Delhi District Court
State vs . Joginder Singh Etc. on 26 June, 2015
IN THE COURT OF SH. GAJENDER SINGH NAGAR, MM-04,
WEST DISTRICT, TIS HAZARI COURT,DELHI
STATE Vs. JOGINDER SINGH ETC.
FIR No. 269/96
PS: MOTI NAGAR
U/S: 420/471/411/34 IPC
JUDGMENT
Sr. no. of the case : 985/2/10
Unique Case ID no. : 02401R138932002
Date of commission of offence : 22.05.1996
Date of institution of the case : 20.12.1997
Name of the complainant : Sh. S.S. Bhasin
Director, M/s Bhasin
Leasing Limited,
28, Raja Garden, Delhi.
Name of accused and address : 1). Joginder Singh
S/o Sh. Jiwan Singh,
r/o H.no 106, Gali no. 6,
Krishna Park, Tilak Nagar
Delhi.
2). Jitender Singh
s/o Sh. Bachan Singh
r/o H.no. 537, Gulabi Bagh
PS Partap Nagar, Delhi.
3). Upender Kumar
Sharma, s/o Sh. Jugal
Kishore Sharma, r/o
C-4B/331B, Janak Puri,
Delhi (since expired).
Offence complained of or proved : U/s 420/471/411/34 IPC
Plea of the accused : Pleaded not guilty
Final order : Acquitted
Date reserved for judgment : 26.06.2015
Date of judgment : 26.06.2015
******************************************************************************************************************************* FIR No. 269/96, PS Moti Nagar Page 1/11 BRIEF STATEMENT OF THE REASON FOR DECISION:
THE FACTS:
1. Vide this judgment this court shall dispose of the present case U/s 420/471/411/34 IPC.
2. The story of the prosecution is that a complaint dated 23.05.1996 was received from Bhasin Leasing Ltd. wherein it was mentioned that one Raman Sharma R/o H.No.64, Sector-20, Faridabad approached them to purchase a Cielo car and offered to make the payment vide DD No.208349 amounting to Rs.5,40,000/- drawn on Vijaya Bank, Karol Bagh favouring M/s DCM Daewoo Motors Ltd. On recieving the above said DD and received a cash amount of Rs.5,000/- the car was handed over to Sh. Raman Sharma. Later on the complainant were informed by M/s Bhasin Motors Ltd. That the said draft has been dishonored by the issuing bank. It has also been reported that said DD was missing from the bank and the DD was a forged one. Hence, said Raman Sharma had fraudulently obtained the draft and handed over the said forged bank draft and obtained delivery of Cielo car. Later on that car was recovered from accused Jitender. It was also revealed that he represented himself as Raman Sharma in connivance with co-accused Upender Gupta (since expired) and Joginder Singh. After registration of FIR, investigation was carried out.
3. Charge sheet was filed against all the accused persons (accused Upender expired on 20.07.2006) in the Court. Documents were supplied to the accused persons and thereafter charge under Section 420/471/411/34 IPC was framed against them vide order dated 04.04.1998. Accused persons pleaded not guilty and claimed trial.
MATERIAL EVIDENCE IN BRIEF:
4. The Prosecution in support of present case has examined following witnesses.
5. PW1 SI Shivani was the DO on 27.05.1996, who exhibited on record carbon copy of FIR as Ex.PW1/A (OSR) and endorsement on FIR No. 269/96, PS Moti Nagar Page 2/11 the rukka as Ex.PW1/B.
6. PW2 Satender Singh deposed that he is/was director of M/s J.
Bhasin and Bhasin Motors Ltd. It is stated by him that the person who had come in the factory to purchase a Cielo Car was most probably the accused Jitender. It is stated that said Jitender had given a draft towards payment for the Cielo Car to the staff of M/s Bhasin Motors. It is stated that amount of draft was approximately 5 Lacs. It is stated that the draft was deposited for encashment in the Allahabad Bank, Rajouri Garden, however, later on they came to know from the bank that draft was a fake one. It is stated that their company informed the matter to PS Moti Nagar. It is stated that even the officials of their company were also searching for accused Jitender and they eventually apprehended the vehicle from accused Jitender, however, this witness could not tell the date when vehicle was recovered. It is stated by him that he could not recollect the colour of the car, however, it was a Cielo make. He exhibited seizure memo of the car as Ex.PW2/A. It is stated by him that the said car was got released by the company. It is stated by him that though he does not remember full registration number of the car, however, its initial numbers were HR-36A. He could not tell the name of the person from whose possession the car was recovered. He exhibited the car bearing engine number G15MF342649 as Ex.P1. This witness was cross-examined by Ld. APP for State and he has been shown his statement Mark Z wherein it is written that number of the vehicle was HR-36A-6002 and name of the person who had taken delivery was Jitender. That the vehicle was recovered from the possession of Jitender. This witness correctly identified accused Joginder and Jitender and stated that he can identify them as he had seen them. It is stated by him that the complaint Ex.PW2/A was written and signed on his direction by his employee Jasbir Singh. In his cross-examination, it is stated by him that he could not remember whether any document or vehicle was recovered in his presence. He could not remember the contents of complaint Ex.PW2/A.
7. PW3 ASI Mahender Singh stated that on 15.06.1996 he remained FIR No. 269/96, PS Moti Nagar Page 3/11 in the investigation alongwith SI Jai Bhagwan, ASI Naseeb Singh, HC Suresh, HC Virender, HC Lokesh, Ct. Naresh and Ct. Ashok. It is stated that on secret information, they reached at Rama Road, Gole Chambary at about 01:35 PM and made Nakabandi. It is stated that at about 01:50 PM, one Cielo Car bearing no.HR-36A-6002 was stopped at the Naka which was being driven by accused Jitender. Thereafter, accused Jitender was apprehended, interrogated and arrested. The car was seized vide memo Ex.PW2/A and disclosure statement of accused Jitender was recorded, which is Ex.PW3/A. It is stated that in disclosure, accused Jitender had disclosed that actual number of the car is HR-26C-9865. It is stated that complainant Satender Singh was also present when the car was recovered. In his cross-examination it is stated by him that secret information had conveyed the information to the IO within his view and audible limit. It is stated by him that no public person joined the investigation despite request. It is stated by him that the number plate was seized vide a memo. He exhibited the seizure memo as Ex.PW2/A. During examination of this witness MHC(M) produced the case property in the form of sealed pullinda, however, the seal was illegible. The pullinda was containing stamps of "For U.J. Enterprises", "For Gupta Cloth Emporium", "For Punjab & Sindh Bank, Roshan Pura, Nazafgarh, New Delhi", "Naresh C. Aggarwal and Company Chartered Accountant", "Anil Kumar Chartered Accountant"
and stamp pad. It was observed that the case property does not pertain to this witness. It was also observed by the Court that there was some alteration on the FIR number on the pullinda. It is stated by him that IO had not made entry in register no.19 in his presence. It is stated by him that he do remember that pullinda of fake number plate and keys was prepared. However, he could not tell how many pullindas were prepared. It is accepted by him that in the seizure memo Ex.PW2/A there is no mention of keys.
8. PW4 SI Jai Bhagwan stated that on 27.05.1996, complainant S.S. Bhasin produced the written complaint after making endorsement (PW4/A) on the same, this witness handed over the same to DO for FIR No. 269/96, PS Moti Nagar Page 4/11 registration of FIR. It is stated that on 15.06.1996, accused Jitender was arrested vide memo Ex.PW4/B and on 17.06.1996, accused Upender Kumar (since expired) vide arrest memo Ex.PW4/C. After interrogation, disclosure statement were recorded which are Ex.PW3/A and Ex.PW4/D. It is stated by him that two Maruti cars were taken into possession from accused Upender Kumar (since expired) vide memo Ex.PW4/E. It is stated that one Cielo car bearing no.HR36A 6002 was recovered from possession of accused Jitender vide seizure memo Ex.PW2/A. It is stated that certain documents were taken into possession from accused Upender Kumar vide memo Ex.PW4/F, one photocopy of RC of Cielo car and one bank draft bearing no. 208349 were taken from one Jasvir Singh vide seizure memo Ex.PW4/G. The impression of seal of Anil Kumar Jain, Chartered Accountant is Ex.PW4/H. This witness correctly identified accused persons. In his cross-examination, it is stated by him that he received the secret information that the person who had purchased the vehicle by presenting forged draft is sitting in park. He accompanied the secret informer to the park where 5-7 persons were sitting, however, the accused was sitting alone. It is stated by him that he did not record the factum of secret information in the police station nor prepared any DD. It is stated by him that ASI Mahender Singh and one Constable also accompanied him to the park. It is stated that accused was sitting on the grass. It is stated that accused did not attempt to run. It is stated that after apprehension he recorded disclosure statement of accused while sitting on the bench. It is stated by him that the Cielo car was recovered from Gulabi Bagh. It is stated that the place from where car was recovered is an in-habitat area. It is stated by him that he does not know accused Joginder Singh and cannot identify him. It is stated by him that he cannot tell if the draft taken by him from the complainant was original or forged one. It is stated that he had not investigated this fact.
9. PW5 Satish Kumar, Record Clerk from RTO, Office, Gurgoan, Haryana exhibited on record copy of RC register in respect of vehicle FIR No. 269/96, PS Moti Nagar Page 5/11 no.HR26C 9865 as PW5/A (OSR). It was stated by him that the car was originally in the name of Baba Paints Pvt. Limited and was later on transferred in the name of J.Bhasin Leasing Limited. In his cross- examination, it is stated by him that he has not brought form no.29.
10. PW6 D.S. Rawat, Manager of Bank of Tokyo Limited, Parliament Street Bank, stated that he has seen the cheque returning memo dated 21.05.1996 which was issued by Mr. Raj Narayan, authorized signatory of the bank. It is stated by him that instrument was returned unpaid being a forged document. He exhibited the cheque returning memo as Ex.PW6/A. In his cross-examination, it is stated by him that he has not brought any record and he is deposing only on the basis of instrument Ex.PW6/A.
11. PW7 SI Ranbir Singh stated that on 17.10.1997, he was posted at Crime Branch, AATS, Adrash Nagar. On that day he had given information regarding arrest of accused Joginder Singh to PS Moti Nagar as he was running PO in the present case. In his cross- examination, it is stated by him that he had not given anything in writing with regard to the arrest of accused Joginder Singh to PS Moti Nagar.
12. PW8 Sh. Bhima Aroli, Senior Manager, Vijaya Bank, Karol Bagh stated that he has seen the contents of letter dated 20.05.1996 which is on record which was returned by Senior Member of the bank to Branch Manager, Bank of Tokyo Limited. The letter is exhibited as Ex.PX. It is stated by him that as per the contents of the letter their bank informed the Bank of Tokyo Ltd. that a pay order book was missing from their bank and the pay order no.208349 was from the said book for which their bank has already lodged a complaint to the police, however, it is stated by him that he is not in a position to produce the complaint lodged by their bank as despite efforts the said complaint is not traceable.
13. PW9 ASI Lokesh Kumar stated that on 17.06.1996 he remained with SI Jai Bhagwan for the investigation of the present case. It is stated that they reached the house of accused Upender (expired) from where he was arrested vide memo Ex.PW4/C at the pointing out of FIR No. 269/96, PS Moti Nagar Page 6/11 accused Jitender. It is stated that disclosure statement of accused Upender was recorded and certain document was seized vide memo Ex.PW4/F. It is stated that IO had also seized two Maruti cars vide memo Ex.PW4/E. It is stated that IO prepared seizure memo of sample seal of Sh. Anil Kumar Jain as PW4/H. This witness correctly identified accused Jitender.
14. No other witness was available to be examined despite efforts. Hence, PE was closed.
THE DEFENCE :
15. Statements of accused persons namely Joginder and Jitender were recorded U/s 313 Cr.P.C, wherein they pleaded their innocence and stated that they have been falsely implicated in the present case. Accused persons opted not to lead defence evidence.
THE ARGUMENTS:
16. Ld. APP for state has argued that witnesses have supported the prosecution and their testimony have remained unrebutted. That on a combined reading of testimonies of prosecution witnesses, offence under section U/s 420/471/411/34 IPC is proved beyond reasonable doubt.
17. On the other hand, Ld. counsel for accused persons has stated that there is no legally sustainable evidence against the accused persons. It is also stated that nothing was recovered from or at the instance of accused persons. The recovery was false and planted.
THE FINDINGS:
Offence U/s 420/471/411/34 IPC:
18. Arguments adduced by Ld. APP for State and Ld. Defence Counsel for the accused have been heard. Evidences and documents on record perused carefully.
19. In order to bring home guilt of the accused persons, the prosecution was required to prove following ingredients :-
FIR No. 269/96, PS Moti Nagar Page 7/11
a). The accused persons in furtherance of their common intention induced the complainant to hand over possession of Cielo car to them on the basis of a forged draft.
b). Accused persons used the forged draft to defraud the complainant.
c). The case property i.e. the Cielo car was recovered from the accused persons.
20. In the present case it has not been proved how the bank draft allegedly handed over by accused Jitender was a forged document. It has not been explained whether signatures on the same of the bank officials were forged or something else was forged in that document. It is to be noted that the said document has never been sent to FSL in order to ascertain whether it was bearing signatures of the persons who have purported to have singed the same or not. The pay order was issued by Vijaya Bank, PW8 Senior Manager from Vijaya Bank stated that the pay order was forged as the same was from the pay order book which was missing from their bank. However, any such complaint regarding any such misplacement of said pay order book has not been placed on record. Further, nobody has been examined from concerned PS where the report regarding such misplacement of said pay order or pay order book was lodged if any. Thus apart from bald statement by the bank officials that the pay order was a forged one there is nothing on record to show how it was termed as a forged document.
21. Allegedly the Cielo car was delivered to accused Jitender as he induced the officials of the complainant to deliver the car to him in lieu of the alleged forged pay order. In such situation the said car would become proceed of cheating/fraud. In such situation the car cannot be termed as a stolen property as proceed of fraud cannot be termed as stolen property as per Section 410 of IPC. Thus offence U/s 411 IPC cannot be made out in respect of that car. Furthermore, recovery of the car is also doubtful as it is stated by PW3 SI Mahender Singh that on a secret information Nakabandi was placed at Rama Road Chambry where the alleged Cielo car was stopped at the Naka which was being driven by accused Jitender who tried to run away from the spot after FIR No. 269/96, PS Moti Nagar Page 8/11 leaving the car. However, he was apprehended after a brief chase. Thus as per PW3 SI Mahender Singh the car was recovered from accused Jitender when he was stopped at the Naka while driving the car. On the other hand PW4 Rt. SI Jai Bhagwan has deposed that on secret information accused Jitender was arrested from a park where he was sitting in grass and was apprehended in the park itself and in the very same park disclosure statement of accused Jitender was recorded, on the basis of which the car involved in the present case was recovered from Gulabi Bagh. Thus, the two police witnesses of recovery have altogether two different versions regarding alleged recovery which makes the recovery very doubtful. Above that PW2 S.S. Bhasin had an altogether different version regarding recovery of the car as it is stated by him that the car was recovered and accused Jitender was apprehended by officials of M/s J. Bhasin and Bhasin Motors Ltd. Further it is stated by PW3 that PW Satender Singh was present at the time of recovery of the Cielo car, however, PW2 Satender Singh @ S.S. Bhasin could not remember whether any vehicle was recovered in his presence or not. Thus there are too many contradictions in the case of the prosecution.
22. Prosecution could examine only one witness i.e. PW-2 S. S. Bhasin @ Satinder Singh to prove that accused Jitender had taken delivery of the said Cielo car on the basis of forged pay order. PW2 S. S. Bhasin has stated that the person who had come in the factory to purchase the Cielo car most probably was accused Jitender. Thus this witness could not tell beyond reasonable doubt that accused Jitender was the one who had taken delivery of the said car by handing over the alleged forged bank draft. It is to be noted that this witness was the director of M/s Bhasin & Bhasin Motors Ltd. it is stated by him that accused Jitender had given draft against payment of Cielo car to the staff of Bhasin Motors, which means that accused Jitender had not handed over the draft to this witness which shows that this witness is not having first hand knowledge about the incident and whatever he has stated is a hearsay, as stated to him by his employees. It is to be noted FIR No. 269/96, PS Moti Nagar Page 9/11 that even the complaint on the basis of which FIR was lodged was not signed by him. In the complaint Ex.PW2/A it has nowhere mentioned as to who was the sales person who had interaction with accused Jitender and to whom he had handed over the alleged forged pay order. Even from statement U/s 161 Cr.P.C of PW Satender Singh @ S.S. Bhasin it is apparent that accused Jitender had not induced nor handed over the alleged forged pay order to him. The statement U/s 161 Cr.P.C of PW Satender Singh shows that he is the witness of recovery of Cielo car and nothing more. In fact from statement U/s 161 Cr.P.C of PW Jasbir Singh S/o Gola Singh, it appears that he was the one to whom accused Jitender allegedly represented as Raman Sharma, however, this witness could not be examined in prosecution evidence despite opportunity. Thus the fact that accused Jitender Singh represented as Raman Sharma and handed over a forged pay order to induce delivery of Cielo car has not been proved on record. Thus there is no evidence on record against the accused Jitender Singh.
23. None of the witness examined by the prosecution could tell role of accused Joginder Singh. Nobody has stated against him. There is not even an iota of evidence against accused Joginder Singh. It is not explained how he was involved in the present matter.
24. It is a settled proposition of criminal law that prosecution is supposed to prove its case on judicial file beyond reasonable doubt by leading reliable, cogent and convincing evidence. Further it is a settled proposition of criminal law that in order to prove its case on judicial file, prosecution is supposed to stand on its own legs and it cannot derive any benefit whatsoever from the weaknesses, if any, of the defence of the accused. Further it is a settled proposition of criminal law that burden of proof of the version of the prosecution in a criminal trial throughout the trial is on the prosecution and it never shifts on to the accused. Also it is a settled proposition of criminal law that accused is entitled to the benefit of reasonable doubt in the prosecution story and such reasonable doubt entitles the accused to acquittal.
25. In view of the above stated facts and discussion this Court is of the FIR No. 269/96, PS Moti Nagar Page 10/11 opinion that prosecution has failed to prove guilt of accused persons beyond reasonable doubt. Accordingly, it is a fit case in which benefit of doubt must be given to accused persons, which is accordingly given. Hence, accused Joginder Singh s/o Sh. Jeevan Singh and accused Jitender Singh s/o Sh. Bacchan Singh are hereby acquitted of offences U/s 420/471/411/34 of IPC.
26. Fresh personal/surety bonds in the sum of Rs.10,000/- each have been furnished by the accused persons in compliance of Section 437-A Cr.P.C. Same are accepted.
27. File be consigned to Record Room after due compliance.
ANNOUNCED IN THE OPEN (GAJENDER SINGH NAGAR) COURT ON 26.06.2015 MM-04 (WEST)/DELHI
Containing 11 pages all signed by the presiding officer.
(GAJENDER SINGH NAGAR)
MM-04 (WEST)/DELHI
FIR No. 269/96, PS Moti Nagar Page 11/11