju Kumar Singh, PW22 Sh. Anil Kumar, PW23 Sh. Raju, PW24 Sh. Akhileshwar Singh, PW25 Ajit Kumar, PW26 Sh. Kishan Kumar, PW27 Sh. Jai Prakash, PW28 Sh. Manish Bhatia from whom accused Amar Thakur have taken some money on the pretext of getting job in Railways and BCCL and to get their confidence accused Amar Thakur got conducted their medical examination in different govt hospital through accused Rajeev Thakur.
11. The ingredients of Section 420/68/471 and 120B IPC are as under.
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 Criminal appeal No.133/19 Page No. 13/22 shall also be liable to fine".
468Forgery for purpose of cheating "Whoever commits forgery, intending that the [ document or electronic record forged] shall be used for the purpose of cheating, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine".
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]"
120 B 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 Criminal appeal No.133/19 Page No. 14/22 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 months, or with fine or with both]
12. The perusal of the record shows that the documents by the prosecution are only photocopies. As per the deposition of the victims the amount was given to the accused Amar Thakur directly and no evidence has been brought by the prosecution on record to show that accused Rajeev Thakur had taken money from the aforesaid victims directly or through any channel or that he issued any document to the victims. As per the witnesses the bank account of accused Amar Thakur was involved and no amount is shown to have been taken by accused Rajiv Thakur in his account or through cash. The prosecution has failed to brought any document bearing the signature of the appellant on record. No specimen writing or signatures of the appellant/accused Rajiv Criminal appeal No.133/19 Page No. 15/22 Thakur was ever taken for comparison with the questioned documents. It is evident from the testimonies of the victims that they had given money to accused Amar Thakur and these witnesses have categorically deposed against him and the role assigned to the present appellant is that he had taken few of them to the hospital for their medical examination. Keeping in view of the role assigned to the appellant, it can not be inferred or presumed that he had entered into a criminal conspiracy with accused Amar Thakur. None of the victim had deposed that appellant/accused Rajiv Thakur had induced them for giving him money. The allegation of taking money are against accused Amar Thakur. No recovery of any money was effected from appellant/accused Rajiv Thakur. As per the prosecution story accused Amar Thakur directed the accused Rajeev Thakur to get medical examination of candidates which were sent by him in hospital, however, prosecution failed to prove that accused Rajiv Thakur was involved in conspiracy with accused Amar Thakur to Criminal appeal No.133/19 Page No. 16/22 cheat the aforesaid victims by giving false assurance of getting job.
The prosecution was duty bound to prove that there was meeting of minds of accused Amar Thakur and accused Rajiv Thakur and that accused Rajiv Thakur had knowledge as to what accused Amar Thakur was doing. The main role assigned to him by many of the witnesses was that he has only taken the person to the hospital for medical examination. Even no victim has specifically deposed about the role of the accused Rajeev Thakur with regard to commit cheating. Hence, prosecution further failed to prove the charge U/s 120 B IPC against the accused Rajeev Thakur. The prosecution has not been able to prove its case against the appellant regarding the criminal conspiracy, cheating and forgery of documents beyond shadow of doubt, especially in the circumstances when original documents admittedly are not on the record. Out of so many persons only PW15 Sh. Rakesh Ranjan Singh, PW24 Sh. Akhileshwar Singh and PW26 Sh. Kishan Kumar are important qua this accused. PW24 Sh. Akhileshwar Criminal appeal No.133/19 Page No. 17/22 Singh has only stated that accused Rajiv Thakur met him and told him that his brother Amar Thakur had approach in Railway and BCCL and he can arrange a job for his son namely Sh. Rakesh Ranjan Singh, thereafter, they had negotiated with accused Amar Thakur. It has been mentioned that one PDC cheque of Rs. 1 lakh was given by the accused Rajiv Thakur to this witness but what happened to that cheque has not been brought on the record. In cross examination this witness has stated in chief that he had issued two cheques in the name of accused Rajiv Thakur of Rs.50,000/ each and if it was so then it is crystal clear that there was no intention of accused Rajiv Thakur to cheat him because this witness has himself stated that one PDC cheque of Rs.1 lakh was given by the accused to him for the payment given by this witness to Rajiv Thakur. If there was any intention of cheating by Rajiv Thakur then he would not have given a PDC for security. This witness was getting salary of Rs.15,000/ and as to how he arranged the amount is not brought on record. In the court Criminal appeal No.133/19 Page No. 18/22 question he admitted that he had given Rs.13 lakhs in total to accused Amar Thakur, so meaning thereby the amount of Rs. 1 lakh stated to have been paid by him to accused Rajiv Thakur is not pertaining to the question involved in the present matter. PW 15 is son of PW24 who has stated that he had given the cash of Rs.30,000/ and Rs.25,000/ in cash to the accused Amar Thakur after withdrawing the same from ATM of his father. This fact is missing in the statement of PW24 i.e. father Akhileshwar Singh. PW24 had talked about Rs.13 lakhs and PW15 had talked about 12 lakhs. PW24 says that it was paid to accused Amar Thakur. PW15 says that it was paid to both accused after initial meeting of Rajiv Thakur with him. The call details between Rajiv Thakur and PW24 and PW15 have not been brought on record. In cross examination conducted by counsel for the accused Amar Thakur, he has given the details of amount paid to him and as per him all the amount was paid to accused Amar Thakur. In cross examination he again changed his stand and said that his father Criminal appeal No.133/19 Page No. 19/22 gave the money to accused Rajiv Thakur in Howrah though in his examination there are many improvements qua the statement of PW24 in the matter which can not be ignored. None of the witnesses has verified the antecedents of accused Rajiv Thakur. PW26 has also talked about assurance given by accused Amar Thakur only. This witness was cross examined by Ld. APP and there is no corroboration of his statement on the file by other witnesses. It has been stated by this witness that Ankur Dubey got him contacted to Rajiv Thakur and Amar Thakur and talks happened in his presence but said Ankur Dubey is not a witness before this court and he has never been cited or produced. So in these circumstances without corroboration meeting of minds of accused persons for the purpose of conspiracy is not brought on record. The ingredients of cheating are on two counts i.e. orally and documentary. The proof of documentary cheating has not been brought on the record as there is no document to show that accused Rajeev Thakur has prepared any false documents. As far Criminal appeal No.133/19 Page No. 20/22 as oral cheating to give them the job is concerned, the same is also not proved against accused Rajiv Thakur. Meeting of minds for the purpose of conspiracy is also missing. The ingredients were proved against the accused Amar Thakur as per the Ld.Trial Court and he has been convicted.
13. The Hon'ble Supreme Court in case P. Satyanarayana Murthy Vs. The Dist. Inspector of Police and Ors.: (2015) 10 SCC 152 has held as under:
"25. In reiteration of the golden principle which runs through the web of administration of justice in criminal cases, this Court in Sujit Biswas v. State of Assam: (2013) 12 SCC 406 had held that suspicion, however, grave, cannot take the place of proof and the prosecution cannot afford to rest its case in the realm of "may be"
true but has to upgrade it in the domain of "must be" true in order to steer clear of any possible surmise or conjecture. It was held, that the Court must ensure that miscarriage of justice is avoided and if in the facts and circumstances, two views are plausible, then Criminal appeal No.133/19 Page No. 21/22 the benefit of doubt must be given to the accused".
14. Accordingly, the appellant is entitled to the benefit of doubt. The present appeal stands allowed. The impugned judgment and order on sentence passed by Ld. Trial Court are set aside qua the present accused Rajiv Thakur. Accused Rajiv Thakur is acquitted for the offence U/s 420/468/471/120B IPC. Accused is directed to furnish bail bond under Section 437A Cr.P.C. in sum of Rs.25,000/. Bail bonds furnished and accepted and shall remain in force for a period of six months from today.
15. File be consigned to Record Room. Copy of this judgment be sent to Ld. Trial Court with TCR. Copy of this judgment be given free of costs to appellant. Appeal file be consigned to record room.
Pronounced in the open court. (Ajay Goel)
Dated : 20.02.2020 ASJ/Spl. Judge(NDPS),
Dwarka Courts, New Delhi.
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