Delhi District Court
State vs . Praveen on 29 August, 2018
IN THE COURT OF MS. SHIVALI SHARMA
CHIEF METROPOLITAN MAGISTRATE:EAST
KARKARDOOMA COURT : DELHI
FIR No. : 189/99
PS : Geeta Colony
u/S : 420/34 IPC & 78/79 Trade & Merchandise Marks Act
STATE VS. PRAVEEN
JUDGMENT
A Sr. No. of the case 4610/16
B Name of the complainant Jagdish Gupta
C Name of the accused & his 1. Praveen Kumar
parentage and address S/o Chandan Singh
R/o 5/3, Gali No. 9, Geeta Colony.
2.Devender
S/o Sh. Gajraj Singh
R/o 20436, Prem Vihar, Karawal
Nagar
3.Mehboob Khan
S/o Sh. Saluddin
R/o F7, Jagat Puri Parwana Road
4.Raju (PO)
S/o Sh. Bharat Singh
R/o Surya Nagar Ps Vivek Vihar
5. Mohd. Yameen ( Discharged vide
order dated16.05.12)
S/o Allah Mehar
R/o H No. 12, A/1S, Vijay Mohalla,
Maujpur.
6.Shiv Chander (PO)
S/o Sh. Anoop Das
R/o Gram Meghona, Thana Aloli,
District Khagaria, Bihar
7.Jai Pal (PO)
S/o Sh. Maloo Singh
R/o Ucha Gaon Roostam Pur,
Page No. 1 FIR No. 189/99
A Sr. No. of the case 4610/16
District Bulandsehar.
8. Anil Singh (PO)
S/o Ladoo Lal Singh
R/o Surya Nagar, Vivek Vihar
9 Padam Singh (PO)
S/o Gaj Raj Singh
R/o Village, Kakerka PS Modi Nagar
D Offence Complained of U/s 420/34 IPC & U/s 78/79 of the
Trade & Merchandise Marks Act 1958
E Date of commission of 13.01.1999
offence.
F Date of Institution 17.02.2001
G Offence Charged U/s 420/34 IPC & U/s 78/79 of the
Trade & Merchandise Marks Act 1958
H Plea of the accused Pleaded not Guilty
I Order Reserved on 29.08.2018
J Date of Pronouncement 29.08.2018
K Final Order Acquittal
BRIEF STATEMENT OF THE REASONS FOR THE DECISION PROSECUTION'S CASE
1. The case of the prosecution is that accused Praveen and other coaccused persons in furtherance of their common intention supplied 20 bags of inferior/mixed cement to complainant Jagdish Chandra Gupta inducing him to believe that the same were of Shaktiman, J.K.Super and 43 Grade and thus they are alleged to have cheated the complainant and thereby caused wrongful loss to them and wrongful gain to themselves. Thereby all the accused persons are alleged to have committed offence of Cheating Page No. 2 FIR No. 189/99 punishable u/s 420/34 IPC.
2. It is further alleged that pursuant to the complaint of complainant a raid was conducted at premises of accused Praveen at House no. 3, Block no. 5, Gali No.9, Geeta Colony, Delhi on 13.01.1999 at 5.00 AM in which all the accused persons were found in possession of the adulterated cement mix/ inferior quality cement for the purpose of sale containing false trademark of Sarv Shaktiman, JK Super Grade
43. Thus, they are alleged to have committed offences punishable u/s 78/79 of the Trade & Merchandise Marks Act 1958.
3. On the basis of these allegations and the complaint of complainant Jagdish (Ex. PW5/A) present FIR No. 189/99 (Ex. PW1/A) PS Geeta Colony under section 411/420 IPC was lodged on 13.10.1999. CHARGE
4. After investigation, chargesheet under section 173 Cr. P.C was filed on 17.02.2001.
5. On the basis of the chargesheet and after compliance of Sec.207 Cr.P.C., a charge for the offence punishable under section 420 IPC and 78/79 of The Trade and Merchandise Marks Act was framed against 5 accused persons namely Praveen Kumar, Devender, Mehboob Khan, Shiv Chander and Mohd Yameen and read out to them to which they pleaded not guilty and claimed trial on 21.12.2010.
6. Other accused persons namely Raju, Jai Pal, Anil Singh and Padam Singh were already PO at the time of framing of Charge.
7. Vide order dated 16.05.2012 accused Mod. Yameen was discharged by Ld. Sessions Court.
8. Accused Shiv Chander was also declared a PO vide order dated Page No. 3 FIR No. 189/99 18.11.2014.
9. Thus, the trial has been completed qua accused Praveen, Mehboob Khan & Devender.
PROSECUTION EVIDENCE
10. To bring home the guilt against the accused persons prosecution has examined 14 witnesses in all:
11. PW1 ASI Rishi Pal is a formal witness being the duty officer who proved the registration of the present FIR as Ex. PW 1/A and endorsement made on the rukka as Ex PW1/B.
12. PW2 ASI Rajbir Singh is again a formal witness being a witness to the arrest of accused Mohd. Yameen and his disclosure. However he has become an irrelevant witness due to discharge of accused Mohd. Yameen.
13. PW3 Ajay Mathur is the AGM, Shriram Cement Works who produced the original trade mark and copyright certificates which are proved as Ex.PW 3/A. He also stated that the name of the company was also Shriram Nirman Cement Brand.
14. PW4 Bachu Lal Sharma is the owner of half body TATA Truck bearing no. HR 46A 3348. He deposed that he had kept accused Mehboob Khan as a conductor on that truck. The truck used to be parked near Geeta Colony Gurudwara. One day he came to know that his truck has been seized by the police. He identified the accused Mehboob Khan. He was cross examined by Ld. APP for State but in his cross examination he denied that accused Mehboob Khan was working as a driver on his truck and used to drive the truck without his knowledge. Rather he stated that accused Mehboob Page No. 4 FIR No. 189/99 Khan did not have DL at that time.
15. PW5 is complainant Jagdish Chandra Gupta who deposed that in October 1999 construction work was going on in his house. He purchased 20 bags of cement of JK Company from accused Praveen. The wall of his house fell down after two days of construction by that cement. He also stated that he tried to contact accused Praveen thereafter but in vain. He reported the matter at the office of crime branch vide his complaint Ex.PW5/A
16. On 13.10.1999, he joined the investigation with police when a raid was conducted at house no. 3, Gali no. 9, Block V, Geeta Colony where accused Praveen was found present. On search of his house total 650 kattas of cement and dust stone powder were recovered which were seized vide memo Ex.PW5/B. Duplicate cement was also recovered from 4 trucks parked outside the house of accused Praveen. Three trucks were having 150 bags each and 1 truck was having 50 bags of duplicate cement. Total 500 bags were seized by the IO vide memos Ex PW5/C to F. Four/five accused persons were arrested from the spot. He identified accused Praveen, Mehboob Khan and Devender. He further deposed that on 26.10.1999, he handed over 2 bags of duplicate/ adulterated cement supplied to him by accused Praveen to the IO which was seized vide memo Ex. PW5/G.
17. He could not recall the registration nos. of the trucks despite cross examination by Ld. APP for State. However he admitted that in the house of accused Praveen a godown was found where adulterated cement was being packed by mixing the sand powder. Four labours were found present and two of them were mixing the retti powder in Page No. 5 FIR No. 189/99 the cement, one was pouring the mixed cement into the keep with help of bucket and the fourth one was filling the adulterated cement in plastic bags. 200 sacks mentioning MCD supply in red colour were also found and accused Praveen had disclosed that accused Mohd Yameen had supplied those sacks of adulterated cement to him. Two heaps of cement bags were found which were counted. He also admitted that 4 vehicles from which adulterated cement was recovered at the instance of accused Praveen were one Half Truck Tata too having 150 cement bags, one TATA 608 having 150 cement bags, one TATA 407 having 50 cement bags and 1900 empty bags and one TATA 607 having 150 cement bags. Samples of original cement, adulterated cement and retti powder were taken by the IO and sealed with the seal off DCV. All the four vehicles were seized and in all 8 persons were arrested. The IO had also extracted 2 samples of 5 Kg each from the 2 cement bags handed over by him which were sealed with the seal of DCV and seized vie memo Ex. PW5/G.
18. He identified the recovered cement bags from 4 photographs on record which are Ex. P1.
19. However, the evidence of this witness was never completed and he was not subjected to cross examination. Accordingly, his part testimony without cross examination cannot be read against the accused.
20. PW 6 Suresh Chand is the owner of TATA 407 bearing no. UP 15 E 6397. He deposed that in the year 1999 his driver Padam Singh (since PO) was in possession of the said vehicle.
21. PW7 Sh. Kuldeep Singh deposed that in the year 2000 he was working at the Bureau of Indian Standards (BIS), Sahibabad, Page No. 6 FIR No. 189/99 Ghaziabad. On 22.02.2000, he conducted the chemical examination of certain samples at laboratory of the department marked to him. He prepared 5 chemical examination reports bearing nos. C57409, C 57413, C57416, C57419 and C57423 which are Ex.PW7/A to E.
22. PW8 Sh. A.K. Mahendru deposed that in 1999, he was posted at BIS Central Laboratory, Sahibabad, as Techincal Assistant. On 10.12.99, their office had received samples of OPC (Oridinary Portland Cement) bearing no. P1P2, P5P6, P8P9, P11P12, P15P16, P19 P20, P23P24 and P27P28 for examination in their laboratory. He examined the said samples vide his reports which are Ex. PW8/A to PW8/H. Their office had also received sample of rough stone powder/ash bearing no. S1 and S2 which were examined by him vide report Ex. PW8/J.
23. PW9 Sh. P.K. Malhotra is another scientist who was working at BIS, Sahibabad as Senior Technical Assistant (Lab). He conducted chemical examination of samples marked to him vide report Ex. PW 9/A and PW9/B.
24. PW10 HC Vijay Kumar, PW11 Retd. SI Daya Chand and PW13 Retd. SI Chetan Pal are the police witnesses who were the members of raiding party. They deposed that on 13.10.99, complainant Jagdish Chand had visited the office of Crime Branch and provided the information regarding selling of adulterated/duplicate cement by accused Praveen. His statement Ex. PW5/A was recorded and on instructions from seniors a raid was conducted at H. No. 3, Block No. 5, Gali No. 9, Geeta Colony, Delhi under the command of PW13. They reached at the spot at about 5 AM and asked certain passersby to join the investigation but none agreed. Thereafter, they went inside the Page No. 7 FIR No. 189/99 house where two labourours were found mixing the stone powder with cement in a Haudi in the ground with the help of their feet. Accused Praveen who was identified by the complainant was instructing them to mix the stone powder with the cement. One person was pouring the mixed cement into the keep and fourth person was filling the mixed cement into empty bags with the help of keep. All the said four persons as well as accused Praveen were apprehended. Four heeps of cement bags were found in the godown out of which on 200 bags "MCD Supply not for sale" was written in red colour ink and date was marked as 12.10.99. 198 bags of cement brand Manglamam, Sarva Shaktiman etc were found in one heap. In all 650 bags of cement of different brands namely Manglam, Sarva Shaktiman and of different grades like 43 and 53 were recovered. The said bags were marked Sl. No. S1 to S650. There was also one heap of dust powder. Samples were taken from each heap i.e. 4 or 5 samples of 5Kg each were taken and sealed with the seal of DCV. 3 samples of dust stone powder weighing 5 kg each were also taken which were marked S1 to S3. One bucket, two stands and two iron keeps were also recovered. All the said case property seized vide memo Ex. PW5/B. The seal after use was handed to PW11.
25. Outside the premises four vehicles loaded with cement were found parked. First vehicle bearing no. HR46A3348 contained 150 bags which were given SL. No. S651 to S800 and out of four bags two samples of 5 Kg were drawn. The said truck and case property was seized vide memo Ex. PW5/C. The driver of said truck Mahboob Khan was apprehended. Another vehicle bearing no. DL1LA6375 TATA 608 containing 150 bags of adulterated cement was also seized vide Page No. 8 FIR No. 189/99 memo Ex. PW5/D after taking out 2 samples of 5 Kg each from four bags which were given SL. No. S801 to S950. The third vehicle bearing no. 3359 TATA 407 was also seized vide memo Ex. PW5/E and it was found containing 50 bags of adulterated cement and 1900 empty bags. Before seizing two samples of 5 Kg each were drawn from four bags. The driver of this vehicle namely accused Devender was also apprehended. The fourth vehicle bearing no. UP15E6397 TATA 608 containing 150 bags of adulterated cement given Mark S951 to S1100 were also seized vide memo Ex. PW5/F after withdrawing of two samples of 5 kg each. The driver of said vehicle accusecd Padam Singh (since PO) was also apprehended at the spot.
26. Thereafter, PW13 prepared the rukka Ex.PW3/A and got the present FIR registered. He prepared the site plan Ex. PW13/B. Apprehended accused persons were arrested vide memos Ex. PW 13/C toJ and personally searched vide memos Ex. PW13/K1 to K8. The inspection memos of the accused persons were also prepared which are Ex. PW13/L1 to L8. The entire case property was deposited in the malkhana.
27. PW13 also deposed that on 26.10.99, complainant Jagdish Gupta had produced 2 cement bags of 43 grade, Sarva Shaktiman, Nimba Hedha, Rajasthan and informed him that they were two bags remaining out of the 20 bags of cement which he had purchased from accused Praveen. He seized the said cement bags vide memo Ex. PW5/G and gave Sl. No. S1151 and S1152 to them. Two samples of 5kg were withdrawn from said bags and kept in a polythene which were sealed with the seal of DCV and were makred P27P28.
28. On 10.12.99, PW13 had taken the samples from malkhana of PS Page No. 9 FIR No. 189/99 Geeta Colony vide RC No. 48/21/99 and deposited the same with BIS, Sahibabad. Reports were collected by him in a sealed condition on 02.06.2000.
29. These witnesses identified the accused persons and case property through photographs Ex. P1 (colly).
30. PW12 ASI Shakeel Ahmad is MHC(M) Geeta Colony who produced Register No. 19 pertaining to the year 1999 of PS Geeta Colony. Vide Mud No. 263/949 in the said Register on page no. 151 (Ex. PW12/A), ASI Chetan Pal had deposited the case property of present FIR on 13.10.99. As per the said register the samples were sent vide RC No. 48/21 dt. 10.12.99 through ASI Chetan Pal to Ghaziabad Lab. Vide Mud No. 73/959 (Ex. PW12/B) ASI Chetan Pal had again deposited the case property of the present case on 26.10.99. DD NO. 68B dt. 12.01.2000 (Ex. PW12/C) was lodged regarding the spoiling the case property of the present case. He also produced four photographs of the case property which are Ex. PH58.
31. PW14 Suresh Chand is the registered owner of tempo no. UP15E 6397 on which accused Padam Singh (since PO) was appointed as a driver.
32. In addition to the above evidence vide statement dt. 06.03.18, accused Mehboob Khan, Praveen Kumar and Devender stated that they were not disputing the identity of four seized vehicles. Accordingly the production of these vehicles before the court and examination of their registered owners/ superdar was dispensed with. STATEMENT OF ACCUSED
33. Statement of all the accused persons u/s 313 Cr. PC was recorded on 28.07.2018 where in the entire incriminating evidence produced on Page No. 10 FIR No. 189/99 record was put to them. They denied all the allegations and stated that they had been falsely implicated in this case and no recoveries have been effected from their possession.
DEFENCE EVIDENCE OF ACCUSED
34. Accused persons did not examine any witness in their defence .
35. Final argument have been heard. Record carefully perused. JUDICIAL RESOLUTION
36. It is a settled proposition of criminal law that prosecution is supposed to prove its case on the judicial file by leading cogent, convincing reliable and trustworthy evidence beyond reasonable doubts. The case of prosecution has to fall or stand on its own legs and it cannot drive any benefit from the weakness if any, in the defence of the accused. It is not for the accused to disprove the case of the prosecution and onus to prove the case against the accused beyond reasonable doubts never shifts and it always remains on the prosecution. Further, benefit of doubt in the prosecution story always goes to the accused and it entitles the accused to acquittal.
37. In the present case accused persons have been charged with the offence u/s 420 IPC. The offence of cheating is defined u/s 415 IPC. The following ingredients are required to be proved for convicting a person for the offence of cheating.
i.. Deception of any person.
ii. (a) Fradulently or dishonestly inducing that person:
(i) to deliver any property to any person, or
(ii) to consent that any person shall retain any property, or
(b) intentionally inducing that person to do or omit to do Page No. 11 FIR No. 189/99 anything which he would not do or omt if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property.
38. In the present case the allegations are that accused Praveen had cheated the complainant by selling him adulterated cement inducing him to believe the said cement to be of good quality of Shaktiman, J K Super of Grade 43. In order to prove this allegations prosecution has examined the complainant as PW5, however, his examination is incomplete as he has not been subjected to cross examination and accordingly his testimony cannot be read to the deteriment to the accused persons. Accordingly, the evidence on record is highly insufficient for convicting the accused persons for offence u/s 420 IPC. Rather, it can be safely held that there is no evidence against the accued persons on record for offence u/s 420 IPC. Accordingly, all the accued persons namely Praveen, Mehboob and Devender deserve acquittal for offence u/s 420 IPC.
39. As regards offences u/s 78/79 of Trade & Merchandise Marks Act, 1958, they provide penalty for applying false Trade Marks, Trade descriptions etc. and for selling goods with false Trade Marks or false Trade descriptions.
40. The allegations of the prosecution are that the adulterated / mix cement of low quality has been recovered from the possession of the accused persons and the adulterated cement bags recovered were having brand names of Shaktiman, J K super, Grade43. Accordingly, there is Trade Mark voilation which is punishable u/s Page No. 12 FIR No. 189/99 78/79 of the Act.
41. In order to prove these allegations, the prosecution was required to prove the recovery of the adultereated cement bags from the possession of the accused persons and also identification of the recovered adulterated cement bags by the recovery witnesses. It was also required to be proved that the recovered adulterated cement bags were having the Trade Mark of Shaktiman, J K Super Grade43.
42. In order to prove the recovery the prosecution is relying upon 3 police witnesses i.e. PW10, Pw11 & PW13. The sole public witness to the alleged recovery as per the case of the prosecution was complainant / PW_5 whose testimony cannot be read in view of the reasons given above. Accordingly, the testimony of police witnesses to the recovery is required to be closely scrutinized. Moreso, when no neighbour has been joined in the recovery proceedings.
43. A careful scrutiny of testimonies of PW10,11 & 13 clearly show that there are various contradictions therein. As per PW10 the seal after use was handed over to public witness Jagdish Gupta, However, as per PW13 the seal was handed over to PW14. PW10 has categorically stated that he had remained outside premises at the time of the raid and accordingly, what recovery was effected from H No. 3, Bock 5, Geeta Colony is not within his knowledge nor he had seen anyone mixing anything in the cement bags. As per PW 11, seal of DCP was used while sealing the recovered case property whereas the as per PW13 the seal used was of DCV. In addition no DD entry has been placed on record to show the departure of these Page No. 13 FIR No. 189/99 recovery witnesses for the purposes of recovery. No police official from the local PS Geeta Colony has been involved in the recovery proceedings for reasons best known to the IO. All these contradictions in the testimonies of these recovery witnesses create a doubt as regards the alleged recoveries.
44. In addition to this the case property has never been produced before the court. MHCM has placed on record only four photographs of the alleged case property which are Ex. P1 (colly). The case property is not clearly visible in any of these photographs. Even the case particulars or the brand names of cement are not visible on the kattas which can be sealed in these photographs. Moreover MHCM has been examined as PW12. He proved DD No. 68B dated 12.01.2000 which is Ex. PW 12/C where in it is recorded that the case property of the present case i.e. 1152 kattas of cement which were kept in open had been spoiled due to continuous rain. Some of the cement had become hard while from some kattas cement was following out. In his cross examination this witness is also stated that another DD entry dated 25.01.00 was also recorded regarding the spoiling of the case property of the present case. He admitted that the number of cement bags spoiled due to rain was not mentioned in DD No. 68 dated 12.01.00 or the other DD dated 25.01.00. He also admitted that as per the DD /Ex. PW 12/C the entire case property of the present case has already been spoiled and even the FIR No. was not visible on the kattas shown in the photographs produced by him.
45. The recovery witnesses have identified the case property Page No. 14 FIR No. 189/99 through these photographs placed on record by the MHCM from which it is impossible to identify the same or state that they show the recovered cement bags. This fact has also been admitted by the recovery witnesses in their cross examination. Thus, in view of the over all evidence produced on record in this regard, it is clear that the case property has not been duly proved in the present case. It is neither produced in the court nor duly identified by any of the recovery witness. There is no explanation on record as to why when the case property was spoiled in the year 2000, no orders were obtained from the court for its destruction after taking proper pictures at that time. The non identification of the recovered case property by the recovery witnesses due to its non production is fatel to the case of the prosecution.
46. As regards the reports of the experts who have tested the samples, they also become irrelevant in view of insufficient evidence regarding recovery of the adulterated cement bags from the possession / at the instance of the accused persons.
47. In view of insufficient evidence for proving the recovery of adulterated cement from the possession of the accused persons as well as the non production of the recovered case property before the court and its identification by the recovery witnesses, I have no hesitation in holding that the evidence produced on record is highly insufficient for convicting the accused persons u/s 78/79 of Trade Page No. 15 FIR No. 189/99 Mark Act, 1958. All the accuse persons i.e. Praveen Mehboob and Devender are accordingly entitled to acquittal giving them the benefit of doubt.
48. In view of the above reasons and considering the overall evidence on record, I hold that prosecution has failed to prove its case against the accused persons namely Praveen, Devender and Mehboob beyond any reasonable doubt. Benefit of doubt is given to these accused and they are acquitted of offence under U/s 420/34 IPC & U/s 78/79 of the Trade & Merchandise Marks Act 1958 as charged against them.
ANNOUNCED IN THE OPEN COURT ON 29.08.2018 (SHIVALI SHARMA) CMM (EAST)/KKD/ 29.08.2018 Certified that this judgment contains 9 pages and each page bears my signatures.
(SHIVALI SHARMA) Digitally signed CMM (EAST)/KKD/29.08.2018 by SHIVALI SHARMA Location: East SHIVALI District SHARMA Karkardooma Courts Delhi Date:
2018.08.30 11:09:16 +0530 Page No. 16 FIR No. 189/99