Delhi District Court
State vs . Nikhil Mourya on 5 April, 2018
IN THE COURT OF MS. GURMOHINA KAUR
ADDITIONAL CHIEF METROPOLITAN MAGISTRATE-01,
NEW DELHI
Case No. 53636/2016
FIR No. 403/2014
PS IGI Airport
State vs. Nikhil Mourya
JUDGMENT
a. ID No. of the case 53636/2016 b. Date of commission of 29.10.2014 offence
c. Date of institution of the case 07.10.2015 d. Name of the complainant Sh. Y. P. Singh, ACIO-II e. Name & Address of the Nikhil Mourya S/o Sh. Ghanshyam Mourya accused R/o: Sangam Vihar, GMS Road, Police Station Vasant Vihar, Dehradun, Uttarakhand f. Offence complained off Under Section 420/467/468/471 IPC and Section 12 of the Passport Act g. Charge framed Section 420 IPC, Section 471 read with Section 467 IPC, Section 468 IPC and Section 474 IPC & Section 12 of Passport Act h. Plea of accused Pleaded not guilty and claimed trial i. Arguments heard on 23.03.2018 j. Final order Convicted - Under Section 420, Section 471 read with Section 468 (as forged documents were prepared for cheating and accused being user, shall be punished as maker) and Section 12 Passport Act Acquitted - Under Sections 467 & 474 IPC k Date of Judgment 05.04.2018 State vs. Nikhil Mourya Page No. 1 of 20 Brief statement of reasons for such decision :
1. Briefly stated the facts as mentioned in the charge-sheet are that on 29.10.2014, complainant Sh. Y. P. Singh, ACIO-
II was performing his duty at Counter No. 7 in the Departure Wing of Immigration when accused Nikhil Mourya, holder of Indian Passport No. M-0275660, was handed over to Immigration by Air India Security Staff and as per the charge-sheet a Schengen Visa was affixed on Page No. 5 of the aforementioned passport which was checked by German Liason Officer (LO), Naumann, who was invited by Air India Security at Air India Boarding Gage when the accused was trying to board the Flight No. AI-
143. Further as per the charge-sheet, the LO detected that the Schengen Visa was forged and he in-turn cancelled the visa. It is mentioned in the charge-sheet that the accused Nikhil Mourya was intending to depart to France by Flight No. AI-143.
2. On registration of the present FIR investigation was conducted and accused was interrogated and he revealed that he had gone to Mussoorie in the month of January/February, 2014 where he met Doni, a German National and the accused expressed his desire to go abroad to Doni and the deal was finalised with Doni for a consideration of Rs. 3 lacs for arranging his journey to Paris. Further, the accused revealed that he applied for his State vs. Nikhil Mourya Page No. 2 of 20 passport in April, 2014 and he received the same in July, 2014 after which he contacted Doni and met him in September, 2014. The accused further revealed that he handed over his passport and Rs. 50,000/- to Doni in Mussoorie for arranging the visa and he met Doni once or twice later and also further gave Rs. 50,000/- and thereafter his passport alongwith visa was returned by Doni on 22/23.10.2014. He stated that he reached the airport late and missed his flight pursuant to which he had booked another Air India Flight.
3. On completion of the investigation charge-sheet was filed against the accused on 07.10.2015. Cognizance of the offence was taken and accused was summoned.
4. On appearance of the accused before by the court copies of the charge-sheet alongwith the documents were supplied to the accused in compliance of Section 207 Cr. P. C. and matter was fixed for consideration on point of charge.
5. Charges under Section 420, 471 r/w 467, 474 IPC were framed against the accused on 02.05.2016. Additional charge under Section 12 Passport Act was framed against the accused on 14.03.2018.
6. The prosecution has examined six (06) witnesses in State vs. Nikhil Mourya Page No. 3 of 20 support of its case.
a) PW-1 is ASI Basti Ram who deposed that on 29.10.2014 he was posted as HC at IGI Airport and was performing his duty in Departure Wing. He added that at that day at around 06.00 pm ACIO Y. P. Singh handed over one passenger namely Nikhil Mourya, one complainant and travel documents of the passenger for registration of the FIR. He stated he alongwith the passenger, complainant and the travel documents to PS IGI Airport for registration of the FIR. He added that after registration of the FIR, the custody of accused was handed over to the Duty Officer and the Duty Officer prepared the seizure memo Ex. PW-1/A. During cross-examination he stated that he remained in the PS only for 15-20 minutes.
b) PW-2 is Y. P. Singh, who deposed that on 29.10.2014 he was posted at IGI Airport as Immigration Officer at Counter No. 7 Departure Wing. He added that at around 1600 hours the staff of Air India handed over to him one passenger accused Nikhil Mourya on suspicion that he was holding a fake Schengen Visas. He added that accused was supposed to travel by Flight No. AI-143 and Air India Officer had also called one German Liaison Officer for checking the Schengen Visa on the passport of the accused. He deposed that the Liaison Officer inspected the State vs. Nikhil Mourya Page No. 4 of 20 visa affixed on the passport of accused and verified that the Schengen Visa affixed on his passport was forged. He added that on that day the verification report of the Liaison Officer could not be given as it was not received by him and the officials of Air India called him that he would be given the report lateron. He identified the passport and visa of the accused as Ex. P-1 (Colly). He also stated that a letter was handed over to him by the Staff of Air India alongwith the accused for making the complaint. He identified the accused present in the court as the same person, who was handed over to him by the staff of Air India. During his cross-examination, he denied that he had made a complaint without any verification of the travel documents/visa of the passenger and added that he had verified about the genuineness of visa from S. P. Yadav. He further stated that the Liaison Officer from Germany had stated in his presence that the visa in question was fake but nothing was given to him in writing.
c) PW-3 is HC Yaad Ram, who deposed on 21.10.2014 he was posted as PS IGI Airport as Constable and he joined the investigation of the present case with SI Sunil who arrested the accused Nikhil Mourya vide Arrest Memo Ex. PW-3/A, personal searched him vide personal search memo Ex. PW-3/B and recorded the disclosure statement of the accused State vs. Nikhil Mourya Page No. 5 of 20 vide Ex. PW3/C. During his cross-examination he denied the suggestion that he was not a part of the investigation and that his statement was recorded by the IO on his own.
d) PW-4 ASI Subhash Chand, who deposed that on 29.10.2014 he was posted at IGI Airport as HC and was working as Duty Officer on that day. He stated on the basis of the complaint, he registered the present FIR, copy of which is Ex. PW-4/A. During his cross-examination he admitted that the complainant was not present at the time of registration of the FIR.
e) PW-5 is S.P. Yadav who deposed that on 29.10.2014 he was working as Incharge Investigation and Fraud Prevention Cell, NR, Air India Security and at around 01.00 accused approached his counter Gate No. 24 by Flight No. AI-143 to Paris. He deposed that on scrutiny of documents the Schengen Visa was suspected to be forged and accordingly German Embassy was called for verification of the above said visa. He added that the German LO arrived and after physical verification of the passport and visa, certified that the visa was forged and cancelled the visa and sent a mail to this effect to the official email ID of Air India which is Ex. PW-5/B and the accused was handed over to Immigration AFRRO Departure Terminal-III for necessary action. He deposed that he suspected the visa as fake as the quality of the paper State vs. Nikhil Mourya Page No. 6 of 20 of the visa was of inferior quality and also that MRZ was not proper and font used was also not proper. He added that Kinegeram was fake and micro printing was not embossed on the visa. He also stated that the visa number on the visa was not letter pressed and was normal printing. During his cross- examination, he stated that they received training about the detection of fake visa by Embassy people from time to time. He added that he was sure that visa was fake but as he was not the authority to certify that the visa was fake he called the Liaison Officer, Germany. He stated that the ALO left the airport at around 03.30/3.40 pm and sent a letter to the official mail ID later-on from the Embassy. He admitted that he had not sent the salient features of the fake visa of the accuse on his letter Ex. PW-5/A. He admitted that he had a talk with him on the date of his testimony and he deposed that about the salient features of the visa and also checked the alleged visa with the help of torch but added that he could tell even those features with the help of naked eyes.
f) PW-6 is SI Sunil who stated that on 21.10.2014 he was posted as SI at IGI Airport and investigation of the present case was marked to him. He reiterated the contents of the charge-sheet during his deposition and added that the report of German State vs. Nikhil Mourya Page No. 7 of 20 Embassy regarding the verification/genuineness of the visa was received and the same was Ex. PW- 6/B. During his cross-examination, he stated that he made efforts to find out the forgery but could not get same. He added that he did not have personal knowledge about the documents placed on record and admitted that the visa verification report was not given in his presence.
7. The accused admitted the passport verification report as Ex. C-1 and report No. F-7/32/2015/PS/PPI as Ex. C-2. Thereafter, prosecution evidence was closed and matter was fixed for recording the statement of the accused under Section 313 Cr. P. C.
8. During his statement under Section 313 Cr. P. C., accused has stated that he has been falsely implicated and added that he did not know about the forgery of the alleged visa, as well as, the documents as the same were provided to him by some other person, whose details had been provided by him to the IO.
9. The accused did not wish to lead defence evidence. Accordingly defence evidence was closed and matter was fixed for final arguments.
10. During final arguments, Ld. APP for State has argued that State vs. Nikhil Mourya Page No. 8 of 20 the prosecution has successfully been able to prove the charges framed against the accused in the present case.
11. On the other hand it has been argued by Ld. defence counsel that accused has been falsely implicated Int he present case.
12. I have considered rival contentions and perused the record.
13. It is the settled principle of law that in criminal proceedings prosecution has to prove its case beyond reasonable doubt. This burden always lies upon prosecution and never shifts upon the accused. Evidence against the accused needs to be examined in light of the aforesaid principle of law. However, before appreciating the evidence available on record, it shall be relevant to refer to the legal provisions pertaining to the offences for which accused has been charged :
Section 420 IPC reads as under:
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.
Cheating has been defined in Sec. 415 IPC that State vs. Nikhil Mourya Page No. 9 of 20 reads as under :-
Section 415 IPC provides:
Cheating -- Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit 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, is said to "cheat". Explanation.--A dishonest concealment of facts is a deception within the meaning of this section.
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].
Section 468 IPC reads as under:
Forgery 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.
Section 474 IPC reads as under:
Having possession of document described in section 466 or 467, knowing it to be forged and intending to use it as genuine.--1[Whoever has in his possession any document or electronic record, knowing the same to be forged and intending that the same shall fraudulently or dishonestly be used as genuine, shall, if the document or electronic record is one of the description mentioned in section 466 of this Code], be punished with State vs. Nikhil Mourya Page No. 10 of 20 imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine; and if the document is one of the description mentioned in section 467, shall be punished with 2[imprisonment for life], or with imprisonment of either description, for a term which may extend to seven years, and shall also be liable to fine.
Section 12 of the Passport Act, 1980 is as under: Offences and penalties --
(1) Whoever --
(a) contravenes the provisions of section 3; or
(b) knowingly furnishes any false information or suppresses any material information with a view to obtaining a passport or travel document under this Act or without lawful authority alters or attempts to alter or causes to alter the entries made in a passport or travel document; or
(c) fails to produce for inspection his passport or travel document (whether issued under this Act or not) when called upon to do so by the prescribed authority; or
(d) knowingly uses a passport or travel document issued to another person; or
(e) knowingly allows another person to use a passport or travel document issued to him;
shall be punishable with imprisonment for a term which may extend to or with both.
(1A) Whoever, not being a citizen of India,--
(a) makes an application for a passport or obtains a passport by suppressing information about his nationality, or
(b) holds a forged passport or any travel document, shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to five years and with fine which shall not be less than ten thousand rupees but which may extend to fifty thousand rupees.
(2) Whoever abets any offence punishable under [sub-section (1) or sub-section (1A)] shall, if the act abetted is committed in consequence of the abetment, be punishable with the punishment provided in that sub-section for that offence. (3) Whoever contravenes any condition of a passport or travel document or any provision of this Act or any rule made thereunder for which no State vs. Nikhil Mourya Page No. 11 of 20 punishment is provided elsewhere in this Act shall be punishable with imprisonment for a term which may extend to three months or with fine which may extend to five hundred rupees or with both. (4) Whoever, having been convicted of an offence under this Act, is again convicted of an offence under this Act shall be punishable with double the penalty provided for the latter offence.
14. The point for determination in this case is whether the prosecution has been able to prove all the ingredients of the offences for which accused has been charged, beyond a reasonable doubt?
15. The case of the prosecution is that the accused was apprehended and it has also been verified that the visa affixed on his passport was forged as per the Visa Verification Report. In his statement recorded U/Sec. 313 Cr. P. C. accused admitted that he had got the Schengen Visa through one person, but raised the defence that he was unaware that the visa affixed on his passport was forged. PW-5 categorically deposed that it was the accused Nikhil Mourya, who was apprehended at the Airport as he was intending to travel to France on the basis of a forged Schengen Visa. PW-5 deposed that visa was fake and the same is also corroborated by Ex. PW-5/B which is the email sent by the German Liaison Officer regarding cancellation of visa, as well as, the Visa Verification Report. Infact, from the statement recorded under Section 313 Cr. P. C., the accused has stated that he did not know about the forgery of visa, as well as, other State vs. Nikhil Mourya Page No. 12 of 20 documents as the same have been provided by some other person.
16. Only defence of accused is that he was not knowing that the Schengen Visa was forged and hence cannot be said to have used the forged Visa as genuine knowingly. The accused has tried to assume the mantle of an innocent victim stating he himself was cheated and deprived by alleged person Doni. However, this defence does not hold water in the facts and circumstances of this case and cannot efface criminality on the part of the accused. It is the own case of the accused that he did not apply to the passport authority for obtaining any extension of visa but had admittedly handed over his passport to an unauthorised person. This suggests that the accused was aware that he may not be able to procure Schengen Visa through legal means so he gave it to an unauthorized person to procure it through illegal means. Journey was arranged for the benefit of the accused, thus accused is particeps criminis and he cannot absolve himself from the offence. Reasons are obvious; first and foremost involvement of unauthorized persons who have no official connection with the RPO for obtaining extension Schengen Visa and secondly acting upon the same i.e. intending to go abroad on the fake Schengen Visa.
17. Knowledge is a state of mind that cannot be proved by way State vs. Nikhil Mourya Page No. 13 of 20 of direct evidence. Knowledge is to be gathered from attending circumstances proved on record. As already discussed above, prosecution has proved that Schengen Visa on page No. 5 of the passport of the accused was forged. PW-5 categorically deposed to this effect and accused has admitted the Passport Verification Report, as well as, Visa Verification Report as Ex. C-1 & Ex. C-2 respectively. While being examined under Section 313 Cr.P.C., accused also admitted that he was provided the forged Schengen Visa by another person. Accused had obtained a valid passport earlier and thus it can be assumed that he was aware what was required to be done for obtaining a visa to travel abroad and for making an entry in the passport. The accused was not a naïve who could have been cheated by someone under the garb of obtaining extension of visa for him. It is the admitted case that accused did not appear before concerned Visa Department for obtaining the Schengen Visa for France. This is not the case of the defence that Dino was the concerned Government Official of the Embassy and therefore accused had reasons to believe that Schengen Visa provided to him was genuine.
18. Accused has also been charged for the offence punishable under Section 467 IPC, which reads as under:
Forgery of valuable security, will, etc.-- Whoever forges a document which purports to be a valuable security or a will, or an authority to State vs. Nikhil Mourya Page No. 14 of 20 adopt a son, or which purports to give authority to any person to make or transfer any valuable security, or to receive the principal, interest or dividends thereon, or to receive or deliver any money, movable property, or valuable security, or any document purporting to be an acquittance or receipt acknowledging the payment of money, or an acquittance or receipt for the delivery of any movable property or valuable security, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
19. To bring home guilt for the offence punishable under Section 467 it was to be proved by prosecution that the accused had forged a valuable security. It is clear that Section 467 IPC shall be attracted against the accused if he had forged a valuable security. Schengen Visa cannot be considered as valuable security as it does not create any legal right but is only a permissive document which allows a person to visit any country.
20. As stated above, the accused had forged a Schengen Visa with the dishonest intention to cheat the Immigration Authorities and accordingly the prosecution has been able to prove the charge under Section 468 IPC.
21. In view of the aforesaid facts, the offence under Section 474 IPC is not made out in the present case as the alleged forged Schengen Visa is not a valuable security within the meaning and provision of Section 467 IPC in the present case. On the careful reading of Section 474 IPC, it State vs. Nikhil Mourya Page No. 15 of 20 becomes clear that Section 474 IPC would only apply to those cases where documents described in Section 466 IPC or 467 IPC, knowingly to be forged. However, as already discussed above, Visa is not a valuable security and not covered within the offence as described in Section 467 IPC. Therefore, the provision of the offence, as defined under Section 474 IPC are not fulfilled in the present case.
22. It has been stated in the charge-sheet that the accused entered into an agreement with one person Dino, who had agreed to facilitate his journey to France for a consideration of Rs. 30,000/- and this fact has also been corroborated by the statement of accused under Section 313 Cr. P. C. wherein he has stated that forged visa and other travel documents were provided by another person, whose details he has provided to the IO. Therefore, in view of the aforesaid discussion, the prosecution has been able to establish that forgery was committed with the intention to cheat the concerned Immigration Department so that the accused would go to France.
23. Coming to the offences of Cheating, Section 420 & Section 415 IPC have already been referred in preceding paragraphs. In order to attract the provisions of Section 420 IPC, first of all cheating as defined in Section 415 IPC has to be proved for which following ingredients are State vs. Nikhil Mourya Page No. 16 of 20 required to be established as held by Hon'ble Supreme Court in case titled as Devendra vs. Baldev, (2005) 9 SCC 15:
a) deception of any person;
b) whereby fraudulently or dishonestly inducing
that person to deliver any property to any person or to consent that any person shall retain any property; OR
c) intentionally inducing that person to do or omit to do anything which he would not do or omit to do if he was not so deceived;
d) which act or omission has caused or is likely to cause damage or harm to that person in body, mind, reputation or property;
24. In the present case, the accused Nikhil Mourya was apprehended at the airport as he had approached the Immigration Department to travel to France on the basis of a forged Schengen Visa, thereby cheated the concerned Immigration Department that he had a valid Schengen Visa for his journey. Thus, ingredients for committing the offence of cheating under Section 420 IPC is made out.
25. Coming to the offence punishable under Section 12 of Passport Act 1967 that reads as under:
"(1) Whoever-
(a) contravenes the provisions of section 3; or
(b) knowingly furnishes any false information or suppresses any material information with a. view to obtaining a passport or travel document under this Act or without lawful authority alters or attempts to alter or causes to alter the entries made in a passport or travel document; or State vs. Nikhil Mourya Page No. 17 of 20
(c) fails to produce for inspection his passport or travel document (whether issued under this Act or not) when called upon to do so by the prescribed authority; or
(d) knowingly uses a passport or travel document issued to another person; or
(e) knowingly allows another person to use a passport or travel document issued to him, shall be punishable with imprisonment for a term which may extend to 7 two years or with fine which may extend to five thousand rupees or with both.
(1A) Whoever, not being a citizen of India,
(a) makes an application for a passport or obtains a passport by suppressing information about in nationality, or
(b) holds a forged passport or any travel document, shall be punishable with imprisonment for a term which shall not be less than one year but may extend to five years and with fine which shall not be less than ten thousand rupees but which may extend to fifty thousand rupees or with both. (2) Whoever abets any offence punishable under 9 sub-section (1) or sub-section (1A) shall, if the act abetted is committed in consequence of the abetment, be punishable with the punishment provided in that sub-section for that offence. (3) Whoever contravenes any condition of a passport or travel document or any provision of this Act or any rule made thereunder for which no punishment is provided elsewhere in this Act shall be punishable with imprisonment for a term which may extend to three months or with fine which may extend to five hundred rupees or with both. (4) Whoever, having been convicted of an offence under this Act, is again convicted of an offence under this Act shall be punishable with double the penalty provided for the latter offence."
26. To bring home guilt under this Section, prosecution had to prove that some alteration was made, or an attempt was made to alter, or holder caused to alter the entries made in the passport. The defence of the accused is that he State vs. Nikhil Mourya Page No. 18 of 20 handed over his passport to one person for handing over a Schengen Visa. The said forged visa was affixed on the passport, which is on record and his identity has not been disputed by the accused. Therefore, in my considered opinion, ingredients of the offence punishable under Section 12 Passport Act have been also been proved by the prosecution against the accused beyond reasonable doubt as he handed over his passport to an unauthorised person to provide him a Schengen Visa.
27. The FIR has been registered with promptitude. The police proceedings starting from registration of FIR till filing of charge-sheet have been duly proved by the police witnesses examined on record. All the documents including the verification report have been duly proved. No infirmity has been seen/pointed out in the testimonies of the witnesses. Nothing contrary/favouring the accused has come up during the cross-examination of these witnesses. There is no reason to disbelieve the testimonies of prosecution witnesses. Thus, prosecution has succeeded in proving its case beyond reasonable doubt against the accused Nikhil Mourya.
28. The accused Nikhil Mourya accordingly stands convicted for the offences punishable under Section 420, Section 471 read with Section 468 (as forged documents were prepared for cheating and accused being user, shall be State vs. Nikhil Mourya Page No. 19 of 20 punished as maker) and Section 12 Passport Act and acquitted for the offence punishable U/Sec. 467 IPC and Section 474 IPC.
29. Ordered accordingly.
Announced in the open (Gurmohina Kaur) Court on 05.04.2018 ACMM-01/New Delhi District Patiala House Courts, New Delhi Code: DL-0427 This judgment contains 20 pages and each page is signed by me.
(Gurmohina Kaur) ACMM-01/New Delhi District Patiala House Courts, New Delhi Code: DL-0427 State vs. Nikhil Mourya Page No. 20 of 20