Delhi District Court
State vs . Sunil Kapoor on 31 March, 2022
CNR No. DL CT 02-0002262011
IN THE COURT OF SH. KAPIL KUMAR
METROPOLITAN MAGISTRATE-07, CENTRAL,
TIS HAZARI COURTS, DELHI
CNR no. DL CT02-0002262011
CIS No. 288445/2016
State Vs. Sunil Kapoor
FIR No. 91/2011
PS. Subzi Mandi
U/s. 419/420 IPC
JUDGMENT
1) The date of commission of offence : August 2008 to April 2009
2) The name of the complainant : Sh Anil Malhotra
3) The name & parentage of accused : Sunil Kapoor S/o. Late Jagat Singh Kapoor
4) Offence complained of : 419/420 IPC
5) The plea of accused : Pleaded not guilty
6) Final order : Acquitted
7) The date of such order : 31.03.2022 Date of Institution : 19.08.2011 Judgment reserved on : 31.03.2022 Judgment announced on : 31.03.2022 Digitally signed by KAPIL KAPIL KUMAR Date:
KUMAR 2022.03.31
16:19:33
+0530
State Vs Sunil Kapoor; CIS No. 288445/2016; FIR No. 91/2011; PS Subzi Mandi; U/s. 419/420 IPC 1/30 CNR No. DL CT 02-0002262011 BRIEF REASONS FOR THE JUDGMENT:
1) On 16.07.2010 the complainant gave a complaint to ACP Sadar Bazar stating that the accused Sunil Kapoor approached him and assured that through one Mr Bhatnagar, who is an IAS officer, posted at Ministry of Education, Delhi he can arrange the admission of his daughter in MDI College, Gurgaon in MBA Course. It was stated that the accused arranged a meeting of the complainant with Mr Bhatnagar who boasted and promised and the he can arrange the admission in management quota in MDI College, Gurgaon. It is stated that Rs 15 Lacs were taken from the complainant but admission was not done and in this manner the complainant was cheated by the accused and Mr Bhatnagar, IAS Officer. In continuation to this complaint another complaint dated 02.08.2010 was given in PS Subzi Mandi in which the further facts as to the initial payment of Rs 6 Lacs taken from the complainant by the accused by inducing him through that alleged IAS Officer, Mr Bhatnagar as to admission of his daughter in MBA Course in Shri Ram Institute of Management and Technology Greater Noida and further payment of Rs 15 Lacs for admission in MDI Gurgaon. Thereafter the FIR was registered on 30.04.2009. In brief, the case of the prosecution is that the complainant was cheated of around Rs 21 Lacs as he was dishonestly induced by the accused and Mr Bhatnagar, an IAS officer, Deputy Director, Ministry of Education for securing the admission of his daughter in MBA Course.
2) After completion of investigation, charge sheet was filed against the accused. In compliance of Sec. 207 Cr.PC, documents supplied to the accused. Arguments on point of charge was heard.
Vide order dated 06.08.2013 charge of the offence U/s 419 IPC State Vs Sunil Kapoor; CIS No. 288445/2016; FIR No. 91/2011; PS Subzi Mandi; U/s. 419/420 IPC 2/30 Digitally signed by KAPIL KAPIL KUMAR KUMAR Date:
2022.03.31 16:19:40 +0530 CNR No. DL CT 02-0002262011 and 420 IPC was framed upon the accused, to which he pleaded not guilty and claimed trial.
3) In support of its case, prosecution has examined 12 witnesses. Statement of accused was recorded under section 313 Cr.P.C, in which he denied all the allegations and opted to lead defence evidence. One witness from Raja Garden Transport Authority was examined as sole witness in defence evidence.
4) I have heard the arguments of Ld. APP for State and Ld Counsel for accused. I have also perused the record carefully.
5) The testimony of prosecution witnesses is being touched upon, in brief, as follows:-
5.1) PW1 Ms Shefali, the daughter of complainant, deposed that in the year 2008 she wanted to pursue the MBA Course and there her father was induced by the accused by mentioning that he can arrange admission for her in Shri Ram Institute of Management and Technology Greater Noida for which he took Rs 4.5 Lacs in cash from his father at the Shri Institute of Management and Technology, Greater Noida. She deposed that she started attending classes for 15-20 days but thereafter she was informed that she was provisionally admitted in the course and since her fees is not deposited and as such she is not eligible for admission. She deposed that thereafter the accused further took Rs 15 Lacs from his father on account of securing admission in MBA Course in MDI Gurgaon which was not done. She deposed that her father was cheated of around Rs 21 Lacs by the accused in the name of securing her admission in MBA course. She correctly identified the accused.
5.2) PW2 Anil Malhotra deposed that the accused claimed that he know one Mr Bhatnagar, an IAS officer in the Ministry of State Vs Sunil Kapoor; CIS No. 288445/2016; FIR No. 91/2011; PS Subzi Mandi; U/s. 419/420 IPC 3/30 Digitally signed KAPIL by KAPIL KUMAR KUMAR Date: 2022.03.31 16:19:46 +0530 CNR No. DL CT 02-0002262011 Education and he can secure the admission of her daughter in MBA Course through that IAS Officer in Shri Ram Institute of Management and Technology, Greater Noida for which he took Rs 6 Lacs from him at his residence. He further deposed that his daughter Shefali started attending classes in the institute at Greater Noida after taking provisional admission but thereafter she was not allowed in the course as her fees was not deposited.
He further deposed that thereafter accused further took Rs 15 Lacs from him for securing the admission in MDI Gurgaon but the admission was not done and the accused did not return the money. He deposed that accused executed receipts as to the receiving of money in his favour. He correctly identified the accused.
5.3) PW3 Om Parkash deposed to the effect that Rs 15 Lacs were given to the accused Sunil Kapoor in his presence. He identified his signatures on the receipts as to the receiving of money.
5.4) PW4 Shri Sanjeev Singh Nanda that on the lines of PW3 and identified his signatures on the receipt Ex.PW2B. 5.5) PW5 Dr Ajay Kumar Director, Asian School of Media Studies Marwah Studio Film City, Noida deposed that from May 2008 to July-August 2008 he was the Director of Business School. He deposed that candidate namely Shefali Malhotra (PW1) took admission in MBA Course for which she was not found eligible He deposed that she was asked to join PGDMA course to which she agreed and started taking classes but thereafter left the institution.
5.6) PW6 ASI Sanjay inter-alia deposed that on 23.06.2011 the accused was arrested vide arrest memo Ex.PW6/A. He deposed State Vs Sunil Kapoor; CIS No. 288445/2016; FIR No. 91/2011; PS Subzi Mandi; U/s. 419/420 IPC 4/30 Digitally signed by KAPIL KAPIL KUMAR KUMAR Date:
2022.03.31 16:19:51 +0530 CNR No. DL CT 02-0002262011 that on 27.06.2011 the complainant handed over three receipts to IO SI Rajesh which were seized vide memo Ex.PW2/F. 5.7) PW7 Retired SI Ram Pal Singh deposed that on 21.04.2011 the present FIR Ex.PW7/A was registered. 5.8) PW8 Manoj Sharma deposed that 31.07.2011 police visited his residence and inquired him about one Arun who allegedly got issued one mobile SIM card at his address. He deposed that he told the police no such person ever resided at that address. 5.9) PW9 Sh Kuldeep Sharma deposed that he made inquiry about mobile no. 92.......81 but he was not aware as to the subscriber of that number. He deposed that the mobile number was not in his name nor in his family members name. 5.10) PW10 Sh Virender Kumar, Assistant Director (Documents) FSL Rohini proved the FSL report Ex.PW10/A. 5.11) PW11 HC Sashi Bala deposed that on 16.09.2011 SI Rajesh Kumar obtained the specimen signatures and handwriting of Anshika and Smt Sonia Kapoor in her presence vide Ex.PW10/C (colly) and Ex.PW10/D C(colly). 5.12) PW12 IO SI Rajesh Kumar deposed that as to the registration of the present FIR; recording of supplementary statement of the complainant Ex.PW2/DA; recording of statement of witnesses; seizure memo of the documents Ex.PW12/A connected to the present case; as to the arrest of the accused; as to the specimen handwriting of the accused Sunil;
seizure memo of receipts executed by the accused; taking of specimen signatures and handwritings and the completion of other codal formalities.
6) It is the cardinal principle of criminal justice delivery system that the prosecution has to prove the guilt of the accused State Vs Sunil Kapoor; CIS No. 288445/2016; FIR No. 91/2011; PS Subzi Mandi; U/s. 419/420 IPC 5/30 Digitally signed by KAPIL KAPIL KUMAR Date: KUMAR 2022.03.31 16:19:56 +0530 CNR No. DL CT 02-0002262011 beyond reasonable doubts. No matter how weak the defence of accused is but the golden rule of the criminal jurisprudence is that the case of prosecution has to stand on its own legs.
7) Ld. APP for the State argued that the case of the prosecution stands proved beyond reasonable doubts against the accused. Ld. APP for the State submits that by virtue of receipts of money proved on record it stands proved that accused received money from the complainant on the pretext of arranging admission of the daughter of the complainant in MBA Course. It is further argued that the complainant (PW2) and his daughter Shefali (PW1) supported the case of the prosecution when they were examined on oath. He further argued the factum as to the receiving of money by the complainant got corroborated by the testimony of PW3 and PW4. It is further submitted that the inducement on the part of the accused is manifest from the fact that the accused did not return the money of the complainant.
8) Ld. Defence Counsel vehemently argued that there is a huge unexplained delay in the registration of the present FIR and as such the FIR is full of false facts and exaggeraton. It is further argued that the parties are pari-delicto, if the allegations of the complainant are taken as correct and as such the complainant cannot seek any relieve from this court. It is further argued that for the sake of arguments, even if the receipts be taken as correct, than also there is no inducement on the part of the accused as those receipts are mere agreement and if the accused breached any agreement than the dishonest intention since inception cannot be imputed upon the accused. It is further vehemently argued that if the accused allegedly induced the complainant that he can secure the admission through the assistance of IAS officer, State Vs Sunil Kapoor; CIS No. 288445/2016; FIR No. 91/2011; PS Subzi Mandi; U/s. 419/420 IPC 6/30 Digitally signed by KAPIL KAPIL KUMAR KUMAR Date:
2022.03.31 16:20:02 +0530 CNR No. DL CT 02-0002262011 Mr Bhatnagar than it was imperative on the part of the prosecution to find out that Mr Bhatnagar to whom the complainant met several times through the meeting arranged by the accused. It was argued vehemently that the prosecution miserably failed to discharge its burden of proof and accused is entitled to be acquitted from the present case. Delay in the FIR.
9) The first issue to be decided is to whether there is any delay in the FIR or not and if yes, whether the same is unexplained and if yes, whether the same is fatal to the case of the prosecution or not. The FIR was registered on 21.04.2011 while the date of alleged offence is from 01.08.2008 to 30.04.2009. The first complaint is of 16.07.2010 Ex.PW2/D and the next complaint is of 02.08.2010 Ex.PW2/E. Even from the last complaint ExPW2/E the delay is of around 8 months. The important fact is that the receipts as to the acknowledgment of amount Ex.PW2/A, Ex.PW2/B and Ex.PW2/C are of 23.09.2009, 09.09.2009 and 12.04.2009 respectively. In the receipt dated 23.09.2009 Ex.PW2/C the accused allegedly undertook to make the payment by 29.09.2009 at 8 PM. As per the case of the prosecution the payment was not made on that day. If on 29.09.2009 the complainant got aware that the accused will not going to make the payment than why he filed the first complaint on 16.07.2010. There is delay of around 10 months from the alleged execution of last receipt. Now the question is why the complainant waited for 10 months for giving the first complaint to the police. Was there any reason with the complainant to wait for 10 months? There is no explanation on this issue. It is necessary to refer the well established law by virtue of celebrated State Vs Sunil Kapoor; CIS No. 288445/2016; FIR No. 91/2011; PS Subzi Mandi; U/s. 419/420 IPC 7/30 Digitally signed by KAPIL KAPIL KUMAR KUMAR Date:
2022.03.31 16:20:08 +0530 CNR No. DL CT 02-0002262011 judgments on the aspect of delay in the FIR.
10) It was observed by Hon'ble Apex Court in the judgment titled as Thulia Kali vs State of Tamil Nadu, Criminal Appeal no. 165/1971 decided on 25.02.1972 that-
"First information report in a criminal case is an extremely vital and valuable piece of evidence for the purpose of corroborating of the above report can hardly be overestimated from the standpoint of the accused. The object of insisting upon prompt lodging to the report to the police in respect of commission of an offence is to obtain early information regarding the circumstance in which the crime was committed, the name of the actual culprits and the part played by them as well as the names of eye witnesses present at the scene, of occurrence. Delay in lodging the first information report quite often results in embellishment which is a creature of afterthought. On account of delay, the report not only get bereft of the advantage of spontaneity, danger creeps in of the introduction of coloured version exaggerated account of concocted story as a result of deliberation and consultation. It is therefore, essential that the delaying lodging of the first information report should be satisfactorily explained"
11) It was held by Hon'ble Apex Court in the judgment titled as State of Madhya Pardesh vs Rattan Singh and Others (Criminal appeal no. 1034/2013 decided on 05.09.2018) that there is no hard and fast rule which can be applied to determine State Vs Sunil Kapoor; CIS No. 288445/2016; FIR No. 91/2011; PS Subzi Mandi; U/s. 419/420 IPC 8/30 Digitally signed KAPIL by KAPIL KUMAR KUMAR Date: 2022.03.31 16:20:13 +0530 CNR No. DL CT 02-0002262011 the effect of delay in filing FIR in given case but the courts are duty bound to determine, whether the explanation afforded is plausible enough based on given facts and circumstances of each case. It was held that the mere delay in the FIR will not lead to call the eye witness untrustworthy by itself, however, the delay needs to be explained. It was observed that since a promptly filed FIR reflects reduced chances of embellishment, fabrication or distortion in the memory, and in cases of delay in the FIR it is important to assess the explanation therefore to look for possible ulterior motives and to assess its effect on the credibility of prosecution witness.
12) It is also important to refer the judgment of Hon'ble Apex Court passed in the matter titled as Apren Joseph vs State of Kerala (1973) 3SCC 144 where the following observations was made on the aspect of delay in the FIR "Now first information report is a report relating to the commission of an offence given to the police and recorded by the it under section 154 Cr.PC. As observed by the Privy Council in King Emperor vs Khwaja Ahmad the receipt and recording of information report by the police is not a condition precedent to the setting in motion of criminal investigation, or does the statue provide that such information report can only be made by an eyewitness. First information report u/s 154 is not even considered a substantive piece of evidence. It can only be used to corroborate or contradict the informants evidence in court. But this information when recorded is the basis of a case set up by the State Vs Sunil Kapoor; CIS No. 288445/2016; FIR No. 91/2011; PS Subzi Mandi; U/s. 419/420 IPC 9/30 Digitally signed by KAPIL KAPIL KUMAR Date:
KUMAR 2022.03.31
16:20:18
+0530
CNR No. DL CT 02-0002262011
informant. It is very useful if recorded before there time and opportunity to embellish or before the informants memory fodes. Undue unreasonable delay in lodging the FIR, thereafter inevitably gives rise to suspicion which puts the court on guard to look for the possible motive and and the explanation for the delay and consider its effect on the trustworthiness or otherwise of the prosecution version. In our opinion, no duration of time in the abstract can be fixed as reasonable for giving information of a crime to the police, the question of reasonable time being a matter for determination by the court in each case. Merely delay in lodging the first information report with the police is, therefore, not necessarily, as a matter of law, fatal to the prosecution. The effect of delay in doing so in the light of plausibility of the explanation forthcoming for such delay accordingly must fall for consideration on all facts and circumstance of a given case"
13) From the reference to the above-mentioned judgments of Hon'ble Apex Court it can be deduced that there is no hard and fast rule which can be applied to determine the effect of delay in the FIR and each case has to be decided considering peculiar circumstances. It was observed by Hon'ble Apex Court in the judgment titled as Ram Jas Vs State of UP (1972) 4SCC 201 that-
"It is to true that witnesses cannot be called upon to explain every hours delay and common sense State Vs Sunil Kapoor; CIS No. 288445/2016; FIR No. 91/2011; PS Subzi Mandi; U/s. 419/420 IPC 10/30 Digitally signed KAPIL by KAPIL KUMAR KUMAR Date: 2022.03.31 16:20:36 +0530 CNR No. DL CT 02-0002262011 view has to be taken ascertaining whether the first information report was lodged after an undue delay so as to afford enough scope for manipulating evidence. Whether the delay is so long as to throw a cloud of suspicions on the seeds of the prosecution case must depend upon a variety of factor which would vary from case to case. Even a long delay in filing report of an occurrence can be condoned if the witnesses on whose evidence the prosecution relied have no motive for implicating the accused. On the other hand, prompt filing of the report is not an unmistakable guarantee of the truthfulness of the version of prosecution"
14) By virtue of above-mentioned judgments the following principles are to kept in mind, while deciding the issue of delay in the FIR in any given case. These are-
i) The question of 'reasonable explanation' in delay in the FIR and the 'reasonable time' are to be decided by the courts on the basis of peculiar fact of the given case;
ii) There is no time limit in the law under which the FIR is to be registered. The delay in the FIR is to be examined in the peculiar facts of the each case;
iii) Promptly filed FIR reflects reduced chances of embellishment, fabrication or distortion in the memory of the person registering the FIR;
iv) In cases of delay in FIR, it is important to assess the explanation therefore to look for possible ulterior motives and to assess its effect on the credibility of the prosecution witness; KAPIL Digitally signed by KAPIL KUMAR KUMAR Date: 2022.03.31 16:20:50 +0530 State Vs Sunil Kapoor; CIS No. 288445/2016; FIR No. 91/2011; PS Subzi Mandi; U/s. 419/420 IPC 11/30 CNR No. DL CT 02-0002262011
v) In cases of delay in FIR the report got bereft of the advantage of spontaneity, danger creeps in of the introduction coloured version and exaggerated account of concocted story;
vi) Mere delay in FIR will not lead to call any witness untrustworthy by itself however the delay needs to be explained;
vii) The witnesses cannot be called upon to explain every hours of delay and common sense view has to be taken to ascertain whether the first information report was lodged after an undue delay as to afford enough scope for manipulating the evidence;
viii) It is always better if the FIR was registered promptly after the incident.
15) Now coming back to the facts of the present case. There is a delay of 10 months in giving the first complaint from the date agreed i.e 29.09.2009 for the payment by the accused. There is a delay of around 8 months from the date of the second complaint i.e 02.08.2010 to the registration of the FIR. These delays are nowhere explained during the trial. PW1 deposed that her father waited for year. PW2 not deposed anything as to why he waited for a year. In the admission form filled by PW1 for the MBA course in Shri Ram Institute of Management she declared the annual income of her father as Rs 4.5 Lacs. This form is Ex.PW1/DA. There is no submission that this income was wrongly declared by the daughter of the complainant. If this be taken as correct than a person who is only earning annually Rs 4.5 Lacs will not wait for around 2 years from the date of payment of Rs 21 Lacs in initiating the legal proceedings. It is State Vs Sunil Kapoor; CIS No. 288445/2016; FIR No. 91/2011; PS Subzi Mandi; U/s. 419/420 IPC 12/30 Digitally signed KAPIL by KAPIL KUMAR KUMAR Date: 2022.03.31 16:20:55 +0530 CNR No. DL CT 02-0002262011 not so that the complainant was so rich that Rs 21 Lacs was nothing for him. A person earning Rs 4. 5 Lacs per year took years to collect Rs 21 Lacs.
16) Further, the first complaint is completely silent upon the payment of Rs 6 Lacs for the admission in the Business School situated at Greater Noida. The second complaint first time reveals the initial payment of Rs 6 Lacs. This aspect gains weight as even with this huge delay there are material contradictions in the two complaints available on record. If the payments of Rs 6 Lacs was prior in time to the alleged second payment of Rs 15 Lacs than it is beyond comprehension as to why this crucial fact was withhold from the first complaint. This delay is certainly not explained and leads to question mark on the conduct of the complainant and consequently on the case of the prosecution. Parties being pari-delicto
17) At this stage, the issue of parties being pari-delicto is to be considered. It was argued vehemently by Ld. Defence Counsel that if two persons agreed to commit something which is not supported by law or is against by public policy than law will not come to rescue for one. It is submitted that if the object of the alleged agreement between the parties be considered than the object was to take the seat of meritorious student or in other words putting the meritorious student at a disadvantaged position. It is submitted that even for the sake of arguments if the case of the complainant be taken as correct than also no prosecution lies as the complainant allegedly made the payment to do something which is not supported by law. It is not supported by law that by bribing someone the seat of a meritorious student be given to a undeserving student. It is State Vs Sunil Kapoor; CIS No. 288445/2016; FIR No. 91/2011; PS Subzi Mandi; U/s. 419/420 IPC 13/30 Digitally signed by KAPIL KAPIL KUMAR KUMAR Date:
2022.03.31 16:21:00 +0530 CNR No. DL CT 02-0002262011 submitted that it is against the public policy.
18) As per the case of the prosecution the complainant made the payment to the accused for arranging seat in MBA course for his daughter which was otherwise not available to her. The object of giving alleged Rs 21 Lacs to the complainant was to bribe someone, to misuse the authority of someone and to get the admission in MBA in a wrong manner. There is nothing on record as to the admission of daughter of complainant in the management quota. PW5, the than Director of the Business School not deposed anything about the management quota. No document has been proved on record as to the prospectus, admission form mentioning anything about the management seat on availability of seats on higher fees. Fees receipts available on record also do not reveal as to the payment of higher fees in comparison to other students. In both the complaints Ex.PW2/D and Ex.PW2/E there is not a whisper as to management quota in MDI Gurgaon for which the accused has been charged in the present case. By merely mentioning- 'management quota' without supporting the same by any documentary evidence is of no consequence. It is no where proved by the prosecution by leading any evidence that the institute had unfettered discretion to take any student without minimum eligibility. Things would have been different had the prosecution was able to proved that the money paid by the complainant was actually higher fee than to comparison to other students. Facts appearing on record by virtue of testimony of PW1, PW2 and PW5 reveals that the money was given for purchasing seats for MBA course. The purchasing of a seat in a education institution is certainly a illegal transaction and against public policy. If someone is paying money to anyone for State Vs Sunil Kapoor; CIS No. 288445/2016; FIR No. 91/2011; PS Subzi Mandi; U/s. 419/420 IPC 14/30 Digitally signed by KAPIL KAPIL KUMAR KUMAR Date:
2022.03.31 16:21:05 +0530 CNR No. DL CT 02-0002262011 securing a unlawful object in a illegal manner than certainly he cannot be rescued by the court of law.
19) In the judgment titled as Virender Singh Vs Laxmi Narain and Ors Manu/DE/9709/2006 it was held by Hon'ble High Court of Delhi that the doctrine of rule of pari-delicto is the embodiment of the principle that court will refuse to enforce an illegal agreement at the instance of person who is himself a party to an illegality or to a fraud. In that case the complainant paid a illegal gratification of Rs 80,000/- for securing a job of his nephew in Haryana Police. The complainant filed the case u/s 138 NI Act but the court refused to give any protection to the complainant who was also a wrong doer. The Hon'ble High Court of Delhi while discussing issue of pari-delicto referred to the section 23 of Indian Contract Act 1872 and specifically the illustration (f) of section 23 of Indian Contract Act.
20) The Hon'ble High Court of Madhya Pardesh in the judgment titled as Suraj Mal & ors vs State of MP Manu/MP/1369/2020 held that how an abjectly dishonest person who had paid bribe to another for purpose of influencing a public servant, can dare to approach the criminal justice system for redressal where the work for which the bribe was paid for was not done and the bribe money was not returned. In that case Hon'ble High Court of Delhi directed for the registration of FIR against the complainant.
21) The Hon'ble High Court of Patna in the judgment titled as Vijaya Sharma & Ors Vs State of Bihar Manu/BH/1310/2010 held that if the complainant voluntarily parted with money for an illegal purpose of securing appointment in the Government Service for a money consideration, which itself was an offence, State Vs Sunil Kapoor; CIS No. 288445/2016; FIR No. 91/2011; PS Subzi Mandi; U/s. 419/420 IPC 15/30 Digitally signed KAPIL by KAPIL KUMAR KUMAR Date: 2022.03.31 16:21:12 +0530 CNR No. DL CT 02-0002262011 can he urge that he has been cheated. It was held that the concept of cheating will have no application where the act which is stated to be constitute cheating was itself an offence. It was held that the complainant was aware of the crime and cannot contend that failure to commit crime amounted to cheat him (para 9).
22) The Hon'ble Apex Court in the judgment titled as BG. Pankajaskhi Amma & Ors vs Mathai Methew (D) through LRs & ors Manu/SC/1158/2004 while though deciding a civil dispute observed in para no.13 that no court can come to the aid of a party in an illegal transaction. It was observed that it is well settled law that in illegal transactions loss must be allowed to lie where it falls.
23) If the above-mentioned precedents cited above on the issue of pari-delicto be applied to the facts of the present case than it can be said safely that the complainant was also not in clean hands. He was also a party to unlawful act. He gave money, either on inducement or not, to get something done which is against public policy. Securing the seat in the educational institution by paying bribe or by influencing someone against the seat of a meritorious student is not something which is supported by law. The object of act in itself was against public policy. As per the above-mentioned precedents the court should refrain from helping the complainant in these cases and must allow the loss to fall where it lies.
24) The phrase- 'cheats and thereby dishonestly induces...' in the section 420 IPC is not for those cases in which the accused induces a person to commit illegal act or an offence and the another person committed the offence. If a person 'A' induces 'B' to deliver him Rs 20 Lacs to commit murder of 'C' and if murder State Vs Sunil Kapoor; CIS No. 288445/2016; FIR No. 91/2011; PS Subzi Mandi; U/s. 419/420 IPC 16/30 Digitally signed by KAPIL KAPIL KUMAR KUMAR Date:
2022.03.31 16:21:17 +0530 CNR No. DL CT 02-0002262011 is not done than 'B' cannot come to the court with the plea that since the murder is not done and as such he is cheated and accused be charged for the offence U/s 420 IPC.
25) In the case in hand the accused allegedly induces the complainant to pay him money for securing the seat of the daughter of the complainant in MBA course by illegal means.
This is again something which is not supported by law and as such the complainant cannot call himself as cheated. This alleged cheating with the complainant has not rescue in law and accordingly, the case of the prosecution bound to fail on this issue.
Failure to bring the alleged IAS officer Mr Bhatnagar.
26) Now coming to the merits of the present case. It is to be reminded here that in the case in hand the accused did not claim himself to be an IAS officer in the Ministry of Education. He had not asked the complainant that he has contacts in the Education Institution at Greater Noida or Gurgaon. The case is, as reflected from charge framed, that accused induced the complainant by claiming that he knew one IAS officer in the Ministry of the Education (Mr. Bhatnagar) and he will secure the admission. It is to be worth mentioning here that the order of the charge attained finality and there is no charge for the offences U/s 419/420 IPC read with section 34 IPC. The aspect of common intention as alleged by the prosecution was not put to the accused in the charge. At this stage, the section 34 IPC cannot be invoked.
27) Prosecution failed to bring Mr Bhatnagar in the court. In the FIR it is specifically mentioned that Mr. Bhatnagar who is an IAS officer was posted in Ministry of Education in Delhi. There State Vs Sunil Kapoor; CIS No. 288445/2016; FIR No. 91/2011; PS Subzi Mandi; U/s. 419/420 IPC 17/30 Digitally signed by KAPIL KAPIL KUMAR KUMAR Date:
2022.03.31 16:21:22 +0530 CNR No. DL CT 02-0002262011 was no effort by the prosecution to bring that Mr Bhatnagar in the court. The investigating officer could have take the list of the IAS officer posted in Ministry of Education, Delhi through proper channel and can bring on record the fact as to whether there was any Mr Bhatnagar in the Ministry of Education, Delhi or not.
28) When the investigating officer was examined in the court he tried to give explanation for not bringing the IAS officer on record by stating that the police custody remand was declined by the court. This is no explanation at all. The accused was arrested after around two years from the FIR. As per the testimony of PW1 and PW2 they met IAS Officer Mr Bhatnagar several times.
The investigating officer could show the photographs of the IAS officers posted in Ministry of Education to complainant to see as to whether he was able to identify any officer as that of Mr Bhatnagar or not. There was no attempt on the part of the investigating officer to seize the CCTV footages of the cameras installed at the mall and hotel where the complainant allegedly met IAS Officer Mr Bhatnagar for the admission of his daughter.
29) The aspect of inducement through IAS Officer Mr Bhatnagar is completely sidelined by the prosecution. As per the case of the prosecution as revealed from the charge-sheet and from the charge framed the alleged IAS officer Mr Bhatnagar was the kingpin of the entire case. The lack of proper efforts on the part of IO to search Mr Bhatnagar certainly leads to cloud of doubt on the case of the prosecution.
30) The charge for the offence U/s 419 IPC for which the accused has been charged is bound to fail as the accused did not claim himself as an IAS Officer. He had not manipulated his State Vs Sunil Kapoor; CIS No. 288445/2016; FIR No. 91/2011; PS Subzi Mandi; U/s. 419/420 IPC 18/30 Digitally signed KAPIL by KAPIL KUMAR KUMAR Date: 2022.03.31 16:21:29 +0530 CNR No. DL CT 02-0002262011 identity. Section 419 IPC is for the person who cheats by personation. The accused admittedly did not claim himself to be the some other person nor he assumed any other capacity in the entire transaction as to the admission of daughter of the complainant in MBA Course. Section U/s 419 IPC is not made out against the accused.
Contradictions
31) There are several major contradictions in the present case which are going to the roots of the present case. These contradictions are between witnesses examined in the present case inter-se and between the ocular evidence and the documentary evidence.
32) In the judgment titled as A Shankar vs State of Karnatka (2011) 6SCC 279 it was held by Hon'ble Apex Court that exaggerations per-se do not render the evidence brittle but it can be one of the factor to test the credibility of the prosecution version when the entire evidence is put in a crucible for being tested on touch stone of credibility. It was held that omission which amounts to contradictions in material particulars i.e materially affect the trial or the core of the prosecution of case render the testimony of witness liable to be discredited. On this aspect support could be drawn from judgment titled as Vijay vs State of MP (2010) 8SCC 191; State of UP vs Naresh (2011) 4SCC 324 and Bharam Swaroop vs State of UP (2011) 6SCC
288.
33) The alleged controversy arises between the parties when the daughter of the complainant was not able to join MBA Course. From the testimony of PW1, who is the daughter of the complainant, it is came on record that she was given provisional State Vs Sunil Kapoor; CIS No. 288445/2016; FIR No. 91/2011; PS Subzi Mandi; U/s. 419/420 IPC 19/30 Digitally signed KAPIL by KAPIL KUMAR KUMAR Date: 2022.03.31 16:21:36 +0530 CNR No. DL CT 02-0002262011 admission in the Shri Ram Institute of Management and Technology, Greater Noida in MBA Course and she started doing her classes. She deposed that thereafter she was informed after few days that since her fees was not paid and as such she was not allowed to pursue the course. On this aspect the same is the testimony of PW2 who deposed that the fees of her daughter was not paid for which she was not allowed to continue the course.
34) The prosecution has filed on record the copy of fees receipts which are available on page no. 68 and 69 of the judicial file. Those receipts have not been proved by the prosecution but even than the same can be read against State as these documents were filed with the charge-sheet and prosecution was relying upon these document. Perusal of these fees receipts reveals that the fees of Rs 1,30,000/- was paid on 02.09.2008 only i.e the day on which the complainant and his daughter allegedly went with the accused to take the admission. These fees receipts are directly in contradiction to the testimony of PW1 and PW2. This contradiction is a material one considering the fact that entire controversy was upon the admission only.
35) Ld. Defence Counsel argued that the admission was done provisionally since the result of the daughter of the complainant for BA IIIrd year was awaited. It was argued that since the daughter of the complainant was not able to secure minimum eligibility marks of 50 percent in total and as such she was not allowed to pursue the MBA course. It is submitted that copy of the mark-sheet of the daughter of the complainant is on record which is though not proved by the prosecution deliberately as the same is going against to the case of the prosecution.
State Vs Sunil Kapoor; CIS No. 288445/2016; FIR No. 91/2011; PS Subzi Mandi; U/s. 419/420 IPC 20/30 Digitally signed by KAPIL KAPIL KUMAR KUMAR Date:
2022.03.31 16:21:41 +0530 CNR No. DL CT 02-0002262011
36) The copy of the mark-sheet of the daughter of the complainant is on record. Here only the testimony of PW6 who is the Director of the concerned business college at Greater Noida is relevant. He deposed that the daughter of the complainant was not eligible and as such she was asked to join PGDMA course and to left the MBA course. This fact gains importance as it is came on record that the admission of the daughter of the complainant was finalized, the fees was paid but she was not found eligible later on for pursuing the course of MBA.
37) However, PW1 deposed that the money was handed over to the accused in the institute situated at Greater Noida when her father was carrying the money in the black bag. Contrary to that PW2 deposed that he paid Rs 6 Lacs to the accused at his residence and not at the institute. This is material contradiction as the entire case is for the payment of money to the complainant.
The father and daughter are deposing contrary as to the place where the initial payment was made.
38) Another material contradiction is appearing from the testimony of PW1, PW2 and PW5. PW1 deposed that on 02.09.2008 she along with her father went to the institute and there the accused come along with another person. PW2 deposed that the accused came along with IAS officer, Mr Bhatnagar. Contrary to that the independent witness PW5 who was the Director of Business School at the relevant time deposed in the cross-examination that one ML Sharma came for the admission of PW1 and at that time she was not accompanied by her father. There is no cross-examination of PW5 on this aspect on behalf of the State. Thus PW1 and PW2 deposed that there was Mr Bhatnagar with the accused but PW5 deposed that there was one State Vs Sunil Kapoor; CIS No. 288445/2016; FIR No. 91/2011; PS Subzi Mandi; U/s. 419/420 IPC 21/30 Digitally signed by KAPIL KAPIL KUMAR KUMAR Date:
2022.03.31 16:21:46 +0530 CNR No. DL CT 02-0002262011 ML Sharma. He had not deposed about the presence of the accused or that of IAS Officer, Mr Bhatnagar in the institute. PW5 even contradict the presence of PW2 at the institute on 02.09.2008. By virtue of this glaring contradiction the question mark appears about the presence of IAS officer Mr Bhatnagar, presence of the accused and the presence of PW2 at the spot.
This contradictions is going to the roots of the present case as the entire case is dependent upon the facts as to the admission in the MBA Course. The accused is definitely entitled to have benefit these facts.
FSL Report and the issue of payment of money.
39) Ld. APP for the State argued that the FSL report is supporting the case of the prosecution as it is came in the report that the specimen signatures of the accused matches with the Q1 t Q6 on receipts Ex.PW2/A and Ex.PW2/B. It was argued that this fact proves that the accused took money from the complainant and delivery of the property as required for the offence U/s 420 IPC stands proved.
40) On this aspect Ld. Defence Counsel argued that the FSL result is to be seen under the background facts. It was argued that the accused is the close relative of the complainant and the accused arranged a car loan for the complainant by purchasing the vehicle in his name. It is submitted that the accused gave various papers to the complainant on trust with the impression that these documents will be used for the change in the registration of the vehicle. It was argued that vide testimony of DW1 it is came on record that the vehicle which was in the name of the accused was later on transferred. During the course of arguments, Ld Counsel for accused relied upon judgment titled as State Vs Sunil Kapoor; CIS No. 288445/2016; FIR No. 91/2011; PS Subzi Mandi; U/s. 419/420 IPC 22/30 Digitally signed by KAPIL KAPIL KUMAR KUMAR Date:
2022.03.31 16:21:51 +0530 CNR No. DL CT 02-0002262011 Ramakant Dubey vs State of UP Manu/UP/2374/2013 wherein it was held up by Hon'ble Allahabad High Court that it is unsafe to record conviction solely on the expert opinion without substantial corroboration and the expert opinion is weak type of evidence.
41) The FSL report Ex.PW10/A cannot be read piecemeal. The same is required to be read in the light of the documents which were sent for the expert opinion. The perusal of report reveals that following exhibits were sent to FSL:-
Questioned: Red enclosed writings & signatures marked Q1 to Q11 on two (02) plain sheets dated 12.04.2009 & 09.09.2009 and Q12 to Q15 on one (01) ruled sheet, dated 23.09.2009.
Standards: Red enclosed specimen writings/ signatures marked S1 to S20 of Mr Sunil Kumar Kapoor; S21 to S31 of Ms Anshika and S23 to S37 of Ms Sonia Kapoor.
42) The questioned part reveals that though Ex.PW2/A and Ex.PW2/B were sent to the FSL for the comparison of the signatures and the handwriting of the accused. The shocking part is that the opinion was not taken on the entire document as such. The investigating officer marked only that part as red which bears the name of the complainant or of the accused. As per the case of the prosecution both Ex.PW2/A and Ex.PW2/B is in the handwriting of the accused and bears the signatures of the accused. If that be so than what was the reason for the IO for not taking the opinion as to the handwriting of accused on the entire document. Why only the name of the complainant and name of accused were encircled red and only on those parts the FSL result State Vs Sunil Kapoor; CIS No. 288445/2016; FIR No. 91/2011; PS Subzi Mandi; U/s. 419/420 IPC 23/30 Digitally signed by KAPIL KAPIL KUMAR KUMAR Date:
2022.03.31 16:21:58 +0530 CNR No. DL CT 02-0002262011 was taken? The IO had the handwriting of the accused as specimen which was taken in the court. The prudent approach required was to take the opinion of the handwriting of the entire document and not in the piecemeal. This creates a cloud of doubt on the FSL result. This doubt gets further weight when read with the fact that Ex.PW2/C which allegedly in the handwritings of daughters of the accused was sent to the FSL as a whole but on that document the FSL report received with inconclusive result.
43) The above-mentioned doubt which got fortified with the fact that the entire exhibit Ex.PW2/A was sent to the FSL but not Ex.PW2/B and Ex.PW2/C gives teeth to the arguments of Ld. Defence Counsel that these receipts were taken in the name of the complainant bearing the signatures of the accused for the transfer of the vehicle and only those parts of the receipts were made encircled in red and were sent to the FSL for comparison as the IO was aware that the entire documents Ex.PW2/B and Ex.PW2/C is not in handwriting of accused. The testimony of PW3 and PW4 are not of much credit for the reason that they were the employees of the complainant and their testimony is just similar. Not a word is different in the testimony of PW3 and PW4. This fact is to be read in the light of another glaring fact that the alleged receipts as to the acknowledgment of money by the accused was handed over to the IO after the arrest of the accused i.e. on 27.06.2011. The complaint is of dated 16.07.2010 and the FIR is of 21.04.2011 but for around a year the receipts were not handed over to the IO. The most crucial documents for the prosecution were withhold by the complainant for over a year and this is to be taken note of while deciding the issue of evidentary value of Ex.PW2/A to Ex.PW2/C. State Vs Sunil Kapoor; CIS No. 288445/2016; FIR No. 91/2011; PS Subzi Mandi; U/s. 419/420 IPC 24/30 Digitally signed KAPIL by KAPIL KUMAR KUMAR Date: 2022.03.31 16:22:03 +0530 CNR No. DL CT 02-0002262011
44) This court likes to refrain from making any comment as to whether Ex.PW2/B and Ex.PW2/C is entirely in the handwriting of accused or not but the comment has to be made on the suspicious approach adopted by the IO by not sending Ex.PW2/B and Ex.PW2/C as a whole for comparison but by sending pieces of handwriting appearing on Ex.PW2/B and Ex.PW2/C for expert opinion. When these documents are the best evidences for the prosecution as to the delivery of money by the accused and IO took the aid of expert than it was required that these crucial documents must have been sent for expert opinion as a whole but not in piecemeal and that too at discretion of IO for those words only which bears the name of the complainant and accused.
45) Now, here the judgment relied by Ld. Defence Counsel titled as Ramakant Dubey (Supra) applicable to case in hand is important where it was held that it is unsafe to base conviction solely on expert opinion without substantial corroboration and such type of evidence being opinion evidence was inherently weak and infirm.
46) In the judgment titled as S. Gopal Reddy vs State of Andhara Pardesh Manu/SC/0550/1996 it was held by Hon'ble Apex Court that the evidence of expert is rather a weak type of evidence and court generally do not consider it as offering 'conclusive' proof and therefore not safe to rely upon the same without seeking independent and reliable corroboration. The same was the observations in the judgment titled as Magan Bihari Lal vs State of Punjab Manu/SC/0105/1977 where it was held that it is extremely hazardous to condemn a person merely on the strength of opinion evidence of a handwriting expert. This was further fortified by the observation of Hon'ble State Vs Sunil Kapoor; CIS No. 288445/2016; FIR No. 91/2011; PS Subzi Mandi; U/s. 419/420 IPC 25/30 Digitally signed by KAPIL KAPIL KUMAR Date:
KUMAR 2022.03.31 16:22:09 +0530 CNR No. DL CT 02-0002262011 Apex Court in the judgment titled as Sashi Kumari Vs Subodh Kumar AIR 1964 SC529.
47) In the case in hand the manner in which the opinion of the expert has been sought over the crucial documents does not instill the faith of this court. The approach of the investigating officer was correct till the specimen signatures of the accused were taken before the Ld. MM but the fact the questioned document as whole was not put for opinion of the expert rather in piecemeal is going deep to hit hard as to the evidentary value of these documents and to condemn the accused on the basis of this FSL result.
48) The para number III of the FSL report Ex.PW10/A is of the effect that the expression of the opinion was not possible for the expert on writing/signatures in the red enclosed portions stamped and marked Q7 to Q9 in comparison with the signatures/writing in red enclosed portion similarly stamped S 6 to S10 and S11 to S15. The same is the observation of para numbers IV, V, VI and VII qua the signatures appearing Q10 to Q12, Q13, Q14 and Q15. Q7 and Q8 are the signatures of the accused on the receipt Ex.PW2/B and Q10 and Q11 are the alleged signatures of the accused on the Ex.PW2/A. The signatures of the accused were found not comparable to the specimen signatures of the accused and thus it is not proved that the receipts Ex.PW2/B and Ex.PW2/C bears the signatures of the accused.
49) Since the prosecution failed to prove the signatures of the accused on the alleged acknowledgment receipts of money and thus it is also stands not proved by virtue of these documents that the accused received money. Accordingly, this court is of the State Vs Sunil Kapoor; CIS No. 288445/2016; FIR No. 91/2011; PS Subzi Mandi; U/s. 419/420 IPC 26/30 Digitally signed KAPIL by KAPIL KUMAR KUMAR Date: 2022.03.31 16:22:14 +0530 CNR No. DL CT 02-0002262011 considered opinion that considering the above-mentioned precedents that it is not safe to rely upon this FSL result for giving findings as to the receiving of money by the accused. This FSL result is not of much support for the case of the prosecution rather the same is of no consequence for the prosecution as far as the issue of receiving of money by the accused is considered.
50) The fact that the prosecution is not able to prove the signatures of the accused on Ex.PW2/A and Ex.PW2/B is to be read with the fact that there is no ITR of the complainant on record. There is no banking transaction record is available on file.
It is not proved as to how the complainant who was only earning Rs 4.5 Lacs per annum was having Rs 21 Lacs in cash as the relevant time. The financial capacity of the complainant gains weight in view of the fact that the FSL report is not supporting the case of the prosecution as far the signatures of the complainant on the receipt Ex.PW2/A and Ex.PW2/B. PW3 and PW4 are interested witnesses and are not reliable. In these circumstances failure on the part of the prosecution to bring on record the financial capacity of the complainant as to the payment of Rs 21 Lacs in cash is fatal for the case of the prosecution. Thus the payment of money to the accused is also not proved beyond reasonable doubts.
Conclusion
51) By virtue of above-discussion the following aspects are proved on record-
a) There is huge unexplained delay in the registration of FIR and unexplained delay in giving the first complaint to the police.
b) The parties are pari-delicto. The complainant was also at State Vs Sunil Kapoor; CIS No. 288445/2016; FIR No. 91/2011; PS Subzi Mandi; U/s. 419/420 IPC 27/30 Digitally signed by KAPIL KAPIL KUMAR KUMAR Date:
2022.03.31 16:22:18 +0530 CNR No. DL CT 02-0002262011 fault. Complainant allegedly paid money to achieve unlawful object by illegal means, which is not supported by law.
c) The FSL result is not of much evidentary value considering the manner in which the opinion is sought on questioned documents i.e receipts.
d) The manner of obtaining FSL results as to the exhibits in itself creates dent in the authenticity or the reliability aspect of Ex.PW2/A and Ex.PW2/B. As per FSL result, the signatures of accused not matches with signatures appeared on Ex.PW2/A and Ex.PW2/B.
e) The fact that the prosecution did not make any positive efforts to bring on record anything about alleged IAS officer Mr Bhatnagar allegedly posted in Ministry of Education at that time is also creating doubt as to the aspect of dishonest intention since inception on the part of the accused.
f) The order on charge attained finality where there is nothing as to the criminal conspiracy or common intention on the part of the accused and as such the charge of section U/s 419 IPC bound to fail against the accused as he did not claim himself an IAS officer. Had the prosecution pressed upon the aspect of common intention or of criminal conspiracy than only section 419 IPC could have been imputed upon the accused.
g) Since, receipts of money proved to be not much reliable as signatures of accused not matched with the specimen signatures, it is not proved beyond reasonable doubt that complainant made payment of Rs 21 Lacs in cash to the accused. Consequently the charge for the offence under State Vs Sunil Kapoor; CIS No. 288445/2016; FIR No. 91/2011; PS Subzi Mandi; U/s. 419/420 IPC 28/30 Digitally signed by KAPIL KAPIL KUMAR Date: KUMAR 2022.03.31 16:22:24 +0530 CNR No. DL CT 02-0002262011 section 420 IPC fails.
h) There are material contradictions in the testimony of complainant and his daughter as to manner and place of alleged payment of money, going roots of the present case.
52) In the judgment titled as "S.L.Goswami v. State of M.P"
reported as 1972 CRI.L.J.511(SC) the Hon'ble Supreme Court held:-
"...... In our view, the onus to proving all the ingredients of an offence is always upon the prosecution and at no stage does it shift to the accused. It is no part of the prosecution duty to somehow hook the crook. Even in cases where the defence of the accused does not appear to be credible or is palpably false that burden does not become any the less. It is only when this burden is discharged that it will be for the accused to explain or controvert the essential elements in the prosecution case, which would negative it. It is not however for the accused even at the initial stage to prove something which has to be eliminated by the prosecution to establish the ingredients of the offence with which he is charged, and even if the onus shifts upon the accused and the accused has to establish his plea, the standard of proof is not the same as that which rests upon the prosecution..........................."
53) The onus and duty to prove the case against the accused was upon the prosecution and the prosecution must establish the charge beyond reasonable doubt. It is also a cardinal principle of State Vs Sunil Kapoor; CIS No. 288445/2016; FIR No. 91/2011; PS Subzi Mandi; U/s. 419/420 IPC 29/30 Digitally signed by KAPIL KAPIL KUMAR KUMAR Date:
2022.03.31 16:22:29 +0530 CNR No. DL CT 02-0002262011 criminal jurisprudence that if there is a reasonable doubt with regard to the guilt of the accused the accused is entitled to benefit of doubt resulting in acquittal of the accused. Reference may also be made to the judgment titled as Nallapati Sivaiah v. Sub Divisional Officer, Guntur reported as VIII(2007) SLT 454(SC).
54) In view of above said discussion, the prosecution has failed to prove the guilt of the accused beyond reasonable doubts.
Accordingly, I acquit the accused Sunil Kapoor of the charges framed in the present case. File be consigned to Record Room after compliance of section 437A Cr.PC.
Digitally signed by KAPIL KAPIL KUMAR
KUMAR Date:
2022.03.31
16:22:35 +0530
Announced in open court (Kapil Kumar)
on 31.03.2022 MM-07/Central District
Tis Hazari Courts/Delhi,
State Vs Sunil Kapoor; CIS No. 288445/2016; FIR No. 91/2011; PS Subzi Mandi; U/s. 419/420 IPC 30/30