Delhi District Court
State vs . on 8 June, 2021
IN THE COURT OF METROPOLITAN MAGISTRATE-07,
SOUTH-WEST, DWARKA COURTS,
NEW DELHI
Presided over by- Sh. Dev Chaudhary, DJS
Cr. Case No. -: 1352/2019
Case ID No. -: DLSW020045082019
FIR No. -: 358/2008
Police Station -: Janakpuri
Section(s) -: 420/468/471/120B IPC
In the matter of -:
STATE
VS.
1.RISHABH KHANNA @ ROHIT S/o Rajender Khanna R/o A-68/1, Ram Nagar, Om Vihar, Uttam Nagar, New Delhi-59.
2. BHARAT TYAGI S/o Chakresh Tyagi R/o B-22, Milap Nagar, Uttam Nagar, New Delhi-59. .... Accused
1. Name of Complainant : Nita Rastogi
1. Rishabh Khanna
2. Name of Accused :
2. Bharat Tyagi Offence complained of or Section 420/468/471/120B
3. :
proved of Indian Penal Code, 1860. 4. Plea of Accused : Not Guilty
5. Date of commission of offence : 04.08.2008
6. Date of Filing of case : 12.06.2009
7. Date of Reserving Order : 06.04.2021
8. Date of Pronouncement : 08.06.2021
9. Final Order : Acquitted DEV Digitally signed by DEV Cr. Case No. 1352/2019 STATE VS. RISHABH KHANNA & ANR. Page 1 of 33 CHAUD CHAUDHARY Date: 2021.06.08 HARY 10:46:31 +05'30' Argued by -: Sh. Naween Kumar, Ld. APP for the State.
Sh. Rajesh Kajla, Ld. counsel for the accused.
INDEX -
(The headings are hyper-linked)
HEADING PAGES
1. Factual Matrix 2-3
2. Investigation and appearance of accused 3-4
3. Prosecution Evidence 4-11
4. Statement of accused and defence evidence 11-12
5. Arguments 12-13
6. Forgery 13-16
7. Cheating 16-22
8. Use of cheated amount 22-24
9. Tainted investigation 24-32
10. Conclusion 32-33
BRIEF STATEMENT OF REASONS FOR THE DECISION -:
FACTUAL MATRIX
1. The case of the prosecution is that the accused persons lured the complainant with a promise to secure admission of her son in an educational institute, and in the process, duped her. It is alleged that in the year 2008, the complainant Nita Rastogi and her husband had gone to Maharaja Surajmal Institute of Management (hereinafter, "the Institute") to get their son admitted in the B.B.A course. On 09.07.2008, they had met accused Bharat Tyagi there, who had assured them that he will get their ward admitted to the Institute under management quota. On 10.07.2008, they met again and were told that the other accused, Rishabh Khanna, was already a student studying in the Institute, who had links with the Director. On the said assurance, the complainant paid to the accused Rs. 48,000/- as annual fees and DEV Digitally signed by DEV Cr. Case No. 1352/2019 STATE VS. RISHABH KHANNA & ANR. Page 2 of 33 CHAUDH CHAUDHARY Date: 2021.06.08 ARY 10:46:42 +05'30' Rs. 1,000/- towards the application form. The accused persons handed over receipts of the Institute acknowledging the same.
Thereafter, the accused persons asked the complainant for an additional sum of Rs. 2,70,000/- to be paid to the Director, as a bribe for the admission. The said amount was also paid in cash on the same day. Thereafter, it was assured that the admission of the child of the complainant is secured. However, no such admission was ever granted and the complainant later found out that the receipts given to her were forged. As such, it is alleged that the accused persons committed the offences under Section 420/468/471/34 of the Indian Penal Code, 1860 (hereinafter, "IPC"), for which FIR No. 358/2008 was registered at P.S. Janak Puri on 19.11.2008.
INVESTIGATION AND APPEARANCE OF ACCUSED
2. After registration of the FIR, the Investigating Officer (hereinafter, "IO") undertook investigation and on culmination of the same, charge-sheet was filed against the accused Rishabh Khanna and Bharat Tyagi. After taking cognizance of the offence under Section 420/468/471/34 of IPC, the accused were summoned to face trial vide order dated 12.06.2009.
3. On appearance of the accused persons, a copy of charge- sheet was supplied to them in terms of Section 207 of the Code of Criminal Procedure, 1973 (hereinafter, "CrPC"). After finding a prima facie case against the accused, charge for offences under Section 420/471/120B IPC was framed against both the accused persons and charge for offence under Section 468 IPC was framed against accused Rishabh Khanna only. The accused persons pleaded DEV Digitally signed by DEV Cr. Case No. 1352/2019 STATE VS. RISHABH KHANNA & ANR. Page 3 of 33 CHAUDHA CHAUDHARY Date: 2021.06.08 RY 10:46:53 +05'30' not guilty to the aforesaid charges and claimed trial.
PROSECUTION EVIDENCE
4. During the trial, the prosecution led the following oral and documentary evidence against the accused to prove its case beyond reasonable doubt-:
ORAL EVIDENCE PW 1 : Nita Deep Rastogi (Complainant) PW 2 : R.D. Rastogi (Husband of Complainant) PW 3 : Dr. M.S. Chaudhary (Director of Institute) PW 4 : HC Chhailu Singh (Formal) PW 5 : Naveen Bhardwaj (Car Mechanic) PW 6 : Varun Mehra (Hotel owner) PW 7 : Yogender Singh (Hotel Manager) PW 8 : Ravi Garg (Friend of accused) PW 9 : Ct. Vishram (Formal) PW 10 : ASI Uttam Chand (IO) PW 11 : SI Umed Singh (IO) DOCUMENTARY EVIDENCE Ex. PW1/A : Receipt for Tuition/Annual Fee Ex. PW1/B : Receipt for admission form Ex. PW1/C : Complaint Ex. PW1/D : Seizure memo of receipts Ex. PW1/E : Specimen handwriting sheets (Colly) Ex. PW2/A : Specimen handwriting sheets (Colly) Ex. PW2/D1 : Statement Ex. PW3/1 : Letter from IO to the Institute Ex. PW3/2 : Reply to letter of the IO Ex. PW4/A : Copy of FIR Ex. PW4/B : Endorsement on rukka Ex. PW5/A : Bill of car repair Ex. PW6/A : Statement of witness under Section 161 CrPC Mark X : Reply of witness Mark Y : Receipt Ex. PW7/A : Receipt Mark Z : Photocopy of registration of Hotel Ex. PW9/A : Arrest memo of Rishabh Khanna Ex. PW9/B : Personal search memo of Rishabh Khanna Ex. PW9/C : Arrest memo of Bharat Tyagi Ex. PW9/D : Personal search memo of Bharat Tyagi Ex. PW9/E : Disclosure statement of Rishabh Khanna DEV Digitally signed by Cr. Case No. 1352/2019 STATE VS. RISHABH KHANNA & ANR. Page 4 of 33 CHAUDHAR DEV CHAUDHARY Date: 2021.06.08 Y 10:47:03 +05'30' Ex. PW9/F : Disclosure statement of Bharat Tyagi Ex. PW9/G : Specimen signature of Rishabh Khanna Ex. PW9/I : Specimen signature of Bharat Tyagi Ex. PW10/A : Seizure memo of Nokia phone Ex. PW10/B : Endorsement on complaint Ex. P1 : Mobile Phone Ex. PW11/A : Pointing out memo DOCUMENTS ADMITTED UNDER SECTION 294 CrPC Ex. A1 : FSL Report
5. Nita Deep Rastogi (PW1) is the star witness of the prosecution, being the complainant in the present case. She took the stand to depose that she had gone to the Institute alongwith her husband on 09.07.2008, where she met accused Bharat Tyagi. The said accused had assured them about the admission of their child. On 10.07.2008, she again went to the Institute with her husband, where they met both the accused. Accused Bharat Tyagi told them that accused Rishabh Khanna was a second year student of B.Tech at the said Institute. They handed over the admission form of the Institute and assured her that they will get her son admitted to the Institute. They handed over receipt Ex. PW1/B of Rs. 600/- towards admission form and another receipt Ex. PW1/A of Rs. 48,000/- towards annual/tuition fee, after payment of money. The accused demanded Rs. 2,70,000/- additionally, stating that this amount is to be given to the Director of the Institute. The said amount was given in cash to the accused persons, for which no receipt was issued. The witness deposed that the accused persons kept assuring her that her son will be admitted to the Institute. Accused Bharat Tyagi called her on 30.07.2008 and demanded a further sum of Rs. 1,50,000/-, which the witness refused to pay. Both the accused persons had met the witness DEV Digitally signed by DEV Cr. Case No. 1352/2019 STATE VS. RISHABH KHANNA & ANR. Page 5 of 33 CHAUDH CHAUDHARY Date: 2021.06.08 ARY 10:47:14 +05'30' at her house on 30.07.2008 in this regard. The witness deposed that she went to the Institute alongwith her husband on 31.07.2008 to talk to the accused persons, who again assured her regarding the admission of her son. It is stated in the testimony of the witness that on 04.08.2008, they went to the Institute and got the receipts verified, which turned out to be fake. She then lodged a complaint at P.S. Janak Puri. The accused persons left Delhi on 31.07.2008. 5.1. During her cross examination, Nita Deep Rastogi (PW1) admitted that she is aware that giving a bribe is an offence. She stated that she was aware that there is a discretionary management quota, in which students are admitted when they cannot be accommodated in general quota. She stated that she might have read the prospectus. Further, she stated that her son was eligible in the C.E.T. The witness stated that both she, and her husband were income tax assesses. She did not remember who she met at the reception of the Institute when she had gone there and further admitted not giving any written complaint to the Institute for verification of receipts. She denied the suggestions of the defence regarding involvement of a tout in the transaction. She admitted lodging a complaint regarding the conduct of the IO ASI Uttam Chand, however, denied the same being lodged due to the fact that there was nothing against the accused persons. The witness stated that she did not know in whose writing the admission form was filled.
6. R.D. Rastogi (PW2) is the husband of Nita Deep Rastogi (PW1). He entered into the witness box and deposed on similar lines as PW1. He stated that he had visited the Institute on 09.07.2008 and 10.07.2008 with his wife, for admission of his child DEV Digitally signed by DEV Cr. Case No. 1352/2019 STATE VS. RISHABH KHANNA & ANR. Page 6 of 33 CHAUD CHAUDHARY Date: 2021.06.08 HARY 10:47:26 +05'30' Prakhardeep Rastogi in B.B.A course. He deposed about meeting accused Bharat Tyagi and Rishabh Khanna there, and giving an amount of Rs. 1,000/- towards admission form, Rs. 48,000/- towards annual fee and Rs. 2,70,000/- towards bribe for the Director. He stated about meeting the accused persons on 31.07.2008, who assured admission of his son in the Institute. He stated that it was revealed during investigation that the accused had purchased a car, a stereo and a mobile phone on the day they took money from the complainant. He stated that father of accused Rishabh had deposited Rs. 25,000/- in the Police Station, out of which Rs. 15,000/- was given to him and rest of the amount was adjusted towards the expenditure for going to Manali. He identified the accused persons in court. 6.1. In his cross examination, R.D. Rastogi (PW2) stated that he is M.Sc, M.Tech and M.B.A. He stated that they had come to know that there is management quota in every institute of I.P. University. He stated that his son had appeared in the entrance exam and had secured a rank of approx. 6000. He deposed that the admission form was filled up by his son, who had also accompanied him and PW1 to the Institute on 10.07.2008. However, he stated that this fact was not told to the police as his son had only gone for the purpose of filling up the admission form. The witness admitted being part of the departmental enquiry against the IO. However, he stated that it was different than the present case. He stated that accused Bharat Tyagi was alone when they had first met him. PW2 further stated that he had kept the amount at his home, which he later gave to the accused persons. He stated that he can show the ITR of the relevant year. The witness denied the suggestions put to him by the DEV Digitally signed by DEV CHAUD CHAUDHARY Date: 2021.06.08 Cr. Case No. 1352/2019 STATE VS. RISHABH KHANNA & ANR. Page 7 of 33 HARY 10:47:38 +05'30' defence.
7. Dr. M.S. Chaudhary (PW3) was the Director of Maharaja Surajmal Institute in March 2009. He proved on record the reply given by the Institute to the IO.
7.1. In his cross examination, Dr. M.S. Chaudhary (PW3) stated that he did not lodge any complaint on behalf of the Institute. Further, he stated that the complainant or her husband never met him and he had no personal knowledge about the present case.
8. Naveen Bhardwaj (PW5) deposed on oath that he runs a car repair shop in Mandi, Himachal Pradesh. He stated that in August 2008, a boy came to his shop alongwith a Maruti Baleno. The vehicle was dented from the front side and the radiator was broken. He stated that the vehicle was kept for 2-3 days and was repaired. He deposed that he did not know the name of the person who brought the vehicle and stated that someone from Delhi Police approached him and the witness handed over a copy of the bill to the police official. 8.1. In his cross examination, Naveen Bhardwaj (PW5) failed to identify the accused in court.
9. Ravi Garg (PW8) deposed on oath that around 6-7 years ago, he alongwith his girlfriend and accused Bharat Tyagi had gone to Manali. The witness deposed that they had gone in the car of accused Bharat Tyagi and the girlfriend of the said accused also accompanied them. The car was a Maruti Baleno. He stated that on the way, the vehicle collided and after leaving the car in the workshop, they went to Manali via bus. He stated that accused Bharat had used his mobile to make some call and later on one lady called the witness and informed that Bharat Tyagi had cheated her and fled DEV Digitally signed by DEV Cr. Case No. 1352/2019 STATE VS. RISHABH KHANNA & ANR. Page 8 of 33 CHAUDH CHAUDHARY Date: 2021.06.08 ARY 10:47:51 +05'30' away. The witness identified the vehicle.
9.1. In his cross examination, Ravi Garg (PW8) stated that he did not remember the registration number of the vehicle. He stated that his girlfriend was not joined in the investigation by the IO and his mobile was also not seized during investigation. He stated that the IO did not enquire from him regarding the number of the lady who called him and he did not inform the IO about the same. He stated that he did not remember the name of the girlfriend of accused Bharat Tyagi. He stated that they had met with an accident twice.
10. Ct. Vishram (PW9) deposed on oath that he joined IO SI Umed Singh in the investigation in the present case on 18.04.2009. He proved on record the investigation done in the present case and deposed about the arrest of the accused, taking of specimen signatures of the accused etc. 10.1. In his cross examination, Ct. Vishram (PW9) admitted that the residential area, where the house of the accused is located, is a thickly populated area and no public persons were joined by the IO during the arrest of the accused.
11. ASI Uttam Chand (PW10) deposed on oath that he was posted as P.S. Janakpuri on 04.08.2008. He deposed that after receiving a complaint from the complainant, he came to know that the accused persons had gone to Manali. When he found the accused, they informed him that they had brought one Maruti Baleno Car and a Nokia phone from the cheated amount. It was stated by the witness that he took the accused persons and the damaged car from Manali to the Police Station and the accused persons were handed over to their families. The car was taken into custody to verify the registration of DEV Digitally signed by DEV Cr. Case No. 1352/2019 STATE VS. RISHABH KHANNA & ANR. Page 9 of 33 CHAUDH CHAUDHARY Date: 2021.06.08 ARY 10:48:04 +05'30' the same. Thereafter, the FIR was registered. The witness identified the mobile phone and the accused persons in the court. 11.1. In his cross examination, ASI Uttam Chand (PW10) admitted that whenever a property or a vehicle is seized during investigation, the same is done via a seizure memo and thereafter the property is deposited in the Malkhana. He admitted that case property / vehicle cannot be brought to the Police Station and be kept there. He admitted that in the present case, the Baleno car was brought by him to the Police Station from Manali, prior to the registration of FIR. He admitted that he did not make any enquiry from the RTO with respect to the ownership of car. He stated that the arrival / departure entries were handed over to the IO but the same are not on file. The witness deposed that he had claimed reimbursement for his trip to Himachal Pradesh and handed over the proof of the same to the IO. The witness deposed that he had gone to Manali with two constables and stated the complainant is a lawyer. He also stated that he did not take any action against the complainant for offering bribe.
12. SI Umed Singh (PW11) is the second IO in the present case. He took the stand to depose that he seized the receipts produced by the complainant and got them verified from the Institute. He arrested the accused persons and prepared the pointing out memo. Thereafter, he took the specimen signatures and went to Himachal Pradesh for further investigation of the case. 12.1. In his cross examination, SI Umed Singh (PW11) stated the he did not remember if he made any enquiry about the ownership of the vehicle and stated that he had not given any notice to Transport Department in this regard. He stated that the complainant DEV Digitally signed by CHAUDHA DEV CHAUDHARY Cr. Case No. 1352/2019 Date: 2021.06.08 STATE VS. RISHABH KHANNA & ANR. Page 10 of 33 RY 10:48:19 +05'30' could not tell about the source of money and admitted not giving any notice to the complainant with respect to the source of money. He stated that the complainant had given a complaint against the previous IO, on which departmental enquiry was initiated against the said person. He stated that he did not seize any CD player and further did not make any enquiry with respect to the purchase of the mobile phone. He admitted that no DD entry with respect to his trip to Manali has been placed on record. He stated that no reimbursement was claimed by him with respect to his trip to Manali. The witness further admitted that he has not taken any handwriting samples of the complainant, her husband and her son. Further, the witness admitted that he did not seize any documentary proof with respect to the sale of the car to the accused persons.
13. Apart from this oral evidence, the prosecution has relied upon the documentary evidence referred to in the table above.
STATEMENT OF ACCUSED AND DEFENCE EVIDENCE
14. Thereafter, before the start of defence evidence, in order to allow the accused to personally explain the incriminating circumstances appearing in evidence against them, the statements of the accused persons were recorded separately without oath under Section 281 read with Section 313 CrPC. In reply, accused Rishabh Khanna stated that he is innocent and has been falsely implicated in the present case. He further stated, as under-:
"I had not issued any receipts to the complainant. I had gone to Maharaja Suraj Mal Institute alongwith accused Bharat Tyagi with regard to the admission of his brother. There Bharat Tyagi was talking to a tout and complainant was also talking to said tout. The money might have been paid to tout by the complainant and the tout DEV Digitally signed by DEV CHAUDHARY Cr. Case No. 1352/2019 STATE VS. RISHABH KHANNA & ANR. Page 11 of 33 CHAUDHA Date: 2021.06.08 RY 10:48:33 +05'30' had ran away and I was falsely implicated by the complainant alleging that the tout was known to us. Nothing was recovered from my possession. I had not gone to Manali as alleged by prosecution."
Thereafter, he stated that he did not wish to lead defence evidence. Accused Bharat Tyagi raised a similar defence and additionally stated that the police had falsely seized the Baleno car, which was purchased by his father. He stated that he wished to lead defence evidence.
15. The defence led the following oral and documentary evidence during the trial -:
ORAL EVIDENCE DW 1 : Chakresh Tyagi DOCUMENTARY EVIDENCE DW 1/1 : Copy of RC of vehicle (OSR)
16. Chakresh Tyagi (DW1) is the superdar of the vehicle bearing no. DL 3CY 2091 and he has proved the RC of the vehicle on record.
16.1 In his cross examination, Chakresh Tyagi (DW1) stated that he is the father of accused Bharat Tyagi and he did not remember the exact date, month, period of the purchase of the vehicle. He stated that he did not know how to drive and his son used to drive the said vehicle.
ARGUMENTS
17. I have heard the ld. APP for the State and ld. counsel for the accused at length. I have also given my thoughtful consideration to the material appearing on record.
18. It has been argued by the ld. APP for the State that all the ingredients of the offence are fulfilled in the present case. There DEV Digitally signed by DEV Cr. Case No. 1352/2019 STATE VS. RISHABH KHANNA & ANR. Page 12 of 33 CHAUDH CHAUDHARY Date: 2021.06.08 ARY 10:48:48 +05'30' are specific allegations against the accused and the prosecution witnesses have proved the factum of the transaction. He contends that the IO was hand in glove with the accused persons and as such, the complainant had complained against his conduct. Further, he contends that the receipts are amply proved to be fake. As such, it is prayed that the accused persons be punished for the said offences.
19. Per contra, ld. counsel for the accused has argued that the State has failed to establish its case beyond reasonable doubt. Ld. counsel has argued that the whole case is fabricated, which is evident from the evidence of the prosecution itself. He has asserted that the IO has himself admitted that he had conducted investigation prior to the registration of the FIR. The FIR was lodged after an inordinate delay. It is argued that the investigation is tainted and the witnesses produced by the prosecution are not reliable. He has further argued that there are substantial inconsistencies in the deposition of the material witnesses. It is argued that the complainant had lodged a complaint against the IO of the case, which is why the IO falsely implicated the present accused persons. It is argued that the FSL result is also in favour of the defence and the offence of forgery is not proved. As such, it is prayed that the accused persons be acquitted for the said offences.
FORGERY
20. Accused Rishabh Khanna alone has been charged with the offence of Forgery punishable under Section 468 IPC, as the receipts Ex. PW1/A and Ex. PW1/B, allegedly issued by the Institute, were found to be fake during the investigation. In order to prove the DEV Digitally signed by DEV Cr. Case No. 1352/2019 STATE VS. RISHABH KHANNA & ANR. Page 13 of 33 CHAUDHA CHAUDHARY Date: 2021.06.08 RY 10:49:03 +05'30' said offence, the prosecution has to first prove that the document is forged. It is also to be proved that the accused committed forgery in terms of Section 463 IPC, with the intent of cheating the victim. Thus, merely preparing a forged document without proving the requisite mens rea to cheat would not satisfy the requirements of the provision. Even for proving the offence of forgery simpliciter, the necessary mens rea is required to be proved by the prosecution.
21. In the present case, the prosecution has relied upon the testimonies of PW1, PW2 and PW3 to prove the said offence. Further, it has relied upon the FSL report Ex. A1. The complainant PW1 has deposed in this regard that the accused persons met her on 10.07.2008 and gave her receipts Ex. PW1/A and Ex. PW1/B, which were towards the admission form of Rs. 1,000/- and admission fee of Rs. 48,000/-. PW2, who is the husband of PW1 and was present on the said date, deposed on similar lines. PW3 is the Director of the Institute, who deposed that he received a letter from the IO of the present case and replied to him vide letter dated 13.03.2009, Ex. PW3/2. As per Ex. PW3/2, the Institute has stated that the receipts dated 10.07.2008, Ex. PW1/A and Ex. PW1/B, were not issued by the Institute and are fake. The said receipts were sent to the FSL for examination. As per the result of the FSL, Ex. A1, the receipts were examined for handwriting matches against the specimen handwritings of both the accused persons, the complainant and her husband (PW2). The findings of the FSL are as under:
"I. It has not been possible to link the authorship of red enclosed stamped and marked Q1 in comparison with red enclosed writings similarly stamped and marked S1 to S27; S28 to S54; S55 to S70 as well as S71 to S85.
II. On comparison of red enclosed writings marked Q2 with
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the red enclosed writings marked S1 to S27 some similarities are observed in formation of characters such as letter 's', 'r', 'n', 'R', 'y' etc. But all the features as occurring in questioned writings could not express a definite opinion on red enclosed writings stamped and marked Q2 in the absence of admitted genuine writings of person concern.
III. It has not been possible to express any opinion on red enclosed signatures stamped and marked Q1/1 and Q2/1 in the absence of similar comparable materials." (Emphasis supplied)(S1 to S27 are the specimens of accused Rishabh Khanna) This is the evidence on record against the accused qua the offence of Forgery.
22. However, in the considered opinion of this Court, the evidence on record does not prove the offence beyond reasonable doubt. At the outset, it is observed that the witnesses PW1 and PW2 did not see the accused Rishabh Khanna forging the receipts. They have only deposed that the receipts were given to them. Pertinently, the witnesses have not even deposed as to which accused had handed over them the receipts. Mere possession of a fake document does not ipso facto prove the offence of forgery. The evidence of the witnesses PW1 and PW2 does not throw light on the intent of the accused person, as no utterance of the accused is deposed about. This aspect is elaborated later on. It cannot be inferred that the accused had the requisite mens rea only due to the fact that he/they handed over the receipts to the complainant. The prosecution has not brought any other witness to prove as to how, where and under what circumstance the accused forged the receipts.
23. The only circumstance thus remaining is the FSL result, Ex. A1. However, the FSL result does not support the version of the prosecution. The writing of the accused persons has not matched the writing on the impugned receipts, Ex. PW1/A and PW1/B. The report DEV Digitally signed by DEV CHAUDHARY Cr. Case No. 1352/2019 STATE VS. RISHABH KHANNA & ANR. Page 15 of 33 CHAUDHAR Date: 2021.06.08 Y 10:49:42 +05'30' only states that "some similarities" were found between the specimen writing of accused Rishabh Khanna and the formation of certain letters on receipt Ex. PW1/B. However, this in itself does not implicate the accused, as the report mentions that no definite opinion can be given. Even though expert opinion is relevant under Section 45 of the Indian Evidence Act, 1872, handwriting opinion in itself is a weak type of evidence. It is settled law that conviction should not be based solely on the expert evidence, without any corroboration. Reliance is placed on the observations of the Hon'ble Apex Court in Magan Bihari Lal vs. State of Punjab (1977) 2 SCC 210, where it was observed as under-:
"7. ... It is now well settled that expert opinion must always be received with great caution and perhaps none so with more caution than the opinion of a handwriting expert. There is a profusion of precedential authority which holds that it is unsafe to base a conviction solely on expert opinion without substantial corroboration. This rule has been universally acted upon and it has almost become a rule of law."
The nature of the handwriting opinion is thus intrinsically weak and coupled with the fact that no definite opinion has been expressed in Ex. A1 by the FSL, nothing substantial has come on record to fasten liability on the accused. Thus, it can be safely concluded from the above discussion that the prosecution has utterly failed to prove the offence under Section 468 IPC against the accused Rishabh Khanna, as neither the mens rea nor the actus reus of the offence has been proved beyond reasonable doubt.
CHEATING
24. The offence of cheating is defined under Section 415 of DEV Digitally signed by DEV CHAUDHARY CHAUDHA Date: 2021.06.08 Cr. Case No. 1352/2019 STATE VS. RISHABH KHANNA & ANR. Page 16 of 33 RY 10:49:59 +05'30' the IPC. Section 420 IPC is attracted where property is delivered on account of such cheating. The essential ingredients of the offence were recently culled out by the Hon'ble Supreme Court in Prof. R.K Vijayasarathy Vs. Sudha Seetharam (2019) 16 SCC 739, in the following terms-:
"16. The ingredients to constitute an offence of cheating are as follows:
16.1. There should be fraudulent or dishonest inducement of a person by deceiving him:
16.1.1. The person so induced should be intentionally induced to deliver any property to any person or to consent that any person shall retain any property, or 16.1.2. The person so induced should be intentionally induced to do or to omit to do anything which he would not do or omit if he were not so deceived; and 16.2. In cases covered by 16.1.2. above, the act or omission should be one which caused or is likely to cause damage or harm to the person induced in body, mind, reputation or property.
17. A fraudulent or dishonest inducement is an essential ingredient of the offence. A person who dishonestly induces another person to deliver any property is liable for the offence of cheating.
18. Section 420 of the Penal Code reads thus: "420. Cheating and dishonestly inducing delivery of property.--
Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."
19. The ingredients to constitute an offence under Section 420 are as follows:
19.1. A person must commit the offence of cheating under Section 415; and 19.2. The person cheated must be dishonestly induced to
(a) deliver property to any person; or
(b) make, alter or destroy valuable security or anything signed or sealed and capable of being converted into valuable security.
20. Cheating is an essential ingredient for an act to constitute an offence under Section 420."
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Therefore, the burden is on the prosecution to prove the aforesaid ingredients of the offence.
25. Ld. APP for the State has argued that the ingredients are amply fulfilled as the witnesses PW1 and PW2 have categorically deposed about the involvement of the accused persons. The evidence of the transaction is clear and cogent. Per contra, Ld. counsel for the accused has argued that the testimony of the witnesses is unreliable as there are many inconsistencies. Further, the intent of the accused is not proved by the evidence on record.
26. In the present case, PW1 is the complainant and the main prosecution witness. PW2 is her husband and was present with her at the time of the transaction. However, in the considered opinion of this Court, the testimony of both these witnesses is not reliable, due to the reasons discussed hereinafter. In her testimony, PW1 has deposed that accused Bharat Tyagi first met her on 09.07.2008 and assured admission of their son in the Institute. It is nowhere stated in the testimony of this witness or PW2 as to under what circumstances the accused gave them the assurance. It is not the case that the accused had approached them with an offer to get their son admitted. Admittedly, the parties were not known to each other beforehand. There is nothing on record to suggest that the accused on 09.07.2008 asked PW1 and PW2 to bring the said amount with them on 10.07.2008. The witnesses then deposed that they again went to the Institute on 10.07.2008 where they met both the accused persons. It is deposed that on the said date, the accused took Rs. 1,000/- for admission form, Rs. 48,000/- for admission fees and Rs. 2,70,000/- for bribing the Director. PW1 has deposed that the accused demanded DEV Digitally signed by CHAUDHA DEV CHAUDHARY Cr. Case No. 1352/2019 Date: 2021.06.08 STATE VS. RISHABH KHANNA & ANR. Page 18 of 33 RY 10:50:34 +05'30' Rs. 2,70,000/- from her, so as to bribe the Director. However, no such demand has been mentioned by PW2 in his testimony.
27. Pertinently, the source of money paid to the accused persons also remains unexplained. PW1 in her cross examination has stated that she and her husband were both income tax assesses but stated that she did not remember the Income Tax Return filed by her for the year 2008. Further, she did not remember the denomination of money given to the accused. PW2 stated in his cross examination that he did not remember the denomination but most of the currency notes were of Rs. 500/- and Rs. 1000/-. No specific number has been mentioned by the witness. He further stated that he can produce the Income Tax Return filed by him for the year 2008. However, no such return was brought on record. Merely stating that the amount was kept in the house, without explaining as to how the same was obtained, is a factor which will only favour the accused, when viewed in light of the other circumstances highlighted in this discussion.
28. Further, the witnesses have not explained as to how the accused persons gave them the receipts in question, instantaneously. It is not the case of the prosecution that the accused went anywhere with the money and then came back to handover the receipts. The only testimony being that the accused took money and handed over the receipts. It is highly unbelievable that the accused persons procured receipts instantaneously and yet the complainant did not question them. There is no whisper in the depositions of PW1 and PW2 as to how did the accused got the receipts. At this juncture, it is pertinent to note that the receipts in question are also not free from defect. The first receipt, Ex. PW1/A, purportedly relates to the DEV Digitally signed by DEV CHAUDH CHAUDHARY Cr. Case No. 1352/2019 STATE VS. RISHABH KHANNA & ANR. Page 19 of 33 Date: 2021.06.08 ARY 10:50:54 +05'30' admission fees. The total amount mentioned in the receipt is Rs. 36,000/-. However, in the same receipt, at another place, the amount is mentioned as Rs. 48,000/-. The other receipt, Ex. PW1/B is towards the admission form and the same is of Rs. 600/-. PW1 admitted in her cross examination that she did not mention the fact of the receipt being of Rs. 600/- in her complaint Ex. PW1/C. It is hard to believe that PW1 and PW2 did not question the accused persons when the receipts issued to them were clearly of a different amount than the amount paid by the complainant. As per evidence of the PW 10 and PW11, the complainant is a lawyer by profession and as per the cross examination of PW2, he is highly educated having completed M.Sc, M.Tech and MBA. Therefore, despite being highly educated, the witnesses did not question the accused regarding the difference in the written amount and the amount handed over, which throws a doubt on the version of these witnesses.
29. Another factor worth mentioning is the inconsistencies in the testimonies of PW1 and PW2. PW1 has taken the stand to depose that on 09.07.2008, she had gone to the Institute alongwith her husband. Thereafter, on 10.07.2008, her husband accompanied her to the Institute. The said witness has not deposed about the presence of any other person accompanying them on these dates. In her cross- examination, she stated that she did not remember in whose presence and in whose writing the admission form was filled. PW2 also did not disclose the presence of any other person on 09.07.2008 and 10.07.2008, at the Institute. However, when he was cross-examined, he disclosed that their son had accompanied them to the Institute on 10.07.2008. In fact, the witness deposed that the admission form was DEV Digitally signed by DEV Cr. Case No. 1352/2019 STATE VS. RISHABH KHANNA & ANR. Page 20 of 33 CHAUDHA CHAUDHARY Date: 2021.06.08 RY 10:51:13 +05'30' filled by his son. He further admitted that the said fact was also not disclosed to the Police. Thus, both the witnesses did not disclose the fact that their son was accompanying them to the Institute, at the time of the transaction. Since the transaction in question occurred on 10.07.2008, the presence of the son of the witnesses on the said date assumes significance, he being the eye-witness to the transaction. However, this fact was elicited for the first time only during the cross- examination of PW2. Therefore, the testimony of the witnesses PW1 and PW2, by selectively hiding relevant facts, is not very reliable. Another fact worth mentioning is that the admission form was never seized by the Police during the investigation. The Institute in its letter Ex. PW3/2 has stated that no application of the son of the complainant was received by it for admission. As such, it remains a mystery as to what happened with the admission form filled by the son of the complainant on 10.07.2008. No recovery of such form was made from the accused.
30. Further, PW1 in her testimony has stated that on 04.08.2008, "they" went to the Institute to verify the receipts. However, PW2 in his examination-in-chief has stated that his wife had gone alone to the Institute to verify the receipts. When questioned, the complainant stated that she cannot tell the name of person/receptionist who she met at the Institute regarding verification of the receipts. Admittedly, no written request was made to the Institute by the complainant or her husband. Therefore, the complainant has failed to explain as to how did she get the receipts verified.
31. In view of the above discussion, it is clear that the DEV Digitally signed by DEV CHAUDHARY CHAUDHA Date: 2021.06.08 Cr. Case No. 1352/2019 STATE VS. RISHABH KHANNA & ANR. Page 21 of 33 RY 10:51:32 +05'30' evidence of the main witnesses does not inspire confidence. This Court has no hesitation to hold that the intent of the accused is not proved beyond reasonable doubt. The contradictions and the inconsistencies of the testimonies of the witness makes the version of the prosecution unreliable. Moving forward, the story of the prosecution with respect to how the accused persons used the cheated money is also not proved.
USE OF CHEATED AMOUNT
32. The case of the prosecution is that after the complainant paid a sum of Rs. 3,19,000/- (1000+48000+270000) to the accused persons on 10.07.2008, the accused persons used the said amount to purchase a Baleno car, a stereo and a mobile phone. PW2 has deposed that this fact came to his knowledge. PW10 is the IO who has stated that the accused persons told him that they had purchased the aforesaid items by using the cheated amount.
33. In the opinion of this Court, the prosecution has miserably failed to prove its case on this point. The car, Maruti Baleno, bearing registration no. DL 3CY 2091, was alleged to be purchased by the accused persons on date of receipt of the amount, i.e. 10.07.2008. The IO PW10 has stated that he found the car in Manali and took it into custody, for the purposes of verification of the registration. However, he admitted in his cross-examination that he did not contact the RTO for verifying the ownership of the vehicle. The other IO, PW11 stated that the accused persons vide pointing out memo PW11/A informed him that they had purchased the car from Royal Motors at Naroji Nagar Market. Even though the IO was made DEV Digitally signed by Cr. Case No. 1352/2019 STATE VS. RISHABH KHANNA & ANR. Page 22 of 33 DEV CHAUDHARY CHAUDHA Date: 2021.06.08 RY 10:51:59 +05'30' aware about the place from where the accused allegedly purchased the vehicle, no witness was produced from the said shop to prove this fact. In the cross-examination, he admitted that he did not give any notice to the Transport Department to ascertain the ownership of the vehicle. Thus, the fact remains that the Police did not even care to ascertain if the vehicle belonged to the accused or not. No proof of ownership of the vehicle or any evidence regarding the purchase of the vehicle has been led by the prosecution.
34. Notably, the accused has produced defense witness DW1, who is the father of accused Bharat Tyagi. The witness produced the RC of the Baleno car, DL 3CY 2091. According to the RC, Ex. DW1/1, the vehicle is registered in the name of the witness Chakresh Tyagi. The registration date of the vehicle is 10.12.2002 and the O.S.no. (ownership serial number) is 2. However, even if the witness is the second owner, the date of purchase etc. is not proved on record by the prosecution in any manner whatsoever.
35. In so far as the other two items are concerned, the prosecution has led no evidence to substantiate their claim. The IO PW11 admitted in his cross examination that the accused persons told him that the Nokia phone, Ex. P1, belonged to them. However, he did not make any inquiry regarding the proof of purchase of the mobile phone. Notably, the seizure memo of the mobile phone, Ex. PW10/A, does not mention that the same was sealed at the time of seizure. Further, it has come on record from the testimony of PW8 that the accused Bharat Tyagi had a mobile shop at Shoe Market, Uttam Nagar. Therefore, it cannot be said that the possession of a mobile phone by the accused was suspicious. Similarly, the IO PW11 DEV Digitally signed by DEV CHAUDHARY Cr. Case No. 1352/2019 STATE VS. RISHABH KHANNA & ANR. Page 23 of 33 CHAUDHA Date: 2021.06.08 RY 10:52:20 +05'30' admitted that he did not seize any CD player. Thus, from the above discussion, the version of the prosecution with respect to the use of the cheated amount by the accused persons is totally falsified. Not even an iota of evidence has come on record to prove that the accused persons purchased the aforesaid three items using the cheated amount. No documentary evidence has been led in this regard. As such, this fact throws a big doubt on the version of the prosecution.
36. Resultantly, the conclusion of the above discussion is that the prosecution has failed to prove the ingredients of the offence under Section 420 IPC. Similarly, as the requisite intent is not proved, the offence under Section 471 IPC cannot be said to be proved. As discussed above, since the charge of forgery against the accused is not proved, the prosecution has failed to prove that the accused knew or had reason to believe that the receipts were forged. The "use", as required under the provision, is also not proved by the prosecution. The charge under section 120B IPC, which was added in the present case, is also not proved for the reasons mentioned hereinbefore.
TAINTED INVESTIGATION
37. A major thrust of the argument of ld. counsel for the accused is that the investigation in this case is tainted. Ld. counsel for the accused has argued that since the investigation is tainted, the whole prosecution story is rendered untrustworthy. Per contra, Ld. APP submits that minor inconsistencies cannot affect the merits of the case.
38. The case of the prosecution is that after cheating the complainant, the accused persons fled to Manali. During the journey, DEV Digitally signed by DEV CHAUDHA CHAUDHARY Cr. Case No. 1352/2019 STATE VS. RISHABH KHANNA & ANR. Page 24 of 33 Date: 2021.06.08 RY 10:52:42 +05'30' they met with an accident and the car purchased with the cheated amount was sent for repairs. The accused persons stayed at a Hotel in Manali, from where they were apprehended alongwith the Baleno Car in question. They were then brought to Delhi by the IO.
39. In order to prove the fact that the accused were apprehended from Manali, the prosecution has examined as many as four independent witnesses. However, all the four witnesses have utterly failed to prove the case of the prosecution. The first witness is PW5, who runs a car repair shop at Mandi District, Himachal Pradesh. He stated that in August 2008, a boy came to his shop alongwith a Baleno, for repairs. He stated that the vehicle was bearing registration no. DL 3CY 2091. However, the witness failed to identify the accused in the dock. Thus, it is not proved that the accused took the car to the said witness. The second witness is PW6, who is the Hotel owner of Hotel Solang located in Manali. He turned hostile and stated that he had leased out the Hotel. The third witness is PW7, who is the manager of the said Hotel. He proved the seizure memo (Ex. PW7/A) of a receipt, Mark Y, allegedly issued to the accused Bharat. However, the receipt itself was never proved on record. Further, the witness admitted in his cross examination that the identity proof of occupants was not taken in the year 2008. He further admitted that he had produced nothing to prove that he was the manager of the said Hotel.
40. The fourth witness is PW8, who is allegedly a friend of accused Bharat Tyagi. The witness deposed that he went to Manali with Bharat Tyagi and their respective girlfriends around 6-7 years ago. He stated that the accused took them in his car, and they stayed DEV Digitally signed by DEV Cr. Case No. 1352/2019 STATE VS. RISHABH KHANNA & ANR. Page 25 of 33 CHAUDH CHAUDHARY Date: 2021.06.08 ARY 10:53:05 +05'30' in a hotel. He received a call from one lady who told him about the cheating committed by Bharat Tyagi. However, the witness neither recalled the month or date of going to Manali nor disclosed even basic details about his or Bharat Tyagi's girlfriend. He was neither called by the police during investigation nor was his mobile seized. He further did not know the name or address of the Hotel and admitted that the identification of the accused was based on his prior acquaintance. Interestingly, the complainant PW1 stated in her cross- examination that she did not know PW8. The deposition of this witness is also directly contradictory to the version of the IO PW10, who had stated that he had found the accused "persons" in Manali. PW8 has deposed that he went to Manali only with accused Bharat Tyagi. It is apposite to mention here that the IO PW10 never mentioned about the presence of PW8 in Manali in his evidence. This witness thus appears to be planted by the prosecution. Notably, even PW1 has stated in her deposition that accused Rishabh was caught from his house only. PW2 has also deposed on similar lines. As such, it is clear from the discussion that the prosecution has failed to substantiate its case that the accused persons fled to Manali after the incident and were found there. The prosecution's own witnesses have deposed contradictory to each other on this point.
41. Apart from the fact that the prosecution has failed to prove its case on the aforesaid point, the timeline of events is also significant. The complaint Ex. PW1/C is dated 04.08.2008. The same bears a receipt of the Police Station on the same date. The FIR, Ex. PW4/A, was registered on 19.11.2008, i.e., after a delay of more than three months. PW10/B is the endorsement of the IO on the complaint DEV Digitally signed by DEV Cr. Case No. 1352/2019 STATE VS. RISHABH KHANNA & ANR. Page 26 of 33 CHAUDHA CHAUDHARY Date: 2021.06.08 RY 10:53:28 +05'30' and this document is the case put up by the Police to the higher authorities for registration of FIR.
42. It is observed that under the garb of inquiry, the IO conducted the investigation in the present case. Investigation is a process that starts after the registration of FIR under Section 154 CrPC and culminates on filing of chargesheet/final report under Section 173 CrPC. "Investigation", as defined under Section 2(h) of the CrPC includes all proceedings for collection of evidence by the police officer. It is settled law that once a cognizable offence is disclosed, the officer-in-charge of a Police Station is bound to register an FIR in terms of Section 154 CrPC and enter into investigation. The scope of inquiry prior to the registration of FIR is very limited. The mandate of law in this regard is reiterated in the Constitution Bench pronouncement of Lalita Kumari vs. Govt. of U.P. (2014) 2 SCC 1, wherein it was held, inter alia, as under-:
" 120. In view of the aforesaid discussion, we hold :
120.1. The registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation.
120.2. If the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not.
120.3. If the inquiry discloses the commission of a cognizable offence, the FIR must be registered. In cases where preliminary inquiry ends in closing the complaint, a copy of the entry of such closure must be supplied to the first informant forthwith and not later than one week. It must disclose reasons in brief for closing the complaint and not proceeding further. 120.4. ..
120.5. The scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether in the information reveals any cognizable offence.
DEV Digitally signed by
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120.6. As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are as under :
(a) Matrimonial disputes/family disputes
(b) Commercial disputes
(c) Medical negligence cases
(d) Corruption cases
(e) Cases where there is abnormal delay/latches in initiating criminal prosecution, for example, over 3 months' delay in reporting the matter without satisfactorily explaining the reasons for delay. The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry.
120.7. While ensuring and protecting the rights of the accused and the complainant, a preliminary inquiry should be made time bound and in any case it should not exceed 7 days."
Even though this aforesaid decision was pronounced in the year 2014, while the present offence pertains to the year 2008, the legal position enumerated above has been the same throughout. The mandatory nature of Section 154 CrPC is evident from the word 'shall' and this position was clarified before Lalita Kumari supra in other pronouncements like State of Haryana vs. Bhajan Lal 1992 Supp (1) SCC 335, Prakash Singh Badal vs. State of Punjab (2007) 1 SCC 1 and Ram Lal Narang vs. State (Delhi Admn.) (1979) 2 SCC 322, amongst others. The scope of preliminary enquiry in such cases is also not in dispute.
43. In the present case, after the complaint dated 04.08.2008, the IO undertook inquiry well beyond its scope. The IO has not explained in his evidence as to why the abovementioned law was not followed by immediate registration of FIR. The IO kept inquiring into the matter in total contravention of the law. Once a cognizable offence was disclosed, it was to duty of the SHO to register an FIR and initiate investigation. The IO PW10 in his DEV Digitally signed by Cr. Case No. 1352/2019 STATE VS. RISHABH KHANNA & ANR. Page 28 of 33 DEV CHAUDHARY CHAUDHA Date: 2021.06.08 RY 10:54:18 +05'30' evidence has stated that after he received the complaint, he got to know from the family members that the accused persons fled to Manali. He then went to Manali during the inquiry and found the accused persons. They told him about the purchase of a car and mobile phone using the cheated amount. He then "took" the accused persons and car from Manali and brought them to the Police Station in Delhi. The accused were handed over to the family and the car was taken into custody. Thereafter, the FIR was lodged. Therefore, it is clear that the IO not only conducted the investigation by tracing the accused persons and seizing the articles, but also took the accused in his custody without any FIR being registered. The IO PW10 categorically admitted in his cross examination that before registration of FIR, the Baleno car was brought by him to the Police Station from Manali and was kept there. He further admitted that no vehicle or case property can be kept in the Police Station in this manner. The second IO PW11 has also admitted in his cross examination that the correct procedure on seizure is immediate preparation of seizure memo and depositing the article in Malkhana.
44. Therefore, the action of the IO in the present case is without any legal basis. Admittedly, the seizure was done before the registration of FIR. No memo of the seizure was made and no report, as mandated under Section 102(3) CrPC, was sent to the Magistrate. Further, no diary entries with respect to such seizure have been proved. As such, this is clear violation of the mandate of law as contained in the CrPC and Rules 22.16 and 22.18 of the Punjab Police Rules, 1934 (as applicable to Delhi). Further, the IO PW10 has also admitted that he brought the accused to Delhi from Manali. The DEV Digitally signed by Cr. Case No. 1352/2019 STATE VS. RISHABH KHANNA & ANR. Page 29 of 33 DEV CHAUDHARY CHAUDHA Date: 2021.06.08 RY 10:54:41 +05'30' power to arrest is only available during the investigation. Before registration of FIR, the power to arrest is only in limited cases, for example, under Section 151 CrPC, which provides that the police officer can arrest any accused who has a design to commit a cognizable offence, as a preventive measure. In the present case, the offence was allegedly already committed when the IO apprehended the accused. Therefore, the action of the IO is in gross violation of the mandate of law. As already discussed, all this happened around three months before the FIR was lodged by the police.
45. Another fact worth mentioning is that the PW2 in his deposition has stated that the father of Rishabh Khanna had deposited Rs. 25,000/- in the Police Station out of which Rs. 15,000/- was paid to the witness and Rs. 10,000/- was paid to the IO as expenditure for going to Manali. It remains unexplained as to why the father of the accused was required to pay up the money for official visit of the IO to Manali. The IO is permitted to claim reimbursement for travel for official purposes, from the Police Station. There is no justification for this action of the IO. The witness stated that he was issued a receipt for the said amount, but the receipt was never produced. Interestingly, the first IO never produced the departure/arrival entries pertaining to the visit, or any proof demonstrating the claim for travel expenses. The second IO PW11, never claimed such reimbursement for travel to Manali, for reasons only known to him. No diary entries pertaining to the travel, which would have invigorated the case of the prosecution, have been proved on record.
46. Thus, it is clear that the investigation in the present case is tainted. Even though it is settled that tainted investigation is not the DEV Digitally signed by DEV CHAUDH CHAUDHARY Cr. Case No. 1352/2019 STATE VS. RISHABH KHANNA & ANR. Page 30 of 33 Date: 2021.06.08 ARY 10:55:05 +05'30' sole ground for acquittal, as this would tantamount to playing into the hands of the investigator {See: Karnel Singh vs. State of M.P. 1995 (5) SCC 518}, the peculiar circumstances of each case are to be taken into account. As observed earlier, the testimony of the main witnesses of the prosecution in this case does not inspire confidence. Therefore, the fact that the investigation was also defective/tainted would only favour the accused.
47. In this regard, the defence of the accused in this case is also relevant. Accused Rishabh Khanna in his statement recorded under Section 313 CrPC has stated that he had gone to the Institute with Bharat Tyagi for admission of Bharat Tyagi's cousin. As they were talking to a tout, the complainant also came there and talked to the tout. The tout ran away after taking the money of the complainant, and the present accused were falsely implicated. Ld. counsel for the accused has argued that the reason for false implication is also borne out from the record. He contends that as the complainant, who is a lawyer by profession, complained against the IO, the IO in turn implicated the accused persons instead of finding the real culprit. Ld. APP for the State has refuted these contentions by stating that the complaint against the IO was made only because he was hand in glove with the accused.
48. In the considered opinion of this Court, the submissions of the Ld. APP for the State are not proved on record. Although the complainant and her husband denied the involvement of any tout, it was elicited from PW1 that she had lodged a complaint against the IO with respect to his conduct. It is nowhere stated that the complaint was lodged as the IO had shielded the accused persons. Further, the DEV Digitally signed by DEV Cr. Case No. 1352/2019 STATE VS. RISHABH KHANNA & ANR. Page 31 of 33 CHAUDH CHAUDHARY Date: 2021.06.08 ARY 10:55:30 +05'30' witness admitted that she deposed against the IO in the departmental enquiry initiated against him, on account of such complaint. PW2 in his cross examination stated that he also participated in the enquiry against the IO. He deposed that the enquiry was different. However, no elaboration on this point was done by the witness. Accordingly, the probability of this defense of the accused being true cannot be ruled out, in view of the other circumstances appearing on record.
49. The inescapable conclusion of the above discussion is that the investigation in the present case was defective and it cannot be relied upon. The possibility of fabrication and false implication cannot be ruled out and the defense of the accused appears to be plausible. Reliance on such tainted investigation would be unsafe {See: State of A.P. vs. Punati Ramnulu AIR 1993 SC 2644}.
CONCLUSION
50. To recapitulate the above discussion, to bring home the guilt of the accused, the prosecution was required to prove the offences under Section 420/468/471/120B of the IPC beyond reasonable doubt. The accused have been successful in pointing out the deficiencies in the case of the prosecution. The evidence of the main witnesses is not reliable, owning to the holes created by the defence. The intent, which is the essential ingredient of the offence, is not proved beyond reasonable doubt. The FSL reports do not match and the manner of investigation casts serious doubt on the version of the prosecution. Further, the accused has been able to raise doubts with respect to the possibility of false implication. Other inconsistencies in the version of the prosecution have crumbled the DEV Digitally signed by DEV CHAUD CHAUDHARY Date: 2021.06.08 Cr. Case No. 1352/2019 STATE VS. RISHABH KHANNA & ANR. Page 32 of 33 HARY 10:55:56 +05'30' whole case of the prosecution.
51. Resultantly, the accused RISHABH KHANNA and BHARAT TYAGI are entitled for benefit of reasonable doubt and are hereby found not guilty. They are hereby ACQUITTED of the offences under Sections 420/471/120B of the Indian Penal Code, 1860 and accused Rishabh Khanna is further acquitted of the offence under Section 468 IPC.
ORDER -: ACQUITTED Pronounced in open court on 08.06.2021 in presence of both accused through Video-conferencing.
DEV Digitally signed by DEV
CHAUDHARY
CHAUDHARY Date: 2021.06.08 10:56:34
+05'30'
(DEV CHAUDHARY)
Metropolitan Magistrate - 07
South-West District, Dwarka Courts,
New Delhi.
Note: This judgment contains 33 pages and each page has been signed by me.
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