Delhi District Court
State vs . : Sunil Kumar on 20 June, 2011
IN THE COURT OF SH. SUDHANSHU KAUSHIK: MM : SAKET :
DELHI
State Vs. : Sunil Kumar
FIR No : 44/02
U/s : 506 IPC
PS : OIA
JUDGEMENT
A. Sl. no. of the case 891/2
B. Offence complained of
or proved 506 IPC
C. Date of Offence 22.01.2002
D. Name of the complainant Sh. Satpal
S/o Sh. Saki Ram
R/o Quarter No.7
Type-II. G.B Pant
Polytechnic College
New Delhi.
E. Name of the accused Sunil Kumar
S/o Sh. Jai Bhagwan
R/o Quarter No.18
Type-II, G.B Pant
Polytechnic College
Complex
IOA, New Delhi.
F. Plea of the accused Pleaded not guilty.
G. Final order
H. Date of Order
FIR No. 44/02 1/14
Brief reasons for decision:
1. The case of the prosecution is that on 22.01.2002, at around 08.00 PM, in front of quarter no. 17, Type-III, G.B Pant Polytechnic Complex, Okhla Industrial Area, New Delhi, the accused Sunil Kumar criminally intimidated Satpal and extended threats to kill him.
2. Satpal and Sunil Kumar use to reside in same locality. On the above said date and time, Sunil Kumar came at the residence of Satpal and started abusing him without any provocation. Sunil Kumar was fully drunk. He grabbed Satpal from his collar and extended threats to kill him. The neighbourers interveined and rescued Satpal. The matter was reported to the police and the accused was arrested. The accused was arrested under Section 92 and 93 of The Delhi Police Act, 1978 and he was produced before the concern MM. On the directions of the Ld. MM, the present FIR no. 44/02 under section 506 IPC was registered at PS OIA.
FIR No. 44/02 2/14
3. The statement of Satpal was recorded and the necessary investigation was carried out. On completion of the investigation, the chargesheet was put to the Court. The copies of the chargesheet were supplied to the accused and on the basis of the same, charge under Section 506 IPC was framed against him to which he pleaded not guilty and claimed trial.
4. The prosecution examined five witnesses.
5. PW-1 Head Constable Ranjeet Singh (Duty Officer) has proved the registration of the FIR. PW-2 Constable Jagdish (Police official who went to the spot alongwith HC Harphool Singh) has deposed about the initial investigation. PW-3 Satpal (Complainant) has narrated the entire episode. He mentioned that the accused extended threats to kill him. PW-4 Head Constable Phool Singh (Investigation Officer) has deposed about the investigation part. PW-5 Head Constable Ashok Kumar (DD writer) has mentioned about the DD entry no. 29 whereby the information about the incident was received at the Police Station.
FIR No. 44/02 3/14
6. Accused was examined under Section 313 Cr. PC. He mentioned that he has been falsely implicated and did not examine any witness in defence.
7. I have heard Ld. APP for State and Ld. Defence Counsel and carefully gone through the entire material available on record.
8. Ld. APP has contended that charges against the accused have been established beyond reasonable doubt. He has contended that all the witnesses have deposed on the similar lines and their unimpeached testimonies have established the charges.
9. On the other hand, Ld. Defence Counsel has argued that the sole testimony of Satpal (PW-3) is not reliable. He has contended that no independent witness has been joined in the investigation despite availability and the said fact raises.......... of which one may arrive at a conclusion that the accused has committed cheating. Ld. Counsel has argued that neither the concern officials of Indo German Chamber of Commerce nor any authorized person from the German Embassy has been examined FIR No. 44/02 4/14 to substantiate the charges against the accused. On the force of the said arguments, the counsel has submitted that the accused should be acquitted.
10. I have given my thoughtful consideration to the rival contentions and carefully perused the entire material available on record.
11. In order establish charges against the accused, the prosecution has relied upon the deposition of Sh. P. N. Rehlan (PW1) and the FSL report. What is to be seen is whether the said material establishes the charges under section 420/468/471 IPC. The provisions of Section 468 IPC provides a punishment for forgery committed for the purpose of cheating. The term 'forgery' has been defined under Section 463 IPC. The said Section provides as under :
"Forgery - Whoever makes any false documents or false electronic record or part of a document or electronic record, with intent to cause damage or injury, to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract, or with FIR No. 44/02 5/14 intent to commit fraud or that fraud may be committed, commits forgery."
The Section 464 IPC defines what amounts to making of a false document. It provides as under :
"Making a false document - A person is said to make a false document or false electronic record -
First - Who dishonestly or fraudulently -
(a) makes, signs, seals or executes a document or part of a document ;
(b) makes or transmits any electronic record or part of any electronic record ;
(c)affixes any digital signature on any electronic record ;
(d) makes any mark denoting the execution of a document or the authenticity of the digital signature, with the intention of causing it to be believed that such document or part of document, electronic record or digital signature was made, signed, sealed, executed, transmitted or affixed by or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed, executed FIR No. 44/02 6/14 or affixed ; or Secondly - Who, without lawful authority, dishonestly or fraudulently, by cancellation or otherwise, alters a document or an electronic record in any material part thereof, after it has been made, executed or affixed with digital signature either by himself or by any other person, whether such person be living or dead at the time of such alteration ; or Thirdly - Who dishonestly or fraudulently causes any person to sign, seal, execute or alter a document or an electronic record or to affix his digital signature or any electronic record knowing that such person by reason of unsoundness of mind or intoxication cannot, or that by reason of deception practised upon him, he does not know the contents of the document or electronic record or the nature of the alteration."
12. The explanation I provides that a man's signature of his own name may amount to forgery. The instances of such like cases have been mentioned in Illustration (a) to (e). Thus, the FIR No. 44/02 7/14 elements of forgery are making of a false document or part of it and such making should be an intent ; a) to cause damage or injury to public or any person or ; b) to support any claim or title or ; c) to cause any person to part with property or ; d) to cause any person to enter into express or implied contract or ; e) to commit fraud or with an intent that fraud may be committed.
13. The explanation 1 to Section 464 IPC provides that a man's signature of his own name may amount to forgery in a given set of circumstances. The material on record has to be appreciated in the light of the above said proposition of law. If a person counterfeits a document in order to support any claim or title to the property then he can be held guilty of forgery. An actual intention to convert an illegal or doubtful claim into an apparent legal one is dishonesty and will amount to forgery. In the present matter, it is to be seen whether the accused has forged any document to obtain recommendation from Indo German Chamber of Commerce? and whether he has used the said forged recommendation for obtaining visas from the German Embassy? FIR No. 44/02 8/14
14. Ld. APP for the State has contended that it has been mentioned in the FSL report that the accused has forged the signatures of 'J. Lyschik' on the on the letter head of Asea Brown Boveri Ltd. Company. I have perused the said letter dated 25.09.1996. It is a letter wherein Mr. J. Lyschik has made a recommendation to the Gerneral Manager of Asea Brown Boveri Ltd. Company that Mr. Jaswinder Singh who is working as an Assistant Commercial Manager with the company should be sent to attend meetings at Germany. The said questioned documents was sent to FSL for the purpose of examination. In the examination report dated 28.02.2005 Sh. Ammi Lal Daksh, Senior Scientific Assistant, FSL has mentioned in clause II, " the person who wrote the red and closed signatures stamped and marked as S 12, S13 also wrote the red enclosed signature similarly stamped and marked Q4". Relying upon the said observation, the Ld. APP has contended that it is proved that the accused committed forgery. I fail to agree with the said line of argument.
15. In order to establish the charges against the accused, the prosecution must establish the following facts:
(a) that the accused prepared a false document with the FIR No. 44/02 9/14 intention of causing it to be believed as genuine.
(b) that the accused submitted the said false document with Indo German Chamber of Commerce for obtaining a recommendation in favour of Jaswinder Singh, Manohar Lal and Devender Kumar Sharma.
(c) that the officials of Indo German Chamber of Commerce acting upon the above said false document issued a recommendation in favour of these persons.
(d) that the German Embassy issued visas in favour of these persons on the basis of the recommendation forwarded by Indo German Chamber of Commerce.
16. The evidence on record primarily constitutes the testimony of P. N. Rehlan (PW1). He has deposed that he is Director of Cauvery Tours & Travels and the accused used to work as a field boy in the said concern. He mentioned that Asean Brown Boveri Pvt. Company was their regular client and the job profile of the accused was to collect documents and deliver tickets/visas to the customers. He has made a reference to the incident stating that in the month of October 1996, he received a call from Indo German Chamber of Commerce that accused had furnished a FIR No. 44/02 10/14 forged application for obtaining visa. The witness has deposed that after receiving the information, he went to Indo German Chamber of Commerce as he was summoned over there. He has deposed that the officials of Indo German Chamber of Commerce showed him the visa application form which was submitted by the accused on the basis of the forged recommendation of the company. He has not deposed anything further. I have perused the entire testimony of PW 1. His testimony does not establish anything apart from the fact that the accused was employed with Cauvery Tours & Travels. His deposition about the cheating part amounts to hearsay and the same is in admissible.
17. The record shows that the complainant R. Unni Krishanan has not been examined. Neither the complainant nor any other authorized person from the company has stepped into the witness box to depose about the alleged forgery. The officials of Indo German Chamber of Commerce, who apprehended the accused have also not been examined. It is the prosecution's version that on a previous occasion, on the basis of forged recommendation letter ,the accused obtained visas in favour of Manohar Lal and Jaswinder Singh. The officials of the Embassy who FIR No. 44/02 11/14 issued the said visas have neither been cited as witness nor have they been examined. The testimony of these witnesses would have served a material link to connect the accused with the alleged offence. In the absence of their testimony, the testimony of PW1 is of no consequence. The persons in whose favour the visas were issued on previous occasions have also not been joined in the investigation. The investigation is completely silent in that respect. The purported forged letter of recommendation is in favour of one Jaswinder Singh, however, the said Jaswinder Singh has also not been examined.
18. The persons whose applications were forwarded to the German Embassy were not fictitious. These persons were carrying valid passport on the basis of which visas were issued in their favour. The passport of Devender Kumar Sharma which was seized during the investigation is on court record. However, none of these persons were joined in the investigation. The FSL report in itself is not sufficient to establish the charges under section 468 IPC against the accused. The said report is not a conclusive peace of evidence. It would have provided support to the prosecution's case and would have corroborated the version of the witnesses, in case, FIR No. 44/02 12/14 they would have deposed against the accused. In the absence of the testimony of the officials of Indo German Chamber of Commerce, it cannot be said that the accused used these documents for the purpose of cheating. It is called upon the prosecution to establish the charges against the accused beyond reasonable doubt. It must be established that in all probabilities, the accused has committed the offence. It is the jurisprudence of criminal law that the accused is presumed to be innocent unless his guilt has been proved beyond reasonable doubt.
19. It is the prosecution's version that the accused forged the signatures of 'J.LYSCHIK' on the letter dated 25.09.1996. However, the said person has not been examined. It was incumbent upon the prosecution to examine the said person. He should have been examined as a witness and in case, he would have denied his signatures on the said letter, then, the FSL report would have corroborated the version of the said witness. However, in the absence of his testimony, it is unsafe to rely upon the FSL report to conclude that the accused has committed forgery. The Investigating Officer ASI Satvinder Singh has deposed that on 04.11.1996, he reached the office Asea Brown Boveri Limited and FIR No. 44/02 13/14 met the complainant R. Unni Krishnan. He has deposed that he seized the forged letter heads of the company which were produced by the complainant. He has admitted in his cross- examination that the letter heads of the company were genuine and only the signatures have been forged. The complainant Unni Krishnan has not stepped into the witness box to depose about the various documents which as per the prosecution's story were handed over by him to the IO. In such circumstances, it would not be safe to rely upon the FSL report. The offence of forgery has not been established. The next factor which is to be considered is whether the offence of cheating has been proved. The answer is in negative.
20. The cheating has been defined under Section 415 IPC. Section 415 IPC reads as under :
"Cheating - Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes FIR No. 44/02 14/14 or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat.".
Explanation - A dishonest concealment of facts is a deception within the meaning of this Section."
Section 415 IPC is required to be read with the definition of the expression dishonestly as contained in Section 24 thereof in terms whereof something must be done with an intention of causing wrongful gain to one person or wrongful loss to another.
21. As observed in the preceding paras, the offence of forgery has not been proved. The record shows that it has not been established that the accused has fraudulently deceived any person or has induced anybody to delivery any property to him which he would not have delivered, in case, he was not deceived. No one has stepped into the witness box to depose about the fact of cheating. Thus, the offence of cheating has also not been proved.
FIR No. 44/02 15/14
22. In view of the abovesaid discussion, I have reached a conclusion that the prosecution has failed to establish the charges against the accused beyond reasonable doubt. The story of the prosecution is doubtful. The accused accordingly, stands acquitted of the charges under Section 420/468/471 IPC on the ground of benefit of doubt.
23. Bail Bond stands cancelled. Surety stands discharged. Endorsement placed on the documents of the surety be cancelled and the same be returned to him, if retained on record.
24. File be consigned to record room after necessary compliance.
Announced in open Court (Sudhanshu Kaushik) on this day of 09th June, 2011 Metropolitan Magistrate Saket Courts, Delhi FIR No. 44/02 16/14