Delhi District Court
State vs Rajender Shokeen on 15 October, 2024
IN THE COURT OF MS. SAMIKSHA GUPTA
Additional Chief Judicial Magistrate
South West District; Dwarka Courts: New Delhi
Date of Institution : 20.03.2017
Date of Reserving Judgment : 08.10.2024
Date of Judgment : 15.10.2024
In the matter of :
State Vs. Rajender Shokeen & Anr.
FIR No.37/2014
PS : Sector-23 Dwarka
U/s: 420/406/506/34 IPC & 174 A IPC &
Section 4 Prize Chits & Money
Circulation Scheme (Banning) Act, 1978
1. Regn. No. of Case : 2114/2017
2. CNR No. of Case : DLSW02-006262-2017
3. Name of Complainant : Smt. Sunita Sama
W/o Naresh Sama
Flat no. 193, Pocket B
Metro View Apartment
Sector 13, Dwarka
New Delhi
4. Name of accused persons : 1. Rajender Shokeen
S/o Sh. Manphool
2. Poonam Shokeen
W/o Sh. Rajender Shokeen
Both R/o Flat no. 352, Pocket B
Metro View Apartment
Sector 13, Dwarka
New Delhi
State Vs. Rajender Shokeen & Anr.
FIR No.37/2014; PS Sector 23 Dwarka
Page No.1 of 30
Also at VPO Dichaon Kalan
Near Hanuman Mandir
Najafgarh, Delhi.
5. Offence charged under : 420/406/506/34 IPC, 174A IPC
Sections & Section 4 Prize Chits & Money
Circulation Scheme (Banning)
Act, 1978
6. Plea of accused persons : Not guilty.
7. Final Order : Acquitted
State represented by : Sh. Rohit Grewal, Ld. APP for State.
Accused represented by : Sh. Manmohan Yadav, Advocate.
JUDGMENT
1. It is the case of prosecution that accused persons namely Poonam Shokeen and Rajender Shokeen were running a chit fund scheme. During April 2012 to September 2013, accused persons induced complainant Sunita Sama to become a member of their chit funds and cheated her of an amount of Rs. 26,76,125/-.
It is further alleged that complainant entrusted her money for investment in committees, on assurance of high returns, to the accused persons. Further the said entrusted amount was dishonestly misappropriated by accused persons.
Further, during the aforesaid period, accused persons promoted and conducted prize chit and money circulation schemes and also induced other people to enroll as members State Vs. Rajender Shokeen & Anr.
FIR No.37/2014; PS Sector 23 Dwarka Page No.2 of 30 therein and received money in pursuance of the scheme.
Accused persons further threatened to kill complainant.
It is further the case of prosecution that accused persons failed to appear as required by the proclamation published U/s 82 Cr.PC.
Thus, prosecution has set up a case under Section 420/506/406/34 IPC, 174A IPC and under Section 4 of Prize Chits and Money Circulation Scheme (Banning Act, 1978) ("PCMC Act" hereinafter) against both the accused.
2. On the basis of investigation carried out by police, charge sheet was filed in Court and copy of the same was supplied to both accused persons.
3. On the basis of charge sheet, charge for committing offences punishable under Sections 420/406/506/34 IPC, 174A IPC and under Section 4 of PCMCS Act was framed against both accused persons to which they pleaded not guilty and claimed trial.
4. In order to prove its case, the prosecution has examined five witnesses, who are as under:
Sr. No Name Nature of Evidence 1. PW-1/Sunita Sama Complainant State Vs. Rajender Shokeen & Anr. FIR No.37/2014; PS Sector 23 Dwarka Page No.3 of 30 2. PW-2/Naresh Sama Husband of complainant 3. PW-3/Ct. Girraj During investigation with IO 4. PW-4/SI Dharmendra 1st IO 5. PW-5/Insp. Hansraj Swami 2nd IO 5. Prosecution has relied upon the following documents: S. Exhibits Documents No. 1. PX1 FIR 2. PX2 Sale deed dated 28.03.2005 3. PX3 Khatauni no. 461/466 4. PW 1/A Complaint
5. PW1/B Reply to notice u/s 91 Cr.PC dated 02.03.2017
6. PW 1/C Photocopy of the documents running into 13 pages
7. PW 1/D Seizure memo dated 06.12.2017
8. PW 2/A Arrest memo of accused Rajender Shokeen
9. PW 2/B Personal search memo of accused Rajender Shokeen
10. PW 5/A Application of IO for NBW against accused persons
11. PW 5/B Application of IO for 82 Cr.PC against accused persons
12. PW 5/C Order of Ld. MM declaring accused persons as absconder
13. PW 5/D Order of the court to seal the Flat no. 352, Metro View Apartment, Sec-13, Dwarka, Delhi.
14. PW 5/E Application of IO for attachment of the immovable State Vs. Rajender Shokeen & Anr.
FIR No.37/2014; PS Sector 23 Dwarka Page No.4 of 30 property of accused persons before Ld. District collector, Kapashera
15. PW 5/F Disclosure statement of accused Rajender Shokeen
16. PW5/G Application of IO seeking 2 days police custody of & accused persons and search warrant of property Flat PW5/H no 352 , Metro View Apartment, Sec 13, Dwarka
17. PW5/I Order of Court allowing applications & PW5/J
18. PW5/K Search memos & PW5/L
19. PW5/M Notice U/s 91 Cr.PC
20. PW5/N Supplementary disclosure statement of accused Rajender Shokeen
21. PW5/O Arrest memo of accused Poonam Shokeen
22. PW5/P Personal search memo of accused Poonam Shokeen
23. PW5/Q Seizure memo of original receipts
24. PW5/R Specimen handwriting of accused Poonam Shokeen
25. PW5/S DD no. 6 dated 16.03.2016
26. PX Statement of loan account
6. Thereafter, PE was closed and statement of accused persons were recorded under Section 313 Cr.PC wherein they stated that they were innocent and were falsely implicated in the present case.
7. Arguments heard. Record perused.
8. The evidence of prosecution witnesses in the present State Vs. Rajender Shokeen & Anr.
FIR No.37/2014; PS Sector 23 Dwarka Page No.5 of 30 case is discussed hereunder:
(i) PW1 Sunita Sama has deposed that accused persons were her neighbours and they used to visit her house frequently. Both accused persons told her about investment in committees for earning profit. Both accused persons induced her by giving false assurances of making good profits if she invested in the committees with them. Therefore, she became member of small committees. In 2012, accused persons told her to invest in big committees as her daughter was to get married. Thereafter, she invested in committees of Rs.10,00,000/-, Rs.12,00,000/-, Rs.20,00,000/- and half of other committee of Rs.10,00,000/-.
The returns were to be given in April 2013 but accused persons did not return her money even on asking repeatedly. In May 2013, both accused locked their house and left. Since there were many complaints against them, they were arrested. Accused persons also threatened to kill her if she asked for money. Complaint against accused persons was given in 2013 and IO recorded her statement. She also gave four hand written receipts/parchi to police which were written and signed by Poonam Shokeen. She also handed over some other documents pertaining to committees run by accused persons.
During cross-examination, she admitted that her complaint Ex.PW-1/A was written by her husband. She also admitted that except the documents given to the IO during investigation, she did not have any other documents to show that State Vs. Rajender Shokeen & Anr.
FIR No.37/2014; PS Sector 23 Dwarka Page No.6 of 30 accused persons were running committees. Her monthly household expenditure in 2012 was about Rs.50,000 to Rs.60,000/- and she used to pay around Rs.1.5 - 2.5 lakhs to accused towards all the committees in which she was a member. She further explained that she had rental income of around Rs.60,000-70,000/- per month. She stated that her elder son was a doctor and that her daughter also used to give coaching classes. She denied the suggestion that accused persons did not run any committees. She denied the suggestion that she had not made any payment towards such committees.
(ii) PW-2 Naresh Sama (husband of complainant/PW1) deposed that accused persons were his neighbours and they used to visit his house frequently. Both accused persons told his wife about investment in committees for earning profit. Both accused persons induced her by giving false assurances of making good profits if his wife invested in the committees with them. Therefore, his wife became member of small committees. Since they needed money for their daughter's marriage, his wife invested in big committees of Rs.10,00,000/-, Rs.12,00,000/-, Rs.20,00,000/- and half of other committee of Rs.20,00,000/-. The committee of Rs.10,00,000/- was completed in April 2013 but accused persons did not return their money even on asking repeatedly. In May 2013, both accused locked their house and left. Five other complainants lodged complaints State Vs. Rajender Shokeen & Anr.
FIR No.37/2014; PS Sector 23 Dwarka Page No.7 of 30 against them and accused persons assured them to return their money and also compromised with those complainants. Accused persons also told the present complainant to not give complaint against them. Accused persons finally refused to make payment in November 2013 and also threatened them. An amount of Rs.26,76,125/- was owed by accused persons to the complainant. Complaint was given in PS Dwarka North. Subsequently, he came to know that accused persons would come for a function in village Dichaun Kalan. IO Hansraj was informed and he prepared a raiding party. At about 05:30 p.m., accused Rajender Shokeen was arrested and IO recorded his statement. He correctly identified both accused present in Court.
During cross-examination, he admitted that amount was given by his wife to accused persons but he did not give any amount to accused persons. He had visited Dehradun in March 2016 and IO had reached after him. When he reached the house of accused persons at Dehradun along with IO, accused persons had left that house by then. He denied the suggestion that accused persons were not running any committees.
(iii) PW-3 Ct. Giriraj deposed that he joined investigation along with IO SI Hansraj on 23.01.2017. IO executed search warrant at flat No. 352, Metro View Apartment, Pocket-B, Sector 13, Dwarka, but nothing was found during the search. Similarly, nothing was found on execution of search State Vs. Rajender Shokeen & Anr.
FIR No.37/2014; PS Sector 23 Dwarka Page No.8 of 30 warrant at house No. 457, Dichaun Kalan. No clue was found regarding co-accused Poonam Shokeen. Accused Rajender Shokeen was taken into custody and statement of this witness was recorded by IO.
During cross-examination, he stated that accused Rajender Shokeen was taken from PS to Chowki for joining investigation on 23.01.2017 at about 10/11 a.m.
(iv) PW-4 SI Dharmendra deposed that further investigation of this case was marked to him on 22.11.2014. NBWs were issued against both accused to apprehend them but they were not found. On 23.04.2015, he deposited the present case with MHC (R) of PS Dwarka Sector 16 since he was transferred.
During cross-examination, he stated that he regularly visited the house of accused persons. There was no DD entry regarding attempts made by him for service of notice upon accused persons for joining of investigation. House of accused persons was found locked whenever he visited. He could not tell the exact date and month of his visit to the house of accused. He did not visit the house of accused persons at Dichaun Kalan, Najafgarh.
(v) PW-5 Inspector Hansraj Swami deposed that further investigation of this case was marked to him on State Vs. Rajender Shokeen & Anr.
FIR No.37/2014; PS Sector 23 Dwarka Page No.9 of 30 14.05.2015. It was found that NBWs against accused persons were issued. He tried to search the accused persons but they were not found. Proceedings under Section 82 Cr.PC were initiated against accused persons on his application and both accused were declared absconders vide order of Ld. MM dated 20.10.2015. Thereafter, proceedings under Section 83 Cr.PC were initiated.
On 22.01.2017, PW-2 Naresh Sama informed him that accused persons will come to their native village Dichaun Kalan to attend a marriage function. Thereafter, raiding party was prepared and PW-2 also accompanied them. Upon his identification, accused Rajender Shokeen was apprehended, interrogated and arrested. Search was made for co-accused Poonam Shokeen but she was not found. He recorded the statement of PW Naresh Sama. Further investigation was done. Search warrants were taken upon application being allowed in Court. No recovery was made pursuant to search at both the houses. Statements of witnesses and victim were recorded by him. It was found that 15 FIRs were lodged against both accused persons on similar facts. Charge sheet against Rajender Shokeen was filed in March 2017.
Accused Poonam Shokeen surrendered before Court on 21.11.2017. She was arrested and investigation was conducted. Nothing was recovered during her PC remand. Complainant Sunita Sama met him and gave him four hand State Vs. Rajender Shokeen & Anr.
FIR No.37/2014; PS Sector 23 Dwarka Page No.10 of 30 written slips on 06.12.2017 which were seized vide seizure memo. All such documents were sent to FSL after taking specimen handwriting of Poonam Shokeen. Investigation was completed and supplementary charge sheet was filed against her.
During cross-examination, he stated that NBWs against accused persons were got issued for Metro View Apartment, Sector 13, Dwarka and thereafter at their permanent address i.e house No. 457, Dichaun Kalan, Najafgarh. DD entry of departure was made at PS when he had gone to search accused persons at both aforesaid addresses. He also searched for accused persons at their relatives' addresses at Barwala, Delhi and Dehradun and DD entry vide DD No.6 dated 16.03.2016 was made in this regard. He visited Dehradun during investigation in March 2016 and November 2017 but DD entry was not placed on record. In March 2016, husband of complainant did not accompany him during search of accused persons at Dehradun. He denied the suggestion that investigation was conducted and charge sheet was prepared while sitting at PS and that accused persons were falsely implicated.
9. Analysis & Findings:
Charge under Section 4 PCMC Act:
I. Charge under Section 4 of PCMC Act has been framed against both accused.
State Vs. Rajender Shokeen & Anr.
FIR No.37/2014; PS Sector 23 Dwarka Page No.11 of 30 II. It is alleged against accused persons that they were running committees whereby they induced several people to enroll as members and invest various sums in pursuance of aforesaid committees. The prosecution has alleged that running of such committees is prohibited under PCMC Act and accused persons have committed offence punishable under Section 4 of PCMC Act.
Per contra, it is the version of accused persons that they were not running committees as alleged by the prosecution. They also denied that they induced people to invest in committees with assurances of high returns and denied receiving any money on that account.
III. Section 3 of PCMC Act prohibits any person from promoting and conducting any prize chit or money circulation scheme. Section 4 of this Act makes violation of Section 3 a punishable offence.
Section 2 is the definition clause. S.2(e) defines 'prize chit' as 'any transaction or arrangement by whatever name called, under which a person collects whether as a promoter, foreman, agent or in any other capacity, monies in one lump sum or in installment by way of contributions or subscriptions or by sale of units, certificates or other instruments or in any other manner or as membership fees or admission fees or service State Vs. Rajender Shokeen & Anr.
FIR No.37/2014; PS Sector 23 Dwarka Page No.12 of 30 charges to or in respect to any savings, mutual benefit, thrift, or any other scheme or arrangement by whatever name called, and utilizes the monies so collected or any part thereof or the income accruing from investment or other use of such monies for:
(i) giving or awarding periodically or otherwise to a specified number of subscribers as determined by lot, draw or in any other manner, prizes or gifts in cash or in kind, whether or not the recipient of the prize or gift is under a liability to make any further payment in respect of such scheme or arrangement, or
(ii) refunding to the subscribers or such of them as have not won any prize or gift, the whole or part of the subscriptions, contributions or other monies collected, with or without any bonus, premium, interest or any other advantage by whatever name called, on the termination of the scheme or arrangement, or on or after the expiry of the period stipulated therein;
but does not include a conventional chit.' IV. The aforesaid definition of 'prize chit' specifically states that it does not cover 'conventional chit' which is defined as per Section 2(a) of the Act, to mean "..a transaction whether called chit, chit fund, kuri or by any other name by or under which a person responsible for the conduct of the chit enters into an agreement with a specified number of persons that every one of them shall subscribe a certain sum of money by way of periodical installments for a definite period and that each State Vs. Rajender Shokeen & Anr.
FIR No.37/2014; PS Sector 23 Dwarka Page No.13 of 30 subscriber shall, in his turn, as determined by lot or by auction or by tender or in such other manner as may be provided for in the chit agreement, be entitled to a prize amount."
V. Thus, the Act clearly prohibits the conduct of prize chits but conventional chits are excluded from the operation of Section 3/4/5 of PCMC Act.
Hon'ble Supreme Court has held in Registrar of Firms, Societies and Chits, Uttar Pradesh vs. Secured Investment Company, Lucknow and Anr, 1988 AIR 492, that conventional chits are not prohibited under the Act as only prize chits are banned under Section 3 of the Act. The features of conventional chits have been explained as:
"It was meant for mutual benefit in which some people joined to save and others to borrow. What distinguishes the chit fund, however, from other financial transactions is that it connects the borrowing class directly with the lending class. The pooled saving is lent out to the same group of contributors. A chit fund collects the savings of the members by periodical subscriptions for a definite period. At the same time, it makes available the pooled savings to each member by turn as agreed by them, The collected fund may be given either by drawing lots or by bidding. Lots are drawn periodically and the member whose name appears on the winning chit gets the collection without any deductions. He,however, continues to pay his subscriptions but State Vs. Rajender Shokeen & Anr.
FIR No.37/2014; PS Sector 23 Dwarka Page No.14 of 30 his name is removed from subsequent lots. Thus every member gets a chance to receive the whole amount of the chit. This is generally the features of a conventional chit. It is operated without a professional promoter or manager and without any risk of loss of capital."
In the same judgment, the Hon'ble Supreme Court has explained 'Prize Chit' as:
"Leaving aside the verbiage, if we rewrite the definition which reeks of simplicity, it runs like this: Prize chit includes a scheme by which a person in whatever name collects moneys from individuals for the purpose of giving prizes and refunding the balance with or with out premium after the expiry of a specified period."
VI. Thus, a conventional chit, as opposed to a prize chit, has a finite numbers of pre-determined members and each member has to contribute to the subscription for the entire term, irrespective of the draw of lot in his favour at any stage of the agreed term of the chit. All the members of the conventional chit subscribe the same amount for the entire duration and every member draws the lot in his favour only once during the term of the chit.
On the other hand, in a prize chit the members can join/subscribe the chit at an intermediate stage and may still win the prize chit without paying the same subscription amount as State Vs. Rajender Shokeen & Anr.
FIR No.37/2014; PS Sector 23 Dwarka Page No.15 of 30 other members. A prize chit need not to be drawn in favour of all subscribers at least once, and after one or more draws of prize, the chit can be closed and the subscription money returned to the members. Further, once a member receives the prize chit in his favour he is under no obligation to continue to pay his part of the subscription and may opt out of the chit.
VII. In light of the aforesaid distinguishing features between conventional and prize chit, the facts of the present case are discussed as under:
In the present case, the prosecution was required to lead cogent evidence to show that the accused persons were running prize chits or money circulation schemes. They were further required to demonstrate by way of cogent evidence that acts of accused persons in running chit fund scheme were out of the purview of conventional chits.
VIII. The evidence of public witnesses and police witnesses along with material on record has to be analyzed in this scenario.
The evidence of PW 1 complainant Sunita Sama is to the effect that accused persons induced her by giving false assurances of good profits if she invested in committees run by them. Consequently, she became member of committee of Rs.10 lakhs, Rs.12 lakhs, Rs.20 lakhs and half share in another State Vs. Rajender Shokeen & Anr.
FIR No.37/2014; PS Sector 23 Dwarka Page No.16 of 30 committee of Rs.10 lakhs. She further stated that she did not have any record except receipts written and signed by accused Poonam Shokeen (already given to IO during investigation) to show the payments made towards committees to accused persons. Perusal of these receipts and documents Ex.PW1/C (colly) shows that these are handwritten documents containing what appears to be dates and amounts.
Similarly, the evidence of PW2 Naresh Sama (husband of complainant) is to the effect that his wife became member of some committees run by accused persons.
PW5 IO Insp.Hansraj Swami had deposed that he had conducted further investigation in the present case. He also stated that nothing was recovered at the instance of accused persons to show that accused were indeed running chit funds/committees and that the witnesses/victims had invested in such committees. However, some documents (handwritten receipts and calculations Ex.PW1/C (colly) were given by complainant to IO. Bare perusal of these documents shows that these are handwritten documents containing what appears to be dates and amounts.
IX. Perusal of evidence of public witnesses (complainant and her husband) shows that their testimonies are general in nature and are to the effect that accused persons were running committees and that they had invested in those. No State Vs. Rajender Shokeen & Anr.
FIR No.37/2014; PS Sector 23 Dwarka Page No.17 of 30 public witness has deposed about the modus operandi of such committees and that how were members added and what was the mode of subscription. No other subscriber of the chit has been arrayed as prosecution witness in this case. Further, complainant has not deposed whether or not the members of chit could be added any time in between the continuance of one chit. Further, complainant has not been able to depose about the exact duration or exact number of members etc. pertaining to any committees.
Further, IO has not conducted any investigation to show the nature of scheme allegedly run by accused persons. He has simply stated that nothing except some receipts/handwritten documents Ex.PW1/C(colly) was recovered from accused persons. Thus, while public witnesses (complainant and her husband) have deposed that accused were running committees in which complainant had subscribed and invested, there is no evidence on record to show that the said schemes were in the nature of conventional chits, prize chits or money circulation scheme.
In view of the various ambiguities as to the nature of scheme run by accused persons, prosecution has failed to prove beyond reasonable doubt that accused persons were running schemes in the nature of prize chits and money circulation schemes, which are banned as per PCMC Act. Thus, both accused persons are acquitted under Section 4 of PCMC Act.
State Vs. Rajender Shokeen & Anr.
FIR No.37/2014; PS Sector 23 Dwarka Page No.18 of 30 Charge under Section 420 IPC:
I. Charge under Section 420/34 IPC has been framed against both accused persons. It is alleged against accused persons that they were running committees whereby they induced several people to enroll as members and invest various sums in such committees. It is further averred that complainant Sunita Sama was dishonestly induced by accused persons to invest Rs.26,76,125/- in the committees which amount was not returned to her and thereby cheated by accused persons.
II. To prove commission of offence under Section 420 IPC, prosecution is required to prove the following ingredients:
(i) a person must commit the offence of
cheating under Section 415; and
(ii) the person cheated must be dishonestly
induced to;
(iii) deliver property to any person; or
(iv) make, alter or destroy valuable security or
anything signed or sealed and capable of
being converted into valuable security
III. It is thus paramount that in order to attract the
provisions of Section 420 IPC, the prosecution has to not only State Vs. Rajender Shokeen & Anr.
FIR No.37/2014; PS Sector 23 Dwarka Page No.19 of 30 prove that the accused has cheated someone but also that by doing so, he has dishonestly induced the person who is cheated to deliver property.
There are, thus, three components of this offence:
(i) deception of any person,
(ii) fraudulently or dishonestly inducing that person to
deliver any property to any person, and
(iii) mens rea or dishonest intention of the accused at the
time of making the inducement.
IV. It is also trite law that for the offence of cheating,
fraudulent/ dishonest intention must exist from the inception when the promise or representation was made by accused. Further, a statement of fact is deemed 'deceitful' when it is false, and is knowingly or recklessly made with the intent that it shall be acted upon by another person, resulting in damage or loss.
V. The evidence brought on record in the present case has to be considered on the aforesaid parameters of law.
VI. Complainant Sunita Sama has deposed that both accused persons were their neighbours for almost 10 years and they were fairly acquainted with each other. Accused persons represented to the complainant that she will earn good profit if she invested in small committees run by them. Later, in 2012, State Vs. Rajender Shokeen & Anr.
FIR No.37/2014; PS Sector 23 Dwarka Page No.20 of 30 accused persons induced her to invest in big committees. PW2 Naresh Sama has also deposed that accused persons painted a lucrative picture of high returns if they invested in committees run by them. After complainant had invested substantial amounts in 4 committees with assurance of good returns, they found out that accused persons had fled away.
In common parlance, deception implies intentionally leading someone to believe something that is not true. This deliberate inducement may be direct or indirect and by words or conduct. It may be expressed or implied in the nature of transaction.
In the present case, complainant has categorically stated that accused persons represented to her that investment in committees run by them would fetch the complainant good returns after which complainant became member of various committees. Further, these witnesses have deposed that despite these promises of high returns, accused left their address. They also compromised the matters with numerous other complainants. PW Insp Hansraj has deposed that accused persons were involved in 15 similar FIRs. This subsequent conduct of accused persons further lends credence to the fact that their intention was to merely induce the persons to invest in committees without any intention of actually honouring this commitment. This shows that the intention of accused persons from the inception was to collect investments from people after State Vs. Rajender Shokeen & Anr.
FIR No.37/2014; PS Sector 23 Dwarka Page No.21 of 30 giving false assurances. It is also evident from the testimony of witnesses and material on record that complainant was influenced by representations made by accused persons leading her to subsequently invest in these committees.
VII. To fasten culpability under Section 420, prosecution was further required to prove delivery of property/money by complainant to accused persons. Perusal of record and testimony of complainant does not inspire the confidence of Court on the aspect of delivery of property.
VIII. Complainant Sunita Sama became member of committees of Rs.10,00,000/-, Rs.12,00,000/-, Rs.20,00,000/- and half of other committee of Rs.10,00,000/. She has further stated to have paid Rs.1.5 lakh - 2.5 lakh per month towards her investment in all committees in which she was member. She has not clarified regarding the number of installments paid or for what duration were the investments made.
During her cross examination, she had deposed that her monthly household expenditure was about Rs.50,000- Rs.60,000/- in 2012. She had also clarified that she had various sources of income i.e. rental income of around Rs.60,000/- to Rs.70,000/- and that two of of her children were earning well.
In response to notice of IO under Section 91 CrPC, some handwritten documents containing dates and amounts and State Vs. Rajender Shokeen & Anr.
FIR No.37/2014; PS Sector 23 Dwarka Page No.22 of 30 some documents containing amounts and calculations were given by complainant to IO (Ex.PW1.C (colly)). Such documents were sent by IO to FSL. Vide FSL result dated 31.05.2018, no definitive opinion was given qua the handwriting of accused Poonam Shokeen. It was also stated that further attempt could be made if more specimen writings of contemporary period of accused were provided.
Further, complainant has clarified during her cross examination that she did not have any other documents to corroborate her version. Record also shows that vide report of search/ search memo Ex.PW5/K and Ex.PW5/L, IO has stated that nothing incriminating was recovered from the house of accused persons.
Complainant also could not produce any receipt etc. to show that any such monthly payments of approximately Rs.1.5 lakh - 2.5 lakh were made. At least, the witness could have produced her pass book or account statement to show availability of funds for such hefty monthly payment of Rs.1.5 lakh to 2.5 lakh.
IX. Record also shows that Ex.PW1/C (colly) also contains some receipts on which names Vandana and Dolly are written. Since FSL result does not corroborate prosecution version, IO was required to conduct proper and detailed investigation. It is pertinent to state that IO/ Insp. Hansraj Swami State Vs. Rajender Shokeen & Anr.
FIR No.37/2014; PS Sector 23 Dwarka Page No.23 of 30 has deposed that almost 15 FIRs were filed against accused persons on similar allegations. However, IO has not recorded statements of any other person who was lured by accused persons to invest in committees and was defrauded by them. Only the complainant and her husband have been examined by the IO. No public witness has been cited who could have testified that complainant was member of the same committees in which he had invested. None of the prosecution witnesses have deposed that complainant paid any amount to accused persons in their presence. Considering such shoddy investigation and consequential lack of convincing evidence, benefit of doubt ought to be given to accused persons.
X. Thus, while the prosecution has successfully proved the ingredients of deception and dishonest inducement, it has failed to prove delivery of property/money to accused persons on account of such inducement. Accordingly, charge under Section 420 IPC has not been proved beyond reasonable doubt against accused persons.
Charge under Section 406 IPC:
I. Charge in alternative under Section 406/34 IPC has also been framed against both accused. It is alleged against accused persons that they were running committees in pursuance State Vs. Rajender Shokeen & Anr.
FIR No.37/2014; PS Sector 23 Dwarka Page No.24 of 30 of which complainant Sunita Sama entrusted them with an amount of Rs.26,76,125/- which was subsequently dishonestly misappropriated by accused persons.
II. To prove commission of offence under Section 406 IPC, prosecution is required to prove the following ingredients:
(i) accused was entrusted with property or dominion over property; and
(ii) accused has dishonestly misappropriated/used/ disposed off the entrusted property; and
(iii) such misappropriation/use/disposal of property by accused is in violation of law/ contract regarding discharge of trust.
III. To prove the charge under Section 406 IPC, the first aspect required to be proved by prosecution was entrustment of amount of approximately Rs.26 lakhs as alleged to the accused persons by the complainant. It is also clear from a reading of the provision that the ownership or beneficial interest in the property in respect of which criminal breach of trust is alleged to have been committed, must be in some person other than the accused and the latter must hold it on account of some person or in some way for his benefit. It is only after this aspect is proved that evidence of dishonest misappropriation/ conversion is required to be adduced.
State Vs. Rajender Shokeen & Anr.
FIR No.37/2014; PS Sector 23 Dwarka Page No.25 of 30 IV. The discussion in above segment of 'Charge under Section 420 IPC (Paragraphs VIII and IX)' regarding delivery of property is on the same aspect. The same is not being repeated for the sake of brevity. As discussed above, delivery of property (an amount of approximately Rs.26 lakhs) in this case from complainant to accused was not proved by prosecution. For similar reasons as discussed above, the fact of entrustment of property to accused also remains unproved.
V. Accordingly, charge under Section 406 IPC also remains unsubstantiated against accused persons.
Charge under Section 506 IPC:
I. Charge under Section 506 IPC has also been framed against the accused persons. To prove the offence under S.506 IPC, prosecution was required to prove that accused had threatened the complainant to cause death or grievous hurt. Further, it was to be proved that such threats caused alarm to the complainant. However, the complainant has not been able to prove the offence under S.506 against the accused beyond reasonable doubt.
II. Before an offence of criminal intimidation is made out, it must be established that an accused had an intention to State Vs. Rajender Shokeen & Anr.
FIR No.37/2014; PS Sector 23 Dwarka Page No.26 of 30 cause alarm to the complainant. Mere threats given by the accused not with an intention to cause alarm to the complainant would not constitute an offence of criminal intimidation. Intention of the accused has to be gathered from the act complained of and the circumstances under which it is committed. Intention, being a state of mind, cannot be proved by direct evidence. It has to be inferred from facts and circumstances of a given case.
III. In the entire material brought on record, there is no whisper that the threats given to complainant actually caused any alarm to her or her husband at any point of time. Accordingly, charge under Section 506 IPC has not been proved beyond reasonable doubt against accused persons.
Charge under Section 174A IPC:
I. Charge under Section 174A was also framed against accused persons. It is alleged that despite issuance and service of proclamation under Section 82 CrPC, accused persons failed to appear in court on the specified date. Accordingly, they were declared absconders vide order of Ld. MM dated 20.10.2015.
II. Proceedings under Section 83 CrPC were initiated against the accused persons after they were declared absconders.
State Vs. Rajender Shokeen & Anr.
FIR No.37/2014; PS Sector 23 Dwarka Page No.27 of 30 Subsequently, accused Rajender Shokeen was arrested and co accused Poonam Shokeen surrendered in Court after which further proceedings were done. Record further shows that both original chargesheet forwarded on 17.03.2017 and supplementary chargesheet forwarded on 11.01.2018 have invoked Section 174A against accused persons.
III. It is also clear from record that there is no written complaint on record as contemplated in Section 195(1)(a)(i) CrPC. Record also shows that charge under Section 174A was framed along with other charges against accused persons vide order dated 07.05.2018.
IV. Section 195 CrPC bars cognizance by Court of offence under Section 174A (among other offences) unless there is a written complaint of concerned public servant (in this case, the concerned Court which declared accused persons as absconders) or of some public servant to whom the former public servant is administratively subordinate.
V. It is pertinent to state that the introduction of Section 174-A in IPC was accompanied by a corresponding amendment in Schedule 1 of CrPC. This amendment classified the aforementioned offence as cognizable. However, Section 195 of CrPC was consciously not amended correspondingly to exclude State Vs. Rajender Shokeen & Anr.
FIR No.37/2014; PS Sector 23 Dwarka Page No.28 of 30 Section 174-A from its ambit, which has now been done in Section 215 of Bhartiya Nagrik Suraksha Sanhita, 2023.
VI. In the recent judgment of Honble Delhi High Court in Amandeep Gill v. State of NCT (CrlMC.5219/2024 and CrlMA.20512/2017 dated 19.09.24), the decision of Manish Goomer v. State of Honble Delhi High Court (CrlMC.4208/2011 and CrlMA.19453/2011 dated 04.01.12) was discussed and it was observed that the same did not state the correct position of law. It was further observed in Amandeep Gill (supra) that the omission to exclude Section 174-A from the scope of Section 195 of CrPC cannot be characterized as a mere oversight, especially in light of the deliberate amendment in Schedule-1, while Section 195 CrPC was conspicuously left untouched.
VII. It is further settled law that one cannot assume a careless omission by the legislature and proceed to fill it in by judicial interpretation, a casus omissus. In any event the rule of strict and literal interpretation of statutes shall prevail.
VIII. The position of law is thus that the public servant concerned must lodge a complaint, based on which only, cognizance of offence under Section 174A can be taken. Admittedly, in the present case, no complaint in writing has been made by the Court or by any of its Officers authorized to do so State Vs. Rajender Shokeen & Anr.
FIR No.37/2014; PS Sector 23 Dwarka Page No.29 of 30 whose order has allegedly been disobeyed by the accused persons. Thus, the proceedings whereby accused persons are sought to be tried under Section 174A are void ab initio. Accordingly, in the absence of compliance of mandatory provision under Section 195 CrPC, accused persons are acquitted for offence punishable under Section 174A IPC.
10. In view of the aforesaid discussion, prosecution has failed to prove beyond reasonable doubt its allegations against the accused. Accordingly, accused Rajender Shokeen & Poonam Shokeen are acquitted of the offences charged under Sections 420/406/506/34 IPC & 174 A IPC & Section 4 Prize Chits & Money Circulation Scheme (Banning) Act, 1978.
Digitally signed by Pronounced in open Court Samiksha Samiksha Gupta Gupta Date: 2024.10.15 on 15th October, 2024 18:03:52 +0530 SAMIKSHA GUPTA Additional Chief Judicial Magistrate Dwarka Courts: New Delhi 15.10.2024 State Vs. Rajender Shokeen & Anr. FIR No.37/2014; PS Sector 23 Dwarka Page No.30 of 30