Delhi District Court
Deliver Any Property To Any Person; Or vs Rao V. L. H. V Prasad on 25 October, 2018
State v. Pinchu
IN THE COURT OF MS. SADHIKA JALAN, MM06, NORTH
DISTRICT, ROHINI COURTS, NEW DELHI
State v. Pinchu
FIR no. 155/2012 Date of Institution 23.11.2015
Adarsh Nagar Police Station Judgement Reserved on 16.08.2018
Sections 468, 471, 420 and 511 IPC Date of Judgment 25.10.2018
JUDGMENT
a) Serial Number of the case 5295108/16
b) Date of offence 04.07.2012
c) Name of Complainant Assistant Sub Inspector Satya
Prakash
d) Name and address of the Pinchu, son of Udai Singh, resident
accused of 115A, Shiv Mandir, Govind
Mohalla, Haiderpur, Delhi.
e) Offences complained of Sections 468, 471, 420 and 511 IPC
f) Plea of accused Not Guilty
g) Final Order Convicted under Section 420/511
IPC and acquitted under Section 468
and 471.
h) Date of Order 25.10.2018
i) Order on Sentence 25.10.2018 at 3PM
Brief reasons for the decision--
1. Succinctly stated, it is the case of the prosecution that on 04.07.2012 the accused Pinchu was operating his vehicle in a no entry zone, using a no entry permission certificate which was pasted on his delivery van bearing registration no. DL1LH 9630, whereby he induced the police official for entry in a No Entry Zone. On FIR no. 155/2012 Adarsh Nagar Police Station Page 1 of 9 State v. Pinchu suspicion, the said no entry permission was verified by the complainant and was found to be forged.
2. Upon investigation, chargesheet was filed by the police. Thereafter, accused was supplied documents in compliance of Section 207 Code of Criminal Procedure (hereinafter referred to as CrPC). Charge for the offences punishable under Section 468, 471, 420 and 511 of the Indian Penal Code (hereinafter referred to as IPC). Accused pleaded not guilty and claimed trial.
3. In order to establish the guilt of the accused, prosecution examined seven witnesses. As the first witness, prosecution examined the complainant Sub Inspector Satya Prakash as PW1. He stated that 04.07.2012, he was on MTC duty and was managing the traffic moving from Azadpur to Subzi Mandi. At about 2:10 PM, one delivery van bearing registration no. DL1LH 9630, plying on the wrong side from from Subzi Mandi Towards Azadpur, was stopped by him. When PW1 asked the accused the reason for coming in that direction, he stated that he had a no entry permission certificate. However as copy a coloured copy was pasted on the vehicle, the complainant asked the accused to produce the original certificate. On not getting a satisfactory reply, PW1 got suspicious and sent Constable Mukesh Kumar to verify the certificate. He found the certificate to be forged. He then prepared the complainant, Ex. PW1/A and handed it over to the concerned Station House Officer. Complaint was marked to Sub Inspector Rajeev who then got the FIR registered. No entry permission was seized. Seizure memo is Ex. PW1/B. Offending vehicle was seized vide seizure memo Ex.
FIR no. 155/2012 Adarsh Nagar Police Station Page 2 of 9State v. Pinchu PW1/C. The accused was arrested and personally searched vide memos are Ex. PW1/D and Ex PW1/E respectively. No entry permission certificate is Ex. PW1/F. Letter of verification of said document is Ex. PW1/G and reply of verification letter is Ex. PW1/H. He correctly identified the accused in court. Identity of the case property was not disputed during the examination of said witness. He was crossexamined at length by learned defence counsel.
4. Duty Officer Assistant SubInspector Kalyan Singh was examined as PW2. He stated that on 04.07.2012, at about 5:00 PM, he registered the FIR on the basis of rukka given by Sub Inspector Rajeev. Copy of FIR is Ex. PW2/A and his endorsement on the rukka is Ex. PW2/B.
5. PW3 Head Constable Mukesh accompanied PW1 for managing the traffic. He deposed on similar lines as PW1 in relation to the manner of investigation, verification and seizure of the forged no entry permission. He got the no entry permission verified on asking of PW1.
6. Retired Sub Inspector Ved Prakash who had verified the said no entry permission was examined as PW4. He stated that on 04.07.2012 he had received a request of ASI/ZO Satya Prakash for verification of noentry permission of vehicle bearing no. DL1LH 9630 for year 2012. He stated that he replied that no permission in category of fruits and vegetables in the year 2012 had been given to this vehicle. Reply is already Ex. PW1/H bearing his signatures at point A. FIR no. 155/2012 Adarsh Nagar Police Station Page 3 of 9 State v. Pinchu
7. Investigating Officer Subinspector Rajiv Kumar was examined as PW5. He deposed that he was assigned the case on complianant Ex. PW1/A. He stated that based on the complainant he prepared tehrir which is Ex. PW5/A. He then deposed on similar lines as to the investigation carried out--arrest of accused and seizure of fake no entry permission, as PW1/complainant. He further stated that he recorded the disclosure statement of the accused which is Ex. PW3/A. He also identified the accused in court. Identity if the vehicle was not disputed. Witness was cross examined at length.
8. Subinspector Shashi Kumar is the second investigating officer of the case. He was examined as PW6. He stated that on inquiry from the accused he found out that the noentry slip was made available to him by one Manoj who was the driver of vehicle bearing no. DL1LH 9351. However despite efforts, this driver Manoj could not be traced. He stated that on 29.05.2013, he sent an application to the MLO to verify the ownership of DL 1LH 9351. Carbon copy of which is Mark S1. Details of the vehicle are Mark S2. He also recorded supplementary statement of the complainant. He identified the accused in court. Witness was cross examined.
9. Lastly, the third investigating officer of the case Sub Inspector Praveen Kumar was examined as PW7. He stated that the investigation of the case was marked to him on 10.03.2014. He made efforts to trace Manoj Kumar but could not find him. He then prepared the final challan and filed it in court. He was cross examined by learned defence counsel.
FIR no. 155/2012 Adarsh Nagar Police Station Page 4 of 9State v. Pinchu
10.Thereafter prosecution evidence was closed and the accused was examined under Section 313 read with Section 281, CrPC on 06.08.2018. Accused opted not to lead any defence evidence.
11.Consequently, matter was fixed for hearing final arguments. Arguments of both the prosecution as well as the defence were heard at length. Record perused. Findings are as follows.
12.The cardinal principle of the criminal law is that the accused is presumed to be innocent till he is proved guilty beyond any reasonable doubt. The burden of proving guilt of the accused lies on the prosecution. It is for the prosecution to establish the guilt of the accused beyond reasonable doubt.
13.In the matter at hand, it is the case of the prosecution that the no entry permission Ex. PW1/F being used by the accused was a forged and fabricated document, which was being used by the accused despite knowing it to be forged.
14.The accused has been charged under the offences of Section 468 and 471 IPC. Section 468 IPC sets out the punishment for doing forgery with the purpose of cheating. Whereas, section 471 IPC punishes use of a forged document as genuine. Both these offences are rooted in the offence of forgery, which has been defined in the IPC in Section
463. This Section is produced hereunder for quick reference--
"Section 463: Forgery--Whoever makes any false document or part of a document 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 FIR no. 155/2012 Adarsh Nagar Police Station Page 5 of 9 State v. Pinchu part with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery."
15.The Apex Court in two judge bench judgment in Sheila Sebastian v. R. Jawaharaj and Anr., Criminal Appeal Nos. 359360 of 2010 dated 11.05.2018 while referring to various case laws observed that a charge of forgery cannot be imposed on a person who is not the maker of the same and that making of a document is different than causing it to be made.
16.In the instant matter, the accused stated that he had got he document in question from one Manoj Kumar who was stated to be the driver of vehicle bearing no. DL1LH 9351. PW6 and PW7 both stated that they could not trace Manoj despite efforts. However it is relevant to note that no where through the evidence of the prosecution has it come to light that the accused infact was the maker of the document. Even through the investigation, the police thought and believed that the document was prepared by another and had continuously searched for this person.
17.As stated above, for the accused to be guilty of the charge under Section 468 and 471 IPC, the accused has to be the maker of the document. As the accused has not been proved to be the maker of the document in question, the accused is hereby acquitted of charges under Section 468 and 471 IPC.
18.The accused has further been charged for the offence of attempt to cheating under Section 420 read with Section 511 IPC.
FIR no. 155/2012 Adarsh Nagar Police Station Page 6 of 9State v. Pinchu
19.In order to sustain conviction under Section 420 Indian Penal Code, the prosecution is required to prove that a person has cheated another and thereby induced the other so deceived to deliver any property. The term 'cheating' has been defined under Section 415 of the Indian Penal Code. In every offence under Section 420, Indian Penal Code, the element of cheating must be present. The essential ingredients of cheating are--
1. The deception of any person.
2. Fraudulently or dishonestly inducing that person to:
1. deliver any property to any person; or
2. to consent that any person should retain any property; or
3. Intentionally inducing that person to do or omit to do anything which that person would not have done or omitted to do if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property.
20. In G. V. Rao v. L. H. V Prasad, (2000) 3 SCC 693, the Hon'ble Supreme Court while discussing the offence of cheating under Section 420 IPC held as follows--
"This part speaks of intentional deception which must be intended not only to induce the person deceived to do or omit to do something but also to cause damage or harm to that person in body, mind, reputation or FIR no. 155/2012 Adarsh Nagar Police Station Page 7 of 9 State v. Pinchu property. The intentional deception presupposes the existence of a dominant motive of the person making the inducement. Such inducement should have led the person deceived or induced to do or omit to do anything which he would not have done or omitted to do if he were not deceived. The further requirement is that such act or omission should have caused damage or harm to body, mind, reputation or property."
21.The intention of the accused, mens rea, is an essential ingredient to make out the offence of cheating. In the instant matter, the accused who was not only the driver but also the owner of the offending vehicle, was using noentry permission Ex. PW1/F and relying upon its use as original. The noentry permission is clearly a coloured photocopy, no original of this noentry permission was ever produced by the accused. If the argument of the accused is to be believed that he was not aware of the noentry certificate, and thought that the certificate in question was genuine, then the accused should have atleast shown the original certificate. The intention of the accused thereby is clear in trying to dupe the traffic police and other state functionaries.
22.The attempt to cheat the officials by use of that document is clear and evident in the instant matter. PW3 stated that the accused was driving and took the assistance of the noentry permission to show why he was driving in the other direction. The accused had sought to rely upon the certificate whereby he would be allowed access to area FIR no. 155/2012 Adarsh Nagar Police Station Page 8 of 9 State v. Pinchu which were otherwise cordoned off and also caused monetary loss to state department.
23.The prosecution has thus been able to prove the charge of attempted cheating under Section 420 IPC read with Section 511 IPC. Accused Pinchu is convicted thereof.
24.As per section 437A of the CrPC, as amended vide the Amendment Act, which came into force on 31.12.2009, the accused as well as the surety shall remain bound by the personal and the surety bond respectively for a period of six months from today.
25. Put up for hearing on sentence at 3PM.
Announced in Open Court on 25.10.2018 Sadhika Jalan MM06/North District Rohini/25.10.2018 Certified that this judgment contains 9 pages and each page bears my signature.
Sadhika Jalan MM06/North District Rohini/25.10.2018 FIR no. 155/2012 Adarsh Nagar Police Station Page 9 of 9