Delhi District Court
3.Title State vs . Sanjay Bora on 3 November, 2014
THE COURT OF Ms. NEHA PALIWAL :
METROPOLITAN MAGISTRATE03, EAST
KARKARDOOMA COURTS : DELHI
1.FIR No. 167/2012
2.Unique Case ID No. 02401R0204232014
3.Title State Vs. Sanjay Bora
3(A).Name of complainant Shri Ravindra Singh Rawat, S/o Sh.
Surender Singh Rawat, R/o H.No. 46,
Yamaha Vihar, Sector 49, Noida,
District Gautam Budh Nagar, UP.
3(B).Name of accused Sanjay Bora, S/o Sh. Surendra Nath
Bora, Village, PO & PS Chhepa,
District Ita Nagar, Arunachal
Pradesh.
4.Date of institution of challan 15.5.2014
5.Date of Reserving judgment Not reserved. Pronounced on the
same day.
6.Date of pronouncement 11/03/14
7.Date of commission of offence 15.4.2012
8.Offence complained of Under Section 407 IPC
9.Offence charged with Under Section 407 IPC
10.Plea of the accused persons Pleaded not guilty
11.Final order Convicted for the offence punishable
U/s 407 IPC
FIR No. 167/2012 State Vs Sanjay Bora 1 of 16
BRIEF REASONS FOR THE DECISION OF THE CASE:
1. Briefly the case of the prosecution as per the charge sheet is that on 15.4.2012. at around 7.20 am from C64, South Ganesh Nagar, Delhi
- 110092 within the jurisdiction of PS Mandawali, the accused took away and dishonestly misappropriated or converted to his own use the vehicle i.e Santro Car bearing no. UP16T 8218, Silver Colour belonging to the complainant Ravinder Singh Rawat. The said vehicle was entrusted to the accused by the complainant as the accused was employed as driver by the complainant. Thus the accused has committed criminal breach of trust in respect of that property being entrusted with that property in the capacity of carrier and thereby has committed the offence punishable U/s 407 IPC.
2. In the present matter charge sheet was filed before the Court on 15.5.2014. Cognizance for the offence was taken on the same date and copies of documents were supplied to the accused from court record free of cost. After the compliance of the provisions of Section 207 Cr.P.C. and after hearing parties, charge for the offence punishable U/s 407 IPC was framed against the accused vide order of the Court dated 28.6.2014, to which he pleaded not guilty and claimed trial.
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3. Thereafter the matter was fixed for prosecution evidence. Prosecution in order to prove its case against the accused has examined in total has examined as many as seven witnesses i.e. PW1 Sh. Ravinder Singh Rawat who is the complainant in the present matter, PW2 Sh. Janardan Juyal, PW3 Sh. Birender Ram, PW4 Sh. Birender Singh Karki, PW5 Ct Subindra Bhati, PW6 Ct. Rameshwar and PW7 HC Arvind Kumar who is the IO of the present matter.
4. The accused admitted before the Court the factum of lodging of FIR bearing 167/2012 and the lodging of DD No. 63 B dated 16.4.2012, however denying their contents. In view of the statement/admission of accused the FIR was exhibited as Ex. P1 and DD No. 63 B dated 16.04.2012 was exhibited as Ex. P2 and Duty Officer was dropped from the list of witnesses.
5. PW1 Sh. Ravinder Singh Rawat is the complainant in the present matter. It was deposed by him that he was running the business in the name of Aniket Travels and used to provide cab vehicles . Santro Car bearing no. UP16T8218 was attached by him with Akshit Travels for the purpose of picking up and dropping of employees of that company and the same was driven by the accused. The witness correctly identified the accused present before the Court at the time of his deposition.
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6. It was further deposed by the witness that he had entrusted the said car to the accused for picking up and dropping of employees of Akshit Travels. The accused used to keep the car in the night hours with him at C64, South Ganesh Nagar, Delhi.
7. It was further deposed by the witness that on 16.4.2014, he received a telephonic call from Akshit Travels that the above said Santro Car had not reached for picking up and dropping of employees of the company. Thereafter, he made a call on the mobile phone of accused which was switched off. It was further deposed by the witness that thereafter he went to the rented accommodation of accused at C64, South Ganesh Nagar, Delhi, where one of his associates met him, and told him that on 15.4.2012 at about 7.20am accused had gone with the above said car and has not returned back.
8. It was further stated by the witness that despite efforts and inquiries, he could not get any information about the accused. Thereafter he made a call at 100 number. His statement was recorded by the officials of PS Mandawali as Ex. PW1/A. The original documents of the vehicle were in the vehicle with the accused.
9. It was further deposed that during the course of investigation he also handed over the photocopy of RC of Santro Car No. UP16T8218 Mark A, insurance cover note Mark B, certificate of tourist permit of FIR No. 167/2012 State Vs Sanjay Bora 4 of 16 UP Mark C, all India tour permit Mark D, certificate of fitness Mark E (which were duly attested by him at point A) and GPS Location Map Mark F (colly) to the investigating agency.
10. It was further deposed by the witness that he used to maintain the attendance sheet of the drivers who were working with him. The print out of the attendance sheet for the month of April 2012 was placed on record as Mark G (colly). It was further deposed by the witness that accused had performed his duties till 13.04.2012.
11. It was further deposed by the witness that on 21.3.2014, when he was going for some work from Sector 57 Noida to his office at Sector 15 Noida, he reached near the PS Sector 20 Noida, he saw accused standing on the road. When he asked the about his car from the accused, he replied that the said car has been stolen and he had not committed any offence. It was further deposed by the witness that thereafter he brought the accused to PS and handed him to the IO. The accused was arrested and personally searched vide memo Ex. PW1/B and Ex. PW1/C. It was further deposed by the witness that he had also replied to the notice U/s 91.Cr.P.C. Ex. PW1/D.
12. In his cross examination it was deposed by the witness that he had asked the accused regarding the documents of his permanent address, but the accused had not produced the same. It was further FIR No. 167/2012 State Vs Sanjay Bora 5 of 16 admitted by the witness that he had not verified the permanent address of accused and had no document to show that the car was in permanent possession of accused.
13. PW2 Janardan Juyal, is another public witness. It was deposed by him that he was running the business in the name of Akshit Travels and had taken a Santro car from the complainant, which was driven by the accused. The witness correctly identified the accused at the time of his deposition.
14. It was further deposed by the witness that on 16.4.2012, he had received a call from his company that the said car had not reached for picking up and dropping of employees and thereafter he made a call to complainant Ravinder Singh Rawat and asked him about the accused. The complainant told him that he will call him back after talking with the accused. It was further deposed by the witness that after some time Ravinder Singh Rawat informed him that mobile phone of accused is switched off. Later on he came to know that accused has stolen the car.
15. In his cross examination it was deposed by the witness that he had no document to show that the car was permanently in possession of Sanjay Bora. It was further deposed he had no document regarding the address of accused.
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16. PW3 Birender Ram
is a public witness. He has deposed that
he is working as Driver at Akshit Travels Noida, from the year 2010. It was deposed by the witness that accused Sanjay Bora used to reside in his neighbourhood and was working as a driver with Aniket Travels. After some time the accused shifted to South Ganesh Nagar but used to meet them at Akshit Travels. It was deposed by him that in the month of April 2012, he came to know that Sanjay Bora had escaped with Santro car of complainant Ravinder Singh Rawat.
17. The witness further deposed that in the year 2014, he came to know that Sanjay Bora has been apprehended by Ravinder Singh Rawat in Noida. It was deposed by the witness that he had sometimes seen the accused Sanjay Bora driving the said Santro Car bearing no. UP16T8218 belonging to Ravinder Singh Rawat in Noida, however, he could not apprehend him because he always escaped by driving the said car at high speed on seeing him and he had stated this fact to Ravinder Singh Rawat also. The witness correctly identified the accused at the time of his deposition.
18. PW4 Sh. Birender Singh Karki is a public witness. He has deposed that he is working as Driver at Aniket Travels Noida and accused Sanjay Bora was also working with him as driver at Aniket Travels. In the month of April 2012, accused Sanjay Bora had escaped FIR No. 167/2012 State Vs Sanjay Bora 7 of 16 with Santro car bearing registration UP16T8218 belonging to Ravinder Singh Rawat owner of Aniket Travels. The witness correctly identified the accused before the Court at the time of his deposition.
19. The witness further deposed that about 45 months back, he came to know that Sanjay Bora has been apprehended by Ravinder Singh Rawat in Noida. It was further deposed by the witness that he had sometimes seen the accused driving the said Santro Car bearing no. UP16T8218 belonging to Ravinder Singh Rawat in Noida but he could not apprehend him because the accused always escaped by driving the said car at high speed on seeing him and he had stated this fact to Ravinder Singh Rawat also.
20. PW5 Ct. Subindra Bhati, deposed that on 22.3.2014, accused was brought from the Court by the IO and Constable Rameshwar, and was given in his custody. Thereafter IO had taken the accused alongwith him to Shipra Mall, Indira Puram and efforts were made in the area to search the Santro Car bearing no. UP16T 8218 at the instance of accused, but the car could not be traced. It was further deposed by the witness that the accused was also taken at Sector 58 at the instance of accused, but the car could not be traced. The witness correctly identified the accused at the time of his deposition.
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21. PW6 Ct. Rameshwar, deposed that on 22.3.2014, he along with IO reached at Dossier Cell, East District CBD ground where dossier of accused Sanjay Bora was prepared. It was further deposed by the witness that thereafter they reached the Court one day police custody remand of accused was obtained and thereafter custody of accused was handed over to Ct. Subindra Bhati. The witness further deposed that IO recorded his statement. The witness correctly identified the accused before the Court at the time of his deposition.
22. PW7 HC Arvind Kumar is the IO of the present matter. He has deposed that on 16.4.2012, he received DD No. 63 B Ex.P2/ PW7/A, regarding the taking away of car bearing no. UP16T8218, of the caller by his driver. Thereafter he alongwith Ct. Vinod reached at the spot i.e. C64, South Ganesh Nagar, Delhi 110092, where he met the complainant Ravinder Singh Rawat. The witness deposed that the complainant Ravinder Singh Rawat informed him that his driver had taken away his above mentioned Santro Car without informing him. Complainant also orally requested the witness that he would like to wait for that day as the accused might come in the evening.
23. The witness further deposed that on 17.4.2012, complainant Ravinder Singh Rawat came at the PS and he recorded the statement of the complainant, on which he prepared rukka and after FIR No. 167/2012 State Vs Sanjay Bora 9 of 16 endorsement Ex. PW7/B. The rukka was thereafter handed over to the duty office for registration of FIR. Thereafter he alongwith the complainant reached at the spot, that is the house of accused Sanjay Bora, at C64, South Ganesh Nagar, Delhi - 110092 and inquired from the neighbourhood about the whereabouts of accused Sanjay Bora. From the neighbourhood he came to know that the accused Sanjay Bhora alongwith aforementioned car had left on 15.4.2012. Complainant Ravinder Rawat had also given him the mobile number of accused Sanjay Bora which was switched off. Thereafter, witness alongwith the complainant came back to the PS.
24. The witness further deposed that he had put the mobile number of accused in surveillance, had flashed wireless message and had informed NCRV Authority about stolen vehicle but the accused or the vehicle could not be traced.
25. The witness further deposed that on 31.3.2014, complainant Ravinder Rawat came alongwith accused Sanjay Bora to the PS and informed him that the accused is the same person who had taken away his Santro car two years ago without his consent. The complainant also informed him that he apprehended accused at Sector 20 Noida, near Police Station of Sector 20, Noida.
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26. The witness further deposed that he formally arrested the accused and personal searched him vide memos already Ex. PW1/B and Ex. PW1/C respectively. The pointing out memo of spot was also prepared at the instance of accused Ex. PW7/D. It was further deposed that one day PC remand of accused was taken for recovery of the vehicle, but no recovery could be effected. The witness correctly identified the accused before the Court at the time of his deposition.
27. In his cross examination, by Ld. Defence counsel, it was deposed by the witness that he had not enquired from the complainant whether accused had handed over his permanent address to him or not. He admitted that the attendance register of the accused given to him by the complainant, placed on record is only for the period 06.4.2012 to 18.4.2014 Ex. PW7/D1, however he had demanded the 11 months record of attendance of accused from the complainant which was given by the complainant to him but has not been placed in judicial file by him and the same is placed in police file.
28. With the permission of the Court the police file was shown to the witness and the witness showed the record of attendance register of accused Sanjay from 01.11.2011 to 31.3.2012. The same was exhibited as Ex. PW7/D2 (Colly.).
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29. As ample opportunities were granted to the prosecution to lead evidence and all material prosecution witnesses have been examined, prosecution evidence was closed vide order of the court dated 27.9.2014.
30. Thereafter, the matter was fixed for statement of accused. Statement of the accused U/s 313 read with section 281 Cr.P.C. was recorded by the Court on 20.10.2014 wherein all the incriminating evidence on record were put by the accused. It was submitted by the accused that he has been falsely implicated in the present case by the complainant and police officials. As it was submitted by the accused that he does not wish to lead any evidence in his defence, the matter was fixed for final arguments.
31. I have heard the arguments as advanced by Ld. APP for the State and the Ld. Counsel for the accused.
32. The accused in the present case has been charged for the offence punishable U/s 407 IPC.
33. Section 407 IPC reads as under::
" Criminal breach of trust by carrier etc.. Whoever being entrusted with property as a carrier, wharfinger or warehousekeeper, commits criminal breach of trust in respect of FIR No. 167/2012 State Vs Sanjay Bora 12 of 16 such property, 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 407 IPC applies in cases where there is an implied/ express contract between the parties that the person who receives the property would keep/ carry it in safe custody.
33. To prove the offence U/s 407 IPC, it has to be established before the Court that the accused was entrusted with the property, that is, Santro Car by the complainant/owner of the Santro Car, in the capacity of a carrier and that he had committed criminal breach of trust in respect to the same. Thus it has to be established that accused has dishonestly misappropriated the property or has converted the same for his own use.
34. In the present case in hand the FIR is dated 17.4.2012, wherein the accused was named by the complainant as a person with whom he had entrusted his Santro car bearing no. UP16T8218 for last one year and accused has eloped with his car on 15.04.2012. There is a DD entry dated 16.4.2012 bearing no. 63 B with respect to the same which is containing the information regarding commission of offence.
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35. It has been deposed by the IO as well as the complainant that the mobile phone of accused had remained switched off during the entire period of investigation.The complainant has categorically identified the accused before the Court as the driver of the vehicle i.e. Santro car bearing no. UP16T8218, which was entrusted by him to the accused for the purpose of picking up and dropping, of the employees of Akshit Travels.
36. PW2 Janardan Juyal is the person who is running the business in the name of Akshit Travels and has deposed that he had hired the Santro Car of the complainant Ravinder Singh Rawat for the purpose of picking up and dropping of his employees and the said car was driven by the employee of Aniket Travels namely Sanjay Bora. He further deposed that on 16.4.2012, he had received a call from the company that the said car had not reached for picking up and dropping of employees and thereafter he enquired regarding the same from the complainant. PW1 also deposed that 16.4.2012, he received a telephonic call from Akshit Travels that the above said Santro Car had not reached for picking up and dropping of employees of the company on which the witness made a call on the mobile phone of accused which was switched off.
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37. PW's 3 and 4 are also the drivers of the complainant's company and of company of PW2. They have also deposed regarding the fact that they had sometimes seen the accused Sanjay Bora driving the said Santro Car bearing no. UP16T8218 belonging to Ravinder Singh Rawat in Noida, however, they could not apprehend him because he always escaped by driving the said car at high speed on seeing them and they had stated this fact to Ravinder Singh Rawat also.
38. The prosecution witnesses have remained consistent in their deposition and have corroborated each other in material particulars. Nothing has come in the cross examination of the witnesses which can assail their credibility and dispute their reliability before the Court.
39. In the cross examination of PW7 the attendance register of accused has also been exhibited on record, showing that the accused was the driver of the complainant and his attendance register was maintained.
40. All these facts and circumstances taken into consideration, establish before the court be on shadow of all reasonable doubts that the accused Sanjay Bora was entrusted by the complainant with his Santro car bearing no. UP16T8218 and that he had committed criminal breach of trust in respect to the same by dishonestly misappropriating the same for his own use.
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41. Thus the accused Sanjay Bora is convicted for the offence punishable U/s 407 IPC.
42. Let he be heard separately on the quantum of sentence.
43. Copy of judgment be supplied to the convicts free of cost.
Announced in the (Neha Paliwal) Open Court on 3.11.2014 MM03 (E): KKD:Delhi
It is certified that this judgment contains 16 pages and each page bears my signature.
(Neha Paliwal)
MM03(E): KKD: Delhi:3.11.2014
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