Delhi District Court
State vs . Anil Kumar Sharma. on 25 January, 2020
IN THE COURT OF SH. VIRENDER SINGH: METROPOLITAN
MAGISTRATE-07 : NORTH WEST DISTRICT:ROHINI COURT:
DELHI
STATE Vs. ANIL KUMAR SHARMA.
FIR No. 972/2006.
P.S. Rohini.
Case No. : 532283/2016.
Date of institution of case : 06.01.2009
Date on which case reserved
for judgment : 25.01.2020.
Date of judgment : 25.01.2020.
JUDGMENT :
a) Date of offence : From the year 1996 to
01.09.2006.
b) Offence under Sections : 409 IPC
c) Name of complainant : Sh. Daya Nand Garg.
d) Name of accused, his parentage, : Anil Kumar Sharma S/o
Sh. Rameshwar Dass
Sharma, R/o A-14/3,
Yadav Nagar,
Sammaypur, Delhi.
e) Plea of accused : Pleaded not guilty.
f) Final order : Acquitted
BRIEF FACTS OF CASE OF PROSECUTION ARE AS FOLLOWS:
1. Vide this judgment, this Court shall decide the present FIR No. 972/2006 State Vs. Anil Kumar Sharma 1/11 PS Rohini case instituted on the charge-sheet filed in FIR No. 972/2006 of PS Rohini u/s 409 IPC against accused.
2. Brief facts of the prosecution case are that from the year 1996 to 01.09.2006, accused while working as store incharge under SDOP-1, Rohini, Sector-3, Telephone Exchange for the last 10 years, a surprise check was conducted in the store on 01.09.2006 and it was detected that 712 clip phones wer found short. Preliminary departmental investigation revealed that the accused was entrusted and appointed as storekeeper at the above said address and in his capacity as public servant and while working and holding, the accused had misappropriated the above said clips thereby he committed criminal breach of trust in respect of the property entrusted to him by MTNL. Thereafter the FIR was registered, the matter was investigated and final report was filed for offence u/s 409 IPC.
3. The cognizance was taken and the accused was summoned. Chargesheet was supplied to the accused. Charge for offence u/s 409 IPC was framed against accused to which he pleaded not guilty and claimed trial.
4. The prosecution examined eight witnesses to prove its case.
5. The accused was examined u/s 313 CrPC by putting all incriminating evidence to him to which he pleaded his innocence.
FIR No. 972/2006 State Vs. Anil Kumar Sharma 2/11 PS Rohini
6. The accused has not produced any defence witness.
7. Arguments were heard from both sides.
8. I have considered the submissions of both parties and also gone through the judicial file.
Appreciation of Evidence
9. The prosecution witnesses have proved the documents in following manner:-
i PW1 Dayanand Garg has got marked the documents Mark 1 to 14 and Mark X1 to X7.
ii PW4 Ishwar Singh has got exhibited the documents Ex.PW-4/1 to ex.PW-4/15.
iii PW-5 ASI Mohan Singh has proved the documents Ex.PW- 5/A and Ex.PW-5/B. iv PW6 HC Krishan Pal has got exhibited the documents Ex.PW-6/A to Ex.PW-6/D. v PW7 Retd. SI Jai Parkash has proved the document Ex.PW-7/A.
10. The complainant Sh. Dayanand Garg has deposed as PW-1. He has interalia deposed that on 01.09.2006, the physical verification of store was done by him and he found shortage of clip instruments. He checked the stock register i.e. mark 1 to 14 and thereafter the verification report was prepared. The verification FIR No. 972/2006 State Vs. Anil Kumar Sharma 3/11 PS Rohini report is mark X. It is signed by him, by accused Anil Kumar Sharma, store helper Sh. Sat Narain as well as by Divisional Engineer. He reported the matter to Divisional Engineer (HQ) and on his directions the matter was referred to vigilance for investigation. The store was checked by vigilance team alongwith Divisional Engineer and they also found shortage of clip instruments. On 23.09.2006 he received a letter through Divisional Engineer to lodge FIR against the accused. Thereafter, he lodged a complaint before PS Rohini Rohini on 23.09.2006. The accused was suspended thereafter. Thereafter, the copy of gate pass and copy of issue voucher was handed to K. K. Nayyar, AVO, MTNL. He was cross-examined at length by Ld. Defence counsel.
11. In his cross-examination, he deposed that the document mark X is not forged and its copy is available in office record. He can produce the same, if required. He checked the store twice in regard to the shortage and discussed the matter with seniors and thereafter matter was referred to vigilance. Firstly, he checked the store on his own and thereafter he checked the store on the same day in the presence of Sh. P. N. Vishwaverma, accused and his helper Sat Narain. He is not assured regarding the presence of other officials. He admitted that K. K. Nayyar was not present when he cheched the store. He also stated that he does not know the real name of K. K. Nayyar and he is AVO, Vigilance. There were four stores and the keys of stores were in possession of accused. He did not check old stores. He did not attach any report regarding the shortage of clip phones. He only referred the matter to AVO FIR No. 972/2006 State Vs. Anil Kumar Sharma 4/11 PS Rohini regarding shortage of clip phones. He cannot tell the exact number of shortage of clip phones.
12. PW-2 Sh. Mahesh Kumar Sharma interalia deposed that in the year 2006, he was posted as AVO, MTNL Headquarter. IN the month of September, on the instructions of Senior Officials, he alongwith Krishan Kant Nayyar, Area AVO, GM, North Rohini and Sh. Dayanand Garg, SDOP (1), Rohini, conducted the inspection of outdoor store of MTNL, Sector-3, Rohini, Delhi. The accused Anil Kumar Sharma was store incharge and on inspection of the store they found short of 712 clip telephones causing a loss to the tune of Rs.5 lacs to MTNL. They prepared inspection report and same was sent to GM, Rohini and MTNL Headquarter. He prepared detailed vigilance report, mark X1 and X2. He presented the vigilance report to GM, Rohini, MTNL Sanchar Parishar, Sector-3, Telephone Exchange, Rohini, Delhi duly signed by Vigilance Officer for necessary action. He was duly cross-examined by Ld. Defence counsel. During his cross-examination he stated that he does not know the exact date of inspection but it was in the year 2006. He also does not remember the month of alleged inspection. He conducted the inspection alongwith Sh. Dayanand Garg and Sh. Krishan Kant Nayyar. The inspection report was prepared by him alone in the month of September/October, 2006. It was prepared by him after about 5/7 days of inspection. He could not explain that why PW Sh. Krishan Kant Nayyar has deposed in the court that he has not conducted inspection with him. He does not know any FIR No. 972/2006 State Vs. Anil Kumar Sharma 5/11 PS Rohini person by name of Sat Narain. He could not explain that why he had referred Sat Narain in detail vigilance report. After going through the document mark X2 he admitted that Sat Narain was employed in the division but he does not know whether he was store helper or not. He did not record the statement of Sat Narain. He wrote the role of Sat Narain in detail vigilance report as per the information received from SDOP of concerned area. He was informed by SDOP that Sat Narain was appointed as RM for assistance in store. He does not know whether Sat Narain was working as store helper in the same store where the inspection was conducted from the year 2003 to 2006. He also does not remember about the number of issue slips inspected by him. He also deposed that IO did not record his statement. He did not give any document to IO. He denied that the documents mark X-1, 2 & 3 are forged documents. He denied that he has not filed the inspectiion report to conceal the facts of the case.
13. PW-3 Kewal Krishan Nayyar interalia deposed that he does not know how his name as Krishan Kant Nayyar mentioned by the IO. In the year 2006 he was posted as Area Assistant Vigilance Officer, under GM (North). During that period an information was received by the General Manager from the SDO Rohini that there was shortage of instrument in the store. The GM directed to help the SDO Rohini. During that period some queries were raised from Anil Kumar Sharma who was the store incharge at Sector 3, Rohini, Delhi. But he could not give convincing reply in this regard. The matter was reported to the then GM. Who inturn take up the case FIR No. 972/2006 State Vs. Anil Kumar Sharma 6/11 PS Rohini with the GM Vigilance Headquarters for detailed inquiry. Thereafter, the matter was investigated by Vigilance Headquarters. When he inspected the store it appeared that some clip instruments were found short. However, he does not know the exact quantity of clip instruments which were found short. He could not say whether 712 clip phone instruments were exactly short as suggested by Ld. APP for the state.
14. PW4 Ishwar Singh has interalia deposed about taking of charge after suspension of accused Anil Kumar Sharma. He produced phyiscal verification report containing in stock register of 2006-2007 at page No. 267 Ex.PW4/1 (OSR) and he also produced original of concerned stock register from page No. 121 to 124 and page No. 251 to 260 Ex.PW4/2 to Ex.PW4/15(OSR). The document Ex.PW4/X2 to Ex.PW4/X7 were produced by Bharat Lal, SD, Netaji Nagar during examination of PW4. He was cross examined on behalf of the accused.
15. PW6 HC Krishan Pal has interalia deposed that on the search of the accused nothing was recovered and IO prepared search memo.
16. PW7 Rtd. SI Jai Prakash deposed about the investigation done by him. He was cross examined at length by the ld. Defence counsel.
17. PW8 SI Gurjant Singh has also deposed about FIR No. 972/2006 State Vs. Anil Kumar Sharma 7/11 PS Rohini investigation done by him. He was also cross examined at length by the ld. Defence counsel.
18. After going through the evidence of all prosecution witness it is revealed that PW1 Dayanand Garg, PW2 Mahesh Kumar Sharma and PW3 Kewal Krishan Nayyar are star witnesses.
19. As per evidence of prosecution witnesses one helper namely Sat Narain was also posted at store with the accused. The prosecution witnesses have also deposed that said helper namely Sat Narain also used to issue phone clips. The PW4 Ishwar Singh has also deposed that when he joined as store incharge then he was assisted by one helper Sat Narain. Thus as per the facts of the case there was another person who was dealing with phone clips. Therefore, it cannot be said that the accused only was dealing with the phone clips.
20. PW1 Dayanand Garg has deposed in his cross examination that at the time of inspection Sh. P.N. Vishwaverma, accused and helper Sat Narain was also present at the store. He categorically deposed that Kewal Krishan Nayyar @ Krishan Kant Nayyar was not present when he checked the store. However, PW2 Mahesh Kumar Sharma has deposed that he alongwith Krishan Kant Nayyar, Area AVO, GM, North Rohini and Dayanand Garg conducted inspection of outdoor store of MTNL, Sector-3, Rohini, Delhi. Further PW3 Kewal Krishan Nayyar has deposed that one Mr. Vishwaverma and Mr. Garg, SDO were with him at the time FIR No. 972/2006 State Vs. Anil Kumar Sharma 8/11 PS Rohini of inspection of the store. He categorically deposed in his cross examination that Mahesh Kumar Sharma, AVO (HQ) was not present at the time of abvovementioned inspection. Therefore, prosecution witnesses are not clear that by whom or before whom inspection of store was conducted.
21. PW2 Mahesh Kumar Sharma has deposed to the extent that he does not now any person namely Sat Narain. He also does not know as to why he had referred detail of Sat Narain in vigilance report. It is only after going through the documents he states that Sat Narain was employed in the said division but he did not remember now whether Sat Narain was store helper or not. He also did not tell whether Sat Narain was working as store helper on the day of inspection. He also does not remember about number of short phone clips. Thus the person who has prepared detail vigilance report has not even inquired the helper of accused. Thus prima facie vigilance report is doubtful.
22. PW4 Ishwar Singh has also interaila deposed that both Store Incharge and helper used to carry the work of taking delivery and giving out the telephone instruments and clips as and when need arises. Thus as aforesaid the helper namely Sat Narain was also dealing with the phone clips with the accused herein. None of the prosecution witnesses have deposed that they themselves saw the accused misappropriated the phone clips. They have come to the conclusion only after seeing the documents/record of the FIR No. 972/2006 State Vs. Anil Kumar Sharma 9/11 PS Rohini concerned office.
23. One day police custody of accused was taken by the police during investigation of the case but nothing incriminating has been recovered from the accused or at his instance. The IO admittedly not verified the accounts of complainant, so that it could be verified that accused had deposited the amount after misappropriation of the case property in his account. The prosecution has also failed to produce any other cogent prove of evidence that accused got any money after misappropriation of the case property. Further the lie detector test of the accused was got conducted during investigation of the case and as per report dated 14.02.2007 the accused did not reveal any deceptive response to question asked to him during investigation.
24. As per disclosure statement of the accused he has also disclosed about the involvement of SDO Dayanand Garg i.e. PW1. He has disclosed that in his absence the helper Sat Narain and SDO Dayanand Garg used to sit in his office but none of the prosecution witnesses have deposed that they inquired Sat Narain or Dayanand Garg. Thus the police officials have not done the investigation in proper manner. They were supposed to interrogate Sat Narain and Dayanand Garg but they have not done so. Thus the investigation of the case is not up to the mark.
25. In view of the aforesaid considerations, appreciation of evidence and discussions, the prosecution has failed to prove FIR No. 972/2006 State Vs. Anil Kumar Sharma 10/11 PS Rohini beyond reasonable doubts that the accused has misappropriated 712 phone clips or that accused has committed any offence, therefore, the accused Anil Kumar Sharma is acquitted for offence u/s. 409 IPC.
Digitally signed by VIRENDER VIRENDER SINGH SINGH Date: 2020.01.25 16:37:26 +0530 ANNOUNCED IN THE OPEN (VIRENDER SINGH) COURT ON 25.01.2020 Metropolitan Magistrate-07, North West District, Rohini Court, DELHI. FIR No. 972/2006 State Vs. Anil Kumar Sharma 11/11 PS Rohini