Delhi District Court
State vs . on 28 August, 2014
1
IN THE COURT OF SHRI VIVEK KUMAR GULIA
CHIEF METROPOLITAN MAGISTRATE (SOUTH)
SAKET DISTRICT COURTS, DELHI
In the matter of :
State
Vs.
Anita Dhiman @ Anita Panikar @ Guddi
FIR No. 203/09
P.S. : EOW
JUDGMENT
1 Sr. No. of case : 02406R0321312012
2 Date of institution : 27.11.2012
3. Name of the complainant : Sh. Krishan Kumar
4. Date of commission of offence : January, 2009.
5. Name of accused : Anita Dhiman @ Anita Panikar @
Guddi W/o Late Sh. Rajan
Panikar R/o GII/253, Madangir,
New Delhi.
(Accused is in Judicial Custody)
6. Offence complained of : Sec. 419/420/174A IPC.
7. Plea of guilt : Accused pleaded not guilty
8. Date of reserving the judgment : 08.08.2014
9. Final order : Convicted
10. Date of such judgment : 28.08.2014
Page 1 of 24 State Vs. Anitha Dhiman @ Anita Panikar @ Guddi; FIR No. 203/09
2
FACTUAL BACKGROUND:
1. The important facts of the case, in brief, are as follows. In this case, FIR was registered on the complaint of Sh. Krishan Kumar (PW1) who mentioned that he came to know in January, 2009 through one Virender that accused is taking guarantee for arranging job of LDC/UDC/Driver in Supreme Court through VIP quota. Thereafter, he alongwith Virender went to house of accused at Flat no. 56, TypeIII, Moti Bagh, New Delhi, and accused assured him job of LDC for Rs. 4 Lacs and Virender a job of driver for Rs. 2 Lacs. Further, she informed that there would be no examination for these jobs and therefore entire money has to be given in cash and half of the amount is to be given before appointment. Further, she represented that she is Legal Advisor in Supreme Court and the said flat has been allotted to her by said Court. Thereafter, he gave Rs. 2 Lacs to her in two installments but she refused to give its receipt. Thereafter, she took time on one pretext or another and in April, 2009, she threatened that if they would come to her again and again, complaint would be filed against them. During investigation, it was found that the accused has taken money from four other persons in similar fashion. Further, the accused was declared P.O. on 24.05.2012 Page 2 of 24 State Vs. Anitha Dhiman @ Anita Panikar @ Guddi; FIR No. 203/09 3 and it was found that she is also involved in similar case FIR No. 90/10, PSPunjabi Bagh. Thereafter, accused was arrested on 03.10.2012 but money could not be recovered from her. After culmination of investigation, accused was chargesheeted and produced before the court to face trial.
TRIAL PROCEEDINGS:
2. In light of the above stated facts and proceedings and after making compliance of provisions of section 207 Cr.P.C., vide order dated 11.04.2003, Ld. Predecessor framed charges under section 419/420/174A IPC against accused, to which she pleaded not guilty and claimed trial.
3. For proving its case, prosecution has produced 28 witnesses.
3.1 PW1, Sh. Krishan Kumar (complainant) deposed on the lines of his complaint Ex.PW1/A given to police, on the basis of which FIR was registered. He also mentioned that earlier they had given joint complaint Ex.PW1/B to Crime Branch office.
3.2 PW2, Sh. Virender, stated on oath that since 2005, he was working as taxi driver and till end of 2008, the accused Anita Dhiman used to hire his taxi on several occasions and he used to pick her from and drop her at House No. 56, TypeIII, Moti Bagh, R.K. Puram, New Page 3 of 24 State Vs. Anitha Dhiman @ Anita Panikar @ Guddi; FIR No. 203/09 4 Delhi, and she used to visit Kaka Nagar parking behind the Supreme Court. Further, it is mentioned that accused introduced herself as advisor to Supreme Court Judge and in January, 2009, she told him that she can procure government employment of Driver/LDC/UDC in the Supreme Court and would charge Rs. 1 Lac, Rs. 3 Lacs and Rs. 4 Lacs respectively.
She also informed that there is vacancy of two LDCs, one UDC and two Drivers in Supreme Court and she can arrange the jobs without any examination or selection process. Further, she demanded half of the money i.e. Rs. 50,000/ in advance for the post of driver. Thereafter, he informed about the said vacancy to his brother in laws namely Krishan Kumar, Vinay Kumar and Yogesh Kumar. Then they talked to accused and one day, they came to Delhi and he took them to canteen of Supreme Court for a meeting with accused. There accused informed that the aforesaid employment of LDC, UDC and Driver are from government quota and the same would not be filled up by open selection. Thus, he was misled and gave her Rs. 50,000/. His brotherinlaws Yogesh and Vinay gave Rs. 1 Lac and 1.5 Lacs respectively and Krishan Kumar gave Rs. 2 Lacs to her in two installments. After 45 days of receiving the money, she informed that she can procure job of driver for one more person and thus, Krishan Kumar introduced one Om Prakash to accused. Page 4 of 24 State Vs. Anitha Dhiman @ Anita Panikar @ Guddi; FIR No. 203/09 5 Om Prakash gave Rs. 1 Lac to her. Thereafter, they met her several times but she kept on assuring for arranging jobs. Then, they became suspicious and demanded their money back but she gained time one one pretext or another. One day, she intimidated him that she would falsely implicate him in rape case. Therefore, they lodged a complaint Ex. PW1/B in the Crime Branch.
3.3 PW3, Sh. Goverdhan, testified that in January, 2009, he gave a loan of Rs. 50,000/ to Virender Singh as he had to pay it to a lady for government job. Further, he mentioned that he himself paid the said amount to accused at Adhchini Red Light inside his car in the presence of Virender Kumar.
3.4 PW4, Sh. Ratan Lal, testified that his cousin Om Prakash demanded a loan of Rs. 50,000/ from him for paying it to a lady for job of government driver and thereafter, he alongwith Krishan and Om Prakash went to Delhi and met accused at Court canteen. Then he gave Rs. 50,000/ to Om Prakash who paid the said amount to the lady in his presence.
3.5 PW5, Sh. Tara Chand, deposed that in January, 2009, he lent Rs. 50,000/ to Krishan Kumar for the purpose of his job. 3.6 PW6, Sh. Chander Shekhar, Nodal Officer, Bharti Airtel Page 5 of 24 State Vs. Anitha Dhiman @ Anita Panikar @ Guddi; FIR No. 203/09 6 Limited, produced the record i.e. CDR, Customer Application Forms, Cell ID Chart of mobile nos 9810692728 and 9871933918 from the period 03.02.09 to 29.04.09 and placed on record certified copy of customer application form of mobile no. 9871933918 Ex. PW6/A, certified copy of customer application form along with document of mobile no. 9810692728 Ex. PW6/B, certified copy of CDR of mobile no. 9810692728 Ex. PW6/C, certified copy of CDR of mobile no. 9871933918 Ex. PW6/D and certified copy of cell ID chart Ex. PW6/E. 3.7 PW7, Sh. Lal Chand @ Rajesh, testified that in January, 2009, his friend Krishan Kumar borrowed a sum of Rs. 50,000/ for the purpose of his job.
3.8 PW8, HC Raj Kumar, deposed that on 1.10.09, Inspector Anil Jindal handed over a rukka to him for registration of FIR and after getting registered the same, he handed over copy of FIR and original rukka to Inspector Anil Jindal.
3.9. PW9, ACP Rai Singh Khatri, testified that he conducted investigation of the present case from 05.08.2011 to 09.11.2011, but accused could not be traced out.
3.10 PW10, HC Kuldeep Kumar, testified that on 04.10.2012, he joined investigation alongwith Lady Ct. Bindu, SI Nitish Bhardwaj and SI Page 6 of 24 State Vs. Anitha Dhiman @ Anita Panikar @ Guddi; FIR No. 203/09 7 Yogesh Tomar and at the instance of secret information, they reached near house no. 253, Madangir, New Delhi where IO directed lady Ct. Bindu to stop the accused Anita and thereafter, she was arrested vide memo Ex. PW10/A and personally searched vide memo Ex. PW10/B. Further, he mentioned that on 05.10.2012, he alongwith IO ASI Sneh Lata and accused Anita Dhiman reached at the aforesaid house, from where two mobile phones and three SIM cards were recovered at the instance of accused and these were seized vide memo Ex. PW10/C. Further, the IO sealed the aforesaid property with the seal of YPS and seal was handed over to him vide memo Ex. PW10/D and on 06.10.12, the seal was returned to IO SI Yogesh Tomar vide memo Ex. PW10/E. Further, he correctly identified the mobiles make Nokia 2700 and Nokia 3600 and three SIMs of Airtel recovered from accused and both the mobile phones are collectively Ex. P1 and SIM cards are collectively Ex. P2. 3.11 PW11, Inspector Bega Ram, testified that he obtained NBW against accused Anita Dhiman on 23.12.2011 and on 17.02.2012, proceedings u/s. 82 Cr.P.C. were initiated against her and on 24.05.2012 accused was declared P.O. on the basis of his statement. 3.12 PW12, Sh. Rajbhan Singh, ACIOII, I.B. North Block, M.I.A., New Delhi, testified that in the year 2005, he shifted to government Page 7 of 24 State Vs. Anitha Dhiman @ Anita Panikar @ Guddi; FIR No. 203/09 8 CPWD Flat No. 56, TypeII, 3rd Floor, NorthWest Motibagh, New Delhi, and in January, 2009, one employee of CPWD requested him to provide shelter to a widow lady and after considering her pitiable condition he allowed the accused to stay with him for 1015 days. The accused assured him that she would shortly arrange a room for her but she left his house after 6 months after being pressurized by him.
3.13 PW13, HC Jagjeet Kaur, testified that IO recorded disclosure statement Ex. PW13/A of accused Anita Dhiman in her presence and thereafter, IO took her police remand and then she got the accused medically examined from RML Hospital.
3.14 PW14, SI Sneh Lata, testified that on the instructions of IO, she got the accused medically examined in R.M.L Hospital and on 05.10.2012, she alongwith IO, one Ct. and accused went to her house no. 253, Sector4, Madangir, New Delhi and recovered three mobile phones and three SIM Cards at her instance.
3.15 PW15, W/Ct. Bindu, testified on the lines of PW10 HC Kuldeep Kumar.
3.16 PW16, Sh. Nitesh Ranjan, Account Executive, InterPublicity Private Limited, produced the record regarding advertisement bearing no. DP/1820/C&R/12 and testified that aforesaid advertisement was Page 8 of 24 State Vs. Anitha Dhiman @ Anita Panikar @ Guddi; FIR No. 203/09 9 published in Times of India circulated all over India and Hindustan Times, Nav Bharat Times circulated in Delhi & NCR and placed on record Tearsheets (advertisement clipping) of the said publication Ex. PW16/A. 3.17 PW17, Sh. Om Prakash, deposed that in January, 2009, Krishan Kumar, who belongs to his village, told him that he knows a lady namely Anita Dhiman, working as Legal Advisor in Supreme Court and she can arrange a job of driver in Supreme Court from VIP quota. Thereafter, he along with Krishan Kumar and cousin brother Ratan Lal went to canteen of Supreme Court to meet accused where she told that she can arrange job of driver on account of her personal contacts and demanded Rs. 3 Lacs. Thereafter, he handed over Rs. 50,000/ in cash on that day only. 7 to 10 days thereafter, he handed over Rs. 50,000/ in cash at Mahipal Pur Red Light. Further, it is mentioned that accused used to call him on his mobile no. 9416716400 through her mobile no. 9810692728. Further, it is mentioned that in May, 2009, he along with other persons filed a complaint in EOW Ex. PW1/B. 3.18 PW18, Sh. Yogesh Kumar, testified that in January, 2009, he came to know from Virender that one lady namely Anita Dhiman can manage job of LDC in Supreme Court. Thereafter, he alongwith Virender went to flat of accused i.e. Flat No. 56, TypeII, Moti Bagh, R.K. Puram, Page 9 of 24 State Vs. Anitha Dhiman @ Anita Panikar @ Guddi; FIR No. 203/09 10 where accused assured him job of LDC in Supreme Court and asked for Rs. 3 Lacs, out of which Rs. 1 Lac was to be paid in advance. Further, she showed him list of other candidates, for which she has arranged the job. Thereafter, he took loan of Rs. 1 Lac from his brother Ravinder and handed over this amount to accused in presence of Virender. Thereafter, he used to talk to accused on her mobile phone, having last three digits ... 728 but neither she arranged the job nor returned money. 3.19 PW19 Sh. Vinay Kumar also testified that in January, 2009, he alongwith Yogesh went to the flat of accused at Moti Bagh and there she assured a job of LDC in Supreme Court for Rs. 3 Lacs. Then he borrowed a sum of Rs. 1.50 Lacs from his cousin Satish and handed over the same to accused in presence of Yogesh. When accused failed to get a job, his father made a complaint Ex. PW1/B to EOW.
3.20 PW20, Sh. Nikhilesh, J.J.A (Ahlmad), testified that on 23.12.2011, he was posted as Ahlmad in the court of Sh. Naveen Arora, the then ACMM, and on that day, Inspector Bega Ram moved an application Ex.PW20/A for issuance of NBW against accused Anita Dhiman. Thereafter, on 17.02.2012, Inspector Bega Ram moved an application Ex. PW20/B for issuance of process u/s 82/83 Cr.P.C. against accused and Sh. Sanjay Sharma, the then Ld. ACMM, ordered for Page 10 of 24 State Vs. Anitha Dhiman @ Anita Panikar @ Guddi; FIR No. 203/09 11 issuance of process u/s 82/83 Cr.P.C. Thereafter, on 30.04.2012, IO moved an application for declaring the accused P.O. and on 24.05.2012, the statement of process server Inspector Bega Ram Ex.PW20/C was recorded and on the same date order Ex. PW20/D was passed for declaring the accused P.O. 3.21 PW21, Sh. Ravinder, testified that one Yogesh residing in his village had taken a loan of Rs. 1 Lac from him for the purpose of his job in Delhi.
3.22 PW22 Sh. Satish Kumar testified that in January, 2009, one Vinay Kumar had taken a loan of Rs. 1.5 Lacs from him for the purpose of his job in Delhi.
3.23 PW23 Inspector Anil Kumar testified that on 12.05.2009, a complaint of Krishan Kumar and others Ex. PW1/B was marked to him by ACP/AF for inquiry and thereafter on the statement of Krishan Kumar Ex. PW1/A, an FIR was registered and during investigation he recorded statement of Sh. Yogesh Kumar, Vinay Kumar, Virender Kumar, Om Prakash and others but accused could not be apprehended. 3.24 PW24, Sh. Pranshu Pandey, J.E. (Civil)CPWD, NorthWest, Moti Bagh, New Delhi, testified that as per their record the Flat No. 56, TypeII, Third Floor, Moti Bagh, New Delhi, was allotted to Sh. Rajbhan Page 11 of 24 State Vs. Anitha Dhiman @ Anita Panikar @ Guddi; FIR No. 203/09 12 Singh on 11.10.2004 and he is still in possession of the said house. 3.25 Sh. Suresh Kumar, Mahendergarh Central CoOperative Bank, Branch Office, Narnaul, DistrictMahendergarh, Haryana, produced the account statement in respect of account no. 8510 of wife of Krishan Kumar Ex. PW25/B and the copy of specimen signature card Ex. PW25/C. 3.26 PW26, Retired SI Brijmohan, testified that he recorded the FIR Ex. PW26/A in this case and made endorsement on the rukka Ex.PW26/B. 3.27 PW27, SI Nitesh Bhardwaj, deposed on the lines of PW10 HC Kuldeep Kumar.
3.28 PW28, SI Yogesh Tomar, testified that investigation of this case was marked to him and at that time the proceeding u/s 82 Cr.P.C. was going on against the accused and thereafter, on the statement of Inspector Bega Ram, accused was declared P.O. on 24.05.2012. Further, it is mentioned that the proclamation was published in leading newspapers on 11.07.2012, copies of which are Ex. PW28/A to Ex. PW28/G. Thereafter, on the information of a secret informer, they reached near BRT Corridor, Red Light of Khanpur TPoint, after making departure entry vide DD No. 16B, PSEOW, and apprehended the accused. Further Page 12 of 24 State Vs. Anitha Dhiman @ Anita Panikar @ Guddi; FIR No. 203/09 13 on 05.10.2012, at the instance of accused, two mobile phones Ex.P1 and three SIM Cards Ex.P2 were recovered from her house at Madangir.
4. Statement of accused was recorded under Section 313 Criminal Procedure Code, 1973. When the accused was briefed on all the incriminating evidence and documents, she denied the allegations of cheating and admitted that the mobile phone no. 9810692728 belongs to her. Further, she explained that she was arrested on 03.10.2012 near her house and two mobile phones, one containing dual SIM was taken at that time and the third mobile was seized from her house on 04.10.2012. Further, she mentioned that she does not know any of the victims in this case and she has been falsely implicated. Further, she opted not to lead defence evidence.
APPRECIATION OF EVIDENCE:
5. I have heard the State through Shri V.K. Jaiswal, Ld. Assistant Public Prosecutor and Sh. Tej Narain, Ld. Counsel from DLSA. Record is also gone through.
6. It is summed up by Ld. APP that all the victims in this case i.e. PW1 Sh. Krishan Kumar, PW2 Sh. Virender, PW17 Sh. Om Prakash, PW18 Sh. Yogesh Kumar and PW19 Sh. Vinay Kumar have categorically Page 13 of 24 State Vs. Anitha Dhiman @ Anita Panikar @ Guddi; FIR No. 203/09 14 deposed that accused deceived them and then induced them to pay money for arranging govt. job for them knowing well that she has no means to procure the jobs and thus cheated them. On the other hand, Ld. Defence counsel argued that all the said victims have falsely implicated accused and the mobile call record placed on record by the prosecution side does not establish link between the accused and them and thus accused is liable to be acquitted.
7. For attracting criminal liability for the offence of cheating, following is required to be shown:
(i) deception of a person either by making a false or misleading representation or by dishonest concealment or by any other act or omission;
(ii) fraudulent or dishonest inducement of that person to either deliver any property or to consent to the retention thereof by any person or to intentionally induce that person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived; and
(iii)such act or omission causing or is likely to cause damage or harm to that person in body, mind, reputation or property.
8. Ld. APP contended that accused deceived the victims by misrepresenting that she is legal advisor of Supreme Court Judge and she can manage jobs for them from VIP quota without any exam. On this issue, accused has taken defence that she does not know any of the victims and has neither met them nor talked to them on mobile phone. It Page 14 of 24 State Vs. Anitha Dhiman @ Anita Panikar @ Guddi; FIR No. 203/09 15 is observed that PW1 Sh. Krishan Kumar, PW2 Sh. Virender, PW17 Sh. Om Prakash, PW18 Sh. Yogesh Kumar and PW19 Sh. Vinay Kumar, have clearly deposed that accused had met them at Flat no. 56, TypeII, Moti Bagh, New Delhi or Canteen of Supreme Court and misrepresented that she is legal advisor in Supreme Court and aforesaid flat has been allotted to her and thus, she can arrange government job of LDC, UDC and Driver from VIP quota. Deposition of these witnesses is found reliable since accused has not been able to extract anything favourable to her defence during their crossexamination. Further, the witnesses have also disclosed that they used to talk with the accused on her mobile no. 9810692728. Accused has admitted in her statement u/s 313 Cr.P.C that she was using this mobile number during relevant period. Further, prosecution side has produced PW6Sh. Chander Shekhar, Nodal Officer, Bharti Airtel Limited, who has placed on record CDR, Customer Application Forms alongwith documents of subscriber of mobile no. 9871933918 Ex.PW6/B and copy of CDR of said mobile no. 9810692728 Ex.PW6/C belonging to accused. The call detail record of said mobile phone reflects that she was in constant touch with all the victims during February to April, 2009. It is noteworthy that there had not been any one or two calls between them during this period but there had been Page 15 of 24 State Vs. Anitha Dhiman @ Anita Panikar @ Guddi; FIR No. 203/09 16 hundreds of calls during these three months. It is the prosecution case that money was given in the month of January, 2009 and victims had been talking to accused for next few months for their government job after handing over money to her. The call record corroborates the case of prosecution. Moreover, all the victims have identified the accused during their testimony. In view of this, prosecution has been able to establish on record that accused not only knew all the victims but was also in regular touch with them at the relevant time.
9. The accused has also taken defence that she had never resided in flat no. 56, TypeII, Moti Bagh, New Delhi. Apart from testimony of aforesaid victims to the effect that they had met accused at the said flat before and after handing over the money, the prosecution has also produced PW12 Sh. Rajbhan Singh who has deposed that he has been allotted said government flat in 2004 and in January, 2009, he allowed accused to stay there for sometime on the request of one of his colleagues. Further, PW24 Sh. Pranshu Pandey, JE, CPWD has also testified that said flat has been allotted to Sh. Rajbhan Singh. In view of this, prosecution has also been able to bring on record sufficient evidence to show that accused was residing at the aforesaid flat in and around January, 2009 when the transactions in question took place Page 16 of 24 State Vs. Anitha Dhiman @ Anita Panikar @ Guddi; FIR No. 203/09 17 between her and victims.
10. It is also clear from testimony of victims that accused misrepresented that she is legal advisor in Supreme Court and always met them either at her flat at Moti Bagh, which she claimed to have been allotted by government, or at Supreme Court canteen only to deceive victims and to convince them that she can arrange government jobs for them from VIP quota. Moreover, PW18 has also deposed that accused showed a list of candidates, for whom she has procured government job earlier, to him to win their confidence and to deceive them. Thus, it is also proved on record that accused deceived the victims by impersonating herself as a legal advisor in the Supreme Court.
11. Further, the victims have testified that after being deceived by accused, they handed over money to her from time to time as an advance for procurement of government job. PW1Sh. Krishan Kumar testified that he paid Rs. 1.70 lac outside the Supreme Court of India in presence of Virender and Yogesh and thereafter Rs. 30,000/ in the presence of Sh. Virender. PW2 Sh. Virender testified that he paid Rs. 50,000/ to accused in Supreme Court canteen. PW17 Sh. Om Prakash deposed that he paid Rs. 50,000/ to accused in Supreme Court canteen and further handed over Rs. 50,000/ to accused at Mahipalpur Red Light. Page 17 of 24 State Vs. Anitha Dhiman @ Anita Panikar @ Guddi; FIR No. 203/09 18 PW18 Sh. Yogesh Kumar testified that he handed over Rs. 1 lac to accused in presence of Sh. Virender. PW19 Sh. Vinay Kumar deposed that he paid Rs. 1.50 lacs to accused in presence of Sh. Yogesh. Further, PW3 Sh. Goverdhan has corroborated the testimony of Sh. Virender Singh (PW2) to the effect that he gave loan of Rs. 50,000/ to him and he himself paid the said amount to accused Anita Dhiman at Adhchini Red Light. Further, PW4Sh. Rattan Lal also corroborated the testimony of Sh. Om Prakash (PW17) to the effect that he gave loan of Rs. 50,000/ to Sh. Om Prakash who paid this amount to accused in his presence in 2009. PW5 Sh. Tara Chand has deposed on the same lines that in January, 2009 he gave loan of Rs. 50,000/ to Sh. Krishan Kumar who was to give it to a lady for his job. PW7Sh. Lal Chand @ Rajesh also deposed that he gave loan of Rs. 50,000/ to his friend Krishan Kumar for the same purpose. PW21Sh. Ravinder has also testified that he had given loan of Rs. 1 lac to Sh. Yogesh for the purpose of his job. PW22 Sh. Satish Kumar also stated that in 2009 he gave loan of Rs. 1.5 lacs to Sh. Vinay Kumar for the purpose of his job. Further, PW25 was produced to show that a sum of Rs. 1 lac was withdrawn from the account of wife of PW Krishan Kumar at relevant time. Thus, the prosecution has been able to bring on record sufficient evidence to prove that the aforesaid victims paid money, which Page 18 of 24 State Vs. Anitha Dhiman @ Anita Panikar @ Guddi; FIR No. 203/09 19 was arranged from their relatives, friends or acquaintance, to the accused on her demand as an advance for arranging jobs for them.
12. Further, in view of evidence led by prosecution side, there remains no doubt that the intention of accused had been dishonest since beginning to cheat the victims. She was well aware that she is not in position to arrange any job for the victims. Her misrepresentation that she is legal advisor in Supreme Court and that the aforesaid flat has been alloted by the government on account of her position, clearly reflect that she deceived the victims in a planned way and was thus able to extract money from them. Thus, it is concluded that the prosecution has been able to prove the charges u/s 419/420 IPC against accused.
13. Accused has also been charged u/s 174A IPC. It is observed that PW20 Sh. Nikhilesh, Junior Judicial Assistant, has placed on record all the documents pertaining to proceedings u/s 82 Cr.P.C against accused. He testified that Court order for issuance of NBW against accused was passed on application dated 23.12.2011 Ex.PW20/A and thereafter another application dated 17.02.2012 Ex.PW20/B was moved for issuance of process u/s 82 Cr.P.C against accused. Further, he mentioned that said application was allowed and after recording of statement of process server Ex.PW20/C on 24.05.2012, Sh. Mukesh Page 19 of 24 State Vs. Anitha Dhiman @ Anita Panikar @ Guddi; FIR No. 203/09 20 Kumar, the then Ld. ACMM (South), passed order Ex.PW20/D on the same date for declaring the accused proclaimed offender. The accused has not challenged any of the said proceedings. Further, prosecution has placed on record the relevant pages of different newspaper Ex.PW28/A to Ex.PW28/G wherein the proclamation was published against accused on 11.07.2012. Further, it is not disputed that accused did not appear in the Court as required by said proclamation. Thus, it is held that charge u/s 174A IPC is also proved against accused.
CONCLUSION :
14. In view of foregoing discussion, it is held that prosecution has been able to prove its case u/s 419/420/174A IPC against accused beyond reasonable doubts. Accordingly, accused stands convicted for these offences.
Announced in the open court (Vivek Kumar Gulia) on 28st Day of August, 2014 Chief Metropolitan Magistrate (S) (total 20 pages) Saket Courts, New Delhi Page 20 of 24 State Vs. Anitha Dhiman @ Anita Panikar @ Guddi; FIR No. 203/09 21 IN THE COURT OF SHRI VIVEK KUMAR GULIA CHIEF METROPOLITAN MAGISTRATE (SOUTH) SAKET DISTRICT COURTS, DELHI In the matter of : State Vs. Anita Dhiman @ Anita Panikar @ Guddi FIR No. 203/09 P.S. : EOW ORDER ON SENTENCE
Arguments were heard on the quantum of sentence from both the sides.
Ld. APP for the State submitted that since the accused has been found guilty of serious offences, maximum sentence should be awarded. On the other hand, Ld. defence counsel has argued that convict is a widow and has already remained in custody for about two years.
Before passing sentence order, it would be pertinent to revisit the guidelines given by Apex Court on the sentencing policy through catena of decisions. In the decision of Modi Ram and Another vs. The State of Madhya Pradesh reported as (1972) 2 SCC 630, it was held that:
"4. ...........the question of sentence is always a difficult and complex question. The accused persons found guilty may be hardened or professional criminals having taken to the life of crime since long, or they may have taken to crime only recently or may have committed the crime under the influence of bad company or again commission of a solitary offence may be due to provocative wrongful action seriously injuring the feelings and sentiments of the accused. Human nature being what it is men are at times moved by the impulse of the moment rather than by rational, cool, calculated estimate of the future good and Page 21 of 24 State Vs. Anitha Dhiman @ Anita Panikar @ Guddi; FIR No. 203/09 22 evil. At such moments they are ordinarily inclined to be ready to face any future evil falling short of inevitable. Keeping in view the broad object of punishment of criminals by Courts in all progressive civilized societies true dictates of justice seem to us to demand that all the attending relevant circumstances should be taken into account for determining the proper and just sentence. The sentence should bring home to the guilty party the consciousness that the offence committed by him was against his own interest as also against the interest of the society of which he happens to be a member. In considering the adequacy of the sentence, which neither be too severe nor too lenient the Court has, therefore, to keep in mind the motive and magnitude of the offence, the circumstances in which it was committed and the age and character (including his antecedents) and station in life of the offender......"
In another case titled Adamji Umar Dalal vs. The State of Bombay reported as AIR 1952 SC 14, it was laid down that :
"5. The determination of the right measure of punishment is often a point of great difficulty and no hard and fast rule can be laid down, it being a matter of discretion which is to be guided by a variety of considerations, but the Court has always to bear in mind the necessity of proportion between an offence and the penalty. In imposing a fine it is necessary to have as much regard to the pecuniary circumstances of the accused persons as to the character and magnitude of the offence, and where a substantial term of imprisonment is inflicted, an excessive fine should not accompany it except in exceptional cases.........."
In re Ramashraya Chakravarti vs. State of M.P. reported as (1976) 1 SCC 281, the Supreme Court held that:
"1. To adjust the duration of imprisonment to the gravity of a particular offence is not always an easy task. Sentencing involves an element of guessing but often settles down to practice obtaining in a particular court with inevitable differences arising in the contest of the times and events in the light of social imperatives. It is always a matter of judicial discretion subject to any mandatory minimum prescribed by law.Page 22 of 24 State Vs. Anitha Dhiman @ Anita Panikar @ Guddi; FIR No. 203/09 23
6. In judging the adequacy of a sentence the nature of the offence, the circumstances of its commission, the age and character of the offender, injury to individuals or to society, effect of the punishment on the offender, eye to correction and reformation of the offender, are some amongst many other factors which would be ordinarily taken into consideration by courts. Trial Courts in this country already overburdened with work have hardly any time to set apart for sentencing reflection. This aspect is missed or deliberately ignored by the accused lest a possible plea for reduction of sentence may be considered as weakening his defence. In a good system of administration of criminal justice presentence investigation may be of great sociological value. Throughout the world humanitarianism is permeating into penology and the Courts are expected to discharge their appropriate roles".
In the case in hand, the mitigating circumstances in favour of convict are that she is a widow and she is not previously convicted for any crime. The aggravating circumstances against convict are many. The convict has committed the crime in a planned way. She has cheated five persons belonging to poor section of the society. All the victims paid money to convict under deception after arranging it with great difficulty, mostly by borrowing. No money was recovered from or paid back by convict. The convict is also booked in a similar case FIR No. 90/10, PS Punjabi Bagh. The convict is not remorseful.
In view of aforesaid circumstances and the broad principles laid down by Apex Court, this Court is of the view that very harsh punishment or very lenient approach is not warranted in this case. Moreover, in such like cases proper justice can only be done in case victims are compensated by the convict. However, on being asked, it is submitted by convict that she is unable to arrange any money for compensating the Page 23 of 24 State Vs. Anitha Dhiman @ Anita Panikar @ Guddi; FIR No. 203/09 24 victims otherwise she could have compounded the offences much earlier. It is also observed that during trial, convict could not produce any surety and even her brothers refused her to give their address for furnishing the personal bond. This being the case, no purpose would be served by imposing excessive fine so as to compensate the victims.
Accordingly, and ends of justice would be met if convict is sentenced to rigorous imprisonment for one year alognwith fine of Rs. 1,000/ for the offence punishable u/s 419 IPC; rigorous imprisonment for three years alognwith fine of Rs. 2,000/ for the offence punishable u/s 420 IPC and rigorous imprisonment for six months alognwith fine of Rs. 1,000/ for the offence punishable u/s 174A IPC.
Ordered accordingly. All the sentences shall run concurrently and in default of payment of fine amount, convict shall further undergo rigorous imprisonment for two months each in case of offences u/s 419 IPC and 174A IPC and rigorous imprisonment for four months in case of offence u/s 420 IPC.
It is also observed that convict is in custody since 03.10.2012 and thus benefit of Section 428 Cr.P.C shall be given to her.
Announced in the open court (Vivek Kumar Gulia)
th
on the 06 Day of September, 2014 Chief Metropolitan Magistrate,
(total 4 pages) South, Saket Courts/New Delhi
Page 24 of 24 State Vs. Anitha Dhiman @ Anita Panikar @ Guddi; FIR No. 203/09