Delhi District Court
State vs . Ashraf & Ors on 14 March, 2017
IN THE COURT OF SHRI NARESH KUMAR LAKA
CHIEF METROPOLITAN MAGISTRATE
EAST DISTRICT, KARKARDOOMA COURTS, DELHI
FIR No.595/2003
PS Kalyanpuri
State Vs. Ashraf & Ors
(a) Sr. No. of the case 1891/2016 (new)
(b) Date of offence 12.11.2003
(c) Complainant Jamil Ahmed
(d) Accused, parentage and 1 Ashraf S/o Mohd. Aziz, R/o Village
address and PS Thana Bhawan, District
Shamli, U. P.
2. Allah Mehar S/o Sh. Sarjeet R/o
Village Sanderkala, District Sonipat,
Haryana.
3. Alimu @ Allimuddin S/o Sh.
Rustam Ali, R/o H. No. 322, main
road, V. P.O. Bhor Garh, Narela,
Delhi.
(e) Offences complained for Section 406 & 506/34 IPC
(f) Plea of accused Pleaded not guilty
(g) Final Order Convicted A1 u/s 406
A2 & A3 u/s 506 (i)/34 IPC
(h) Date of institution 28.07.2005
(i) Date when judgment was 27.02.2017
reserved
(j) Date of judgment 14.03.2017
FIR No.595/2003 State Vs. Ashraf & Ors Page No.1 of 11
J U D G M E N T
Brief Facts: Complainant, namely, Jamil Ahmed made a
complaint to police on 13.11.2003 but the matter was under process of settlement and as such he did not pursue said complaint. Subsequently when the settlement was not followed, he again made a complaint to the police on 21.12.2003 by narrating the incident to the effect that on 13.11.2003, he had sold bulk of chicken to Raj Fish & Sons Partners in Ghazipur Murga Mandi and received the payment of Rs. 1,32,000/ from the shopkeeper of said shop and the same was handed over to his maternal uncle (mama), namely Allah Mehar to keep it in safe custody as the complainant was having injuries on his right hand. Thereafter, they hired a rickshaw from murga mandi to Anand Vihar Bus Stand. Complainant went to enquire about the bus and when he came back, his maternal uncle was not there. He saw Allah Mehar coming from behind a bus and by this time their bus of G. T. Karnal Bypass came and they boarded the bus. When they deboarded the bus at G. T. Karnal Bypass, complainant asked about the money, then Allah Mehar stated that "billi jhapata mar ke le gai" and he did not return his money. Then the Allah Mehar advised him to call Ashraf Tantrik to find out the stanched money and Ashraf came alongwith one Alimu. They took the complainant to Bhorgarh but his amount could not be traced out. Consequently, an FIR was registered for the offence under Section 406/34 IPC.
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2. After completion of investigation, the final report (charge sheet) for the offence under Section 406 read with Section 34 IPC was filed against accused Ashraf, Allah Mehar and Allimu. Copy of the chargesheet was supplied to the accused persons as per Section 207 Cr.P.C.
3. On the basis of material on record, one charge was framed against the accused Allah Mehar for the offence under Section 406 IPC and another charge was farmed against accused Ashraf, Allah Mehar and Allimu for the offence under Section 506 (ii) IPC to which they pleaded not guilty and claimed trial. The matter was put to trial and the prosecution examined total seven witnesses as under:
PW1 Jamil Ahmed, Complainant.
PW2 HC Rishi Pal Singh, Duty Officer. PW3 Hazi Salauddin, public witness. PW4 Ranbir Singh PW5 HC Hoshiyar Giri who assisted the IO in the investigation. PW6 SI Habib Ahmad who assisted the IO in the investigation. PW7 SI Udai Pal Singh, Second IO.
4. The statements of accused persons under Section 313 Cr. P.C were also recorded by putting all the incriminating evidence to them. Accused Alimu examined himself as DW1 in his defence. No other witness has been examined by the accused persons in their defence. I have heard arguments addressed by Sh. Rakesh Kumar, Ld. APP for the State and Sh. Jitender Kumar, Ld. Counsel for accused persons. File perused.
FIR No.595/2003 State Vs. Ashraf & Ors Page No.3 of 11 REASONS FOR DECISION
5. The prosecution examined total 07 witnesses and the most important amongst them is Mr. Jamil Ahmed (PW1) who is the complainant in the present case. He deposed on oath that on the day of incident, he sold bulk of chicken in Gazipur Murga Mandi and received the sale amount of Rs. 1,32,000/ in cash from the buyer, namely, Hazi Salauddin.
6. Complainant also deposed that since he was having injuries in his right hand due to some accident, he had brought one Allah Mehar (accused no.1) for his assistance and accordingly, he handed over the said amount to him and when they were going to Anand Vihar Bus Stand on a cycle rickshaw to catch a bus, the accused Allah Mehar informed him that he was having the said money but when they alighted from the bus at G. T. Karnal Bypass, accused Allah Mehar stated that the said money has been snatched by a cat. The complainant further deposed that accused Allah Mehar started doing drama and then he had brought him to his house.
7. The prosecution also examined the said Hazi Salauddin as PW3 who also clearly deposed that the amount of Rs. 1,32,265/ was given by him to the complainant and complainant handed over it to Allah Mehar after keeping Rs. 265 with him. He further deposed that the said amount was kept in a polythene by accused Allah Mehar and then they left. From the aforesaid facts, it is clear that the first initial ingredient of the offence under Section 406 IPC i.e. entrustment has been proved on record by the prosecution.
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8. There are various circumstantial as well as direct evidence on record which prove that the accused Allah Mehar alongwiht two other accused persons played a trick to befool the complainant and the same can be seen from the following evidence:
9. The incident was dated 12.11.2003 and the complainant filed first complaint on the next date i.e. 13.11.2003 which is Ex.PX. Since some promises were given by the accused persons to return the amount to the complainant, the complainant did not take further action thereafter. But when the promises were not fulfilled by the accused persons, he again filed second complaint on 21.12.2003 (Ex.PW1/B).
10. The argument of the accused persons that complainant falsely implicated them does not found any favour as the accused persons did not lead any evidence to prove existence of any previous enmity/dispute. Even in cross examination, no suggestion was given to the complainant with regard to existence of any previous enmity/dispute between complainant and accused.
11. The most crucial evidence in the present case is an undertaking dated 14.11.2003 (Ex.PW1/A) which was given by Mohd. Alimu to the complainant. In the said undertaking, accused Alimu stated that he had taken Rs. 1,35,000/ and he will return the said amount by 29.11.2003 and if he fails to do so, the complainant may take legal action against him and against his house/property. The said document is very material in the sense that it was executed between complainant and accused Alimu in the presence of 34 independent witnesses.
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12. The said document has been admitted by Allah Mehar as well as Alimu as regards the signatures but they took a defence that it was executed under force and it was a blank paper only. As per Section 91 and 92 of Indian Evidence Act, if a person dispute contents of a written document, the onus is upon him to prove such circumstances of fraud, compulsion and duress under which he had executed said document. In the instant case, none of the accused persons led any evidence to prove such circumstances. The mere bald allegation that it was got executed in blank is not acceptable being after thought.
13. The accused persons took a defence that they had filed a complaint about execution of the said undertaking (Ex.PW1/A) but the said complaint was filed on 17.11.2003 which shows that it was filed after 03 days of the execution of the said document and it clearly proves a further concoction and after thinking. Moreover the said alleged complaint dated 17.11.2003 has neither been produced on record nor the accused persons led any evidence to prove as to how they pursued further the said complaint.
14. The said undertaking (Ex.PW1/A) does not show any kind of pressure as it was executed in the presence of many independent witnesses and at that time complainant was alone from his side whereas accused persons were 03 and accompanied by many witnesses. From the manner of its execution, it cannot be said signatures were taken on a blank paper.
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15. Moreover the accused persons did not bring on record as to what compelled them to give said undertaking if there was no fault on their part. Moreover there is no allegation that compulsion or pressure was created by the complainant by use of some force of any weapon like a pistol etc. Thus the said defence of the accused is not acceptable being false.
16. Moreover it is the settled preposition of law, the onus to prove the second element of Section 406 IPC i.e. misappropriation of the property is upon the accused persons. Reliance can be placed in this regard on the case law of Jaikrishnadas Manohardasdesai vs. The State Of Bombay 1960 AIR SC 833 wherein it was held that "To establish a charge of criminal breach of trust, the prosecution is not obliged to prove the precise mode of conversion, misappropriation or misapplication by the accused of the property entrusted to him or over which he has dominion. The principal ingredient of the offence being dishonest misappropriation or conversion which may not ordinarily be a matter of direct proof, entrustment of property and failure in breach of an obligation to account for the property entrusted, if proved, may in the light of other circumstances, justifiably lead to an inference of dishonest misappropriation or conversion. Conviction of a person for the offence of criminal breach of trust may not, in all cases, be founded merely on his failure to account for the property entrusted to him, or over which he has dominion, even when a duty to account is imposed upon him, but where he is unable to account or renders an explanation for his failure to account which is untrue, an inference of misappropriation with dishonest intent may readily be made."
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17. From contents of the two complaints filed by the complainant, it is also evidently clear that the story propounded by the accused Allah Mehar and other accused persons about snatching of money by a cat and recovery of the said amount with the help of a Tantrik is ridiculous and unbelievable and the said claims appear to have been made to misguide the complainant only.
18. The accused persons vehemently relied upon a judgment passed in a civil case filed by complainant against accused Alimu for recovery of the amount in question. It is a settled preposition of law that the consideration and procedures for proving and analyzing a fact in civil litigation and the criminal action are altogether different. From the perusal of the judgment of the civil court, it is clear that the suit of the complainant was dismissed on the ground that he took different versions in his plaint and in his deposition. But from the perusal of the said judgement, it is also reveled that the stand taken by the complainant in the said civil suit at the time of his examination on oath are similar with the stands taken in the complaints filed in the present case. This fact further strengthens the truthfulness in the version of the complainant.
19. In the instant case, the most important document is the undertaking (Ex.PW1/A). Counsel for accused persons vehemently argued that the said undertaking has been made by the complainant to purportedly advancing money on loan basis to Alimu whereas in the present case he took a different version of entrustment of the amount.
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20. No doubt there are two different versions in the aforesaid document and the complaints but this court can anticipate the situation under which the undertaking (Ex.PW1/A) was executed by observing the phenomenon that no one (including the accused persons) candidly admits his fault and the accused persons would not have given anything in writing to inculpate themselves about receiving of the amount and its misappropriation. The accused persons gave said undertaking by writing that they had taken the amount on loan basis and it will be given back by 29.11.2003 and the said undertaking clearly draw an inference of sharing of liability of Allah Mehar by his son in law, namely, Alimu.
21. The record also reveals that the main accused is Allah Mehar and Alimu is his son in law and as such being related to each other, the said undertaking was given by Alimu who might be at a better financial position to take the burden of the liability of accused Allah Mehar who was a senior citizen. Accordingly, I find no force in the aforesaid argument about different versions as stated above.
22. In the light of aforesaid facts and circumstances of the case, I hold that the prosecution succeed to prove the essential ingredients of the alleged offence under Section 406 IPC against accused Allah Mehar. Accordingly, accused Allah Mehar is convicted for the offence under Section 406 IPC.
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23. Although the evidence for proving the charge of conspiracy is there but since there was no specific charge framed for the offence under Section 406 IPC against two other accused persons, this court does not want to pass an order for further delaying the decision of the case which is very old by redirecting the framing of charge.
24. However, all the accused persons were also charged for the offence under Section 506 (ii) IPC for giving threat to the complainant. The complainant specifically deposed in his testimony that the accused persons gave threat to him but in his crossexamination, he pointed out the names of the two accused persons, namely, Alimu and Ashraf only and accordingly, I hold that the charge for the offence under Section 506 (i) IPC is only proved against accused Ashraf and Alimu.
25. Counsel for accused persons argued that incident of threat was alleged to be 15 days after the alleged incident of lodging of first complaint. In the original complaint, there was no allegation of threat and as such no Section of threat was added in the FIR. But during the pendency of the investigation, when the accused persons did not return the amount as promised, the complainant approached them and then they gave threats to him, as deposed by him. Accordingly, I hold that the same is also a part of the present trial and that is why a specific charge was framed. Accordingly, two other accused, namely, Ashraf and Alimu @ Allimuddin are convicted for the offence under Section 506 (i) IPC.
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26. Put up for arguments on the point of sentence on 31.03.2017 at 12.30 p.m. Announced in open court (Naresh Kumar Laka) on 14.03.2017. Chief Metropolitan Magistrate (East) Karkardooma Courts : Delhi FIR No.595/2003 State Vs. Ashraf & Ors Page No.11 of 11